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https://www.courtlistener.com/api/rest/v3/opinions/2609771/ | 7 Cal. 4th 246 (1994)
866 P.2d 92
27 Cal. Rptr. 2d 165
MARLENE BURCH, Petitioner and Appellant,
v.
RANDALL GEORGE, as Trustee, etc., et al., Objectors and Respondents.
Docket No. S025369.
Supreme Court of California.
February 7, 1994.
*251 COUNSEL
Hirschtick, Chenen, Cohen & Linden, Chenen, Cohen & Linden, Marvin M. Lager and C. Kelly McCourt for Petitioner and Appellant.
Mitchell, Silberberg & Knupp, Allan P. Cutrow, Kathleen L. McAchran, Nordman, Cormany, Hair & Compton, Glen M. Reiser and Larry L. Hines for Objectors and Respondents.
OPINION
BAXTER, J.
Marlene Burch (Marlene) became the fifth wife of Frank Burch (Frank) in December 1985. In 1988, Frank executed his integrated estate plan, which consisted of a will and an inter vivos trust. The beneficiaries of the trust included Marlene, Frank's elderly mother, his children from a prior marriage, and other relatives. Prior to his death in March 1989, Frank transferred substantial assets to the trust.
To discourage litigation over the trust and its distribution scheme, Frank inserted a "no contest clause" in the trust instrument. After Frank's death, Marlene petitioned the probate court to determine whether she may, without violating the no contest clause, proceed with plans to litigate her rights as a surviving spouse to certain assets in the trust estate under California's community property laws and under the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.).
We conclude, based on the language of the trust instrument and the circumstances surrounding its execution, that Marlene's proposed actions would amount to a contest in violation of the instrument's no contest clause. We further conclude that enforcement of the clause against Marlene, in the *252 event she decides to pursue her claims, is fully consistent with California law and is not preempted by the federal act. As we shall explain, such enforcement will in no way prevent or hinder Marlene from obtaining everything to which she may be entitled under community property and federal laws, but will simply mean that if Marlene chooses to pursue those benefits she may not, at the same time, obtain in addition the portion of Frank's separate property that was conditionally left to her under his trust.
FACTS
Marlene and Frank married in December 1985. This was Frank's fifth marriage. Prior to the marriage, Frank was part owner of a successful car dealership called Pacific Coast Ford (Pacific Coast). During the marriage, Frank became sole owner of Pacific Coast and a participant in its pension plan.
In July and August of 1988, Frank met with his attorney and instructed him to create an integrated estate plan consisting of a will and an inter vivos trust known as the Frank Burch Family Trust. Pursuant to the trust instrument executed by Frank, the trust estate was to be divided into six separate subsidiary trusts upon Frank's death. Five of these subsidiary trusts were designated for the benefit of Frank's blood relatives, including his elderly mother, his children and a grandchild from a prior marriage. The sixth subsidiary trust was a marital trust in favor of Marlene. Prior to his death, Frank transferred various assets to the trust, including interests in his Pacific Coast stock, his Pacific Coast pension plan account, and six life insurance policies purchased by the pension plan.
To discourage litigation over his estate plan, Frank included a no contest clause in the trust instrument.[1] Under the terms of the clause, any beneficiary who sought to contest or otherwise void, nullify or set aside the trust instrument or any of its provisions would forfeit all right to take under the instrument.
Frank died in March 1989. At the time of his death, the assets that allegedly belonged to Frank were valued at more than $7 million. Outside the trust, Marlene received nearly $800,000 in joint tenancy property and $200,000 in life insurance benefits. Under the trust, Marlene would be provided with substantial assets, consisting of Frank's Mercedes Benz automobile, a 53-foot yacht, a $1 million beach house still under construction, and life insurance proceeds of $60,000. In addition, Marlene would receive a life estate in the income of the marital trust that would pay $6,000 per *253 month. The marital trust was to be funded with $1.6 million of the proceeds derived from the sale of the Pacific Coast stock. Also under the trust, the balance of approximately $4 million, including most of the proceeds from the sale of the Pacific Coast stock and the entire pension plan death benefit of $169,000, would pass to Frank's blood relatives.
After Frank's death, Marlene petitioned the probate court pursuant to Probate Code former section 21305[2] to determine whether she could, without violating the no contest clause, proceed with a proposed state action against the trust to litigate her community property rights in the trust estate and a proposed federal action against the administrators of the Pacific Coast pension plan to litigate her rights under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.). Relying on the language of the trust instrument, and the uncontroverted declarations of Frank's attorney and one of the trustees of the trust, the probate court ruled, among other things, that both of the proposed actions would trigger the trust instrument's no contest clause because they were "designed to thwart the basic intent of [Frank's] estate plan."
The Court of Appeal affirmed this portion of the judgment.[3] Additionally, the court rejected Marlene's argument that the passive operation of California's no contest law interferes with her rights under the federal act and is therefore preempted. We granted review to consider the important issues presented herein.[4]
DISCUSSION
This case presents essentially three questions. First, would Marlene's proposed state and federal complaints trigger the no contest clause contained *254 in the trust instrument? Second, if the clause would be triggered, does California law provide a basis for not enforcing the clause against Marlene with respect to the claims based on her community property rights? Third, if the clause is enforceable against Marlene under California law, then does the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.) otherwise preclude its operation to the extent pension benefits are at issue? We shall address these questions in order.
A. Would the No Contest Clause Be Triggered?
(1) The interpretation of a will or trust instrument presents a question of law unless interpretation turns on the credibility of extrinsic evidence or a conflict therein. (Estate of Dodge (1971) 6 Cal. 3d 311, 318 [98 Cal. Rptr. 801, 491 P.2d 385]; Estate of Russell (1968) 69 Cal. 2d 200, 213 [70 Cal. Rptr. 561, 444 P.2d 353]; Poag v. Winston (1987) 195 Cal. App. 3d 1161, 1173 [241 Cal. Rptr. 330].)[5] Since the record in the present case discloses no conflict in the extrinsic evidence, and the parties have identified no issues of credibility, it is our duty to independently construe the trust instrument.
(2) An in terrorem or no contest clause in a will or trust instrument creates a condition upon gifts and dispositions provided therein. (See Estate of Lindstrom (1987) 191 Cal. App. 3d 375, 381 [236 Cal. Rptr. 376].) In essence, a no contest clause conditions a beneficiary's right to take the share provided to that beneficiary under such an instrument upon the beneficiary's agreement to acquiesce to the terms of the instrument. (See Estate of Hite (1909) 155 Cal. 436, 441 [101 P. 443].)
No contest clauses are valid in California and are favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator. (Estate of Hite, supra, 155 Cal. at pp. 439-441; Estate of Black (1984) 160 Cal. App. 3d 582, 586-587 [206 Cal. Rptr. 663].) Because a no contest clause results in a forfeiture, however, a court is required to strictly construe it and may not extend it beyond what was plainly the testator's intent. (Estate of Watson (1986) 177 Cal. App. 3d 569, 572 [223 Cal. Rptr. 14]; Estate of Black, supra, 160 Cal. App.3d at p. 587; Estate of Kazian (1976) 59 Cal. App. 3d 797, 802 [130 Cal. Rptr. 908].)[6]
(3) "Whether there has been a `contest' within the meaning of a particular no-contest clause depends upon the circumstances of the particular case *255 and the language used." (Estate of Watson, supra, 177 Cal. App.3d at p. 572; Estate of Lindstrom, supra, 191 Cal. App.3d at p. 381; Estate of Black, supra, 160 Cal. App.3d at p. 587.) "[T]he answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purposes that the [testator] sought to attain by the provisions of [his] will." (Estate of Kazian, supra, 59 Cal. App.3d at p. 802.) Therefore, even though a no contest clause is strictly construed to avoid forfeiture, it is the testator's intentions that control, and a court "must not rewrite the [testator's] will in such a way as to immunize legal proceedings plainly intended to frustrate [the testator's] unequivocally expressed intent from the reach of the no-contest clause." (Ibid.)
(4a) With these principles to guide us, we must determine whether the filing of the proposed state complaint or the proposed federal complaint would constitute a contest within the meaning of the no contest clause contained in the Frank Burch Family Trust instrument. These complaints are described in further detail below.
Marlene's proposed state complaint names as defendants the trustees and beneficiaries of the Frank Burch Family Trust and its subsidiary trusts. This complaint alleges in relevant part that 100 percent of the stock in Pacific Coast and 100 percent of the proceeds of various life insurance policies purchased by Pacific Coast's pension plan were purportedly transferred into the Frank Burch Family Trust. It further alleges that under California community property law, Marlene is the owner of one-half of these assets. The complaint seeks the return of her property through various causes of action including declaratory relief, conversion and partition.
Marlene's proposed federal complaint names only the Pacific Coast pension plan and its administrators as defendants. This complaint alleges that, under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.) (hereafter ERISA) and the terms of the pension plan, Marlene is entitled as a surviving spouse to receive 100 percent of the pension plan death benefits, but that the plan administrators have wrongfully refused to pay any benefits to her. In the alternative, the complaint alleges that pursuant to community property law, Marlene is entitled to 50 percent of all of the death benefits and to 50 percent of the benefits payable under the life insurance policies purchased by the pension plan. Finally, the complaint alleges that the administrators breached their fiduciary duties under the federal act by unlawfully converting the disputed benefits and wrongfully failing to provide certain documentation.
*256 In ascertaining Frank's intentions, we look first to the terms of his trust instrument. Those pertinent to our inquiry include: (1) the preliminary recitals, which describe the trust estate; (2) article III, which describes the division of the trust estate upon the trustor's death and directs its distribution; and (3) paragraph 12 of article IX, which contains the no contest clause. These provisions stipulate as follows.
The preliminary recitals provide in relevant part that the trustee "agrees to hold and administer the property listed on the attached `Schedule A' and any other property added to the Trust Estate according to the terms of the Trust created by this instrument. Trustor states that the property subject to this Trust is his separate property and that his interest therein, and in the proceeds and income therefrom, shall remain his separate property. [¶] All property now or hereafter subject to this Trust shall constitute the Trust Estate and shall be held, managed and distributed as hereinafter provided."
Article III directs that upon the trustor's death, the trustee shall, after making certain specified distributions and payments, divide the residue of the trust estate into six separate trusts. Pursuant to this article, 20 percent of the trust estate goes to the marital trust and the remaining 80 percent is split among four other trusts designated for the benefit of Frank's children, his grandchild, and three children of his deceased sister. Proceeds from certain specified life insurance policies go to a trust designated for the benefit of Frank's mother.
Finally, the no contest clause provides in pertinent part: "In the event that any beneficiary under this Trust ... seeks to obtain in any proceeding in any court an adjudication that this Trust or any of its provisions ... is void, or seeks otherwise to void, nullify or set aside this Trust or any of its provisions, then the right of that person to take any interest given to him or her by this Trust shall be determined as it would have been determined had such person predeceased the execution of this trust instrument without issue."
Following the rule of strict construction (Estate of Watson, supra, 177 Cal. App.3d at p. 572), we must ascertain from these provisions whether Frank unequivocally intended that Marlene would forfeit the distribution provided for her under the trust instrument in the event that she decides to pursue her interests as a surviving spouse against the trust estate. If this intention plainly appears, then it must be concluded that Marlene's proposed actions would trigger the no contest clause.
It is reasonably clear from the recitals that the trustor intended for any and all property transferred to the trust to be subject to the distribution scheme *257 set forth at article III of the trust instrument. Significantly, the recitals specifically state that the trustee is to hold and administer "the property listed on the attached `Schedule A' and any other property added to the Trust Estate according to the terms of the Trust," and that "[a]ll property now or hereafter subject to this Trust shall constitute the Trust Estate and shall be held, managed and distributed as hereinafter provided."
It is also reasonably clear from the trust terms that the trustor intended to dispose of the trust estate in whole, and that he intended to put his surviving spouse to an election between taking the distribution provided for her under the trust, or alternatively, renouncing that distribution and taking against the trust estate pursuant to her independent legal rights. This intention appears from the declaration in the recitals that the property subject to the trust is and is to remain the trustor's "separate property." (See Estate of Wolfe (1957) 48 Cal. 2d 570, 574-575 [311 P.2d 476]; Estate of Vogt (1908) 154 Cal. 508, 512 [98 P. 265]; Estate of Roach (1959) 176 Cal. App. 2d 547, 552-553 [1 Cal. Rptr. 454].)
(5) As Witkin explains, "if the testator refers to the property bequeathed or devised in general terms without identifying it as separate or community, it may be inferred that he intended only to dispose of his own interest (his separate property and one-half the community property), and no election is necessary, no matter how liberal the provision is for the wife. [Citations.]" (12 Witkin, Summary of Cal. Law (9th ed. 1990) Wills and Probate, § 55, pp. 93-94.) On the other hand, "if the testator declares that all the property is his separate property, thus clearly indicating a belief that he is disposing of the entire estate, election is required. [Citations.] `It is of no concern that he was mistaken in his belief that the wife had no community interest in the property devised. His manifest intention to devise the estate as an entirety, and irrespective of any right which might be asserted on behalf of the marital community, is the controlling factor.' [Citation.]" (12 Witkin, supra, § 55, p. 94.)
(6) In Estate of Wolfe, supra, 48 Cal. 2d 570, we described the operative principle this way: "If the testator purported to dispose of both his and his spouse's share of the community property, and it appears that the intent of the testator will be thwarted by giving literal effect to the will while recognizing the community property rights of the surviving spouse, an election should be required. The purpose of the election is to adjust the distribution of the property under the will to conform to the express or implied intention of the testator." (48 Cal.2d at p. 574.) Furthermore, this principle is not limited to community property rights; it is also applicable to any other kind of property right. (Estate of Waters (1972) 24 Cal. App. 3d 81, *258 85 [100 Cal. Rptr. 775] [surviving spouse required to elect between taking under the will or asserting her joint tenancy rights to estate property].)
(4b) Although the trust instrument contains a separate property declaration that evinces an intention to force an election with respect to any asset placed in the trust estate, it is true, as Marlene asserts, that the trust instrument does not expressly name the Pacific Coast stock, the pension plan benefits or the insurance policies as being part of the trust estate.[7] The instrument refers to a list of assets on "Schedule A," but that schedule was evidently never prepared.
In this case, the trustor's intentions are clear, even though the disputed assets were not listed in the trust instrument. First, as the trial court recognized, "[t]here was no requirement under decedent's trust agreement that any or all trust property be reflected in a `Schedule A,' since the trust corpus by definition included `any other property added to the Trust Estate.'" Second, Frank apparently arranged to have each of the disputed assets added to the trust estate before his death, thus reflecting deliberate action to place each of them squarely within the terms and conditions of the trust.
The extrinsic evidence in this case confirms our interpretation of the trust's terms.[8] This evidence is uncontroverted that Frank transferred the disputed assets to the trust, that he intended that the trust dispose of these assets, and that any assertion of independent rights to these assets by Marlene would trigger the no contest clause.
A declaration offered by one of the trustees of the trust establishes that Frank transferred to the trust all of the issued and outstanding shares of stock of Pacific Coast, and that he designated the trust as beneficiary of the death benefits paid by the pension plan. The declaration also establishes that Frank *259 purchased nine life insurance policies through the pension plan, and designated all but one of them to be paid either to the trust or to persons other than Marlene.
Another declaration submitted by the attorney who implemented Frank's estate plan provides some context to Frank's execution of that plan. According to the attorney, it was important to Frank that his estate plan provide for his living blood relatives, namely, his three children and a grandchild from a previous marriage, his mother, and the three children of his deceased sister. In connection with the estate planning, Frank discussed with this attorney which assets were to be transferred to the trust, and identified, among other things, the Pacific Coast stock, various insurance policies and his interest in the pension plan.
The attorney further stated that Frank anticipated Marlene would assert claims against the assets that would constitute the trust estate, even though he considered them his separate property. Therefore, Frank intended "to provide generously for Marlene with the hope that this would preclude claims by her upon his estate." In accordance with Frank's plans, the trust instrument provided Marlene a distribution that would include an expensive home, a yacht, a Mercedes Benz automobile and income for life on a 20 percent share of the trust estate remaining after certain specified distributions were made. The instrument also contemplated that the property and interests left to Marlene would be free from death taxes.
Finally, the attorney disclosed that Frank was aware he could not deny Marlene the legal right to assert claims against his trust, or the assets transferred thereto. He added, however, that Frank intended, by the creation of his elaborate estate plan, in combination with the separate property declaration and the no contest clause, to deny Marlene the right to assert ownership claims against the property transferred to the trust, while at the same time, retaining the generous benefits which were conditionally provided for her under that same instrument.
In the proceedings below, Marlene submitted no evidence to controvert the declarations of the trustee or the attorney. Although Marlene makes no present attempt to challenge the admissibility or credibility of their statements,[9] she argues it is unclear whether Frank intended that the trust convey the disputed assets in light of the following three facts. First, Schedule A was never completed and Frank expressed some uncertainty to the attorney regarding what assets were to be included in the trust. Second, Frank's will, *260 which was executed on the same day as the trust instrument, contained a declaration that he intended to dispose of "all property to which I am entitled by law to dispose of by will." Third, Frank created and controlled Pacific Coast's pension plan and gave her, as an eligible spouse, greater benefits thereunder than required by ERISA. He also never reduced these benefits although he made other changes to the plan, and the plan was not mentioned in either the trust instrument or the will.
In our view, none of these facts renders the trustor's intentions unclear. To begin with, the fact that no Schedule A was ever completed is of no consequence because, as we indicated previously, the trust corpus by definition includes "any other property added to the Trust Estate." While the record shows that Frank may have been uncertain at one time as to the trust's disposition of unspecified assets, it reveals no uncertainty regarding the Pacific Coast stock, the pension plan benefits or the insurance policies.
(7) Second, even though Frank's will contained a statement that he intended to dispose of all property to which he was "entitled by law to dispose of by will," this statement creates no ambiguity because its application was limited by its own terms to dispositions under the will. It is uncontroverted here that none of the disputed assets passed to the trust under his will.[10]
Third, we are not persuaded that Frank's creation and control of the Pacific Coast pension plan evinces any uncertainty of intention. We note that the pension plan was established and maintained for the benefit of all employees of Pacific Coast and their eligible spouses, not just Frank and Marlene. The fact that Frank had the power to amend the terms of the pension plan but never decreased the benefits to the eligible spouses of Pacific Coast employees bears no logical relation to the inquiry here.
(8) Marlene next contends that her proposed federal action would not amount to a contest of the trust instrument because it seeks no relief directly from the trust or Frank's estate. This contention is without merit. The no contest clause expressly applies to the extent Marlene "seeks to obtain in any proceeding in any court an adjudication that this Trust or any of its provisions ... is void, or seeks otherwise to void, nullify or set aside this Trust or any of its provisions. ..." (Italics added.) Although the proposed federal complaint does not name the trust or Frank's estate as defendants, it does *261 seek recovery of the pension plan death benefits and life insurance benefits on the theory that these assets belong to Marlene and that they should not have been transferred to the trust. If successful, the federal complaint, like the state complaint, would effectively nullify or thwart the provisions in the trust instrument that provide for the allocation of all assets placed in the trust estate to the various subsidiary trusts. It would similarly result in the nullification of Frank's clearly stated intent that Marlene be put to an election of her independent rights to all property transferred to the trust. Since it is the intention of the trustor that controls (see Estate of Kazian, supra, 59 Cal. App.3d at p. 802), the mere absence of the trust as a defendant in the proposed federal action is not determinative.
(4c) Finally, Marlene argues that the no contest clause would not be triggered by her proposed actions because proceedings by beneficiaries to assert claims to property based upon a source of right independent of the will or trust instrument, i.e., creditor's claims, have been held not to be "contests" in a variety of cases. She relies principally on Estate of Watson, supra, 177 Cal. App. 3d 569, Estate of Black, supra, 160 Cal. App. 3d 582, Estate of Schreck (1975) 47 Cal. App. 3d 693 [121 Cal. Rptr. 218], and Estate of Dow (1957) 149 Cal. App. 2d 47 [308 P.2d 475].
These cases do not stand for the categorical proposition that any proceeding based upon a claim of right independent of a will or trust instrument is never a contest for purposes of the no contest law. The respective courts in these cases simply followed the established rules for construing a no contest clause and determined that the particular claims asserted were consistent with the respective testators' intentions. These cases are factually distinguishable and do not call for a different result in the matter before us.
In Estate of Black, supra, 160 Cal. App. 3d 582, a woman who had cohabited with the testator for nearly 18 years sought a ruling that the filing of a proposed petition to require conveyance of property in the testator's estate under theories of implied domestic partnership would not violate the no contest clause of the testator's will under which she received a mobilehome and a trust to maintain the mobilehome. In that case, the will described the testator's estate in general terms and contained a statement that the testator intended to dispose of the property which he had the right to dispose of by will. (160 Cal. App.3d at p. 591.) Based on the language of the will, the Court of Appeal held that the proposed petition did not violate the no contest clause because the basis for the petitioner's claim was that the testator did not intend to dispose of by will that property which represented her domestic partnership interest. (Ibid.)
The situation before us is completely different. First and foremost, the trust instrument at issue here includes two provisions not present in Estate of *262 Black, supra, 160 Cal. App. 3d 582: (1) an express declaration that all of the property added to the trust estate was subject to the trust; and (2) an express declaration that all such property was the trustor's separate property and was to remain his separate property. The presence of these two declarations is what distinguishes the instant trust instrument and leads to a different result. Second, there is undisputed extrinsic evidence in this case showing that the trustor did not intend to allow Marlene to retain the distribution conditionally provided for her under the trust in the event she decided to pursue her claims against the trust estate.
Estate of Schreck, supra, 47 Cal. App. 3d 693, is distinguishable for similar reasons. In that case, the testator left his estate in trust, with income for life to his surviving spouse and remainder to his siblings. The no contest clause applied to anyone who sought "`to succeed to any part of my estate except through this will.'" (47 Cal. App.3d at p. 695.) A remainderman contended the surviving spouse had violated the clause because she had successfully claimed a Cadillac held in joint tenancy and had some $2,387 in personalty, consisting of the couple's furniture and the testator's wristwatch, set apart to her as exempt from execution. (Ibid.) The Court of Appeal rejected this contention and determined there had not been a contest because the testator had not intended to put the surviving spouse to an election of her legal rights. (Id., at pp. 696-697.) Moreover, the spouse had not sought to invalidate the will, nor had the car or the personalty come to her by intestate succession. (Id., at p. 697.) We see no inconsistency between that case and ours. The facts before us simply call for a different result, i.e., the clause at issue here is not limited to "successors" of the trustor, and the separate property declaration and extrinsic evidence reflect a contrary intention on the part of the trustor.
In Estate of Watson, supra, 177 Cal. App. 3d 569, the court determined that two sisters could file a creditor's claim against their stepmother's estate to enforce an oral testamentary agreement allegedly entered into between the stepmother and their deceased father without violating a no contest clause contained in the father's will. The court found that the attack on the stepmother's will did not constitute a contest of the father's will because the sisters had not attempted to thwart their father's intent but had repeatedly affirmed the provisions of his will. (177 Cal. App.3d at p. 575.) In stark contrast, Marlene's proposed civil actions seek to defeat Frank's intentions as expressed in the trust instrument.
Finally, in Estate of Dow, supra, 149 Cal. App. 2d 47, the testator had made gifts of property before his death. In his will, he declared that all of his property was his separate property. (149 Cal. App.2d at p. 50.) After the *263 testator's death, the surviving spouse filed an action in which she claimed that the testator's estate consisted of community property and sought to set aside the gifts. The matter was eventually settled, and some of the gifts were returned to the estate. As part of the settlement, the spouse dropped her claim that the estate consisted of community property, and all parties apparently agreed that she could participate in the distribution of the estate. (Id., at pp. 51-52.) The Court of Appeal held that the no contest clause was not triggered, observing that the surviving spouse had effectively "waived" her contention concerning the community character of the estate. (Id., at p. 54.) The court was also impressed with the fact that the action to set aside the gifts had greatly enhanced the value of the decedent's estate. (Ibid.) These facts are so far removed from the facts here as to make that case inapposite.
In summary, the terms of Frank's trust instrument and the surrounding circumstances evince an unequivocal intention to preclude Marlene from taking under the trust while at the same time asserting independent ownership claims against the Pacific Coast stock, the pension plan benefits and the life insurance benefits which Frank had transferred to the trust estate. Since Marlene's proposed federal and state actions are each designed to thwart this intention, we conclude that each would constitute a contest within the meaning of the no contest clause and thereby trigger its application.[11]
B. Does California Law Provide a Basis for Not Enforcing the Clause in This Case?
(9a) We now determine whether California law provides a basis for not enforcing the no contest clause against Marlene. In making this determination, we first consider whether a no contest clause is enforceable under current law where the will or trust instrument purports to dispose of assets in which a beneficiary claims ownership or other rights independent of the instrument, such as community property rights.
We have reviewed the Probate Code and the case law and are unable to find any authority for the proposition that a no contest clause is either invalid *264 or unenforceable against a beneficiary who claims that a will or trust instrument purports to dispose of property in which the beneficiary allegedly has independent interests.[12] This is not surprising; courts have historically enforced no contest clauses against beneficiaries making such claims if that is determined to be what the decedent plainly intended. (E.g., Estate of Kazian, supra, 59 Cal. App.3d at pp. 802-803; Estate of Howard (1945) 68 Cal. App. 2d 9, 11-12 [155 P.2d 841].) Although some courts have chosen not to enforce no contest clauses against beneficiaries asserting independent claims to estate property, they have done so on the basis that the asserted claims were not "contests" within the terms of the particular clauses before them. (E.g., Estate of Black, supra, 160 Cal. App. 3d 582; Estate of Schreck, supra, 47 Cal. App. 3d 693.) No court, however, has questioned the general enforceability of no contest clauses as to claims based on the beneficiary's alleged independent rights.
Having concluded that California law does not currently provide for an exception to the enforceability of no contest clauses in these circumstances, we next consider whether such an exception ought to be recognized.
It is Marlene's position that public policy weighs in favor of deeming a no contest clause unenforceable against a surviving spouse who asserts community interests in estate property. She points out there is a strong public policy that favors fair dealing between spouses with respect to marital assets. This policy is now embodied in Family Code section 1100, which prohibits a spouse from conveying or disposing of community personal property without the written consent of the other spouse, and Family Code section 1101, which grants the nonconsenting spouse a right of action against the other spouse for breach of that duty to obtain written consent.
Marlene argues that the enforcement of a no contest clause against a surviving spouse who asserts community interests impairs and effectively prohibits enforcement of those interests. She asserts that a decedent should not be permitted to appropriate 100 percent of the community property, devise an estate plan with a no contest clause, and make a gift of separate property to the surviving spouse to discourage a contest. Marlene reasons that because a decedent may not lawfully dispose of another's property, enforcement of the no contest clause in such a situation encourages intramarital theft and the forfeiture of community property rights. Much of this *265 reasoning is echoed by the dissent. (Dis. opn. of Kennard, J., post, at pp. 284-285.)
(10) We disagree. Both Marlene and the dissent misapprehend the purpose and effect of a no contest clause. Such a clause essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate the trust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument. (9b) Thus, while the enforcement of a no contest clause might work a forfeiture of a surviving spouse's conditional right to take under the trust instrument, it does not, as Marlene and the dissent urge, work any forfeiture or conversion of the spouse's community property.
We have no doubt that no contest clauses discourage some surviving spouses from litigating over perceived community rights in estate property. However, the fact that a no contest clause might discourage a surviving spouse in this way does not mean that a "theft" of community property has occurred. Such a clause does not deprive the spouse of his or her community interests in property, nor does it hinder the ability of the spouse to assert such interests. To the extent the spouse believes valid community claims may be made against estate property, the spouse remains free to pursue them at his or her option. In doing so, however, the spouse may not retain the distribution conditionally provided under the estate plan.
Clearly it is the law that one may not dispose of another's property. Yet it is neither unlawful nor against public policy to enforce a no contest clause against a surviving spouse who decides to pursue community interests in estate property. For over a century, courts have approved the operation of forced elections, even when no contest clauses were not involved. (E.g., Estate of Murphy (1976) 15 Cal. 3d 907, 913 [126 Cal. Rptr. 820, 544 P.2d 956]; Estate of Wolfe, supra, 48 Cal. 2d 570, 574; In re Estate of Smith (1895) 108 Cal. 115, 119-120 [40 P. 1037]; Morrison v. Bowman (1865) 29 Cal. 337, 346-352; Estate of Roach, supra, 176 Cal. App.2d at p. 551.)
The reasoning underlying the validity and enforceability of a forced election is persuasive in putting into proper perspective the claim that the use of a no contest clause represents an attempt by a trustor or testator to dispose of another's property. "While it is the law that a testator can only dispose of his own property, he may assume to dispose of that which belongs to another, and such disposition may be ratified and confirmed by its owner, by the acceptance, under the will, of a donation, necessarily implying such ratification and confirmation. The act of the testator attempting to dispose of the property of another, and the act of the owner of such property in *266 accepting the benefit provided for him by the testator, united, complete the disposition, which, without the act of confirmation, would be of no effect." (Morrison v. Bowman, supra, 29 Cal. at p. 351 [rejecting wife's claim that she was entitled to both accept testator's bequest to her and hold her community rights because testator could not dispose of her community interests by his will].) In other words, "the effectiveness of a testamentary disposition of the surviving spouse's community property interest to third persons depends upon the survivor's voluntary and affirmative acceptance of the will's provisions and cannot stem from the decedent's testamentary act alone. [Citation.]" (Estate of Murphy, supra, 15 Cal.3d at p. 915.) This logic applies with equal force to dispel any notion that a no contest clause allows or encourages a testator or trustor to "unlawfully" dispose of another's property.
In assessing the propriety of creating a new exception to the enforceability of no contest clauses, we cannot ignore the fact that the Legislature only recently reaffirmed its approval of no contest clauses as estate planning devices. (Stats. 1990, ch. 79, § 14.) While it may be true that the Legislature has not foreclosed the ability of courts to develop exceptions to the enforceability of such clauses,[13] we do not believe that an exception is appropriate where an assertion of community property rights is made. As the trust in this case illustrates, estate planning for many married couples now entails allocating a lifetime of community and separate assets between the current spouse and children from a previous marriage. The difficulties inherent in ascertaining community interests in otherwise separate property pose a significant challenge to the testator or testatrix. If the testator or testatrix errs in identifying or calculating the community interests in his or her property, costly and divisive litigation may ensue and testamentary distributions in favor of one or more beneficiaries might unexpectedly be extinguished. As both the Legislature and courts have long recognized, no contest clauses serve an important public policy in these situations by reducing the threat of litigation and uncertainty. Therefore, the fact that increasing numbers of spouses and beneficiaries stand to benefit from this time-tested estate planning device is all the more reason for not recognizing the exception Marlene proposes.
*267 Another compelling reason for not creating an exception for community property claims is that such a rule might be counterproductive to the interests of surviving spouses. For instance, the rule might influence some testators and testatrices to make no alternative provisions for their surviving spouses because such a course might be the only way to assure that other intended beneficiaries are adequately provided for in situations where there might be any question of a costly or lengthy community property dispute. Thus, while the proposed exception is advocated for the supposed protection of surviving spouses, it may actually have the undesired effect of depriving some spouses of the opportunity to receive a distribution of assets that is potentially more valuable than or preferable to their community interests in the estate.
Finally, we observe that equitable principles support the enforcement of no contest clauses against surviving spouses asserting community interests in estate property when such claims would plainly frustrate the expectations of the decedent spouses. There is considerable unfairness in allowing a surviving spouse to accept a will or trust instrument to the extent it confers a benefit, and at the same time attack the instrument to the extent it does not. Under such circumstances, the surviving spouse would receive a windfall to the detriment of the other beneficiaries.[14]
Accordingly, we hold that a no contest clause is properly enforceable against a surviving spouse who, under the terms of a will or trust instrument, brings a contest against that instrument based on the assertion of community *268 property rights to estate property. When a spouse decides to pursue such a challenge, we see no legal or policy reason that would justify allowing the spouse to also take under the instrument in clear violation of the decedent's intentions.
C. Is California's No Contest Law Preempted to the Extent Pension Plan Benefits Are at Issue?
(11a) Marlene's proposed federal complaint alleges that the Pacific Coast employees' pension plan is an employee benefit plan under ERISA (29 U.S.C. § 1001 et seq.). The Pacific Coast pension plan, which is attached to Marlene's proposed federal complaint, specifies that each participant must designate a beneficiary to receive all death benefits, that a participant who has an eligible spouse must designate that spouse as the beneficiary unless the spouse waives in writing the right to be so designated, and that if no beneficiary is designated, all death benefits are payable to the participant's surviving spouse. Marlene's proposed complaint alleges, inter alia, that she did not waive any of her rights under ERISA or the pension plan, and that the administrators of the plan breached their fiduciary duties under ERISA by refusing to pay her any death benefits and refusing to provide any information or documents to which she was entitled. In this section we address Marlene's contention that application of California's no contest law is preempted by ERISA to the extent she seeks recovery of pension plan benefits.
(12) "ERISA is a comprehensive federal statutory scheme designed to promote the interests of employees and their beneficiaries in employee benefit plans." (Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co. (1991) 53 Cal. 3d 1041, 1047 [282 Cal. Rptr. 277, 811 P.2d 296] [hereafter Carpenters].) ERISA was adopted by Congress "to ensure that `if a worker has been promised a defined benefit upon retirement and if he has fulfilled whatever conditions are required to obtain a vested benefit ... he actually receives it.' [Citation.]" (Alessi v. Raybestos-Manhattan, Inc. (1981) 451 U.S. 504, 510 [68 L. Ed. 2d 402, 408, 101 S. Ct. 1895] [hereafter Alessi].)
ERISA contains an express preemption clause providing in pertinent part that the federal act "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." (29 U.S.C. § 1144(a), italics added.) As defined under ERISA, "State law" includes "all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." (Id., § 1144(c)(1).) An "employee benefit plan" is defined as including employee pension benefit plans. (Id., § 1002(3).) For purposes *269 of the preemption clause, a state law "relates to" a benefit plan "if it has a connection with, or reference to such a plan." (Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 97 [77 L. Ed. 2d 490, 501, 103 S. Ct. 2890] [hereafter Shaw]; see also Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 47 [95 L. Ed. 2d 39, 47, 107 S. Ct. 1549].)
(13a) The United States Supreme Court has made clear that a state law "relates to" a benefit plan and is preempted if it is specifically designed to affect ERISA benefit plans, or singles out such plans, by express reference, for special treatment. (Mackey v. Lanier Collection Agency & Serv., Inc. (1988) 486 U.S. 825, 829, 838, fn. 12 [100 L. Ed. 2d 836, 843-844, 849, 108 S. Ct. 2182] [finding preemption of Georgia law which singled out ERISA plans for protective treatment under state garnishment procedures]; accord, Carpenters, supra, 53 Cal.3d at p. 1049 [finding preemption of statute which created liens on real property in favor of trust funds established pursuant to collective bargaining agreements].) (11b) This bright line rule of preemption is not implicated here because California's no contest law makes no specific reference and affords no special treatment to ERISA benefit plans.
(13b) Preemption is less certain when a state law is a neutral law of general application that indirectly affects an ERISA benefit plan. Although it is settled that "even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern" (Alessi, supra, 451 U.S. at p. 525 [68 L.Ed.2d at p. 418] [state statute preempted insofar as it eliminated a method of calculating benefits under ERISA pension plans]), it is also established that a state law may affect a pension plan in "too tenuous, remote, or peripheral a manner to warrant a finding that the law `relates to' the plan" (Shaw, supra, 463 U.S. at p. 100, fn. 21 [77 L.Ed.2d at p. 503]; see Retirement Fund Trust of Plumbing v. Franchise Tax (9th Cir.1990) 909 F.2d 1266, 1280-1281 [California's tax levy procedure not preempted]; Aetna Life Ins. Co. v. Borges (2d Cir.1989) 869 F.2d 142, 145 [state escheat law not preempted]). (11c) Since there is no black letter test for evaluating whether a neutral state law is preempted (see Duffy v. Cavalier (1989) 215 Cal. App. 3d 1517, 1528 [264 Cal. Rptr. 740]), we must analyze what effect the no contest law has upon ERISA plans and whether that effect impermissibly encroaches upon ERISA's exclusive sphere of concern.
Preliminarily we observe that the no contest law fails to fit into any of the four categories of laws that have previously been found to "relate to" ERISA plans: (1) laws that regulate the type of benefits or terms of ERISA plans; (2) laws that create reporting, disclosure, funding or vesting requirements for ERISA plans; (3) laws that provide rules for the calculation of the amount of benefits to be paid under ERISA plans; and (4) laws and common law rules *270 that provide remedies for misconduct growing out of the administration of ERISA plans. (Carpenters, supra, 53 Cal.3d at pp. 1051-1052, citing to Iron Workers Pension Fund v. Terotechnology (5th Cir.1990) 891 F.2d 548, 553; see also Martori Bros. Distributors v. James-Massengale (9th Cir.) 781 F.2d 1349, as amended 791 F.2d 799, cert. den. (1986) 479 U.S. 949 [93 L. Ed. 2d 385, 107 S. Ct. 435].) Moreover, application of the law does not call for any interpretation of an ERISA provision, other than that relating to preemption, or for a ruling on the validity of any terms or conditions of an ERISA plan. (See Duffy v. Cavalier, supra, 215 Cal. App.3d at p. 1529.)
Although the no contest law is unlike any of the laws described above, Marlene contends that the law is preempted because it has a direct regulatory impact on ERISA fiduciaries and the pension plan itself. She points out that her proposed federal complaint contains causes of action against the pension plan administrators that are expressly authorized by ERISA's civil enforcement scheme (see 29 U.S.C. § 1132(a)), and asserts that the effect of the law is to inhibit the assertion of these claims and thereby shield the fiduciaries of the ERISA plan from answering for their wrongful conduct.
We cannot agree. While Marlene's proposed causes of action may be authorized under ERISA, the no contest law does not inhibit her ability to pursue these claims or to take full advantage of ERISA's civil enforcement scheme. Nor does it provide a shield for fiduciaries guilty of wrongful conduct. On the contrary, beneficiaries such as Marlene retain full discretion and opportunity under the no contest law to sue ERISA plan administrators for wrongfully withheld benefits and breaches of fiduciary duty. Hence, the no contest law has no regulatory impact, direct or otherwise, on ERISA fiduciaries or ERISA plans.[15]
Marlene next argues that the no contest law is preempted because it has an impermissible "chilling effect" on the pursuit of her rights under ERISA that renders those rights essentially worthless. To support her position, Marlene cites a federal decision dealing with attorney fees issues under an ERISA provision (29 U.S.C. § 1132(g)) that authorizes such fees to prevailing parties in ERISA actions. (Jones v. O'Higgins (N.D.N.Y. 1990) 736 F. Supp. 1243.)[16] In that case, the district court exercised its discretion in refusing to award attorney fees against a plaintiff who had demonstrated a prima facie *271 case of an ERISA violation. In doing so, the court observed: "In circumstances where the plaintiff has come forward with a prima facie case of an ERISA violation, a decision to award attorney's fees would likely operate to `chill' other plaintiffs from asserting their rights under ERISA." (736 F. Supp. at p. 1246.)
We are not convinced. First, Marlene cites no authority standing for the proposition that ERISA preempts any state law that has a "chilling effect" on the assertion of ERISA rights. Second, assuming for the sake of argument that a state law is preempted to the extent it "chills" the exercise of ERISA rights, her attempt to analogize the application of the no contest law to the imposition of a sanction such as an award of attorney fees is without merit. As explained previously (at p. 254, ante), a no contest clause in a will or trust instrument operates to condition a beneficiary's right to take a gift provided under the instrument upon the beneficiary's agreement to acquiesce to its terms. (See Estate of Hite, supra, 155 Cal. 436, 441; Estate of Lindstrom, supra, 191 Cal. App. 3d 375, 381.) Since application of the no contest law merely enforces the conditional nature of a private testamentary gift to which the beneficiary is not otherwise entitled, such a law bears no meaningful resemblance in function to an award of sanctions.
Indeed, in the event Marlene decides to pursue her claims to the ERISA benefits in federal court and she prevails, application of the no contest law would not prevent or hinder her from obtaining everything to which she is entitled under ERISA.[17] There certainly is nothing about the law that would render those benefits worthless. At the same time, if Marlene decides to pursue her ERISA claims and she loses, the no contest law would not authorize attorney fees or any other analogous type of sanction against her for having exercised her rights. We therefore conclude that the no contest law has no "chilling effect" on the exercise of ERISA rights.
Notwithstanding the above, Marlene argues that the no contest law presents a situation parallel to MacLean v. Ford Motor Co. (7th Cir.1987) 831 F.2d 723, in which application of a state's testamentary law was found to be preempted. In that case, the executor of the decedent's estate sought to have the decedent's ERISA plan benefits distributed pursuant to the terms of his will, rather than in accordance with the beneficiary designation provision *272 contained in his pension plan. In concluding that ERISA preempted application of the testamentary law, the Seventh Circuit reasoned that the law, if applied, would determine the distribution of plan assets even though the plan already provided a method for determining such distribution. (831 F.2d at pp. 727-728; cf. Ablamis v. Roper (9th Cir.1991) 937 F.2d 1450 [nonemployee spouse may not bequeath one-half of surviving employee's pension benefits to third party under California's community property law]; Iron Workers Mid-South Pension Fund v. Stoll (E.D.La. 1991) 771 F. Supp. 781, 785-786 [state domestic property statutes may not operate to change beneficiary of pension plan death benefit].)
This argument is off the mark. While MacLean v. Ford Motor Co., supra, 831 F.2d 723, and the other cases cited above indicate that Marlene might prevail in her proposed federal action to recover the disputed pension plan benefits, they do not suggest that ERISA preempts that aspect of the no contest law that would operate to preclude Marlene from taking a private trust distribution consisting of nonpension assets at the same time. As one court aptly stated, "[i]n deference to state prerogatives within the federal system, we must not find such a traditional exercise of state power preempted unless the conclusion is `unavoidable.' [Citation.]" (Aetna Life Ins. Co. v. Borges, supra, 869 F.2d at p. 147.) In the instant situation, a finding of preemption is properly avoided because application of the no contest law against Marlene would only affect her right to receive a distribution of nonpension assets under the Frank Burch Family Trust.
Finally, Marlene argues that enforcement of the no contest law "interferes" with her rights in violation of an ERISA statute which provides: "It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [29 U.S.C.A. § 301 et seq.], or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act. It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act. The provisions of section 1132 of this title shall be applicable in the enforcement of this section." (29 U.S.C. § 1140.)
We are not persuaded. Our previous analysis explains why the no contest law does not impede or interfere with Marlene's attainment of her ERISA *273 benefits. Moreover, although enforcement of the no contest clause will result in Marlene's forfeiture of nonpension-related gifts and assets, she cites no authority suggesting that state enforcement of the conditional nature of a private gift constitutes an "interference" within the meaning of 29 United States Code section 1140. Rather, it appears that the prohibitions contained therein "were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights." (West v. Butler (6th Cir.1980) 621 F.2d 240, 245.) Although some courts have applied this statute outside the context of an employment relationship (see Vogel v. Independence Federal Sav. Bank (D.Md. 1988) 692 F. Supp. 587, 593 [applying statute to group health insurer]; McGinnis v. Joyce (N.D.Ill. 1981) 507 F. Supp. 654, 656-657 [applying statute to plan trustees who threatened violence against participant]), Marlene identifies no decision that has recognized its application to a state statute or under circumstances otherwise analogous to those here.
Based on the foregoing, we are satisfied that California's no contest law is a neutral state law of general application that here would only tenuously affect an ERISA plan, if at all, and would therefore not impermissibly encroach upon ERISA's exclusive sphere of concern. (See Retirement Fund Trust of Plumbing v. Franchise Tax, supra, 909 F.2d at pp. 1280-1281.) Accordingly, we hold there is no preemption with respect to enforcement of the no contest clause at issue.
CONCLUSION
The terms of the trust instrument and the surrounding circumstances evince an unequivocal intent by Frank to foreclose Marlene from retaining the distribution provided for her under that instrument in the event she proceeds to assert her independent ownership claims to the assets in dispute. That being the case, we conclude that the no contest clause would be triggered by Marlene's proposed state and federal actions.
We further conclude that there is no legal or public policy basis for not enforcing the clause against Marlene. In doing so, however, we wish to emphasize that we are not expressing any opinion on the merits of Marlene's claims to the disputed assets as a surviving spouse under community property law and ERISA.[18] Nor are we placing any "stamp of approval" upon the trustor's alleged breach of trust, or suggesting any "endorsement" of marital duplicity, as the dissent accuses us of doing. We hold only that the clause *274 would be enforceable against Marlene in the event she proceeds with her proposed state and federal complaints. We also wish to reiterate that enforcement of the clause will in no way inhibit or interfere with Marlene's ability to obtain everything to which she may be entitled under community property and federal laws. It will simply mean that if Marlene decides to pursue her complaints she may not, at the same time, also obtain the portion of Frank's separate property conditionally left to her under his trust.
The judgment of the Court of Appeal is affirmed.
Lucas, C.J., Panelli, J., Arabian, J., and George, J., concurred.
MOSK, J.
I dissent for the irrefutable reasons expressed in parts I and II of Justice Kennard's dissent. Because the views expressed in those portions of Justice Kennard's dissent adequately resolve the question before us, I do not join and express no opinion with regard to part III.
KENNARD, J., Dissenting.
In this case a husband, without his wife's knowledge or consent, took his wife's property and gave it to his relatives as part of his estate plan. One might expect, in view of the relationship of trust and confidence between marriage partners, that this maneuver would not survive judicial scrutiny. But a majority of this court places its stamp of approval upon this breach of trust, and comes dangerously close to endorsing marital duplicity in financial matters. I dissent.
Frank Burch caused his lawyers to draw up a will and trust that, unbeknownst to his wife Marlene, distributed Marlene's interests in community property and her federally guaranteed death benefit pension rights to Frank's relatives. Frank sought to ensure the success of his plan by inserting a "no contest" or "in terrorem" clause in the trust instrument, intending that if Marlene challenged any provision of his will or trust, she would have to forfeit any benefits she received under the trust. Marlene sought to challenge the use of the no contest clause to work such a forfeiture.
Even though the Legislature has mandated that such no contest provisions be strictly construed, and the wife's proposed challenge does not come strictly within the express terms of the forfeiture clause, the majority concludes that if the wife challenges the husband's attempted disposition of her assets, the forfeiture clause will be triggered. The community property laws and the public policy of this state forbid one spouse to unilaterally dispose of the assets of the community. Nevertheless, the majority holds that a husband who seeks, without the knowledge or consent of his wife, to dispose of community assets and her separate assets may be shielded by the operation *275 of a no contest clause in a trust or will. And, even though the wife's pension rights are guaranteed under the federal Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.), which Congress intended to preempt conflicting state law, the majority holds that the husband's unilateral diversion of his wife's federally guaranteed pension rights does not offend federal law.
I do not agree. As I will explain, I would hold: (1) that, applying the statutory mandate to "strictly construe" no contest clauses, filing either the proposed state court or federal court complaints in this case would not amount to a "contest"; (2) that a no contest clause does not apply against the assertion of a spouse's community interest in donative property; and (3) that the application of a no contest clause in a testamentary instrument under California law to divest a party of federally guaranteed pension rights is preempted under ERISA.
I. BACKGROUND
Frank and Marlene Burch married in December 1985. Before the marriage, Frank had an unspecified ownership interest in Pacific Coast Ford, a corporation operating an automobile dealership; after he and Marlene were married, Frank apparently became the sole shareholder. During the marriage, Frank became a participant in the Pacific Coast Ford pension plan. In mid-1988, Frank retained an attorney to prepare a will and a testamentary trust known as the Frank Burch Family Trust (hereafter the trust).
The primary beneficiaries of the trust were Frank's blood relatives. During the marriage, Frank transferred certain assets into the trust, including all the stock of Pacific Coast Ford and the entire interest in the pension plan created after Frank and Marlene were married. The trust included a subsidiary marital trust containing substantial assets to pass to Marlene, but the marital trust did not contain any interest in Pacific Coast Ford or in the pension plan.
The trust instrument had a no contest clause which provided, in pertinent part: "In the event that any beneficiary under this Trust ... contests in any court the validity of this Trust or of Trustor's last will, or seeks to obtain in any proceeding in any court an adjudication that this Trust or any of its provisions or that such Will or any of its provisions is void, or seeks otherwise to void, nullify or set aside this Trust or any of its provisions, then the right of that person to take any interest given to him or her by this Trust shall be determined as it would have been determined had such person predeceased the execution of this trust instrument without issue." The will contained a similar clause. The trust instrument additionally recited that "the *276 property subject to this Trust is [the trustor's] separate property and that his interest therein ... shall remain his separate property."
Frank died in March 1989. Both Frank and Marlene had apparently brought substantial assets to the marriage. At the time of his death, the assets claimed to be Frank's were valued at more than $7 million. Property worth approximately $800,000 passed directly to Marlene by joint tenancy. Outside the trust, Marlene also received life insurance proceeds of $200,000. Under the trust, Marlene received life insurance proceeds of $60,000, and a life estate in the income from a subsidiary marital trust of about $1.6 million. The balance of approximately $4.3 million, including most of the proceeds from the sale of the Pacific Coast Ford stock and the entire pension plan death benefit of $169,000, passed under the trust to Frank's blood relatives.
In December 1990, Marlene filed two petitions under former Probate Code section 21305 seeking a determination whether certain ERISA and community property claims could be brought in federal and state court without invoking the no contest clause. She attached proposed complaints to each of her petitions.
The proposed federal court complaint named only the pension plan trustees as defendants. It alleged, among other things, that: (1) under 29 United States Code section 1055 and the terms of the pension plan, Marlene was entitled as a surviving spouse to receive 100 percent of the death benefits payable under the plan, but the plan trustees had refused to pay any benefits to her; (2) under California community property law, Marlene was entitled to 50 percent of all Frank's income, and was therefore entitled to half of all benefits under the plan, which benefits had been unlawfully converted by the trustees; (3) the trustees had breached their fiduciary duties; and (4) the trustees had wrongfully failed to provide information, in violation of 29 United States Code section 1132(c).
The proposed state court complaint named as defendants the trustees of the trust, its beneficiaries, and its subsidiary trusts. It alleged, among other things, that Marlene never consented to the transfer of any of her interest in community property into the trust. The property transferred without her consent included 100 percent of the shares of stock in Pacific Coast Ford, the pension plan interest, and several life insurance policies purchased with community funds. The complaint set forth causes of action for, among other things, conversion, declaratory relief, and partition.
The Probate Code petitions were opposed by the trust and several of its beneficiaries. The trial court consolidated the petitions, and ruled that both *277 proposed complaints would trigger the no contest clause. The trial court also ruled that ERISA did not preempt application of the no contest clause.
Marlene appealed, and the Court of Appeal affirmed the judgment of the trial court.[1]
II. NO CONTEST CLAUSES
A. Strict Construction
The law regarding no contest clauses, also called "in terrorem" clauses, is not uniform in the United States. In a few states such clauses are unlawful, and are given no effect, apparently based on the view that "to inhibit a party from ascertaining his rights by appeal to the [courts]" is "against the fundamental principles of justice." (Leavitt, Scope and Effectiveness of No-Contest Clauses in Last Wills and Testaments (1963) 15 Hastings L.J. 45, 55; see, e.g., Fla. Stat. § 732.517 (1992); Ind. Code § 29-1-6-2 (1992); cf. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1133 [270 Cal. Rptr. 1, 791 P.2d 587].) In most jurisdictions, however, the courts uphold no contest clauses, subject to an important restriction: no contest clauses apply only to beneficiaries who contest a will when they have no probable cause to do so. (See, e.g., U. Prob. Code § 3-905 (1983); Rest.2d Property, Donative Transfers (1983) § 9.1.)
California follows a minority rule: no contest clauses are effective, and there is no broad "probable cause" restriction as in most jurisdictions. Nevertheless, no contest clauses are not accorded expansive effect in California. They are not favored. "Public policy [is] as much concerned in upholding the right of a citizen to have his [or her] claim determined by law as it is to prevent contests of wills." (Lobb v. Brown (1929) 208 Cal. 476, 490-491 [281 P. 1010].) Shortly after this court's recognition that no contest clauses were not invalid as against public policy in Estate of Hite (1909) 155 Cal. 436 [101 P. 443], we emphasized that such clauses are "by way of forfeiture" and therefore are to be "strictly construed." (Estate of Bergland (1919) 180 Cal. 629, 633 [182 P. 277, 5 A.L.R. 1363].) And in 1989, the Legislature codified the rule of strict construction for no contest clauses, thereby placing its stamp of approval on the narrow and cautious approach to such provisions taken by the judiciary. (Prob. Code, § 21304.)
Probate Code section 21304 provides: "In determining the intent of the transferor, a no contest clause shall be strictly construed." (Italics added.)
*278 The meaning of strict construction in the context of wills is succinctly summarized in a recent law review article: "Whereas `strict construction' of wills emphasizes the written word and confines interpretation to the `plain meaning' of the words found within `the four corners of the instrument,' a more `liberal construction' emphasizes the testator's intent as the primary determinant and thus allows extrinsic evidence of that intent." (Collins & Skover, Paratexts (1992) 44 Stan.L.Rev. 509, 541-542, fn. 171, citing Atkinson, Handbook of the Law of Wills (1953) pp. 808-809.)
Our law is in accord. This court has held that strict construction means that "[n]o wider scope is to be given to [the testator's] language than is plainly required." (Estate of Bergland, supra, 180 Cal. at p. 635.) Only when an act "come[s] strictly within the express terms" of the no contest clause will a breach be declared. (Lobb v. Brown, supra, 208 Cal. at p. 492.)
B. Strict Construction Applied
As noted earlier, the no contest clause in the trust instrument in this case provided: "In the event that any beneficiary under this Trust ... contests in any court the validity of this Trust or of Trustor's last will, or seeks to obtain in any proceeding in any court an adjudication that this Trust or any of its provisions or that such Will or any of its provisions is void, or seeks otherwise to void, nullify or set aside this Trust or any of its provisions, then the right of that person to take any interest given to him or her by this Trust shall be determined as it would have been determined had such person predeceased the execution of this trust instrument without issue."
It is undisputed that Marlene's proposed federal and state court complaints do not seek to set aside the trust in its entirety. The question, therefore, is whether either proposed complaint "seeks ... an adjudication that ... any ... provision [] [of the trust instrument] is void, or seeks otherwise to void, nullify or set aside" any provision of the trust instrument.
In accordance with Probate Code section 21304, this clause must be strictly construed. I turn first to the proposed state court complaint. It names as defendants the trust and the subsidiary trusts, and all of their beneficiaries and trustees. The proposed state court complaint sets forth causes of action for declaratory relief to construe the trust instrument, conversion, breach of fiduciary duty and partition, and seeks to impose a constructive trust and to set aside fraudulent conveyances.
The proposed state court complaint does not seek an adjudication that any provision of the trust instrument is void or should be set aside. It is therefore *279 not, on its face, an attack on a provision in the trust instrument, and accordingly it cannot be a contest.
The proposed federal court complaint names only the pension plan trustees as defendants. It sets forth causes of action for breach of statutory obligations under ERISA, for conversion, for declaratory relief, and for breach of fiduciary duties. Like the proposed state court complaint, the proposed federal court complaint does not seek an adjudication that any provision of the trust instrument is void or should be set aside. It is also, on its face, not an attack on a provision in the trust instrument, and accordingly it cannot be a contest.
Nevertheless, the trustees contend that the proposed state and federal court complaints necessarily and in substance seek an adjudication that a provision of the trust instrument is void and should be set aside. The trustees focus on this provision of the instrument: "Trustor states that the property subject to this Trust is his separate property and that his interest therein, and in the proceeds and income therefrom, shall remain his separate property." The trustees contend that Marlene's proposed state court complaint challenges this clause because Marlene claims that the property subject to the trust is not Frank's separate property, but community property instead. Similarly, the trustees contend that the proposed federal court complaint challenges this clause because Marlene claims that the ERISA death benefits that were made subject to the trust are under federal law payable to Marlene only.
The difficulty with the trustees' argument is that Frank did not expressly identify in the trust instrument what property he considered to be his separate property. In this case, the trust instrument does not even purport to dispose of any interest in the property that Marlene claims is community property, or of any interest in property that Marlene claims is her separate property. Thus, Marlene does not seek to set aside the provision in the trust instrument quoted above, but merely to have a court construe that provision so as not to include property that is rightfully hers.
As the proposed state court complaint confirms, Marlene has strong claims that the Pacific Coast Ford stock and the life insurance proceeds were community property and not Frank's separate property. Under Family Code section 760, all property acquired by a married person during the marriage is presumed to be community property. The record in this case shows that Frank and Marlene were married in December 1985; although Frank's initial ownership interest in the dealership preceded the marriage, Frank became president and sole shareholder of Pacific Coast Ford in June 1986. Similarly, the record confirms that the life insurance policies at issue were purchased during the marriage.
*280 Moreover, Marlene also has a strong claim that the ERISA death benefits were also not Frank's separate property that he was entitled to dispose of as he wished. ERISA generally mandates that each pension plan must provide "a qualified preretirement survivor annuity" to the surviving spouses of plan participants. (29 U.S.C. § 1055(a)(2).) The plan, a copy of which is attached to Marlene's proposed federal court complaint, appears to comply with the requirement for qualified preretirement survivor annuities. No party other than the surviving spouse has any claim under federal law to this death benefit.
The majority places great reliance on the language in the trust instrument that the trustee is to hold "the property listed on the attached `Schedule A' and any other property added to the Trust Estate according to the terms of the Trust." The majority seems to conclude that this language shows that Frank expressly intended the Pacific Coast Ford stock, the life insurance proceeds, and the pension plan assets to be added to the trust corpus. No schedule A was ever prepared, however. And the majority ignores the instrument's requirement that property added to the trust estate must be added "according to the terms of the Trust." But the terms of the trust specify that only Frank's separate property is subject to disposition. There is nothing in the terms of the trust that indicates that Frank sought to dispose of Marlene's property. Thus, reading the language of the trust strictly, community property and Marlene's separate property could not have been added to the trust estate "according to the terms of the Trust."
Because Frank did not expressly identify in the trust instrument what property he considered to be his separate property, we must give the phrase "separate property" its usual legal meaning. (See Estate of Carter (1956) 47 Cal. 2d 200, 205 [302 P.2d 301].) Whatever ambiguity may be said to inhere in the phrase "separate property," it plainly cannot be construed to mean "community property" or "separate property of another." Nevertheless, that is exactly what the majority does in this case. The majority first purports to find ambiguity in this unambiguous phrase, and then turns to evidence extrinsic to the trust instrument itself specifically, the declarations of two lawyers. One of the lawyers is also a trustee of the trust and is named as a defendant in Marlene's proposed state court complaint, and the other is the attorney who drafted the trust instrument and could face potential liability in this matter. As I shall discuss, however, the majority's approach to construction of no contest clauses is contrary to the statutory mandate.
Probate Code section 21304, as noted above, requires that no contest clauses be "strictly construed." In determining the legislative intent of a statute, it is proper to look to comments by a law revision commission, *281 which are persuasive evidence of the intent of the Legislature in enacting commission recommendations. (E.g., People v. Garfield (1985) 40 Cal. 3d 192, 199 [219 Cal. Rptr. 196, 707 P.2d 258].) This is particularly true when, as happened with section 21304, the Legislature adopts without any change the statute proposed by a commission. (40 Cal.3d at p. 199; accord, Van Arsdale v. Hollinger (1968) 68 Cal. 2d 245, 250 [66 Cal. Rptr. 20, 437 P.2d 508].)
The Law Revision Commission comment on Probate Code section 21304 states: "In the interest of predictability, it resolved a conflict in the case law in favor of strict construction. Cf. Garb, The In Terrorem Clause: Challenging California Wills, 6 Orange County [Bar] J. 259 (1979). Strict construction is consistent with the public policy to avoid a forfeiture. Cf. Selvin, Comment: Terror in Probate, 16 Stan. L. Rev. 355 (1964)...." (20 Cal. Law Revision Com. com., Deering's Ann. Prob. Code, § 21304 (1991 ed.) p. 578.) The report of the Law Revision Commission relies on the same sources and is to the same effect. (Recommendation Relating to No Contest Clauses (Jan. 1989) 20 Cal. Law Revision Com. Rep. (1990) p. 12.)
As the preceding comment indicates, the conflict in the case law perceived by the drafters of Probate Code section 21304 was based on the analysis of a bar journal article, Garb, The In Terrorem Clause: Challenging California Wills (1979) 6 Orange County Bar J. 259 (Garb). This article observed that "[a]lthough numerous cases state that a no-contest clause should be strictly construed and should be limited in scope so as to include no conduct other than that which the language plainly requires, some recent cases have construed such clauses so broadly as to bring into question the validity of the rule of strict construction." (Id. at p. 262.) The author distinguished those cases in which the concept of a contest was "given its definitive legal meaning" or limited to "technical attack[s] on the competency of the testator, fraud or undue influence," from those cases in which the court considered "whether or not the action thwarted the decedent's intent" or "whether there was a purpose to defeat the provisions of the will" on the part of a beneficiary. (Id. at pp. 263-264.)
As an example of a case that "signal[ed] a departure from the earlier cases requiring a strict interpretation of the clause," (Garb, supra, at p. 263) the author cited Estate of Kazian (1976) 59 Cal. App. 3d 797 [130 Cal. Rptr. 908]. In Estate of Kazian, the court recited the rule of strict construction, but then proceeded to state that whether there was a contest "must be gleaned from a consideration of the purpose[s] that the [testator] sought to attain by the provisions of [his or her] will." (59 Cal. App.3d at p. 802.)
The "purposes" approach of the Kazian court is virtually identical to the analytic approach used by the majority in this case. (See maj. opn., ante, at *282 p. 255.) It is, however, an approach that was flatly rejected by the Legislature when it adopted Probate Code section 21304. By enacting this statute, the Legislature resolved the conflict in the case law by rejecting the Kazian "purposes" approach and by embracing the rule of strict construction.
Here, the majority, following the approach of cases rejected by the Legislature when it endorsed the rule of strict construction by adopting Probate Code section 21304, determines that the purposes of the testator would be best served by a construction of the language of the trust instrument that is dependent upon references to extrinsic indicia of the testator's intent. This construction flies in the face of the rule that "[a]n intention on the part of the testator to dispose of his wife's interest in the community property will not be implied where another construction is permissible." (Estate of Wolfe (1957) 48 Cal. 2d 570, 576 [311 P.2d 476].)
The majority recognizes that it must identify a provision of the trust instrument that, in its view, Marlene seeks to "void, nullify, or set aside." Thus, the majority asserts that Marlene seeks to "void, nullify or set aside" the provision of the trust instrument that provides for the allocation of trust assets to the subsidiary trusts. (Maj. opn., ante, at p. 261.) The problem with this assertion is obvious. As noted earlier, the instrument requires that the property added to the trust estate must be added "according to the terms of the Trust," and the terms of the trust specify only that Frank's separate property, not Marlene's property, is subject to disposition. Therefore, Marlene's claim that her property was improperly added to the trust corpus cannot rationally be considered an attempt to void any provision of the trust instrument relating to the subsidiary trusts; instead, it is an attempt to enforce the provision that specifies that property added to the trust estate must be added "according to the terms of the Trust." The majority's approach is not strict construction; it is arbitrary and expansive construction. It is at odds with the Legislature's plainly expressed intent that no contest clauses be strictly construed.
Under a strict and narrow construction of the no contest clause in this case, the clause would be triggered only if a beneficiary sought to have the trust or some particular provision of the trust declared void, or otherwise nullified or set aside. Because the proposed state and federal court complaints in this case seek neither to have the trust instrument nor any of its provisions declared void, or otherwise nullified or set aside, the filing of either complaint would not trigger the no contest clause. This is the only interpretation that is consistent with the Legislature's express command that no contest clauses be "strictly construed." To do otherwise, as the majority in this case has done by disregarding the literal meaning of the words in the *283 trust instrument in favor of attempting to divine the testator's intent through declarations of his lawyers, is to abandon the rule of strict construction and to resurrect the very conflict in the case law that the Law Revision Commission and the Legislature sought to put to rest with Probate Code section 21304.
C. Claims to a Community Property Interest
Probate Code section 21303 provides: "Except to the extent otherwise provided in this part, a no contest clause is enforceable against a beneficiary who brings a contest within the terms of the no contest clause." Despite this broad language, the Legislature did not intend that the statutes governing no contest clauses do so exclusively. Probate Code section 21301 states: "This part is not intended as a complete codification of the law governing enforcement of a no contest clause. The common law governs enforcement of a no contest clause to the extent this part does not apply." As the Law Revision Commission comment to this section makes clear, by "the common law" the commission meant "the contemporary and evolving rules of decision developed by the courts in exercise of their power to adapt the law to new situations and to changing conditions." (Cal. Law Revision Com. com., Deering's Ann. Prob. Code, § 21301, supra, p. 576.) The comment also indicates that, in developing the common law in this area, the courts are to look to, among other things, "the terms of the no contest clause and the character of the beneficiary's contest." (Id. at p. 577.) Here, Marlene's argument that her proposed state court complaint should not be held to violate the no contest clause is based on the "character of [her] contest."
Specifically, Marlene contends that, even if the no contest clause would be triggered by the filing of the proposed state court complaint, this court should determine that the clause is not enforceable against her because, under common law principles, a no contest clause does not apply against the assertion of a property interest not arising from the claimant's status as an heir for example, a community property interest.
This court has not previously addressed the question. Several Courts of Appeal have considered situations in which a claimant sought to establish an independent property interest in the donated property, with inconsistent results.[2] I would hold that no contest clauses are not enforceable against a beneficiary who claims that the trustor or testator has disposed of a legal *284 interest, such as a community property interest, in identified personal or real property that is lawfully held by the beneficiary.
My conclusion is based upon several considerations. First, enforcement of a no contest clause to prevent a beneficiary from challenging the trustor's disposition of property that is not the trustor's property, but is the property of another, would not aid the public policy favoring enforcement of such clauses. As this court stated in an early case, "[a] testator has the lawful right to dispose of his property upon whatever condition he desires, as long as the condition is not prohibited by some law or opposed to public policy...." (Estate of Miller (1909) 156 Cal. 119, 121 [103 P. 842], italics added.) A later case made the point more expansively: "The property of a testatrix is hers to dispose of as she wills, and she is not called on to consult or follow the wishes or views of her heirs or beneficiaries or of courts or juries.... She could give or refrain from giving, and could attach to her gifts any lawful condition which her reason or caprice might dictate. She was disposing of her own property and the beneficiary claiming thereunder must take the gift, if at all, on the terms offered." (Estate of Fuller (1956) 143 Cal. App. 2d 820, 823 [300 P.2d 342], italics added.)
The underlying assumption of these cases is that a no contest clause is valid insofar as it assures that a testator or trustor may, without challenge, dispose of property that belongs to him or her. But the converse of that proposition should also be true: under California law, a no contest clause should not be valid insofar as it allows a testator or trustor to dispose of property that does not belong to him or her.
This point needs little elaboration. Nothing in the policy favoring no contest clauses was designed to encourage theft. Yet if a testator or trustor lays claim to property that does not belong to him or her, and successfully insulates the disposition of such property from challenge by use of a no contest clause, theft is the result.
Several familiar maxims of jurisprudence support my conclusion that a no contest clause cannot be invoked to penalize one who seeks to establish that the property the testator or trustor purported to dispose of was not the testator's or trustor's property. "When the reason of a rule ceases, so should the rule itself." (Civ. Code, § 3510.) The reason for the rule allowing no contest clauses is to allow the testator to dispose of his or her property, not the property of another. Moreover, "[n]o one can take advantage of his [or her] own wrong." (Civ. Code, § 3517.) For the courts to enforce no contest *285 clauses that are used to deprive individuals of their own property would allow the estates and trusts of testators and trustors who have acted wrongly to take advantage of the wrongs of those testators and trustors.
A second, related rationale also supports my conclusion. As this court recognized in Estate of Miller, supra, 156 Cal. at page 121, judicial enforcement of no contest clauses is also limited to situations in which the no contest condition is "not prohibited by some law or opposed to public policy...." But in this case, and in similar situations, law and public policy do stand in opposition to the trustor's employment of the no contest clause.
Allowing enforcement of a no contest clause to effectively prohibit assertion of statutorily guaranteed community property rights is contrary to the public policy embodied in Family Code sections 1100 and 1101. Those sections provide that a spouse may not convey or dispose of community personal property without the written consent of the other spouse, and grant the nonconsenting spouse a right of action against the other spouse for breach of that duty to obtain written consent.
As mentioned earlier, Marlene's proposed state court complaint alleged that she had a community interest in the ownership of Pacific Coast Ford, and in the car dealership's pension plan. Although Frank apparently had an ownership interest in Pacific Coast Ford before his marriage to Marlene, he became the sole owner and president of the company during the marriage. The pension plan was created during the marriage. Generally, "all [personal] property ... wherever situated, acquired by a married person during the marriage ... is community property." (Fam. Code, § 760.) Accordingly, there is merit in Marlene's argument that the property Frank transferred without her consent during the marriage was community property.
To allow a spouse to transfer community property during the marriage without the other spouse's consent and then allow enforcement of a no contest clause to effectively prevent assertion of community property rights is violative of Family Code sections 1100, 1101 and the public policy embodied in these statutes.
The majority reaches a contrary conclusion. That conclusion, however, is based on a misunderstanding of the nature of no contest clauses, and a mistaken and apparently unexamined assumption that there is no legal difference between an "election" under a testamentary instrument and a forfeiture worked by a no contest clause. Moreover, the majority's conclusion is buttressed by a hypothetical example that illuminates its mistaken view of the respective rights and obligations of the parties.
*286 The majority approves the use of no contest clauses to obstruct the assertion of community property rights because no contest clauses are, in the majority's view, indistinguishable from election clauses in testamentary instruments, which California courts have long approved. (See, e.g., Estate of Wolfe, supra, 48 Cal. 2d 570, 574.) But the majority's reasoning is flawed, and again disregards legislative judgments as to the true nature of no contest clauses. It may be permissible for a trustor to require his or her surviving spouse to elect between an interest as a beneficiary and the spouse's interest in community property. But, as the Legislature indicated in the legislative history accompanying Probate Code section 21304, a no contest clause entails a forfeiture, not an election. Under a testamentary instrument containing a no contest clause, "the gift vests immediately upon the testator's death as a vested right and is just as much the beneficiary's property as if acquired by his [or her] own labor; to wrench it away is precisely what is meant by a forfeiture." (Selvin, Comment: Terror in Probate (1964) 16 Stan.L.Rev. 355, 368, fns. omitted.) A no contest clause, when it applies, destroys the surviving spouse's rights under the testamentary instrument simply because the spouse attempts to enforce his or her independent property rights, whether or not the spouse actually succeeds. This harsh result, which is precisely what is contemplated by every trustor or testator who chooses to employ a no contest clause, is simply not possible when a similar, though more benign, election clause is employed instead. An election clause destroys nothing.[3]
The majority also utilizes a hypothetical example to show the supposed unfairness of any rule that no contest clauses are not enforceable against a spouse who seeks to assert only his or her own interest in community property. (Maj. opn., ante, at p. 267, fn. 14.) Under the majority's example, a wife who has children by a previous marriage is half-owner of a business in which she works with her children; during her second marriage "she becomes sole owner." (Ibid.) "Wife understands that her business may be at least in part community property, ... but she nonetheless desires to leave the entire business to her two children from her first marriage...." Accordingly, under the majority's example, the wife inserts a no contest clause into her will, but under a rule rendering such forfeiture clauses unenforceable against a spouse who asserts his or her own interest in community property, the no contest clause is ineffective. This, the majority says, is an "inequitable result." (Ibid.)
*287 The majority's hypothetical discloses nothing so much as the majority's dissatisfaction with the community property laws of this state. Under Family Code section 760, "all [personal] property ... acquired by a married person during the marriage ... is community property." Thus, under the majority's hypothetical, the husband is a co-owner of the business with the wife, whether the wife, or the majority, care for that fact or not. (See Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 715 [21 Cal. Rptr. 2d 200, 854 P.2d 1117].) There is nothing inequitable about a rule that precludes one spouse from unilaterally disposing of property belonging in part to the other spouse. To the contrary, equitable considerations mandate that the interests of the nonconsenting spouse be protected.
And this simple and fair rule is in no way unworkable; it merely requires that the wife in the majority's hypothetical disclose her plans in advance to her co-owner and partner-in-marriage, and obtain his consent. The majority seems to find a requirement of disclosure and consent unacceptable; the majority comes dangerously close to endorsing marital duplicity in financial matters.[4]
Because enforcement of a no contest clause to penalize the assertion of community property rights does not serve the underlying purpose of no contest clauses to permit the testator or trustor to dispose of his or her own property as desired and because enforcement of a no contest clause that shields an improper disposition of property belonging to the testator's or trustor's spouse would place the court's seal of approval on a violation of the fiduciary obligations imposed on spouses by the community property laws, I would hold that no contest clauses are not enforceable under these circumstances.
III. NO CONTEST CLAUSES AND ERISA PREEMPTION
According to the allegations of Marlene's proposed federal court complaint, Pacific Coast Ford Employees' pension plan is an employee benefit *288 plan as defined by 29 United States Code section 1002. Under 29 United States Code section 1055(a), "[e]ach pension plan ... shall provide that [¶] ... [¶] (2) in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuity shall be provided to the surviving spouse of such participant." The plan, a copy of which is attached to the proposed complaint, appears to comply with the requirement for qualified preretirement survivor annuities. It specifies that each participant must designate a beneficiary to receive all death benefits, that a participant who has an eligible spouse must designate that spouse as the beneficiary unless the spouse waives the right to be so designated, and that if no beneficiary is designated, all death benefits are payable to the participant's surviving spouse. As noted above, Marlene's proposed federal court complaint asserts that she did not waive any of her rights under ERISA or the plan,[5] and that the plan's trustees have failed and refused to pay her any benefits, to provide an accounting, or to provide any explanation of why the benefits have not been paid.
A. Express Preemption
The majority concludes that ERISA does not preempt operation of the no contest clause in this case. I disagree. California's no contest law is preempted by ERISA to the extent it interferes with the exercise of federally guaranteed pension rights.
"ERISA is a comprehensive federal statutory scheme designed to promote the interests of employees and their beneficiaries in employee benefit plans." (Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co. (1991) 53 Cal. 3d 1041, 1047 [282 Cal. Rptr. 277, 811 P.2d 296].) ERISA contains an express preemption clause specifying that the federal regulatory scheme "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." (29 U.S.C. § 1144(a).) "The term `State law' includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." (29 U.S.C. § 1144(c)(1).)
This preemption provision is broad in its sweep. The United States Supreme Court has characterized it as "deliberately expansive" (Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 46 [95 L. Ed. 2d 39, 46-47, 107 S. Ct. 1549]), "broadly worded" (Ingersoll-Rand Co. v. McClendon (1990) 498 *289 U.S. 133, 138 [112 L. Ed. 2d 474, 483, 111 S. Ct. 478]), and "`conspicuous for its breadth'" (Morales v. Trans World Airlines, Inc. (1992) 504 U.S. ___, ___ [119 L. Ed. 2d 157, 167, 112 S. Ct. 2031, 2037]). The statutory words "relate to" were used by Congress "in their broad sense, rejecting more limited pre-emption language that would have made the clause `applicable only to state laws relating to the specific subjects covered by ERISA.'" (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 138 [112 L.Ed.2d at p. 483].) Thus, a state law "relates to" a benefit plan "`"if it has a connection with, or reference to such a plan."'" (Pilot Life, supra, 481 U.S. at p. 47 [95 L.Ed.2d at p. 48].) "`Because of the breadth of the preemption clause and the broad remedial purpose of ERISA, "state laws found to be beyond the scope of [the preemption clause] are few."'" (Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co., supra, 53 Cal.3d at pp. 1048-1049.)
The breadth of ERISA preemption is not limitless. "Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law `relates to' the plan." (Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 100, fn. 21 [77 L. Ed. 2d 490, 503, 103 S. Ct. 2890].) As with all questions of preemption, however, "`"`[t]he purpose of Congress is the ultimate touchstone.'"'" (Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co., supra, 53 Cal.3d at p. 1047, quoting Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 138 [112 L.Ed.2d at p. 483].)
The trustees point out that neither the no contest statutes nor the no contest clause in the trust instrument makes any explicit reference to ERISA, and stress that if Marlene elects to forego taking under the trust, she is free to pursue her ERISA claims.
I find unpersuasive the assertion that, because the no contest law makes no express reference to ERISA, there can be no preemption. The high court has held that ERISA preemption is not limited to "state laws specifically designed to affect employee benefit plans" (Shaw v. Delta Air Lines, supra, 463 U.S. at p. 98 [77 L.Ed.2d at p. 501]), and that "even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern" (Alessi v. Raybestos-Manhattan, Inc. (1981) 451 U.S. 504, 525 [68 L. Ed. 2d 402, 418, 101 S. Ct. 1895]). It is the substance of a law's effect on ERISA, not its label or form, that controls. (Ibid.)
The majority concludes that the no contest law as applied in this case is too tenuous, remote and peripheral to ERISA plans for express ERISA preemption to apply.
I cannot agree. Here, the application of the no contest law would interfere with the operation of the plan under federal law. The main practical effect of *290 the no contest clause, if valid under California law, would be to condition the exercise of Marlene's federally protected right to receive ERISA benefits, or even to seek a judicial determination of her entitlement to benefits, on a forfeiture of benefits under the trust instrument.
The leading federal appellate case that has addressed the question of ERISA preemption of state testamentary law has come to a conclusion similar to mine in this case. In MacLean v. Ford Motor Co. (7th Cir.1987) 831 F.2d 723, 728, the court held that "when ... the terms of an employee pension plan under ERISA provide a valid method for determining the beneficiary, that mechanism cannot be displaced by the provisions of a will." Here, the ERISA plan provided a method for determining the beneficiary. But, through use of the no contest law, Frank sought to displace Marlene as the beneficiary.
Other federal courts faced with analogous situations have reached results in accord with that of the MacLean court. In Ablamis v. Roper (9th Cir.1991) 937 F.2d 1450, 1459-1460, the Ninth Circuit held that "[p]ermitting a non-employee spouse to bequeath one-half of a surviving employee's pension benefits to a third party [under California community property law] would do `major damage' [citation] to ERISA's objective of ensuring and strengthening pension benefits for retirees and their dependents" and was, therefore, preempted. Similarly, in Iron Workers Mid-South Pension Fund v. Stoll (E.D.La. 1991) 771 F. Supp. 781, 785-786, the court held that Oklahoma domestic property statutes could not operate to change the beneficiary of a pension plan death benefit. (Accord, Meek v. Tullis (W.D.La. 1992) 791 F. Supp. 154, 155-156; see also Gilbert v. Burlington Industries, Inc. (2d Cir.1985) 765 F.2d 320, 327; Aetna Life Ins. Co. v. Borges (2d Cir.1989) 869 F.2d 142, 147 & fn. 4.)
As noted above, under the terms of the plan, and in accordance with the substantive terms of ERISA, Marlene is the beneficiary of death benefits. By contrast, under the trust instrument as construed by the majority, all property subject to the trust, including all rights in the plan, is swept into the trust res and distributed according to the trust formulas. Under the trust instrument as the majority have construed it, Marlene is divested of her rights as the plan beneficiary under the terms of the plan and ERISA.
To be sure, this divestment is not absolute. As the trust emphasizes in its brief, even under the no contest law Marlene remains free to pursue her rights under ERISA at the cost of forfeiting all rights to take under the trust. But the express preemption clause of ERISA does not supersede only those state laws that necessarily have the unconditional effect of depriving a statutorily designated beneficiary of her rights.
*291 Indeed, the high court has several times made clear that ERISA's preemption provision "`displace[s] all state laws that fall within its sphere, even including state laws that are consistent with ERISA's substantive requirements.'" (Mackey v. Lanier Collection Agency & Service (1988) 486 U.S. 825, 829 [100 L. Ed. 2d 836, 844, 108 S. Ct. 2182] (italics added), quoting Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 739 [85 L. Ed. 2d 728, 739, 105 S. Ct. 2380].) Rather, ERISA's preemption clause supersedes all state laws that "relate to" operation of a plan, unless the effect is "tenuous, remote, or peripheral." I cannot say that the effect of the no contest law on the ERISA plan in this case is "tenuous, remote, or peripheral." On the contrary, the effect here is direct and substantial: Marlene is compelled to forgo her federally protected right to benefits under ERISA unless she forfeits her right to take under the trust. I conclude that the operation of the no contest law in this case "relates to" the operation of a plan under ERISA, and therefore is preempted under ERISA's express preemption clause.
B. Implied Preemption
Even when there is no express preemption under ERISA, the United States Supreme Court has held that a state law or action may also be superseded by ERISA under the doctrine of implied preemption. (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. 133.) Generally, the doctrine of implied preemption applies when a challenged state action "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" (English v. General Electric Co. (1990) 496 U.S. 72, 79 [110 L. Ed. 2d 65, 74, 110 S. Ct. 2270], quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67 [85 L. Ed. 2d 581, 587, 61 S. Ct. 399].)
Here, the issue is whether application of the state no contest law to discourage assertion of rights under ERISA stands as such an obstacle. The majority concludes it does not. The majority is wrong. In Pilot Life Ins. Co. v. Dedeaux, supra, 481 U.S. 41, the United States Supreme Court declared that in ERISA, "Congress set out to `protect ... participants in employee benefit plans and their beneficiaries, by ... establishing standards of conduct ... for fiduciaries of employee benefit plans and by providing for appropriate remedies, sanctions, and ready access to the Federal Courts.'" (Id. at p. 44 [95 L.Ed.2d at pp. 45-46], quoting 29 U.S.C. § 1001(b).)
Two other statutes are relevant. Title 29 United States Code section 1140 provides, in pertinent part: "It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, [or] this title ... or for the purpose of *292 interfering with the attainment of any right to which such participant may become entitled under the plan [or this title]...."
And 29 United States Code section 1132(a) provides: "A civil action may be brought [¶] ... (1) by a participant or beneficiary [¶] ... [¶] (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; [¶] ... [¶] (3) by a participant, beneficiary, or fiduciary ... (B) ... (ii) to enforce any provisions of this subchapter or the terms of the plan...."
Thus, through these statutes Congress has expressly granted beneficiaries the right to bring legal actions to enforce their rights to plan benefits. Here, Marlene's proposed federal complaint falls "squarely within the ambit" of actions contemplated by these statutes. (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 142 [112 L.Ed.2d at p. 486].)
The legislative history also unmistakably conveys the intent of Congress with regard to lawsuits by plan beneficiaries. The House Report states that "[t]he primary purpose of [ERISA] is the protection of individual pension rights...." (H.Rep. No. 93-533, 1st Sess. (1974), reprinted in 1974 U.S. Code Cong. & Admin. News, p. 4639.) The Senate Report states that the intent of Congress was "to remove ... procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities ... or recovery of benefits due to participants." (Sen.Rep. No. 93-127, 1st Sess. (1974), reprinted in 1974 U.S. Code Cong. & Admin. News, p. 4871.)
Therefore, in this case, not only is Marlene's proposed federal court complaint of a type specifically authorized by Congress, but the assertion of the state no contest law as a barrier to her recovery of ERISA rights itself is unlawful under 29 United States Code section 1140. That is, the evident purpose of the no contest clause in the trust instrument is to "interfer[e] with the attainment of [a] right" to which Marlene became entitled under ERISA.
In any event, the United States Supreme Court has made clear that when it "`"may fairly be assumed that the activities which a State purports to regulate are protected"'" by ERISA, "`"due regard for the federal enactment requires that state jurisdiction must yield."'" (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 145 [112 L.Ed.2d at p. 488].) Here, it may fairly be assumed that Marlene's proposed federal complaint is within the contemplation of the drafters of ERISA. Accordingly, any state regulation that stands as an obstacle to assertion of her rights under ERISA, including *293 the operation of a no contest clause, must yield and is preempted. The majority's contrary conclusion is erroneous. State testamentary law cannot stand as an obstacle to the achievement of the congressional goal, even if the federally protected party is not completely divested of her right to pursue the federal remedy, but only substantially discouraged.
CONCLUSION
In enacting the California Law Revision Commission's proposed changes to the Probate Code sections governing no contest clauses, including the rule that such clauses be "strictly construed" (Prob. Code, § 21304), the Legislature sought to implement "the public policy to avoid a forfeiture" and to rectify the situation created by previous law, under which "a beneficiary cannot predict with any consistency when an activity will be held to fall within the proscription of a particular no contest clause." (Recommendation Relating to No Contest Clauses, supra, 20 Cal. Law Revision Com. Rep. at p. 12.) In this case, the majority turns the statutory revision on its head, expansively construing a no contest clause to reach a conclusion resulting in a forfeiture that is plainly unsupported by the language of the trust instrument. In so doing, the majority undermines the legislative scheme, and unavoidably resurrects the very controversy and confusion the Law Revision Commission and the Legislature sought to lay to rest.
It is a fundamental principle of community property law that property acquired during the marriage is presumed to be community property, and it is equally fundamental that one spouse cannot dispose of the property of the community without the other spouse's consent. In this case, the majority demonstrates its evident dissatisfaction with these fundamental principles by holding that one spouse can indeed dispose of the property of the community without the other spouse's knowledge or consent, and our courts will allow the spouse to shield his wrongful action through enforcing a no contest clause against the other spouse's assertion of her community property rights. Ironically, the majority claims that "fairness" supports its result.[6]
In enacting ERISA, the primary purpose of the United States Congress was to protect individual pension rights, and the Congress explicitly prohibited any "interfer[ence] with the attainment of any right" to which a beneficiary might be entitled under an authorized pension plan. (29 U.S.C. § 1140.) In this case, contrary to the unambiguously expressed will of *294 Congress, the majority holds that a no contest clause can indeed stand as a successful obstacle to a widow's assertion of her federally protected pension benefits.
I cannot agree. I would reverse the judgment of the Court of Appeal.
NOTES
[1] Frank also inserted a no contest clause into his will.
[2] Under former Probate Code section 21305, subdivision (a), a beneficiary could seek an advance ruling from the probate court to determine whether "a particular motion, petition or other act by the beneficiary would be a contest within the terms of a no contest clause." Former section 21305 is continued in section 21320 of the new Probate Code without substantive change. (20 Cal. Law Revision Com. Rep. (1990) p. 1994.)
[3] Based on a concession by a trustee of the trust, the Court of Appeal reversed that aspect of the probate court's judgment that held that the no contest clause would be triggered by a cause of action in Marlene's proposed state court complaint that sought reimbursement from the trust for house construction costs.
[4] While this matter was pending here, the parties informed us that the case had been settled. Nonetheless, they have requested that we decide the issues in this case in the interest of public policy and clarification of the law.
We have inherent power to retain a matter, even though it has been settled and is technically moot, where the issues are important and of continuing interest. (See, e.g., Abbott Ford, Inc. v. Superior Court (1987) 43 Cal. 3d 858, 868-869, fn. 8 [239 Cal. Rptr. 626, 741 P.2d 124], and cases cited therein.) Because the issues at hand meet both criteria, we have concluded it is appropriate for us to retain and decide the matter.
[5] We note that for interpretative purposes, no distinction is made between inter vivos and testamentary trusts. (Brock v. Hall (1949) 33 Cal. 2d 885, 889 [206 P.2d 360, 11 A.L.R. 2d 672]; Wells Fargo Bank v. Huse (1976) 57 Cal. App. 3d 927, 932 [129 Cal. Rptr. 522].)
[6] In 1989, the Legislature enacted a series of statutes that codified much of the law governing enforcement of no contest clauses. (Stats. 1989, ch. 544, § 19, p. 1825.) These statutes were repealed and reenacted the following year. (Stats. 1990, ch. 79, § 14, operative July 1, 1991.) Included in these reenacted statutes is a codification of the principle that a no contest clause is generally enforceable against a beneficiary who brings a contest within the terms of the clause (Prob. Code, § 21303 [subject to certain exceptions not applicable in this case]), and the principle that in determining the intent of a testator or other transferor, a no contest clause shall be strictly construed (id., § 21304).
[7] We note two exceptions in this regard. The trust instrument specifically provides that the subsidiary trust in favor of Frank's mother is to be funded with proceeds from the trustor's life insurance policies issued by InterAmerican Life Insurance Company and New Jersey Life Insurance Company in the sums of $250,000 and $50,000, respectively. Therefore, the no contest clause would indisputably be triggered to the extent Marlene pursues her alleged community interests in the proceeds of these policies.
[8] Evidence of the circumstances surrounding the execution of the trust instrument is properly admissible to ascertain its meaning and intent. (Prob. Code, § 6111.5; see also Estate of Russell, supra, 69 Cal.2d at pp. 206-207, 212; Estate of Basore (1971) 19 Cal. App. 3d 623, 630 [96 Cal. Rptr. 874].) Contrary to the assertion made by the dissent (dis. opn. of Kennard, J., post, at pp. 277-278), resort to extrinsic evidence is appropriate in construing no contest clauses. As one authority relied upon by the dissent acknowledges, "if it is relevant to the clause in question, virtually all evidence of the circumstances surrounding the will's execution may well be admissible to show the existence of an ambiguity and to help construe it." (Garb, The In Terrorem Clause: Challenging California Wills (1979) 6 Orange County Bar J. 259, 262.)
[9] In her opening brief on the merits, Marlene merely notes, without citation to authority, that the probate court erred in overruling her objections to the declarations submitted by the trust.
[10] We note that the above mentioned language appearing in the will reflects that the trustor knew how to exclude community property or any property allegedly belonging to Marlene or anyone else from the terms of his will. From this we can infer that the trustor would have included similar language in his trust if he intended to make a similar exclusion with respect to his trust.
[11] Marlene also asserts that her proposed state complaint would not trigger the no contest clause because it merely seeks to obtain a construction of the trust instrument and to enforce Frank's intent to the extent it is determined that he did not intend for the stock proceeds and the life insurance benefits to be irrevocably held within the trust and distributed to his blood relatives. (See Estate of Miller (1964) 230 Cal. App. 2d 888, 903 [41 Cal. Rptr. 410] [action brought to construe a will was not a contest because it sought to ascertain the true meaning of the testatrix and enforce what she desired].) As we have demonstrated above, however, that was not Frank's intention. Furthermore, Marlene's proposed state complaint seeks to recover the disputed assets on the alternative theory that Frank had unlawfully converted them in violation of community property laws. This aspect of the complaint is plainly intended to nullify or void the subsidiary trust provisions that had been drawn up in favor of Frank's mother and other relatives.
[12] The Probate Code expressly provides that no contest clauses are enforceable subject to certain exceptions not relevant here. (See Prob. Code, §§ 21303, 21306 [clause not enforceable against beneficiary acting with probable cause to bring contest based on forgery or revocation], 21307 [clause not enforceable against beneficiary acting with probable cause to contest provision that benefits one who drafted or witnessed the instrument, or that benefits one who gave directions to the drafter without concurrence of the testator or trustor].)
[13] The Legislature expressly declared that the recently enacted statutes governing no contest clauses are "not intended as a complete codification of the law governing enforcement of a no contest clause. The common law governs enforcement of a no contest clause to the extent this part does not apply." (Prob. Code, § 21301.) The Law Revision Commission comment to this section explains that the common law meant by the drafters refers to "the contemporary and evolving rules of decision developed by the courts in exercise of their power to adapt the law to new situations and to changing conditions." (20 Cal. Law Revision Com. Rep., supra, p. 1979.) The comment also indicates that, in developing the common law in this area, the courts are to look to, among other factors, "the terms of the no contest clause and the character of the beneficiary's contest." (Ibid.)
[14] The following hypothetical situation illustrates the inequitable result that would ensue from Marlene's proposed exception: Husband and Wife get married. For both it is their second marriage. Prior to this marriage, Wife was half owner of a business; during the marriage, she becomes sole owner. When drafting her will, Wife understands that her business may be at least in part community property (or that Husband will argue as much), but she nonetheless desires to leave the entire business to her two children from her first marriage, as they have spent much of their adult lives working there and preparing to take it over. Wife therefore wills the business to her children, but leaves Husband all of her nonbusiness separate property (which is roughly equal in worth to the business). Wife declares in her will that it is her intention to put Husband to an election of his community property rights, and inserts a no contest clause into her will to discourage Husband from bringing a potentially costly, time-consuming and divisive contest based on such rights. Under Marlene's exception, both the forced election and the no contest clause would be deemed unenforceable against Husband in the event he asserts community property interests in the business. The result: Husband receives his community property share of Wife's business, plus retains 100 percent of Wife's other separate property. Wife's unequivocal testamentary intentions are frustrated, and Husband receives a windfall to the detriment of Wife's children.
As this hypothetical situation illustrates, the no contest law operates in a gender-neutral fashion. And, contrary to the dissent's implied assumptions, no contest clauses may frequently be employed where the testator or testatrix acts with utmost good faith toward the other spouse. That is, disputes may often arise after the death of the testator or testatrix even though he or she had kept the other spouse fully informed of all business dealings.
[15] In Aetna Life Ins. Co. v. Borges, supra, 869 F.2d 142, 146-148, the Second Circuit held that ERISA does not preempt a state law of general application that has an incidental economic and administrative impact upon an ERISA benefit plan. We note Marlene makes no contention that application of the no contest law would have any sort of economic or administrative effect upon ERISA plans.
[16] Under 29 United States Code section 1132(g)(1), the decision whether to award attorney fees and costs is generally based on five factors: (1) the degree of the offending party's culpability or bad faith; (2) the ability of the offending party to satisfy an award of attorney fees; (3) whether an award of fees would deter other persons from acting similarly under like circumstances; (4) the relative merits of the parties' positions; and (5) whether the action conferred a common benefit on a group of pension plan participants. (Jones v. O'Higgins, supra, 736 F. Supp. at p. 1244.)
[17] In fact, Marlene may even be entitled to attorney fees and costs under 29 United States Code section 1132(g).
[18] Although the dissent has apparently already prejudged the merits of these claims, it is up to the state trial court and the federal district court to decide these matters in the event Marlene decides to pursue them.
[1] With respect to one cause of action in the state court complaint, the Court of Appeal reversed the trial court, and determined that Marlene could seek declaratory relief regarding her right to reimbursement for certain residential construction costs under the trust. This issue was conceded by the trustees.
[2] Compare, e.g., Estate of Kazian, supra, 59 Cal. App. 3d 797 (holding that assertion of community property interest did trigger no contest clause) with Estate of Black (1984) 160 Cal. App. 3d 582 [206 Cal. Rptr. 663] (holding that assertion of "palimony" interest did not violate no contest clause) and Estate of Schreck (1975) 47 Cal. App. 3d 693, 697 [121 Cal. Rptr. 218] (holding that assertion of separate property and joint tenancy interests did not violate no contest clause, because "[t]he widow merely claimed what was already her own").
[3] The majority evidences a fundamental misunderstanding of the forfeiture at issue here, and misreads my dissenting opinion. (See maj. opn., ante, at p. 265.) Marlene's community property rights are subject to conversion as a result of the operation of the no contest clause in this case, but, contrary to the majority's assumption, the forfeiture is of her right to take under the trust instrument, not of her rights in community property.
[4] The majority also claims that a rule precluding one spouse from disposing of the other spouse's interest in community property would be "counterproductive to the interests of surviving spouses" because it might "depriv[e] some spouses of the opportunity to receive a distribution of assets that is potentially more valuable than ... their community interests in the estate." (Maj. opn., ante, at p. 267.)
This is misleading. Nothing in the proposed rule set forth in my dissent would preclude a testator from leaving any separate property to his or her spouse. Nor would anything in this dissent preclude use of an election clause to require a spouse to choose between taking under a trust or taking under the community property laws. The only "counterproductive" effect of this dissent would be to discourage one spouse from unilaterally and secretly disposing of assets of the other partner to a marriage.
Our law should encourage spouses to deal fairly and openly with each other, and discourage secretive dealings of the sort the majority approves in this case.
[5] Title 29 United States Code section 1056(d) states that "(1) Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated."
There is an exception for "qualified domestic relations orders," which are court judgments or orders that relate to child support, alimony payments or marital property rights. (29 U.S.C. § 1056(d)(3).) No party contends, however, that the alleged alienation of Marlene's rights to death benefits under the plan was made as part of a qualified domestic relations order.
[6] The majority vehemently denies that it has endorsed any breach of marital trust in this case. (Maj. opn., ante, at pp. 273-274.) But the majority cannot deny that, under its rule, a husband can, without the knowledge or consent of his wife, take his wife's property and give it to his relatives as part of his estate plan. If this underhanded maneuver is not a breach of trust, nothing is. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875854/ | 490 So.2d 1067 (1986)
Jorge VALDES, Appellant,
v.
PLANNED INVESTMENT ASSOCIATION, INC., Appellee.
Nos. 85-634, 85-2111.
District Court of Appeal of Florida, Third District.
July 8, 1986.
*1068 Sparber, Shevin, Shapo, Heilbronner & Book and Ursula Mancusi-Ungaro and Nancy Schleifer, Miami, for appellant.
Hershoff and Levy and Jay M. Levy, Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.
PER CURIAM.
We reverse the Final Judgment for Injunctive Relief upon a holding that the trial court was without jurisdiction to enter a judgment awarding injunctive relief where, as here, it had some forty days earlier entered a final judgment awarding damages after a trial in which the plaintiff sought both damages and injunctive relief, and such damage judgment contained no reservation of jurisdiction to later award injunctive relief, see Katz v. Katz, 417 So.2d 818 (Fla. 4th DCA 1982); DeFilippis v. DeFilippis, 378 So.2d 325 (Fla. 4th DCA 1980); Altieri v. Altieri, 341 So.2d 525 (Fla. 1st DCA 1977); Superior Uniforms, Inc. v. Brown, 221 So.2d 214 (Fla. 3d DCA 1969); Augusta Corporation v. Strawn, 174 So.2d 621 (Fla. 3d DCA 1965). This result is not changed by the fact that the trial court ultimately amended nunc pro tunc its final judgment awarding damages to include a clause reserving jurisdiction to award injunctive relief, since the initial failure to reserve such jurisdiction was not the result of mistake, inadvertence or excusable neglect subject to being corrected under Florida Rule of Civil Procedure 1.540(b), see Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1 (Fla. 1970); Metropolitan Dade County v. Certain Lands Upon Which Assessments are Delinquent, 471 So.2d 191 (Fla. 3d DCA 1985); Van Harren v. Markevitch, 447 So.2d 332 (Fla. 3d DCA), pet. for rev. denied, 456 So.2d 1182 (Fla. 1984); Fiber Crete Homes, Inc. v. Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975); see also Frisard v. Frisard (Fla. 4th DCA 1986) (Case No. 85-1931, opinion filed July 2, 1986) ("[T]he failure to reserve jurisdiction to award attorney's fees and costs in a final order is a substantive, not a clerical, mistake."); Hunter v. Hunter, 487 So.2d 1160, 1161 (Fla. 5th DCA 1986) ("The divestment of jurisdiction is a change in substance, and not merely a correction of an omission, and thus is not within the proper realm of a nunc pro tunc order.").
The appeal of the final judgment for damages is dismissed; the Final Judgment for Injunctive Relief is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561308/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
HOWARD BRYAN a.k.a. PAUL SMITH, )
)
Plaintiff, )
)
v. ) Civil No. 18-cv-859 (APM)
)
U.S. DEPARTMENT OF JUSTICE )
OFFICE OF INFORMATION POLICY, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Howard Bryan, a New York state prisoner appearing pro se, brought this action
under the Freedom of Information Act (“FOIA”) to compel production of records from Defendant
Department of Justice’s (“DOJ”) Office of Information Policy. Contending that it has fulfilled its
obligations by conducting an adequate search for potentially responsive records, Defendant renews
its motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Def.
DOJ’s Renewed Mot. for Summ. J., ECF No. 26 [hereinafter Def.’s Renewed Mot.]. The court
agrees that the search was adequate. It therefore grants Defendant’s motion for the reasons
explained more fully below.
II. BACKGROUND
On October 21, 1996, Plaintiff was convicted in Kings County, New York, and sentenced
to twenty-five years to life. Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., ECF No. 33 [hereinafter
Pl.’s Br.], Decl. in Opp’n to Def.’s Mot. for Summ. J., ECF No. 33-1, ¶ 9; Pl.’s Stmt. of Undisp.
Facts, ECF No. 33-2, ¶ 1. Plaintiff alleges that his “conviction was obtained through violated
erroneous procedural practice to introduce false, fabricated and inconsistent trial testimony of
Mr. Andre Franz Lindsay who had been working as an 5Kl.1 C.I. for The State of South Carolina
Solicitor’s Office.” Compl., ECF No. 1, ¶ 5. On February 14, 2017, Plaintiff requested from
DOJ’s Civil Rights Division “information pertaining to [Mr. Andre Lindsay] working status as an
[Confidential Informant]; Court and Probation file(s) and Plea Alloc[u]tion Transcript Deal
Agreement.” Def. DOJ’s Mot. for Summ. J., ECF No. 16, Decl. of Tink Cooper, ECF No. 16-2,
Ex. A, at 1 (last alteration added). The Civil Rights Division enforces the federal anti-
discrimination statutes through civil and criminal actions. See Def.’s Renewed Mot., Decl. of Tink
Cooper, ECF No. 26-2 [hereinafter Cooper Suppl. Decl.], ¶ 5.
Defendant initially declined to conduct a search for responsive records on the ground that
Plaintiff had failed to produce a waiver from Lindsay. See Order, ECF No. 23, at 1. The court
rejected that rationale for a blanket refusal to search, and afforded Defendant an opportunity to
renew its motion. See id. at 2–3.
In response to this court’s ruling, Tink Cooper, Deputy Chief of the Civil Rights Division,
“directed FOIA staff” to search the Division’s Interactive Case Management System (“ICM”) and
its Correspondence Tracking System (“CTS”) “for records pertaining to Andre Lindsay.” Cooper
Suppl. Decl. ¶ 4. Those two databases “contain both the correspondence data and the
investigation/case data for the entire Civil Rights Division.” Id. All sections of the Division are
“required to input their investigation/case data and correspondence data into” both databases. Id.
Defendant’s searches of each database located no responsive records. The ICM is
searchable by entering “an individual’s name in the victim or subject fields,” and the CTS is
searchable by entering “the individual’s name in the complainant, victim or subject fields.” Id.
¶ 6. Staff input “combinations of [Lindsay’s] first and middle names and also used another spelling
2
of his surname”—Lindsey—“in case of an inadvertent misspelling.” Id. ¶¶ 7–8 (listing variants).
Those “multiple searches” covered “all of the Division’s investigation, cases, and
correspondence,” yet turned up no responsive records. Id. ¶ 9.
III. LEGAL STANDARD
Rule 56 provides that a court should grant summary judgment if “there is no genuine
dispute as to any material fact and [the moving party] is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A material fact is one that is capable of affecting the outcome of litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
FOIA authorizes district courts to enjoin federal agencies from withholding agency records
and to order the production of any improperly withheld records. 5 U.S.C. § 552(a)(4)(B). An
agency’s obligation “to search for and disclose all responsive records” is triggered when it receives
a request, Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 874 F.3d 287, 288
(D.C. Cir. 2017), that “reasonably describes” the records sought and “is made in accordance with
[the agency’s] published rules,” 5 U.S.C. § 552(a)(3)(A). An inadequate search can constitute an
improper withholding. See Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.
1999) (“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt
that its search was reasonably calculated to uncover all relevant documents.” (internal quotation
marks and citation omitted)). The district court reviews the agency’s action de novo, and “the
burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B).
“FOIA cases are typically and appropriately decided on motions for summary judgment.”
Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). To “successfully challenge an agency’s
showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts’
demonstrating that there is a genuine issue with respect to whether the agency has improperly
3
withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C.
2010) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
IV. DISCUSSION
As discussed, Defendant’s search yielded no responsive records. Therefore, Defendant
bears the burden of showing that, even with the facts viewed in the light most favorable to Plaintiff,
the agency has conducted a search “reasonably calculated to uncover all relevant documents.”
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To carry this burden,
the agency may rely on a “reasonably detailed affidavit, setting forth the search terms and the type
of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
Defendant’s declarant, Tink Cooper, identifies the various combinations of search terms
used, describes in sufficient detail the search methodology and databases searched, and avers that
“the Division’s search was reasonably calculated to uncover all potentially responsive records and
that all locations likely to contain relevant documents were searched.” Cooper Suppl. Decl. ¶¶ 5–
11. Plaintiff has offered nothing to call those representations into question. Rather, he counters
that the government improperly withheld exculpatory material during his criminal prosecution.
See generally Pl.’s Br. But that response does nothing to undermine the adequacy of the search.
See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1177 (D.C. Cir. 2011) (“FOIA is not a substitute
for discovery in criminal cases or in habeas proceedings. Instead, its purpose is to protect the
citizens’ right to be informed about what their government is up to.”) (internal quotation marks
and citation omitted)); cf. Boyd v. Crim. Div. of U.S. Dep’t of Justice, 475 F.3d 381, 388 (D.C. Cir.
2007) (noting that “a single instance of a Brady violation” in a single prosecution does “not suffice
to show a pattern of government wrongdoing”) (addressing Brady v. Maryland, 373 U.S. 83
4
(1963)). Accordingly, notwithstanding the lack of responsive records, Defendant fulfilled its
search obligation under FOIA. See Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315
(D.C. Cir. 2003) (“The adequacy of a FOIA search is generally determined not by the fruits of the
search, but by the appropriateness of the methods used to carry out the search.”) (citing Steinberg
v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)).
V. CONCLUSION
For the foregoing reasons, Defendant’s motion is granted. A final appealable order
accompanies this Memorandum Opinion.
Dated: August 28, 2020 Amit P. Mehta
United States District Judge
5 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1875752/ | 176 B.R. 772 (1995)
In re Judy Lynn VANCE, Debtor.
Bankruptcy No. 7-94-02510-HPA-7.
United States Bankruptcy Court, W.D. Virginia, Abingdon Division.
January 5, 1995.
James P. Carmody, Richlands, VA, for debtor.
Thomas W. Kennedy, Asst. U.S. Trustee, Roanoke, VA, for U.S. Trustee, Region Four.
MEMORANDUM OPINION
H. CLYDE PEARSON, Bankruptcy Judge.
This Court, on December 14, 1994, entered its Order on Debtor's Motion to the Court, by counsel, that the section 341 meeting scheduled for December 16, 1994, be continued to allow appropriate service and notice to creditors of the yet-to-be-filed plan, when filed. An Appeal of this Order has now been taken by the U.S. Trustee's Office, apparently under the premise and theory that the Court had no authority to enter the Order. In order that the appeal process will not be considered in a vacuum, the Court feels it is necessary to file this Memorandum Opinion as a supplement to the said Order.
The Debtor, on November 14, 1994, filed her Chapter 13 petition in this Court. The Debtor did not attach and file, as may be done under the Rules, the schedules or a plan at the time the petition was filed. Thereafter, on December 5, 1994, the Court entered an Order directing the Debtor to file schedules and a plan within ten (10) days from said date or by December 15, 1994. On December 13, 1994, the clerk received the motion directed to the Court requesting a continuance of the section 341 meeting which motion was prepared by Debtor's counsel and certified to all creditors and interested parties on December 12, 1994. The section 341 meeting was scheduled for December 16, *773 1994 at the Abingdon Division of this Court. The Debtor resides at Doran, Tazewell County, Virginia, and counsel for the Debtor has offices in Tazewell, Virginia, a distance of 75 miles or 150 miles for round trip from the Town of Abingdon.
The schedules have now been filed and, in addition thereto, a Motion to Convert the Chapter 13 case to a Chapter 7 was filed and, by Order entered by this Court on December 21, 1994, the case was converted to Chapter 7 thereby requiring the scheduling of a new section 341 meeting. Since the case is now converted to Chapter 7, the Appeal of the Court's Order of December 14, 1994, would appear to be moot; however, in the event it is decided that the Appeal is not moot, the Court proceeds to review authorities and the reasoning for the Order.
By way of review, when a Chapter 13 case is filed in this Court, a notice goes forth by the clerk to all creditors and interested parties that a section 341 creditors' meeting will be held as scheduled on a date and place fixed in the notice; and, further, that thereafter a confirmation hearing will be held before the Court on a date, time, and place fixed in the notice. In the case at bench, the Debtor directed a motion to this Court that the section 341 meeting be continued since the schedules and plan were in the process of being filed. The motion implied that the section 341 meeting could not be held as scheduled; and, apparently, the motion was to avoid the necessity of Debtor's counsel and the Debtor, who would lose a day's work, from traveling the 150 miles to Abingdon and return to attend the meeting. Counsel directed his motion to the Court to enable the Court to enter an appropriate order continuing the meeting and avoid the expense and inconvenience to counsel and the Debtor of having to attend a section 341 meeting which should have been continued by order of the Court.
If, in fact, the U.S. Trustee's position is that this Court had no authority to enter this Order, the question arises as to the interpretation of the Code establishing the U.S. Trustee system. In a well-reasoned and scholarly decision, the United States District Court for the District of Maryland in the case of In re Astri Investment, etc., 88 B.R. 730 (D.Md.1988), held that a creditors' meeting is a statutory activity which is under the supervision and jurisdiction of this Court and the fact that the U.S. Trustee or panel trustee representing the U.S. Trustee's Office conducts same does not change the essential judicial character of a section 341 meeting. It is, therefore, imperative and appropriate that this Court have jurisdiction over section 341 meetings, their scheduling, continuances, and so forth, if necessary.
The facts here present a troublesome issue. If Debtor's counsel in this case and the Debtor had appeared at the section 341 meeting as scheduled and the person representing the U.S. Trustee's Office declined to continue the section 341 meeting in which the Debtor is not ready to proceed because the Debtor does not have finalized schedules and plan, for whatever reason, to be considered by creditors, where does counsel seek redress? Is the debtor helpless? Must the debtor attend another section 341 meeting losing another day's work with additional expense of her counsel simply because this Court is presumed not to have jurisdiction to enter an order directing that a section 341 meeting be continued? Such is preposterous, unthinkable, and could never have been intended by the Congress of the United States in enacting the 1978 Code. The legislative history clearly reflects that the only reason for the section 341 procedure was to relieve the judge from the awkward position of presiding over meetings of creditors and, thereafter, having to hear and decide cases flowing therefrom.
In the Astri case, Judge Kaufman, at page 736, stated, by way of historical background with bankruptcy jurisprudence, the following:
A bankruptcy case is a civil proceeding conducted under the supervision of the district court. 28 U.S.C. § 1334(a) gives to the district courts original and exclusive jurisdiction over "all cases arising under title 11" (emphasis added); § 1334(b) gives to the district courts original, but not exclusive, jurisdiction over "all civil proceedings in cases arising under title 11, or arising in or related to cases under title 11." A bankruptcy "case" commences with *774 the filing of a bankruptcy petition; a bankruptcy "proceeding" includes any event in the bankruptcy case. See 1 Collier on Bankruptcy, ¶ 3.01[c][i] and [ii] (15th ed. 1987).
Astri argues that this Court should view a creditors' meeting as the equivalent of a discovery proceeding in a civil trial. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). That contention is not persuasive. In Rushford [v. New Yorker Magazine, Inc., 846 F.2d 249] [(4th Cir.1988)], the Fourth Circuit was asked by the party opposing unsealing of certain summary judgment documents to rely upon Seattle Times. Rejecting that approach, Judge Murnaghan concluded:
We find The New Yorker's reliance on Seattle Times v. Rhinehart, 467 U.S. 20 [104 S.Ct. 2199, 81 L.Ed.2d 17] (1984) to be unpersuasive. In Seattle Times, the Supreme Court merely held that the First Amendment did not preclude the district court from entering a protective order limiting disclosure of the products of pretrial discovery. Id. at 37 [104 S.Ct. at 2209]. However, such discovery, which is ordinarily conducted in private, stands on a wholly different footing than does a motion filed by a party seeking action by the court. See Bank of American [America] Nat'l Trust and Sav. Ass'n v. Hotel Rittenhouse Assoc., 800 F.2d 339, 343 (3d Cir.1986). The counsel for The New Yorker even acknowledged that if the case had gone to trial and the documents were thereby submitted to the court as evidence, such documents would have been revealed to the public and not protected under the Order. Because summary judgment adjudicates substantive rights and serves as a substitute for a trial, we fail to see the difference between a trial and the situation before us now. 846 F.2d at 252.
Insofar as Seattle Times is concerned, it is also necessary to note that while both discovery and a creditors' meeting are primarily concerned with obtaining information, the two proceedings have much different historical backgrounds. Discovery is a pretrial process conducted principally by the parties with varying degrees of court supervision; a creditors' meeting is a formal part of a Chapter 7 bankruptcy, mandated by 11 U.S.C. § 341(a), supervised by a court clerk, and a proceeding at which substantive rights of creditors are often affected.
Judge Kaufman noted in the foregoing that the section 341 meeting was an integral part of the bankruptcy process, the proceedings therein being subject to the jurisdiction of this Court. Even though the decision dealt with exclusion of the press, the decision clearly deals with the supervisory authority of the Court concerning creditors' meetings conducted in cases over which this Court presides.
Judge Kaufman further traced the historical steps of the bankruptcy process over the centuries to the present Code, which now governs this Court, thusly:
American bankruptcy law is firmly rooted in English soil, as Justice Holmes noted in 1911 when he wrote that "[w]e take our bankruptcy system from England, and we naturally assume that the fundamental principles upon which it was administered were adopted by us when we copied the system." Sexton v. Dreyfus, 219 U.S. 339, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244 (1911). The first English bankruptcy statute was enacted in 1542, during the reign of Henry VIII, and gave to the Lord Chancellor of England and other members of the Privy Council the power to summon for examination persons indebted to, or holding property owned by, the bankrupt. See 34 and 35 Hen. VIII, ch. 4 (1542-43), quoted in 1 H. Remington, A Treatise on the Bankruptcy Law of the United States 9-10 (2d ed. 1915). That first statute was "concerned wholly with fraudulent debtors, not at all with those who are simply unfortunate," Remington, supra, at 8, and was quasi-criminal in nature. The purpose of the examination of witnesses was to uncover all of the assets of the bankrupt for distribution to creditors. Unfortunately, historical research to date does not seem to have revealed whether the examination *775 of witnesses was or was not conducted in public; there is, however, no indication that the general openness of criminal and civil proceedings in English legal practice was dispensed with in connection with bankruptcy matters.
It was not until 1869 that the debtor became subject in England to examination. Under the 1869 statute, the bankrupt was required to "produce a statement of his affairs to the first meeting of creditors, and submit to be publicly examined thereon on a day to be named by the court, and at such adjourned public examination as the court may direct." G. Robson, A Treatise of the Law of Bankruptcy 447 (1870). The 1869 law also called for the examination of the bankrupt to be conducted in open court, not in chambers. Id. at 448. Section 17 of that Act provided that the court hold a "public sitting" at which the debtor "shall be examined as to his conduct, dealings, and property." Bankruptcy Act of 1869 § 17, quoted in W. Hazlitt & R. Ringwood, The Bankruptcy Act of 1883 and the Bankruptcy Rules and Forms, 1886, 18 (2d ed. 1887). Public examination of the debtor has continued into modern times as a feature of English bankruptcy law. "The public examination had traditionally been regarded [in England] as one of the most important aspects of the bankruptcy process, for it is intended to serve one of the main purposes of public policy associated with bankruptcy law, namely the protection of the public by gathering as much information as possible about the debtor and his affairs." I. Fletcher, Laws of Bankruptcy, 111 (1978). It is to be noted, however, that in Great Britain the practice of public examination of the bankrupt developed separately from the procedure concerning creditors' meetings. The former was always open to the public; the historical record available to us is largely silent regarding public access to the latter. (footnote omitted)
The American colonies apparently never had any laws that could technically be called bankruptcy laws. Pennsylvania, however, had passed "an act for the Regulation of Bankruptcies" in 1785. In addition, Pennsylvania, like most of the other states, had insolvency laws. These laws were not uniform; nor did they furnish adequate coverage. . . . It was inevitable that Congress would be called upon to exercise its legislative power over the subject of bankruptcies.
1 Collier on Bankruptcy ¶ 0.03 (14th ed. 1974). American federal bankruptcy law was first established by the Bankruptcy Act of 1800, and was reestablished and developed by the Acts of 1841, 1867, 1898, 1935 and 1978. Section 18 of the Act of 1800 required the bankrupt to appear and to be examined by a commissioner appointed by the district court to oversee the bankrupt's assets. Section 52 of the Act permitted "any creditor" to attend the court examinations of the bankrupt and to participate in the proceedings. (footnotes omitted).
The Act of 1841 provided for examination of the bankrupt "in and before [the court], or any commission appointed by the court therefor." The Act also stated that after a hearing had been scheduled with regard to a petition for bankruptcy, "all persons interested may appear at the time and place where the hearing is thus to be had, and show cause, if any they have, why the prayer of the said petitioner should not be granted." (footnotes omitted)
The first three Bankruptcy Acts were short-lived. The Act of 1800 was repealed in 1803; the Act of 1841 was repealed in 1843; and the Act of 1867 was repealed in 1878. The Bankruptcy Act of 1898, however, established the foundations of modern bankruptcy law. Section 55(a) of the 1898 Act gave to each federal district court the responsibility to "cause the first meeting of the creditors of a bankrupt to be held" and § 55(b) required the judge or referee to preside, and gave to either officer the discretion to "publicly examine the bankrupt." (footnotes omitted)
The Act of 1898 contains the first statutory reference to a "public" examination of the bankrupt. The sixth edition of Collier on Bankruptcy noted "[t]hat all meetings [under Section 55] should be held in courtrooms and on regular days and at regular hours, and be conducted with dispatch, *776 dignity and impartiality on the part of the presiding officer, in short, as a court of justice, seems to be the purpose of the statute." Collier on Bankruptcy 419 (6th ed. 1907) (footnotes omitted).
The Act of 1938 amended § 55(b) to require that the judge or referee "publicly examine the bankrupt or cause him to be examined and [to provide that the judge or referee] may permit creditors to examine him [the bankrupt]." (footnote omitted)
Section 55 of the Act, as amended in 1938, should be read in tandem with § 21(a) of the 1898 Act, which permitted the court, upon the application of any officer, bankrupt or creditor, to order any designated persons to appear before the court for examination regarding the bankrupt's assets during any stage of the proceeding. Section 21(a) specifically authorized examination of the bankrupt. In In re Winston Shirt Corp., 104 F.2d 777, 780 (3d Cir.1939), the issue was whether a creditor was entitled to receive a copy of the testimony of a witness taken at a § 21(a) hearing. In deciding that the creditor was so entitled, Judge Biggs wrote:
Moreover, we entertain no doubt that the examination of witnesses pursuant to the provisions of Section 21(a) of the Bankruptcy Act must take place at a public hearing.
Such is the case because the referee in conducting the hearings serves as the court and the processes of the court are available to compel the attendance and testimony of witnesses. Such hearings cannot be conducted in camera. Counsel for interested persons are entitled to examine the proceedings. Under circumstances similar to those of the case at bar, it has been held that a creditor or even the bankrupt himself is entitled to examine the testimony given at hearings as well as books and records in the possession of the trustee.
Id. See, e.g., Petition of Moulthrop, 249 F. 468 (6th Cir.1918); In re Samuelsohn, 174 F. 911 (W.D.N.Y.1909); In re Saur, 122 F. 101 (S.D.N.Y.1903). (footnote omitted)
In In re Prussian, 255 F. 857 (D.Mich. 1919), the referee had excluded from a § 21(a) proceeding involving the examination of a creditor an attorney who represented both that creditor and the bankrupt. Commenting upon the referee's suggestion that the presence of the attorney would be improper, the district court wrote, inter alia:
The contention really amounts to this, that the examination provided by section 21(a) should be held to be a secret inquisition, at which only certain persons may be present. Aside from the inherent difficulty in determining just who might not attend such examination, it is not clear by what authority a trustee in bankruptcy, or even the referee or court, could convert this bankruptcy proceeding, held in a court, with witnesses sworn and testifying, subject to examination and cross-examination in conformity with the rules of law, into a secret session at which certain parties, having rights which may be affected by the questions asked or the answers given at the hearing, may be compelled to attend, but from which their counsel, and other parties having rights involved in such proceeding, together with their counsel, may be excluded. Counsel have not pointed out any provision in the Bankruptcy Act justifying such a construction of the statute or rules applicable, and I know of none. The provisions already mentioned seem to clearly indicate that a contrary construction is the proper one.
Id. at 859-60. See 2 Collier on Bankruptcy, ¶ 21.2 (14th ed. 1978) ("Despite intimations to the contrary, a § 21(a) examination should be conducted at a public hearing, and not as a private investigation."); 5 Remington, supra, at 59-61 ("Examinations under § 21(a) are not secret inquisitions at which only certain persons may be present, but are public proceedings.") (emphasis added).
While both § 21(a) and § 55(b) are very similar in that they provide for examination of the bankrupt, some courts have emphasized that § 21(a) is essentially a discovery proceeding whereas in the *777 § 55(b) proceeding the rights of creditors may be affected.
Thus, in In re Emigh, 243 F. 988 (N.D.N.Y.1917), the court wrote:
At the first meeting of creditors, of which all creditors have notice . . . and at all adjournments thereof, the bankrupt may be examined. Witnesses may be examined and proof taken as to claims. These proceedings should be open to the public, and the bankrupt is then and there entitled to counsel. While the witnesses are publicly sworn and examined at such a meeting, they are not entitled to counsel, except when in the discretion of the referee or court counsel ought to be permitted. But special examination of the bankrupt and of his wife and of witnesses under special order pursuant to the provisions of section 21(a) are a different matter, and are had for a different purpose. The two proceedings should not be confused or conducted the one as a part of the other. These special examinations, while a proceeding in the case before the referee or judge, are not a part of the open court proceedings proper and ought not to be. If so conducted the object and purpose of such examination will be defeated. Id. at 991. (emphasis added).
At this juncture of this case, the court is not called upon to agree or disagree with the distinction between sections 55(b) and 21(a) drawn by the Court in In re Emigh, and simply notes that the court's views in that case with respect to section 55(b) support the media's position in this case.
Congress revised the entire bankruptcy law when it enacted the Bankruptcy Reform Act of 1978. In that Act, meetings of creditors are addressed at 11 U.S.C. § 341, which provides:
(a) Within a reasonable time after the order for relief in a case under this title, the United States trustee shall convene and preside at a meeting of creditors.
(b) The United States trustee may convene a meeting of any equity security holders.
(c) The court may not preside at, and may not attend, any meeting under this section including any final meeting of creditors.
The removal of the court from the role of presiding at or attending creditors' meetings constituted a major renovation and reflected a policy change designed "to remove the court from administrative matters and to end its involvement in situations in which the court learns information outside of the context of a dispute on which it may eventually rule." 2 Collier on Bankruptcy, ¶ 341.01[3] (15th ed. 1988). However, the fact that a United States trustee now presides at creditors' meetings does not change the essentially judicial character of the proceedings; nor did the Congress give any indication in enacting the 1978 law that it sought to change any historical practice relating to public access. (emphasis added)
Section 343 of the 1978 Act continues the practice of requiring the debtor to "appear and submit to examination under oath at the meeting of creditors." 11 U.S.C. § 343. Section 343 is the successor to § 55(b) of the prior Act; the most significant difference between the two sections for purposes of this case is the absence in section 343 of any reference to a public examination of the debtor. Again, however, it must be noted that there is no indication in the legislative history that that wording change was intended to alter historical practices concerning public access to creditors' meetings. (footnote omitted)
Since 1800, our federal bankruptcy proceedings have always been conducted under the aegis of a federal court. Also, the bankruptcy statutes have required that records of such proceedings be filed with the clerk of the district court. Current Bankruptcy Rule 2003 requires the electronic taping of testimony at creditors' meetings and provides that such tapes are part of the public record and are available for transcription upon order of a member of the public. The trustee's memorandum regarding the creditors' meeting is also filed in the court records and is available for public review. Thus, a member of the public, including a representative of the press, may have access to the transcript *778 and records of a creditors' meeting. In that context, it would seem that a member of the public, including a member of the press, should also have the right to attend a creditors' meeting unless problems of disruption or the like are likely to occur. The likelihood of the occurrence of such problems would appear slight, and further would seem to be as controllable as in any other court proceeding. Indeed, the press has attended, apparently without any disruptive effects, meetings of creditors in certain major bankruptcies in the District of Maryland and elsewhere in the Fourth Circuit. See e.g., In re Governmental Financial Services, Inc., No. 87-4-3357 (Bankr.D.Md.); In re A.H. Robins Co., Inc., No. 85-01307-R (Bankr.E.D.Va.); In re PTL (Heritage Village Church and Missionary Fellowship, Inc.), No. 87-01956 (Bankr.D.S.C.). In sum, historical analysis of English and American practices would appear to support the media's position in connection with the issue posed by this case. (footnotes omitted)
C. Function and Policy
The second prong of the Supreme Court's experience and logic analysis is whether access by the public and press to the proceedings plays a significant role in the functioning of the bankruptcy process. See Press Enterprise II, [Press Enterprise Co. v. Superior Court], 478 U.S. [1] at 8-9, 106 S.Ct. [2735] at 2740-41 [92 L.Ed.2d 1] [(1986)]. A policy of openness "`enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the [criminal law] system.'" Id. at 13, 106 S.Ct. at 2743 (quoting Press Enterprise I [Press Enterprise Co. v. Superior Court], 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984)). Similarly, unless creditors' meetings are open, members of the public including the press have no way to monitor the supervision of the case by the trustee or to assure that bankruptcy policies and procedures are applied appropriately. As the Supreme Court has noted, "[p]eople in an open society do not demand infallibility from their institutions but it is difficult for them to accept what they are prohibited from observing." Richmond Newspapers [v. Virginia], 448 U.S. [555] at 572, 100 S.Ct. [2814] at 2825 [65 L.Ed.2d 973] [(1980)].
The meeting of creditors is an important part of a bankruptcy case indeed, in Chapter 7 and 11 proceedings, it is the only mandatory hearing. Creditors have an opportunity to appear and to present claims, to examine the debtor, and to participate in discussions regarding the outcome of the bankruptcy. Cf. Press-Enterprise II, 478 U.S. at 12, 106 S.Ct. at 2742 ("Because of its extensive scope, the preliminary hearing is often the final and most important step in the criminal proceeding"). The public has an interest in attending such a critical component of a bankruptcy, particularly in a case like this one in which the debtor is a corporation whose bankruptcy affects large numbers of people, indirectly as well as directly. Astri, the bankrupt in this case, is a securities dealer-broker, a type of business which has been under intense federal and state scrutiny for a number of years. (footnote omitted)
One purpose of the examination of the debtor at a creditors' meeting has always been to uncover all of the debtor's assets, by the obtaining of full and truthful information. Truthfulness by the bankrupt is probably enhanced when the bankrupt testifies in public. In addition, openness will seemingly increase the likelihood that all potential creditors are made aware of the bankruptcy proceedings and are afforded the opportunity to present claims. (footnote omitted)
In passing, it would appear that this is a continuing effort on the part of the Department of Justice through the U.S. Trustee's system to exclude from this Court any jurisdiction whatsoever over the section 341 meetings or the manner in which they are conducted. It appears to be the thesis that this Court has no authority over the rights and protective procedures that a debtor may have in the conduct of such meetings. Further, the ill-advised Virginia State Bar ruling, which the U.S. Trustee's Office obtained, has used, and now implements, permits lay persons, *779 corporate, credit managers, and bank employees to appear at section 341 meetings and examine the debtor under oath, which degrades the judicial process and is bringing disrepute upon this Court and the entire judicial system relating to bankruptcy matters.[1] This Court has heard debtors testify in their appearances as witnesses before this Court, that while testifying at section 341 meetings they have been brow-beaten, verbally abused, and harassed without any semblance of decorum being implemented to prevent such action of lay persons who appear and conduct examination of the debtor under oath whose testimony may later be brought into court for impeachment purposes. Instances were noted where the debtor recited that questions were asked in the 341 meeting examination by various parties in such a manner that before the answer could be given to one question, another party would ask another question; and, then, when asked on matters coming before this court for impeachment purposes stated that one was unable to respond to the questions; and, therefore, any answer that they gave may not have been responsive under the circumstances. These practices, while the debtor is examined under the solemn oath to tell the truth, reflect adversely upon this Court and the entire judicial system. The question arises, if the Debtor had filed a motion with the U.S. Trustee's Office for a continuance under the circumstances and if that motion had been denied, what remedy is available to the Debtor to seek relief from such ruling? Is there no redress to the Debtor and his attorney. Must they travel 150 miles round trip from Tazewell to Abingdon for no purpose whatsoever? Must the Debtor and the attorney appear for a second time on an additional date, which would not have been required otherwise? Must the Debtor bear the expense of a second journey? These questions loom large when considered in light of the U.S. Trustee's thesis that this Court has no jurisdiction over any facet of the section 341 creditors' meetings.
Accordingly, for the foregoing reasons, the Order was properly entered.
Service of a copy of this Memorandum Opinion shall be made by mail to the Debtor; counsel for Debtor; Trustee; and U.S. Trustee.
NOTES
[1] The Virginia State Bar ruling does violence to its own unauthorized practice of law, Opinion No. 58, effective July 1, 1984, which provides as follows:
A nonlawyer employee of a corporation may represent his employer before a tribunal, including bankruptcy court, so long as his activities before the tribunal are limited to the presentation of facts, figures or factual conclusions, as distinguished from legal conclusions. He may not engage in activities involving the examination of witnesses, the preparation and filing of briefs or pleadings, or the presenting of legal conclusions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875775/ | 260 S.W.3d 432 (2008)
Montrell FUTRELL, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 90100.
Missouri Court of Appeals, Eastern District, Division Three.
August 19, 2008.
Gwenda R. Robinson, St. Louis, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J.
ORDER
PER CURIAM.
Montrell Futrell appeals the denial of his Rule 29.15 motion for post conviction relief after an evidentiary hearing. We have reviewed the briefs of the parties and the record, on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1902653/ | 116 F. Supp. 345 (1953)
UNITED STATES
v.
MESAROSH et al.
Cr. No. 13531.
United States District Court, W. D. Pennsylvania.
November 10, 1953.
*346 Edward C. Boyle, U. S. Atty., Irwin A. Swiss, Asst. U. S. Atty., Pittsburgh, Pa., William G. Hundley and Richard J. Alfriend III Sp. Pros. Counsel, Norfolk, Va., of counsel, for Government.
Hymen Schlesinger, Pittsburgh, Pa., for all defendants.
Ralph E. Powe, Brooklyn, N. Y., for defendants Dolsen and Albertson.
Reuben Terris, New York City, for defendants Nelson, Careathers and Weissman.
MARSH, District Judge.
In this criminal action the defendants are charged with conspiring[1] to teach and advocate the overthrow of the Government of the United States by force and violence as speedily as circumstances will permit in violation of the Smith Act.[2]
The grand jury returned a true bill on January 18, 1952. On May 27, 1952, the defendants were arraigned before our late esteemed colleague, the Honorable William Alvah Stewart, and entered pleas of not guilty. Subsequently, voluminous and numerous motions were filed. The many hearings held culminated in an opinion and order of Judge Stewart filed October 10, 1952, denying all pretrial motions; 13 F.R.D. 180.
On November 12, 1952, Judge Stewart drew a jury panel of 51 names and commenced the voir dire examination. This continued for seven court days, during which time only twenty jurors were interrogated.[3]
On December 16, 1952, because of the serious illness of Judge Stewart, an order was entered assigning the case to this court for trial and disposition. February 2, 1953, was fixed as the date of trial.
Because the defendant Albertson underwent a surgical operation, the trial was continued to February 16, 1953, and finally until February 24, 1953. All motions which had theretofore been made before Judge Stewart were renewed before this court for the purpose of protecting *347 the record. We considered these motions on their merits and denied them on March 2, 1953. Additional hearings were held challenging the jury panel.
The court determined upon the manner in which the jury should be selected, and twelve jurors and four alternates were accordingly chosen which, in our opinion, could fairly and impartially determine the guilt or innocence of the defendants.
The prosecution presented its case and rested on April 16, 1953. The defendants requested a recess so that they might have an opportunity to prepare motions for judgment of acquittal, motions to strike certain testimony, renewed motions on double jeopardy, and a renewed motion for mistrial because of the political climate. The court granted a recess during which time Bertram Edises, Esquire, counsel for the defendants Nelson, Careathers and Weissman, became ill. Additional continuances were granted to permit Mr. Edises an opportunity to recuperate. On May 18, 1953, the defendants opened to the jury. Mr. Edises continued to represent his clients, and one of them, the defendant Weissman, took the stand and testified on behalf of the defendants. The cross-examination of Weissman was substantially completed when the court permitted Mr. Edises to withdraw from the case because of his illness and the defendants were granted a continuance to June 1, 1953, on their representation that they would be prepared to continue the trial "in any event" by that date.[4]
Various motions were subsequently made and continuances were granted until June 16, 1953. Reuben Terris, Esquire, after appearing specially to request a mistrial, entered his appearance as trial counsel for the defendants previously represented by Mr. Edises. He requested a continuance to October 1, 1953, which was refused and a continuance was granted to July 16, 1953. On July 14, 1953, Mr. Terris requested a continuance until July 20, 1953, to permit argument and consideration of a motion for mistrial filed July 9, 1953, and to grant additional time for Mr. Nelson to recuperate from a goiter operation he had had performed in New York.[5] On July 16, 1953, Royal W. France, Esquire, was admitted specially to argue the motion for mistrial based on publicity which accompanied a hearing before the Senate Permanent Subcommittee on Internal Security in Washington, D. C., at which Joseph Mazzei, a witness for the prosecution in this case, had testified. That motion was denied as well as other motions for mistrial and for continuance.
On July 20, 1953, the trial was finally resumed and on August 12, 1953, the defendants rested. Summations in behalf of defendants were made by Messrs. Terris and Powe, of counsel, and by two defendants, Nelson and Careathers. On August 18, 1953, after the court's charge, the jury entered upon its deliberation and on August 20, the jury returned a verdict of guilty as to all five defendants.
Arguments on various motions were heard, including arguments for a new trial. The court denied the motions and on August 25 sentenced each defendant to five years in the federal penitentiary.
The motion for a new trial raised several matters which had been decided many, many times by this court and in some instances by Judge Stewart in his phase of the proceedings. The legal merit of other points raised in the motion is obscure, for example, No. 14, where the defendants state: "The Court erred in admitting testimony of each and *348 every prosecution and defense witness to which objections were made." It would appear from this point that the defendants incorporate in their reasons for a new trial the fact that the court overruled objections of the Government to questions asked of defense witnesses. No. 13 is subject to the same criticism.
We, therefore, will limit our remarks to four matters which we believe merit discussion. They are as follows:
1. The method used by this court in selecting a jury.
2. The court's refusal of defendants' requests for the production of F.B.I. reports.
3. Denial by this court of a motion for mistrial because of the illness and withdrawal of defense counsel.
4. The interrogation by this court of the jury as to whether or not they had read the newspaper account of Joseph Mazzei's testimony before the Senate Permanent Subcommittee on Internal Security.
I
Selection of Jury.
On November 12, 1952, Judge Stewart launched upon an extensive voir dire examination in which each juror was individually examined out of the presence of the other jurors. This examination continued through November 19, 1952. In this interim twenty jurors were examined. About 500 pages of transcript were taken.
After twenty jurors had been extensively interrogated, thirteen were excused for various reasons.[6] Some of the excused jurors had expressed normal and common prejudices against communism, and those who did not the defendants challenged for cause, assuming that they were either coached or uninformed. Mr. Swiss, Assistant United States Attorney, at this point injected a cogent remark. He stated at page 295 of the transcript that "If a prospective Juror says that he has an opinion, then, of course, he is disqualified; if a prospective Juror says that he has formed no opinion, then, according to Mr. Edises [of defense counsel], the Juror shows a certain suspicious naivete, which implies a coaching * * *."
It seemed to this court, after carefully reviewing the procedure followed by Judge Stewart, that to obtain a juror who would make the "right" answers (from defendants' point of view) to the questions propounded, he or she would have to be a person who had lived in a vacuum, or was an imbecile, or a communist. The probing of the minds of the jurors as suggested by defense counsel would have required months of interrogation with comprehensive discourses on the various theories of communism, socialism and capitalism. At the end of interrogation of this sort, in our opinion, we would have been in no better position to select a qualified jury than we were after the voir dire which we conducted.
Reaping the benefit of Judge Stewart's voir dire experience, general questions were formulated which could be propounded to the entire jury panel. Consequently, jurors were quickly excused because of health or hardship, and because they or their families were Government employees or pensioners, etc. Those remaining were asked if they had read certain articles, or read articles by certain authors, or belonged to certain organizations.
We then empaneled 43 jurors and asked them specific questions concerning their occupation, opinions, etc. As challenges for cause were sustained, we dismissed the juror and replaced him with one of the jurors who had remained in the courtroom during the voir dire. The replacement was then asked concerning the previous questions and the voir dire continued. The vital specific questions were put to each empaneled juror. When all of the questions had been *349 asked by the court, peremptory challenges[7] were exercised and a jury of twelve remained. Eight jurors were then called and questioned in the same manner. After peremptory challenges of two by defendants and two by the Government, four alternate jurors remained.
It is the opinion of the court that a jury was selected which was able to try the defendants with fairness and impartiality. If we had permitted counsel to conduct the voir dire or to participate in the questioning, it is our judgment that the voir dire would have resolved itself into trap questions, lengthy explorations of the deeper recesses of the jurors' minds, and psychological arguments. Accordingly, the voir dire was conducted by the court pursuant to Rule 24(a), Fed.Rules Crim.Proc., 18 U.S.C. A.[8] The questions propounded were gleaned from suggestions furnished by the defendants and the prosecution, with some modification by the court. Several jurors admitted they were biased or prejudiced and were excused; the remaining prospects stated they could give defendants a fair trial. We believe all the empaneled jurors truthfully answered the searching inquiries put to them.
In determining the manner of conducting the voir dire, the remarks of Judge Learned Hand were of decisive influence. In United States v. Dennis, 2 Cir., 1950, 183 F.2d 201 at page 227, he stated: "If trial by jury is not to break down by its own weight, it is not feasible to probe more than the upper levels of a juror's mind. * * * The defendants' questions, which the Rule gave them the privilege of submitting, were more specific and might have evoked answers that disclosed sentiments that on further probing might in turn have evoked prejudice which ought to have disqualified the juror; but by themselves they would not have done so. In other words they were useful only as preliminaries to a further detailed examination; and that might have unduly extended the voir dire, which, as it was, occupied eight court days."
If the court had not been satisfied that each juror could and would fairly and impartially perform his duty, we would have continued the voir dire. Once we were satisfied of that fact, however, the purpose of the voir dire was ended.
II
Production of F.B.I. Reports.
In the course of the testimony of Matt Cvetic, a Government witness, the defendants requested that the Government be required to produce the F.B.I. reports made by the witness. See transcript, pages 1172 and 1643. Request denied at transcript, page 1695. The reasons suggested for the request were:
1. That Cvetic's recollection was fresher when he made the reports and, therefore, would aid in securing an accurate account of the events recorded therein;
2. That, with the aid of the reports, defendants would be in a better position to test Cvetic's memory and recollection.
The request was confined to reports which dealt with the events about which Cvetic had testified.
The Government objected to the request to produce F.B.I. reports because:
1. The reports are confidential and privileged under an order issued pursuant to 5 U.S.C.A. § 22 which appears in 18 F.R. § 1368;
2. Cvetic did not use the reports to refresh his recollection;
3. Defendants did not show that the reports contained contradictory matter;
*350 4. The request was nothing more than a fishing expedition.
At the trial[9] Mr. Edises, in support of his request, stated "We should have the best evidence." It was upon this argument that defendants relied. When it was shown that the witness had not used the reports to refresh his recollection, we were of the opinion that the defendants could not demand that they be produced. See Vol. 3, Wigmore on Evidence, page 111, footnote 4; Goldman v. United States, 1942, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322. The defendants' contention that the reports were the best evidence is without merit. The remaining issue is whether defendants could secure the reports to contradict the witness.
The cases indicate that the claim of privilege in a criminal case is lost by the Government when it puts a witness on the stand. See United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503, 506; United States v. Beekman, 2 Cir., 1946, 155 F.2d 580, 584; United States v. Krulewitch, 2 Cir., 1944, 145 F.2d 76, 79, 156 A.L.R. 337; and see the dicta in United States v. Reynolds, 1952, 345 U.S. 1, 2, 73 S. Ct. 528. We believe that the claim of privilege was lost in this case when Cvetic began to testify.
We are of the further opinion that the Government's contention that defendants are not entitled to the reports because they have not shown that the reports contradict Cvetic is untenable. Defendants cannot show that the reports contradict the witness unless they see them.
It appears to the court, however, that defendants did not lay the proper foundation to require the court to grant the request. In the case of United States v. Schneiderman, D.C.S.D.Cal. 1952, 106 F. Supp. 731, which case was not called to our attention at this stage of the trial, Judge Mathes compelled the Government to produce the three reports requested by defendants. The reports were first examined by the court and then given to the defendants. Counsel suggested this procedure without alluding to the Schneiderman case.[10] The difference between the Schneiderman case and the case sub judice is that the defendants in this case did not ask for specific reports but for all the reports "which deal with matters concerning which the witness testified to here."
Likewise, in Gordon v. United States, 1953, 344 U.S. 414, 418, 73 S. Ct. 369, 373, wherein the Supreme Court reversed the trial court for failure to require the production of documents, it was said:
"By proper cross-examination, defense counsel laid a foundation for his demand by showing that the documents were in existence, were in possession of the Government, were made by the Government's witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main issue being tried: the participation of the accused in the crime. The demand was for production of these specific documents and did not propose any broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up." (Emphasis added.)
Cvetic's testimony covered a period of about nine years his entire period of employment by the F.B.I. He testified that he not only reported in writing but also reported in person and by telephone. It appears to the court that the request was tantamount to a request for a carte blanche to see the F.B.I. reports. For the court to have read all these reports and determined what the defendants should see and what they should not see may have been a monumental undertaking.
*351 Since there was no attempt to lay a proper foundation by specifying the particular reports which were desired, we believed the request for production of F.B.I. reports was properly denied.
III
Denial of Mistrial Because of Illness and Withdrawal of Defense Counsel.
As has been stated, Mr. Edises was granted leave to withdraw from the case on May 27, 1953, because of illness. Leave to withdraw was in part granted in reliance upon representations that defendants would proceed with the trial.
On June 12, 1953, Reuben Terris, Esquire, of New York, appeared specially on behalf of the defendants formerly represented by Mr. Edises and orally moved for a mistrial. He argued that it was impossible for substitute counsel to represent the defendants properly through the remainder of the trial because, regardless of preparation and study, a substitute could not hope to know the demeanor and manner of the Government witnesses and the defendant Weissman; nor could substitute counsel hope to know the reaction of the jury toward these witnesses; and, therefore, it would be impossible for substitute counsel to effectively present an argument to the jury on the important phase of credibility.[11] He also stated that he had never heard of a criminal case which had not been continued upon withdrawal of counsel for defense because of illness. He admitted a paucity of authority on the proposition but submitted a number of civil cases to support his view.
It appears to the court that in Mr. Terris' earnest argument for a mistrial, he failed to take into consideration several important matters in connection with this particular trial. The trial had already been subject to many and varied delays. The delays were not always at the request of defendants but it became apparent early in the proceedings that every opportunity for delay would be seized upon by defendants. In the three months following the beginning of the trial on February 24, only about thirty days had been spent in the courtroom.
On May 7, 1953, it became evident to the court that Mr. Edises was ill and that he might not be able to continue with the trial. Anticipating the subsequent withdrawal of Mr. Edises, the court ordered Hymen Schlesinger, Esquire, of Pittsburgh, Pennsylvania, counsel of record for all the defendants,[12] to attend the trial and prepare to take over the defense if Mr. Edises withdrew. This order was vacated when Mr. Schlesinger vehemently opposed it and when Mr. Albertson on behalf of all the defendants assured the court that they earnestly desired to proceed with the trial and that they would immediately take steps to procure other counsel, or consider proceeding pro se or with Ralph E. Powe, Esquire, as their counsel. Mr. Powe had represented the defendants Dolsen and Albertson throughout the trial and had worked closely with Mr. Edises on the joint defense of the five defendants.
On May 27, 1953, Mr. Powe, acting for the defendants, notified the court of the actual withdrawal of Mr. Edises. He requested a continuance to June 1, 1953, on the representation that defendants were trying to secure substitute counsel but would proceed on that date in any event.[13] The continuance was granted but on May 29 the defendants advised the court that they could not obtain substitute counsel; that they had changed their minds and would not proceed with Mr. Powe, Mr. Schlesinger or pro se. It became very evident to the court that the defendants were playing a *352 game for delay, to say nothing of the obligation due the court when counsel makes representations to it, or the affront to the court when such representations are relied on by the court and then suddenly changed.
On June 3, 1953, the defendants categorically stated to the court that they did not want their chosen counsel of record Mr. Schlesinger to represent them as trial counsel. Thereupon the court cleared the way for the defendants to proceed in forma pauperis and offered to select and appoint competent legal counsel from the members of the bar in the Western District of Pennsylvania to represent the defendants for the balance of the trial. This offer was categorically and promptly refused. The court had already fixed June 16 as a deadline for the resumption of the trial a period of forty days from the time the court alerted defendants to arrange for substitute counsel and nineteen days after the actual withdrawal of Mr. Edises.
On June 12 the defendant Albertson telephoned chambers and requested permission to introduce "their counsel" to the court. This permission was granted. Mr. Terris was introduced to the court, and, as stated, entered his special appearance and moved for mistrial. In these circumstances we were constrained to deny the motion.
The jury reconvened on June 16 as scheduled. Mr. Terris asked leave to enter his appearance generally and requested a continuance to October 1, 1953, to prepare for trial. The court refused to recess until October 1, but advised Mr. Terris he would be given one month to prepare for trial.[14] This was accepted under protest and Mr. Terris was admitted specially as trial counsel.
We are firmly convinced that the defendants would have been more than adequately and effectively represented and their rights fully protected had they agreed to permit their selected counsel of record Mr. Schlesinger or Mr. Powe, or both, to finish the trial for them.[15] We are also firmly convinced that events justified our decision to deny the motion for mistrial. Mr. Terris capably represented his clients and received the utmost cooperation and active assistance from Mr. Powe who, in effect, acted as co-counsel.
We were further fortified in our decision to deny the motion for mistrial by the fact that the defendants Nelson and Careathers were permitted to open and close to the jury. This was agreed to by Judge Stewart and by this court on the representation that no attorney could present the true aims and objectives of the Communist Party and the defendants to the jury.[16]
At the time Mr. Edises was permitted to withdraw, the court was advised that only two witnesses remained to be called by defendants and that the Government had only a few questions to conclude the cross-examination of the witness Weissman. The two remaining witnesses were the defendant Albertson, who was represented by Mr. Powe, and a Benjamin J. Davis, who was brought to this district from the penitentiary in Terre Haute, Indiana, by way of habeas corpus proceedings initiated by the defendant Dolsen, also represented by Mr. Powe. With the exception of two witnesses from the Carnegie Library of Pittsburgh, whose testimony was of a routine nature and consumed less than an hour, Albertson and Davis were the last witnesses to testify on behalf of the defendants. Mr. Powe conducted the major portion of their interrogation.
*353 In the circumstances, we believe that the withdrawal of Mr. Edises did not, ipso facto, compel the granting of a mistrial. We are of the opinion that the matter was one of discretion. In exercising our discretion we considered the complications in this case; the difficult and time-consuming task of getting the trial under way; the time, expense and difficulty in selecting a jury; the time already consumed in trial; the representation that Nelson and Careathers were not going to take the witness stand; the refusal of these defendants and the defendant Weissman to proceed with their counsel of record, or with Mr. Powe; their refusal to permit the court to appoint counsel; the intelligence and ability of defendants to inform new counsel of their desires, strategy and theories of defense[17]; the fact that Mr. Powe continued to act in a manner which indicated that he was protecting the interests of not only his clients but those represented by Mr. Edises as well; and the fact that the defendants Nelson and Careathers were permitted to open and close to the jury. After considering these factors, we were of the opinion that our discretion should be exercised in favor of continuing the trial.
Mr. Terris' participation in the trial indicated that we had not abused our discretion. He fully protected the rights of his clients and the fact that the defendants were convicted does not reflect on his conduct of the trial.
IV
Interrogation of the Jury by the Court.
The final matter on which we think reasons should be set forth concerns a motion for mistrial which was based on the alleged prejudice created by a newspaper article and the publicity attendant on a hearing conducted by the Senate Permanent Subcommittee on Internal Security headed by Senator Joseph R. McCarthy. This motion was filed on July 9, 1953. It concerned the publicity given to the testimony of one Joseph D. Mazzei, who testified before the Committee on June 18, 1953. Mr. Mazzei testified for the prosecution in this case.
The defendants urged that under the decision of Delaney v. United States, 1 Cir., 1952, 199 F.2d 107, we were compelled to declare a mistrial. Defendants brought Royal W. France, Esquire, before this court to appear specially and argue the motion. The legal argument centered around the factual issue of whether the jury had read or heard about the incident. Defendants urgently argued that the court was required to presume prejudice. We, however, are of the opinion that presumptions need not be indulged in if the facts are available.
We, therefore, interrogated each juror under oath and out of the presence of the others. In this manner it became abundantly clear that, with only two exceptions, the jurors had not read the article or heard anything about the matter raised by the defendants. The two who had any knowledge of the incident only heard the name Mazzei mentioned on the radio or saw his picture in the paper but could not remember what the incident was about.
From this examination it was clear that the publicity concerning Mr. Mazzei had not prejudiced the defendants, and in denying the motion, we found this to be the fact. Our interrogation refrained from disclosing the nature of the publicity,[18]*354 and we told the members of the jury not to inquire into it.
The defendants' counsel both vigorously objected to the interrogation. They also urged even after the interrogation that the court had to presume prejudice. We think this argument is wholly unsound.
In the Delaney case the court presumed prejudice because there was no evidence to the contrary. In this case the evidence clearly shows that the jury was not aware of the alleged prejudicial matter. The interrogation further indicated that the jury was so assiduous in complying with our admonishment not to read about this case during the trial that they did not read or listen to matters related to the trial because of the identity of names.
If the interrogation had revealed any knowledge of the alleged incident and any resultant prejudice, we would have granted the motion. When such was not the case, the motion was denied.
We have attempted herein to set forth some of the factors which guided the court in deciding the issues. This is not intended as an all-inclusive opinion. Many of the matters raised during these proceedings were decided by Judge Stewart. His opinion in 1952, 13 F.R.D. 180, greatly reduced the burden on this court and we have adopted his rulings and reasoning as set forth therein. Many of the matters raised at trial were disposed of by written orders to which we attached memoranda setting forth our reasons.
Since the defendants have filed notice of appeals, we undertook to discuss the matters herein, not only because we think the parties are entitled to our reasons, but also because they may be of some benefit to the judges who will review the proceedings.
NOTES
[1] 18 U.S.C.A. § 371.
[2] 18 U.S.C.A. § 2385.
[3] Judge Stewart asked the entire panel several general questions in an attempt to expedite the voir dire.
[4] The representation made was that defendants would either secure new counsel, proceed with counsel already in the case, or pro se. See Transcript, pages 3423, 3935 and 3937.
[5] This operation was not shown to be of an emergency nature. Mr. Nelson did not secure the court's permission to have the operation performed nor was the court apprised of the operation until the motion for continuance was made. A medical examination was ordered and an opinion indicated that Nelson had recovered sufficiently to stand trial.
[6] It is apposite to note that several were challenged because their answers to questions which presupposed legal training were objectionable to the defendants.
[7] The defendants were given 3 peremptory challenges each and 10 jointly, or a total of 25. The Government had 6 peremptory challenges.
[8] Rule 24(a) states that "The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. * * *"
[9] Transcript, page 1172.
[10] Transcript, page 1645.
[11] We might say that Mr. Terris' summation to the jury did as much as any speech could have done in attacking the credibility of witnesses.
[12] Attorneys who do not maintain an office in this district shall have associate counsel residing in and maintaining an office in the district, whose appearance shall be entered of record. See Rules of Court, Rule 1(e), U.S.D.C. Western District of Pennsylvania.
[13] See footnote 4 on page 3.
[14] This is about the same amount of time Judge Stewart gave Mr. Edises to prepare at the beginning of the trial. See record before Judge Stewart, October 14, 1952, page 31.
[15] It is apposite to note that Mr. Schlesinger has been present and in many instances represented the defendants in the post-trial proceedings in this court.
[16] See record before Judge Stewart, October 14, 1952, pages 8-12.
[17] Messrs. Nelson, Careathers and Weissman are highly intelligent; they were familiar with courtroom strategy, the Constitution of the United States, and the complications of a Smith Act trial. See addresses to jury by Nelson and Careathers, and the testimony of Weissman. By insisting that Albertson, or one of them, attend all side-bar discussions between counsel and the court, the inference arises that they actively participated in the procedure and legal development of the trial.
[18] Although defense counsel requested that we ask the jurors if they had read in this article or heard about a plot to assassinate Senator McCarthy, we refused so to do because it would have brought to the jury's attention facts and implications which we thought should remain unconnected with the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345718/ | 587 F.3d 1188 (2009)
Mark LEMOGE and Roxina Lemoge, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
No. 08-56210.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 4, 2009.
Filed December 7, 2009.
*1190 David W. Baumgarten (argued), Yale & Baumgarten, LLP, San Diego, CA, for appellants Mark Lemoge and Roxina Lemoge.
Karen P. Hewitt, United States Attorney, Southern District of California, and Melanie A. Andrews (argued), Special Assistant United States Attorney, for appellee United States of America.
Before: HARRY PREGERSON and RONALD M. GOULD, Circuit Judges, and MYRON H. BRIGHT,[*] Senior Circuit Judge.
GOULD, Circuit Judge:
Mark and Roxina Lemoge appeal the district court's denial of their motion to set aside the dismissal of their action for personal injuries under the Federal Torts Claims Act (FTCA) against the United States and to extend time to serve the summons and complaint. The issue is whether the district court abused its discretion under Federal Rule of Civil Procedure 60(b) by denying the Lemoges relief from the dismissal. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand.
I
In April 2004, Mark Lemoge suffered a serious leg injury at a military facility when a concrete park bench collapsed and fell on him.[1] In April 2006, the Lemoges *1191 filed an administrative tort claim pursuant to the FTCA with the Department of the Navy concerning that injury.
The Lemoges' administrative tort claim was denied, after which, on April 5, 2007, the Lemoges filed a personal injury action against the United States in the United States District Court for the Southern District of California. In June 2007, Mark Caruana, counsel for the Lemoges, sent a copy of the summons and complaint to the Navy's administrative-claims attorney. On September 5, 2007, a Navy attorney forwarded correspondence to Caruana stating that the United States Attorney's office needed to be served. On September 18, 2007, the district court issued an order to show cause why the action should not be dismissed for failure to serve the government with the summons and complaint pursuant to Federal Rule of Civil Procedure 4(m), which requires the defendant to be served within 120 days after the complaint is filed. On October 9, 2007, hearing nothing from the Lemoges, the district court sua sponte dismissed the Lemoges' action without prejudice.
During the time in which the Lemoges were to have served the summons and complaint, Caruana suffered medical complications, including a staph infection, from an injury to his leg. Over several months, Caruana underwent three surgeries, skin grafts, extensive therapy, and a full regimen of medications. Caruana states he was not able to "connect the dots" and therefore did not timely serve the summons and complaint and was not aware of the order to show cause or the dismissal.
Caruana subsequently discovered that the case had been dismissed. The Lemoges concede that because more than six months have passed since the denial of their FTCA claim, they are time-barred from re-filing their action under 28 U.S.C. § 2401(b). Thus, on May 8, 2008, Caruana, on behalf of the Lemoges, filed a motion to set aside the dismissal and extend time to serve the summons and complaint (the "Motion").
Simultaneous to the above events, there was a short-lived, related litigation between Granite State Insurance Company ("Granite State"), Mark Lemoge's employer's workers' compensation insurer, and the government. On November 6, 2007, after the Lemoges' action was dismissed, Granite State filed a workers' compensation subrogation claim concerning Mark Lemoge's injury (the "Granite State Action"). On May 9, 2008, the day after the Lemoges filed their Motion, Granite State and the government settled the Granite State Action.
The district court denied the Lemoges' Motion orally at the end of a July 7, 2008, hearing, and confirmed the denial through an order filed one week later. The district court construed the Lemoges' Motion as a motion for relief under Federal Rule of Civil Procedure 60(b)(1) for excusable neglect. Despite accepting that Caruana had suffered medical injuries requiring extensive treatment, the district court concluded that none of Caruana's explanations justified the significant passage of time before the Motion was filed. The district court also concluded that the government would be unfairly prejudiced if the Lemoges' action was reopened because the government relied on its dismissal in settling the Granite State Action.
The Lemoges appeal the district court's denial of their Motion.
II
A district court's denial of relief from a final judgment, order, or proceeding *1192 under Federal Rule of Procedure 60(b) is reviewed for abuse of discretion. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir.2000). A district court abuses its discretion by denying relief under Rule 60(b) when it makes an error of law or relies on a clearly erroneous factual determination. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir.2000).
Federal Rule of Civil Procedure 60(b)(1) provides as follows: "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: [] mistake, inadvertence, surprise, or excusable neglect."
Excusable neglect "encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence," Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993), and includes "omissions caused by carelessness," id. at 388, 113 S. Ct. 1489. The determination of whether neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395, 113 S. Ct. 1489. To determine when neglect is excusable, we conduct the equitable analysis specified in Pioneer by examining "at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman, 231 F.3d at 1223-24 (citing Pioneer, 507 U.S. at 395, 113 S. Ct. 1489). Although Pioneer involved excusable neglect under Federal Rule of Bankruptcy Procedure 9006(b), in Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997), we concluded that the Pioneer standard governs analysis of excusable neglect under Rule 60(b)(1). See id. at 381, 113 S. Ct. 1489.
A
We conclude that the district court did not identify the Pioneer-Briones standard or correctly conduct the Pioneer-Briones analysis and that this was an abuse of discretion.[2] While the district court conducted analysis related to the first three factors, the district court did not consider the fourth factor, good faith, or, as required under the circumstances of this case, the prejudice the Lemoges would suffer if their Motion was denied.
The district court did not cite to Pioneer or Briones or list the Pioneer-Briones factors. In Bateman, we held that district courts should explicitly use the Pioneer-Briones framework for analysis of excusable neglect under Rule 60(b)(1):
Bateman argues that the district court abused its discretion because it failed to conduct the equitable analysis laid out in Pioneer and Briones. We agree. In its order denying relief, the district court cited Pioneer, but only for the proposition that "clients must be held accountable for the acts and omissions of their attorneys." The court did not acknowledge Pioneer's statement that "excusable neglect" includes cases of negligence, *1193 nor did it mention the equitable test established by Pioneer. The court also did not mention this court's adoption of the equitable test for Rule 60(b)(1) cases in Briones.
....
... The court would have been within its discretion if it spelled out the equitable test and then concluded that [the attorney] had failed to present any evidence relevant to the four factors. But it abused its discretion by omitting the correct legal standard altogether.
Bateman, 231 F.3d at 1224 (internal citation omitted). In Bateman, we concluded that as long as the substance of the equitable analysis called for by Pioneer-Briones is undertaken, reversal may not be necessary:
We would not ordinarily reverse a court simply for failing to articulate the Pioneer and Briones test, as long as it actually engaged in the equitable analysis those cases mandate. However, it does not appear the district court did so here....
While these factors [provided by the district court] are certainly relevant to the determination of whether [the attorney's] conduct was excusable, they revolve around just one of the Pioneer and Briones considerations the reason for the delay. The court made no mention of the other three: the prejudice to the defendant, the length of the delay and its potential impact on the proceedings, and whether [the attorney] acted in good faith.
Id. We concluded that the district court abused its discretion by applying the wrong legal standard, and remanded with instructions to grant the Rule 60(b)(1) motion. Id. at 1225.
As in Bateman, here "[t]he court did not... mention the equitable test established by Pioneer" or "spell[ ] out the equitable test." Id. at 1224. It is not, moreover, merely a matter of the district court not citing and stating the test required by Pioneer and by Briones. More importantly, we are concerned that the substance of the district court's analysis wholly omitted discussion of one of the four factors said to be relevant by the Supreme Court in Pioneer. Therefore, following the test stated by us recently in United States v. Hinkson, we conclude that the district court abused its discretion by not "identif[ying] the correct legal rule" and omitting analysis of an important part of that rule. 585 F.3d 1247, 1261 (9th Cir.2009) (en banc).
There are substantial reasons why the courts of appeals and the district courts should pay close heed to a standard that has been expressly set by the United States Supreme Court, and normally conform their analysis to it. National uniformity of federal law is a virtue in its own right. See Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 Harv. L.Rev. 1417, 1424-25 (1987) ("Uniformity promotes the twin goals of equity and judicial integrity similar treatment of similar litigants secures equity, while it also inspires confidence in the legal system, a confidence crucial to the effective exercise of judicial power.") (citation omitted). But pragmatic concerns limit the amount of cases the Supreme Court is able to review. To aid uniformity of law, it is important that the Supreme Court's interpretations of law are adopted and followed by lower courts. Moreover, we are told that we are to pay close attention even to Supreme Court dicta. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129 (9th Cir.2006) (en banc) ("[A]s a lower federal court, we are advised to follow the Supreme Court's considered dicta.") (quoting Oyebanji v. Gonzales, 418 F.3d 260, 264-65 (3d Cir.2005)). It follows with stronger logic that when a Supreme *1194 Court case identifies explicitly just four factors to be considered in assessing a type of problem, then whatever else is discussed, the analysis of the lower court should normally address the factors that the Supreme Court has identified. See, e.g., Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753-54 (9th Cir.2002) (holding that the district court abused its discretion after noting that the district court did not address Pioneer-Briones's good-faith factor); Bateman, 231 F.3d at 1224 (holding that the district court abused its discretion where it considered only one of the Pioneer-Briones factors); Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir.1996) ("The district court's failure to ... apply the correct legal standard and factors as announced in Pioneer constitute[s] an abuse of discretion.").
The district court conducted some analysis relevant to the Pioneer-Briones factors: the district court stated that the government would be unfairly prejudiced if the case were reopened, that the Lemoges' Motion came seven months after the case was dismissed, and that Caruana's explanations did not justify the significant passage of time before relief was requested. This discussion loosely fits within the framework of the first three Pioneer-Briones factors. But the district court did not conduct any analysis relevant to the fourth factor, good faith.
We have recognized that when a district court does not address good faith when conducting the Pioneer-Briones analysis, it may result in an abuse of discretion. In Laurino, we reversed a district court's denial of Rule 60(b)(1) relief after noting that the district court did not apply the good-faith factor. 279 F.3d at 753-54. We concluded that the district court erred because, among other things, "the district court made no finding of bad faith." Id. at 754. Similarly, it was error for the district court here not to make a finding as to good faith, one of only four factors detailed by the Supreme Court for analysis.
Because the standard under Rule 60(b) is an equitable standard, see Briones, 116 F.3d at 381, it may follow that in some circumstances a district court may satisfy the standard even though omitting to discuss some specified factor. However, we conclude that it will always be a better practice for the district court to touch upon and analyze at least all four of the explicit Pioneer-Briones factors, namely: "(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman, 231 F.3d at 1223-24 (citing Pioneer, 507 U.S. at 395, 113 S. Ct. 1489).
Not discussing good faith here does not seem to us to be an irrelevancy. It is difficult to even assess whether this case is close without knowing whether Caruana acted in good faith in connection with his delays and with his explanations that attributed the delays to his own injury. District courts should be advised in all cases considering a Rule 60(b) motion that it will be helpful to their analysis and important to ours on appeal if they articulate a complete analysis of all the factors that the Supreme Court has declared relevant. Doing so will make clear the basis of the district court's Rule 60(b) determination and will aid our review. Cf. United States v. Taylor, 487 U.S. 326, 336-37, 108 S. Ct. 2413, 101 L. Ed. 2d 297 (1988) ("Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review. Only then can an appellate court *1195 ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent....").
Moreover, in the circumstances of this case, we think that the district court also erred in its analysis of prejudice by not considering the prejudice the Lemoges would suffer if they were denied relief. In Pioneer, the Supreme Court stated that "all relevant circumstances" must be considered. 507 U.S. at 395, 113 S. Ct. 1489. We stated in Briones that "[t]hese four enumerated factors" are "not an exclusive list." 116 F.3d at 381. Although prejudice to the movant is not an explicit Pioneer-Briones factor, and is not a factor that we think should be assessed in each and every case evaluating a Rule 60(b) motion, prejudice to the movant, in a case such as that before us, is one of the "relevant circumstances" that should be considered when evaluating excusable neglect.
It is worth noting that there is always prejudice to a movant whenever an untimely complaint is rejected, as for example when that is required by a statute of limitations. In such a case, the established law reflects a balance between the needs of society for dispute resolution in a specified period and the needs of parties for justice, and lateness cannot be excused merely because the movant is prejudiced. However, unlike a statute-of-limitations standard, the standard for permissibly expanding the period for service under Rule 4(m) has embedded within it a concern for prejudice to the movant. We have in a prior decision expanded the scope of the "prejudice" inquiry when conducting analysis under Rule 4(m) to include the prejudice that would be suffered by a plaintiff in the event of a dismissal for failure to timely serve:
The prejudice inquiry might also include consideration of what prejudice the plaintiff ... would suffer if the case were dismissed. A dismissal for untimely service is required to be a dismissal without prejudice.... It is conceivable... that prejudice might result from a dismissal without prejudice if, for example, the statute of limitations had expired. The existence of prejudice of this kind could affect what action a court might choose to take in response to untimely service of process.
United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 772 (9th Cir. 2004). Thus, relief under Rule 4(m) "may be justified, for example, if the applicable statute of limitations would bar the re-filed action." Fed.R.Civ.P. 4, Advisory Committee Note to 1993 Amendments, Subdivision (m).
We hold that at least where the movants' Rule 60(b)(1) motion (1) seeks to set aside a dismissal that arises from noncompliance with Rule 4(m), (2) the movants cannot re-file their action because the statute of limitations has run, and (3) there is no or only slight prejudice to the opposing party if relief is granted, the district court should consider, and give appropriate weight to, the movants' prejudice if relief is denied. Here, the district court acknowledged the Lemoges' argument that they would be prejudiced by the denial of relief because they would be barred by the statute of limitations from re-filing their action. But the district court neither considered prejudice to the Lemoges in its analysis of prejudice, nor gave it any apparent weight.
B
Turning to its application of the specific Pioneer-Briones factors, the district court in our view erred by concluding that the Lemoges did not establish excusable neglect sufficient for relief under Rule *1196 60(b)(1). First, the government would not be prejudiced if the Lemoges were granted relief; instead, the Lemoges would suffer the "ultimate" prejudice absent relief because the statute of limitations on their claim has run. Second, the length of the delay was not unreasonable given the circumstances. Third, Caruana offered credible reasons for the delay. Fourth, there is no indication that Caruana or the Lemoges acted in bad faith.
As to the first factor, prejudice, the district court accepted the government's representation that absent the dismissal, the government would have approached the Granite State Action differently and would likely not have settled with Granite State. The district court erred in concluding that the government would be prejudiced on this basis if relief were granted.
Prejudice requires greater harm than simply that relief would delay resolution of the case. TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir.2001) ("[M]erely being forced to litigate on the merits cannot be considered prejudicial for purposes of lifting a default judgment."). The government offered no argument for how it would be prejudiced other than its claim that it likely would not have settled, and would have approached differently, the Granite State Action if it knew the litigation concerning the Lemoges' action would continue. The government does not indicate how it would have changed its strategy in the Granite State Action, or that a different strategy would have benefitted the government. As the government settled the Granite State Action, the government must have thought that payment of the settlement sum was a better deal for it than taking a chance litigating the dispute. The government's bare assertions do not establish prejudice, particularly in light of the nature of California workers' compensation law. Under California workers' compensation law, an employer's insurer's recovery is limited to workers' compensation benefits paid or owed. See Engle v. Endlich, 9 Cal. App. 4th 1152, 12 Cal. Rptr. 2d 145, 156 (1992). If an employer's insurer recovers workers' compensation benefits, this sum cannot be recovered by an employee in a separate suit. See Demkowski v. Lee, 233 Cal. App. 3d 1251, 284 Cal. Rptr. 919, 923-925 (1991). Thus, double recovery of workers' compensation benefits cannot occur if the Lemoges' action is reopened. Id. The government has pointed to no tangible harm that it will suffer if the Lemoges are granted relief.
Prejudice to the Lemoges if relief is denied is also an important consideration under these circumstances. The Lemoges' Rule 60(b)(1) motion seeks to set aside a dismissal for non-compliance with Rule 4(m)'s service requirements. The Lemoges cannot re-file their action because the statute of limitations has run. And the government will not be prejudiced if the Lemoges are granted relief. In contrast to the lack of prejudice to the government if the Lemoges are granted relief, the Lemoges will suffer substantial prejudice absent relief because they cannot re-file their action. Indeed, the Lemoges would endure the ultimate prejudice of being forever barred from pursuing their claims.
As to the second factor, the length of the delay, Federal Rule of Civil Procedure 60(c) requires that a Rule 60(b) motion be made "within a reasonable time" and "no more than a year after the entry of the judgment or order or the date of the proceeding." "What constitutes `reasonable time' depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties." Ashford v. Steuart, *1197 657 F.2d 1053, 1055 (9th Cir.1981) (per curiam).
The Lemoges' Motion was brought within a year of the dismissal and within a reasonable amount of time. The Lemoges sought relief about seven months after the case was dismissed. According to the district court, in spite of Caruana's third surgery in November, he should have been able to tend to his law practice by, at the latest, March 2008, but did not bring the Motion until May. Under the district court's view, Caruana waited at least two months after he should have been able to return to his law practice before filing the Motion. But this delay is insubstantial when viewed in light of Caruana's traumatic medical issues that still afflicted him as of the time of the hearing. Caruana testified at the hearing that while his most recent surgery was in November 2007, the surgeries were ongoing and he was still experiencing swelling. It is understandable that, as a sole practitioner, it would take Caruana months to get back on his feet and to catch up on the status of his cases while recovering from surgery. Under the totality of the circumstances, the Lemoges brought the Motion within a reasonable time.
As to the third factor, the reason for the delay, the district court erred in its conclusion that Caruana did not provide adequate reasons for the delay. Caruana's inability to identify the correct agency to serve may have been negligent, and seriously so, but it was nonetheless, in the circumstances here, excusable negligence if merely a good-faith mistake. Caruana's June 2007 letter to the Navy, sent before his medical problems arose, demonstrates that he was trying to ascertain how to successfully prosecute the Lemoges' FTCA claim. The district court noted that Caruana "was expressly informed by letter dated September 5, 2007 ... [that] the proper agency for service of any civil complaint was the United States Attorney's Office" and was later notified through the district court's order to show cause that service had not been completed. But Caruana's medical problems, which the district court accepted, explain why Caruana did not review the Navy attorney's September 5, 2007, letter, why he did not respond to the district court's order to show cause, and why he did not file the Motion until seven months after the case had been dismissed. There is no question that Caruana could have handled his practice better, but under the circumstances, Caruana provided adequate reasons for the delay.
As to the fourth factor, good faith, the district court did not discuss this factor. We conclude that "there is no evidence that [Caruana] acted with anything less than good faith. His errors resulted from negligence and carelessness, not from deviousness or willfulness." Laurino, 279 F.3d at 753 (quoting Bateman, 231 F.3d at 1225). The government argues that even though the district court did not discuss good faith, we should infer that the district court believed that Caruana failed his clients by not diligently pursuing his cases. The government's argument is misplaced. The district court merely concluded that Caruana did not provide an adequate reason for not diligently prosecuting the Lemoges' action. See id. We do not infer from this that the district court found that Caruana acted in bad faith. To the contrary, the district court appeared to be sympathetic to the injured status and situation of Caruana. The district judge stated at the hearing, "I hate to sound like I am hard hearted about [granting relief], but ... I just [don't] think [the legal standard] can be met in this case." If any inference at all can be drawn, it would be that the district court did not think that Caruana acted in bad faith, but felt compelled, *1198 erroneously, to deny relief on other grounds.
In sum, we conclude that under the total circumstances, the Lemoges have demonstrated excusable neglect. We therefore reverse the district court's denial of the Rule 60(b)(1) Motion and consequent continued dismissal of the case because the complete test from Pioneer-Briones was not recognized by the district court and because each of the Pioneer-Briones factors, as we consider this appeal, weighs in favor of granting relief to the Lemoges.
III
The district court, having concluded that the dismissal should stand, did not reach the issue of whether time should be extended to allow the Lemoges an opportunity to serve the summons and complaint. Federal Rule of Civil Procedure 4(m) governs this inquiry and provides as follows:
If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of good cause. In re Sheehan, 253 F.3d 507, 512 (9th Cir.2001).[3] The second is discretionary: if good cause is not established, the district court may extend time for service upon a showing of excusable neglect. Id. at 512, 514. Exercise of discretion to extend time to complete service is appropriate when, for example, a statute-of-limitations bar would operate to prevent re-filing of the action. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007); see also 2,164 Watches, 366 F.3d at 773. The Lemoges have established excusable neglect and concede that they are time-barred from re-filing their action and would be prejudiced if they could not complete service. Therefore, we conclude that relief under Rule 4(m) is appropriate and on remand should be granted.
IV
The district court abused its discretion by applying the wrong legal standard. Proper application of the Pioneer-Briones excusable-neglect analysis under Rule 60(b)(1) requires consideration of all four factors and also requires giving proper weight to the movants' prejudice under the circumstances presented by this case. The Lemoges have demonstrated excusable neglect under Pioneer-Briones and the dismissal should be set aside on that basis. Furthermore, because the statute of limitations has run preventing the Lemoges from re-filing their action, extending time to complete service under Rule 4(m) is appropriate. On remand, the district court is instructed to grant the Lemoges' Motion and enter an order providing the Lemoges a reasonable amount of time to serve the government with the summons and complaint.
REVERSED and REMANDED.
NOTES
[*] The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
[1] In assessing the issues concerning the Rule 60(b) motion, and whether the district court abused its discretion in denying relief, we accept the Lemoges' factual allegations. See Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir.2002).
[2] In our recent en banc decision in United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc), we refined and restated our test for abuse of discretion as comprising a two-step inquiry. First, we "determine de novo whether the trial court identified the correct legal rule to apply to the relief requested." Id. at 1261. If the trial court did not identify the correct legal standard, it is an abuse of discretion. Id. Second, a trial court abuses its discretion if its "application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record." Id. (quotations and citation omitted).
[3] Good cause to avoid dismissal may be demonstrated by establishing, at minimum, excusable neglect. See Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991). In addition to excusable neglect, a plaintiff may be required to show the following factors to bring the excuse to the level of good cause: "(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed." Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2144709/ | 80 Cal. App. 3d 500 (1978)
145 Cal. Rptr. 608
GLEN O. ARBAUGH, Plaintiff and Respondent,
v.
PROCTER & GAMBLE MANUFACTURING COMPANY, Defendant and Appellant; TRANSPORT INDEMNITY COMPANY, Intervener and Respondent.
Docket No. 51133.
Court of Appeals of California, Second District, Division Three.
April 27, 1978.
*502 COUNSEL
Fernandes & Le Berthon and James Fernandes for Defendant and Appellant.
Lascher & Wilner, Lowen H. Stanley and Edward L. Lascher for Plaintiff and Respondent.
Lascher & Wilner, Gerald G. Reppetto, Dryden, Harrington & Swartz and Peter Abrahams for Intervener and Respondent.
*503 OPINION
GOERTZEN, J.[*]
Defendant Procter & Gamble Manufacturing Company (hereinafter defendant) appeals from a judgment entered in favor of plaintiff Glen O. Arbaugh (plaintiff) and plaintiff-in-intervention Transport Indemnity Company (intervener).
Plaintiff brought this action against defendant to recover damages for personal injuries he sustained at a warehouse owned by defendant while in the course of his employment for Signal Trucking Co. (Signal). The intervener herein was Signal's workers' compensation insurance carrier at the time of the accident. Also named in plaintiff's action was Thompson Brothers, Inc., another trucking company which operated within defendant's warehouse; plaintiff and intervener both eventually settled with Thompson Brothers, however, and the action was dismissed as to that defendant.
FACTS[1]
On November 5, 1971, plaintiff was working at defendant's Long Beach warehouse and soap loading dock while employed by Signal as a "spotter." Plaintiff's duties consisted of backing empty truck trailers up to the loading dock in their proper position (spotting) and then towing them away after they had been loaded.
After a trailer had been backed against the loading dock, the tractor would be disengaged so that it could be used to move other trailers. When this was done, a device known as a "nose cone" would be placed beneath the front end of the trailer to prevent it from tipping during the loading process. This device, which stood approximately 38 or 39 inches in height, consisted of a metal pipe rising vertically from the center of a horizontal truck wheel rim.
*504 While the handling of nose cones was primarily the responsibility of Signal employees, defendant's employees also occasionally moved them. Employees were instructed to place nose cones which were not in use against the loading dock wall because of the safety hazard they represented. Despite this policy, nose cones were frequently left standing on the cement apron which led up to the loading dock in order to allow easy access to them.
On the day in question, plaintiff was seriously injured when his right foot landed on a misplaced nose cone as he was descending from a tractor-trailer which he had spotted at defendant's loading dock.
Plaintiff's action against defendant was based on theories of negligence, negligent maintenance of property, and breach of duty by a "statutory employer."[2] A bifurcated jury trial resulted in a special verdict wherein the jury determined that defendant and plaintiff's employer, Signal, had both been negligent, apportioning the negligence 50 percent to each; the jury found that plaintiff had not been negligent in caring for his own safety. The jury then awarded damages to plaintiff in the sum of $340,000 which included $44,836.17 in workers' compensation benefits which had previously been paid to plaintiff by intervener.
The court subsequently entered judgment against defendant and in favor of plaintiff in the sum of $294,163.83, and in favor of intervener in the sum of $21,918.08, the details of which are set forth infra.
CONTENTIONS
Defendant makes the following contentions:
1. The court erred in its apportionment of the damages between defendant and plaintiff's employer (as represented herein by intervener);
2. The evidence was insufficient to support the verdict that plaintiff had not been negligent;
3. The court erred in instructing the jury;
4. Plaintiff's and intervener's counsel engaged in prejudicial misconduct in their arguments to the jury.
*505 DISCUSSION
We find that defendant's last three contentions lack substantial merit and therefore affirm the judgment insofar as it adjudges defendant liable to plaintiff for his injuries. We conclude, however, that the court erred in allowing the intervener any recovery on its claim for reimbursement of workers' compensation benefits paid since the amount of total damages which could be attributed to the negligence of plaintiff's employer was greater than the sum of those payments.
1. Apportionment of Damages
The judgment entered by the court was determined as follows: The $340,000 damage figure arrived at by the jury was reduced by $44,836.17, the amount of workers' compensation benefits paid by the intervener; this sum was further reduced by $1,000, representing the amount received by plaintiff in settlement with Thompson Brothers, resulting in a judgment for plaintiff in the sum of $294,163.83. The court then entered judgment for intervener in the sum of $21,918.08, representing 50 percent (the percentage of negligence attributable to plaintiff's employer) of its lien claim for $44,836.17, minus $500 previously received by intervener from Thompson Brothers.[3]
Defendant contends that the court's apportionment of damages was in error insofar as it (1) failed to limit defendant's liability to 50 percent of plaintiff's damages, the proportionate share of defendant's fault; and (2) permitted intervener a reimbursement on its lien for compensation benefits paid when that lien represented less than 50 percent of plaintiff's total damages.
Defendant's contention is based primarily on the holding in Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R. 3d 393], which abrogated the doctrine of contributory negligence previously followed in this state in favor of a system of pure comparative negligence, whereby "liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault." (Id., at p. 813; fn. omitted.)
(1) Defendant's argument that it should have been held liable for no more than 50 percent of plaintiff's damages is untenable, however, in *506 light of the recent decision in American Motorcycle Assn. v. Superior Court (1978) 20 Cal. 3d 578 [146 Cal. Rptr. 182, 578 P.2d 899], wherein our Supreme Court held that the adoption of comparative negligence by this state did not compel the abandonment of the well-established doctrine of joint and several liability. As stated by the court: "... our adoption of comparative negligence to ameliorate the inequitable consequences of the contributory negligence rule does not warrant the abolition or contraction of the established `joint and several liability' doctrine; each tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury." (Id., at p. 583.)
We note that it had been suggested previous to the decision in American Motorcycle that even if the courts chose to retain joint and several liability after Li, actions in which an employee injured in the course of his employment sues a responsible third party (the so-called third party suit) could be distinguished and treated differently. (Note, Third Party and Employer Liability After Nga Li v. Yellow Cab Company for Injuries to Employees Covered by Workers' Compensation (1977) 50 So.Cal.L.Rev. 1029, 1039.)
The reason for distinguishing such cases is not difficult to discern. In most third party suits, the employee has also made a claim for workers' compensation benefits from his employer, which benefits figure prominently in the determination of how damages should be allocated among the respective parties. Workers' compensation benefits are the product of a statutory system of employer liability not dependent upon proof of fault. (Cal. Const., art. XIV, § 4.) With certain exceptions not here relevant, an injured employee's only remedy against his employer is a claim for workers' compensation; thus, the employer is generally immune from tort liability. (Lab. Code, § 3601, subd. (a).) (2a) Furthermore, unless there is a written agreement to the contrary, an employer is not obligated to indemnify a third party who has been found liable to an employee who was injured as the result of the joint negligence of the employer and the third party. (Lab. Code, § 3864.) The adoption of comparative negligence in Li did not alter this last rule. (E.B. Wills Co. v. Superior Court (1976) 56 Cal. App. 3d 650 [128 Cal. Rptr. 541].)
As a result of the above, the retention of joint and several liability in third party suits can produce the type of inequitable apportionment of damages apparent in the case at bench. Here, both defendant and Signal were found to be 50 percent negligent in causing plaintiff $340,000 in *507 damages. In absolute terms, each party's liability should have been $170,000. Yet, because Signal's liability was limited to workers' compensation benefits, which in this case totaled $44,836.17, the application of the rule of joint and several liability leaves defendant with a disproportionate share of damages to pay if plaintiff is to be fully compensated for his injuries.
(3) We note that the court in American Motorcycle sought to avoid some of the inequities resulting from the retention of joint and several liability after Li by modifying the all-or-nothing rule of equitable indemnity previously followed in this state so as "to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis." (American Motorcycle Assn. v. Superior Court, supra, 20 Cal. 3d 578, 599.) As stated in the opinion, "`[t]here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were ... unintentionally responsible, to be shouldered onto one alone, ... while the latter goes scot free.'" (Id., at p. 608, quoting Prosser, Law of Torts (4th ed. 1971) § 50, p. 307.) (2b) The instant defendant, however, is not aided by the extension of the equitable remedy since, as the court recognized in a footnote, "... Labor Code section 3864 would normally preclude a third party tortfeasor from obtaining indemnification from the employer, even if the employer's negligence was a concurrent cause of the injury." (Id., at p. 607, fn. 9; see E.B. Wills Co. v. Superior Court, supra, 56 Cal. App. 3d 650, 653-655.) Nevertheless, it is implicit from the court's failure to otherwise distinguish third party suits that the inability of a third party tortfeasor to secure indemnification from a concurrently negligent employer will not prevent that third party from being held individually liable to an injured employee.
Other considerations compel this conclusion. First, the replacement of contributory negligence with a system of comparative fault was occasioned primarily by the recognized unfairness of preventing plaintiffs who were negligent in caring for their own safety from obtaining any recovery from other negligent parties; the impetus for the adoption of comparative negligence was not the desire to protect defendants from the consequences of their tortious acts. (See American Motorcycle Assn. v. Superior Court, supra, 20 Cal. 3d 578, 589-590; Li v. Yellow Cab Co., 13 Cal. 3d 804, 809-812 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R. 3d 393].) Second, our Legislature has determined that a plaintiff injured in the course of his employment through the negligence of a third party should be entitled to recover "all damages" (Lab. Code, § 3852), and has further *508 recognized a plaintiff's right "to satisfy a judgment in full as against any tortfeasor judgment debtor" (Code Civ. Proc., § 875, subd. (g)). To deny application of the joint and several liability rule in third party actions would contravene these expressions of legislative intent by depriving some plaintiff-employees of maximum recovery for their injuries.
(4) Defendant's contention that the intervener should have been denied any reimbursement for compensation benefits previously paid has considerably more merit. Pursuant to Labor Code sections 3852, 3853, and 3856, subdivision (b), an employer or his compensation insurance carrier may recover from the total damages awarded to an injured employee in an action against a third party tortfeasor any compensation benefits paid to the employee. In Witt v. Jackson (1961) 57 Cal. 2d 57 [17 Cal. Rptr. 369, 366 P.2d 641], however, the Supreme Court held that a concurrently negligent employer would be precluded from any reimbursement for compensation benefits previously paid an injured employee in order to prevent the employer from taking advantage of his own wrong (id., at p. 72); the amount of benefits paid the employee would have to be subtracted from his total damages, though, to prevent a double recovery (id., at p. 73). (See also Roe v. Workmen's Compensation Appeals Board (1974) 12 Cal. 3d 884, 887 [117 Cal. Rptr. 683, 528 P.2d 771].)
It is apparent that the all-or-nothing approach of Witt v. Jackson is inconsistent with the holding in Li that liability should now be apportioned according to fault. (Li v. Yellow Cab Co., supra, 13 Cal. 3d 804, 813.) The defense of employer's contributory negligence previously available to a third party tortfeasor must therefore give way to a system which allocates responsibility for damages owing to an injured employee on a comparative fault basis.
We conclude, however, that the approach taken by the trial court to determine the amount of reimbursement due the intervener was improper here since it unnecessarily exaggerated the already inequitable apportionment of damages which resulted from the application of comparative negligence principles to a third party suit. In this type of case, the third party tortfeasor should be required to reimburse the employer or his insurance carrier for compensation benefits paid only to the extent that such benefits have exceeded the proportionate share of damages attributable to the employer's negligence. Under this method of apportionment, the employer is liable for either the total amount of workers' compensation benefits paid or the difference between the third party's proportionate share of liability and the employee's total damages, *509 whichever is less. (See Note, supra, 50 So.Cal.L.Rev. 1029, 1045-1051.) This approach is thus in accord with the concern shown by the court in American Motorcycle that the entire burden of a loss for which two or more defendants were responsible should not be shouldered by one alone. (American Motorcycle Assn. v. Superior Court, supra, 20 Cal. App. 3d 578, 608.) Furthermore, implementation of the above-described rule will not contravene the policies of the workers' compensation system: employer liability will still be limited to the payment of compensation benefits (Lab. Code, § 3601, subd. (a)), while the employer's incentive for maintaining safe working conditions will be reinforced (Lab. Code, § 6400 et seq.).
In the case at bench, both defendant and Signal were found to be 50 percent negligent in causing plaintiff $340,000 in damages. Since compensation benefits paid by the intervener on behalf of Signal have so far amounted to only $44,836.17, which is less than 50 percent of plaintiff's total damages, intervener should have recovered nothing on its lien.[4]
2. Sufficiency of the Evidence to Support the Jury's Finding That Plaintiff Was Not Himself Negligent
Defendant contends that plaintiff was negligent in caring for his own safety as a matter of law. Its argument is as follows: (a) plaintiff, based on his long experience on the job, should have been well aware of the possible presence of nose cones near the parked trucks; (b) the cones were obvious to anyone who looked for them; (c) plaintiff, who apparently was not distracted, was negligent in failing to check the area where his feet were to land for the presence of nose cones prior to *510 descending from his tractor, as a reasonably prudent person would have done.
Plaintiff testified that when he approached the loading dock with his truck, he saw a nose cone near a trailer which had already been spotted, as well as several other nose cones scattered about the area. After spotting his trailer, plaintiff dismounted by emerging from the tractor's door backwards, stepping on the running board and the front tire, and then dropping to the ground a method he had used for seven and one-half years. A method of dismounting suggested by counsel for defendant, in which the tractor's battery box would be used as a stepping point, was claimed by plaintiff to be both dangerous and impractical. Plaintiff testified on direct examination that he had looked down before stepping off the tractor, but saw nothing in the area where he was going to land, although he later stated on cross-examination that he was not sure whether he had, in fact, checked the area.
(5) Negligence on the part of the plaintiff is not established as a matter of law unless the only reasonable hypothesis is that such negligence existed. (Mark v. Pacific Gas & Elec. Co. (1972) 7 Cal. 3d 170, 180 [101 Cal. Rptr. 908, 496 P.2d 1276]; Evans v. Thomason (1977) 72 Cal. App. 3d 978, 986 [140 Cal. Rptr. 525].) When two or more inferences can be drawn from the evidence, the question of plaintiff's negligence is one for the trier of fact and the reviewing court may not substitute its judgment for that reached at trial. (Mark v. Pacific Gas & Elec. Co., supra; Callahan v. Gray (1955) 44 Cal. 2d 107, 111 [279 P.2d 963].) Although it may not have been the only inference permissible, we conclude that there was substantial evidence to support the jury's determination that plaintiff had not conducted himself in a negligent manner; this court is therefore powerless to decide otherwise. (Stevens v. Parke, Davis & Co. (1973) 9 Cal. 3d 51, 63-64 [107 Cal. Rptr. 45, 507 P.2d 653]; Metzger v. Barnes (1977) 74 Cal. App. 3d 6, 9-10 [141 Cal. Rptr. 257].)
3. Alleged Error in Instructions
At the conclusion of the liability portion of this bifurcated trial, the jury was instructed according to former BAJI No. 8.33 (5th ed., 1975 pocket pt.), which the court modified to read in pertinent part:
"An owner of property in control of premises where work is being done by employees of a contractor is an employer subject to the duty imposed *511 by the Labor Code ... to comply with the applicable safety provisions thereof.
"Where the owner retains only the right of general supervision over the premises to bring about a satisfactory completion of a contract, he is not an employer subject to the duties imposed by the Labor Code."
The jury was then read several sections of the Labor Code pertaining to the duty of an employer to provide a safe place to work. (Former Lab. Code, §§ 6400-6404, repealed by Stats. 1973, ch. 993, § 93, p. 1938, effective Oct. 1, 1973; replaced by Stats. 1973, ch. 993, § 96, p. 1939.)[5]
Finally, the jury was read the following modified version of BAJI No. 3.45 (6th ed. 1977): "If you find that Defendant Procter & Gamble or Plaintiff Arbaugh's employer, Signal Trucking, violated provisions of the Labor Code, just read to you, and that such violation was a proximate cause of the injury to Plaintiff, you will find that such violation was negligence unless such party proves by a preponderance of the evidence that it did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law."
After the jury had been thus instructed, defendant requested the trial judge in chambers to modify the last instruction, BAJI No. 3.45, so as to make it explicit that the jury was not to consider the Labor Code safety provisions in its determination of defendant's liability unless it first found that defendant had retained control over the premises where plaintiff suffered his injury. Defendant contends on appeal that the instructions were misleading as given and prejudiced defendant's ability to establish its defense that it had turned over control of the premises to plaintiff's employer. This contention lacks merit.
(6) Without considering plaintiff's argument that defendant's objection to the instructions came too late and that plaintiff would have been *512 prejudiced by any modification of the instructions already given, we conclude that the instructions, read as a whole, were not misleading and instructed the jury fairly on the law then applicable. As was stated in Yecny v. Eclipse Fuel Engineering Co. (1962) 210 Cal. App. 2d 192, 199 [26 Cal. Rptr. 402]: "If the instructions harmonize as a whole and fairly and accurately state the applicable law, a reversal may not be had because of verbal inaccuracies or because a separate instruction does not contain all of the elements which are to be gathered from the instructions as a whole." (See Valdez v. J.D. Diffenbaugh Co. (1975) 51 Cal. App. 3d 494, 511 [124 Cal. Rptr. 467]; Rodgers v. Kemper Constr. Co. (1975) 50 Cal. App. 3d 608, 630 [124 Cal. Rptr. 143].)
Here, the jury was instructed in former BAJI No. 8.33 that the Labor Code provisions would be applicable against defendant only if defendant was found to have been in control of the premises at the time of plaintiff's accident; it must be presumed that they followed this instruction before considering whether defendant had violated those provisions, as BAJI No. 3.45 then asked them to do.
4. Misconduct of Counsel
(7) Defendant's final contention is that plaintiff's and intervener's counsel improperly referred to the relative economic statuses of plaintiff and defendant in their arguments to the jury in an effort to obtain a "sympathy verdict." As plaintiff has correctly pointed out, many of the examples of alleged misconduct set forth in defendant's opening brief do not accurately reflect the true state of the record below. In any event, defense counsel failed to utter one objection to the allegedly prejudicial arguments or to seek a jury admonition; as such, defendant's claim of misconduct is not cognizable on appeal. (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal. 3d 285, 303 [85 Cal. Rptr. 444, 466 P.2d 996]; Brokopp v. Ford Motor Co. (1977) 71 Cal. App. 3d 841, 859-860 [139 Cal. Rptr. 888]; Neumann v. Bishop (1976) 59 Cal. App. 3d 451, 468, fn. 3 [130 Cal. Rptr. 786].)
Since we have determined that defendant's contentions are not entirely meritless, we decline to impose sanctions for a frivolous appeal as requested by plaintiff.
That portion of the judgment awarding the plaintiff $294,163.83 as against defendant is affirmed; the portion of the judgment awarding intervener $21,918.08 on its complaint-in-intervention against defendant *513 is reversed. Plaintiff shall recover his costs on appeal from defendant. As between defendant and intervener, defendant shall recover from intervener 50 percent of its costs incurred in the preparation of the record on appeal, with each party otherwise bearing its own costs.
Potter, Acting P.J., and Allport, J., concurred.
The petition of the intervener and respondent for a hearing by the Supreme Court was denied June 22, 1978.
NOTES
[*] Assigned by the Chairperson of the Judicial Council.
[1] Plaintiff complains that defendant's opening brief fails to conform with California Rules of Court, rule 15(a) (requiring that the brief make "appropriate reference to the record") and rule 13 (requiring that the brief accurately state a summary of material facts and the record below). Such failure may constitute a waiver of error. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 881 [92 Cal. Rptr. 162, 479 P.2d 362]; Harbor Ins. Co. v. Resolute Ins. Co. (1972) 23 Cal. App. 3d 190, 197 [99 Cal. Rptr. 916].) We agree that defendant's brief is less than a model of appellate practice, although it does, in fact, make some reference to the record below. In view of the thorough summary of facts given by plaintiff, we will disregard the defects in defendant's brief and consider the case on its merits. (Copfer v. Golden (1955) 135 Cal. App. 2d 623, 634-635 [288 P.2d 90]; see Walker v. Porter (1974) 44 Cal. App. 3d 174, 177 [118 Cal. Rptr. 468].)
[2] See former Labor Code section 6304, since amended (Stats. 1971, ch. 1751, § 2, p. 3780, operative Apr. 1, 1972) so as to make the term "statutory employer" no longer applicable.
[3] The court's apportionment of damages was consistent with the approach sanctioned by BAJI No. 15.14 et seq. (1977 Rev.). (See Use Note, BAJI (6th ed. 1977) pp. 672-679.)
[4] It is apparent from the above that the diverse purposes served by comparative negligence and workers' compensation make for a somewhat incongruous meshing of the two concepts in the third party suit. As stated by one commentator: "Because of the distinctive no-fault principles underlying workers' compensation law, and owing to the policy-oriented nature of the equitable, statutory and decisional rules controlling the workers' compensation/third-party liability situation, contemporary developments in negligence principles are not easily transferable from tort law to workers' compensation cases involving an employer or his insurance carrier's claim for reimbursement or credit. Workers' compensation principles do not lend themselves to the integration of the comparative negligence doctrine." (Comment, Workers' Compensation/Third-Party Law-suits: The Impact of the Li Comparative Negligence Doctrine (1977) 11 U.S.F.L.Rev. 541, 585.)
The Supreme Court may address itself to some of the problems raised by the application of comparative negligence theory to the third party suit in a case currently pending before it, Associated Construction & Engineering Co. v. Workers' Compensation Appeals Board (L.A. 30693, hg. granted Oct. 25, 1976). The primary issue in that case is whether the doctrine of comparative negligence can be applied to an employer's claim for credit in an appeals board adjudication. (See 41 Cal.Comp.Cases 507 (1976).)
[5] Had plaintiff's accident occurred after April 1, 1972, it would have been improper to instruct the jury concerning the possible application of these Labor Code provisions to defendant. Labor Code section 6304.5 provides in pertinent part: "Neither this division nor any part of this division [containing the Labor Code safety provisions referred to] shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action arising after the operative date of this section, except as between an employee and his own employer." (Added by Stats. 1971, ch. 1751, § 3, p. 3780, effective Apr. 1, 1972; see also fn. 2, ante.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3359598/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This is an appeal by the plaintiff Konover Development Corporation ("Konover") from the defendant Town of Windsor Planning Zoning Commission's denial ("Commission) of the plaintiff's applications for two special use permits and site plan approval for the proposed development of a 53,000 square feet "Big Y" supermarket. The plaintiff's appeal is brought pursuant to General Statutes § 8-8.
The following facts give rise to this appeal. Konover is in the business of developing and managing commercial shopping centers. It secured an option to purchase the property in question, consisting of approximately 15 acres of undeveloped land and a 3 acre parcel on which is situated the Old Town Plaza shopping center.1 In July, 1993, the Commission approved Konover's application for a change of zone for this property from an industrial zone to a B-2 business zone in which a shopping center is allowed by special permit.
In April, 1994, Konover filed Site Development Application No. 397; Special Use Application No. 449 and Special Use Application No. 449A. If approved, these applications would have permitted the construction of the "Big Y" grocery store. In June, 1994, the Commission conducted a public hearing on the Konover applications. In support of its applications Konover presented the expert testimony of an CT Page 10992 engineer, landscape designer, architect and a traffic consultant. Opponents of the proposal testified in opposition, expressing their concerns about the impact of the proposal on traffic, the surrounding neighborhood and its effect on downtown business. The Town Planner and the Town's Traffic Engineer recommended approval of the application subject to certain design modifications.
At the close of the hearing the Commission denied the application. The comments of the Commissioners indicate that the Commission's decision was based on traffic concerns and the combined negative effect of the proposal on the downtown area and uncertainty about the need for another supermarket in Windsor. This appeal followed. Konover claims that the Commission's decision denying both the special use applications and site plan approval was based on unlawful or improper considerations and is not supported by substantial evidence.
I. STANDARD OF REVIEW
A land use commission acts in its administrative capacity in its review of special permit and site plan applications.Housatonic Terminal Corporation v. Planning ZoningBoard of the City of Milford, 168 Conn. 304 (1975). If the applications meets the requirements of the pertinent zoning regulations, the reviewing board must grant the application.DeMaria v. Enfield Planning Zoning Commission, 159 Conn. 534,540 (1970). The commission must make a three part inquiry. It must determine whether the proposed use is expressly permitted under the regulations; whether the standards set forth in the regulations are satisfied and whether conditions necessary to protect public health, safety, convenience and property values can be established. Frito-Lay, Inc. v. Planning Zoning Commission, 206 Conn. 554 (1988). If the use is permitted and the conditions satisfied, the commission does not have the discretion to deny the application. Id. A denial of a special permit or site plan application must be based on substantial evidence. Connecticut Health Facilities, Inc. v.Zoning Board of Appeals, 29 Conn. App. 1 (1992). If the commission has stated the reasons for its decision, the reviewing court may consider only those reasons. If, however, the Commission does not state its reasons for denial, the court must search the record to determine if the denial is supported by substantial evidence. Sowin Associates v. Planning ZoningCommission, 21 Conn. App. 667 (1990). Review of the Commission's CT Page 10993 decision therefore requires a comparison of the specific criteria set forth in the applicable regulations for the granting of a special permit and the reasons given for the denial.
The property in question is in a B-2 zone. Under Regulation 5.2.6, certain B-2 uses are subject to the special use requirements at Regulation 2.4.4 Konover's proposal required two special use permit approvals. The first, application No. 449 or the site size special use, was required for "Developments on sites of more than two acres including larger single stores or other uses or shopping centers." The second application, No. 449A, was required for uses requiring parking otherwise prohibited in Section 5.2.2 provided such uses are in locations where the disruption to the retail frontage is not significant. Section 2.4.4 of the Regulations governs the granting or denial of special permits.
Although the letter from the Commission to the plaintiff denying its application did not formally state the reasons for the Commission's decision, the discussion by Commission members preceding the official vote reflects the basis for its decision. In particular, the comments of Commissioner Clark, who moved to deny the application, and the comments of Commissioner Fitzgerald were referenced as being the basis for the denial. Those reasons are deemed to be the basis for the Commission's decision, and the court will limit its review to those assigned reasons. DeMaria v. Planning and ZoningCommission, 159 Conn. 534, 541 (1970).
The Commission cited three reasons for its denial: traffic; the negative impact on the immediate community; and the lack of an urgent need for another supermarket coupled with the possible economic injury to an existing supermarket. Each of these reasons will be considered separately in conjunction with the relevant provisions of Section 2.4.4.
A. Traffic
Section 2.4.4 provides that a special use shall be granted only if the proposed use "is in accord with the public convenience, health safety and welfare after taking into account, where appropriate . . . [t]he resulting traffic patterns and adequacy of the street systems and other public facilities." CT Page 10994
Konover presented testimony demonstrating that (1) the traffic patterns will be superior to the existing patterns (2) the street system is adequate to support the increased traffic flow; (3) there is no heightened probability of accidents; and (4) the anticipated use is consistent with the recommendations of the Master Transportation Plan's use of Poquonock Avenue as an arterial street. These conclusions were supported by the town's traffic engineer who confirmed that his evaluation of Konover's proposal did not disclose any significant problems with respect to traffic patterns and the adequacy of the street system. In particular the engineer testified that sufficient capacity was available on Poquonock Avenue; that sight lines were adequate and that there were no accident problems at Hill Haven, the area in which the supermarket would be located.
In addition, a letter from Fuss O'Neill, consulting engineers, was read into the record. That letter indicated that Fuss O'Neill had reviewed the 1993 traffic impact study prepared by Konover's expert which addressed the potential traffic impact if the site were rezoned to accommodate the construction of a supermarket. Fuss O'Neill's report indicated that it "concurred with the methodologies and conclusions arrived at in the report but noted that some minor revisions could be made in the area of trip distribution and capacity analyses data input. However, these minor revisions would not alter the conclusions reached by Hesketh." The Fuss O'Neill report did note that development of the supermarket would substantially reduce the availability of future office space, but did not link that concern to any potential traffic flow problems.
Numerous opponents of the proposal testified. Many reside on Poquonock Avenue and expressed their deep concern about potential safety problems arising out of the increased traffic. In particular they noted that residents of Poquonock Avenue have great difficulty entering and exiting their driveways because of the steady flow of traffic. They observed that many drivers ignore the multiple lights on Poquonock Avenue creating many near accidents. The residents predicted that these problems would increase with the development of the supermarket
In denying plaintiff's application, the defendant, speaking through Commissioners Clark and Fitzgerald, cited CT Page 10995 traffic based concerns. Commissioner Clark noted that he had "a greater appreciation for the traffic in that area" than he had in the preceding year when the Commission approved plaintiff's zone change application. He also indicated it was his belief that the role of the Commission in reviewing a special permit application is to "lessen[ing] congestion in the streets." Finally, comparing plaintiff's application to the approval given for an Edwards supermarket, he observed that there was a "much heavier concentration of traffic than we had in the Kennedy Road area for the Edwards".
Commissioner Fitzgerald noted that under the applicable Regulations the question for the Commission was the effect of plaintiff's proposal on "existing traffic patterns and adequacy of the street system." Acknowledging that the Town Traffic Engineer reviewed plaintiff's application and endorsed it subject to minor modifications, he relied on his "common sense observation that Route 75 is limited in capacity and even though a pattern can be devised to get the cars in and out of the site", Route 75 might not be able to "carry that traffic."
§ 2.4.4 requires the Commission to determine whether the proposed use is consistent with the health, safety and welfare of the public, taking into account the "resulting traffic patterns and the adequacy of the street systems." As noted by Judge Fuller in his treatise, "the issue is whether the granting of the special permit will cause traffic congestion, not merely an increase in traffic in general." Fuller, Land UseLaw and Practice, § 49.13, p. 813 (1993).
The traffic reasons assigned by the Commission are inconsistent with the specific criteria set forth in § 2.4.4 C of the Regulations. While it is appropriate for the Commissioners to take into account their personal knowledge of the site; Moshe Felsman v. Zoning Commission, 31 Conn. App. 674
(1993); the reasons assigned by the Commission for denying the application are not based on "traffic patterns or the adequacy of the street systems" as required by § 2.4.4 of the regulations. Rather, as Commissioner Clark noted, he had "a greater appreciation of the traffic" than he had the previous year when he endorsed the zone change. He also referred to the Commission's obligation to "lessen congestion in the streets", a standard which is not set forth in § 2.4.4. Likewise, Commissioner Fitzgerald, while correctly noting that it was the Commission's obligation to evaluate existing traffic patterns and CT Page 10996 the adequacy of the street system, candidly acknowledged that, "I am generally skeptical about general complaints about traffic. We all generate traffic. If we live somewhere and if we work somewhere then we're driving around and we're somebody else's traffic problems at one point in the day. . ." In short, the traffic reasons cited by the Commission for denying plaintiff's application are not based on the specific standards set forth in § 2.4.4 of the Regulations. Neither the comments of the Commissioners nor an independent review of the record;Daughters of St. Paul, Inc. v. Zoning Board of Appeals,17 Conn. App. 53 (1988); reflects that the "resulting traffic patterns and adequacy of the street system" formed the basis of the Commission's denial. Accordingly, the Commission's denial of the plaintiff's application cannot be sustained based on the traffic related reasons cited by the defendant.
B. The Need For A Supermarket and Its Impact on the Community
§ 2.4.4 D of the Zoning Regulations requires the Commission to take into account "the public need of the proposed use or uses on the proposed site at the time of the application." In his comments Commissioner Fitzgerald considered the need for a new supermarket and the potential effect of the market on competitors:
I don't think we have to get into a situation where you have to pass marketing judgments on whether or not there's a need for the supermarket. I will say, however, I haven't seen demonstrated an urgent need for another supermarket but I don't think it's our, should be our focus to say "well, can a fourth supermarket make a go? What will its impacts be on other supermarkets?"
In his comments Commissioner Clark observed that the proposed impact could be "positive in this section of town", but wondered whether it could "have a negative impact at the center of town."
Various speakers echoed his concern, noting that the proposed market might have an adverse effect on a well established market in the center of town. These claims, however, were not supported by any evidence. On the other hand, Konover presented unrefuted evidence of the need for the supermarket in CT Page 10997 the proposed location.
In Nielsen v. Board of Appeals on Zoning, 129 Conn. 280,284 (1942), the Court ruled that, "The record shows that the court's decision was predicated upon the premise that the defendant's denial of the application was based upon the objections of competitors, which were not a `proper factor to be considered under the zoning act.' The court was correct in holding that the zoning authority has no right to regard the prevention of competition as a factor in administering the zoning law." Likewise, in this case, it appears that one of the bases for the defendant's denial of the plaintiff's application was its concern that the new market would negatively effect existing markets in the central business district. This is an improper basis for the denial of the application, and cannot be sustained. Id. Furthermore, the Commission never explicitly determined that, pursuant to § 2.4.4 D of the Regulations, the applicant did not demonstrate the "public need of the proposed use." At best, it determined that such a need existed, but it was not an "urgent" one. Accordingly, the Commission erred in denying the plaintiff's application on either the ground that the plaintiff had not demonstrated the need for the project or on the basis of its perceived negative impact on competitors.
Finally, the defendant Commission also denied application No. 449A based on the same "broad rationale as the prior motion". In addition, the Commission noted that without approval of No. 449, consideration and approval of No. 449A would be irrelevant. Because the Commission's decision denying application No. 449 cannot be sustained, its decision denying No. 449A on the same grounds is also erroneous.
For the foregoing reasons, the plaintiff's appeal is sustained and the matter is remanded to the Planning and Zoning Commission.
SO ORDERED.
Robert L. Holzberg, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3359600/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This is an action for dissolution of marriage and other relief brought to the Judicial District of Danbury.
Many of the facts that give rise to this action are not in dispute The plaintiff, whose maiden name was Susan Elizabeth Burnett, and the defendant, were married on December 7, 1969, in Reno, Nevada. The plaintiff has resided continuously in the State of Connecticut for at least twelve months immediately preceding the date the complaint was filed. The marriage between the parties has broken down irretrievably without any reasonable prospects of reconciliation. There are two children, issue of the CT Page 252-CC marriage, both of whom are now adults, Justin Ruttan and Evan Tyler Ruttan. No other minor children have been born to the plaintiff wife since the date of marriage of the parties, and neither party has received state assistance.
The parties are in dispute as to the cause of the breakdown of the marriage. From the evidence presented, the court finds that the major cause of the breakdown of the marriage is the defendant's adulteress relationship with another woman who he continues to live with at the present time. The defendant first became sexually active in August, 1993, with the woman he is now living with. The parties also had problems with communication with each other.
The plaintiff is in good health.
The plaintiff graduated from the University of California at Berkeley.
The plaintiff is presently employed by the Brewster Central School District as a teacher. Her gross weekly income is $1,172.34. Her annual income is $60,961. She has not had any salary increases in the past two years. Her net weekly income is $483.06.
The plaintiff owns a 1995 Subaru with a value of $10,000, a CT Page 252-DD loan balance of $8368.98, and an equity of $1631.02. She owns a one-half interest in the camper, which one-half interest amounts to $375. She has bank accounts totaling $21,974.10. She has stocks with a value of $2600. She also owns a time-share with the defendant in Cancun with a total value of $8000. She has liabilities consisting of a personal loan against her New York State retirement of $9144.91, as well as attorney's fees.
When the parties married, they had more debts than assets.
The parties resided in Chico, California, when they were married. The plaintiff had already received her B.A. degree and was pursuing a degree in teaching. The defendant was teaching in California at the time the parties married. He had not received his teaching degree and it was not required at that time.
Approximately one year after the parties married, they left California and moved to the East Coast. They initially resided with the plaintiff's parents for approximately one year in New York State. After residing with her parents for approximately one year, they rented a small cottage in Carmel, New York, where they remained for approximately one year. They then purchased a home in Lake Carmel, New York. The home was not winterized and needed a substantial amount of renovations. They remained in that home for ten to eleven years. The parties totally stripped the inside CT Page 252-EE of the house to the shell and rebuilt it.
Both parties worked in renovating the home.
The parties moved from New York to New Fairfield, Connecticut, in 1985. The plaintiff was still employed at the parochial school at the time of this move. The children were approximately seven and nine years old at the time of the move. At the present time, the family home is under contract of sale. The defendant vacated the family home in early November of 1994.
There is a closing scheduled on the family home for January 30, 1997. The plaintiff has a tentative place to move to after the closing at a rental of $1100 a month, plus utilities, commencing February 1, 1997.
When the oldest child Justin was born in March, 1976, the parties agreed that since the defendant had a better paying job than the plaintiff, and that the plaintiff should remain at home to raise the child. The youngest child, Evan Tyler, was born July 17, 1978. The plaintiff did not return to full-time work until Tyler was almost in kindergarten. She did do some home tutoring for the Carmel School District prior to the time Tyler entered kindergarten. When the defendant was not at work, he shared equally with the plaintiff in the responsibility of raising the CT Page 252-FF children prior to the time she returned to full-time work.
The plaintiff commenced employment teaching at a parochial school in 1983. At that time, she had a provisional teaching certificate and had five years in which to get a teaching certificate and master's degree. She remained at the parochial school for five years until she obtained her teaching certificate and master's degree.
The plaintiff obtained her master's degree and permanent teacher's certificate in 1988.
Following graduation from college at the University of California at Berkeley and moving east, the plaintiff was employed at a plant research facility in Yonkers, New York, from the summer of 1968 to the summer of 1969. This was prior to the time the parties married. She then returned to California and enrolled in teaching courses with the intention of obtaining her teaching degree. After the parties moved to New York, the plaintiff obtained her first employment as a teacher's aide, where she remained for approximately one year.
The plaintiff was then employed at Reader's Digest for approximately four years on an on-again off-again basis. While employed at Reader's Digest, she held three separate positions. CT Page 252-GG She obtained her master's degree and teaching certificate in 1988. Her last year, working in the parochial school system, resulted in annual earnings of approximately $20,000. Her first year, working in the Brewster school system, had an annual salary of approximately $30,000. She will continue to receive step increases for the next four to five years at her present employment, with each step increase resulting in an annual salary increase of $1500. She can also take an additional thirteen credits for which she would receive compensation.
The defendant is in Good health.
The defendant's current gross annual salary is $85,617. His gross weekly income is $1646.48. His net weekly wage is $1111.86. He owns a 1993 Chevrolet with a value of $8000, a loan balance of $4800, and an equity of $3200. He owns a 1990 Subaru with a value of $6500, and no loan balance. He has bank accounts totaling $21,535.16. He has a 401K plan with an estimated value of $7000. He owns a 1986 camper with a one-half interest value of $375. He has liabilities for legal fees as well as a GM Mastercard and Bank One VISA.
The plaintiff and the defendant discussed the issue of the defendant's retirement. He has always wanted to retire at age fifty-five.
The present value of the defendant's defined pension benefit CT Page 252-HH plan for which he is vested is $439,259.01. The present value of the plaintiff's defined benefit pension plan is $29,015.83. The plaintiff commenced employment with the Brewster Central School District on September 1, 1988. She will not be vested until she is fifty-five years old, and has ten years of service. She was born on October 13, 1946, and is fifty years old. Her plan is a contributory plan. The plaintiff will not be vested in her plan until she has at least ten years of credited service. The defendant commenced employment with the Chappaqua School District on September 1, 1970. He became vested in the retirement plan after ten years of full-time service which was on September 1, 1980. His annual retirement benefit is $42,632.96, with a monthly benefit of $3552.75.
The defendant would be eligible to retire as of today's date, but would not commence to receive his pension pay until age fifty-five. He was born on December 12, 1944.
This court has considered the provisions of § 46b-82
regarding the issue of alimony, and has considered the provisions of § 46b-81 (c) regarding the issue of property division, and has considered the provisions of § 46b-62 regarding the issue of attorney's fees. The court enters the following orders.
ORDERS
CT Page 252-II
A. BY WAY OF DISSOLUTION
The marriage between the parties is dissolved, and each party is declared to be single and unmarried.
B. BY WAY OF ALIMONY
1. The defendant is ordered to pay to the plaintiff alimony in the amount of $190 weekly.
2. The provisions of § 46b-86 (a) and § 46b-86 (b) are applicable.
3. The retirement by the defendant at or after age fifty-five shall not be considered a voluntary reduction of earnings by him.
4. The retirement by the plaintiff at or after age sixty-two shall not be considered a voluntary reduction of earnings by her.
C. BY WAY OF PROPERTY ORDERS
1. The family home located at 14 Pheasant Drive, New Fairfield, Connecticut, has a fair market value based on the contract price of $202,200, and a mortgage of approximately CT Page 252-JJ $62,000. The family home is to be sold, and the net equity divided equally between the parties. The net equity is the sale price, less the mortgage, less any real estate tax adjustments, less the payment of the closing attorney's fees, and less the payment of any other taxes that have to be paid, as well as any other usual closing costs. Between now and January 30, 1997, the plaintiff is responsible for keeping the mortgage current. After January 30, 1997, in the event the home is not sold, the plaintiff is responsible for keeping the mortgage current during the period of time that she continues to occupy the family residence. After January 30, 1997, during the period of time that she does not occupy the family residence, the parties are to divide equally all expenses including mortgage and repairs for the family home.
2. The 1993 Chevrolet and 1990 Subaru are awarded to the defendant. He is to pay the loan balance on the 1993 Chevrolet and hold the plaintiff harmless therefrom.
3. The 1995 Subaru, shown on the plaintiff's financial affidavit, is awarded to the plaintiff. She is to pay the loan balance and hold the defendant harmless therefrom
4. All bank accounts shown on the plaintiff's financial affidavit are awarded to the plaintiff. CT Page 252-KK
5. All bank accounts shown on the defendant's financial affidavit are awarded to the defendant.
6. The plaintiff has TSA stocks, bonds and mutual fund with a total value of $2600. That asset is ordered divided equally between the parties.
7. The defendant has a 401K plan with an approximate value of $7000. That plan is ordered divided equally between the parties.
8. The 1986 camper is awarded to the defendant.
9. All liabilities shown on the plaintiff's financial affidavit are to be paid by the plaintiff, and she is to hold the defendant harmless therefrom.
10. All liabilities shown on the defendant's financial affidavit are to be paid by the defendant, and he is to hold the plaintiff harmless therefrom.
11. The court enters the following order regarding the defendant's defined benefit pension plan:
(a). The defendant, Daniel J. Ruttan (hereinafter CT Page 252-LL referred to as "member"), is a member of the New York State Teachers' Retirement System (hereinafter referred to as "NYSTRS"). Member's date of birth is December 12, 1944.
(b). The plaintiff, Susan E. Ruttan (hereinafter referred to as "alternate payee"), is the former spouse of member. Alternate payee's date of birth is October 13, 1946.
(c). Member's last known mailing address is:
Daniel J. Ruttan 1004 Kingsway Carmel, New York 10512
(d). Alternate payee's last known mailing address is:
Susan E. Ruttan 14 Pheasant Drive New Fairfield, Connecticut 06812
It is the responsibility of alternate payee to keep a current mailing address on file with NYSTRS at all times.
(e). At such time as member has retired from and is actually receiving a retirement allowance from the NYSTRS, CT Page 252-MM the said NYSTRS, in accordance with the Equitable Distribution Law, is directed to pay to the alternate payee a portion of the member's retirement allowance. Said portion is ascertained by redoing the allowance calculation that determined the member's retirement allowance, substituting the member's final average salary and total credited service as of the dissolution date in place of the member's actual final average salary and total credited service at retirement and multiplying the result by 50 percent. The term "retirement allowance," as used herein, shall be deemed to include any annuity as well as any supplemental retirement allowance which is paid by the said NYSTRS to member including any current or subsequent schedule or ad hoc increases. Any reduction to member's retirement allowance to provide the survivor option specified in paragraph (g) will also be applied in determining the alternate payee's option.
(f). The equitable distribution portion of member's retirement benefit, as set forth in paragraph (e), shall be payable to alternate payee and shall commence as soon as administratively feasible on or about the date the member actually enters pay status and NYSTRS approves a Domestic Relations Order incorporating this stipulation and agreement, whichever is later.
(g). This order mandates the member must choose a CT Page 252-NN survivor option (as permitted by the NYSTRS) that ensures that the alternate payee (whoever member shall nominate as beneficiary or widow, if that term is more appropriate) will receive the amount as set forth in paragraph (e), adjusted as set forth below, as annuity to the alternate payee if predeceased by member.
In addition, member shall execute to alternate payee an authorization, in a form acceptable to NYSTRS, which will authorize NYSTRS to release to alternate payee all information concerning member's retirement benefits.
Any remaining or other death benefits may be paid to member's then spouse or other beneficiary as allowed under the NYSTRS.
(h). It is specifically intended that nothing in this order shall in any way require the NYSTRS to provide any form, type or amount of benefit, or any option not otherwise provided under its terms, not otherwise available by law. The NYSTRS shall have no obligation or responsibility as a consequence of this action apart from the specific directions contained in this order.
(i). This order shall be approved, adopted and entered CT Page 252-OO as a Domestic Relations Order.
(j). The Superior Court of Danbury shall retain jurisdiction to amend this Domestic Relations Order but only for the purpose of establishing it or maintaining it as a Domestic Relations Order provided, however, that no such amendment shall require NYSTRS to provide any type or form of benefit, or any option not otherwise provided by NYSTRS, and further provided that no such amendment or right of the court to so amend will invalidate this existing order.
(k). Upon entry as a Domestic Relations Order, a certified copy of the Domestic Relations Order and any attendant documents shall be served upon NYSTRS immediately. The Domestic Relations Order shall take effect immediate upon NYSTRS approval and NYSTRS approval of any attendant documents and then shall remain in effect until further order of the court.
12. All of the plaintiff's interest in her pension plan is awarded to the plaintiff.
13. All of the plaintiff's interest in the Cancun time-share is awarded to the defendant. She is to execute whatever documents CT Page 252-PP are necessary in order for this order to become effective. The court retains jurisdiction over any disputes that may arise involving the nature of the documents to be executed.
14. All of the furniture and personal property located at the family residence is ordered divided equally between the parties. In the event the parties cannot agree on that division, then the court retains jurisdiction to determine that division.
D. BY WAY OF ATTORNEY'S FEES
1. No attorney's fees are awarded in favor of either party.
E. MISCELLANEOUS ORDERS
1. Counsel for the plaintiff is to prepare the judgment within thirty days and send it to counsel for the defendant for signature and filing.
Axelrod, J. CT Page 252-QQ | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3359602/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
This matter comes before the court by writ returnable on October 15, 1996. The plaintiff brings this action seeking, by amended complaint, a dissolution of marriage and other relief.
The parties were married in Dexter, Maine on June 1, 1974. Both parties have resided in the State of Connecticut for more than one year prior to the commencement of the action. Five children have been born to the wife since the date of the marriage, all of whom are issue of the marriage. Four of the children remain minors: Leigh Ann Clukey, born February 27, 1991, Alison Renee Clukey, born November 6, 1984, Paul Thomas Clukey born March 16, 1987 and Janna Susan Clukey, born May 9, 1988. Monica Jill Clukey, the oldest daughter, is eighteen years of age CT Page 8568 and has just completed high school. Throughout the court proceedings she was a minor or a full-time unmarried student in her mother's household. Her participation in the family dynamic cannot be ignored simply because of her age of majority.
This family has not received public assistance.
For the reasons discussed hereinafter, the court finds that the marriage between the parties has broken down irretrievably and there is no hope of its reconciliation.
The parties have each submitted claims for relief. The plaintiff, by way of financial relief seeks child support, alimony, health insurance coverage, life insurance coverage, counsel fees and a specific division of the parties' assets. The defendant, by way of financial relief acknowledges a duty to pay child support, alimony, provide medical insurance for the minor children, and seeks a specific division of the marital assets. It would seem that there would be little to argue about. However, the plaintiff and the defendant provide such extraordinarily disparate views on these issues that one might hardly believe they speak of the same family and family holdings.
The children are represented by counsel. Throughout the pendente lite period and at the commencement of trial there was no agreement between the parties as to the issue of custody. Subsumed within the term custody was the parties' disagreement over decision makers for the children and time that the children would be with each parent. After the commencement of the trial, on the second day of testimony, the parents and minor children's attorney presented a custody and visitation agreement, signed by the parents and the children's attorney. Certain provisions in the agreement, referenced later in this opinion, were not acceptable to the court in the absence of sufficient evidence to satisfy the court that those provisions were in the best interest of the Clukey children. The court did not accept the agreement at that time but ruled that it would be considered after the conclusion of the fully contested trial. Counsel for the minor children has submitted claims for relief, as well. She seeks an acceptance and ordering of that agreement for the children, payment of her bill as submitted, payment of fees of Dr. Collins, a psychologist who performed a psychological evaluation of the family, and support orders to meet the household needs of the children's home. CT Page 8569
The plaintiff, Genevieve Susan Clukey is 44 years old1. She was 20 years old at the time of her marriage to the defendant. She is a high school graduate. She was trained as a medical technician. She has not worked in the marketplace since the birth of the parties' first child in 1979, approximately nineteen years ago. She has been a full time homemaker for all of those years and remains so today. She has been out of the marketplace for so long that her previous job skills simply would be inapplicable and lost to today's world. Her prospects for future employment require further education or job training to ultimately hope to be employed at anything beyond the most modest level of remuneration or complexity of skill.
Currently her household is comprised of herself and the parties' five children (the oldest will shortly be off to college). The four minor children range in age from 17 to 10. The plaintiff's physical health is good. She has had some emotional stress over the last few years and has treated with a therapist. She is not medicated.
The defendant, Thomas Clukey is 46 years old. He is a college graduate and a graduate of chiropractic medical school. He is a licensed chiropractor and practices his profession full-time. He has been a chiropractor since 1980. He has had his own practice since 1984. He has always worked in Cheshire, Connecticut. The defendant is in good health.
These people met in Dexter, Maine when the plaintiff was 17 years old and the defendant was 19 years old. Prior to their marriage, while they were dating, the plaintiff moved in with the defendant's parents while he completed his senior year of college — at University of Connecticut, Storrs. Thereafter, they married. The parties lived briefly in Naugatuck, both working. They moved to Oregon so that Dr. Clukey could attend chiropractic school. For the entire time of his education, the plaintiff worked and was the sole support of the family. When the defendant finished school, he also worked while awaiting his board exams and their results. He failed to pass the Oregon boards. Ultimately, the parties moved back to Connecticut so that the defendant could practice chiropractic medicine in Connecticut. It was not a move that the plaintiff supported; however, the parties proceeded with the plan, anyway. The defendant passed his boards in Connecticut and became established in his field in Connecticut.
The practice of chiropractic medicine was very successful for CT Page 8570 Dr. Clukey until the early 1990's. He saw a steady increase in both his patient caseload and his net income. From the fruits of these efforts, the Clukey family enjoyed a comfortable lifestyle. They were able to go about the business of raising five children, paying for all of their extras, building a healthy retirement fund, an investment portfolio, a valuable residence and enjoy numerous real estate ventures. Throughout these years Mrs. Clukey devoted herself to child-rearing and homemaking. She testified to a daily schedule that had her working at full speed from rising until evening each day.
While there were no economic difficulties in these years of the 1980's and early 1990's, there were occasional tensions between the parties. In the early 1990's, things became more difficult. Dr. Clukey criticized his wife for drinking too much alcohol and embarrassing him in public scenes, especially when traveling. He was also very critical of her smoking marijuana, which he believes continues to the present day. Mrs. Clukey felt her husband criticized her too much, putting her down, demeaning her. There was not a lot of communication. Dr. Clukey became increasingly invested in his business, both in the time he devoted to it and in his rising concern over the impact of managed care on his revenues and overhead costs. He stated that he stopped smoking marijuana when he became very busy with his business. Mrs. Clukey states that his use tapered but did not end.
I. Custody and visitation issues
Prior to the parties' separation, the family functioned as an integrated unit with no significant tension between the children and either parent. Upon Dr. Clukey's initial removal of himself from the home, he came back daily to partake in the family evening plans. This terminated ultimately because the plaintiff became painfully aware that her husband was not interest in marital reconciliation.
Thereafter, Dr. Clukey's relationship with his children decayed and disintegrated. Each parent bears responsibility for this. The plaintiff poisoned the children against their father. She informed them that he had abandoned them. She consciously and deliberately destroyed the security they'd had in their relationship with their father. Ms. Clukey's own upset and anger at the loss of her marriage caused her to act in a manner detrimental to the emotional health, security and stability of CT Page 8571 her children.
Dr. Clukey's response to those problems in his relationship with his children was equally destructive to them. He was physically assaultive and verbally abusive and critical of the children. He forgot that they were children, physically and emotionally. Rather than assuming a caring, concerned, nurturing and protective parental role, he struck out at his children for their rejection of him. He failed, also, to shield them from criticism of their mother, who they perceived as the focus of their security.
This behavior of each parent continued in a cycle so destructive that the parties now face a situation where each of their children evidences real signs of psychological disturbance.
The children's ages in relation to each other and their parents is worthy of note. Monica is no longer a minor, although she was through much of the divorce proceedings and contributed to the family dynamics. She is 18 years old and is going on to college. She has been the closest to her father, living with him for a period of time. They are presently alienated to some extent over financial issues and how they affect their relationship. Monica is closest in age to Leigh, who is now 17. Janna is the youngest at 10 and Paul, the only boy, is 11 years old. Alison the middle child is 14 years old.
Alison, in November 1997, deliberately cut her wrists. Her academics have degraded. Nothing has been done by the Clukey family to initiate counseling for this child. Her suicide attempt may not have been life-threatening but it is not the behavior of a happy, secure child.
Paul, a child who suffers from some attention deficits, expressed significant upset in psychological evaluation. He wants to be with his father more, but also has discipline problems when with him.
Janna, the youngest, appears the least upset in the family. All agree she receives the "best" attention of the family.
Leigh at 17 wishes neither parent to impose controls on her. She has been ill for the better part of a year with mononucleosis and is now ready to resume her normal activities. CT Page 8572
These children over the pendente lite period have been empowered to determine when they will see their father. This court finds that no good has come of this. It has provided them a tool to manipulate their parents to gain what they perceive to be what they want, not necessarily what they need.
The court disapproves of the custody and visitation agreement between the parties dated May 20, 1998 because the court finds it not to be in the best interests of the parties' children.
This agreement in salient part:
(1) gives Genevieve Clukey sole custody of the children; and
(2) provides the children may visit with their father as they may initiate and choose; and
(3) the family is to engage in family therapy with the right to have the court orders reviewed after 90 days and twelve therapy sessions.
This court, based upon all of the evidence, finds that it is in the minor children's best interest that they have a definite schedule of visitation with their father. The structure of specific dates and times provides reliability to all involved and removes the dynamic of scheduling from the panoply of tools available to this family for testing each other.
This court has listened to the testimony of both parties and Dr. John Collins, as well as reviewing his report and addendum.
The children, with the exception of Janna, are firmly opposed to a set schedule of visitation with their father. It is apparent that when one is imposed there will be resistance. Ms. Clukey must be prepared to impose appropriate discipline to encourage the children's compliance with these orders. One of Ms. Clukey's challenges as a parent has been in maintaining herself as a consistent and even handed disciplinarian. Her style has been to give up on discipline in the face of dissension. She does not want to be unpopular with her children.
These parents cannot function as joint decision makers. They barely speak and when they do it is often "last minute" and hostile. The court finds that the statutory presumption in favor of joint custody is overcome here. CT Page 8573
Ms. Clukey as the residential parent functions as the sole custodian of these children, when she has not surrendered the decision making to them.
The record is replete with instances between the parties demonstrating the inability to communicate. Perhaps the most poignant is the tale about the steps necessary to fully engage this family into therapy with Drs. Kyle and Marsha Kline Pruitt. Both parties agree the therapy is necessary. They fervently disagreed, and litigated at length as to who dropped the ball in getting all the arrangements made. The most basic level of conversation between the parties would have solved the problem without recrimination or rancor.
II. Assets/Liabilities A. Defendant's Chiropractic Practice and other business interests (and earnings issues)
Dr. Clukey's chiropractic practice has two components. He is the sole owner of Thomas F. Clukey, D.C. P.C. That practice has been in operation since 1984. In late 1994, he commenced his involvement in a corporate entity now known as Multicare Physicians Rehabilitation Group, P.C. (Multicare).
Thomas Clukey and his two brothers, Ronald and David, each have individual chiropractic practices. In the early 1990's, they became concerned that their respective livelihoods were at risk because of the adverse effect of insurance companies management of health care benefits to their patients. Managed care has eliminated or put caps (where none existed or were substantially lighter) on payment, the number of times the chiropractor can see a patient for a malady or in general the amount to be charged for a procedure, the ability to charge separately for individual procedures, well-care, and the like. Further, administrative costs associated with managed care were escalating. The brothers made a business decision that economically, they would each be better off if a part of their respective labors as chiropractors were performed in the contest of a medical services organization rather than in their individual businesses. They also perceived that the medical services corporation would umbrella in other health care providers for a one-stop operation for their patients. This business strategy, which was modeled on others they had read of, was the genesis of Multicare. Connecticut law CT Page 8574 does not allow such a corporation's stock to be owned by anyone other then a medical doctor Connecticut General Statutes
section 33-320a (as of the time of incorporation in 1994). The attorney initially responsible for the work of incorporation hooked them up with a medical doctor who performed this "service" of stock ownership for a modest price. This arrangement continued while a friend (and fellow chiropractor) of the defendant and his brothers, Neil Sloane, became a medical doctor and took over the responsibilities. Neil Sloane has title ownership of all the stock of Multicare. He has not participated in any respect in its business, oversight of its operations, review of its corporate responsibility, review of patients' charts, or the like. Neil Sloane has received no compensation. He hoped to work at Multicare in undetermined employment, but there is no agreement. He acknowledged that this is something to be negotiated with Dr. Ronald Clukey, the defendant's brother.
The defendant and his two brothers determine how Multicare funds are spent. They determine how much they should each be paid, if anything. Indeed, they decide which patients they will see under Multicare and their respective individual practices. Neil Sloane does not participate in any way in the decision making. The defendant and his brothers determined that the prior doctor (Alan Cohen) would no longer hold their stock and that Neil Sloane would do so. The incorporation papers of Multicare require the physician owner to consult with others; however, in practice, this mere consultation has been, in reality, an absolute relinquishment of all indicia of ownership and control to the defendant and his two brothers.
The affairs of the Multicare corporation are in the control of the defendant and his brothers. They have fashioned an arrangement that Multicare contracts for the administration of its books and records with T.R.D. Medical Office Management, Inc. (TRD), a management services organization. TRD, which started in 1994, shares are owned, one-third each, by the defendant and his two brothers.
The parties each provided expert testimony as to the value of the defendant's chiropractic practice. The key to the major difference in their respective valuations can be found in the title to the reports submitted as evidence. Plaintiff's expert, Kenneth Pia, submitted a summary valuation report of the chiropractic practice of Thomas F. Clukey at or near December 31, 1997. The defendant's expert, Mark Harrison, submitted a CT Page 8575 valuation report of Thomas F. Clukey's 100% ownership interest in the chiropractic practice of Thomas F. Clukey, D.C., P.C., December 31, 1997. Essentially, then, the difference in approach is that Mr. Pia assigned a value to all of the defendant's chiropractic practice, including the work done for both the professional corporation and the work done for Multicare. His reasoning for doing so is threefold. First, Multicare is solely controlled by the defendant and his two brothers. Second, all of the profits of the individual chiropractic offices flow back to each individual Clukey through Multicare and other entities (e.g. TRD) made up exclusively of the individual Clukeys. The third reason for including the defendant's practice with Multicare is that "[w]hile each Clukey brother has methodically shifted revenues from their individual chiropractic practices to Multicare since 1994, the identity of each chiropractic practice has been preserved." (Exhibit GG, p. 3).
There are, generally speaking, three methods of valuation of a business: 1) an asset based approach, 2) an earnings based approach, and 3) a revenue based approach. (See both experts' reports for more complete definitions; they are consistent with each other.) These two fine experts managed to utilize different approaches and come to disparate conclusions. Mr. Pia has valued the chiropractic practice at $164,000 as of December 31, 1994. He relied largely on the capitalization of earnings method of valuation. He also considered secondarily, the gross revenue multiple method. The approach that Mr. Harrison has taken is to value the professional corporation only. He relied largely on the net asset valuation method. He found that there was no significant intangible assets in the business, noting the significant reduction in income. Mr. Harrison has valued the defendant's 100% interest in the professional corporation at $58,500 as of December 31, 1997. "In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. Esposito v. Commissioner of Transportation, 167 Conn. 439, 441, 356 A.2d 175 [1974]; Textron, Inc. v. Wood, 167 Conn. 334, 345, 355 A.2d 307 [1974]. The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard." CT Page 8576Turgeon v. Turgeon, 190 Conn. 269, 274, 464 A.2d 1260
(1983).
The defendant argues that the court cannot assign any value to his participation in Multicare (other than an employment opportunity) because he has no ownership interest in it. The plaintiff argues that an equitable ownership interest of the defendant in Multicare can be recognized by the court. In addition, the defendant argues that the court can apply the resulting trust doctrine and find that Dr. Neil Sloane holds Multicare stock for the defendant (and that would also mean his two brothers) who possesses equitable title. The concept is intriguing. In a reported case in which this was applied in a dissolution of marriage framework it was found that the wife held the property at issue for the defendant and so such a resulting trust was found as between them. Whitney v. Whitney,171 Conn. 23, 24, 368 A.2d 96 (1976). Here, the asserted trustee, Neil Sloane has not been made a party to the action. If the doctrine were to apply he would be a real party in interest indispensable for the fashioning of relief. Horton v. Meskill,187 Conn. 187, 191 (1982). His absence as a party bars this court from inquiring further into the appropriateness of application of this doctrine to the present circumstances.
While there has been a significant reduction in income for the professional corporation, at least in part this is due to the defendant systematically shifting income into Multicare. Of course, the defendant is correct that the reduction is also due to the effects of managed care on his earning capacity. Both experts agree that the 37% drop (from 1993 to 1997) in combined gross revenues (the professional corporation and the Cheshire Multicare office) is due in most part to the effects of managed care. In considering what approach to valuation this court should embrace, the court considers that the method adopted must recognize that the defendant expends approximately half his time with Multicare and about half his time in the professional corporation, and that he decides which patients are seen in which entity, thereby controlling the flow of revenue between the two entities. The selection must also consider that the facilities of the chiropractic practice are all owned by sister entities. The rental expenses and administration expenses are paid by and between sister entities. (In fact, the charge of administration expenses by TRD in 1997 to the professional corporation in the amount of $44,463 is a disputed item between the parties and experts. In normalizing earnings, Mr. Pia removed this CT Page 8577 expenditure as not apparently justified. The defendant argues that it is a real expense for real services and should not be added back into earnings.)
The court accepts Mr. Harrison's valuation of Thomas F. Clukey, D.C., P.C. as of December 31, 1997 at $58,500.00 and so finds that to be the value of this corporation. It would seem very low given Dr. Clukey's historical earnings from the practice. However, this value reflects the movement of Dr. Clukey's practice into Multicare at a steady and certain pace.
The net asset approach as utilized by Mr. Harrison did not consider the Multicare patient fees receivables attributable to the defendant's Cheshire office. If those are adjusted for at $55,976, the net tangible assets valuation would produce a value of $119,100 for the business instead of $58,500. Those receivables are already in the pipeline with profit accruing back to the defendant, just as are the patient fees receivables of the professional corporation. Inclusion of these fees in the valuation would be consistent with Mr. Harrison's assertion in his report that Multicare ". . . was not created to build equity but to increase the earnings potential of the practitioners." (Exhibit 1, p. 6).
The plaintiff urges that the court may find in any case that the defendant has an equitable interest in Multicare that may be considered under Connecticut General Statutes
section 46b-81. The defendant concedes that while that equitable interest may exist, its value is unascertainable. In order for this asset to be considered property subject to consideration under 46b-81, this court must find that it is property as defined by our Supreme Court. Property for purposes of this statute has been defined as "the term commonly used to denote everything which is the subject of ownership. . . . Everything that has an exchangeable value or which goes to make up wealth or estate."Krafick v. Krafick, 234 Conn. 783, 794, 663 A.2d 365
(1995).
While the court in Krafick emphasized that the definition is meant to be broad and inclusive, there are limits to its application. As the Multicare ownership is presently structured, the defendant has no title interest. To date, he and his brothers have not had a doctor owning stock who they cannot keep in the background and let them run things. This control however is not a marketable item. It has no exchangeable value. CT Page 8578 The value that the defendant adds to Multicare is his professional goodwill. If he leaves he can take that with him but he cannot market and sell his professional goodwill. It is then not subject to distribution under 46b-81. It is nondistributable because it depends on the presence or reputation of the particular individual and represents nothing more than probable future earning capacity. . . ." Taylor v. Taylor,386 N.W.2d 851, 858 (Feb. 1986); Family Law and Practice, ed. Rutkin, p. 36-11.
The two experts agree that the combined result of operations of the two businesses produced a $60,000 profit for 1997. Almost all of this profit is from the Cheshire Multicare operation. The defendant has urged that this is repayment of losses from previous years. It is unrealistic to accept that he would make the financial investments that he has made in Multicare without owning it and without demanding the receipt of profit generated by his presence and presentation of his patients and their revenues to this business. The court finds that the $60,000.00 is a capital asset held by Multicare for the defendant.
Dexter Associates is a partnership made up of the defendant and his two brothers. They are each 1/3 partners. Dexter Associates owns real estate at 209 Boston Post Road, Milford. There are numerous tenants at this address. Among them are Ronald Clukey's private practice, his Multicare office and Multicare's administrative offices. Dexter Associates also owns the real property in Dexter, Maine in which the defendant's interest is valued at $3,333.00. Dexter Associates has been paying off the home-equity loan of $26,263.00 on the parties' home. The money borrowed had been used to aid in the business pursuits of the defendant.
For the premises at Cheshire, the defendant's Professional Corporation pays him rent of $3,000.00 per month rent. The Multicare Cheshire unit pays TRD rent of $2,400.00 per month. TRD then pays the PC $2,400.00 per month.
The defendant has contracted with Donald Dupont and/or Dupont Systems, Inc. to sell the Cheshire business property to a third party for $127,000.00. The contract provides for a one year leaseback at a rental of $2,100.00 with certain annual renewal rights. He has offered the plaintiff to purchase with the same terms as a right prior to Dupont. He says Dupont is aware of it and agrees. However, the contract with Dupont (Exhibit BBBBB) CT Page 8579 does not mention it. This contract is a violation of the pendente lite order restraining the transfer of assets.
TRD pays the administration costs, rent, insurance, paper goods, medical supplies and advertising of Multicare. TRD also does billings for the defendant's private practice. Therefore, Multicare Cheshire pays one-third of these expenses. Multicare Cheshire pays all of the other expenses particular to the Cheshire office, including the work of other service providers at the Cheshire office. The defendant is entitled to all of the profit generated by the Multicare Cheshire office after these payments.
Since its inception in late 1994, the defendant has received absolutely no income from Multicare. The defendant has testified that in 1997 his time working is divided one-half to Multicare and one-half to his Thomas F. Clukey, D.C., P.C ("D.C., P.C") Chiropractic practice. He has, in D.C. P.C. practice earned the following income.
Year Gross Revenue for D.C., P.C.
D.C., PC Compensation to Defendant
1992 $576,111 $262,000
1993 647,387 340,000
1994 571,940 334,000
1995 386,153 150,000
1996 333,729 116,000
1997 199,000 57,000
In 1996, the defendant estimated 60% of his time working was in the D.C., P.C. and 40% is Multicare. In Multicare he only works servicing patients. The administrative work is done by TRD.
The defendant's work schedule presently allows him to work four (4) days a week: Monday, Tuesday, Wednesday and Friday. These are very full days, with ten to eleven hours of work each day. He is on call for emergencies other days.
The defendant has recently hired other professionals at Multicare Cheshire: Dr. Lopez M.D. is paid $40,000.00 from Cheshire Multicare plus a percentage of gross receipts. Dr. Brook is being paid $40,000.00 from Cheshire Multicare.
TRD does not pay rent on an equal basis to the defendant and CT Page 8580 his two brothers.
It is unrealistic to think that the defendant would spend half of his professional time in 1997 working for Multicare withno income to show for it. His choice to do so is at best a poor business decision by him. His earning capacity must reflect what he can be earning, not what he is, or is not, being paid.
In 1998, the defendant is doing better financially according to his testimony. On his financial affidavit, he has stated that his gross income presently is:
$1,200.00/wk Multicare (est.) 300.00/wk D.C., P.C. 501.00/wk rent (gross) 136.00/wk interest, miscellaneous income ---------- $2,137.00/wk or $111,124.00/yr. gross income.
His testimony disclosed, that as of June, he had received no income from Multicare and very little income from his D.C, P.C. practice. Exhibit 14 discloses that the Cheshire Multicare office has $110,656.73 in gross revenues through the first five months. Extrapolating a twelve month figure from that, the yearly revenue is projected to be $265,574.00. The receipts in 1997 were $197,439.00. The expenses for five months are listed as $95,124.00, which includes $43,833 for administrative expenses to TRD. The total administrative expenses to TRD for 1997 were $44,643.00; total expenses were $134,544.
This court does not accept that the defendant will continue to generate revenues as he has in 1997 and 1998 without receiving fair compensation for the same. From all of the data presented to the court, considering revenues and expenses, including costs of managed care administration this court finds that the defendant has an earning capacity, at present, of $120,000.00 in gross income from his private practice and Multicare. The court recognizes that there has been the loss of some immediate return by way of revenue during the start up years of Multicare. The court is optimistic that the defendant's earning capacity will rise steadily as Multicare becomes a more established provider in the medical community. Because of this the court in its orders will require yearly reporting of income between the parties. CT Page 8581
B. Real Estate
The real estate at 1083 WolfHill Road, Cheshire is residential real estate. The parties agree, and the court finds its fair market value is $230,000.00 with an equity after mortgage of $133,000.00.
The marital home is located at 20 Hidden Place, Cheshire. The court received expert testimony regarding the payments from P. Ball. His valuation of the property was $290,000.00. He did not note central air conditioning at the premises, although it is there. The husband contends the value of the premises is $320,000.00. There is a note secured by a mortgage on the premises with a balance of $26,263.12, which funds were utilized by Dr. Clukey for business purposes. Dr. Clukey has agreed that he or his business interest, Dexter Associates, will pay that note off. The court finds the value of the property to be $310,000.00.
The defendant owns his business property 15 Chipman Dr., Cheshire (an office property) and a one-third interest in 209 Boston Post Road, Milford. His interest in Chipman Drive is found to have a value of $137,000.00. The parties have a dispute as to the value of the Milford property. Expert testimony was offered. The court finds the fair market value of the defendant's interest to be $265,000.00.
The defendant owns a 1/3 interest in 7 acres in Dexter, Maine which the court finds the value to be $3,333.00.
C. Deferred Compensation and Miscellaneous Assets and Liabilities
The parties have each listed various debts on their financial affidavits. There has been no serious challenge to the balances listed and the courts finds them to be accurate. The defendant is the owner of a certain life insurance policy which is detailed hereinafter in this decision.
The plaintiff is the owner of certain pieces of jewelry which the court finds to have a total value of $30,000.00.
Dr. Clukey received a loan repayment of $50,000.00 during the pendency of the action. He took the $50,000.00 and loaned it to his brother, David Clukey, at an extremely low interest rate. This was done in violation of the pendente lite order restraining the transfer of assets. Dr. Clukey also has a loan payable to him in the amount of $50,334.00 by one or more of the business entities (loan was to TRD for Multicare investment). CT Page 8582
The plaintiff is the title owner of a Fidelity Mutual Fund which she lists on her financial affidavit as valued at $106,195.00. The defendant is the title owner of a Fidelity Mutual Fund which he lists on his financial affidavit as having a present net value of ($519,949.00 less loan of $74,129) $445,820.00.
The defendant has a profit sharing plan with Pershing Co. to which he attaches a value of $875,000.00 in his financial affidavit. It appears from the parties' documentation that this value is as of year end 1997 and accepted by the court as such, there apparently being no updated value available.
The defendant owns 800 shares of Northeast Utility stock which was valued at $16.50 per share at trial for a total of $13,200. He owns 33 shares of Yankee Energy which at $22.00 per share is valued at $726.00. Finally, he owns a nominal amount of stock in Hawkins Energy.
The court accepts the values of these accounts and stocks as placed on the parties' respective financial affidavits. They are all creatures of the marketplace and therefore subject to fairly wild fluctuation in value at this time.
The defendant is the holder of a note due regarding condominium investments, the amount due to him and the value of the note found by the court to be $37,450.00.
The court has carefully considered all of the statutory criteria for the entry of orders regarding dissolution of marriage, child custody and visitation, child support and health insurance, alimony, property settlement issues (assignment of interest in the marital estate), and attorneys' fees (for the minor children and their parents) and expert witness fees. The court, in consideration of those criteria, as they apply, enters the following orders (and makes the following further findings, as may be necessary):
1. Dissolution of the marriage;
2. Sole legal custody of the minor children to the mother;
The four children shall all have visits with their father as follows: every other Friday night, and for dinner every Wednesday CT Page 8583 evening.
3. Ms. Clukey shall provide Dr. Clukey with a schedule of the children's activities at school and in the community as she receives it, so that he may attend events.
4. On Monday evening per week one child shall have dinner alone with their father on a four week cycle of rotation: Week # 1 Janna # 2 Paul # 3 Leigh # 4 Alison
5. Alison, being close the age of majority, will make her best efforts to attend visitation around her schedule.
6. The parties have stipulated and it is ordered that the family will engage in family therapy with Drs. Kyle and Marsha Kline. Pruitt. The costs, after insurance, are to be shared equally by the parties. The best interests of the children require that the family engage in this therapy. Therefore, Dr. Clukey's visitation shall be subject to termination or modification if he refuses to engage in family therapy. This court finds that it is essential to Ms. Clukey's sole custodial role that she engage in family therapy. Therapy for this family is to continue until it is satisfactorily completed or the court orders it is no longer necessary.
7. The defendant shall be the sole owner of his 100% stock ownership in Thomas F. Clukey, D.C., P.C. free and clear of any claim by the plaintiff.
8. The defendant shall pay to the plaintiff child support for the support of the four minor children in the amount of $537.00 per week. The court notes that the parties' income as computed by it exceeds the maximum in the Child Support Guidelines. The court has found the defendant's earning capacity to be $120,000 per year from his chiropractic work and he has rental income. The court has imputed a modest 8% per year income return on the Fidelity accounts ordered to each party. This child support order exceeds the presumptive minimum combined family support order in the Guidelines for four minor children of $632.00 when allocation is made in accordance with the findings in this opinion.
9. The defendant shall pay to the plaintiff alimony in the CT Page 8584 amount of $250.00 per week, which shall sooner terminate upon the death of either party, the plaintiff's remarriage, or her cohabitation with a male as defined by statute and case law. As additional alimony, the defendant shall pay the COBRA premiums to maintain health insurance for the plaintiff as long as she is statutorily permitted to COBRA coverage. Pursuant to Lake v.Lake, Conn. App. (1998) the court has considered the cost of this obligation and deemed it affordable by the defendant even if it results in an additional premium as costly as that currently carried on his business ledger for the entire family.
For so long as the defendant has an alimony or child support obligation to the plaintiff, the parties shall annually exchange their W-2s, 1099s, K-1s and the like by February 15 each year, and, shall provide each other their federal tax return within five days of filing it.
10. The defendant shall be the owner of the life insurance he currently has in the face amount of $750,000.00. He shall name the minor children and the plaintiff as beneficiaries in equal shares so long as he has a child support or alimony obligation for them, respectively, both as to current orders and as to any arrearage that may accrue.
The defendant, therefore, is the sole owner of the cash value of that policy in the amount of $85,884.00 and shall not increase the loan past its current indebtedness of $19,644. Annually, the defendant shall provide the plaintiff proof of his compliance with these provisions, commencing with thirty days after the entry of this decree.
The court finds that the defendant must be insurable because the policy is currently in effect, and, given his history of ability to carry this policy, the court finds its premium cost implicitly reasonable. The present premium cost is $7,540 annually (Exhibit B). The court finds that the defendant has the ability to pay this.
11. The court orders the defendant to maintain health insurance as it is currently in effect for the benefit of the four minor children during the minority. He shall be wholly responsible for the premium cost. The court finds this provision inherently reasonable, as it is an obligation that the defendant has historically undertaken and agreed to continue. CT Page 8585
The parties shall each pay one-half of all health expenditures of the minor children that are not paid by their insurance. If the defendant fails to maintain the health insurance ordered herein, he shall be 100% responsible for these expenses. Health expenditures is to be broadly construed to include but not be limited to medical, dental, orthodontic, hospitalization, psychological, psychiatric, pharmaceutical, optometric, eyeglasses, contact lenses, opthalmologic, etc.
12. The court orders the defendant to transfer all of his right, title and interest in and to the real estate at 20 Hidden Place, Cheshire to the plaintiff within 30 days. He is solely responsible for the repayment of the home equity line secured on the premises and shall pay the obligation off as it comes due or sooner, and, indemnify and hold the plaintiff harmless on the same.
13. The defendant shall own, free and clear of any claim of the plaintiff all of his interest in and to the following pieces of real estate:
a. 1083 Wolf Hill Road, Cheshire; b. 15 Chipman Drive, Cheshire; c. 209 Boston Post Road, Milford; d. 7 acres, Dexter, Maine;
14. The defendant shall be the sole owner of the 18 1/2 foot sunbird boat. The court finds the value of that boat and the hauling trailer combined to be $6200.
15. The defendant is ordered to pay Dr. Collins' bill of $875 within 30 days of the entry of this decree.
16. The minor children's attorney's bill is approved in the amount of $18,957.75 which after credits for amounts paid leaves $4,500.00 as balance due after credits applied. Credits applied were for the plaintiff in the amount of $6,422.75 and for the defendant in the amount of $8,035.00. The parties are each ordered to pay one-half of the whole bill, which, therefore is $9,478.88 before credits. The plaintiff's balance due of this is $3,056.13 and the defendant's balance due is $1,443.88; both balances shall be paid in full within 21 days of the entry of the decree.
17. The defendant shall be the sole owner of all of the CT Page 8586 household furnishings at his home at 1083 Wolf Hill Road, Cheshire.
18. The plaintiff shall be the sole owner of the household furnishings at 20 Hidden Place, Cheshire with the exception of the items stipulated to by the parties during the trial which list of items are ordered the defendant's provided he makes arrangements to pick them up within 90 days when NO children are home or present. The defendant seeks an order of the court ordering the return to him of a certain firearm; the court declines to enter such an order.
19. The defendant shall be the sole owner of the 1986 Ford E150 and the 1990 Cadillac Deville. The truck is valued by the court at $500. The court notes that the defendant declared the Cadillac at a value of $10,000 one year ago (exhibit A) and $1,000 for this hearing. No evidence suggested it had suffered a calamity. The court finds its value to be $3,500. The plaintiff shall be the sole owner of the 1998 Chevrolet Tahoe, which the court finds the value to be $28,000. Each party shall execute whatever documents are necessary to transfer ownership and registration of these vehicles consistent with this decision.
20. The plaintiff is ordered the sole owner of her Fidelity Mutual Fund account and her personal New Haven Savings Bank accounts free and clear of any claim of the defendant.
21. There is a Merrill Lynch Ready Asset Trust listed on the plaintiff's affidavit with a value of $16 attached. This is ordered the plaintiff's. There is apparently a time share owned by the parties at Inverness by the Sea, Texas, as listed on the plaintiff's financial affidavit as an asset of unknown value (expenses are also listed.). It is ordered the plaintiff's solely.
22. The plaintiff is ordered the sole owner of her jewelry which is in her possession.
23. The defendant is the sole owner, free and clear of any claim of the plaintiff, his loan to TRD/Multicare in the amount of $50,334.00, his loan to David Clukey in the amount of $50,000.00, the condominium note balance in the amount of $36,450.00, the cash value of his CIGNA life insurance $66,240, his Northeast Utilities stock, Yankee Energy stock, and Hawkins Energy stock. CT Page 8587
24. The plaintiff shall be the sole owner by Qualified Domestic Relations Order (QDRO) of one half of the defendant's profit sharing plan valued as of the date of the filing of these orders. All accruals and losses to that one-half from the valuation date forward are the plaintiff's asset or loss. The balance of the profit sharing plan fund shall belong to the defendant. The court will retain jurisdiction over the QDRO for purposes of its effectuation in accordance with these orders.
25. The defendant shall transfer to the plaintiff $360,000.00 from his Fidelity account within 10 days of the filing of this decree. If he fails to do so or files an appeal such that the execution of this order is stayed, then the defendant shall pay to the plaintiff the greater of $98.11 for each day the transfer is delayed or the actual increase in value of those funds from the date of filing of the decree to the actual date of transfer. The balance of the defendant's Fidelity account is the defendant's property free and clear of any claim of the plaintiff.
26. The defendant is the sole owner of the miscellaneous bank accounts he has at Webster Bank and the credit union free and clear of any claim of the plaintiff.
27. There is a certain Toyota listed on the defendant's affidavit and certain insurance checks the plaintiff asserts the defendant has. Notwithstanding the controversies surrounding these matters, without finding which party is ultimately `right' this court exercising its equitable powers orders these items to be the property of the defendant, free and clear of the plaintiff, to the extent these items continue to be in one of the parties' possession. Because of the history of the parties with these matters and their entanglement with Monica regarding them this trial court makes clear for any future court that it would be unfortunate if any enforcement powers of the court were invoked or exercised to enforce this particular order.
28. The defendant is ordered to pay counsel fees to plaintiff's counsel in the amount of $10,000.00 within 30 days. This order is made in consideration of the statutory criteria, the `mosaic' of the financial orders and the need to not do violence to their structure, and most importantly the following. This court finds that during the discovery process Dr. Clukey intentionally feigned ignorance on issues regarding his business CT Page 8588 and Multicare and was noncompliant in his production of many documents regarding the same until the time of trial. This caused the plaintiff to spend far more in counsel fees than would otherwise have been required.
29. Except as stated in the above orders each party is responsible for their respective debts as listed on their financial affidavits.
30. Each party is ordered to sign whatever documents are necessary, and as presented to them, by the other party to effectuate these order
Munro, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2609752/ | 526 P.2d 637 (1974)
Ronald E. DRAGOO, Petitioner,
v.
OREGON STATE PENITENTIARY, Corrections Division, Respondent.
Court of Appeals of Oregon.
Argued and Submitted August 22, 1974.
Decided September 23, 1974.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for petitioner. *638 With him on the brief was Gary D. Babcock, Public Defender, Salem.
Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY, and THORNTON, JJ.
SCHWAB, Chief Judge.
We are called upon in this prison discipline case to reconsider our decision in Bonney v. OSP, 16 Or. App. 509, 519 P.2d 383, Sup.Ct. review allowed (1974), in light of the United States Supreme Court's subsequent decision in Wolff v. McDonnell, ___ U.S. ___, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
The questions in Bonney and Wolff concerned the minimum procedures required in prison disciplinary proceedings by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The answers in Bonney and Wolff were, broadly speaking, consistent. Due process does not require that an inmate be represented by counsel at a prison disciplinary hearing. Bonney, 16 Or. App. at ___, 519 P.2d 383; Wolff, ___ U.S. at ___,94 S.Ct. at ___, 41 L.Ed.2d at 959. Due process does not require that an inmate be able to confront adverse witnesses at a disciplinary hearing. Bonney, 16 Or. App. at ___, 519 P.2d 383; Wolff, ___ U.S. at ___, 94 S.Ct. at ___, 41 L.Ed.2d at 957-958.
In two respects, however, petitioner here argues that Bonney is inconsistent with Wolff. First, Oregon's rules governing prison disciplinary proceedings, which we upheld in Bonney, do not permit an inmate to produce before the disciplinary committee testimony favorable to his position through live witnesses. Petitioner reads Wolff as holding he has the right to do so. Second, Oregon's rules are silent as to an inmate's rights to produce favorable documentary evidence. Petitioner argues this is also an essential right under Wolff. We believe the favorable-witnesses issue and favorable-documentary-evidence issue to be slightly different.
I
As to the production of favorable evidence through live witnesses before the disciplinary committee, we disagree with petitioner's reading of Wolff and adhere to our position in Bonney.
Consideration of the live-witnesses issue necessarily begins with an overview of the system created by the procedural rules here challenged. A year before Wolff was decided the Oregon legislature determined that prison disciplinary proceedings should afford inmates "a reasonable opportunity for a fair hearing," and be subject to judicial review in this court. ORS 421.180-421.195. Pursuant to this legislative mandate, the Corrections Division of the Department of Human Resources established detailed procedural rules to govern disciplinary hearings.
The procedural rule germane to the present issue provides:
"A resident has the right to submit questions to be posed by the committee to the person charging or other persons. The committee may give leave to submit further questions at the end of the hearing. All relevant questions will be posed by the committee." Rule IV(4).
As we have seen from the records in the numerous cases of this type that have come before us, in practice this rule means that an inmate has the right to pose questions to be asked any and all witnesses be they favorable or adverse. The disciplinary hearing is then recessed and a member of the disciplinary committee or the committee's investigator goes to the persons designated by the inmate and asks the questions the inmate wants asked. The hearing is then reconvened and the committee member or investigator orally reports what he learned or submits a written report. In either case, the questions and answers usually in summary narrative form become *639 part of the hearing record, either by being transcribed or made an exhibit.
Does this procedure comply with the requirements of Wolff? Petitioner argues it does not, relying on the following passage from Wolff:
"We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents." ___ U.S. at ___, 94 S.Ct. at 2979, 41 L. Ed. 2d at 956-957.
It is certainly difficult to read this extremely qualified language as establishing an absolute right to present the live testimony of favorable witnesses the position petitioner urges. The fact remains, however, that Wolff seems to imply that live testimony will at least occasionally be presented, whereas the existing Oregon rules contemplate that live testimony will never be presented before the disciplinary committee.
We nevertheless conclude that the existing Oregon system is consistent with the underlying rationale of Wolff. We identify that rationale as being: in the unique context of prison discipline, the Constitution requires only some check on the possibility of totally arbitrary or capricious action by prison officials. This is apparent to us from: (1) the Supreme Court's critical reaction to the specifics of the Nebraska disciplinary system then before it a system that, unlike Oregon's, did not even provide for advance written notice of alleged misconduct, see, ___ U.S. at ___, 94 S.Ct. at ___, 41 L.Ed.2d at 955-956; (2) the inescapable conclusion that the Supreme Court has ruled that less "process is due" in prison discipline than in any other situation previously before the court; and (3) the court's repeated emphasis on the need for flexibility:
"* * * [T]here must be mutual accommodation between institutional needs and objectives are the provisions of the Constitution that are of general application." *640 ___ U.S. at ___, 94 S.Ct. at 2975, 41 L. Ed. 2d at 951.
"* * * [T]here would be great unwisdom in encasing the disciplinary procedures in an inflexible constitutional straitjacket that would necessarily call for adversary proceedings typical of the criminal trial * * *." ___ U.S. at ___, 94 S.Ct. at 2978, 41 L. Ed. 2d at 955.
"Our conclusion that some, but not all, of the procedures specified in Morrissey and Scarpelli must accompany the deprivation of good-time by state prison authorities is not graven in stone. As the nature of the prison disciplinary process changes in future years, circumstances may then exist which will require further consideration and reflection * * *." ___ U.S. at ___, 94 S.Ct. at 2982, 41 L. Ed. 2d at 960.
In sum, as the Supreme Court said in Wolff, "there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of" a sanction on an inmate, and "* * * [t]he touchstone of due process is protection of the individual against arbitrary action of government." ___ U.S. at ___, 94 S.Ct. at 2982, 41 L. Ed. 2d at 960, n. 19; ___ U.S. at ___, 94 S.Ct. at 2976, 41 L. Ed. 2d at 952.
More specifically, the ultimate point in the passage from Wolff on which petitioner relies is: "the right to present evidence is basic to a fair hearing." ___ U.S. at ___, 94 S.Ct. at 2979, 41 L. Ed. 2d at 956. The existing Oregon system, which we have previously stated is like "the familiar practice of depositions on written interrogatories," Bonney, 16 Or. App. at ___, 519 P.2d at 389, does create "the right to present evidence." This system goes even further than required by Wolff; through "interrogatories" an inmate can present evidence from both favorable and adverse witnesses.
The question thus boils down to this: is it essential under Wolff that the "right to present evidence" be done only through the familiar technique of live testimony before the disciplinary committee. Remembering that we should not confuse the familiar with the necessary, we think not. Wolff represents a curb on completely arbitrary action by insuring consideration of the inmate's version of the facts in dispute. Oregon's system accomplishes this goal. Wolff encourages flexibility it might even be said "experimentation" in prison disciplinary procedures. If that flexibility is to have any meaning, it must be at least broad enough to enable Oregon to follow the system it has adopted.
Finally, Wolff repeatedly invites a balancing of interests. In having to present evidence through the existing system rather than through live testimony, the loss to an inmate, if any, is negligible. On the other hand, under this system, the gain to prison administration is great. Disciplinary hearings can be conducted more expeditiously, with less scheduling problems, and less disruption of the activities of fewer people in the prison environment. Much more importantly, the prison officials avoid what will inevitably be the major problems in implementing Wolff distinguishing "favorable" from "unfavorable" witnesses, and protecting the identity of informants.
When a series of cases raising the same issue involved in this case were recently argued, we were told that a high percentage of prison discipline cases originate when one inmate anonymously informs officials of another inmate's infractions. When an inmate is charged with misconduct, and he knows that no guards could have witnessed it, it requires little imagination for him to deduce that another inmate had reported his conduct. What if the inmate in such a situation requests that the few other inmates who might have witnessed his misconduct be brought into the hearing as "favorable" witnesses? In many situations this would likely expose the informant's identity, leading to the possibility if not the probability of violent reprisals. In all situations, such procedures would put the anonymous informant in a very difficult situation, to say the least.
*641 Admittedly, Oregon's present system creates some of the same risks of indirect disclosure of an informant's identity. But Oregon's is a more flexible, Wolff, supra, system, thereby minimizing these risks as much as possible, consistent with due process requirements.
II
Wolff's requirement that inmates be permitted to present favorable documentary evidence might require striking a different balance of the relative interests. If documentary evidence did in fact exist that was favorable to an inmate's position, and if he were not allowed to bring it before the disciplinary committee, the loss to the inmate would be obvious and substantial. On the other hand, there would appear to be much less danger of institutional disruption in permitting the presentation of documentary evidence than the presentation of live witnesses. We add that one major exception would be documentary evidence which might directly or indirectly disclose the identity of an anonymous informant.
The Attorney General has pointed out in some of the cases involving this same issue that the prison rules do not in any way prohibit an inmate from presenting documentary evidence, and that the prison officials are well aware of the requirements of Wolff. We also note that the record in this case does not indicate that petitioner sought to present any documentary evidence or, indeed, that any existed.
Therefore, because of the somewhat equivocal position now asserted by the Attorney General, and the absence of a record that makes this documentary-evidence issue in any way outcome-determinative, we decline to resolve it at this time. We will resolve it if and when a case comes before us in which the inmate sought to introduce documentary evidence but was turned down by the disciplinary committee without any legitimate reason, such as the protection of an informant's identity.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609754/ | 22 Ariz. App. 195 (1974)
526 P.2d 402
MARYLAND NATIONAL INSURANCE COMPANY, a corporation, Appellant,
v.
OZZIE YOUNG DRILLING COMPANY, a corporation, Richard F. Harless, Meredith Harless, his wife, Walter H. Smith and Phyllis Smith, his wife, Appellees.
No. 1 CA-CIV 2442.
Court of Appeals of Arizona, Division 1, Department C.
September 17, 1974.
*196 Law Offices of Frederick E. Kallof by Sandra L. Massetto, Phoenix, for appellant.
Cahill, Hanson & Phillips by Bruce M. Phillips, Gregory E. Hinkel, Phoenix, for appellees Harless.
OPINION
FROEB, Judge.
Judgment was recovered by Maryland National Insurance Co. against Richard F. Harless and Meredith Harless, his wife, on October 27, 1967, for $10,816.59. It was recorded and became a lien against certain real property of the Harless'. The judgment was assigned to Maurice Corrington on September 16, 1969. Richard F. Harless died in 1970 and the judgment was presented as a creditor's claim and approved in the probate proceedings which followed on August 18, 1971. On December 17, 1971, the Probate Court of Maricopa County, in Cause No. 84966, entered a "decree assigning partial estate for use and support of surviving spouse." The subject of the decree was the community real property of the parties known as 301 East Catalina, Phoenix, Arizona. The property was assigned to Meredith Harless, subject to "whatever mortgages, liens or encumbrances there may have been thereon at the time of the deceased's death." In August 1972, Corrington sought to have the sheriff execute upon the judgment by sale of the Catalina property. Thereafter, on October 20, 1972, Meredith Harless filed a homestead exemption upon the property. Harless filed a motion to stay execution on various grounds which was granted by the trial court. From the stay order and judgment dated March 23, 1973, Maryland National Insurance Co. (Corrington) takes this appeal.
There are two issues which we are called upon to determine in this case. First, was the decree of the Probate Court setting over the property to Meredith Harless void for lack of jurisdiction, and, hence, subject to collateral attack in these proceedings? Second, is the homestead statute, A.R.S. § 33-1103, unconstitutional under Art. 2, § 13 of the Arizona Constitution, A.R.S., and Section 1 of the Fourteenth Amendment to the United States Constitution? We take the questions up in the order presented.
The decree in question of the Probate Court dated December 17, 1971, reads:
"DECREE ASSIGNING PARTIAL ESTATE FOR USE AND SUPPORT OF SURVIVING SPOUSE
"It appearing to the satisfaction of the Court that notice of the order requiring all persons interested in said Estate to appear on the 17th day of December, 1971, to show cause why a portion of said Estate should not be assigned for the use and support of the surviving spouse of said Deceased, has been given as required by law and by Order of the *197 Court, and upon hearing, the Court finds that the value of the real property located at 301 East Catalina, Phoenix, Arizona,[1] and more particularly described as follows:
"Lot 23, Block 1, MAYFAIR ADDITION, as recorded in Book 19, page 50, of the Records of the County Recorder of Maricopa County, Arizona,
"EXCEPT the West 3 feet thereof be, and the same is hereby assigned to, and that the title therof shall vest absolutely in Meredith H. Harless, the surviving spouse of said Deceased, subject to whatever mortgages, liens or encumbrances there may have been thereon at the time of the deceased's death.
"DONE IN OPEN COURT THIS 17th day of December, 1971.
"(Signature by Lawrence
H. Doyle, Commissioner)"
As to the first issue, appellant argues that the findings required by A.R.S. § 14-517[2] must be set forth in its written order and decree otherwise jurisdiction in the Probate Court fails.[3] He points out correctly that if the decree is void it may be collaterally attacked in these proceedings.
There is no controlling rule or decision requiring the findings of a court to be set forth in its written decree or judgment, unless requested prior to a trial or hearing, pursuant to A.R.Civ.P. 52(a), 16 A.R.S. Where no request is made for express findings of fact it will be assumed that the trial court found every issue of fact necessary to sustain its judgment. Fleming v. Becker, 14 Ariz. App. 347, 483 P.2d 579 (1971). Findings of fact need not be incorporated in a judgment where none are requested. Myers-Leiber Sign Co. v. Weirich, 2 Ariz. App. 534, 410 P.2d 491 (1966). Moreover, A.R.S. § 14-1202(A) states:
"Orders and decrees made by the court need not recite existence of facts or performance *198 of acts upon which jurisdiction of the court depends, but it shall only be necessary that they contain the matters ordered or adjudged, except as otherwise provided."
Even if we were to assume that A.R.S. § 14-517 required full written findings, their omission would be an error of law, susceptible to a direct appeal from the decree and not to collateral attack in this proceeding. Mere error of law does not amount to a jurisdictional defect which would allow collateral attack. Varnes v. White, 40 Ariz. 427, 12 P.2d 870 (1932).
The Probate Court had the "power to deal with the Catalina property and enter its decree pursuant to A.R.S. § 14-517, hence the lack of written findings is not jurisdictional. The reasoning of the Arizona Supreme Court in Varnes v. White, supra, is analogous here and supports the judgment of the trial court on this issue:
"... It is doubtless true as a matter of law the probate court should have set aside a homestead for him if none had already been selected, but it is equally true that the court had jurisdiction to make a decree of distribution of an estate which was properly in its charge, even though such distribution was not made in the manner provided by law. A judgment cannot be collaterally impeached because it was based on a mistake of law, any more than if based on a state of facts." (40 Ariz. 427, 435, 12 P.2d 870, 872)
The appellant, a creditor in the probate proceedings, had standing there to contest the decree of the Probate Court and raise the issue of inadequate written findings, both in the Probate Court as well as on appeal. He chose not to do so.
A further point raised by appellant is that the decree purports to be a "partial" assignment of the estate and not the "whole" estate described in A.R.S. § 14-517, and that it is therefore void. It is true that the statute refers to the whole estate of the decedent and by its language concludes the administration thereof, once the decree is entered. Again, legal error, though it may have been present in the decree and hence cognizable on direct appeal, does not render the decree void and thus subject it to collateral attack. Western Land and Cattle Co. v. National Bank of Arizona at Phoenix, 29 Ariz. 51, 239 P. 299 (1925) does not as urged by appellant compel a different conclusion. In that case an order of the trial court extending a period of redemption beyond the period fixed by statute was held subject to collateral attack and void, the court holding that the trial court must have authority to render a decree of the kind in question, as well as jurisdiction of the person and the subject matter. We distinguish the decree of the Probate Court assigning less than the whole of a decedent's estate from the holding of Western Land and Cattle Co. case. By entering the decree the Probate Court exercised authority, which it had, to distribute the decedent's real property, although only a portion was included. The contention that the decree should have dealt with the entire estate is one which should be presented to the appellate court directly, not collaterally. Appellant also relies upon Eyman v. Deutsch, 92 Ariz. 82, 373 P.2d 716 (1962) to support his position. We find, however, that the collateral attack of the judgment in that case and the rationale sustaining it is readily distinguishable and therefore not controlling here.
The second issue relates to constitutionality. Appellant contends that the homestead law (A.R.S. § 33-1101, as amended) arbitrarily and unreasonably classifies debts, giving certain of these classes advantages and preferences over other classes, in violation of Art. 2, § 13 of the Arizona Constitution and Section 1 of the Fourteenth Amendment of the United States Constitution.
The purpose of these constitutional provisions is to preserve equality between citizens. They constitute a guarantee that all persons shall be treated alike under similar *199 circumstances and conditions. They allow, however, classifications of persons into categories and permit the application of different sets of rules for different classes, provided the classification or discrimination is reasonable rather than arbitrary and all members of each class are affected uniformly. Valley National Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292 (1945).
A statute is presumed constitutional. Arizona Podiatry Association v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108 (1966). In the particular area of equal protection and alleged discrimination in classification, the classification is presumed constitutional. Uhlmann v. Wren, 97 Ariz. 366, 401 P.2d 113 (1965).
Arizona Revised Statutes, § 33-1101, as amended, declares that certain debts are excluded from the homestead exemption. The classification of these debts are (1) a duly executed mortgage, deed of trust, or security agreement on a mobile home; and (2) a lien for labor or material that attached before the property was claimed as a homestead.
We find that the two exceptions bear a reasonable relationship to the purpose of the law and that there is a substantial difference between those within the classes and those without. That difference, of course, is the fact that the protected classes are those who have had a special relationship to the property by way of either relying upon its as security for a specific debt or improving it through labor or materials. As to them, it is reasonable that their liens be protected against a homestead exemption perfected afterwards. The classes within the exception bear a reasonable connection with the purpose of the law, which is to protect the family against forced sale of its home property for debts which are not specifically related to it. The legislature has determined that one class of creditors is thus preferred over another, but there is a substantial difference between those within the classes enumerated and those without. The law is therefore neither arbitrary nor unreasonable.
We hold that A.R.S. § 33-1103 does not constitute a special privilege or immunity or an abridgement of equal protection of the law under Section 1 of the Fourteenth Amendment of the United States Constitution or Article 2, § 13 of the Arizona Constitution. Finding the exceptions to the homestead law in A.R.S. § 33-1103 to be constitutional, we do not, of course, reach the question of severability of the homestead law itself (A.R.S. § 33-1101) from the exception provision (A.R.S. § 33-1103).
The judgment of the trial court is affirmed.
WREN, P.J., and NELSON, J., concur.
NOTES
[1] There is disparity between the wording of the decree as set forth in the Abstract of Record (quoted here) and wording quoted by appellant in its Opening Brief. A copy of the decree itself is not included in the Record. The Brief adds the following: "... does not exceed the sum of $1,750.00, that portion of decedent's interest therein, and that the deceased is survived by his spouse, Meredith Harless." In view of our decision, the disparity does not affect the outcome of the case.
[2] A.R.S. § 14-517 reads as follows:
"A. If upon return of the inventory it appears that the value of the whole estate, exclusive of the amount of liens and the one-half interest of the surviving spouse in the community property, does not exceed three thousand five hundred dollars, and if there is a surviving spouse or minor children of decedent, the court shall, by order, require all persons interested to appear on a day fixed to show cause why the whole of the estate should not be assigned for the use and support of the family of the decedent.
"B. Notice of the order to show cause shall be given and proceedings had as upon settlement of accounts of executors or administrators, except that publication of notice to creditors is not necessary.
"C. If, upon the hearing the court finds that such value does not exceed three thousand five hundred dollars, and that expenses of the last illness of decedent, funeral expenses and expenses of administration have been paid, the court shall by decree assign to the surviving spouse, or if there is no surviving spouse, then to the minor children of decedent, if any, the whole of the estate, subject to existing mortgages, liens or encumbrances upon the estate at the time of the death of decedent. Title to the estate shall thereupon vest absolutely in the surviving spouse or minor children, and there shall be no further proceedings in the administration, unless further estate is discovered.
"D. If the surviving spouse has separate property, exclusive of his or her one-half interest in the community property, which is equal to the portion to be set apart to the survivor, the whole property, other than the half of the homestead, shall go to the minor children."
[3] The parties have presented the voidness issue on the assumption that the decree was entered pursuant to the terms of A.R.S. § 14-517, although in the record supplied to the court the possibility is faintly suggested that the property could have been transferred as a probate homestead pursuant to A.R.S. § 14-514. Since the parties do not urge this, we do not find it necessary to consider it, especially in view of our decision in the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875800/ | 288 Wis.2d 461 (2005)
706 N.W.2d 702
2005 WI App 254
BEYER v. BEYER.
No. 2004AP003102.
Court of Appeals of Wisconsin.
October 20, 2005.
Unpublished Opinion. Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/799264/ | 677 F.3d 1000 (2012)
Chantell SACKETT; Michael Sackett, Plaintiffs-Appellants,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Lisa P. Jackson, Administrator,[*] Defendants-Appellees.
No. 08-35854.
United States Court of Appeals, Ninth Circuit.
May 3, 2012.
Damien Michael Schiff, M. Reed Hopper, Pacific Legal Foundation, Sacramento, CA, Leslie R. Weatherhead, Witherspoon Kelley Davenport & Toole, PS, Spokane, WA, for Plaintiffs-Appellants.
Nicholas John Woychick, Esquire, Assistant U.S., Thomas E. Moss, Esquire, Office of the U.S., Attorney, Boise, ID, Jennifer Scheller Neumann, U.S. Department of Justice, Environment & Natural Resources Division, Jason Walta, National Education Association Office of General Counsel, Washington, DC, for Defendants-Appellees.
*1001 Before: RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.[**]
ORDER
Pursuant to the Opinion of the Supreme Court in Sackett v. Environmental Protection Agency, ___ U.S. ____, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012), the district court's grant of Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) is REVERSED, and the matter is REMANDED for proceedings consistent with the Supreme Court's Opinion.
The mandate shall issue forthwith. See Fed. R.App. P. 41(b).
NOTES
[*] Lisa P. Jackson is substituted for her predecessor, Steven L. Johnson, as Administrator. See Fed. R.App. P. 43(c)(2).
[**] The late Robert R. Beezer was a member of this panel and is deceased. Judges Gould and Tallman have agreed to remand by a twojudge order. | 01-03-2023 | 05-03-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2524247/ | 17 N.Y.3d 907 (2011)
958 N.E.2d 118
934 N.Y.S.2d 84
2011 NY Slip Op 8185
In the Matter of the Claim of HARVEY HARDY, Claimant,
v.
TRICO et al., Appellants, et al., Respondent.
WORKERS' COMPENSATION BOARD, Respondent.
No. 242 SSM 37
Court of Appeals of New York.
Decided November 15, 2011.
Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for appellants.
*908 Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Barbara D. Underwood, Benjamin N. Gutman and Carol Fischer of counsel), for Workers' Compensation Board, respondent.
Concur: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES. Taking no part: Chief Judge LIPPMAN.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs (see Matter of Raynor v Landmark Chrysler, 18 NY3d ___, 2011 NY Slip Op 08183 [2011] [decided today]). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3359603/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] NOTICE OF FILING OF JUDICIAL DECISION
Pursuant to P.B § 64-1, the court (Dyer, J.), hereby gives notice of the filing of the attached Memorandum of Decision regarding Defendant's Motion to Suppress.
MEMORANDUM OF DECISION
The Defendant, who is charged with a violation of C.G.S.14-227a, has filed a motion to suppress all evidence seized or discovered as a result of his stop, detention and arrest on May 22, 1999 in Waterford, Connecticut.
The Defendant's motion alleges that the arresting officers lacked reasonable and articuable suspicion to stop him, and therefore violated his rights under" . . . the Fourth. Fifth. Sixth and Fourteenth Amendments to the Federal Constitution and Article One, Sections 7 and 8 of the Connecticut Constitution."1
FACTUAL FINDINGS
The court has carefully considered the evidence and testimony introduced at the hearing on this motion, and finds that the following facts were proven by a preponderance of the evidence:
On May 22, 1999 at approximately 2:15 a.m., Officer Cynthia Munoz of the Waterford Police Department was on patrol in her cruiser in the area of Route 85 in Waterford, Connecticut.
Earlier, Officer Munoz had monitored a radio broadcast from another police agency. The message indicated that there were possibly two intoxicated drivers traveling south in motor vehicles on Route 85 in Salem, Connecticut. No marker plate information was given during this transmission. Although she did not include this in her written arrest report, Officer Munoz testified at hearing that one of the automobiles was described in the police broadcoast as being "light-colored."
Officer Munoz, who was traveling northbound on Route 85, observed a speeding motor vehicle traveling in front of her. She CT Page 3407 overtook and detained this operator, who was not intoxicated. While Officer Munoz was involved with this traffic stop, the driver of a motor vehicle traveling south on Route 85 stopped adjacent to her location. This operator informed Officer Munoz that a drunken driver was traveling behind him on Route 85 south. This operator did not describe the color of the alleged offender's vehicle.
Shortly thereafter, a second motorist driving south on Route 85 stopped and spoke with Officer Munoz. This motorist gestured over his shoulder and told the officer that a drunk driver was traveling behind him. Although Officer Munoz did not include this in her arrest report, she testified at hearing that the second motorist reported that the intoxicated operator was driving a light-colored vehicle.
Officer Munoz radioed Waterford Police Officer David Burton that a suspected intoxicated driver might be traveling on Route 85 south towards the location where she was stopped.
Officer Munoz then observed the headlights of a light-colored automobile in the southbound lane of Route 85 approaching her location. As the oncoming car passed the place where she was stopped, Officer Munoz noted the vehicle's color, description and marker plate, and transmitted this information via police radio to Officer Burton. Officer Munoz requested that Officer Burton stop this vehicle, which was a white Buick LeSabre automobile operated by the Defendant. Officer Munoz did not witness erratic operation. or any motor vehicle violation by the Defendant.
Officer Burton was a distance behind Officer Munoz's location on Route 85 north when he received Officer Munoz's radio messages. He testified that he observed two motorists travelling south on Route 85 drive past Officer Munoz's position and continue on toward him. The operator of the second car slowed his vehicle and talked to Officer Burton. This operator told Officer Burton that a drunken driver was travelling behind him on Route 85 south. He informed Officer Burton that the intoxicated driver was "all over the road" and was driving a white vehicle.
When the motor vehicle operated by the Defendant passed Officer Burton's location. the officer executed a "U-turn" from the northbound lane of Route 85 onto the southbound lane. Officer Burton then stopped the Defendant's vehicle. He did not observe the Defendant engage in erratic operation, or commit any motor CT Page 3408 vehicle violations. Officer Burton testified that he stopped the Defendant based on Officer Munoz's request, and the report of the citizen who claimed that a drunken driver was traveling behind him.
Officer Munoz responded to the scene where Officer Burton had detained the Defendant. Evidence gathered by Officer Munoz during this investigatory stop resulted in the Defendant being arrested on the intsant charge. It is that evidence which the Defendant seeks to supress with the motion pending before the court.
Both Officer Munoz and Officer Burton also testified at hearing that a large number of motor vehicle accidents occur on Route 85 in Waterford.
As noted above, Officer Munoz admitted during cross-examination that she had not indicated in her arrest report that the police radio broadcast she monitored had mentioned a light-colored car, or that the second motorist with whom she spoke had described the erratically-operated vehicle as being light in color. The court has carefully considered the Defendant's argument that these omissions in the report might impeach the credibility of the officer's testimony. However, the court believes it likely that the police radio broadcast concerning possibly intoxicated motorists on Route 85 south in Salem, Connecticut would have offered some description of the suspect vehicles, including a general description of their color. The court also observed the testimony and demeanor of the Waterford police officers at the hearing, and found both to be credible in their recollections and accounts of the facts this case.
DISCUSSION
The parties agree that the detention of the Defendant constituted a seizure of his person. as defined by our Supreme Court in the case of State v. Hill. 237 Conn. 81, 87.675 A.2d 866 (1996). The facts and circumstances presented here clearly indicate that the Defendant's freedom of movement was restrained by the police officers' show of authority. The Defendant would not have reasonably believed that he was free to go prior to the conclusion of the field investigation initiated by the officers.
The pivotal issue before the court is whether or not the police had a reasonable and articuable suspicion to believe that the Defendant was committing, or was about to commit, a crime when CT Page 3409 they stopped his motor vehicle. State v. Pierog,33 Conn. App. 107, 111 (1993).
In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. . . . A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom (Internal citations and internal quotation marks omitted). State v.Donahue, 251 Conn. 636, 644 (1999).
In the instant case, Officer Munoz heard another police agency's broadcast advising about suspected intoxicated motorists traveling on Route 85 south in Salem. One of the vehicles was described as light-colored. Both the direction of travel, and the general description of one automobile's color, matched the Defendant's. Officer Munoz was approached in close proximity by two successive drivers who reported that an intoxicated driver was traveling behind them in a southerly direction on Route 85. The second driver informed Officer Munoz that the car was light-colored. Shortly after this, the Defendant drove his white Buick LeSabre on Route 85 south past Officer Munoz's position. Officer Burton, alerted by his colleague's radio call, and by the citizen who also informed him that an intoxicated driver "was all over the road," stopped the Defendant's vehicle.
Although neither police officer observed any erratic operation or motor vehicle violations by the Defendant, the court finds, based on the totality of the circumstances in this case, that the Defendant's detention was permissible under our State and Federal Constitutions. Viewed cumulatively, the content of the earlier police broadcast, the reports about possible drunken driving activity from two different citizen-witnesses, and the Defendant's arrival on the scene moments later in a light-colored automobile traveling in the direction described, created reasonable and articuable suspicion. The court finds that these facts, and the inferences that the officers could rationally derive from them, justified their decision to detain the Defendant for further investigation.
The court is mindful of the argument that the police officers could possibly have taken a less-intrusive approach in this case CT Page 3410 by following the Defendant longer to see if they observed erratic operation, or other signs of impairment. However, the evidence concerning both officers' training in the area of DUI detection and arrests, the report to Officer Burton that the Defendant was "all over the road." and the evidence about the number of accidents on Route 85 in Waterford, lead the court to find that the police acted reasonably in effectuating the traffic stop when and where they did. (See: State v. Pierog, supra. p. 111-112).
Because the court finds that the detention of the Defendant was based upon the reasonable and articuable suspicion by the police that the Defendant had committed, or was about to commit a crime, his motion to supress is hereby DENIED.
Dated at New London, Connecticut this 8th day of March. 2000.
Dyer, Judge. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2608596/ | 229 Kan. 42 (1981)
621 P.2d 992
STATE OF KANSAS, Appellee,
v.
LaDON JOHNSON, Appellant.
No. 51,877
Supreme Court of Kansas.
Opinion filed January 17, 1981.
James S. Phillips, Jr., of Phillips & Phillips, Chartered, of Wichita, argued the cause and was on the brief for appellant.
Timothy J. Chambers, assistant county attorney, argued the cause and Robert T. Stephan, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
HOLMES, J.:
LaDon Johnson appeals from his conviction by a jury of one count of aggravated arson, K.S.A. 21-3719. LaDon and Elizabeth Johnson, husband and wife, had been residents of Wichita. Following an argument, Elizabeth went to Hutchinson to stay with a friend, Louise Massey, at her residence. Mrs. Massey occupied the house along with her five children. Approximately one week later, on July 10, 1979, the home of Louise Massey was set on fire and appellant was charged and subsequently convicted of aggravated arson. Mrs. Johnson had been residing at the Massey home for several days and was present in the house when the fire occurred. The evidence was conclusive that the fire was the result of arson.
The marriage of LaDon and Elizabeth Johnson was a turbulent one with frequent arguments between the parties. One such incident, approximately a month prior to the fire, resulted in Mrs. Johnson receiving a broken nose. Mr. Johnson had on occasion threatened to kill his wife and, after she left Wichita and prior to the Massey fire, the appellant, in a telephone conversation, *43 threatened to "jump on" her. It also appears that he threatened to kill her if she returned to Wichita.
On the night of the fire, LaDon Johnson attempted to contact his wife at the Massey residence by telephone. Mrs. Johnson, although present, did not wish to talk with him and the call was taken by Carol, the sixteen-year-old daughter of Louise Massey. During the conversation appellant accused the Masseys of playing games with him and stated that if they didn't stop messing around with him, then "you guys going to get it." Carol's testimony about the conversation could be interpreted to mean that Johnson threatened to come to Hutchinson that night.
Angela Massey, another daughter, testified that at the time of the fire she saw a black man wearing a black T-shirt run from the porch. There was evidence LaDon Johnson owned a black T-shirt and the man Angela saw running from the porch was about the same physical build as appellant.
Following the fire, police and fire investigators determined that the fire was set and a flammable liquid, probably gasoline, had been poured on the porch and ignited. In the Massey yard the investigators recovered an antifreeze can, a lid to an antifreeze can, and a book of matches from a QuikTrip store. Testimony revealed there were no QuikTrip stores in Hutchinson but several in Wichita. Mrs. Johnson advised authorities, and later testified, that her husband had several antifreeze cans in the garage at their Wichita home. When the garage was searched no antifreeze cans were found but police did recover an antifreeze can and a five-gallon gasoline can from defendant's van on July 17, 1979. Other evidence introduced at trial was equally circumstantial in nature.
Two or three days after the fire, appellant attempted to contact his wife by telephone. He left word for his wife to call him at work on his lunch hour. Mrs. Johnson notified fire inspector Tipton and they called LaDon Johnson. The telephone conversation was recorded without the knowledge of the appellant but with the full knowledge and cooperation of Mrs. Johnson. During the course of the conversation, Mrs. Johnson attempted to get information from her husband about the fire. He denied any knowledge of the fire but when asked where he was on the night of the fire, he stated that after calling the Massey residence he just went crazy and drove around up and down the street during the night. He did not admit to being in Hutchinson. A transcript of *44 the conversation was admitted in evidence and Mrs. Johnson testified about the conversation.
No evidence was presented on behalf of the defendant.
Appellant's first point on appeal is that there was insufficient evidence to support the verdict. The standard to be applied is:
"Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?" State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979).
A careful review of the record indicates the test of Voiles has been met in this case.
Appellant next asserts error in the admission of the testimony of Elizabeth Johnson, alleging it was privileged under K.S.A. 60-423(b), which provides:
"(b) An accused in a criminal action has a privilege to prevent his or her spouse from testifying in such action with respect to any confidential communication had or made between them while they were husband and wife, excepting only (1) in an action in which the accused is charged with (i) a crime involving the marriage relation, or (ii) a crime against the person or property of the other spouse or the child of either spouse, or (iii) a desertion of the other spouse or a child of either spouse, or (2) as to the communication, in an action in which the accused offers evidence of a communication between himself or herself and his or her spouse." (Emphasis added.)
Although Elizabeth Johnson was not named in the original complaint and information as one of the individuals occupying the Massey house, it was undisputed that she had been residing at the Massey residence and appellant knew she had been staying there. Under the evidence and circumstances of this case, the testimony by Mrs. Johnson would fall within K.S.A. 60-423(b)(1)(ii). There was no violation of the marital privilege. See also K.S.A. 60-428(b)(3) and State v. Glover, 219 Kan. 54, 547 P.2d 351 (1976).
Next, appellant contends that the admission of the transcript of the recorded telephone conversation and testimony relative thereto violated (a) the prohibition against unreasonable searches and seizures and the right of due process guaranteed by the Kansas and United States Constitutions; (b) K.S.A. 1979 Supp. 22-2516(4); and (c) the marital privilege contained in K.S.A. 60-423(b).
In State v. Daniels, 215 Kan. 164, 523 P.2d 368 (1974), defendant was convicted of blackmail. On appeal he contended that his *45 Fourth Amendment rights to be free of unreasonable searches and Fifth Amendment protections against self-incrimination were violated by admission into evidence of two tape-recorded telephone conversations between defendant and the father of the girl he was blackmailing. In rejecting appellant's argument, this court held:
"It is settled law that a state agent may tape-record such telephone conversation without violating the other party's Fourth Amendment rights if the agent is a party to the conversation or has the consent of one party. (Citations omitted.)" p. 166.
See also State v. Jordan, 220 Kan. 110, 551 P.2d 773 (1976), and State v. Wigley, 210 Kan. 472, 502 P.2d 819 (1972).
In the case at bar Inspector Tipton clearly had the permission of Mrs. Johnson to tape-record her conversation with defendant. We have previously determined that the marital privilege contained in 60-423(b) does not apply and K.S.A. 1979 Supp. 22-2516(4) clearly is not applicable to the facts in this case. The point is without merit.
In the fourth point on appeal, it is argued that it was error to admit testimony concerning alleged threats and misconduct of defendant. The record reveals there were no proper specific contemporaneous objections made to the testimony. It is the rule in this jurisdiction that failure to make timely, specific objection to the admissibility of evidence will bar consideration of the admissibility question on appellate review. K.S.A. 60-404; State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978); State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977). We have previously shown that the evidence was not subject to the marital privilege, it was certainly relevant, and no error is shown.
During final argument the State's attorney stated:
"As I have said numerous times there are two parties to this lawsuit: The defendant, LaDon Johnson, and the people of the State of Kansas are in fact or in fact the people who are residents of Reno County, Kansas, and I submit based on the evidence presented to you that its time to state it to the people of Reno County, Kansas, and to LaDon Johnson that we don't care if you're involved in domestic disputes. We don't care if you are half crazy worried about your wife. You are not going to come into Reno County and you are not going to set fire to people's houses when people are inside the houses. Because that's against the law and if you violate the law you should be found guilty for committing a crime."
Appellant contends he should have been granted a mistrial.
Assuming, without determining, that the argument was improper, the record indicates that counsel for the defendant objected *46 and the jury was admonished in the manner requested by the defendant. We find no error. State v. Watkins, 219 Kan. 81, 547 P.2d 810 (1976).
Appellant's final two points are alleged error in failing to grant a new trial and that he was denied a fair trial as required by the Kansas and United States Constitutions. Arguments in support of both contentions go to the sufficiency of the evidence and trial court evidentiary rulings and have previously been considered in this opinion.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875807/ | 288 Wis.2d 461 (2005)
706 N.W.2d 702
2005 WI App 254
STATE v. ASHMORE.[]
No. 2004AP003351 CR.
Court of Appeals of Wisconsin.
October 27, 2005.
Unpublished Opinion. Affirmed.
NOTES
[] Petition to review filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2235394/ | 929 N.E.2d 178 (2006)
367 Ill. App.3d 1114
MONTEREY COAL CO.
v.
ILLINOIS WORKERS' COMPENSATION COM'N.
No. 4-06-0117WC.
Appellate Court of Illinois, Fourth District.
September 29, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608584/ | 621 P.2d 361 (1980)
In the Matter of HAWAII GOVERNMENT EMPLOYEES' ASSOCIATION, LOCAL 152, AFSCME, AFL-CIO, Petitioner-Appellee, Cross-Appellant, and State of Hawaii, Employer-Appellee, Cross-Appellee, and
Public Employees Management Association of Hawaii, Elsie Oshita, Florence Maeda, Francis S. C. Fong, Donald E. Gately, Ned Glenn, Warren Y. Imada, Robert Murashige, Intervenors-Appellants, Cross-Appellees, and
Hawaii Public Employment Relations Board.
No. 6626.
Supreme Court of Hawaii.
December 29, 1980.
Herbert R. Takahashi, Honolulu (Bouslog & Symonds, Honolulu, of counsel), for intervenors-appellants, cross-appellees.
Benjamin C. Sigal, Honolulu (Shim, Sigal, Tam & Naito, Honolulu, of counsel), for petitioner-appellee, cross-appellant.
Before RICHARDSON, C.J., OGATA, MENOR and LUM, JJ., and Circuit Judge KANBARA in Place of NAKAMURA, J., Disqualified.
*362 LUM, Justice.
In this appeal we examine the correctness of a circuit court order which dismissed an appeal to the circuit court from an administrative agency. The circuit court had ruled that since the appeal was interlocutory in *363 nature, before such appeal could be filed with the circuit court, the agency must first have granted its approval. Both parties disagreed with this aspect of the court's order, manifesting different reasons therefor, and have appealed and cross appealed the court's ruling. We concur with the parties that the court erred in its ruling. Although we reverse such order, we limit our ruling only to the extent of reinstating the appeal with the circuit court.
I.
This case arose from proceedings before the Hawaii Public Employment Relations Board (HPERB). The Hawaii Government Employees' Association (HGEA), petitioner-appellee and cross-appellant, had filed petitions with HPERB to clarify and amend the coverage of three State of Hawaii bargaining units under HRS § 89-6. The petition sought to include certain government positions within the bargaining units.
Some two years and nine months after the petitions were filed, the Public Employment Management Association of Hawaii (PEMAH), intervenor-appellant and cross-appellee, filed petitions for intervention, claiming to represent all employees presently excluded from bargaining units. Thereafter, seven employees, all members of PEMAH, also filed individual petitions for intervention, opposing their proposed inclusion in bargaining units, and designating PEMAH as their representative.
On January 26, 1977, HPERB's order denied PEMAH's motion to intervene but granted the motion of the individual employees to intervene conditionally.[1]
From this order, PEMAH and the individual employees appealed to the circuit court, which dismissed the appeals on grounds heretofore mentioned.
II.
First, we take up the contention of HGEA that under Rule 72, Hawaii Rules of Civil Procedure, the circuit court lacked jurisdiction to hear the appeal because PEMAH's notice of appeal failed to name HPERB as a party appellee, and therefore this court should now dismiss the appeal. We hold that Jordan v. Hamada, 62 Haw. 444, 616 P.2d 1368 (1980), is dispositive of this issue. We held in Jordan that a failure to designate an agency as an appellee is hardly cause for dismissal, particularly where there is a policy favoring judicial review of administrative actions. On the basis of Jordan, we deny HGEA's motion to dismiss the appeal.
III.
Next, we take up the circuit court's order holding that PEMAH's appeal was interlocutory and therefore HPERB's approval was required.
We find no language in chapter 91, Hawaii Administrative Procedure Act, or any other provisions of law, which requires agency approval before an interlocutory appeal may be taken from a ruling of such agency. HRS § 91-14(a) controls an appeal to the circuit court from an administrative agency, and so long as the requirements of HRS § 91-14(a) are met, the circuit court is vested with jurisdiction to hear the appeal. We rule that the circuit court erred in dismissing the appeal on the *364 ground that HPERB's approval was required to perfect an interlocutory appeal.
IV.
We now consider the question of whether HPERB's order is final or not. We hold that it is.
In determining whether an order is final or not for the purpose of appeal, this court has repeatedly stated that:
[A] final judgment or decree is not necessarily the last decision of a case. What determines the finality of an order or decree is the nature and effect of the order or decree. Monette v. Benjamin, 52 Haw. 27, 467 P.2d 574 (1970); Kalanianaole v. Liliuokalani, 23 Haw. 457 (1916); Dole v. Gear, 14 Haw. 554, 566 (1903); Humburg v. Namura, 13 Haw. 702, 704 (1901); see also Barthrop v. Kona Coffee Co., 10 Haw. 398 (1896).
In re Application of Castle, 54 Haw. 276, 278, 506 P.2d 1, 3 (1973).
In Castle, supra, the State filed an objection to a petition for the consolidation and the resubdivision of certain property with a seashore boundary. The petitioners filed a motion to strike the State's objection. After a hearing, the land court granted the motion to strike. On appeal, this court held that the land court's order to strike the State's objection was a final judgment, and the State had a right to appeal without leave of court.
This court noted that the State's interest in the consolidation action was "not unlike a right to intervene," and quoted a respected authority on the subject:
Any denial of intervention should be regarded as an appealable order as it surely is so far as the would be intervenor is concerned. 7A Wright [& Miller], Federal Practice & Procedure § 1923. See also Ionian Shipping Co. v. British Law Insurance Co., 426 F.2d 186, 189 (2d Cir.1970).
Id. at 278-79 n. 1, 506 P.2d at 4 n. 1.
In the case at bar, PEMAH's position is identical to the situation of the State in Castle. PEMAH was denied intervention in the proceedings before HPERB just as the State in Castle was unable to take part in the consolidation action. In line with the holding of Castle and our previous decisions concerning finality, we find that HPERB's denial was a final appealable order, and PEMAH was entitled to appeal to the circuit court.
This holding is consistent with our recent discussion of finality in Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 (1979), in which we stated:
"Final order" means an order ending the proceedings, leaving nothing further to be accomplished. Consequently, an order is not final if the rights of a party involved remain undetermined or if the matter is retained for further action.
Id. at 520, 591 P.2d at 626 (citations omitted).
In the case at bar, HPERB's order denying PEMAH's intervention was one ending the proceedings in regard to PEMAH, and therefore was a final order under Gealon.
We conclude that the circuit court erred in holding that HPERB's order denying PEMAH's intervention was interlocutory. We reverse and remand this case to the circuit court for further consideration and direct that all other issues raised by PEMAH and the individual employees in this appeal be heard and considered by the circuit court together with its companion case now pending before the circuit court arising from HPERB's Order No. 95.
NOTES
[1] The order stated in part:
Turning now to the questions of intervention, upon which this Board heard oral testimony and argument and received written briefs, the Board has concluded that PEMAH has failed to demonstrate that it, an organization made up primarily of excluded employees, has any statutory or other right or legally assertable interest which would justify granting it intervenor status in these proceedings... .
... [T]he seven individuals named above are hereby granted intervenor status subject to the following restrictions:
.....
2. Their participation will be limited to the production or questioning of evidence related solely to the duties and functions of the specific positions they occupy.
... The Board is of the opinion that PEMAH, a corporation, is a person as that term is used in Rule 1.07(b) of the Rules and Regulations of this Board and hence may represent the individual intervenors provided that they authorize PEMAH to act in a representative capacity for them. Rule 1.07(c). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608597/ | 27 Wash. App. 645 (1980)
621 P.2d 737
THE STATE OF WASHINGTON, Respondent,
v.
NORMAN DEAN TARMAN, Appellant.
No. 3769-II.
The Court of Appeals of Washington, Division Two.
November 14, 1980.
Carl D. Teitge, for appellant.
Don Herron, Prosecuting Attorney, and Joseph D. Mladinov, Senior Deputy, for respondent.
REED, C.J.
In the evening of March 21, 1978, defendant Norman Dean Tarman became involved in a fight with a Pierce County sheriff's deputy who was attempting to arrest him for driving while intoxicated and for refusing to give information to or cooperate with a police officer. Defendant was acquitted in Eatonville District Court of the charge of driving while intoxicated, but was convicted of the other charge. As a result of the fight, defendant also was convicted in Superior Court of third degree assault. He appeals, contending it was error for the Superior Court to exclude evidence of his district court acquittal. We affirm.
On direct examination in Superior Court, Deputy Wiemer testified that when he first encountered defendant that evening he could smell alcohol on defendant's breath and that defendant was unsteady on his feet. The deputy further stated that he had arrested defendant "for failing to obey a police officer and drunk driving," and without objection that he later filed charges for those offenses.
*647 On cross-examination, defense counsel attempted to elicit from the deputy that defendant had been acquitted of driving while intoxicated. The prosecutor objected on relevancy grounds and the objection was sustained.
[1] Defendant argues that such testimony was necessary to rebut prejudicial evidence of intoxication introduced by the State. We do not find this argument convincing. Any evidence of defendant's intoxicated condition was relevant to the charge of third degree assault to the extent that it would demonstrate whether Deputy Wiemer had probable cause to stop defendant, and therefore whether the arrest defendant resisted was lawful. While evidence of acquittal of the drunk driving charge may have had some probative value on the issue of probable cause, we agree with the trial court that its limited probative value was outweighed by potential confusion of issues and misleading of the jury. See 4 J. Weinstein & M. Berger, Evidence ¶ 803(22)[01], at 803-280 (1979). Under the circumstances of this case, proof that a trier of fact in another trial failed to find beyond a reasonable doubt that defendant was guilty of drunk driving is not sufficiently relevant and does not constitute proper rebuttal evidence.[1]
No previous reported Washington case has addressed this precise issue. The only Washington case dealing with a related problem is State v. Russell, 62 Wash. 2d 635, 384 P.2d 334 (1963), in which the defendant argued that evidence of tampering with a prosecution witness was inadmissible at trial because of his previous acquittal of that charge.[2] The court stated its holding in the following language:
*648 The fact of acquittal of the criminal offense of which evidence is offered, does not affect its admissibility but goes only to its weight.
State v. Russell, supra at 637. Although this statement might inferentially support the view that proof of acquittal is always admissible, see Annot., 86 A.L.R. 1132, 1144 (1962), we do not believe our Supreme Court intended to resolve that question or to adopt such an inflexible rule. Instead, we read Russell to merely state the rule that prior acquittal of an independent crime does not automatically make evidence of that crime inadmissible. We therefore look to decisions in other jurisdictions for guidance on the question before us.
We believe Nordgren v. United States, 181 F.2d 718 (9th Cir.1950), presents a situation closely analogous to the instant case. In Nordgren the defendant was tried for bribing a wildlife patrol officer to refrain from reporting that the defendant had fished illegally for salmon in a closed area. Prior to the bribery prosecution, the defendant had been acquitted of the illegal fishing charge. During the bribery trial, the defendant unsuccessfully sought to introduce evidence of the acquittal for the purpose of contradicting the testimony and impeaching the credibility of the wildlife officer. In affirming the district court's ruling, the circuit court concluded that the evidence of acquittal was "not only without real worth but its admission would have a positive tendency to confuse or mislead the jury." Nordgren v. United States, supra at 721. See State v. Roy, 173 Conn. 35, 376 A.2d 391, 398 (1977); State v. Blyden, 165 Conn. 522, 531, 338 A.2d 484, 489 (1973); State v. Hoffman, 257 S.C. 461, 186 S.E.2d 421, 426 (1972)(following Nordgren).
We are aware that courts in several jurisdictions have held that where proof of another offense has been introduced by the State, the defendant must be permitted to *649 prove his prior acquittal of that offense. Ex parte Bayne, 375 So. 2d 1239 (Ala. 1979); Mitchell v. State, 140 Ala. 118, 37 So. 76 (1904); People v. Griffin, 66 Cal. 2d 459, 426 P.2d 507, 58 Cal. Rptr. 107 (1967); State v. Leahy, 243 Iowa 959, 967, 54 N.W.2d 447, 452 (1952); State v. Pierson, 204 Iowa 837, 216 N.W. 43 (1927); Nolan v. State, 213 Md. 298, 131 A.2d 851 (1957); Womble v. State, 8 Md. App. 119, 258 A.2d 786 (1969); State v. Millard, 242 S.W. 923 (Mo. 1922); State v. Hopkins, 68 Mont. 504, 219 P. 1106 (1923); Koenigstein v. State, 101 Neb. 229, 162 N.W. 879 (1917); State v. Calloway, 268 N.C. 359, 150 S.E.2d 517 (1966); State v. Smith, 271 Ore. 294, 532 P.2d 9 (1975); Ivey v. State, 43 Tex. 425, 431 (1875). Contra, McCartney v. State, 3 Ind. 353, 354 (1852) (dictum); State v. Norman, 135 Iowa 483, 487, 113 N.W. 340 (1907); State v. Schlue, 129 N.J. Super. 351, 323 A.2d 549 (1974); State v. Heaton, 56 N.D. 357, 217 N.W. 531 (1927); Patterson v. State, 96 Ohio St. 90, 117 N.E. 169 (1917). See generally Annot., 86 A.L.R. 2d 1132 (1962). These cases, however, are distinguishable from the one before us. Each involved the State's introduction of evidence connecting the defendant to other independent crimes that were similar to the crime for which the defendant was being tried. In such circumstances, there is great danger that the jury will give excessive weight to the other crimes evidence in reaching a finding of guilt or innocence, due to the inevitable tendency of such evidence to convince the jury of the defendant's propensity to commit that particular crime. In addition, evidence of particularly reprehensible independent crimes may tempt a jury to conclude that the defendant deserves punishment irrespective of his guilt or innocence of the charged offense. 2 J. Wigmore, Evidence §§ 305, 306 (rev. ed. 1979). Although the danger that other crimes evidence might be misused may not justify its exclusion at trial,[3] the risk of misuse may weigh in *650 favor of admission of acquittal evidence to remove any implication that the defendant has been convicted of the other crime, an implication that might not be removed by cautionary jury instructions.
The instant case is quite different, however. Here, Mr. Tarman's misconduct was not merely intimately related to, but formed an inseparable part of, the entire episode. It would have been virtually impossible for the State to present its case without bringing in the totality of circumstances leading to the attempted arrest and ensuing assault. E. Cleary, McCormick's Evidence § 190 (2d ed. 1972); 1 J. Wigmore, Evidence § 218 (3d ed. 1940); 2 J. Weinstein & M. Berger, Evidence ¶ 404[10] (1980). This was no attempt by the State either to impugn defendant's general character or to show a propensity for assault by introducing evidence of independent criminal conduct. With all the facts surrounding the arrest before the jury, evidence of acquittal on the drunk driving charge would have little, if any, probative value. Nor would evidence of acquittal be necessary to combat the dangers to which we have alluded when the evidence concerns independent criminal acts. For these reasons, had the State limited its evidence to the grounds for arrest, we are satisfied the trial judge would not have abused his discretion in keeping the fact of acquittal from the jury.
An additional problem arises, however, because the State also elicited the irrelevant fact that charges were filed. The question thus becomes whether by "opening the door" the State is precluded from keeping out the additional irrelevant fact of acquittal. In the particular setting of this case, we think it was not.
*651 [2] One eminent authority, under the heading Curative Admissibility, lists three basic approaches to this problem which the courts have taken:
(1) ... the admission of an inadmissible fact, without objection by the opponent, does not justify the opponent in rebutting by other inadmissible facts:
(2) ... the opponent may resort to similar inadmissible evidence:
(3) ... the opponent may reply with similar evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence, but in no other case.
1 J. Wigmore, Evidence § 15 (3d ed. 1940). See also E. Cleary, McCormick's Evidence, supra at § 57.
In Washington the early case of Dutcher v. Howard, 15 Wash. 693, 696, 47 P. 28 (1896), held that a party "had a right to re-examine as to the [inadmissible] evidence elicited" by his opponent. Although many later decisions have dealt with the issue in one form or another, none has relied upon the hard and fast rule of Dutcher. Rather, our courts recognize the element of trial court discretion in such matters.[4]
So, too, in the instant case, we believe the decision as to whether to permit evidence of acquittal was a matter for *652 the sound discretion of the trial judge. We are convinced that discretion was not abused. We see no "plain and unfair prejudice" to the defendant from the proof the deputy "filed" a charge. Gillett v. Lydon, 40 Wash. 2d 915, 917, 246 P.2d 1104 (1952). The officer had already testified to defendant's conduct in detail, that he had placed him under arrest, and that defendant had been taken to the station house for "booking." If the additional fact that charges were filed gave rise to any inference defendant was later convicted, it would be slight to say the least. The sole issue was whether the officer had probable cause to arrest. As the able trial judge observed, evidence of the acquittal would have merely taken the jury down a side track, thus tending to confuse and mislead them on the crucial issue. We conclude defendant's offer to prove he had been acquitted of the driving while intoxicated charge was properly rejected.
[3] As his second assignment of error, defendant contends for the first time on appeal that certain questions and comments by the prosecutor concerning defendant's previous testimony constituted prejudicial prosecutorial misconduct requiring a new trial. During cross-examination of defendant, the following interchange occurred.
Q Now, after the fight was all over with, you were handcuffed, placed in a patrol car, is that your testimony that the officer let you out of the patrol car to look for your wallet?
A No, they did not let me out and I didn't testify to that.
Q You didn't, I'm sorry. That's not what I heard. Now, had you had anything to drink this day?
[Defense counsel]: Objection.[[5]]
[The Court]: Overruled.
A Yes, I had two cans of beer in a period of two hours.
*653 Q Didn't you, in fact, have a six-pack?
A No, I did not.
Q Do you recall being up in the courtroom at Eatonville when the other parts of this matter were tried?
A That's correct, I do recall.
Q Do you recall testifying that, in fact, you had a six-pack that you drank between where you left work and on the way home?
A I did not testify to that in Eatonville.
[Prosecutor]: I have no other questions, Your Honor.
(Italics ours.) Washington appellate courts repeatedly have held that the the trial court must be given an opportunity to correct trial errors, and that claimed errors not raised in any manner before the trial court will not be considered on appeal. An exception to this general rule is made only when prosecutorial misconduct is so flagrant that no instruction could cure it. State v. Basford, 76 Wash. 2d 522, 457 P.2d 1010 (1969); State v. Beard, 74 Wash. 2d 335, 444 P.2d 651 (1968); State v. Jacobsen, 74 Wash. 2d 36, 442 P.2d 629 (1968); State v. Huson, 73 Wash. 2d 660, 440 P.2d 192 (1968); State v. Badda, 68 Wash. 2d 50, 411 P.2d 411 (1966); State v. Sluder, 11 Wash. App. 8, 521 P.2d 971 (1974). Assuming the prosecutor's reference to the Eatonville District Court trial was improper, defendant interposed no objection and sought no relief from the court. In the absence of objection, the impropriety, if any, was not so flagrant as to deprive defendant of a fair trial or require reversal.
Judgment affirmed.
PEARSON and PETRIE, JJ., concur.
NOTES
[1] Evidence such as testimony of witnesses who observed defendant that evening or physical evidence of sobriety would have been more probative of whether probable cause existed to arrest defendant for drunk driving.
[2] In support of his argument that the State's introduction of evidence of intoxication was improper, defendant cites State v. Lindsey, 27 Wash. 2d 186, 177 P.2d 387 (1947), and State v. Kimbriel, 8 Wash. App. 859, 510 P.2d 255 (1973). Neither case is apposite, however, because in each the sole reason for the other crimes evidence was to impeach the credibility of the defendant. See State v. Russell, 62 Wash. 2d 635, 637-38, 384 P.2d 334 (1963). Compare ER 404(b) with ER 608(b) and ER 609.
[3] Doubt about whether the other crime occurred and unnecessary delay and confusion that can arise when such a subsidiary issue is contested, see Dandridge v. State, 109 Ga. App. 33, 134 S.E.2d 814 (1964), have led some courts to routinely exclude other crimes evidence if the defendant has been acquitted. See, e.g., State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960). Washington does not follow this rule, however, State v. Russell, 62 Wash. 2d 635, 637, 384 P.2d 334 (1963) (acquittal does not affect admissibility of other crimes evidence but goes only to its weight), and in some instances the facts of the two crimes may be so intimately related that the charged crime cannot be proved without tending to establish the other crime. See, e.g., State v. Millard, 242 S.W. 923 (Mo. 1922).
[4] The following Washington cases have upheld the trial court's admission of otherwise irrelevant evidence, where the objecting party first "opened the door." Nordstrom v. White Metal Rolling & Stamping Corp., 75 Wash. 2d 629, 642, 453 P.2d 619 (1969); Warren v. Hart, 71 Wash. 2d 512, 516, 429 P.2d 873 (1967); State v. Robinson, 61 Wash. 2d 107, 109, 377 P.2d 248 (1962); State v. King, 58 Wash. 2d 77, 78, 360 P.2d 757 (1961); Short v. Hoge, 58 Wash. 2d 50, 54, 360 P.2d 565 (1961); State v. Oldham, 56 Wash. 2d 696, 698-99, 355 P.2d 9 (1960); Sullivan v. Dunn, 46 Wash. 2d 255, 257, 280 P.2d 668 (1955); State v. Emmanuel, 42 Wash. 2d 1, 12, 253 P.2d 386 (1953); Gillett v. Lydon, 40 Wash. 2d 915, 917, 246 P.2d 1104 (1952); Luther v. West Side Tel. Co., 134 Wash. 410, 414, 235 P. 783 (1925); Ott v. Press Publishing Co., 40 Wash. 308, 314, 82 P. 403 (1905); Larson v. Pischell, 13 Wash. App. 576, 580, 535 P.2d 833 (1975); Dravo Corp. v. L.W. Moses Co., 6 Wash. App. 74, 87, 492 P.2d 1058 (1971).
In the following cases, the appellate court upheld the trial court's ruling in refusing to admit evidence admissible only to counter evidence admitted without objection by the other side. Haysom v. Coleman Lantern Co., 89 Wash. 2d 474, 485-86, 573 P.2d 785 (1978); Seattle v. Smythe, 97 Wash. 351, 356, 166 P. 1150 (1917).
[5] This testimony took place after the trial court thwarted defendant's attempt to introduce his acquittal on the drunk driving charge. A review of the entire transcript unquestionably indicates that trial counsel's objection was directed to the question concerning intoxication, not to the comment on defendant's previous testimony. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608603/ | 28 Wash. App. 90 (1981)
621 P.2d 217
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, Appellant,
v.
UNITED CARTAGE, INC., Respondent.
No. 7937-9-I.
The Court of Appeals of Washington, Division One.
January 5, 1981.
Slade Gorton, Attorney General, and John W. Hough, Assistant, for appellant.
George Kargianis, for respondent.
RINGOLD, J.
The Washington Utilities and Transportation Commission (Commission) appeals a judgment of the Superior Court that reversed the Commission's denial of *92 United Cartage's (United) request for a permit to serve a region known as the Seattle Commercial Zone. We hold that the Commission properly denied the permit and therefore reverse the trial court and reinstate the Commission's decision.
The Commission is a state administrative agency that regulates a wide range of commercial enterprises including utility companies, pipeline companies, freight transportation companies and storage warehouse companies. RCW Titles 80 and 81. Here we are concerned with the Commission's authority to issue permits to motor freight carriers. RCW 81.80.070, .400. Unless exempted from regulation, a carrier may not carry freight by motor vehicle for compensation without first obtaining a permit from the Commission, and a permit holder may not provide a service that exceeds the scope of its permit. RCW 81.80.040-.070 and .100.
The Commission's general permit issuance authority is set out in RCW 81.80.070.[1] Pursuant to this statute, the Commission decides whether an applicant is qualified, whether proposed services are consistent with the public *93 interest and, for common carriers, whether proposed services are or will be required by public convenience and necessity. In this case we are primarily concerned with a special authority to issue permits as described in RCW 81.80.400.[2] This statute allows the Commission to designate a commercially interdependent area as a commercial zone. Once the Commission establishes a commercial zone, the statute requires it to grant certain "grandfather rights" to common carriers already providing intercity service within the zone. It must issue a zonewide permit to any common carrier that has served as an intercity carrier between any two cities in the zone during the previous year.
On February 7, 1977, the Commission established the Seattle Commercial Zone and included within its boundaries an area extending from Auburn to the Everett Boeing facilities and from Puget Sound to just past Redmond and Bellevue. WAC 480-12-096. Complying with RCW 81.80.400, the Commission enacted a regulation recognizing the right of a common carrier to serve the entire zone if it had made intercity deliveries within the zone during the previous year. WAC 480-12-031.
United is a common carrier holding local cartage permits for Seattle and Bellevue. It initiated this matter by petitioning the Commission for an automatic extension of its permits to include the entire Seattle Commercial Zone. At *94 the hearing on its petition, United proved that it had made deliveries between Seattle and Bellevue during the previous year. The Commission denied the petition on the basis of its ruling that the intercity deliveries were not authorized by United's local cartage permits.
The Commission's ruling was based on its own definition of "local cartage". Local cartage permits generally do not authorize intercity service, but the definition allows intercity service to some contiguous cities. WAC 480-12-080, -990. The Commission had consistently ruled in prior cases that Seattle and Bellevue were not contiguous, and the Commission relied on those decisions in its ruling that United's local cartage permits for each city did not authorize deliveries between them. The Commission, therefore, concluded that United failed to satisfy the factual prerequisite of intercity service and was not entitled to an automatic Seattle Commercial Zone permit.[3]
United sought review of this decision in Superior Court. The trial court reversed the Commission, holding that Seattle and Bellevue are contiguous because they have a common boundary somewhere in the middle of Lake Washington. On appeal, the Commission contends that these two cities are not contiguous. The Commission also argues that we should defer to its regulatory expertise and uphold its consistent treatment of Seattle and Bellevue as noncontiguous cities.
STANDARD OF REVIEW
[1] The administrative procedures act controls judicial review of a state agency's final decision in a contested case. RCW 34.04.130, .140. It requires this court and the trial court to exercise the same appellate function by reviewing the record of the administrative proceedings. RCW 34.04.130(5); Farm Supply Distribs., Inc. v. State Utils. & *95 Transp. Comm'n, 83 Wash. 2d 446, 518 P.2d 1237 (1974). The standards for this review are set out in RCW 34.04.130(6).
United asks us to review the Commission's decision to determine if it was affected by an error of law. RCW 34.04.130(6)(d). Although the Commission urges us to apply the "clearly erroneous" test in RCW 34.04.130(6)(e), the Commission also makes a persuasive legal argument that enables us to dispose of this case without examining factual issues. We have concluded that United has not met its burden of demonstrating that the Commission's decision was unlawful. Cole v. State Utils. & Transp. Comm'n, 79 Wash. 2d 302, 485 P.2d 71 (1971); Black Ball Freight Serv. v. State Utils. & Transp. Comm'n, 77 Wash. 2d 479, 463 P.2d 169 (1969).
COMMISSION'S INTERPRETATION OF ITS RULE DEFINING "LOCAL CARTAGE"
[2] The Commission's decision was based upon its interpretation of its own rule defining local cartage, WAC 480-12-080, -990. The Commission has consistently held that Seattle and Bellevue are not contiguous within the meaning of this rule. These decisions have affected the scope of common carrier services allowed by local cartage permits and have reflected the Commission's view of the public interest. RCW 81.80.070. We are firmly committed to the view that the judiciary should generally defer to the Commission's judgment when it interprets its own rule because the Commission, not the courts, is best qualified to promote public policy when acting within the ambit of its administrative function. Farm Supply Distribs., Inc. v. State Utils. & Transp. Comm'n, supra; Northern Pac. Ry. v. State Utils. & Transp. Comm'n, 68 Wash. 2d 915, 416 P.2d 337 (1966); Herrett Trucking Co. v. State Public Serv. Comm'n, 61 Wash. 2d 234, 377 P.2d 871 (1963). United, nonetheless, argues that the physical proximity of Seattle and Bellevue requires the Commission to treat the cities as contiguous.
*96 Like many words in statutes and regulations, the precise meaning of "contiguous" depends upon the context of its usage and the intent of the statute or regulation. See Hart v. Peoples Nat'l Bank, 91 Wash. 2d 197, 588 P.2d 204 (1978). Depending upon the circumstances, courts have ascribed a variety of meanings to "contiguous". Safford v. Thatcher, 17 Ariz. App. 25, 495 P.2d 150 (1972); La Salle Nat'l Bank v. Burr Ridge, 81 Ill. App. 2d 209, 225 N.E.2d 33 (1967); Schwartz v. Shelby Constr. Co., 338 S.W.2d 781 (Mo. 1960). In some instances, the word may embody the concept of "near". Grand Union Co. v. Laurel Plaza, Inc., 256 F. Supp. 78 (D. Md.), aff'd, 369 F.2d 697 (4th Cir.1966). It is not our function, however, to impose that meaning on the Commission. This case is a perfect example of why we must defer to the Commission's judgment. If we required the Commission to treat nearby cities as contiguous, the impact of that decision would extend far beyond a carrier's rights to serve a commercial zone. It would inject enormous complexities into the regulation of local cartage permits issued for the public convenience and necessity pursuant to RCW 81.80.070. The extent of the expanded scope of local cartage permits to "nearby" cities would be unclear, and the resulting expanded service would undermine the Commission's prior measurement of public convenience and necessity. We accept the Commission's consistent view that it is in the public interest to treat Seattle and Bellevue as noncontiguous cities.
EFFECT OF RCW 35.21.160
[3] United next contends that Seattle and Bellevue are contiguous because their boundaries are extended halfway into Lake Washington by RCW 35.21.160. This statute regulates the powers and jurisdiction of incorporated cities and towns by extending their boundaries halfway out into certain adjoining waters. The boundaries, however, are extended for "municipal purposes" to permit the exercise of municipal powers. Pacific Am. Fisheries v. Whatcom County, 69 Wash. 291, 295, 124 P. 905 (1912). They are not *97 extended for the purpose of regulating the powers of the Commission. Those powers are controlled by RCW Titles 80 and 81. Where two statutes concern wholly different subject matters, serve entirely separate purposes and operate independently of each other, they should not be construed together. PUD 1 v. Newport, 38 Wash. 2d 221, 228 P.2d 766 (1951); Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 P. 795 (1910); cf. Champion v. Shoreline School Dist. 412, 81 Wash. 2d 672, 504 P.2d 304 (1972) (statutes relating to the same subject matter are in pari materia and should be construed together). RCW 35.21.160, therefore, has no effect on the Commission's powers, and it does not require the Commission to treat Seattle and Bellevue as contiguous cities.
Even if RCW 35.21.160 were applicable, our opinion would be unchanged because of the rule of deference to the Commission's expertise in interpreting its own rules. The Commission's comprehensive authority to regulate common carriers in the public interest includes the authority to interpret its rule to allow or deny intercity service under local cartage permits for cities that are contiguous only because of RCW 35.21.160.
[4] Finally, even if we reach the factual issue of the contiguity of Bellevue and Seattle under RCW 35.21.160, the Commission's decision was not clearly erroneous. A careful reading of the statute reveals that it does not anticipate the problem that arises when several cities are located along both sides of a body of water with an irregularly shaped shoreline. In such instances, a literal application would create overlapping jurisdictions. Statutes should not be read literally to reach an absurd result. Silver Shores Mobile Home Park, Inc. v. Everett, 87 Wash. 2d 618, 555 P.2d 993 (1976). They should be read in a manner which produces a sensible result that is consistent with the intent of the legislature. Amburn v. Daly, 81 Wash. 2d 241, 501 P.2d 178 (1972).
[5] The most sensible construction of RCW 35.21.160 is that a city has jurisdiction over those adjoining waters *98 closer to that city than to any other city. In effect, the problem boils down to one of cartography. An examination of the maps in the record reveals that Bellevue and Seattle do not have a common boundary under this interpretation of the statute. Clyde Hill, Medina, and Mercer Island are located along Lake Washington in a manner that prevents Bellevue and Seattle from having a common boundary. There is an irregularly shaped, continuous stretch of water in that portion of Lake Washington closest to the east side that belongs to either Mercer Island, Clyde Hill or Medina. The extension of the boundaries of these three cities into Lake Washington prevents the boundaries of Bellevue from reaching Seattle's boundaries in the middle of the lake.
The Commission's decision was not affected by an error of law and was proper in all respects. United does not qualify for an automatic Seattle Commercial Zone permit, but our decision does not affect United's right to petition for that permit under other provisions in RCW 81.80. See RCW 81.80.070, .400.
The trial court is therefore reversed.
JAMES, C.J., and CALLOW, J., concur.
Reconsideration denied February 10, 1981.
Review denied by Supreme Court April 23, 1981.
NOTES
[1] "No `common carrier,' `contract carrier,' or `temporary carrier' shall operate for the transportation of property for compensation in this state without first obtaining from the commission a permit so to do. Permits heretofore issued or hereafter issued to any carrier, shall be exercised by said carrier to the fullest extent so as to render reasonable service to the public. Applications for common or contract carrier permits or extensions thereof shall be on file for a period of at least thirty days prior to the granting thereof unless the commission finds that special conditions require the earlier granting thereof.
"A permit or extension thereof shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the services proposed and conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and that such operations will be consistent with the public interest, and, in the case of common carriers, that the same are or will be required by the present or future public convenience and necessity, otherwise such application shall be denied.
"Nothing contained in this chapter shall be construed to confer upon any person or persons the exclusive right or privilege of transporting property for compensation over the public highways of the state."
[2] "When upon public hearing the commission has designated an area to constitute a commercial zone upon a finding that public convenience and necessity require such designation, any common carrier of general freight who in the usual and ordinary course of his business during the past twelve months immediately preceding such designation has served as an inter-city carrier of general freight between any two cities in such zone shall have the authority to serve as a common carrier of general freight between any points within the zone at rates prescribed by the commission: Provided, however, That any restrictions on his authority to transport general freight shall remain in full force and effect. Any person thereafter seeking to serve as a common carrier of general freight within the zone shall be subject to all the requirements of this chapter and the rules of the commission applicable to persons seeking new or extended permit authority. Commercial zone as used herein is declared to mean an area including one or more cities or towns and environs thereto, found by the commission to be commercially interdependent."
[3] The Commission has never contended that another type of permit was required to satisfy the factual prerequisite for a Seattle Commercial Zone permit. It has impliedly conceded that it is sufficient if the intercity service was lawfully provided under a local cartage permit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2615181/ | 668 P.2d 1351 (1983)
J.C., Appellant,
v.
M.L.C., Appellee.
No. 7166.
Supreme Court of Alaska.
September 9, 1983.
*1352 Melvin M. Stephens, II, Hartig, Rhodes, Norman, Mahoney & Edwards, Kodiak, for appellant.
Dennis L. Nelson, Sterbick-Nelson & Nelson, Kodiak, for appellee.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION
MATTHEWS, Justice.
J.C. and M.L.C. filed a petition for dissolution of their marriage on July 11, 1978. The sworn petition stated that one child had been born of the marriage, M.A.C., born July 17, 1977, and provided that custody of M.A.C. would be awarded to M.L.C. subject to reasonable visitation rights of J.C. The agreement provided that J.C. was to pay child support to M.L.C. for M.A.C. of $200.00 per month. J.C. then filed an appearance and waiver and on August 11, 1978, a decree of dissolution incorporating by reference the provisions of the petition regarding custody and child support was entered.
On November 30, 1979, J.C. moved to modify the decree of dissolution, seeking deletion of his obligation to pay child support. The motion was made pursuant to Civil Rule 60(b). J.C. claimed that he was not the father of the child, that M.L.C. was not the mother and that he agreed to representations to the contrary in the petition because of M.L.C.'s threats to, among other things, report him to the Internal Revenue Service for tax evasion if he did not agree. J.C.'s motion set forth that he is a Filipino with a very limited understanding of English; and that the child is the child of M.L.C.'s daughter by a previous marriage, T.F., and of a father unknown to J.C. In response M.L.C. admitted that she was not the mother of the child and that T.F. was. She claimed, however, that J.C. was the father of the child and had urged her to hold herself out as the mother by various means, including wearing maternity dresses prior to its birth. T.F., according to M.L.C., gave the child to M.L.C. and J.C. shortly after it was born, and the parties treated it in all respects as though it were a child of their marriage.
After some discovery and various motions, the court entered an order stating:
Petitioner, having committed perjury with regard to paternity of the alleged child, and Respondent, having perjured herself with regard to maternity of said child, are both estopped from denying parentage.
The Court, therefore, denies Petitioner's Motion to Modify Decree... .
From this order J.C. has appealed.
His first point is that the court erred in ruling that he was estopped from denying paternity. His claim is essentially one of duress. He argues that he was forced by M.L.C.'s threats to agree that the child was his. His claim thus falls within Civil Rule 60(b)(3) under which a party may obtain relief from a final judgment for "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party... ." However, a motion under that provision must be made within a reasonable time not more than one year after the judgment. J.C.'s motion was, therefore, made too late and could not have been considered by the superior court. See Larson v. Larson, 661 P.2d 626, 628-29 (Alaska 1983).
This does not mean that an independent collateral action for relief from the judgment would be barred. Civil Rule 60(b) is not the exclusive method by which relief from a judgment may be sought. 7 J. Moore & J. Lucas, Moore's Federal Practice ¶¶ 60.1[1], 60.12, 60.37[1] (2d ed. 1982). An independent action for duress may be maintained where it is alleged that duress has forced an agreement which has led to an adverse judgment. Griffith v. Bank of New York, 147 F.2d 899, 901-02 (2nd Cir.), cert. denied, 325 U.S. 874, 65 S. Ct. 1414, 89 *1353 L.Ed. 1992 (1945).[1] However, such an action must be maintained independently and cannot be brought as a Rule 60(b) proceeding.
J.C.'s second point on appeal is that the trial court lacks subject matter jurisdiction to enter an order relating to the custody and support of the child. This argument is founded on the statutory language of AS 09.55.231[2] and .234[3] that custody and support agreements are referable to a child, or children, "of the marriage."
Since the parties are residents of the State of Alaska and the superior court is competent to render judgment concerning child custody and support, the superior court did not lack subject matter jurisdiction. Restatement of the Law of Judgments §§ 5, 7 (1942). In other jurisdictions a husband's support obligation is also regarded as extending only to children of the marriage; nonetheless, a mistake in the determination of paternity is not regarded as jurisdictional error. See H. Clark, The Law of Domestic Relations in the United States § 15.1, at 492-93 (1968).[4]
Moreover, the petition can be interpreted as an agreement to support the child regardless of its paternity. We know of no reason why the superior court would lack authority to enforce such an agreement. Of course, such an agreement, and the judgment resulting therefrom, may be set aside for duress if grounds exist. See n. 1 supra. However, for the reasons previously explained, this can only be done in an independent proceeding.
The judgment is AFFIRMED.
RABINOWITZ, Justice, concurring in part and dissenting in part.
I agree with the majority's conclusion that the superior court did not lack subject-matter jurisdiction over this proceeding. However, I disagree with the court's holding that J.C.'s motion to modify the dissolution decree to delete his obligation to pay child support was untimely. Although J.C.'s motion was indeed filed more than one year after the judgment was entered, and therefore relief under Rule 60(b)(3) was properly denied, the superior court should have treated the motion as an independent action. In this regard I disagree with the majority that the independent action must be maintained in a separate proceeding. Providing M.L.C. is not prejudiced by a decision to address the Rule 60(b) motion as if it had been brought as an independent *1354 action, the superior court should proceed in that manner.[1]
We set out the requirements for maintenance of an independent action in Anderson v. State, Dept. of Highways, 584 P.2d 537 (Alaska 1978). It is available "only under unusual and exceptional circumstances" and the indispensable elements of such an action are as follows:
(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law. 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2868, at 238 (1973), quoting National Sur. Co. of New York v. State Bank of Humboldt, 120 F. 593, 599 (8th Cir.1903).
584 P.2d at 540 n. 6. I am persuaded by the record before the court that J.C. could successfully argue that these prerequisites had been satisfied. Therefore, I would remand the case to the superior court for a determination of whether M.L.C. would be unduly prejudiced by a "conversion" of the 60(b) motion into an independent action and, then, if appropriate, for an entry of findings on the question of whether J.C.'s action satisfies the Anderson criteria.
NOTES
[1] See Restatement of the Law of Judgments § 121 (1942) which provides:
Subject to general equitable considerations ..., equitable relief from a valid judgment will be granted to a party to the action injured thereby if the judgment was based upon a fraudulent claim or defense which he did not contest because he was
(a) fraudulently misled by the other party to the action to believe that he had no claim or defense, or
(b) prevented by duress from contesting it.
[2] AS 09.55.231(a) provides in part:
A husband and wife together may petition the superior court for the dissolution of their marriage under AS 09.55.231-09.55.237 if the following conditions exist at the time of filing the petition:
... .
(2) if there are minor children of the marriage or the wife is pregnant, the spouses have agreed on which spouse or third party shall be awarded custody of each minor child of the marriage... .
[3] AS 09.55.234(a) provides in part:
If the petition is brought by one or both spouses under AS 09.55.231(a), the court may grant the spouses a final decree of dissolution and shall provide the other relief as provided in this section if the court, upon consideration of the information contained in the petition and the testimony of the spouse or spouses at the hearing, finds that
... .
(2) the agreements between the spouses concerning child custody, child support ... are in the best interests of the children of the marriage, if any. .. .
[4] This rule applies to uncontested as well as to contested matters. See H. Clark, Domestic Relations § 15.1, at 493-94.
[1] See Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 n. 7 (5th Cir.), cert. denied, 399 U.S. 927, 90 S. Ct. 2242, 26 L. Ed. 2d 793 (1970), where the court said: "Where the adverse party is not prejudiced an independent action for relief may be treated as a 60(b) motion, and conversely, a 60(b) motion may be treated as the institution of an independent action." See also 7 J. Moore & J. Lucas, Moore's Federal Practice, ¶¶ 60.38[3], 60.42 (2d ed. 1982); 11 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2868 at 244 (1973) (party not bound by the label he puts on his papers; motion may be treated as independent action or vice versa as appropriate). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608585/ | 621 P.2d 709 (1980)
STATE of Utah, Plaintiff and Respondent,
v.
Robert Kirk ECHEVARRIETA, Defendant and Appellant.
No. 16914.
Supreme Court of Utah.
December 4, 1980.
*710 Robert J. Schumacher of Utah County, Legal Defenders Ass'n, Provo, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Olga Agnello-Raspa, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
HALL, Justice:
Defendant appeals his conviction by a jury of the crime of production of marijuana.[1]
Defendant was caring for the house and yard of his brother who was absent from said premises, which are located in Santaquin, Utah. A city water meter reader, Walter Smith, came upon the premises and incident to his search for the meter, observed two flower pots in the living room window, each containing single plants; a large metal washtub near the kitchen door containing several plants; and two white five-gallon plastic buckets in the backyard, each containing two to four plants. Smith recognized the plants as being marijuana from a college course he had taken in law enforcement and promptly advised Santaquin City Marshal, Gary McGiven, of his discovery. McGiven went directly to the premises, walked up the driveway, found no one present, but did also observe the marijuana plants growing in the containers. McGiven then withdrew from the premises, but kept them under surveillance until defendant was observed to come out of the house and water the plants in the two buckets. Thereupon, defendant was arrested and the plants confiscated as evidence.
Defendant's contentions on appeal are: (1) that the marshal's initial entry upon the premises constituted an unconstitutional search, hence the trial court erred in refusing to suppress the evidence obtained thereby; (2) that in any event, it was error not to suppress all evidence of marijuana other than that contained in the two buckets defendant was watering; (3) that it was error not to instruct that possession of marijuana was a lesser and included offense; (4) that it was error not to instruct that intent to distribute was an essential element of the offense charged; and (5) that the evidence generally was insufficient to convict.
To "search" is to look into or over carefully and thoroughly in an effort to find or discover.[2] Hardly can it be said *711 that Marshal McGiven's presence on the premises in any way constituted a constitutionally prohibited search. He simply observed, in plain sight, without an illegal search, that which Smith had already found and discovered.[3] Marshal McGiven's entry upon the driveway of the premises was therefore lawful, having been prompted by reliable information that a felony was in progress.[4] At that point in time, all that remained to be discovered was the perpetrator of the crime. Consequently, the officer withdrew from the premises and bided his time until the defendant appeared on the scene and proceeded to "tend" the marijuana plants. Such conduct on the part of the defendant constituted the commission of a public offense in the presence of the marshal, and his subsequent arrest was therefore lawful,[5] as was the confiscation of the contraband plants incident to the arrest.[6]
Defendant argues that he had a "reasonable expectation of privacy" and cites Katz v. United States[7] in support of his position. However, as Justice Harlan points out in concurring with the majority of the court:
Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited.
In the instant case, the fact that the marijuana plants were placed in "plain view" dispels any notion of an intention to keep them "protected" from the view of outsiders.
Defendant also cites Lorenzana v. Superior Court of Los Angeles County[8] as authority for his position. However, the court specifically distinguished the facts encountered therein (they being the peering through a narrow crack in the window curtains of the accused's house in order to view the sale of drugs in progress) from those cases in which evidence is observed from a position where the observer has a legal right to be. The court's reasoning was that:
... A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there.
* * * * * *
... [O]bservations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense.
In the case before us, the marshal was afforded an implicit invitation to enter upon the premises via the driveway and from his vantage point thereon, he observed the growing marijuana plants. The fact that the plants were in plain sight demonstrates the lack of any reasonable expectation of privacy.[9]
Defendant next contends that the trial court erred in not excluding the evidence pertaining to all marijuana plants other than the two he was observed watering. Admission of the evidence is supported by the doctrine of constructive possession. The following statement of the *712 court in State v. Floyd[10] is particularly apropos:
Constructive possession is generally applied to those circumstances where the drug is not found on the person of the defendant nor in his presence, but is found in a place under his dominion and control and under circumstances which it can be reasonably inferred that the defendant had actual knowledge of the existence of the narcotics. Exclusive control of the place in which the narcotics are found is not necessary.
The fact that defendant was in control of the premises, was aware of the existence of the plants, had access thereto, and in fact watered some of them, sufficiently establishes his constructive possession thereof. The plants were sufficiently identified visually and chemically, by qualified experts. Hence, evidence as to all of the plants was admissible.
Even assuming, arguendo, that the evidence was erroneously admitted, under the facts of this case it is not within our contemplation that a contrary verdict would have been reached in the absence of such evidence.[11]
Defendant's next contention, that simple possession of marijuana[12] is a lesser offense included within the offense charged, is deemed to be without merit. A greater offense includes a lesser one only when establishment of the greater necessarily requires proof of all the elements necessary to prove the lesser.[13]
The essential elements of the offense of production of a controlled substance, as charged in the instant case, are simply that the substance in fact be produced, knowingly and intentionally.[14] Possession is clearly not an element of the offense, whereas possession is the very gravamen of the offense of simple possession of a controlled substance. It is immaterial whether defendant was in possession of the plants, since by tending them he contributed to their growth, and was thus producing them.
In light of the foregoing analysis, defendant's further contention that "intent to distribute" is an essential element of the offense charged is also without merit as is his final contention, that of insufficiency of the evidence generally to justify a conviction.
The conviction and judgment of the trial court is affirmed.
CROCKETT, C.J., concurs.
STEWART, J., concurs in the result.
WILKINS, Justice (dissenting):
Once again a majority of this Court, I respectfully submit, declines to apply the law of search and seizure as laid down by the United States Supreme Court.
Defendant argues that the search by Officer McGiven on October 9 violated his legitimate expectation of privacy in the backyard of the residence, and was therefore illegal.[1] The plurality opinion responds that the officer made his observation from a place where he had a right to be a driveway serving the residence and since the plants were plainly visible from that vantage point, defendant could not entertain any such expectation of privacy.
The starting point for the analysis of a search is the proposition that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically *713 established and well-delineated exceptions."[2] The only possible exception to the search warrant requirement present here is the "plain view" exception.[3]
The "plain view" exception was exhaustively examined and explained in Coolidge v. New Hampshire.[4] There the Supreme Court stated:
What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only when it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.[5] (Emphasis added.)
Here, Officer McGiven's initial intrusion on the property was for the express purpose of searching for the marijuana plants which Mr. Smith had told McGiven were there. Thus, while it is true that the driveway by which McGiven entered the property may have afforded an implied invitation to the public to enter the property, that invitation cannot be constitutionally extended to encourage entrance by a police officer onto the property, without a warrant, for the purpose of searching for evidence about which he received prior information. McGiven's observation of the plants was not inadvertent in that he did not have "some other legitimate reason for being present unconnected with a search directed against the accused."
The necessary consequence of the illegal search here is the exclusion as evidence of all fruits of that search.[6] This would include all of the plants and the containers holding them, photographs of the plants, the results of any chemical analysis of the plants, and all testimony of Officer McGiven relating to his initial observation of the plants and his subsequent surveillance of the premises.
Turning now to the seizure of the plants on October 12, that seizure also violated the Fourth Amendment. As was noted, ante, the plants and their containers were seized immediately following the arrest of defendant. The plurality opinion seeks to justify the seizure as one incident to a lawful arrest. The State goes to great length in its brief to show probable cause for the arrest of defendant. However, the existence of probable cause to arrest, in and of itself, does not legitimate a warrantless search, for as the Supreme Court pointed out in Coolidge, supra:
[N]o amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances."[7]
The conclusion that the seizure was incident to arrest flies in the face of United *714 States Supreme Court decisions defining the limits of that exception to the warrant requirement. In Chimel v. California,[8] the Court stated:
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or to effect his escape ... In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule ... There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.[9]
The record here reflects that defendant was arrested while standing near his automobile in the driveway to the house. There is no indication that he made any move toward any of the plants. The plants were not on his person, nor within his "immediate control" as that term is defined for purposes of the "incident to arrest" exception to the warrant requirement. Therefore the seizure of the plants was constitutionally infirm, and the fruits of that seizure inadmissible.
As the evidence supplied by the illegal search and seizure described above is constitutionally inadmissible, it is clear that there was insufficient evidence here to convict defendant of the crime of production of a controlled substance. I would therefore reverse the District Court and remand for entry of judgment of not guilty.[10]
MAUGHAN, J., concurs in the dissenting opinion of WILKINS, J.
NOTES
[1] A Schedule I controlled substance, in violation of U.C.A., 1953, 58-37-8(1)(a)(i).
[2] Webster's Third New International Dictionary (Merriam-Webster, 1961).
[3] That the observations of an officer in plain view from a vantage point he has a legal right to occupy does not constitute a search, see State v. Folkes, Utah, 565 P.2d 1125 (1977), and cases cited therein.
[4] That a peace officer may arrest without a warrant for a public offense committed in his presence or when a felony has in fact been committed, see U.C.A., 1953, 77-13-3(1) and (4).
[5] U.C.A., 1953, 77-13-3(1), supra, footnote 4.
[6] State v. Folkes, supra, footnote 3.
[7] 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
[8] 108 Cal. Rptr. 585, 511 P.2d 33 (1973).
[9] See State v. Wettstein, 28 Utah 2d 295, 501 P.2d 1084 (1972), citing People v. Bradley, 81 Cal. Rptr. 457, 460 P.2d 129 (1969).
[10] 120 Ariz. 358, 586 P.2d 203 (1978), quoting State v. Villavicencio, 108 Ariz. 518, 502 P.2d 1337 (1972).
[11] That the trial court has considerable discretion as to the admissibility of evidence and that the erroneous admission of evidence, standing alone, is insufficient to set aside a verdict unless it "had a substantial influence in bringing about the verdict," see Bambrough v. Bethers, Utah, 552 P.2d 1286 (1976).
[12] U.C.A., 1953, 58-37-8(2)(a)(i).
[13] State v. Brennan, 13 Utah 2d 195, 371 P.2d 27 (1962).
[14] See statute, supra, footnote 1.
[1] Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
[2] Id., at 357, 88 S.Ct. at 514 (footnotes omitted).
[3] This exception was first formally enunciated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (see Note, The Plain View Doctrine in Nebraska, 57 Neb. L.Rev. 209 (1978) at n. 3). The other exceptions include (1) searches incident to arrest, Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); (2) automobile exception, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); (3) hot pursuit, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); (4) emergency situations, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); (5) consent, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946) (see, Williamson, The Supreme Court, Warrantless Searches, and Exigent Circumstances, 31 Okla. L.Rev. 110 (1978) at n. 5).
[4] 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
[5] Id., at 466, 91 S.Ct. at 2038.
[6] Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
[7] 403 U.S. at 468, 91 S.Ct. at 2039.
[8] 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
[9] Id., at 762-763, 89 S.Ct. at 2039-2040.
[10] Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); State v. Murphy, Utah, 617 P.2d 399 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608587/ | 621 P.2d 1249 (1980)
David S. GROW, Plaintiff and Appellant,
v.
MARWICK DEVELOPMENT, INC., a corporation; Daniel R. Southwick; Sterling Martell, et al., Defendants and Respondents, and
Boardwalk Development Corporation, Defendant, Intervenor and Respondent.
No. 16675.
Supreme Court of Utah.
December 10, 1980.
*1250 Keith C. Rooker and Neal B. Christensen of Martineau, Rooker, Larsen & Kimball, Salt Lake City, for plaintiff and appellant.
Ronald R. Stanger, Provo, for defendants and respondents.
David R. Olson, Stewart M. Hanson, Jr., Suitter, Axland & Armstrong, Salt Lake City, for Boardwalk Development Corp. and Phoenix Development.
WILKINSON, District Judge:
Appellant appeals from a summary judgment which declared that the respondents had not forfeited their interest under a uniform real estate contract.
The basic facts which are applicable in this case and do not appear to be in dispute are as follows:
1. That on the 18th day of October, 1977, the appellant David S. Grow as seller and respondents Marwick Development, Inc., a corporation; Daniel R. Southwick and Sterling Martell jointly and severally as buyers entered into a uniform real estate contract for the purchase of certain real property located in Utah County, State of Utah. Paragraph 3 of the contract provides, in part:
$205,000 plus accrued interest shall be payable in monthly installments of $1,747.44 until balance is paid in full. Said payments are to commence on December 1, 1977, and each subsequent month to be due and payable on the first day of each month.
Paragraph 11 provides, in part:
On or before November 15, 1977, buyer shall pay one-third of 1977 taxes and seller shall pay the balance of 1977 taxes and all of the 1976 taxes then due.
Paragraph 11B provides:
At any time and for whatever length of time this contract may be delinquent or in default by buyer for any reason the interest rate on all amounts unpaid under this contract shall increase to 18% per annum.
Paragraph 16 provides, in part:
In the event of a failure to comply with the terms hereof by the Buyer, or upon failure of the Buyer to make any payment or payments when the same shall become due, or within fifteen days thereafter, the Seller, at his option shall have the following alternative remedies:
A. Seller shall have the right, upon failure of the Buyer to remedy the default within fifteen days after written notice, to be released from all obligations in law and in equity to convey said property, and all payments which have been made theretofore on his contract by the Buyer, shall be forfeited to the Seller as liquidated damages for the non-performance of the contract, and the Buyer agrees that the Seller may at his option re-enter and take possession of said premises without legal processes as in its first and former estate, together with all improvements and additions made by the Buyer thereon, and the said additions and improvements shall remain with the land and become the property of the Seller, the Buyer becoming at once a tenant at will of the Seller.
2. Respondents failed to pay one-third of the 1977 taxes.
3. Respondents failed to make the May 1, 1978, payment.
4. On the 15th day of May, 1978, the appellant caused a notice of default to be mailed to the first named party, being Marwick Development, Inc.
5. Respondents failed to make the June 1, 1978, payment.
*1251 6. On the 6th day of June, 1978, a second notice of default was sent by certified mail to Marwick Development, Inc.
7. Respondents failed to make the July 1, 1978, payment.
8. Notice of failure to remedy default and notice of forfeiture was sent by certified mail to Marwick Development, Inc., on July 14, 1978.
9. Complaint was filed by appellant on July 20, 1978, but was not served on respondents until September 1, 1978, together with an amended complaint.
10. Respondents failed to make the August 1, 1978, payment.
11. On the 9th day of August, 1980, a third notice of default was sent by certified mail (the record does not show who the notice was sent to) giving the respondents 15 days to correct the delinquency. The notice contained an itemization of the delinquent amounts due under the contract and alleged that $21,750.36 was due. This amount included interest at the rate of 18% on the unpaid balance of the contract which was pursuant to paragraph 11B.
12. On August 22, 1978, being within the 15 days, respondents tendered a check for $7,394.00 which included interest at the rate of 18% pursuant to paragraph 11B on the unpaid delinquent amounts under the contract. The check was returned uncashed to the respondents on October 13, 1978.
13. A second notice of failure to remedy default and notice of forfeiture was personally served on the respondents Marwick Development, Inc., Daniel R. Southwick and Sterling Martell on the 1st day of September, 1978.
14. On September 18, 1978, Marwick Development, Inc., Sterling Martell and Daniel R. Southwick sold the property under a uniform real estate contract to Boardwalk Development Corporation. On April 12, 1979, Boardwalk was allowed to intervene as a party defendant, and on the same date, Phoenix Development Company was substituted as a party defendant in place of Daniel R. Southwick.
15. Appellant filed a motion for summary judgment and the court denied the same on the 23rd day of April, 1979.
16. The respondents filed a motion for summary judgment and the court granted the same on the 17th day of September, 1979, reinstating the contract in the respondent Boardwalk Development, Inc., and from this order the appeal is taken.
Many questions arise in the Court's mind as to the adequacy of the notices, but they are not raised in this appeal and the Court declines to comment on them. The two questions that are before the Court are whether the two notices of default dated the 15th day of May, 1978, and the 6th day of June, 1978, and the subsequent notice of failure to remedy default and notice of forfeiture dated the 14th day of July, 1978, to which the respondent did not respond, forfeited the respondent's interest in the contract, or whether the subsequent notice of default dated the 9th day of August, 1980, giving the respondent 15 days to respond in which they did tender a check, reinstated any prior forfeitures under the contract and in effect did away with all prior notice. Second, whether there are any questions of fact involved in the interpretation of the uniform real estate contract and particularly paragraph 11B which would require that the matter be remanded to the district court for an evidentiary hearing. The correct interpretation of paragraph 11B would also require determination as to the sufficiency of the tender made by the respondents to prevent the forfeiture of the contract.
This Court has consistently held that in order to forfeit a purchaser's interest under a uniform real estate contract, the seller must comply strictly with the notice provisions of the contract. Hansen v. Christensen, Utah, 545 P.2d 1152 (1976), contract for the sale of land but not a uniform real estate contract. Paul v. Kitt, Utah, 544 P.2d 886 (1975). The provisions in the uniform real estate contract are not self-executing, and to enforce them, it requires some affirmative act on the part of the seller to notify the buyer of what specific *1252 provision in the contract the seller is proceeding under and state what the buyer must do to bring the contract current. Fuhriman v. Bissegger, 13 Utah 2d 379, 375 P.2d 27 (1962); Leone v. Zuniga, 84 Utah 417, 34 P.2d 699 (1934).
In this case, the giving of notice of default twice and then a notice of forfeiture followed by another notice of default to bring the contract current within 15 days or forfeiture would result would be misleading. This would leave some doubt in the respondents' minds as to what the appellant expected and leave the respondent to believe that strict compliance with the contract was not required and that he would have additional time granted him by the appellant's letter. For this reason, the Court holds the respondents did have 15 days as set out in the August 9th notice of default or until the 24th day of August to bring the contract current.
The question that faced the trial court and also the question before this Court is what is the interpretation of paragraph 11B of the contract and is it ambiguous? Both parties claim that it is clear and unambiguous on its face, but each interpret it in a different manner. The appellant claims that it means 18% interest on all amounts unpaid on the balance of the contract. The respondents claim it means 18% interest on all delinquent amounts unpaid under the contract. The respondents correctly argue that parol evidence is inadmissible to alter a contract that is clear an unambiguous on its face, but in their next breath, they make the contract ambiguous by taking a position opposite to the appellants. Both interpretations are tenable and evidence should be taken to determine the intent of the parties at the time the contract was entered into.
It is a well-settled principle of law that summary judgment can only be granted when there is no dispute as to a material fact. Russell v. Park City Utah Corp., 29 Utah 2d 184, 506 P.2d 1274 (1973); Controlled Receivables, Inc. v. Harman, 17 Utah 2d 420, 413 P.2d 807 (1966). The purpose of summary judgment is to save the expense and time of the parties and the court, and if the party being ruled against could not prevail when the facts are looked at most favorably for his position, then summary judgment should be granted. Holbrook Co. v. Adams, Utah, 542 P.2d 191 (1975). If there is a question of fact raised by the pleadings or affidavits, the court is precluded from granting summary judgment. Hatch v. Sugarhouse Finance Co., 20 Utah 2d 156, 434 P.2d 758 (1967). Appellant points out that the answer of the respondents raises questions of fact as to whether paragraph 11B was agreed to by the parties at the time the contract was entered into and also that the paragraph is subject to different interpretations.
The affidavit of Steven Thomas, the real estate agent, which was filed by the appellant, sustains the position of the appellant as to his interpretation of the contract and that the parties agreed to paragraph 11B at the time the contract was entered into. The respondents counter with an affidavit by Robert L. Moody, and this affidavit is in direct conflict with the Smith affidavit and takes respondents' position and raises factual issues that can only be determined by a trial of the matter. Based on the foregoing, the order granting summary judgment is reversed and the matter is remanded to the district court for further proceedings.
HALL and STEWART, JJ., concur.
WILKINS, J., does not participate herein.
CROCKETT, Chief Justice (concurring with comment):
The conclusion arrived at by the trial court and approved in the dissent impresses me as just and reasonable. Nevertheless, I do not see the wording of the contract to be so unequivocally clear that it should be so ruled as a matter of law. Therefore, I concur in the main opinion and the order to remand for trial.
MAUGHAN, Justice (concurring and dissenting):
The judgment of the trial court should be affirmed in this action. I disagree with the *1253 majority opinion that paragraph 11B must be deemed ambiguous; and, therefore, evidence must be taken to determine the intent of the parties at the time they entered into the contract.
Paragraph 11B provides:
"At any time, and for whatever length of time, the contract may be delinquent or in default by Buyer, for any reason the interest rate on all amounts unpaid under this contract shall increase to eighteen percent (18%) per annum. The Seller further covenants and agrees that he will not default in the payment of his obligations against said property." [Emphasis supplied]
The trial court interpreted this paragraph as meaning that interest should increase to 18% on all amounts unpaid and which are currently due under the provisions of the contract and not the entire unpaid contract balance which is referred to in paragraph 8. The trial court ruled that plaintiff was entitled to assess the penalty provision of 18% interest per annum on all amounts due and unpaid on the contract during the period there was a default thereunder.
Both parties contend the phrase "on all amounts unpaid under this contract" is unambiguous, the disagreement focuses on a question of law: should the phrase be interpreted to mean delinquent installments or the outstanding contract balance?
It is a question of law for the trial court as to whether an ambiguity exists in a written instrument so as to authorize the admission of extrinsic evidence to explain it. Generally, an ambiguity arises when the meaning or application of words in a written agreement is doubtful and uncertain.[1] The meaning and effect to be given a contract depends upon the intent of the parties, which is to be ascertained by reviewing the entire contract and all of its parts in their relationship to each other.[2]
When the disputed phrase is construed in conjunction with other provisions in the contract, the meaning is clear that it has reference to the monthly installment payments. Paragraph 3 provides for monthly installments until the balance is paid in full; it further specifies:
"... Said payments are to commence on December 1, 1977, and each subsequent month to be due and payable on the first day of each month."
In paragraph 4, the Buyer is given the option to pay "amounts in excess of the monthly payments upon the unpaid balance, "but the Buyer must make an election as to the application "at the time the excess payment is made."
Repeatedly throughout the contract there is a clear distinction made between the terms "unpaid contract balance" and "regular monthly installments." Under the agreement, only the monthly installment is due and payable; and, therefore, it is the only amount that can be delinquent and in default by being unpaid and thus subject to the 18% interest.[3]
Finally, under paragraph 16C, the Seller has the option if the Buyer fails to make any payment "to declare the entire unpaid balance hereunder at once due and payable" and treat the contract as a note and mortgage and foreclose the same. Since the seller did not elect to exercise this option, the only amounts due and payable under the specific terms of the agreement were the monthly installment payments. The trial court did not err in its interpretation of the disputed phrase.
NOTES
[1] Winegar v. Smith Investment Company, Utah, 590 P.2d 348, 350 (1979).
[2] Thomas J. Peck & Sons, Inc. v. Lee Rock Products, Inc., 30 Utah 2d 187, 191, 515 P.2d 446 (1973); Big Butte Ranch, Inc. v. Holm, Utah, 570 P.2d 690, 691 (1977).
[3] Paragraph 14 provides for interest if the Buyer defaults in payment of taxes, insurance, etc., and the Seller elects to pay them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3365673/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The plaintiff John Michael Kelly, an attorney, appeals from a decision of the defendant Statewide Grievance Committee reprimanding him for violating Rule 8.4(3).1 He brings this appeal pursuant to Practice Book § 2-38, which provides that the appeal shall be conducted by the court without a jury and shall be confined to the record.
The pertinent facts are not disputed. On December 1, 1996, Susan Lesser brought a complaint to the defendant, alleging that the plaintiff altered a medical release after Lesser had signed it. (Return of Record (ROR), Item 2.) Lesser and her husband were parties to a contested dissolution and custody action. The plaintiff's employer, Attorney Marc Needelman, represented Lesser's husband in the action. In response to a request for production and then a motion to compel filed by Needelman, Lesser provided Needelman's office with medical record releases for a number of doctors who treated her. Needelman instructed the plaintiff to process the releases to obtain the records. The plaintiff discovered that Lesser had not provided a release for a particular doctor who treated her.2 The plaintiff substituted that doctor's name on a release signed by the plaintiff and sent the release on to the doctor. Lesser then filed her complaint with the defendant.
Pursuant to § 2-32 (a)(1), the defendant referred Lesser's complaint to the Hartford/New Britain JD, GA 12, 15, 16 and 17 grievance panel. That grievance panel determined that probable cause existed that the plaintiff violated the Rules of Professional Conduct and notified the parties accordingly on January 8, 1997. See Practice Book § 2-32(i) and (j). In that determination, the panel stated,
Altering a medical authorization without permission of the party signing the authorization or her counsel cannot be justified on the basis of convenience or that a correct authorization should have been provided or could have been required through a more cumbersome process. The alteration violated Rule 8.4, Misconduct.
CT Page 9152
(ROR, Item 6.)
Pursuant to Practice Book § 2-35(c), on January 30, 1997, the defendant referred the case to a reviewing committee. (See ROR, Item 8.) On April 25, 1997, the parties were notified that a hearing would be held on June 12, 1997. (ROR, Item 9.) On May 27, 1997, counsel for the plaintiff wrote to the defendant requesting a continuance of the hearing due to a conflict in his schedule. (ROR, Item 10.) On June 2, 1997, counsel for the defendant denied the request. (ROR, Item 11.)
At the June 12, 1997 hearing before the reviewing committee, the plaintiff appeared pro se, as did the complainant Lesser. Attorney Marc Needelman was also present. The plaintiff requested a continuance because his counsel was unavailable. The request was denied and the hearing proceeded. The parties and Needelman testified. On August 27, 1997, the reviewing committee issued its proposed decision finding a violation of Rule 8.4(3) and recommending a reprimand. On September 9, 1997, the plaintiff filed an objection to the proposed decision. On September 18, 1997, the defendant adopted the proposed decision. The plaintiff filed a timely appeal.
In this appeal, the plaintiff claims that the decision is clearly erroneous in view of the reliable, probative and substantial evidence in the record and is arbitrary and capricious and an abuse of discretion because there is no clear and convincing evidence of an intent to deceive, defraud or mislead. He further claims a denial of due process arising out of the refusal to grant him a continuance to have counsel present on his behalf. Finally, he argues that the issuance of a reprimand was clearly erroneous in view of the reliable, probative and substantial evidence in the record.
While this appeal is not governed by the Uniform Administrative Procedures Act, Practice Book § 2-38(f) the provision governing this appeal, is markedly similar to General Statutes § 4-183(j):
(f) Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee or reviewing committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee's findings, inferences, conclusions, or decisions are: (1) In violation of constitutional, Practice Book or statutory provisions; (2) in excess CT Page 9153 of the authority of the committee; (3) made upon unlawful procedure; (4)affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or take such other action of the statewide grievance committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the superior court hereunder is a final judgment.
The Supreme Court has recently confirmed the scope of review this court uses in reviewing a grievance committee decision. InSomers v. Statewide Grievance Committee, 245 Conn. 277, 290-91 (1998), the court stated,
[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct. . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney gas violated the [Rules] of Professional [Conduct] is clear and convincing evidence. . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof." (Citations omitted; internal quotation marks omitted.) Lewis v. Statewide Grievance Committee, 235 Conn. 693, 698, 669 A.2d 1202 (1996); see Practice Book 2-38(f). "[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probability that they are true, or exist is substantially greater than that they are false or do not exist. (Internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989).
With these principles in mind the court turns to the three claims asserted by the plaintiff.
The defendant determined that the plaintiff had violated Rule 8.4(3) "in that his submission of an medical release authorization without the knowledge or consent of the party CT Page 9154 signing the release constituted conduct involving dishonesty, deceit and misrepresentation." (ROR, p. 64, Item 13.) Rule 8.4(3) reads,
It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
The plaintiff first argues that there is no evidence that the plaintiff intended to deceive or mislead. Accordingly, he argues, there can be no violation of Rule 8.4(3). Without deciding the issue of whether the rule requires intent, the court must reject this argument. There is clear and convincing evidence of an intent to deceive or misrepresent in the record. The plaintiff admitted that he altered the release in order to obtain medical records from a doctor for whom Lesser had not provided a release. He admittedly did this without notifying Lesser or her attorney. While it appears from the record mat the plaintiff had no intent to obtain records that would not have ultimately and properly been I, released to his office, in altering the release without authorization, the plaintiff intended to mislead in order to obtain Lesser's medical records from this doctor. The court notes further that the defendant found this conduct dishonest, which is also supported by the record. In light of the limited scope of review allowed this court on factual determinations and credibility issues, the court will not substitute its judgment to characterize this conduct as simply an error in judgment.
The plaintiff also argues that he was denied due process when the defendant refused his request for a continuance. There is no question that an attorney subject to discipline is entitled to due process of law. Lewis v. Statewide Grievance Committee,235 Conn. 693, 705 (1996). The Supreme Court has not determined however that such an attorney has a right to effective assistance of counsel in such proceedings. Statewide Grievance Committee v.Friedland, 222 Conn. 131, 144-45 (1992). In Lewis v. StatewideGrievance Committee, supra, the Supreme Court said,
Before discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights in some substantial manner.
235 Conn. 705. Here, the plaintiff was provided with notice dated April 25, 1997 of his hearing date of June 12, 1997. It did not violate the plaintiff's right of due process to deny the May 27, CT Page 9155 1997 written request for continuance and to proceed with the hearing on June 12, 1997. See Council on Probate Judicial Conductre James H. Kinsella, 193 Conn. 180, 199 (1984).
Finally, the plaintiff claims that the reprimand he received from the defendant was arbitrary and capricious because the defendant did not consider the mitigating factors that weighed against such a harsh sanction. Citing Statewide GrievanceCommittee v. Glass, 46 Conn. App. 472 (1997) and StatewideGrievance Committee v. Shluger, 230 Conn. 668 (1994), the plaintiff asserts that the defendant should have considered the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards) in determining the appropriate sanction for the plaintiff's misconduct. Both of the cited cases were presentments involving attorneys convicted of felonies,3 not appeals from committee decisions. In the appellate court decision, the court noted that the trial court had weighed certain evidence in considering the appropriate sanction, and then said,
Although the Rules of Professional Conduct define misconduct; see Rule 8.4; they do not provide guidance for determining what sanctions are appropriate. For this reason, Connecticut courts reviewing attorney misconduct have looked to the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards), which do provide guidance. The Standards, which were officially promulgated in 1986, have not been officially adopted in Connecticut. They are, however, used frequently by the Superior Court in evaluating attorney misconduct and in determining discipline, as they were by the trial court in this case. See Statewide Grievance Committee v. Shluger, supra, 230 Conn. 673 n. 10.
Statewide Grievance Committee v. Glass, supra, 46 Conn. App. 480-81 (1997). In Shluger, the Supreme Court explained in a footnote that the trial court had been guided, part, by the Standards in determining appropriate discipline. It then went on to say,
The trial court was guided, in part, by the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards) in determining the appropriate discipline. The Standards, originally promulgated in 1986, have not formally been adopted by the judges of this state. Both parties, however, relied on the standards in their presentations to the trial court and neither party objected to their consideration by the court.
Statewide Grievance Committee v. Shluger, supra, 230 Conn. 673, n. 10. CT Page 9156
Here, the proposed decision does not refer to the Standards, nor does it include any discussion of mitigating or aggravating factors. While the plaintiff referred to the Standards in his objection to the proposed decision, the defendant adopted the proposed decision without change. (See ROR, Items 14, 15.)
The defendant asserts that since the judges have not formally adopted the Standards, the defendant need not consider them in determining an appropriate sanction. The court agrees. Rule §2-374 sets for the sanctions and conditions which may be imposed by the defendant. There is no provision incorporating the Standards. The defendant is not required to apply those Standards.
In evaluating plaintiff's conduct and determining the sanction the reviewing committee did note that the plaintiff acknowledged his error and testified to an absence of malice:
In the course of our hearing the Respondent acknowledged his error in altering and utilizing the altered medical release authorization form. He testified that he did not engage in his misconduct maliciously or to improperly advance the interests of his client.
(ROR, p. 63, Item 13.) The record supports a finding of misconduct by clear and convincing evidence, and the defendant's conclusion to issue a reprimand is legally and logically correct.
The practice of law is. . . a profession the main purpose of which is to aid in the doing of justice. . . . An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. . . .
(Internal quotation marks omitted.) Doe v. Statewide GrievanceCommittee, 240 Conn. 671, 677 (1997).
The appeal is dismissed.
DiPentima, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2609755/ | 111 Ariz. 202 (1974)
526 P.2d 1054
STATE of Arizona, Appellee,
v.
William Glen BATES, Appellant.
No. 2896.
Supreme Court of Arizona, En Banc.
October 4, 1974.
Rehearing Denied November 13, 1974.
*203 N. Warner Lee, Atty. Gen., by Stanley L. Patchell, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Jr., Deputy Public Defender, Phoenix, for appellant.
HAYS, Chief Justice.
The defendant Bates was charged by three indictments with five counts of robbery and two counts of burglary. Pursuant to a plea bargain, he pled guilty to the robbery charges. Defendant was initially given a suspended sentence of eight years' probation. Upon violation of the probation conditions, the court sentenced Bates to five concurrent terms of not less than 10 nor more than 20 years in the Arizona State Prison. From this sentence the defendant appeals.
One case disposes of three of appellant's contentions. Only when counsel is so inept that the proceedings become a farce or a sham will relief for ineffective counsel be granted. State v. McKinney, 108 Ariz. 604, 503 P.2d 946 (1972). Such lack of competence was not indicated here.
Appellant contends that the trial court erred in failing to grant defendant's motion to dismiss because of the failure of the state to bring the defendant to trial within 60 days from the date of the indictment. The rule in effect at the time, Rule 236, 17 A.R.S., stated that a case would be dismissed if the defendant was not brought to trial within 60 days unless actions of the defendant delayed the proceedings. The indictments were handed down July 13, 1972. On August 21, 1972, the trial court granted defendant's motion for a mental examination. The psychiatric reports prepared in mid-September were not filed with the court by defendant until October 5, 1972. Excluding the time from the granting of defendant's motion until the psychiatric reports were filed with the court which delay was requested for the benefit of defendant 60 days had not passed on the date set for trial, October 25, 1972. On that date, the defendant was not prepared to proceed and waived the provisions of Rule 236. Defendant's constitutional right to a speedy trial has not been denied.
Appellant's next assertions are that the trial court erred in failing to hold a hearing pursuant to A.R.S. § 13-1621 prior to the time that defendant entered his pleas of guilty and that a subsequent minute entry as to defendant's competency prior to sentencing was insufficient.
While no hearing of competency was held prior to defendant's pleas, the psychiatric evidence was before the court. Prior to sentencing, the court made a finding in a minute entry that the defendant was competent. It had been stipulated that the matter be submitted on the written reports of medical experts and no further hearing or entry by the court was necessary as to its findings.
Appellant further argues that the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 *204 (1969), were not met or, if they were met, that Sieling v. Eyman, 478 F.2d 211 (9th Cir.1973), demands a more extensive inquiry into the issue of defendant's ability to waive his constitutional rights upon entering a plea of guilty. These issues were largely met by this court recently in State v. Ellison, Ariz., 526 P.2d 706 (1974). Boykin requires that the trial judge personally address the defendant and determine that the plea of guilty is voluntarily being made by the defendant with an understanding of the charges and the consequences, and that the court be satisfied that there is a factual basis for the plea in the record. This test was met. As was said in State v. Ellison, supra, the Sieling case does not demand a separate hearing beyond that required by Boykin if the psychiatric reports made pursuant to A.R.S. § 13-1621 are before the court and are sufficient to determine the ability of defendant to waive his constitutional rights.
Appellant then raises several issues concerning the revocation of probation procedures. The defendant had ample notice of his alleged violation of probation in the "Petition to Revoke Probation; Order for Warrant," a copy of which was attached to the warrant. The fact that a plea bargain may have later been made in regard to the charges arising from the alleged probation violation did not alter the sufficiency of the original notice. A preliminary hearing concerning the charges was held, then a revocation of probation hearing and then a final revocation hearing. Testimony was taken at all three stages, and the transcript of the preliminary hearing was before the court at the final hearing on revocation.
A proceeding for the revocation of probation is not subject to the same rules as a trial on the merits; to remain free under a suspended sentence is not a right but a matter of discretion with the court. State v. Washington, 5 Ariz. App. 400, 427 P.2d 381 (1967). It is enough for the court to have a "reason to believe" that the individual is "violating the conditions of his probation, or engaging in criminal practices." A.R.S. § 13-1657(B). This reason is established by a preponderance of the evidence. State v. Pietsch, 109 Ariz. 261, 508 P.2d 337 (1973). The standard was met in the instant case.
This court has repeatedly held that a sentence within statutory limits will be upheld unless the sentence is so clearly excessive under the circumstances as to constitute an abuse of discretion. State v. Masters, 108 Ariz. 189, 494 P.2d 1319 (1972). There was no such abuse of discretion by the court.
The judgment of conviction and the sentences are affirmed.
CAMERON, V.C.J., and STRUCKMEYER, LOCKWOOD and HOLOHAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1504278/ | 58 F.2d 674 (1932)
UNITED STATES
v.
GRIFFIN et al.
District Court, W. D. Virginia.
May 18, 1932.
*675 R. O. Crockett, Sp. Asst. Atty. Gen.
Barksdale & Abbot, of Lynchburg, Va., for defendant Griffin.
McDOWELL, District Judge.
This condemnation suit, instituted in this court by the government to condemn a part of the land claimed by Malcolm Griffin, has raised a number of interesting questions. The opinion, in United States v. Griffin (D. C.) 14 F.(2d) 326, does not relate to the matter herein discussed.
The defendant Griffin has objected to confirmation of the report of the condemnation commissioners, inter alia, on the ground that the Weeks Act (36 Stats. 961 [16 USCA §§ 480, 500, 513-519, 521, 552, 563]) is unconstitutional. The theory of counsel is that the Federal Constitution contains no grant to the government of power to condemn land for the national forests. As this contention has been set up more than once, I shall herein state the reason for my belief that this contention is unsound.
The land sought to be condemned lies on both sides of and near the head of an unnavigable tributary of the James river. The court does and should take judicial notice of the notorious fact that from Richmond to the Atlantic the James river is navigable, and that it is much used in both interstate and foreign commerce.
The Weeks Act is the Act of March 1, 1911, c. 186, 36 Stats. 961, 16 USCA §§ 480, 500, 513-519, 521, 552, 563. So far as I know, none of the amendments of that act are here of importance. The chief purpose of the statute, as is stated in its title is "for the protection of the watersheds of navigable streams, and to appoint a commission for the acquisition of lands for the purpose of conserving the navigability of navigable rivers." See, also, sections 2, 3, and 6.
This statute has been in force for more than twenty years. Judging by the number of condemnation suits in this one district, many hundreds of such suits must have been instituted by the government to acquire title to lands for the different national forests; and yet, so far as I know, no reported case indicates that any one has ever before questioned the validity of the statute.
It is a matter of common knowledge that a heavy growth of trees on mountains and hills greatly lessens soil erosion, and hence greatly reduces the quantity of soil carried by flood waters. It follows that reforestation and the protection of the forest growth on the watersheds of the headwaters of a navigable river has a direct and valuable effect in reducing the amount of sediment carried by floods to the lower reaches of such rivers. That the creation and administration of the national forests as intended by the Weeks Act, is an appropriate means to increase and conserve the navigability of certain rivers, and thus to foster and aid water-borne interstate commerce seems to me plain enough to require no further discussion.
Article 1, section 8, cl. 3, of the Constitution, gives Congress the power to regulate interstate and foreign commerce, and clause 18 gives it the power to make all laws "necessary and proper" for carrying into execution the above power. In Legal Tender Case, 110 U.S. 421, 440, 4 S. Ct. 122, 125, 28 L. Ed. 204, it was said of clause 18: "By the settled construction and the only reasonable interpretation of this clause the words `necessary and proper' are not limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution, but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which, in the judgment of congress, will most advantageously effect it." See, also, McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L. Ed. 579; Logan v. U. S., 144 U.S. 263, 283, 12 S. Ct. 617, 36 L. Ed. 429.
In Second Employers' Liability Case, 223 U.S. 1, 47, 32 S. Ct. 169, 174, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, in reference to the power to regulate commerce, the court said: "`To regulate,' in the sense intended, is to foster, protect, control, and restrain, with appropriate regard for the welfare of those who are immediately concerned and of the public at large."
In Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8, 8 S. Ct. 811, 815, 31 L. Ed. 629, it was said: "The power of Congress to pass laws for the regulation of the navigation of public rivers, and to prevent any and all obstructions therein, is not questioned."
The shoaling of a navigable river by flood-borne sediment or by scant supply of water due to unrestrained escape of the rainfalls is an obstruction of navigation frequently as effective as an unduly low or narrow bridge. And I cannot satisfactorily discriminate between the power of Congress to foster and protect the navigability of a river by providing for reforestation of the watersheds of the headwaters, and requiring the removal of objectionable *676 bridges over the navigable portions of the river. See Union Bridge Co. v. U. S., 204 U.S. 364, 27 S. Ct. 367, 51 L. Ed. 523, in which the first headnote reads: "Commerce comprehends navigation; and to free navigation from unreasonable obstructions by compelling the removal of bridges which are such obstructions is a legitimate exercise by Congress of its power to regulate commerce." See, also, to the same effect, Monongahela Bridge v. U. S., 216 U.S. 177, 30 S. Ct. 356, 54 L. Ed. 435.
It seems to me that the conclusion that the Weeks Act is constitutional is unavoidable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608626/ | 621 P.2d 948 (1980)
The PEOPLE of the State of Colorado, Complainant,
v.
Richard D. UNRUH, Attorney-Respondent.
No. 80 SA 283.
Supreme Court of Colorado, En Banc.
October 6, 1980.
As modified on Denial of Rehearing October 27, 1980.
Paul D. Cooper, Sp. Prosecutor, Denver, for complainant.
Merle R. Knous, J. Michael Dowling, Denver, for attorney-respondent.
ERICKSON, Justice.
This is a disciplinary proceeding in which the Supreme Court Grievance Committee recommended disbarment. We concur in the recommendation and order that the respondent, Richard D. Unruh, be disbarred. The respondent may not apply for reinstatement for at least eight years and then only upon compliance with the terms and conditions set forth at the conclusion of this opinion.
Respondent was admitted to practice law in the State of Colorado on October 23, 1970. He served in a number of legal service `programs before undertaking the duties of Deputy District Attorney in San Miguel County, Colorado.
In 1975, the Colorado Organized Crime Strike Force was investigating illegal drug traffic in Telluride, Colorado. The respondent, while serving as a deputy district attorney, entered into an illicit agreement with undercover agents of the Strike Force to obtain a share of the profits from the importation of narcotic drugs from Mexico. In furtherance of the conspiracy, he delivered $5,000 to the undercover agents for the privilege of participating in the profits from importing narcotic drugs and purchased cocaine for one of the undercover agents. In addition, he agreed to hide a fugitive from justice. He also snorted cocaine in the presence of an undercover agent. The allegations made before the Grievance Committee were proven by clear and convincing evidence. The respondent was charged with criminal offenses and, as part of a plea bargain, pled guilty to being a disorderly person which is a misdemeanor.
The respondent violated DR 1-102(A)(3) and (6) of the Code of Professional Responsibility and Colo.R.Civil P. 241(B)(3) and (4). His professional misconduct strikes at the very foundation of our judicial system. He totally disregarded his oath of office and his obligation as a deputy district attorney to uphold, maintain, and enforce the law. See Canon 1, Code of Professional Responsibility. He used illegal drugs and narcotics, conspired to smuggle narcotics into the United States from Mexico, and attempted to obstruct the administration of justice by agreeing to hide a fugitive. He not only breached his duty to enforce the law, but also openly violated the law. His oath of office as a deputy district attorney demanded a high standard of professional conduct and required that he enforce *949 the law and not violate the law. The respondent's misconduct as a deputy district attorney destroys public confidence in the administration of criminal justice.
In this case the respondent concedes that he committed each of the violations which we have specified. However, he seeks lenity on the theory that he has good character and a good reputation. His misconduct cannot be justified on any basis. The respondent has seriously damaged the image of the legal profession. The respondent's flagrant violation of the laws, which he took an oath to uphold and enforce as deputy district attorney, tends to discredit all law enforcement officers. Character and reputation evidence provides no basis for leniency in this case.
The respondent was thirty-six years old at the time the acts complained of occurred, and his misconduct is not the product of youth or inexperience. Other jurisdictions, when dealing with similar misconduct, have imposed severe sanctions. See Comm. on Professional Ethics v. Green, 285 N.W.2d 17 (Ia.1979) (revocation of license following a plea of guilty to a reduced charge of controlled substance offense (cocaine)); Louisiana State Bar Association v. Bensabat, 378 So. 2d 380 (La.1979) (disbarment for conspiracy to import cocaine, and to possess with intent to distribute); The Florida Bar v. Beasley, 351 So. 2d 959 (Fla.1977) (disbarment for conviction of delivery of marijuana to a client).
The respondent's misconduct involves moral turpitude and demands the most severe discipline. People v. Wilson, 176 Colo. 389, 490 P.2d 954 (1971). Severe discipline is required to punish the respondent for his misconduct, to deter others from similar misconduct, and to maintain the respect and honor of the legal profession. See, In the Matter of Leopold, 469 Pa. 384, 366 A.2d 227 (1976); In re Smith, 83 Wash.2d 659, 521 P.2d 212 (1974). A lawyer who enters into a conspiracy to violate the law by importing narcotic drugs for distribution should be disbarred. In the Matter of Gorman, Ind., 379 N.E.2d 970 (1978); In the Matter of Glasser, 53 App. Div.2d 38, 385 N.Y.S.2d 86 (1976). In this case the respondent's misconduct was aggravated by his position as a Deputy District Attorney for San Miguel County, Colorado.
Accordingly, the respondent, Richard D. Unruh, is disbarred and his name is ordered stricken from the roll of attorneys licensed to practice before this Court. The respondent is also foreclosed from applying for readmission for a period of eight years. At the conclusion of eight years, the respondent may apply for readmission provided that he can establish that he has been rehabilitated. To be readmitted he must prove that he is competent and fit to practice law, and has complied with all rules and orders of this Court. Rule 6.2, American Bar Association Standards for Lawyer Discipline and Disability Proceedings. Since the sanction is disbarment, the respondent must establish his competency to practice law after the expiration of eight years by again passing the bar examination. Costs are assessed in the amount of $215.13, and shall be paid to the Clerk of the Colorado Supreme Court within sixty days.
DUBOFSKY, J., does not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608627/ | 621 P.2d 688 (1980)
James B. JOHNSTON, Plaintiff and Respondent,
v.
Maureen H. SIMPSON and Wayne Simpson, dba The Flight School, Defendants and Appellants.
No. 16859.
Supreme Court of Utah.
November 19, 1980.
Frank S. Warner of Warner, Marquardt & Hasenyager, Ogden, for defendants and appellants.
*689 John T. Anderson of Roe & Fowler, Salt Lake City, for plaintiff and respondent.
HALL, Justice:
Defendants appeal the judgment of the district court that a written contract for the purchase of an aircraft be rescinded and that defendants make restitution of the purchase price paid.
Defendants Maureen and Wayne Simpson operate a business known as The Flight School at the Ogden Municipal Airport. Besides offering flight instruction, the business rents and sells new and used aircraft. Plaintiff became acquainted with defendants through his neighbor who was employed by defendants as a flight instructor.
Upon the completion of a basic flight training program, plaintiff had several discussions with Mrs. Simpson concerning the purchase of an aircraft. On July 29, 1977, plaintiff ordered a 1978 Cessna. He signed a form entitled "retail purchase order" which provided for a down payment of $3,000 on a total purchase price of $41,125. Paragraph 5 of the Terms, Conditions, Warranty and Limitations of Liability reads as follows:
Title to aircraft products herein sold and purchased shall pass to Purchaser when full purchase price shall have been paid to Dealer or upon Dealer's accepting other financial arrangements satisfactory to Dealer in lieu of full purchase price. All risk of loss shall be on Purchaser from and after receipt of possession of the aircraft products.
Defendants ordered the aircraft from the general Utah Cessna dealer, Trans-West Aircraft Sales, in Salt Lake City. Trans-West, in turn, ordered from its distributor, Skyways, Inc., of Portland, Oregon, who then placed the order with Cessna. Financing by the distributor/dealers was typically arranged through Cessna whereby a dealer is given physical possession of the aircraft subject to a security interest. On October 14, 1977, Skyways granted Cessna a security interest in the aircraft it had ordered for plaintiff.[1] On October 17, 1977, Trans-West granted a similar security interest to Skyways.[2]
Also on October 17, 1977, a second retail purchase order was executed by plaintiff and defendants. The provisions of this second order were identical to those of the first, with one minor exception relating to radio installation. Plaintiff paid the balance of the purchase price in cash and arranged to go to the Cessna factory in Wichita, Kansas, to personally take delivery of the aircraft. Plaintiff took delivery of the aircraft in Wichita two or three days later.
In order to use an airplane, a valid application for registration or a certificate of registration is required. To obtain a certificate, the following documents must be recorded with the Federal Aviation Administration (FAA): an application, a bill of sale between the dealer and its supplier, and a bill of sale between the dealer and the purchaser.[3]
Mrs. Simpson advised plaintiff that he could expect his certificate of registration within about 90 days from the date of purchase. On December 14, 1977, plaintiff contacted Mrs. Simpson to determine the status of his application for issuance of the certificate. Mrs. Simpson advised him that "the paperwork had been filed and that it was in the process."[4] Again on February 9, 1978, plaintiff inquired of Mrs. Simpson about his certificate. He later advised Trans-West of his difficulty in obtaining the certificate. Mrs. Simpson thereafter made inquiry with the FAA to ascertain the *690 nature of the problem and learned that the FAA had no record of having received the bills of sale.
On April 10, 1978, the FAA received a second registration application on behalf of plaintiff. Defendants also prepared and sent to the FAA duplicate bills of sale which were received on July 6, 1978. The certificate of registration was still not issued, apparently because of wording or spelling changes on the bills of sale. Plaintiff contacted defendants again on July 9, 1978, September 24, 1978, and October 26, 1978, to inquire as to the status of the registration. He was assured that the documents had been resubmitted and would be straightened out.
On January 25, 1979, plaintiff sought to rescind his purchase of the airplane on the premise that he had not received good title. On February 15, 1979, a third set of bills of sale were submitted to the FAA. A certificate of registration in plaintiff's name was approved for issuance on February 21, 1979, and received by plaintiff on March 9, 1979. The complaint requesting rescission based upon failure to receive good title was filed on March 21, 1979. Nevertheless, plaintiff continued to use the airplane[5] and to loan it to his neighbor, allegedly to keep it from "becoming damaged by nonuse."
Plaintiff argued at trial that his warranty of title was breached in two respects: (1) by defendants' failure to perform their promise to promptly and properly register and record title with the FAA prior to January 25, 1979; and (2) by defendants' failure to convey title to plaintiff free and clear of two security interests granted in favor of third parties. After hearing the evidence, the trial court ruled in favor of plaintiff on both points. The court granted plaintiff's claim for rescission of the contract and directed defendants to make restitution in the amount of $41,125.
The trial court ruled that the warranty of title was breached by defendants' failure to perform their promise to promptly and properly register and record title with the FAA. By the Federal Aviation Act of 1958,[6] the federal government has preempted the field of recordation of conveyances or instruments affecting title to aircraft. It is generally accepted, however, that state law continues to determine the validity of such conveyances or instruments as well as ownership or title.[7] The federal act itself limits the effect of aircraft registration as follows:
Such certificate shall be conclusive evidence of nationality for international purposes, but not in any proceedings under the laws of the United States. Registration shall not be evidence of ownership of aircraft in any proceeding in which such ownership by a particular person is, or may be, in issue. [Emphasis added.][8]
Ownership is therefore a totally separate question from registration. Plaintiff has paid the total purchase price of the aircraft and has possession of it. U.C.A., 1953, 70A-2-401 provides, in pertinent part, as follows:
(1) ... Subject to these provisions and to the provisions of the chapter on Secured Transactions (chapter 9), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.
(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading. [Emphasis added.]
Because plaintiff did not show that it was explicitly agreed otherwise, he is deemed to *691 have taken clear title at the time he took delivery of the aircraft.
This is not to suggest that plaintiff has no remedy for the delay of the registration. If it can be shown that defendants contractually agreed promptly to secure the registration, and that plaintiff was damaged in some way by defendants' failure to so register the aircraft, plaintiff may well have a valid cause of action for breach of contract. Such a claim would not, however, interfere in any way with plaintiff's right of ownership.
Plaintiff's claim that the title was defective due to the existence of two security interests likewise fails. U.C.A., 1953, 70A-2-312 provides, in pertinent part, as follows:
(1) Subject to subsection (2) there is in a contract for sale a warranty by the seller that
(a) The title conveyed shall be good, and its transfer rightful; and
(b) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.
(2) A warranty under subsection (1) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right as he or a third person may have.
At the time plaintiff took delivery, the security interests complained of remained unrecorded. Furthermore, the chattel mortgages ran only between Cessna and its distributor/dealers. Plaintiff testified that he had no knowledge that the sale was in violation of any security interest purportedly retained by any third party. Plaintiff is therefore a "buyer in ordinary course of business."[9] U.C.A., 1953, 70A-9-307(2) provides:
(2) In the case of consumer goods, a buyer [in the ordinary course of business] takes free of a security interest even though perfected if he buys without knowledge of the security interest, for value and for his own personal, family or household purposes unless prior to the purchase the secured party has filed a financing statement covering the goods.
Specifically in regard to aircraft, 49 U.S.C.A. § 1403(c) provides that no security interest which may be filed with the FAA shall be valid against any person other than the person by whom the security interest is made or given or one having actual notice, until it is filed with the FAA. In the instant case, the subject chattel mortgages were not filed with the FAA until October 26, 1977, several days after the plaintiff had paid for and taken delivery of the aircraft. The unrecorded chattel mortgages (which were, in any event, subsequently released) therefore have no effect on plaintiff's title or ownership.[10]
Reversed. Costs to defendants.
CROCKETT, C.J., WILKINS and STEWART, JJ., and MAURICE HARDING, Ret. District Judge, concur.
MAUGHAN, J., does not participate herein.
NOTES
[1] The security interest was recorded on October 26, 1977, and released on November 16, 1977.
[2] This security interest was also recorded on October 26, 1977, but was not released until April 20, 1978.
[3] Apparently it is the purchaser's responsibility to see that the documents are properly recorded, but it is the custom in the industry that when an airplane is purchased from a dealer, the dealer forwards to the FAA the necessary information.
[4] She testified that it was mailed on October 17, the date of purchase.
[5] Plaintiff acknowledged that he used the airplane to fly to California on July 9 or 10, 1979, for personal business.
[6] 49 U.S.C.A., §§ 1301-1542.
[7] 49 U.S.C.A., § 1406; see also, Haynes v. General Electric Credit Corp., 432 F. Supp. 763 (W.D. Va. 1977) and Annot., 22 A.L.R. 3d 1270, 1277 (1968) and cases cited therein.
[8] 49 U.S.C.A., § 1401(f).
[9] U.C.A., 1953, 70A-1-201(9).
[10] In Accord: State Security Co. v. Aviation Enterprises, Inc., 355 F.2d 225 (10th Cir.1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2059210/ | 34 Ill. 2d 52 (1966)
213 N.E.2d 536
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
EARL NETTLES, Appellant.
No. 39193.
Supreme Court of Illinois.
Opinion filed January 25, 1966.
CHESTER A. LIZAK, of Chicago, appointed by the court, for appellant.
*53 WILLIAM G. CLARK, Attorney General, of Springfield, and DANIEL P. WARD, State's Attorney, of Chicago, (FRED G. LEACH, Assistant Attorney General, and ELMER C. KISSANE and E. JAMES GILDEA, Assistant State's Attorneys, of counsel,) for the People.
Judgment affirmed.
Mr. JUSTICE HERSHEY delivered the opinion of the court:
Defendant Earl Nettles was found guilty by the circuit court of Cook County of the crime of unlawfully possessing narcotics and sentenced to the Illinois State Penitentiary for a period of not less than 5 nor more than 25 years. He contends that the trial court erred in denying his motion to suppress evidence and on other grounds.
Packages were taken from the person of the defendant at the time of his arrest on July 15, 1964, which contained heroin. The arresting officers had neither an arrest warrant nor a search warrant, but allegedly acted upon information received from an unidentified informant. Defendant contends that this was an unlawful search and seizure in that the uncorroborated testimony of a police officer as to the existence and reliability of his alleged source of information is not reasonable grounds for arrest without a warrant. Defendant requested the informer be produced before the court at a time when defendant or his counsel were not present so that the court could determine the existence of the informer. The trial court sustained the objection of the prosecutor to cross-examination of the arresting officer as to the identity of the informer, overruled the motion to suppress and denied the request to produce the informer.
Officer James Webster testified that while working with two partners an informer told him that a man by the name of Earl and his girl friend were selling narcotics near 43rd Street and Indiana Avenue and 47th and Indiana. The informer gave him a complete description of Earl and his girl friend. Some hour-and-a-half later, defendant and a woman *54 were walking in the vicinity mentioned. They were stopped by officer Webster who spoke to Earl, whom he had previously known. A conversation about narcotics took place. Defendant was searched by Webster's partner, officer Phil Williams. Three small packages of heroin were found.
Officer Webster had known Earl for seventeen or eighteen years, had known him to be an addict, and had arrested him in the past.
Officer Webster testified he had used information supplied him by this informer many times over two and one-half years, and that his information had resulted in possibly two or three convictions. He stated his informer was a man he refers to as Ernie. The State objected to disclosure of the informer's name and the court sustained this objection.
Defendant's counsel requested that the informer be produced before the court at a time when defendant or his counsel were not present so as to confirm his existence. The court denied this request.
An issue similar to that here raised was passed on by this court in People v. Durr, 28 Ill. 2d 308, where we held that reasonable grounds for an arrest may be found in information furnished by an informer if the reliability of the informer has been previously established or independently corroborated. In that case officer Webster stated that he had received information previously from the same informer and that such information had proved to be accurate. We there pointed out that the privilege of the Government to withhold the names of those furnishing information concerning crimes to law enforcement officers is designed to encourage citizens in their obligation to aid in enforcement of the law by preserving their anonymity.
The problem fundamentally presents a question of the balancing of the public interest in protecting information of organized crime against the individual's right to protection against unreasonable searches and false arrests. As the Supreme Court stated in Roviaro v. United States, 353 U.S. 53, *55 77 S. Ct. 623, 1 L.ed.2d 639, "whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors."
As was stated in People v. Mack, 12 Ill. 2d 151, where there is no evidence that the informer either participated in the crime or helped set up its commission or was present at the time of the arrest, amplification or contradiction of his information would be of no assistance to defendant's defense.
Defendant contends that the reliability of the informer was not "sufficiently" established. The officer's answer that former information he had received from this informer had resulted in "possibly two or three convictions" presented sufficient proof of trustworthiness in view of the fact that no further questions were asked of the officer on this matter.
Defendant asks us to overrule the Durr decision and cites cases from other jurisdictions which have reached a contrary result to the Durr case. As we recognized in that case, there are decisions in some other jurisdictions to the contrary. However, we there weighed the two policies. We there decided and we still are of the opinion that determination of probable cause by reliance upon the officer's testimony as to the reliability of an otherwise anonymous informer is likely to produce evils of far less consequence than those resulting from depriving the public of an important source of information necessary to the suppression of a particularly vicious form of crime.
Nor was it error to deny the request that the informer appear before the court in a private hearing. In this case the defendant had waived a jury. The trial judge had no authority to conduct any kind of private hearing. He was entitled to determine the credibility of the officer's testimony. *56 Based upon this determination, he could determine reliability so that the denial of this request was not error. To require the informer to appear before the court even at a private hearing could well destroy entirely the benefits and purpose of the "informer's privilege." Certainly even the most reliable informer well might fail to disclose his information if to do so rendered it likely that he would be required to appear in court.
Finally, defendant contends that sections 3 and 38 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1963, chap. 38, pars. 22-3 and 22-40,) when applied to a known narcotics addict are unconstitutional in making possession of narcotics a criminal offense. He relies upon Robinson v. California, 370 U.S. 660, 8 L.ed.2d 758, 82 S. Ct. 1417, and People v. Davis, 27 Ill. 2d 57.
Such cases do not render these statutes unconstitutional. The Robinson case held that a State statute which imprisons a person due to his condition or status violates the fourteenth amendment. People v. Davis declared sections 3 and 38 of the Uniform Narcotic Drug Act were invalid insofar as they imposed a penalty on an offense of being under the influence of or addicted to the unlawful use of narcotic drugs. This case, too, ruled a portion of the statute invalid only insofar as it penalized the status or condition of addiction.
These decisions did not exclude addicts from the provisions of the statute as defendant's contentions would propose, but only held invalid a penal law which involved no voluntary act. The statutory sections here involved were in no way unconstitutional despite the fact that in the instant case they bar possession of narcotics by a known addict.
Finding no error in the decision of the trial court, the judgment is affirmed.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609745/ | 22 Ariz. App. 233 (1974)
526 P.2d 757
Carl H. CORDS, Appellant,
v.
WINDOW ROCK SCHOOL DISTRICT NO. 8, APACHE COUNTY, Arizona, Marie Lincoln, Joe Watson, Leo Haven, Lester Lee and Thomas Lynch, as members of the Board of Trustees of Window Rock School District No. 8, Apache County, Arizona, Appellees.
No. 1 CA-CIV 2114.
Court of Appeals of Arizona, Division 1.
September 26, 1974.
Rehearing Denied November 1, 1974.
Review Denied December 10, 1974.
*234 Tupper, Rapp, Salcito & Schlosser, P.A. by Daniel R. Salcito, Phoenix, for appellant.
J. Kendall Hansen, Apache County Atty., St. Johns, for appellees.
OPINION
HATHAWAY, Chief Judge.
Appellant Carl H. Cords appeals from a denial of his application for a Writ of Mandamus seeking that the court direct the defendant Board of Trustees of Window Rock School District No. 8, Apache County, to issue him a teaching contract for the 1969-70 school year.
*235 The facts, taken in a light most favorable to upholding the judgment, are as follows: In October, 1967, plaintiff, a tenured teacher, requested and was granted a sabbatical leave of absence pursuant to A.R.S. § 15-444.02(D). In his request plaintiff specified that he sought to attend the University of the Americas, in Mexico City, D.F., Mexico during the 1968-69 school year to obtain a master's degree in history. He stated that if the request was granted he would specialize in the history, culture and civilization of pre-Columbia Meso-America. Shortly thereafter, the Board of Trustees voted unanimously to grant his request subject to conditions outlined in the Board's Policy Manual and Arizona statutory law regarding sabbatical leaves. Plaintiff thereafter signed a contract with the school district for the 1968-69 school year in which the district agreed to pay him one-half of his normal salary in accordance with A.R.S. § 15-444.02(D)(3).
Plaintiff enrolled in the University of the Americas in June, 1968, but soon terminated his studies and returned to Arizona because of ill health. He enrolled in and completed a summer session at Northern Arizona University and then enrolled for the fall semester but decided not to complete it. Until January, 1969, the district had no knowledge that plaintiff was not attending the University of the Americas and plaintiff had continued to receive his salary pursuant to the sabbatical contract despite the fact that the district's written policy regarding illness while on sabbatical reads as follows:
"Incapacitation of the employee while on sabbatical must be reported to the Board of Trustees by registered mail within a two week period. Sick leave benefits shall apply to an employee on sabbatical leave."
Plaintiff admitted that he had been aware of the district policy regulating sabbatical leaves of absence. It should also be noted that his uncompleted and unauthorized study at Northern Arizona University did not involve the history, culture and civilization of pre-Columbian Meso-America, the subject which the Board of Trustees had authorized him to study at the University of the Americas.
In January, 1969, after he had decided not to continue at Northern Arizona University, he first notified district superintendent George E. Burns of his decision not to complete his sabbatical.[1] During this conversation, plaintiff asked that he be restored to a full-time teaching position for the remainder of the school year. Superintendent Burns informed him that none were available and advised him that, in his opinion, the sabbatical contract would either have to be honored or cancelled. Plaintiff asked that he be allowed to substitute teach on a day-to-day basis as needed and in his spare time do independent work related to Indian culture. While telling plaintiff that there was a good possibility that he could substitute, Mr. Burns advised him that a resignation from his sabbatical contract would in all probability terminate his tenure and his status as a continuing teacher with the district.
At a second meeting with plaintiff during January, Mr. Burns again advised plaintiff that his resignation from his duties under the sabbatical contract could very possibly result in a forfeiture of his tenure rights and status as a continuing teacher. Plaintiff in no way disagreed with this opinion and in fact discussed how to effect a cancellation of the sabbatical contract. Mr. Burns advised him that it would have to be in writing and formally presented to the Board of Trustees. Mr. Burns also told plaintiff that the district administration felt that he had violated his sabbatical contract when he left the University of the Americas without notifying the district and that the district could possibly sue him to recover salary paid pursuant *236 to the sabbatical contract. Mr. Burns advised plaintiff that if he resigned his position with the district, the Board of Trustees could probably be persuaded not to seek recovery of the salary paid. Mr. Burns testified that he felt that he and plaintiff had reached a mutual agreement whereby the latter would resign and be allowed to substitute as needed and the board would not seek recovery of the salary he had been paid as of the date of his resignation.
On January 28th, plaintiff tendered a letter addressed to the chairman of the Board of Trustees in which he made it clear that he would no longer continue performing his obligations under the sabbatical contract. The board, at a meeting on January 28th, treated this letter as a resignation and so accepted it. Throughout the next three months, Mr. Cords was called from time to time as a substitute. He was not offered a contract to teach for the 1969-70 school year despite the fact that he had requested re-employment. He filed this action in July, 1969.
Plaintiff's primary contention is that the trial court erred in finding that the letter he had submitted to the school board on January 28th was a resignation.
It is settled that ordinary principles of contract law apply to school district-teacher employment contracts subject to pertinent statutory provisions which are deemed included in each contract and neither party to such a contract can unilaterally disregard the same with impunity. Carlson v. School District No. 6 of Maricopa County, 12 Ariz. App. 179, 468 P.2d 944 (1970). We have found no statutory authority specifying the conduct and/or words required for a teacher to validly terminate his contract with a school district,[2] and therefore we will proceed under general principles of contract law.
The evidence shows that plaintiff intended to and did abandon his sabbatical teaching contract. Abandonment, a matter of intent, can be inferred from the conduct of the parties and the attendant circumstances. Kolberg v. McKean's Model Laundry & Dry Clean. Co., 9 Ariz. App. 549, 454 P.2d 867 (1969). While plaintiff's letter of January 28th to the Board of Trustees did not contain the word "resignation", it did state, "I regret that I have been unable to complete my sabbatical contract but for the reasons given I did not."[3] His actions, including his discussions with Superintendent Burns, show he no longer desired to perform under the contract and that, in fact, he was no longer performing.
In King Realty, Inc. v. Grantwood Cemeteries, Inc., 4 Ariz. App. 76, 81, 417 P.2d 710, 715 (1966), the following rule was stated:
"Where the acts of one party inconsistent with the existence of a contract are acquiesced in by the other, the contract will be treated as abandoned."
The school board's acceptance of plaintiff's "resignation" letter may be looked upon as an acquiescence in plaintiff's abandonment of his contract. The evidence supports a finding that plaintiff and the board mutually abandoned the sabbatical leave of absence contract.
Plaintiff, however, argues that his intent at all times was merely to obtain the district's consent to the termination of his sabbatical status with pay without forfeiting his right to re-employment as a continuing tenured teacher. See A.R.S. § 15-251 et seq.
"I never felt my status would be affected at any time, the fact that I was hired as a substitute teacher and did substitute quite frequently and as I have already taught in the system for 10 years, I *237 could not anticipate that I had resigned from the school district per se.
I felt that I resigned from the sabbatical leave and because I felt I was not entitled to receive the half pay because by this time I had made up my mind that I would not return to NAU and this was another reason that I talked to Mr. Burns.
I explained to him that I was not entitled to this and I would like a chance for a position which was not open and then I suggested the substitute teaching for the balance of the school year."
Plaintiff is in effect arguing that he and the district modified his contract by allowing him to do independent research and substitute teach for the remainder of the school year without prejudice to his tenure rights. The district did state in its letter accepting plaintiff's "resignation" that it would place him on the "teacher substitute list" for the remainder of the year.
The testimony of Superintendent Burns, however, completely contradicts plaintiff's version of the facts and since it supports the judgment, we must accept it as true. Superintendent Burns stated that he and plaintiff had orally agreed that plaintiff would resign from the district and in return the administration would ask the Board of Trustees not to sue plaintiff for salary he had received after he had returned from Mexico. Mr. Burns repeatedly warned plaintiff that this resignation would result in a termination of his employment with the district and therefore a termination of his tenure rights as a continuing teacher. Plaintiff, according to Superintendent Burns, never disputed this but accepted it as a "necessary evil." Within a few days after their second conversation, plaintiff submitted the letter stating that he would no longer continue his sabbatical.
The evidence justifies a finding that plaintiff was fully aware of the consequences of his course of action. We agree with the following reasoning of the trial court:
"Having been warned that resignation of the sabbatical contract would terminate the Plaintiff's tenure rights, it seems ludicrous to contend that a teacher having resigned a day or two after the warning can now maintain that he wasn't aware of the consequences of his resignation."
Plaintiff contends that because the evidence establishes that he was not informed of the school board's acceptance of his resignation until April, 1969, his contract was still in effect as of March 15 and therefore automatically renewed pursuant to A.R.S. § 15-252. We reject this argument because substantial evidence shows that the district's letter accepting plaintiff's resignation was sent on February 3, 1969. Plaintiff never denied receiving it.
Plaintiff's next argument, that he was entitled to a hearing before the district could dismiss him, must be rejected due to the substantial evidence that he knowingly and voluntarily relinquished his right to re-employment as a continuing tenured teacher. An involuntarily dismissed continuing teacher is entitled to a hearing not a teacher who abandons or resigns his contract. A.R.S. § 15-254. Plaintiff has cited no authority to the contrary.
Plaintiff finally complains that the decision below violated A.R.S. § 15-444.02 which governs sabbatical leaves of absence. He cites subdivision E of that statute which provides:
"E. If leave is granted, all rights of tenure, retirement, accrued leave with pay, salary increments and other benefits provided by law shall be preserved and available to the applicant after the termination of the leave of absence."
He argues that the word "termination" encompasses termination by resignation or abandonment. While on sabbatical leave, a teacher is still under contract with the district in the same manner as if he were teaching in the district. The rights of a tenured teacher are dependent upon his continued performance each year *238 under his contract. When a teacher and a district mutually abandon this contract, they abandon any rights which accompany it particularly when the teacher is fully aware of the consequences of abandonment. A.R.S. § 15-444.02(E) permits the taking of a sabbatical leave of absence without penalty. The teacher upon a successful completion of his sabbitical leave, would return with the same rights and status he would have had if he had taught in the district during the year. It was not intended to allow the teacher to cease performance under his contract, enter into an agreement to terminate the contract and the rights accompanying it, and later avoid the obvious consequences of such conduct.
Affirmed.
KRUCKER and HOWARD, JJ., concur.
NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120(E).
NOTES
[1] In this letter to the Board of Trustees, discussed infra, plaintiff stated that he was discontinuing his studies because they were a "waste of time" in that he was not gaining any knowledge.
[2] The only statutory provision pertaining to resignation of a teacher is A.R.S. § 15-258, as amended, which provides that resignation from a contract without prior board approval shall be deemed an unprofessional act and will render the resigning teacher subject to suspension or revocation of his teaching certificate.
[3] Plaintiff's stated reasons for non-performance clearly would not excuse performance. Although he had been ill while in Mexico, he recovered upon his return to Arizona. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610119/ | 485 P.2d 1048 (1971)
Richard DENNING, Evelyn Ankers Denning and Maui Corporation, a Hawaii corporation, Plaintiffs-Appellees,
v.
COUNTY OF MAUI et al., Defendants-Appellants.
No. 5048.
Supreme Court of Hawaii.
June 4, 1971.
Arthur T. Ueoka, Asst. County Atty., Kase Higa, County Atty., County of Maui Wailuku, Maui, with him on the briefs, for defendants-appellants.
William F. Crockett, Wailuku (Crockett & Crockett, Wailuku, of counsel), for plaintiffs-appellees.
Before RICHARDSON, C.J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
KOBAYASHI, Justice.
The appellants bring to this court a judgment wherein the trial court, following a motion for summary judgment by the appellees, issued a peremptory writ of mandamus to the Board of Adjustment and Appeals of the County of Maui, ordering *1049 this administrative agency to hear and determine the controversy between the appellees and the Planning Director for the County of Maui. Additionally, the judgment laid down legal principles discussed hereafter, for deciding the controversy should the agency make certain determinative factual findings.
This controversy involves the application of an ordinance[1] adopted by appellant, County of Maui, establishing zoning regulations for the Kihei area in which lies property owned by appellee Denning. The individual appellants are county officials charged with the enforcement of these regulations. Maui Corporation, the other appellee, is a Hawaii development corporation with which Denning has contracted for the construction of a six-story condominium on his property.
Prior to judicial review the appellees sought relief from the Board of Adjustment and appeals. The agency, however, on the advice of the county attorney refused to take action claiming it lacked power and authority to entertain the dispute. The briefs of both parties focus primarily on this question of jurisdiction, appellants alleging error in the trial court's mandatory order. However, attention is given to the legal guildelines enunciated by the circuit court and argument on this matter was presented to this court on appeal.
Accordingly, although the trial court did not resolve this non-jurisdictional issue, finding these legal guidelines ambiguous necessitates some examination of them in order to avoid later clarification by this court. With this in mind there follows some factual background applicable to our treatment of this matter. This chronology is dispositive of the jurisdictional issue we decide today.
A. FACTS
(1) Appellee Denning owns a parcel of land in the Kihei area on the island of Maui designated by Tax Key No. 3-9-20-1. On August 15, 1968, at the time Denning purchased this parcel, the classification designated therefor by the Master Plan of the County of Maui was "Hotel District". Zoning regulations for structures within this "Hotel District" specified a height limitation of 12 stories and a "floor area/lot area ratio" of 150%.[2]
(2) On May 5, 1969 Denning wrote to the Planning Director for the County of Maui requesting approval of plans to proceed with the development of his property and the construction of an eight-story condominium apartment with a floor area/lot area ratio of 144.1%. Sketches of the proposed structure were included in Denning's letter. The applicable zoning at this time was as stated in (1).
(3) In the Planning Director's written reply of May 8, 1969 "preliminary approval" was given to Denning. The Planning Director also stated that the County Council of Maui had before it a proposed plan titled "general Plan 701" which redesignated the classification of the area encompassing Denning's property as "Resort Commercial".[3] He went on to state it was difficult to ascertain whether General Plan 701 would be adopted in its then present form and if so adopted what would be the requirements of the applicable zoning regulations.
*1050 (4) Soon afterwards Denning submitted some revised plans to the Planning Director, which for this appeal varied insignificantly from his earlier plans. Again "tentative" or "preliminary approval" was given Denning (based on "zoning for this area") in a return letter of May 26, 1969. This letter then continued, "It is difficult to ascertain at this time what might happen regarding zoning, height limitations * * * in this area." The clear implication of the above language was that "zoning regulations" would control the area's development.
(5) On July 18, 1969 "Interim Ordinance No. 621" amending the zoning for the area in question was enacted into law reducing the height limitation from twelve to six stories. This ordinance did not affect the floor area/lot area ratio for the area.[4]
(6) On July 25, 1969 Denning's architect personally conferred with officials from the Maui Planning Department about the proposed development in light of the lower height regulation.
(7) Subsequently Denning submitted revised plans, these providing for a structure of six stories with a floor area/lot area ratio of 146%. In an August 13, 1969 letter from the Planning Director, "preliminary approval" was again given Denning since "the plans conform with the present zoning for the area and the interim height regulation ordinance, except for one minor correction." The correction concerned an item immaterial to this appeal. The letter confirmed that zoning regulations would control the property's development, not the adoption of General Plan 701.
(8) General Plan 701 passed final reading on August 18, 1969 redesignating the classification of Denning's property as "Resort Commercial". "Interim Ordinance No. 621" continued in force.
(9) On October 28, 1969 the Planning Director, in a letter to appellee Maui Corporation, stated that new plans for a six-story structure received by his department on October 20 conformed to "all existing zoning requirements" except for a minor recordation matter.
(10) The County Council of Maui enacted into law on December 19, 1969 Ordinance No. 641 providing for the area including Denning's parcel a zoning height limitation of two stories and a floor area/lot area ratio of 100%.
Following the adoption of Ordinance No. 641, Denning conferred with the Planning Director and was informed that the recently enacted zoning requirements applied without qualification to his land and its future development and that a building permit would consequently be denied. The ordinance itself is silent as to whether it affects development in progress to the extent of Denning's project.
The expenses allegedly incurred through December 30, 1969 in conjunction with this project total $38,047.34 major items being architectural, advertising, and legal fees. Because of these costs appellees went before the Board of Adjustment and Appeals, alleging the right to continue the development. From its refusal to act appellees took the matter to the circuit court which in turn remanded the controversy to the agency for a hearing and decision.
B. THE BOARD OF ADJUSTMENT AND APPEALS IS WITHOUT JURISDICTION TO HEAR THIS CONTROVERSY
Appellees, in going before the Board of Adjustment and Appeals requested that prior zoning regulations rather than those in effect be applied to Denning's property. The nature of this request, however, precludes an administrative assumption *1051 of jurisdiction. This case does not involve a petition for a variance.[5] With the enactment of Ordinance No. 641 on December 19, 1969 a change of law occurred. In hearing thereafter the dispute at hand, the Board of Adjustment and Appeals was bound to enforce the terms of Ordinance No. 641 effective at this time because to apply prior zoning regulations would nullify existing legislation. Russian Hill Imp. Ass'n v. Board of Permit Appeals, 66 Cal. 2d 34, 56 Cal. Rptr. 672, 676, 423 P.2d 824, 828 (1967); Deer Park Civic Ass'n v. City of Chicago, 347 Ill. App. 346, 350, 106 N.E.2d 823, 825 (1952); Lee v. Board of Adjustment, 226 N.C. 107, 111-112, 37 S.W.2d 128, 132 (1946).
As the Board of Adjustment and Appeals was without jurisdiction to authorize Denning to proceed with construction, the trial court's judgment remanding the matter to this agency was error and is reversed.
C. APPLICATION OF THE TERMS OF ORDINANCE NO 641 AS TO THE APPELLEES
The judgment of the trial court laid down legal principles for deciding this controversy should the Board of Adjustment and Appeals make certain determinative factual findings. It is apparent that upon remand, once these factual findings are made, resolution of this issue could very well be influenced by the enunciated legal principles.
The "rule of law" laid down by the trial court was, in summary:
If Denning expended substantial sums for the preparation of plans and documents in good faith reliance upon law prior to Ordinance No. 641 and which expenditures were incurred upon the reasonable probability of a building permit being issued then Denning must be allowed the right to proceed.
In order to avoid unnecessary appellate proceedings and for the proper guidance of the trial court, we are of the opinion that for Denning to be allowed the right to proceed in constructing the planned structure the facts must show that Denning had been given assurances of some form by appellants that Denning's proposed construction met zoning requirements.[6] And that Denning had a right to rely on such assurances thereby equitably estopping appellants from enforcing the terms of Ordinance No. 641.[7]
Crucial to this issue could very well be the enactment of "Interim Ordinance No. 621" reducing the height limitation from twelve stories to six stories. The function of this measure was undoubtedly to protect the design of the proposed General Plan 701 while the zoning regulations pertaining thereto were still in their incubative stage.[8]
Mere good faith expectancy that a permit will issue does not create in a property owner a right to continue proposed construction.[9]
We remand this case to the circuit court for trial.
NOTES
[1] Ordinance No. 641 which became effective on December 19, 1969.
[2] This is the ratio of floor area to land area expressed as a percent and determined by dividing the total floor area on a zoning lot by the lot area of that zoning lot.
[3] "Resort Commercial", a new classification, was embodied in Ordinance No. 589, effective on January 3, 1969. The ordinance described its purpose as follows:
"The resort commercial district is intended to provide for commercial activities and services oriented towards the needs of the transient visitor. This district is distinguished from hotel districts in that independent commercial uses are permitted, whereas commercial activities in hotel districts must be accessory to the hotel use."
No zoning regulations for this "Resort Commercial" classification were promulgated at this time.
[4] The purpose of this enactment as stated in the ordinance is:
"Such regulations are deemed necessary for the purpose of providing interim regulations pending the formal adoption of a comprehensive revision of the zoning maps * * *."
Reference to the "zoning maps" included General Plan 701 later adopted on August 18, 1969.
[5] See Tantimonaco v. Zoning Board of Review, 100 R.I. 615, 617, 218 A.2d 480, 481 (1966).
[6] Cos Corporation v. City of Evanston, 27 Ill. 2d 570, 576-577, 190 N.E.2d 364, 367-368 (1963).
[7] Bregar v. Britton, 75 So. 2d 753, 756 (Fla. 1954).
[8] See, Note, Stopgap Measures to Preserve the Status Quo Pending Comprehensive Zoning or Urban Redevelopment Legislation, 14 W.Res.L.Rev. 135 (1962).
[9] Russian Hill Imp. Ass'n v. Board of Permit Appeals, 66 Cal. 2d 34, 56 Cal. Rptr. 672, 676, 423 P.2d 824, 828 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610126/ | 14 Ariz. App. 545 (1971)
485 P.2d 3
Andrew WATZEK and Margaret Watzek, his wife; and the City of Phoenix, Arizona, a municipal corporation, Appellants,
v.
Georgia M. WALKER, Appellee.
No. 1 CA-CIV 1285.
Court of Appeals of Arizona, Division 1, Department A.
May 19, 1971.
Rehearing Denied June 16, 1971.
Review Denied July 13, 1971.
*547 O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph E. Mahowald, Phoenix, for appellants.
O'Reilly, Pollock, Pizzo & Brash by Gerald A. Pollock, Phoenix, for appellee.
CASE, Judge.
This is an appeal from a judgment in favor of appellee (plaintiff in the trial court). The parties will be referred to herein as they appeared in the trial court.
Plaintiff, Georgia Walker, filed a complaint on December 18, 1967 alleging false imprisonment and malicious prosecution. The count of false imprisonment was dismissed before trial since it was barred by the one-year statute of limitations. The remaining count of malicious prosecution was tried to a jury which returned a verdict against defendants Watzek and the City of Phoenix for $20,000.00 compensatory damages and $1.00 punitive damages.
The facts are as follows. On July 11, 1966, a negro female entered the Big Ten Market ostensibly to purchase some groceries. At the checkout counter she presented a check in the amount of $113.47 drawn on the Valley National Bank with Agnes P. Jones as payee and Guarantee Reserve Life Insurance Company as maker. Since the customer had no identification from the Valley Bank the cashier took the check to a special services window where a telephonic inquiry was made as to the check's validity. After the store decided not to accept the check the cashier returned to her register and found that the customer had fled leaving the groceries. A stock boy had followed the fleeing woman and recorded the make, model and license number of her car.
Officer Toma of the Phoenix Police Department made the preliminary investigation shortly after the above-mentioned incident. He filed a departmental report stating the time of the incident to be 4:00 P.M. and further stating that the car used in fleeing was registered to an Irma McCoy who resided at a Phoenix address.
On August 5, 1966, Officer Andrew Watzek, a member of the forgery detail of the Phoenix Police Department, made a further investigation of the matter and filed a supplemental departmental report. The testimony at trial revealed that Watzek discussed the case with Officer Robinette who was also a member of the forgery detail. Robinette noted that similar forged checks were being passed by a group of negro persons referred to as the "Burton" group. He supplied Watzek with forty or fifty Arizona drivers licenses with pictures of suspected acquaintances and employees of Kermit Burton. Watzek picked out four or five pictures of negro females from those supplied by Robinette and exhibited them to various store personnel. Robert Spencer, the general manager of the store, told Watzek and also testified that he encountered the forger two or three times while she was shopping and could identify a picture of her. Spencer viewed the photos and selected one of plaintiff as the check passer. Watzek's report requested a complaint be filed charging plaintiff with one count of passing a forged check.
On August 31, 1966, Officer Watzek, on information and belief, swore out a complaint in the West Phoenix Justice Court charging plaintiff with violating Section 13-311 A.R.S. and asked that a warrant be issued for her arrest. Plaintiff was arrested and released on her own recognizance pending preliminary hearing. On September 29, 1966, at the preliminary hearing the complaint was dismissed on motion of the County Attorney. This filing and arrest are not the subject of the law suit. The reason for the dismissal was the failure of a key witness to appear.
On November 22, 1966, Officer Watzek, again on information and belief, swore out a complaint, this time in the Tolleson Justice Court, charging plaintiff with the same crime and again requesting that a *548 warrant issue for her arrest. On Thanksgiving Day, Miss Walker was arrested at her home and shortly thereafter released on bond. On July 7, 1967, the State presented its evidence at the preliminary hearing and the hearing was continued until August 3, 1967, at which time Miss Walker presented her case. Thereafter, the Court granted defense counsel's motion to dismiss. The instant action followed.
At trial, after the submission of all the evidence, the trial court, as a matter of law, held that a criminal proceeding was instituted by the defendants against plaintiff, that said proceeding terminated in favor of the accused and that the proceeding was instituted without probable cause. The issues presented to the jury were malice and the amount of damages.
This Court on appeal will normally not disturb a trial court judgment if there is any reasonable evidence supporting it. Feighner v. Clarke, 101 Ariz. 334, 419 P.2d 513 (1966). Yet, in reviewing questions of law, we are not bound by the findings of the trial court but are free to draw our own legal conclusions from the evidence presented. Tovrea Land and Cattle Company v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966); Guirey, Srnka & Arnold, Architects v. City of Phoenix, 9 Ariz. App. 70, 449 P.2d 306 (1969).
Defendants complain that the evidence fails to establish the lack of probable cause and in fact affirmatively shows the existence of probable cause. The Arizona test to determine probable cause in a malicious prosecution action is whether "upon the appearances presented to the defendant, would a reasonably prudent man have instituted or continued the proceeding?" McClinton v. Rice, 76 Ariz. 358, 367, 265 P.2d 425, 431 (1953). The existence of probable cause in a particular case is a question of law to be determined by the court. Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz. 173, 354 P.2d 34 (1960); Todd v. Melcher, 11 Ariz. App. 157, 462 P.2d 850 (1970). In the instant case Officer Toma, the first officer on the scene, noted that the suspect fled in a car bearing license plates registered to Irma McCoy which plates were assigned to the described vehicle. The followup investigation was done by Officer Watzek. His investigation consisted of exhibiting several photographs of suspected acquaintances of Kermit Burton. Robert Spencer identified the picture of Miss Walker as the one who attempted to pass the check, while the cashier and other witnesses could not make a positive identification. On this information Watzek requested that a complaint issue charging Georgia Walker with one count of passing a forged check. Officer Watzek made no attempt to locate and question Irma McCoy, insert her picture in the sample shown the store employees, investigate plaintiff's whereabouts on the date and time of the incident, attempt to interview plaintiff or request both plaintiff and Irma McCoy to appear in a lineup. In fact the only evidence on which Watzek based his complaint was the photographic identification of the suspect, a negro female by a Caucasion male. In this regard Lawrence Wetzel, Chief of Police of the City of Phoenix, called and qualified as an expert on police procedure, testified that Caucasians are not able to identify negroes as well as they can identify other Caucasians. He further testified that an in-person identification is much more reliable than a photographic identification. He further testified that from a police officer's viewpoint, considering the reports of both Toma and Watzek, Irma McCoy would not be eliminated as a suspect. Thus, it appears that when Watzek signed the complaint there were two suspects, Irma McCoy and Georgia Walker.
We recognize that in the absence of further circumstances, an eyewitness identification of an individual furnishes probable cause to assume the guilt of the party identified. Randleman v. Boeres, 93 Cal. App. 745, 270 P. 374 (1928); Hanna v. *549 Updike, 210 A.D. 780, 206 N.Y.S. 809 (1924). But we also recognize the need in some cases for further investigation. The Restatement of Torts discusses the necessity for further investigation in the following comment:
"Circumstances known or believed by the accuser may be incriminating to the accused and yet may not so clearly indicate guilt that a reasonable man would initiate criminal proceedings without investigation. In determining whether an investigation should be made, the following factors are important; the necessity of prompt action to prevent escape; the availability of information other than that in the possession of the accuser; the existence of a ready opportunity to obtain an explanation from the person accused or to ascertain his reputation; the character of the source from which the accuser's information comes. The accuser may properly be required to make inquiry as to the veracity of his informants where his belief is founded upon their information. He may even be required to distrust the accuracy of his own observations when they are made under such circumstances that they may be suspected of inaccuracy. In all these cases the fact that an investigation might prove dangerous, or the probability that it would be futile, are matters to be taken into account." Restatement of Torts § 662, comment i (1938).
The case sub judice required further investigation. There was no indication of a need for prompt action to prevent the escape of Georgia Walker as she had resided in Arizona for 21 years. The availability of further information has been previously alluded to. We agree with the trial court that the prosecution of plaintiff was initiated with an absence of probable cause.
Defendants next claim that they established a defense by making full disclosure to the County Attorney. The defense of full disclosure in a malicious prosecution action is established when the potential complainant makes a full and truthful disclosure to a licensed attorney of all material and relevant facts known to him and thereafter proceeds on the attorney's advice. Wisniski v. Ong, 84 Ariz. 372, 329 P.2d 1097 (1958); Todd v. Melcher, supra; Tate v. Connel, 3 Ariz. App. 534, 416 P.2d 213 (1966). The evidence was indeed contradictory as to the facts of the disclosure. Detective Watzek's departmental report, drafted before any discussion with an attorney, requested a complaint charging Georgia Walker with one count of passing a forged check. Testimony of an Assistant County Attorney indicated that it was unusual for an officer to request a complaint and that when present such a request was an important item. On this evidence alone the jury could have found Watzek's initiation of the prosecution to be independent and not based on advice of an attorney. He in fact signed two complaints, the first of which was dismissed due to the failure of a state's witness to appear. Before signing the second complaint the departmental reports, both Watzek's and Toma's, were given to the County Attorney's office. Members of said office located Robert Spencer and confirmed that he could identify Georgia Walker and that he would appear at a preliminary hearing for that purpose. The only information conveyed by Watzek to the County Attorney was his departmental report. The jury had before them the reports and were properly instructed as to the necessity for full truthful disclosure. In light of all the testimony the jury could also easily have found that Watzek's report indicated that he had eliminated Irma McCoy as a suspect when in fact he had not even followed up on any information concerning her, thus not making a full disclosure. We find sufficient evidence to support the jury's decision on this question.
Defendants also claim the trial court erred in failing to give defense's instruction concerning the full and truthful *550 disclosure in place of the court's own instruction which they claim to be erroneous. The court's instruction objected to reads:
"The defendants have alleged as an affirmative defense that they in good faith relied upon the advice of the Maricopa County Attorney in the filing of the criminal charge against the plaintiff after making a full and truthful disclosure of the facts to that office in the departmental report of Mr. Toma and Mr. Watzek.
The burden of proof on that defense rests upon the defendants. They have the burden of proving that the County Attorney was given a full and truthful disclosure of all of the material facts relating to the crime and the accused within the accuser's knowledge and information.
There must be a full disclosure of all matters which a reasonable man would regard as material for the prosecutor to know in order that he may give a sound opinion.
If you find in favor of the defendant on that issue, you must return a verdict in favor of the defendants even though the advice received was erroneous."
Defendants argue this is not the law in Arizona. The defense of full and truthful disclosure is a defense which must be pleaded and proved affirmatively by the defendants. 52 Am.Jur.2d, Malicious Prosecution, § 135 (1970). It should also be noted that the defense of full and fair disclosure is of greater importance in cases where the question is whether the conduct complained of constitutes a crime rather than, as the case at bar, where the question dealt with the probability that the particular suspect was in fact the perpetrator. See, Restatement of Torts, § 666, Comment b (1938).
Defendants also claim the above instruction together with a comment by the trial judge created the wrongful impression in the mind of the jurors that certain police officers' knowledge could be imputed to other officers. The earlier instruction which occurred at a point before plaintiff testified as to her conversation with members of the Phoenix Police Department other than Detective Watzek, reads in part:
"I am going to overrule the objection, but I am going to tell the jury that we have two defendants, Officer Watzek and the City of Phoenix. The question put to the witness regards a conversation between the witness, the plaintiff, Miss Walker, and Officer Sparks, who is not a party to this case but who at the time was an employee and agent of the City of Phoenix. Anything he may have stated to her would be hearsay as to Officer Watzek. What he knew is not necessarily what Officer Watzek knew; however, what he knew would be the knowledge of the City of Phoenix and attributable to the City as a municipality. You will receive appropriate instructions at a later time concerning the knowledge of an agent and when it is attributable to the City of Phoenix.
I will overrule the objection. It will be admitted for the purpose of evidence against the City of Phoenix."
Plaintiff's counsel at the time of the objection argued that the testimony related to the element of damages, i.e., the degree of plaintiff's personal distress as a result of the prosecution. The testimony was irrelevant. We find its admission into evidence to be harmless error since the court stated that the testimony of Sparks would not be attributable to Watzek, the exact conclusion defendant wished to reiterate in an instruction. Furthermore, we do not agree with the defendants' claim that the above instruction regarding Officer Sparks' testimony was a judicial comment on the evidence as prohibited by Art. 6, Sec. 27 of the Arizona Constitution, A.R.S.
The defendants also claim the evidence was insufficient for the jury to find malice. Testimony was introduced *551 that the true motive in filing the second complaint was to get Kermit Burton. If the instruction hereinafter alluded to was proper no error is present. Defendants urge that the instruction on malice was erroneous in that it said: "Lack of probable cause allows an inference but not necessarily one of malice." Defendants' instruction approved as modified by the court included the words a mere immediately preceding the word inference. Defendants claim the omission of said words in the reading of the instruction left the impression in the minds of the jury that if there was no probable cause an inference of malice must be raised. We find that the position cannot be sustained considering the last segment of the sentence which indicates the inference is not necessarily one of malice.
Defendants next contend that the trial court erred in refusing to allow them to show that plaintiff actually committed the crime. The record reflects that Spencer was on the stand apparently prepared to make an in-court identification of plaintiff. Prior to defense counsel's asking Spencer to make such identification, counsel was called to the bench where a discussion was held which was not reported. We cannot speculate as to what was said at this "at bench" conference. The record does reflect that a motion for a mistrial was made the following day based upon the court's alleged refusal to permit this in-court identification. Since defendants made no offer of proof and since the record is silent as to the discussion at the bench, the issue is not before this court for decision.
We find no error in the court's refusal to instruct the jury regarding the defense of proof of guilt since this defense was not affirmatively plead in the answer as required by Ariz.R.Civ.P. 8(d), 16 A.R.S.
Judgment affirmed.
HENRY S. STEVENS, P.J., and DONOFRIO, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516819/ | C-Track E-Filing
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https://www.courtlistener.com/api/rest/v3/opinions/3099407/ | IN THE
TENTH COURT OF APPEALS
No. 10-10-00193-CV
In re
Baker's Campground, Inc.,
Kelli
Graves, and Kourtnie Graves
Original Proceeding
MEMORANDUM Opinion
The
petition for mandamus is denied. Tex.
R. App. P. 52.8(d).
TOM
GRAY
Chief
Justice
Before
Chief Justice Gray,
Justice
Reyna, and
Justice
Davis
Petition
denied
Opinion
delivered and filed May 26, 2010
[OT06]
case if the fine imposed by the statutory county court “does not
exceed one hundred dollars, unless the sole issue is the constitutionality of
the statute or ordinance on which the conviction is based.” Tex. Code Crim. Proc. Ann. art. 4.03 (Vernon
2005).
The fines imposed in these cases do
not exceed $100 and Schinzing is not challenging the constitutionality of
section 38.10 of the Penal Code, on which his convictions are based.
Therefore, we dismiss these appeals for want of jurisdiction.[1]
See Preston v. State, 145 S.W.3d 683, 684 (Tex. App.—Corpus Christi 2004,
no pet.); Boyd v. State, 11 S.W.3d 324, 325 (Tex. App.—Houston [14th
Dist.] 1999, no pet.).
PER CURIAM
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Appeals dismissed
Opinion delivered and
filed May 2, 2007
Do not publish
[CR25]
[1]
Schinzing’s appeals in cause
nos. 10-06-146-CR and 10-06-147-CR remain pending because the fines in those
cases exceed $100. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3353032/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISIONRE: MOTION TO DISQUALIFY
Defendant Thomas Yuditski has moved to disqualify the law firm of Pullman Comley, LLC from representing the plaintiffs, T. Paul Tremont and Lois Tremont, who have brought this suit as trustees of the "Tremont Sheldon, P. C. Profit Sharing Plan." The defendant's disqualification claim is based on Rules 1.7 and 3.7 of the Rules of Professional Conduct. For the reasons stated below, the motion to disqualify is denied.
The pension plan for which the plaintiffs are trustees is the successor to another pension plan, the "Tremont, Yuditski
Sheldon, P.C. Employees' Pension Plan." At one time, Attorney Yuditski was associated with Attorneys Tremont and Sheldon. After the association ceased, some assets from the "Tremont, Yuditski
Sheldon, P.C. Employee's Pension Plan" were distributed to Attorney Yuditski and other assets were transferred to the successor pension plan. The plaintiffs claim that due to an error by a transfer agent Attorney Yuditski received 2,100 shares of stock in a California company that should have been transferred to the successor pension plan. The plaintiffs have sued Attorney Yuditski on behalf of the successor pension plan. They seek to obtain the shares and the dividends that have been paid on the shares since 1991.
The defendant claims that Pullman Comley should be disqualified because a conflict of interest exists between Pullman Comley and the plaintiff and between Pullman Comley and the beneficiaries of the predecessor pension plan. The defendant relies on Rule 1.7(a), which provides, in part, "[a] lawyer shall not represent a client if the representation of that client will be directly adverse to another client. . . ." The defendant claims that Pullman Comley owed the defendant a fiduciary duty because it was retained by the plaintiffs to review the termination of the old plan and to advise the plaintiffs what distributions were to be made to the defendant. The court has reviewed the allegations of the complaint and the defendant's defenses and concludes Pullman Comley does not have CT Page 64 interests that are adverse to the interests of the new pension plan. The court also concludes the firm does not have a conflict of interest with the beneficiaries of the old pension plan. While Pullman Comley may have had a fiduciary duty to the beneficiaries of the old plan, the existence of the duty did not make those beneficiaries clients of Pullman Comley. See Comment to Rule 1.13(a) of the Rules of Professional Conduct.
The defendant next claims Pullman Comley should be disqualified under Rule 3.7 of the Rules of Professional Conduct on the grounds (1) Pullman Comley is a necessary party to this litigation and (2) that lawyers from the firm will be material witnesses at trial. The defendant basis this disqualification claim on its assertion that any errors in the distributions were due to the "negligence, carelessness, and mismanagement of the Plan by Pullman Comley LLC which gave rise to the above-captioned action. . . ." This court (Moran, J.) previously determined Pullman Comley is not a necessary party when it denied the defendant's motion to cite-in Pullman Comley. This court now concludes that lawyers from Pullman Comley are not necessary witnesses under Rule 3.7. The plaintiffs' claims against the defendant are based on the legal theories of breach of contract, conversion, unjust enrichment, and constructive trust. The resolution of these claims turns on the trier of fact deciding who is the owner of the stock. Whether Pullman Comley was negligent when it reviewed the old plan and gave advice on the distributions is not relevant to the ownership issue.
The motion to disqualify Pullman Comley, LLC as plaintiffs' counsel is denied.
THIM, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2431571/ | 465 F. Supp. 2d 283 (2006)
In the Matter of An ARBITRATION BETWEEN KARAHA BODAS COMPANY, L.L.C, Petitioner,
v.
PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA ("PERTAMINA"), Respondent.
No. 21-MC-00098 (TPG).
United States District Court, S.D. New York.
December 8, 2006.
*284 Christopher F. Dugan, Paul, Hastings, Janofsky & Walker LLP, Washington, DC, for Petitioner.
Henry Weisburg, Shearman & Sterling LLP, New York City, for Respondent.
OPINION
GRIESA, District Judge.
Karaha Bodas Company ("KBC") moves for an order prohibiting Pertamina from engaging in certain legal proceedings in the Cayman Islands and from initiating similar proceedings in other jurisdictions. The motion is granted. In addition, the Court will enter a declaratory judgment based on certain conclusions reached in this opinion.
Facts
The Arbitral Award
In 1994 KBC, a Cayman Islands limited liability company formed by two American power companies and other investors, executed two contracts with Pertamina, an oil and gas company owned and controlled by the Republic of Indonesia. The contracts established a joint venture for the exploration of geothermal energy resources in the Karaha area of West Java, Indonesia. In 1997 the projects were suspended by Indonesian Presidential Decrees. As a result, on April 30, 1998, KBC commenced arbitration proceedings in Switzerland for breach of contract by Pertamina. On December 18, 2000, the Tribunal awarded KBC $261.1 million.
In February 2001 Pertamina attempted to challenge the award in the Swiss Supreme Court, on grounds that are not explained *285 on the record in the present motion. The Swiss court denied Pertamina's application for failure to timely pay court fees. Pertamina next challenged the award in the Jakarta District Court in Indonesia. The Jakarta court granted Pertamina's request to annul the award in August 2002, but on March 23, 2004, the Indonesian Supreme Court reversed.
Confirmation Proceedings in the United States
In early 2001, KBC brought an action in the United States District Court for the Southern District of Texas to confirm the Arbitral Award. On December 4, 2001, that court granted summary judgment in favor of KBC and confirmed the award. Pertamina filed a notice of appeal, and a year latermonths after the briefing on the appeal was concludedPertamina moved under Fed.R.Civ.P. 60(b) in the Texas district court to set aside the judgment. Pertamina sought to set aside the judgment because (1) there was newly discovered evidence of political risk insurance coverage pursuant to which KBC's investors were paid $75 million and (2) the Jakarta District Court annulled the underlying Arbitral Award in August 2002. The Fifth Circuit remanded the case to the district court to consider the merits of the Rule 60(b) motion. The district court denied Pertamina's motion in two separate opinions on April 16 and May 30, 2003. The Fifth Circuit on March 23, 2004, affirmed both the district court's December 2001 judgment and the Rule 60(b) decisions of 2003. On October 4, 2004 the United States Supreme Court denied certiorari.
Pertamina's Claim of Fraud
Pertamina claims that KBC committed fraud in connection with the joint venture and the arbitration. It is important to note that Pertamina's claim of fraud was not presented in the arbitration itself or in any of the proceedings described above in the Swiss Supreme Court, the Jakarta District Court, the Southern District of Texas, the Fifth Circuit, or the United States Supreme Court. However, the fraud claim was presented in certain proceedings in Hong Kong and Singapore, as will be described. More importantly, Pertamina's claim of fraud is the basis of its action in the Cayman Islands, which is the subject of the present motion.
Specifically, Pertamina alleges that KBC fraudulently overstated the size of geothermal resources in 1997 and relied on those falsehoods in the arbitration proceedings. In its Statement of Claim dated October 6, 2006, filed with the Cayman Islands court, Pertamina attempts to present a detailed list of the specifics of the alleged fraud. But the details all relate the basic claim that KBC overstated the size of geothermal resources. It should be noted that, although there is no indication that the claim of fraud was literally presented to the Arbitral Tribunal, the issue of the quantity of geothermal resources was surely put forward. Paragraph 129 of the Final Award describes the fact that Pertamina claimed that the representations made by KBC "were suspect since the quantities of reserves indicated" in one analysis by KBC "had been significantly increased without justification" in a later analysis. In paragraph 131, the Arbitral Tribunal recognizes the possibility that the amount of reserves put forward by KBC may have been overestimated, and states that the Tribunal would give weight to this circumstance in making the allowance for lost profits. The result was that, whereas KBC had claimed lost profits of $512.5 million, the Tribunal, in paragraph 136, only awarded $150 million.
Pertamina asserts that its claim of fraud is based upon new evidence. There is an issue about when Pertamina knew, or should have known, about this alleged new *286 evidence. Such evidence is in fact contained in documents turned over to Pertamina by KBC. The parties dispute when the documents were received by Pertamina. KBC claims that the documents were turned over in March 2001, when KBC relinquished its offices and files to Pertamina. However, Pertamina insists that the documents were not received until November 2002, when a KBC employee delivered twelve boxes of documents to Pertamina's Geothermal Office. Regardless, Pertamina asserts that "no one looked through them until August 2005 when Pertamina's advisors came and inspected them" (Statement of Bambang Kustono, October 13, 2006).
Foreign Confirmation/Registration Proceedings
In addition to bringing the action in the federal court in Texas, KBC brought confirmation/registration proceedings in Hong Kong, Singapore and Canada. On March 27, 2003, the Hong Kong court granted KBC's application to register the award and denied Pertamina's attempt to set it aside. An appeal was partially heard in December 2003, but the appeal was adjourned pending the outcome of the Fifth Circuit's decision in the United States. The appeal was scheduled to be heard in February 2006. Pertamina filed a Supplementary Notice of Appeal, including allegations of fraud. The exact status of that matter is not clear. However, KBC recovered $898,682.90 in Hong Kong to be applied to the amount owed by Pertamina under the Arbitral Award.
On March 14, 2002 the High Court of the Republic of Singapore granted KBC's application to register its award. Pertamina's application to set aside the order, also filed in 2002, was held in abeyance pending the outcome of proceedings in the United States. In late January 2006, Pertamina informed the Singapore court of its fraud allegations in a conference. KBC made various applications to the Singapore court in an attempt to defer further litigation until after the termination of proceedings in the United States, but the court denied KBC's applications. Eventually, KBC voluntarily dismissed its action in Singapore.
On December 8, 2004, a Canadian court granted summary judgment in favor of KBC and confirmed the award. Pertamina's appeal is currently still pending. There is no indication that Pertamina has brought up its fraud allegations in the Canadian proceeding.
Execution Proceedings in the Southern District of New York
When Pertamina appealed the Texas district court's decision in early 2002, it declined to file a supersedeas bond pursuant to Fed.R.Civ.P. 62(d) in order to obtain a stay of the judgment pending appeal. As a result, KBC sought and was granted permission by the district court to register its judgment in other judicial districts in the United States under 28 U.S.C. § 1963. On February 22, 2002, KBC registered its Texas district court judgment with the United States District Court for the Southern District of New York, and commenced execution proceedings. On the same day, the Southern District issued ex parte writs of execution permitting KBC to serve restraining notices upon a number of banks in New York, and also served orders on Pertamina to show cause why KBC could not execute upon any property of Pertamina within this jurisdiction in satisfaction of the judgment. KBC promptly issued notices to, inter alia, the Bank of America and the Bank of New York to restrain funds flowing through twenty-four trust accounts maintained in Pertamina's name at those banks in this district.
In March 2002, the Ministry of Finance of the Republic of Indonesia filed a motion to quash the restraining notices and the writs of execution arguing that itand not *287 Pertaminaowned the restrained assets. To the extent that Pertamina owned the funds, KBC could have execution on its judgment, but only to that extent. On April 24, 2002, this Court held that, with respect to fifteen of the twenty-four accounts, Pertamina only owned a portion of the funds in the accounts. The fifteen accounts ("Adjudicated Accounts") contained revenues from the sale of Liquefied Natural Gas, and the Court held that Pertamina only had a property right in those funds to the extent of its Retention Fee. The remainder belonged to the Ministry. The Retention Fee, explained in detail in other opinions of this Court, is Pertamina's share of income from projects it undertakes with private contractors. Additionally, the Court noted that the record was insufficient to determine ownership of the funds in the remaining nine accounts. The Court certified the April 24 order for immediate appeal and stayed it pending the appeal. The stay prevented actual disbursement to KBC. The Second Circuit affirmed on December 10, 2002, but ordered this Court to continue the stay until the parties' rights in all of the funds were determined.
After the Second Circuit's December 2002 ruling, Pertamina and the Ministry sought to limit the amount of the Retention Fees subject to the restraining notices by contending that the effect of the restraining notices as to the Adjudicated Accounts ceased in June 2002, rather than continuing through that year and thereafter, as argued by KBC. This issue was raised in motions made, briefed, and argued in 2003 in this Court. In an opinion on January 29, 2004, this Court held that the effect of the restraining notices did not terminate in June 2002, but continued through 2002 and into 2003, and would continue, until the amount of the judgment plus interest was secured.
On April 6, 2004, KBC filed a "Motion for Turnover of Retention Fees Accrued Through November 2003." This motion was precipitated by a November 21, 2003 letter sent from the Ministry to the Governor of the Bank of Indonesia terminating the payment of Retention Fees to Pertamina. More importantly, Pertamina and the Ministry took the position that the letter was a confirmation of prior legal enactments, which had already terminated the Retention Fees as of January 1, 2003. KBC argued to the contrary. On May 19, 2004, this Court held that Pertamina earned Retention Fees through November 21, 2003. The Court noted that the positions taken by Pertamina and the Ministry during all of the 2003 litigation were contrary to the position it now took in opposition to the Turnover Motion and as a result its assertion on the Turnover Motion could be given no weight. KBC's motion was granted but the Court ordered the actual turnover stayed in accordance with its previous orders.
On October 6, 2004, after two days of argument and testimony, the Court held that the funds restrained in the remaining "unadjudicated" accounts belonged to Pertamina. Then, on October 22, this Court issued its final judgment ordering a turnover of the amount of the award plus interest to KBC, but stayed the award pending appeal. The Second Circuit summarily affirmed the judgment on March 9, 2006. Pertamina then applied to the Supreme Court for certiorari.
KBC had moved to impose sanctions on Pertamina and its attorneys. Oral argument on this motion was held on August 25, 2006. In the course of the hearing, the Court asked whether, if the Supreme Court denied certiorari, the funds restrained in New York would be paid to KBC and there would be "no further issue." (Minutes pp. 14-15). The attorney *288 for KBC replied that there was a further issue that had come up recently in the proceedings brought by KBC in Singapore, where Pertamina raised the claim that KBC had obtained the Arbitral Award by fraud. The KBC attorney said that Pertamina had told the court in Singapore that if that court issued a finding of fraud, Pertamina "was going to start a new action in the United States to try to recover all the funds that had been paid, a new fraud action in the United States." In the sanctions hearing, the Court then questioned counsel for Pertamina:
[W]hat about that? Is there any intention to have further litigation, or can we end it? If the Supreme Court denies cert., will the money simply be paid to KBC or not?
The Pertamina attorney replied that he had no instructions to commence an action. The Court then asked for a more definite statement of Pertamina's position, as follows:
The question is, and I have absolutely a good reason for asking such a question in view of the record here, I want to know, assuming that the Supreme Court denies cert., I want to know if Pertamina will now agree to the payment of the judgment, which would mean the release of the funds which are now held to secure that judgment, immediate release.
(Minutes pp. 16-17). On August 28, 2006 the attorney for Pertamina wrote the Court as follows:
Pursuant to the Court's direction, we are writing to address the question posed by the Court at last Friday's hearing with respect to the payment of the outstanding portion of KBC's judgment by Pertamina. Our understanding of Your Honor's question is whether, in the event that the Supreme Court denies the petitions for certiorari filed by Pertamina and the Ministry of Finance of the Republic of Indonesia, Pertamina will agree to the payment of KBC's judgment. We have been instructed by Pertamina to inform the Court and counsel for KBC that, in the event that the Supreme Court denies the pending petitions, and assuming that the Court issues a turnover order with respect to the restrained funds appropriate in form and amount, Pertamina will not object before this Court to the payment of the judgment.
On October 2, 2006 the Supreme Court denied Pertamina's certiorari petition.
The Cayman Islands Action
A little over two weeks after the August 28 letter, on September 15 Pertamina commenced an action against KBC in the Grand Court of the Cayman Islands for fraud in connection with the joint venture and the arbitration. Pertamina's New York attorney wrote the Court on September 19, 2006 stating that he was "unaware on August 25 that such a proceeding was planned." Presumably the attorney meant August 28, the date of his letter. However, there can be no doubt about the fact that Pertamina was planning the Cayman Islands action as of August 28, and probably for a substantial period of time before that. Also, there can be no doubt about the fact that both Pertamina and its attorneys knew full well that the Court's questions were directed to finding out whether the Supreme Court's denial of certiorari would mean final termination of all litigation, so that KBC could be paid out of the funds restrained in New York. Obviously the Court did not know enough to ask specifically if Pertamina planned to bring a new action in the Cayman Islands. But an honest look at the Court's inquiry and an honest response would have led to the disclosure of the plan to bring such an action.
*289 There was, of course, no such disclosure. The circumstances strongly support an inference that concealment by Pertamina was deliberate and with a purpose. Now that an action has been brought, Pertamina is asserting that this Court cannot interfere with such an action because such interference would tread on the sovereignty of a foreign state. Had the plan for an action been disclosed beforehand, there may well have been legal issues about how to deal with Pertamina's strategy, but the case law about anti-suit injunctions, now relied on by Pertamina, would not have been directly applicable.
Pertamina alleges in the Cayman Island action that KBC overstated the size of geothermal resources in 1997 and relied on those falsehoods in the arbitration proceedings. The statement of plaintiffs claim in the action is contained in the Writ of Summons, dated September 15, 2006, and signed by Pertamina's Cayman Islands attorney. Pertamina claims that the fraud of KBC affected various notices issued by KBC to Pertamina in 1997. Pertamina further contends that KBC was guilty of fraud in presenting the Notice of Arbitration dated April 30, 1998 and in the procuring of the Arbitral Award dated December 18, 2000, and that the fraud was "such as to vitiate the Arbitral Award." (Writ of Summons ¶ 1). Pertamina seeks damages, accounting, and restitution, as well as
An injunction restraining the defendant... from (i) dealing with or disposing of, in any manner whatsoever, any sums received ... as a consequence of the said fraud ... and (ii) taking any steps whatsoever in furtherance of the said wrongs including... commencing or continuing or prosecuting or assisting in the prosecution of any proceedings directed to enforcing, whether by themselves or by assignment, and/or from receiving the benefit by enforcing, the Arbitral Award.
(Writ of Summons ¶ 9). On September 21 Pertamina filed an Amended Summons with the Cayman Islands court, requesting
That the defendant ... be restrained until the conclusion of the trial of this action or further order in the meantime from taking any steps to dispose or direct the disposal of any funds belonging to or in the name of or due to Plaintiff [Pertamina] collected or received by way of enforcement of the Arbitral Award dated 18 December 2000 entered in favor of Defendant [KBC] against the Plaintiff following the initiation of arbitration proceedings by the Defendant through the Notice of Arbitration dated 30 April 1998, ...
(Am. Summons ¶ 2). The Amended Summons also requests that KBC be restrained in the terms of an attached Draft Order. This Draft Order, entitled "Injunction Prohibiting Disposal of Assets Worldwide," would prohibit KBC from disposing of its assets up to $316 million, whether in or outside the Cayman Islands, and specifically includes within the definition of assets, "any sums received or to be received by the Defendant pursuant to any order of the United States District Court for the Southern District of New York ... pursuant to proceedings issued by the Defendant directed to enforcing the Arbitral Award."
Other materials relating to the Cayman Islands action, which have been filed by Pertamina on the current motion before the Southern District, are as follows:
Affidavit of Simson Panjaitan, dated September 21, 2006. "Skeleton Argument," dated September 22, 2006.
Amended Writ of Summons, dated October 6, 2006. *290 Statement of Claim, dated October 6, 2006.
As will be described more fully later in this opinion, an important, and perhaps essential, argument of Pertamina in opposing KBC's current motion is that the action in the Cayman Islands is not to set aside the Arbitral Award, but is "a totally new fraud claim." What has just been quoted from the pleadings in the Cayman Islands action bears, of course, on that issue. In addition, the Court notes the portion of the document entitled "Skeleton Argument," dealing with the remedies sought in the Cayman Island proceedings. According to paragraph 7 of that document, Pertamina is seeking damages and ancillary orders. The damages sought are the amount of the Arbitral Award, Pertamina's costs in the arbitration, and interest on those sums. As to ancillary orders, paragraph 7 states that "a finding of fraud would mean that the award is vitiated by fraud and a nullity," which "would preclude any further enforcement actions by KBC." Pertamina seeks to have the Cayman Islands court "restrain KBC from taking any such steps."
The Amended Writ of Summons, dated October 6, 2006, is the same, in all material respects, as the original Writ of Summons, and contains the same language quoted from the original Writ of Summons earlier in this opinion.
The Statement of Claim, dated October 6, 2006, contains a section entitled "Particulars of Loss and Damage" in paragraph 54. These are consistent with what is in the Skeleton Argument.
The Current Motion
On September 21, 2006 KBC filed its motion in the Southern District requesting an order prohibiting Pertamina from engaging in legal proceedings in the Cayman Islands. In its brief Pertamina expanded the motion to embrace any similar actions in other jurisdictions. Oral argument was held on September 26.
During the argument, counsel for Pertamina represented that by bringing suit in the Cayman Islands, Pertamina was not seeking to interfere with the mechanisms of this Court and stated that Pertamina would not oppose the turnover of funds to KBC in the event that the Supreme Court denied certiorari. However, counsel did not agree that Pertamina would withdraw the claim that the fraud vitiated the Arbitral Award. Moreover, counsel took the position that Pertamina (while agreeing, through New York counsel, to have the funds turned over to KBC) was free to petition the Cayman Islands court to enjoin KBC from distributing or disposing of the funds that it received from the litigation in the federal court in New York.
In view of the uncertainty as to how quickly the Cayman Islands court might move, at least with respect to provisional relief, the federal court at the September 26 oral argument issued an immediate order, which was in effect a temporary restraining order. This was embodied in a formal order of September 27, as follows:
1. Pertamina agrees to, and this court orders, that Pertamina is prohibited from making, or proceeding with any request to the courts in the Cayman Islands (or any other forum) [for] an order or injunction that would interfere with the procedures of this court in enforcing the arbitration award, including turnover of restrained funds in the even that certiorari is denied by the Supreme Court.
2. Pertamina is prohibited from making, or proceeding with any request to the courts in the Cayman Islands (or any other forum) seeking any order or injunction against KBC interfering with KBC's use or disposition of funds that *291 may be turned over to it as a result of the proceedings in this court.
The Court did not make a final decision on KBC's motion, but reserved decision. The present opinion constitutes the Court's decision on that motion.
As noted above, on October 2, 2006 the Supreme Court denied certiorari. Prior to this time a total of $55,243,209.70 had been paid to KBC out of the funds restrained in New York. As noted earlier, KBC recovered $898,682.90 in Hong Kong. After the Supreme Court action, KBC requested that the additional sum of $260 million be turned over to KBC from the funds restrained in New York. A small additional amount was thought to be due when the final calculations were made, but KBC wished to have immediate payment of $260 million. Accordingly, on October 6 the Court signed an Interim Turnover Order directing that $260 million be turned over to KBC immediately. However, this was subject to the direction the Court had issued in a memorandum of September 27 to the effect that KBC could not distribute these funds without further permission of the Court. The purpose of this was to allow the Court to make a final ruling on KBC's motion, and specifically to deal with Pertamina's claim that it could use the Cayman Islands action to prevent KBC from disposing of the funds. KBC had represented to the Court that it would, if allowed to proceed normally, distribute the funds as dividends to the owners of KBC.
On November 15, 2006 a Stipulation and Order was entered, providing for the payment of a final $3,469,268.43 to KBC. This finally satisfies the judgment. A grand total of $319,611,161.03 has been paid. The September 27 memorandum applies to both the $260 million and the $3,469,268.43, but not the $55,243,209.70, which is no longer in KBC's hands.
Discussion
The Nature of the Cayman Islands Action
In arguing the motion now before the Southern District, Pertamina lays considerable emphasis on the idea that Pertamina is not suing in the Cayman Islands to set aside the Arbitral Award, but is making a "new fraud claim" for damages. At the argument of the motion on September 26, 2006, the Court asked if the action in the Cayman Islands was the first time that Pertamina engaged in affirmative litigation to set said the Arbitral Award for fraud, as distinct from using fraud allegations to defend enforcement proceedings by KBC. (Minutes pp. 36-37). Counsel for Pertamina responded as follows:
But I would disagree, your Honor, the action in Cayman is not to set aside the arbitration award. It's a totally new fraud claim, as I understand it.
* * * * * *
No, it is toit is a damage claim, your Honor, it is to get damages for an alleged fraud.
(Minutes p. 38).
It is not entirely clear why Pertamina seeks to make this distinction. The Cayman Islands action is what it is, and labels do not change it. In any event, the theory that the Cayman Islands action is nothing but a "new fraud claim," merely seeking damages is wholly without substance.
To be sure, Pertamina alleges fraud in the Cayman Islands court. However, the entire point of the fraud allegations is to show that the Arbitral Award must be deemed to be vitiatedie., to be a nullity. The "damages" sought are almost entirely the amount of the Arbitral Award plus the interest which has accrued during enforcement proceedings.
*292 Although counsel for Pertamina stated at the September 26 hearing that Pertamina has no intention to use the Cayman Islands action for the purpose of enjoining proceedings in the United States courts, that is exactly what is sought both in the original Writ of Summons and the Amended Writ of Summons.
It is true that there was very little left to enjoin, in connection with the proceedings in the United States courts, when the Cayman Islands action was commenced. But this does not take away from the fact that Pertamina filed suit in the Cayman Islands with the clear objective of stopping whatever could be stopped by way of legal proceedings to enforce the Arbitral Award. Pertamina is still seeking to achieve that objective.
At the time the Cayman Islands action was brought, Pertamina's petition for certiorari was still pending before the United States Supreme Court. Of course, there was no attempt to have the Cayman Islands court interfere with what was going on in the Supreme Court. After the Supreme Court denied certiorari, all that was left was to have judgment entered directing that restrained funds be turned over to KBC to satisfy the Texas federal court judgment. In the August 28, 2006 letter, counsel for Pertamina had stated that "Pertamina will agree to the payment of KBC's judgment," in the event that the Supreme Court denied certiorari.
What was in fact left for Pertamina to restrain by way of the Cayman Islands action? In fact, Pertamina found something of great importance. In the Amended Summons of September 21, 2006 Pertamina requested the Cayman Islands court to issue an order to the effect that KBC would be restrained from disposing of any funds collected through the enforcement of the Arbitral Award.
But the basic nature of the Cayman Islands action was confirmed in the Amended Writ of Summons filed by Pertamina on October 6, 2006. This was after the Supreme Court had denied certiorari. It was after counsel for Pertamina had stated at the September 26 hearing that in the Cayman Islands action Pertamina was not seeking to interfere with the mechanisms of this Court. It was after an affidavit of a Pertamina officer filed with the Cayman Islands court, purporting to make the same point. Nevertheless the October 6 Amended Writ of Summons repeated the allegations and claims of the original Writ of Summons of September 15, contending that the Arbitral Award should be considered "vitiated" and that KBC should be restrained from prosecuting any proceedings to enforce the Arbitral Award. This showed that the purpose of the Cayman Islands action was and still is to halt, in whatever way is available, the judicial proceedings in the United States and the consummation of those proceedings.
It should be noted that, out of the $319 million collected by KBC, as described earlier, approximately $55 million has already been distributed to the owners of KBC. The sum of approximately $263 million, recently turned over to KBC is still in KBC's hands. It is this amount which would be reached if the Cayman Islands court entered an order restraining KBC from disposing of funds.
It is apparent beyond question that the effort to prevent KBC from using the money, as a full owner of such money, is part and parcel of the attempt to nullify the Arbitral Award. If the action in the Cayman Islands were about some completely unrelated matter, and the effort to restrain KBC from disposing of the funds were for the purpose of securing a judgment in such unrelated matter, that would be a completely different situation. But the Cayman Islands actions is all about defeating KBC's Arbitral Award, and is *293 about preventing KBC from realizing the funds of that award.
Beyond this, the Cayman Islands action has the obvious purpose of nullifying the judgment of the federal court in Texas confirming that award and the judgments of the Southern District of New York, allowing KBC to recover from funds restrained in New York. The objective of the Cayman Islands action is to prevent the completion and consummation of the carrying out of those judgments.
Remedies to Vacate Judgment
As was just explained, Pertamina is in effect seeking to overturn not only the Arbitral Award, but the judgments of the federal courts in Texas and New York. To do so, Pertamina has commenced the action in the Cayman Islands. KBC, at least at the present, is not relying upon the presentation of defenses to the Cayman Islands court. KBC is moving in the Southern District of New York to prevent Pertamina from going forward with its Cayman Islands suit. This necessarily requires consideration of the judicial authorities relating to anti-suit injunctions. These authorities will be discussed in the next section of this opinion. However, the Court has thought it instructive to discuss United States law regarding the ability of a judgment creditor to set aside the judgment against him on grounds of fraud.
Fed.R.Civ.P. 60(b)(3) allows a motion to be brought to relieve a party from a final judgment for "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." A party bringing a Rule 60(b)(3) motion must establish by clear and convincing evidence "(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case." Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005). Additionally, Rule 60(b) requires that the motion be brought in the court that rendered the judgment, within one year of the judgment.
Rule 60(b) goes on to provide:
This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C, § 1655, or to set aside a judgment for fraud upon the court.
It should be noted that the reference to 28 U.S.C. § 1655 has no relation to the present case. It concerns the enforcement of liens against absent defendants.
The provision for "an independent action" is designed to preserve the traditional remedy in equity to overturn judgments. 12 Moore's Federal Practice § 60.80. The most common ground asserted in independent actions is fraud. Id. § 60.81. Although it is not entirely clear from the text, the drafters of the rule apparently intended to distinguish between an "ordinary" independent action for fraud, and an action charging "fraud on the court," although the two are (understandably) sometimes confused. Id. § 60.81[l][b][v]. "Fraud upon the court" refers to matters such as the bribery of a judge, jury tampering, or fabrication of evidence by an attorney. Illustrative cases are Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 64 S. Ct. 997, 88 L. Ed. 1250 (1944); Root Refining Co. v. Universal Oil Prods. Co., 169 F.2d 514 (3d Cir.1948); and Piatt v. Threadgill, 80 F. 192 (C.C.W.D.Va.1897). It appears that the general provision about "an independent action" may allow claims of fraud on a broader basis. However, for reasons that will appear, it is not necessary in the present case to be concerned about the possible distinctions in the rule or about the exact boundaries of an independent *294 action seeking to set aside a judgment for fraud.
The important thing, for present purposes, is to recognize that the use of an independent action to set aside a judgment for fraud has definite limitations under the decided cases. The Supreme Court has stated in United States v. Beggerly:
Independent actions must, if Rule 60(b) is to be interpreted as a coherent whole, be reserved for those cases of "injustices which, in certain instances, are deemed sufficiently gross to demand a departure" from rigid adherence to the doctrine of res judicata. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244, 64 S. Ct. 997, 88 L. Ed. 1250 (1944).
524 U.S. 38, 46, 118 S. Ct. 1862, 141 L. Ed. 2d 32 (1998). The Supreme Court went on to state that "an independent action should be available only to prevent a grave miscarriage of justice." 524 U.S. at 47, 118 S. Ct. 1862. The Court reversed the vacating of a judgment, finding in that case that the failure to thoroughly search for certain records and to make full disclosure to the court rendering the judgment did not amount to grave miscarriage of justice. Id. The Court did, however, cite Marshall v. Holmes, 141 U.S. 589, 12 S. Ct. 62, 35 L. Ed. 870 (1891), to illustrate when setting aside a judgment for fraud would be justified. There a judgment had been obtained by means of a forged letter.
The courts also adhere to the equitable rule that there must be a showing of no adequate remedy at law. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 71 (2d Cir.1990). The Second Circuit stated in Campaniello Imports, Ltd. v. Saporiti Italia S.p.A.,
It is fundamental that equity will not grant relief if the complaining party has, or by exercising proper diligence would have had, an adequate remedy at law, or by proceedings in the original action ... to open, vacate, modify, or otherwise obtain relief against, the judgment. 117 F.3d 655, 662-663 (2d Cir.1997). Also, the party seeking relief must comply with the equitable "clean hands" standard. 12 Moore's Federal Practice § 60.82[2].
Although there is no statute of limitations for an independent action, the equity doctrine of laches applies. Simons v. United States, 452 F.2d 1110, 1116 (2d Cir.1971); 12 Moore's Federal Practice § 60.83.
It is obvious that the defenses and limitations just described will generally be applied in the courts where actions are brought to set aside the judgments.
In the present case, of course, KBC is not arguing these points in the Cayman Islands, but is moving to have the Southern District of New York prohibit Pertamina from proceeding further in the Cayman Islands. It is the view of this Court that the law about the use of independent actions to overturn judgments must be considered on the issue of whether KBC's motion should be granted.
Anti-Suit Injunctions
There are well-defined limits on anti-suit injunctions against suits in foreign countries. These limits are based largely on considerations of international comity. But where a judgment has been entered in an American court, that court has authority to enjoin a party before it from suing in a foreign country where such suit is an abusive attempt to undermine that judgment.
Judge Mukasey of this Court has observed that, "after judgment in the domestic litigation, some showing of harassment, bad faith or other equitable circumstance is sufficient to support enjoining the foreign litigation." Farrell Lines Inc. v. Columbus Cello-Poly Corp., 32 F. Supp. 2d 118, 131 (S.D.N.Y.1997), affd sub nom, *295 Farrell Lines Inc. v. Ceres Terminals Inc., 161 F.3d 115 (1998). Similarly, the D.C. Circuit has stated that when "the injunction is requested after a previous judgment on the merits ... a court may freely protect the integrity of its judgments by preventing their evasion through vexatious or oppressive relitigation." Laker Airways Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909, 928 (D.C.Cir.1984).
On the other hand, Pertamina relies on a group of cases where courts have ruled that anti-suit injunctions should not be granted. See e.g., China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 36 (2d Cir.1987); LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 199 (2d Cir. 2004). In those cases there were parallel proceedings occurring simultaneously in the United States and in a foreign forum. The principal case is China Trade. There, the Court was faced with a litigant who brought suit in Korea while the same issue was being litigated in the Southern District of New York. Emphasizing that parallel proceedings in two forums are "ordinarily tolerable" and should be allowed to proceed simultaneously, 837 F.2d at 36, the Court reversed the District Court's granting of the injunction. However, the holdings in China Trade and the other parallel proceedings cases, and what is referred to as "the China Trade test," are not applicable in the present case.
The case at hand is not a parallel proceedings case. Here judgments were entered in the American courts (Texas 2001 and New York 2004) well before the Cayman Islands action was commenced (September 2006). This is a case where the issue is whether there is a misuse of the foreign court to evade the American judgments. It is of interest that both Judge Mukasey and the D.C. Circuit gave consideration to international comity in accordance with the China Trade line of cases, but they acknowledged that a "more lenient standard" would apply once a judgment has been entered, and proceeded to speak decisively of the need to protect against abusive foreign litigation mounted following entry of the American judgments. Farrell, 32 F.Supp.2d at 131; see also Laker Airways, 731 F.2d at 928; Silva Run Worldwide Ltd. v. Gaming Lottery Corp., No. 96-Cv-3231, 2002 WL 975623, at *6-7, 2002 U.S. Dist. LEXIS 8307, at *20-21 (S.D.N.Y. May 8, 2002), affd 53 Fed.Appx. 597 (2d Cir.2002).
Aside from the need to protect against abusive foreign litigation, other considerations are relevant to the appropriateness of granting an anti-suit injunction. One concern is the need for the Court to protect its jurisdiction. Both Laker Airways and China Trade recognized the propriety of enjoining a suit in a foreign court where such an injunction is necessary to protect the American court's jurisdiction. Laker Airways, 731 F.2d at 927-31; China Trade, 837 F.2d at 36-37 (citing Laker Airways, 731 F.2d 909).
Another relevant consideration to this Court's ability to act in the face of comity considerations is the extent to which a litigant attempts to avoid the forum's important public policies. The D.C. Circuit commented that "deference to the foreign proceeding may be denied because of the litigant's unconscionable evasion of the domestic laws." Laker Airways, 731 F.2d at 931 n. 71. Indeed, the Second Circuit has held that "orders of foreign courts are not entitled to comity if the litigants who procured them have deliberately courted legal impediments to the enforcement of a federal court's orders." Motorola Credit Corp. v. Uzan, 388 F.3d 39, 60 (2d Cir. 2004). In the present case, Pertamina is seeking to avoid the application of wellsettled American law and policies about the limited methods which can be used to *296 interfere with the normal finality of judgments.
It should be noted that KBC has once before sought an anti-suit injunction in this case. In March 2002, several months after the federal district court in Texas issued its final judgment in favor of KBC Pertamina filed suit in Indonesia seeking to annul the Arbitral Award, and sought an injunction to prevent KBC from seeking to enforce the award. Before the application on the injunction was scheduled to be heard in Indonesia, KBC applied to the court in Texas for a temporary restraining order to prevent Pertamina from seeking its injunction in Indonesia. The district court granted KBC's application. Pertamina did not withdraw its request and the Indonesian court issued a provisional injunction. KBC then moved for a preliminary injunction against Pertamina's further pursuing the Indonesian action. The district court granted the injunction. The Fifth Circuit reversed. Karaha Bodas Co., L.L.C, v. Perusahaan Pertambangan Minyak Dan Gas Bunii Negara, 335 F.3d 357 (5th Cir.2003).
The Fifth Circuit's opinion rested chiefly on the idea that the New York Convention, the operative treaty under which KBC sought to enforce its award, allows simultaneous enforcement and annulment proceedings in other countries. As a result, the United States courts "have discretion under the Convention to enforce an award despite annulment in another country." Id. at 369. Thus, the "Indonesian court's annulment fails to jeopardize the enforcement of the award elsewhere." Id. The court reasoned that since there was no real threat to enforcement in the United States, comity counseled against issuing the injunction.
Clearly, the anti-suit injunction sought now by KBC presents itself in a much different procedural and temporal context. The policies underlying the New York Convention no longer apply. Pertamina is not seeking to annul the award under the New York Convention's procedures and has no need of protection of any right under such Convention. Pertamina is indeed seeking to "jeopardize the enforcement of the award" in the United States by means of the injunction it is seeking in the Cayman Islands. Finally, the litigation has proceeded to an entirely different juncture than where it stood in 2003. The significance of this will be dealt with later in this opinion. In short, the Fifth Circuit's decision is not instructive on what should be done now.
An Injunction Should Be Issued
As already described, the motion before this Court is to enjoin Pertamina from pursuing the litigation in the Cayman Islands and similar litigation elsewhere. It is not for this Court to deal with the merits of Pertamina's suit in the Cayman Islands, or to determine whether Pertamina's allegations of fraud do or do not have merit. However, this Court does have the responsibility of making certain findings with respect to the nature of the Cayman Islands action in relation to federal court judgments in the United States.
The previous section of this opinion, dealing with Fed.R.Civ.P. 60(b), illustrates the fact that under American law, a final judgment in a litigation is given a very high degree of protection, and can be overturned in a new and independent lawsuit only under exceptional circumstances, even when fraud is alleged. One of these circumstances is where "fraud upon the court" is proven. However, no such thing is alleged in the Cayman Islands. No claim is made there of forged evidence or bribery or anything else of that nature. What is claimed in the Cayman Islands is that, during the dealings between KBC and Pertamina, KBC made misrepresentations regarding the quantity of geothermal *297 reserves or resources. As already described, the issue of the accuracy of KBC's representations on this subject was before the arbitrators. What has now occurred is that Pertamina claims it has new evidence showing that KBC defrauded Pertamina on the subject of the quantity of geothermal reserves or resources, something which Pertamina apparently did not literally allege in the arbitration. There is surely a serious question about whether the situation involves the kind of gross injustice or grave miscarriage of justice, demanding a departure from adherence to the doctrine of res judicata, within the meaning of the Supreme Court's holding in United States v. Beggerly, 524 U.S. 38, 46-47, 118 S. Ct. 1862, 141 L. Ed. 2d 32 (1998).
But beyond this, it is necessary to reckon with the tactics employed by Pertamina. The alleged new evidence of fraud comes from documents voluntarily turned over by KBC to Pertamina in Indonesia. KBC asserts that the documents became available to Pertamina in March 2001. Pertamina states that it was not until November 2002 when this happened.
It will be recalled that summary judgment confirming the Arbitral Award was issued by the federal court in Texas on December 4, 2001. If Pertamina had the documents in March 2001, as KBC claims, it had ample time to file a motion under Rule 60(b)(3) in the Texas district court within the one year time limit. And even if Pertamina did not have the documents until November 2002, the one year time limit had still not expired at that time. Furthermore, even after the expiration of that one year, a prompt filing of an "independent action" could have brought Pertamina's fraud allegations before the Texas district court.
Of course, Pertamina asserts that it did not look at the documents until August 2005, and therefore did not appreciate their significance until that time. Even if this is true, there is surely a serious problem about Pertamina's diligence. During the arbitration, Pertamina had raised suspicions about the amount of reserves which KBC had represented, and this was enough of an issue to cause the arbitrators to cut substantially the amount of the award for lost profits'from what KBC had requested. The award was still very large ($150 million) and Pertamina has fought strenuously to prevent KBC from recovering even the reduced award. In view of this campaign against KBC, it is difficult to justify Pertamina's delay of three years or more in looking at documents left in its possession by KBC.
But even if it is assumed that Pertamina was justified in waiting until August 2005 to discover the evidence now relied upon, what Pertamina did after that raises grave questions. Pertamina knew by then that recovery on the Arbitral Award would occur almost entirely by means of enforcement proceedings in the United States. Sufficient funds had been restrained in New York City, under process of the Southern District of New York, to provide over $300 million to pay the amount of the Arbitral Award plus interest. Although it was too late by August 2005 to file a motion under Rule 60(b)(3) to set aside the judgment of the district court in Texas, it was open to Pertamina to attempt an "independent action" under Rule 60(b). This would have been a direct and straightforward method to determine whether there was a right to overturn, on grounds of fraud, the Arbitral Award and the judgment based thereon.
However, Pertamina did no such thing. What it did was to raise its alleged fraud claim in Hong Kong and Singapore by way of defense against enforcement actions brought by KBC in those locations. But Hong Kong and Singapore had virtually no significance in the KBC-Pertamina contest. *298 As it turned out only 3/10 of 1% of the judgment debt was collected in Hong Kong, and nothing in Singapore. Almost the entire judgment debt (99 7/10%) was paid from funds restrained in the federal court in New York, in proceedings based on the judgment of the federal court in Texas. Yet Pertamina made no move to submit the fraud claim to any court in the United States.
As is now known, Pertamina developed a different strategy to prevent collection of the 99 7/10% in the United States. After 2 1/2 years of hard-fought litigation in the Southern District, a judgment was entered in that court on October 22, 2004, which would allow collection of the amount due of over $300 million. The Second Circuit affirmed the judgment on March 9, 2006. Pertamina then applied to the Supreme Court for certiorari. A decision on this certiorari petition was expected in early October 2006. The likelihood of the Supreme Court granting the petition was admittedly small.
At this point it appeared that the litigation between KBC and Pertamina was at long last about to be concluded. There was no indication of any remaining issues to be resolved, except in the unlikely event that the Supreme Court would review proceedings which had taken place in the Southern District of New York and the Second Circuit. However, in an attempt to head off possible further problems, the Court, in August 2006, asked counsel for Pertamina whether there would be any further issue which might come up following the likely denial of certiorari by the Supreme Court. On August 28, 2006 the attorney for Pertamina wrote the Court basically assuring the Court that a denial of certiorari by the Supreme Court would be the end, and specifically stating that Pertamina did not object to payment of the judgment.
Counsel for Pertamina has stated to this Court that he did not know, when he wrote that letter, that Pertamina planned to file the action in the Cayman Islands. But, of course, Pertamina knew. It deliberately concealed its plan from this Court and deliberately failed to have its attorney disclose that plan in the August 28 letter. No other conclusion is possible.
A little over two weeks later, on September 15, 2006, Pertamina commenced the action in the Cayman Islands. Shortly thereafter, as expected, the Supreme Court denied Pertamina's certiorari petition.
It is significant that, on December 31, 2003, Alfred Rohimone, Pertamina's Finance Director, told the prominent Indonesian newspaper Komas that the arbitration decision could no longer be disputed, but that "what Pertamina is doing now is actually only buying time." Pertamina's tactics in the Cayman Islands action are completely consistent with "buying time." Even under Pertamina's own version, it knew of the so-called new evidence of fraud by late 2005. But it made no use of that evidence in a timely action in the United States where such an action would naturally have been brought if Pertamina had sought to litigate in a fair and direct fashion. Indeed, no timely action was brought even in the Cayman Islands. Instead, Pertamina held back, waiting until the very last moment before the litigation was to be terminated. It concealed its strategy from this Court in response to a direct inquiry, and then filed an action in a foreign court.
By suing in the Cayman Islands, Pertamina is not merely seeking a judgment in a foreign court with consequences in the foreign venue. The main objective of Pertamina is to have the Cayman Islands court reach out to the United States and frustrate the consummation of the long *299 and difficult litigation in the United States. It is true that KBC is a Cayman Islands limited liability company. But the court actions which have resulted in the recovery of $319 million by KBC, have occurred in the United States. Pertamina is seeking to have the Cayman Islands court enter orders preventing the completion and consummation of this United States litigation.
Pertamina takes the position that it is not seeking, through the Cayman Islands action, to interfere in any way with the jurisdiction or the processes of the American courts. According to Pertamina, since those processes have now been completed with final judgments and full payment to KBC of the judgment debt, no interference with or harm to the American proceedings can occur by merely having the Cayman Islands court prohibit KBC from disposing of the $263 million still in KBC's hands. This is the argument made by counsel for Pertamina at the September 26, 2006 hearing (Minutes pp. 20et seq.). Counsel went on to urge that what is being pursued in the Cayman Islands is a "new claim based on new matter," and that Pertamina is merely asking the court to do something which is "an every day event" in courts that is, to secure possible future judgments by an injunction or an attachment or a garnishment (Minutes pp. 24-25).
The problems with these theories are numerous. In the first place, the Cayman Islands action is not a new action in the sense of raising new issues unrelated to the United States proceedings. As pointed out earlier in this opinion, the entire premise of the Cayman Islands action is that the Arbitral Award should be nullified, and that all proceedings to enforce that award should be stopped. Of course, by the time the Cayman Islands action was brought, the proceedings in the United States to enforce the Arbitral Award had been virtually completed. But Pertamina's pleadings in that action requested that all enforcement proceedings be halted by the Cayman Islands court. What that means, from a practical standpoint, is that the Cayman Islands court should take steps to stop whatever it is possible to stop in the way of enforcement proceedings. Moreover, there can be no doubt that the overall purpose of the Cayman Islands action is to cancel out what KBC has achieved in the United States courts by way of enforcement of the Arbitral Award. This is surely made clear by the fact that the "damages" sought in the Cayman Islands would, under the clear definition in the pleadings there, amount to the very same $319 million, which has been awarded to KBC in the United States.
It is now necessary to deal with the argument of Pertamina that this Court should not be concerned about any effect on the American judicial process because the judgments have been entered, KBC has been paid, and that is the end of the matter as far as the jurisdiction and interest of the federal courts in the United States are concerned. This Court disagrees. To explain this disagreement, certain obvious propositions must be stated. A federal court in Texas has determined that KBC is entitled to be paid the amount of the Arbitral Award plus interest. This means that, as far as the litigation between KBC and Pertamina regarding the Arbitral Award is concerned, KBC is entitled to receive the money, to own the money, and to dispose of that money as it sees fit. The litigation in the Southern District of New York determined that certain funds of Pertamina, located in New York banks, can be used to pay the judgment debt to KBC. Again, the premise of the proceedings in New York has been that, as far as the issues between KBC and Pertamina about the Arbitral Award are concerned, KBC is entitled to have the funds turned over to it, is entitled to own those funds, and is entitled to dispose of those funds as *300 it sees fit. The judgments referred to above are not conditional, or qualified, or limited in any way as to KBC's rights with respect to the monies awarded.
On the other hand, it is obvious that when a judgment creditor receives money awarded by a judgment, there may be many reasons why that money might be attached or might be subject to some lien or some question of title. A judgment creditor might be subject to other lawsuits or other claims of various kinds, independent of the lawsuit in which the judgment was entered.
But, if the judgment debtor is seeking to tie up the proceeds of the judgment in an action to vacate or overturn the judgment, as this Court has found that Pertamina is attempting to do, then there are definite rules about when, and under what conditions, this can be done. And courts are surely not hospitable to subterfuge designed to avoid applicable rules. For instance, if a judgment debtor files something called an action for damages against the judgment creditor, and seeks damages in the precise amount of the judgment, our courts would undoubtedly not allow this strategy as a means for evading the rules relating to proper grounds for setting aside judgments. The Cayman Islands action brought by Pertamina is exactly the kind of action just spoken of.
This Court does not accept the proposition that, under these circumstances, it has no legitimate interest in the matter and no power to protect KBC from abusive litigation, even in a foreign court. This Court believes that Pertamina's attempt to use the injunctive powers of the Cayman Islands court would, if successful, truly interfere with the jurisdiction of the federal courts in the United States. Such jurisdiction surely embraces the sanctity and finality of judgments and the rights obtained under those judgments. For reasons already indicated, it is no answer to this to say that the only thing sought is a remedy against KBC's disposition of the funds, rather than a remedy against some ongoing court process. If KBC cannot have full ownership rights to the money, including the right to pay it to the owners of KBC, then all of the process leading up to the award of the money to KBC has been in vain.
This Court has the power, and indeed the duty, to deal with abusive litigation tactics used by a party before it. In the present case the salient fact is that, after almost six years of litigation in district and appellate courts based on the Arbitral Award, the American courts had finally resolved all the issues presented to them about whether the Arbitral Award should be confirmed and about the method by which KBC should recover the large amount due. Although procedures were available under federal law for Pertamina to make its claim of fraud and to seek to prevent KBC from recovering the $319 million, there was no attempt whatever by Pertamina to make use of such procedures. Instead, Pertamina engaged in the six years of litigation in the United States without any mention of its claim of fraud. Finally, at the very moment when the litigation was to be legitimately ended, Pertamina brought the action in the Cayman Islands after engaging in literal subterfuge in dealing with the Court in New York. The purpose of this lawsuit is to effectively wipe out the effect of the United States judgments and to do this with as great an amount of delay as possible.
Conclusion
Under all the circumstances, the Court grants KBC's motion in the following manner. At the very least, KBC is entitled to an injunction prohibiting Pertamina from applying to the Cayman Islands court or any other court for any order restricting KBC in the use or disposition of funds *301 [M?T] awarded to it pursuant to the judgments. Beyond this, the Court believes that the record justifies an injunction entirely prohibiting Pertamina from pursuing the Cayman Islands action or any similar action in any court, because KBC is entitled to be protected against litigation designed to delay the completion of this lengthy court contest.
In its notice of motion, KBC requests that the Court grant "such other and further relief as the Court deems just and proper." The Court deems it just and proper to accompany the injunction with a declaratory judgment. The nature of the declaratory judgment follows inevitably from what has been decided in this opinion. Therefore the Court will issue a declaratory judgment declaring that the funds recovered by KBC pursuant to the judgments in this matter are the property of KBC, that KBC has full right to dispose of such funds as KBC sees fit, and that, in the event that Pertamina should for some reason obtain an order of the Cayman Islands court or any other court, based upon matters relating to the Arbitral Award, purporting to interfere with KBC's rights to dispose of the funds, KBC has no obligation to comply with such order.
The parties will settle an Order and Judgment based on this opinion. When that Order and Judgment is signed by the Court, the Order of September 27, 2006, will be deemed vacated, as will the Memorandum of September 27, 2006 restricting KBC's ability to distribute funds. However, in connection with the settlement of the Order and Judgment based on this opinion, the Court will entertain an application for a stay pending appeal if any party wishes to make such an application.
SO ORDERED | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2983825/ | June 5, 2014
JUDGMENT
The Fourteenth Court of Appeals
CHARLES P. CURRY & JENNIFER CURRY, Appellants
NO. 14-12-00898-CV V.
HARRIS COUNTY APPRAISAL DISTRICT, Appellee
________________________________
This cause, an appeal from the judgment in favor of appellee, Harris County
Appraisal District, signed, July 11, 2012, was heard on the transcript of the record.
We have inspected the record and find error in the judgment. We therefore order
the judgment of the court below REVERSED and REMAND the cause for
proceedings in accordance with the court’s opinion. We further order that all costs
incurred by reason of this appeal be paid by appellee, Harris County Appraisal
District. We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3099414/ | IN THE
TENTH COURT OF APPEALS
No. 10-10-00181-CV
JAMES E. ALM,
Appellant
v.
JOYCE MOORE,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 24176
MEMORANDUM OPINION
Appellant James E. Alm filed a notice of appeal on May 10, 2010.
Appellant now seeks a dismissal of his appeal because he no longer wishes to
pursue the appeal.
Accordingly, this appeal is dismissed. TEX. R. APP. P. 42.1(a)(1).
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal dismissed
Opinion delivered and filed May 26, 2010
[CV06] | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2449568/ | 18 F. Supp. 2d 669 (1998)
SAN ANTONIO GARMENT FINISHERS, INC., and Nora Sierra, Plaintiffs,
v.
LEVI STRAUSS & CO., Defendant.
Civil No. SA-97-CA-1452 HG.
United States District Court, W.D. Texas, San Antonio Division.
August 17, 1998.
*670 Pat Maloney, Sr., Pat Maloney, Jr., James Edwin Willingham, Jr., Law Offices of Pat Maloney, PC, San Antonio, TX, for plaintiffs.
Judith R. Blakeway, Michael Hernandez, Wells Pinckney & McHugh, San Antonio, TX, Ted D. Lee, Gunn, Lee & Keeling, San Antonio, TX, Howard P. Newton, Matthews & Branscomb, P.C., San Antonio, TX, Peter H. Goldsmith, Leigh A. Kirmsse, Legal Strategies Group, Emeryville, CA, for defendant.
ORDER
H.F. GARCIA, District Judge.
On this day, the Court considered Defendant's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and the Plaintiffs' Response to said Motion. Upon consideration, the Court *671 is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.[1]
Statement of Facts
A brief summary of the facts is as follows: San Antonio Garment Finishers, Inc. ("SAGF") entered into an agreement with Levi Strauss & Co. ("Levi Strauss") in 1992, whereby SAGF agreed to perform work for Levi Strauss involving the pressing, washing and labeling of pants and jeans before they were shipped to consumers. The duties of the parties were outlined in a Finishing Process Agreement. Among the provisions of the agreement were clauses providing that the agreement may be terminated by either party upon thirty days written notice, that the contractor/seller was responsible for facilities, materials, machinery, equipment and labor necessary for the processing of garments, and that all amendments to the agreement must be in a writing signed and dated by both parties. The agreement also provided for the price, finish type, garment type, projected units, and delivery schedule for the clothing being sent to SAGF for finishing.
Each year a new Finishing Process Agreement was adopted by the parties. However, in April of 1997, Levi Strauss notified SAGF that it would no longer require SAGF's services because its production capabilities had surpassed demand for its clothing, and the agreement was finally terminated in October of 1997. SAGF filed the instant lawsuit that same month to recover damages from losing its work with the company, complaining that the company had made substantial investments in equipment to conduct work for Levi Strauss on the belief that Levi Strauss had promised to continue doing business with them for many years to come.
Jurisdiction
This Court has jurisdiction to decide this matter under 28 U.S.C. § 1332, as the action is a civil action between citizens of different states and the amount in controversy exceeds $75,000.00.
Discussion
A. Summary Judgment Standard
Rule 56 provides that summary judgment is proper whenever "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making its determination, the Court must draw all justifiable inferences in favor of the nonmoving party. Id. at 255, 106 S. Ct. at 2513. Furthermore, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), the Supreme Court held that a motion for summary judgment must be granted if, after adequate time for discovery, the non-movant "fails to make a showing sufficient to establish the existence of an essential element 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.
B. Breach of Implied Covenant of Good Faith and Fair Dealing[2]
Under California law, the covenant of good faith and fair dealing implied in every contract has been held in certain special cases to supply a requirement of good cause for termination where the contract itself is *672 silent or ambiguous on that subject. Gerdlund, et al. v. Electronic Dispensers Int'l, 190 Cal. App. 3d 263, 277, 235 Cal. Rptr. 279 (1987) (citations omitted). No obligation can be implied, however, which would result in the obliteration of a right expressly given under a written contract. "There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results." Id. at 277, 235 Cal. Rptr. 279, citing Shapiro v. Wells Fargo Realty Advisors 152 Cal. App. 3d 467, 482[, 199 Cal. Rptr. 613] (1984).
In Gerdlund, the plaintiffs filed suit against Electronic Dispensers International ("EDI") claiming that EDI had breached a written agreement by terminating them as sales representatives without good cause. The court, in reversing the decision of the lower court, held that it was error to instruct the jury to apply a good faith covenant at odds with the termination provision in the contract. Gerdlund, 190 Cal.App.3d at 278, 235 Cal. Rptr. 279. As the court stated, "[What] that duty [of good faith] embraces is dependent upon the nature of the bargain struck between [the parties] and the legitimate expectations of the parties which arise from the contract.... Few principles of our law are better settled, than that `[the] language of a contract is to govern its interpretation, if the language is clear and explicit. ...'" Id. at 277, 235 Cal. Rptr. 279, quoting Brandt v. Lockheed Missiles & Space Co. (1984) 154 Cal. App. 3d 1124, 1129-30 [201 Cal. Rptr. 746].
The same rule applies here. SAGF and Levi Strauss entered into a Finishing Process Agreement which stated in Paragraph 5 that "Contractor/Seller shall process the Garments hereunder for the time period specified on page 1 and/or amendments. This Agreement may, however, be terminated earlier by either party upon thirty (30) days written notice." Regardless of any oral representations made by Levi Strauss that SAGF would "... have jackets as long as Levi's has jackets ..." or "... what happened before won't happen again ...," both parties had to operate under the idea that either party could terminate the agreement upon thirty days written notice as provided in the agreement. In fact, Nora Sierra, president of SAGF, stated on page 166 of her deposition that she understood that either side could end the relationship. It was, therefore, incumbent on the parties to make business decisions based on the express provisions of that agreement, and neither party had obligations other than those expressed.
In short, the implied covenant of good faith and fair dealing does not provide rights not otherwise conferred by the contractual agreement of the parties. Accordingly, Plaintiffs' claim must fail.
C. Breach of Fiduciary Duty
Texas law provides that a fiduciary duty will not be lightly created, as it imposes extraordinary duties. Gillum v. Republic Health Corp., 778 S.W.2d 558, 567 (Tex.App.Dallas 1989, no writ). A confidential relationship exists only where "one party is in fact accustomed to being guided by the judgment or advice of the other, or is justified in placing confidence in the belief that such party will act in its interest." Thames v. Johnson, 614 S.W.2d 612, 614 (Tex.Civ. App.Texarkana 1981, no writ). The party owing the duty in a fiduciary relationship must put the interests of the beneficiary ahead of its own if the need arises. Lee v. Wal-Mart Stores, Inc., 943 F.2d 554, 558-59 (5th Cir.1991) (citing Texas Supreme Court cases finding fiduciary relationships). However, the relationship between SAGF and Levi Strauss did not give rise to any such duty.
In Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591 (Tex. 1992), the Supreme Court of Texas held that, as a matter of law, the parties to a written franchise agreement in that case did not have a fiduciary relationship because there was no evidence of a "confidential relationship" between them. Id. at 594. The court, in considering the forty-plus year relationship between the parties, also held that "... a party to a contract is free to pursue its own interests ..." and the fact that "... a relationship has been a cordial one, of long duration ..." is not evidence of a confidential relationship. Id. at 594-95. Furthermore, the court observed that, although the existence of a confidential relationship is "ordinarily a question *673 of fact, when the issue is one of no evidence, it becomes a question of law." Ibid.
Similar reasoning was applied in Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181 (5th Cir.1995), where the 5th Circuit held that the mere conversational use of the term "partnership" in Fieldcrest's correspondence and dealings with Floors Unlimited did not warrant the imposition of a fiduciary relationship between the parties. Id. at 188. According to the Court, there was no evidence that the relationship between Fieldcrest and Floors Unlimited was one "in which influence was `acquired and abused' or one in which there was a `heightened degree of trust and confidence that surpasses what is customarily shared between business associates'." Ibid.
There is no question that SAGF went to great lengths to meet the requirements Levi Strauss places on its suppliers. SAGF acquired new equipment and upgraded many of its facilities. However, both parties were free to pursue their own goals and had managers experienced in the garment industry.[3] Nor was there any agreement to share profits and losses.[4] In addition, although the parties had worked together amicably for five years, that alone will not establish a fiduciary duty. In ARA Automotive Group v. Central Garage, Inc., 124 F.3d 720, 724 (5th Cir.1997), the Court found no fiduciary duty between a manufacturer and distributor as a matter of law despite a 36-year history of oral and written agreements, joint undertakings, shared confidences, cooperative ventures, and close personal relationships between the executives of the businesses. As the Court stated:
The parallels between the present case and the previous cases are obvious, yet Central Garage's briefs make no attempt to distinguish them. Instead, it cites cases enumerating the various factors present in this case as indicative of a fiduciary relationship. Since Crim Truck, however, few Texas cases have found fiduciary relationships that carry fiduciary duties as a matter of law. No Texas case cited by Central Garage or uncovered in our research has affirmed a fiduciary obligation in the context of a franchisor-franchisee, manufacturer-distributor relationship, or other transactional setting involving experienced managers. [emphasis added] Federal courts that have applied Texas law to such relationships have not found a fiduciary obligation.
Id. at 726., (citations omitted).
Likewise, this Court finds no fiduciary relationship between SAGF and Levi Strauss. As the court made clear in Crim Truck, particularly in the business arena, trust and reliance alone are not sufficient ingredients for the relationship, for "[t]he fact that one businessman trust another, and relies upon his promise to perform a contract, does not rise to a confidential relationship."[5]Crim Truck, 823 S.W.2d at 594. Therefore, summary judgment in favor of Levi Strauss must be granted on this claim.
D. Fraud
A promise to do an act in the future is actionable fraud only when made with the intention, design and purpose of deceiving, and with no intention of performing the act. Airborne Freight Corp. v. C.R. Lee Enterprises, Inc., 847 S.W.2d 289, 294 (Tex.App. El Paso 1992, writ denied). Plaintiff must show that the promise was false at the time it was made. Schindler v. Austwell Farmers Cooperative, 841 S.W.2d 853 (Tex.1992). Although a party's intent is determined at the time the party made the *674 representation, it may be inferred from the party's subsequent acts after the representation is made. Failure to perform, standing alone, is no evidence of the promisor's intent not to perform when the promise was made. However, that fact is a circumstance to be considered with other facts to establish intent. Ibid.
As in Airborne, however, the written contract vitiates any reliance the contractor may have placed in "sweeping, off-hand statements" made by the other party as a matter of law. Id. at 297. The 30-day termination provision, the provision providing that the contractor/seller was responsible for the facilities, materials, machinery and labor, and the provision for written amendments to the agreement clearly give notice that any oral promises to the contrary would not control. Statements that SAGF would be "in for the long term" or others do not indicate that Levi Strauss did not believe that to be the case, and SAGF should have obtained those promises in writing if they believed the statements to change the obligations of the parties under the Finishing Process Agreement. Therefore, the fraud claim asserted by the Plaintiffs also fails.
E. Constructive Fraud
In order for a plaintiff to prevail on a constructive fraud theory, a plaintiff must first prove that a fiduciary relationship existed between the parties. American Medical Int'l, Inc. v. Giurintano, 821 S.W.2d 331, 339 (Tex.App. Houston [14th Dist.] 1991, no writ); Marshall v. Quinn-L Equities, Inc., 704 F. Supp. 1384, 1396 (N.D.Tex.1988). Because the Court has found no fiduciary relationship between the parties, this claim is also dismissed.
Conclusion
The claims asserted by the Plaintiffs herein cannot survive summary judgment. Knowing the terms of the Finishing Process Agreement, there is no basis for a finding that Levi Strauss did not act in accordance with that agreement. While the Plaintiffs may have believed they had good reason to depend on a company such as Levi Strauss, if they wanted a long-term commitment they should have sought to amend the terms of the Finishing Process Agreement or to enter into a separate contract. In summary, SAGF thought it was in a relationship for the long run, but in fact, only agreed to a 30 day fling that lasted five years. The Court hereby ORDERS that Defendant's Motion for Summary Judgment be GRANTED.
NOTES
[1] Only Plaintiffs' claims for breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, fraud, and constructive fraud are before the Court. Plaintiffs' claims for breach of contract, promissory estoppel, and negligent misrepresentation were dropped in Plaintiffs' second amended complaint.
[2] The job of this Court, sitting in diversity, is to apply the same law as would be applied by the Texas state courts. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938). In those cases where a state's highest court has spoken on an issue, the Court is bound by that decision unless it is convinced that the high court would overrule it if confronted with facts similar to those before the Court. Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 205, 76 S. Ct. 273, 277, 100 L. Ed. 199 (1956). However, with respect to SAGF's claims for breach of implied covenant of good faith and fair dealing, the Court must apply California law in accordance with paragraph 33 of the Finishing Process Agreement, which provides that the agreement shall be governed and construed in accordance with the laws of the United States of America and the State of California.
[3] The reputation of Levi Strauss as a successful clothing manufacturer is well-established. Nora Sierra, who founded SAGF in 1992, has worked in the garment industry since 1987, and worked with Levi Strauss while she was employed with Industrial Stonewash.
[4] In Consolidated Gas & Equip. Co. v. Thompson, 405 S.W.2d 333, 336 (Tex.1966) the Texas Supreme Court found that "usual cases of fiduciary relationship have been attorney-and-client, partners, close family relationships such as that of parent-and-child, and joint adventurers, particularly when there is an agreement among the joint venturers to share financial gains and losses."
[5] See also Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex.1997) (holding that subjective trust between the parties to a contract does not, as a matter of law, transform a business relationship into a fiduciary relationship.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610108/ | 5 Wash. App. 1 (1971)
485 P.2d 93
THE STATE OF WASHINGTON, Respondent,
v.
JAMES LEE TEMPLE, Appellant.
No. 545-1.
The Court of Appeals of Washington, Division One Panel 2.
May 17, 1971.
Francis & Ackerman and Jack J. Ackerman, for appellant (appointed counsel for appeal).
Christopher T. Bayley, Prosecuting Attorney, Patricia G. Harber and James E. Warme, Deputies, for respondent.
JAMES, J.
James Lee Temple was convicted by a jury of first-degree murder. Under the instructions, the jury could have found that the homicide was either premeditated or that the victim was shot while Temple was "in the commission *3 of, or in an attempt to commit, or in withdrawing from the scene of an attempted robbery."
Temple first assigns error to the limitation placed on his cross-examination of an eyewitness to the homicide. The witness was a 16-year-old boy. Some years prior to the time of the homicide he had been adjudged delinquent and had spent approximately 1 year in a juvenile institution primarily because he had no other home. He was, at the time, living with his aunt in the apartment building where the homicide occurred. Out of the presence of the jury and prior to any interrogation of the witness, the state requested and was granted a ruling that the witness' "juvenile involvements" be excluded from the area of cross-examination.
[1] A prior conviction of a crime may be shown to affect the credibility of a witness.[1] A juvenile commitment, however, is not equivalent to a conviction of a crime.[2]State v. Wilson, 1 Wash. App. 1001, 465 P.2d 413 (1970).
The legislative determination that an adjudication of delinquency or dependency is not to be deemed equivalent to a criminal conviction does not necessarily mean, however, that evidence of juvenile court involvement is never admissible. If the witness is himself the criminal defendant who has taken the stand, his adult conviction, though not relevant to the charge at issue, may nevertheless be shown for the limited purpose of attacking his credibility. His juvenile record may not. If, however, the witness is not a criminal defendant, different considerations prevail. No constitutional *4 or statutory immunity of the witness is at stake. What is at stake is the defendant's constitutional right to confront the witnesses against him.
In Pointer v. Texas, 380 U.S. 400, 403, this Court held that the Sixth Amendment right of an accused to confront the witnesses against him is a "fundamental right ... made obligatory on the States by the Fourteenth Amendment." ...
...
As the Court said in Pointer, "It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him." 380 U.S., at 404. Even more recently we have repeated that "a denial of cross-examination without waiver ... would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Brookhart v. Janis, 384 U.S. 1, 3.
Smith v. Illinois, 390 U.S. 129, 19 L. Ed. 2d 956, 88 S. Ct. 748 (1968).
Unless an accused is afforded reasonable latitude in examining witnesses against him, he is effectively denied his right of confrontation.
It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.
Alford v. United States, 282 U.S. 687, 692, 75 L. Ed. 624, 51 S. Ct. 218 (1930).
Temple argues that reasonable latitude in cross-examination should have permitted him to explore the extent of the witness' juvenile court involvement to demonstrate that he was "a person who was accustomed to having someone in authority dictate to him what he could or could not do."
[2] It is a basic and essential rule that "[t]he extent of the cross-examination of a witness upon collateral matters which tend to affect the weight to be given the witness' *5 testimony, rests within the sound discretion of the trial court." State v. Goddard, 56 Wash. 2d 33, 37, 351 P.2d 159 (1960).
The record suggests that the trial judge may initially have felt that the juvenile court law, RCW 13.04.240, required him to exclude any reference to the juvenile court record of the witness. However, it is clear that the trial judge carefully considered Temple's contention but concluded that because of the collateral nature of the proposed cross-examination, no prejudice would result if testimony concerning the witness' juvenile court involvement was excluded. We find no abuse of discretion.
Error is next assigned to the following exchange as constituting a comment on the evidence by the trial judge in contravention of the Washington State Constitution.[3]
BY MR. ACKERMAN:
Q. Percy, have you discussed your testimony in the case with anyone before you came here this morning?
A. No.
Q. You haven't discussed this case with anyone at all before you came in?
MRS. HARBER: That wasn't the question he asked the witness, your Honor. He asked him if he had discussed the case this morning with anyone.
THE COURT: Yes, be sure, Percy, before you answer a question that you fully understand it, and if you don't, ask them and you may ask that it be explained to you. Perhaps if the Court Reporter read the question back.
(The last question read by the reporter.)
Q. (By Mr. Ackerman) Maybe I misled the witness. Percy, have you discussed the case with anyone before you came and took the witness stand this morning, not particularly today, but on other days?
A. Other days, no.
THE COURT: I don't think he understands the question. You had better use words like, have you talked this over with anyone, or have you talked about the case with anyone before you came into court today.
*6 Temple contends that in the above exchange, the trial judge commented "with respect to matters of fact" by indicating his belief in the credibility of the witness.
[3] The purpose of article 4, section 16 of the state constitution "`is to prevent the jury from being influenced by knowledge conveyed to it by the court as to the court's opinion of the evidence submitted.'" State v. Lampshire, 74 Wash. 2d 888, 892, 447 P.2d 727 (1968).
If the trial judge conveys to the jury his personal opinion regarding the truth or falsity of any evidence introduced at the trial, he has thereby violated the constitutional mandate. State v. Bogner, 62 Wash. 2d 247, 382 P.2d 254 (1963).
The 16-year-old juvenile had dropped out of school in the seventh grade and could not read. Clearly the judge's admonition was intended to insure that the boy understood questions put to him before he answered them. This was a proper exercise of judicial responsibility to insure a fair trial. It was not an unconstitutional comment on the evidence. See State v. Hettrick, 67 Wash. 2d 211, 407 P.2d 150 (1965).
Temple's next assignment of error is that, as a matter of law, the evidence is insufficient to sustain a conviction of murder in the first degree.
As to the alternative charge of "felony" murder, Temple points out that "time and circumstances had intervened between the homicide and the taking" of the victim's property. Temple argues that because of the sequence of events the essential connection between the crime of robbery and the homicide was absent.
There was substantial evidence from which it could be found that the following occurred: Following an encounter with the victim and a companion, Temple produced a girl who was presumably a prostitute. The girl and the victim went to the first-floor hallway of a nearby apartment building. There they conversed and the girl attempted to put her hands into the victim's pockets. He pushed her away. The girl called to Temple who entered the building carrying a revolver. The girl said, "Shoot him, shoot him." Temple *7 pointed his gun at the victim and fired point blank. The victim staggered and fell on the entryway stairs. Temple and another man dragged the victim to the sidewalk in front of the building, removed his shoes, took his watch and wallet, and left the scene.
[4] By the terms of Washington's first-degree murder statute,[4] a "felony murder must occur in the commission of, an attempt to commit, or in withdrawing from the scene of a felony, and must not be separate, distinct, and independent from it." State v. Harris, 69 Wash. 2d 928, 933, 421 P.2d 662 (1966). Temple argues that the taking of the victim's property was, at most, a larceny under RCW 9.54.090(1).[5] Temple's apparent theory is that at the time the victim's property was taken, the essential elements of the crime of robbery, i.e. force or violence or fear of injury[6] were not present.
The facts do not support Temple. There was substantial evidence to permit a finding that the shooting of the victim and the taking of his property were parts of the same transaction. The fact that the homicide preceded the final *8 act of the robbery does not fragment the transaction. State v. White, 60 Wash. 2d 551, 374 P.2d 942 (1962).
Neither could Temple prevail if he argued that the victim was dead when the property was taken from his body.
The final contention made is that one cannot be guilty of robbery if the victim is a deceased person. As an abstract principle of law this is true, as essential elements of the crime of robbery would necessarily be lacking. However, that principle cannot apply here, because the robbery and the homicide were all a part of the same transaction, and the fact that death may have momentarily preceded the actual taking of the property from the person does not affect the guilt of the appellant in the commission of the crime charged.
State v. Coe, 34 Wash. 2d 336, 341, 208 P.2d 863 (1949). There was substantial evidence to support the "felony murder" charge.
Temple also claims that it was error to submit the issue of premeditated murder, asserting that, "If there was premeditation, it was instantaneous."
[5] The premeditation required in order to support a conviction of the crime of first-degree murder may involve no more than a moment in point of time. State v. White, supra. The evidence would support a jury's finding that Temple had sufficient time to form the requisite intent.
Prior to trial the state was ordered to produce a ballistics report. When the state's ballistics expert was testifying, it developed that the state had inadvertently failed to furnish Temple with the second page of the 3-page report. The missing page contained the information that the slug removed from the victim was "in poor condition with flattened nose and only portions of 3 to 4 lands and grooves useable for comparison purposes." Temple asked for a mistrial. The trial judge refused a mistrial, but struck the expert's comparison testimony and conclusion that "the spent .22 bullet (removed from the victim's body) very probably was fired from this (Temple's) revolver." Error is assigned to the denial of a mistrial.
A suppression by the prosecution of material evidence *9 favorable to a criminal defendant violates the due process clause of the Fourteenth Amendment irrespective of the good faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.
CPE 5. At minimum, such a due process violation requires the granting of a new trial. Giles v. Maryland, 386 U.S. 66, 17 L. Ed. 2d 737, 87 S. Ct. 793 (1967).
[6] The extent to which the prosecution is required to make inculpatory evidence in its possession available to a criminal defendant is a matter within the discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of discretion. State v. Thompson, 54 Wash. 2d 100, 338 P.2d 319 (1959). Here the state was required to disclose its ballistics evidence. However, even in the absence of an order to produce, due process would have required the state to disclose any exculpatory ballistics evidence.
In fact, the evidence of the missing page was not exculpatory. Before it was discovered that the report furnished Temple was incomplete, the state's expert had testified that the slug removed from the victim's body had "a rather flattened nose and [was] in relatively poor condition, and that ... for examination purposes ... only portions of the bullet were useable for a comparison purpose." The expert qualified his opinion by saying, "However, since I was only looking at a small portion of the bullet, I would have to be cautious and to be conservative and state that I couldn't absolutely state that this bullet was fired from this gun."
In any event, Temple's conviction was not contaminated by any reprehensible conduct of the state nor by any denial of due process. The ballistics evidence was excluded in its *10 entirety. The trial judge carefully instructed both orally and in the formal written instructions that the jurors must totally disregard the expert's "ballistics comparison testimony." We find no error.
The companion of the victim was an eyewitness to the homicide. He made a statement to the police some 2 hours after the shooting which was inconsistent with a second statement given to the police and with his testimony at trial. The existence of the first inconsistent statement was brought out by Temple on cross-examination of the witness. When so confronted, the witness said, "I think I was in extreme shock at the time and I didn't really know what I was saying ..." To rehabilitate the witness, the state called the detective who had taken the first statement. The detective testified that shortly prior to the taking of the statement the witness learned that his companion was dead, whereupon he "came completely apart ... he started crying, and then he went on through a very emotional outburst." Temple contends that this testimony was irrelevant and inflammatory and that it was elicited to create sympathy for the victim and the witness.
[7] Reasonable latitude should logically be permitted in rehabilitating a witness whose credibility has been attacked.
It seems obvious that there may often be reasons and explanations for prior inconsistent statements and that the witness should in all fairness be given some opportunity to explain such statements when the witness has admitted making them in answer to foundation questions put to him upon cross-examination. Accordingly, in such a situation the witness upon redirect examination is permitted to explain the circumstances surrounding, and the reasons for making, such statements. The explanation should be relevant in the sense that it is somehow explanatory.
(Footnotes omitted.) 5 Meisenholder, Wash. Prac. § 297 (1965).
Necessarily, the extent of rehabilitative testimony must be a discretionary determination by a trial judge. Wheeler *11 v. F.A. Buck & Co., 23 Wash. 679, 63 P. 566 (1901). We see no logical reason why rehabilitative testimony should necessarily be limited to that of the witness himself. We find no abuse of discretion.
Temple next claims that the accumulation of prejudicial incidents and misconduct of counsel denied him a fair trial and requires reversal in accordance with State v. Simmons, 59 Wash. 2d 381, 368 P.2d 378 (1962). In addition to the assignments of error already discussed, he points out an incident during voir dire of the jury and another during the state's closing argument.
The examination complained of during voir dire was reasonably calculated to enable the prospective jurors to determine whether or not they knew the victim or his family. The procedure followed was reasonable, and the trial judge was well within the bounds of his discretion in permitting it. See State v. Bromley, 72 Wash. 2d 150, 432 P.2d 568 (1967).
[8] During the state's closing argument the deputy prosecutor illustrated the court's instruction on manslaughter with examples which Temple now claims were misleading and highly improper. Temple neither objected to the argument nor requested a curative instruction. Nor does he cite any authority to support his argument. Our review of the argument satisfies us that the statements complained of were not so prejudicial that the error, if any, could not have been corrected by curative instructions or admonitions. State v. Dennison, 72 Wash. 2d 842, 435 P.2d 526 (1967). Viewing the trial record in its entirety and considering the cumulative impact of the occurrences assigned as error, we conclude that Temple had a fair trial.
[9] Temple finally assigns error to the denial of certain pretrial motions. He makes no argument in his brief in support of his assertions. Rather, he refers us to a motion to suppress in the transcript and to that portion of the statement of facts which covers his argument before the trial judge. Because of Temple's failure to argue this assignment in his brief, and because the assignment is not meritorious *12 on its face, we do not consider it. State v. Hunter, 3 Wash. App. 552, 475 P.2d 892 (1970).
The judgment is affirmed.
FARRIS, A.C.J., and SWANSON, J., concur.
NOTES
[1] "Every person convicted of a crime shall be a competent witness in any civil or criminal proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence, or by his cross-examination, upon which he shall answer any proper question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer thereto." RCW 10.52.030.
[2] "An order of court adjudging a child delinquent or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime." RCW 13.04.240.
[3] "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Const. art. 4, § 16.
[4] "The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either
"...
"(3) Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a robbery, rape, burglary, larceny or arson in the first degree; ..." RCW 9.48.030(3).
[5] "Every person who steals or unlawfully obtains, appropriates, brings into this state, buys, sells, receives, conceals, or withholds in any manner specified in RCW 9.54.010
"(1) Property of any value by taking the same from the person of another or from the body of a corpse; ..."
[6] "Robbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial...." RCW 9.75.010. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3095427/ | Opinion filed October 28,
2010
In The
Eleventh
Court of Appeals
__________
No. 11-10-00225-CV
__________
ROY
E. KIMSEY, JR., Appellant
V.
LAW OFFICES OF
BILL ALEXANDER, P.C. et al, Appellees
On
Appeal from the 142nd District Court
Midland
County, Texas
Trial
Court Cause No. CV-46,031
M
E M O R A N D U M O P I N I O N
Roy
E. Kimsey, Jr. has filed in this court a motion to dismiss his appeal. The
motion is granted, and the appeal is dismissed.
PER
CURIAM
October 28, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2434931/ | 435 F. Supp. 2d 330 (2006)
UNITED STATES of America,
v.
Jeffrey STEIN, et al., Defendants.
No. S1 05 Crim. 0888(LAK).
United States District Court, S.D. New York.
June 26, 2006.
*331 *332 *333 Marc A. Weinstein, Justin S. Weddle, Katherine Polk Failla, Kevin M. Downing, Stanley J. Okula, Jr., Julian J. Moore, Assistant United States Attorneys, Michael J. Garcia, United States Attorney, New York, NY, for U.S.
David Spears, Richards Spears Kibbe & Orbe LLP, New York, NY, Craig Margolis, Vinson & Elkins LLP, Washington, DC, for Defendant Jeffrey Stein.
Stanley S. Arkin, Arkin Kaplan LLP, New York, NY, Joseph V. DiBlasi, Kew Gardens, NY, Elizabeth A. Fitzwater, Arkin Kaplan LLP, New York, NY, for Defendant Jeffrey Eischeid.
Michael S. Kim, Leif T. Simonson, Kobre & Kim LLP, New York, NY, for Defendant Mark Watson.
Stuart Abrams, M. Breeze McMennamin, David S. Hammer, Frankel & Abrams, Jack S. Hoffinger, Susan Hoffinger, Hoffinger Stern & Ross, LLP, New York, NY, for Defendant Raymond J. Ruble.
Ronald E. DePetris, Marion Bachrach, Dana Moskowitz, DePetris & Bachrach, LLP, New York, NY, for Defendant Philip Wiesner.
John F. Kaley, Doar Rieck Kaley & Mack, New York, NY, for Defendant Steven Gremminger.
Susan R. Necheles, Hafetz & Necheles, for Defendant Richard Rosenthal.
James R. DeVita, Bryan Cave LLP, New York, NY, John A. Townsend, Townsend & Jones LLP, Houston, TX, for Defendant Carol Warley.
Michael Madigan, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, Robert H. Hotz, Jr., Christopher T. Schulten, Akin Gump Strauss Hauer & Feld LLP, New York, NY, for Defendant John Lanning.
Russell M. Gioiella, Richard M. Asche, Litman, Asche & Gioiella, LLP, New York, NY, for Defendant Carl Hasting.
Cristina Arguedas, Ann Moorman, Arguedas, Cassman & Headly, LLP, Berkeley, CA, Michael Horowitz, Michelle Seltzer, Cadwalader, Wickersham & Taft LLP, Washington, DC, for Gregg Ritchie.
Gerald B. Lefcourt, Gerald B. Lefcourt, P.C., Jay Philip Lefkowitz, Kirkland & Ellis LLP, New York, NY, for Defendant David Amir Makov.
Caroline Rule, Robert S. Fink, Christopher M. Ferguson, Usman Mohammad, Kostelanetz & Fink, LLP, New York, NY, for Defendant Richard Smith.
Richard Mark Strassberg, Goodwin Proctor LLP, Washington, DC, for Defendant David Greenberg.
George D. Niespolo, Duane Morris LLP, San Francisco, CA, for Defendant Randy Bickham.
Steven M. Bauer, Karli E. Sager, Latham & Watkins, LLP, San Francisco, CA, for Defendant John Larson.
David C. Scheper, Julio V. Vergara, Overland Borenstein Scheper & Kim LLP, Los Angeles, CA, for Defendant Robert Pfaff.
John R. Wing, Diana D. Parker, Lankier, Siffert & Wohl, LLP, New York, NY, for Defendant Larry DeLap.
*334 Charles A. Stillman, Stillman Friedman & Schechtman, P.C., Carl S. Rauh, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for KPMG LLP.
Lewis J. Liman, Stephen M. Rich, Jennifer A. Kennedy, Cleary Gottlieb Steen & Hamilton LLP, Paul B. Bergman, Paul B. Bergman, P.C., for the New York Council of Defense Lawyers as Amicus Curiae.
Stephanie Martz, Mark I. Levy, Kilpatrick Stockton LLP, for National Association of Criminal Defense Lawyers as Amicus Curiae.
William R. McLucas, Howard M. Shapiro, Jonathan E. Nuechterlein, Christopher Davies, Wilmer Cutler Pickering Hale and Dorr LLP, George R. Kramer, Renee S. Dankner, Marjorie E. Gross, Robin S. Conrad, Amar D. Sarwal, for The Securities Industry Association, The Association of Corporate Counsel, The Bond Market Association and The Chamber of Commerce of the United States of America as Amici Curiae.
OPINION
KAPLAN, District Judge.
TABLE OF CONTENTS
Facts ...................................................................................336
The Thompson Memorandum ............................................................336
KPMG Gets Into Trouble and "Cleans House" ..........................................338
KPMG's Policy on Payment of Legal Fees .............................................340
The Initial Discussion between the USAO and Skadden ................................340
KPMG Gets the Message ..............................................................344
The Government Presses Its Advantage ...............................................347
The Conclusion of the Investigation, KPMG's Stein Problem and the Deferred
Prosecution Agreement ............................................................347
The Deferred Prosecution Agreement and the Indictment in This Case .................349
The Present Motion .................................................................350
The Government's Initial Response .............................................350
Prehearing Proceedings ........................................................352
The Hearing ...................................................................352
Ultimate Factual Conclusions .......................................................352
Discussion ..............................................................................353
I. The Relationship Between KPMG and its Personnel With Respect to
Advancement of Legal Fees and Defense Costs ...............................353
A. Indemnification and Advancement Generally ...............................353
B. KPMG ....................................................................355
II. The Government Violated the Fifth and Sixth Amendments by Causing
KPMG to Cut Off Payment of Legal Fees and Other Defense Costs
Upon Indictment ...........................................................356
A. The Right to Fairness in the Criminal Process ...........................356
1. Nature of the Right .................................................356
2. The Right to Fairness in the Criminal Process Is a Fundamental
Liberty Interest Entitled to Substantive Due Process
Protection Where, As Here, the Government Coerces a Third
Party to Withhold Funds Lawfully Available to a Criminal
Defendant .........................................................360
3. The Government's Actions Violated the Substantive Due Process
Right to Fairness in the Criminal Process ........................362
B. The Sixth Amendment Right to Counsel ....................................365
1. The Nature and Scope of the Right to Counsel ........................365
a. Attachment of Sixth Amendment Rights .......................366
b. "Other People's Money" .....................................367
*335
2. The Thompson Memorandum and the Government's Implementation
Violated the KPMG Defendants' Sixth Amendment
Right to Counsel ..................................................367
3. The KPMG Defendants Are Not Obliged to Establish
Prejudice, Which in Any Case Would Be Presumed Here ...............369
III. It is Premature to Consider the Government's Actions With Respect to
Payment of Legal Expenses Incurred Before Indictment ......................373
IV. The Remedy ..................................................................373
A. Monetary Relief Against the Government Is Precluded by
Sovereign Immunity ....................................................374
B. Monetary Relief May Be Available Against KPMG ...........................377
1. This Court Has Subject Matter Jurisdiction ..........................377
2. Personal Jurisdiction, Even If It Does Not Already Exist, May
Be Obtained Over KPMG .............................................378
C. Possible Dismissal and Other Remedies ...................................380
V. Some of the Actions of the USAO in Response to the Motion Were Not
Appropriate ...............................................................380
Conclusion ..............................................................................381
The issue now before the Court arises at an intersection of three principles of American law.
The first principle is that everyone accused of a crime is entitled to a fundamentally fair trial.[1] This is a central meaning of the Due Process Clause of the Constitution.
The second principle, a corollary of the first, is that everyone charged with a crime is entitled to the assistance of a lawyer.[2] A defendant with the financial means has the right to hire the best lawyers money can buy. A poor defendant is guaranteed competent counsel at government expense.[3] This is at the heart of the Sixth Amendment.
The third principle is not so easily stated, not of constitutional dimension, and not so universal. But it too plays an important role in this case. It is simply this: an employer often must reimburse an employee for legal expenses when the employee is sued, or even charged with a crime, as a result of doing his or her job. Indeed, the employer often must advance legal expenses to an employee up front, although the employee sometimes must pay the employer back if the employee has been guilty of wrongdoing.
This third principle is not the stuff of television and movie drama. It does not remotely approach Miranda warnings in popular culture. But it is very much a part of American life. Persons in jobs big and small, private and public, rely on it every day. Bus drivers sued for accidents, cops sued for allegedly wrongful arrests, nurses named in malpractice cases, news reporters sued in libel cases, and corporate chieftains embroiled in securities litigation generally have similar rights to have their employers pay their legal expenses if they are sued as a result of their doing their jobs. This right is as much a part of the bargain between employer and employee as salary or wages.[4]
*336 Most of the defendants in this case worked for KPMG, one of the world's largest accounting firms. KPMG long has paid for the legal defense of its personnel, regardless of the cost and regardless of whether its personnel were charged with crimes. The defendants who formerly worked for KPMG say that it is obligated to do so here. KPMG, however, has refused.
If that were all there were to the dispute, it would be a private matter between KPMG and its former personnel. But it is not all there is. These defendants[5] (the "KPMG Defendants") claim that KPMG has refused to advance defense costs to which the defendants are entitled because the government pressured KPMG to cut them off. The government, they say, thus violated their rights and threatens their right to a fair trial.
Having heard testimony from KPMG's general counsel, some of its outside lawyers, and government prosecutors, the Court concludes that the KPMG Defendants are right. KPMG refused to pay because the government held the proverbial gun to its head. Had that pressure not been brought to bear, KPMG would have paid these defendants' legal expenses.
Those who commit crimes regardless of whether they wear white or blue collars must be brought to justice. The government, however, has let its zeal get in the way of its judgment. It has violated the Constitution it is sworn to defend.
Facts
The Thompson Memorandum
In June 1999, then-U.S. Deputy Attorney General Eric Holder issued a document entitled Federal Prosecution of Corporations (the "Holder Memorandum") to provide "guidance as to what factors should generally inform a prosecutor in making the decision whether to charge a corporation in a given case."[6] He took pains to make clear that the factors articulated in the memorandum were not "outcome-determinative" and that "[f]ederal prosecutors [we]re not required to reference these factors in a particular case, nor [we]re they required to document the weight they accorded specific factors in reaching their decision." Nevertheless, the language that plays a central role in the present controversy first was found in the Holder Memorandum.
The Holder Memorandum set forth some common sense considerations. Prosecutors, in deciding whether to indict a company, should pay attention to things like the nature and seriousness of the offense, the pervasiveness of wrongdoing within the entity, the company's efforts to remedy past misconduct, the adequacy of other remedies, and the like. It mentioned also:
*337 "the corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of the corporate attorney-client and work product protection . . . "[7]
Section VI elaborated on what was meant by cooperation. The general principle was that "[i]n gauging the extent of the corporation's cooperation, the prosecutor may consider the corporation's willingness to identify the culprits within the corporation, including senior executives, to make witnesses available, to disclose the complete results of its internal investigation, and to waive attorney-client and work-product privileges."[8] The memorandum then set out several paragraphs of commentary, the most relevant for present purposes being this:
"Another factor to be weighed by the prosecutor is whether the corporation appears to be protecting its culpable employees and agents. Thus, while cases will differ depending upon the circumstances, a corporation's promise of support to culpable employees and agents, either through the advancing of attorneys fees, through retaining the employees without sanction for their misconduct, or through providing information to the employees about the government's investigation pursuant to a joint defense agreement, may be considered by the prosecutor in weighing the extent and value of a corporation's cooperation."[9]
A footnote to the comment concerning the advancing of attorneys' fees read:
"Some states require corporations to pay the legal fees of officers under investigation prior to a formal determination of their guilt. Obviously, a corporation's compliance with governing law should not be considered a failure to cooperate."[10]
Thus, the Holder Memorandum made clear that advancing of attorneys' fees to personnel of a business entity under investigation, except where such advances were required by law, might be viewed by the government as protection of culpable individuals and might contribute to a government decision to indict the entity.
As noted, the Holder Memorandum was not binding. Federal prosecutors were free to take it into account, or not, as they saw fit. But the corporate scandals of the earlier part of this decade changed that.
In late 2001, Enron, Global Crossing, Tyco International, Adelphia Communications and ImClone, among other companies, found themselves in worlds of trouble, much of it apparently of their own making. Bankruptcies and criminal prosecutions followed including, notably, the indictment of Enron's auditors, Arthur Andersen LLP an indictment that resulted in the collapse of the firm, well before the case was tried.[11] And on July 9, 2002, the President issued Executive Order 13271, which established a Corporate Fraud Task Force (the "Task Force") headed by United States Deputy Attorney General Larry D. Thompson.
*338 On January 20, 2003, Mr. Thompson issued a document entitled Principles of Federal Prosecution of Business Organizations (the "Thompson Memorandum") which, in many respects, was a modest revision of the Holder Memorandum. Indeed, the language concerning cooperation and advancing of legal fees by business entities was carried forward without change. Unlike its predecessor, however, the Thompson Memorandum is binding on all federal prosecutors.[12] Thus, all United States Attorneys now are obliged to consider the advancing of legal fees by business entities, except such advances as are required by law, as at least possibly indicative of an attempt to protect culpable employees and as a factor weighing in favor of indictment of the entity.[13]
KPMG Gets Into Trouble and "Cleans House"
While all of this was going on, the Internal Revenue Service ("IRS") began investigating tax shelters, including a number that are subjects of the indictment in this case. In early 2002, it issued nine summonses to KPMG, which was less than fully compliant. Accordingly, on July 9, 2002, the government filed a petition in the United States District Court for the District of Columbia to enforce them.[14]
A few months later, the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs "began an investigation into the development, marketing and implementation of abusive tax shelters by accountants, lawyers, financial advisors, and bankers."[15] This led to public hearings in November 2003 at which several senior KPMG partners or former partners three of them now defendants here testified.[16]
The firm's reception at the hearing was not favorable. Senator Coleman, the subcommittee *339 chair, for example, opened the hearing by saying that "the ethical standards of the legal and accounting profession have been pushed, prodded, bent and, in some cases, broken, for enormous monetary gain."[17] At another point, Senator Levin, the ranking minority member, in obvious exasperation at a KPMG witness, suggested that the witness "try an honest answer."[18]
Eugene O'Kelly, then KPMG chair,[19] was concerned about the Senate hearing and the IRS proceedings.[20] He retained Skadden Arps Slate Meagher & Flom ("Skadden"), and particularly Robert S. Bennett, "to come up with a new cooperative approach."[21] One aspect of that new approach was a decision to "clean house" a determination to ask Jeffrey Stein, Richard Smith, and Jeffrey Eischeid, all senior KPMG partners who had testified before the Senate and all now defendants here to leave their positions as deputy chair and chief operating officer of the firm, vice chair tax services, and a partner in personal financial planning, respectively.[22]
Given Mr. Stein's senior position and his relationship with Mr. O'Kelly,[23] his departure was cushioned substantially, although many of the facts have come to light only recently. He "retired" from the firm with a $100,000 per month, three-year consulting agreement. He agreed to release the firm and all of its partners, principals, and employees from all claims.[24] He and KPMG agreed also that Mr. Stein would be represented, at KPMG's expense, in any suits brought against KPMG or its personnel and himself, by counsel acceptable to both him and the firm or, if joint representation were inappropriate or if Mr. Stein were the only party to a proceeding, by counsel reasonably acceptable to Mr. Stein.[25]
Despite KPMG's effort to stave off trouble by "cleaning house," much damage already had been done. In the early part of 2004, the IRS made a criminal referral to the Department of Justice ("DOJ"), which in turn passed it on to the United States Attorney's Office for this district ("USAO").[26]
*340 KPMG's policy on Payment of Legal Fees
KPMG's policy prior to this matter concerning the payment of legal fees of its partners and employees is clear. While KPMG's partnership agreement and bylaws are silent on the subject, the parties have stipulated as follows:
"1. Prior to February 2004, . . . it had been the longstanding voluntary practice of KPMG to advance and pay legal fees, without a preset cap or condition of cooperation with the government, for counsel for partners, principals, and employees of the firm in those situations where separate counsel was appropriate to represent the individual in any civil, criminal or regulatory proceeding involving activities arising within the scope of the individual's duties and responsibilities as a KPMG partner, principal, or employee.
"2. This practice was followed without regard to economic costs or considerations with respect to individuals or the firm.
"3. With the exception of the instant matter, KPMG is not aware of any current or former partner, principal or employee who has been indicted for conduct arising within the scope of the individual's duties and responsibilities as a KPMG partner, principal, or employee since [two partners] were indicted and convicted of violation of federal criminal law in 1974. Although KPMG has located no documents regarding payment of legal fees in that case, KPMG believes that it did pay pre- and post-indictment legal fees for the individuals in that case."
The Court infers and finds that KPMG in fact paid the pre- and post-indictment legal fees for the individuals in the 1974 criminal case. Moreover, the extent to which KPMG has gone is quite remarkable. In one recent situation involving KPMG's relationship with Xerox Corporation, it paid over $20 million to defend four partners in a criminal investigation and related civil litigation brought by the Securities and Exchange Commission.[27]
The Initial Discussion between the USAO and Skadden
When the referral reached the USAO on February 5, 2004, it came under the supervision of Shirah Neiman, who was chief counsel to the United States Attorney, the USAO's liaison to the IRS, a participant in the drafting of the Holder Memorandum, and a very experienced prosecutor[28] The *341 USAO notified Skadden of the referral, and a meeting was scheduled for February 25, 2004.
In the meantime, on February 9, 2004, the USAO prepared "subject" letters letters advising the recipient that he or she "is a person whose conduct is within the scope of [a] grand jury's investigation"[29] to between 20 and 30 KPMG partners and employees, including all but five of the defendants in this case.[30]
In preparation for the meeting, Ms. Neiman, Assistant United States Attorneys ("AUSA") Weddle and Okula, and other members of the prosecution team conferred. They decided to ask Skadden whether KPMG was paying the legal fees of individuals under investigation.[31] Accordingly, the government prepared a document headed "Skadden Meeting Points" setting forth matters that the government intended to discuss at the meeting.[32] The first page of the three-page list contained an item that read:
" Is KPMG paying/going to pay the legal fees of employees? Current or former?
What about taxpayers?
Who?
Any agreements or other obligations to do so? What are they?"[33]
The meeting was attended by Mr. Bennett, Ms. Neiman, and many others on both sides. Mr. Weddle began by telling Skadden that the government was there to hear what Skadden had to say and that it had a few questions. Mr. Bennett explained that Skadden had been hired in view of Mr. O'Kelly's concern about the controversy with the IRS and the Senate hearings and that KPMG had decided to clean house and change the atmosphere at the firm. He reported that the firm had taken high-level personnel action already, that it would cooperate fully with the government's investigation, and that the object was to save KPMG, not to protect any individuals. In an obvious reference to the fate of Arthur Andersen, he said that an indictment of KPMG would result in the firm going out of business.[34]
After a discussion of the structure of KPMG and of potential conflicts of interest, Mr. Weddle "got to the subject of legal fees and asked whether KPMG was obligated to pay fees and what their plans were."[35] Mr. Bennett tested the waters to see whether KPMG could adhere to its practice of paying its employees'[36] legal expenses when litigation loomed. He asked for government's view on the subject.[37] Ms. Neiman said that the government would take into account KPMG's legal obligations, if any; to advance legal expenses, but referred specifically to the Thompson Memorandum as a point that had to be considered.[38]
*342 At or about that point, Messrs. Bennett and Bialkin told the USAO that KPMG's "common practice" had been to pay legal fees. They added that the partnership agreement was vague and that Delaware law gave the company the right to do whatever it wished, but said that KPMG still was checking on its legal obligations. It would not, however, pay legal fees for employees who declined to cooperate with the government, or who took the Fifth Amendment, as long as it had discretion to take that position.[39]
The conversation then shifted briefly to a discussion of the personnel changes that KPMG had made.[40] Mr. Bennett reported that Messrs. Stein, Eischeid, and Smith had been asked to leave, but explained that neither KPMG nor Skadden had done an internal investigation to determine who were "bad guys" or whether any crime had been committed.[41] Almost immediately, Mr. Weddle reverted to the subject of attorneys' fees, asking Mr. Bennett to determine KPMG's obligations in that regard.[42] Ms. Neiman then said that "misconduct" should not or cannot "be rewarded" and referred to federal guidelines.[43]
There is no dispute, and the Court finds, that this comment came immediately on the heels of a statement by Mr. Bennett relating to lawyers for KPMG partners.[44] There are disputes, however, about precisely what Ms. Neiman said about "guidelines" and what she meant by it.[45] The parties have focused in particular on whether Ms. Neiman intended her remark to be directed to the legal fee issue i.e., to be a statement to the effect that payment by KPMG of employee legal fees could be viewed as rewarding misconduct or to be directed instead at any severance arrangements between KPMG and Messrs. Stein, Eischeid, and Smith. Ms. Neiman testified that her intent was the latter.[46] But the Court finds it unnecessary *343 to decide Ms. Neiman's subjective purpose in making the remark because what is more important is how her comment was understood.
As Ms. Neiman's remark came immediately after a statement concerning whether KPMG would be paying for lawyers for its personnel, it would have been quite natural to understand the comment as having been directed at payment of legal fees. And that is exactly what happened:
The IRS agent's handwritten notes, taken at the meeting, state:
"BB [illegible] Skadden may recommend lawyers for this. Wants lawyers who understand cooperation is the best way to go in this type of case.
He feels it is in the best interests of KPMG for its people to get attorneys that will cooperate with Go[vt]. Want to save the firm.
"Per SN
Fees under Federal Guideline Misconduct C/N Be rewarded.
JW figure out firms obligations and [illegible]"[47]
The IRS agent's typewritten memorandum, prepared from her notes, state:
"31. AUSA Weddle finally asked Mr. Bennett to find out what KPMG's obligations would be. Shirah Neiman further advised them that under the federal guidelines misconduct can not be rewarded."[48]
Skadden's Mr. Pilchen recorded:
"SP No decisions made. No counsel have been recommended we have had discussions @ what the firm does in typical situations but no final decisions made.
"SN misconduct shdn't be rewarded."[49]
Not long afterward, Mr. Pilchen told a lawyer for a KPMG employee that the government had implied that it preferred that KPMG not pay employee legal fees.[50]
AUSA Okula testified:
"Q In response to the topic of cooperation, isn't it a fact that Shirah Neiman goes back to the fees and says, well, remember, we're looking at that under federal guidelines. Yes or no?
"A Yes.
"Q And that was about fees, wasn't it?
"A Fees, yes, that's what it says.
"Q It wasn't about terminating Eischeid or Stein or anybody else. It was *344 about paying fees and cooperation. Correct?
"A Correct."[51]
In sum, Ms. Neiman's comment that "misconduct" cannot or should not "be rewarded" under "federal guidelines," whatever went through her mind when she said it, was understood by both KPMG and government representatives as a reminder that payment of legal fees by KPMG, beyond any that it might legally be obligated to pay, could well count against KPMG in the government's decision whether to indict the firm. And if there were any doubt that this was the message conveyed, the doubt quickly was dispelled by Mr. Weddle. As Mr. Pilchen's notes recorded, he followed up Ms. Neiman's comment by saying:
"JW if u have discretion re fees we'll look at that under a microscope."[52]
Thus, while the USAO did not say in so many words that it did not want KPMG to pay legal fees, no one at the meeting could have failed to draw that conclusion.[53]
KPMG Gets the Message
Shortly after the February 25, 2004 meeting, Mr. Bennett got back to Mr. Weddle on the legal fee issue. He reported that KPMG did not think it had any binding legal obligation to pay legal fees,[54]*345 but that "it would be a big problem" not to do so because the firm was a partnership. He said that KPMG was planning on putting a cap, or limit, on fees and conditioning their payment for any given partner or employee on that individual "cooperating fully with the company and the government."[55] Apparently satisfied with the government's response, KPMG began to implement the policy.
On March 4, 2004, Mr. Pilchen of Skadden spoke to Mr. Townsend, an attorney for defendant Carolyn Warley. He told Townsend that KPMG would pay his fees so long as Ms. Warley cooperated with the government. For example, he said, no fees would be paid if Ms. Warley invoked her privilege against self-incrimination under the Fifth Amendment.[56]
On March 11, 2004, the Skadden team had a conference call with the USAO. Mr. Bennett assured the USAO that KPMG would be "as cooperative as possible" so that the office would not exercise its discretion to indict the firm. Mr. Weddle urged that KPMG tell its people that they should be "totally open" with the USAO, "even if that [meant admitting] criminal wrongdoing." He commented that this would give him good material for cross-examination,[57] a statement that strongly indicates that at least the lead line AUSA on the case expected, even at this stage, to prosecute individuals.
The actions of the USAO, coupled with the Thompson Memorandum, had the desired effect. On the same date, Skadden's Mr. Rauh wrote to the USAO, enclosing among other things a form letter that Skadden was sending to counsel for the KPMG Defendants then employed by KPMG who had received subject letters from the government or otherwise appeared to be under suspicion.[58] The form letter stated that KPMG would pay an individual's legal fees and expenses, up to a maximum of $400,000, on the condition that the individual "cooperate with the government and . . . be prompt, complete, and truthful."[59] Importantly, however, it went even further. It made clear that "payment of . . . legal fees and expenses will cease immediately if . . . [the recipient] is charged by the government with *346 criminal wrongdoing."[60] In addition, on March 12, 2004, Joseph Loonan, then KPMG's deputy general counsel, sent an advisory memorandum to a broader audience of KPMG personnel regarding potential contacts by the government.[61] The memorandum urged full cooperation with the investigation. But it advised also that recipients had a right to be represented by counsel if they were contacted by the government, mentioned some advantages of consultation with counsel, and stated that KPMG had arranged for independent counsel for those who wished to consult them.[62]
The USAO took no issue with KPMG's announcement that it would cut off payment of legal fees for anyone who was indicted and that it would condition the limited pre-indictment payments on cooperation with the government. The advisory memorandum, on the other hand, upset Mr. Weddle and Kevin Downing, another member of the prosecution team.[63] They immediately advised Skadden that it was "disappointed with [its] tone" and allegedly "one-sided presentation of potential issues" and demanded that KPMG send out a supplemental memorandum in a form they proposed.[64] The only significant point of difference between the memorandum that the government demanded and Mr. Loonan's original memorandum was the language in the government's proposal italicized below:
"Employees are not required to use this counsel, or any counsel at all. Rather, employees are free to obtain their own counsel, or to meet with investigators without the assistance of counsel. It is entirely your choice."[65]
In due course, KPMG capitulated to the USAO demand. It put out in "Q & A" format a document containing the following language:
"Do I have to be assisted by a lawyer?
"Answer: No. Although we believe that it is probably in your best interests to consult with a lawyer before speaking to government representatives, whether you do so is entirely your choice. As we said in the March 12 OGC [Office of General Counsel] memorandum, you may deal directly with government representatives without counsel. In any event, the Firm expects you to cooperate fully with the government representatives and provide complete and truthful information to them.[66]
*347 This exchange is revealing. No one suggests that either the original KPMG advice or the government's subsequent proposal misstated the law. The difference was one of emphasis. But it is entirely plain that the government's purpose in demanding the supplement was to increase the chances that KPMG employees would agree to interviews without consulting or being represented by counsel, whether provided by KPMG or otherwise.
The Government Presses Its Advantage
The KPMG lawyers met again with the USAO on March 29, 2004. In an effort to demonstrate that KPMG was cooperating, Skadden asked the government to notify it if any current or former KPMG employee refused to meet with prosecutors or otherwise failed to cooperates.[67]
From that point forward, the government took full advantage. It repeatedly notified Skadden when KPMG personnel failed to comply with government demands.[68] In each case, Skadden promptly advised the attorney for the individual in question that the payment of legal fees would be terminated "[a]bsent an indication from the government within the next ten business days that your client no longer refuses to participate in an interview with the government."[69] In some cases, the individuals in question relented under pressure of the threats from KPMG and submitted to interviews with the government. In others, they did not, whereupon KPMG terminated their employment and cut off the payment of legal fees.[70]
The Conclusion of the Investigation, KPMG's Stein Problem and the Deferred Prosecution Agreement
As the matter unfolded, meetings between KPMG and its counsel and the USAO continued, with KPMG seeking a resolution short of an indictment of the firm and the government pressing for admissions of extensive wrongdoing, a great deal of money, and changes in KPMG's business.
On August 4, 2004, the KPMG executives and lawyers met with Karen Seymour, then chief of the criminal division of the USAO, and other prosecutors. In the course of the meeting, Ms. Seymour said that the government had learned that KPMG had granted rich severance packages to certain executives and that this raised a "troubling issue under the `Thompson Memo.'"[71] Mr. Bennett deflected the issue, agreeing that severance packages were "high in one or two cases" but reiterating that KPMG's "expectation" was that legal fees of individuals would be paid only up to $400,000 and only on condition that recipients cooperated with the government.[72] But the Stein severance agreement was not produced.
As time went by, KPMG came to view the Stein severance agreement as something of a ticking bomb. For one thing, KPMG had not adhered in Mr. Stein's case to the $400,000 pre-indictment legal fee cap that it had adopted in response to government pressure. It passed that figure by late October 2004,[73] and so was at *348 odds with its representation to the government.[74] For another, it had known since August 2004 that the USAO was unhappy that rich severance packages had been given to senior executives.[75]
Notwithstanding this problem, KPMG repeatedly tried to convince the USAO not to indict the firm, touting its cooperation with the investigation and its limitation of attorneys' fees for individuals. In meetings in March 2005 with David N. Kelley, then United States Attorney, however, this approach did not yield the desired result. Indeed, on March 2, 2005, Mr. Kelley interrupted Mr. Bennett's claim that the firm had cooperated by saying, "Let me put it this way. I've seen a lot better from big companies."[76] That meeting, in the words of KPMG's Mr. Loonan, was "not particularly encouraging,"[77] and a subsequent meeting in New York went no better.
With the scene about to shift to Washington and a last-ditch effort to prevent an indictment by an appeal at the highest levels of the Justice Department, KPMG's objective was "to be able to say at the right time with the right audience, we're in full compliance with the Thompson Guidelines."[78] It concluded that the Stein situation involved too great a risk. So on May 5, 2005, eight days before KPMG was to meet with U.S. Deputy Attorney General James Comey to plead its case, KPMG unilaterally terminated the consulting services portion of the severance agreement and cut off payment of Mr. Stein's attorneys' fees.[79] It did so, as Mr. Loonan candidly admitted, "because [KPMG] thought it would help [the firm] with the government."[80]
Having dealt, as best it could, with the Stein problem, KPMG turned to attempting to persuade Deputy Attorney General Comey not to indict the firm. The meeting took place on June 13, 2005. Once again, Mr. Bennett relied upon KPMG's cooperation with the government, in addition of course to other arguments. A Skadden memorandum of the meeting recounts some of his remarks as follows:
*349 "In addition, it [KPMG] had done something `never heard of before' conditioned the payment of attorney's fees on full cooperation with the investigation. We said we'd pressure although we didn't use that word our employees to cooperate. We told employees that attorney fees would not be paid unless they fully cooperated with the investigation.' He noted that whenever an individual indicated he or she would not cooperate, `Justin [Weddle] or Stan [Okula] would tell us,' and KPMG took action. He went on to note that `what played out' was that current or former personnel who otherwise would not have cooperated did cooperate, and those who did not had their fees cut off and, in two instances, were separated from the firm. This process exhibited `a level of cooperation that is rarely done.'
* * *
"He noted that what was really `precedent-setting' about the case was the conditioning of payment of legal fees on cooperation."[81]
This time, KPMG was more successful.
The Deferred Prosecution Agreement and the Indictment in This Case
On August 29, 2005, KPMG and the government entered into a Deferred Prosecution Agreement ("DPA"). KPMG agreed, among other things, to waive indictment, to be `charged in a one-count information, to admit extensive wrongdoing, to pay a $456 million fine, and to accept restrictions on its practice. The government agreed that it will seek dismissal of the information if KPMG complies with its obligations.[82] In a nutshell, KPMG stands to avoid a criminal conviction if it lives up to its part of the bargain.
One additional aspect of the DPA is noteworthy in the present context. The DPA obliges KPMG to cooperate extensively with the government, both in general and in the government's prosecution of this indictment. It provides in part:
"7. KPMG acknowledges and understands that its cooperation with the criminal investigation by the Office [USAO] is an important and material factor underlying the Office's decision to enter into this Agreement, and, therefore, KPMG agrees to cooperate fully and actively with the Office, the IRS, and with any other agency of the government designated by the Office (Designated Agencies) regarding any matter relating to the Office's investigation about which KPMG has knowledge or information.
"8. KPMG agrees that its continuing cooperation with the Office's investigation shall include, but not be limited to, the following:
"(a) Completely and truthfully disclosing all information in its possession to the Office and the IRS about which the Office and the IRS may inquire, including but not limited to all information about activities of KPMG, present and former partners, employees, and agents of KPMG;
* * *
"(d) Assembling, organizing, and providing, in responsive and prompt fashion, and, upon request, expedited fashion, all documents, records, information, and other evidence in KPMG's possession, custody, or control as may be requested by the Office or the IRS;
"(e) Not asserting, in relation to the Office, any claim of privilege (including *350 but not limited to the attorney-client privilege and the work product protection) as to any documents, records, information, or testimony requested by the Office related to its investigation . . . [; and]
"(f) Using its reasonable best efforts to make available its present and former partners and employees to provide information and/or testimony as requested by the Office and the IRS, including sworn testimony before a grand jury or in court proceedings, as well as interviews with law enforcement authorities . . .
"9. KPMG agrees that its obligations to cooperate will continue even after the dismissal of the Information, and KPMG will continue to fulfill the cooperation obligations set forth in this Agreement in connection with any investigation, criminal prosecution or civil proceeding brought by the Office or by or against the IRS or the United States relating to or arising out of the conduct set forth in the Information and the Statement of Facts and relating in any way to the Office's investigation."[83]
The cooperation provisions of the DPA thus require KPMG to comply with demands by the USAO in connection with this prosecution, with little or no regard to cost. If it does not comply, it will be open to the risk that the government will declare that KPMG breached the DPA and prosecute the criminal information to verdict. Anything the government regards as a failure to cooperate, in other words, almost certainly will result in the criminal conviction that KPMG has labored so mightily to avoid, as the admissions that KPMG now has made would foreclose a successful defense.
At about the same time, the government filed the initial indictment in this case. True to its word, KPMG cut off payments to the defendants of legal fees and expenses.
The Present Motion
The Government's Initial Response
On January 19, 2006, the KPMG Defendants moved to dismiss the indictment or for other relief on the ground that the government had interfered improperly with the advancement of attorneys' fees by KPMG in violation of their constitutional and other rights.
The government filed its memorandum in opposition to this and other motions on March 3, 2006.[84] It represented:
"With respect to the facts[,] KPMG, which determined that it had no obligation under either Delaware partnership law or contract to advance legal fees at all, decided of its own volition that it would in fact advance such fees, but subject them to certain limitations. That KPMG, an entity that by its own admission engaged in a breathtaking tax fraud conspiracy with and through the defendants and others, may have made that decision as a matter of good partnership governance and in order to better position itself with prosecutors, does not detract from the fact that it was KPMG's decision alone. Tellingly, the defendants have not and indeed cannot point to any evidence supporting their spurious claims that the United States `coerc[ed]' or `bull[ied]' KPMG into making its decision to limit the advancement of fees."[85]
*351 The motion was heard on March 30, 2006. In the course of the argument, the government, for the first time, took the position that it had "no objection whatsoever to KPMG exercising its free and independent business judgment as to whether to advance defense costs . . . and that if it were to elect to do so the government would not in any way consider that in determining whether [KPMG] had complied with the DPA."[86] Nevertheless, the Court expressed concern about the impact of the Thompson Memorandum on KPMG's decision with respect to the payment of legal fees and ultimately invited the defendants to make a written submission as to the precise factual issue(s) as to which they sought an evidentiary hearing.[87]
The government sought to avoid a hearing. It responded to the defendants' submission with a declaration by Mr. Weddle and a letter brief.
Mr. Weddle's declaration stated in relevant part:
"2. On February 25, 2004, legal counsel for KPMG met with me and other representatives of the United States Attorney's Office for the first time in connection with this investigation. At this meeting, among other things:
* * *
"d. KPMG's lawyers stated that they were looking into the issue of their obligations to pay fees, and indicated that if it was within KPMG's discretion whether to pay fees, KPMG would not pay fees for individuals who do not cooperate.
"e. The Government did not instruct or request KPMG to implement that plan or to implement a contrary plan.
"3. * * * Once again, in this call [March 2, 2004], the Government did not tell KPMG's counsel that KPMG's decision to pay legal fees was improper, nor did we instruct or request KPMG to change its decision about paying fees, capping the payment of fees, or conditioning of fees on an employee's or a partner's cooperation."[88]
The letter brief[89] stated:
"The Government did not instruct or request KPMG to implement that plan [i.e., KPMG's plan to advance fees subject to a cap and a requirement of cooperation with the government] or to implement a contrary plan.
* * *
"Once again, the Government did not tell KPMG that its decision to pay legal fees was improper. Nor did the Government instruct or request KPMG to change its decision about paying fees, capping the payment of fees, or conditioning the payment of fees on an employee's or a partner's cooperation.
* * *
"In sum, during the course of its dealings with KPMG, the United States Attorney's Office did not instruct KPMG whether KPMG should pay legal fees, *352 whether KPMG should cap the payment of legal fees, or whether KPMG should condition the payment of legal fees."[90]
Prehearing Proceedings
On April 12, 2006, the Court ordered an evidentiary hearing and limited discovery on the motion and, particularly, on "whether the government, through the Thompson Memorandum or otherwise, affected KPMG's determination(s) with respect to the advancement of legal fees and other defense costs to present or former partners and employees with respect to the investigation and prosecution of this case and such subsidiary issues as relate thereto."[91] 91 The order granted the KPMG Defendants leave to serve a Rule 17(c) subpoena on KPMG for documents.
Without getting into unnecessary detail, it is fair to say that KPMG's participation from that point on was more extensive than simply responding to the subpoena. It sought to block or, at least, delay issuance of the subpoena while it tried to broker stipulations between defendants and the government in an effort to limit the scope of discovery from KPMG and testimony by its personnel.[92] It sought and obtained, for its own convenience, a delay of the hearing.[93] And it obtained leave for its counsel appear not only for the purpose of responding to the subpoena "in this matter," but "for any purposes relating to this matter that the Court may so [sic] order."[94]
The Hearing
The Court conducted an evidentiary hearing on May 8-10, 2006. Counsel for KPMG were present throughout. At the conclusion of argument by other counsel, the Court addressed counsel for KPMG: "You certainly have notice that a remedy is being sought against your client, and I'm now making it clear in words of one syllable. You will have a chance to be heard if you want it."[95] It went on to emphasize that it would welcome any submission on behalf of KPMG and that KPMG could "make whatever reservation of rights [it wished] in submitting."[96]
KPMG ultimately submitted a memorandum of law. It did not seek to offer any evidence, to question any witnesses, or to make any offer of proof.
Ultimate Factual Conclusions
Several broad conclusions follow from the foregoing.
First, the Thompson Memorandum caused KPMG to consider departing from its long-standing policy of paying legal fees and expenses of its personnel in all cases and investigations even before it first met with the USAO. As a direct result of the threat to the firm inherent in the Thompson Memorandum, it sought an indication from the USAO that payment of fees in accordance with its settled practice would not be held against it.
Second, the USAO did not give KPMG the comfort it sought. To the contrary, it deliberately, and consistent with DOJ policy, reinforced the threat inherent in the Thompson Memorandum. It placed the issue of payment of legal fees high on its agenda for its first meeting with KPMG counsel, which emphasized the prosecutors' concern with the issue. Mr. Weddle raised the issue and then repeatedly focused on KPMG's "obligations," thus clearly *353 implying consistent with the language of the Thompson Memorandum that compliance with legal obligations would be countenanced, but that anything more than compliance with demonstrable legal obligations could be held against the firm. Ms. Neiman's statement, in response to a comment about payment of legal fees by KPMG, that misconduct should not be rewarded quite reasonably was understood in the same vein, whatever its intent. And Mr. Weddle's colorful warning that the USAO would look at any discretionary payment of fees by KPMG "under a microscope" drove the point home.
Third, the government conducted itself in a manner that evidenced a desire to minimize the involvement of defense attorneys. This objective arguably is inherent, to some degree, in the Thompson Memorandum itself. But there is considerably more proof, specific to this case, here. The contretemps with KPMG over its Advisory Memorandum demonstrated the government's desire, wherever possible, to interview KPMG witnesses without their being represented by lawyers. The USAO's ready acceptance of KPMG's offer to cut off payment of legal fees for anyone who was indicted speaks for itself. It speaks even more eloquently when one considers that the USAO accepted KPMG's assurance that it had no legal obligation to pay legal fees, knowing that (1) KPMG's "common practice" had been to make such payments, (2) KPMG was extremely anxious to curry favor with the USAO by demonstrating how cooperative it could be, and (3) KPMG had an obvious conflict of interest with its present and former personnel on the question whether it had a legal obligation to pay fees. Had the government been less concerned with punishing those it deemed culpable right from the outset, it would not have accepted KPMG's word on this point.
Fourth, KPMG's decision to cut off all payments of legal fees and expenses to anyone who was indicted and to limit and to condition such payments prior to indictment upon cooperation with the government was the direct consequence of the pressure applied by the Thompson Memorandum and the USAO. Absent the Thompson Memorandum and the actions of the USAO, KPMG would have paid the legal fees and expenses of all of its partners and employees both prior to and after indictment, without regard to cost.[97]
Discussion
I. The Relationship Between KPMG and its Personnel With Respect to Advancement of Legal Fees and Defense Costs
A. Indemnification and Advancement Generally
The issue of employer payment of legal expenses incurred by their employees as a result of doing their jobs arises in a context that dates back many years.
In the nineteenth century, Justice Story stated what already was an established proposition: "if an agent has, without his own default, incurred losses or damages in the course of transacting the business of his agency, or in following the instructions *354 of his principal, he will be entitled to full compensation therefor" from the employer.[98] The modern common law rule is the same. And it extends to payment of expenses incurred by an employee or other agent in defending a lawsuit on a claim with respect to which the employee is entitled to indemnity.[99]
The success of the corporation as a business form brought growing pains. Lawsuits against corporate directors became ever more common. By the early part of the last century, the situation had become what one commentator described as "open season on directors."[100] The question whether directors who successfully defended such suits were entitled to be reimbursed for the expenses of defending such suits despite the fact that they often were not employees began to arise.
At least one early decision favored reimbursement, commonly called indemnification.[101] In the 1930s, however, courts in Ohio and New York came to the opposite conclusion.[102] These decisions gave rise to a "not unnatural cry for legislation."[103] Taking the view that [i]ndemnification encourages corporate service by capable individuals by protecting their personal financial resources from depletion [as a result of] . . . litigation that results by reason of that service,"[104] legislatures all over the country responded.
Today, all states have statutes addressing the indemnification of corporate directors, officers, employees, and other agents.[105] Many have adopted also statutes providing for indemnification of members and employees of partnerships as well as of members, officers, and agents of newer forms of business organization such as limited partnerships and limited liability companies.[106] Still others also protect employees with statutes relating specifically to the employment relationship.[107]
These statutes take different forms. Some require indemnification. Some permit indemnification where the corporation or other business entity elects to provide it.[108] A few provide the exclusive vehicle *355 for indemnification while most permit indemnification as a matter of contract or otherwise as well as pursuant to statute.[109] Many provide for indemnification, at least in some circumstances, for the cost of defending employment-related criminal charges."[110] All or virtually all, however, share an additional characteristic. As the Delaware Supreme Court recently put it, "the right to indemnification cannot be established . . . until after the defense to legal proceedings has been `successful on the merits or otherwise.'"[111]
This has been viewed as a problem. Persons who are sued can be subjected to "the personal out-of-pocket financial burden of paying the significant ongoing expenses inevitably involved with investigations and legal proceedings."[112] In consequence, many states authorize business entities to advance defense costs to their personnel, subject to the recipients' obligation to repay the money in the event it ultimately is determined that they are not entitled to indemnity.[113] This has been described as "an especially important corollary to indemnification as an inducement for attracting capable individuals into corporate service."[114] Advancement "fills the gap . . . so the [entity] may shoulder . . . interim costs," and its value "is that it is granted or denied while the underlying action is pending."[115] As Judge Haight has written, it protects the "ability [of the employee] to mount . . . a defense . . . by safeguarding his ability to meet his expenses at the time they arise, and to secure counsel on the basis of such an assurance."[116]
Against this background, we turn to KPMG's relationship with the KPMG Defendants.
B. KPMG
The statute that governs KPMG gives it the authority "to indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever."[117] This includes the authority to advance defense costs prior to final judgment.[118] KPMG had an *356 unbroken track record of paying the legal expenses of its partners and employees incurred as a result of their jobs, without regard to cost. All of the KPMG Defendants therefore had, at a minimum, every reason to expect that KPMG would pay their legal expenses in connection with the government's investigation and, if they were indicted, defending against any charges that arose out of their employment by KPMG. Indeed, it appears quite possible that all had contractual and other legal rights to indemnification and advancement of defense costs,[119] although the Court declines to decide that in this ruling.
II. The Government Violated the Fifth and Sixth Amendments by Causing KPMG to Cut Off Payment of Legal Fees and Other Defense Costs Upon Indictment
A. The Right to Fairness in the Criminal Process
1. Nature of the Right
"`No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.'"[120]
*357 The Supreme Court long has protected a defendant's right to fairness in the criminal process. It has grounded this protection primarily in the Due Process Clause[121] as well as more specific provisions of the Bill of Rights, including the Confrontation and Assistance of Counsel Clauses of the Sixth Amendment.[122] Whatever the textual source, however, the Court consistently has held that criminal defendants are entitled to be treated fairly throughout the process. In everyday language, they are entitled to a fair shake.
This concern for the fairness of criminal proceedings runs throughout many of the Court's decisions regarding fair trials and access to the courts. For example, in Powell v. Alabama,[123] in which the Court first held that a defendant in a capital case has the right to the aid of counsel, it reasoned that if a tribunal were "arbitrarily to refuse to hear a party by counsel[,] it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."[124] In other words, without counsel for the defense, a capital prosecution is presumptively unfair and therefore violates due process. The implied converse is that due process requires fair proceedings.
One aspect of the required fairness protects the autonomy of the criminal defendant. It rests on the common-sense truth that, at the end of the day, it is the defendant "who suffers the consequences if the defense fails."[125] So proper respect for the individual prevents the government from interfering with the manner in "which the individual wishes to present a defense."[126] The underlying theme is that the government may not both prosecute a defendant and then seek to influence the manner in which he or she defends the case.
A defendant's right to control the manner and substance of the defense has several aspects. The defendant has the right to represent him or herself,[127] even if such a decision objectively may appear to be unwise.[128] A defendant is guaranteed also "the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire"[129] in other words, to use his or her own assets to defend the case, free of government regulation. Nor may the government interfere at will with a defendant's choice of counsel, as the Constitution "protect[s] . . . the defendant's free choice independent of concern for the objective fairness of the proceedings."[130] Similarly, a defendant is generally free, within the procedural constraints that govern trials generally, to adduce evidence without unjustified restrictions[131]*358 and may choose which witnesses to present or cross-examine.[132] In short, fairness in criminal proceedings requires that the defendant be firmly in the driver's seat, and that the prosecution not be a backseat driver.[133]
The constitutional requirement of fairness in criminal proceedings not only prevents the prosecution from interfering actively with the defense, but also from passively hampering the defendant's efforts. As the Court put it in California v. Trombetta,[134]
"Under the Due Process Clause . . ., criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed what might loosely be called the area of constitutionally guaranteed access to evidence. Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system."[135]
Hence, the prosecution may not conceal exculpatory evidence or plea agreements with key government witnesses.[136] In some instances, it may be required to disclose *359 the identity of its undercover informants in possession of evidence critical to the defense.[137]
Prosecutors are required also by the Due Process Clause to conduct themselves fairly. They may not delay intentionally indictments to prejudice defendants.[138] They may not obstruct defendants' access to a potential witness unless that is necessary to protect the witness's safety.[139] Nor may they knowingly offer perjured or false evidence.[140] Entrapment by prosecutors and law enforcement officers is proscribed by the Due Process Clause.[141] While prosecutors appropriately are given great latitude in the arguments they make to juries, they cross into unconstitutional territory when they "infect[ ] the trial with unfairness."[142]
Finally, the requirement of fairness in criminal proceedings applies to the structure and conduct of the entire criminal justice system. For example, the Court held that Dr. Sam Sheppard's due process rights were violated when the trial court failed to protect him from the firestorm of prejudicial publicity surrounding his trial.[143] It has recognized also the right to trial before an unbiased tribunal. In Ward v. Village of Monroeville,[144] for example, it held that a defendant was denied due process when he was tried for traffic offenses before the village mayor, who was responsible for village finances and whose court provided a substantial portion of village funds through fines, forfeitures, costs, and fees. Similarly, in Tumey v. Ohio,[145] the Court reversed a conviction because the judge was paid from fines levied in his court and therefore received payment only upon conviction. The Court said that such a system "deprives a defendant . . . of due *360 process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case."[146]
The Court's jurisprudence thus makes clear that defendants have the right, under the Due Process Clause, to fundamental fairness throughout the criminal process.
2. The Right to Fairness in the Criminal Process Is a Fundamental Liberty Interest Entitled to Substantive Due Process Protection Where, As Here, the Government Coerces a Third Party to Withhold Funds Lawfully Available to a Criminal Defendant
The Due Process Clause has been interpreted to provide not only procedural protection for deprivations of life, liberty, and property, but also substantive protection for fundamental rights those that are so essential to individual liberty that they cannot be infringed by the government unless the infringement is narrowly tailored to serve a compelling state interest.[147]
"Only fundamental rights and liberties which are deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty qualify for such protection."[148] The right to fairness in criminal proceedings has not been explicitly so characterized by the Court.[149] The question here, then, is whether and to what extent it properly is regarded as fundamental for purposes of requiring strict scrutiny of alleged impingements. A number of guides point the way.
To begin with, many of the Supreme Court's criminal due process decisions described above can be understood in modern terms most readily in the substantive due process and strict scrutiny framework. The requirement of an unbiased tribunal, for example, is not found in the explicit language of the Constitution. It rests in: stead on the proposition that a fair tribunal is "implicit in the concept of ordered liberty."[150] The state's legitimate interest in, for example, saving money by having the same person both run a town's finances and levy traffic fines is insufficient to justify infringing upon the right to a fair *361 trial. Thus, the Supreme Court's repeated recognition of the constitutional mandate of fairness in criminal proceedings strongly suggests that this right is "fundamental" for substantive due process purposes, at least in some circumstances. Indeed, it would be difficult to conclude otherwise. Our concern with protection of the individual against the unfair use of the great power of the government is "deeply rooted in this Nation's history and tradition."[151] "[N]either liberty nor justice would exist" if fairness to criminal defendants were sacrificed.[152] Indeed, as one court put it, "What can be more basic to the scheme of constitutional rights precious to us all than the right to fairness throughout the proceedings in a criminal case?"[153]
These considerations have led the Second Circuit[154] and several other courts (often in dicta),[155] as well as respected commentators.[156] to conclude that the right to fairness in criminal proceedings is a fundamental liberty interest subject to substantive due process protection. But it is not necessary or, in this Court's view, appropriate, to go that far in order to decide this case. It is a venerable maxim of constitutional construction that courts should decide no more than is necessary.[157] And the only question now before the Court is whether a criminal defendant has a right to obtain and use in order to prepare a defense resources lawfully available to him or her, free of knowing or reckless government interference.[158] Given all that *362 has been said above, this Court concludes that such a right is basic to our concepts of justice and fair play. It is fundamental.[159]
3. The Government's Actions Violated the Substantive Due Process Right to Fairness in the Criminal Process
a. The Effect on the KPMG Defendants
The Thompson Memorandum and the USAO pressure on KPMG to deny or cut off defendants' attorneys' fees necessarily impinge upon the KPMG Defendants' ability to defend themselves.
This is by no means a garden-variety criminal case. It has been described as the largest tax fraud case in United States history. The government thus far has produced in discovery, in electronic or paper form, at least 5 million to 6 million pages of documents plus transcripts of 335 depositions and 195 income tax returns.[160] The briefs on pretrial motions passed the 1,000-page mark some time ago.[161] The government expects its case in chief to last three months, while defendants expect theirs to be lengthy as well.[162] To prepare for and try a case of such length requires substantial resources.[163] Yet the government has interfered with the ability of the KPMG Defendants to obtain resources they otherwise would have had. Unless remedied, this interference almost certainly will affect what these defendants can afford to permit their counsel to do. This would impact the defendants' ability to present the defense they wish to present by limiting the means lawfully available to them. The Thompson Memorandum and the USAO's actions therefore are subject to strict scrutiny.
b. The Thompson Memorandum and the USAO's Actions Fail the Strict Scrutiny Test
To survive strict scrutiny, government action must be narrowly tailored to achieve a compelling government interest.[164]
*363 The portion of the Thompson Memorandum at issue here the language that states that payment of legal fees for employees and former employees may be viewed as protection of culpable employees and thus cut in favor of indicting the entity purportedly serves three goals. First, it is intended to facilitate just charging decisions concerning business entities by focusing on a consideration pertinent to gauging their degrees of cooperation. Second, it seeks to strengthen the government's ability to investigate and prosecute corporate crime by encouraging companies to pressure their employees to aid the government recall Mr. Weddle's urging KPMG to tell its people to be "totally open" with the USAO, "even if that [meant admitting] criminal wrongdoing." Finally, it seeks to punish those whom prosecutors deem culpable it attempts to justify depriving employees of corporate aid by characterizing it as "protecting . . . culpable employees and agents."
The final justification may be disposed of quickly. The job of prosecutors is to make the government's best case to a jury and to let the jury decide guilt or innocence. Punishment is imposed by judges subject to statute. The imposition of economic punishment by prosecutors, before anyone has been found guilty of anything, is not a legitimate governmental interest it is an abuse of power. The government's other points, however, are far more substantial.
Any government's interest in investigating and fairly prosecuting crime is compelling. The consequences for civilization of another government's failure to accomplish that basic end are on view on the evening news every day.
In order properly to accomplish that task, the government must have the ability to make just charging decisions and to prevent obstruction of its investigations. Hence, no one disputes the proposition that a willingness to cooperate with the government is an appropriate consideration in deciding whether to charge an entity. Nor does anyone suggest that an entity's obstruction of a government investigation what the government has called "circling the wagons"[165] should be ignored in a charging decision. Many remember the Watergate case, in which the legal fees of individuals who broke into the offices of the Democratic National Committee were paid, along with other "hush money," to buy the silence of the burglars and to protect higher-ups.[166] Corporate equivalents no doubt occur. But the devil, as always, is in the details.
The first difficulty is that the Thompson Memorandum does not say that payment of legal fees may cut in favor of indictment only if it is used as a means to obstruct an investigation. Indeed, the text strongly suggests that advancement of defenses costs weighs against an organization independent of whether there is any "circling of the wagons."[167]
*364 The USAO, possibly concerned with the breadth of the Thompson Memorandum, seeks to deal with this by asserting that, in practice, it considers the payment of legal fees as a negative factor only when payments are used to impede.[168] Perhaps so. But whatever the government may do in the privacy of U.S. Attorneys' offices and in the DOJ's Criminal Division is not what defense lawyers see. They see the Thompson Memorandum. Few if any competent defense lawyers would advise a corporate client at risk of indictment that it should feel free to advance legal fees to individuals in the face of the language of the Thompson Memorandum itself. It would be irresponsible to take the chance that prosecutors might view it as "protecting . . . culpable employees and agents." As KPMG's new chief legal officer, former U.S. District Judge Sven Erik Holmes, testified, he thought it indispensable (as would any defense lawyer) "to be able to say at the right time with the right audience, we're in full compliance with the Thompson Memorandum."[169]
The bottom line is plain enough. If the government means to take the payment of legal fees into account in making charging decisions only where the payments are part of an obstruction scheme and thereby narrowly tailor its means to its ends it would be easy enough to say so. But that is not what the Thompson Memorandum says.
The concerns do not end here. The argument that payment of legal fees to employees and former employees is relevant to gauging the extent of a company's cooperation also is problematic. There is no necessary inconsistency between an entity cooperating with the government and, at the same time, paying defense costs of individual employees and former employees. An entity may pay out of a judgment that extending this benefit will aid it in keeping and hiring competent and honest employees. It may pay in recognition that an employee caught up in an investigation, or even charged with a crime, because the employee did his or her job for the company has at least some claim to assistance, even in the absence of a legal right. In either case, however, a company may pay at the same time that it does its best to bare its corporate soul, stands at the government's beck and call to provide information and witnesses, and does a myriad of other things to aid the government and clean the corporate house. So it simply cannot be said that payment of legal fees for the benefit of employees and former employees necessarily or even usually is indicative of an unwillingness to cooperate fully. This is especially unlikely after employees have been indicted and fired, as is the situation here.
For these reasons, this aspect of the Thompson Memorandum is not narrowly tailored to achieve a compelling objective. It discourages and, as a practical matter, often prevents companies from providing employees and former employees with the financial means to exercise their constitutional rights to defend themselves. It does so in the face of state indemnification statutes that expressly permit businesses entities to provide those means because the states have determined that legitimate public interests may be served. It does so even where companies obstruct nothing and, to the contrary, do everything within their power to make a clean breast of the facts to the government and to take responsibility for any offenses they may have committed. It therefore burdens excessively the constitutional rights of the individuals whose ability to defend themselves it impairs and, accordingly, fails strict *365 scrutiny. The legal fee advancement provision violates the Due Process Clause.[170]
c. The Actions of the USAO
The actions of the USAO in this case compounded the problem that the Thompson Memorandum created.
The Thompson Memorandum says that the payment of legal fees (beyond any legal obligation) may be held against a business entity if the government views the payments as protection of "culpable employees" or as evidence of a lack of full and complete cooperation. The USAO took advantage of that uncertainty by emphasizing the threat.
Within days of receiving the criminal referral on February 5, 2004, the USAO put the payment of employee legal fees near the top of the government's agenda for the very first meeting with KPMG's lawyers. On February 25, 2004, Mr. Bennett reported that KPMG had cleaned house and pledged full cooperation with the government. But Mr. Weddle immediately raised the legal fee issue. When Mr. Bennett sought to elicit the USAO's view on that subject, the response was a reference to the Thompson Memorandum. This was followed later in the meeting by Ms. Neiman's statement, on the heels of a reference to payment of employee legal expenses, that misconduct should not be rewarded and Mr. Weddle's threat that the government would look at the payment of legal fees that KPMG was not legally obliged to pay "under a microscope." And it did all this despite the fact that it does not claim that KPMG obstructed its investigation, least of all by using the payment of legal fees to prevent employees or former employees from talking to the government or telling it the truth.
The individual prosecutors in the USAO acted pursuant to the established policy of the DOJ as expressed in the Thompson Memorandum. They understood, however, that the threat inherent in the Thompson Memorandum, coupled with their own reinforcement of that threat, was likely to produce exactly the result that occurred-KPMG's determination to cut off the payment of legal fees for any employees or former employees who were indicted and to limit and condition their payment during the investigative stage. Their actions cannot withstand strict scrutiny under the Due Process Clause because they too were not narrowly tailored to serving compelling governmental interests.
B. The Sixth Amendment Right to Counsel
1. The Nature and Scope of the Right to Counsel
Quite apart from the due process analysis, the KPMG Defendants argue that the Thompson Memorandum and its implementation by the government infringed *366 their Sixth Amendment right to counsel. They are correct.
The Sixth Amendment provides that "Mil all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence."[171] As already has been demonstrated, however, this guarantees more than the mere presence of a lawyer at a criminal trial. It protects, among other things, an individual's right to choose the lawyer or lawyers he or she desires[172] and to use one's own funds to mount the defense that one wishes to present.[173] Moreover, a defendant's exercise of his Sixth Amendment right to counsel is not to be feared or avoided by the government:
"No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise those rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, there is something very wrong with that system."[174]
The government nevertheless argues that the KPMG Defendants have no Sixth Amendment rights at stake here for two principal reasons.
a. Attachment of Sixth Amendment Rights
The government first argues that the Sixth Amendment right to counsel attaches only upon the initiation of a criminal proceeding. As the Thompson Memorandum was adopted and the USAO did its handiwork before the KPMG Defendants were indicted, it contends, there was no Sixth Amendment violation.
It is true, of course, that the Sixth Amendment right to counsel typically attaches at the initiation of adversarial proceedings at an arraignment, indictment, preliminary hearing, and so on.[175] But the analysis can not end there. The Thompson Memorandum on its face and the USAO's actions were parts of an effort to limit defendants' access to funds for their defense. Even if this was not among the conscious motives, the Memorandum was adopted and the USAO acted in circumstances in which that result was known to be exceptionally likely. The fact that events were set in motion prior to indictment with the object of having, or with knowledge that they were likely to have, an unconstitutional effect upon indictment cannot save the government. This conduct, unless justified, violated the Sixth Amendment.[176]
The government argues that this conclusion will open the door for future defendants to argue that all sorts of pre-indictment actions violate the Sixth Amendment and thus hamstring every investigation and prosecution. This is singularly unpersuasive. The government here acted with the purpose of minimizing these defendants' access to resources necessary to mount their defenses or, at least, in reckless disregard that this would be the likely *367 result of its actions. In these circumstances, it is not unfair to hold it accountable.
b. "Other People's Money"
The government next argues that the KPMG Defendants have no right, under the Sixth Amendment or otherwise, to spend "other people's money" on expensive defense counsel. The rhetoric is appealing, but the characterization of the issue and therefore the conclusion are wrong.
The argument is based on Caplin & Drysdale, Chartered v. United States[177] and United States v. Monsanto,[178] which held that the Sixth Amendment does not creates a right for those in possession of property forfeitable to the United States to spend that Money on their legal defense. That is hardly surprising the money belongs to the government. But that is not the issue here.
Caplin & Drysdale recognized that the Sixth Amendment does protect a defendant's right to spend his own money on a defense.[179] Here, the KPMG Defendants had at least an expectation that their expenses in defending any claims or charges brought against them by reason of their employment by KPMG would be paid by the firm. The law protects such interests against unjustified and improper interference.[180] Thus, both the expectation and any benefits that would have flowed from that expectation the legal fees at issue now were, in every material sense, their property, not that of a third party. The government's contention that the defendants seek to spend "other people's money" is thus incorrect.
2. The Thompson Memorandum and the Government's Implementation Violated the KPMG Defendants' Sixth Amendment Right to Counsel
The KPMG Defendants have established that the government's implementation of the Thompson Memorandum impinged on their Sixth Amendment rights to counsel and to present a complete defense. Interference with these rights is improper if the government's actions are "wrongfully motivated or without adequate justification."[181] The remaining question, then, is whether justification exists.
There is not much case law on the standard to be applied in making this determination. In comparable circumstances, federal courts often have looked to the common law of torts to "enrich the [federal] jurisprudence"[182] and to provide "an *368 appropriate starting point,"[183] always keeping in mind that we do so to inform our construction of the Constitution, not to apply state tort law.[184]
The common law tort of interference with prospective economic advantage necessarily deals with the issue whether a private actor is justified in interfering in the economic relations of another. In assessing claims of justification in private settings, courts look to a series of factors including the relative importance of the interests served by the plaintiff and the defendant.[185] Making appropriate adjustments for the fact that this analysis involves the public sector, the dispositive question is whether the government's law enforcement interests in taking the specific actions in question sufficiently outweigh the interests of the KPMG Defendants in having the resources needed to defend as they think proper against these charges.
Our nation made a deliberate choice more than two centuries ago. We determined that a person charged with a crime has "the right in an adversary criminal trial to make a defense as we know it."[186] That choice rests on the premise that "partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."[187]
The Thompson Memorandum discourages and, as a practical matter, often prevents companies from providing employees and former employees with the financial means to exercise their constitutional rights to defend themselves. This is so even where companies obstruct nothing and, to the contrary, do everything within their power to make a clean breast of the facts to the government and to take responsibility for any offenses they may have committed. It undermines the proper functioning of the adversary process that the Constitution adopted as the mode of *369 determining guilt or innocence in criminal cases. The actions of prosecutors who implement it can make matters even worse, as occurred here.
The Court holds that the fact that advancement of legal fees occasionally might be part of an obstruction scheme or indicate a lack of full cooperation by a prospective defendant is insufficient to justify the government's interference with the right of individual criminal defendants to obtain resources lawfully available to them in order to defend themselves, regardless of the legal standard of scrutiny applied.
3. The KPMG Defendants Are Not Obliged to Establish Prejudice, Which in Any Case Would Be Presumed Here
The government argues the KPMG Defendants' motion nevertheless should be denied because they have not shown prejudice under Strickland v. Washington,[188] which requires a defendant seeking to overturn his or her conviction based on ineffective assistance of counsel to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[189] But the government is mistaken.
This conclusion follows from United States v. Gonzalez-Lopez,[190] a case involving a deprivation of the defendant's right to counsel of his choice. The Court there held that Strickland did not require a showing of prejudice in such a case because:
"Deprivation of the right [to counsel of choice] is `complete' when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice which is the right to a particular lawyer regardless of comparative effectiveness with the right to effective counsel which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed."[191]
Here, the violation is analogous to that at issue in Gonzalez-Lopez. The government has interfered with the KPMG Defendants' right to be represented as they choose, subject to the constraints imposed by the resources lawfully available to them. This violation, like a deprivation of the right to counsel of their choice, is complete irrespective of the quality of the representation they receive. Thus, Strickland has no bearing here.[192]
This result is consistent with common sense. Improper government conduct has created a significant risk that the KPMG Defendants' ability to present the defense they choose has been compromised. Corrective action now may well prevent that. *370 There is, in consequence, a countervailing interest in not going blindly forward with a lengthy trial, which will consume vast judicial and party resources, without dealing with the issue. No one would set out to drive across a desert with half a tank of gas, knowing that one might run out before reaching the other side, without pausing first to fill up the tank. The prudent course is to avoid the problem at the outset not to take a chance on being stranded and then having to try to figure out what to do about it.
The approach to cases involving criminal defense counsel burdened by conflicts of interest supports this conclusion. A district court that learns before trial of a possible conflict of interest between a defense attorney and a client is obliged to protect the defendant's Sixth Amendment right to unconflicted legal representation by immediately investigating the conflict and, if necessary, either obtaining a knowing and intelligent waiver from the defendant or disqualifying the conflicted attorney.[193] The rationale for doing so is simple. Prejudice is likely in conflict situations, and "such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent."[194] That rationale is fully applicable here.
Even if prejudice were relevant at this stage of the proceedings, however, the government's argument still would fail. Although Strickland generally requires convicted defendants to demonstrate that the result of the trial probably would have been different but for the ineffective assistance of counsel, this requirement does not apply where a violation resulted in a "structural defect[ ] in the constitution of the trial mechanism"[195] that "affected and contaminated the entire criminal proceeding."[196] In other words, there are two distinct types of constitutional errors: trial errors, which occur during the presentation of evidence at trial, and structural errors, which are overarching and permeate the entire proceeding.[197] As trial errors occur during the presentation of a case to the jury, they "may . . . be quantitatively assessed in the context of other evidence presented in order to determine whether" their commission "was harmless beyond a reasonable doubt."[198] Structural errors, on the other hand, "defy analysis by `harmless-error' standards."[199] They affect "[t]he entire conduct of the trial from beginning to end."[200] Prejudice "is so likely that case-by-case inquiry into prejudice is not worth the cost."[201]
*371 Structural defects exist and prejudice must be presumed where a defendant is actively or constructively denied counsel at a critical stage of the trial or where defense counsel is burdened by an actual conflict of interest.[202] Structural errors "may be present [also] on some occasions when, although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial."[203] In Powell v. Alabama, for example, the trial court, on the day of the trial, appointed an attorney from a different state who professed himself to be unfamiliar with the facts of the case and the local procedure to represent defendants in a highly publicized capital case. The Supreme Court held that the likelihood that counsel could have performed as an effective advocate in those circumstances was so remote as to render the trial inherently unfair, obviating the requirement that the defendants affirmatively demonstrate prejudice.[204]
Although the circumstances here differ from those in Powell, the government's conduct threatens to contaminate this proceeding. Properly defending this case, in all its complexity, has required, and will continue to require, substantial financial resources. The government has spent years investigating the case, presumably reviewing millions of pages of documents[205] and interviewing scores of witnesses if not more. The KPMG Defendants, however, have limited resources. Although each defendant is represented by retained counsel, the government's interference almost inevitably has affected at least some lawyer selections and, equally important, limited what the KPMG Defendants can pay their lawyers to do. At least most of them likely will be unable to afford to pay their attorneys to review all or even most of the documents the government has produced or, perhaps, to interview even a fraction of the witnesses the government has interviewed. They may not be able to afford tax experts to advise trial counsel and, if need be, answer those whom the government may present at trial.
In these circumstances, demonstrating prejudice after the fact would be all but impossible. In order to show that the trial outcome would have been different had a convicted defendant been able to afford better preparation before trial, the defendant's counsel, after conviction, would have to do the work that the defendant could not afford to have done in the first place. If the defendant could not afford to have the work done in the first place, the defendant certainly could not afford to have it done after conviction. And relying upon the possibility of counsel appointed under the Criminal Justice Act to do so, should a convicted defendant have become indigent, simply would be unrealistic. In any case, assessing the impact of pretrial omissions and errors could require extensive evidentiary proceedings. In consequence, it is *372 difficult to imagine circumstances in which an error more properly could be said to threaten to taint an entire proceeding.
This conclusion too is supported by Gonzalez-Lopez. Speaking of a deprivation of the right to counsel of choice, the Supreme Court wrote:
"We have little trouble concluding that erroneous deprivation of the right to counsel of choice, `with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as "structural error."` Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of those myriad aspects of representation, the erroneous denial of counsel bears directly on the `framework within which the trial proceeds,' or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe."[206]
The same reasoning applies here. Virtually everything the defendants do in this case may be influenced by the extent of the resources available to them. There simply would be no way to know, after the fact, whether the outcome had been influenced by limitations improperly placed upon the availability of resources.
Further, the government's interference in the KPMG Defendants' ability to mount a defense "creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general."[207] This injury to the criminal justice system is not dependent on whether or not the KPMG Defendants ultimately are convicted or more to the point whether they would have been convicted even if the government had not interfered with their constitutional right to counsel.
Accordingly, there is no need for a particularized showing of prejudice here. While a defendant does not have a constitutional right to the most expensive lawyer or to unlimited defense funds, government interference with those resources that a defendant does have or legally may obtain fundamentally alters the structure of the adversary process. As the late Judge Wyzanski explained, although "`a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.'"[208]
The considerations that support a presumption of prejudice the government's responsibility for the problem and the ease with which the trial court can detect and remedy that problem prior to trial both *373 are present here. The government is responsible for the infringement of the KPMG Defendants' rights. The problem has been detected, and it probably is susceptible of cure before trial. Were the Court to refrain from seeking to remedy the problem now, it would abdicate its responsibility to safeguard defendants' constitutional rights.
III. It is Premature to Consider the Government's Actions With Respect to Payment of Legal Expenses Incurred Before Indictment
The KPMG Defendants argue also that the government's actions with respect to advancement of legal fees interfered with their rights prior to indictment. But the pre-indictment interference must be evaluated in a very different context.
To begin with, the legal analysis differs. The Sixth Amendment attaches only upon indictment. Actions by the government that affected only the payment of legal fees and defense costs for services rendered prior to the indictment therefore do not implicate the Sixth Amendment. Any relief must be grounded in the Due Process Clause alone.
Second, the impact of the government's actions was quite different. KPMG paid attorneys' fees prior to indictment for all of the KPMG Defendants on condition that the employees cooperate with the government. There is no suggestion that any defendant reached the $400,000 cap save Mr. Stein, and KPMG ignored the $400,000 ceiling in his case until very late in the day. In consequence, there is no reason to suppose that the ability of any of the KPMG Defendants to undertake activities designed to ward off an indictment was impaired by the government's actions save in one respect at least some of the KPMG Defendants made proffers to the government that they conceivably would not have made had they not been induced to do so by the threat of having payment of their legal fees cut off. These proffers are of significance only if they may be used at trial, either on the government's case in chief or, perhaps more importantly, to cross examine a defendant who testifies on the defense case. This has an important consequence.
The Supreme Court has made clear that remedies for constitutional violations "should be tailored to the injury suffezed . . . and should not unnecessarily infringe on competing interests," including the interest in the administration of criminal justice.[209] Its "approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial."[210] Hence, if the government's pressure on KPMG ultimately resulted in improperly coerced statements, the matter may be fully redressed by suppression of the statements.
The question whether the statements should be suppressed is before the Court on another motion by the KPMG Defendants that has not yet been fully briefed. Accordingly, it would be premature to address it here.
IV. The Remedy
The next question concerns the appropriate remedy for the violation of the KPMG Defendants' constitutional rights. Defendants ask the Court to dismiss the indictment or to order payment of their legal fees either by the government or by KPMG. The government argues that any relief should be limited to requiring KPMG *374 to consider anew whether it wishes to advance expenses to the defendants, now free of the threat of government retaliation by virtue of the government's recent statement that it does not object to KPMG doing as it pleases.
The Court rejects the government's alternative. The government's belated statement that KPMG may do as it wishes without government retribution is not sufficient to put the KPMG Defendants in the position they would have enjoyed had the government not interfered with the advancement of defense costs in the first place. It ignores altogether the Court's finding that KPMG would have advanced defense costs absent the government's interference. It ignores KPMG's possible interest in not being seen to reverse course and thus as admitting that it caved in to government pressure in this respect at the expense of individual members and employees of the firm. It ignores also the fact that circumstances have changed dramatically since KPMG, under government pressure, decided in 2004 to cut off anyone who was indicted. KPMG has yielded to the government's demand that the firm pay a fine of $456 million. The individual defendants have been indicted on charges the full scope of which may not previously have been foreseeable to KPMG. Thus, the defense costs that KPMG is being asked to advance perhaps are larger than might earlier have been foreseeable. The resources available to pay them have been reduced. Accordingly, the Court is not persuaded that the damage the government has done can be remedied by now leaving KPMG to do as it pleases. So the Court moves on to the appropriate remedies for the government's actions.
As discussed above, remedies for constitutional violations should be tailored narrowly to the injury suffered.[211] Dismissal of an indictment on the grounds of prosecutorial misconduct is an "extreme and drastic sanction"[212] that should not even be considered unless it is otherwise "impossible to restore a criminal defendant to the position that he would have occupied" but for the misconduct.[213]
The KPMG Defendants can be restored to the position they would have occupied but for the government's constitutional violation if defense costs already incurred and yet to be incurred are paid. Indeed, although the KPMG Defendants have not conceded that dismissal would be inappropriate as long as they are put in funds for their defense, they have devoted most of their attention to monetary relief. In consequence, consideration of dismissal of the indictment would be premature prior to exhaustion of all possible courses that could lead to that outcome.
A. Monetary Relief Against the Government Is Precluded by Sovereign Immunity
The first avenue suggested is an order directing the government to pay. But the KPMG Defendants immediately run into the doctrine of sovereign immunity.
"Absent an express waiver of sovereign immunity, money awards cannot be imposed *375 against the United States."[214] Only Congress may waive sovereign immunity, and it may do so only through unequivocal statutory language.[215]
The KPMG Defendants first contend that monetary sanctions against the government pursuant to the Court's supervisory powers would not be money damages and therefore are not barred by sovereign immunity. But they point to no statute that specifically waives sovereign immunity from monetary sanctions imposed pursuant to supervisory power of the federal courts. They imply instead that supervisory powers automatically trump sovereign immunity, even absent a waiver.
A number of federal courts have addressed the interplay between sovereign immunity and the judiciary's power to impose monetary sanctions for litigation abuse.[216] Although the Second Circuit has not reached the precise question, the First Circuit's analysis in United States v. Horn[217] is instructive. There, the district court had used its supervisory powers to order the government to pay the defendants' legal fees and costs as punishment for prosecutorial misconduct. The First Circuit, however, reversed, explaining that "sovereign immunity ordinarily will trump supervisory power in a head-to-head confrontation" because
"supervisory powers are discretionary and carefully circumscribed; [whereas] sovereign immunity is mandatory and absolute . In other words, unlike the doctrine of supervisory power, the doctrine of sovereign immunity proceeds by fiat: if Congress has not waived the sovereign's immunity in a given context, the courts are obliged to honor that immunity."[218]*376 This Court agrees. Accordingly, monetary sanctions do not overcome sovereign immunity.
The KPMG Defendants next argue that the Federal Tort Claims Act[219] (the "FTCA") and the Administrative Procedure Act[220] (the "APA") waive sovereign immunity. Each, however, waives sovereign immunity only for certain civil actions against the government[221] Neither deals with sanctions for prosecutorial misconduct. The KPMG Defendants point to no case law suggesting that the FTCA and APA waivers apply in this context, and the Court is aware of none. Given the Court's obligation to construe narrowly any statutory waiver of sovereign immunity,[222] it would be inappropriate to read the FTCA or the APA as waiving the government's immunity to monetary sanctions in this case.
Accordingly, sovereign immunity bars this Court from ordering the government to pay the KPMG Defendants' legal fees.[223] This is not the end of the analysis, however. As the First Circuit explained in Horn, "[t]he fact that sovereign immunity forecloses the imposition of monetary sanctions against the federal government in criminal cases does not leave federal courts at the mercy of cantankerous prosecutors. Courts have many other weapons in their armamentarium."[224] The Court therefore turns to other options, addressing first the possibility of monetary relief against KPMG.
*377 B. Monetary. Relief May Be Available Against KPMG
The KPMG Defendants urge the Court to order KPMG to advance their defense costs. KPMG, which is not formally a party here but which has been heard in any case, resists on several grounds.
1. This Court Has Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. They have only such `judicial power as is conferred upon them by statute and, in the case of the Supreme Court, Article III of the Constitution.[225]
The Court's subject matter jurisdiction in this case rests on Section 3231 of the Criminal Code,[226] which gives "[t]he district courts of the United States . . . original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." And it is well established that a district court having subject matter jurisdiction over a federal criminal case has ancillary jurisdiction over at least some related matters.[227]
Our Circuit recently addressed the scope of ancillary jurisdiction in criminal cases in Garcia v. Teitler.[228] The question there presented was whether a district court had jurisdiction to order an attorney who had appeared and then withdrawn as counsel for the defendants, and who was not a party to the action, to return a retainer the defendants had paid him so that the defendants could retain another attorney to defend the case. The Court held that it did, writing:
"At its heart, ancillary jurisdiction is aimed at enabling a court to administer `justice within the scope of its jurisdiction.' Without the power to deal with issues ancillary or incidental to the main action, courts would be unable to `effectively dispose of the principal case nor do complete justice in the premises.' Along these lines, the Supreme Court has instructed that ancillary jurisdiction may be exercised `for two separate, though sometimes related, purposes: (1) to permit disposition of claims that are, in varying respects and degrees, factually interdependent by a single court, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees."
"Whatever the outer limits of ancillary jurisdiction may be, we hold that resolving a fee dispute after an attorney withdraws . . . is within a district court's ancillary powers, as it relates to the court's ability to `function successfully.' * * *
"Although [defendants] have been able to obtain new counsel, the record reflects that they are of limited means and that the funds paid to Teitler may be needed to pay their new counsel. In order to guarantee a defendant's right to choose his own counsel where, as here, his criminal case is ongoing, and to avoid the possibility of defendants becoming indigent and requiring the appointment of counsel, a district court must be able to exercise ancillary jurisdiction to resolve a fee dispute."[229]
*378 So too here. While the KPMG Defendants all are represented by retained counsel, the cost of mounting their defenses in this complex case is potentially very large. In order to guarantee their right to choose their own counsel, to ensure that they can afford to pay those counsel to do what they think appropriate to defend the case, and to avoid the possibility of their becoming indigent and requiring the appointment of counsel, this Court has the power to exercise ancillary jurisdiction to resolve their right to the advancement of expenses by KPMG.[230] This is confirmed by United States v. Weissman,[231] cited with approval in Garcia, in which Judge Haight exercised ancillary jurisdiction to determine whether a company that formerly employed an individual who was facing criminal charges in this Court was obliged to continue to advance the defense costs.
Accordingly, the Court holds that it has ancillary jurisdiction to determine the claims of the KPMG Defendants for advancement. As Judge Gleeson did in Garcia, the Court will direct the Clerk, as a matter of administrative convenience, to open a civil docket number for the claims of the KPMG Defendants against KPMG.[232]
2. Personal Jurisdiction, Even If It Does Not Already Exist, May Be Obtained Over KPMG
The fact that the Court has subject matter jurisdiction is not alone sufficient to proceed with the claims. KPMG objects that it is not a party to this action and that the Court lacks jurisdiction over its person.
KPMG of course is not a defendant in this case.[233] Nevertheless, it long has been well aware of these proceedings. It attended the hearing and submitted papers. But it never has been served with a summons and complaint seeking advancement of legal fees.
There is reason to question whether the lack of a summons and complaint, which ordinarily would be fatal in a garden-variety civil case,[234] should have that consequence in the unique circumstances here.[235] But it is unnecessary to go down that path, which in any case would threaten *379 to complicate and perhaps delay the important determination that may lie within this Court's province whether KPMG must at least advance defense costs to the KPMG defendants.
The KPMG Defendants, if so advised, may file a complaint in the civil file opened pursuant to this decision, obtain the issuance of a summons, and serve KPMG provided they do so within 14 days of the date of this decision. The complaint may contain a prayer for declaratory relief and a request for a speedy hearing,[236] which would be appropriate in any case in view of the fact that the determination of rights to advancement is made in summary proceedings[237] in order to permit the issue to be decided while the underlying case is pending.[238] Should that occur, the matter *380 would proceed expeditiously.[239]
C. Possible Dismissal and Other Remedies
A summary advancement proceeding is not the only means by which the KPMG Defendants might be restored to the position they would have occupied had the government not interfered improperly with their prospects for advancement of defense costs.
The government has substantial influence and, almost certainly, power over KPMG by virtue of the cooperation clauses in the DPA. It may well be in its interest to use that influence or power to cause KPMG to advance the defense costs.[240]
Nor is KPMG lacking in incentives, if it needs them, to aid the government in solving the problem the government created for itself. The government now may seek to use its leverage against KPMG to cause KPMG to advance defenses costs in order to avoid any risk of dismissal of this indictment or other unpalatable relief. Moreover, KPMG may conclude that obstruction of the efforts of its former partners and employees to obtain advancement of defense costs, or even a prompt adjudication of their right to such advancement, would not further its interest in recruiting and retaining top flight personnel.
Thus, there are at least two possibilities for resolving the issue of advancement of defense costs. KPMG, either on its own or at the government's urging or insistence, may advance the defense costs. Alternatively, the KPMG Defendants may succeed in obtaining an advancement order in a summary proceeding before this Court. In either event, the effect of the government's unconstitutional interference would have been remedied or, at least, mitigated substantially. Should that come to pass, the possibilities of dismissal of the indictment and other remedies likely would appear in a different light. In consequence, the Court declines to consider additional relief at this time, although it may do so in the future if KPMG does not, for one reason or another, advance defense costs.
V. Some of the Actions of the USAO in Response to the Motion Were Not Appropriate
The foregoing discussion of remedies is addressed solely to the unconstitutional interference *381 with the KPMG Defendants' prospects of obtaining advancement of defense costs from KPMG. One matter remains the actions of the USAO in resisting this motion.
The Court begins from a widely held premise. We long have been well-served by the United States Attorney's office for this district and by the many lawyers who have served in it with great distinction. It is a model for the nation.[241] While the office's actions in this case with respect to the advancement of attorneys' fees contributed to an unconstitutional result, they were consistent with policies established in Washington. Moreover, they occurred at a time when the propriety of those policies had not previously been addressed by any court. The Court declines to chastise the office or its members further on the basis of those actions. There is, however, one matter that should be addressed.
The government was economical with the truth in its early responses to this motion. It is difficult to defend even the literal truth of the position it took in its first memorandum of law. KPMG's decision on payment of attorneys' fees was influenced by its interaction with the USAO and thus cannot fairly be said to have been a decision "made by KPMG alone," as the government represented. The government's assertion that the legal fee decision was made without "coercion" or "bullying" by the government can be justified only by tortured definitions of those terms. And while it is literally true, as Mr. Weddle wrote in his later declaration, that the government did not "instruct" or "request" KPMG to do anything with respect to legal fees, that was not the whole story. Those submissions did not even hint at Ms. Neiman's "rewarding misconduct" comment or at Mr. Weddle's statement that the USAO would look at the payment of legal fees "under a microscope." In addition, they soft-pedaled the government's use of KPMG's willingness to cut off payment of legal fees to pressure KPMG personnel to waive their Fifth Amendment rights and make proffers to the government. Those omissions rendered the declaration and the brief that accompanied it misleading.
Every court is entitled to complete candor from every attorney, and most of all from those who represent the United States. These actions by the USAO are disappointing. There should be no recurrence.
Conclusion
The Thompson Memorandum's treatment of advancement of defense costs no doubt serves the government's interest in obtaining criminal convictions in complex business cases. So too the actions of the USAO in this case. But the government's proper concern is not with obtaining convictions.
As a unanimous Supreme Court wrote long ago, the interest of the government "in a criminal prosecution is not that it shall win a case, but that justice shall be done."[242] Justice is not done when the government uses the threat of indictment a matter of life and death to many companies and therefore a matter that *382 threatens the jobs and security of blameless employees[243] to coerce companies into depriving their present and even former employees of the means of defending themselves against criminal charges in a court of law. If those whom the government suspects are culpable in fact are guilty, they should pay the price. But the determination of guilt or innocence must be made fairly not in a proceeding in which the government has obtained an unfair advantage long before the trial even has begun.
The motions of the KPMG Defendants to dismiss the indictment or for other relief are granted only to the extent that:
1. The Court declares that so much of the Thompson Memorandum and the activities of the USAO as threatened to take into account, in deciding whether to indict KPMG, whether KPMG would advance attorneys' fees to present or former employees in the event they were indicted for activities undertaken in the course of their employment interfered with the rights of such employees to a fair trial and to the effective assistance of counsel and therefore violated the Fifth and Sixth Amendments to the Constitution.
2. The government shall adhere to its representation that any payment by KPMG of the defense costs of the KPMG Defendants is acceptable to the government and will not be considered in determining whether KPMG has complied with the DPA or otherwise prejudice KPMG.
3. The Clerk shall open a civil docket number to accommodate the claims of the KPMG Defendants against KPMG for advancement of defense costs should they elect to pursue them. If they file a complaint within 14 days, the Clerk shall issue a summons to KPMG. The Court in that event will entertain the claims pursuant to its ancillary jurisdiction over this case.
The motions are denied insofar as they seek monetary sanctions against the government. The Court reserves decision as to whether to grant additional relief.
The foregoing constitute the Court's findings of fact and conclusions of law.
SO ORDERED.
NOTES
[1] U.S. CONST amend. V (Due Process Clause).
[2] U.S. CONST amend. VI.
[3] Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
[4] The existence of this right is not a product of charitable instincts. The law long has recognized that litigation can be expensive and that it could prove difficult to obtain the services of competent employees unless they are protected against the cost of lawsuits that arise out of the employers' business. E.g., Homestore, Inc. v. Tafeen, 888 A.2d 204, 218 (Del.2005) (advancement of legal expenses "is actually a desirable underwriting of risk by the corporation in anticipation of greater corporate-wide rewards for its shareholders. The broader salient benefits that the public policy . . . seeks to accomplish . . . will only be achieved if the promissory terms of advancement contracts are enforced by courts even when corporate officials . . . are accused of serious misconduct") (internal quotation marks and footnote omitted).
[5] All defendants previously employed by KPMG joined in the motion.
[6] http://www.usdoj.gov/criminal/fraud/policy/ Chargingcorps.html (last visited June 23, 2006).
[7] Holder Memorandum § II, ¶ 4 (emphasis added).
The Court, with the consent of the parties, takes judicial notice of the Holder Memorandum.
[8] Id. § VI, ¶ A.
[9] Id. ¶ B (emphasis added).
[10] Id. ¶ B, n. 3.
[11] Amici point out that no major financial services firm has ever survived a criminal indictment. Brief for The Securities Industry Ass'n et al. at 6 [docket item 470] (quoting Ken Brown, et al., Called to Account: Indictment of Andersen in Shredding Case Puts Its Future in Question, WALL. Sr. J., Mar. 15, 2002, at A1).
[12] U.S. DEP'T OF JUSTICE, CRIMINAL RESOURCE MANUAL § 163 (2005) ("The Thompson Memorandum sets forth nine factors that federal prosecutors must consider in determining whether to charge a corporation or other business organization.") (available online http://www.usdoj.gov/usao/eousa/ foia_reading_room/usam/title9/crm00163.htm) (last visited June 23, 2006).
[13] Mr. Thompson was quoted in the press as having defended pressuring companies to cut off payment of defense costs for their employees on the ground that "they [the employees] don't need fancy legal representation" if they do not believe that they acted with criminal intent. Laurie P. Cohen, In the Crossfire: Prosecutors' Tough New Tactics Turn Firms Against Employees, WALL. ST. J., June 4, 2004, Al. Naturally, the Court does not consider it in deciding this matter, as it is not in evidence. It notes, however, that such a view, whether held by Mr. Thompson or anyone else, would be misguided, to say the least.
The innocent need able legal representation in criminal matters perhaps even more than the guilty. In addition, defense costs in investigations and prosecutions arising put of complex business environments often are far greater than in less complex criminal matters. Counsel with the skills, business sophistication, and resources that are important to able representation in such matters often are more expensive than those in less complex criminal matters. Moreover, the need to review and analyze frequently voluminous documentary evidence increases the amount of attorney time required for, and thus the cost of, a competent defense. Thus, even the innocent need substantial resources to minimize the chance of an unjust indictment and conviction.
[14] United States v. KPMG LLP, 316 F. Supp. 2d 30; 31-32 (D.D.C.2004).
It appears that the IRS was conducting also a penalty promoter audit of KPMG. Tr. (Neiman) 270:8-11.
[15] STAFF OF THE PERMANENT SUBCOMM. ON INVESTIGATIONS OF THE S. COMM. ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS, THE ROLE OF PROF. FIRMS IN THE U.S. TAX SHELTER INDUS. 1 (Comm. Print 2005) ("SENATE REPORT").
[16] Id. at 1-2.
[17] U.S. Tax Shelter Industry: The Role of Accountants, Lawyers, and Financial Professionals, Hearings Before the Permanent Subcomm. on Investigation of the S. Comm. on Governmental Affairs, 108th Cong. 2 (2003).
[18] Id. at 43.
[19] Mr. O'Kelly is deceased.
[20] Tr. (Neiman) 270:8-16.
[21] Id.
[22] U113, ¶¶ 8, 28-29; see SENATE REPORT 2.
Mr. Eischeid was placed on administrative leave and Mr. Smith transferred. Tr. (Neiman) 274:16-20.
[23] Mr. O'Kelly had selected Mr. Stein as deputy chair of KPMG. See Tr. (Loonan) 169:17-21. Although he felt compelled to ask Mr. Stein to retire, he personally negotiated the very generous terms of the severance. Id. 167:16-21; 169:23-170:7. Mr. Loonan, who worked out the terms of the written agreement with Mr. Stein's counsel (whose fee for doing the agreement ultimately was borne by KPMG), described the negotiation as "very friendly." Id. 168:23-169:16.
[24] DX 6A, ¶¶ 7, 9(a).
There were limited exceptions that are not relevant here.
[25] DX 6, ¶ 13.
The agreement provided also that, "[n]otwithstanding any other provision of [the] Agreement," if Mr. Stein were named as a defendant in any action based on his activities with the firm, KPMG would indemnify him "(through its Professional Indemnity Insurance Program)," except as to "wilful or intentional unlawful acts," to the same extent it would have done had he remained with KPMG. DX 6B, ¶ 22.
[26] The United States Attorneys' Manual explains the process as follows:
"The IRS' Criminal Investigation Division (CID) is responsible for investigating violations of the criminal provisions of the internal revenue laws, including cases falling within the General Enforcement Plea Program . . . and related violations of the criminal provisions of 18 U.S.C. CID special agents are responsible for conducting administrative investigations . . . of alleged criminal violations arising under the internal revenue laws.
"Upon concluding an administrative investigation, a special agent recommending prosecution must prepare a special agent's report (SAR) that details the investigation and the agent's recommendations. After review within CID, the SAR, together with the exhibits, is reviewed by District Counsel . . . When prosecution is deemed warranted, District Counsel prepares a criminal reference letter (CRL) and refers the matter . . . either to the Tax Division or, in those circumstances when direct referral of certain classes of cases is authorized, to the United States Attorney . . . The CRL discusses the nature of the crime(s) for which prosecution is recommended, the evidence relied upon to prove it, technical aspects and anticipated difficulties of prosecution, and the prosecution recommendations themselves." U.S. DEPT OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL § 6-4.110 (1997) (hereinafter "UNITED STATES ATTORNEYS' MANUAL"). See also id. § 6-4.122. It appears that the decision whether to prosecute complex tax matters referred by the IRS is made by the Tax Division of the DOJ. Id. 6-4.212, subd. 1.
[27] Tr. (Loonan) 129:23-130:18.
[28] Tr. (Neiman) 264:9-266:6, 268:3-9.
[29] UNITED STATES ATTORNEYS' MANUAL § 9-11.151.
[30] Tr. (Okula) 85:22-25, 92:25-93:12; K159-84; Docket item 524 (letter, Stanley J. Okula, May 22, 2006). It appears that the letters were hand-delivered between February 18 and 26, 2004, with most delivered by February 20, 2004. Id.
[31] Tr. (Okula) 66:15-19.
[32] Id. 63:23-64:21; see id. (Neiman) 282:17-283:16.
[33] U6; U98.
[34] Id. (Neiman) 269:19-271:12.
[35] Id. 271:13-272:10.; id. (Pilchen) 23:4-7, 32:25-33:2; U113 ¶ 23.
Mr. Weddle asked also for copies of KPMG's partnership agreement and bylaws. K313; U105.
[36] The Court includes KPMG partners in the term "employees" for ease of expression.
[37] Id.; Tr. (Pilchen) 23:8-12; K313.
[38] Id. 23:12-15; id. (Okula) 75:20-76:1.
[39] K313; U105; U116 ¶¶ 24-25; Tr. (Neiman) 273:13-17; id. (Pilchen) 24:6-19.
[40] U116, ¶¶ 27-30; Tr. (Neiman) 274:4-25.
[41] Tr. (Neiman) 274:3-8; id. (Okula) 110:3-5; U106, ¶ 26; U116, ¶ 28.
[42] U117, ¶ 31; K313.
[43] U117, ¶ 31; U106, ¶ 27; K313
[44] E.g., Tr. (Neiman) 275:3-10; id. (Pilchen) 21:12-23:16: id. (Okula) 114:13-115:2.
[45] According to Ms. Neiman, she said "that the federal sentencing guidelines specifically address in its corporate compliance section the issue of providing discipline for people who engage in misconduct, and [that KPMG] can't reward misconduct and you have to be mindful of that." (Tr. (Neiman) 275:3-10) The Court assumes that this was what went through her mind and does not question the sincerity of the testimony. The contemporaneous notes and subsequent memorandum of the government's designated note taker and the contemporaneous notes of a Skadden partner, however, do not refer to corporate compliance and contain the word "guidelines" without specifying sentencing guidelines or the Thompson Memorandum. U106, ¶ 28; U117, ¶ 31; K313. The Court is not persuaded that Ms. Neiman, whatever she had in mind, referred to the sentencing guidelines or to corporate compliance. She said, without elaboration, that misconduct cannot or should not be rewarded under federal guidelines. It is no stretch to conclude that this remark was taken by those who heard it as a reference to the Thompson Memorandum. In fact, KPMG's present chief legal officer, former U.S. District Judge Sven Erik Holmes, referred in a different context to the Thomson Memorandum as the "Thompson Guidelines" in a civil deposition. Docket item 544, Ex. B, at 74-75.
[46] The government's post-hearing brief attempts to support Ms. Neiman's claim that she referred to the federal sentencing guidelines, not to the Thompson Memorandum, and that she was speaking at the time of corporate compliance programs. It maintains that "Ms. Neiman consistently refers to the Sentencing Guidelines when lecturing on the issues of corporate compliance programs and cooperation" and appends a copy of a lecture she gave on the subject that referred to the sentencing guidelines. Docket item 510 at 20; id. Ex. A. It attaches also a copy of an interview with former Deputy Attorney General Comey regarding waiver of privileges by corporate entities under the Thompson Memorandum. In light of these materials, it maintains, the Court should find that Ms. Nieman referred to the sentencing guidelines and that her warning against rewarding misconduct was intended to encourage KPMG to take appropriate personnel actions against culpable employees and not as a reference to payment of legal fees. Id. at 21-23; id. Ex. B.
The Court declines to consider the appended material. The government could have sought to examine Ms. Neiman about her lecture at the hearing and could have called Mr. Comey as a witness. It did neither. To consider these materials, first submitted after the conclusion of the hearing, would deprive the KPMG Defendants of the right to cross-examine. Even more important, the documents are not probative, and at least not strongly so, of what Ms. Neiman said to KPMG in the February 25, 2004 meeting and what KPMG understood from her comment. Accordingly, they would not alter the result even if the Court considered them.
[47] U106.
[48] U117.
[49] K313.
[50] K316-17; cf. Tr. (Michael) 44:9-45:17.
[51] Tr. (Okula) 124:24-125:13.
This testimony was given with respect to the IRS agent's note of Ms. Neiman's remark to the effect that misconduct should not be rewarded. U106. That note came immediately after a note of a statement by Mr. Bennett that he felt it was "in the best interests of KPMG for it's [sic] people to get attorneys that will cooperate with Go[vt]" and that he wanted to "save the firm." Id.
Elsewhere in his testimony, Mr. Okula implied that he believed that Ms. Neiman's remark was a comment on the fact that Mr. Stein had been "let go with a severance package that exceeded $8 million or $10 million," which Mr. Okula thought inconsistent with an attempt by Skadden to claim credit for taking aggressive personnel action. Tr. (Okula) 115:3-13. This testimony, the Court finds, was mistaken.
The parties have stipulated that KPMG did not produce Mr. Stein's severance agreement to the government until recently. Tr. 181:18-24; see also Weddle Decl. [docket item 435] ¶ 7. Moreover, at an August 4, 2004 meeting, Karen Seymour, chief of the criminal division of the USAO, told Skadden that "KPMG's employment actions to grant rich severance packages without making statements to the public, or privately to its employees, of the wrongdoing that went on" was a "troubling issue under the 'Thompson Memo.'" U72; see Tr. (Loonan) 154:22-155:20. Notes of the meeting produced by the government indicate that Mr. Weddle was "very upset about this." U51. It is difficult to see why the size of Mr. Stein's severance package would have provoked such a response in August 2004 if, as Mr. Okula suggested, its terms had been disclosed in February. In all the circumstances, the Court finds that the government was unaware at the time of the February 25, 2004 meeting of the financial arrangements between Mr. Stein and KPMG.
[52] K314 (emphasis in original).
This comment appears only in Mr. Pilchen's notes, and no witness at the hearing had any present recollection of it. Nevertheless, Mr. Pilchen testified that his notes were an effort "to record [his] impressions and recollections of what was being said." Tr. 19:16-17. The notes specifically attribute the remark to Mr. Weddle, which is not consistent with their being a recordation of a subjective thought by Mr. Pilchen. Mr. Pilchen underlined them. In light of the memorable language and these additional circumstances, the Court finds that Mr. Weddle made the comment.
[53] Mr. Okula frankly admitted that it was his personal view that KPMG should not pay the fees. Tr. (Okula) 69:1-4.
[54] KPMG was blatantly self-interested on this point. While the Thompson Memorandum countenances compliance with legal obligations to advance fees, KPMG had an interest in avoiding advancement of fees if its legal obligation to do so might be questioned, as the government might view advancement of fees as protecting culpable personnel. Those of its partners and employees who were or might become subjects of the investigation, on the other hand, had an interest in taking the broadest possible view of KPMG's legal obligations.
In these circumstances, it is of more than passing interest that the government, which knew or at least was chargeable with knowledge of this obvious fact, appears to have made no effort to verify KPMG's claim beyond asking for and presumably reading the partnership and by-laws. There is no evidence, for example, that it ever inquired into exactly what KPMG's practices had been in this regard.
Nor did the government question the obvious conflict of interest manifest in Skadden's offer to recommend as counsel to targeted KPMG employees "law firms that were familiar with these types of proceedings and who understood that cooperation with the government was the best way to proceed." U119, ¶ 56; U106. Cooperation may have been the best way for KPMG to proceed, but it was not necessarily best for its employees. Skadden's effort to curry favor with the government by offering to seek to compromise the interests of KPMG's employees by inducing them to retain counsel who would serve KPMG's interest in cooperating and the government's apparent failure to take issue with it both are quite disturbing.
[55] U30.
[56] U316-17; Tr. (Michael) 41:16-44:8.
[57] U318-19; Tr. (Michael) 45:22-50:12.
[58] K5-16.
[59] Id. at 15-16.
[60] Id. at 16 (emphasis added).
[61] Skadden sent a copy to the government on the same day. K270.
[62] K271-73; Tr. (Loonan) 145:2-149:22.
The memorandum indicated also that KPMG would "be responsible for the payment of reasonable fees and related expenses in connection with . . . representation regarding this investigation." K271-73, at 272. The failure to indicate that payment of legal fees would cease if the recipient were charged or to refer to the $400,000 cap apparently is attributable to the fact that those limitations were contained in letters sent to counsel for persons who already had received subject letters from the government while the advisory memorandum went to a broader group.
[63] Tr. (Loonan) 149:23-150:1.
[64] K275-77.
[65] U276 (emphasis added).
[66] U294-308, at U299 (emphasis added).
The USAO's demand was a focus of a meeting or telephone call with Skadden on March 29, 2004. Mr. Bennett protested that it had sent out memoranda such as those that had been sent on behalf of KPMG in other matters without objection. He emphasized that KPMG would not even pay attorneys' fees unless its personnel agreed to cooperate and that it would cut off payments to KPMG personnel who invoked the Fifth Amendment. Nevertheless, he ultimately acquiesced in the government's demands, stating that KPMG was in the process of sending out in "Q & A format" a "more balanced approach." K321.
[67] U32; see also, e.g., K30; K43.
[68] See, e.g., K30; K43; K44.1; K47; K49; K55; K56; K60; K66; K81; K127; K268; see also K68.
[69] See, e.g., K42-43; K44-44.1; K45; K51: K57-58; K61-62; K68; K76-77; see also K129 (suspending payment of legal fees and warning that payment would be discontinued entirely absent indication of cooperation from the government); K134 (same).
[70] See, e.g., K54; K68; K93; K126; K132-33; K186-90.
[71] U69-77, at U72.
[72] Id.
[73] Docket item 512, Att. A, ¶ 6.
[74] KPMG sought to explain this by suggesting that it had paid $646,000 in fees for both the criminal investigation and for civil litigation and that its representations to the government therefore may not have been inaccurate. Tr. (Loonan) 182:19-185:13. In fact, however, the parties later stipulated that KPMG paid $646,757.80 in Mr. Stein's legal fees for the criminal investigation alone. Docket item 512, Att. A, ¶ 5.
[75] The record is unclear as to exactly when the government learned the economic terms of the severance packages with Messrs. Stein and others, although it certainly was aware by August 2004 of the fact that they were sizeable. KPMG's Mr. Loonan testified that the government at some point was told the size of Mr. Stein's package, but he did not say when. In any case, his testimony leaves considerable doubt as to whether he had personal knowledge of the facts. Tr. (Loonan) 180:17-25.
[76] U334-36, at 336.
[77] Tr. (Loonan) 187:15-17.
[78] Docket item 544, Ex. B, at 74-75.
This civil deposition was received in evidence in this matter. Docket item 558.
[79] DX 7; Tr. (Loonan) 190:22-191:4.
[80] Id. 196:13-23.
KPMG unpersuasively sought to explain the payment of almost $650,000 in legal fees as an oversight and the termination of payments as consistent with the severance agreement. It has offered no justification for terminating the consulting payments. Nor does the Court credit its benign excuses for cutting off payment of the legal fees. It did so purely to create a response for use in the event the government were to discover that KPMG had exceeded the cap on legal costs that it had told the government it had imposed.
[81] U347-51, at 349-51.
[82] United States v. KPMG LLP, 05 Crim. 0903(LAP), docket item 4 (filed Aug. 29, 2005)
[83] Id. ¶¶ 7-9 (emphasis added).
[84] The memorandum bore the names of Messrs. Weddle and Okula and two other AUSAs, in that order.
[85] Docket item 346, at 164 (emphasis added).
[86] Tr., Mar. 30, 2006, at 37.
[87] Tr., Mar. 30, 2006, at 128:19-129:7.
[88] Weddle Decl., docket item 435 (emphasis added).
[89] Docket item 432. The letter brief was signed by Mr. Weinstein. As he was not present at the February 25, 2004 meeting with Skadden and there is no evidence that he was involved in the later communications with Skadden described above, the Court assumes that his letter brief simply repeated the facts set out in Mr. Weddle's declaration and prior submissions.
[90] Docket item 432, at 2, 3 (emphasis added).
[91] Docket item 436, at 2.
[92] Docket item 547.
[93] Docket item 448.
[94] Docket item 450, 455.
[95] Tr., May 10, 2006, at 426:24-427:2.
[96] Id. at 427:15-430:23.
[97] In a brief on another motion, filed after this one was taken under submission, the government points to the Statement of Facts attached to the DPA as evidence that KPMG made the decision concerning legal fees "on its own initiative" and argues that "this decision [w]as one reached by the firm for its own reasons, not at the request or direction of the Government." Docket item 569. at 15 n. 5. Even if one put aside the fact that the government failed to offer this in evidence or make this argument on the present motion, the argument would be without merit. There is no inconsistency between KPMG making the decision "for its own reasons" and the decision having been a product of government pressure. The government pressure in fact was the reason that KPMG made the decision.
[98] JOSEPH STORY, STORY ON AGENCY § 339, at 413 (Charles P. Greenough ed. 1882).
[99] E.g., RESTATEMENT (SECOND) OF AGENCY § 438(2) & cmt. e (1958).
[100] Joseph W. Bishop, Jr., Current Status of Corporate Directors' Right to Indemnification, 69 HARV. L.REV 1057, 1058 (1956) (hereinafter "Bishop").
[101] Figge v. Bergenthal, 130 Wis. 594, 109 N.W. 581 (1906).
[102] New York Dock Co. v. McCollom, 173 Misc. 106, 16 N.Y.S.2d 844 (Sup.Ct. Onondaga Co.1939); Griesse v. Lang, 37 Ohio App. 553, 175 N.E. 222 (1931).
[103] Bishop, 69 HARV. L.REV. at 1068-69; accord, 2 AMERICAN LAW INSTITUTE, PRINCIPLES OF CORPORATE GOVERNANCE. ANALYSIS AND RECOMMENDATIONS § 7.20, Reporter's Note 1, at 278 (1994) (hereinafter "ALI"); see also Baker v. Health Mgmt. Sys., Inc., 98 N.Y.2d 80, 85, 745 N.Y.S.2d 741, 744, 772 N.E.2d 1099 (2002) (New York corporate indemnification statute enacted to overrule New York Dock).
[104] Homestore, Inc., 888 A.2d at 211.
[105] 3A WILLIAM MEADE FLETCHER, FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 1344.10 (2002 rev. vol.) (hereinafter "FLETCHER").
[106] There has been a parallel development with respect to indemnification of public officials and employees. As New York Dock pointed out, liability for suits and legal expenses incurred in their defense originally was a risk of assuming public office. 173 Misc. at 111, 16 N.Y.S.2d at 849. New York and doubtless other states have enacted statutes addressing the subject of indemnification for public officers and employees. E.g., N.Y. Pus. OFFICERS L. §§ 17-18 (McKinney 2001); see N.Y. LEGISLATIVE ANNUAL 158-59 (1981).
[107] See, e.g., CALIF. LABOR C. § 2802.
[108] See 3A FLETCHER § 1344.10, at 556-57.
[109] ALI § 7.20, Reporter's Note 3, at 279.
[110] See, e.g., 8 WEST'S DEL.CODE ANN. § 145(a); ALI § 7.20(a); see generally Pamela H. Bucy, Indemnification of Corporation Executives Who Have Been Convicted of Crimes: An Assessment and Proposal, 24 IND. L.REV. 279, 288-89 (1991).
[111] Homestore, Inc., 888 A.2d at 211 (quoting 8 WEST'S DEL. C. ANN. § 145(c)).
[112] Id.
[113] See, e.g., id.; Kaung v. Cole Nat'l Corp., 884 A.2d 500, 509-10 (Del.Sup.2005); 8 WEST'S DEL. C. ANN. § 145(e); see generally 3A FLETCHER § 1344.10, at 560-61.
[114] Homestore, Inc., 888 A.2d at 211.
[115] Kaung, 884 A.2d at 509.
[116] United States v. Weissman, No. S2 94 Crim. 760(CSH), 1997 WL 334966, at *16 (S.D.N.Y. June 16, 1997).
[117] KPMG is a limited liability partnership. Its partnership agreement is governed by the law of Delaware. 6 WEST'S DEL. C. ANN. § 15-106 (2006); K248, ¶ 19.2. The Delaware Revised Uniform Partnership Act provides that "a partnership may, and shall have the power to, indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever" subject to such standards and restrictions as are set forth in its partnership agreement. 6 WEST'S DEL. C. ANN. § 15-110 (2006). As the KPMG partnership agreement contains no such standards and restrictions, it is entirely free to indemnify its personnel.
[118] See, e.g., Senior Tour Players 207 Mgmt. Co. LLC v. Golftown 207 Holding Co. LLC, 853 A.2d 124, 126 (Del.Ch.2004); Delphi Easter Partners L.P. v. Spectacular Partners, Inc., Civ. A. No. 12409, 1993 WL 328079, at *4-*5 (Del. Ch. Aug. 6, 1993).
[119] All of the defendants save Stein, who has an express contract with KPMG, arguably are protected by a contract, implied in fact from KPMG's uniform past practice and the circumstances of the business, pursuant to which they are entitled to have their defense costs paid by KPMG. See, e.g., Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield of New Jersey, 448 F.3d 573, 582 (2d Cir.2006) (New York law); Manchester Equip. Co., Inc. v. Am. Way Moving & Storage Co., Inc., 176 F. Supp. 2d 239, 245 (D.Del.2001) (Delaware law); Cal. Emergency Physicians Med. Group v. Pacificare of Cal., 111 Cal. App. 4th 1127, 1134, 4 Cal. Rptr. 3d 583, 592 (2003) (California law). Stein's contract requires that KPMG retain on his behalf, and with his consent, "appropriate and qualified counsel" at the firm's expense if he is sued and joint representation is inappropriate, both of which are the case here. Ex. 6, ¶ 13. While KPMG argues that this obligation is limited by another provision of the contract, its position is questionable.
Quite apart from any question of contract, most of the KPMG California defendants appear to be entitled under California statutes to advancement of their defense costs. Defendants Bickham and Larson were California employees, not partners. To the extent the investigation and indictment arose in consequence of that employment, California statutes require KPMG to advance their defense costs and, unless their actions were both unlawful and "believed by them to be unlawful" at the time, to indemnify them. CALIF. LABOR C. § 2802(a) (requirement of indemnification); CALIF. CIV. C. § 2778 (indemnity includes defense costs); Jacobus v. Krambo Corp., 78 Cal. App. 4th 1096, 93 Cal. Rptr. 2d 425 (2000) (LABOR C. § 2802 requires employer to defend or pay defense costs); Alberts v. Amer. Cas. Co., 88 Cal. App. 2d 891, 899, 200 P.2d 37, 42-43 (1948) (indemnitee entitled to recover as soon as it becomes liable).
Defendant Hasting, who also was based in California, was a KPMG partner. Nevertheless, he arguably is covered by the same statutes. Hasting was a Class A partner of KPMG from July 1998 through October 2001. Under KPMG's by-laws, Class A partners were not entitled to share in the profit or required to bear a share of any losses of the firm and were ineligible to serve on the board of directors. (K0200, 1(0207) Thus, the fact that he bore the title "partner" may not be dispositive. See, e.g., Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 446, 123 S. Ct. 1673, 155 L. Ed. 2d 615 (2003); Hishon v. King & Spalding, 467 U.S. 69, 80 n. 2, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984) (Powell, J., concurring).
[120] Douglas v. California, 372 U.S. 353, 358 n. 2, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) (quoting Coppedge v. United States, 369 U.S. 438, 449, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962)) (emphasis added).
[121] U.S. CONST. amend. V, XIV.
[122] Id. amend. VI.
[123] 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).
[124] Id. at 64, 53 S. Ct. 55.
[125] Faretta v. California, 422 U.S. 806, 820, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
[126] This general rule against government interference with the defense is based on a presumption that the criminal defendant, "after being fully informed, knows his own best interests and does not need them dictated by the State." Martinez v. Court of Appeal of Cal., 528 U.S. 152, 165, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000) (Scalia, J., concurring).
[127] See, e.g., Faretta, 422 U.S. at 820-21, 95 S. Ct. 2525.
[128] See Martinez, 528 U.S. at 165, 120 S. Ct. 684 (Scalia, J., concurring).
[129] Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989).
[130] United States v. Panzardi Alvarez, 816 F.2d 813, 818 (1st Cir.1987) (internal citation and quotation omitted); see also Wilson v. Mintzes, 761 F.2d 275, 279 (6th Cir.1985) ("[R]ecognition of the right [to counsel of choice] also reflects constitutional protection of the accused's free choice").
See also United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979) (Higginbotham, J.) ("We would reject reality if we were to suggest that lawyers are a homogeneous group. Attorneys are not fungible, as are eggs, apples and oranges. Attorneys may differ as to their trial strategy, their oratory style, or the importance they give to particular legal issues. The differences, all within the range of effective and competent advocacy, may be important in the development of the defense. Given this reality, a defendant's decision to select a particular attorney becomes critical to the type of defense he will make and thus falls within the ambit of the sixth amendment.").
[131] See, e.g., Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (error to foreclose defendant's efforts to adduce evidence about the circumstances of his confession; "In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing.") (internal citation and quotation omitted).
[132] See, e.g., Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).
This is not to say, of course, that defendants are free of appropriate regulation of such matters as the order of proof, the offering of cumulative evidence, and the length of presentations. See United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S. Ct. 2557, ___ ___, ___ L.Ed.2d ___, 2006 U.S. LEXIS 5165, at *21-22 (June 26, 2006).
[133] See also, e.g., Mayer v. City of Chicago, 404 U.S. 189, 195-96, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971) (denial of free transcripts to indigent misdemeanor appellants violated due process); Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977) (due process required that prisoners have an adequate opportunity to present their claims fairly); cf. Davis v. Alaska, 415 U.S. 308, 319-20, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (Confrontation Clause required that defendant be permitted to cross-examine witness as to his juvenile criminal record; unfair to "require the petitioner to bear the full burden of vindicating the State's interest in the secrecy of juvenile criminal records").
[134] 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).
[135] Id. at 485, 104 S. Ct. 2528 (internal citations omitted).
[136] See Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); see also United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (prosecution has a constitutional duty to provide defendant with exculpatory evidence that would raise a reasonable doubt as to guilt).
[137] See Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957).
[138] See, e.g., United States v. Lovasco, 431 U.S. 783, 795 n. 17, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).
[139] See United States v. Gonzales, 164 F.3d 1285, 1292 (10th Cir.1999) (defendants have "a right to be free from prosecution interference with a witness' freedom of choice about whether to talk to the defense"); Int'l Bus. Mach. Corp. v. Edelstein, 526 F.2d 37, 44 (2d Cir.1975) (supporting "wholeheartedly" the conclusion that "constitutional notions of fair play and due process dictate that defense counsel be free from obstruction, whether it come from the prosecutor in the case or from a state official or another state acting under color of law") (quoting Coppolino v. Helpern, 266 F. Supp. 930 (S.D.N.Y.1967)); Gregory v. United States, 369 F.2d 185, 188 (D.C.Cir. 1966) (defendant denied a fair trial where prosecutor advised witnesses to the alleged crime not to speak to defense counsel outside the prosecutor's presence); see also United States v. Muirs, 145 Fed.Appx. 208, 209 (9th Cir.2005) ("[G]overnment interference with defense access to witnesses implicates due process.");.
[140] See, e.g., Briscoe v. LaHue, 460 U.S. 325, 327 n. 1, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983); Agurs, 427 U.S. at 103 & nn. 8-9, 96 S. Ct. 2392; Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); Pyle v. Kansas, 317 U.S. 213, 216, 63 S. Ct. 177, 87 L. Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 79 L. Ed. 791 (1935).
[141] See, e.g., Cox v. Louisiana, 379 U.S. 559, 571, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965); Raley v. Ohio, 360 U.S. 423, 426, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959).
[142] Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)).
[143] See Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966).
[144] 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972).
[145] 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927).
[146] Id. at 524, 47 S. Ct. 437; see also Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) ("The Due Process Clause clearly requires a "fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of his particular case." ") (internal citations and quotation marks omitted); Johnson v. Mississippi, 403 U.S. 212, 215-216, 91 S. Ct. 1778, 29 L. Ed. 2d 423 (1971) (due process violated where judge presided over a case in which one of the defendants was a previously successful litigant against him); In re Murchison, 349 U.S. 133, 137-139, 75 S. Ct. 623, 99 L. Ed. 942 (1955) (due process violated by a judge presiding over a criminal trial of a defendant who he had indicted under the state's one-man grand jury procedure).
[147] See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).
[148] Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003) (internal citations omitted).
[149] The rights thus far explicitly characterized by the Supreme Court as fundamental in this specialized sense fall into five rough categories: the rights to freedom of association, to vote and participate in the electoral process, to travel interstate, to fairness in procedures concerning individual claims against governmental deprivation of life, liberty, or property, and to privacy relating to freedom of choice in matters relating to an individual's personal life. See 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 15.7 (1999) ("ROTUNDA & NOWAK").
[150] Glucksberg, 521 U.S. at 721, 117 S. Ct. 2258 (internal citations and quotations omitted).
[151] Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977) (plurality opinion).
[152] Glucksberg, 521 U.S. at 721, 117 S. Ct. 2258 (internal citations and quotations omitted).
[153] United States v. Curran, 724 F. Supp. 1239, 1241 (C.D.Ill.1989), rev'd on other grounds, United States v. Spears, 965 F.2d 262 (7th Cir.1992), cert. denied, 506 U.S. 989, 113 S. Ct. 502, 121 L. Ed. 2d 438 (1992).
[154] See Quill v. Vacco, 80 F.3d 716, 724 (2d Cir.1996) (recognizing the right to fairness in a criminal proceeding as a fundamental liberty interest subject to substantive due process analysis), rev'd on other grounds, 521 U.S. 793, 117 S. Ct. 2293, 138 L. Ed. 2d 834 (1997).
[155] See, e.g., Doe v. Taylor Independent Sch. Dist., 15 F.3d 443, 479 n. 6 (5th Cir.1994) (dissenting opinion) ("right to fair criminal process"); Ryder v. Freeman, 918 F. Supp. 157, 161 (W.D.N.C.1996) ("fundamental fairness in the criminal process"); Boyd v. Bulala, 647 F. Supp. 781, 787 (W.D.Va.1986) ("right to fairness in the criminal process"), rev'd in part on other grounds, 877 F.2d 1191 (4th Cir.1989); Grant v. City of Chicago, 594 F. Supp. 1441, 1450 (D.C.Ill.1984) ("[a]ccess to the complete criminal process"); cf. Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 864 F. Supp. 1274, 1291 (N.D.Ga. 1994) (noting in equal protection analysis "the right to fairness in the criminal process").
[156] See 2 ROTUNDA & NOWAK § 15.7 (right to fairness in criminal process implicitly recognized by the Court as fundamental); see also, e.g., Gregory F. Intoccia, Constitutionality of the Death Penalty Under the Uniform Code of Military Justice, 32 A.F. L.REV. 395, 399 (1990) ("The Court views the right to fairness in the criminal process as fundamental and deserving of significant judicial protection."). Cf. Brad Snyder, Disparate Impact on Death Row: M.L.B. and the Indigent's Right to Counsel at Capital State Postconviction Proceedings, 107 YALE L.J. 2211, 2215 ("The two most frequently recognized fundamental equal protection rights are the right to vote and participate in elections and the right of access to the criminal process.").
[157] See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring).
[158] Indigent criminal defendants are entitled to competent defense representation. Serious questions have been raised about whether the means available for providing quality defenses for indigents are sufficient to accomplish that goal. See, e.g., New York County Lawyers' Ass'n v. New York, 196 Misc. 2d 761, 763, 763 N.Y.S.2d 397, 399 (2003) (granting declaratory relief increasing the hourly compensation for counsel assigned to represent indigents in New York State criminal cases after finding that the state had "ignore[d] its constitutional obligation to the poor by failing to increase the assigned counsel rates, [resulting] in many cases, in the denial of counsel, delay in the appointment of counsel, and less than meaningful and effective legal representation"). If these criticisms are well-founded, remedial measures are not only desirable, but constitutionally may be required. But that is a question for another day.
[159] It is crucial to note that the Court deals here with extra judicial action by the government that deliberately or recklessly tilts the playing field against a criminal defendant. Such actions have nothing in common with fair and neutral regulation of, for example, the conduct of a criminal trial, which naturally are not subjected to strict scrutiny.
[160] Anderson Decl. [docket item 561] ¶¶ 24, 27, 38-39, 41.
[161] Tr., Mar. 30, 2006, at 9:10-14.
[162] See, e.g., United States v. Stein, 428 F. Supp. 2d 138 (S.D.N.Y.2006).
[163] If one were to assume a six-month trial of 117 days and that a defendant were represented by a single lawyer, who devoted eight hours for each trial day, the cost at $400 per hour simply to attend the trial would be almost $375,000, without taking into account such other expenses as transcripts, copying, travel expenses, and the like. That figure, moreover, would be misleadingly low, as it is difficult to imagine that this case could be defended competently without spending as much time reviewing at least some of the 5 to 6 million pages of documents produced by the government and otherwise preparing as in attending the trial. It therefore is quite reasonable to assume that even a minimal defense of this case could well cost $500,000 to $1 million, if not significantly more.
[164] See, e.g., Glucksberg, 521 U.S. at 721, 117 S. Ct. 2258 (internal citations and quotations omitted).
[165] Tr. (Neiman) 292:21-293:22; see also Tr. 409:20-25.
[166] See United States v. Haldeman, 559 F.2d 31, 55-57 (D.C.Cir.1976), cert. denied, 433 U.S. 916, 97 S. Ct. 2992, 53 L. Ed. 2d 1103 (1977). See also, e.g., United States v. Locascio, 6 F.3d 924, 931-34 (2d Cir.1993) (organized crime figure's payment of legal fees for crime family members appropriate proof of criminal enterprise).
[167] The Thompson Memorandum's assessment of whether a company is cooperating includes an examination of whether "the corporation, while purporting to cooperate, has engaged in conduct that impedes the investigation." Thompson Memo at VI(A). The payment of legal fees is treated in a separate paragraph that focuses entirely on "whether the corporation appears to be protecting its culpable employees and agents." Id. at VI(B).
[168] Tr. 409:20-25.
[169] Docket item 544, Ex. B, at 74-75.
[170] It makes no difference that the Thompson Memorandum is a policy of the DOJ and implemented by the USAO rather than legislation enacted by Congress. Due process requires that government action "through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as `the law of the land.'" DuBose v. Kelly, 187 F.3d 999, 1004 (8th Cir.1999) (quoting Buchalter v. New York, 319 U.S. 427, 429, 63 S. Ct. 1129, 87 L.Ed. 1492(1943)). The government cannot avoid strict scrutiny of actions that impinge upon the fundamental right of fairness in the criminal process simply by acting through DOJ policy rather than by statute or formal regulation. See, e.g., Nicholson v. Williams, 203 F. Supp. 2d 153, 243 (E.D.N.Y.2002) ("In considering the constitutionality of the policy or practice of a state agency rather than the specific acts of individual officers, it is appropriate to apply the higher standard and stricter analysis that is applied to legislation.").
[171] U.S. CONST. amend. VI.
[172] See, e.g., Wheat, 486 U.S. at 164, 108 S. Ct. 1692.
[173] Caplin & Drysdale, Chartered, 491 U.S. at 624, 109 S. Ct. 2646.
[174] Escobedo v. Illinois, 378 U.S. 478, 490, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).
[175] See Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); see also, e.g., United States v. Ash, 413 U.S. 300, 303 n. 3, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973).
[176] Cf. United States v. Harrison, 213 F.3d 1206, 1207 (9th Cir.2000) (holding that ongoing pre-indictment attorney-client relationship, of which the government was aware, invoked the Sixth Amendment as a matter of law upon indictment).
[177] 491 U.S. at 619, 109 S. Ct. 2646.
[178] 491 U.S. 600, 602, 109 S. Ct. 2657, 105 L. Ed. 2d 512 (1989).
[179] 491 U.S. at 624, 109 S. Ct. 2646.
[180] The torts of interference with prospective economic advantage and inducement of breach of contract are well known. See generally Kirch v. Liberty Media Corp., 449 F.3d 388, 399-400 (2d Cir.2006); Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97 (1956). Interference with prospective economic advantage covers interference with the ability to pursue legal remedies against another party. See, e.g., Reilly v. Natwest Mkts. Group, Inc., 178 F. Supp. 2d 420, 429 (S.D.N.Y.2001); Ripepe v. Crown Equip. Corp., 293 A.D.2d 462, 463, 741 N.Y.S.2d 64, 66 (2d Dept.2002); Curran v. Auto Lab Svc. Ctr., Inc., 280 A.D.2d 636, 637, 721 N.Y.S.2d 662, 663 (2d Dept.2001).
[181] Via v. Cliff, 470 F.2d 271, 274-75 (3d Cir.1972); accord, United States v. Morrison, 602 F.2d 529, 531 (3d Cir.1979), rev'd on other grounds, 449 U.S. 361, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981).
[182] Adickes v. S.H. Kress & Co., 398 U.S. 144, 231-32, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) (Brennan, J., concurring and dissenting) "[W]here the wrong under [Section] 1983 is closely analogous to a wrong recognized in the law of torts, it is appropriate for the federal court to apply the relevant tort doctrines . . . ").
[183] Carey v. Piphus, 435 U.S. 247, 257-58, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978); see also, e.g., Wilson v. Garcia, 471 U.S. 261, 277, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985) ("[W]e have found tort analogies compelling in establishing the elements of a cause of action under § 1983 . . . and in identifying the immunities available to defendants.") superceded by statute on other grounds as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004); Smith v. Wade, 461 U.S. 30, 34, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983) ("In the absence of more specific guidance, we looked first to the common law of torts (both modern and as of 1871), with such modification or adaptation as might be necessary to carry out the purpose and policy of [Section 1983]."); Imbler v. Pachtman, 424 U.S. 409, 418, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) ("[Section] 1983 is to be read in harmony with general principles of tort immunities and defenses, rather than in derogation of them."); Pierson v. Ray, 386 U.S. 547, 556, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967) ("[Section] 1983 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.") (internal quotation marks omitted); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995), cert. denied, 517 U.S. 1189, 116 S. Ct. 1676, 134 L. Ed. 2d 779 (1996); Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir.1994) (borrowing the elements for a claim of malicious prosecution under Section 1983 from state tort law); Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39-40 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S. Ct. 1227, 89 L. Ed. 2d 337 (1986); All Aire Conditioning v. City of New York, 979 F. Supp. 1010, 1020 n. 47 (S.D.N.Y.1997), aff'd, 166 F.3d 1199, 1998 WL 907230 (1998); C.A.U.T.I.O.N., Ltd. v. City of New York, 898 F. Supp. 1065, 1072 (S.D.N.Y.1995).
[184] Monroe v. Pape, 365 U.S. 167, 187, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).
[185] See, e.g., RESTATEMENT (SECOND) OF TORTS § 767 (1979).
[186] Faretta, 422 U.S. at 818, 95 S. Ct. 2525.
[187] Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).
[188] 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
[189] Id. at 694, 104 S. Ct. 2052.
[190] ___ U.S. ___, 126 S. Ct. 2557, 2559-60, ___ L.Ed.2d ___.
[191] Id. at, 126 S. Ct. at 2563-64.
[192] This would have been so even before Gonzalez-Lopez. Strickland by its terms applies to "[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction." Strickland, 466 U.S. at 687, 104 S. Ct. 2052. Its requirement of a showing that the result of the trial that ended in conviction would have been different but for counsel's substandard performance would have no bearing here in any case, as no trial yet has occurred. Moreover, the requirement that a convicted defendant in an ineffective assistance case demonstrate prejudice stems at least in significant part from the Court's appropriate concern with preserving the finality of convictions and with society's need to "justify reliance on the outcome of the proceeding." Id. at 692, 104 S. Ct. 2052. As there has been no trial yet, the interest in finality is not implicated.
[193] See, e.g., Wheat, 486 U.S. at 160, 108 S. Ct. 1692; United States v. Perez, 325 F.3d 115, 125-26 (2d Cir.2003); United States v. Schwarz, 283 F.3d 76, 95-96 (2d Cir.2002); United States v. Levy, 25 F.3d 146, 153 (2d Cir.1994); United States v. Fulton, 5 F.3d 605, 612-13 (2d Cir.1993); United States v. Curcio, 680 F.2d 881, 888-90 (2d Cir.1982); United States v. Scala, 432 F. Supp. 2d 403, ___ _ ___, 2006 WL 1589772, at *2-4 (S.D.N.Y. 2006).
[194] Strickland, 466 U.S. at 692, 104 S. Ct. 2052.
[195] Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).
[196] Satterwhite v. Texas, 486 U.S. 249, 257, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988); see also Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).
[197] Fulminante, 499 U.S. at 307-10, 111 S. Ct. 1246.
[198] Id. at 307-08, 111 S. Ct. 1246.
[199] Id. at 309, 111 S. Ct. 1246.
[200] Id. at 310, 111 S. Ct. 1246.
[201] Strickland, 466 U.S. at 692, 104 S. Ct. 2052 (citing Cronic, 466 U.S. at 658, 104 S. Ct. 2039); accord, Fulminante, 499 U.S. at 309-10, 111 S. Ct. 1246; see also Lainfiesta v. Artuz, 253 F.3d 151, 157 (2d Cir.2001).
[202] See, e.g., Cronic, 466 U.S. at 659 & n. 25 & n. 28, 104 S. Ct. 2039; Fulminante, 499 U.S. at 309-10, 111 S. Ct. 1246; Strickland, 466 U.S. at 692, 104 S. Ct. 2052; Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
[203] Cronic, 466 U.S. at 659-60, 104 S. Ct. 2039.
[204] 287 U.S. at 53, 53 S. Ct. 55.
[205] The government thus far has produced, in electronic or paper form, at least 5 to 6 million pages of documents plus transcripts of 335 depositions and 195 income tax returns. Anderson Decl. [docket item 561] ¶¶ 24, 27, 38-39, 41.
[206] ___ U.S. at ___ _ ___, 126 S. Ct. 2557 (internal citations omitted).
[207] Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 811, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987); see also Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954) ("[J]ustice must satisfy the appearance of justice.").
[208] Cronic, 466 U.S. at 657, 104 S. Ct. 2039 (quoting United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.1975)).
[209] United States v. Morrison, 449 U.S. at 365, 101 S. Ct. 665.
[210] Id.
[211] Morrison, 449 U.S. at 365, 101 S. Ct. 665.
[212] United States v. Rubio, 709 F.2d 146, 152 (2d Cir.1983) (internal citations omitted); see also Morrison, 449 U.S. at 366 n. 3, 101 S. Ct. 665 (citing United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966)); United States v. Estrada, 164 F.3d 619, 1998 WL 716074 (2d Cir.1998); United States v. Fields, 592 F.2d 638, 647-48 (2d Cir.1978), cert. denied, 442 U.S. 917, 99 S. Ct. 2838, 61 L. Ed. 2d 284 (1979).
[213] United States v. Artuso, 618 F.2d 192, 196-97 (2d Cir.1980), cert. denied, 449 U.S. 879, 101 S. Ct. 226, 66 L. Ed. 2d 102 (1980); see also United States v. Carmichael, 216 F.3d 224, 227 (2d Cir.2000).
[214] McBride v. Coleman, 955 F.2d 571, 576 (8th Cir.1992); see also Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686, 103 S. Ct. 3274, 77 L. Ed. 2d 938 (1983); United States v. Bodcaw Co., 440 U.S. 202, 203 n. 3, 99 S. Ct. 1066, 59 L. Ed. 2d 257 (1979); United States v. Waksberg, 112 F.3d 1225, 1227 (D.C.Cir. 1997); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994).
[215] See, e.g., United States v. King, 395 U.S. 1, 5, 89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969); Samuels, Kramer & Co. v. Comm'r of Internal Revenue, 930 F.2d 975, 983 (2d Cir.1991).
[216] See, e.g., United States v. Woodley, 9 F.3d 774, 782 (9th Cir.1993) (noting that courts may impose monetary sanctions on the government notwithstanding sovereign immunity in order to remedy the violation of a recognized right and ensure that "government attorneys maintain ethical standards," but holding that monetary sanctions were inappropriate in this case and noting that other remedies are more appropriate); Coleman Espy, 986 F.2d 1184, 1191-92 (8th Cir.1993) (sovereign immunity bars compensatory contempt sanctions against the United States); McBride, 955 F.2d at 576-77 (noting that the district court's imposition of compensatory contempt sanctions against the government likely violated the doctrine of sovereign immunity, but reversing on other grounds): Barry v. Bowen, 884 F.2d 442, 443-44 (9th Cir. 1989) (noting that the district court's imposition of compensatory contempt sanctions against the government likely violated the doctrine of sovereign immunity, but reversing on other grounds); Yancheng Baolong Biochemical Prods. Co., Ltd. v. United States, 343 F. Supp. 2d 1226, 1241 (2004) (collecting cases and holding that award of attorneys' fees against the government was barred by sovereign immunity); United States v. Prince, No. CR 93-1073(RR), 1994 WL 99231, *1-*2 (E.D.N.Y. Mar. 10, 1994) (withdrawing assessment of jury costs against U.S. Attorney's Office under court's supervisory power, in the face of a motion for reconsideration arguing constraints imposed by sovereign immunity); see also Waksberg, 112 F.3d at 1227-28 (invoking the doctrine of constitutional avoidance to defer review of the district court's finding that sovereign immunity barred the award of compensatory damages against the United States).
[217] 29 F.3d 754, 767 (1st Cir.1994).
[218] Id. at 764.
The Horn court noted also that courts have means apart from monetary sanctions by which to punish prosecutorial misconduct, including public reprimand and other equitable relief. Id. at 767.
[219] 28 U.S.C. § 1346.
[220] 5 U.S.C. § 702.
[221] The FTCA waives sovereign immunity in "civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).
The APA waives immunity in "action[s] in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority." 5 U.S.C. § 702.
[222] "Waivers of immunity must be construed strictly in favor of the sovereign and not enlarge[d] . . . beyond what the language requires." Ruckelshaus, 463 U.S. at 686, 103 S. Ct. 3274 (internal citations and quotation marks omitted); Lehman v. Nakshian, 453 U.S. 156, 161, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981). Courts must strictly construe also any limitations or conditions imposed by Congress on a particular waiver of immunity. Id. at 160-61, 101 S. Ct. 2698.
[223] The KPMG Defendants attempt to avoid this conclusion by asking the Court to order the government to pay their defense costs out of the $256 million fine it already has received from KPMG or to order KPMG to pay the $200 million final installment of the fine into the registry of the Court, where so much as is required to pay the defense costs would be distributed to the KPMG Defendants and the balance to the government. They appear to argue that either remedy would be injunctive in nature and not a monetary sanction against the government. Sovereign immunity, however, "stands as an obstacle to virtually all direct assaults against the public fisc, save only those incursions from time to time authorized by Congress." Horn, 29 F.3d at 761. The relief the KPMG Defendants have requested here would be no less an assault on the public fisc simply because it would be addressed to a fine already received by the government or monies to which the government already is entitled. Put another way, requiring the government to pay the money from a particular account or to forego revenues to which it is entitled would not make such relief any less a monetary sanction.
[224] 29 F.3d at 766.
[225] See, e.g., Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982); W.G. v. Senatore, 18 F.3d 60, 64 (2d Cir.1994).
[226] 18 U.S.C. § 3231.
[227] See Garcia v. Teitler, 443 F.3d 202, 208 (2d Cir.2006).
[228] Id.
[229] Id. at 208, 209 (internal citations omitted).
[230] The Court need not here decide whether its ancillary jurisdiction includes the power to determine whether KPMG is obliged to indemnify the KPMG Defendants or, if not, whether the KPMG Defendants would be obliged to repay any funds advanced to them. The immediate concern is with the Court's power to ensure that the KPMG Defendants, if they are entitled to it, have the means to finance the defense before this Court.
[231] 1997 WL 334966 at *9.
[232] Garcia v. Teitler, No. 04 Civ. 0832(JG), 2004 WL 1636982, *1 n. 2 (E.D.N.Y. July 22,2004), aff'd, 443 F.3d 202 (2d Cir.2006).
[233] It is a defendant in a related action in this district, that commenced by the filing of the information pursuant to the DPA. United States v. KPMG LLP, 05 Crim. 0903(LAP) (filed Aug. 29, 2005).
[234] See, e.g., Osrecovery, Inc. v. One Group Int'l, Inc., 234 F.R.D. 59, 60-61 (S.D.N.Y. 2005).
[235] Some states, at least in the past, held that a defendant who appeared in an action for any purpose consented to the exercise of personal jurisdiction, See York v. Texas, 137 U.S. 15, 11 S. Ct. 9, 34 L. Ed. 604 (1890). To ameliorate this rule, many adopted statutes or rules permitting a defendant who wished to challenge the exercise of personal jurisdiction to appear specially for that purpose alone without thereby appearing generally. See id. at 20, 11 S. Ct. 9; see also, e.g., Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir.1944). Even in such states, any action before the court beyond challenging the exercise of jurisdiction constitutes a general appearance and waives the jurisdictional objection. See, e.g., Regents of the Univ. of Calif. v. Golf Mktg., LLC, 92 Conn.App. 378, 381-82, 885 A.2d 201, 203 (2005) (party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction deemed to have made general appearance and waived all objections to defects in service, process, or personal jurisdiction) (California law) (quotation marks omitted); Davis v. Eighth Jud. Dist. of Nevada, 97 Nev. 332, 334-36, 629 P.2d 1209, 1211-12 (1981) (opposition to motion for leave to amend waived special appearance and" subjected party to personal jurisdiction), abrogated by statute as recognized in Hansen v. Eighth Jud. Dist. Ct., 116 Nev. 650, 655-56, 6 P.3d 982, 985 (2000); Woods v. Billy's Automotive, 622 S.E.2d 193, 197 (N.C.App.2005) ("[I]f a party invoked the judgment of the court for any other purpose [than contesting service of process] he made a general appearance and by so doing he subillitted himself to the jurisdiction of the court whether he intended to do so or not.") (citation and internal quotation marks omitted); Lyren v. Ohr, 271 Va. 155, 158-59, 623 S.E.2d 883, 884-85 (2006) (appearance for any purpose other than objecting to the jurisdiction is general appearance even if denominated "special"); Maryland Cas. Co. v. Clintwood Bank, Inc., 155 Va. 181, 186, 154 S.E. 492, 494 (1930) (any action by defendant, except an objection to jurisdiction, recognizing a case as in court is general appearance). The Federal Rules of Civil Procedure, and many modern state codes, go further, abolishing the distinction between general and special appearances and permitting a defendant to preserve a personal jurisdiction objection by answer or timely motion to dismiss. These rules, however, do not apply in a criminal case. It therefore is arguable that KPMG's actions before the Court constituted a general appearance and thus waived any objection to personal jurisdiction.
[236] FED.R.CIV.P. 57.
[237] See 6 WEST'S DEL.CODE ANN. § 145(k) (2006); N.Y. BUS. CORP,. L. §§ 724(a), 1319(a)(4) (McKinney 2003). See generally Steven A. Radin, "Sinners Who Find Religion": Advancement of Litigation Expenses to Corporate Officials Accused of Wrongdoing, 25 REV. LITIG. 251, 263-68 (2006) (hereinafter "Radin") (summarizing Delaware cases on summary nature of advancement proceedings).
The scope of an advancement proceeding "is limited to determining `the issue of entitlement according to the corporation's advancement provisions and not to issues regarding the movant's alleged conduct in the underlying litigation.'" Kaung, 884 A.2d at 509 (Del.2005) (quoting Homestore, Inc. v. Tafeen, 886 A.2d 502, 503 (Del.2005)). "Neither indemnification nor recoupment of sums previously advanced are appropriate for litigation in a summary proceeding" and necessarily would be reserved for subsequent proceedings, possibly in another forum. Radin, 25 REV. LITIG. at 265-66. In any case, although it is unnecessary to decide the issue now, it is questionable whether the Court's ancillary jurisdiction extends beyond determining the right to advancement.
There is no jurisdictional obstacle to a federal court determining advancement under state law. See, e.g., Truck Components Inc. v. Beatrice Co., 143 F.3d 1057, 1061 (7th Cir.1998).
[238] The Federal Rules of Criminal Procedure state that they "are to be interpreted for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay." FED. R.CRIM.P. 2. Likewise, the Federal Rules of Civil Procedure, which govern "all suits of a civil nature," are to "be construed and administered to secure the just, speedy, and inexpensive determination of every action." FED R.CIV P. 1. Accordingly, the Court will treat the papers already filed by the KPMG Defendants as a motion for an order directing KPMG to advance the defense costs reasonably incurred and to be incurred by them from the date of the indictment forward. It will consider the papers already filed by KPMG as an opposition to that motion. KPMG may file such additional response as it wishes within 14 days after the date of service of any summons and complaint.
[239] The Court is mindful of KPMG's contention that those of the KPMG Defendants who were partners in the firm are obliged by the partnership agreement to arbitrate the issue of advancement. Assuming that the KPMG Defendants pursue relief against KPMG and that KPMG remains insistent upon its alleged arbitration remedy, the questions whether the arbitration clause properly is so construed and, if so, whether it is void as against public policy to the extent that it would foreclose an advancement determination in a criminal case by the court in which the indictment is pending will be addressed in any advancement proceeding the KPMG Defendants may bring pursuant to this decision.
[240] Among other avenues open to the government if it were disposed to seek to remedy the problem it has created might be to persuade KPMG to eliminate obstacles to prompt resolution of the advancement issue. KPMG might, for example, waive any right that it may have to compel its former partners to arbitrate, or to claim a jury trial on, the question whether the KPMG Defendants are entitled to advancement of defense costs. Such a waiver need not affect any claims by the KPMG Defendants for indemnification (as distinguished from advancement) by KPMG or any claims that KPMG may have against the KPMG Defendants, neither of which would be a proper subject of a summary advancement proceeding in any event.
[241] See generally Lewis A. Kaplan, Henry L. Stimson Award Ceremony: Remarks, 54 RECORD OF THE ASS'N OF THE BAR OF THE CITY OF NEW YORK 420 (1999).
[242] Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); see also, e.g., Brady, 373 U.S. at 87, 83 S. Ct. 1194 ("Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly under the federal domain: `The United States wins a point whenever justice is done its citizens in the courts.'").
[243] The indictment of Arthur Andersen LLP resulted in the effective demise of that large accounting firm, and the loss of many thousands of jobs of innocent employees, long before the case ever went to trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3348683/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The plaintiff brings this appeal from a final decision of the Bureau of Rehabilitation Services ("BRS") of the State of Connecticut, Department of Social Services ("DSS") adopting the recommended decision of a fair hearing officer issued April 30, 1998. This appeal is brought under the authority of the Uniform Administrative Procedure Act ("UAPA"), General Statutes §§4-166 et seq., 4-183.
The plaintiff suffers from depression, alcoholism and back problems. In March of 1986, he requested services from the BRS and by letter dated May 13, 1996, he was determined to be eligible for services. A dispute developed between the plaintiff and BRS over tuition assistance to attend the University of Hartford for a Bachelor of Arts in Engineering. BRS held a fair hearing on November 14, 1997, December 5, 1997 and January 20, 1998. The plaintiff appeared at the hearing, was represented by legal counsel and was afforded an opportunity to present evidence and argue his claims. The hearing officer determined that Mr. Vail was presently employable and was not entitled to services beyond assistance with job seeking skills. (Return of Record ("ROR"), Volume 1, pp. 2-11.) On May 1, 1998, the hearing officer's decision was adopted and accepted as the final decision of DSS.
The plaintiff filed a timely appeal on June 15, 1998. The DSS filed the answer and record on August 14, 1998. The plaintiff filed his brief on November 3, 1998 and the DSS brief was filed on January 19, 1999. Parties were heard in oral argument on May 19, 1999.
This case involves the application of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. This act establishes a program that authorizes the federal government to provide grants of assistance to states that choose to CT Page 6647 participate. Connecticut has chosen to participate and the Bureau of Rehabilitation Services of the Department of Social Services as a state agency empowered to provide assistance under this program. See General Statutes § 17b-651 and 17b-658.1 The purpose of the Rehabilitation Act of 1973 is "to develop and implement comprehensive and coordinate programs of vocational rehabilitation and independent living, for individuals with handicaps in order to maximize their employability, independence, and integration into the workplace and community."2 A mandatory provision of the Rehabilitation Act is that once an eligibility determination is made that for each eligible applicant an individual written rehabilitation program ("IWRP") be "jointly developed, agreed upon, and signed by . . . such eligible individual., and the vocational rehabilitation counselor or coordinator. . . ." Rehabilitation Act of 1973, 29 U.S.C. § 722
(b)(1)(A)(i)3 The federal regulations limit financial services including financial assistance sought by the plaintiff to cases in which an IWRP has been properly completed.34 C.F.R. § 361.44; see also Regs., Conn. State Agencies §10-102-15; Appeal of Wenger, 504 N.W.2d 794 (Minn.App. 1993).
In Appeal of Wenger, the applicant, as in this case, was a disabled person for purposes of the act, but failed to obtain an IWRP. The court held: "Wenger, however, is not entitled to rehabilitation services in the absence of an IWRP jointly adopted by Wenger and the DRS [Department of Rehabilitation Services]."Appeal of Wenger, supra, 504 N.W.2d 799 The Wenger
court relied on the federal district court decision Buchanan v.Ives, 793 F. Sup. 361 (D. Maine 1991) in which the joint development feature of the IWRP was affirmed. In that case, the court held: "The Plaintiff contends the Act should be interpreted to provide a client with the final right to choose his vocational rehabilitation goal, so long as it is within his capabilities. . . . However, "joint' participation does not mean giving a client the final or exclusive decision making authority to determine his own goal. The plain meaning of the word "jointly' indicates that the decision be made by at least two persons acting in concert. Although the client must be given every opportunity to participate in the decision-making, the rehabilitation counselor must make the final decision on eligibility and the scope of services provided." Buchanan v.Ives, supra, 793 F. Sup. 366. This case is undisputed in that there Was no individual written rehabilitation program or IWRP.
In the instant case, the plaintiff also failed to take CT Page 6648 advantage of a review process provided by General Statutes §17b-654. See also Regs., Conn. State Agencies § 10-102-20. In addition to an informal administrative review of IWRPs provided in General Statutes § 17b-654 (a), the plaintiff could have requested a formal hearing pursuant to § 17b-654 (b). See also Regs., Conn. State Agencies § 10-102-21. This the plaintiff failed to do. The regulations specifically prohibit financial assistance in the absence of an IWRP.4
The hearing officer also found that the plaintiff was employable without the educational program which he sought at the University of Hartford. "The thrust of the Rehabilitation Act is to assist disabled individuals to become employed." Appeal ofWenger, supra, 504 N.W.2d 798. "Vocational rehabilitation services provided under the Act are any goods or services necessary to render an individual with handicaps employable." (Citations omitted; internal quotation marks omitted.) Zingher v. Departmentof Aging Disabilities, 664 A.2d 256, 259 (Vt. 1995). In theZingher case, the plaintiff sought assistance under the Rehabilitation Act with respect to the purchase of computers which he would use in an accounting job. In upholding the denial of such assistance, the Vermont Supreme Court concluded: "Although the computer system requested may enhance petitioner's employability, petitioner has not shown that such a system isnecessary for him to be employed." (Emphasis in original.) Id., 259-60. In the present case, the hearing officer determined that Mr. Vail is employable with his present skills, an Associate's Degree in Engineering, and therefore, it is not necessary for Mr. Vail to obtain the desired Bachelor's Degree in Engineering. The plaintiffs claims under the Rehabilitation Act fail.
The plaintiff also claims in his brief that the BRS decision was arbitrary, capricious, and an abuse of discretion. At the outset, the court notes the "standard of review for all of the plaintiff's claims on appeal. Because [the court is] reviewing the decision of an administrative agency, [the court's] review is highly deferential. . . . Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its CT Page 6649 discretion. . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny., the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . ." (Citations omitted; internal quotation marks omitted.) Bezzini v. Dett, of Social Services.49 Conn. App. 432, 436 (1998).
The court's "review of an agency's factual determination is constrained by General Statutes § 4-183(j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (5) clearly erroneous in view of the reliable, probate, and substantial evidence on the whole record. . . . This limited standard of review dictates that, with regard to questions of fact, it is neither the function of the trial court., to retry the case or to substitute its judgment for that of the administrative agency. . . . An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. . . . The burden is on the plaintiffs to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record. . . ." (Brackets omitted; citations omitted; internal quotation marks omitted.) New England Cable Television Assn., Inc. v. DPUC,247 Conn. 95, 117-18 (1998).
The following findings of fact, which are supported by substantial evidence, are more than sufficient to support the reasonableness of the BRS decision:
(8) At the January 21, 1997 meeting Mr. Vail further stated that he came to BRS seeking employment and continuing education, and admitted he was not sure of his goals. He also expressed reservations about his academic abilities, particular in the area of math, including calculus. . . . CT Page 6650
(10) In late January 1997 Mr. Vail expressed concern about trouble he was having in school, both with reading and with math, arising, he believed, from his head injury. He agreed to have a neuropsychological evaluation.
(13) Dr. Cassens report revealed that Mr. Vail had an I.Q. in the average range, significant difficulty concentrating and retaining written/verbal material, and his arithmetic abilities were in the low average range, or eighth grade equivalent. Noting that Mr. Vail had spoken to her about taking Law School Aptitude Test, Dr. Cassens commented that "[i]t is unclear at this time whether attending law school is realistic given his neuro psychological profile . . .
(20) Mr. Vail also presented to BRS a transcript of work he had taken at the University of Hartford, together with 21.66 credits granted by the University for his work at Hartford State Technical College. The course work taken at the University of Hartford over eight semesters and two summer terms yielded a total of 58 course hours and a cumulative grade point average of 1.75. . . .
(25) Patricia Malloy, a BRS Human Resources Specialist and Rehabilitation Counselor with 27 years of experience, discussed Mr. Vail's search for employment with him. She stated that he was interested in "anything related to construction technology." She also conducted a limited job survey in Connecticut, and concluded that there are a number of jobs available for which Mr. Vail is presently qualified.
(ROR, Volume I, pp. 4-5.)
The court finds that substantial evidence in the record supports the BRS decision that the BA Engineering Degree from the University of Hartford was not an appropriate vocational goal for Mr. Vail. Accordingly, the decision of the BRS is affirmed and the appeal is dismissed.
Robert F. McWeeny, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2410987/ | 186 F. Supp. 2d 397 (2002)
Yevgeny MATUSOVSKY, Plaintiff,
v.
MERRILL LYNCH, Defendant.
No. 01 Civ. 8537(VM).
United States District Court, S.D. New York.
February 15, 2002.
*398 Louis Ginsberg, Law Firm of Louis Ginsberg, P.C., New York City, for plaintiff.
*399 Christopher Alan Parlo, Debra S. Morway, Morgan, lewis & Bockius, L.L.P., New York City, for defendant.
DECISION AND AMENDED ORDER
MARRERO, District Judge.
Plaintiff Yevgeny Matusovsky ("Matusovsky") filed this action against defendant Merrill Lynch, Pierce & Smith Incorporated ("Merrill") alleging violations of his civil rights under federal, New York State and City laws. In response, Merrill filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the Court grants Merrill's motion.
BACKGROUND
According to the complaint, Merrill hired Matusovsky as a full-time consultant in 1998. At that time, Matusovsky informed Merrill that, as an Orthodox Jew, he observed the Sabbath and could not work on Saturdays. Initially, Merrill did not schedule Matusovsky for work on Saturdays. However, starting sometime during or after November of 1999, a new manager began assigning Matusovsky to work on Saturday nights and Sundays. In March of 2000, Matusovsky was put on probation for poor performance and attendance; on July 5, 2000, he was fired.
Shortly after his termination, Matusovsky commenced proceedings in the Civil Court of New York to obtain ten boxes of property from his office that he contended belonged to him. Before the Civil Court heard the matter, on September 22, 2000 Merrill settled the case. In that connection, Matusovsky signed a General Release stating that:
I [Yevgeny Matusovsky] release and give up any and all claims which I may have against You [Merrill]. This releases all claims, including those of which I am not aware and those not mentioned in this release. This General Release applies to all claims resulting from anything which has happened up to now. I specifically release any and all claims arising out of my small claims action brought in the Civil Court of New York, Index Number SCK 6773/2000.
(Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint ("Def.'s Mem."), at Ex. B ("General Release") at 1, ¶ 1.) In exchange for execution of the General Release, Matusovsky was permitted to retrieve the ten boxes he claimed and received a check in the amount of $45.00. (General Release, ¶ 3 ("Paragraph Three").)
Matusovsky acknowledges that he signed a "General Release purportedly releasing Merrill Lynch of any liability with respect to any claims Plaintiff may have against the company." (Complaint ("Compl."), ¶ 12.) Matusovsky claims that the General Release does not bar this action because Merrill "did not provide Plaintiff with any consideration in exchange for the General Release." (Compl., ¶ 13.) Matusovsky made no allegations in his complaint regarding the circumstances under which he entered the General Release.
In response, Merrill filed a motion to dismiss the complaint pursuant to Fed. R.Civ.P. 12(b)(6) based on Matusovsky's failure to state a claim upon which relief may be granted. Merrill attached the General Release in support of its motion. Matusovsky opposed the motion on the grounds that the General Release is invalid and unsupported by consideration. The question before the Court is whether the General Release operates to bar this action. The Court concludes that it does.
DISCUSSION
A district court may grant a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) only if it appears beyond doubt that the non-moving party could prove no *400 set of facts that would entitle it to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994). In reviewing the pleadings, a court must accept the non-moving party's factual allegations as true. See Hishon, 467 U.S. at 73, 104 S. Ct. 2229. Furthermore, a court may consider documents attached to the complaint as exhibits, or incorporated by reference, as well as any documents that are integral to, or explicitly referenced in, the pleading. See I. Meyer Pincus & Associates v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991); 2 Broadway L.L.C. v. Credit Suisse First Boston, No. 00 Civ. 5773, 2001 WL 410074, *5 (S.D.N.Y. Apr. 20, 2001). If a plaintiff's allegations are contradicted by such a document, those allegations are insufficient to defeat a motion to dismiss. See 2 Broadway LLC, 2001 WL at *9 (citations omitted). Here, Matusovsky explicitly referred to the General Release in his complaint. Thus, the Court will examine that document in its consideration of Merrill's motion to dismiss the complaint.
Under federal law, an employee may waive his Title VII claim of discrimination against his employer, provided that the waiver is knowing and voluntary. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n. 15, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974); Bormann v. AT & T Communications, Inc., 875 F.2d 399, 402 (2d Cir. 1989); Livingston v. Bev-Pak, Inc., 112 F. Supp. 2d 242, 247 (S.D.N.Y.2000). Whether the employee's waiver was knowing and voluntary depends upon the totality of the circumstances, including factors such as:
(1) the plaintiff's education and business experience; (2) the amount of time that the plaintiff had possession of or access to the agreement before he signed it; (3) the plaintiff's role in deciding the terms of the waiver agreement; (4) the clarity of the agreement; (5) whether the plaintiff was represented by or consulted with an attorney prior to signing the agreement; (6) whether the consideration given to the plaintiff was in exchange for the waiver exceeds the employee benefits to which the plaintiff was already entitled by contract or law; (7) whether the employer encouraged or discouraged the plaintiff to consult with an attorney; and (8) whether the plaintiff had a fair opportunity to consult with an attorney prior to signing the agreement.
Livingston, 112 F.Supp.2d at 247 (citing Bormann, 875 F.2d at 403). Not every factor must be present for a waiver to be enforceable. Id.
Here, Matusovsky was employed as a consultant by Merrill. This position indicates that he is neither uneducated nor inexperienced in business affairs. Furthermore, his commencement of legal proceedings to obtain ten boxes of property held by Merrill constitutes some evidence of Matusovsky's sophistication in business and legal matters.
Written in plain English, the language of the General Release is clear and unambiguous. By its terms, it covers "anything which has happened up to now." Because Matusovsky had been fired only two and a half months prior to signing the General Release, it would have been unreasonable for Matusovsky to believe that the General Release did not also cover the circumstances of his firing.
Although Matusovsky was not represented by an attorney, he had fair opportunity to obtain one prior to commencing the Civil Court action or during its pendency. Furthermore, Matusovsky does not allege that Merrill discouraged him from consulting with an attorney.
Under paragraph Three of the General Release, in exchange for signing the General *401 Release, Matusovsky received ten boxes of property which he alleges belonged to him and which he argues was no more than he was entitled to obtain as a matter of law. However, Merrill had opposed Matusovsky's complaint in Civil Court and disputed ownership over the contents of the ten boxes prior to execution of the General Release. Accordingly, in addition to receiving ten boxes of property, the ownership of which may have been contested, Matusovsky received the additional consideration of settlement of the pending Civil Court action. Conceivably, also, insofar as Merrill may have had grounds to claim that any part of the property Matusovsky took away did not belong to him, but did belong to Merrill, the settlement of the Civil Court action may have entailed Merrill's agreement to drop any claim it may have had against Matusovsky. Certainly, Merrill's relinquishment of such claims would qualify as valuable consideration and something to which Matusovsky was not already entitled.
In exchange also for Matusovsky's execution of the General Release, Merrill agreed to send Matusovsky a check in the amount of $45.00. Matusovsky did not contest Merrill's explanation that the $45.00 payment was to cover "certain expenses for which [Matusovsky] wished to be reimbursed, including a fee he paid in the [Civil] Court." (Def.'s Mem., at 5.) Accordingly, it appears that Matusovsky received more than that to which he was already entitled under law. Moreover, contrary to Matusovsky's conclusory assertions, (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Complaint, at 4-5), it follows from the particularity of Paragraph Three that Matusovsky participated in the negotiation and drafting of the General Release. Accordingly, nothing in the record before the Court indicates that the General Release is invalid, or fails for want of consideration, under Federal law. As such, Matusovsky failed to state a federal claim. See 2 Broadway LLC, 2001 WL at *9.
Similarly, New York state courts enforce "a valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into ... as a private agreement between the parties." Skluth v. United Merchants and Manufacturers, Inc., 163 A.D.2d 104, 106, 559 N.Y.S.2d 280 (App. Div. 1st Dep't 1990); Laramee v. Jewish Guild for the Blind, 72 F. Supp. 2d 357, 359 (S.D.N.Y. 1999) (applying Bormann factors to evaluate and approve validity of waiver under New York law). Such a release may still be attacked "for being the product of fraud, duress or undue influence." Skluth, 163 A.D.2d at 106, 559 N.Y.S.2d 280. However, under New York law, there is no obligation that a valid release be supported by consideration. See N.Y. Gen. Oblig. § 15-303.
Here, Matusovsky does not assert that Merrill procured the General Release through fraud, duress or undue influence. The Court already discussed that, as a factual matter, the release is valid and supported by sufficient consideration. Furthermore, Matusovsky's claim that the General Release is invalid for want of consideration is not cognizable under New York law. Therefore, because Matusovsky failed to state a claim under federal, New York State and City law, his complaint must be dismissed.
ORDER
For the reasons set forth above, it is hereby
ORDERED that the Court's Order dated January 31, 2002, be amended to incorporate the discussion set forth above; and it is further
*402 ORDERED that the complaint be dismissed; and it is finally
ORDERED that the Clerk of Court close this case.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561304/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 26, 2020*
Decided August 28, 2020
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19‐3525
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 06‐cr‐0896‐2
SALVADOR ROSALES, Sharon Johnson Coleman,
Defendant‐Appellant. Judge.
ORDER
Nearly a decade after a jury found Salvador Rosales guilty of multiple cocaine
offenses, see 21 U.S.C. §§ 841(a)(1), 846, he moved to reduce his sentence under 18 U.S.C.
§ 3582(c)(2), relying on Amendment 782 to the Sentencing Guidelines. The district court
denied Rosales’s motion because his 240‐month sentence was based on a statutory
minimum, so Amendment 782 did not affect his sentencing range. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19‐3525 Page 2
Before Rosales’s trial, the government filed the required notice that it would seek
a statutory minimum of 20 years’ imprisonment based on a prior felony drug
conviction. See 21 U.S.C. § 851. That notice contained an error about the offense of
conviction, which the government remedied with an amended information before
sentencing. At the sentencing hearing in 2010, the district court explained that, under
the Sentencing Guidelines, Rosales had a base offense level of 34 and criminal history of
III, yielding a range of 188 to 235 months in prison. But the court then determined that
the § 851 enhancement changed that guideline range to the statutory minimum of
240 months in prison. See 21 U.S.C. § 841(b)(1)(A)(ii) (2010); U.S.S.G. § 5G.1.1(b). The
district court sentenced Rosales to 240 months’ imprisonment, and we affirmed the
judgment. See United States v. Gaya, 647 F.3d 634 (7th Cir. 2011).
Rosales later moved to reduce his sentence under 18 U.S.C. § 3582(c)(2). He
argued that Amendment 782 to the Sentencing Guidelines, which retroactively lowered
the base offense level for drug offenses, qualified him for a shorter sentence.
See U.S.S.G. Supp. to App. C, Amend. 782 (2014); U.S.S.G. § 1B1.10. Explaining that
Amendment 782 did not reduce his guidelines range, which was the statutory
minimum by virtue of U.S.S.G. § 5G.1.1(b), the district court denied the motion.
Rosales challenges that ruling on appeal, but the district court was correct. A
district court may reduce a sentence under § 3582(c)(2) only if it was “based on” a
guidelines range that has been subsequently lowered by the Sentencing Commission.
Koons v. United States, 138 S. Ct. 1783, 1788 (2018); Dillon v. United States, 560 U.S. 817,
825–26 (2010). Because Rosales’s sentence resulted from a statutory minimum,
Amendment 782 did not lower his guidelines range, and his sentence cannot be reduced
under § 3582(c)(2). See United States v. Johnson, 747 F.3d 915, 917 (7th Cir. 2014).
Rosales also contends that he is entitled to a reduction because of the error in the
original § 851 information. Not only did we deem this error “beyond harmless” on
direct appeal, Gaya, 647 F.3d at 642, the challenge falls outside the scope of a § 3582(c)(2)
proceeding. See Dillon, 560 U.S. at 831.
Finally, Rosales argues that the district court erred by not giving him notice or
the opportunity to be heard before ruling on his motion. But defendants are not
afforded the same procedural rights during proceedings on a § 3583(c)(2) motion that
they have during sentencing proceedings. United States v. Young, 555 F.3d 611, 615–16
(7th Cir. 2009). We give deference to the district court’s decision on how to proceed,
id. at 612, and have declined to identify any “minimum procedural protections.” Id. at
No. 19‐3525 Page 3
615. Rosales does not explain how any prejudice resulted from the district court’s ruling
on his fully briefed motion without his further input, and because the question of his
eligibility for a reduction was purely legal in nature, we cannot imagine any.
AFFIRMED | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2236009/ | 929 N.E.2d 269 (2010)
HERNANDEZ-LOPEZ
v.
STATE.
No. 49A02-0912-CR-1178.
Court of Appeals of Indiana.
July 7, 2010.
DARDEN, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
BAKER, C.J., concurs.
CRONE, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609795/ | 866 P.2d 827 (1993)
STATE of Alaska, Petitioner,
v.
Joseph J. HAZELWOOD, Respondent.
No. S-5311.
Supreme Court of Alaska.
December 3, 1993.
*828 Cynthia M. Hora, Asst. Atty. Gen., Richard W. Maki, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for petitioner.
Richard H. Friedman and Jeffrey K. Rubin, Friedman & Rubin, Anchorage, Michael G. Chalos, Thomas Russo, Chalos, English & Brown, New York City, and Dick L. Madson, Fairbanks, for respondent.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS, and COMPTON, JJ.
OPINION
RABINOWITZ, Justice.
This petition for hearing presents essentially two issues: (1) whether as a matter of federal law the State demonstrated that it had an independent source for the evidence it introduced against Captain Joseph Hazelwood at his criminal trial; and (2) whether as a matter of federal law use and derivative use immunity granted under the Federal Water Pollution Control Act, 33 U.S.C. § 1321(b)(5), is subject to an inevitable discovery exception.
FACTS AND PROCEEDINGS
On March 24, 1989, the Exxon Valdez ran aground off Bligh Reef, spilling eleven million gallons of oil into Prince William Sound. The captain of the tanker, Joseph J. Hazelwood (Hazelwood), radioed the Coast Guard approximately twenty minutes after the grounding and stated:
Yeah, ah Valdez back, ah we've, should be on your radar there, we've fetched up ah hard aground, north of Goose Island, off Bligh Reef, and ah evidently leaking some oil and we're gonna be here for awhile and ah, if you want ah, so you're notified, over.
Subsequently, the State charged Hazelwood with several crimes related to the grounding. Hazelwood moved to dismiss the charges and suppress evidence, arguing that all of the State's evidence was derived either directly or indirectly from his notification, and that its admission violated the immunity granted by 33 U.S.C. § 1321(b)(5) and the principles of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
The superior court denied Hazelwood's motions, accepting the State's arguments that (1) 46 U.S.C. § 6101, the marine casualty reporting statute, and its implementing regulation constituted a separate and independent source for the State's evidence; and (2) the evidence used by the State would have been inevitably discovered. A jury subsequently convicted Hazelwood of negligent discharge of oil. The court of appeals reversed Hazelwood's conviction, holding as a matter of law that the marine casualty statute and regulation did not constitute an independent source for the State's evidence and that the inevitable discovery doctrine was inapplicable in the context of a congressionally enacted grant of immunity. Hazelwood v. State, 836 P.2d 943 (Alaska App. 1992). We subsequently granted the State's petition for hearing as to both the independent source and inevitable discovery rulings.
DISCUSSION
A. Protection from Prosecution Provided *829 by 33 U.S.C. § 1321(b)(5).[1]
The federal reporting requirement for oil and hazardous substance discharges, 33 U.S.C. § 1321(b)(5), includes a statutory grant of immunity from criminal prosecution. At the time of Hazelwood's offense, the statute provided for both use and derivative use immunity:[2]
Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person ... who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.
33 U.S.C. § 1321(b)(5) (1988) (amended 1990) (emphasis added).[3] Hazelwood argues that *830 by admitting evidence that he notified the Coast Guard about the spill, and by admitting evidence derived from this notification, the superior court violated this statutory grant of immunity.
B. Applicability of the Independent Source Doctrine.
The State argues that the evidence admitted was obtained through a source independent of Hazelwood's notification, and thus was not subject to exclusion. The U.S. Supreme Court has explicitly recognized that a statutory grant of use and derivative use immunity, like the Fifth Amendment's protection against self-incrimination, "allow[s] the government to prosecute using evidence from legitimate independent sources." Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972) (emphasis added). However, once a defendant shows that he or she testified under a statutory grant of immunity, the burden shifts to the prosecution "to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S.Ct. at 1665. We must determine, then, whether the State has met its burden of proving that the evidence admitted against Hazelwood was obtained from a source wholly independent of the notification compelled by the statute.
The State argues that upon grounding the Exxon Valdez, Hazelwood incurred two separate legal reporting duties. Under the oil spill statute, 33 U.S.C. § 1321(b)(5), he was required to report that he was discharging oil. Under the marine casualties reporting statute, 46 U.S.C. § 6101,[4] and its implementing regulations, he was required to report that the ship had grounded. The marine casualty statute and regulations also require that the person making the report provide additional information, such as the identity and location of the ship. 46 C.F.R. § 4.05-1, -5 (1992).
Parsing Hazelwood's radio transmission, the State argues that only one part of it is protected under the grant of immunity. According to the State, Hazelwood's statement that the tanker "evidently [was] leaking some oil" was sufficient to fulfill his obligation under the oil spill statute. This statement, the State concedes, is covered by the statute's immunity clause. The State argues, however, that any additional information provided by Hazelwood, specifically "we've fetched up ah hard aground north of Goose Island, off Bligh Reef," was reported pursuant to the marine casualty statute, and thus amounted to a source of evidence wholly independent of the immunized statement.[5]
We cannot accept the State's arguments. As noted by the court of appeals, the State's argument rests on the premise that, under the oil spill reporting statute, Hazelwood was required to report nothing more than the fact that his ship was discharging oil. Hazelwood v. State, 836 P.2d 943, 948 (Alaska App. 1992). Interpreting the statute to require no more than this would be unreasonable. Congress initially enacted the oil spill statute as part of legislation designed to improve the nation's water quality.[6] Viewed in light of this overall purpose, the notification process required by the statute must be construed to require that regulatory officials be provided with adequate information, such as the location of the spill, so that they may begin immediate remedial measures. Thus we decline to hold *831 that Hazelwood's statement concerning the location of the vessel was made solely to comply with the marine casualty statute and therefore provided an independent source.
Furthermore, the U.S. Supreme Court clearly stated in Kastigar that the government must "prove that the evidence it proposes to use is derived from a legitimate source wholly independent" of the immunized statement. 406 U.S. at 460, 92 S.Ct. at 1665 (emphasis added). In this case, there is only one source: Hazelwood's single radio transmission made shortly after the Exxon Valdez ran aground on Bligh Reef. The State asks us to accept the contention that Hazelwood's radioed statement to the Coast Guard was immunized at one point and an independent source at another. The initial report cannot be divided: it was a single radio transmission made shortly after the Exxon Valdez ran aground on Bligh Reef. We cannot accept this argument in the face of Kastigar's requirement that the independent source be "wholly independent" from the immunized source. We therefore AFFIRM this aspect of the court of appeals' decision.
C. The Application of the Inevitable Discovery Doctrine Under 33 U.S.C. § 1321(b)(5).
Alternatively, the State argues that the evidence admitted against Hazelwood at trial was admissible under the inevitable discovery doctrine.[7] The United States Supreme Court recognized the inevitable discovery doctrine in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The doctrine is an exception to the exclusionary rule[8] in cases where evidence has been obtained in violation of constitutional protections such as the Fifth Amendment privilege against self-incrimination.[9] The doctrine is *832 essentially a variation on the independent source rule, except that the question is not whether the police actually obtained evidence from an untainted source, but whether evidence obtained through a constitutional violation would inevitably have been discovered through a lawful means. 4 Wayne R. LaFave, Search and Seizure § 11.4(a), at 378 (2d ed. 1987).
The Supreme Court noted that the "core rationale" for the exclusionary rule is "to deter police from violations of constitutional and statutory protections." Nix, 467 U.S. at 442-43, 104 S.Ct. at 2508. "On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired." Id. at 443, 104 S.Ct. at 2508. However, the rule is not meant to put the prosecution in a position worse than if no police misconduct occurred. Id.[10] Thus the Supreme Court has recognized the inevitable discovery doctrine. If the prosecution can prove that the challenged evidence "ultimately or inevitably would have been discovered by lawful means, ... then the deterrence rationale has so little basis that the evidence should be received." Id. at 444, 104 S.Ct. at 2509.
Hazelwood contends that the absence of a deterrence rationale makes the inevitable discovery doctrine "inappropriate in the context of immunity analysis." Hazelwood asserts that the exclusionary rule and exceptions thereto were developed by balancing two competing interests: the need to deter police misconduct and the need for evidence of wrongdoing to convict the wrongdoer. Exceptions to the exclusionary rule are recognized because the interest of deterring illegal police conduct is not enhanced by excluding evidence that would have been found legally.
Hazelwood argues, however, that the purpose behind excluding information derived from immunized testimony is unrelated to deterrence of official misconduct. Rather, the exclusionary rule serves to enforce the government's assurance that no immunized statement or evidence derived therefrom will be used against a person compelled to give the statement. Additionally, Hazelwood contends that while courts are free to modify the judicially created exclusionary rule, only Congress can change the scope of the immunity statute it created. Thus he concludes that the inevitable discovery doctrine cannot apply in the context of a statutory grant of immunity.
The court of appeals agreed, finding a critical distinction between the role played by the exclusion of illegally obtained evidence and that played by exclusion of evidence derived from immunized information. Based on this perceived distinction the court of appeals concluded that "the inevitable discovery doctrine an exception rooted in the pragmatism of the exclusionary rule and its narrow deterrent purpose has no application in the immunity context." Hazelwood v. State, 836 P.2d 943, 953 (Alaska App. 1992).[11] We disagree.
The U.S. Supreme Court's opinion in Nix is of significance here. There the defendant contended that certain evidence was derived *833 from a police interrogation conducted in violation of his Sixth Amendment right to counsel. 467 U.S. at 441, 104 S.Ct. at 2507. He challenged application of the inevitable discovery rule, arguing that the purpose for the exclusionary rule under the Sixth Amendment was not to deter police misconduct but to preserve the right to a fair trial and the integrity of the factfinding process. Id. at 446, 104 S.Ct. at 2510.
The Court disagreed, stating that "[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial." Id. The Court again emphasized that the exclusionary rule was not meant to put the State in a worse position than would have been the case had the illegality not occurred. The Nix defendant's interpretation of the rule placed the State at a disadvantage, and the Supreme Court rejected this result, noting that "[s]uppression in these circumstances ... would inflict a wholly unacceptable burden on the administration of criminal justice." Id. at 447, 104 S.Ct. at 2510.
The argument Hazelwood presents in the context of a statutory grant of immunity is similar: the lack of a deterrence rationale for the exclusionary rule precludes the application of the inevitable discovery exception to the rule. While the U.S. Supreme Court has not directly addressed this question, we think the foregoing discussion in Nix provides the answer.
In order to determine whether an exception to the exclusionary rule is permissible, we, like the U.S. Supreme Court in Nix, must balance the societal costs of excluding evidence against the particular interest the rule might serve: deterrence of police misconduct, preservation of the right to a fair trial, or enforcement of the government's promise. If we accept Hazelwood's contention and hold that the inevitable discovery doctrine is not applicable in the immunity context, the State will be in a worse position than if the statutory grant of immunity did not exist. We do not think the interest served by the exclusionary rule in the immunity context requires such a result. Rather, we hold that when the evidence at issue inevitably would have been discovered without reference to immunized statements, "there is no nexus sufficient to provide a taint and the evidence is admissible." Id. at 448, 104 S.Ct. at 2511; see also United States v. Kiser, 948 F.2d 418, 422-23 (8th Cir.1991).[12]
The court of appeals also concluded that application of the inevitable discovery doctrine would defeat the congressional purpose in granting immunity for the immediate report of a spill. The court of appeals reasoned that persons who potentially stood to incriminate themselves would be discouraged from complying if it were predictable at the outset that the inevitable discovery doctrine would apply. Hazelwood, 836 P.2d at 953.
Again we disagree. Congress did not rely solely upon the grant of immunity to encourage the reporting of oil spills. The oil spill statute itself provides stiff penalties for those failing to notify the authorities of a spill.[13] A failure to notify would be a criminal act in addition to any criminal acts causing the spill.[14]
*834 We therefore hold, in accordance with the applicable U.S. Supreme Court precedent, that the court of appeals erred in ruling that the inevitable discovery doctrine has no application in the context of this statutory grant of immunity. Since our reading of Kastigar and Nix impels us to the conclusion that application of the doctrine of inevitable discovery to the use and derivative use immunity provided for in 33 U.S.C. § 1321(b)(5) is permissible, we remand this case to the court of appeals for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.[15]
BURKE, J., not participating.
COMPTON, Justice, dissenting in part.
I am unpersuaded by the court's conclusion that Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (no violation of Fifth Amendment privilege against self incrimination when evidence derived from a wholly independent source), and Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (no violation of Sixth Amendment right to counsel when evidence would have been inevitably discovered regardless of violation), compel application of the doctrine of inevitable discovery to the statutory grant of immunity provided in 33 U.S.C. § 1321(b)(5). See Op. at 834. The immunity granted by 33 U.S.C. § 1321(b)(5), coextensive with the protection afforded by the Fifth Amendment, is very broad.[1] The doctrine of inevitable discovery is incompatible with the mandate that an immunized report and information derived from the exploitation of an immunized report is not admissible in a criminal proceeding against the declarant. I would affirm the decision of the court of appeals that so holds.[2]
At the outset, it is important to know what evidence Hazelwood sought to suppress.[3] Hazelwood filed separate motions relating to the admissibility of evidence. One motion asserted essentially that all evidence supporting the charges against him was derived from the exploitation of his immunized report, and hence was inadmissible. Dismissal of the charges was the remedy Hazelwood sought. Another motion, based on the same theory, sought suppression of the result of a blood alcohol test taken while Hazelwood was still aboard the Exxon Valdez. A third motion, again based on the same theory, sought suppression of four specific statements:
The first statement was made in a radio call to the Coast Guard and reported that *835 the defendant was having some trouble with the third mate. The second statement was made in response to a question by Department of Environmental Control (DEC) investigator, Joe LeBeau. LeBeau asked the defendant what the problem was that caused the grounding, and the defendant replied, "You're looking at it." The third statement was a similar remark made in response to a similar question by Trooper Fox. The fourth statement is an interview of the defendant conducted by Coast Guard Chief Warrant Officer Mark Delozier, contained in state's exhibit 69.
Order, State v. Hazelwood, No. 3AN-S89-7217 Cr./7218 Cr. (Alaska Super., December 18, 1989). These four statements were made before or during the government agents' initial boarding of the Exxon Valdez.
The court of appeals noted that "[h]ere, the superior court found, and the state has effectively conceded, that the evidence against Hazelwood was in fact obtained `by the exploitation of Hazelwood's report that the Exxon Valdez ran aground and was leaking oil." Hazelwood v. State, 836 P.2d 943, 953 (Alaska App. 1992). The court does not dispute that this was the only source of the evidence which the State proposed to use against Hazelwood: his "single radio transmission made shortly after the Exxon Valdez ran aground on Bligh Reef." Op. at 831. This transmission was given pursuant to 33 U.S.C. § 1321(b)(5):
Any person in charge of a vessel ... shall, as soon as he has knowledge of any discharge of oil ...; immediately notify the appropriate agency of the United States Government of such discharge... . Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.
It is also important to keep in mind the rights guaranteed by the United States Constitution that are implicated in this case. The Fourth Amendment addresses searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. The Fifth Amendment addresses the privilege against self incrimination:
No person shall ... be compelled in any criminal case to be a witness against himself... .
U.S. Const. amend. V. The Sixth Amendment addresses the right to assistance of counsel:
In all criminal prosecutions, the accused shall enjoy the right ... to the assistance of counsel for his defense.
U.S. Const. amend. VI. These rights apply in different ways and may be violated at different stages of the government's involvement with a citizen.
Violations of Fourth and Sixth Amendment rights are "fully accomplished" at the time of the offending government conduct. See, e.g., Withrow v. Williams, ___ U.S. ___, ___, 113 S.Ct. 1745, 1753, 123 L.Ed.2d 407 (1993) (Fourth Amendment); Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (Sixth Amendment).[4] They may occur even though no formal criminal charges are filed against the citizen. If formal charges *836 are filed, the remedy for such violations may be the exclusion of evidence obtained thereby. However, in Nix the Supreme Court accepted the inevitable discovery doctrine as an exception to the exclusionary rule for violations of the Sixth Amendment right to counsel.[5]
In contrast, a violation of the Fifth Amendment is not "fully accomplished" until the compelled evidence is used against the citizen at trial:
The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. The Fourth Amendment functions differently. It prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable governmental intrusion.
United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 1060, 108 L.Ed.2d 222 (1990) (citations omitted). Evidence admitted at trial over a valid assertion of the privilege against self incrimination violates the privilege. Thus exclusion of the evidence both effectuates the constitutional right and prevents the constitutional violation.
The United States Supreme Court has recognized that there is a predicate for application of the exclusionary rule: "It is clear that the cases implementing the exclusionary rule `begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.'" United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537 (1980) (emphasis added). However, Hazelwood does not rely on a claim of any illegal governmental activity prior to the State's effort to introduce compelled evidence in the criminal proceeding.[6] Exclusion of Hazelwood's immunized report and information derived from the exploitation thereof is not mandated by an exclusionary rule, but by the Fifth Amendment *837 itself: "No person ... shall be compelled in any criminal case to be a witness against himself... ."[7]
I agree with the court's interpretation of 33 U.S.C. § 1321(b)(5) and its conclusion regarding the independent source doctrine. See Op. at 829-831. The use of evidence derived from a wholly independent source would not violate Hazelwood's Fifth Amendment privilege against self incrimination, as it would not be derived from the exploitation of Hazelwood's immunized report. However, information derived in fact from the exploitation of Hazelwood's immunized report violates his Fifth Amendment privilege against self incrimination and must not be admitted in evidence. Whether a citizen is afforded a constitutional right should not depend in the first instance on whether a trial court determines that evidence derived from the exploitation of an immunized statement would or would not have been inevitably discovered.[8]
NOTES
[1] The scope of immunity under 33 U.S.C. § 1321(b)(5), and its constitutionally permissible exceptions, are issues of federal law. Thus United States Supreme Court precedent, rather than our own precedent, controls our resolution of this case.
The difference this distinction can make is illustrated in our recent decision in State v. Gonzales, 853 P.2d 526 (Alaska 1993). There, we were presented with the question whether a statute authorizing an order compelling testimony based on a grant of use and derivative use immunity satisfied the scope of the privilege against self-incrimination provided for in article I, section 9 of the Alaska Constitution. We concluded that use and derivative use immunity impermissibly dilutes the protection of article I, section 9. Id. at 530.
[2] Use and derivative use immunity allows prosecution for the crimes referred to in the compelled testimony, but prohibits use of the compelled testimony and evidence derived therefrom in such prosecutions. Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972). The statute at issue in Kastigar directed that when the district court issued an order compelling a witness to provide testimony, "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." 18 U.S.C. § 6002 (1988). The U.S. Supreme Court held that the grant of immunity provided protection equivalent to the Fifth Amendment privilege against self-incrimination:
The statute's explicit proscription of the use in any criminal case of "testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)" is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of `penalties affixed to ... criminal acts.'" Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.
Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661 (footnote omitted) (alteration in original).
[3] The Oil Pollution Act of 1990 included several amendments to 33 U.S.C. § 1321(b)(5). See Pub.L. No. 101-380, § 4301(a), 104 Stat. 484, 533 (1990). The provision now reads:
Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge... . Any such person .. . who fails to notify immediately such agency of such discharge shall, upon conviction, be fined in accordance with title 18, or imprisoned for not more than 5 years, or both. Notification received pursuant to this paragraph shall not be used against any such natural person in any criminal case, except a prosecution for perjury or for giving a false statement.
33 U.S.C. § 1321(b)(5) (Supp. III 1991).
[4] At the time of Hazelwood's offense, this statute called for regulations to require reporting of a number of marine casualties, including "material loss of property" and "material damage affecting the seaworthiness or efficiency of the vessel." 46 U.S.C. § 6101(a)(3), (4) (1988) (amended 1990). The Oil Pollution Act of 1990 added a subsection (5) to this provision. Pub.L. No. 101-380, § 4106(b), 104 Stat. 484, 513 (1990). The new subsection added "significant harm to the environment" to the list of marine casualties that are required to be reported. See 46 U.S.C. § 6101(a)(5) (Supp. III 1991).
[5] The State analogizes the "statements" in this case to the two statements at issue in United States v. Lipkis, 770 F.2d 1447, 1450-51 (9th Cir.1985). Lipkis is inapplicable, however, as in that case there were two separate statements made six months apart. Id. at 1449.
[6] See 33 U.S.C. § 1251(a) (1988) ("The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.").
[7] The court of appeals noted:
In the present case, witnesses called by the state during the evidentiary hearing testified that the grounding of the Exxon Valdez would in all likelihood have been discovered and investigated, with negligible delay, even if Hazelwood had failed to notify the Coast Guard immediately. Based on this testimony, Judge Johnstone declared the inevitable discovery doctrine applicable:
The defendant's report of the grounding notwithstanding, the state inevitably would have discovered the grounding of the Exxon Valdez and initiated the investigatory process by not later than 12:45 a.m. on March 24, 1989. The court further concludes, based on the facts, that the investigating team ... would have arrived at approximately the same time as they, in fact, did. Any observation made or investigation actually commenced would have been made or commenced at approximately the same time.
Hazelwood, 836 P.2d at 951 (alteration in original).
The dissent observes, "It is difficult to conceive how Hazelwood's oral statements specific pronouncements occurring at specific points in time ever could have been `inevitably discovered.'" This observation misstates the State's position and misinterprets our opinion. First, at no point in its briefing does the State contend that the text of Hazelwood's radio transmissions made to the Coast Guard within 20 minutes of the grounding is admissible in evidence. Rather, the State argues that as a consequence of the court of appeals' decision it is placed in a position where it cannot use any of the evidence gained from its investigation of the oil spill, despite the superior court's factual findings that the State would have discovered the accident. Second, our opinion is limited to the question whether the grant of immunity provided for in 33 U.S.C. § 1321(b)(5) is subject to the inevitable discovery doctrine. We express no view as to the admissibility of any particular portion of the State's evidence against Hazelwood. Such evidentiary questions remain for resolution by the court of appeals on remand.
[8] The Supreme Court described the exclusionary rule as a "doctrine requiring courts to suppress evidence as the tainted `fruit' of unlawful governmental conduct." Nix, 467 U.S. at 441, 104 S.Ct. at 2507-08. The exclusionary rule applies "not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence." Id. (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Furthermore, the exclusionary rule extends to "evidence that was the indirect product or `fruit' of unlawful police conduct." Id. (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
The Supreme Court was careful to emphasize, however, that information or evidence illegally obtained "need not always be suppressed." Id. Thus, the Supreme Court has recognized exceptions to the exclusionary rule, such as the independent source doctrine and the inevitable discovery doctrine.
[9] See Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964) ("[A] state witness may not be compelled to give testimony which may be incriminating ... unless the compelled testimony and its fruits cannot be used in any manner by ... officials in connection with a criminal prosecution against him.").
[10] Specifically, the Supreme Court explained:
The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.
By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct.
Id. 467 U.S. at 442-43, 104 S.Ct. at 2508.
[11] The court of appeals reasoned in part that the primary purpose of the exclusionary rule is to deter official lawlessness, and the application of the inevitable discovery rule in such circumstances serves to temper the impact of the exclusionary rule. On the other hand, in the immunity context no deterrent purpose is served, as the purpose of exclusion is to enforce the privilege against self-incrimination and the government's promise. Hazelwood, 836 P.2d at 951-53.
[12] The court of appeals appears to have weighed whether Alaska law, rather than federal law, should recognize inevitable discovery in immunity cases. See Hazelwood, 836 P.2d at 951 ("For present purposes, we may assume that the inevitable discovery doctrine would be adopted in Alaska in appropriate cases... ."). The court's reliance on Justice Marshall's dissent in Kastigar, see Hazelwood, 836 P.2d at 952 (quoting Kastigar, 406 U.S. at 470-71, 92 S.Ct. at 1669-70 (Marshall, J., dissenting)), would be appropriate had the court of appeals been deciding Alaska law. But in this case we are interpreting federal law, and thus are bound by the acceptance of the inevitable discovery rule in Nix and the constitutionality of use and derivative use immunity in Kastigar.
[13] See 33 U.S.C. § 1321(b)(5) (1988) (amended 1990) ("Any such person ... who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both.").
[14] The court of appeals further reasoned that Congress, not the court, should decide if the inevitable discovery rule is applicable to 33 U.S.C. § 1321(b)(5). We disagree. Congress, in drafting this statute, used terms of art that indicate use and derivative use immunity. The role of this court is to interpret the statute Congress has enacted, including the grant of immunity, within the context of Supreme Court precedent.
[15] As noted previously on remand the court of appeals may be required to address several other specifications of error raised by Hazelwood depending on its review of the superior court's predicate findings regarding the applicability of the inevitable discovery doctrine.
[1] The scope of immunity articulated in Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), has not been narrowed. Murphy, commented on with approval in Nix, recognized the independent source doctrine, reaffirmed in Kastigar.
Furthermore, one court has noted that the specific federal statute in question requires that "prosecution be based on evidence other than notification or information obtained by exploitation of such notification." United States v. Republic Steel Corp., 491 F.2d 315, 318 (6th Cir.1974) (addressing 33 U.S.C. § 1161(b)(4), which was later codified as 33 U.S.C. § 1321(b)(5)). The court emphasized the policy underlying the statute:
If [a person] ... is denied protection from prosecution based solely on such reporting ... in cases where it might be difficult after passage of time to trace the source of a discharge, there would be incentive ... to withhold reporting a spill.
Id.
[2] It remains my view that a case should be decided on as narrow a ground as possible. Therefore, I would not have addressed the constitutional issues until first addressing whether the evidence supported application of or exceptions to any exclusionary rule. Abood v. League of Women Voters of Alaska, 743 P.2d 333, 345 n. 3 (Alaska 1987) (Compton, J., dissenting); Deubelbeiss v. Commercial Fisheries Entry Comm'n, 689 P.2d 487, 491 (Alaska 1984) (Compton, J., concurring). The court of appeals chose to approach the case differently, and thus it is necessary to address the issues as the court of appeals has arranged them.
[3] The issue in this case is not whether Hazelwood himself is immune from prosecution, but whether evidence derived from the exploitation of Hazelwood's immunized report is admissible in a prosecution against him. The issue also is not whether the grounding of the Exxon Valdez, and resultant spillage of oil, would have been inevitably discovered. The answer to that question is too obvious to need comment.
[4] Nix and its predecessor, Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), involved the "Christian burial speech." Williams was charged with abducting a young girl in Des Moines, Iowa, but was arrested in Davenport, Iowa. Although the police agreed not to question Williams en route to Des Moines, a detective told Williams he wanted to give Williams something to think about "while we're traveling down the road... . I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered." In response, Williams asked the detective about the search for the girl, whether the police had found specific items of the girl's clothing, and why the detective thought they would pass near where the girl was buried. Williams then attempted to assist the police in locating items of the girl's clothing, and eventually led them to the place where she was buried. The trial court denied Williams' motions to suppress evidence relating to or resulting from his statements. His conviction was affirmed by the Iowa Supreme Court. In Brewer, Williams' conviction was set aside on the basis of a clear violation of the Sixth and Fourteenth Amendments to the United States Constitution. The Supreme Court observed that
[w]hile neither Williams' incriminating statements themselves nor any testimony describing his having led police to the victim's body can constitutionally be admitted into evidence, evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams... .
Brewer, 430 U.S. at 406 n. 12, 97 S.Ct. at 1243 n. 12 (emphasis added). This comment foreshadowed the Supreme Court's decision in Nix. It is noteworthy that the police were searching for the abducted girl before Williams made any statements and led the police to her body. In the case before us, the government was not looking for anything respecting the grounding of the Exxon Valdez until Hazelwood made his immunized statement.
[5] The Supreme Court's rationale is rooted in history. It represents a pragmatic balancing of the integrity and fairness of a criminal proceeding on the one hand, and law enforcement's interest in obtaining reliable evidence on the other:
More than half century ago, Judge, later Justice, Cardozo made his seminal observation that under the exclusionary rule "[t]he criminal is to go free because the constable has blundered." Prophetically, he went on to consider "how far reaching in its effect upon society" the exclusionary rule would be when "the pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes most flagitious." Someday, Cardozo speculated, some court might press the exclusionary rule to the outer limits of its logic or beyond and suppress evidence relating to the "body of a murdered" victim because of the means it was found. Cardozo's prophecy was fulfilled in Killough v. United States, 114 US App DC 305, 309, 315 F.2d 241, 245 (1962) (en banc). But when, as here, the evidence inevitably would have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.
Nix, 467 U.S. at 447, 104 S.Ct. at 2511 (citations omitted).
[6] The government's statutory mandate is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The superior court described implementation of this mandate as follows:
Polluting is generally always a crime. However, legislative bodies have balanced the need to abate and lesson [sic] pollution against the need to present all probative evidence in a criminal proceeding, and the balance has resulted in providing immunity to a polluter, in order to achieve regulatory goals.
Memorandum Decision and Order, State v. Hazelwood, No. 3AN-S89-7217 Cr./7218 Cr. (Alaska Super., December 29, 1989). It is noteworthy that no activity taken by the government in furtherance of its statutory mandate would have been restricted in the least by the exclusion of compelled evidence in the criminal proceeding against Hazelwood.
This point is relevant to the court's misplaced conclusion that the inevitable discovery doctrine is "essentially a variation on the independent source rule." Op. at 832. Although the Nix Court stated that the inevitable discovery doctrine is "functionally similar" to the independent source doctrine, Nix, 467 U.S. at 444, 104 S.Ct. at 2509, the functional similarity is limited to the fact that "exclusion of evidence that would be inevitably discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place." Id.
[7] In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Supreme Court observed that "[t]he exclusionary rule, ... when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth." Id. at 601, 95 S.Ct. at 2260.
[8] It is difficult to conceive how Hazelwood's oral statements specific pronouncements occurring at specific points in time ever could have been "inevitably discovered." Statements he made during the onboard investigation were used against him in a criminal proceeding. I do not know how it can be said that the government agents would have inevitably discovered these oral statements. It is one thing to make the tortured sequence of factual inferences would have, would have, would have leading to the conclusion that government agents would have arrived at the Exxon Valdez at about the same time as they did, with or without Hazelwood's initial immunized report. It is quite another to conclude that the agents would have asked Hazelwood the same questions and would have been given the same answers.
The practical problem with applying the inevitable discovery doctrine to oral statements made by Hazelwood simply highlights the fundamental analytical problem in applying the doctrine to information derived from the exploitation of an immunized statement. The government actually used "information obtained by the exploitation" of an immunized statement to convict the person compelled to make the statement. 33 U.S.C. § 1321(b)(5). This violates the statute and the Fifth Amendment privilege against self incrimination. Its use is not made any more permissible by musings about what hypothetically might have happened if the government had not used information derived from the exploitation of an immunized statement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608616/ | 621 P.2d 241 (1980)
In the Matter of the Application of RULE RADIOPHONE SERVICE, INC. for Authority to Amend its Existing Certificated Radio Common Carrier Service Area to Conform with the latest Service Area Directive of the Wyoming Public Service Commission as contained in Docket No. 9658 Sub 1 and Docket No. 9438 Sub 2.
TELSTAR COMMUNICATIONS, INC., Appellant (Petitioner),
v.
RULE RADIOPHONE SERVICE, INC., and the Public Service Commission of Wyoming, Appellees (Respondents).
No. 5326.
Supreme Court of Wyoming.
December 17, 1980.
*242 Arthur Kline, Kline & Swainson, argued, Cheyenne, for appellant.
Cary R. Alburn, III, argued, Laramie, for Rule Radiophone Service, Inc.
John D. Troughton, Atty. Gen., Thomas J. Carroll, III, Senior Asst. Atty. Gen., and Lawrence J. Wolfe, Asst. Atty. Gen., argued, Cheyenne, for Public Service Commission.
Before RAPER, C.J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
RAPER, Chief Justice.
This appeal arises from a district court's decision upholding an order by the Public Service Commission (PSC) which granted a petition by Rule Radiophone Service, Inc. (Rule), seeking a redefinition of its certificate service area. Telstar Communication, *243 Inc. (Telstar), challenges the PSC's order as unsupported by substantial evidence, arbitrary and capricious, and exceeds the scope of the PSC's authority and jurisdiction. Both Rule and Telstar operate radio telephone exchange services as radio common carriers (RCC).
We will affirm.
In 1974, the predecessors in interest to Rule and Telstar petitioned the PSC for authority to provide mobile radio telephone and paging service for the southeast corner of Wyoming. In particular both petitions sought the right to service the cities of Cheyenne and Laramie, Wyoming. At that time the PSC, after conducting several days of hearings, granted Rule a certificate of public convenience and necessity covering the City of Laramie and its "surrounding territory," while Telstar was granted a certificate of public convenience and necessity to serve the City of Cheyenne and "surrounding area" as its market.
Following the PSC's action, Rule obtained the necessary Federal Communications Commission (FCC) authority to install its very high frequency (VHF) transmitter on Sherman Hill, forty miles west of Cheyenne. After the transmitter was installed, it was discovered that it would service a far more extensive area than the PSC had estimated in its order. Not only was Laramie covered but also in reach were Pine Bluffs, Cheyenne, Wheatland, Chugwater, Rock River, Shirley Basin, and Hanna, among other Wyoming towns. Thus in 1978, after the PSC had in another case involving three RCC's in Natrona County (PSC Docket Nos. 9658 Sub 1 and 9438 Sub 2) recognized the impracticality of the technique used to originally estimate Rule's service area, Rule filed a petition seeking to redefine its certificate area according to where the signals from the transmitter were actually received. Radio signals cannot be confined to a particular geographic area such as a county as can the land lines of a wire telephone service, the electric transmission wires of a power company, the pipes of a pipeline company or the rails of a railroad.[1] Telstar, which had just commenced ultra high frequency (UHF) operations, protested and intervened in the proceeding urging the PSC to disapprove and not legitimize what it termed Rule's invasion of the Cheyenne market for which Telstar had been certificated by the PSC.
Following a hearing on the matter, the PSC set out in its memorandum opinion and order:
"15. The Commission specifically finds the testimony and evidence of record to be sufficient to support a finding that the redefinition sought by Rule is necessary and in the public interest. In support thereof, the Commission finds:
"(a) That the redefinition requested by Rule should be granted as it will provide increased VHF coverage in southeastern Wyoming;
"(b) That such a redefinition should have a beneficial revenue impact upon Rule's RCC operations;
"(c) That such a redefinition will further the policy of regulated competition[[2]] *244 heretofore adopted by this Commission; and
"(d) That such a redefinition should act to provide increased service reliability to all customers of Rule Radiophone Service, Inc."
It then concluded by redefining Rule's service area to include the Cheyenne area requested.
Appellant first attacks the PSC's order as unsupported by substantial evidence. It contends that the evidence presented during the hearing was clearly inadequate to sustain the conclusion that there existed in Cheyenne a need for Rule's service. We do not agree.
Section 37-2-205(a), W.S. 1977, provides:
"(a) No public utility shall begin construction of a line, plant or system, or of any extension of a line, plant or system without having first obtained from the commission a certificate that the present or future public convenience and necessity require or will require such construction. This act shall not be construed to require any public utility to secure a certificate for an extension within any city or town within which it has lawfully commenced operation, or for an extension into territory contiguous to its line, plant or system for which no certificate is in force and is not served by a public utility of like character or for any extension within or to territory already served by it, necessary in the ordinary course of its business. If any public utility, in constructing or extending its line, plant or system interferes or is about to interfere with the operation of the line, plant or system of any other public utility already authorized or constructed, the commission on complaint of the public utility claiming to be injuriously affected, may after hearing make such order and prescribe the terms and conditions for the location of the lines, plants or systems affected, as to it are just and reasonable. The power companies may, without the certificate, increase capacity of existing plants."
Though Rule's petition did not request permission to begin new construction, it is clear that by granting it, the PSC in effect cleared the way for construction of new transmitters anywhere in the enlarged area, as long as approved by the FCC. This is true because once the PSC certificates the radio-telephone service area, it loses its power to bar such construction since jurisdiction has then been effectively transferred to the FCC. Only the FCC can authorize installation of radio broadcast facilities preempted by the United States. Title 47, U.S.C. Thus, under the statute, the PSC's conclusion that the public need requires the extra coverage is crucial to the result since in effect it has authorized construction of a new transmitter. There was substantial evidence supporting the PSC's finding. Testimony was offered establishing that there were already Cheyenne customers dependent upon Rule's service; this resulted because Rule and Telstar cater to different clientele; Mountain Bell[3] also failed to satisfy the needs of Rule's customers; Telstar's service was inadequate to serve transients; Rule could provide VHF service while Telstar was limited to UHF; if the PSC were to recognize primary and secondary *245 service areas based on actual coverage rather than estimates, then serious problems presented elsewhere in the state could be avoided; and finally the public would benefit from limited competition because the competitors would offer a wider range of services. Thus under § 9-4-114(c)(ii)(E), W.S. 1977, 1980 Cum.Supp.[4] we must uphold the PSC's finding of fact that there was public need and convenience.
The ultimate weight to be given evidence before the PSC as a trier of fact is to be determined by that agency in the light of the expertise and experience of its members in such matters. Pan American Petroleum Corporation v. Wyoming Oil and Gas Conservation Commission, Wyo. 1968, 446 P.2d 550. We will not substitute our judgment for that of the PSC if the PSC's decision is supported by substantial evidence. Sage Club, Inc. v. Employment Security Commission of Wyoming, Wyo. 1979, 601 P.2d 1306. We think it is, in that it seems to meet the standard of relevant evidence adequate to support a conclusion as set out in Sage Club.
Appellant next challenges the PSC's conclusion that because Rule's service operated on a VHF level while Telstar's was on a UHF one, they were not of like character. However, this conclusion was not essential to the decision to grant the redefinition of Rule's service area. We agree with the district judge when in his letter opinion he stated that it was difficult for him "to conceive any practical difference in the nature or character of services furnished by each of the RCC's in this case other than the difference in radio frequencies utilized and authorized by the FCC. The character of services available would seem to be the same." We also observe that VHF and UHF are distinctions without a difference. Rule and Telstar could have been just as widely separated had they both been on the same radio frequency band but with different assigned wave lengths. The district judge then concluded that would not be ground for reversal and was within the expertise of the PSC but that it was a "thin reed" for Telstar to rely on in the face of a policy of regulated competition.
We consider the most significant findings of fact of the PSC are that (1) the protest of Telstar is based upon competitive factors in that its allegations are that certification of Rule into the City of Cheyenne would decrease the market available to Telstar and make survival an economic uncertainty-Rule would become a bona fide competitor with Telstar; and (2) the PSC has moved in the area of RCC's from a position of regulated monopoly to a policy of regulated competition as the most effective means of providing reliable service to the public.
As this court held in Dubois Telephone Exchange v. Mountain States, supra fn. 2, § 37-2-205(a) does not contemplate that only one public utility will be granted a certificate of public convenience and necessity for furnishing service within a certificated area. The section anticipates that more than one system can co-exist in one area under such terms as may be "just and reasonable." It has been recognized that *246 one dominant service may not, without effective competition, be an adequate service. Some competition may be in the public interest where it will secure the benefits of an improved service without unduly prejudicing the existing service. Slay Transportation Co., Inc. v. United States, E.D.Mo. 1973, 353 F. Supp. 555.
We note that Telstar in its evidence made no firm showing that the presence of Rule would be destructive. The testimony of its president was only that it had a substantial investment in equipment and he would "venture to say that it would split the open competition right down the middle, along with Mountain Bell." This is no more than an expression of fear. There was no hard evidence to support what was no more than speculation. The PSC does not exceed its powers in granting competing rights in the absence of evidence other than fear that a certificated business will suffer. Dion v. Public Utilities Commission, 1963, 24 Conn. Super. Ct. 402, 192 A.2d 46.
The purpose of the authority of the PSC is to secure to the public all the advantages of competition in obtaining fair rates and good service and to protect the public from its disadvantages. It is a fact of life that there are situations in which competition may serve a useful purpose in such matters as to character of service provided, courtesy and efficiency of employees, modernization of equipment, and economy of operation. These are matters of interest to consumers. Self interest in obtaining business and making profits is the greatest of incentives in bringing about advancements. State ex rel. City of Sikeston v. Public Service Commission of Missouri, 1935, 336 Mo. 985, 82 S.W.2d 105.
The public interest is to be given paramount consideration; desires of a utility are secondary. Big Horn Rural Electric Company v. Pacific Power & Light Company, Wyo. 1964, 397 P.2d 455. The fact that a new service may have some effect on an existing service does not preclude the creation of additional facilities. Incidental disadvantages are simply weighed in balance against ultimate public advantages. Hohorst v. Greenville Bus Company, 1954, 17 N.J. 131, 110 A.2d 122.
There is obviously a demand for the radio-telephone services offered by both Telstar and Rule and an absence of any evidence that they cannot both survive and thrive in a competitive atmosphere. We hold that with the state of the evidence in this case a determination of what is in the public interest with respect to a duplication of services was within the judgment of the PSC. The judicial function is exhausted when we can find from the evidence a rational view for the conclusions of the PSC. Blue Ridge Transportation Co. v. Pentecost, 1961, 208 Tenn. 94, 343 S.W.2d 903. The PSC was not arbitrary and capricious in its decision.
Finally, appellant asserts that the PSC has no jurisdiction to assign frequencies or to designate that one RCC shall operate on VHF and another on UHF in that such jurisdiction rests with the FCC. We are in complete accord with appellant's statement of the law; however, we fail to understand its significance in this case. The PSC has not awarded frequencies nor directed where Rule's communications equipment will be located; it has merely redefined Rule's service area. In so doing, it did note that Rule and Telstar had been assigned different frequencies and, further, the impact on the services available to the public. But that is proper.[5] Additionally, this is a question never presented to either the PSC nor the district court. "The review shall be * * * confined to the record *247 as supplemented pursuant to Rule 12.08, W.R.A.P., and to the issues raised before the agency. * * *" Rule 12.09, W.R.A.P.; Wyoming Bancorporation v. Bonham, Wyo. 1974, 527 P.2d 432, 439.
Affirmed.[6]
ROONEY, Justice, specially concurring.
I concur with the result reached by the majority opinion and generally with the views expressed therein. I have some difficulty with the term and concept of "regulated competition" as used in the majority opinion, i.e., as a purpose for Public Service Commission action. Free competition is the cornerstone of our economic system. The Public Service Commission does not have for its purpose the regulation of competition-although such regulation may indirectly result from its proper activities. The Public Service Commission has been given authority under the police power of the state to regulate rates of public utilities and establish and maintain efficient and safe service without discrimination by them. Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, 137 P. 1119 (1913); Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543 (1939); Bilton Machine Tool Co. v. United Illuminating Co., 110 Conn. 417, 148 A. 337 (1930); Colorado Interstate Gas Company v. Federal Power Commission, 324 U.S. 581, 65 S. Ct. 829, 89 L. Ed. 1206 (1945), rehearing denied 325 U.S. 891, 65 S. Ct. 1082, 89 L. Ed. 2004 (1945); State Corporation Commission of Kansas v. Wichita Gas Co., 290 U.S. 561, 54 S. Ct. 321, 78 L. Ed. 500 (1934); People of State of New York ex rel. Woodhaven Gaslight Co. v. Public Service Commission of New York, 269 U.S. 244, 46 S. Ct. 83, 70 L. Ed. 255 (1925). See §§ 37-1-101(a)(vi), 37-1-102, 37-2-112, 37-2-119, 37-2-121, 37-2-122, 37-2-205, 37-2-219, 37-3-101, 37-3-114, 37-6-101, 37-8-106, 37-8-107, 37-8-108, 37-8-201, 37-8-202, 37-8-501, XX-XX-XXX, XX-XX-XXX, W.S. 1977. In the exercise of this authority, competition may be regulated indirectly, but such regulation is not the basic purpose for the activities of the Public Service Commission.
The record in this case reflects that the action of the Public Service Commission was conducive to the maintenance of efficient public service. On that basis, I concur.
NOTES
[1] As explained in the testimony of Mr. Robert R. Rule, president and owner of 90% of the stock of Rule, "the actual service area of a radio common carrier is almost universally from a practical standpoint simply that area where a mobile [radio] can communicate with it." By means of what is referred to as a field intensity meter, the reach of a radio transmitter can be determined on the ground. The FCC uses a standard of 37 dbu (37 decibels above a microvolt). When field measurements are taken, the result is that, though radio signals leave an antenna in a circular wave form, the irregularity of terrain provides an erratic wave form and the strength of the signals on the ground results in an irregular shaped efficient reception area. Rule wants its service area redefined to fit the area actually served by its antenna. This area extends not only into Albany County but also into Carbon County, Laramie County and Platte County. Its mobile units installed in the vehicles of its subscribers travel into all these areas.
[2] Telstar does not disagree with the PSC's policy of "regulated competition." In Dubois Telephone Exchange v. Mountain States Telephone and Telegraph Company, Wyo. 1967, 429 P.2d 812, this court held that two similar utilities may have rights in the same territory and the PSC is authorized in the event of a conflict between two utilities to make such order and prescribe such conditions as to it may seem just and reasonable and that § 37-2-205(a), W.S. 1977, infra, formerly § 37-31, W.S. 1957, does not contemplate that only one public utility will be granted a certificate of public convenience and necessity for furnishing telephone service within a certificated area. At the time, in 1975, Rule and Telstar were granted certificates, the PSC also granted to Airsignal International, Inc. a certificate to provide mobile and paging service to the cities of Cheyenne and Laramie and surrounding territory but it never commenced operations and at its request, the certificate was canceled. This represents a consideration that competition was contemplated at that time.
[3] Mountain Bell did not intervene in this proceeding, though public notice was given. Mountain Bell provides a different mobile telephone service connecting to its land lines. Mr. Rule testified that not only does Mountain Bell operate on different frequencies but also the main difference is that Mountain Bell does not provide secretarial service such as call forwarding, message retention, call holding, patching and so forth. The evidence disclosed that both Rule and Telstar have leased lines with Mountain Bell and can patch a mobile unit into them and provide communication from a mobile radio to a Mountain Bell subscriber.
[4] Section 9-4-114(c), W.S. 1977, 1980 Cum. Supp.:
"(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
"(i) Compel agency action unlawfully withheld or unreasonably delayed; and
"(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
"(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
"(B) Contrary to constitutional right, power, privilege or immunity;
"(C) In excess of statutory jurisdiction, authority or limitations, or lacking statutory right;
"(D) Without observance of procedure required by law; or
"(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute."
[5] 47 U.S.C. § 221(b):
"(b) Subject to the provisions of section 301 of this title, nothing in this chapter shall be construed to apply, or to give the Commission jurisdiction, with respect to charges, classifications, practices, services, facilities, or regulations for or in connection with wire, mobile, or point-to-point radio telephone exchange service, or any combination thereof, even though a portion of such exchange service constitutes interstate or foreign communication, in any case where such matters are subject to regulation by a State commission or by local governmental authority."
[6] This has been a difficult case to deal with in that it presents to this court a field of utility regulation with which we have no experience and the parties have not made a record before the PSC which presents a complete background of radio-telephone regulation. It refers to its 1974 case of which the PSC could take judicial notice but we do not have the benefit of the record in that case nor do we have the benefit of Docket Nos. 9658 Sub 1 and 9438 Sub 2, apparently 1978 cases before the PSC upon which it relied for an enlightened view of RCC regulation. The parties have not defined radio terminology used, though fortunately the testimony of Mr. Rule gave us a hint of the meaning of such terms as 37 dbu, VHF and UHF. "FX telephone line" was not explained, however. The PSC has apparently adopted a definition of "regulated competition" disclosed in briefs filed with the district court but it does not set it out in its order. While we often have to ferret out what parties are getting at, briefing and a more comprehensive record would have helped in the work of this court in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2468086/ | 150 F. Supp. 2d 421 (2001)
August KENNAUGH, Petitioner,
v.
David MILLER, Superintendent, Eastern Correctional Facility, Respondent.
No. 99-CV-4695 ERK.
United States District Court, E.D. New York.
April 20, 2001.
*422 *423 Anthony V. Lombardino, Richmond Hill, NY, for petitioner.
Richard A. Brown, Dist. Atty., Queens County, Kew Gardens, NY (John M. Castellano, Nicole Beder, Donna Aldea, Asst. Dist. Attys., of counsel), for respondent.
MEMORANDUM & ORDER
KORMAN, Chief Judge.
August Kennaugh seeks habeas corpus relief from his conviction for one count of second-degree murder and two counts of first-degree robbery. After a jury trial, petitioner was sentenced to concurrent indeterminate terms of imprisonment of twenty-five years to life for the murder conviction, and eight and one-third to twenty-five years on each of the robbery convictions. The Appellate Division affirmed the conviction, People v. Kennaugh, 92 A.D.2d 1090, 459 N.Y.S.2d 953 (2d Dep't 1983), and petitioner's application for leave to appeal to the New York Court of Appeals was denied. 59 N.Y.2d 677, 463 N.Y.S.2d 1036, 450 N.E.2d 259 (1983).
The underlying crimes were committed in the early morning of October 5, 1979, when petitioner and two other men forced themselves into a restaurant in order to commit a robbery. During the robbery, the owner of the restaurant was stabbed to death. Petitioner was arrested four months later. Petitioner seeks relief on two grounds. In his original petition, he claimed that the District Attorney failed to disclose that two witnesses had observed the perpetrators just prior to the crime and were unable to identify petitioner at a lineup. Petitioner later amended the petition to include the claim that an eyewitness, who failed to identify him at a lineup held seven months before trial, was permitted to do so in a suggestive in-court setting.
BACKGROUND
In the early morning of October 5, 1979, Guelfo Nello Terzi, the owner of Caesar's Restaurant ("Caesar's"), Gemma Terzi, his wife, and Elio Rusnjak, the bartender, were closing the restaurant for the night. As Rusnjak opened the door to leave, three young men (one allegedly being petitioner), two of whom were carrying guns, forced their way into the restaurant. Tr. 41-42; 108-09. Mrs. Terzi and Rusnjak were thrown on the floor, and two of the men watched and guarded them. Tr. 56; 109. Mrs. Terzi's pocketbook, jewelry, and gold, among other items, were taken from her. Tr. 56-58. The third man took Mr. Terzi to the cash register at the bar and then to the kitchen where approximately $500 was kept to start the next day. Tr. 58, 65; 109.
Mrs. Terzi and Rusnjak were also taken to the kitchen. Tr. 59; 111. Both of them were thrown to the floor and Mrs. Terzi was tied up with a napkin. Tr. 59-60; 111. Two of the men went with Mr. Terzi to the other side of the kitchen, where the refrigerator containing a box with money was located. Tr. 111. One of them forced Rusnjak to get up, told him not to remember anything when the police came, and made him take off his belt and pants. Tr. 112. Rusnjak was then forced to lay down again, hit twice with a gun, and tied up with his belt. Tr. 61; 112. One of the perpetrators suggested raping Mrs. Terzi, but she was not in fact raped. Tr. 60-61; 113. Mrs. Terzi recalled that one of the perpetrators said to her husband, "If you don't give us the money, we will kill you," and Mrs. Terzi responded, "Then kill me." *424 Tr. 62. Mr. Terzi was then stabbed and killed, and another of the perpetrators screamed, "Why you do that, Why you do that." Tr. 63. As the men ran out, one of them, identified as petitioner, pointed a gun at Mrs. Terzi and told her that she should not remember his face or tell the police she has seen anything. Tr. 63. After the perpetrators left the restaurant, Mrs. Terzi untied herself and Rusnjak. The two of them discovered that Mr. Terzi had been stabbed with a kitchen knife. Tr. 64; 113-13. Rusnjak then called the police. Tr. 64; 114.
Petitioner was arrested on February 3, 1980, and he was tried in New York State Supreme Court, Queens County, in early 1981. The case against him consisted primarily of petitioner's fingerprint on the cash register at the scene of the crime and of eyewitness identifications.
1. Fingerprint Evidence
Detective Gerald Donohue testified for the prosecution that on the night of the incident, he lifted a fingerprint that was located on the bottom of the drawer of the cash register. Tr. 144-49. He opined that, because of the area in which the drawer was located and the amount of times a cash register is used, the print could have been on the register for at most two days. Tr. 152-53. At this point in the trial, Rusnjak had testified that the cash register remained open at night after it was emptied. Tr. 107. He did not testify as to the number of times the cash register was used when the restaurant was open. Nevertheless, the former owner of Caesar's, Wilfredo Betancourt, later testified that large bills and checks were kept underneath the cash register tray. Tr. 282-84. After Betancourt testified, the prosecution moved to recall its fingerprint experts, to specifically address the significance of this use of the cash register tray, Tr. 289, but the trial judge denied the motion, believing that the evidence would be cumulative. Tr. 293. Indeed, while Detective Donohue conceded in his testimony that the drawer was not subject to air when the register is closed, he noted that the drawer was subject to friction caused by placing large bills under the drawer. Tr. 155-56. Donohue also stated that, "[i]f the drawer wasn't used [a fingerprint] could last an indefinite period of time as long as it wasn't disturbed." Tr. 158.
Officer John Dee testified as an expert in latent fingerprints that the fingerprint found on the cash tray belonged to petitioner. Dee testified that he compared a fingerprint taken of petitioner when he was arrested with a partial latent fingerprint found on the cash register in the restaurant. Tr. 178-79. He concluded that the left thumb was a match, Tr. 186, and that "[i]t's impossible for that latent print to be any other print than that print there of [the left thumb] finger." Tr. 189. In response to a question from defense counsel concerning how long a print could remain on a cash register that is primarily closed, Dee stated that it would depend on atmospheric conditions, use of the equipment, and various other factors, and that it could be any length of time. Tr. 195-96.
Petitioner did not dispute that his fingerprint was on the cash register. Instead, he attempted to explain the presence of his fingerprint by showing that he had touched the cash register at a time other than during the robbery. John Harms, an electrician who knew petitioner's parents and frequented Caesar's, and Thomas McManus, the owner of a bar frequented by petitioner's father, testified that they had seen petitioner and his father in Caesar's on numerous occasions. Tr. 258-59; 264-66. Both witnesses admitted on cross-examination that they had *425 never seen petitioner touch the cash register. Tr. 261; 267. This missing piece was filled by the testimony of Mr. Betancourt, the former owner of Caesar's, who had sold the restaurant and moved to Florida about a year and one-half before the trial. Tr. 269-70. Betancourt identified petitioner as having been in the restaurant with his father many times. Tr. 270. Some three months before the robbery, when closing the restaurant, Mr. Betancourt removed the cash tray from the register in order to count the money and the tray fell on the floor. Petitioner, who was in the restaurant, picked up the tray and gave it to Betancourt. Tr. 271. Mrs. Terzi had testified that she and her husband had not replaced any of the equipment in the restaurant. Tr. 77.
Mr. Betancourt, however, was unable to remember several details on cross-examination: the month during which he had moved to Florida, Tr. 274, the specific date or week in July when the tray fell, Tr. 284, the one time, other than the night the tray fell, when petitioner and his father stayed until the restaurant closed, Tr. 275-76, or the identities of the other people in the restaurant when the tray fell. Tr. 280. Betancourt stated that the night in July 1979 was the only time he could remember the tray falling, Tr. 276, 286, and that it was one of the rare nights that the bartender, Rusnjak, left before the restaurant had closed. Tr. 279-80.
2. Identification Testimony
The prosecution introduced two pieces of identification evidence. First, Irving Silver, a resident of Queens, testified that he was in the restaurant the night of the robbery at about 10:00 or 10:30, that he left at about 12:30, and that he saw petitioner on the street near a pizza store, four stores away from the restaurant. Tr. 129-31. Silver could not remember whether petitioner was with anyone else. Tr. 131. Silver testified that in July 1980, he observed a lineup and identified petitioner as the person he had seen outside the pizza store. Tr. 131-33. Silver also identified petitioner at the trial. Tr. 130. This testimony placed petitioner in the neighborhood a little over an hour before the robbery was committed. Silver acknowledged on cross-examination that the pizza store was a place where young people congregated, Tr. 135, and stated that he did not recognize petitioner's counsel as one of the persons present at the July 1980 lineup. Tr. 133-34. Second, Mrs. Terzi identified petitioner as one of the perpetrators of the crime. Tr. 62-63. The circumstances of her identification are discussed more fully in the portion of this memorandum that addresses petitioner's challenge to the admissibility of her identification. Suffice it to say here that Mrs. Terzi's identification was of minimal probative value.
Petitioner was convicted of one count of second-degree murder and two counts of first-degree robbery, and sentenced to concurrent indeterminate terms of imprisonment of twenty-five years to life for the murder conviction, and eight and one-third to twenty-five years on each of the robbery convictions.
THE POST-CONVICTION MOTION
At some point after the judgment of conviction became final, petitioner's counsel came across two DD-5 police reports that described interviews with Jack Basilico and Joseph Bovino. Basilico and Bovino were patrons at the restaurant on the night of the robbery, and at about 1:00 A.M., they saw three young men trying to get inside the restaurant in order to purchase cigarettes from a vending machine in the restaurant's vestibule. The men passed a dollar bill through the door to Mr. Terzi who then slipped a pack of cigarettes *426 back to the men. Affidavit and Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, at ¶ 6 ("Mem. in Opp."); Amended Petition for Writ of Habeas Corpus, ¶ 8 ("Amend. Pet."). Basilico and Bovino left the restaurant at about 1:30 A.M. and saw the men making a phone call on a street corner outside the restaurant. Mem. in Opp., ¶ 7; Amend. Pet., ¶ 8. They did not witness the incident. The DD-5s discussed their failure to identify petitioner at a photo viewing on October 6, or at a lineup that took place on October 23, 1980, approximately one year after the robbery. The DD-5s also contained their statements that they would be able to identify in person the youths that had bought the cigarettes. Decision, Motion to Vacate Judgment, March 11, 1998, at 3 ("§ 440.10 Decision"); Mem. in Opp., ¶ 19.
On May 2, 1996, petitioner filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, on the ground that the prosecution had willfully concealed exculpatory evidence when it failed to disclose evidence relating to Basilico and Bovino, in violation of Brady and Rosario. Amend. Pet., ¶ 17. After an evidentiary hearing, the motion to vacate the judgment was denied. § 440.10 Decision, at 1. The judge presiding at the § 440.10 hearing found that "the prosecution failed to deliver the two DD-5's at issue to the defense and did not inform them of Basilico and Bovino's inability to identify [petitioner] in the lineup." Id. at 5 (footnotes omitted). Nevertheless, the judge also found that defense counsel knew that a second lineup had been conducted and had a duty to inquire into the results of that lineup. Id. at 5 n.2. More significantly, the police reports were not material evidence because a reasonable probability did not exist that the disclosure of the reports would have altered the outcome of the trial. Specifically, the judge concluded that "any assistance Basilico and Bovino would have provided if called as defense witnesses is highly speculative. They were not eyewitnesses to the crime. Furthermore, there is nothing which links the perpetrators of the crimes to the young men who earlier had purchased cigarettes from the victim." Id. at 6. Under these circumstances, if called at the trial, they would have testified only that, a year after the event, they could not identify petitioner as one of the three men who they had seen in the vicinity of the restaurant shortly before the robbery.
Some time after the denial of the § 440.10 motion, petitioner's mother found buried in her closet two DD-5s that involved interviews with Mrs. Terzi and Rusnjak, the bartender. Affirmation, in support of Motion to Reargue, Anthony V. Lombardino, ¶ 7. In the respective DD-5s, both Mrs. Terzi and Rusnjak stated that the men who had purchased cigarettes were the same men that later forced themselves into Caesar's and perpetrated the crimes. Id., ¶ 8; Ex. B. The significance of the DD-5s is that they place in a somewhat more helpful light to petitioner the failure of Basilico and Bovino to identify him as one of the persons they saw purchasing cigarettes from the victim earlier in the evening before the robbery. If, as the latest DD-5s indicate, the persons who purchased the cigarettes were the same persons who later returned to the restaurant to commit the robbery and murder, their inability to pick petitioner out of the lineup was more significant than the bare fact that they could not identify petitioner as one of the men who they had seen in the vicinity of the restaurant.
On the basis of the two additional DD-5s, petitioner moved on March 3, 1999 to reargue his § 440.10 motion. The motion was denied for two reasons. The court concluded that the results of the trial *427 would not likely have been different had the DD-5 reports been turned over to the defense. Order, Motion to Reargue, April 7, 1999, at 2 ("Order, Motion to Rearg."). The court also found that petitioner had failed to make any showing as to why the additional police reports could not have been submitted with the initial § 440.10 motion when they had been in his mother's possession. Id. at 1-2. The judge cited to three cases denying motions for renewal and/or reargument that had been supported with additional facts because of the failure to offer valid excuses for not having included the evidence in the original motions. See People v. Chetrick, 255 A.D.2d 392, 681 N.Y.S.2d 287 (2d Dep't 1998); Misek-Falkoff v. Village of Pleasantville, 207 A.D.2d 332, 615 N.Y.S.2d 422 (2d Dep't 1994); Caffee v. Arnold, 104 A.D.2d 352, 478 N.Y.S.2d 683 (2d Dep't 1984). All three of these cases cite to Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588 (1st Dep't 1979), in which the Appellate Division discussed the difference between motions for reargument and renewal. A motion for reargument is "designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." Id. at 567, 418 N.Y.S.2d 588. A motion for renewal, which is at issue here despite petitioner's characterization of his motion as one for reargument, "must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court." Id. at 568, 418 N.Y.S.2d 588. A motion for renewal should be denied "where the party fails to offer a valid excuse for not submitting the additional facts upon the original application." Id. (citations omitted). In this case, the judge found that petitioner had not offered a valid excuse for failing to submit the police reports with the original motion.
The judge did not rely on Section 440.10(3)(c) of New York's Criminal Procedure Law, which would seem to have been the relevant statutory provision if petitioner had filed a second § 440.10 motion to vacate his judgment of conviction. Section 440.10(3)(c) provides that a motion to vacate a judgment may be denied when, "[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." § 440.10(3)(c). This provision, however, provides that, "in the interest of justice and for good cause shown," the second successive motion may be granted "if it is otherwise meritorious." § 440.10(3). The Practice Commentaries explain that "the test as to whether the court will exercise discretion to relieve the defendant from forfeiture will be whether the defendant can demonstrate good cause for failure to raise the ground on a prior motion." Peter Preiser, Practice Commentaries, McKinney's Consol. Laws of N.Y., Book 11A, Crim.Proc.L. § 440.10, at 427. In this case, though the judge did not refer to § 440.10(3)(c) in denying the motion for reargument, the result would not have been any different if he had treated the motion for reargument as a second motion to vacate the conviction.
On September 22, 1998, the Appellate Division denied petitioner's application for leave to appeal from the denial of the motion to reargue. Amend. Pet., ¶ 19. Petitioner filed his original petition for a writ of habeas corpus on August 13, 1999, and an amended petition on March 1, 2000.
DISCUSSION
I. Brady Violation Claim
Petitioner contends that the failure to disclose that two witnesses had observed *428 the perpetrators just prior to the crime and were unable to identify petitioner at a photo session or at a lineup a year after the robbery, violated his constitutional right to due process and impaired the integrity of the fact-finding process. Amend. Pet., at 14. Petitioner's initial § 440.10 motion raising this claim was denied on the merits, and the motion to reargue was denied on the merits and on the grounds of procedural default. A review of the record indicates that the denials of both motions were correct.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) held that "the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S. Ct. at 1196-97. Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985); see also Strickler v. Greene, 527 U.S. 263, 282, 119 S. Ct. 1936, 1948-49, 144 L. Ed. 2d 286 (1999) (evidence is material if the failure to disclose it results in prejudice). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995).
In the instant case, while petitioner contends that "[t]here can be little doubt that had Basilico and Bovino been made available to the defense ... petitioner would have been acquitted," Amend. Pet., ¶ 14, a consideration of the potential effect of the two witnesses' testimony reveals that the testimony could not "reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435, 115 S. Ct. at 1566. Basilico and Bovino presumably would have testified that they witnessed three men purchasing cigarettes from Mr. Terzi, had stated that they would be able to identify the men if they saw the individuals in person, but had been unable to identify petitioner at either a photo array or a lineup that took place one year after the incident. Order, Motion to Rearg., at 2. Even if other evidence established that the same three men later robbed the restaurant, this testimony does not put the case in a vastly different light or significantly strengthen petitioner's case; the testimony concerns a failure to identify, not an affirmative statement that petitioner is not one of the perpetrators. Also, the lineup did not take place until a full year after the incident, and the testimony does not directly impeach or cast significant doubt on the other evidence in the record supporting petitioner's guilt. Significantly, the jury had heard testimony that one eyewitness, Mr. Rusnjak, the bartender, was unable to identify petitioner at the trial.
Moreover, the relative strength of the other evidence at trial supports the conclusion that the failure to disclose the police reports does not undermine confidence in the verdict. First, the testimony of Irving Silver placed petitioner a few stores away from the scene of the crime a little over an hour before the robbery took place. Second, and most integral to the discussion here, was the testimony of two expert witnesses as to the presence of petitioner's fingerprint underneath the tray of the cash register. Petitioner did not dispute that *429 his fingerprint was on the cash tray. Rather, petitioner attempted to explain, through the testimony of three witnesses, one of whom was the former owner of the restaurant, that he frequented Caesar's restaurant with his father and on one occasion, some three months before the robbery, he picked up the cash register after it had fallen on the floor. This implausible story was undermined by evidence that (1) the fingerprint could not have lasted on the tray for more than a couple of days because of the friction that results from the placement of large bills under the tray, and that (2) large bills and checks were kept underneath the cash register tray. Tr. 282-84. Significantly, in his initial decision denying petitioner's § 440.10 motion, the judge noted that the jury "had sufficient grounds for crediting ... the fingerprint evidence which placed [petitioner] at the scene." § 440.10 Decision, at 6. The judge also stated that "[t]he jury evidently did not believe the prior owner of the restaurant when he testified for the defense and offered an innocent alternative explanation for defendant's fingerprint being on the cash register." Id.
Petitioner claims that the prosecution's fingerprint evidence was "totally non-probative," because Mrs. Terzi "identified petitioner as the perpetrator, who was assigned to her, and, therefore, he had no occasion to get near the cash register," and that "it was an unidentified perpetrator, assigned to her husband, that rifled the cash register, not petitioner." Amend. Pet., ¶ 13. If the perpetrator identified as petitioner was in fact never near the cash register, the corroborative power of the fingerprint would be somewhat undercut because the prosecution's case would seemingly consist of two conflicting pieces of evidence. Contrary to petitioner's contention, however, Mrs. Terzi did not clearly identify petitioner as the perpetrator who was assigned to her. Mrs. Terzi testified that a blond boy was taking care of her, but identified petitioner as the perpetrator who pointed a gun at and threatened her as he was leaving the restaurant. Tr. 62-63.
During defense counsel's cross-examination of Mrs. Terzi, after Mrs. Terzi testified about her description of the blond boy, the following exchange occurred:
Q: And the other two men, did you give, I'm sorry, you didn't see the third man. The other man, did you give Detective Restivo a description of him?
A: No.
Q: You couldn't, right?
A: No. I no saw him, that second one.
Q: But the man with the, the nice blonde, he was the one wearing the T-shirt?
A: He was always with me. He was taking care of me.
Q: Right.
A: Sure. Because he take everything from me.
Q: So then you never told Detective Restivo about the man's eyes or his forehead, did you?
A: About the blonde?
Q: No, not the blonde, the other man. That man, the man you say is that man [the defendant]?
A: Yes, I say.
Q: You told that to Detective Restivo?
A: I remember only foggy, I say the front, and the eyes because that's all I see when I was on the floor.
Tr. 87-88 (emphasis supplied). This colloquy clearly shows that Mrs. Terzi did not identify petitioner as the man who was taking care of her. Moreover, on direct appeal, petitioner acknowledged that the blond perpetrator was "never equated by Mrs. Terzi as the defendant" and that she *430 identified petitioner as the man who pointed a gun at her. Brief on Behalf of Defendant-Appellant, at 5, 7. Lastly, in his summation, the Assistant District Attorney indicated that Mrs. Terzi identified petitioner as the perpetrator who pointed the gun at her, not the blond. Tr. 353, 355.[1]
While the testimony suggests some confusion on this issue, Tr. 78-79, the fact that petitioner's appellate counsel, and more importantly, both trial attorneys, seem to agree that petitioner is not the blond boy who took care of Mrs. Terzi is strong evidence of how her testimony was received and understood. Moreover, even if petitioner was identified as the perpetrator that took care of Mrs. Terzi, it does not inevitably follow that he would not have had any occasion to touch the cash register. Mrs. Terzi testified that she was on the floor throughout the robbery and was moved to the kitchen at one point, so petitioner could have touched the cash register when Mrs. Terzi was not looking or when he was not visible to her.
In addition to the fingerprint evidence, Detective James Restivo and Sargent Frederick Dielensnyder both testified that during petitioner's arrest, he stated, "You're fuckin' crazy, I never heard of the place, I never been there." Tr. 204; 228. This statement is concededly false. While defense counsel questioned Restivo as to why he did not include this statement in his police reports, Tr. 205-09, and intimated that petitioner had never made this statement at all, if credited, it provided further evidence of petitioner's guilt.
In sum, because of the strength of the case and the weakness of the exculpatory evidence contained in the DD-5s, it seems clear that the DD-5s would not have affected the outcome of the trial. In reaching this conclusion, I have assumed that the second set of DD-5s may properly be considered. The DD-5s showed that the persons who purchased the cigarettes were the same persons that later committed the robbery. That fact, however, was only made apparent when petitioner submitted the later DD-5s in connection with his motion for reargument. Although the judge hearing the motion for reargument proceeded to consider the merits of petitioner's claim, he first held that petitioner did not offer a valid reason for failing to include the DD-5s in his initial motion. Consequently, petitioner is procedurally barred from relying on the additional police reports in his present habeas petition.
In the reports, which were found in petitioner's mother's closet, Mrs. Terzi and Mr. Rusnjak each stated that the same men who purchased the cigarettes had later committed the robbery. Petitioner did not explain how these reports came into his mother's possession, but it is clear that petitioner's trial counsel was in possession of at least Mrs. Terzi's report at the time of trial. During cross-examination of Detective Restivo, counsel had Restivo read a portion of DD-5, number 26, dealing with Mrs. Terzi's ability to identify the man who killed her husband. Tr. 212. That DD-5 is the same one in which Mrs. Terzi stated that the cigarette purchasers were the same men as the perpetrators and on the basis of which, together with Rusnjak's DD-5, petitioner sought to reargue his § 440.10 motion.
*431 Without the additional police reports showing that the cigarette purchasers and the perpetrators were the same persons, petitioner's due process claim is significantly weaker. Indeed, in denying the initial § 440.10 motion, the judge held that, "[i]n light of the existing identification evidence, any assistance Basilico and Bovino would have provided if called as defense witnesses is highly speculative. They were not eyewitnesses to the crime. Furthermore, there is nothing which links the perpetrators of the crimes to the young men who earlier had purchased cigarettes from the victim." § 440.10 Decision, at 6.
Contrary to petitioner's contention that the state court's finding is "unsupported by the record," Amend. Pet., at 17, and an "unreasonable determination of the facts," Amend. Pet., at 19, the evidence (as it existed before petitioner's mother discovered the additional police reports) did not establish that the men who purchased the cigarettes were the perpetrators. In particular, Mrs. Terzi and Mr. Rusnjak, the two witnesses who saw both the men who purchased the cigarettes and the perpetrators, never stated at trial that the two groups consisted of the same men. The prosecution specifically asked Mr. Rusnjak whether he recognized the three people that committed the robbery as people he had seen earlier that evening or the people that were outside the door (purchasing the cigarettes), and he responded "I cannot say. They may have been in the place, but I would say a lot of people come and go. I cannot say that I remember. I don't know. If they were there." Tr. 114. While the second set of DD-5s contradict Mr. Rusnjak's trial testimony on this score, the fact remains that the state court's initial decision denying the § 440.10 motion, based on the available evidence, was not unreasonable. Nor was the alternative finding on the motion for reargument that petitioner did not make any showing as to why the additional police reports, which were allegedly found in his mother's possession, were not offered with his initial § 440.10 motion. Petitioner has failed to show cause or prejudice for this procedural default. Moreover, the reports that petitioner seeks to include in his Brady claim do not show that he is actually innocent. See Strogov v. Attorney General, 191 F.3d 188, 193 (2d Cir.1999).
II. Admissibility of In-Court Identification
Mrs. Terzi identified petitioner at trial after having been unable to identify him seven months earlier at the July lineup or from photo arrays. Tr. 71-75. She claims to have blacked out at the lineup. Tr. 71. The circumstances of her at-trial identification were as follows. Mrs. Terzi began to cry towards the beginning of her testimony and the trial judge declared a recess. Tr. 43. During the recess, Mrs. Terzi told her son that she was able to identify petitioner as one of the perpetrators, and her son informed the Assistant District Attorney. Tr. 46. At a conference in the judge's chambers, the Assistant District Attorney then informed the judge and petitioner's counsel of Mrs. Terzi's ability to make an identification. Moreover, while the record is not entirely clear, it appears that during the recess, petitioner was taken from the courtroom by court officers and that this was observed by Mrs. Terzi. Tr. 46. Indeed, in objecting to the identification, petitioner's counsel observed that Mrs. Terzi had "seen this man taken from the courtroom by court officers, brought into the back, the son was there, the witness was there." Tr. 46. The trial judge stated, "[s]he's identifying the man that she is seeing sitting at the defense counsel table, that's the question." Tr. 50. Petitioner's counsel requested a Wade hearing to inquire into the matter. The judge *432 denied the request because there had been no pre-trial identification. Tr. 49, 51. When Mrs. Terzi's testimony continued, she identified petitioner as the perpetrator who pointed a gun at her and said, "Don't ever remember my face otherwise the trigger will go through to your head," and "You never see me. You never seen anything. The police come, you never seen nothing." Tr. 62-63.
Petitioner claims that this in-court identification, made after petitioner entered the courtroom in handcuffs and was seated at the counsel table, was highly suggestive, and that at a Wade hearing, which he requested unsuccessfully, "the Court may well have ruled that ... the prospective in court identification should have been suppressed." Reply to Opposition to Amended Petition for Writ of Habeas Corpus, ¶ 2 ("Petitioner's Reply"). Petitioner first mentioned his being in handcuffs in his reply to the opposition to his amended petition. Nothing in the record substantiates this allegation. Nevertheless, petitioner's claim that the identification was "the equivalent of a showup more than one year after the crime," Petitioner's Reply, ¶ 2, raises serious issues.
The threshold issue presented is whether petitioner's claim is barred by 28 U.S.C. § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Section 2254(d)(1) provides that habeas corpus relief is not available unless a state court's decision is contrary to or an unreasonable application of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has explained that this section "restricts the source of clearly established law to this Court's jurisprudence." Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000) (O'Connor, J., writing for the Court). Section 2254(d) impacts petitioner's claim here. There is no clear Supreme Court holding that a witness, who failed to identify the defendant at a pretrial lineup at which he was represented by counsel, is precluded from making an in-court identification merely because the circumstances there are inherently suggestive.
The conclusions in United States v. Matthews, 20 F.3d 538, 547 (2d Cir.1994) and Bond v. Walker, 68 F. Supp. 2d 287, 302-03 (S.D.N.Y.1999) (McKenna, D.J. & Peck, M.J.), aff'd, 242 F.3d 364, 2000 WL 1804557 (table) (2d Cir. Dec.7, 2000), suggesting the application of the Biggers factors to initial in-court identifications, are not compelled by Supreme Court law. See United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.1986) (noting that "no holding of the Supreme Court nor of [the Ninth Circuit] has mandated" applying the Biggers standards to in-court identifications); United States v. Beeler, 62 F. Supp. 2d 136, 141 (D.Me.1999) ("The [Supreme Court] and the [First Circuit] have not addressed how the constitutionality of an in-court identification under these circumstances should be analyzed."). Indeed, the Supreme Court has not specifically addressed whether an in-court identification is impermissible because it is patently suggestive. See Bond, 68 F.Supp.2d at 298 ("Few cases directly have addressed whether circumstances surrounding an in-court identification can be considered impermissibly suggestive."); see also United States v. Bush, 749 F.2d 1227, 1231 (7th Cir.1984) ("The question whether conditions of an in-court identification itself may be so suggestive as to deny a defendant due process of law has been considered by only a few federal courts of appeals."). Consequently, petitioner's claim may be denied on the ground that the admission of Mrs. Terzi's identification was not contrary *433 to "clearly established Federal law, as determined by the Supreme Court of the United States." Nevertheless, denial is appropriate even without this deferential standard of review.
A criminal defendant has a due process right not to be subjected to suggestive identification procedures that create a "very substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254, 53 L. Ed. 2d 140 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968)). A court must first determine whether the identification process was so suggestive that it raised "a very substantial likelihood of irreparable misidentification," and second, whether the identification was independently reliable. United States v. Wong, 40 F.3d 1347, 1359 (2d Cir.1994) (citations omitted). The "central question" is "whether under the `totality of circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972).
Mrs. Terzi first saw petitioner suggestively seated at the defense table, when she claimed to have recognized him. Tr. 73 ("The moment I saw that boy today, the eyes of that boy I couldn't forget."). She then saw him led out of the courtroom when a recess was taken in apparent response to her emotional reaction to seeing petitioner. United States v. Matthews, 20 F.3d 538 (2d Cir.1994), suggests that the Biggers analysis applies to suggestive in-court identifications. In Matthews, the defendant challenged the admissibility of two in-court identifications based on the suggestiveness of the at-trial setting; the defendant and his co-defendant were seated at the counsel table and were the only black males in the courtroom. Id. at 547. One of the eyewitnesses who identified the defendant in-court had failed to recognize the defendant's picture at a pretrial photo array. Id. The defendant had not been advised prior to trial that either witness would make an in-court identification, and did not request "any advance procedural measures to reduce the likelihood of an unreliable in-court identification" or object to the identifications until after cross-examination. Id. at 547-48. The Second Circuit held that, "where the circumstances of either a pretrial or at-trial identification are suggestive, reliability is the linchpin for determining admissibility," and that "[e]ven an identification at trial under circumstances that are tantamount to a showup is not per se inadmissible, but rather depend[s] upon the `totality of the circumstances.'" Id. at 547 (internal quotations and citations omitted). Because testimony of the eyewitnesses was "sufficient to establish that their identifications had an origin independent of their viewing [the defendant] in the courtroom and hence was sufficient to meet the threshold of reliability," the conviction was affirmed. Id. at 548.
Significantly, two subsequent district court cases have applied the Biggers analysis to in-court identifications that were challenged on the basis of suggestive at-trial circumstances. See Bond, 68 F.Supp.2d at 302-06 (applying the Biggers analysis to an in-court identification after discussing Matthews and citing the decisions of several other circuits);[2]see also *434 Hernandez v. Senkowski, Nos. CV 98-5270, CV 99-169, 1999 WL 1495443, at *18-19 (E.D.N.Y. Dec.29, 1999) (stating, after determining that the in-court procedure was suggestive and that the jury was witness to the suggestiveness, that "[c]ertainly, the Neil v. Biggers factors would have supported a jury conclusion that [the witness] could make an independent identification"). Furthermore, several circuits have applied the Biggers analysis to suggestive in-court identifications. See e.g., United States v. Rogers, 126 F.3d 655, 658 (5th Cir.1997); United States v. Murray, 65 F.3d 1161, 1168-69 & n.6 (4th Cir.1995); United States v. Hill, 967 F.2d 226, 231-32 (6th Cir.1992). Accordingly, it is necessary to analyze the suggestiveness and independent reliability of Mrs. Terzi's identification.
1. Suggestiveness of Mrs. Terzi's In-Court Identification
In this case, Mrs. Terzi saw petitioner seated at the defense counsel table and being escorted out of the courtroom by uniformed court officersa blatantly suggestive setting. The trial judge himself stated during a conference in his chambers that Mrs. Terzi and her son "know he's a defendant. They know he's the accused. There's no question about that." Tr. 46-47; United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir.1970) (noting that "there is always the question how far in-court identification is affected by the witness' observing the defendant at the counsel table"); see also United States v. Emanuele, 51 F.3d 1123, 1130 (3d Cir.1995) ("[T]o walk a defendant in shackles and with a U.S. Marshal at each sidebefore the key identification witnesses is impermissibly suggestive.").
2. Independent Reliability of Mrs. Terzi's In-Court Identification
The Supreme Court has set forth a list of at least five factors for use in determining the independent reliability of an in-court identification. They are "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness'] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Brathwaite, 432 U.S. at 114, 97 S. Ct. at 2253; Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382. These factors are weighed against the corruptive effect of the suggestive identification. Brathwaite, 432 U.S. at 114, 97 S. Ct. at 2253.
In this case, Mrs. Terzi did not have a significant opportunity to view the perpetrator she identified as petitioner during the crime. She testified that she looked at the perpetrator for two to three seconds, while the man was pointing a gun at and threatening her, Tr. 74-75, and that the man was about one and a half to two feet away from her. Tr. 63. Mrs. Terzi was immediately forced to lay down on the floor and could therefore hear, but not see, what was happening. Tr. 58. Furthermore, Rusnjak, the bartender, testified that the lights in the kitchen had been turned off. Tr. 108.
*435 Regarding Mrs. Terzi's degree of attention, when asked whether she was looking at the gun more than at the man, Mrs. Terzi testified that "I look at the gun and I look at him." Tr. 94. However, "[e]xperts have confirmed the rather obvious fact that if someone is brandishing a gun at you, your mind is likely to be focused on the gun and not on the facial features of the people involved." Abdur-Raheem v. Kelly, 98 F. Supp. 2d 295, 304 (E.D.N.Y. 2000) (citing United States v. Burrous, 934 F. Supp. 525, 527 (E.D.N.Y.1996)). Mrs. Terzi had a gun pointed at her throughout the time in which she viewed the perpetrator. As a result, this factor does not support the independent reliability of Mrs. Terzi's identification.
It is difficult in this case to assess the accuracy of Mrs. Terzi's prior description of petitioner. According to petitioner's brief on direct appeal, the official police arrest report described petitioner as 21 years of age, brown hair, brown eyes, 5'10", 140 pounds. Brief on Behalf of Defendant-Appellant, at 5 n.2. At trial, there was questioning and testimony about Mrs. Terzi's prior descriptions of the blond perpetrator, Tr. 69-70, 87, the "first man," Tr. 89-90, and the man who killed her husband. Tr. 218. However, it has been established that petitioner was not identified as the blond, and it is not clear whether either of Mrs. Terzi's other descriptions apply to petitioner. This factor therefore has minimal bearing on the reliability analysis.
Mrs. Terzi seemed fairly certain of her in-court identification. She stated, "The moment I saw that boy today, the eyes of that boy I couldn't forget." Tr. 73. However, more critical is the fact that at the non-suggestive pretrial proceduresphotograph viewings and the July lineup Mrs. Terzi completely failed to identify petitioner. See Emanuele, 51 F.3d at 1131 ("[W]hether subsequent viewings create a substantial risk of misidentification may depend on the strength and propriety of the initial identification."). In United States v. Concepcion, 983 F.2d 369, 379 (2d Cir.1992), despite finding that the pretrial procedures were not suggestive, the Second Circuit evaluated the reliability of an in-court identification by a witness who had completely failed to identify the defendant from one pretrial photo array, had been unable to identify the defendant from a second photo array for almost thirty minutes, and had initially selected a different defendant at a Wade hearing. The Second Circuit found that the Biggers factors did not strongly indicate the reliability of the witness' in-court identification and concluded that the admission of the identification was constitutional error. Id.; see also Emanuele, 51 F.3d at 1131 (a witness' failure to identify the defendant at a pretrial photo array, "coupled with the highly suggestive viewing of the defendant" and "bolstered by the comments of another witness," rendered the witness' in-court identification unreliable); United States v. Beeler, 62 F. Supp. 2d 136, 144-45 (D.Me. 1999) (holding that a witness' failure to pick the defendant out of a fair, non-suggestive pretrial lineup, together with the highly suggestive courtroom conditions, rendered a prospective in-court identification impermissibly unreliable); but see Matthews, 20 F.3d at 548 (holding that a witness' in-court identification was independently reliable without discussing the witness' failure to identify the defendant from a pretrial photo array). In this case, Mrs. Terzi's failure to identify petitioner from photographs or at the fair pretrial lineup weighs heavily against a finding of independent reliability.
Finally, the substantial length of time between the crime and Mrs. Terzi's identification at trialroughly sixteen months weighs against a finding of reliability. See *436 Biggers, 409 U.S. at 201, 93 S. Ct. at 383 ("[A] lapse of seven months between the [crime] and the confrontation ... would be a seriously negative factor in most cases.").
While the five Biggers/Brathwaite factors suggest that Mrs. Terzi's identification was unreliable, they "do not exhaust the possible ways in which identification evidence may prove to be reliable or unreliable." Abdur-Raheem, 98 F.Supp.2d at 305. The latter case contains an extensive argument in support of the proposition that "[r]ather than relying solely on the five specific factors outlined in Brathwaite, a sixth factor that looks to corroborating evidence of guilt provides an essential protection against the `gross miscarriage of justice' that can result from `[a] conviction which rests on a mistaken identification.'" Id. at 307 (quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199 (1967)). I need not rely on Abdur-Raheem here, because Sims v. Sullivan, 867 F.2d 142 (2d Cir.1989), a Second Circuit case involving an in-court identification of the kind challenged here, expressly held that "where the pretrial identification procedures were proper and the other evidence of the defendant's guilt was ample, no deprivation of due process exists." Id. at 145.
The petitioner in Sims was identified at his trial by a witness who had previously picked the petitioner out of a photo array with some uncertainty. Sims's request for a lineup prior to the in-court identification was denied. Holding that the in-court identification was not so unreliable as to "constitute a denial of fundamental fairness," Judge Winter found that it had not been tainted by any suggestive pretrial procedures. Id. As a result, under Second Circuit precedents, he was not obligated to address the independent reliability of the in-court identification. Id. But, significantly for the analysis here, the panel nevertheless considered whether the failure to grant a lineup resulted in an in-court identification that was "so unreliable that `a very substantial likelihood of irreparable misidentification' exists." Id. (quoting Brathwaite, 432 U.S. at 116, 97 S. Ct. at 2254 (internal quotation omitted)). In other words, the Second Circuit treated the in-court identification as a separate, suggestively obtained, identification.
In analyzing the reliability of this apparently fairly typicaland, thus, highly suggestive in-court identification of the accused at the defense table, Sims held that a federal court is "not bound in a collateral attack upon a state court conviction to view an in-court identification in isolation from the rest of the evidence." Id. at 146. Judge Winter went on to explain that "the validity of an in-court identification, and, conversely, the need for a lineup, will ... vary according to the strength and nature of the other evidence against a defendant." Id. An accomplice had directly implicated Sims in the charged acts, and another witness had testified that the petitioner had admitted the crime. Id. Thus the in-court identification was "less crucial" than it would have been in isolation. Id.
It is quite apparent that the analysis in Sims was not a harmless error inquiry. As noted, the opinion states expressly that "other evidence of the defendant's guilt" is relevant to the initial question whether a "deprivation of due process exists" as the result of a suggestive identification. Id. at 145. Note also that after asserting that in a habeas proceeding the court need not view the identification in isolation from the other evidence, Judge Winter inserted a "cf." citation to United States v. Archibald, 734 F.2d 938, 943 (2d Cir.1984), modified on other grounds, 756 F.2d 223 (2d Cir. 1984), which applied harmless error analysis.
*437 Like Sims, the present case contains other evidence of petitioner's guilt that bears on the validity of Mrs. Terzi's identification. Petitioner's fingerprint was found at the scene of the crime, expert testimony indicated that the fingerprint could not have lasted for more than a few days, and another witness identified petitioner as being four stores from the restaurant a little over an hour before the crime. The fingerprint evidence also demonstrated the falsity of petitioner's post-arrest statement denying he had ever been in Caesar's Restaurant. This evidence reduces the likelihood that petitioner was misidentified.
Moreover, this case is different from Sims in a way that also lends itself to a traditional harmless error assessment. Unlike Sims, there was a pretrial lineup at which the eyewitness could not make an identification. This undermined completely in a manner quite apparent to the jurythe force of the in-court identification. Significantly, the holdings of the Supreme Court recognize that a jury fully apprised of the relevant facts surrounding a suggestive identification can make an accurate judgment as to the weight to be afforded that evidence. See Brathwaite, 432 U.S. at 113 n.14, 97 S. Ct. at 2252 n.14 ("Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi." (internal citation omitted)). Indeed, the underlying premise of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), which held that a defendant was entitled to counsel at a lineup, was that counsel's presence would enable the defendant to "reconstruct the manner and mode of lineup identification." Id. at 230, 87 S. Ct. at 1934. In so holding, the Supreme Court observed that one of the principal problems faced by an accused at trial is establishing the nature and extent of any unfairness that may have affected the pretrial identification procedures. "[A]ny protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury's choice is between the accused's unsupported version and that of the police officers present. In short, the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." Id. at 231-32, 87 S. Ct. at 1934-35 (footnotes omitted).
The circumstances here are exactly the opposite of the Wade paradigm. The accused here was represented by counsel at a fairly conducted lineup where the witness could not identify him. Indeed, one of petitioner's lawyers actually testified at the trial and contradicted Mrs. Terzi's explanation for her failure to make an identification. Tr. 251-53. Moreover, the jury was a witness to the in-court identification and the effect the suggestiveness must have had on it. Particularly apposite here is Hernandez v. Senkowski, Nos. CV 98-5270, CV 99-169, 1999 WL 1495443 (E.D.N.Y. Dec.29, 1999). Judge Raggi there highlighted the difference between suggestive out-of-court procedures (such as a pretrial lineup), where "the fact finder does not have the benefit of seeing the contemporaneous effect of the suggestive procedure on the witness," and suggestive in-court procedures, where "deference to the jury would seem even more appropriate ... for there `the jury is present and able to see first-hand the circumstances which may influence a witness.'" Hernandez, 1999 WL 1495443, at *18-19 (quoting United States v. Bush, 749 F.2d 1227, 1231 (7th Cir.1984)); see also Bond *438 v. Walker, 68 F. Supp. 2d 287, 303-04 (S.D.N.Y.1999) (McKenna, D.J. & Peck, M.J.) (citing United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.1986) (noting that regarding suggestive pretrial identifications, the jurors "are not able to observe the witness making th[e] initial identification" the "certainty or hesitation of the witness when making the identification, the witness's facial expressions, voice inflection, body language, and the other normal observations one makes in everyday life when judging the reliability of a person's statements")), aff'd, 242 F.3d 364, 2000 WL 1804557 (table)(2d Cir.2000).
In Hernandez, after the witness initially failed to identify the defendant in-court, the prosecutor pointed to the defendant and asked the witness whether he was the perpetrator. Judge Raggi concluded that the "jury could decide whether her identification of [the defendant] was a mere timid adoption of the prosecutor's blunt suggestion or the product of her own independent reliable recollection." Hernandez, 1999 WL 1495443, at *19. In the present case, Mrs. Terzi viewed petitioner seated at the defense table prior to seeing him taken from the courtroom, and she recognized him while she was on the stand. As a result, the jury was able to see the critical surrounding circumstances of Mrs. Terzi's in-court identificationpetitioner seated at the defense table and Mrs. Terzi's manner and demeanor on the stand.
More significantly, perhaps, defense counsel's cross-examination of Mrs. Terzi amply demonstrated the use that petitioner was able to make of the evidence undermining the reliability of her identification. Specifically, Mrs. Terzi's testimony was discredited in a number of ways. Defense counsel elicited the fact that Mrs. Terzi had failed to identify petitioner from photographs or at the lineup in July 1980. Tr. 71-75, 79-81. Mrs. Terzi claimed that she blacked out and "didn't see nobody" at the lineup, Tr. 71, and stated "I was scared. I was terrified. I couldn't see nothing." Tr. 80. Raymond Kobus, an attorney associated with the defense and who was present at the lineup, however, testified that Mrs. Terzi did not state at the time of the lineup that she blacked out, only that she was unable to identify petitioner, and that she appeared "visibly calm," not upset or emotionally disturbed. Tr. 251-53. In addition, Detective James Restivo, who was also present at the lineup, agreed that Mrs. Terzi said that she could not identify anyone, not that she blacked out. Tr. 215. Petitioner's counsel also questioned how Mrs. Terzi's "memory suddenly [came] to life," when the incident had occurred over a year and a half before the trial. Tr. 73-75. He intimated that Detective Restivo and Mrs. Terzi had formed a close relationship, Tr. 67-68, 86; 210-11, and that Restivo had pressured Mrs. Terzi into identifying petitioner by telling her the case would be in trouble without an identification. Tr. 95-96; 220. Additionally, Mrs. Terzi admitted during questioning that the man she identified as petitioner did not have a scar on his face, Tr. 93, even though Detective Restivo later testified that petitioner has a three inch scar on his left cheek. Tr. 216. Finally, regarding her ability to identify petitioner at the trial, Mrs. Terzi stated that, "The moment I saw that boy today, the eyes of that boy I couldn't forget," Tr. 73, and that she recalled telling the police that she remembers "his eyes and his front." Tr. 78. Counsel suggested through questioning that Mrs. Terzi had never told anyone, particularly Detective Restivo or the Grand Jury, about remembering the eyes or front of petitioner, the man who pointed a gun at her. Tr. 85-88; 211-12.
Significantly, the testimony that the jury asked to have read back confirms that Mrs. Terzi's identification did not have a *439 substantial and injurious effect on the verdict. The jury asked for (1) the testimony of Irving Silver, who identified petitioner as a person he had seen about four stores away from Caesar's Restaurant a little over an hour before the robbery, (2) the testimony of the fingerprint experts, and (3) the cross-examination of Detective Restivo. While the Restivo cross-examination related to more than one issue, it did contain his recollection of the lineup at which Mrs. Terzi made no identification, it contradicted Mrs. Terzi's explanation that she blacked out at the lineup, and it contained other facts which further undermined her in-court identification.
In conclusion, the admission of Mrs. Terzi's in-court identification did not violate petitioner's right to due process because of the other corroborative evidence of petitioner's guilt. Moreover, this evidence combined with the jury's ability to see for itself the suggestive circumstances under which Mrs. Terzi identified petitioner and hear petitioner's counsel attack the identification on cross-examination, rendered harmless error in admitting her testimony. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353 (1993); Samuels v. Mann, 13 F.3d 522, 528 (2d Cir.1993) ("[T]o conclude that the error was harmless in a case of this kind, we need not find that the improperly admitted evidence had no effect at all ... we need only find that the effect was not `substantial and injurious.'" (internal quotation omitted)).
On a final note, petitioner's challenge to the in-court identification implicated the one-year period of limitations applicable to writs of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitation period "is tolled during the time that a properly filed application for state post-conviction review is pending." Acosta v. Artuz, 221 F.3d 117, 119 (2d Cir.2000) (citing 28 U.S.C. § 2244(d)(2)). In this case, since petitioner's judgment of conviction became final before the enactment of this limitations period, the one-year period of limitation began to run on April 24, 1996, the date of enactment. See id. at 120. A review of the timing of petitioner's state court proceedings indicates that the one-year period of limitations expired before petitioner raised his challenge to Mrs. Terzi's in-court identification in his amended petition. Consequently, this claim would be time-barred, unless petitioner can establish that it relates back to his original petition in accordance with Rule 15(c) of the Federal Rules. See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 815-16 (2d Cir.2000) (holding that Rule 15(c) governs whether an amended habeas petition relates back to an original petition). Rule 15(c) provides that "[a]n amendment of a pleading relates back to the date of the original pleading when ... the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R.Civ.P. 15(c).
The relief petitioner sought in his original petition was clearly limited to his Brady claim. In the same petition, however, he described the circumstances of Mrs. Terzi's eyewitness identification, and alleged that the trial judge erred in denying counsel's motion for a Wade hearing. Original Petition, ¶ 12. Petitioner also described Mrs. Terzi's identification as "a weak and probably, suggested, identification." Id., ¶ 18. Under these circumstances, the original petition was sufficient to give notice of petitioner's later challenge to Mrs. Terzi's identification. See Stevelman v. Alias Research Inc., 174 F.3d 79, 86 (2d Cir.1999) ("[T]he central inquiry is whether adequate notice of the matters raised in the amended pleading has been *440 given to the opposing party within the statute of limitations `by the general fact situation alleged in the original pleading.'" (citation omitted)). Indeed, based on the allegations in the original petition, I suggested that petitioner file an amended petition asserting formally the argument that Mrs. Terzi's identification was not admissible.
CONCLUSION
The petition for a writ of habeas corpus is denied. Petitioner is granted a certificate of appealability with respect to each of the two issues on which he sought habeas corpus relief.
SO ORDERED.
NOTES
[1] Petitioner's arrest report describes him as having brown hair. Brief on Behalf of Defendant-Appellant, at 5 n.2. This fact, however, is not particularly helpful because testimony during the § 440.10 hearing indicated that petitioner had dyed his hair since the time of the crime. Transcript, § 440.10 Hearing, at 245. It is not clear what color petitioner's hair was at which point.
[2] At the beginning of the Bond trial, the defendant had requested a lineup before allowing the witness, who had not seen the defendant since the crime, to identify him in-court. Because the defendant had not requested a lineup prior to trial, Bond had to consider United States v. Archibald, 734 F.2d 938 (2d Cir.1984), modified, 756 F.2d 223 (2d Cir. 1984), where the Second Circuit set forth a pretrial request for a lineup as a prerequisite to challenging an in-court identification. The present case does not implicate Archibald, because there was a pretrial lineup at which Mrs. Terzi said she could not identify petitioner, and petitioner had no notice that Mrs. Terzi would make an in-court identification until after she had seen him at the defense table. Under these circumstances, it would have been pointless for petitioner to request another lineup. See Matthews, 20 F.3d at 547-48 (examining the reliability of the in-court identification on facts similar to the present case). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609806/ | 866 P.2d 765 (1993)
Arnold A. GAUB, Appellant (Defendant),
v.
Elwood "Bill" J. SIMPSON, Appellee (Plaintiff).
No. 93-23.
Supreme Court of Wyoming.
December 30, 1993.
Arnold A. Gaub, pro se.
Robert W. Horn, and Steven D. Olmstead, Jackson, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
THOMAS, Justice.
The only question to be resolved in this case is whether Elwood "Bill" J. Simpson (Simpson) discharged an Internal Revenue Service (IRS) lien against property he owned under circumstances that made him a volunteer and foreclosed him from legal subrogation. In a classic effort at obfuscation, Arnold A. Gaub (Gaub) presented the case as one involving the responsibility of a grantor under a warranty deed to defend the title to the property. It is clear the trial court focused upon the fact Simpson paid the amount of a tax lien against his property for taxes owed by Gaub. Through a straw man transfer, Simpson acquired the property from a grantee of Gaub to whom Gaub had conveyed the property prior to the attachment of the lien for federal taxes. When the IRS asserted the tax lien against his property, Simpson demanded Gaub obtain a release of the lien, paid the amount of the lien after Gaub failed to do so, and brought this action against Gaub to recover the amount paid. Gaub appeals from the judgment entered by the trial court in favor of Simpson, essentially contending that, for various reasons, he owed no duty to Simpson to defend the title to the property. We agree with the trial court that Simpson was not a volunteer when he paid the amount of the taxes to avoid foreclosure of a lien against his property, and he became entitled, as a matter of subrogation, to recover that amount from Gaub. The judgment of the trial court is affirmed.
Representing himself, Gaub sets forth the issues in his brief as follows:
1. After a warranty deed is executed and delivered, and the grantee then neglects or refuses to record the deed for a number of years, must the grantor defend the title for the grantee against any intervening lienholder filings between the time of delivery of the deed and the time of the recording of the deed.
2. After the IRS executes a lien release on a property, and that property deed has then been recorded in the name of the new owner free of all encumbrances, may the IRS thereafter levy and seize that property again in the name of the former deed holder.[1]
*766 3. When a document signed by the IRS confirms that property of an individual and the seizure thereof shall not occur after an agreed date, may the trial court disregard that document in evidence and conclude that the plaintiff's payment to the IRS was compelled and not voluntary.
4. Must a trial court observe and modify an initial judgment when obvious errors and exclusions are timely filed by the defendant with the court in "objections" to the Findings of Fact and Conclusions of Law as presented by the prevailing counsel for the court's approval.
Simpson, in his Brief of Appellee, does not agree with the issues set forth by Gaub, and he states the issues in this way:
I. Whether there is sufficient evidence to support the findings of fact and conclusions of law of the trial court.
II. Whether the trial court abused its discretion, as a matter of law, ruling in favor of appellee.
III. Whether the appellant has framed a cogent argument with pertinent authorities for the Supreme Court to review.
The essential material facts may be captured in a chronology of pertinent dates and events:
October 18, 1982Gaub, as grantor, sold and conveyed by warranty deed Lot 23 (the property) in Alpine Village Subdivision in Lincoln County, Wyoming to Loren [Lorne] Cook (Cook).
Unspecified date in 1983Simpson came from Indianapolis and purchased Cook's interest in the property by directly paying to Gaub the amount owed by Cook. At that time, Gaub agreed he would "take care of recording the deed."
November 5, 1984The IRS filed a lien for income taxes owed by Gaub in the amount of $8,945.63 against the property.
May 24, 1985The IRS filed a second lien in the amount of $424.11 against the property. (Both liens were filed against this property because Gaub was the owner of record.)
December 4, 1987The warranty deed from Gaub to Cook was recorded.
January 13, 1988A warranty deed from Cook to Dale and Linda Perry (Perrys) was recorded. The Perrys were employed by Simpson.
September 21, 1988A warranty deed from the Perrys to Simpson was recorded.
April 10, 1992The IRS sent a notice of seizure of the property to satisfy the tax lien.
April 10, 1992Under threat of dispossession, Simpson paid the asserted lien plus interest in the total amount of $12,425.
November 9, 1992Simpson filed a complaint against Gaub in the Third Judicial District Court in Lincoln County seeking reimbursement of the $12,425 paid to the IRS.
January 13, 1993The district court ruled in favor of Simpson and entered a judgment for him in the amount of $12,425.
Gaub appeals from the judgment, contending he owed no duty to defend the title to the property because, at the time of the conveyance, there were no encumbrances, and the encumbrances attached only because Cook failed to record the deed. Simpson argues he is entitled to a judgment for $12,425 because *767 he paid the IRS on behalf of Gaub to prevent the seizure of his property. The issue Gaub seeks to debate is whether a grantor who has transferred real property by warranty deed has a duty to defend the title with respect to a remote purchaser. Simpson apparently is willing to maintain the judgment on any ground and essentially urges the sufficiency of the evidence to support the determination by the trial court.
The approach of the trial court is summarized in this statement taken from the judge's remarks from the bench:
In this lawsuit, it seems like [counsel for Simpson] is proceeding more on the theory that, Mr. Gaub, Mr. Simpson paid off your obligation, so, therefore, you should pay Mr. Simpson. He seems to be relying on that more than on any basis that you warranted title to this property, not only to Mr. Cook but to all other people who were successors to Mr. Cook and who, in turn, conveyed by warranty deeds.
The district court did discuss warranty deeds with Gaub, but the essence of its ruling was that, confronted with the IRS lien and the threat to foreclose, Simpson chose to pay the taxes claimed due and then to seek to recoup the amount he had paid from Gaub. The trial court, furthermore, ruled that Simpson was not a volunteer because of the duress of the lien.
In light of the disposition by the trial court, while Gaub chooses to debate the effect of a warranty deed, we are satisfied the question that needs to be resolved is whether Simpson paid an obligation of Gaub to the IRS and, therefore, became subrogated to the IRS claim against Gaub. In order to answer that question, the court must determine whether Simpson acted as a volunteer in paying the IRS lien. This approach does not implicate the effect of Gaub's warranty deed in any way.
While it is correct, as Simpson asserts, that this court can sustain the trial court's judgment on any lawful ground reflected in the record (e.g., Union Pacific Resources Co. v. State of Wyoming, 839 P.2d 356 (Wyo.1992); City of Laramie v. Hysong, 808 P.2d 199 (Wyo.1991); Matter of Adoption of RDS, 787 P.2d 968 (Wyo.1990); Price v. Sorrell, 784 P.2d 614 (Wyo.1989); Agar v. Kysar, 628 P.2d 1350 (Wyo.1981); Wightman v. American Nat'l Bank of Riverton, 610 P.2d 1001 (Wyo.1980)), we are satisfied we need not invoke any ground not presented in the trial court. As we have noted, the trial court held, in effect, that Simpson had discharged an obligation of Gaub to the IRS. While the parties did not discuss subrogation, Wyoming precedent would support the court's finding that Simpson was subrogated to the rights of the IRS against Gaub. The question then arises whether Simpson was a volunteer. In our view, the trial court correctly held Simpson was not a volunteer.
In Commercial Union Ins. Co. v. Postin, 610 P.2d 984 (Wyo.1980), we discussed legal or equitable subrogation as contrasted to contractual subrogation in connection with a payment of damages made by an insurance company, which then sought to recover the damages paid from an alleged third-party tortfeasor. We described the right of legal subrogation as the payment by the subrogee to the subrogor of a debt conceptually owed by another. We there noted that, in order for one to proceed under the theory of legal or equitable subrogation, there was a necessity that the person or entity claiming subrogation act out of a concern about self-protection. Cf. Fulton v. Des Jardins, 67 Wyo. 517, 227 P.2d 240, 245 (1951). We quoted from an earlier Wyoming case, Wyoming Bldg. & Loan Ass'n v. Mills Constr. Co., 38 Wyo. 515, 269 P. 45, 48 (1928):
The right of subrogation may arise and sometimes must arise from contract. This is conventional subrogation. The right is sometimes given in the absence of contract, is then a creation of the court of equity, and is given when otherwise there would be a manifest failure of justice. This is legal subrogation.
Later, in Northern Util. Div. of K N Energy, Inc. v. Town of Evansville, 822 P.2d 829, 835 (Wyo.1991), we quoted with approval the following language from Postin, 610 P.2d at 989-90:
Within the ambit of legal-subrogation law, it is recognized that one is not a volunteer where it is shown that he made *768 payment to protect his own interest. At 73 Am.Jur.2d, Subrogation, § 25, "Persons acting in self-protection," p. 614, it is said:
"The right of subrogation is not necessarily confined to those who are legally bound to make the payment, but extends as well to persons who pay the debt in self-protection, since they might suffer loss if the obligation is not discharged. A person who has an interest to protect by making the payment is not regarded as a volunteer. * * * The extent or quantity of the subrogee's interest which is in jeopardy is not material. If he had any palpable interest which will be protected by the extinguishment of the debt, he may pay the debt and be entitled to hold and enforce it just as the creditor could. * * * It would seem that one acting in good faith in making his payment, and under a reasonable belief that it is necessary to his protection, is entitled to subrogation, even though it turns out that he had no interest to protect."
We again held, in the context of a dispute between joint tortfeasors, that Northern Utilities did present a genuine issue of material fact as to its status as a joint tortfeasor. In the context of the case, that determination was preliminary to whether Northern Utilities acted as a volunteer, which we noted is a question of law to be determined by the court.
Turning to the earlier Wyoming case, Wyoming Bldg. & Loan Ass'n, 269 P. at 48-49, we quote:
One instance in which legal subrogation is applied is in connection with the protection of a lien, and the rule is universal that one who has an interest in property by lien or otherwise, in making payment of prior liens, including taxes, is not a mere volunteer, and that he will be entitled, upon payment of a superior lien in order to protect his own lien, to be subrogated to the rights of the superior lienholder. Marks v. Baum Building Co., 73 Okl. 264, 175 P. 818; Wiltse, Mortgage Foreclosure, §§ 542 and 1221; Cooley, Taxation, § 1263; 37 Cyc. 443, 444; 25 R.C.L. 1346. We are satisfied this concept still is sound, and there is no basis to distinguish Wyoming Bldg. & Loan Ass'n, involving state taxes, from this instance, in which an IRS lien was paid by the owner of the property.
In summary, then, we are satisfied with the legal propriety of the ruling by the district court, in accordance with Wyoming law, that Simpson paid a tax bill, which Gaub owed, in order to protect Simpson's property from an IRS lien. The law justifies this action on the part of Simpson; makes Simpson a subrogee to the rights of the IRS; and demonstrates that, in pursuing the course he chose, Simpson did not act as a volunteer.
The judgment of the district court is affirmed.
NOTES
[1] Gaub misstates the facts in this case. The property was not free of all encumbrances as Gaub contends. Defendant's Exhibit No. 3 is a letter dated April 3, 1992 from an IRS revenue officer to the Lincoln County Clerk which states:
The Release of Levy dated 10-02-86 does not cover a tax lien. Mr. Gaub's property had been under seizure and the release was only releasing the property from seizure.
The liens still attach to all property including the one released from seizure.
This court has had occasion to comment on the procedural standards required in appeals and has said:
Because appellant is proceeding pro se, he may simply be unaware of what is required to perfect an appeal under the Wyoming Rules of Appellate Procedure. We must, however, abide by our firm rule that requires a pro se litigant to comply with the same procedural standards as those litigants represented by counsel. Apodaca v. Ommen, 807 P.2d 939, 943 (Wyo.1991); Annis v. Beebe & Runyan Furniture Co., 685 P.2d 678, 679 (Wyo.1984); Matter of GP, 679 P.2d 976, 985 (Wyo.1984). Therefore, our rules of appellate procedure apply equally to appellant * * *.
Stone v. Stone, 842 P.2d 545, 547 (Wyo.1992).
Failure to follow the Wyoming Rules of Appellate Procedure does not assist the pro se litigant in presenting his position. Some cases have even been dismissed by this court for failure to follow these appellate rules. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609808/ | 866 P.2d 396 (1993)
116 N.M.App. 668
George Michael CURLISS, Worker-Appellant,
v.
B & C AUTO PARTS and Travelers Insurance Company, Employer/Insurer-Appellees.
No. 14443.
Court of Appeals of New Mexico.
November 2, 1993.
*397 John R. Polk and Barbara Jarvis, Albuquerque, for Worker-appellant.
William E. Singdahlsen, Beall, Biehler & Bannerman, P.A., Bonnie M. Stepleton, Stepleton & Aakhus, P.C., Albuquerque, for Employer/Insurer-appellees.
OPINION
FLORES, Judge.
Worker appeals the denial of his petition to set aside the March 13, 1989 Workers' Compensation lump sum settlement order pursuant to NMSA 1978, Section 52-5-9(B) (Repl. Pamp. 1987). Worker relies upon the following grounds to reverse the denial of his petition to set aside the settlement order: (1) he justifiably relied upon the misrepresentations made by Insurer's agent in approving the lump sum settlement; (2) the lump sum settlement was entered into under a mutual mistake of fact; (3) the post-settlement diagnosis of injury to Worker's brain constitutes newly discovered evidence; and (4) Worker lacked the mental capacity to enter into the settlement agreement. See § 52-5-9(B).
B & C Auto Parts (Employer) and Travelers Insurance Company (Insurer) attempt to challenge the substantiality of the evidence which would support the following findings and conclusion:
13. Travelers had notice that [Worker] had a serious permanent facial disfigurement in September, [sic] 1988.
... .
18. As a result of the occupational accident ... [Worker] suffered injuries to his left eye, facial bones and brain which are permanent.
19. [Worker] suffered a brain injury to a reasonable medical probability as a result of the accident of September 12, 1988.
... .
32. [Insurer's agent] negligently misrepresented the provisions of the New Mexico Workers' Compensation Act to [Worker].
... .
5... . [Insurer's agent] misrepresented [Worker's] entitlement to benefits under the New Mexico Workers' Compensation Act.
Employer and Insurer make their arguments by raising the sufficiency of the evidence in their answer brief rather than upon cross-appeal pursuant to SCRA 1986, 12-201(C) (Repl. 1992). Even assuming arguendo that Employer and Insurer properly challenge the above findings of fact and conclusion of law under SCRA 12-201(C), they have failed to comply with the requirements of SCRA 1986, 12-213(A)(3) (Repl. 1992). Employer and Insurer cited only to evidence which supports their position and failed to cite to any contrary evidence which would support affirming the decision below. See Martinez v. Southwest Landfills, Inc., 115 N.M. 181, 184-86, 848 P.2d 1108, 1111-13 (Ct.App. 1993). Thus, they have waived their sufficiency challenge on appeal. Id.
We reverse the Workers' Compensation judge's (judge) denial of Worker's petition to set aside the lump sum settlement on the basis of issue two. Therefore, we need not reach the remaining issues. In considering whether Worker should receive compensation in addition to that received for the loss of Worker's eye, the judge, on remand, should, under NMSA 1978, Section 52-1-54 (Repl.Pamp. 1987), also consider an award for attorney fees.
Facts
A brief discussion of the facts follows. Additional facts will be included throughout the opinion as relevant to the discussion. On September 12, 1988, Worker suffered an occupational accident when he was hit in the face with a fan blade which flew off a nearby automobile engine. At the time of the injury, Worker was an employee of Employer working as an auto dismantler. As a result of the accident, Worker sustained serious injuries including the enucleation of the left *398 eye, permanent facial disfigurement, and permanent brain damage. Although Worker was advised by an attorney shortly after the accident not to accept a lump sum settlement offer, Worker was not represented by an attorney when he entered into the settlement agreement. Nor were the full benefits to which Worker was entitled explained to him by either the attorney at their meeting shortly after the accident or by the Insurer's agent. The only benefits which Worker was informed about were the scheduled injury for enucleation of the eye and medical benefits for two years under the direction of Dr. Dahlstrom or his referrals.
Standard of Review
Whether Worker has made a proper showing for modification of a compensation order pursuant to Section 52-5-9 is within the sound discretion of the judge and is not to be reversed absent a showing of abuse of discretion. See Bustamante v. City of Las Cruces, 114 N.M. 179, 181, 836 P.2d 98, 100 (Ct.App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992). On appeal, the role of this Court, in determining whether an administrative agency has abused its discretion by acting in an arbitrary and capricious manner, is to review the record to determine whether there has been unreasoned action without proper consideration and regard for the facts and circumstances. Perkins v. Department of Human Servs., 106 N.M. 651, 655-56, 748 P.2d 24, 28-29 (Ct.App. 1987). Furthermore, abuse of discretion in the context of workers' compensation cases is inextricably intertwined with the substantial evidence standard. Bustamante, 114 N.M. at 181, 836 P.2d at 100.
Issue Two: Mistake of Fact
Although the parties do not contest the applicability of Section 52-5-9, they each devote a significant part of their arguments to a discussion of Mendenhall v. Vandeventer, 61 N.M. 277, 299 P.2d 457 (1956) and Quintana v. Motel 6, Inc., 102 N.M. 229, 693 P.2d 597 (Ct.App. 1984), two cases which predate the 1986 enactment of Section 52-5-9. Both Mendenhall and Quintana deal with the difference between an incorrect diagnosis and an incorrect prognosis for purposes of setting aside a settlement agreement on the grounds of mutual mistake of fact. Because this Court finds guidance from these cases in interpreting mistake in the context of a workers' compensation lump sum settlement agreement, we discuss the parties' arguments regarding Mendenhall and Quintana.
Worker contends that an incorrect diagnosis or a complete failure to diagnose an injury constitutes a mutual mistake of fact which can be a sufficient basis for setting aside a settlement agreement. Mendenhall, 61 N.M. at 282-83, 299 P.2d at 460-61. Worker finds additional support for this contention in the distinction between a mistake as to a past or present fact which can invalidate a release and unknown or unexpected consequences of known injuries which would not be sufficient. Quintana, 102 N.M. at 230-31, 693 P.2d at 598-99. Worker also asserts that his functional brain injury was not diagnosed until sixteen months after the settlement. Furthermore, Worker asserts his brain injury is separate and distinct from the loss of his eye or facial disfigurement because it involves a separate part of the body. See Ranville v. J.T.S. Enters., Inc., 101 N.M. 803, 805-06, 689 P.2d 1274, 1276-77 (Ct.App. 1984); see also NMSA 1978, §§ 52-1-43, -44 (Repl. Pamp. 1987).
Employer and Insurer urge this Court to affirm the decision of the judge. They contend that Worker's brain injury should be classified as either a faulty prognosis or as an unexpected consequence of the known injury to his eye. See Mendenhall, 61 N.M. at 282-83, 299 P.2d at 460-61; Quintana, 102 N.M. at 230-31, 693 P.2d at 598-99. Neither of which classification would warrant setting aside the settlement. See Mendenhall, 61 N.M. at 282-83, 299 P.2d at 460-61; Quintana, 102 N.M. at 230-31, 693 P.2d at 598-99.
We find Worker's position to be better reasoned and better supported by the facts and circumstances of this case. Worker was hospitalized at the University of New Mexico Hospital from September 12-17, 1988 where he was treated for rupture of the left eye requiring enucleation, frontal sinus fracture, and a complex nasal fracture. The hospital discharge notice contains no diagnosis of *399 brain damage, nor does the testimony of Dr. Dahlstrom, the specialist who treated Worker's eye injury. Moreover, Employer and Insurer fail to cite to any evidence in the record which indicates that prior to reaching the settlement agreement, Worker had been diagnosed as having a brain injury or treated for any such injury. Further, as acknowledged by Employer and Insurer, CT scans of Worker's brain taken in September 1988 and May 1991 did not reveal either trauma to the brain or evidence of inter-cranial injury.
Although the admission report at the University of New Mexico Hospital made a recommendation that Worker undergo a neurological examination, no evidence was cited nor argument presented that Worker was aware of this recommendation or that he was responsible for not having initiated such an evaluation on his own. On the contrary, Insurer hired a rehabilitation nurse to be in charge of providing medical management of Worker's case and it was she who failed to follow up on a neurological examination.
Sixteen months after the entry of the settlement order, at the request of the New Mexico Department of Vocational Rehabilitation, Worker underwent a neuropsychological exam on July 23 and 25, 1990 by clinical neuropsychologist Maryann Thompson. At that time, Worker was diagnosed as suffering from a frontal lobe brain injury resulting from the September 12, 1988 accident. Thompson attributed Worker's loss of dexterity and speed in his left hand, a disruption of Worker's problem-solving ability and cognitive flexibility as well as such post-traumatic frontal lobe deficits as severe emotional distress, depression and anxiety to the previously undiagnosed brain injury. Thompson conducted a second evaluation in January 1992 and reaffirmed her diagnosis that Worker suffered permanent injury to the frontal lobes of his brain as a result of the 1988 work-related accident. An independent evaluation in February 1991 by neurologist E. Kenneth Mladinich confirmed the diagnosis that Worker suffered from a post-traumatic head injury and frontal lobe deficits. Furthermore, Mladinich testified that an MRI should have been ordered at the time of the accident because Worker's brain damage would not necessarily have been apparent based on CT scans absent an MRI and a neurological examination.
We find persuasive the argument that Worker's brain injury is separate and distinct from the loss of his eye or any facial disfigurement he may have. See Ranville, 101 N.M. at 805-06, 689 P.2d at 1276-77 (worker entitled to separate disability compensation for total disability benefits until recovery two years later for traumatic neurosis as well as recovery under scheduled injury provision for the loss of his eye). In Quintana we held that a settlement would not be set aside where the injury, a lower back injury, was known but the precise consequences were unknown. Quintana, 102 N.M. at 231, 693 P.2d at 599. We stated that an incorrect diagnosis might, however, provide a basis for setting aside a settlement. Id. at 231, 693 P.2d at 599. The New Mexico Supreme Court in Mendenhall clearly distinguished between an incorrect prognosis for a known injury and a mistake as to the diagnosis of an injury. Mendenhall, 61 N.M. at 282-83, 299 P.2d at 460-61. In the instant case, none of the parties knew at the time of settlement that Worker had suffered brain damage as a result of the work-related accident. Therefore, unlike Mendenhall (known injury of a broken arm which proved to be more serious and required an additional operation than the initial prognosis indicated) and Quintana (known injury to the lower back involved an additional disk and required more complicated surgery than the initial prognosis projected), there was no knowledge that Worker's brain had been injured. Although the brain injury existed in its undiagnosed state at the time of the settlement, the injury was not actually diagnosed until sixteen months later once appropriate tests were conducted. Furthermore, it was Insurer who had taken control of Worker's related medical treatment and was therefore responsible for the delay in the diagnosis of the brain injury.
Worker's position is also supported by the decisions of courts in other jurisdictions which have set aside workers' compensation settlement agreements on the basis of an incorrect diagnosis that was relied upon by *400 both the worker and the employer or the employer's representative in deciding whether to agree to the settlement. See LaFleur v. C.C. Pierce Co., 398 Mass. 254, 496 N.E.2d 827, 830-32 (1986) (workers' compensation settlement agreement could be set aside on grounds of mutual mistake if, at time of settlement, parties were mistaken as to existence of any injury); McDonald v. Zinn Drywall, 134 Mich. App. 270, 350 N.W.2d 864, 865-66 (1984) (workers' compensation redemption agreement could be set aside on ground of mutual mistake where, after settlement, worker diagnosed as suffering from temporal lobe epilepsy, a condition unknown to the parties at the time of settlement) (court in McDonald relied upon earlier Michigan Supreme Court decision (Hall v. Strom Constr. Co., 368 Mich. 253, 118 N.W.2d 281, 283 (1962)) in which settlement agreement was set aside on basis of mutual mistake where head injury, viewed by parties at time of settlement as a mere "temporary annoyance," was later correctly diagnosed as permanent brain injury causing epilepsy); Weldele v. Medley Dev., 227 Mont. 257, 738 P.2d 1281, 1282-83 (1987) (workers' compensation settlement agreement could be set aside on basis of mutual mistake where, at time of settlement, parties believed injury limited to healed carpal tunnel syndrome and a rotator cuff problem, and after settlement, worker diagnosed as also suffering from thoracic outlet syndrome).
We are further guided in our analysis of this case by Lucero v. Yellow Freight System, Inc., 112 N.M. 662, 818 P.2d 863 (Ct. App. 1991), the only reported decision construing the meaning of "mistake" in Section 52-5-9(B). This Court in Lucero interpreted "`mistake'" or "`inadvertence'" as having its common ordinary meaning. (The judge made a mistake, which was allegedly unintentionally induced by Worker's counsel, in entering a workers' compensation order awarding past medical expenses.) Id. at 666, 818 P.2d at 867 (citing State v. Rodriguez, 101 N.M. 192, 679 P.2d 1290 (Ct.App. 1984)). Furthermore, in Lucero this Court noted that additional guidance in construing the language of Section 52-5-9(B) could be found by looking to our Rule of Civil Procedure SCRA 1986, 1-060(B) (Repl. 1992), upon which Paragraph B of Section 52-5-9 is modeled, as well as to the identical language found in Federal Rule of Civil Procedure 60(b). Lucero, 112 N.M. at 664, 666, 818 P.2d at 865, 867.
The mistake for which a party seeks relief under Federal Rule 60(b)(1) can be a mistake of any party to the action and need not be the mistake of the movant. See 7 James Wm. Moore & Jo Desha Lucas, Moore's Federal Practice ¶ 60.22[1] (2d ed. 1993). Movant, however, is required to make some showing as to why he is justified in having failed to avoid the mistake, and the showing needs to be more than mere unhappiness with the judgment or carelessness. 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2858 (1973 & Supp. 1993). An example of mistake recognized under Federal Rule 60(b)(1) which is analogous to the case at hand is the setting aside of consent judgments which were agreed to based on erroneous factual representations. See id.
Under the facts and circumstances of the instant case, Worker's brain injury was not diagnosed until sixteen months after the settlement and the failure to diagnose the injury was based on the failure of Insurer to secure the neurological examination recommended by the University of New Mexico Hospital. Furthermore, Worker agreed to the lump sum settlement based on Insurer's negligent misrepresentations regarding the provisions of the New Mexico Workers' Compensation Act. Since Worker entered into the settlement under the mistaken belief that he had suffered no brain injury, we reverse the judge's denial to set aside the lump sum settlement. Our decision is consistent with NMSA 1978, Section 52-5-12 (Repl. Pamp. 1987) which disfavors lump sum payment rather than periodic payments. In addition, under SCRA 1-060(B), it is consistent with the need to carefully balance the competing principles of finality on the one hand, while permitting relief from unjust judgments on the other. See Koppenhaver v. Koppenhaver, 101 N.M. 105, 108, 678 P.2d 1180, 1183 (Ct.App.), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984). Under these exceptional *401 and compelling circumstances, it is appropriate to grant Worker the relief he requests.
Conclusion
Based on the foregoing, we reverse the judge's denial to set aside the settlement pursuant to Section 52-5-9(B) and we remand for a determination regarding Worker's disability due to his brain injury and for a consideration of an award for facial disfigurement and attorney fees. On appeal, Worker is awarded costs and $2000 in attorney fees. Oral argument is deemed unnecessary.
IT IS SO ORDERED.
DONNELLY and CHAVEZ, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875871/ | 260 S.W.3d 929 (2008)
STATE of Missouri, Respondent,
v.
Oscar MURPHY, Appellant.
No. ED 90072.
Missouri Court of Appeals, Eastern District, Division Two.
September 2, 2008.
Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for respondent.
Before ROY L. RICHTER, P.J., LAWRENCE E. MOONEY, J., and GEORGE W. DRAPER III, J.
ORDER
PER CURIAM.
Oscar Murphy appeals from the trial court's judgment and sentence after a jury found him guilty of forcible rape. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2983803/ | Order filed June 5, 2014
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00323-CV
____________
RICHARD POWELL, Appellant
V.
YOEN NAVARETTE CARDENAS, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1012724
ORDER
The notice of appeal in this case was filed April 25, 2014. To date, the filing
fee has not been paid. No evidence that appellant has established indigence has
been filed. See Tex. R. App. P. 20.1. Therefore, the court issues the following
order.
Appellant is ordered to pay the filing fee to the Clerk of this court on or
before June 20, 2014. See Tex. R. App. P. 5. If appellant fails to timely pay the
filing fee in accordance with this order, the appeal will be dismissed.
PER CURIAM | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2608622/ | 27 Wash. App. 947 (1980)
621 P.2d 209
THE STATE OF WASHINGTON, Respondent,
v.
KERRY DEAN SERGENT, Appellant.
No. 7782-1-I.
The Court of Appeals of Washington, Division One.
December 17, 1980.
William Jaquette, for appellant (appointed counsel for appeal).
Norm Maleng, Prosecuting Attorney, and Lee D. Yates, Deputy, for respondent.
DORE, J.
Defendant appeals from his conviction of murder in the second degree. We reverse and remand for a new trial.
ISSUE
Was defendant's February 15 confession voluntary?
*948 FACTS
The victim and her son, the defendant, lived together. The victim's neighbors became concerned on November 27, 1978, when the victim failed to report for work and could not be located throughout the day. Police responded to a call from the neighbors. Before entering the house, police observed blood inside a van parked in the victim's carport and blood on the doorknob of the door between the house and the carport. The police entered the home and saw blood smeared on the walls and spattered on the floors. They followed the blood stains to the basement, where they found defendant cowering in a bathroom, a gun in one hand and a boot in the other. Defendant surrendered without resistance.
Defendant's clothes were stained with blood. He said that the blood in the kitchen was probably from a chicken which he believed his mother had slaughtered. Defendant was arrested. When interviewed by the police, defendant stated he did not know the whereabouts of his mother, but assumed from the blood in the kitchen that she had been killed. He felt that the CIA may have been involved.
Additional circumstantial evidence linked defendant with the crime. Defendant was charged with second degree murder. The State's charge against defendant was amended to first degree murder.
On January 19, defendant was found incompetent to stand trial and was taken to Western State Hospital. While at Western, defendant was administered haloperidol (which reduces delusions and hallucinations of one suffering from schizophrenia) and cogetin (which controls undesirable physical side effects of the haloperidol).
On February 15, the defendant telephoned the prosecuting attorney from Western State Hospital. He expressed a desire to enter a plea of guilty to second degree murder. The prosecutor called a Sergeant Hicks who spoke to the defendant by telephone from the prosecutor's office and later from his own office. Hicks advised defendant of his *949 Miranda rights and then taped the interview, with defendant's permission. The defendant confessed to stabbing his mother and removing her body to a remote place. The recorded confession was admitted at the trial as an exhibit. Throughout the interview, the defendant breathed heavily and panted. Defendant continually asked the detective when he would be picked up and taken to the jail and, inferentially, away from the mental hospital.
The court held the February 15 statement admissible at a CrR 3.5 hearing. The defendant waived his right to a jury trial. Dual pleas of not guilty and not guilty by virtue of insanity[1] were entered. The court found the defendant was not insane at the time of the crime. Defendant was found guilty of murder in the second degree.
DECISION
ISSUE: February 15 statement was involuntary.
[1] A confession must be made freely and without inducement or compulsion before it may be admitted as evidence against the defendant. Haynes v. Washington, 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963). A court will look to a totality of the circumstances to determine whether a confession was made voluntarily. Fikes v. Alabama, 352 U.S. 191, 1 L. Ed. 2d 246, 77 S. Ct. 281 (1957).
An examination of all the circumstances surrounding the February 15 statement convinces us that the confession was involuntary. At the time the statement was given the defendant was taking large doses of an antipsychotic medication. A clinical psychologist on the staff at Western State Hospital testified that the transcript of the confession indicated defendant was exhibiting symptoms of schizophrenia when he made the statement. There was ample evidence that defendant had a strong negative reaction to the drugs, and repeatedly asked to be taken off of them.
*950 Further, defendant was incompetent to stand trial at the time that he gave the statement on February 15. Defendant was found competent to stand trial 2 months later, on April 27. Subsequent to that time, however, he was returned to Western State, but again was found competent to stand trial on May 7.
The taped "confession" discloses defendant's motive for making the confession. Defendant believed that if he confessed to the crime, he would be transferred to the jail and away from Western State, thereby escaping the prescribed medications. A psychiatrist at Western State testified that a few days before February 15, defendant stated his intention to put this plan into effect. During the taking of the statement, defendant interrupted the detective a number of times to ask when someone would be coming to take him away from Western State.
We further note that defendant's telephone call was in the nature of a plea bargain. He hoped that if he confessed he would have the charge reduced to second degree murder. He was never promised a reduction in charge. At the start of the interview, however, defendant explained that his understanding of the difference between the two degrees were that, "Well, first degree is premeditated. Second degree is spur of the moment." Detective Hicks responded, "Okay. And you're telling me that what happened between you and your mother was not premeditation?" to which defendant answered "True." This interchange took place before Hicks informed defendant of his Miranda[2] rights. When the conversation focused on the day of the murder, the following took place:
DEFENDANT: This will be second degree won't it?
HICKS: Well, you told me you understood what the degrees were. And if it's not pre-meditated, then it would be classified as second degree
DEFENDANT: What's that?
*951 HICKS: You know, if it's not pre-meditated, then it probably would be classified as second degree. You know that better than I do, because I don't know what you're going to tell me.
DEFENDANT: Okay, after I woke up, I killed her, okay?
HICKS: Well, how did that happen?
DEFENDANT: It was just spur of the moment, like you said.
Defendant's attorney was not notified of his client's intention to make a confession, nor was defendant's attorney notified by the prosecutor of defendant's telephone call or of the follow-up call by Hicks until after those calls took place.
The taking of drugs by the defendant does not by itself render the confession involuntary. State v. Lewis, 19 Wash. App. 35, 573 P.2d 1347 (1978). Nor does defendant's incompetency to stand trial make him incompetent to waive his constitutional rights to counsel and to remain silent. State v. McDonald, 89 Wash. 2d 256, 571 P.2d 930 (1977). We must look, however, to the entire situation surrounding the giving of the statement. The combination of the defendant's incompetency, his mental illness, the medication he was taking and his adverse reaction to those drugs, his attempt at plea bargaining and his waiver of fundamental constitutional rights without the assistance of his attorney, compel us to find that his statement to Detective Hicks was involuntary. The defendant's responses to Hicks' highly suggestive and leading questions were principally "yes" or "no." No narrative summary of facts on defendant's part was ever secured.
[2] The State asserts that even if the confession should have been excluded from evidence, the error was harmless. We do not agree. The United States Supreme Court has stated "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R. 3d 1065 (1967). In other words, the appellate *952 court must determine whether the erroneously admitted evidence became part of the adjudication of guilt.
In the case before us, the confession played a crucial role in the second degree murder conviction. The court stated in its oral opinion:
Now, the doctors tend to discount the so-called confession. The Court may well understand the reason for that. As the doctors indicate, the defendant has indicated the motivation for that too that was a means of leaving Western State, being placed in jail. He would not be required to take his medicine. That's understandable.
Yet on close examination of the transcript of the statement, it indicates that there are some facts there that it appears were unknown to anyone, other than the person who may have been involved.
On the basis of all of the evidence, the Court is of the opinion that the defendant is guilty of murder in the second degree.
(Italics ours.) We cannot say that the introduction of the confession into evidence was harmless beyond a reasonable doubt.
Reverse and remand for a new trial. On retrial, the February 15 statement shall be excluded.
CALLOW, C.J., and JAMES, J., concur.
Reconsideration denied January 19, 1981.
Review denied by Supreme Court March 13, 1981.
NOTES
[1] See State v. Smith, 88 Wash. 2d 639, 564 P.2d 1154 (1977).
[2] Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609737/ | 526 P.2d 174 (1974)
96 Idaho 214
John M. BARKER et al., Plaintiffs,
v.
Lee WAGNER, as Secretary of the Board of Directors of the American Falls Reservoir District, Defendant.
No. 11600.
Supreme Court of Idaho.
July 19, 1974.
Rehearing Denied September 6, 1974.
Thomas G. Nelson, Parry, Robertson, Daly & Larson, Twin Falls, for plaintiffs.
William D. Collins, Collins & Manly, Boise, for defendant.
McQUADE, Justice.
This is an original proceeding for a Writ of Mandate to compel Lee Wagner, the Secretary of the Board of Directors of the American Falls Reservoir District (Secretary), to give notice of two elections in the American Falls Reservoir District (District) which have been called by its Board of Directors pursuant to the authority contained in H.B.No. 354.[1] One election is for approval of the District entering into a contract for construction of the replacement dam at the American Falls Reservoir and issuance of bonds to finance the construction, and the other election is for approval of the District imposing assessments on lands served by the District for their proportionate share of construction costs.
The American Falls Dam and the American Falls Storage Reservoir are located on the Snake River in Southern Idaho. The original dam was completed in 1928 and is owned by the United States government as part of a Federal Reclamation project. The construction of the original dam was financed in part by the District pursuant to a contract with the United States whereby the District purchased a 28.6% of the water *175 storage capacity of the dam and agreed to pay to the United States 28.6% of the cost of constructing the dam.
The United States Bureau of Reclamation has determined that the original dam is no longer structurally sound and has placed restrictions upon the maximum level of water in the reservoir. Currently the water level is set at less than 67% of the usable water storage capacity. Furthermore the dam is continuing to deteriorate which will result in the water level being reduced in the future.
There are 35 entities (spaceholders) that own shares of the water storage capacity of the original dam: 14 irrigation districts including the District, 16 canal and irrigation companies, 2 private companies, 2 individuals and the United States Indian Irrigation Service. Within the District there are 5 canal companies which have rights to the storage, diversion and delivery of water out of the storage rights of the District. The lands that the 35 spaceholders serve are arid and require irrigation to produce crops.
The federal government has not appropriated the necessary funds for the construction of a replacement dam. The Congress of the United States has enacted public law 93-206[2] which authorizes the Secretary of the Interior to enter into an agreement with the District for construction of a replacement dam and upon completion of the replacement dam, title is to be transferred to the United States. It also authorizes the District, subject to approval by the Secretary of the Interior, to contract with non-federal electric power producers for the use of the falling water discharged by the dam. The monetary return from the falling water contract is to be used to defray part of the cost of construction of the replacement dam. Public Law 93-206 also provides that the District may enter into agreements with other spaceholders for repayment by them of their proportionate share of the total cost incurred in the replacement dam.
The Idaho State Legislature has enacted Idaho Sess. Laws ch. 1 (1974), which authorizes irrigation districts after approval at a special election of 2/3 of the qualified electors voting, to reconstruct and improve dams and to issue bonds for payment of the construction. Idaho Sess. Laws ch. 1 (1974) provides that the bonded indebtedness shall be payable solely out of a special fund into which the irrigation district shall deposit; (1) The collection of benefit assessments levied by the irrigation district; (2) Payments pursuant to contracts entered into with other public or private irrigation entities; (3) The proceeds from the sale or use of falling water for power production.
Idaho Power Company, which presently owns and operates a hydroelectric power plant below the original dam, has offered to enter into a falling water contract with the District. The proposed contract provides that Idaho Power Company would pay to the District for the use of falling water for power production 40 annual installments sufficient to retire $19,000,000 of bonds issued by the District. The falling water contract is subject to approval by the Secretary of the Interior as provided in Public Law 93-206.
The Board of Directors of the District adopted a resolution calling for a special election to submit to the District's electors a proposal that the District enter into a contract with the Secretary of the Interior for construction of a replacement dam to be financed by the issuance of bonds by the District in the amount of $30,000,000 to be retired within 45 years from the date of issue. The bonded indebtedness would be retired through receipts from a falling water contract with the Idaho Power Company, contracts with other spaceholders for their proportionate share of the construction costs, and assessments on lands within the District for their proportionate share of construction costs.
*176 The Board of Directors also adopted a resolution calling for a special election to submit to the District's electors a proposal that the District collect from the land served by the District assessments representing their proportionate share of the construction costs of the replacement dam.
Although the Board of Directors has directed the Secretary to give notice of the bond election and the assessment election, the Secretary has refused to give the notices. The District filed this original proceeding for a Writ of Mandate to compel the Secretary to give the notices for the two elections.
The Secretary contends that a Writ of Mandate ordering him to give notice of the elections should not be issued because the proposed bonds are in violation of art. 8 § 3 of the Idaho Constitution. It is provided in art. 8 § 3 that,
"Limitations on county and municipal indebtedness. No county, city, board of education, or school district, or other subdivision of the state, shall incur any indebtedness, or liability, in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provisions shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within thirty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void: Provided, that this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state and provided further that any city may own, purchase, construct, extend, or equip, within and without the corporate limits of such city, off street parking facilities, public recreation facilities, and air navigation facilities, and, for the purpose of paying the cost thereof may, without regard to any limitation herein imposed, with the assent of two-thirds of the qualified electors voting at an election to be held for that purpose, issue revenue bonds therefor, the principal and interest of which to be paid solely from revenue derived from rates and charges for the use of, and the service rendered by, such facilities as may be prescribed by law, and provided further, that any city or other political subdivision of the state may own, purchase, construct, extend, or equip, within and without the corporate limits of such city or political subdivision, water systems, sewage collection systems, water treatment plants, and sewage treatment plants, and for the purpose of paying the cost thereof, may, without regard to any limitation herein imposed, with the assent of a majority of the qualified electors voting at an election to be held for that purpose, issue revenue bonds therefor, the principal and interest of which to be paid solely from revenue derived from rates and charges for the use of, and the service rendered by such systems, plants and facilities, as may be prescribed by law; and provided further that any port district, for the purpose of carrying into effect all or any of the powers now or hereafter granted to port districts by the laws of this state, may contract indebtedness and issue revenue bonds evidencing such indebtedness, without the necessity of the voters of the port district authorizing the same, such revenue bonds to be payable solely from all or such part of the revenues of the port district derived from any source whatsoever excepting only those revenues derived from ad valorem taxes, as the port commission thereof may determine, and such revenue bonds not to be in any manner or to any extent a general obligation of the port district issuing the same, nor a charge upon the ad valorem tax revenue of such port district."
*177 The Secretary contends that the proposed bonds violate art. 8 § 3 because they have a maximum maturing date of 45 years whereas art. 8 § 3 provides that bonds must mature within 30 years. Moreover, the Secretary argues that the 1972 amendment to art. 8 § 3 which increased the maturing period of bonds from 20 to 30 years was invalid because the amendment included two different subjects in violation of art. 20 § 2 of the Idaho Constitution. It is also argued that the proposed bonds are in violation of art. 8 § 3 because there is no provision for the collection of an annual tax to pay the interest on the bonds as it falls due and to constitute a sinking fund for the payment of the principal. These two issues need not be decided in this case since we hold that art. 8 § 3 does not apply to irrigation districts for the reasons herein discussed.
The limitation on indebtedness of art. 8 § 3 applies to counties, cities, boards of education, school districts or other subdivisions of the state. The question for this proceeding is whether the irrigation district is a subdivision of the state.
In the case of Jensen v. Boise-Kuna Irrigation District[3] it was argued that a contract entered into by the irrigation district violated art. 8 § 3 on the ground that the contract expenses would exceed the anticipated revenues. The Court did not reach the constitutional issue because it found that there was no showing that the expense required by the contract would exceed the irrigation district's revenues. The Court went on to state by way of dictum that an irrigation district is not a subdivision of the state as referred to in art. 8 § 3.
For the purposes of other constitutional provisions, irrigation districts have been held to be municipal corporations, or subdivisions of the state. Irrigation districts have been held to be municipal corporations for the purposes of art. 7 § 6 of the Idaho Constitution which provides that the state legislature shall not impose taxes for municipal corporations but allows the state to authorize municipal corporations to collect their own taxes.[4] It has also been held that irrigation districts are subject to art. 1 § 20 of the Idaho Constitution which provides that there shall be no property qualifications for electors.[5]
In the case of Lewiston Orchards Irrigation District v. Gilmore,[6] this Court was similarly presented with the problem of determining the character of irrigation districts and reconciling conflicting authority. That case involved the question of whether land acquired by an irrigation district for failure to pay assessments was exempt from state taxation under art. 7 § 4 of the Idaho Constitution. It was held that irrigation districts are not municipal corporations for the purpose of exemption from state taxation. The court characterized irrigation districts as follows,
"We have carefully analyzed and compared the foregoing authorities and others to similar effect, and have reached therefrom the conclusion that an irrigation district is a public corporation having such incidental municipal powers as are necessary to its internal management and the proper conduct of its business. Its primary purpose is the acquisition and operation of an irrigation system as a business enterprise for the benefit of land owners within the district, such property being held in trust for them in a proprietary capacity, while secondarily and incidentally certain municipal powers have been conferred for its government and regulation, and, when this is borne in mind, any seeming confusion in or conflict with the authorities holding *178 that an irrigation district is a municipal or quasi-municipal corporation within the meaning of certain statutes and constitutional provisions disappear."[7]
The four enumerated entities that are subject to art. 8 § 3 are counties, cities, boards of education and schol districts. The characteristics of the four enumerated entities must be compared with the characteristics of irrigation districts to determine if it was intended that irrigation districts be subject to the limitations of art. 8 § 3. The four enumerated entities possess general governmental powers in the sense that their regulations and taxation apply to all persons located within their geographical boundaries. Irrigation districts are organized for the benefit of water users only, and they raise funds to finance their operations through assessments of water users. The assessments are levied on the basis of benefits received by the land.[8] The benefit assessments imposed by irrigation districts are similar to special assessments for improvement purposes which have been held not to be a tax within the uniformity requirements of the Idaho Constitution.[9]
Moreover, art. 8 § 3 requires,
"[P]rovisions shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal . .."
Since art. 8 § 3 speaks in terms of taxes and since benefit assessments are not taxes, art. 8 § 3 applies to general governmental entities, not entities such as irrigation districts which derive their funds from benefit assessments.
The limitation on indebtedness of art. 8 § 3 applies to the revenue raising procedures of specified governmental entities. A comparison of the revenue raising procedures of counties, cities, boards of education and school districts with irrigation districts reveals that irrigation districts are in essence corporations organized by persons for their own direct benefit, and who finance the corporation by payment in proportion to the benefits received. The entities enumerated in art. 8 § 3 are clearly different from irrigation districts and it is hereby concluded that art. 8 § 3 does not apply to irrigation districts.
The alternative writ of mandate shall be permanent.
SHEPARD, C.J., and DONALDSON, McFADDEN and BAKES, JJ., concur.
ON DENIAL OF REHEARING
The opinion of this Court that the American Falls Reservoir District was not a governmental entity is dispositive of the issues presented by the petition for rehearing concerning applicability of other constitutional provisions.
NOTES
[1] Idaho Sess. Laws, Ch. 1 (1974).
[2] Pub.L. No. 93-206 (Dec. 28, 1973).
[3] 75 Idaho 133, 269 P.2d 755 (1954).
[4] Oregon Shortline R.R. v. Pioneer Irrigation District, 16 Idaho 578, 102 P. 904 (1909); Gem Irrigation District v. Van Deusen, 31 Idaho 779, 176 P. 887 (1918).
[5] Ferbrache v. Drainage District No. 5, 23 Idaho 85, 128 P. 553 (1912); Pioneer Irrigation District v. Walker, 20 Idaho 605, 119 P. 304 (1911).
[6] 53 Idaho 377, 23 P.2d 720 (1933).
[7] Id., at 382, 23 P.2d at 722.
[8] I.C. §§ 43-404 & 43-701.
[9] Bosworth v. Anderson, 47 Idaho 697, 280 P. 227 (1929); Booth v. Groves, 43 Idaho 703, 255 P. 638 (1927). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3351637/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] RULING ON MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUESTS FOR PRODUCTION DIRECTED TO PLAINTIFF HARTFORD ORTHOPEDIC SURGEONS, P.C.
In the above-captioned case, the plaintiff physicians and practice groups assert that the defendant Anthem Health Plans, Inc. ("Anthem") has breached its agreements with them in various ways, including, inter alia, failing to pay them for services in timely fashion, arbitrarily denying payment for services, failing to maintain adequate administrative services, and failing to communicate its procedures adequately.
On January 8, 2001, Anthem served plaintiff Hartford Orthopedic Surgeons, P.C., with interrogatories and requests to produce documents. This plaintiff responded on April 26, 2001. This plaintiff filed no objection to any of the discovery requests at issue. Anthem complains that the responses are incomplete and seeks an order compelling this plaintiff to comply. The specific claims of noncompliance are set forth and ruled upon below.
1. Failure to identify persons with knowledge of claims
Many of Anthem's interrogatories, specifically, subparts (b) of 1-21 and 25, asked this plaintiff to identify all persons with knowledge of particular claims made in the complaint. Hartford Orthopedic Surgeons, P.C. identified one such person, its office manager. In its November 18, 2002, response to the motion to compel, this plaintiff identified some additional such persons. Presumably, this plaintiff intends to supplement in the form required by PB. §§ 13-7 and 13-10. Setting forth information in a brief in opposition does not conform with the requirements of these rules.
The court has no way of determining that this plaintiff has failed to include all persons with knowledge of the facts at issue. If indeed there are additional such persons known to it, this plaintiff takes the very real risk that it will be barred from presenting such additional CT Page 892 witnesses at trial. The defendant is entitled to conduct discovery, include depositions, in an orderly fashion rather than on the eve of trial. Any supplementation of this plaintiffs response to these questions must be filed in proper form by May 1, 2003.
2. Response by Reference to Deposition Transcript
Anthem complains that this plaintiff, has responded to Interrogatories 13-15 by stating "see deposition of John O'Brien, M.D. dated March 22, 2001 and deposition of Debra Jedziniak dated April 12, 2001." In the plaintiffs' brief in opposition to the motion, this plaintiff does not defend the adequacy of its answer but purports to provide additional answers to Interrogatories 13, 14 and 15. Setting forth information in a brief in opposition does not conform with the requirements of P.B. §§ 13-7 and 13-10. This plaintiff must instead supplement its answer under oath in the form required by those provisions of the Practice Book. The court notes that some of the new responses informally set forth in plaintiffs' opposition brief purport to answer questions by referring the defendant to a number of deposition exhibits. Unless a document actually sets forth the answer, without the need for the defendant to interpret which part of the document is meant to constitute the answer, such a method of response is insufficient.
This plaintiff shall provide narrative answers in proper form no later that May 1, 2003
3. Response "Unable to Answer at This Time"
This plaintiff has responded to interrogatories 10 and 12 by stating "unable to answer at this time." Anthem complains that this statement is unresponsive. This plaintiff counters that it "stands by this answer." While a party may deny knowledge of a subject into which an opponent inquires, encountering the risk that lack of facts to support a claim will lead to the defeat of the claim, this plaintiff has phrased its answer in a manner that suggests that it may acquire and reveal facts at some other time.
While this plaintiff cannot be compelled to provide information it has sworn that it does not have, it may not ambush its opponent by acquiring the information at a later time. Accordingly, the court orders that any supplementation of the response shall be made not later than May 1, 2003.
4. Response by Reference to Deposition Exhibits
CT Page 893
Anthem complains that this plainitff has responded to Interrogatories 1-7
(a), (c)-(d), 8-9 (a), (c)-(e), 11(a), (c)-(d); 16(a), (c)-(d); 17(a), (c)-(f) 18-19 (a), (c)-(d), 21(a), (c)-(d), 22-23; 25-40 Request for Production 9, 14, 17 and 21-23, 25-27, 30, 33-34, 37-43, and 45-48 by stating only "See transcript and documents identified as Defendant's Exhibits Nos. 171-184 (3-22-01) in the deposition of John O'Brien, M.D. and the deposition of Debra Jedziniak (4-12-01)."
A response may take the form of a reference to a document if the document actually and unambiguously sets forth the answer to the interrogatory; however, if the document contains information on more than one subject, or if the content of the document does not directly answer the question but is clear only with an explanation, the respondent must supply a narrative answer or an answer that states with specificity where in the document the answer to the interrogatory appears. The court finds that responses to interrogatories that refer to a multitude of documents the contents of which are not confined to the single topic of the interrogatory are unresponsive.
The defendant has failed to explain why a request for production of documents is not sufficiently answered by referring it to numbered exhibits already used at a deposition. The court finds that the defendant has not proven noncompliance as to this item.
The plaintiff is ordered to provide a specific narrative response setting forth the information sought in the interrogatories listed above no later than May 1, 2003.
In its brief in opposition to the motion to compel, Hartford Orthopedic Surgeons, P.C. purports to disclose additional documents "relating to the above-referenced Anthem employees and Maureen Smith. Specifically, Exhibits 8, 11, 173, 174, 177, 178, 198, 199, 201, 211.". This plaintiff may not supplement its response to discovery in this informal manner, which bypasses the obligation to provide answers under oath, but must instead supplement its responses under oath in the form required by PB. §§ 13-7 and 13-10. Setting forth information in a brief in opposition does not conform with the requirements of these rules.
5. Responses that documents are "Not Applicable"
Anthem complains that this plaintiff has responded to requests for production 10, 12, 13, 15, 16, 20 and 44 with "N/A," which this plaintiff confirms in its brief in opposition to the motion to compel is meant to convey the phrase "not applicable." If Hartford Orthopedic Surgeons, P.C. means by "not applicable" that it does not make the claim to which CT Page 894 each of these requests for production is directed, this plaintiff must say so unambiguously. If this plaintiff means that it does not have any such documents, it must say that unambiguously. This plaintiffs present responses to the discovery requests listed above are ambiguous and unresponsive. This plaintiff shall provide clear responses and produce any responsive documents in its possession, custody or control no later than May 13, 2003, and it shall do so under oath in the form required by P.B. § 13-10.
6. Failure to Provide all Responsive Documents
Anthem complains that this plaintiff has responded to interrogatories 1(c), 4-7 (c), 9(c), 10(c) and requests for production 1-4, 8 and 14, which relate to the plaintiffs' claim that Anthem did not make timely and appropriate payments for the services plaintiff rendered and the claim that Anthem failed to maintain adequate records concerning payments, by producing some documents but not all of the documents that Anthem surmises this plaintiff possesses with regard to these claims.
Anthem has not identified any documents that it knows are in this plaintiffs possession, custody or control that he has failed to produce. If in fact this plaintiff has withheld responsive documents, it faces the probable outcome that it will be unable to present such documents in evidence at trial. This court does not, however, have any basis for concluding that this plaintiff has withheld responsive documents.
This plaintiff has purported to provide additional responses in the brief in opposition to the motion. Such informal supplementation does not comply with the requirements of the Practice Book, which requires compliance to be made in the manner set forth in P.B. §§ 13-7 and 13-10.
Conclusion
The court finds that Hartford Orthopedic Surgeons, P.C. has failed to comply with Anthem's discovery in the respects identified above and grants the motion to the extent set forth above. Compliance shall be made no later than May 1, 2003.
1/14/03 ___________________ Beverly J. Hodgson Date Judge of the Superior Court
CT Page 895 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2908660/ | Jesus O. Reyna v.State
IN THE
TENTH COURT OF APPEALS
No. 10-98-340-CR
     JESUS O. REYNA,
                                                                         Appellant
     v.
     THE STATE OF TEXAS,
                                                                         Appellee
From the 278th District Court
Madison County, Texas
Trial Court # 10,025
                                                                                                               Â
                                                                                                        Â
O P I N I O N
                                                                                                               Â
      A jury convicted Jesus Reyna of aggravated assault and possession of a deadly weapon in a
penal institution, and sentenced him to seven years in the Department of Criminal Justice. See
Tex. Pen. Code Ann. §§ 22.02, 46.10 (Vernon Supp. 1999). Reyna appeals on grounds that he
was denied effective assistance of counsel at various stages in the trial. Because we find that
Reyna failed to preserve this issue for review, we will affirm.
      At the time of the assault, Reyna was an inmate in the Ferguson Unit of the Department of
Criminal Justice at Midway, Texas. On April 23, 1996 during the prisonâs daily recreation
period, a fight broke out between a group of Mexican Nationals and a group of Hispanics from
Dallas and Houston. Jim Boyd, a correctional officer assigned to the recreation area, testified that
he observed Reyna stab the victim, Mark Rocha. Boyd further testified that the inmates were
ordered to lay down their weapons, and he observed Reyna lay a weapon on the ground. After
the inmates were subdued, Boyd went to the spot where Reyna surrendered the weapon and
recovered a six and one half inch piece of metal that was sharpened on one end and that had a
piece of sheet wrapped around the other end.
      Reyna contends that his trial counsel committed several errors that cumulatively denied his
right to effective assistance of counsel. He alleges his defense was inadequate in that counsel (1)
failed to develop a viable self-defense or necessity defense argument, (2) failed to object to
questions by the prosecutor regarding extraneous acts of misconduct committed by Reyna during
his confinement, and (3) failed to object to the prosecutorâs comment on Reynaâs refusal to give
a statement.
      Before a litigant may present a complaint for appellate review, Rule 33.1 of the Rules of
Appellate procedure provides that the record must show (1) the complaint was made to the trial
court by a timely request, objection or motion, and (2) the trial court ruled on the request,
objection or motion or expressly refused to rule and the complaining party objected to such
refusal. Tex. R. App. P. 33.1(a). The record does not indicate that Reynaâs complaint of
ineffective assistance of counsel was ever presented to the trial court. See Gonzales v. State, 994
S.W.2d 369, 372-73 (Tex. App.âWaco 1999, no pet.). Thus, nothing is presented for our review.
      The judgment of the trial court is affirmed.
                                                                         PER CURIAM
Â
Before Justice Vance,
      Justice Gray, and
      Chief Justice McDonald (Retired)
      (Chief Justice McDonald not participating)
Opinion delivered and filed October 27, 1999
Affirmed
Do not publish
Â
the evidence is
factually insufficient. A court of appeals should detail in its opinion why it
has concluded that a reasonable factfinder could not have credited disputed
evidence in favor of the finding.
Â
Id. at
266-67 (footnotes and citations omitted). We view the evidence in a neutral
light when reviewing for factual sufficiency.
           Only
one predicate act under section 161.001(1) is necessary to support a judgment
of termination when there is also a finding that termination is in the child's
best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Grounds for Termination   Â
The petition for termination alleged and the court
found that J.W. knowingly placed or knowingly allowed H.W. to remain in
conditions or surroundings that endangered her physical or emotional well-being
and that he engaged in conduct or knowingly placed H.W. with persons who
engaged in conduct that endangered her physical or emotional well-being. Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 2007).
Section 161.001(1)(D) of the Texas Family Code
states that the court may order termination of the parent-child relationship if
the court finds by clear and convincing evidence that the parent has knowingly
placed or knowingly allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child. Id. § 161.001(1)(D).  ÂEndanger means to expose to loss or injury or to
jeopardize. Texas DepÂt of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987). However, it is not necessary that the child actually suffer
injury. Id. Although this provision addresses the childÂs surroundings
rather than the parentÂs conduct, conduct by a parent or other resident of a
childÂs home can produce an environment that endangers the physical or
emotional well-being of a child. In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.ÂTyler 2003, no pet.).
Ninfa Torres, a Department supervisor, testified
that she became involved with H.W.Âs case when the Department received allegations
of neglectful supervision and drug use. The Department sought emergency
removal of H.W., who had a history of being in foster care, when a domestic
violence incident over drugs occurred at J.W.Âs home. During that incident,
J.W. got high on cocaine and chased his wife (H.W.Âs stepmother) around with a
stick.
When J.W. was interviewed about the allegations,
he tested positive for cocaine and admitted that he frequently left H.W. with
his wife, who used methamphetamines and had issues with depression. Torres
testified that this was particularly dangerous because H.W. was also diagnosed
with clinical depression and self-harm behavior, which causes her to pull out
her hair and pick at the skin on her stomach and arms. She also testified that
H.W. has a heart condition, due to her dependency on cocaine at birth, and that
J.W. was not seeking appropriate medical attention for her. Torres reported
that on visitation to H.W.Âs home, which did not have electricity, H.W.Âs
appearance was dirty, her hair was unkempt, and the home did not have a place
for her to sleep.
Dianne Ames, H.W.Âs caseworker, outlined the family
service plan created for J.W. to regain custody of H.W. For a year, the
Department asked J.W. to demonstrate an ability to maintain a drug-free lifestyle,
which included finding drug-free housing and taking random drug tests. J.W.
was also asked to provide payment stubs indicating steady employment, utility
receipts, and an updated address within 72 hours of any relocation. Finally,
he was asked to participate in individual counseling, anger management, parenting
skills classes, and to refrain from criminal behavior. Ames testified that at
the time of trial, J.W. had not provided the Department with proof of
completion of any of the DepartmentÂs requests. Ames tried to get in contact
with J.W. by telephone and with letters on numerous occasions, but he never
responded. She also testified that of the eight court proceedings involving
J.W.Âs parental rights, he had only attended two. J.W. did not attend trial,
and his counsel did not present any evidence contradicting the DepartmentÂs
evidence.
           Using the appropriate standards of
review for legal and factual sufficiency, we conclude that "the evidence
is such that a factfinder could reasonably form a firm belief or
conviction" that J.W. knowingly placed or knowingly allowed H.W. to remain
in conditions or surroundings that endangered her physical or emotional
well-being and that J.W. engaged in conduct or knowingly placed H.W. with
persons who engaged in conduct that endangered her physical or emotional
well-being. J.F.C., 96 S.W.3d at 266. The evidence is thus legally and
factually sufficient to support the trial courtÂs findings on the endangerment
grounds. We overrule J.W.Âs first issue.
Remaining Grounds for Termination   Â
           The trial courtÂs findings of fact
contain affirmative findings on four predicate grounds for termination of J.W.Âs
parental rights. Because we have found the evidence legally and factually
sufficient to support the finding that J.W. engaged in conduct that endangered H.W.Âs
physical and emotional well-being, we need not address the sufficiency of the evidence
to support the other three predicate grounds. See In re T.N.F., 205
S.W.3d 625, 629 (Tex. App.ÂWaco 2006, pet. denied).
           For termination of the parent-child
relationship, the factfinder must make an affirmative finding: (1) on at least
one predicate ground for termination; and (2) that termination is in the best
interest of the child. See Tex.
Fam. Code Ann. § 161.001. Because J.W. does not challenge the trial
courtÂs best interest finding in his appellantÂs brief, we do not address the
sufficiency of the evidence to support the courtÂs best-interest finding. Â See
In re D.M., 244 S.W.3d 397, 403 (Tex. App.ÂWaco 2007, no pet.) (Reyna, J.,
concurring) (ÂIt is well-settled that this Court cannot address an issue in a
civil appeal which has not been raised as an issue or point of error in the
appealing partyÂs brief.Â).
Findings of Fact and Conclusions of Law
Â
In his second issue, J.W. complains that the trial
court failed to file findings of fact and conclusions of law. He claims that he
timely requested findings of fact and conclusions of law under Civil Procedure
rules 296 and 297. Under Rule 296, a party may request the court to make
written findings of fact and conclusions of law within twenty days after the
judgment is signed. Tex. R. Civ. P.
296. However, the record reflects that J.W. filed a Notice of Past Due
Findings of Fact and Conclusions of Law on February 27, 2008, forty-one days
after the termination order was signed.
The clerkÂs record does not reflect that J.W. ever
filed an initial request for findings of fact and conclusions of law. Because
J.W. failed to formally request findings of fact and conclusions of law within
twenty days of the trial courtÂs judgment, his notice of past due findings of
fact and conclusions of law is untimely, and he has failed to preserve his
claim regarding lack of such findings for appellate review. Strangel v.
Perkins, 87 S.W.3d 706, 709 (Tex. App.ÂDallas 2002, no pet.); DeMello v.
NBC Bank-Perrin Beitel, 762 S.W.2d 379, 381 (Tex. App.ÂSan Antonio 1988, no
pet.). We overrule J.W.Âs second issue.
Conclusion
Because we have found the evidence sufficient to
support at least one predicate act under section 161.001(1) and J.W. failed to challenge
the courtÂs best interest finding and make a timely request for findings of
fact and conclusions of law, the trial courtÂs order is affirmed.
Â
Â
Â
BILL VANCE
Justice
Â
Â
Before Chief Justice
Gray,
           Justice
Vance, and
           Justice Reyna
Affirmed
Opinion delivered and
filed October 29, 2008
[CV06] | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8326475/ | Curran, Dennis J., J.
INTRODUCTION
Kevin M. Plante sued his former employer, Hinckley, Allen & Snyder, LLP (Hinckley Allen), for wrongful termination. Hinckley Allen counterclaimed. The matter is currently before the court on three motions: (1) Hinckley Allen’s motion for summary judgment on the separation agreement and release (paper no. 65); (2) Hinckley Allen’s motion to strike evidence relied upon in Plante’s opposition to its motion for summary judgment (paper no. 67); and Plante’s motion to dismiss the counterclaim (paper no. 59). For the reasons explained below, both of Hinckley Allen’s motions are ALLOWED in part and DENIED in part. Plante’s motion is DENIED.
BACKGROUND
Regarding the motions to strike and for summary judgment, the summary judgment record sets forth the following facts, drawing all reasonable inferences in a light most favorable to the non-moving plaintiff.
Hinckley Allen hired Plante to work as a senior associate in its litigation group in November 2004. In March 2005, four Hinckley Allen partners asked Plante to look at images that had been downloaded from a client’s computers during a discovery production to determine whether the images were pornographic. If Plante found them to be pornographic, then he was instructed to determine what steps the firm should take. Plante informed the partners that the images were pornography and that the firm was required to report the images to the relevant authorities. Hinckley Allen retained the images until May 2005, when Hinckley Allen partners asked Plante to arrange for the images’ complete erasure. Nonetheless, Plante continued encouraging the partners to report the images fearing that the delay constituted an additional criminal violation. Plante claims that he was “highly stressed by the conflict between the partners’ request and (his) reticence regarding their request.”
On November 9, 2005, Plante had lunch with Dr. Robert Smith at the latter’s invitation. He informed Plante that various partners at the firm had wanted the two to meet. Plante perceived their lunch to be a psychological assessment, and Dr. Smith eventually admitted that its purpose was to assess Plante’s mental health.
On January 20, 2006, attorney William Grimm, a Hinckley Allen partner, informed Plante that the firm was terminating his employment. Plante requested a sick leave, which Grimm denied. Plante claims that he was stunned by the termination. After escorting Plante back to his office that day, Grimm observed him crying when talking to a friend over the telephone.
Grimm requested that Plante not contact anyone at the firm, although Plante said that he wanted to maintain his friendship with a partner, Paul O’Donnell. Grimm said this would be acceptable.
Plante and O’Donnell had been friends for many years. They met in a recovery program, and it was at O’Donnell’s urging that Plante applied to work at Hinckley Allen. At some point after his termination from Hinckley Allen, Plante informed O’Donnell that he was “depressed and shattered” and that he planned to enter in-patient psychiatric treatment.
After Plante left Hinckley Allen, Grimm spoke with Plante and offered a separation agreement. Consequently, Grimm forwarded a proposed separation agreement and release to Plante asking him to execute and return it if the agreement was satisfactory. The letter did not impose any deadline. Approximately three days later, Plante returned the agreement, but signed on the line intended for Hinckley Allen’s authorized representative. Plante claims that he does not remember signing the agreement or whether anyone witnessed it. He further claims that he signed it only because of O’Donnell’s urging. On February 7, 2006, Plante signed the agreement on the correct line. The next day Grimm signed it on behalf of Hinckley Allen and returned it, along with a check for unused vacation time, to Plante. The agreement also provided for four months’ severance pay.
On February 9, Plante went to the emergency unit at Massachusetts General Hospital. That day, after a psychiatric evaluation, he was transferred to the acute psychiatric ward of MGH for in-patient treatment. For the following twelve days, Plante was treated in the acute psychiatric ward for depression, suicidal and homicidal ideation, impulse control disorder, personality disorder, paranoid personality traits, idiopathic hypersomnia, and medication-induced tremor. Plante was discharged on February 21, 2006 and transferred to McLean Hospital Partial Hospitalization Program on February 22. There, he was diagnosed with and treated for depression; suicidal and homicidal ide-ation, paranoid ideation, and employment stress. He was discharged from McLean, after some improvement, on March 31, 2006.
On April 17, 2006, Plante wrote Grimm attempting to rescind the agreement and requesting that Hinckley Allen not send further paychecks; Hinckley Allen declined. Over the subsequent months, Plante sent Hinckley Allen two checks attempting to repay his severance and rescind the agreement. Hinckley Allen refused to accept the checks, voided them, and returned them to Plante. Plante has since put $4,500 in an escrow account for Hinkley Allen.
From June 16, 2006 to December 22, 2006, at the request of his then-attorney, Plante underwent psy-chodiagnostic evaluation by Eric L. Brown, Psy.D. Dr. *265Brown concluded that, at the time of his termination and subsequent signing of the agreement, Plante “could not intelligently evaluate [the agreement’s] merits due to his unraveling mental status and acute psychological instability.”
Plante filed suit against Hinckley Allen on December 20, 2006. The focus of this memorandum is his count is for wrongful termination, his only remaining count.
After various motions and appeals, Hinckley Allen filed its counterclaim on June 16, 2010 in four counts: breach of the separation agreement and release (count I); intentional misrepresentation and negligent misrepresentation (counts II and III) regarding statements Plante made in his employment application; and breach of Hinckley Allen’s privilege policy (count IV). Additional facts regarding the counterclaims are stated below.
DISCUSSION
I. Motion to Strike
In support of its motion to strike, Hinckley Allen argues the evidence relied upon by Plante does not meet the mandatory admissibility requirements set forth in Mass.R.Civ.P. 56(e). Plante responds that his claims are supported by reliable and admissible evidence, and in particular, that Hinckley Allen “provided non-hearsay statements, which are relevant, consistent with his deposition testimony, and supported by the record.” The court addresses each of the contested pieces of evidence below.
A. Plante’s Medical Records
Exhibits C, D, E, and F attached to Plante’s affidavit are medical records from Massachusetts General Hospital and/or McLean Hospital. Hinckley Allen argues these medical records, and any portion of Plante’s Superior Court Rule 9A(b)(5) response that relies upon, summarizes, or quotes them, should be stricken because the medical records are not sworn or certified in accordance with either Mass.R.Civ.P. 56(e) or G.L.c. 233, §79G. Plante served Hinckley Allen with the medical records on August 17, 2010. At that time, Plante was still in the process of obtaining certifications from MGH and McLean. The medical records from MGH were certified on September 2, 2010, and from McLean, on September 3, 2010. Since Hinckley Allen did not file its motion for summary judgment until September 27, 2010, the court concludes the certification of the medical records was timely. For this reason, Hinckley Allen’s motion to strike will be DENIED as to Plante’s certified medical records.
B. The Dr. Brown Evaluation
Exhibit I attached to the Plante affidavit is a psy-chodiagnostic evaluation of Plante by Dr. Brown. Hinckley Allen argues the Dr. Brown Evaluation, and any statements that rely upon it or its contents, should be stricken because: (1) “[it] contains insufficient information for [the] [c]ourt to conclude that [Dr.] Brown qualifies as an expert in the topic areas in which he gives an opinion”; and (2) the Brown Evaluation is “unreliable.” Plante contends there is more than sufficient information from which the court can qualify Dr. Brown as an expert. Further, Plante asserts that the information contained within the Dr. Brown Evaluation is reliable since he used “standardized psychological testing instruments” that “have been vetted for reliability and validity and are routinely used by mental health providers.”
The court acts as a gatekeeper in determining whether to allow expert testimony by conducting a preliminary assessment of the methodology underlying the expert opinion, and by determining whether the opinion can properly be applied to the facts of the case at bar. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). Nevertheless, “there is a general reluctance to disqualify proffered expert witnesses at the summary judgment stage of the proceedings.” Tabares v. Leach Co., Memorandum and Order on Defendant’s Motion for Summary Judgment, No. 98-105, 2001 WL 1174156, at *1 (Mass.Super.Ct. July 20, 2001) (Houston, J.), citing Cortes Irizarry v. Corporacion Insular De Seguros, 11 F.3d 184, 187-88 (1st Cir. 1997) (“[C]ourts must be cautious—except when defects are obvious on the face of a proffer—not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility”). In fact, “[a]t summary judgment . . . courts normally assume that the trier of fact would credit the expert testimony proffered by the nonmovant.” Den Norske Bank AS v. First National Bank of Boston, 75 F.3d 49, 58 (1st Cir. 1996).
Dr. Brown has been a licensed psychologist in Massachusetts since 1983. He has performed psychological evaluations for the Probate and Family, District, and Superior Courts in both civil and criminal matters. He has also served as a Clinical Instructor in Psychology, in the Department of Psychiatry at Harvard Medical School, and published several papers on topics in psychology. Further, while evaluating Plante, Dr. Brown used standardized psychological testing instruments routinely employed by mental health providers to render a medical opinion as to Plante’s psychological state at the time he signed the agreement. The court sees no reason to disqualify him or his opinion at this stage of the litigation. For this reason, Hinckley Allen’s motion to strike Dr. Brown’s evaluation will be DENIED.
C.Opinion Evidence Regarding Plante’s Medical Condition
Hinckley Allen argues that statements in which Plante concludes he was suffering from specific mental illnesses at the time he signed the separation and release agreement should be stricken because Plante, as a layperson, is not allowed to offer “self-serving *266conclusions regarding his mental capacity.” Plante has replied that he is allowed to testify as to diagnoses supported by his medical records and the conclusions of his expert. Because the court admitted Plante’s medical records and Dr. Brown’s evaluation, both of which support Plante’s statements of diagnoses, the court’s resolution of this issue is largely irrelevant. The court will, therefore, not address the admissibility of each individual statement objected to by Hinckley Allen.
Nevertheless, Hinckley Allen is technically correct. “A layman, where the evidence is material, c[an] be asked to describe facts and circumstances of an ailment ... [b]ut, as a general rule, a lay witness [cannot] state a conclusion such as the name of a disease, particularly one for the diagnosis of which he would not possess the requisite experience.” Commonwealth v. White, 329 Mass. 51, 53-54 (1952) (citations omitted). Plante, as a layperson, can testify as to the symptoms he suffered, but cannot state a conclusion as to what mental illness(es) these symptoms signified. For this reason, Hinckley Allen’s motion to strike will be ALLOWED as to Plante’s statements that state a conclusion as to his specific diagnoses.
D.Hearsay Statements
Hinckley Allen argues that in several instances Plante “repeats or summarizes statements that other individuals made to him” and that these statements should be stricken because they constitute inadmissible hearsay. These alleged hearsay statements include statements by individuals Plante knew through a recovery program, by individuals at hospitals that Plante contacted, by individuals who visited Plante while he was hospitalized, and by Dr. Robert Smith, an independent consultant hired by Hinckley Allen, while Plante was employed with Hinckley Allen, to conduct an evaluation of Plante. Plante contends the statements at issue are not hearsay because they are not offered for the truth of the matter asserted.
A hearsay statement is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Mass. G. Evid. §801 (2008-2009). Hearsay statements are “generally inadmissible.” Id., §802. To the extent the court considers the statements at issue in deciding the motion for summary judgment, the court accepts Plante’s assertion that these statements are not being offered to prove the truth of the matter asserted. The trial judge will be left to determine, at the time of trial, whether each individual statement objected to by Hinckley Allen constitutes hearsay. For this reason, Hinckley Allen’s motion to strike will be DENIED as to the statements by: (1) individuals Plante was acquainted with from a recovery program; (2) hospital personnel Plante contacted regarding in-patient psychiatric treatment; (3) individuals who visited Plante while he was hospitalized; and (4) Dr. Smith.
E.Inconsistent Statements
Hinckley Allen claims that Plante makes several statements in his affidavit that directly contradict, or are inconsistent with, his previously sworn deposition testimony. It argues these inconsistent statements should be stricken from the record because a party is not permitted to create a disputed issue of fact by filing an affidavit contradicting that party’s own prior deposition testimony. Plante contends the statements in the affidavit do not contradict his deposition testimony; rather, according to him, the statements “add information, which was not requested or considered in his deposition.”
“A party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition.” O’Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 906 (1993). Nevertheless, a motion to strike statements contained within an affidavit, on the basis of inconsistency, will be denied, if, taken in context, the statements are generally consistent with the party’s answers to interrogatories and deposition testimony. See Spence v. Spence, Memorandum of Decision and Order on Defendant’s Motion to Strike and Motion for Summary Judgment, No. 001104, 2001 WL 1174266, at *2 (Mass.Super.Ct. July 16, 2001) (Brassard, J.).
Here, although there are some differences between the statements in the Plante affidavit and his previously sworn deposition testimony, the court concludes that, taken in context, these differences do not, for the most part, amount to contradictions. Examined as a whole, the affidavit is largely consistent with his prior deposition testimony. There is one exception to this conclusion. That exception pertains to the affidavit’s statements which indicate that the change from being fired to being permitted to resign was in quid pro quo for Plante agreeing to sign the separation and release agreement. In his deposition, Plante makes no reference to such a quid pro quo exchange. For this reason, Hinckley Allen’s motion to strike will be ALLOWED only as to the statements contained in the Plante Affidavit that relate to the quid pro quo exchange.
F.Statements that Are Unsupported by the Record
Hinckley Allen contends Plante’s Rule 9A(b)(5) response includes statements of fact not supported by the record and that, as a result, these statements should be stricken from his response. According to Hinckley Allen, the unsupported facts include statements in which Plante indicates: (1) Paul O’Donnell told William Grimm about Plante’s mental illnesses; (2) Grimm encouraged O’Donnell, because of O’Donnell’s friendship with Plante, to advise Plante to sign the separation and release agreement; (3) Plante told O’Donnell he was taking psychotropic medications; and (4) Dr. Robert Smith told the Hinckley Allen’s partners that he believed Plante was “soft.” In *267response, Plante states he “is permitted to identify inferences created by [Hinckley Allen’s] omission of material facts and to rebut those inferences.” According to Plante, it can be inferred, from facts contained within the record, that Grimm wanted Plante to sign the separation and release agreement and that he encouraged O’Donnell to persuade Plante to sign.
Superior Court Rule 9A(b)(5) states, in pertinent part, that each statement of material fact must be “supported with page or paragraph references to supporting pleadings, depositions, answers to interrogatories responses to requests for admission, affidavits, or other evidentiary documents.” Therefore, in deciding the motion for summary judgment, the court disregards any facts, whether asserted by Plante or Hinckley Allen, which are not properly supported by or reasonably inferred from appropriate references to the record. For this reason, the motion to strike will be ALLOWED as to all unsupported statements of material fact.1
G. Immaterial Facts
Finally, Hinckley Allen argues that Plante sets forth facts which are not material to the court’s resolution of the motion for summary judgment and that, as a result, this information should be stricken from the record. According to Hinckley Allen, these immaterial facts consist of “recitations of the work he was instructed to perform by [it] with respect to the alleged pornography, almost one year prior to his execution of the [separation and release agreement] and his conclusions regarding that work, as well as allegedly ‘defamatory’ statements made by [Hinckley Allen] partners months after he executed the Agreement.” Plante contends that “[a]ll of the statements about the pornography issue are relevant to Plante’s claim of wrongful termination, and statements about the stress and inner turmoil that this conflict caused Plante are material to his defense, lack of capacity, to enforcement of the [separation and release agreement].”
Although Plante’s claim for wrongful termination is not at issue in the motion for summary judgment, his statements about his inner turmoil and the stress that was caused by his disagreement with Hinckley Allen’s partners over the erasure of the pornographic images provides context for his alleged mental deterioration and are material to determining his state of mind, i.e., capacity, at the time he signed the separation and release agreement. The statements regarding defamatory remarks made by Hinckley Allen’s partners, months after Plante signed the separation and release agreement, however, are not material to determining his capacity to contract. For this reason, Hinckley Allen’s motion to strike will be DENIED as to the statements pertaining to the pornography issue and the struggle between Plante and Hinckley Allen’s partners with respect to that issue, but ALLOWED as to the statements involving defamatory remarks made by Hinckley Allen’s partners.
II. Motion for Summary Judgment
Under the established standard, summary judgment will be granted where, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established, and the moving party is entitled to judgment as a matter of law. Cabot Corp. v. AVX Corp., 448 Mass. 629, 636-37 (2007). “The moving party must establish that there are no genuine issues of material fact, and that the nonmov-ing party has no reasonable expectation of proving an essential element of its case.” Miller v. Mooney, 431 Mass. 57, 60 (2000). When the moving party does not bear the burden of proof at trial, it is entitled to summary judgment either by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Here, Hinckley Allen moved for summary judgment to establish that the separation agreement and release signed by Plante is effective and bars his wrongful termination claim. In his amended complaint, Plante offers three defenses against the agreement’s enforceability: (1) that he signed it under duress, (2) that O’Donnell exerted undue influence on Plante in encouraging his agreement, and (3) that it is void on public policy grounds. Plante also alleges that the agreement is void because he lacked the capacity to agree to it. Hinckley Allen maintains that Plante has failed to produce sufficient evidence supporting these arguments to withstand a motion for summary judgment. Each will be considered in turn.
A. Duress
A contract entered into under duress is voidable. Cabot Corp. v. AVX Corp., 448 Mass. 629, 637 (2007). “To show economic duress (1) a party must show that he has been the victim of a wrongful or unlawful act or threat, and (2) such act or threat must be one which deprives the victim of his unfettered will, resulting in the threatened party being compelled to make a disproportionate exchange of values.” Id. (citations and internal quotation marks omitted).
As Hinckley Allen correctly points out, Plante has not identified any evidence that he was threatened or that the firm committed any wrongful or unlawful act constituting duress. In general, the stresses resulting from the end of employment cannot constitute wrongful acts or threats sufficient to give rise to a duress defense. See Melanson v. Browning-Ferris Industries, Inc., 287 F.3d 272, 277 (1st Cir. 2002) (“To hold otherwise would be to make it virtually impossible for employers and employees to enter into binding settlements of employment disputes occasioned by job losses, lay-offs and the like”). Because, even when taking the evidence in the light most favorable to Plante, he cannot establish that he signed the agree*268ment under duress, Hinckley Allen is entitled to summary judgment precluding this defense.
B. Undue Influence
“One who signs a writing that is obviously a legal document is presumed to be fully aware of its terms, unless it can be proved that he was induced to sign it by fraud or undue influence.” Bruno v. Bruno, 10 Mass.App.Ct. 918, 918 (1980) (rescript), affirmed, 384 Mass. 31 (1981). “Undue influence is whatever destroys free agency and constrains the person whose act is under review to do that which is contrary to his own untrammeled desire.” Id. (citations and internal quotation marks omitted). Under Massachusetts law, there are two types of undue influence: (1) “unfair persuasion of one party under the domination of another” and (2) “unfair persuasion in the context of a confidential relationship.” Bruno, 384 Mass. at 34. “Whatever may be the particular form, however, in all cases of this character three factors are implied: (1) a person who can be influenced, (2) the fact of deception practised (sic) or improper influence exerted, [and] (3) submission to the overmastering effect of such unlawful conduct.” Neill v. Brackett, 234 Mass. 367, 370 (1920).
Applying Neill, as is discussed below, Plante produced evidence that he was suffering from a mental condition, and therefore could establish that he was susceptible to influence. Additionally, if there was “unlawful conduct,” it was effective; he signed the agreement. At issue here, is whether Hinckley Allen, through its agents, practiced deception or exerted improper influence on Plante in encouraging him to sign the agreement.
The only evidence that Plante has produced supporting the improper pressures exerted, demonstrates that Grimm and O’Donnell encouraged him to sign the agreement. Cf. Butler v. Gleason, 214 Mass. 248, 251-52 (1913) (contrasting undue influence with mere encouragement). “Undue influence is that which ‘destroys free agency and constrains the person whose act is under review to do that which is contrary to his own untrammelled desire.’ ” Collins v. Huculak, 57 Mass.App.Ct. 387, 394 n.8, quoting Neill, 234 Mass. at 369. Encouragement or urging, without anything more, is insufficient to give rise to undue influence.
Plante argues that this encouragement had great force, and fits into the second category of undue influence as described in Bruno, because of his supposed special relationship with Grimm and O’Donnell. Specifically, because Plante had relied on them for advice in the past, he argues that their relationship became fiduciary in nature transforming their advice into an undue influence.
In support, Plante cites Reed v. A.E. Little Co., 256 Mass. 442, 449 (1926), for the proposition that “[w]hen confidence is reposed and accepted, the person trusted is liable for . . . concealing facts which by reason of the relationship he should disclose.” Plante argues that Grimm and O’Donnell concealed some adverse legal effects of the agreement. This argument is unsupportable. No fiduciary relationship, attorney-client or otherwise, was created by virtue of Plante’s friendship and occasional requests for advice from Grimm and O’Donnell.
Under the doctrine of undue influence, the confidential relationships include those such as “husband-wife, parent-child, trustee-beneficiary, attorney-client, clergyman-parishioner, and others.” Howard J. Alperin, Summary of Basic Law, §5.46 (4th ed. 2006). The relationship between former employer and employee or friends is insufficient. Plante has not produced any evidence that his relationship with Grimm or O’Donnell was fiduciary. Therefore, Hinckley Allen is entitled to summary judgment precluding an undue influence defense.
C. Plante’s Incapacitation
Under two sets of circumstances, a contract may be voided because a contracting party lacked the requisite mental capacity. In the first situation, a contract is voidable unless the party possesses “an ability to comprehend the nature and quality of the transaction, together with an understanding of its significance and consequences.” Farnum v. Silvano, 27 Mass.App.Ct. 536, 538 (1989). In the second situation, “a contract may ... be voidable by reason of failure of will or judgment, where the person contracting, by reason of mental illness or defect, is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.” Krasner v. Berk, 366 Mass. 464, 468 (1974).
It is important to remember that summary judgment is not an opportunity for a judge to decide disputed questions; the judge’s task is not to assess credibility. “The duty of a trial judge ... on a motion for summary judgment is not to conduct a trial by affidavits (or other supporting materials), but to determine whether there is a substantial issue of fact.” Henshaw v. Cabeceiras, 14 Mass.App.Ct. 225, 229 (1982) (internal quotation marks omitted). In this case, genuine issues exist both as to whether Plante could comprehend the agreement when he signed it or whether he was able to act reasonably in relation to signing it and whether Hinckley Allen was aware of his inability to do so.
Regarding the first situation, Plante’s expert, Dr. Brown concluded that Plante “could not intelligently evaluate [the agreement’s] merits due to his unraveling mental status and acute psychological instability.” Further, Plante signed the agreement “without knowingly, voluntarily and intelligently understanding the implications of his actions . . . [He] was taking a number of psychotropic medications that did not effectively alleviate or diminish his debilitating psychological symptoms which ultimately led to his psychiatric hospitalization [two] days later.” If a juiy believed this expert, it could conclude that Plante did not understand the agreement when he signed it. Matters of credibility are left to the jury.
*269Furthermore, from this evidence a juiy could conclude that Plante did understand the agreement, but because of his psychological state he was unable to act reasonably in signing it. Moreover, the jury could conclude that Plante’s request for sick leave instead of termination coupled with his discussions with O’Donnell about entering a residential treatment facility was sufficient to put Hinckley Allen on notice of his condition.
Hinckley Allen presented evidence from its own expert contradicting Dr. Brown’s conclusions. Even if this court considered that expert more credible and better credentialed, Dr. Brown’s affidavit and report are sufficient to raise a genuine issue of material fact as to whether the contract is voidable due to Plante’s incapacitation. It is this evidence alone preventing this court from ordering complete summary judgment in Hinckley Allen’s favor. In light of Dr. Brown’s report, it would be inappropriate to award Hinckley Allen summary judgment precluding Plante’s argument that he was incapacitated when he signed the agreement.
D. General Effect of the Release and Public Policy Concerns
Hinckley Allen has also moved for summary judgment seeking a determination that the release bars Plante’s claims for wrongful termination as a matter of law. As a matter of public policy, Massachusetts generally favors enforcing releases. Sharon v. City of Newton, 439 Mass. 99, 105 (2002). In determining whether a particular release is valid, general contract principles apply. See Horner v. Boston Edison Co., 45 Mass.App.Ct. 139, 141-45 (considering whether a release violated public policy, was unconscionable, misrepresented, ambiguous, barred by another agreement, or signed under duress).
The agreement states, in relevant part, that Plante “waives, relinquishes, and releases [Hinckley Allen] from any and all rights or claims that he might have arising out of his employment with [it] and the termination of that employment for any and all reasons ... The [e]mployee waives any rights or claims he may have under the U.S. Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, Massachusetts G.L.c. 151B . . . or any other similar federal or state law or local ordinance.”
Although relevant only as a persuasive and non-binding authority, the First Circuit of the United States Court of Appeals has held that a party must knowingly and voluntarily agree to a release. Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9, 12 (1st Cir. 1997). This determination is made by considering the totality of the circumstances. Toward this end, the First Circuit delineated six specific factors to consider: “(1) plaintiffs education and business sophistication; (2) the respective roles of employer and employee in determining the provisions of the waiver; (3) the clarity of the agreement; (4) the time plaintiff had to study the agreement; (5) whether plaintiff had independent advice, such as that of counsel; and (6) the consideration for the waiver.”
If the agreement is not barred due to Plante’s mental incapacitation, then it is enforceable. Plante has no other remaining contract defenses to its enforcement. Further, employing the Rivera-Flores analysis, considering the totality of the circumstances, no reasonable juiy could find that that the agreement was not valid. Plante was an attorney with a decade’s experience. He signed this clear agreement after having significant time to consider it; Hinckley Allen set no deadline for his agreement. There was also valid consideration for the agreement. Assuming for purposes of the present analysis that Plante possessed the mental capacity to enter into it, the only factor weighing against the release’s enforcement is Plante’s decision to represent himself. This, as a matter of law, is insufficient to raise a genuine issue as to its enforceability. Therefore, if the finder of fact determines that Plante possessed the requisite mental capacity to enter into the agreement, no other defense to its enforcement remains and judgment should enter for Hinckley Allen as a matter of law on Plante’s wrongful termination count.
III. Motion to Dismiss Counterclaim
Plante has moved to dismiss the entire counterclaim.
When evaluating the sufficiency of a complaint or counterclaim under Mass.RCiv.P. 12(b)(6), the court accepts as true its factual allegations and draws all reasonable inferences in favor of the plaintiff, or in this case, the plaintiff-in-counterclaim. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). To survive a motion to dismiss, a complaint must contain factual allegations which, if true, raise a right to relief above the speculative level. Mere labels and conclusoiy allegations will not suffice. Rather, a complaint must allege facts “plausibly suggesting (not merely consistent with) an entitlement to relief.” Id, (internal quotation marks omitted).
Plante has moved to dismiss each of the four counts in the counterclaim.
A. Breach of the Separation Agreement
In its counterclaim, Hinckley Allen alleges that by signing the agreement, Plante promised not to sue it in exchange for severance pay and benefits following his termination. Plante then filed a charge of discrimination and complaint with the Massachusetts Commission against Discrimination as well as the instant suit. Concerning damages, Hinckley Allen alleged that “[a]s a direct result of Plante’s breaches of the [agreement, [it] suffered damages, including ... all the expenses that have been and will be incurred in defending against Plante’s claims.”
Plante argues that count should be dismissed because it seeks, inter alia, attorneys fees. In general, “[for a breach of [one’s] covenant not to sue[,] [the person suing] becomes liable for the damages suffered by the one to whom the covenant was given.” Matheson v. O’Kane, 211 Mass. 91, 94 (1912). Part of the damages that Hinckley Allen alleges it suffered due to Plante’s breach of the agreement is the attorneys fees *270it spent defending his suit. Hinckley Allen did not allege that it is entitled to recover attorneys fees for its counterclaim; rather only those damages it suffered because Plante breached the release. Its claim for breach of the agreement and release can continue.
B. Intentional and Negligent Misrepresentation
Hinckley Allen also alleged that Plante misrepresented his reasons for leaving his prior jobs on his employment application with it. Specifically, it claims he falsely stated that he left previous jobs because of a geographic move and because he was considering employment with Hinckley Allen. Hinckley Allen further alleges that unsatisfactory work performance contributed to these departures. It alleged that Plante knew, or should have known, that his representations were false, that the truthfulness of these representations was material, intended Hinckley Allen to rely on the representation, and that Hinckley Allen suffered damages from relying on these representations.
To survive a motion to dismiss a claim for intentional misrepresentation, Hinckley Allen must plead that (1) Plante made a false representation of material fact, (2) knowing the representation was false, (3) for the purpose of causing Hinckley Allen to act in reliance on the misrepresentation, and (4) Hinckley Allen justifiably relied on the misrepresentation (5) to its detriment. Graphic Arts Finishers v. Boston Redevelopment Authority, 357 Mass. 40, 44 (1970), quoting Restatement (Second) of Torts §525. The requirements for negligent misrepresentation are the same, except Plante need not know the representation was false, Hinckley Allen must only allege that he failed to exercise reasonable care or competence in obtaining or communicating the information. Nota Construction Corp. v. Keyes Associates, Inc., 45 Mass.App.Ct. 15, 19-20 (1998).
Plante proposes a number of arguments for why these claims fail. First, he claims that his statements were true or were “non statements.” The purpose of a motion under Mass.R.Civ.P. 12(b)(6) is not to determine the truthfulness of the complaint’s allegations, but rather their sufficiency; the allegations are presumed true. Thus, Plante’s argument that the allegations are false is inapposite at this time.
Next, Plante argues that Hinckley Allen did not allege reasonable and justifiable reliance. To the contrary, Hinckley Allen alleged that it relied on these statements when it hired, trained, and relied on Plante as its employee. Likewise, its allegation that this reliance caused it damage is plausible. This is sufficient to withstand a motion to dismiss under Mass.R.Civ.P. 12(b)(6). See Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 48 (1998).
C. Breach of Privilege Policy
Finally, Hinckley Allen alleges that Plante agreed to, and breached, its policy concerning disclosure of confidential information. Specifically, the policy stated “(n]o information regarding [Hinckley Allen] or its client should be disclosed to anyone not authorized to receive such information.” Hinckley Allen alleges that Plante disclosed confidential information to a newspaper, the Massachusetts Lawyers Weekly. In support of this allegation, it identified articles where Plante was quoted discussing the instant litigation and his claim that he was fired because he refused to delete child pornography from a client’s computer. While, as Plante argues, these allegations might not be sufficient to show wrongdoing under the Massachusetts Rules of Professional Conduct, they are sufficient to bring a claim for breach of contract. Hinckley Allen has alleged that Plante disclosed information regarding the firm or one of its clients. Plante’s motion must be DENIED.
ORDER
For the reasons explained above, it is hereby ORDERED that the Hinckley Allen’s motion to strike is:
1. ALLOWED as to (a) any statements in which Plante states a conclusion as to his specific diagnoses; (b) any statements which reference a quid pro quo allowing Plante to resign in exchange for signing the separation and release agreement; (c) any statements unsupported by the record; (d) and any statements regarding defamatoiy remarks made by Hinckley Allen’s partners about Plante after he signed the separation and release agreement; but
2. DENIED as to: (a) Plante’s certified medical records; (b) Dr. Brown’s Evaluation; (c) statements by individuals Plante was acquainted with through the recovery program; (d) statements by hospital personnel Plante had contacted about in-patient psychiatric treatment; (e) statements by individuals who visited Plante while he was hospitalized; (f) statements by Dr. Robert Smith; and (g) statements pertaining to the pornography issue and the struggle between Plante and Hinckley Allen regarding this issue.
Hinckley Allen’s motion for summary judgment is:
1. ALLOWED so as to preclude Plante’s argument that he signed the agreement because of duress or undue influence;
2. ALLOWED so as to establish the release’s enforceability if the finder of fact determines that Plante possessed the mental capacity to enter into the agreement; and
3. otherwise DENIED.
Plante’s motion to dismiss the counterclaim is DENIED.
The court notes, however, that in deciding a motion for summary judgment, it views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President and Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). Thus, although the court does not accept unsupported evidence, Plante is permitted to identify and argue in favor of certain inferences that can be drawn from the undisputed facts. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1875885/ | 288 Wis. 2d 459 (2005)
706 N.W.2d 702
2005 WI App 254
FREER v. M&I MARSHALL & ILSLEY CORP.
No. 2003AP003175.
Court of Appeals of Wisconsin.
October 11, 2005.
Unpublished Opinion. Affirmed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875913/ | 288 Wis. 2d 460 (2005)
706 N.W.2d 702
2005 WI App 254
STATE v. LoPICCOLO.[]
No. 2004AP002752 CR.
Court of Appeals of Wisconsin.
October 20, 2005.
Unpublished Opinion. Affirmed.
NOTES
[] Petition to review filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2490721/ | 403 F. Supp. 2d 1019 (2005)
Cynthia CORRIE, et al., Plaintiffs,
v.
CATERPILLAR, INC., a foreign corporation, Defendant.
No. C05-5192FDB.
United States District Court, W.D. Washington.
November 22, 2005.
*1020 *1021 *1022 Davida Finger, Gwynne L. Skinner, Public Interest Law Group, Seattle, WA, Jennifer M. Green, New York, NY, for Plaintiffs.
David G. Meyer, Joanne E. Caruso, Richard J. Burdge, Jr., Howrey, Los Angeles, CA, James L. Magee, Graham & Dunn, Seattle, WA, Robert G. Abrams, Howrey, Washington, DC, for Defendant.
ORDER GRANTING DEFENDANT CATERPILLAR'S MOTION TO DISMISS
BURGESS, District Judge.
INTRODUCTION
Plaintiffs are the family of Rachel Corrie, who died in the Gaza Strip in 2003, and *1023 a number of Palestinians who live in the Gaza Strip and the West Bank. Since the 1967 "Six Day War," Israel has controlled the areas known as the Gaza Strip, the West Bank, the Sinai Peninsula, and the Golan Heights. Plaintiffs allege that they have suffered death, injury, and the loss of home and business as a result of the demolitions by Caterpillar bulldozers used by the Israeli Defense Forces (IDF). Plaintiffs have alleged seven claims against Caterpillar: (1) war crimes (breach of the Geneva Convention); (2) extrajudicial killing (defined in Torture Victim Protection Act); (3) aiding and abetting, conspiring in, or ratifying cruel, inhuman, or degrading treatment or punishment in violation of the law of nations; (4) violations of the Racketeer Influenced and Corrupt Organizations Act (RICO); (5) wrongful death; (6) public nuisance, and (7) negligence.
Plaintiffs seek compensatory and punitive damages, reasonable attorneys fees and costs and injunctive and declaratory relief including an order directing Caterpillar to cease providing equipment and services to the Israeli Defense Forces until the conduct described in the First Amended Complaint ceases.
Caterpillar moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and pursuant to the political question and act of state doctrines. Caterpillar argues that there is no legal basis for the allegation that Caterpillar can be liable in damages for selling a legal, non-defective product to the government of Israel; the federal statutory claims (RICO, Torture Victim Protection Act) fail for numerous reasons and for failure to exhaust remedies available in Israel; and no violation of international law is stated. Finally, Caterpillar argues that the injunctive relief that Plaintiffs seek is a political goal that is inappropriate to pursue in this lawsuit.
DISCUSSION
First, Second, and Third Claims for Relief
In the First Claim, Plaintiffs allege that the home demolitions and attack on Plaintiffs and decedents constitute "war crimes" in violation of the Fourth Geneva Convention. Plaintiffs allege that Caterpillar knew or should have known that the bulldozers it was supplying to the IDF would be used to commit violations of the Geneva Convention. Plaintiffs contend that Caterpillar's acts and omissions violate the law of nations or a treaty of the United States under 28 U.S.C. §§ 1350 and 1331.
In the Second Claim, Plaintiffs allege that the killings of the decedents listed in the First Amended Complaint were deliberate and not authorized by previous judgment from a regularly constituted court and thus constitute "extrajudicial killings" as defined by the Torture Victim Protection Act, Pub.L. No. 102-256, 106 Stat. 73 (1992)(codified at 28 U.S.C. § 1350 (note)); and that the killings also violate the law of nations and, thus, the United States, pursuant to 28 U.S.C. §§ 1331 and 1350. Plaintiffs allege that Caterpillar knew or should have known that the bulldozers it was supplying would be used to commit human rights abuses and that the extrajudicial killings were foreseeable. Plaintiffs also allege that Caterpillar gave substantial assistance to the IDF in several ways, thus aiding and abetting, conspiring or ratifying the extrajudicial killings.
In the Third Claim, Plaintiffs allege that the abuses described in the First Amended Complaint constitute cruel, inhuman, or degrading treatment or punishment (CIDTP). Plaintiffs allege that Caterpillar knew or should have known that the bulldozers it was supplying to Israel were being used to commit CIDTP, thus Caterpillar aided and abetted, conspired in, or *1024 ratified this CIDTP. Defendants contend that Caterpillar's acts and omissions violate the law of nations, and thus the United States pursuant to 28 U.S.C. §§ 1331 and 1350.
Caterpillar argues that it is not liable for the Israeli government's alleged conduct, because Caterpillar did not control the Israeli Defense Forces; there is no federal tort for "doing business" with a country that allegedly violates international law; there is no universally recognized norm of international law that is sufficiently definite to satisfy the requirements of Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (2004); Caterpillar was not a "state actor"; and no provision of federal law allows the Corrie plaintiffs to sue for violations of international law.
Caterpillar also argues that Plaintiffs' allegations of "extrajudicial killing" under the Torture Victim Protection Act (TVPA) fail to state a claim because Plaintiffs have not exhausted their remedies in Israel; Caterpillar did not act under "color of law" of a "foreign nation"; Caterpillar did not participate in any alleged killings nor aid and abet the Israeli soldiers involved in the incident simply by selling bulldozers; and the TVPA does not apply to corporations.
Analysis and Conclusion re First, Second, and Third Claims
Title 28 U.S.C. § 1350, entitled "Alien's action for tort," provides as follows:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
The Torture Victim Protection Act is set forth in the Historical and Statutory Notes section to Section 1350. The relevant section provides:
(a) Liability. An individual who, under actual or apparent authority, or color of law, of any foreign nation
(1) subjects an individual to extrajudicial killing shall, in a civil action be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
Plaintiffs fail to state a claim in their First, Second, and Third claims for relief because Plaintiffs do not allege that Caterpillar participated in or directed any of the IDF's challenged conduct. Selling products to a foreign government does not make the seller a participant in that government's alleged international law violations. In In re South African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y.2004)(hereafter "Apartheid Litigation"), the plaintiffs alleged that various United States corporations violated international law by doing business with the apartheid regime in South Africa. The court rejected the claim concluding that "[t]he apartheid regime, and not defendants, engaged in the behavior that is the subject of [the alleged violations]." Id. at 552 n. 16.
In Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (2004), the Court considered the types of claims a plaintiff may assert under the Alien Tort Statute, 28 U.S.C. § 1350, which provides federal jurisdiction "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The Court directed federal courts to exercise "great caution" in adapting the law of nations to private rights, Sosa, 542 U.S. at 728, 124 S. Ct. at 2764, and articulated several reasons for such caution, including possible "collateral consequences" to the foreign relations of the United States flowing from private allegations of a foreign government's violations *1025 of the law of nations and also the lack of a "congressional mandate to seek out and define new and debatable violations of the law of nations. . . ." Id. at 728, 124 S. Ct. at 2763. The Court concluded: "Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." that is, violation of safe conducts, infringement of the rights of ambassadors, and piracy. Id. at 725, 124 S. Ct. at 2761. Apartheid Litigation is on point: the plaintiffs alleged that defendants "supplied resources, such as technology, money and oil" that the South African government used to further its policies of oppression and persecution. For example, the allegations were that demonstrators were shot from automobiles equipped with Daimler-Benz engines, individuals were tracked using IBM computers, and the military kept machines in order using oil supplied by Shell. Plaintiffs claims were dismissed, and in doing so, the Court considered the "collateral consequences" of recognizing "a new international law violation." The Court recognized that the consequences from a lack of caution "could have significant, if not disastrous effects on international commerce." Id. 346 F.Supp.2d at 554. Moreover, there is the danger recognized by Sosa of "impinging on the discretion of the Legislative and Executive branches in managing foreign affairs." Id. 542 U.S. at 728, 124 S. Ct. at 2763.
Plaintiffs allege that the alleged killings violate the law of nations, and thus, the law of the United States and international multilateral treaties and international instruments, as well. The Torture Victims Protection Act (TVPA) provides the exclusive remedy for plaintiffs who allege extrajudicial killing under color of foreign law. Enahoro v. Abubakar, 408 F.3d 877 (7th Cir.2005). Plaintiffs contend that this case was wrongly decided, but they rely on cases decided prior to Sosa. Article 53 of the Fourth Geneva Convention, cited by Plaintiffs, states that destruction of personal property is prohibited "except where such destruction is rendered absolutely necessary by military operations." This does not set a clear, specific norm. The 1999 Yugoslavian Final Report, recommending against investigation of NATO's bombing target selection during the Kosovo war, noted that resolution of questions about the proportionate use of force may have to be done on a case-by-case basis and the answers "may differ depending on the background and values of the decision maker." This subjective view or norm requiring a case-by-case review is not sufficient under Sosa as it does not "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." Sosa at 725, 124 S. Ct. at 2761. Moreover, the Geneva Convention is not "self-executing," that is, it does not expressly or impliedly create a private claim for relief. See, e.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 439 n. 16 (D.N.J. 1999)("Courts have unanimously held that neither the Hague nor Geneva Conventions are self-executing.")
The TVPA requires a plaintiff to seek compensation abroad before suing in the United States, and while Plaintiffs argue that their specific claims must be recognized in the foreign court, the statute merely provides that there be "adequate and available remedies" abroad. 28 U.S.C. § 1350. A foreign remedy is adequate even if not identical to remedies available in the United States. Courts usually find a foreign remedy adequate unless it "is no *1026 remedy at all." See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981)(foreign remedy was adequate despite the fact that a strict liability theory was unavailable). Israeli tort law provides adequate remedies for plaintiffs injured as a result of tortious conduct. Supp. More Decl., ¶¶ 6-9. In fact, it appears that Rachel Corrie's family filed a claim in Israel in about March 2005. (See Dkt. # 25 Request for Judicial Notice.) It has been recognized in other cases that Israel's courts are generally considered to provide an adequate alternative forum for civil matters. See, e.g., Diatronics, Inc. v. Elbit Computers, 649 F. Supp. 122, 127-29 (S.D.N.Y.1986); Postol v. El-Al Israel Airlines, Ltd., 690 F. Supp. 1361 (S.D.N.Y.1988).
Additionally, the Ninth Circuit has held that "[o]nly individuals who have acted under official authority or under color of such authority may violate international law." In re Estate of Marcos Human Rights Litig., 978 F.2d 493, 501-02 (9th Cir.1992)(citing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-95 (D.C.Cir. 1984). See also Apartheid Litigation, 346 F.Supp.2d at 548 (the color of law provision requires that a private individual "`act together with state officials or with significant state aid.'" (quoting Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir. 2000)). Courts have also looked to civil rights cases to analogize from the "color of law" requirement under 42 U.S.C.1983, and under that statute, a private individual must control the state official's commission of the challenged acts, thus establishing proximate cause. See Arnold v. IBM 637 F.2d 1350, 1355-56 (9th Cir.1981). There are no facts alleged to support a claim that Caterpillar controlled or participated in the IDF soldiers' alleged conduct.
Finally, claims under the Alien Tort Claims Act (28 U.S.C. § 1350 "Alien's action for tort") may not be brought by the family of Rachel Corrie because they are not aliens, and therefore, cannot assert federal claims derived from international law. Moreover, while no circuit court has yet ruled on the matter, a court in California has concluded that the statutory language of the TVPA precludes a corporation from being a victim or a perpetrator. See, Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D.Cal.2005). This court so concludes as well, since the statute speaks in terms of individuals, and the rationale of Mujica, that "individual" must mean the same thing with respect to both victim and perpetrators, is reasonable.
Plaintiffs argue that this court can, under Sosa legitimately adjudicate plaintiffs' human rights violations claims under the ATS as long as they seek to recover for violations of international norms that are "specific, universal, and obligatory." The question, however, is whether the facts alleged by Plaintiff in this case against Caterpillar meet the Sosa standard. See Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D.Cal.2004)("[t]he question of whether a claim under the ATS lies thus turns on whether the specific facts (not the general characterization of the claim) violates international norms that are `specific, universal and obligatory.'" See also Mujica v. Occidental Petroleum Corp., 2005 WL 1962635 (C.D.Cal.2005)(dismissing cruel, inhuman and degrading treatment claim based on the facts alleged.). The conduct alleged against Caterpillar in this case selling a legal, non-defective product to Israel does not meet the standard. The Court in Apartheid Litigation, supra, concluded that there was no actionable international norm that prohibited companies from doing business with the South African apartheid regime despite the regime's use of the defendants' products for *1027 human rights violations. It should also be noted that the Covenant on Civil and Political Rights as a source of international law supporting plaintiff's claims in Sosa was rejected as "it was not self-executing and so did not itself create obligations enforceable in the federal courts." Sosa, 542 U.S. at 735, 124 S. Ct. at 2767.
Plaintiffs' claims for aiding and abetting, or accessory liability, fail for several reasons. While international law may recognize accomplice liability in some instances, the conduct alleged must first rise to the level of a claim under Sosa. Plaintiffs' claim of aiding and abetting fails because where a seller merely acts as a seller, he cannot be an aider and abettor; "a supplier joins a venture only if his fortunes rise or fall with the venture's, so that he gains by its success." United States v. Blankenship, 970 F.2d 283, 285-87 (7th Cir.1992). One who merely sells goods to a buyer is not an aider and abettor of crimes that the buyer might commit, even if the seller knows that the buyer is likely to use the goods unlawfully, because the seller does not share the specific intent to further the buyer's venture. See, id., e.g. Similarly, a seller of goods to someone who uses it to commit a crime is not a conspirator. See id. at 285. Also, an aiding and abetting claim is inconsistent with the TVPA's explicit requirement that a defendant must have acted under "color of law." Apartheid Litigation, 346 F.Supp.2d at 555. A theory of accessory liability does not obtain in this case because there is no allegation of the right or ability to control the Israeli soldiers' conduct. A "ratification" theory does not apply either because there are no facts to support a claim that Caterpillar acted as the IDF's agent.
Plaintiffs file a surreply contending that Caterpillar raised certain arguments for the first time in its reply. First, Plaintiffs cite Caterpillar's argument that claim of cruel, inhuman, and degrading treatment was too vague to support a claim under Sosa and ask that that section of the reply brief be stricken or that Plaintiffs be allowed leave to respond to the argument. Plaintiffs' assertion is wholly without merit. The Sosa argument was raised in Caterpillar's opening brief where various other arguments applying to the First, Second, and Third claims for relief were argued. Plaintiffs' assertion that the notice and causation issues that Caterpillar argued was a new argument to them is incomprehensible because they could have made their arguments for causation and notice in their 90-page brief rebutting the arguments Caterpillar made in its opening brief as to the First, Second, and Third claims, particularly since causation is a crucial element in alleging a tort.
Fourth Claim for Relief
Plaintiffs' Fourth Claim for relief alleges violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) in that from not later than 1999, Caterpillar and its agents and/or co-conspirators, including the IDF, formed a RICO "enterprise" engaged in foreign and interstate commerce and engaged in a pattern of racketeering activity including murder, robbery, extortion, physical violence resulting in serious bodily injury to a United States national, and violation of the Hobbs Act. All of this derived from Caterpillar's manufacture, design, financing sales, servicing, and training of the IDF with respect to its bulldozers.
Analysis and Conclusion re RICO Claim
For the following reasons, Plaintiffs fail to state a RICO claim.
The RICO statute 18 U.S.C. § 1962(c) provides as follows:
*1028 It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
"In order to state a claim under section 1962(c), a plaintiff must allege the following: 1) conduct 2) of an enterprise 3) through a pattern 4) of racketeering activity." Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1310 (9th Cir.1992), citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985). Section 1961(4) defines an "enterprise" to include "any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity." This element requires allegations sufficient to show an organization, "formal or informal," that is "`an entity separate and apart from the pattern of [racketeering] activity in which it engages.'" Chang v. Chen, 80 F.3d 1293, 1298 (9th Cir.1996)(quoting United States v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)).
"Racketeering activity" is defined as violations of specified laws, including
(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year.
18 U.S.C. § 1961(1)(emphasis added).
Caterpillar argues that Plaintiffs have failed to allege a RICO enterprise or conduct sufficient to state a RICO claim. Plaintiffs argue that they have alleged facts from which Caterpillar's agreement to participate in the affairs of the enterprise can be inferred; that is, Caterpillar "knew that its bulldozers were being used to commit predicate acts but nevertheless continued to develop, sell, maintain, and train members of the IDF to use the equipment necessary to the commission of the predicate acts".
Plaintiffs' argument fails. It is too great a leap to conclude that the commercial relationship between Caterpillar and the government of Israel can arise to an "enterprise" that may be inferred from the IDF's use of the bulldozers.
Caterpillar argues that Plaintiffs have not alleged a "pattern of racketeering activity" because the property destruction and killings alleged in the Complaint do not constitute crimes under Washington law because they did not occur in or affect Washington.
Plaintiffs respond that the state offenses are included by generic designation and serve to identify generally the kind of activity made illegal by the federal statute, citing United States v. Bagaric, 706 F.2d 42, 62 (2d Cir.1983), and that the reference was not intended to incorporate the elements of the state crimes. United States v. Miller, 116 F.3d 641, 645 (2d Cir.1997). Plaintiffs also argue, without giving any specifics, that even if the reference to state crimes incorporated the location of the offense, the fact that preparatory acts occurred within the jurisdiction of Washington would be sufficient to meet the jurisdictional requirements.
That portion of the statute quoted above defining "racketeering activity" provides that the crimes must be "chargeable under state law." Case law from the Second Circuit later than Miller, supra, concluded from the language of the RICO *1029 statute enumerating certain federal statutes and state offenses "chargeable under State law" and punishable by imprisonment for more than one year "seem[ed] to require of a predicate act based on state law that the act include the essential elements of the state crime." United States v. Carrillo, 229 F.3d 177, 185-86 (2d Cir.2000). The requirement of a local connection and incorporation of the crime's elements is reasonable, otherwise, the criminal activity alleged could become too attenuated from the statutory definitions. Plaintiff's suggestion that Caterpillar's "preparatory" activity in Washington would be sufficient to satisfy the statute fails, because the "conduct in the United States cannot be merely preparatory . . . and must be material, that is, directly cause the losses." Grunenthal GmbH v. Hotz, 712 F.2d 421, 424 (9th Cir.1983). Caterpillar's design, manufacture, export and the like is not the conduct that allegedly caused the harm.
Caterpillar argues that Plaintiffs have failed to allege a Hobbs Act extortion claim because that Act "require[s] not only the deprivation but the acquisition of property." Scheidler v. Nat'l Org. For Women, 537 U.S. 393, 404, 123 S. Ct. 1057, 154 L. Ed. 2d 991 (2003)(citing United States v. Enmons, 410 U.S. 396, 400, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973)). In response to this argument, Plaintiffs concede that the law is correct but argue that the First Amended Complaint alleges that the IDF took Plaintiffs' property to create "buffer zones." This argument stretches the requirement of acquisition of property to the breaking point. No Hobbs Act violation is stated.
Caterpillar argues that Plaintiffs have not alleged a direct causal relationship between Caterpillar's conduct and their alleged injuries. To maintain a cause of action under RICO, "a plaintiff must show not only that the defendant's violation was a `but for' cause of his injury, but that it was the proximate cause as well." Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir.1994). Proximate causation under RICO "requires that there must be a direct relationship between the injury asserted and the injurious conduct alleged." Id. Caterpillar argues that its manufacture and sale of tractors was not the "but-for" cause of Plaintiff's injuries, as IDF did not need to use Caterpillar products to demolish houses; neither is Caterpillar's manufacture and sale of tractors the proximate cause of Plaintiff's injuries; rather the independent, intervening conduct of IDF soldiers was the cause.
Plaintiffs respond to this argument asserting that "the ongoing provision of an instrumentality to an entity known to be using that instrumentality to destroy homes, lives, and businesses resulted directly in the harms suffered by Plaintiffs." Plaintiffs also attempt to distinguish Pillsbury as a case involving harm to a third person, whereas that was not the case as to Caterpillar's conduct, which directly harmed Plaintiffs.
Plaintiffs argument fails because Caterpillar's sale of its products to the government of Israel was not the cause of the alleged injuries, that is, it was not "a substantial factor in the sequence of responsible causation." See Oki Semiconductor Co. v. Wells Fargo Bank Nat'l Assoc., 298 F.3d 768, 773 (9th Cir.2002). There is no direct causal relationship between Plaintiffs' injuries and Caterpillar's sales of bulldozers to Israel. Caterpillar merely sold bulldozers. The IDF used them. Caterpillar's sale of products to the Israeli government is too attenuated from the events about which Plaintiffs complain to be either the "but-for" or "proximate" cause of Plaintiffs' injuries.
*1030 Caterpillar argues that Plaintiffs' RICO conspiracy claim also fails for the lack of any substantive RICO violation and the lack of a factual basis for a conspiracy. Caterpillar argues that because Plaintiffs have failed to plead an actionable substantive RICO claim, they may not maintain a RICO conspiracy claim. Moreover, Plaintiff's conspiracy allegations are insufficient in any event because the allegation merely states a conclusion. "To state a claim for conspiracy to violate RICO, `the complaint must allege some factual basis for the finding of a conscious agreement among the defendants.'" Sebastian Int'l, Inc. v. Russolillo, 186 F. Supp. 2d 1055, 1069 (C.D.Cal.2000)(quoting Hecht v. Commerce Clearing House, 897 F.2d 21, 26 n. 4 (2d Cir.1990)).
Plaintiffs respond that they have sufficiently alleged substantive RICO violations and that there are sufficient facts from which one can infer that Defendant knew that its bulldozers were being used to commit predicate acts and that Defendant continued to develop, sell, and maintain the equipment and to train IDF members in use of the equipment.
Plaintiffs' argument is frivolous and fails for the reason asserted by Caterpillar.
Fifth, Sixth and Seventh Claims for Relief
Plaintiffs' Fifth Claim asserts wrongful death brought by four plaintiffs on behalf of their decedents; Plaintiffs assert that Defendant owed a duty to the decedents because they were foreseeable victims of IDF's illegal use of the bulldozers based on previous notice Defendant received.
Plaintiff's Sixth Claim asserts public nuisance, contending that the Palestinian public and non-Palestinian civilians in the area have a right to health, the public safety, public peace, public comfort, and/or public convenience, which rights have been interfered with by Defendant by supplying or repairing, among other things, bulldozers used to destroy homes.
Plaintiff's Seventh Claim for negligence asserts that Defendant owed a duty to Plaintiffs and decedents because they were foreseeable victims of IDF's illegal use of Defendant's bulldozers, and Defendant breached that duty by supplying, selling, and/or entrusting, among other things, bulldozers used to destroy homes.
Analysis and Conclusion re Fifth, Sixth, and Seventh Claims
Caterpillar argues that under Washington's choice of law principles, Israeli law applies to Plaintiffs' claims, because Israel is the state where the injury occurred. Israeli law generally applies common law doctrines derived from English jurisprudence, and these doctrines require a plaintiff to show causation. These principles are substantially the same as those applied in the United States of America, including under Washington and Illinois law (Caterpillar's principal place of business). Under principles of causation and duty, Plaintiffs do not state a claim by alleging the lawful sale of a non-defective product that a customer intentionally used to injure a third party. See Young v. Bryco Arms, 213 Ill. 2d 433, 290 Ill. Dec. 504, 821 N.E.2d 1078 (2004); Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 414, 290 Ill. Dec. 525, 821 N.E.2d 1099 (2004); Knott v. Liberty Jewelry & Loan, Inc., 50 Wash.App. 267, 273-74, 748 P.2d 661 (1988). Both these cases struck down such claims against manufacturers and distributors on the ground that they owed no duty of care to third parties injured by non-defective products. For example, the court in Young reasoned that "[i]f the defendant's conduct merely furnishes a condition by which injury is made possible, and a third person, acting independently, subsequently causes the injury, the defendant's *1031 creation of the condition is not a proximate cause of the injury." 213 Ill. 2d at 449, 290 Ill. Dec. 504, 821 N.E.2d 1078. Caterpillar argues that "Permitting claims against the manufacturers of legal, nondefective products results in those manufacturers being the insurer of all criminal acts committed using such products, merely on the basis that such businesses lawfully placed such products into the stream of commerce". See Cherry v. General Petroleum Corp. Of California, 172 Wash. 688, 695, 21 P.2d 520 (1933)(noting that the concept of legal cause prevents one from becoming the insurer of remote events.).
Plaintiffs argue that the law of the forum state, Washington, applies in this case because none of the Plaintiffs or Defendant reside in Israel and the injuries did not occur there, they occurred in Gaza and the West Bank. Plaintiffs contend there are conflicts in what the law of Israel provides and what Washington provides; in such a case, Washington's conflict of laws principles require that the law of the state where the injury occurred applies, unless another state has a greater interest. Plaintiffs assert that the place where the conduct causing injury occurred the distribution/sale of the Caterpillar bulldozer likely occurred in Illinois. Thus, Plaintiffs argue that either Washington or Illinois law applies, and the law of Israel is least likely to apply.
Plaintiffs' argument fails under whatever law is applied, as Plaintiffs do not state a claim by alleging the lawful sale of a nondefective product to a customer who intentionally uses it to injure a third party. Plaintiff have the burden of providing reasonable notice of their intention to rely on foreign law under Fed.R.Civ.P. 44.1, but Plaintiffs do not assert that foreign law applies, arguing, instead, that Illinois law applies as that is where the injury-causing conduct occurred. Plaintiffs argue that although it may be true that under a general negligence theory, manufacturers of legal products do not owe a duty of care to persons who might be injured by a third party's illegal use of those products absent a special relationship, this rule does not apply to negligent entrustment.
The negligent entrustment theory is unavailing. Negligent entrustment requires the following: (1) a negligent entrustment, and (2) incompetence of the entrustee that is a proximate cause of the injury. See State Farm Fire & Casualty Co. v. McGlawn, 84 Ill.App.3d 107, 110, 39 Ill. Dec. 531, 404 N.E.2d 1122 (1980); Bernethy v. Walt Failor's Inc., 97 Wash.2d 929, 933, 653 P.2d 280 (1982); Evans v. Shannon, 201 Ill. 2d 424, 434, 267 Ill. Dec. 533, 776 N.E.2d 1184 (2002). There is no showing that the Israeli government fits into the category of an incompetent.
Plaintiffs argue that manufacturers of legal products owe a duty of care to persons who are injured by a third party's foreseeable illegal use of those products, except where there are unexpected intervening actions of unknown criminals for which defendants have no knowledge, in which case, there is no foreseeability. Here, argue Plaintiffs, the IDF's use of the bulldozers was foreseeable.
Plaintiffs' argument fails because the IDF's conduct, or that of individuals in the IDF, is too remote from the sale of the bulldozers to the Israeli government to hold Caterpillar liable for any alleged misuse of the bulldozers by a third party. Plaintiffs' wrongful death and public nuisance claims fail as well under the foregoing analysis. A manufacturer or distributor of non-defective, legal products cannot be liable in tort for alleged criminal acts committed with those products by third parties.
*1032 Foreign Policy Issues
This case must also be dismissed because it interferes with the foreign policy of the United States of America. "Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L. Ed. 60 (1803). Six factors for determining whether a court should defer a case to the political branches of government were articulated in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962):(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 217. Dismissal is appropriate if any one of these six factors is "inextricable" from the case. Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir.2005).
In this case, neither of the other branches of government has urged or enjoined sale of weapons to Israel nor restrained trade with Israel in any other manner. For this court to preclude sales of Caterpillar products to Israel would be to make a foreign policy decision and to impinge directly upon the prerogatives of the executive branch of government. For example, in Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 383-86, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000), the Court held that a Massachusetts law restricting U.S. companies doing business in Burma was preempted by Congressional legislation.
The Act of State Doctrine, which precludes United States courts from judging the validity of a foreign sovereign's official acts, also bars adjudication of Plaintiffs' claims. See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 405, 110 S. Ct. 701, 107 L. Ed. 2d 816 (1990). Under the Act of State Doctrine, a claim is barred if it (1) involves an official act of a foreign sovereign; (2) is performed within its own territory, and (3) it seeks relief that would require the court to sit in judgment on the sovereign's official acts. Id. at 405, 110 S. Ct. 701. Plaintiffs claim that Israel's official policy violates international law and also that orders were given to a bulldozer operator to continue with the demolitions even when protestors were present. (First Amended Complaint ¶ 59.) Military orders are official acts of the sovereign. Roe v. Unocal, 70 F. Supp. 2d 1073, 1079 (C.D.Cal.1999).
Plaintiffs respond that none of the Baker factors apply and that merely because this cause of action arises in the context of the Israeli-Palestinian conflict, that is no basis for this court to find the case nonjusticiable. Also, the Act of State Doctrine does not apply, because the acts did not occur within Israel's own territory, but in the occupied territory disputed by the Palestinians.
Plaintiffs arguments are not persuasive. For this Court to order Caterpillar to cease supplying products to Israel would certainly invade the foreign policy prerogatives of the political branches of government. As Caterpillar states and this court agrees: "This lawsuit challenges the official acts of an existing government in a region where diplomacy is delicate and U.S. interests are great." (Caterpillar Reply *1033 p. 35.) This cause of action must be dismissed.
NOW, THEREFORE, IT IS ORDERED:
1. Defendant Caterpillar's Motion To Dismiss [Dkt. #22] is GRANTED;
2. Defendant Caterpillar's Request for Judicial Notice [Dkt. #25] is GRANTED;
3. Plaintiffs' Requests in its Surreply [Dkt. #45] are DENIED;
4. Defendant Caterpillar's Motion that the Court Solicit the View of the United States Department of State [Dkt. #47] is DENIED in view of the Court's granting Caterpillar's Motion to Dismiss.
5. This cause of action is DISMISSED, and the Clerk shall enter JUDGMENT accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000500/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY CLIVE REID,
Defendant - Appellant.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CR-96-108, CA-99-458-7)
Submitted: December 16, 1999 Decided: December 29, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Dismissed by unpublished per curiam opinion.
Anthony Clive Reid, Appellant Pro Se. Sharon Burnham, OFFICE OF
THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Clive Reid seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
1999). We have reviewed the record and the district court’s opin-
ion and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal on the reasoning of
the district court. See United States v. Reid, Nos. CR-96-108; CA-
99-458-7 (W.D. Va. June 24, 1999). We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875874/ | 260 S.W.3d 396 (2008)
William W. MANSFIELD, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 67774.
Missouri Court of Appeals, Western District.
January 29, 2008.
Susan L. Hogan, Kansas City, MO, for Appellant.
Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
ORDER
PER CURIAM.
William Mansfield appeals the dismissal of his Rule 24.035 motion, without an evidentiary hearing, in which he challenged the procedure in the revocation his probation. Claims brought in Rule 24.035 motions are limited to attacks on the conviction, sentence, or, in limited cases, the jurisdiction of the sentencing court. Mansfield's claim is more properly brought in a writ for habeas corpus.
As Mansfield failed to state a cognizable claim attacking his conviction or sentence, the motions court's dismissal of his Rule 24.035 motion was proper. A lengthy opinion would serve no jurisprudential purpose. The parties have been given memorandums of the reasoning of the court. Judgment affirmed. Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827825/ | Order Michigan Supreme Court
Lansing, Michigan
July 20, 2011 Robert P. Young, Jr.,
Chief Justice
141062 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 141062
COA: 296591
Saginaw CC: 08-031656-FH
JOHN SATTERWHITE FRANKLIN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 24, 2010 order
of the Court of Appeals is considered. We DIRECT the Saginaw County Prosecuting
Attorney to answer the application for leave to appeal within 28 days after the date of this
order, addressing the issues whether the trial court failed to comply with MCL 767.61a
when accepting defendant’s pleas to the charge of being a sexually delinquent person,
and whether defendant’s convictions are barred by double jeopardy.
The application for leave to appeal remains pending.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 20, 2011 _________________________________________
p0713 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1546473/ | 172 F.2d 434 (1949)
USATORRE et al.
v.
THE VICTORIA et al. RODRIGUEZ et al.
v.
THE VICTORIA et al.
No. 120, Docket 21171.
United States Court of Appeals Second Circuit.
January 27, 1949.
*435 *436 *437 Burlingham Veeder Clark & Hupper, of New York City (Eugene Underwood and Hervey C. Allen, Jr., both of New York City, of counsel), for appellant.
William L. Standard, of New York City (Jacquin Frank and Louis R. Harolds, both of New York City, of counsel), for appellees.
Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges.
FRANK, Circuit Judge.
I
The Salvage Claims
1. If, as the trial judge held, the jus gentium applies, then, regarding the decisions of our courts as reflecting it, libellants would seem clearly to be salvors. According to those decisions, abandonment by the master, in the face of what he deems a disaster, without expectation of returning, severs the crew's employment contract even if, subsequently, the vessel turns out to be safe and the crew then returns.[1] That rule would apply here. There was ample evidence to support the finding that the men in lifeboat No. 1 volunteered. The judge did not explicitly so find as to lifeboat No. 2; but that finding is implied in his Conclusions of Law, and the evidence is enough to support such a finding.
*438 2. But while the district court had discretion to take jurisdiction,[2] and that discretion has been said to be justified "because salvage is a question arising under the jus gentium and does not ordinarily depend on the municipal laws of particular countries,"[3] we think that whether, on the facts as found, the crew were "released from any obligation to exert themselves for the benefit of the vessel,"[4] must be determined, as a matter of the "internal economy" of the ship, by the Argentine law, the "law of the flag."[5]
3. For us, Argentine law is a fact. With respect to that fact, defendant introduced the testimony of an expert witness. He is an American and a member of the New York Bar, and of the Bars of Cuba and Puerto Rico. He studied civil law for forty years. He has a degree of Doctor of Civil Laws from the University of Havana. He was a judge in Puerto Rico for seven years, and a member for two years of a commission that drafted new legislation for Cuba. He has studied Argentine law, and is the author of a digest of that law appearing in the Martindale-Hubbell Law Directory. He has not practiced admiralty or maritime law anywhere, but has "occasionally given advice on maritime law" in Latin-American countries. He is authorized to practice in no Latin-American countries except Cuba, but can give advice in other such countries.
He testified that Article 929 of the Argentine Code of Commerce reads: "A captain is forbidden to abandon his ship, whatever may be the danger, except in case of shipwreck." He also said that the pertinent portions of the Code relating to termination of the employment contract between seamen and their ship are contained in Articles which provide that the contract is terminated in the case of "any disaster happening to the vessel which absolutely renders it incapable of navigation." According to the except witness, this means that the captain's judgment that the vessel is in such condition is not conclusive, but that the sole test is the actual objective fact as to the ship's condition. ("The final decision is the fact of whether the vessel remained fitted for navigation.") It was the witness' opinion that, on the facts here, under Argentine law the libellants' contract was not ended when the captain ordered them to abandon the ship, although the men were obliged to obey that order.
According to this witness, Latin-American courts pay little attention to court decisions as percedents. He had found "practically nothing" by way of decisions of the Supreme Court of the Argentine bearing on the Code provisions in question, in part because of the difficulty of finding such decisions since they are "badly indexed" or "digested." He relied, as, he said, Argentine lawyers do, on the "commentators," especially including the French commentators because, he said, the Argentine Code of Commerce is based on the French law. Where there was a difference of opinion between commentators, he had made a choice. In his testimony, he cited no commentators, but merely gave his interpretation of uncited commentators' interpretations of the Code.
The judge is not bound to accept the testimony of a witness concerning the *439 meaning of the laws of a foreign country,[6] especially when, as here, the witness had never practiced in that country.[7] Moreover, as defendant says in its brief, this witness "relied strictly upon the Code provisions." As already noted, he gave little or no attention to Argentine decisional material. We have no knowledge of Argentine "law," nor more than a vague acquaintance with the judicial methods there prevailing. But casual readings of readily available material clearly indicate that, in all civil-law countries, despite conventional protestations to the contrary, much law is judge-made, and the courts are by no means unaffected by judicial precedents or "case law" (which the civilians call "jurisprudence," as distinguished from the interpretation of text-writers or commentators, called "doctrine").[8] Recaséns Siches, a widely respected professor of law in Spain for many years, now in Mexico, recently wrote: "Now jurisprudence, that is, the decisions of the courts, has had the part of greatest protagonist in the formation of the law; and, although in much less volume, it continues today of great importance."[9] "Both the slavish obedience of [civilian] judges to codes, and their freedom from precedent are largely a myth," writes Friedman. "In truth, while there is greater freedom towards the provisions of codes, there is also much greater respect for judicial authority than imagined by most Anglo-American lawyers."[10] A recent treatise by Cossio, a distinguished Argentine lawyer, shows that this attitude prevails in the Argentine.[11]
The expert witness' adherence to the literal words of the code may have caused the trial judge to question his conclusions. For, we are told, the civilians, influenced by an interpretative theory which derives from Aristotle[12] (and which has affected *440 Anglo-American practice as well[13]) are accustomed to interpret their statutory enactments "equitably," i. e., to fill in gaps, arising necessarily from the generalized terms of many statutes, by asking how the legislature would have dealt with the "unprovided *441 case."[14] In civil-law countries, "there are countless examples of judicial interpretation of statutes * * * which gave the statutory interpretation a meaning either not foreseen by or openly antogonistic to the opinions prevailing at the time of the Code, but in accordance with modern social developments or trends of public opinion. This attitude finds expression in Art. I of the Swiss Civil Code [of 1907][15] which directs the judge to decide as if he were a legislator, when he finds himself faced with a definite gap in the statute."[16]
*442 In a colloquy which occurred after the judge had filed his opinion, he expressed himself as in disagreement with the witness' interpretation of the *443 Code.[17] But, doubtless because the judge thought the jus gentium governed, he did not make a finding as to Argentine law. We must therefore reverse and remand for such a finding. Perhaps it can be made without further testimony on the subject. It may be that, if he considers it desirable, some arrangement will be agreed upon which will enable the judge to summon an expert of his own choosing.
3. A majority of the court think that, assuming that the men were salvors, the amount of the award is excessive and should be no more than $200 apiece, because the men were in no danger, as a navy vessel accompanied the ship to New York, and because their activities were not markedly different from those they would have performed under their employment contract. The writer of this opinion thinks that this court should not alter the amount allotted by the trial judge whom we know to be cautious and conservative.
II
The Wage Claims
1. Defendant, in its brief in this court, asserts that the wages were forfeited not because the men had brought the salvage *444 suit but solely because their departure from the vessel in July was "an unjustifiable desertion." We take it, then, that defendant does not contend that, even under Argentine law, the men lost the right to their wages through the institution of the salvage action.[18] Accordingly, we disregard, with reference to the alleged forfeiture of wages, the following provision of Article 1016 of the Argentine Code: "No member of the crew may bring proceedings against the ship or captain until the voyage is over, under pain of loss of pay due."[19] We have grave doubts whether, on grounds of public policy, such a provision should be recognized by our courts; but, in the light of defendant's concession, we need not consider that question. We understand that defendant concedes that, if the men did not unjustifiably desert, Article 1016 of the Argentine Code did not prevent recovery in a suit for wages in an American court.[20]
The judge found, and there is enough evidence to support his finding, that the captain told the men that they would lose their wages because they had brought the salvage suit. If our law controls, that statement was a repudiation of the contract, which justified the men in leaving the vessel, without any resultant forfeiture of wages. However, the defendant's expert witness seems to have testified that such is not the Argentine law, and we think that, on that issue, Argentine law governs.[21] As already noted, the trial judge apparently concluded that this witness' views of Argentine law were incorrect. Perhaps that suffices to settle the matter. However, as we are remanding in any event, we think it would be well if the judge were to make a finding as to the applicable Argentine law on that point. The judge, in that connection, should also consider the effect of the threat, found by him to have been made, that, for bringing the salvage suit, the men's "seamen's papers would be taken from them and that some of them would be put in jail."[22]
2. Because of the lack of clarity of the applicable legal rules, we think that the captain had "sufficient cause" to, refuse payment of wages, so that it was error to award any penalty under 46 U.S.C.A. § 596. Glandzis v. Callinicos, 2 Cir., 140 F.2d 111, 114-115.
Reversed and remanded.
NOTES
[1] The C. P. Minch, 2 Cir., 73 F. 859, 862-863, 865; The Georgiana, 1 Cir., 245 F. 321, 324, 325; The Umattilla, D.C., 29 F. 252; The Macona, D.C., 269 F. 468.
[2] Charter Shipping Co. v. Bowring, Jones & Tidy, 281 U.S. 515, 50 S. Ct. 400, 74 L. Ed. 1008; Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 52 S. Ct. 413, 76 L. Ed. 837; The Falco, 2 Cir., 20 F.2d 362; Usatorre v. Compania Argentina Navegacion Mihanovich, D.C., 49 F. Supp. 275, 276-277.
[3] The Bee, 3 Fed.Cas., page 41, at page 43, No. 1,219.
[4] See The Georgiana, 1 Cir., 245 F. 321, 325.
[5] The Superior, D.C., 270 F. 283; cf. The City of Norwich, 2 Cir., 279 F. 687, 691, L.R.A.1918C, 795; O'Neill v. Cunard White Star, 2 Cir., 160 F.2d 446; The Scotland, 105 U.S. 24, 26 L. Ed. 1001; The Belgenland, 114 U.S. 355, 5 S. Ct. 860, 29 L. Ed. 152; United States v. Rodgers, 150 U.S. 249, 14 S. Ct. 109, 37 L. Ed. 1071; Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S. Ct. 504, 67 L. Ed. 894, 27 A.L.R. 1306; Thompson Towing & Wrecking Association v. McGregor, 6 Cir., 207 F. 209, 217-219; Rainey v. New York & P. S. S. Co., 9 Cir., 216 F. 449, 454, L.R.A.1916A, 1149; The Hanna Nielsen, 2 Cir., 273 F. 171; Grand Trunk R. Co. v. Wright, 6 Cir., 21 F.2d 814; Cain v. Alpha S. S. Corporation, 2 Cir., 35 F.2d 717.
[6] Viesca Y Compania v. Pan American P. & T. Co., 2 Cir., 83 F.2d 240, 242; Moscow Fire Ins. Co. v. Bank of New York & Trust Co., 280 N.Y. 286, 306, 20 N.E.2d 758, cf. Eastern Building & Loan Association v. Williamson, 189 U.S. 122, 126, 127, 23 S. Ct. 527, 47 L. Ed. 735.
[7] H. T. Cottam & Co. v. Commission Reguladora, 149 La. 1026, 90 So. 392, 394; cf. Guaranty Trust Co. of New York v. Hannay, 2 Cir., 210 F. 810, 813; Manchester Liners v. Virginia-Carolina Chemical Co., D.C., 194 F. 463, 472.
[8] See Lobingier, Precedent in Past and Present Legal Systems, 44 Mich.L.Rev. (1946) 955; 40 C.J. (1926). Modern Civil Law, 1242, 1250, notes, Lobingier; 58 C.J.S., page 840.
Although "stare decisis went to seed in the late Roman law" (Lobingier, 44 Mich.L.Rev. at 957), it had much influence earlier. See Radin, Anglo-American Legal History (1936) 352, citing the rescript of Severus (Dig. 1, 3, 38): "The authority of a continuous number of similar decisions should be regarded as equivalent to that of a statute"); Radin, The Trail of The Calf, 32 Cornell L. Q. (1946) 137, 139 note 2.
As to modern civil-law countries, see, e.g., Dicey, Law and Opinion in England (2d ed. 1914) 487; Soule, Stare Decisis in Continental Europe, 19 Green Bag (1907) 460; Henry, Jurisprudence Constante and Stare Decisis Contrasted, 15 Amer. Bar Ass'n. J. (1929) 11; Allen, Law in The Making (2d ed. 1930) 125; Coxe, Decisions in France, 16 Green Bag (1904) 449; Goodhart, Precedent in English & Continental Law, 50 L.Q.Rev. (1934); Radin, Case Law and Stare Decisis, 33 Col.L.Rev. (1933) 199; Radin, The Trail of The Calf, 32 Cornell L.Q. (1946) 137, 144, note 15; Ireland, Precedent's Place in Latin Law, 40 W.Va.L.Q. (1934) 115; Borchard and Sturnberg, Guide to Law and Legal Literature of France (1931) 18-19; Pollock, Introduction, Progress of Continental Law in the 19th Century (1918).
[9] Recaséns, Human Life, Society and Law, in the volume Latin-American Legal Philosophy (1948) 7, 170.
[10] Friedman, Legal Theory (1944) 295.
[11] See Cossio, Phenomenology of The Judgment, in the volume Latin-American Legal Philosophy (1948) 345; a different translation appears in the volume Interpretations of Modern Legal Philosophies (1947) 85.
[12] See Aristotle, Nicomachean Ethics, Bk. V, Ch. 10, 1137b: The "equitable is indeed `just' but not equivalent to the `legal.' It is rather an improvement on the merely legally-just. The reason is that every statute speaks in general terms, but there are some cases upon which it is impossible to make a universal statement which will be correct. In those cases, then, in which it is necessary to speak generally but not possible to do so correctly, the statute embraces only the majority of cases, although well-knowing the possibility of error. Nor is it the less correct on this account; for the fault is not in the statute nor in the legislature, but in the nature of the subject matter. For it is plainly impossible to pronounce with complete accuracy upon such a subject matter as human action. Whenever, then, the statute reads in general terms, but a case arises which is not covered by the general statement, then it is right, where the legislator's rule is inadequate because of its over-simplicity, to correct the omission which the legislator, if he were present, would admit, and, had he known it, would have put into his statute. That which is equitable, then, is just, and better than one kind of justice, not better than absolute justice but better than the error that arises from legal generality. This is in fact the nature of the equitable; it is a correction of the statute where it is defective owing to its generality."
See also Aristotle's Rhetoric, Bk. I, Ch. 13: "We saw that there are two kinds of right and wrong conduct towards others, one provided for by written ordinances, the other by unwritten. We have now discussed the kind about which the laws have something to say. The other kind has itself two varieties. * * * The second kind makes up for the defects of a community's written code of law. This is what we call equity; people regard it as just; it is, in fact, the sort of justice which goes beyond the written law. Its existence is and partly is not intended by legislators; not intended, where they have noticed no defect in the law; intended, when they find themselves unable to define things exactly, and are obliged to legislate as if that holds good always which in fact only holds good usually; or where it is not easy owing to the endless possible cases presented * * * a lifetime would be too short to make out a complete list of them. If, then, a precise statement is possible and yet legislation is necessary, the law must be expressed in wide terms. * * * Equity bids us to think less about the laws than about the man who framed them, and less about what he said than about what he meant * * *"
Aristotle's thesis apparently reflected the practice of the Greeks of his time which, in turn, was much affected by the jury system. "In the Greek administration of law," wrote Wigmore, "the emphasis was less on the strict law than on the general justice of the case." Wigmore, A Panorama of The World's Legal Systems (1928) I, 324. See Vinogradoff, Historical Jurisprudence (1922) II, 11-12, 49, 65-69, 144-145; Frank, If Men Were Angels (1942) 201-202, 370 note 40.
Cf. Guiseppi v. Walling, 2 Cir., 144 F.2d 608, 615-623, 155 A.L.R. 761; Commissioner v. Beck's Estate, 2 Cir., 129 F.2d 243, 245, Note 4; McAllister v. Commissioner, 2 Cir., 157 F.2d 235, 237, 240, Note 6; Frank, If Men Were Angels (1945) 197-202, 350-353; Frank, Words and Music, 47 Col.L.R. (1947) 1260.
[13] The Aristotelian interpretative device was borrowed by the Roman lawyers and used by them until the later Empire. See Kiss, Equity and law, in the volume Science of Legal Method (1917) 146.
Note the maxim, Summum jus, summum injuria. As to the relation of that maxim to "aequitas" in Roman law, see Berolzheimer, The World's Legal Philosophies (1912) 83-86.
For an account of how, after it appeared in Thomas Aquinas' Summa Theologica, the Aristotelian thesis was revived in the 16th century on the European Continent and in England, see Thorne, A Discourse Upon The Statutes (1942).
Plowden explicity enunciated the doctrine of the "equity of a statute" in his comments on Eyston v. Studd, [1574] 2 Plowden, 450, 465-467, 75 Eng. Rep. 688, 695-699: "From this judgment and the cause of it, the reader may observe that it is not the words of the law, but the eternal sense of it that makes the law, and our law (like all others) consists of two parts, viz. of body and soul, the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law, quia ratio legis est anima legis. And the law may be resembled to a nut, which has a shell and a kernel within, the letter of the law represents the shell, and the sense of it the kernel, and as you will be no better for the nut if you make use only of the shell, so you will receive no benefit by the law, if you rely only upon the letter, and as the fruit and profit of the nut lies in the kernel, and not in the shell, so the fruit and profit of the law consists in the sense more than in the letter. And it often happens that when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive. And equity, which in Latin is called equitas, enlarges or diminishes the letter according to its discretion * * * The sages of our law, who have had the exposition of our Acts of Parliament, have in these and many other cases, almost infinite restrained the generality of the letter of the law by equity, which seems to be a necessary ingredient in the exposition of all laws. For (as Aristotle says), cum do toto genere lex dicit, atque aliquid iis in rebus contra generalem legis comprehensionem existit, tum percommode accidit ut qua parte scriptor missum sit corrigatur, quod etiam legislator, si adesset, admoneret, etiamsi jam legem tulisset. And experience shows us that no law-makers can foresee all things which may happen, and therefore it is fit that if there is any defect in the law, it should be reformed, by equity, which is no part of the law, but a moral virtue which corrects the law * * * And in order to form a right judgment when the letter of a statute is restrained, and when enlarged, by equity, it is a good way, when you peruse a statute, to suppose that the law-maker is present, and that you have asked him the question you want to know touching the equity, then you must give yourself such an answer as you imagine he would have done, if he had been present * * * And therefore when such cases happen which are within the letter, or out of the letter, of a statute, and yet don't directly fall within the plain and natural purport of the letter, but are in some measure to be conceived in a different idea from that which the text seems to express, it is a good way to put questions and give answers to yourself thereupon, in the same manner as if you were actually conversing with the maker of such laws, and by this means you will easily find out what is the equity in those cases. And if the law-maker would have followed the equity, notwithstanding the words of the law (as Aristotle says he would, for he says, quod etiam legislator, si adesset, admoneret, etiamsi jam legal talisset) you may safely do the like, for while you do no more than the law-maker would have done, you do not act contrary to the law, but in conformity with it."
As to Plowden and "equitable interpretation" in America, see Slifka v. Johnson, 2 Cir., 161 F.2d 467, 470; cf. Radin, The Trail of the Calf, 32 Cornell L. Q. (1946) 137, 139-140. See also footnote 16, infra.
Mr. Justice Story, Equity Jurisprudence (1835) §§ 3 to 8, discussing "equitable interpretation," cites and discusses Aristotle and his many derivatives in Rome, on the Continent, and in England. See also Shelby v. Guy, 11 Wheat. 361, 366-368, 369, 6 L. Ed. 495.
[14] See, e.g., Kiss, loc. cit.; Wurzel, Methods of Juridical Thinking, in the volume, The Science of Legal Thinking (1917) 286, 322-323; Lambert, Codified Law and Case Law, in the same volume, 251; Alvarez, Methods For Codes, in the same volume, 429; cf. Frank, Law and The Modern Mind (1930) 186-192, 310; Demogue, Analysis of Fundamental Notions, in Modern French Legal Philosophy (1916).
The recognition of the Aristotelian theory in Latin-America appears in a recent essay by Garcia Màynez, an influential scholar; see The Philosophico-Juridical Problem, in the volume, Latin-American Legal Philosophy (1948) 461, 502-503, where Aristotle is quoted and discussed.
[15] It reads: "The statute governs all matter within the letter or spirit of any of its mandates. In default of an applicable statute, the judge is to pronounce judgment according to the customary law, and in default of custom according to the rules which he would establish if he were to assume the part of a legislator. He is to draw his inspiration, however, from the solutions of the learned [la doctrine] and the jurisprudence of the courts [la jurisprudence]."
[16] Friedman, Legal Theory (1944) 294.
Friedman notes that the Swiss-Code provision almost duplicates Plowden's comments. Naturally enough, since both stemmed from Aristotle.
Cardozo wrote, "I think the tone and temper in which the modern judge should set about his task are well expressed in the first article of the Swiss Code of 1907 * * *" Cardozo, The Nature of The Judicial Process (1921) 140.
Mr. Justice Jackson recently, in State Tax Commission of Utah v. Aldrich, 316 U.S. 174, at page 202, note 23, 62 S. Ct. 1008, at page 1022, 86 L. Ed. 1358, 139 A.L.R. 1436, referred to that article of that code as a "candid recognition of what necessarily is the practice" of courts.
Our interpretative methods seem to be somewhat less latitudinarian than those of the civilians. See, e.g., Cox, Learned Hand and The Interpretation of Statutes, 60 Harv.L.Rev. (1947) 370; Frankfurter, Some Reflections on The Reading of Statutes, 47 Col.L.Rev. (1947) 527; Frank, Words and Music, 47 Col.L.Rev. (1947) 1260. And see Hall, Principles of Criminal Law (1947) 36 et seq. to the effect that in criminal cases broad interpretation (by reference to what the legislature would have done, etc.) has not been and should not be used; see United States v. Wiltberger, 5 Wheat. 76, 96, 5 L. Ed. 37; McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed. 816.
However, that probably thanks to the influence of Plowden, in adopting and adapting the Aristotelian theory our present mode of statutory interpretation in non-criminal cases is not poles apart from the civilians' appears from the comments in Cardozo, The Nature of The Judicial Process (1921) 120, 140, and also from the following remarks of Judge L. Hand: "It seems a simple matter, especially when the law is written down in a book with care and detail, just to read it and say what is its meaning. Perhaps this could be made as easy as it seems, if the law used language coined expressly for its purposes, like science, or mathematics, or music. But that would be practically undesirable, because while the government's commands are to be always obeyed, still they should include only what is generally accepted as just, or convenient, or usual, and should be stated in terms of common speech, so that they may be understood by those who must obey, and may not appear foreign to their notions of good or sensible conduct. Besides, even if the law had a language of its own, it could not provide for all situations which might come up. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe the proper rule for each * * * The judge must therefore find out the will of the government from words which are chosen from common speech and which had better not attempt to provide for every possible contingency. How does he in fact proceed? Although at times he says and believes that he is not doing so, what he really does is to take the language before him, whether it be from a statute or from the decision of a former judge, and try to find out what the government or his predecessor, would have done, if the case before him had been before them. He calls this finding the intent of the statute or of the doctrine. This is often not really true. The men who used the language did not have any intent at all about the case that has come up; it had not occurred to their minds. Strictly speaking, it is impossible to know what they would have said about it, if it had. All they have done is to write down certain words which they mean to apply generally to situations of that kind. To apply these literally may either pervert what was plainly their general meaning, or leave undisposed of what there is every reason to suppose they meant to provide for. Thus, it is not enough for the judge just to use a dictionary. If he should do no more, he might come out with a result which every sensible man would recognize to be quite the opposite of what was really intended; which would contradict or leave unfulfilled its plain purpose. Thus, on the one hand, he cannot go beyond what has been said, because he is bound to enforce existing commands and only those; on the other, he cannot suppose that what has been said should clearly frustrate or leave unexecuted its own purpose. This is his frequent position in cases that are not very plain; that is to say, in the greater number that arise. As I have said, there are two extreme schools, neither one of which is really willing to apply its theory consistently, usually applying it when its interests lie along the path it advocates. One school says that the judge must follow the letter of the law absolutely. I call this the dictionary school. No matter what the result is, he must read the words in their usual meaning and stop where they stop. No judges have ever carried on literally in that spirit, and they would not be long tolerated if they did * * * The other school would give them almost complete latitude. They argue that a judge should not regard the law; that this has never really been done in the past, and that to attempt ever to do it is an illusion. He must conform his decision to what honest men would think right, and it is better for him to look into his own heart to find out what that is. As I have already said, in a small way some such process is inevitable when one is interpreting any written words. When a judge tries to find out what the government would have intended which it did not say, he puts into its mouth things which he thinks it ought to have said, and that is very close to substituting what he himself thinks right. Let him beware, however, or he will usurp the office of government, even though in a small way he must do so in order to execute its real commands at all * * * But the judge must always remember that he should go no further than he is sure the government would have gone, had it been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting interests in the society for which he speaks would have come to a just result, even though he is sure that he knows what the just result should be. He is not to substitute even his juster will for theirs; otherwise it would not be the common-will which prevails, and to that extent the people would not govern. So you will see that a judge is in a contradictory position; he is pulled by two opposite forces. On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves." L. Hand, How Far Is a Judge Free in Rendering a Decision? in Law Series I, Lect. No. 14, National Advisory Council on Radio In Education (Un. of Chi. Press, 1933).
It has been remarked that codification because it compels interpretation to fill in gaps leads to more judicial creativeness than "unwritten law." See Calhoun, Greek Legal Science (1944) Ch. 4; Seagle, The Quest For Law (1941) 116, 298; Hornblower, A Century of `Judge-Made' Law, 7 Col.L.Rev. (1907) 453, 464; Frank, Book Review, 57 Harv.L. Rev. (1944) 1120, 1122.
[17] The colloquy was as follows:
"The Court: How about the question of damages? Let us go to that. The question of what law applies is a real point of law there.
"Mr. Underwood: Yes. I am sorry your Honor did not discuss it in your opinion. If your Honor please, here is an Argentine ship on the high seas beyond the realm of any sovereign an Argentine contract between an Argentine ship owner and an Argentine crew. It is American law that what it takes to break the contract must be determined by the Argentine law. That is the American law.
"The Court: You are right, yes.
"Mr. Underwood: Your Honor did not discuss or decide that question .
"The Court: All questions of discipline must be tried by the jurisdiction whose flag is being flown but in my case there is a further element, that the ship was here and could have been libeled here, couldn't it?
"Mr. Underwood: It was.
"The Court: If it was libeled here didn't this Court have jurisdiction to go into the question of whether there was a
"Mr. Underwood. There is no doubt but what the Court had jurisdiction because the vessel was actually seized, but having jurisdiction, the Court, in my view, should decide the issues between the parties over whom it has jurisdiction according to the law of the land.
"The Court: I see what you mean.
"Mr. Underwood: Which is that when you have an occurrence between foreigners on the high seas the law of the flag of the ship controls the effect of the acts.
"The Court: Even under the law as I construe it I can distinguish every one of the statutes and regulations showing they do not hold in favor of the ship every one of them. I will admit that this expert, if he is a good expert, why I would go contrary to what he says but I distinguish each and every rule and regulation."
[18] The brief says: "But we do not contend that accrued wages were forfeited because the crew had brought suit for salvage, but rather because their departure from the vessel on July 6 was an unjustifiable desertion, the penalty for which is forfeiture of wages."
[19] We note in passing that, if the earlier departure from the ship at sea terminated the contract then existing, the voyage to which that contract related was over when the men brought the salvage suit.
[20] In any event, the district court had discretion to take jurisdiction of the suit. See footnote 2, supra.
[21] Article 1016 of the Argentine Code provides: "Nevertheless, if the ship is in a good port, maltreated individuals or those to whom the captain has failed to supply the provisions to which they are entitled may apply for rescission of the contract."
The expert testified that such an application must be made to the Consul, but that the threats here made did not constitute "maltreatment." If that is a correct interpretation, then, since an application to the Consul would have been futile, the failure of the men to make it is of no moment.
Moreover, there is some evidence that, in June, 1947, the Consul had told some of the men that he would not entertain any petition because they had brought the salvage suit, and that, on that account, those men "and the rest of the crew would be revoked." (sic).
[22] There is evidence that at least some of the men were excluded from the ship in July. If so, then, in any event, they did not desert. But the judge made no finding on that score. A finding of that fact, if favorable to any of the plaintiffs, would dispose of the desertion issue as to him.
Should the judge decide that the libellants were not salvors but continued to be members of the crew until they reached New York, he will, of course, need to recompute the amount of the wages due them for that part of the voyage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609810/ | 123 Wash. 2d 64 (1993)
866 P.2d 15
JAMES H. STANTON ET AL, Respondents,
v.
BAYLINER MARINE CORPORATION, Petitioner. ALBANY INSURANCE COMPANY, Respondent,
v.
BAYLINER MARINE CORPORATION, Petitioner.
No. 60031-7.
The Supreme Court of Washington, En Banc.
December 30, 1993.
*66 Mikkelborg, Broz, Wells & Fryer, by Dexter A. Washburn and Newell D. Smith, for petitioner.
Schwabe, Williamson, Ferguson & Burdell, by Dennis A. Ostgard and Jerome C. Scowcroft, for respondents.
GUY, J.
In consolidated actions against Bayliner Marine Corporation and Olympic Sales, Inc. (hereafter collectively Bayliner), plaintiffs seek recovery of the cost of replacing or repairing damaged yachts. Bayliner seeks review of a Court of Appeals decision reversing the trial court's order of partial summary judgment in its favor. We reverse the Court of Appeals.
BACKGROUND
In December 1985, plaintiffs James Stanton, Winnifred Stanton, and Stanton Investment Company purchased the M/Y Moonraker, a 45-foot model 4550 Bayliner motor yacht, from Olympic Sales, Inc., doing business as Olympic Boat Centers, in Seattle, Washington, for $225,342. In April 1988, plaintiff Wiley Dean Henry purchased the M/Y Contessa, also a Bayliner model 4550 motor yacht, from Olympic Sales, Inc., for $251,548.70. Albany Insurance Company insured both yachts.
On separate occasions, while the Stantons and Henry were pleasure boating, their yachts struck underwater objects. The Moonraker struck a submerged rock in Puget Sound in 1987, while the Contessa struck a reef off of Vancouver Island, Canada, in 1988. Both yachts sustained severe hull damage which caused mass flooding. The Stantons' boat rapidly sank, but the Stantons were rescued by *67 nearby boaters. Henry's boat remained lodged on the rocks; Henry and his passengers were rescued by a Canadian maritime helicopter. No one suffered personal injury in either incident. Each boat was determined to be a constructive total loss. Salvage values for each boat ranged between $42,000 and $46,000.
The Stantons and Albany, under its subrogated interest from Henry, brought suits against Bayliner and Olympic Sales for products liability, negligence, breach of warranty, and violation of the Consumer Protection Act. The plaintiffs primarily seek to recover their "economic losses", or the cost of replacing and repairing the yachts. In addition, the Stantons claim loss of various items of personal property having an alleged combined value of approximately $25,000. The plaintiffs submitted the declaration of Mr. Ted Drake, a naval architect/marine engineer, who stated that the keel design of the Bayliner model 4550 was defective and created an unreasonable risk of mass flooding should penetration occur due to accidental grounding or stranding. Mr. Drake also stated that certain design techniques could have prevented the mass flooding.
Citing East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986), Bayliner moved for summary judgment, claiming that admiralty law applies and precludes recovery for economic losses under either tort theory of products liability or negligence. Bayliner also argued that plaintiffs' warranty claim, governed by state law, did not allow recovery against Bayliner under a breach of warranty theory since the plaintiffs and Bayliner did not have privity of contract. Plaintiffs cross-moved for partial summary judgment, claiming that the Washington products liability act governed the facts of this case thereby permitting the recovery sought. The trial court granted Bayliner's motion, dismissing substantially all of plaintiffs' claims,[1] and entered an order of finality. The *68 plaintiffs appealed, claiming that the Washington products liability act (WPLA) applies and provides a remedy for the economic losses sustained in this case. See Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) (economic loss within context of WPLA determined by "risk of harm" analysis).
The Court of Appeals reversed and remanded, holding that while admiralty jurisdiction applied, substantive admiralty law permits the application of state tort law to determine whether economic loss is compensable. Stanton v. Bayliner Marine Corp., 68 Wash. App. 125, 130-33, 844 P.2d 1019 (1992). In view of Graybar's explicit and unequivocal rejection of East River's approach to "economic loss", the Court of Appeals concluded that Washington has a significant interest in a divergent interpretation of economic loss, and that the plaintiffs' claims may properly be heard under the WPLA. Bayliner, 68 Wn. App. at 133.
We granted Bayliner's petition for review. We reverse the Court of Appeals.
ISSUE
The sole issue before us is whether the plaintiffs may recover damages for economic loss under Washington law in a tort claim arising under admiralty jurisdiction but filed in state court. Because the plaintiffs' claims arise under admiralty jurisdiction, we hold that substantive admiralty law precludes application of a state law remedy for the economic loss of the yachts; plaintiffs' claim for damages may properly be pursued in warranty against the seller under the Uniform Commercial Code (RCW 62A).
ANALYSIS
I
BACKGROUND
These consolidated cases were brought by the plaintiffs to recover for the loss of two Bayliner boats and personal property on board at the time of the boats' grounding. The plaintiffs primarily seek to recover damages for "economic loss" the cost of replacing and repairing the yachts. To *69 better understand the economic loss rule in the context of this case, we first must discuss relevant portions of the WPLA, the Supreme Court's decision in East River, and this court's decision in Graybar.
Under the WPLA,[2] a purchaser of a defective product may assert a product liability claim against a "product seller", which includes a manufacturer, wholesaler, distributor, or retailer of the product. RCW 7.72.010(1). A "product liability claim" includes, in relevant part, any claim or action brought for harm caused by the manufacture, construction, fabrication, production, design or marketing of the relevant product. RCW 7.72.010(4). The WPLA broadly defines "harm" as "any damages recognized by the courts of this state: PROVIDED, That the term `harm' does not include direct or consequential economic loss under Title 62A RCW [UCC]." RCW 7.72.010(6). The WPLA therefore provides no recovery for direct or consequential economic loss. See Washington Water Power Co. v. Graybar Elec. Co., supra. See also Comment, Determining Recoverable Economic Harm Under the Washington Product Liability Act, 27 Gonz. L. Rev. 335, 337 (1991-1992). The WPLA does not prevent the recovery of direct or consequential economic loss under RCW Title 62A (UCC). RCW 7.72.020(2).
In East River S.S. Corp., the Supreme Court held that no products liability claim lies in admiralty when the only injury claimed is economic loss. East River, 476 U.S. at 871, 876. In East River, a group of ship charterers sued a shipbuilder who had contracted to design, manufacture, and install turbines which would be the main propulsion unit for four 225,000-ton, $125 million, supertankers. East River, 476 U.S. at 859. When the ships were put into service, the turbines on all four malfunctioned because of design and manufacturing defects. However, only the products themselves were damaged. The charterer sued in federal court, alleging tortious conduct based on the products liability doctrine, and asked for damages for the cost of repairing the ships and for income lost while they were out of service.
*70 East River, 476 U.S. at 861. The harm was pure economic loss, without physical injury to either a person or other property.
In East River, the Supreme Court incorporated products liability, including strict liability, into the general maritime law. East River, 476 U.S. at 865. The Court also resolved the issue of whether a plaintiff in a maritime products liability action could recover damages for economic loss. Exercising its discretion in admiralty, a unanimous Court held that a "manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself." East River, 476 U.S. at 871. Therefore, when a product damages only itself, and not persons or other property, the proper remedy lies in contract, not in tort, no matter how the product injury occurred. East River, 476 U.S. at 871-72.
In Washington Water Power Co. v. Graybar Elec. Co., supra, a nonadmiralty case, this court found East River's approach to "economic loss" unsuited to what the Legislature intended under the WPLA. Graybar, 112 Wn.2d at 864. In Graybar, Washington Water Power (WWP) sued the manufacturer and distributor of electric deadend insulators in federal district court to recover damages incident to the failure of thousands of insulators. WWP's complaint alleged, among other things, violation of the WPLA, as well as negligence and strict liability under the common law. Graybar, 112 Wn.2d at 849. While WWP claimed that the defective insulators had caused some bodily injury and property damage, the bulk of WWP's claim involved the cost of replacing the insulators. Graybar, 112 Wn.2d at 849.
The defendants moved for partial summary judgment on WWP's tort claims, arguing that the costs of WWP's insulator replacement program constituted economic loss recoverable only under the UCC since the WPLA excludes economic loss from its remedial scheme and preempts common law tort remedies. Graybar, 112 Wn.2d at 850. The Federal District Court certified to this court the issues of the nature of WWP's loss, whether the WPLA applied, and if so, *71 whether economic loss was recoverable under the act. Graybar, 112 Wn.2d at 847-48. The Graybar court responded that the WPLA creates a single cause of action for product-related harms that preempts common law remedies and that the WPLA does not afford a remedy for economic loss. Graybar, 112 Wn.2d at 860. The court, however, declined to follow East River's economic loss rule. Graybar, 112 Wn.2d at 864-66. The court held instead that whether economic losses are recoverable within the context of the WPLA is determined by applying a "risk of harm" analysis, rather than by assessing damages actually sustained. Graybar, 112 Wn.2d at 865-67. By adopting the "risk of harm" approach, Washington joined those intermediate jurisdictions that apply "risk of harm" analysis to determine whether a defect "is so hazardous that a plaintiff's tort claim is justified even when the product has yet to injure persons or property." See Comment, 27 Gonz. L. Rev. at 339.
The court reasoned that "risk of harm" analysis is used to determine whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty law is most applicable to the claim in question. Graybar, 112 Wn.2d at 860-61. The court stated:
In contrast to the East River approach, risk of harm analysis appropriately accommodates the safety and risk-spreading policies that underlie the law of product liability, and "provides a workable and accurate distinction between accidents that should be actionable in tort and losses that should remain in the domain of warranty law."
Graybar, 112 Wn.2d at 865 (quoting Comment, Asbestos in Schools and the Economic Loss Doctrine, 54 U. Chi. L. Rev. 277, 300 (1987)). The court noted that under this approach,[3]*72 "the fact that a hazardous product defect has injured only the product itself, and not persons or other property, is properly regarded as a `pure fortuity'". Graybar, 112 Wn.2d at 865-66. In Touchet Vly. Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wash. 2d 334, 351, 831 P.2d 724 (1992), we reaffirmed Graybar's holding that use of risk of harm analysis is appropriate for determining the nature of damages.
Court of Appeals Decision
Concluding that the case was governed by admiralty jurisdiction, the Court of Appeals turned to the choice of law question to determine which definition of "economic loss" to apply. Stanton v. Bayliner Marine Corp., 68 Wash. App. 125, 129-30, 844 P.2d 1019 (1992). The court stated that "even where admiralty jurisdiction lies, state law may nevertheless displace federal law when a matter of local concern is at stake and the application of state law would not unduly disturb the uniformity of the maritime legal system." Bayliner, 68 Wn. App. at 131 (citing Kossick v. United Fruit Co., 365 U.S. 731, 738, 6 L. Ed. 2d 56, 81 S. Ct. 886 (1961)). The court stated that this "maritime and local" determination is made by balancing state and federal interests. Bayliner, 68 Wn. App. at 132.
Utilizing "interest analysis", the Court of Appeals held that Washington's definition of "economic loss" should apply *73 to this case. Bayliner, 68 Wn. App. at 132. The Court of Appeals reasoned that whatever federal interest in maritime uniformity exists, it is outweighed by "Washington's concern to ensure the personal safety of its citizens, to deter the manufacture and dissemination of dangerous products, and to exercise its authority over tortfeasors acting within its jurisdiction." Bayliner, 68 Wn. App. at 132 (citing generally RCW 7.72 and Graybar, 112 Wn.2d at 864-66). The court concluded that because a significant state interest is at stake, and because the application of Washington law would not unduly disrupt the uniformity of federal admiralty law, "federal admiralty law permits us to apply state law." Bayliner, 68 Wn. App. at 133.
Bayliner contends that the Court of Appeals erred in its determination that state law, and not federal admiralty law, governs the resolution of this case. Bayliner claims the rule in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) conflicts with federal admiralty law (East River) instead of merely "supplementing" it. Bayliner argues that the admiralty rule in East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986) therefore precludes the plaintiffs from pursuing their claim under state law.
Stanton and Albany (hereafter collectively Stanton), on the other hand, contend that the rule in East River does not apply to the consumer transactions involved in these cases. Stanton argues that even if East River does apply to the facts of this case, Washington law is not preempted by federal admiralty law since it does not interfere with the uniform application of admiralty law.
II
ANALYSIS
Review of the Court of Appeals decision requires inquiry into two questions: First, does admiralty jurisdiction apply? Second, if admiralty jurisdiction applies, does substantive admiralty law preempt application of Washington's rule on *74 "economic loss"? Although the Court of Appeals properly concluded that Washington has a significant interest in a divergent interpretation of economic loss, the court erred in holding that Washington law, as expressed in Graybar, displaces the admiralty rule in East River.
Admiralty Jurisdiction Applies
[1] Bayliner contends, and Stanton concedes, that admiralty jurisdiction applies. As the Court of Appeals stated, application of admiralty jurisdiction is appropriate "when the event giving rise to the suit occurs on navigable waters, and the potential hazard to maritime commerce arises from an activity that bears a substantial relationship to traditional maritime activity." Bayliner, 68 Wn. App. at 128 (citing Foremost Ins. Co. v. Richardson, 457 U.S. 668, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982)).
The first part of the test is met since the accidental groundings occurred in navigable waters. The second part of the test requires a determination of whether the activity has the potential to affect maritime commerce, not whether it actually affected commerce in the specific case. Sisson v. Ruby, 497 U.S. 358, 366-67, 111 L. Ed. 2d 292, 110 S. Ct. 2892 (1990). The second part of the test is met since the accidental groundings in this case had the potential to affect maritime commerce. Sisson, at 366-67 (the operation of a pleasure vessel in navigable waters bears a relation to maritime commerce, and thus, is within admiralty jurisdiction). Admiralty jurisdiction applies, therefore, despite the fact that this suit involves noncommercial vessels. Foremost, 457 U.S. at 675-77 (admiralty tort jurisdiction extends to noncommercial activity such as actions arising out of the use of pleasure craft on navigable waters). See Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir.1993) (a fatal accident involving a Jet Ski and a 20-foot power boat on the Thames River in Connecticut); Truehart v. Blandon, 672 F. Supp. 929 (E.D. La. 1987). See also Paul N. Wonacott, Products Liabilities of Shipbuilders and Repairers, 62 Tul. L. Rev. 465, 476 (1987-1988).
*75 Choice of Law
Inasmuch as admiralty jurisdiction applies, we next determine whether substantive admiralty law precludes the application of a state law remedy. The question is whether the Court of Appeals properly determined that Washington law supplements, rather than conflicts with, admiralty law, allowing plaintiffs to pursue their products liability claim under Washington law. In order to reach this issue we must first decide whether the admiralty rule in East River applies to the consumer transaction involved in this case.
The issue resolved in East River was "whether a commercial product injuring itself is the kind of harm against which public policy requires manufacturers to protect, independent of any contractual obligation." East River, 476 U.S. at 866. The Court held that "a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself." East River, 476 U.S. at 871. The Court specifically reserved the issue "whether a tort cause of action can ever be stated in admiralty when the only damages sought are economic." East River, 476 U.S. at 871 n. 6.
The parties vigorously dispute whether East River is limited to its commercial facts and language. Stanton contends that the language in East River indicates that its rule is not well established as to consumer transactions involving pleasure boats and, thus, does not preclude application of state law in this case. Bayliner, on the other hand, contends that East River is not limited to its commercial facts.
In support of their position, respondents cite Sherman v. Johnson & Towers Baltimore, Inc., 760 F. Supp. 499 (D. Md. 1990). The Sherman court concluded that because the plaintiffs and the defendant were not in a commercial relationship, the rule in East River did not preclude plaintiffs' claim as a matter of law. Sherman, 760 F. Supp. at 502. In Sherman, buyers of a pleasure yacht destroyed by fire brought suit against the manufacturer in contract and tort. The defendant moved to dismiss the plaintiffs' tort claims under the authority of East River. Sherman, 760 F. Supp. at 501. The *76 Sherman court cited East River's language reserving judgment on the issue of whether a tort cause of action "can ever be stated in admiralty", East River, at 871 n. 6, and stated:
"Therefore, a maritime tort claim alleging purely economic loss should not be dismissed for want of subject matter jurisdiction where the requirements for admiralty jurisdiction are otherwise met if the facts of the case support a theory of recovery not clearly barred by East River or by other controlling authority."
(Some italics ours.) Sherman, 760 F. Supp. at 501 (quoting Employers Ins. v. Suwannee River Spa Lines, Inc., 866 F.2d 752, 760 (5th Cir.1989)). The court held that the plaintiffs' theory of recovery was not barred by East River because East River limited its holding to commercial situations and this case involved a consumer (noncommercial) transaction. Sherman, 760 F. Supp. at 502. The court noted that other courts and commentators have drawn this same distinction. Sherman, 760 F. Supp. at 502 (citing Employers Ins., 866 F.2d at 764 (maritime case referencing East River as authority for resolving commercial disputes under contract law); Richard O'Brien Cos. v. Challenge-Cook Bros., Inc., 672 F. Supp. 466, 472 (D. Colo. 1987); Consumers Power Co. v. Mississippi Vly. Structural Steel Co., 636 F. Supp. 1100, 1112 (E.D. Mich. 1986); David R. Owen, Recovery for Economic Loss Under U.S. Maritime Law: Sixty Years Under Robins Dry Dock, 18 J. Mar. L. & Com. 157, 177 n. 106 (1987) (East River left to speculation the question of whether its rule applies in consumer cases); Robert Force, Maritime Products Liability in the United States, 11 Mar. Law. 1, 7, 34 (1986)).
Bayliner disputes Stanton's reliance on Sherman, claiming that the majority of maritime cases since East River have not made a distinction between commercial and noncommercial vessels. We agree. For example, Karshan v. Mattituck Inlet Marina & Shipyard Inc., 785 F. Supp. 363 (E.D.N.Y. 1992) declined to follow Sherman. The court held that a cause of action in tort could not be stated when the only damages alleged were to the vessel itself, regardless of whether the owner was a consumer or a commercial buyer. *77 Karshan, 785 F. Supp. at 366. In that case, the owner of a yacht and insurers sued the boat seller under strict products liability theory for property losses as a result of a fire on the yacht. Much like Bayliner, the defendant argued that East River applied to the facts of the case and entitled defendant to summary judgment. Karshan, 785 F. Supp. at 364. The plaintiffs, like Stanton, attempted to distinguish East River on the grounds that they had alleged damage other than to the product itself, and that the boat was not purchased in a commercial transaction. Karshan, 785 F. Supp. at 364. The court disagreed. It found plaintiffs' claim of other property damage unsupportable and stated that the Supreme Court in East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986) did not confine its rationale to commercial transactions.[4]Karshan, 785 F. Supp. at 365-66.
Karshan applied the East River maritime economic loss rule to a noncommercial pleasure boat, citing the Supreme Court's broad concern that tort actions and warranty actions be kept separate. The court also noted as a matter of public policy that a vessel owner can best protect himself from economic loss through insurance. See Karshan, 785 F. Supp. at 366. As one commentator (cited in Karshan) noted, the East River Court's expansive reasoning appears to have been directed at cutting off any movement to impose liability for economic losses, even in the consumer context. See Steven R. Swanson, The Citadel Survives a Naval Bombardment: A Policy Analysis of the Economic Loss Doctrine, 12 Tul. Mar. L.J. 135, 181 (1987).
In Simone v. Genmar Indus., Inc., 1989 Am. Mar. Cas. 2627 (S.D.N.Y.), the plaintiff sued a yacht manufacturer *78 alleging negligence based on a manufacturing defect. The boat had developed "gelcoat blisters" on its hull. Although the court determined that admiralty jurisdiction did not apply, it noted that under either New York or maritime jurisdiction, the result would have been the same: no recovery in tort for product liability damages to the product itself. Simone, 4 Am. Mar. Cas. at 2629 (citing East River, 476 U.S. at 871).
In Sisson v. Hatteras Yachts, Inc., 778 F. Supp. 959 (N.D. Ill. 1991), plaintiffs sought damages for economic loss, alleging that their yacht was damaged by a defective washer/dryer unit. The court granted the defendants' motion for summary judgment based on the rule in East River, holding that the plaintiffs were precluded from recovery in tort.
In Lewinter v. Genmar Indus., Inc., 1993 Am. Mar. Cas. 939 (Cal. Super. Ct.), plaintiffs sued the yacht manufacturer alleging negligence and strict liability for defective lamination of yacht sections which resulted in catastrophic hull failure. The defendant moved for summary judgment, claiming that the rule in East River precluded recovery for economic losses arising out of damage to the product itself. The plaintiffs, like Stanton, argued that East River was not applicable because there was no commercial relationship between plaintiffs and defendant manufacturer. The court, citing Sisson v. Hatteras, supra, and Karshan v. Mattituck Inlet Marina & Shipyard Inc., supra, refused to limit East River to commercial transactions. Lewinter, 1993 Am. Mar. Cas. at 944-47. The court noted the Sherman decision but found the reasoning of Sisson and Karshan more persuasive:
The Sherman Court correctly noted that many of the passages in East River refer to "commercial" transactions and relationships, and that the East River Court limited its holding to commercial situations. However, Sisson and Karshan correctly observe that most, if not all, of East River's reasoning is equally applicable to so called "consumer" transactions.
Lewinter, 1993 Am. Mar. Cas. at 946-47. See also Swanson, 12 Tul. Mar. L.J. at 181 (East River's reasoning applicable in consumer context). The Lewinter court emphasized that any *79 attempt to limit East River to commercial, as opposed to consumer, transactions could create confusion, unfairness, and unpredictability: "A manufacturer's expectation of, and entitlement to, the protection of East River should not, and cannot, turn on the purpose a downstream purchaser, with which the manufacturer had no dealings, had in purchasing the vessel." Lewinter, 1993 Am. Mar. Cas. at 948.
In addition to these maritime cases applying East River to consumer transactions, Bayliner cites several land-based cases which have applied East River to noncommercial facts.[5] For example, in Dairyland Ins. Co. v. General Motors Corp., 549 So. 2d 44 (Ala. 1989), the Alabama Supreme Court applied East River to deny recovery in tort to a consumer buyer of a General Motors van which caught fire while being driven and was destroyed. In Waggoner v. Town & Country Mobile Homes, Inc., 808 P.2d 649 (Okla. 1990), the court applied the holding in East River to deny tort recovery where consumer mobile home purchasers brought an action against the manufacturer for defective roofs. In Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992), a buyer brought a products liability action against the seller of a home building kit. The court similarly refused to create an exception to the East River rule for a noncommercial consumer. Danforth, at 1200.
[2] On balance, the weight of authority interprets East River's maritime products liability rule as applicable to both commercial and consumer transactions. As the Supreme Court noted in Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675-76, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982), the federal interest in protecting maritime commerce cannot be adequately served if admiralty jurisdiction is restricted to those individuals actually engaged in commercial maritime activity. Bayliner further argues that a strict commercial/noncommercial distinction makes no sense given the facts of *80 this case: one of the plaintiffs, Stanton Investment Co., is a corporation and is therefore a commercial entity and that, in addition, the plaintiffs' claims have been brought by a subrogated insurance carrier which, arguably, is not a consumer.[6]
[3] Because plaintiffs suffered damage to property other than the boats, they claim that by reason thereof they are entitled to recover not only the value of the personal property, but also the value of the boats. We disagree. This argument was advanced and rejected in Lewinter v. Genmar Indus., Inc., 1993 Am. Mar. Cas. at 948-49. See also Nicor Supply Ships Assocs. v. General Motors Corp., 876 F.2d 501 (5th Cir.1989). In this case, the trial court properly preserved for trial Stantons' claims for losses to personalty which was not equipment or furniture of the Moonraker. See Sherman v. Johnson & Towers Baltimore, Inc., 760 F. Supp. 499, 502-03 (D. Md. 1990) (plaintiffs may assert a claim in tort for economic damage which goes beyond the product itself).
In summary, the weight of authority persuades us that the rule in East River does apply to consumer transactions involving pleasure boats. We must next determine whether East River's maritime economic loss rule applies to the exclusion of state law.
Substantive Admiralty Law Preempts Application of a State Law Remedy
Applying "interest analysis", the Court of Appeals concluded that Washington's definition of "economic loss" should apply. Stanton v. Bayliner Marine Corp., 68 Wash. App. 125, 132, 844 P.2d 1019 (1992) (citing Kossick v. United Fruit Co., 365 U.S. 731, 738-42, 6 L. Ed. 2d 56, 81 S. *81 Ct. 886 (1961)). Citing East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986), Bayliner argues that "[w]ith admiralty jurisdiction comes the application of substantive admiralty law." Bayliner contends that the application of substantive admiralty law in this case means that no products liability claim lies in admiralty when the only injury claimed is economic loss. Stanton, on the other hand, argues that state law is not preempted if it does not interfere with the uniform system of federal maritime law. Stanton claims that Washington law "supplements" the remedies available in admiralty.
Article 3, section 2 of the United States Constitution provides in part that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction". This provision, by implication, grants Congress the power to revise and supplement the maritime law, and grants federal courts power to develop the general maritime law. Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409, 1421 (9th Cir.1990) (citing Romero v. International Terminal Operating Co., 358 U.S. 354, 360-61, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959)), cert. denied, 119 L. Ed. 2d 578 (1992). State courts, however, have concurrent jurisdiction over maritime claims. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 91 L. Ed. 2d 174, 106 S. Ct. 2485 (1986).
The process of determining the applicability of state law in cases within the admiralty jurisdiction has been described as one of accommodation, "entirely familiar in many areas of overlapping state and federal concern, or a process somewhat analogous to the normal conflict of laws situation where two sovereignties assert divergent interests in a transaction as to which both have some concern." Kossick, 365 U.S. at 739 (citing with approval the application of state wrongful death statutes, The Tungus v. Skovgaard, 358 U.S. 588, 3 L. Ed. 2d 524, 79 S. Ct. 503 (1959); The Hamilton, 207 U.S. 398, 52 L. Ed. 264, 28 S. Ct. 133 (1907); and state survival of actions statutes, Just v. Chambers, 312 U.S. 383, 85 L. Ed. 903, 61 S. Ct. 687 (1941)).
*82 [4] Relying on Kossick, the Court of Appeals stated that even though a cause of action arises under admiralty jurisdiction, state law may "displace" federal law when a matter of local concern is at stake and the application of state law would not disturb the uniformity of maritime law. Bayliner, 68 Wn. App. at 131-32. Although Kossick endorsed the notion of balancing local concerns against federal interests in some circumstances, it does not stand for the proposition that state law may displace conflicting federal law. See Kossick, 365 U.S. at 742.
The federal statute conferring admiralty jurisdiction on federal district courts "sav[es] to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1). The Supreme Court has said that this statute
leaves state courts competent to adjudicate maritime causes of action in proceedings in personam and means that "a state, `having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit,' so long as it does not attempt to [give in rem remedies or] make changes in the `substantive maritime law.'" Stated another way, the "saving to suitors" clause allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state law may be used to remedy maritime injuries is constrained by a so-called "reverse-Erie" doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.
(Citation omitted. Some italics ours.) Offshore Logistics, Inc. v. Tallentire, 477 U.S. at 222-23 (quoting Madruga v. Superior Court, 346 U.S. 556, 560-61, 98 L. Ed. 290, 74 S. Ct. 298 (1954)).
In Bohemia, Inc. v. Home Ins. Co., 725 F.2d 506, 510 (9th Cir.1984), the court, interpreting both Kossick v. United Fruit Co., supra, and Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 99 L. Ed. 337, 75 S. Ct. 368 (1955), stated that state law will control "in the absence of a federal statute, a judicially fashioned admiralty rule, or a need for uniformity in admiralty practice". Accord, Port Lynch, Inc. v. New England Int'l Assurety of Am., Inc., 754 F. Supp. 816, 820 (W.D. Wash. 1991); Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409 (9th Cir.1990). The Aubry *83 court similarly concluded that the general rule on preemption in admiralty is that "states may supplement federal admiralty law as applied to matters of local concern, so long as state law does not actually conflict with federal law or interfere with the uniform working of the maritime legal system." Aubry, 918 F.2d at 1422.
Applying this standard, we next determine whether application of the rule on economic loss in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) conflicts with federal law, or whether it would disrupt the uniform application of maritime law.
Federal Preemption, Graybar, and the Economic Loss Rule
It is undisputed that the design or manufacture of a defective product may qualify as a maritime tort. In East River, the Supreme Court incorporated products liability, including strict liability, into the general maritime law and held that no products liability claim lies in admiralty when the only injury claimed is economic loss. East River, 476 U.S. at 865, 876. East River stands as a "judicially fashioned admiralty rule" applicable to the facts of this case.
[5, 6] The WPLA does not conflict with the holding in East River. Both the WPLA and East River exclude damage claims for "economic loss". RCW 7.72.010(6); Graybar, 112 Wn.2d at 856-60. As Bayliner argues, however, it is Graybar's definition of "economic loss", which does not follow East River's analysis, that creates a conflict between the state and federal remedies. This conflict requires application of the federal admiralty rule of East River. See Offshore Logistics, Inc. v. Tallentire, supra; Pacific Merchant Shipping Ass'n v. Aubry, supra. We hold the Supreme Court's holding in East River precludes application of a state remedy insofar as plaintiffs seek recovery for the economic loss of the yachts.[7]See Sisson v. Hatteras Yachts, Inc., 778 F. Supp. 959 (N.D. Ill. 1991).
*84 Washington's interest in this matter does not outweigh federal interests in the uniformity of maritime laws. Holding that Washington's definition of "economic loss" should apply in this case, the Court of Appeals concluded that "[w]hatever federal interest in uniformity exists, it is outweighed by Washington's concern to ensure the personal safety of its citizens, to deter the manufacturer and dissemination of dangerous products, and to exercise its authority over tortfeasors acting within its jurisdiction." Bayliner, 68 Wn. App. at 132. Bayliner argues that the state interests articulated by the Court of Appeals do not obviate the need for uniformity in maritime products liability law. We agree.
First, the court need not engage in "interest analysis" where there is a conflict between the state and federal remedies for economic loss; such conflicts are resolved in favor of federal maritime law. See Tallentire, 477 U.S. at 222-23. Second, assuming arguendo that there was no conflict of laws, the determination of whether the Graybar rule disrupts federal maritime harmony depends on the balance of federal and state interests involved. See Aubry, 918 F.2d at 1424 (citing Kossick, 365 U.S. at 741-42). Washington's interest in providing a remedy for these plaintiffs does not outweigh federal interests in maritime uniformity.
In Berg v. General Motors Corp., 87 Wash. 2d 584, 591-96, 555 P.2d 818 (1976), this court adopted a minority view with respect to the meaning of "economic loss" and held that a purchaser of a defective engine for a fishing boat could recover from the manufacturer lost profits for the fishing season that resulted from the defective engine. The Legislature overruled Berg and adopted the analysis of the California Supreme Court in Seely v. White Motor Co., 63 Cal. 2d 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1965),[8] when it enacted the 1981 products liability act. Talmadge, Product Liability Act of 1981: Ten Years Later, 27 Gonz. L. Rev. 153, 168-69 *85 (1991-1992). See also Graybar, 112 Wn.2d at 857-58. The preamble to the 1981 act states in part:
It is the intent of the legislature to treat the consuming public, the product seller, the product manufacturer, and the product liability insurer in a balanced fashion in order to deal with [problems associated with rising premiums for product liability insurance].
It is the intent of the legislature that the right of the consumer to recover for injuries sustained as a result of an unsafe product not be unduly impaired. It is further the intent of the legislature that retail businesses located primarily in the state of Washington be protected from the substantially increasing product liability insurance costs and unwarranted exposure to product liability litigation.
Laws of 1981, ch. 27, § 1. See also Philip A. Talmadge, Washington's Product Liability Act, 5 U. Puget Sound L. Rev. 1 (1981). In reaching an appropriate "balance", the Legislature specifically excluded from the WPLA recovery for economic loss in tort, deferring such claims instead to the UCC. See RCW 7.72.010(6); RCW 7.72.020(2). In the tort reform act of 1986, the Legislature again noted the social costs associated with liability insurance and stated "it is the intent of the legislature to reduce costs associated with the tort system, while assuring that adequate and appropriate compensation for persons injured through the fault of others is available." (Italics ours.) Laws of 1986, ch. 305, § 100. Washington does have an interest in preserving appropriate remedies for personal injury; the loss at issue in this case, however, is purely economic.
The Graybar court, however, found East River's approach to economic loss unsuited to what the Legislature intended under the WPLA. Graybar, 112 Wn.2d at 864. See also Stuart v. Coldwell Banker Comm'l Group, Inc., 109 Wash. 2d 406, 417-22, 745 P.2d 1284 (1987) (indicating support for risk of harm analysis). The Graybar court carefully analyzed the statute and concluded that the WPLA incorporates the "risk of harm" analysis. Graybar, 112 Wn.2d at 866. However, there is no indication by the Legislature or this court that Washington's interests in deterring the manufacture and dissemination of dangerous products outweigh the need for *86 a uniform maritime law of products liability. Indeed, the Graybar court acknowledged that the Supreme Court in East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986) exercised its authority to determine the substantive admiralty law. Graybar, 112 Wn.2d at 861-62. As Bayliner argues, there is no support for a rule of exception for economic loss in maritime products liability cases based on Washington law.
The adherence to uniformity in maritime law is evident in recent federal case law. The Supreme Court in Sisson v. Ruby, 497 U.S. 358, 367, 111 L. Ed. 2d 292, 110 S. Ct. 2892 (1989) extended the analysis in Foremost Ins. Co. v. Richardson, 457 U.S. 668, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982) beyond the rules of navigation to state that other rules of maritime liability should be uniform between commercial and noncommercial vessels: "The need for uniform rules of maritime conduct and liability is not limited to navigation, but extends at least to any other activities traditionally undertaken by vessels, commercial or noncommercial."
In Texaco Ref. & Mktg., Inc. v. Estate of Tran, 808 S.W.2d 61 (Tex. Sup. Ct.), cert. denied, 116 L. Ed. 2d 245 (1991), the court determined whether survivors of a man who was killed in a maritime incident were entitled to damages for mental anguish and loss of society, which are not recoverable under general maritime law. The court applied the criteria of Sisson v. Ruby, supra, for maritime jurisdiction and held that "[w]here general maritime law is properly invoked ... a trial court's failure to award damages consistent with maritime law is clearly reversible error." Texaco Ref. & Mktg., Inc., 808 S.W.2d at 64.
The court emphasized that general maritime law preempts state causes of action and remedies, consistent with the "longstanding desire of Congress and the judiciary to achieve uniformity in the exercise of admiralty jurisdiction". Texaco Ref. & Mktg., Inc., supra at 64 (citing Foremost, 457 U.S. at 676-77; Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 223, 91 L. Ed. 2d 174, 106 S. Ct. 2485 (1986)); accord Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d *87 1084, 1087-88 (2d Cir.1993) (federal maritime law, whether or not it conflicts with state law, applies to an action for wrongful death in state territorial waters brought under the admiralty jurisdiction of the federal courts). Likewise, in Anderson v. Whittaker Corp., 692 F. Supp. 764 (W.D. Mich. 1988), aff'd in part, rev'd in part on other grounds, 894 F.2d 804 (6th Cir.1990), a case involving the sinking of a private yacht, the court rejected the argument that state products liability law should apply:
Plaintiffs have raised the argument that because they have access to a remedy under state products liability law, this in some way lessens the federal interest over the controversy. The analysis employed in Foremost, however, makes it clear that the existence of a parallel state remedy is of no consequence. If a sufficient federal interest exists to justify the exercise of maritime jurisdiction, the application of maritime law will follow as a matter of federal supremacy. See 457 U.S. at 674-75, 102 S. Ct. at 2658.
(Some italics ours.) Anderson, 692 F. Supp. at 768 n. 2; accord Karshan v. Mattituck Inlet Marina & Shipyard Inc., 785 F. Supp. 363 (E.D.N.Y. 1992); Sisson v. Hatteras Yachts, supra. In this case, sufficient federal interest exists to justify the exercise of maritime jurisdiction. Consequently, with admiralty jurisdiction comes the application of substantive admiralty law. East River, 476 U.S. at 864. See Zukowsky v. Brown, 79 Wash. 2d 586, 590 n. 1, 488 P.2d 269 (1971). There is no persuasive authority to compel a different result in this case.
In summary, federal maritime law preempts application of a conflicting state law where there is a judicially fashioned admiralty rule on point. East River is the maritime rule on economic loss. To the extent that Washington Water Power Co. v. Graybar Elec. Co., supra, is read to conflict with East River, the federal admiralty rule controls. Graybar is controlling as to land-based product liability claims. Even considering "interest analysis", there is no authority to indicate that Washington's interest in product liability law outweighs or displaces federal interests in uniform maritime law. See Anderson v. Whittaker Corp., 692 F. *88 Supp. at 767 (there is strong federal interest in providing uniform standards for the design and manufacture of products that have the potential to affect traditional maritime activities).
CONCLUSION
The plaintiffs' claims arise under admiralty jurisdiction. We hold, therefore, that substantive admiralty law precludes recovery for economic loss. Plaintiffs' remedy, if any, for economic loss to the yachts may be pursued in warranty against the seller under the UCC (RCW 62A). We reverse the Court of Appeals and remand for further proceedings consistent with this opinion.
ANDERSEN, C.J., and DOLLIVER, DURHAM, and MADSEN, JJ., concur. UTTER, J. (dissenting)
I dissent. The majority reasons that state law will control "in the absence of a federal statute, a judicially fashioned admiralty rule, or a need for uniformity in admiralty practice". Majority, at 82 (quoting Bohemia, Inc. v. Home Ins. Co., 725 F.2d 506, 510 (9th Cir.1984)). There is no assertion that a federal statute is involved. Thus, the only questions at issue in this case are whether a judicially fashioned admiralty rule conflicts with state law and whether application of state law will jeopardize uniformity in admiralty law in such a way as to void its applicability. Since the answer to both questions is no, I would hold that noncommercial plaintiffs in admiralty are not prevented under federal admiralty law from recovering under the Washington products liability act (WPLA) for the value of a product itself when a defect in the product endangers people and damages property other than the product itself.
The majority's holding proceeds first on the mistaken premise that federal and state law conflict. They do not. Both laws permit recovery in product liability for the value of a purchased product where the transaction is of a noncommercial *89 nature and the product endangers people and damages property other than the product itself.
In Washington, the WPLA governs product liability claims. RCW 7.72. The WPLA imposes liability on manufacturers where a claimant's "harm" is proximately caused by a manufacturer. RCW 7.72.030. "Harm" does not include direct or consequential "economic loss". RCW 7.72.010(6). By adopting a narrow definition of "economic loss", the court in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) unanimously preserved the right of consumers to treat damage to a product itself as compensable "harm" under the WPLA if the damage does not constitute "economic loss" as determined by a "risk of harm" analysis. Risk of harm analysis looks to the nature of the defect, the type of risk, and the manner in which the injury arose. Graybar, 112 Wn.2d at 861. The majority concedes that state law might afford the Stantons and Henry recovery under the WPLA.
The majority asserts that despite the otherwise controlling effect Graybar would have on land-based actions, majority at 87, Graybar should not apply in cases involving federal admiralty jurisdiction. The majority's holding is premised on a misapprehension of the scope of East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986). It improperly views the Court of Appeals decision as creating an "exception" to the East River rule. Majority, at 79. Under the guise of merely applying East River's holding, the majority in fact expands East River. By doing so it artificially creates a conflict between state and federal admiralty law where none exists.
The majority extends East River in two significant ways. First, it extends the East River doctrine to noncommercial relationships. The plain holding of East River is as follows: "a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself". (Italics mine.) East River, 476 U.S. at 871. The reasons for distinguishing between commercial and noncommercial relationships for *90 liability purposes have been widely acknowledged. The East River Court itself reasoned "the commercial user stands to lose the value of the product, risks the displeasure of its customers who find that the product does not meet their needs, or, as in this case, experiences increased costs in performing a service." (Italics mine.) East River, 476 U.S. at 871.[9] The plaintiffs currently before the court are consumers who bought their yachts in noncommercial transactions for the demonstrated purpose of pleasure boating, not for transporting cargo or for otherwise performing commercial services.[10] Furthermore, Bayliner, the manufacturer of the yachts, is alleged to manufacture and design such yachts for recreational use. Clerk's Papers, at 145. The holding of East River therefore does not apply to this case.
Various cases are cited by the majority to support its holding that East River should be extended to noncommercial cases. Majority, at 76-79. These decisions are not controlling, as they are holdings from other jurisdictions. Furthermore, at least one court has recognized that East River does not extend to noncommercial relationships. See Sherman v. Johnson & Towers Baltimore, Inc., 760 F. Supp. 499 (D. Md. 1990) (concluding that because the plaintiffs *91 and the defendant were not in a commercial relationship, the East River rule did not preclude claim in tort).
The majority inappropriately extends East River in a second significant manner by extending East River to scenarios involving grave risk to people and damage to property other than the product itself. In East River, neither people nor other property was injured or even endangered. Indeed, the East River Court expressly noted "[i]n the traditional `property damage' cases, the defective product damages other property. In this case, there was no damage to `other' property." East River, 476 U.S. at 867. East River therefore does not categorically prohibit recovery for damage to a product itself. The court neither formulated a principle nor expressed an opinion on the proper rule for cases involving injury or risk to people and property other than the product itself. Therefore, federal and state law do not conflict, and state law will control if it does not excessively jeopardize federal harmony.
Here the majority commits its second error, concluding that even if there were no conflict of laws, the federal interest in uniformity outweighs the state interest in permitting recovery where risk of harm analysis deems injury to a product itself to be noneconomic.
The need for uniformity requires a balancing of federal interests against state interests. However, "[t]he Constitution tolerates some disharmony in admiralty law ... states may supplement admiralty law, and states' supplementation of admiralty law necessarily creates some discord in that law". Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409, 1424 (9th Cir.1990). Accordingly, the balancing test should be applied in order to determine whether the state law "unduly disrupts harmony in the federal admiralty system". Pacific Merchant, 918 F.2d at 1424.
Critical to this balancing test is an identification of some degree of uniformity in federal admiralty law against which state interests can be measured. However, the courts sitting in admiralty are themselves split regarding whether noncommercial plaintiffs may recover for the value of a product *92 itself if people are not endangered and no property other than the product itself is damaged. Moreover, courts in admiralty are silent as to whether plaintiffs, whether noncommercial or commercial, can recover for the value of a product itself when people are endangered and property other than the product itself is damaged. In this context, it is inappropriate for the court to claim that recognition of the state remedy would disrupt federal uniformity.
In an attempt to identify a uniformity in federal law against which state interests must be unfavorably examined, the majority asserts that commercial and noncommercial vessels must be treated uniformly under admiralty law. Majority, at 86. The law it cites for this proposition, however, does no more than hold that commercial and noncommercial ships must be treated identically for the purpose of determining whether a case is subject to admiralty jurisdiction. See Sisson v. Ruby, 497 U.S. 358, 111 L. Ed. 2d 292, 110 S. Ct. 2892 (1990); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982). The rules governing jurisdiction are not the same as those governing the application of substantive law. See Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946). To the extent Sisson and Foremost might encourage courts to treat commercial and noncommercial relationships identically for purposes of substantive law, such viewpoint is dicta and, as such, not controlling. The federal interest in uniformly denying recovery to noncommercial plaintiffs whose lives were endangered and who suffered damage to property other than the product itself is nonexistent, and the need to preserve an alleged uniformity in admiralty law is thus weak at best.
Juxtaposed against this silence in federal law is a clearly articulated state interest in favor of recognizing a possible WPLA claim in this context. As the Court of Appeals noted:
Whatever federal interest in uniformity exists, it is outweighed by Washington's concern to ensure the personal safety of its citizens, to deter the manufacture and dissemination of dangerous products, and to exercise its authority over tortfeasors acting within its jurisdiction. The WPLA, whose very application is at issue in this case, itself attests to those interests.
*93 Stanton v. Bayliner Marine Corp., 68 Wash. App. 125, 132, 844 P.2d 1019 (1992). Since state law does not interfere with the uniform application of admiralty law, I would agree with the Court of Appeals that our state's interests outweigh the interest in an alleged uniformity in federal admiralty law and that Washington law should apply.
There is no conflict between federal admiralty law and state law on the facts of these consolidated cases. Neither does the need for a uniform federal admiralty law outweigh the state interest in recognizing a claim involving endangerment of human life and damage to property other than the product itself. The rule in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) thus applies and the Court of Appeals should be affirmed. I would remand the case for a determination of whether the Stantons and Henry state a claim under the WPLA and the risk of harm approach adopted by Graybar. Because there is no need to consider whether commercial or noncommercial plaintiffs in admiralty are prevented by federal admiralty law from recovering under the WPLA where life and property were neither injured nor endangered, I do not reach those issues.
BRACHTENBACH, SMITH, and JOHNSON, JJ., concur with UTTER, J.
Reconsideration denied March 10, 1994.
NOTES
[1] The trial court left intact plaintiffs' warranty claims against defendant Olympic Sales, and the Stantons' claim for losses to personalty which was not equipment or furnishings of the Moonraker.
[2] RCW 7.72.010-.060.
[3] The court in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) left for another day the determination of how the risk of harm analysis would be applied. The court did discuss two approaches: the "sudden and dangerous test" approach, and the "evaluative" approach. Under the "sudden and dangerous" approach to risk of harm analysis, economic loss is distinguished from other damages according to the manner in which the product failure has occurred. If the failure is the result of a sudden and dangerous event, it is remediable under tort principles. If no such event has occurred, the product failure is deemed economic loss. The evaluative approach, on the other hand, proceeds on the theory that a product user should not have to suffer a calamitous event before earning his remedy. The Graybar court declined to decide which of these approaches is appropriate under the scheme of the WPLA. Graybar, 112 Wn.2d at 866-67. One commentator suggested a third approach based on consumer expectations. See Comment, Determining Recoverable Economic Harm Under the Washington Product Liability Act, 27 Gonz. L. Rev. 335, 342-44 (1991-1992) (one would not expect the resulting damage to be caused by the product's failure to perform its intended function). The commercial expectation test asks "whether the damage caused by the product's defect goes beyond the failure of the product to do what it was supposed to do and actually poses a threat of harm. If the court finds that such a threat of harm exists, above and beyond the failure of the product to perform its intended function, then the appropriate remedy is in tort since the plaintiff is `at risk' due to the defendant's unsafe manufacturing practices." 27 Gonz. L. Rev. at 344.
[4] As the court noted in a footnote: "[M]any of the sources cited in East River [S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986)] are relevant to consumer transactions. These include: Restatement (Second) of Torts §§ 395 and 402A (1965) (cited by East River, 476 U.S. at 868 n. 3, 106 S. Ct. at 2300 n. 3); U.C.C. §§ 2-313, 2-314 and 2-315 (cited at 476 U.S. p. 872, 106 S.Ct. p. 2303); and Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 66-67, 207 A.2d 305, 312-13 [16 A.L.R. 3d 670] (1965) (cited at 476 U.S. p. 868 and p. 870, 106 S.Ct. p. 2301 and p. 2302)." Karshan v. Mattituck Inlet Marina & Shipyard Inc., 785 F. Supp. 363, 366 n. 4 (E.D.N.Y. 1992).
[5] Although Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) was also a land-based case, it declined to apply East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986) because of its definition of "economic loss", not because of any dispute over its application to consumer transactions.
[6] In response, Stanton cites Farmers Home Mut. Ins. Co. v. Insurance Co. of North Am., 20 Wash. App. 815, 583 P.2d 644 (1978), review denied, 91 Wash. 2d 1014, cert. denied, 442 U.S. 942 (1979) as authority that a federal admiralty rule applicable to insurance clauses covering commercial ships did not apply to recreational boats. The court noted that the interpretation of marine insurance policies was left to the states because there was no well-established federal rule on point. Farmers, at 819. In this case, application of East River's maritime economic loss rule to consumer, recreational boats is well established.
[7] We note, however, that application of the maritime admiralty rule in this case does not affect the holding in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash. 2d 847, 774 P.2d 1199, 779 P.2d 697 (1989) as to land-based product liability actions.
[8] In Seely v. White Motor Co., 63 Cal. 2d 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1965), the court denied recovery to a plaintiff who had pleaded lost profits as the only damages under a negligence theory.
[9] See also East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 873, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986) (citing Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960)); Sherman v. Johnson & Towers Baltimore, Inc., 760 F. Supp. 499 (D. Md. 1990); W. Page Keeton, Dan B. Dobbs, Robert Keeton, & David G. Owen, Prosser and Keeton on Torts § 101, at 708 (5th ed. 1984), at 98 (Supp. 1988); Bungert, Compensating Harm to the Defective Product Itself A Comparative Analysis of American and German Products Liability Law, 66 Tulane L. Rev. 1179, 1249-51 (1992); Jones, Product Defects Causing Commercial Loss: The Ascendancy of Contract over Tort, 44 U. Miami L. Rev. 731, 754-56 (1989-1990).
[10] Although one of the purchasers was a corporate entity, there was no evidence the purchase was part of a commercial relationship. The touchstone of whether a transaction is "commercial" is not whether a purchaser is a corporate entity but rather whether the transaction involves commercial attributes, including relatively proportionate bargaining power. See generally East River, 476 U.S. at 872-73. Additionally, I disagree with the majority's implication that the presence of insurers is of consequence in bringing this case within the scope of East River. The insurers possessed neither bargaining power regarding the purchase of the yachts nor commercial use for the yachts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561302/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2020*
Decided August 28, 2020
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 19-2617 Appeal from the United
States District Court for the
VLADIMIR M. GOROKHOVSKY and Eastern District of Wisconsin.
IGOR KAIUROV,
Plaintiffs-Appellants, No. 19-CV-453-JPS
v. J.P. Stadtmueller, Judge.
ELEANORA STEFANTSOVA,
Defendant-Appellee.
Order
Vladimir Gorokhovsky and Igor Kaiurov ask us to review the district court’s dismis-
sal of their case and the denial of their motion for sanctions against the defendant. We
decline to do so. In this court, Gorokhovsky (purporting to represent Kaiurov as well as
himself) filed multiple false certifications and failed to furnish required documents.
*Appellee did not file a brief and ignored three orders to show cause. We have decided to resolve the
case without argument in light of the considerations discussed in the text. See Fed. R. App. P. 34(a).
No. 19-2617 Page 2
And Gorokhovsky, an attorney, submitted documents so marginally competent that
they raise concerns about his ability to represent others. We affirm the district court’s
judgment without addressing the merits, and we direct Gorokhovsky to show cause
why he should not be further sanctioned.
Gorokhovsky and Kaiurov brought this action in the Eastern District of Wisconsin,
alleging that the defendant, a Russian citizen who resides in New York, defamed and
defrauded them when she lived in China years ago. Concluding that the defendant
lacked the required minimum contacts with Wisconsin, the district court dismissed the
case for lack of personal jurisdiction. It then denied plaintiffs’ motion for sanctions
against defendant under Fed. R. Civ. P. 11.
Gorokhovsky and Kaiurov appealed, but myriad problems marred their filings.
Three times, Gorokhovsky was ordered to amend his docketing statement because he
failed to supply adequate information about his own citizenship and that of the other
parties, despite claiming federal jurisdiction in part based on diversity. It then took four
tries and multiple extensions to file a brief that the clerk’s office would accept.
Although the clerk’s office ultimately accepted appellants’ brief and separate ap-
pendix, many of the certifications included in the brief are false. First, Gorokhovsky cer-
tified that the brief satisfies the safe harbor in Fed. R. App. P. 32(a)(7), (g), which is
available to briefs of 30 pages or fewer. But that certification was false because eight
pages that count toward the limit are unnumbered in the paper copies of the brief, and
Gorokhovsky ignored the unnumbered pages when certifying that the brief comes
within the safe harbor. See Rule 32(f) (enumerating sections of appellate brief that are
excluded from page limit); see also Vermillion v. Corizon Health, Inc., 906 F.3d 696, 697
(7th Cir. 2018) (“Only those matters … mentioned in Rule 32(f)’s list are excluded [from
an appellate brief’s page count]. Everything else counts.”). Leaving pages unnumbered
deceived the clerk’s office, which apparently looked only at the number on the last
page. Gorokhovsky is an experienced lawyer with no excuse for engaging in trickery by
filing a document with unnumbered pages; this egregious behavior deserves a penalty.
See Jaworski v. Master Hand Contractors, Inc., 882 F.3d 686, 690 (7th Cir. 2018).
Gorokhovsky also falsely certified compliance with Circuit Rule 30(a), which re-
quires a brief to include a short appendix containing the judgment or order under re-
view, plus a copy of the district court’s opinion. The clerk’s office does not check
whether an appendix complies with Rule 30(a). Instead it relies on counsel’s honesty. If
the certificate is in its proper form, this court accepts the brief “without independent in-
quiry into compliance with Rule 30(a).” Sambrano v. Mabus, 663 F.3d 879, 881 (7th Cir.
2011). Gorokhovsky certified that the paper briefs contained the short appendix and,
No. 19-2617 Page 3
indeed, some of the briefs they filed had one. Those were rejected on other grounds,
however, and most copies of the brief finally accepted lacked an appendix (though they
still bore the certification). That, too, is grounds for dismissal or summary affirmance.
See, e.g., Snipes v. Illinois Department of Corrections, 291 F.3d 460, 464 (7th Cir. 2002).
There was another serious problem: appellants’ paper briefs differ from those filed
electronically. Though Gorokhovsky certified that the text of the electronic copy of the
brief is “identical” to the paper copy, there are alterations in the footnotes, the format-
ting (including the pagination), and the dates in some of the certifications. Any differ-
ence between electronic and paper versions is forbidden. See, e.g., Khan v. Midwestern
University, 879 F.3d 838 (7th Cir. 2018); B.G. v. Chicago Board of Education, 906 F.3d 632
(7th Cir. 2018). This false certification, like the others, is grounds for dismissing the ap-
peal or summarily affirming the district court. See, e.g., Jaworski, 882 F.3d at 690 (sum-
mary affirmance when certification was a misrepresentation).
The substance of Gorokhovsky’s filings in the district court and on appeal is similar-
ly wretched. In the district court he proffered, as evidence, email correspondence pro-
tected by attorney-client privilege, with no indication of a waiver by his former client.
The district court said it would not consider the evidence, but Gorokhovsky attached it
again to his motion to sanction the defendant. And apart from the multiple failures to
provide a rule-compliant document, Gorokhovsky did not supply what this court ex-
pects from a practitioner. The brief raises frivolous arguments (for example, that Wis-
consin has general personal jurisdiction over the defendant, a Russian citizen who has
never set foot in or done business in the state); presses a civil RICO claim though the
complaint contains not a whiff of any “enterprise” or racketeering activity, see 18 U.S.C.
§1962(c); fails to include a single argument on behalf of Kaiurov; and contains countless
typographical, spelling, and grammatical errors.
Gorokhovsky’s incompetent and dishonest conduct on his own behalf implies that
he is not an appropriate person to protect the interests of clients. In other cases, we have
ordered lawyers whose ineptitude may have injured their clients to show cause why
they should not be suspended from practice or disbarred. See Fed. R. App. P. 46; see al-
so, e.g., B.G., 906 F.3d at 633–34; Sambrano, 663 F.3d at 882.
But Gorokhovsky is not a member of our bar and therefore cannot be disciplined
under Rule 46. He applied for admission in 2016, but his application was denied in light
of his disciplinary history, which includes a suspension for fraud and other conduct
that the Supreme Court of Wisconsin characterized as criminal. In re Gorokhovsky, 2013
WI 100 (Dec. 17, 2013). Although Gorokhovsky is not a member of our bar, he purports
to represent Kaiurov and thus has engaged in the unauthorized practice of law.
No. 19-2617 Page 4
Gorokhovsky is a member of the bar of the Eastern District of Wisconsin and the
General Bar (but not the Trial Bar) of the Northern District of Illinois. We are sending
copies of this order to those courts, as well as the State Bar of Wisconsin, so that they
can consider whether he is fit to represent the interests of clients.
Although we cannot discipline Gorokhovsky under Rule 46, we can impose penal-
ties under Fed. R. App. P. 38. We give Gorokhovsky 14 days to show cause, if he has
any, why he should not be subject to public censure, fines, and other penalties.
We strike appellants’ brief for failure to comply with the national and circuit rules
and sanction both appellants with summary affirmance of the judgment. We also direct
Gorokhovsky to show cause why he should not be further penalized. | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1000543/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6819
QUENTIN MCLEAN,
Plaintiff - Appellant,
versus
THOMAS N. FAUST, Sheriff; MARCIA SANDLER, Dep-
uty Clerk; DAVID A. BELL, Clerk of the Court,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. Robert G. Doumar, Senior District
Judge. (CA-99-625-2)
Submitted: December 16, 1999 Decided: December 27, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Affirmed by unpublished per curiam opinion.
Quentin McLean, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Quentin McLean appeals from the district court’s order dis-
missing his § 42 U.S.C.A. § 1983 (West Supp. 1999) claim under 28
U.S.C.A. § 1915A (West Supp. 1999) for failure to state a claim.
McLean has moved in this court for the appointment of counsel and
for emergency relief. We have reviewed the record and the district
court’s opinion and find no reversible error. Accordingly, we af-
firm on the reasoning of the district court. See McLean v. Faust,
No. CA-99-625-2 (E.D. Va. June 2, 1999). We deny McLean’s motions
for appointment of counsel and for emergency relief. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3106230/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION TO MODIFY THE STYLE
Cause number and style: Cause No. 01–13–00509–CV; Jose Luis
Cardenas d/b/a J & S Body Shop v. Betty Wilson
and Jeffery Wilson
Date motion filed: March 26, 2014
Party filing motion: Jose Luis Cardenas d/b/a J & S Body Shop
There being no objection, it is ordered that appellant Jose Luis Cardenas’s
motion to modify the style of the case is granted. Appellant Jose Luis Cardenas
style is changed to “Jose Luis Cardenas d/b/a J&S Body Shop”.
Judge’s signature: /s/ Jane Bland
Acting individually
Panel consists of: Chief Justice Radack and Justices Bland and Huddle.
Date: April 15, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1687268/ | 682 So. 2d 1296 (1996)
James WILKINSON and Frances Wilkinson
v.
LOUISIANA INDEMNITY/PATTERSON INSURANCE.
No. 96 CA 0447.
Court of Appeal of Louisiana, First Circuit.
November 8, 1996.
*1297 S. Alfred Adams, Baton Rouge, for plaintiffs/appellants James and Frances Wilkinson.
Donna Bramlett Wood, Baton Rouge, for defendant/appellee Louisiana Indemnity/Patterson Insurance Company.
Before WHIPPLE, PITCHER and FITZSIMMONS, JJ.
WHIPPLE, Judge.
This is an appeal by plaintiffs, James and Frances Wilkinson, from a trial court judgment, granting the motion for summary judgment filed by defendant, Louisiana Indemnity Insurance Company, now known as Patterson Insurance Company ("Patterson"), on the finding that the automobile liability policy issued to plaintiffs by Patterson did not provide uninsured/underinsured motorist *1298 ("UM") coverage. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
On May 13, 1989, plaintiff, James Wilkinson, initially obtained a policy of automobile liability insurance bearing policy number 3L 3016121 from Patterson. The bodily injury liability limits under the Patterson policy were $10,000/$20,000, and the policy also provided uninsured motorist (UM) coverage of $10,000/$20,000. Becky Wilkinson, Mr. Wilkinson's wife at that time, was also listed as a named insured driver, and the policy covered a 1982 Dodge pickup truck and a 1987 Chevrolet Cavalier.
Subsequently, James and Becky Wilkinson separated, and as a result, Becky Wilkinson and the 1987 Chevrolet Cavalier were deleted from the policy effective July 17, 1989. From May 1989 to May 1992, the Patterson policy was regularly renewed at six-month intervals, and each renewal provided UM coverage with limits of $10,000/$20,000. While the record does not reveal why the policy number changed, when Patterson policy number 3L 3016121 was renewed for the policy period of May 13, 1990 to November 13, 1990, a new policy number, 4L 4012868, was assigned to the policy.
When the Patterson policy was renewed on May 13, 1992, it was renewed for one year, rather than six months, and it again provided UM coverage with $10,000/$20,000 limits. However, several changes were made to the Patterson policy during this one-year policy period. On June 9, 1992, a 1992 Mitsubishi Mighty Max pickup truck was added as a second vehicle to the policy. The coverage provided on this vehicle included liability coverage with bodily injury limits of $10,000/$20,000, UM coverage with limits of $10,000/$20,000, and comprehensive and collision coverage.
Additionally, on August 4, 1992, during the one-year policy period, Mr. Wilkinson contacted Cathy Cobb, the insurance secretary at Southeastern Insurance Agency, apparently seeking to reduce his insurance premiums. As a result of this conversation, Ms. Cobb mailed Mr. Wilkinson a UM rejection form which read, in pertinent part, as follows:
UNINSURED MOTORISTS COVERAGE REJECTION
POLICY HOLDER'S REJECTION OF INSURANCE
PROTECTION AGAINST UNINSURED MOTORISTS
The undersigned insured hereby rejects Protection Against Uninsured Motorists as provided in Louisiana Revised Statutes 22:1406 from Policy Number 4L4012868 and subsequent renewals issued by Louisiana Indemnity [n/k/a Patterson Insurance Company].
Mr. Wilkinson signed the UM rejection form, and effective August 5, 1992, UM coverage was canceled on both vehicles covered by the Patterson policy (the 1982 Dodge pickup truck and the 1992 Mitsubishi Mighty Max pickup truck).
An additional change was made to the Patterson policy on August 14, 1992, when Frances Lofton Wilkinson, Mr. Wilkinson's new wife, was added as an additional driver on the policy. No other significant changes were made to the policy during this one-year policy period, nor was a new UM rejection form executed by the Wilkinsons at the time Mrs. Frances Wilkinson was added to the policy.[1]
On March 5, 1993, Frances Wilkinson was involved in an automobile accident, while driving the 1992 Mitsubishi pickup truck. The accident allegedly occurred when Roman Firmin proceeded through a red traffic signal and collided with the vehicle being driven by Frances Wilkinson.
Thereafter, the Wilkinsons instituted the instant action against Patterson, averring that the Patterson policy in effect on the date of the accident provided the Wilkinsons with UM coverage and that any UM rejection form previously submitted to them failed to comply with the mandates of Louisiana law and, thus, was a complete nullity.
Patterson filed an answer, specifically denying that the Patterson policy in question provided the Wilkinsons with UM coverage *1299 and averring that the UM rejection form executed by Mr. Wilkinson complied with LSA-R.S. 22:1406. Thereafter, Patterson filed a motion for summary judgment on the issue of UM coverage, contending that there were no genuine issues of material fact in dispute and that it was entitled to judgment as a matter of law. Patterson contended that the UM rejection form executed by Mr. Wilkinson was clear and unambiguous and was in compliance with LSA-R.S. 22:1406.
In opposition to Patterson's motion for summary judgment, the Wilkinsons argued that the UM rejection form in question did not place the insured in a position of making an "informed rejection" of UM coverage, which requires that the insured be given a "meaningful selection" from the options provided to him by statute. They reasoned that because the form did not provide them with a "meaningful selection" of the two options available to them, UM coverage equal to bodily limits or no UM coverage, it failed to meet the requirements of Tugwell v. State Farm Insurance Company, 609 So. 2d 195 (La.1992), and its progeny.[2]
On August 21, 1995, a hearing was held on the motion for summary judgment, and in oral reasons, the trial court found as follows:
We know that U.M. was canceled on August the 5th. Tugwell doesn't stand for anything that's involved in this case, in my opinion. This is not a rejection case.... This is a case where there has been coverage issued. Now the person desires to eliminate certain coverage. Your rejection case is where people make application for insurance that there's not an existing policy. So Tugwell, in my opinion, is not applicable, and it's not a rejection case. I believe that when Mr. Wilkinson requested the elimination of U.M. and he signs the form asking that it be rejected, it means eliminated.... I don't know what more the insurance agent can do when their client requests elimination [of] certain coverage. So the court will grant the motion for summary judgment filed on behalf of Patterson Insurance Company.
By judgment dated August 29, 1995, the trial court granted Patterson's motion for summary judgment and dismissed plaintiffs' claims with prejudice. From this judgment, plaintiffs appeal, averring that the trial court erred in: (1) concluding that plaintiffs' claim was not one requiring Tugwell analysis, (2) concluding that there was no material issue of fact as to plaintiffs' understanding and intent in canceling UM coverage, and (3) allowing the introduction of improper evidence by Patterson at the summary judgment hearing.
At oral argument in this matter, the parties were given ten days to file supplemental briefs to address the effect, if any, of this court's decision in Waller v. Automotive Casualty Insurance, 95-2108 (La.App. 1st Cir. 6/28/96); 680 So. 2d 675, on the present case. Both parties responded, and in plaintiffs' supplemental brief, they listed an additional assignment of error as follows: (4) The trial on court erred in dismissing plaintiffs' claim when there was a change in the policy after the execution of a written waiver form which would have required the execution of a new UM waiver form.
SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Kidd v. Logan M. Killen, Inc., 93-1322, p. 4 (La.App. 1st Cir. 5/20/94); 640 So. 2d 616, 618. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966;[3]Potter v. First *1300 Federal Savings and Loan Association of Scotlandville, 615 So. 2d 318, 325 (La.1993).
Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Potter, 615 So.2d at 325; Schroeder v. Board of Supervisors of Louisiana State University, 591 So. 2d 342, 345 (La.1991).
EFFECT OF SUBSEQUENT ADDITION OF FRANCES WILKINSON AS A NAMED INSURED
As stated above, at oral argument in this matter, the parties were given ten days to file supplemental briefs to address the effect, if any, of this court's decision in Waller on the outcome of the present case. In Waller, this court held that the addition of an insured driver to an existing automobile liability insurance policy, without any change in the bodily injury limits, increases the policy's coverage and constitutes a new policy, requiring the execution of a separate selection/rejection of UM coverage. This court further held that in the absence of a separate selection/rejection of UM coverage executed at the time of the addition of the new insured driver, UM coverage is afforded as a matter of law. Waller, 95-2108 at p. 11; 680 So.2d at 681.
Frances Wilkinson was added as a named insured to the policy at issue subsequent to Mr. Wilkinson's execution of the UM rejection form on August 5, 1992, and no new UM rejection form was executed at the time she was added as a named insured. Because the last significant change made to the policy was the addition of Frances Wilkinson as a named insured and, thus, the applicability of Waller could be dispositive on the issue of UM coverage herein, we first address whether the addition of Frances Wilkinson as a named insured required the execution of a new UM waiver form.
In its supplemental brief, Patterson argues that the facts of the present case are distinguishable from those of Waller. We agree. In Waller, Patrick and Nancy Dempsey obtained a policy of insurance and subsequently made a change to the policy to add Nicole Marino as an additional insured driver under the policy. Although the exact relationship between the Dempseys and Marino is not apparent from the opinion in Waller, it is clear that Marino was not Patrick Dempsey's spouse.[4]Waller, 95-2108 at p. 2; 680 So.2d at 676.
In the instant case, Frances Wilkinson was the spouse of Mr. Wilkinson at the time she was added to the policy as an insured driver.[5] The policy at issue herein defines the insured "[w]ith respect to the insurance for bodily injury liability and for property damage liability," in pertinent part, as "the named Insured and, if the named Insured is an individual, his spouse if a resident of the same household." (Emphasis added). For purposes of UM liability, "insured" is defined, in pertinent part, as "the named insured and, while residents of the same household, his spouse and the relatives of either." (Emphasis added). Thus, from the time the policy in question was issued, Patterson bound itself to provide coverage to Mr. Wilkinson's wife, as evidenced by the definition of "insured" in the policy.[6]
Therefore, we conclude that the formal addition of Frances Wilkinson as a named insured did not have the effect of increasing the policy's coverage, and as such, it did not constitute a new policy requiring the execution of a separate UM selection/rejection form. Thus, this court's analysis in Waller is *1301 not dispositive under the facts presented herein.
VALIDITY OF REJECTION OF UM COVERAGE
(Assignment of Error No. 1)
In their first assignment of error, plaintiffs contend that the trial court erred in concluding that their claim was not one requiring Tugwell analysis. We agree.
LSA-R.S. 22:1406(D)(1)(a)(i) mandates UM coverage in an amount not less than the limits of bodily injury liability coverage, unless the insured rejects that coverage in writing or selects lower limits.[7]Tugwell, 609 So.2d at 196-197. In Tugwell, the Louisiana Supreme Court reiterated the requirements for a valid rejection or selection of lower limits:
This court has held a valid rejection or selection of lower limits must be in writing and signed by the named insured or his legal representative. Further, the insurer must place the insured in a position to make an informed rejection of UM coverage. In other words, the form used by the insurance company must give the applicant the opportunity to make a "meaningful selection" from his options provided by the statute: (1) UM coverage equal to bodily injury limits in the policy, (2) UM coverage lower than bodily injury limits in the policy, or (3) no UM coverage.
Tugwell, 609 So.2d at 197 (citations omitted).
When the insured's bodily injury coverage is $10,000/$20,000, there is no UM coverage available to the insured for limits lower than the bodily injury limits in the policy. See LSA-R.S. 22:1406(D)(1)(a)(i); LSA-R.S. 32:900(B)(2); Morgan v. Sanchez, 94-0090 (La.App. 1st Cir. 4/15/94); 635 So. 2d 786, 787. Thus, the insurer's form is only required to provide the options of accepting UM coverage equal to bodily injury limits or rejecting UM coverage outright, to meet the requirements of Tugwell. Otherwise, the form is defective as a matter of law, and UM coverage equal to bodily injury limits is afforded the insured by operation of law. Banks v. Patterson Insurance Company, 94-1176, p. 4 (La.App.9/14/95); 664 So. 2d 127, 129, writ denied, 95-2951 (La.2/16/96); 667 So. 2d 1052.
Moreover, the expression of a desire not to have UM coverage, however clear, does not constitute a valid rejection if the written expression of rejection does not meet the formal requirements of law. See Jordan v. Honea, 407 So. 2d 503, 506 (La.App. 1st Cir.1981), writs denied, 409 So. 2d 654, 660 (La.1982).
However, as stated above, the trial court concluded that because the facts herein involved a change made to an existing policy rather than an application for a new policy, the dictates of Tugwell were not applicable to this case. We find that a careful reading of LSA-R.S. 22:1406 does not support the trial court's conclusion.
Where there has been a valid rejection of UM coverage, that initial valid rejection or selection of lower limits in connection with a previously issued policy is also valid for renewal, reinstatement, or substitute policies. LSA-R.S. 22:1406(D)(1)(a)(i);[8]Troha *1302 v. State Farm Insurance Company, 606 So. 2d 89, 90 (La.App. 3rd Cir.1992); Ruiz v. Lewis, 579 So. 2d 1203, 1206-07 (La.App. 4th Cir.), writ denied, 586 So. 2d 562 (La.1991). Conversely, it is only logical that in the absence of an initial valid rejection, the renewal, reinstatement or substitute policy is mandated by statute to provide UM coverage, unless a valid UM rejection is executed in connection with the renewal, reinstatement or substitute policy.
In the instant case, no valid UM rejection form had ever been executed prior to the August 5, 1992 change in policy coverage, wherein UM coverage was deleted from the Patterson policy. We conclude that the August 5, 1992 change endorsement, which attempted to delete UM coverage from the existing policy, was a substitute policy.[9] A substitute policy has been jurisprudentially defined to include situations where there has been a substitution of insureds and/or vehicles, Waller, 95-2108 at p. 9; 680 So.2d at 680, and situations where there is coverage and an agreement is made for different coverage. Bryant v. Viking Insurance Company of Wisconsin, 579 So. 2d 1241, 1243 (La. App. 3rd Cir.1991). Prior to execution of the change endorsement eliminating UM coverage from the policy, there had been an agreement for coverage including UM coverage. Thereafter, that policy was substituted to delete UM coverage.[10]
Thus, in the absence of prior valid rejection, this substitute policy was mandated by statute to provide UM coverage, unless a valid UM rejection was executed at that time. LSA-R.S. 22:1406(D)(1)(a)(i); see also Sentilles v. State Farm Mutual Automobile Insurance Company, 443 So. 2d 723, 727 (La. App. 4th Cir.1983), writ denied, 445 So. 2d 437 (La.1984). The trial court erred in concluding that the August 5, 1992 UM rejection form executed at the time of the substitution of coverage, which was the first UM rejection form ever executed by Mr. Wilkinson, did not have to be analyzed under the requirements of Tugwell and its progeny.
Therefore, the inquiry becomes whether, under the dictates of Tugwell and its progeny, the August 5, 1992 UM rejection executed by Mr. Wilkinson constituted a valid UM rejection form, entitling Patterson to judgment as a matter of law, dismissing plaintiffs' claim. In Banks, 94-1176 at p. 4; 664 So.2d at 129, this court evaluated the exact UM rejection form at issue herein and concluded that it failed to meet the requirements of Tugwell inasmuch as it did not provide the insured with the option of selecting UM coverage equal to bodily injury limits. Thus, the form foreclosed informing the insured of an option required by law. In view of this defect, there is no need to address the question of whether Mr. Wilkinson was sufficiently informed of the available options. See Banks, 94-1176 at p. 4; 664 So.2d at 129. Therefore, Patterson has failed to prove that it is entitled to judgment in its favor as a matter of law.[11]
CONCLUSION
Considering the foregoing, the August 29, 1995 judgment of the trial court, granting Patterson Insurance Company's motion for summary judgment and dismissing the Wilkinsons' suit with prejudice, is reversed. *1303 The matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed against defendant, Patterson Insurance Company.
REVERSED AND REMANDED.
NOTES
[1] An endorsement, amending the lienholder's address, was executed on June 15, 1992.
[2] When the insured's bodily injury coverage is $10,000 per person/$20,000 per accident, there is no UM coverage legally available to the insured for limits lower than $10,000/$20,000. Therefore, the insurer need not offer UM coverage at non-existent lower limits. Banks v. Patterson Insurance Company, 94-1176, p. 4 n. 1 (La. App. 1st Cir. 9/14/95); 664 So. 2d 127, 129 n. 1, writ denied, 95-2951 (La.2/16/96); 667 So. 2d 1052.
[3] After the rendition of this case in the court below, LSA-C.C.P. art. 966 was amended by Acts 1996, First Extraordinary Session, No. 9, effective May 1, 1996, to provide that summary judgment is favored, to provide that the burden of proof remains with the mover and to clarify the showing required from the opposing party. Article 966 now provides that the motion shall be granted if no genuine issue of material fact remains and the mover is entitled to judgment as a matter of law. To defeat the motion, the opposing party must "make a showing sufficient to establish the existence of proof of an element to his claim ... on which he will bear the burden of proof at trial."
[4] Nancy Dempsey was Patrick Dempsey's spouse. Waller, 95-2108 at 2; 680 So.2d at 676.
[5] Mr. Wilkinson married Frances Wilkinson in 1990; however, he did not formally add her as a named insured under the policy until August 14, 1992.
[6] In fact, no additional premium was charged when Mr. Wilkinson formally added Frances Wilkinson as a named insured.
[7] LSA-R.S. 22:1406(D)(1)(a)(i) provides, in pertinent part, as follows:
No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Subsection unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing, as provided herein, the coverage or selects lower limits. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900.
[8] LSA-R.S. 22:1406(D)(1)(a)(i) provides, in pertinent part, as follows:
Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates.
[9] This change in policy could not have been either a renewal or reinstatement policy. A renewal policy is defined by LSA-R.S. 22:636.1(A)(5) as one issued and delivered at the end of a policy period to replace a policy previously issued and delivered by the same insurer. Troha, 606 So.2d at 91. Moreover, a reinstatement policy contemplates that the insured be restored to all the benefits accruing under the policy contract, and as such, it is necessary that there be an interval during which the insured is no longer covered by insurance. Troha, 606 So.2d at 91.
[10] Of course, if the agreement had been to increase the policy's coverage, rather than decrease it, the change would have constituted a new policy, requiring execution of a separate UM selection/rejection form. Waller, 95-2108 at p. 11; 680 So.2d at 680.
[11] Because of our resolution of the UM coverage issue under plaintiffs' assignment of error number one, we pretermit discussion of the remaining assignments of error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875950/ | 260 S.W.3d 482 (2008)
Sean LUNDY, Appellant,
v.
Marcos V. MASSON, M.D. and Global Orthopaedics, Inc., Appellees.
No. 14-06-00581-CV.
Court of Appeals of Texas, Houston (14th Dist.).
April 29, 2008.
Rehearing Overruled July 10, 2008.
*488 Timothy A. Hootman, Lance Christopher Kassab, Houston, for appellant.
George R. Gibson, Rod E. Gorman, Seth Adam Miller, Thomas Michael Ballases, Houston, for appellees.
Panel consists of Justices YATES, FOWLER, and GUZMAN.
OPINION
LESLIE B. YATES, Justice.
In twenty-three issues, appellant Sean Lundy appeals the jury verdict rendered in favor of appellees Marcos Masson, M.D. and Global Orthopaedic Solutions, Inc. ("Global") on their claims of fraud and breach of fiduciary duty. We reform the judgment in favor of Masson to reflect an election of remedies, and we affirm as reformed. We affirm the judgment in favor of Global on its breach of fiduciary duty claim. We reverse and render that portion of the judgment in favor of Global on its fraud claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2001, Marcos Masson, M.D., an orthopaedic upper extremity surgeon, formed Global to design and produce orthopaedic surgical devices. In November 2001, three new members joined Global Mark Henry, M.D., a partner at Masson's orthopaedic surgical practice, Houston Hand and Upper Extremity Center, L.L.C. ("Houston Hand"), Sean Griggs, M.D., a former partner at Houston Hand, and Sean Lundy.[1]
Henry first introduced Masson to Lundy in the summer of 2000. At that time, Masson owned MasTech, a surgical device company. Lundy and Henry, who had a close and longstanding friendship dating back to college, were partners, along with Donny Byrne, in a company called Orthopaedic Retractors, Inc. ("ORI"). In 1999, Byrne had executed an agreement with Lundy and Henry in which he had assigned his retractor patent and related technology to ORI in exchange for a one-third ownership interest in the company.
The purpose of the meeting between Lundy and Masson in the summer of 2000 was to explore a possible merger between *489 MasTech and ORI. Following the meetings, Lundy disappeared for approximately one year, ostensibly due to personal problems.[2] Shortly after Masson formed Global in July 2001, at Henry's urging, he interviewed Lundy to be President of Global. In the course of their discussions, Masson asked Lundy about the status of the patent that Byrne had assigned to ORI. Lundy told him, "No problem. There was a two-year contract that we had, or I did with Byrne, because Mr. Byrne apparently owed owned the patent for retractors ... [a]nd now that the two-year contract is up, we can do whatever we want with it. It's not a problem."
In December 2001, Lundy began his employment as President of Global.[3] His compensation included an annual salary of $200,000 and a 20% ownership interest in Global. In addition, Masson agreed to loan $75,000 to Lundy, payable to Global, to assist him in moving from Virginia and buying a new home in Houston. Masson testified that Lundy was responsible for managing the company which included, among other duties, hiring employees, preparing a business plan, negotiating vendor and distributor contracts, identifying manufacturers for the company's products, researching industry standards for pricing and packaging issues, learning about the sterilization process, and maintaining the financial books and records.
In December 2001, Masson also loaned Global $450,000 as start-up cash and signed a promissory note payable to Bank of America for a revolving line of credit in the amount of $1,000,000. Houston Hand also made numerous cash loans to Global totaling more than $670,000. Over the next two years until Global ceased its operations, the company's sales fluctuated greatly. According to Masson, Lundy told him that Global's sales were between $50,000 to $100,000 per month and, based on Lundy's assurances, Masson believed that "things were going great." However, Masson became concerned about Global's financial condition when some of the company's officers called him to complain about Lundy's absence from the company and he learned that several employees had been fired. When Masson requested financial information from Lundy, Lundy refused to provide it to him. Dawn Burks, Global's Vice President of Operations, testified that when she attempted to provide Masson with financial information at his request, Lundy became angry and forbade her from providing any financial reports to Masson without first securing his approval.
In October 2002, Cindy Reichek, Global and Houston Hand's controller, resigned because of differences with Lundy and Henry. Lundy told Masson that Cindy had made "a mess" of the bookkeeping and proposed working at Houston Hand for three to four weeks to "clean the books," to which Masson agreed. When Masson later became concerned about Lundy's extended absence from Global, Henry reassured him that they needed Lundy's help at Houston Hand and that Lundy would return to Global. Lundy worked at Houston Hand for approximately ten months *490 and, according to Masson, never returned to Global's offices. Masson later learned that Lundy and Henry had executed an employment agreementwithout Masson's knowledgeunder which Lundy was to begin working full-time for Houston Hand as its General Business Manager beginning in May 2003.[4]
In May 2003, Global was converted from an L.L.C. to a corporation. At trial, Masson testified that he agreed to the conversion based on Lundy's representation that it was for tax purposes. As shareholders of the corporation, Masson and Henry each owned 39.5% of Global and Lundy owned 20%. Lundy was named President and Chief Operating Officer, Masson was named Chairman of the Board, and Henry was named Chief Science Officer.
In June 2003, in an effort to raise $3,000,000 to further Global's business development, Lundy prepared a private placement memorandum to present to outside investors. Lundy told Masson that the additional money would enable them to "grow the company" and to repay the $450,000 loan to Masson. Ultimately, no one invested in Global as a result of the memorandum.
In July 2003, Masson received the first financial report regarding Global from the company's accountant, Lamont Grogan. The profit and loss statement showed that Global had lost more than $570,000 in 2002. The balance sheet revealed, among other things, a negative balance of $592,313.99, and that the entire $1,000,000 line of credit extended to Global by Bank of America had been drawn down.[5] In addition, the balance sheet did not reflect the loans from Houston Hand to Global.
On August 13, 2003, Masson filed suit against Lundy alleging fraud, conversion, and breach of fiduciary duty and requested that the court appoint a receiver for Global.[6] On December 12, 2003, the trial court appointed Charles Gerhardt as receiver for Global. Based on his findings, Gerhardt filed cross-claims on behalf of Global against Lundy alleging fraud and breach of fiduciary duty.[7] In December 2005, a jury trial was held which lasted five days.
At trial, Gerhardt testified about his assessment of Global's financial condition. In an effort to determine whether the business could be operated, he interviewed numerous people, including Lundy, Masson, and Byrne, reviewed Global's books and financial records, and inspected Global's facilities and existing inventory. Gerhardt discovered that Global had no remaining employees and no money in its bank accounts, the existing inventory was not capable of being sold, there was no insurance in place, and the accounts receivable were uncollectible. Based upon all of the information available to him, Gerhardt determined that Global could not be run. He also concluded that Global's problems were the result of Lundy's malfeasance, and not simply bad business judgment. Gerhardt testified that he decided to sue Lundy on behalf of Global because of (1) Lundy's failure to properly document the $75,000 *491 promissory note in Global's financial books reflecting the loan made to him by Global and his subsequent denial in his deposition that he had ever seen or signed the note, (2) Byrne's lawsuit,[8] (3) the inaccurate financial information reflected in Global's accounting software, and (4) the "grossly misleading" financial projections in the private placement memorandum prepared by Lundy.
At the conclusion of trial, the jury rendered a verdict in favor of Masson on his claims of fraud and breach of fiduciary duty, awarding him $985,000 in actual damages and $500,000 in punitive damages. The jury also found in favor of Global on its fraud and breach of fiduciary duty claims, awarding the company $150,000 in actual damages and $175,000 in punitive damages.[9] Lundy filed a motion for new trial, which the trial court subsequently denied. Lundy timely filed this appeal.[10]
II. STANDARD OF REVIEW
A. Legal Sufficiency
When a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which it does not have the burden of proof, that party must demonstrate on appeal that there is no evidence to support the adverse finding. IKON Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 123 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 347 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)). To prevail on a legal sufficiency challenge to a question on which it had the burden of proof, a party must establish that (1) there was no evidence to support the jury's finding and (2) the evidence established a contrary proposition as a matter of law. IKON Office Solutions, 125 S.W.3d at 123; Schwartz v. Pinnacle Commc'ns, 944 S.W.2d 427, 431-32 (Tex.App.-Houston [14th Dist.] 1997, no writ).
We consider all of the evidence in the light most favorable to the jury's verdict, indulging every reasonable inference in favor of the prevailing party. Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 347 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998)). We will sustain a legal insufficiency point when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Price Pfister, 48 S.W.3d at 347 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). If the record contains any evidence of probative force to support *492 the jury's finding, we must overrule the legal insufficiency point. Id. (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997)). The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005). It is the court's charge as it was submitted to the jury that measures the sufficiency of the evidence when the opposing party fails to object to the charge. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000).
B. Factual Sufficiency
When reviewing a challenge to the factual sufficiency of the evidence, we must examine all of the evidence in the record, both supporting and contrary to the judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); IKON Office Solutions, 125 S.W.3d at 123. After considering and weighing all of the evidence, we will sustain the challenge only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Marsh v. Marsh, 949 S.W.2d 734, 739 (Tex.App.-Houston [14th Dist.] 1997, no writ).
III. ANALYSIS
A. Fraud
To recover on an action for fraud, a party must prove that (1) a material representation was made, (2) the representation was false, (3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth and as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.2001) (orig.proceeding); Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998); Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 385 (Tex.App.-Houston [14th Dist.] 2007, no pet.).
1. Masson
a. Cause of Action
In issues one and two, Lundy contends the evidence is legally and factually insufficient to support the jury's finding in favor of Masson on the fraud issue. Specifically, he argues that the evidence does not demonstrate that he misrepresented the status of Byrne's retractor patent or that he failed to disclose certain facts during his job interview with Masson.
The record reveals that Byrne (who is not a party to this suit) obtained a patent on a surgical device called a retractor in 1994. In 1999, he agreed to assign his retractor patent and technology to ORI in exchange for a one-third ownership interest in ORI. The assignment provided that "[i]n the event that ORI has failed to provide marketing and commercialization services regarding retractor devices, including those encompassed by the claims of U.S. and foreign patents owned by Byrne, by the end of a three year period beginning with the Effective Date of this Agreement [February 11, 1999], Byrne and/or Surgical Innovations L.L.P. have the right to request that the Retractor Technology be reassigned to Byrne and/or Surgical Innovations L.L.P. Upon such an event and the request of Byrne and/or Surgical Innovations L.L.P., ORI will execute such a re-assignment document."
At trial, Byrne testified that when he learned from Henry that ORI no longer had funding to continue its operations, he requested that ORI reassign the patent to him pursuant to the agreement. However, despite Byrne's efforts to contact them, *493 neither Henry nor Lundy returned his calls or otherwise communicated with him. Masson testified that when he asked Lundy in 2001 about the status of Byrne's patent, Lundy told him, "No problem. There was a two-year contract that we had, or I did with Byrne, because Mr. Byrne apparently owed-owned the patent for retractors ... [a]nd now that the two-year contract is up, we can do whatever we want with it. It's not a problem." When Byrne contacted a friend who was a sales representative in the orthopedic industry to discuss marketing his retractor, he learned that the product was already being manufactured and sold by Global. Masson testified that the retractor was Global's initial main product.
Based on our review of the record, we conclude the evidence is both legally and factually sufficient to support the jury's fraud finding. First, the evidence shows that Lundy made a false, material misrepresentation to Masson. When Masson asked Lundy about Byrne's retractor, Lundy told him that the patent was "not a problem" and that they could do whatever they wanted to with it. However, as the agreement between Byrne and ORI clearly illustrates, this was not the case. Upon Byrne's request and the expiration of a three-year period, ORI was contractually bound to reassign the patent to Byrne. Further, as evidenced by Masson's testimony, this representation was material because the retractor became Global's initial main product. See Burleson State Bank v. Plunkett, 27 S.W.3d 605, 613 (Tex.App.-Waco 2000, pet. denied) ("Material means a reasonable person would attach importance to and would be induced to act on the information in determining his choice of actions in the transaction in question.").
Second, the evidence supports the jury's findings that Lundy knew of the falsity of this representation, or at least made it recklessly without knowledge of the truth, and intended Masson to rely upon it. Lundy testified that he was involved in the negotiations of the terms of the agreement between ORI and Byrne and that he approved the terms. Byrne testified that Lundy would not return his call or communicate with him after he requested that ORI reassign the patent to him. At the very least, this evidence creates the inference that Lundy acted recklessly when he told Masson that Byrne's patent would not be a problem and that they could do whatever they wanted to with it and that he intended Masson to rely on it. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986) (noting that fraudulent intent is not susceptible to direct proof and must invariably be proven by circumstantial evidence); Solutioneers Consulting, Ltd., 237 S.W.3d at 386.
Finally, the evidence supports the jury's findings as to Masson's reliance on Lundy's misrepresentation and as to the resulting injury. Masson relied on Lundy's assurance that they could use Byrne's retractor technology when he loaned $450,000 in start-up cash to Global and personally guaranteed a $1,000,000 line of credit. Masson also relied on Lundy's misrepresentation when Global began manufacturing its retractor using Byrne's technology and selling its product on the market. Lundy argues that Masson knew about Lundy's dealings with Byrne because Masson had previously met with Byrne to discuss combining ORI, MasTech, and Byrne's company and, therefore, could not have relied upon Lundy's representation regarding Byrne's patent. See Wright v. Sydow, 173 S.W.3d 534, 546 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (concluding that plaintiff's knowledge of alleged misrepresentation precluded reliance on statement as matter of law). Even assuming this is true, it is unclear *494 from the record what precisely Masson allegedly knew about Lundy's "dealings" with Byrne, and it does not demonstrate that Masson knew that Byrne was entitled to reassignment of the patent.
As a result of his reliance, Masson suffered damage when (1) he was sued by Byrne for, among other things, conversion, arising from Global's use of Byrne's patent technology, and ultimately settled the claims against him, (2) he was sued by Bank of America based on his personal guarantee of the $1,000,000 line of credit to Global, on which $200,000 was still outstanding at the time of trial, and (3) he was not repaid any portion of the $450,000 loan to Global. See, e.g., Playboy Enters., Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250, 269-70 (Tex.App.-Corpus Christi 2006, pet. denied) (finding legally sufficient evidence of out-of-pocket damages where, appellee, in reliance on appellant's fraud, expended funds for business activities). The jury awarded Masson out-of-pocket damages in the amount of $400,000 and $100,000 for damage to past credit.
As such, we find the record contains evidence of probative force to support the jury's finding in favor of Masson on the fraud issue and that such a finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule issues one and two.
b. Broad Form Submission
In issue five, Lundy contends that the broad form of the fraud question was defective. He argues that because Masson asserted two distinct factual theoriesi.e., a failure to disclose during the interview process and an affirmative misrepresentation based on Byrne's patentthe jury should have been required to specify the theory upon which it based its answer.
Broad form jury charge submissions are mandated by Texas Rule of Civil Procedure 277 whenever feasible. TEX.R. CIV. P. 277; Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The comments to Texas Pattern Jury Charge ("PJC") 105.1, which is the question submitted in common law fraud cases, state that a broad-form question should be appropriate in most cases involving claims for fraud and should be accompanied by appropriate instructions and definitions as provided under PJC 105.2-.4. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 105.1 (2006). The comments to PJC 105.2 state that "[i]f more than one definition is used, each must be separated by the word or, because a finding of any one type of misrepresentation would support recovery." Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 105.2 (2006).
The fraud question follows verbatim the suggested language found in PJC 105.1-.4. Question No. 1 asks "Did Sean Lundy commit fraud against Marcos Masson?" and then provides instructions and definitions, separated by the word "or," for both intentional misrepresentation (PJC 105.2-.3) and a failure to disclose (PJC 105.4). Contrary to Lundy's assertion, trial courts may combine several species of fraud into one broad form fraud question and are not required to ask the jury to specify the grounds for its answers. See E.B., 802 S.W.2d at 649 (holding trial court is not required to ask jury to specify ground on which it relied to answer question in jury charge); Formosa Plastics Corp., USA v. Presidio Eng'rs & Contractors, Inc., 941 S.W.2d 138, 146 (Tex.App.-Corpus Christi 1995), rev'd on other *495 grounds, 960 S.W.2d 41 (Tex.1998). Lundy's fifth issue is overruled.
c. Jury Question No. 8
In issue three, Lundy contends that the trial court erred in handling the jury's answer to Question No. 8. Specifically, he argues that the court should have instructed the jury of the nature of the problem in writing and sent them back for further deliberations. See Tex.R. Civ. P. 295.[11]
Question No. 8 asked the jury, "What was the amount of Sean Lundy's compensation from Global?" The jury answered "$260,000."[12] When the jury verdict was returned and read in open court, the following exchange between the court and the jury took place:
The Court: Question No. 8, you have this little mark.
The Presiding Juror: Tilde in the front.
The Court: What does that does that mean anything?
The Presiding Juror: We tried to say approximately.
The Court: Well, it cannot be approximately.
The Presiding Juror: Strike the tilde. I need to take off the tilde then.
The Court: Does everybody agree with that?
Jurors: Yes.
The Court: So there is no tilde in there?
Jurors: Right.
The Court: Is that correct?
Jurors: Correct.
The Court: That's an affirmative answer by everyone present. Mr. Stenson, if you would please indicate that by initialing that portion right there, please.
The Presiding Juror: Yes.
The Court: Thank you very much. All right. I ask the presiding juror if this is a unanimous verdict of the jury?
The Presiding Juror: Yes, Your Honor, it is.
Lundy did not object to the jury's answer to Question No. 8 or to the manner in which the court dealt with it before the jury was discharged. He first raised the issue of how the trial court handled the jury's answer in his motion for new trial. Texas Rule of Appellate Procedure 33.1(a) requires a party to present to the trial court a "timely request, objection, or motion." To preserve error, an objection to an incomplete or unresponsive verdict, or conflicting jury findings, must be made before the jury is discharged. See Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex.1986); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 586 (Tex.App.-Corpus Christi 1993, writ denied) (noting that errors which must be brought to trial court's attention before jury is discharged are those that may be cured by further deliberation); Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 109 (Tex.App.-Eastland 1992, writ denied) (concluding trial court must be made aware of alleged error so it can prevent or correct error).[13] Issue three is overruled.
*496 In issue four, Lundy contends that, assuming we find no error in the trial court's handling of the jury's answer to Question No. 8, the finding should nevertheless be set aside because it is immaterial. A question is immaterial when it should not have been submitted, it calls for a finding beyond the province of the jury, such as a question of law, or when it was properly submitted but has been rendered immaterial by other findings. Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex.1999); Spencer v. Eagle Star Ins. Co. of Am. 876 S.W.2d 154, 157 (Tex. 1994). In the charge conference, Lundy's counsel objected that Question No. 8 should not be submitted because "it's an immaterial finding because it doesn't go to any issue here." Similarly, in his appellate brief, Lundy asserts that "a finding as to what Mr. Lundy's compensation from Houston Hand and Global was has no significance whatsoever with regard to the manner that issue was submitted in relation to Dr. Masson's fraud or breach of fiduciary duty causes of action."
Masson presented evidence that Lundy earned a total of $259,615.46 while employed at Global. He also testified that he had relied on Lundy's misrepresentation regarding Byrne's patent, among others, when he agreed to hire Lundy and pay him an annual salary of $200,000. Contrary to Lundy's assertion, we find that Question No. 8 was properly submitted as it related to Masson's fraud claim and, therefore, was not immaterial. Issue four is overruled.
d. Punitive Damages Award
(i) Sufficiency of the Evidence
In issues six and seven, Lundy contends that the evidence is insufficient to support the $500,000 in punitive damages awarded to Masson on his fraud claim. Lundy argues that the award should be set aside because (1) there is no evidence to support it, and (2) it is excessive under the circumstances.[14]
To award exemplary damages, the jury had to find by clear and convincing evidence that the harm to Masson resulted from malice or fraud. See TEX. CIV. PRAC. & REM.CODE § 41.003 (Vernon Supp.2006). A finding of intent to harm or conscious indifference to the rights of others will support an award of exemplary damages. Spoljaric, 708 S.W.2d at 436; Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex.1983). For a finding of malice to be sustained on appeal, legally sufficient evidence must show both that the act was likely to result in serious harm and that the defendant was consciously indifferent to the risk of harm. KPH Consolidation, Inc. v. Romero, 102 S.W.3d 135, 145 (Tex. App.-Houston [14th Dist.] 2003), aff'd, 166 S.W.3d 212 (Tex.2005). Evidence of malice is legally sufficient if, considered as a whole in the light most favorable to the prevailing party, it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.
Question No. 3 of the Jury Charge defines malice as "a specific intent by Sean Lundy to cause substantial injury to Marcos Masson; or an act or omission by Sean Lundy, (i) which when viewed objectively *497 from the standpoint of Sean Lundy at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (ii) of which Sean Lundy has actual, subjective awareness of the risk involved but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others."[15] Question 3 also properly included fraud as a ground for recovery of exemplary damages and accompanying definitions. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 110.33 (2006).
Based on our review of the record, we conclude that there is legally sufficient evidence that Lundy acted in a manner involving an extreme degree of risk, namely, by deceiving Masson about the status of Byrne's patent. As a shareholder in ORI, Lundy participated in negotiating the terms of the agreement between Byrne and ORI and approved them and, thus, was aware that Byrne was legally entitled to request the reassignment of his patent from ORI. Byrne's testimony that Lundy refused to return his calls after he requested that ORI reassign the patent to him also supports the argument that Lundy was well aware of the risk of potential liability to Masson and financial impact to Global's sales but nevertheless used Byrne's retractor technology with conscious indifference to the rights and welfare of Masson. Further, after reviewing the evidence in the Byrne litigation, Gerhardt concluded that malfeasance had occurred because "the intellectual property issues were not disclosed ... [t]hey weren't really fully discussed with the doctors." This was legally sufficient evidence from which the jury could reasonably infer that Lundy acted with malice thereby causing injury to Masson. See Burleson, 27 S.W.3d at 618-19 (finding evidence of malice where bank's loan officer, who understood relative placement of risk of loss between parties, failed to explain true nature and terms of construction loan to plaintiff contractor).
Lundy also argues that the award of exemplary damages to Masson is excessive under the circumstances. The jury awarded Masson actual damages in the amount of $500,000 based on his fraud claim and awarded him $500,000 in punitive damages. In support of his argument, Lundy simply states that "an award of twice the amount of actual damages under the circumstances is not a reasonable relationship [to the actual damage award]."[16]
*498 Assuming that Lundy is challenging the constitutionality of the jury's findings of exemplary damages, we review the award de novo to ensure that exemplary damages are not "grossly disproportional" to the gravity of the defendant's conduct. See Bunton v. Bentley, 153 S.W.3d 50, 54 (Tex.2004) (citing Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424, 434-36, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)). We consider (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties awarded or imposed in other comparable cases. Id. (citing State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)). The most important of these considerations is the degree of reprehensibility of the defendant's misconduct. State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). To determine the degree of reprehensibility, we evaluate whether (1) the harm was physical or economic, (2) the conduct constituted an indifference to or reckless disregard of the health or safety of others, (3) the target of the conduct was financially vulnerable, (4) the conduct was a repeated or isolated event, and (5) the harm was the result of intentional malice, trickery, deceit or mere accident. Id.[17]
First, we consider the degree of reprehensibility of Lundy's conduct. There is no evidence that the harm to Masson was physical or that the harm showed a reckless disregard or indifference for Masson's health or safety or the health or safety of others. While Masson was not an overly financially vulnerable target, he invested significantly in Global's start-up with funds from his surgical practice as well as with personal resources and personally guaranteed a substantial line of credit. Further, as we have already noted, the evidence supports the jury's finding that Lundy deceived Masson by telling him that Byrne's patent was "not a problem" and "we can do whatever we want with it." While these statements were made only once, the deceit arguably continued as Global began manufacturing and selling its retractor using Byrne's technology.
We next consider the disparity between the actual or potential harm suffered by Masson and the punitive damages award. The United States Supreme Court has indicated that awards of exemplary damages that are less than four times the actual damages are well below the line of constitutional impropriety. Campbell, 538 U.S. at 425, 123 S.Ct. 1513 (concluding that single-digit multipliers are more likely to comport with due process while still achieving goals of deterrence and retribution, than awards with ratios in range of 500 to 1). We note that the ratio between the actual damages awarded to Masson on his fraud claim and the award of exemplary damages is a 1 to 1 ratio. In light of the fact that the jury could have awarded Masson more than $1 million in exemplary damages, we find the award of $500,000 to be reasonable. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(b);[18]Springs Window *499 Fashions Division, Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 891 (Tex.App.-Austin 2006, pet. granted, judgm't vacated w.r.m.) (finding award of exemplary damages of $2,090,000 reasonable where civil practice and remedies code would permit award of more than $2.5 million). We conclude that the award of exemplary damages against Lundy is not unconstitutionally excessive. Issues six and seven are overruled.
(ii) Jury Charge
In issue eight, Lundy contends the punitive damages question and instructions were defective. Specifically, he argues that they were improper because (1) the question did not provide for a finding regarding the two theories of fraud or malice, (2) the question gave an improper definition of malice, and (3) the instruction allowed the jury to consider Lundy's net worth despite no evidence of net worth being submitted to the jury.
Lundy first argues that because Masson's fraud claim was based on two factual theories, the punitive damages question submitted to the jury should have consisted of three separate possibilities: fraud based on Lundy's job interview, fraud based on Byrne's patent, and malice. PJC 110.33the predicate question and instruction on an award of exemplary damagesasks "Do you find by clear and convincing evidence that the harm to [plaintiff] resulted from [malice or fraud]?" Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 110.33 (2006). It then provides definitions for "clear and convincing evidence" and "malice" and concludes with the following parenthetical: "[and/or use appropriate definition for "fraud"; see comment below, "Fraud as a ground for exemplary damages."]." Id. Question 3 of the jury charge mirrors PJC 110.33 and asks "Do you find by clear and convincing evidence that the harm to Marcos Masson resulted from malice or fraud?" It then provides definitions for malice and fraud.
In support of his argument, Lundy cites to Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex.2000) and Harris County v. Smith, 96 S.W.3d 230 (Tex.2002). Lundy's reliance on these cases is misplaced. In Casteel, the Texas Supreme Court held that "[w]hen a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant's objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury's finding." 22 S.W.3d at 389. In Smith, the Court applied its reasoning in Casteel to a jury charge which mixed valid and invalid elements of damages in a single broad-form submission. 96 S.W.3d at 233-34 (holding trial court erred in overruling timely and specific objection to the charge, which mixed valid and invalid elements of damages in a single broad-form submission, and that such error was harmful because it prevented appellate court from determining whether jury based its verdict on improperly submitted invalid element of damage). The court opined that submitting separate questions on theories of liability and elements of damage might avoid a finding of harmful error if the appellate court finds that one or more, but not all, theories or *500 elements lack legal or evidentiary support. See id. at 235.
Here, however, Lundy is not complaining that the jury charge contains an invalid theory of liability or invalid elements of damages. Rather, he argues that the jury should have been required to specify the basis for its award of punitive damages. Texas law contains no such requirement. See Texas Dep't of Human Servs., 802 S.W.2d at 649 (holding trial court is not required to ask jury to specify ground on which it relied to answer question in jury charge).[19]
Lundy next contends that the malice definition in Question 3 was improperly expanded in violation of section 41.001(7) of the Civil Practice and Remedies Code. Lundy makes this same assertion in issues six and seven. Having previously addressed this argument and found it to be without merit, we need not do so again here.
Lundy also argues that the punitive damages instruction was defective because it allowed the jury to consider his net worth although no such evidence was submitted. A review of the record reveals that Lundy earned $100,000 a year while at Knowledge, Inc. and "had a deal where over a three-year period I got what amounted to about almost $300,000 a year in stock options." At Global, he earned $200,000 a year and had a 20% ownership interest in the company. At the time of trial, Lundy ran Henry's solo practice and earned $200,000. This constitutes some evidence of Lundy's net worth that the jury could have considered in answering the punitive damages question. Issue eight is overruled.
2. Global
In issues fourteen and fifteen, Lundy contends the evidence is legally and factually insufficient to support the jury's finding in favor of Global on the fraud issue. The jury found that Lundy's actions damaged Global's business operations and awarded Global $100,000 for waste of inventory.
In support of the fraud finding, Global argues that Lundy failed and refused to (1) keep Global's owners, shareholders, and principals informed of Global's financial state, (2) disclose that he neglected to properly store and maintain Global's inventory in sterile condition, (3) properly record certain liabilities of Global thereby manipulating the financial books and records of the company, (4) correctly represent certain financial projections in Global's private placement memorandum, (5) disclose that Lundy unilaterally ceased work at Global and vacated the premises to perform services at Houston Hand, (6) disclose that Lundy did not have experience in international outsourcing, (7) properly record and account for a $75,000 promissory note that he owed to Global and then subsequently lied about its existence, (8) disclose that he did not have any experience managing payroll functions, (9) disclose that Lundy intended to defraud Byrne by converting his intellectual property, (10) disclose that he had no experience setting up a manufacturing process, (11) disclose that ORI had failed, (12) disclose that his prior job was as a photographer, not a Wall Street professional, as he had represented to Masson, and (13) disclose that he had been sued by his father-in-law in a prior business venture.
The jury found in favor of Global on its fraud claim. In Question No. 14, the charge asked the jury to consider the following elements in awarding damages: *501 "(1) Global's investment and cost to develop and market the Magellan Retractor Device. (2) Money advanced to Sean Lundy to purchase his house. (3) Damage to Global's business operations by waste of inventory." The jury did not award any damages for the first two elements and awarded $100,000 in damages for waste of inventory. Of the allegations enumerated above, Global's contention that Lundy failed to disclose that he had neglected to properly store and maintain Global's inventory in sterile condition appears to be the basis upon which the jury based its damages award. However, we do not find that the evidence supports such a finding.
In examining the circumstances surrounding this allegation, we note that the entity concerned here is a corporation. "A corporation can act and acquire knowledge only through its agents." Poth v. Small, Craig & Werkenthin, L.L.P., 967 S.W.2d 511, 515 (Tex. App.-Austin 1998, pet. denied) (citing Hirsch v. Texas Lawyers' Ins. Exch., 808 S.W.2d 561, 563 (Tex.App.-El Paso 1991, writ denied)). "Knowledge held by corporate officers or directors may be imputed to the corporation itself." Id. (citing Hirsch, 808 S.W.2d at 563). Burks testified that, in 2003, she learned from Steritec that Global's original contract for sterilization had expired and that Global would have to complete a sterilization re-validation before Steritec would resume sterilization of its products.[20] At that time, one of Global's products was in quarantine awaiting sterilization. Burks testified that when she told Lundy about the issue, he would not authorize the re-validation. Consequently, neither the product in quarantine nor subsequent products were sterilized. Thus, as an officer of Global, Burks was aware that some of Global's inventory was not sterilized and, without a re-validation, future products would not be sterilized. As such, Lundy cannot be held liable for failing to disclose a fact the company knew through one of its officers. See id. at 515.[21]
We conclude the evidence is legally and factually insufficient to support a finding of fraud as to Global. Issues fourteen and fifteen are sustained. In light of our disposition of these issues, issues sixteen through eighteenrelated to the punitive damages awarded to Global on its fraud cause of actionare moot.
B. Breach of Fiduciary Duty
The elements of a breach of fiduciary duty claim are: (1) a fiduciary relationship between the plaintiff and defendant, (2) a breach by the defendant of his fiduciary duty to the plaintiff, and (3) an injury to the plaintiff or benefit to the defendant as a result of the defendant's breach. See Jones v. Blume, 196 S.W.3d 440, 447 (Tex.App.-Dallas 2006, pet. denied); Punts v. Wilson, 137 S.W.3d 889, 891 (Tex.App.-Texarkana 2004, no pet.). Due to its extraordinary nature, the law does not recognize a fiduciary relationship lightly. See Willis v. Donnelly, 199 S.W.3d 262, 278 (Tex.2006); Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). Whether such a duty exists depends on the circumstances. Hoggett, 971 S.W.2d at 488.
A fiduciary relationship may arise from formal and informal relationships and may be created by contract. *502 Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 698 (Tex.App.-Fort Worth 2006, pet. denied). Fiduciary duties arise as a matter of law in certain formal relationships, including attorney-client and trustee relationships. Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex.2005). In contrast, an informal fiduciary duty may arise from a moral, social, domestic, or purely personal relationship of trust and confidence. Id.; Cotten, 187 S.W.3d at 698. Such a confidential relationship exists where influence has been acquired and abused and confidence has been extended and betrayed. Cotten, 187 S.W.3d at 698. To impose an informal fiduciary duty, the relationship of trust and confidence must exist prior to, and apart from, the agreement that is the basis of the suit. Id. The existence of a confidential relationship is ordinarily a question of fact for the jury. Id.
1. Masson
a. Cause of Action
In issues nine and ten, Lundy contends the evidence is legally and factually insufficient to support the breach of fiduciary findings against him in favor of Masson and Global. Specifically, Lundy argues that the evidence is insufficient to show (1) the existence of a fiduciary relationship, (2) assuming a duty existed, a breach of duty, and (3) a transaction between Lundy and Masson.
(i) Duty
Lundy argues that, absent evidence of a formal relationship, Masson must show that an informal confidential relationship existed between them.[22] He concludes
[h]owever, this is impossible because to impose an informal fiduciary duty in a business transaction, the special relationship of trust and confidence must exist prior to, and apart from, the agreement made the basis of the suit. In other words, there must be a preexisting special relationship of trust and confidence which is betrayed in later dealings, and in short, there is no fiduciary relationship as a matter of law that predates the contract between the parties.
Although Lundy frames the issue as a challenge to both the legal and factual sufficiency of the evidence in his brief, the entirety of his argument, as demonstrated above, is that there is no evidence of a prior confidential relationship. Therefore, we limit our review to determine the legal sufficiency of the evidence. See San Antonio Props., L.P. v. PSRA Invs., Inc., 255 S.W.3d 255, 259 (Tex.App.-San Antonio 2008, no pet. h.) (noting that although appellant's brief stated issue as legal and factual sufficiency challenge, substance of argument was one of "no evidence" requiring legal sufficiency review only).
Question No. 5 of the jury charge asked, "Did a relationship of trust and confidence exist between Sean Lundy and Marcos Masson?" The question instructed the jury that "[a] relationship of trust and confidence existed if Marcos Masson justifiably placed trust and confidence in Sean Lundy to act in Marcos Masson's best interest. Marcos Masson's subjective trust and feelings alone do not justify transforming arm's-length dealings into a relationship of trust and confidence." However, the question did not include an instruction that the relationship had to exist prior to, and separate from, the agreement made the basis of the suit. A review of the record further reveals that Lundy did not tender to the trial court an *503 alternative written instruction informing the jury that a prior and separate relationship is required or otherwise object to the omission of such an instruction.[23] As such, he failed to preserve his argument that there must be evidence of a pre-existing relationship. See Tex.R. Civ. P. 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment."); W. Reserve Life Assur. Co. v. Graben, 233 S.W.3d 360, 373 (Tex.App.-Fort Worth 2007, no pet.) (holding appellants waived argument that prior and separate relationship must exist to impose informal relationship where appellants failed to provide trial court with alternative written instruction containing such language); Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 602-03 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (concluding appellant does not preserve issue of omitted instruction or question for appellate review unless appellant tenders written request to trial court for submission of question or instruction in "substantially correct wording").
Other than asserting that "there is no fiduciary relationship as a matter of law that predates the contract between the parties," Lundy offers no argument or analysis whatsoever explaining why the evidence of the parties' relationship and interactions is insufficient to give rise to an informal fiduciary duty. Where a party fails to support an issue with argument, he waives any error on appeal. Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex.App.-Houston [1st Dist.] 1995, no writ) ("[Appellant] does not provide us with argument that is sufficient to make its appellate complaint viable, and we will not perform an independent review of the record and applicable law to determine whether the error complained of occurred."); see also Bankhead v. Maddox, 135 S.W.3d 162, 163-64 (Tex.App.-Tyler 2004, no pet.) ("In its review of a civil matter, an appellate court has no discretion to fabricate an issue not raised in the appellant's brief. . . ."). Moreover, he cites to no authority nor directs us to any relevant facts to support a sufficiency contention. A party's failure to cite any authority to support its contention on appeal itself waives the contention. Cowins, 903 S.W.2d at 886. We are not required to do the job of the advocate. Id. As such, Lundy has waived this issue.
(ii) Breach
Lundy next contends that, assuming a fiduciary duty existed, there is no evidence that he breached his duty to Masson. Question No. 6, which mirrors PJC 104.2, instructed the jury that to prove that he complied with his duty, Lundy had to show: (1) the transactions in question were fair and equitable to Masson, (2) he made reasonable use of the confidence that Masson placed in him, (3) he acted in the utmost good faith and exercised the most scrupulous honesty toward Masson, (4) he placed the interests of Masson before his own, did not use the advantage of his position to gain any benefit for himself at the expense of Masson, and did not place himself in any position where his self-interest might conflict with his obligations as a fiduciary, and (5) he fully and fairly *504 disclosed all important information to Masson concerning their transactions.
A review of the record reveals some evidence that Lundy did not make reasonable use of the confidence that Masson placed in him and that he did not act in the utmost good faith and exercise the most scrupulous honesty toward Masson. Masson testified that Lundy persuaded him to secure a $1 million line of credit to "grow the company," for which Masson was later held liable. Based on Lundy's recommendation, Masson loaned $450,000 of his own money to Global, which was never repaid notwithstanding Lundy's assurances to the contrary. Masson also testified that Lundy and Henry transferred approximately $700,000 from Houston Hand to Global without Masson's knowledge or approval. Moreover, Lundy was dishonest with Masson when he told him that Byrne's patent was "no problem."
The testimony of Masson, Reichek, and Burks demonstrate that Lundy failed to fully and fairly disclose important information to Masson. Masson testified that Lundy routinely failed to provide him with the company's financial information or access to financial records, despite Masson's requests. On cross-examination, Lundy admitted that he did not regularly provide Masson with written operating or sales reports. Reichek, Global's controller, also testified that Lundy forbade her from providing Masson with any financial information, and that if she continued to do so, she would lose her job. Burks also testified that when she told Lundy that Masson had asked her for financial information, Lundy replied that Masson should ask him, not her, for the information. Burks further testified that Masson had told her that when he had asked Lundy to provide him with financial information on several occasions, Lundy was not forthcoming.[24]
Lundy also contends that because the jury charge does not refer to any particular transaction in which he supposedly breached his duty to Masson, Masson's breach of duty claim fails. Lundy cites no authority to support his argument, nor are we are of any. As such, he has waived this argument. See Cowins, 903 S.W.2d at 886.
Anything more than scintilla of evidence is legally sufficient to support the jury's finding that Lundy breached his fiduciary duty to Masson. See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); W. Reserve Life Assur. Co., 233 S.W.3d at 375. We find that the foregoing constitutes more than a scintilla of evidence that Lundy breached his duty to Masson. Further, we conclude that the jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We therefore hold that the evidence was legally and factually sufficient to support the jury's verdict. Issues nine and ten are overruled.
b. Jury Charge
In issues eleven and twelve, Lundy contends that the breach of fiduciary duty submission in the jury charge was defective as to Masson on two grounds. First, the burden to prove a breach of fiduciary duty was improperly placed on Lundy. Second, the charge gave no guidance to the jury as to which transaction he supposedly breached his duty.
*505 Lundy argues that Masson had the burden to prove that Lundy breached his fiduciary duty to him, and that Question No. 6 improperly placed the burden on Lundy to prove he complied with his duty.[25] This argument is misplaced. Texas courts apply a rebuttable presumption of unfairness to transactions between a fiduciary and a party to whom he owes a duty of disclosure. Lee v. Hasson, No. 14-05-00004-CV, ___ S.W.3d ___, ___, 2007 WL 236899, at *15 (Tex.App.-Houston [14th Dist.] Jan. 30, 2007, pet. denied); Collins v. Smith, 53 S.W.3d 832, 840 (Tex. App.-Houston [1st Dist.] 2001, no pet.). Thus, the profiting fiduciary bears the burden of showing the fairness of the transactions. See Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508-09 (Tex.1980); Lee, ___ S.W.3d at ___, 2007 WL 236899, at *15; Collins, 53 S.W.3d at 840. The trial court did not misplace the burden of proof.[26] Issue eleven is overrruled.
Lundy also argues that the breach of fiduciary duty submission was defective because it gave no guidance to the jury as to which transaction he supposedly breached his duty. Because we previously found that Lundy waived this argument, we need not address it again here. Issue twelve is overruled.
c. Election of Remedies
In issue thirteen, Lundy asserts that Masson should have been required to elect between damages awarded on his fraud and breach of fiduciary duty causes of action. He argues that because the facts asserted to prove fraud are the same facts asserted to prove breach of fiduciary duty, the trial court should have required Masson to elect between the damages and erred in entering judgment on both awards.
The single recovery, or one satisfaction rule, is a rule of general acceptance that an injured party is entitled to one satisfaction for sustained injuries. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991). If a plaintiff pleads alternate theories of liability, a judgment awarding damages on each alternate theory may be upheld if the theories depend on separate and distinct injuries and if separate and distinct damages findings are made as to each theory. See Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex.1987). However, a party who seeks redress under two or more theories of recovery for a single wrong must elect, before the judgment is rendered, under which remedy he wishes the court to enter a judgment. Star Houston, Inc. v. Shevack, 886 S.W.2d 414, 422 (Tex.App.-Houston [1st Dist.] 1994), writ denied per curiam, 907 S.W.2d 452 (Tex.1995); American Baler Co. v. SRS *506 Sys., Inc., 748 S.W.2d 243, 246 (Tex.App.-Houston [1st Dist.] 1988, writ denied). But where the prevailing party fails to make that election, the trial court should use the findings affording the greater recovery and render judgment accordingly. Birchfield, 747 S.W.2d at 367. If the trial court fails to do so, the appellate court will reform the trial court's judgment to effect such an election. Star Houston, 886 S.W.2d at 423; American Baler Co., 748 S.W.2d at 246, 250.
A review of the record reveals that Masson did not attempt to distinguish between the damages he suffered as a result of Lundy's fraud and breach of fiduciary duty. Rather, he presented evidence of his damages generally, focusing in particular on his $450,000 loan to Global, the $1 million line of credit which he personally guaranteed and for which he was later sued, and Houston Hand's numerous cash loans to Global totaling over $670,000.
Further, Masson submitted identical damage questions after both liability questions in the jury charge. The jury was instructed to consider the following elements of damages for fraud and breach of fiduciary duty: (1) Masson's out-of-pocket loans to Global and (2) damage to Masson's credit reputation sustained in the past, and in reasonable probability, he will sustain in the future as a result of his guarantee of the Bank of America loan. See Madison v. Williamson, 241 S.W.3d 145, 159 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (holding trial court properly concluded plaintiff's claims resulted in single, indivisible injury where plaintiff did not attempt to distinguish between damages suffered and submitted identical damage questions after each liability question in jury charge); Household Credit Svcs., Inc. v. Driscol, 989 S.W.2d 72, 80 (Tex. App.-El Paso 1998, pet. denied). Moreover, the fact that the jury awarded different amounts under the two theories does not preclude application of the doctrine. The one satisfaction rule may limit a plaintiff's recovery even where the amounts awarded vary from claim to claim. See Driscol, 989 S.W.2d at 80.
We also find that Masson's fraud and breach of fiduciary duty claims are based on the same acts or omissions. Throughout the record and in appellees' brief, Masson refers to the same acts and omissions by Lundy as evidence that Lundy committed fraud and breach of fiduciary duty. See Spethmann v. Anderson, 171 S.W.3d 680, 694 (Tex.App.-Dallas 2005, no pet.) (concluding trial court should have required plaintiff to elect between awards of damages against defendant for fraud and breach of fiduciary duty where formula for calculating damages was same for both theories and both involved same conduct). Moreover, in closing arguments, Masson's counsel stated, "You're asked two different questions, one about fraud, one about breach of fiduciary duty. There are just two different theories of liability. The same evidence really generally supports both, and you they aren't dependent on each other." (emphasis added).
Accordingly, we sustain issue thirteen and find that Masson may recover on only one of his theories of recovery. When, as in this case, the plaintiff establishes separate theories of liability based on the same facts and fails to elect between more than one recovery, the appellate court should render judgment on the finding affording the greatest recovery. See Star Houston, 886 S.W.2d at 423; Murphy v. Seabarge, Ltd., 868 S.W.2d 929, 938 (Tex.App.-Houston [14th Dist.] 1994, writ denied). We hold that the trial court should have applied the election of remedies rule and limited Masson's recovery to the damages awarded for his fraud claim because the *507 fraud award afforded the greatest recovery. Issue thirteen is sustained.
2. Global
a. Cause of Action
In issues nineteen and twenty, Lundy contends that the evidence is legally and factually insufficient to support the jury's verdict in favor of Global on its breach of fiduciary duty claim.
(i) Duty
In his Supplemental Brief, Lundy contends that we must determine what duties, if any, a non-managing member owes to a managing member or to the LLC itself.[27] In support of his contention, Lundy asserts that "[p]art of the appellant's complaint in this appeal is that the jury was instructed that the appellant in fact had a fiduciary duty." He then directs us to the arguments raised in his Original Brief under issues eleven, twelve, twenty-one, and twenty-two, which address the jury submissions on the breach of fiduciary duty claims. However, a close examination of these arguments reveals that they focus solely on whether (1) there was evidence of a breach, not a duty, (2) appellees were required to identify the particular transaction at issue, and (3) the burden of proof on the breach of fiduciary duty claims was improperly shifted to Lundy. In short, Lundy appears to argue, for the first time in this appeal, that the trial court erred in instructing the jury that appellant had a fiduciary duty to Global as a matter of law rather than submitting a jury question.
To argue on appeal that the trial court erred in instructing the jury that a fiduciary duty existed because it is a fact question, an appellant has to have objected to the charge on that ground, or at least in a manner sufficient to alert the trial court that the existence of a fiduciary relationship was a fact question for the jury. See State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (concluding test is whether party made trial court aware of complaint, timely and plainly, and obtained ruling). Lundy's counsel objected to Question No. 9"Did Sean Lundy comply with his fiduciary duty to Global?"as follows: "Regarding Question No. 9, there is no evidence to the only way that you can have a breach of fiduciary duty with respect to a corporation is to allege a breach of a duty of obedience, a breach of a duty of loyalty, or a breach of duty of care. Global has never specified which of these duties it's talking about in its pleadings, nor in its evidence introduced at trial. They didn't introduce any evidence of the breach of fiduciary duty . . . ." (emphasis added). His counsel's objection is aimed solely at the question of a breach, not a duty. It is also worth noting that in his objection to Question No. 5"Did a relationship of trust and confidence exist between Lundy and Masson?"Lundy's counsel argued that "the only evidence that was introduced in the record regarding any fiduciary duty was Sean Lundy Sean Lundy's fiduciary duty to the corporation. There was no evidence at all of a fiduciary duty from Sean Lundy running to Dr. Masson" (emphasis added). Thus, not only did Lundy not object to the trial court's instruction that Lundy owed a fiduciary duty to Global, he also acknowledged that there was some evidence presented that Lundy owed a duty to Global. See Hazlewood Patterson Co. v. Hancock, No. 10-03-00274-CV, 2004 WL 2903861, at *5 (Tex.App.-Waco Dec. 15, 2004, pet. denied) (mem.op.) (holding *508 issue whether trial court's instruction that defendants owed plaintiffs fiduciary duty was error was not preserved for appeal where defendants objected only on no evidence ground rather than objecting to instruction itself).[28] As such, Lundy failed to preserve error on this ground.
(ii) Breach
In his Original Brief, Lundy claims that Global's claim was based solely on a breach of the duty of loyalty and the evidence is insufficient to support a finding of a breach of that duty. He also argues that the jury's finding of a breach fails because Global did not specify the transaction or corporate opportunity Lundy allegedly usurped.
Question No. 6 of the charge instructed the jury as follows:
As an officer of Global, Sean Lundy owed the company a fiduciary duty. To prove he complied with his duty, Sean Lundy must show:
a. the transactions in question were fair and equitable to Global;
b. Sean Lundy made reasonable use of the confidence that Global placed in him;
c. Sean Lundy acted in the utmost good faith and exercised the most scrupulous honesty toward Global;
d. Sean Lundy placed the interests of Global before his own, did not use the advantage of his position to gain any benefit for himself at the expense of Global, and did not place himself in any position where his self-interest might conflict with his obligations as a fiduciary; and
e. Sean Lundy fully and fairly disclosed all important information to Global concerning the transactions.
A review of the record reveals ample evidence to support the jury's findings that Lundy breached his duties to Global. Gerhardt testified that Global could no longer be run due to the problems caused by Lundy's malfeasance. Global's main initial product that it manufactured, marketed, and sold was based on retractor technology that belonged to Byrne. Byrne later sued Global, along with Masson, for among other things, conversion, arising from Global's use of Byrne's patent technology. The evidence shows that Lundy manipulated the company's books by not properly recording certain liabilities which adversely affected decision-making at the company. Gerhardt also testified that certain financial projections in the private placement memorandum prepared by Lundy *509 and issued to outside investors were "grossly misleading." In late 2002, Lundy ceased working at Global for approximately ten months to "clean the books" that were supposedly left in a mess by Reichek. Gerhardt testified that once Lundy left Global, "[t]he sales really dropped. There were no sales." In May 2003, Lundy executed a full-time employment agreement with Houston Hand although he was supposed to be working full-time as Global's President and CEO. Lundy failed to properly record and account for the $75,000 promissory note he owed to Global. There was also evidence that he failed to keep Global's owners and officers informed of Global's financial condition.
In support of his argument that the evidence is insufficient to support a finding that he breached his duty to Global, Lundy contends that the jury charge does not identify which transaction he supposedly took advantage of. He then states that "[t]he breach stated in Global's pleadings, even if supported by the evidence, is not, as a matter of law, an adequate basis to sustain a breach of loyalty finding. This is because, as alleged in Global's pleadings, `cooking the books,' and `false private placement,' even if true, was, according to Global's pleadings, intended to help, not hurt Global." This argument is without merit. Lundy cites no authority to support his argument that the charge submission must isolate a particular transaction, nor are we aware of any.[29] As such, this argument is waived. Moreover, we find nothing in the record to support Lundy's assertion that Global considered his falsifying of its financial records and inaccurate private placement memorandum as an attempt "to help, not hurt" Global.[30]
We conclude that there is more than a scintilla of evidence to support the jury's finding that Lundy breached his fiduciary duty to Global. We also conclude that the jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we hold that the evidence is legally and factually sufficient to support the jury's verdict. We overrule issues nineteen and twenty.
b. Jury Charge
In issue twenty-one, Lundy contends that the form of Global's breach of fiduciary claim was defective because it should have identified the particular transaction in question, and then required the jury to determine whether the transaction was fair. As previously discussed, Lundy waived this argument and, therefore, we do not address it again here. Issue twenty-one is overruled.
In issue twenty-two, Lundy contends that the jury charge form of Global's breach of fiduciary claim improperly shifted the burden of proof to Lundy. However, as discussed above, a rebuttable presumption of unfairness is applied to transactions between a fiduciary and a party to whom he owes a duty of disclosure. *510 Lee, ___ S.W.3d at ___, 2007 WL 236899, at *15; Collins, 53 S.W.3d at 840. Thus, the profiting fiduciary has the burden of demonstrating the fairness of the transactions. See Tex. Bank & Trust Co., 595 S.W.2d at 508-09; Lee, ___ S.W.3d at ___, 2007 WL 236899, at *15.[31] We overrule issue twenty-two.
c. Election of Remedies
In issue twenty-three, Lundy asserts that Global should have been required to elect between the damages awarded for its fraud and breach of fiduciary duty causes of action because the same facts underlie both theories. Because we held above that there is insufficient evidence to support the fraud finding in favor of Global, there is no election to be made. Issue twenty-three is overruled.
IV. CONCLUSION
We affirm the trial court's judgment in favor of Masson on his fraud and breach of fiduciary duty claims. However, we apply the election of remedies rule and reform the judgment to reflect that Masson's recovery is limited to the damages awarded for his fraud claim and affirm the judgment as reformed. We affirm the trial court's judgment in favor of Global on its breach of fiduciary duty claim. We reverse and render that portion of the judgment in favor of Global on its fraud claim.
NOTES
[1] At the time that Griggs was a partner, Houston Hand was known as Houston Hand and Microsurgical Center. The practice ceased its operations in the summer of 2003.
[2] During this time, Lundy and his family lived in North Carolina. Lundy's father-in-law, who had provided most of the funding for ORI, sued Lundy for fraud stemming from the loan.
[3] An L.L.C. is composed of members as opposed to shareholders, as in a corporation. See TEX. BUS. ORG.CODE ANN. § 101.101 (Vernon Supp.2005); T.R.Q. Captain's Landing L.P. v. Galveston Cent. Appraisal Dist., 212 S.W.3d 726, 741 n. 3 (Tex.App.-Houston [1st Dist.] 2006, pet. granted). Section 6.02C of Global's Regulations provides that the manager may delegate authority and duties to other managers, as well as assign titles, including the title of President.
[4] Henry signed the employment agreement on behalf of Houston Hand in his capacity as Managing Partner but never informed Masson of the agreement. Exhibit A to the agreement reflects Lundy's duties and responsibilities at Houston Hand and lists among them, "Perform duties as the President of Global Orthopedic Solutions."
[5] Bank of America subsequently sued Masson and Henry based upon their personal guarantees.
[6] Masson voluntarily non-suited his conversion claim at the conclusion of plaintiffs' case-in-chief.
[7] The other causes of action for conversion and theft were subsequently dismissed.
[8] Byrne filed suit against Global, Masson, Henry, Lundy, and John Egbert, Global's patent attorney, alleging claims of negligence, gross negligence, theft of trade secrets, conversion, breach of fiduciary duties, and conspiracy. On March 30, 2005, Byrne, Global, and Masson settled the claims against Global and Masson.
[9] In its final judgment, the trial court reduced the punitive damages award to Global to $100,000.
[10] In their brief, appellees object that appellant's brief exceeds the fifty page limit set forth in Texas Rule of Appellate Procedure 38.4. However, because appellant filed a motion for leave to extend the page limit, which we subsequently granted, the brief is not in violation of Rule 38.4.
[11] Rule 295 states, in relevant part, "If [the purported verdict] is incomplete, or not responsive to the questions contained in the court's charge, or the answers to the questions are in conflict, the court shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations."
[12] Lundy's employment records, which were admitted as an exhibit, reflect that his gross pay from January 2002 to August 2003 totaled $259,615.46.
[13] While it is arguable whether the jury's answer to Question No. 8 constitutes an incomplete or unresponsive verdict, or conflicting jury findings, as contemplated by Texas Rule of Civil Procedure 295, the rationale requiring an objection before the jury is discharged i.e., to permit the trial court to prevent or correct the errorapplies equally here.
[14] In his "Statement of Issues," Lundy frames issues six and seven as challenges to the legal and factual sufficiency of the evidence supporting the punitive damage award. However, in his brief, he argues only that there is no evidence, i.e. legally insufficient evidence, and offers no argument challenging the factual sufficiency. Thus, we treat his evidentiary challenge as one to the legal sufficiency only.
[15] Lundy contends that the second definition of malice in Question No. 3 was improper and not authorized by statute. His argument is without merit. Question No. 3 is based on PJC 110.33 which is the predicate question and instructions on an award of exemplary damages. PJC 110.33 is divided into parts A and B. PJC 110.33A, which includes the two definitions of malice as they appear in Question No. 3, applies to causes of action filed before September 1, 2003. PJC 110.33B, which consists solely of the first definition of malice, applies to actions filed on or after September 1, 2003. See Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 110.33 (2006). Masson filed his lawsuit on August 13, 2003, and, therefore, the definition of malice in Question No. 3 was proper. See Dillard Dep't Stores, Inc. v. Silva, 148 S.W.3d 370, 373 (Tex.2004) (per curiam) (applying two-part statutory definition of malice to case tried prior to 2003 amendment); see also TEX. PRAC. & CIV. REM. CODE ANN. § 41.001(11) (recodification of subpart (B) of malice definition as definition of "gross negligence").
[16] Contrary to Lundy's assertion, the jury's award of $500,000 in punitive damages to Masson is equal to the amount of actual damages awarded to Masson on his fraud claim.
[17] We note that the factors enunciated in Alamo National Bank v. Kraus, which provide the framework for a factual sufficiency review of exemplary damages, are considerations encompassed within these principles. 616 S.W.2d 908 (Tex. 1981); see Huynh v. Phung, No. 01-04-00267-CV, 2007 WL 495023, at *10 n. 8 (Tex.App.-Houston [1st Dist.] Feb. 16, 2007, no pet.) (mem.op.) (citing Kraus factors).
[18] Subsection (b) provides as follows:
(b) Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of:
(1)(A) two times the amount of economic damages; plus
(B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or
(2) $200,000.
TEX. CIV. PRAC. & REM.CODE ANN. § 41.008(b).
[19] We also note that Lundy did not object to the charge on this basis and, in not doing so, failed to preserve error. See TEX.R.APP. P. 33.1.
[20] Steritec was the company Global contracted with for sterilization of its products.
[21] Because the jury awarded damages solely for waste of inventory and found no other loss to Global, the remaining allegations do not support the jury's finding.
[22] We agree, and appellees do not dispute, that there is no evidence of a formal relationship between Lundy and Masson.
[23] Lundy's objection to the question on fiduciary duty was as follows:
Counsel: Regarding Question No. 5, the only evidence that was introduced in the record regarding any fiduciary duty was Sean Lundy Sean Lundy's fiduciary duty to the corporation. There was no evidence at all of a fiduciary duty from Sean Lundy running to Dr. Masson. Therefore, that instruction should not be given. No other objection to Question 5.
Court: Objection is overruled.
[24] Lundy begins this section by stating, "[a]ssuming the establishment of a fiduciary duty is overcome, Dr. Masson cites to no facts whatsoever that he [Lundy] breached his duty to Dr. Masson." However, Lundy points to no relevant facts to support his position. Instead, he appears only to re-urge his argument that he did not owe a duty to Masson. See Cowins, 903 S.W.2d at 886.
[25] Question No. 6 instructed the jury as follows:
Did Sean Lundy comply with his fiduciary duty to Marcos Masson?
To prove he complied with his duty, Sean Lundy must show:
1. the transactions in question were fair and equitable to Marcos Masson;
2. Sean Lundy made reasonable use of the confidence that Marcos Masson placed in him;
3. Sean Lundy acted in the utmost good faith and exercised the most scrupulous honesty toward Marcos Masson;
4. Sean Lundy placed the interests of Masson before his own, did not use the advantage of his position to gain any benefit for himself at the expense of Masson, and did not place himself in any position where his self-interest might conflict with his obligations as a fiduciary; and
5. Sean Lundy fully and fairly disclosed all important information to Marcos Masson concerning the transactions.
[26] We note that Lundy does not contend that he rebutted the presumption and, therefore, we need not consider this argument.
[27] Formed in July 2001 as a limited liability corporation, Global was converted to a corporation in May 2003.
[28] In Willis v. Donnelly, 118 S.W.3d 10 (Tex. App.-Houston [14th Dist.] 2003), aff'd in part, 199 S.W.3d 262 (Tex.2006), the Willises argued that the trial court erred in instructing the jury that a fiduciary relationship existed, objecting as follows: "Plaintiffs would object to Question No. 22 in that there is no evidence to support submission of the issue . . . [and] because as a matter of law, Mike Willis owes no fiduciary duty to Dan Donnelly" (emphasis added). Id. at 33. We concluded that appellants' objections were insufficient to alert the trial court that existence of a fiduciary relationship was a fact question for the jury. Id. at 34. We held that, to preserve error, the Willises were required to object that the question was omitted. Id. On review, however, the Texas Supreme Court concluded that the Willises had preserved error based on their objections that the breach of fiduciary claim should fail as a matter of law because there was no evidence of a shareholder relationship or any other legally recognized basis for such a duty and because Willis was never a shareholder. Willis v. Donnelly, 199 S.W.3d 262, 276 n. 28 (Tex.2006). The present case is factually distinguishable because Lundy objected to Question No. 9 solely on the basis that there was no evidence of a breach, not a duty, and conceded that there was evidence introduced of a fiduciary duty owed by Lundy to Global in his objections to Question No. 5. Moreover, whether a fiduciary duty exists is a question of law. Meyer, 167 S.W.3d at 330.
[29] In addition to the absence of authority supporting such a proposition, we note that PJC 104.2 refers to "the transaction(s)," without suggesting a preliminary question identifying the particular transaction. See Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 104.2 (2006).
[30] In its First Amended Cross-Claims, Global alleged that "Lundy had effectively cooked the books so as to inaccurately reflect the financial condition of the company" and "made false representations and used false data to produce private placement offering memorandums which he was using to obtain other investors to make loans and advances." These allegations can hardly be characterized as an acknowledgment by Global that Lundy's actions were well-intentioned.
[31] Lundy does not contend that he rebutted the presumption. Thus, we do not consider that argument here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2564379/ | 298 F.Supp.2d 451 (2004)
Walter SESSION, et al
v.
Rick PERRY, et al
No. CIV.A.2:03-CV-354.
United States District Court, E.D. Texas, Marshall Division.
January 6, 2004.
*452 *453 *454 *455 *456 Richard Scott Gladden, Law Office of Richard Gladden, Denton, TX, G. Michael Fjetland, International Legal Group, Houston, TX, for Plaintiff.
Cassandra B. Robertson, David C. Mattox, Don R. Willett, Attorney General's Office, R. Ted Cruz, Office of the Attorney General, Robert M. Long, Houdyshell & Long LLP, Austin, TX, William Andrew Taylor, Andy Taylor & Associates PC, Houston, TX, for Defendant.
Before HIGGINBOTHAM, Circuit Judge, and WARD and ROSENTHAL, District Judges.
PER CURIAM.
Various voters, members of Congress, the City of Austin, Texas, the GI Forum, the League of United Latin American Citizens ("LULAC"), and voters of Cherokee County challenge congressional redistricting set forth in Plan 1374C, enacted into law by the Texas Legislature on October 12, 2003,[1] and precleared by the Department of Justice on December 19, 2003. Plaintiffs[2] allege that Plan 1374C is invalid because (1) Texas may not redistrict middecade; (2) the Plan unconstitutionally discriminates on the basis of race; (3) the Plan is an unconstitutional partisan gerrymander; *457 and (4) various districts in Plan 1374C dilute the voting strength of minorities in violation of § 2 of the Voting Rights Act.
We hold that Plaintiffs have failed to prove that the State statute prescribing the lines for the thirty-two congressional seats in Texas violates the United States Constitution or fails to comply with § 2 of the Voting Rights Act. We also reject Plaintiffs' argument that the Texas Legislature lacked authority to draw new districts after a federal court drew them following the 2000 census.
We decide only the legality of Plan 1374C, not its wisdom. Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people who elected the officials whose act is challenged in this case. Nor does the reality that this is a reprise of the act of the 1991 State Legislature weigh with the court's decision beyond its marker of the impact of the computer-drawn map. This extraordinary change in the ability to slice thin the lines brings welcome assistance, but comes with a high cost of creating much greater potential for abuse. Congress can assist by banning mid-decade redistricting, which it has the clear constitutional authority to do, as many states have done. In Texas, the phenomenon is new but already old. The larger lesson of 1991 and 2003 is that the only check upon these grasps of power lie with the voter. But, perversely, these seizures entail political moves that too often dance close to avoiding the recall of the disagreeing voter. We know it is rough and tumble politics, and we are ever mindful that the judiciary must call the fouls without participating in the game. We must nonetheless express concern that in the age of technology this is a very different game.
Part I presents the factual background of the case. Part II addresses whether Texas had the legislative authority to draw new district lines mid-decade. Part III addresses generic claims that challenge the map as a whole, namely, claims of racial discrimination and partisan gerrymandering asserted to be unconstitutionally extreme. Part IV lays out the legal principles governing our analysis of Plaintiffs' more specific claims. Part V addresses the § 2 vote dilution claims as directed toward the Dallas-Fort Worth area, as well as the other potential influence districts in East and Central Texas. Finally, Part VI addresses the § 2 vote dilution and Shaw claims directed at districts drawn in South and West Texas.
I
The U.S. Census Bureau released the 2000 decennial census in March 2001. As a result of its population growth, Texas was due two additional seats in the House of Representatives, bringing its total to thirty-two. Texas in turn had to draw thirty-two equipopulous districts to account for its additional representation and to meet the constitutional requirement of one man, one vote. Under Texas law, the Texas Legislature had the task of drawing the districts.[3]
Despite the imminency of state primary elections, the 77th State Legislature failed to adopt a redistricting plan. Lawsuits in state and federal court followed. Voters and others requested that the court draw a new map. The Balderas court deferred to state court efforts to adopt a state redistricting plan. When these state court efforts failed, we recognized that the State's existing congressional districts were unconstitutionally malapportioned and reluctantly *458 accepted the duty to prepare a new, constitutional plan.
Without a baseline state plan in place, the court invited the parties to submit redistricting recommendations. Following a bench trial, the panel applied neutral districting factors and adopted Plan 1151C to govern the State's 2002 elections. The panel refused suggestions not required by law and rejected policy choices better left to legislative consideration.
Balderas ultimately ordered that Plan 1151C would govern the 2002 congressional elections.[4] Certain plaintiffs representing Hispanic voters appealed the decision, arguing that the panel erred by not drawing an additional Hispanic district in the Southwest region of the state. The Supreme Court summarily affirmed.[5] As a result of the 2002 elections, the Texas congressional delegation included seventeen Democrats and fifteen Republicans. However, with their newly drawn state districts, legislative Republicans gained control over both houses of the Texas State Legislature, as well as control over all prominent Executive Branch positions.
The Texas Legislature revisited redistricting in 2003. The Legislature was unable to adopt a new plan during the 2003 regular session, in part because Democratic House members, by absenting themselves, denied a quorum. Governor Perry called the Legislature into special session. During the first special session, the House approved a new congressional map, but the Senate failed to do so because its "two-thirds" supermajority rule permitted the Democrats to block a vote. To break the impasse, Lieutenant Governor Dewhurst announced that he would suspend operation of the two-thirds rule in any future special session considering congressional redistricting legislation. Although Democratic legislators again attempted to prevent formation of a quorum, the 78th Legislature ultimately was able to accomplish during its third special session what the 77th Legislature could not: pass a congressional redistricting plan, Plan 1374C.
II
Plaintiffs argue that Texas lacks the power, under either the Constitution or the election statutes, to redraw congressional districts in the middle of the decade. Some Plaintiffs find this limitation implicit in the text of the Elections Clause, while others urge that Congress has affirmatively limited state authority to redistrict by § 2c of Title II.[6] A third strain of arguments focuses on the Balderas judgment and asserts either that the judgment collaterally estops the State from enacting a new plan or that the judgment exhausted the State's authority to redistrict.
Although there are compelling arguments why it would be good policy for states to abstain from drawing district lines mid-decade, Plaintiffs ultimately fail to provide any authorityconstitutional, statutory, or judicialdemonstrating that mid-decade redistricting is forbidden in Texas. In fact, what meager authority we have found seems to allow the states to redraw lines mid-decade, at least where a court drew the existing lines within the decade. As we will explain, the Elections Clause of the Constitution grants states broad power to regulate the "time, place, and manner of holding elections for Senators *459 and Representatives."[7] Congress has the power to override state regulations or to impose rules of its own, but it has not chosen to limit redistricting to the period immediately following the release of the decennial census. Judicial decisions, both by the Supreme Court and by district courts throughout the country, have allowed and even invited states to redraw district lines following a court's action.
Against this backdrop of authority, we cannot agree that either the Constitution or the voting statutes restricts the states to once-a-decade redistricting. We therefore reject the argument that the Texas Legislature had no authority to draw the lines of congressional districts and deny Plaintiffs' Motion for Summary Judgment.
A
The Constitution of the United States delegates to states the power to develop procedures governing congressional elections by the Elections Clause. It provides:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.[8]
This provision delegates to state legislatures both the power and responsibility to redraw congressional voting districts.[9] States do not possess this authority as an incident of their sovereignty. Rather, the Elections Clause delegates power to the states in broad terms. While states may only enact "time, places and manner" regulations, the text does not define or otherwise limit the states' discretion. Nonetheless, Congress may, if it chooses, make regulations governing the "times, places and manner" of holding elections or alter regulations enacted by state legislatures. This reservation to Congress, however, is not a direct limitation on the scope of the states' authority; rather, it allows Congress to override state election decisions or to enact regulations of its own. Unless and until Congress chooses to act, the states' power to redistrict remains unlimited by constitutional text.
Plaintiffs would read an implicit, temporal limitation into the text of the Elections Clause, but the argument is empty. The argument is that the Elections Clause allows Congress to pass laws regulating elections "at any time," but does not explicitly allow states to act at any time. Plaintiffs reason that, by failing to include the phrase "at any time" within the grant of power to states, the Elections Clause implicitly denies that power. Hence, they conclude, the Elections Clause allows states to draw districts only once, immediately after the release of each decennial census.
We are unpersuaded. The argument tortures the text of the Clause, which by its clear terms has no such limitation. That Congress may exercise its power at any time says nothing of the states' power to enact election regulations, especially when the states are given this authority in terms that suggest no restriction beyond those that Congress may impose. To paraphrase the argument, if the Framers had intended to limit the states' power in such a specific way, surely they would have done so explicitly. This is just too convenient and tailored. For the first fifty years of our Nation's history, it was not *460 uncommon for representatives to be chosen in statewide, at-large elections;[10] states often did not divide into congressional districts. The notion that the Elections Clause somehow embodies an implicit limitation on mid-decade redistricting is therefore anachronistic at best; presumably, it never entered the Framers' minds. Even today, there is no constitutional requirement that states must necessarily subdivide their territory into districts;[11] the requirement that states draw districts is largely a creature of statute.[12]
Even if the Elections Clause did not give states the power to prescribe election regulations at "any" time, Plaintiffs do not explain why we should read the Clause to allow states to exercise election power only one time after the census or how any such interpretation could find mooring in the text of the Constitution. What Plaintiffs ask us to do, then, is not simply to add a single limitation to the Elections Clause's grant of power; they ask that we create, out of whole cloth, a detailed scheme for states to exercise their constitutional authority. This we cannot do.
Judicial decisions have implicitly rejected the notion that a state may impose only one redistricting map each decade. While no court has, to our knowledge, explicitly addressed whether states have the power to do so under the Constitution,[13] innumerable decisions have either assumed that a state legislature may draw new lines middecade or have invited a state to do so after the court has drawn a map in a remedial role.[14]
*461 The Supreme Court has intimated on several occasions that states may redistrict mid-decade following court action. In Upham v. Seamon,[15] the Court noted that the parties "urged that because the District Court's plan is only an interim plan and is subject to replacement by the legislature in 1983, the injury to appellants, if any, will not be irreparable."[16] Similarly, in Branch v. Smith, the Court noted that the district court's holding that state courts could not constitutionally create redistricting plans, a holding the Court vacated, was not "binding upon state and federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court."[17] The Court's most vivid statement on the topic came in Wise v. Lipscomb:
Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the "unwelcome obligation" of the federal court to devise and impose a reapportionment plan pending later legislative action.[18]
The Court's language contemplates that any federal court plan must give way to later legislative redistricting efforts. And, of course, the displaced plan here was judicially crafted. No legislative plan is being displaced.
Given this authority and the broad language of the Elections Clause, we conclude that the Elections Clause itselfthe provision in the Constitution that grants states the authority to redistrictdoes not limit states to redistricting once per decade, particularly where, as here, the State's action follows a court-imposed map. If any such limitation is to be found, then it must be found elsewhere.
B
Some Plaintiffs would locate limitations in other clauses in the Constitution, most notably the Census Clause.[19] Those Plaintiffs point to two phrases which, we are told, prevent a state from redistricting any time it chooses. The Census Clause provides, in pertinent part:
Representatives ... shall be apportioned among the several States ... according to their respective numbers. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term often years, in such manner as they shall by law direct.[20]*462 Plaintiffs argue that the phrase "according to their respective numbers" and the sentence requiring enumeration every ten years together impose affirmative limitations on the states' power to redistrict.
We disagree. The Census Clause by its terms applies to the apportionment of seats in the House of Representatives among the states. It ensures that no state is over-represented in the House by linking each state's delegation to the state's population. The Clause says nothing about how district lines must be drawn. It is true, of course, that the Census Clause affects the states' obligation to redistrict. When the census is released every ten years, states are required to redistrict in order to accommodate changes in population and to bring its districts into conformity with the Equal Protection rule of one man, one vote. But the Census Clause does not expressly limit the states' ability to redistrict more frequently. Indeed, the Census Clause does not mention the states or their power to redistrict,[21] and we fail to see how it can limit a power it never references.
Plaintiffs concede that the constitutional text itself is silent regarding repeated reapportionment. They nonetheless insist that the Supreme Court's decision in U.S. Term Limits, Inc. v. Thornton[22] prevents States from "adding" to the Constitution a provision entitling states to redistrict mid-decade. Plaintiffs' reliance on U.S. Term Limits is misplaced.
U.S. Term Limits was not based on the Elections or Census Clauses, but on the Qualifications Clause of Article I.[23] In U.S. Term Limits, the Court rejected an effort by Arkansas to impose term limits on its Representatives because a state cannot add qualifications to those enumerated in the Constitution. The Court noted that, "in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution."[24] "In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist."[25] Drawing on this language, Plaintiffs urge that, by undertaking mid-decade redistricting, Texas has in effect "added" to the text of the Elections Clause a power to redistrict intradecenially.
We disagree. As a preliminary matter, Texas has "added" nothing to the text of the Constitution by redrawing its district lines mid-decade. The Elections Clause is a broad grant of authority to the states that is checked only by the power of Congress to make or alter voting regulations. Nowhere in the text of the Elections Clause or in judicial interpretations is there a limitation of the frequency with which states may exercise their power. *463 Since the power given the states is broad enough to encompass mid-decade redistricting, it cannot be fairly saidas Plaintiffs assertthat Texas has "added" anything to the Constitution's text. U.S. Term Limits, by contrast, dealt with a very different situation. It dealt with the Qualifications Clause, a provision that is of a "precise, limited nature."[26] By adding a term limit, Arkansas engrafted a provision into the Qualifications Clause that was not there before. The same cannot be said here. The Qualifications Clause in U.S. Term Limits by its terms gave the states no role to play in setting the qualifications of representatives.[27] The Elections Clause is different: it appeals to both state legislatures and Congress to set the "time, manner and place" of holding elections. When a state exercises this authority, it adds nothing to the Constitution.
Fairly viewed, it is Plaintiffs who seek to "add" to the Constitution. They ask us to add an implicit limitation to the Elections Clause that states may prescribe the "times, places and manner" of holding elections only after each decennial census. There is no basis for this addition, either in the text of the Constitution or in court decisions interpreting it. In sum, neither the Census Clause nor the Qualifications Clause limits state power to redraw district lines intradecennially.
C
The Elections Clause grants Congress the power to pass voting regulations or to alter voting regulations enacted by the states. Several Plaintiffs argue that Congress has exercised its power to limit the authority of the states to redistrict.
The most relevant statutory provisions are in Title 2. Section 2a specifies that the President must inform Congress after each decennial census of the population of each state and the corresponding number of representatives each state is entitled to send to the House of Representatives.[28] Section 2c requires every state entitled to more than one representative under these census figures to create a number of districts equivalent to the number of representatives it sends to the House.[29]
Congress has given courts a significant role in redrawing district lines. Should a state legislature not redistrict after the decennial census, for example, a court is empowered to remedy any defects *464 in the state's maps.[30] At the same time, the Supreme Court has emphasized that primary responsibility for drawing the lines of congressional districts remains with state legislatures.[31] The Court has reaffirmed this principle in a series of decisions constraining federal courts in redistricting cases. The Court, for example, insists that the judiciary defer to legislative districting if the legislative plan meets population equality and racial fairness standards applicable to court-ordered plans.[32] In addition, the judicial role is remedial; courts are not to replace valid legislative judgments with their own preferences.[33] Absent evidence that a state will fail to perform its redistricting duty in a timely fashion, a federal court can neither obstruct the State's redistricting efforts nor allow federal litigation to impede it.[34] Similarly, courts conducting redistricting are obliged to honor the State's redistricting traditions.
Plaintiffs assert that § 2c constrains the power of states to redraw district lines at will. Their argument comprises three basic steps. First, in § 2c Congress revoked the power granted to state legislatures by the Elections Clause and delegated a far more limited power. Second, they urge that § 2c allows redistricting once after the decennial census. As a result, they urge that when Balderas imposed Plan 1151C, the judgment effectively "used up" the redistricting power delegated to the states through § 2c. Under this view, Plan 1374C is invalid because Texas had no power to enact it once Balderas installed Plan 1151C.
We are not persuaded. First, we cannot agree that by passing § 2c, Congress revoked the authority granted states by the Elections Clause. To be sure, § 2c constrains the redistricting decisions that states can make, but it cannot fairly be said to revoke the states' power. Plaintiffs advance a specie of preemption argument: that by passing legislation that relates in some way to congressional districting, Congress has effectively usurped the entire redistricting field.
This interpretation of § 2c ignores the text of § 2c and misreads the Elections Clause. Section 2c has no language suggesting that Congress is "revoking" the authority granted by the Elections Clause, or even that Congress is "redelegating" a more limited authority. If Congress wishes to revoke the states' redistricting authority, it must do so clearly.[35] Moreover, *465 over, Plaintiffs' argument tacitly assumes that any congressional regulation relating to election procedures automatically revokes the broad authority given states under the Elections Clause. The structure of the Clause, however, suggests that the primary source of election regulation is state law, federal law supplementing state procedures or overriding them only when necessary. Reading § 2c for what it isa congressional regulation imposing a single election requirement on the statespreserves the relative roles of Congress and the states under the Elections Clause.
Second, even if § 2c did somehow revoke and redelegate redistricting authority, we disagree that § 2c would allow redistricting only on the decennium. Plaintiffs base their argument on the text of § 2c, which provides in pertinent part:
In each State entitled ... to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title [the decennial census], there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ....[36]
Plaintiffs argue that this provision directly links the "time" at which the state must redistrict to the "mode" in which it must exercise its redistricting power. That is, the clause requiring states to establish districts immediately follows the reference to the decennial census.[37] Plaintiffs also reference several other federal statutes imposing "time" and "manner" restrictions, apparently in an effort to bolster the notion that federal law restricts a state's ability to redistrict frequently.
While it is true that states are under an obligation to redistrict after each census, we find nothing in § 2c that limits the frequency with which they may do so. It would have been remarkably easy for Congress to impose such a limitation in the text of § 2c, but it did not. It merely required states with more than one representative to divide their territory into a like number of districts.[38] Other courts have similarly failed to find such a limitation in § 2c. As we noted above, numerous courts have either allowed or invited state legislatures to enact redistricting plans in the middle of the decade when a court has previously imposed a plan.[39] Section 2c was in force when each of these decisions was handed down.
The final step in Plaintiffs' § 2c argument is similarly flawed. Plaintiffs conclude that Balderas, by establishing a constitutional redistricting plan, "used up" the state's constitutional authority to redistrict. Plaintiffs frame their argument by again focusing on the meaning of § 2c which, they assert, reveals that court redistricting is constitutionally "equivalent" for purposes of Article I, Section 4 to state legislative redistricting.[40] We agree that *466 court-drawn maps are functionally equivalent to legislative maps, although there are key differences between the two. But our agreement on this point is of little help to Plaintiffs because they fail to persuade that a state cannot redraw district lines after a valid court-imposed plan is in place. That is, Balderas could only "use up" the State's constitutional authority to redistrict if the state is somehow constrained to draw district lines only once per decade. We have rejected Plaintiffs' argument that redistricting following a judicially imposed plan is forbidden, and we do not reach Plaintiffs' Balderas claim.
D
Plaintiffs also assert that Texas "tradition" prevents the State Legislature from redrawing district lines in the middle of the decade. They argue that, under Supreme Court precedent, the State Legislature was bound to follow its traditional redistricting principles in creating a new map. Since Texas does not have either a history or tradition of mid-decade redistricting, Plan 1374C is said to be invalid.
Plaintiffs' argument misreads Supreme Court precedent. Although the Supreme Court has required courts to use a state's "districting traditions" when drafting voting maps, the Court has never held that a state legislature is bound to follow its prior districting practices indefinitely. Indeed, "tradition" normally fills a very different role in redistricting suits.[41] Plaintiffs cite two Supreme Court decisions, White v. Weiser[42] and Branch v. Smith,[43] to support their argument, but neither decision holds that states are bound to follow state tradition in drawing maps. In White, the Supreme Court held that federal courts, not state legislatures, must abide state districting traditions; the Court iterated that legislatures, not courts, have "primary jurisdiction" over reapportionment, and reinforced the notion that court intervention in the redistricting process is meant to be minor and remedial.[44]Branch v. Smith is also inapposite. In Branch, the Court attempted to reconcile § 2c with the seemingly conflicting requirements of § 2a(c)(5).[45] The Court explained that when a "federal court redistricts a State in a manner that complies with that State's substantive districting principles, it does so `in the manner provided by the law thereof.'"[46]*467 Plaintiffs cite this passage as evidence that states are constrained by tradition. Presumably, their argument is that since the Court held that a federal court redistricts "in the manner provided by the law [of the state]" only when it follows the state's districting traditions, so too a state legislature can only redistrict "in the manner provided by the law [of the state]" when it follows the state's districting traditions. Plaintiffs misread this passage. Branch does not hold that a state must follow its redistricting traditions without deviation. Rather, the passage is focused solely on the power of federal courts. It specifically holds that if a federal court redistricts a state using the state's traditions and preferences, the court does so "in the manner provided by the law" of the state, such that § 2a(c)(5)'s requirement that at-large districts be used is not invoked.
In any event, it would be illogical to require a state legislature to adhere strictly to the state's districting principles whenever it undertook to redraw the state's map. Any such rule would, in effect, freeze the state's districting traditions in place.[47] We can find no reasoned basis for such a rule.[48]
*468 E
Plaintiffs' final argument focuses on the effect of the Balderas judgment. They argue that Balderas was a final judgment that is binding on the State because it was a party to the proceeding. They argue that the State in enacting Plan 1374C is attempting to avoid the judgment in that case, and that the State is collaterally estopped from contesting the use of Plan 1151C.
The prerequisites for collateral estoppel are not met here. Issue preclusion has four basic requirements: (1) the issue must be identical to an issue involved in prior litigation; (2) the issue must have been fully and vigorously litigated; (3) the issue must have been necessarily decided in the prior litigation; and (4) special circumstances must not render preclusion inappropriate or unfair.[49] The first two requirements are not met here. It is true, as Plaintiffs argue, that the two majority-minority districtsDistricts 18 and 30 are involved in both cases, as are several other features of the two plans. But the Balderas court's tasks were different: it had to bring the district map into line with the equal population rule, while accommodating the two new congressional districts and obeying the Voting Rights Act. The issues are different here. We must first decide whether the State has the constitutional power under the Elections Clause or § 2c to redraw district lines mid-decade. This issue did not arise in Balderas. We also must examine a never-before-considered legislative districting plan, Plan 1374C, and decide whether it passes muster under the Constitution and the Voting Rights Act. We find no merit in Plaintiffs' collateral estoppel argument.
F
Perhaps the most compelling arguments offered by Plaintiffs against mid-decade redistricting focus on the impropriety rather than the illegalityof frequent redistricting. A significant portion of Plaintiffs' arguments raise policy concerns. For example, Plaintiffs argue that frequent redrawing of district lines will undermine democratic accountability and exact a heavy cost on state independence as federal congressional leaders exert their influence to shape state districting behavior.
As persuasive as these arguments may be, they are directed to the wrong forum. If Congress chooses to ban intradecennial redistricting, it has the power to do so under the Elections Clause. We have found no provision in either the U.S. Constitution, federal law, or state law that proscribes mid-decade redistricting, and our mandate ends there.
G
We deny Plaintiffs' Motions to Dismiss and Motions for Summary Judgment on *469 the issue of mid-decade redistricting and collateral estoppel.
III
Turning to the merits, we will first consider Plaintiffs' claims in their two most sweeping forms. First, Plaintiffs argue that the proposed plan must be set aside in its entirety because it is laced with impermissible racial discrimination against Blacks and Latinos in violation of the Equal Protection Clause of the United States Constitution. Second, they allege that Plan 1374C is an impermissible partisan gerrymander. After addressing these allegations, we will then discuss a kindred but "analytically distinct claim" of racial discrimination under the Equal Protection Clause that in the drawing of various districts the Legislature was predominately motivated by race. We will reject the broad-based claims at the outset and return to these Shaw claims in our consideration of the more focused claims under § 2 leveled against specific districts. That process will amplify the findings that underpin our conclusion that Plaintiffs have failed to prove purposeful racial discrimination.
A
Since Washington v. Davis,[50] a claimed denial of Equal Protection has required proof that discrimination was purposeful; differential or adverse impact alone is not sufficient. In Davis, the Supreme Court considered an employment discrimination claim brought under the Equal Protection Clause in the District of Columbia before Title VII was extended to the District. Writing for the Court, Justice White rejected the argument that a party alleging racial discrimination under the Equal Protection Clause could focus solely on the racially differential impact of the challenged state practice.[51] He explained that the Court had "never held that the constitutional standard for adjudicating claims of invidious racial discrimination [was] identical to the standards applicable under Title VII,"[52] which in certain circumstances allowed the adverse impact upon a protected minority to constitute sufficient proof of a statutory violation. He concluded that the Equal Protection Clause required more; it demanded proof that the challenged state action was intended to be discriminatory. Davis marked only the first step in the Court's analysis of Equal Protection claims, and in its wake came a range of questions, including questions about the allocations of the burden of proof and about the character of proof demanded by the requirement that racial discrimination be purposeful.
The next term, in Arlington Heights v. Metropolitan Housing Corp.,[53] the Court repudiated the Seventh Circuit's emphasis on the adverse impact of a challenged zoning decision in a Chicago suburb, rather than its purpose. Writing for the majority, Justice Powellwhile acknowledging that proof of purpose would seldom be easyexplained that it was not necessary to prove that a decision was motivated by a single concern, or even that a particular purpose was the dominant or primary one. There need only be proof "that a discriminatory purpose has been a motivating factor in the decision."[54] The inquiry, he explained, may start with the impact of the *470 legislative act, which while not alone sufficient to prove purpose remains relevant, and continue to the exploration of the act's history, including any contemporary statements by members of the decision-making body.
Two years later in Personnel Administrator of Mass. v. Feeney,[55] the Court upheld a Massachusetts statute granting lifetime preferences to veterans for civil service positions. The Court rejected claims that because few women could qualify, the statute discriminated against women in violation of the Equal Protection Clause. Writing for the majority, Justice Stewart pointed to findings of the district court that the statute had a legitimate purposeawarding benefits to veterans and was not a pretext for discriminating against women. He then offered a critical observation, one that proved to be a powerful and enduring feature of Equal Protection Clause jurisprudence:
It would [be] disingenuous to say that the adverse consequences of this legislation for women were unintended, in the sense that they were not volitional or in the sense that they were not foreseeable.
"Discriminatory purpose," however, implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.[56]
After grappling with the explicit remedial use of race by courts, legislative bodies, and various federal and state institutions, the Court turned to redistricting plans drawn to enhance the opportunity of minorities protected by the Voting Rights Act where race had become more than another of many necessary considerations in line-drawing. Justice Ginsberg put it succinctly in Miller v. Johnson:
Two Terms ago, in Shaw v. Reno, this Court took up a claim "analytically distinct" from a vote dilution claim. Shaw authorized judicial intervention in "extremely irregular" apportionments, in which the legislature cast aside traditional districting practices to consider race alonein the Shaw case, to create a district in North Carolina in which African-Americans would compose a majority of the voters.[57]
In short, Miller instructs that we are to engage in a searching review of district lines "predominantly motivated" by race when a state subordinates traditional districting practices to race.
Plaintiffs have not proven their claim of racial discrimination. There is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage. With the Republican sweep of statewide offices in 2000 came control of *471 the Legislative Redistricting Board. The Legislature was initially unable to redraw district lines for either state legislative or congressional seats. The federal courts drew a congressional district plan[58] and after one modification held that the plans for the Texas House of Representatives and Senate drawn by the Republican-controlled Board were legal.[59] Although the judicial plan for the congressional districts reflected the growing strength of the Republican Party in Texas, with 20 of the 32 seats offering a Republican advantage, the voters in 2002 split their tickets and elected only 15 Republicans. Six incumbent Anglo Democrats were elected by narrow margins in Republican-leaning districts. With Republicans in control of the State Legislature, they set out to increase their representation in the congressional delegation to 22. As we will explain, all that happened thereafter flowed from this objective, with the give-and-take inherent in the legislative process along the way. The result disadvantaged Democrats. And a high percentage of Blacks and Latinos are Democrats.[60]
The majority of Plaintiffs' Equal Protection claims focus on District 26 in Plan 1374C, which reflects Republican refusal to preserve Democratic Congressman Martin Frost's District 24 while at the same time preserving adjoining Republican districts. To remove Congressman Frost, he needed to lose a large portion of his Democratic constituency, many of whom lived in a predominantly Black area of Tarrant County. This group of voters was taken from previous District 24 and grouped with Denton and Cooke Counties, which are north of Tarrant County. Plaintiffs view the protrusion that reaches down to include the Black Democrats as evidence of intentional racial discrimination.
We disagree. That African-Americans in Texas vote overwhelmingly for Democratic candidates and that various political compromises were reached to arrive at the current district lines belie the assertion that Texas intentionally discriminated against the African-American voters. Bob Davis, who assisted the Texas Senate in drawing various plans and submitting them to the Legislative Redistricting Board, credibly testified as to the various political considerations that combined to result in the lines of current Congressional District 26. First, Representative Kent Grusendorf, who served on the House side of the districting committee, wanted his State House Districtwhich covers the city of Arlingtonto remain whole.[61] Arlington's western boundary forms most of the eastern edge of District 26's southern protrusion. Second, the court-drawn map, Plan 1151C, split State House Representative Glenn Lewis's District 95 into two different congressional districts. Representative Lewis wanted his district to fall completely within one congressional district.[62]*472 House District 95 now forms the southern tip of Plan 1374C's District 26, explaining the southernmost boundaries of District 26. Third, Democrats could not be placed in Congressional District 12 to the west because District 12 would then become "far more Democrat and very marginally Republican, if Republican at all."[63] Finally, Representative Phil King, the chairman of the redistricting bill in the Texas House, wanted Parker and Wise Counties to be included completely in Congresswoman Granger's District 12.[64] But if the Tarrant County population fell in District 12, population would need to be taken out, likely from Parker or Wise counties.
So, the net result was the political consequences of putting that territory, either in District 12 or District 6, were not good. And District 26, which was, in the Court Plan, this area in here, adjacent to it, and so it was placed on the District 26 because the political structure of 26 could handle that particular component of the Tarrant County population and still produce Republican results for District 26.[65]
We find these unchallenged explanations to be credible, and we find that including the large Democratic area of southeast Tarrant County in District 26 was the sole product of political give-and-take by legislative members over their own state districts and the effort to not create another Democratic district. The actions were not taken because of race; they were taken in spite of it.
Plaintiffs' expert's testimony supports our conclusion that politics, not race, drove Plan 1374C. The Jackson Plaintiffs' expert, Dr. John Alford, professor of political science at Rice University, testified that "one would have a very hard time not recognizing that the State has a very strong partisan motivation in this particular map."[66] Representative Phil King testified that the purpose of the plan was to make the congressional delegation more reflective of state voting trends. The amicus brief of the Texas House Democratic Caucus and Representatives John Lewis, Chris Bell, Martin Frost, Sheila Jackson Lee, and Nick Lampson filed in Vieth v. Jubelirer in support of Appellants told the Supreme Court that "[t]he newly dominant Republicans ... decided to redraw the state's congressional districts solely for the purpose of seizing between five and seven seats from Democratic incumbents." It was clear from the evidence that this assertion is true. Former Lieutenant Governor *473 Bill Ratliff, one of the most highly regarded members of the Senate and commonly referred to as the conscience of the Senate, testified that political gain for the Republicans was 110% of the motivation for the Plan, that it was "the entire motivation."[67] He explained that he is leaving the Senate before the expiration of his term in large part out of disappointment at its partisan turn. In the course of the redistricting bill's passage, Senator Ratliff, a Republican, refused to abandon the two-thirds rule, which does not allow a bill to come to the floor without the support of 21 members, a practice calculated to promote consensus building.
Plaintiffs nonetheless insist that there was racial discrimination along the way in the specific drawing of the lines. We will examine this less sweeping assertion as we examine the particular districts that are alleged to have been drawn in violation of § 2 of the Voting Rights Act, or in defiance of the principles of Shaw v. Reno.
While keenly aware of the long history of discrimination against Latinos and Blacks in Texas, and recognizing that their long struggle for economic and personal freedom is not over, we are compelled to conclude that this plan was a political product from start to finish. The myriad decisions made during its creation were made in spite of, and not because of, its effects upon Blacks and Latinos. To find otherwise would frustrate the fundamentals of Washington v. Davis and inject the federal courts into a political game for which they are ill-suited, and indeed in which they are charged not to participate under the most basic principles of federalism and separation of power. Concluding that the purpose requirement of the Equal Protection Clause was met on these facts would pass redistricting from the state legislatures and redistricting boards to the federal courts. This is not to say that we wholly withdraw, of course. We simply recognize the fundamental decision in Washington v. Davis that federal judges are not legislative players; we are only the guardians of the boundaries. As Justice Ginsburg put it, while "[l]egislative districting is highly political business ... [g]enerations of rank discrimination against [minorities] account for [the court's] surveillance."[68]
Having been watchful, we are not persuaded that this most fundamental boundary of the Equal Protection Clause was crossed. In the redistricting arena, an area that has proven most reluctant to yield discernible standards, there are large incentives to reach for the seeming certainty of the Equal Protection Clause's familiar condemnation of purposeful racial discrimination and draw upon its comforting moral force, rather than confront the task of developing proper standards or concede their ephemeral political character. To our eyes, the certainty is an illusion, and its deployment to heel radical partisan line-drawing by state legislatures is a mistake. And turning to Washington v. Davis's insistence of purpose, rather than confronting directly the questions now before the Court in Vieth v. Jubelirer, is just an old Texas two-step.[69]
*474 B
We have no hesitation in concluding that, under current law, this court cannot strike down Plan 1374C on the basis that it is an illegal partisan gerrymander. Seventeen years ago, the Supreme Court held in Davis v. Bandemer[70] that an excessively political or partisan gerrymander presents a justiciable issue under the Equal Protection Clause. But the Court was unable to settle upon a manageable standard for addressing such claims. It is now painfully clear that Justice Powell's concern that the decision offered a "`constitutional green light' to would-be gerrymanderers" has been realized.[71]Bandemer insisted upon proof of both discriminatory purpose and discriminatory effect, two requirements that are difficult to meet in the courtroom, particularly as they have been interpreted by the lower courts. That the response to this difficulty must be to develop a new standard does not necessarily follow. The question remains how much of a role the judiciary ought to play in policing the political give-and-take of redistricting. It may be the most difficult question, but it is certainly the most important.
When the Supreme Court resolves Vieth, it may choose to retreat from its decision that the question is justiciable, or it may offer more guidance on the nature of the required effect. Perhaps the Court will draw on its experience in developing federal common law in the antitrust arena, which draws a fine line between competitive effect and injury to competition.[72] We have learned firsthand what will result if the Court chooses to do neither. Throughout this case we have borne witness to the powerful, conflicting forces nurtured by Bandemer's holding that the judiciary is to address "excessive" partisan line-drawing, while leaving the issue virtually unenforceable. Inevitably, as the political party in power uses district lines to lock in its present advantage, the party out of power attempts to stretch the protective cover of the Voting Rights Act, urging dilution of critical standards that may, if accepted, aid their party in the short-run but work to the detriment of persons now protected by the Act in the long-run. Casting the appearance both that there is a wrong and that the judiciary stands ready with a remedy, Bandemer as applied steps on legislative incentives for self-correction.
There are ameliorations available short of a grand judicial pronouncement, remedies which are perhaps superior. In Texas, redistricting advantages can be overcome through the political process. The exchange of political advantage between the Democrats in 1990 and the Republicans in 2000 demonstrates this reality. If the Democratic party takes the main state-wide offices, Democrats can block a state legislative redistricting plan and write their own through the Legislative Redistricting Board. The resulting State Legislature could then redraw the congressional lines.
Even if the partisan gerrymander issue were not justiciable but Congress allowed *475 the drawing of new lines only when there was no extant legal plan, and in any event no more often than once in a decade, the picture would likely be quite different. That the limitation would only reach congressional seats and not state legislatures themselves does not mean that its effects would not be larger. As the record in this case makes clear, Congress often plays a large role in state redistricting, not only of congressional districts but also of the state chambers themselves. Members of Congress work to protect their incumbency and to affect the partisan makeup of the House, with keen interest in the election of members of the State Legislature. Accordingly, a rule that the game is played only once per decade could matter a great deal in the real world of politics. It is fair to ask what if Congress had imposed a once-a-decade rule seventeen years ago, even if Bandemer had dismissed the case as presenting a non-justiciable political question.
Our point is that if the judiciary must rein in partisan gerrymanders, limitations that focus upon the time and circumstance of partisan line-drawing and less upon the "some but not too much" genre of strictures offer the best of an ugly array of choices. Drawing upon the Voting Rights Act jurisprudence to give Bandemer teeth may be the worst of choices.
IV
For convenience, we record some of the general principles to which we will refer in addressing Plaintiffs' challenges to specific districts. Section 2 of the Voting Rights Act of 1965 (as amended) 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 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 fort in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of the 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 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.[73]
To prevail on a claim of vote dilution under § 2, a plaintiff must, as a threshold requirement, satisfy the three now-familiar preconditions set forth in Thornburg v. Gingles: (1) a minority group must be "sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) the group must be "politically cohesive"; and (3) sufficient racial bloc voting must exist such that the white majority usually defeats the minority's preferred candidate.[74]*476 Gingles withheld deciding whether there could ever be a showing of potential success without a showing that a clear majority could gather in the absence of the accused practice or structure. The lower courts, with the exception of a recent decision by a divided panel of the First Circuit,[75] have strictly enforced the 50% rule, including the Fifth Circuit.[76] There are powerful reasons to be exacting, as we will explain, but the facts of this case offer no occasion to decide if there is a tolerable deviation from the rule that a minority must demonstrate that, absent an accused practice or structure, it had the potential to elect a candidate of its choice by proof that it could constitute 50% of the district.
Although satisfying the Gingles factors is a prerequisite, meeting the three conditions is alone not enough to prevail under § 2. If they are met, the court is to consider the totality of the circumstances, including a searching inquiry into whether the political process is equally open to minority voters. In Johnson v. De Grandy, the Court explained how to evaluate dilution under a single-member districting plan and discussed the extent of a state's duty to create additional majority-minority districts under § 2.[77] In De Grandy, the plaintiffs attempted to establish liability by pointing to a number of places where minority voters had been "cracked" and placed in majority-white districts where their votes would be "submerged" *477 and ineffective. The Court rejected the dilution claim of the Hispanic and African-American voters because the challenged districting plan provided both sets of voters "rough proportionality," the opportunity to exercise electoral control in a number of districts that roughly corresponded to their share of the relevant population.[78] The Court emphasized that proportionality does not provide a complete or mechanical defense to a § 2 suit.[79] The Court also made it clear that proportionality is significant in evaluating dilution claims and has become a preeminent measure of fairness in redistricting.[80] Now known as "De Grandy proportionality," dilution may be found to be absent under the totality of the circumstances when the protected minority groups "constitute effective voting majorities in a number of districts ... substantially proportional to their share in the population."[81]
In Shaw v. Reno ("Shaw I"), the Court addressed the constitutionality of a district drawn with race as the predominant motivation, as evidenced by a bizarrely-shaped district drawn to augment minority voting strength.[82] The Court held that such a district could be challenged, depending on how it was drawn, under the Equal Protection Clause. In Shaw v. Hunt ("Shaw II"), the Court concluded that a racially gerrymandered district would be subject to strict scrutiny, and that compliance with § 2 could justify a racially gerrymandered district only if the remedial district was narrowly tailored toward that end.[83] In so holding, the Court held that a remedy for vote dilution in one part of the state, where it was possible to draw an additional, compact majority-minority district, is not narrowly tailored to comply with § 2 if the remedial district is drawn in a different part of the state where polarized voting also exists, but where a compact district cannot be crafted. In so holding, the Court stated:
Arguing, as appellees do and the District Court did, that the State may draw the district anywhere derives from a misconception of the vote-dilution claim. To accept that the district may be placed anywhere implies that the claim, and hence the coordinate right to an undiluted vote (to cast a ballot equal among voters), belongs to the minority as a group and not to its individual members. It does not.[84]
Similarly, in De Grandy, the Court stated that one reason for rejecting the inflexible safe harbor rule the state advocated in that case, under which no dilution can *478 occur as a matter of law if the percentage of single member districts in which minority voters form an effective majority mirrors the minority voters' percentage of the relevant population, was that it rested on
an unexplored premise of highly suspect validity: that in any given voting jurisdiction (or portion of that jurisdiction under consideration), the rights of some minority voters under § 2 may be traded off against the rights of other members of the same minority class. Under the State's view, the most blatant racial gerrymandering in half of a county's single-member districts would be irrelevant under § 2 if offset by political gerrymandering in the other half, so long as proportionality was the bottom line.[85]
With these basic principles in mind, we now turn to Plaintiffs' specific claims.
V
We first examine the § 2 challenges to the districts in Central and East Texas, most notably District 24 in the Dallas-Fort Worth area. As a preliminary matter, it bears emphasis that the majority requirement of the first Gingles precondition cannot be met in these districts by summing Black and Hispanic voter populations.[86] Plaintiffs cite Brewer v. Ham[87] for the proposition that minority groups may be combined to satisfy Gingles's majority requirement. Brewer, however, allowed for minority combination when the groups vote cohesively. Here, there is no serious dispute but that Blacks and Hispanics do not vote cohesively in primary elections, where their allegiance is free of party affiliation.[88] Minority voters must have the potential to elect in the absence of the accused practice or structure if their claim of injury by that practice or structure is to be sustained.[89]
A
1
Georgia v. Ashcroft[90] is the most recent discussion of the factual and legal distinctions between majority-minority, coalition, and influence districts.[91] Majority-minority or "safe" districts are voting districts with a majority of minority voters, making it "highly likely that minority voters will be able to elect the candidate of their choice."[92] Coalition districts are voting districts where minority voters "`are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates *479 of their choice.'"[93] Influence districts are voting districts "where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process."[94] The elected representatives in influence districts, as a result of the influence of minority voting, take minority interests into account.[95]
Georgia tested the limits of these types of districts when it redrew its state senate's voting districts following the 2000 census. The previous map, which was finally precleared after much litigation, included various safe districts. Shifting its strategy, the Democratic-controlled Legislature "unpacked" three of the safe districts and spread the minority voters to create influence and coalition districts.[96] The goal was to increase the overall influence of minorities in Georgia politics. The Justice Department challenged the plan as retrogressive because of the reduction of minorities in the previously safe districts. The district court found the plan retrogressive because the change in the three safe districts created less opportunity for minorities to elect the representatives of their choice.
Georgia appealed the decision to the Supreme Court, arguing that preclearance was appropriate because the new map did not harm the minorities' "effective exercise of the electoral franchise." Georgia asked the Court to examine the voting plan as a whole so that the increase in voting strength in other influence and coalition districts could offset the decrease in the three previously safe districts. The Justice Department argued that the district court correctly found retrogression based solely on the decrease in minority population in the three previously safe districts.
Georgia's argument prevailed. The Court held that states are free to choose the best way to avoid retrogression and ensure equal opportunity to minority voters. To determine whether a new map is retrogressive, the Court examined the state as a whole and considered all the relevant circumstances, "such as the ability of minority voters to elect their candidate of choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan."[97] The Court accepted that minority interests may be better served by coalition and influence districts rather than safe districts. The Court noted that although safe districts ensure descriptive representation, they also "isolat[e] minority voters from the rest of the state, and risk[] narrowing political influence to only a fraction of political districts"[98]that "various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or coalitional districts,"[99] and, critically, Georgia may make that choice. Georgia's alteration of its safe districts would have been problematic at best in the 1980s and early 1990s, but the Court allowed it as a valid political choice that Georgia might choose to make in an effort to increase minority voting strengthan alternative to its obligation *480 under Gingles to draw a safe majority-minority district.
The Court held that the district court erred in focusing too heavily on the decrease of voting power in the previously safe districts, and in ignoring the offsetting influence and coalition districts. In the Court's view, the ability of minorities to elect their preferred candidates is important, but not dispositive. Despite the views of the Justice Department, the ACLU, and lower federal courts, the Court held that creating safe districts was not the only means of assuring an effective vote for minorities.
While Ashcroft is a § 5 preclearance case addressing the question of retrogression, the Court's opinion makes plain that safe districts are no longer untouchable. States previously read Gingles as requiring safe districts to ensure the election of minorities by countering racially polarized voting. But Georgia v. Ashcroft makes clear that safe districts are not necessarily required; states may choose to avoid retrogression by creating coalition and influence districts. Georgia decreased the percentage of minority voters in three previously safe districts to such a degree that, in the opinion of the Justice Department, minorities could not elect their candidate of choices. Yet, the addition of coalition and influence districts countered possible retrogression.
2
All parties here rely upon Georgia v. Ashcroft. Plaintiffs argue that Ashcroft effectively overruled Gingles's first requirement that "the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district."[100] Plaintiffs base this assertion on Ashcroft's reasoning that a district may provide effective representation to minorities despite the absence of a mathematical majority.[101] From this, Plaintiffs conclude that influence districts must be protected under § 2 of the Voting Rights Act.
In response, Texas argues that under Ashcroft redrawing an influence district does not inevitably dilute minority votes under § 2. Texas argues that if majority-minority districts may be altered without running afoul of the Voting Rights Act, then a fortiori an influence district may be altered. Ashcroft provided states with the flexibility to choose the means of complying with the Voting Rights Act, and although the Court opined that coalition and influence districts may be the most effective means of increasing minority influence, they are not required. Ashcroft did not dictate that a state must maximize both majority-minority and influence districts. Indeed, the question whether federal law requires influence districts has been avoided many times,[102] reflecting, the State argues, the Court's wariness of being drawn further into the political arena. Finally, the State notes that the Supreme Court faced the exact question and rejected it when it summarily affirmed a district court's rejection of the contention "that the first Gingles precondition is not fully applicable" to districts "where a distinct [minority] group cannot form a majority, but they are sufficiently large and cohesive to effectively influence elections, getting their candidate *481 of choice elected."[103]
Texas's argument finds support in the language of Ashcroft:
On one hand, a smaller number of safe majority-minority districts may virtually guarantee the election of a minority group's preferred candidate in those districts.... And while such districts may result in more "descriptive representation" because the representatives of choice are more likely to mirror the race of the majority of voters in that district, the representation may be limited to fewer areas.
On the other hand, spreading out minority voters over a greater number of districts creates more districts in which minority voters may have the opportunity to elect a candidate of their choice. Such a strategy has the potential to increase "substantive representation" in more districts, by creating coalitions of voters who together will help to achieve the electoral aspirations of the minority group. It also, however, creates the risk that the minority group's preferred candidate may lose.... Section 5 gives States the flexibility to choose one theory of effective representation over the other.[104]
As we see it, these choices are for the states to make, as long as they avoid other constitutional and statutory violations under the Equal Protection Clause and § 2. Allowing influence districts to meet a Gingles-imposed obligation to create a majority-minority district does not mean that a state must create an influence district in the absence of an obligation to create a majority-minority district. We are not persuaded that Texas had the duty in drawing a new map to trace the old lines to avoid any disruption of coalitions. To so conclude would have profound consequences, freezing ephemeral political alliances, which are the bull's eyes of partisan redistricting. We will turn to a concrete example. The 24th is a Democratic district, and its "coalitions" are simply minority Blacks joining with majority Anglos voting a Democratic ticket in the general election. Plaintiffs' understandable efforts to freeze this "coalition" by locating some duty under § 2 not to redraw the district is a transparent effort to use race as a shield from a partisan gerrymander when the district itself was a child of identical efforts to gerrymander. As we will explain, under the new plan, Democrats both Anglo and Blacklose control of the District 24.
B
We turn first to District 24, located in the Dallas-Fort Worth metroplex in an area referred to as the mid-cities. The congressman from the district is Martin Frost, an Anglo Democrat elected in 1978. This area between Dallas and Fort Worth experienced enormous growth from the early 1960's, leading to the creation of the 24th in 1972. With some iteration, the district has remained in place until the passage of Plan 1374C in 2003. The old 24th touched both Dallas and Fort Worth and included the communities of Duncanville and Cedar Hill on its south side. It also included large plants of Bell Helicopter, General Motors, Northrop Grumman, and Lockheed Martin, as well as the Texas Rangers' baseball stadium and the Six Flags Over Texas theme park.[105]
*482 Frost, then thirty-two years old, ran for the seat two years after it was created but was defeated in the Democratic primary by Dale Milford, the Anglo incumbent. Congressman Frost won the next race and has held the seat since then. Allied with Speaker Wright of Fort Worth, he quickly won leadership positions, including a seat on the Rules Committee. Frost is a major fund raiser for the Democratic party, and he so effectively chaired a redistricting panel in 1991 that he is widely seen as the architect of the redistricting plan of 1991.[106] This plan, drawing on the developing computer technology, is cited by political scientists as the shrewdest of the 1990s.[107] Congresswoman Eddie Bernice Johnson, who holds a seat in an adjacent largely Black district, testified that Frost drew the 24th for an Anglo Democrat.[108]
The judicial plan replaced by 1374C left the 24th largely in place. It had a Black voting age population of 21.4% and a Hispanic voting age population of 33.6%. The latter number falls when citizenship (CVAP) is considered, as it must be. The result is that neither Blacks nor Hispanics have 50% of the voters in the district alone or combined, where they constitute only 46.4%. Measured by the statewide races and the Lieutenant Governor's race in 2002, District 24 is approximately 60% Democrat, although Al Gore carried the district with 54% of the vote and Governor Bush carried the entire state with 59% of the statewide vote and 61% in the Dallas-Fort Worth metroplex. It bears mention that Houston and Dallas-Fort Worth cast 47% of all votes cast in the state.[109] Bush carried only 5% of the Black vote but enjoyed 42% of the Hispanic vote and 73% of the Anglo vote.[110]
Facing the absence of a minority with 50% of the voting age population of the district singly or combined, Plaintiffs contend that the 24th nonetheless meets the first two preconditions of Gingles because it "functions as a fully effective Black opportunity district." They offer three reasons why we should not adhere to Perez v. Pasadena Independent School District[111] and Valdespino v. Alamo Heights Independent School District,[112] which hold that Gingles requires a cohesive group of minority voters comprising a majority of the adult citizen population in at least one proposed single-member demonstration district. First, insisting on a level of 50% is reasonable only when the court is asked to speculate on the potential performance of a minority district, not when an existing district is shown to actually perform for minorities. Second, Plaintiffs point to a divided decision issued only weeks ago by a panel of the First Circuit, Metts v. Murphy, which dispensed with the 50% rule. The panel's decision, we note, was expressly withdrawn and vacated when the First Circuit voted to take the case en banc.[113] Third, Perez and Valdespino involved challenges to non-partisan at-large election *483 systems involving only single elections; here, we examine a single-member districting system with primary and general elections. Plaintiffs assert that if a minority can "control" the primary election and then find support with a coalition of minorities in the general election, the Gingles requirements are met and the district cannot be modified. Plaintiffs also offer a fourth, seemingly freestanding principle, urging that in any event District 24 cannot be intentionally dismantled because it is an influence or coalition district.
Defendants respond that § 2 requires a showing of strength at a level of at least 50% is a command of § 2, a requirement that is an inevitable byproduct of the statute's protection of the ability of minorities to elect representatives of their choice. A minority group lacking a majority cannot elect its candidate of choice, and denying the group a separate district cannot be a denial of any opportunity protected by the Act. Rather, such a group can elect their candidate of choice only with the votes of non-majorities through coalitions, but the Voting Rights Act does not protect such political coalitions. Defendants urge that whether a minority can meet the 50% standard is a quite different question from asking "whether a bi-racial coalition of African Americans and `crossover' Anglos can elect a Black-preferred Black candidate. Any such interpretation would render the first Gingles precondition an entirely superfluous subpart of the third Gingles precondition." Defendants argue further that the Supreme Court has never held that § 2 protects influence districts and such a proposal is foreclosed by the rationale of Georgia v. Ashcroft. Finally, defendants reply that there has been no showing that the 24th would probably elect a Black candidate, pointing to Congressional District 25 in the judicial Plan 1151C in which the demographics are strikingly similar21.4% BVAP and 33.6% HVAPwhere an Anglo, Bell, defeated Carroll Robinson, the Black candidate of choice, in the 2002 Democratic primary.
Plaintiffs' arguments are creative, but they ask this court to do more than wellsettled law will allow. To the heart of the matter: the contention that § 2 protects District 24 from redrawing asks us to extend § 2's protection of Blacks and Latinos from vote dilution to the protection of groups whose cementing force is membership and loyalty to a political party. Gingles and the cases that followed it have been keenly aware that the defining concepts of Ginglesnumbers and cohesion are critical to its studied effort to confine the limits of the Act to those situations that dilute minorities' opportunity to vote without protecting coalitions that may be helpful or even essential to the leveraging of their strength.[114] Properly confined, *484 the Act implements the fundamentals of factions. Unconfined it reaches into the political market and supports persons joined, not by race, but by common view. Serious constitutional questions loom at that juncture.
We are told that Blacks control the Democratic primary with less than 22% of the CVAP because Anglos and Latinos vote either in the Republican primary or not at all, but return home out of party loyalty in the general election. It is argued that this is a Black opportunity district. More accurately, however, it is a strong Democratic district. That there is no cohesion between Black and Latino voters in the primary contests is beyond serious dispute. Black opportunity here lies in coalitions with Anglos who vote with them in the general election for Democrats. Dr. Lichtman's calculations produce an Anglo crossover rate of 30.75 (unweighted mean). He conceded that in the general election Black turnout will fall to the range of 31, 32 or perhaps 33%, while Anglo turnout will jump into the 60's, approximately a two to one margin. Just how far this argument departs from the Gingles construct is exposed by the remainder that such a crossover rate has been found to establish the absence of Anglo bloc voting under Gingles's third precondition as a matter of law.[115]
The history of the 24th illustrates that Plaintiffs overstate the impact of the Black Democrats' control of the primaries. The reality is that Frost has not had a primary opponent since his incumbency began. That no Black candidate has ever filed in a Democratic primary against Frost in a district assertedly controlled by Blacks reflects the accuracy of Congresswoman Johnson's claim that District 24 was drawn for an Anglo Democrat.[116] We have no measure of what Anglo turnout would be in a Democratic primary if Frost were opposed by a Black candidate. Plaintiffs' asserted control of Blacks in the primary rests upon the shaky ground that much of the dominating Anglo Democratic vote does not bother to vote in the primary with Frost filing as an unchallenged Anglo. Its premise is that Frost challenged by a Black candidate would not result in a return to primary voting by the Anglo Democrats. In short, that Anglo Democrats control this district is the most rational conclusion.
Nor is the cohesiveness of this 21.6% black voting age population clear. Plaintiffs' expert relied heavily upon the high vote in the district for Ron Kirk, an African-American and former popular mayor of Dallas, in his race for the United States Senate. Dr. Lichtman resisted the suggestion that the "friends and neighbors" effect was distorting the results with the counter suggestion that the effect would be offset by Kirk's opponent in the Democratic primary, Victor Morales. That explanation is not persuasive. Morales is actually from Crandall, a town of 3,000 people some 75 miles away. In the 1998 Attorney General race, Judge Morris Overstreet, a widely known, respected, and distinguished *485 guished lawyer and judge, took 66% of the Black vote in Dallas County and 76% of the Black vote in Tarrant County. Julius Whittier, a Black candidate in the 2002 race for the Texas Court of Criminal Appeals, received 32% of the Anglo vote and 40% of the Black vote. In short, whether Blacks vote cohesively in the primary is far from certain.
That Blacks wield influence in the district is plain. Perhaps recognizing the difficulty of arguing that some specie of a relaxed Gingles construct imposes an obligation to create an influence or coalition district, Plaintiffs offer a fall-back alternative: that as an "influence district," the 24th cannot be "intentionally" redrawn. But this turns the principle of Georgia v. Ashcroft on its head. As we have explained, Ashcroft gave states greater latitude in complying with the Voting Rights Act. The Court recognized that while Gingles in application has resulted in significant gains in elected positions held by minorities, with the keener edge of computer drawn lines, it has also created "safe" white and minority districts, significantly reducing the necessity for the pull and tug to secure support from those with political influence. By locking in safe districts for minorities and Anglos alike instead of encouraging competition and the pull and tug of politicsthis legal regime began to undermine the core idea that the House of Representatives would be the branch of government directly responsive to the people. Ashcroft responds to these and other political realities with greater concern for forces that divide and fractionalize, especially those that would divide along racial lines. We do not read Ashcroft as fencing even more territory from state legislative reach. Considering that District 24 as a pure influence district is unprotected by § 2, we are persuaded that alterations to it raised questions primarily of § 5, which have been answered by the Department of Justice.
C
Although the bulk of Plaintiffs' argument focuses on District 24, Plaintiffs also assert that Plan 1374C violates § 2 by modifying minority influence districts in Central and East Texas, specifically districts 1, 2, 4, 9, 10, 11, and 17 from Plan 1151C. According to Plaintiffs, the minority population in these districts will have only a minimal role in the electoral process under the new plan.
However, as the State points out, Plaintiffs never argueand certainly never provethat any of these districts satisfies the Gingles preconditions. Even a cursory glance at the population data reveals that none of these districts passes muster under Gingles's first prong. In none of these districts does the citizen voting age population of any cognizable minority group surpass 22%, and in most the percentage is significantly lower. Indeed, even if we were to follow Plaintiffs' suggestion and combine the Black and Hispanic citizen voting numbers despite the lack of evidence of cohesion among these groups[117]the districts would still fail the first Gingles precondition by large margins. The evidence convinces us that these districts are influence districts at best, although we note that these districts vary considerably in the opportunity they afford minorities as a group to play any significant role in the electoral process. The population statistics summarized below *486 low bring this conclusion into sharper focus.
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Plan 1151C Plan 1374C
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Black Hispanic B + H Black Hispanic B + H
District CVAP CVAP CVAP CVAP CVAP CVAP
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1 15.8 3.3 19.1 18.2 3.9 22.1
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2 14.0 5.2 19.1 19.3 8.2 27.5
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4 11.5 4.1 15.6 10.3 3.9 14.2
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9 21.3 9.7 31.0 46.8 16.8 63.6
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10 11.8 22.0 33.8 9.7 12.1 21.8
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11 15.2 11.6 26.8 4.3 21.9 26.2
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17 4.0 14.5 18.5 10.0 9.8 19.8
===========================================================================
Plaintiffs admit that these seven districts are at most influence districts, but nonetheless urge that the State, after Ashcroft, is forbidden from altering them. Plaintiffs, however, do not argue that any of these districts is protected individually; they focus instead on these districts as a group and suggest that the State, by redrawing these seven influence districts plus the coalition districts in Districts 23 and 24, has gone too far in limiting minority influence statewide. We cannot agree. As we explained above, the State was under no § 2 obligation to create these districts, and we find that the State labors under no corresponding compulsion to preserve these districts. The allegation that the minority voting strength in these districts has been diluted is in truth no more than a claim that these districts have been drawn to add Republican voting strength to overcome the election advantage that the current Democrat incumbents hold.
VI
We next examine the challenge brought by and on behalf of Latino plaintiffs and intervenors to the impact of the legislative plan on Latino voting strength in South and West Texas. At the outset, it is useful to understand that the difficulties Texas presents to a redistricter are nowhere greater than in the Southern and western part of the State. The area can be described as a huge and rough inverted triangle, beginning in El Paso at the far western corner, extending south and east for hundreds of sparsely populated miles on or near the border to the cities of Laredo in Webb County, McAllen in Hidalgo County, and Brownsville in Cameron County, turning north up to the coastal city of Corpus Christi in Nueces County, then turning west to cover many miles that are lightly populated except for the areas to the south of San Antonio in Bexar County and Austin in Travis County. The sheer size of the land, its irregular shape, and the distribution of the bulk of the population in various pockets of the State are the basics that shape the map before the redistricter even begins. This part of the State also contains the greatest concentrations of Hispanic population. In the State as a whole, Latinos account for approximately 32% of the total population, 29% of the voting age population, and 22% of the citizen voting age population. In the South and West Texas regions at issue here, Hispanics represent 58% of the citizen voting age population. The largest numbers of Hispanics are located in the same areas of South and West Texas as are the large pockets of Anglo population: in El Paso County in the southwest corner; in Webb County, Hidalgo County, and *487 Cameron County in South Texas along the border and in the Rio Grande Valley; in Nueces County in the east along the coast; and in Central Texas in Bexar County and Travis County.
The plan the Balderas court approved to account for the population changes documented in the 2000 census, Plan 1151C, placed six congressional districts in South and West Texas, each containing the 651,620 individuals needed for equal population distribution and the mandate of one-man-one-vote. In Plan 1374C, the Legislature drew seven congressional districts in the same area, each containing the necessary 651,620 individuals. In both plans, six districts have a majority Hispanic citizen voting age population. Of the 44 counties included in the six districts in Plan 1151C and the 58 counties included in the seven districts in Plan 1374C, only the seven counties listed aboveEl Paso, Webb, Hidalgo, Cameron, Nueces, Travis, and Bexarhave populations above 100,000.
This combination of geography and population distribution fixes certain characteristics of the redistricting map for South and West Texas, reflected in both Plan 1151C and Plan 1374C. Both have a district in the far western corner of the State, in El Paso County, which has a population approaching 680,000. Under both Plan 1151C and Plan 1374C, Congressional District 16 in part of El Paso County has a majority Hispanic citizen voting age population and is an effective "safe" Hispanic opportunity district. Plan 1374C leaves Congressional District 16 essentially unchanged, a decision not challenged in this case. But east of this far western population pocket, the counties are so sparsely populated that the district next to 16 Congressional District 23must extend far to the east to reach the numbers of people necessary to satisfy equipopulosity.[118] A map drawer must travel east almost 800 miles to reach another county that approaches, much less exceeds, 100,000 souls: Webb County, at the western edge of the southern tip of Texas.
In Plan 1151C, Webb County, with 193,117 people, is kept entirely in Congressional District 23; in Plan 1374C, Webb County is divided between Congressional District 23 and Congressional District 28, directly to the east. Whether Webb County is divided or not, the districts that begin in the relatively narrow and relatively densely populated southern part of Texas, which includes the Rio Grande Valley, must extend north to gather enough population to satisfy equality among the districts. Both Plan 1151C and Plan 1374C share this characteristic. Plan 1151C has two "strip" districts that begin in South Texas and travel to the north toward the center of the State to gather the requisite number of people.[119] Plan 1374C has three "strip" districts that begin in South Texas; each of those districts follows the same north-south path and has the same *488 shape as in Plan 1151C, but is narrower and longer to accommodate three districts rather than two. In both Plan 1151C and Plan 1374C, the redistricter traveling north largely avoided the area that is Congressional District 20, which includes San Antonio in Bexar County and is a "safe" Hispanic district.
The map drawer defining the district in the southeastern corner of the State must also begin in the Rio Grande Valley and proceed north to include enough people to satisfy equipopulosity. The map drawer need not travel as far north as in the "strip" districts to find the necessary population for this southeastern coastal district, however, because Nueces County, which contains Corpus Christi, has over 300,000 people.
Both Plan 1151C and Plan 1374C exhibit similar features, resulting from this combination of geography and population distribution. The district that begins just east of El Paso County must be large and must run east from far West Texas, stretching deeply into Central and South Texas. The districts that begin in far South Texas must run north in "strip" fashion into Central Texas. The district that begins in the southern tip of Texas and travels up the coast must also proceed north.
Against this backdrop, we examine the record as to the effects of the legislative plan in South and West Texas on Latino voting strength.
A
In Plan 1151C, the court drew six districts in South and West Texas, each with a majority of the Latino citizen voting age population. As noted, two of those districts, Congressional District 16, consisting primarily of part of the city of El Paso, and Congressional District 20, consisting primarily of part of the city of San Antonio, are not at issue in the change from Plan 1151C to Plan 1374C and are not challenged in this suit. Both were, and are, effective Hispanic opportunity districts. One of the districts in Plan 1151C, Congressional District 23, had a bare majority of Hispanic citizen voting age population and had not performed consistently as a Hispanic opportunity district. Congressional Districts 28, 15, and 27 made up the remainder of the districts in South and West Texas, each with a majority Hispanic citizen voting age population and a majority of the Spanish-surnamed registered voters, and each performing as effective Hispanic opportunity districts. Each of the six districts in South and West Texas under Plan 1151C was reliably Democratic in both congressional and other elections, with the exception of Congressional District 23. That district has since 1992 elected a Hispanic Republican to Congress, Henry Bonilla.
In Plan 1374C, the Legislature sought to apply to South and West Texas its primary partisan goal of increasing the likelihood that Republican candidates would be elected to Congress, while avoiding violations of the Voting Rights Act, the Equal Protection Clause, and the mandate of one-man-one-vote. The record presents undisputed evidence that the Legislature desired to increase the number of Republican votes cast in Congressional District 23 to shore up Bonilla's base and assist in his reelection. The evidence showed that Bonilla had lost a larger amount of Hispanic support in each successive election. In 2002, Bonilla attracted only 8% of the Latino vote. In order to make Congressional District 23 more Republican, the map drawers extended the district north to take in largely Republican and Anglo areas in the north-central part of the State, including Bandera, Kerr, and Kendall counties. That change added approximately 101,260 people to Congressional District 23. The *489 legislative plan moved the district line at the eastern edge to divide the southern border city of Laredo, in Webb County. That change resulted in 99,776 individuals, who were more than 90% Hispanic in voting age population and 86.5% Democratic in voting according to the 2002 statewide election data, being placed in the adjacent district, Congressional District 28. Although Congressional District 23 still had a majority of Hispanics55.1% and a bare majority of Hispanics of voting age 50.9%it no longer had a majority of citizen voting age Hispanics. In the reconfigured Congressional District 23 in Plan 1374C, Hispanics accounted for 46% of the citizens of voting age, and only 44% of the registered voters had Spanish surnames. By contrast, Congressional District 23 in Plan 1151C had a 57.5% Hispanic citizen voting age population and 55.3% Spanish-surnamed registered voters. To avoid retrogression under § 5, the State created another district in South and West Texas, in which Hispanics were a clear majority of the citizen voting age population. The State then had to adjust the population distributions to avoid inequality among the districts.
To accomplish the first goal, Plan 1374C added a third district to the two already long and relatively narrow districts that covered the bottom of the inverted triangle of South Texas and extended north. To maintain the requisite population numbers, each of these three districts had to extend farther north than the two districts had in Plan 1151C. The three districts under Plan 1374C ran from the population pockets near the border north through sparsely-populated areas to reach the pockets of population in the central part of the State, south and east of San Antonio and Austin. The reconfigured districts each added counties in the process.[120] The two preexisting districtsCongressional Districts 28 and 15maintained a majority Hispanic citizen voting age population and a majority of Spanish-surnamed registered voters in Plan 1374C. The newly created District Congressional District 25also had a majority Hispanic citizen voting age population and a majority of Spanish-surnamed registered voters. The district that runs along the eastern border of South Texas, Congressional District 27, similarly maintained a majority Hispanic citizen voting population and a majority of Spanish-surnamed registered voters. As a result, Plan 1374C had seven congressional districts in South and West Texas, six with a majority of Latino citizen voting age population that are, as explained further below, effective Hispanic opportunity districts, and one that is a Hispanic influence district. Plan 1151C had six congressional districts in South and West Texas with a majority of Latino citizen voting age population, one of which was not an effective Hispanic opportunity district, but was moving in that direction.
Plaintiffs raise a number of challenges to the redrawn districts in South and West Texas. The GI Forum Plaintiffs claim that Plan 1374C is deficient for the same reason its predecessor, Plan 1151C, was deficient: an additional Latino majority citizen voting age population district should be drawn to achieve compliance with § 2 of the Voting Rights Act. Plaintiffs claim that the legislative plan dilutes *490 Latino voting strength, in violation of § 2. Finally, Plaintiffs claim that in deciding where to draw the lines, the map drawers were predominately driven by ethnicity, in violation of the Equal Protection Clause. Plaintiffs assert that in drawing the excessively long "bacon-strip" districts, Congressional Districts 15, 25, and 28, the Legislature subordinated the traditional redistricting criteria of compactness and respect for communities of interest and political divisions to the need to include sufficient numbers of Latino voters to create majority-minority districts, in a manner forbidden by Shaw v. Reno (Shaw I)[121] and its progeny.
The State responds by arguing that there have been no developments since the Balderas panel issued its opinion to call into question that court's holding that § 2 did not require an additional Latino majority citizen voting age population district in South and West Texas. The State argues that the Supreme Court's decision in De Grandy v. Johnson[122] strongly supports its position because the number of effective Latino majority citizen voting age population districts in the relevant area is more than roughly proportional to the Latino citizen voting age population in that area and as proportional to the Latino citizen voting age population in the State as the Gingles requirements support. The State argues, and presented evidence to show, that the changes made to the South and West Texas districts in Plan 1374C resulted from the politically motivated decision to make Congressional District 23 more Republican and improve the reelection chances of the Hispanic Republican incumbent, Congressman Henry Bonilla. The State presented evidence that it could not achieve its political end without splitting Laredo and Webb County to remove reliably Democratic voters; that it added a new district, Congressional District 25, which, with Congressional Districts 15, 28, and 27, provides the same number of effective Latino opportunity districts as did Plan 1151C and meets the requirements of De Grandy proportionality; and that ethnicity did not predominate in the numerous decisions involved in the placement of the district lines in Congressional Districts 28, 15, 25, and 27.
The claims that Plaintiffs make as to this part of the State do not raise the questions of coalition districts in which Anglos, Hispanics, and African-Americans are all present, although no minority group is a majority of the relevant population. Rather, Plaintiffs make claims that are more familiar in Voting Rights Act litigation. They claim that in South and West Texas, they are a minority meeting the Gingles requirements; that in one district, they have been "cracked" and submerged into an Anglo majority, such that they cannot elect candidates of their choice; and that as to the rest of the districts in the area, although they are a majority of the citizen voting age population, a functional examination reveals that their ability effectively to elect their candidates of choice has been weakened. The fact that the dilution claim is familiar, however, does not make the analysis simple. As the Supreme Court stated in De Grandy, "Plaintiffs challenging single-member districts may claim, not total submergence, but partial submergence; not the chance for some electoral success in place of none, but the chance for more success in place of some. When the question thus comes down to the reasonableness of drawing a series of district lines in one combination of places rather than another, judgments *491 about inequality may become closer calls."[123]
B
The GI Forum Plaintiffs allege that they are entitled under § 2 to an additional district in South and West Texas in which Latinos are a majority of the citizen voting age population and can effectively elect candidates of their choice. In both Plan 1151C and Plan 1374C, six districts in South and West Texas have a majority of Latino citizens of voting age. The GI Forum Plaintiffs present a demonstration district, Plan 1385C, that shows an additional Latino citizen voting age majority district in South and West Texas. The record contains variations of proposed districting plans that meet the same goal. These Plaintiffs, however, have presented no convincing basis to reject the Balderas holding that § 2 did not require an additional district in South and West Texas after the 2000 census.
The GI Forum Plaintiffs argue that since Balderas, additional data has become available distinguishing the citizen voting age population by race and ethnicity, making it easier to establish that an additional Gingles district can be drawn in South and West Texas. Plaintiffs presented demonstration plans to the Balderas panel that they claimed showed the feasibility of drawing an additional Hispanic citizen voting age population majority district in the area. The Balderas panel found that Plaintiffs had failed to prove that § 2 required the creation of an additional Latino citizen voting age majority congressional district in South and West Texas. Plaintiffs appealed that finding; the Supreme Court summarily affirmed. The additional census data Plaintiffs present does not alter the validity of that finding.[124]
The GI Forum Plaintiffs assert that they have met the Gingles criteria because their demonstration plan, 1385C, creates seven districts with a Hispanic citizen voting age population above 50%. The record, however, does not show that their demonstration plan would satisfy Gingles. Plan 1385C proposes districts that are more unusually shaped than in either Plan 1151C or Plan 1374C.[125] The demonstration *492 tion plan Plaintiffs present underscores the difficulty of drawing seven, rather than six, Latino opportunity districts that meet the Gingles requirements in the vast geography and irregularly distributed population of South and West Texas.
Even if this court were to assume that the finding in Balderas rejecting the claim that an additional Hispanic citizen voting age population majority district should be drawn in South and West Texas was entitled to no weight, and even if this court were to overlook the Gingles problems reflected in the proffered demonstration plan, the GI Forum Plaintiffs have failed to make the necessary showing under § 2. This court recognizes that Plaintiffs have established racially polarized voting and a political, social, and economic legacy of past discrimination. But any examination of the totality of the circumstances beyond Gingles must include proportionality. Plaintiffs argue that because Latinos represent 22% of the citizen voting age population of the State, seven out of the thirty-two districts in the State should be drawn to produce Latino citizen voting age majorities. The State responds by noting that Latinos comprise 58% of the citizen voting age population in South and West Texas and constitute the majority of the citizen voting age population in six out of the seven districts in that region, exceeding rough proportionality for the area.[126] The *493 State also argues that even considering all of Texas as the relevant area for measuring proportionality, an examination of the totality of the circumstances does not lead to the conclusion that an additional Latino majority citizen voting age population district must be drawn in South and West Texas.
The Supreme Court has explained that "proportionality," a word not expressly used in § 2, involves a comparison between (1) the percentage share of legislative districts in which the population of the protected class has a majority and (2) the protected class's percentage share of the "relevant population."[127] Proportionality is an important aspect in evaluating "equality of opportunity, [but is] not a guarantee of electoral success for minority-preferred candidates."[128]
The Supreme Court has not resolved what geographic frame of reference should be used to analyze proportionality, whether it is by district, county, region, or state. In DeGrandy, "the plaintiffs ... passed up the opportunity to frame their dilution claim in statewide terms"; the Court applied the Gingles factors and analyzed proportionality as limited to "Hispanics in the Dade County area."[129] In this case, however, Plaintiffs do not argue that the Gingles criteria justify the creation of any additional Latino citizen voting age majority districts outside South and West Texas. Despite the presence of large numbers of Hispanics elsewhere in the State, and despite the presence of racially polarized voting throughout the State, no plaintiff asserts that the Gingles criteria would permit an additional Latino citizen voting age population majority district anywhere but in South and West Texas. Again, the combination of geography and population distribution quickly explain why. The areas in which Latinos account for 50% or more of the voting age population are confined to El Paso County in far West Texas, surrounded by counties of vast space and little population; Presidio County in West Texas along the border, which has only 7,304 people and is surrounded by vast space with little population; and the South Texas area from Maverick County to the Rio Grande Valley. The Latino population in the rest of the State is numerous, but dispersed over large areas.[130] Lower courts that have analyzed "proportionality" in the De Grandy sense have been consistent in using the same frame of reference for that factor and for the factors *494 set forth in Gingles.[131] If South and West Texas is the only area in which Gingles is applied and can be met, as Plaintiffs argue, it is also the relevant area for measuring proportionality. Because the Supreme Court has not yet provided precise guidance on the proper standard for assessing proportionality, however, we also examine proportionality on a statewide basis.
Under the legislative plan, 1374C, as under the court-imposed plan it replaces, 1151C, six out of the seven districts in South and West Texas are Latino citizen voting age majority districts. Given the fact that Latinos comprise 58% of the citizen voting age population in South and West Texas, proportionality is satisfied as to that area.
As noted, the Supreme Court has not made clear what geographic unit is the relevant area to measure proportionality. De Grandy did not discuss the role of a district such as Congressional District 29 in the Houston area of Harris County, or Congressional District 23 in West Texas, in which Latinos constitute approximately 47% of the citizen voting age population, less than a majority but large enough to constitute an influence district, in assessing proportionality as part of the totality of the circumstances. Plaintiffs are correct in their calculation that six districts in which Latinos hold a majority of citizen voting age population, out of the thirty-two districts that comprise Texas, do not equate to arithmetic proportionality between the number of Latino majority-minority districts and the Latinos' percentage of the citizen voting age population in the State. De Grandy emphasizes, however, that the inquiry is not merely mathematical.[132] Rather, De Grandy requires an examination of whether the totality of circumstances includes rough proportionality between the number of effective majority-minority districts that can be drawn meeting the Gingles factors and the minority members' share of the relevant population.[133]
One of the districts that Plaintiffs would create in their demonstration plan, proposed Congressional District 28 has a Hispanic citizen voting age population of only 50.3%, and five of the seven districts have a Hispanic citizen voting age population that is below 60%. Plaintiffs vigorously criticize the legislative plan, 1374C, in part *495 because three of the districts it creates Congressional Districts 15, 25, and 28have Hispanic citizen voting age population numbers that are below 60%. Plaintiffs' own experts and argument reminded this court that because of the lower turnout of Latino voters, a low majority of the Hispanic citizen voting age population does not produce an effective Latino opportunity district.[134]
Under Plan 1151C, Congressional District 23 was not an effective minority opportunity district, despite the fact that it had a 57.4% Latino citizen voting age majority. Plaintiffs specifically criticize Congressional District 15 in Plan 1374C, which has a Hispanic citizen voting age population of 58.5% reduced from 69.3% in Plan 1151Cas weakened to the extent that it is better classified as a Latino influence district rather than a Latino opportunity district, although other witnesses contradicted this characterization.[135] The legislative plan has one fewer district in which Latinos constitute a majority of the citizen voting age population than the demonstration plan. The legislative plan and the demonstration plan, however, have the same number of districts in which Latinos equal or exceed 55% of the citizen voting age population. The legislative plan has one more district in which the Hispanic citizen voting age population exceeds 60% *496 than the demonstration plan.[136]
The GI Forum Plaintiffs have shown neither that seven districts can be drawn, meeting the threshold Gingles requirements, that have a majority of Hispanic citizen voting age population, nor that all such districts, if they could be drawn, would function effectively as Latino opportunity districts. We reject the claim of the GI Forum Plaintiffs that § 2 demands a seventh Hispanic citizen voting age population majority district in South and West Texas. Part of the analysis of the dilution claim, to which we now turn, will explain why we believe the six Hispanic citizen voting age population majority districts drawn in Plan 1374C are effective Hispanic opportunity districts.
C
It is undisputed that Plan 1374C eliminated Congressional District 23 as a district with a Latino majority citizen voting age population for the political purpose of increasing Republican voters in the district and shoring up the reelection chances of the Republican incumbent. To avoid retrogression, Plan 1374C added a new Latino majority citizen voting age population district to the east and reconfigured the existing districts. Plaintiffs complain that the weakening of Congressional District 23, preventing it from continuing to move toward becoming an effective opportunity district, results in dilution in violation of § 2. Plaintiffs argue that the dilution cannot be addressed by the creation of Congressional District 25 as a Latino opportunity district. Plaintiffs also complain that even if dilution is to be measured on a broader basis than a single district, Plan 1374C is dilutive because the reconfiguration of Congressional Districts 15, 28, and 27 weakens Latino voting strength in these districts.
Congressional District 23 is unquestionably not a Latino opportunity district under Plan 1374C. The map drawers divided Webb County, which is 94% Latino. This change removed reliably Democratic voters in Laredo out of Congressional District 23. Under Plan 1374C, the Hispanic citizen voting age population is 46%, reduced from 57.5% in Plan 1151C; the percentage of Spanish-surnamed registered voters is 44% under Plan 1374C, reduced from 55.3% in Plan 1151C. Even as configured under Plan 1151C, however, Congressional District 23 did not perform as an effective opportunity district. The GI Forum Plaintiffs' regression analysis of election data showed that Latino candidates of choice were elected in five out of eight racially contested elections from 1994 to 2002.[137] The record showed, however, that Latino voters in Congressional District 23 were *497 voting against the Republican candidate Bonilla by larger margins in each successive election. Latino voting strength in Congressional District 23 is, unquestionably, weakened under Plan 1374C. The GI Forum regression analysis of election data for Congressional District 23 under Plan 1374C showed that the Hispanic candidates of choice won only one out of eight racially contested elections from 1994 to 2002.[138] Dr. Gaddie's regression data showed that, in Congressional District 23 under Plan 1374C, Hispanic candidates of choice won seven out of seven statewide primaries, but none of the six Hispanic candidates of choice in general elections carried the district.[139]
Plaintiffs claim that the map drawers impermissibly reduced Hispanic voting strength in Congressional District 23 to pursue their political end. Plaintiffs urge that the political end could have been achieved by leaving Webb County whole and redrawing Congressional District 23 to put Bonilla's home in Congressional District 11, where he could have run in an open seat. The State points out that this approach would not have served either the political goal of incumbency protection or of increasing Republican districts, since Congressional District 11 already reliably elects Republicans in congressional and other elections. The change to Congressional District 23 served the dual goal of increasing Republican seats in general and protecting Bonilla's incumbency in particular, with the additional political nuance that Bonilla would be reelected in a district that had a majority of Latino voting age populationalthough clearly not a majority of citizen voting age population and certainly not an effective voting majority.
Plaintiffs argue that the admittedly political decision to draw the line through the city of Laredo, placing the largely Democratic, Hispanic voters in Congressional District 28 to the east and "stranding" 359,000 Hispanics in Congressional District 23, where they will be submerged in a Republican, Anglo majority district, violates § 2. De Grandy, however, rejected the claim of separating heavily Hispanic neighborhoods, fragmenting them in certain districts and packing them into others, as a basis for liability, even if the Gingles factors are met, because the totality of the circumstances included a showing that Hispanic voters had effective voting majorities in the relevant area in rough proportion to the their voting age population.[140]
Typically, vote dilution claims address redistricting schemes that take a minority group whose members have the potential to comprise a numerical majority in a geographically compact district and disperse the group across two or more districts, thereby precluding the minority members from constituting an effective majority in either one.[141] Plan 1374C, however, does not produce such an effect in South and West Texas. Instead, Plan 1374C changes the district boundary in a way that divides Democratic Hispanic voters in Webb County, keeping half in Congressional District 23, in which Republican voting strength is increased and Hispanic voting *498 strength is weakened, and placing half in Congressional District 28, in which Latinos have a clear majority of the citizen voting age population, even after a new district, 25, is added as a majority Latino citizen voting age population district. The Legislature also reconfigured Congressional Districts 15, 28, and 27 in ways that both achieved equal population distribution and preserved the majority Latino citizen age voting populations in each of those districts.
Plaintiffs rely on Shaw v. Hunt (Shaw II)[142] to argue that the State cannot "offset" the reduction of Latino voting strength in Congressional District 23 by creating a new Latino majority citizen voting age district, Congressional District 25, because to do so would "swap" the voting rights of citizens in Congressional District 23 for the rights of those in new Congressional District 25. In Shaw II, the Court held that the creation of a remedial district in one area of a state, where polarized voting existed but where a compact majority-minority district could be not drawn, could not compensate for the failure to place a remedial district in another area where it was possible to draw a compact majority-minority district and where polarized voting also existed.[143] The Court held that a bizarrely shaped district "somewhere else in the State" does not remedy the "vote-dilution injuries suffered" by minority voters residing where the remedial district could have been drawn.[144] The Court rejected a district drawn in the center of the state to remedy the dilution injury of voters on the southeastern side of the state, not because there were differences in polarization, but because a remedial Gingles district could not be drawn in the part of the state that the map drawers selected.[145] In this case, by contrast, in South and West Texas, six Gingles Latino citizen voting age population majority districts could be and were drawn.[146] The Legislature did not place the lines of those districts in parts of the State where the Gingles requirements were not satisfied; the problem present in Shaw II is not involved in this case.
Analysis of the Gingles factors shows that the Latino population is sufficiently numerous and distributed as to support the creation of a number of effective districts in South and West Texas with a majority of Latino citizen voting age population. The Gingles districts in South and West Texas could be drawn in different ways, within the constraints of geography and population distribution. Both Plan 1151C and Plan 1374C have six districts with a majority of Latino citizens of voting age. The choices available to the State included the lines of Plan 1374C, which created a new remedial district that had not been present under the previous plan, or the lines of Plan 1151C, keeping Congressional District 23 as a bare majority Hispanic citizen voting age population district, but not drawing another district with a stronger Latino citizen voting age population *499 majority. Most of the Plaintiffs argue that the State should be compelled to return to the lines of Plan 1151C for South and West Texas. Plaintiffs do not argue that the State should both retain the lines of Congressional District 23 under Plan 1151C and add a new majority Hispanic citizen voting age population district along the lines of Congressional District 25. Indeed, there is neither sufficiently dense and compact population in general nor Hispanic population in particular to support such a configuration. But to say that the State could have retained the lines of Congressional District 23 drawn under Plan 1151C and not created a third district based in the Rio Grande Valley with a majority of Hispanic citizen voting age population is different from saying that the State was obligated to make that choice. Shaw II does not preclude the State from choosing where and how to draw majority-minority districts in areas where Gingles is satisfied. The states retain broad remedial power to choose where and how to draw remedial districts.[147] As the Court noted in Shaw II, even if a violation of § 2 is shown, it does not confer on individual plaintiffs "the right to be placed in a majority-minority district" because "[s]tates retain broad discretion in drawing districts to comply with the mandate of § 2."[148]
To examine whether Plan 1374C impermissibly dilutes the votes of Latinos in South and West Texas, this court must conduct a "comprehensive ... canvassing of relevant facts" making up the totality of the circumstances, including proportionality, to determine whether the districts drawn under Plan 1374C in South and West Texas are effective Latino opportunity districts.[149] Congressional District 23 is clearly not a minority opportunity district; Congressional Districts 16 and 20 do clearly provide effective Latino citizen voting age population majorities. The disputes center on whether Congressional Districts 15, 25, 28, and 27 as drawn in Plan 1374C will be effective Latino opportunity districts.
Some of the relevant data from the voluminous record is as follows:
Congressional
District % HCVAP % SSR (2002)
1151 15 69.3 67.0
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1374 15 58.5 56.7
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1151 25 18.6 15.2
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1374 25 55.0 55.6
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1151 28 61.4 59.6
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1374 28 56.2 54.3
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1151 27 63.5 61.6
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1374 27 60.4 58.0
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The parties also presented detailed regression analyses of election data, performed by different experts.[150] The regression analyses confirmed that in Congressional Districts 15, 25, 28, and 27 under Plan 1374C, the Latino candidate *500 of choice won in nearly every primary and runoff examined. The GI Forum's regression analysis of election data reveals that under Plan 1374C, Latinos elected their candidate of choice in eight out of eight racially contested elections from 1994 to 2002 in every one of the six Latino majority citizen voting age population districts, including Congressional District 15.[151] Dr. Gaddie's report similarly concluded that the Latino candidate of choice won in seven of seven primaries and five of six general elections in Congressional District 15.[152] In Congressional District 25, Dr. Gaddie concluded that Hispanic candidates of choice carried seven of seven statewide primaries and six of six statewide general elections involving candidates of different ethnicity or race, and that in the 2002 contested statewide Democratic primaries and statewide general elections, Hispanic candidates of choice prevailed in five of six primaries and all fifteen general elections.[153] In Congressional District 27, Dr. Gaddie concluded that Hispanic candidates of choice won seven of seven statewide primaries and five of six statewide general elections involving candidates of different ethnicity or race.[154] In Congressional District 28, Dr. Gaddie concluded that Hispanic candidates of choice prevailed in all seven statewide primaries and all six statewide general elections involving candidates of different ethnicity or race.[155]
Although Dr. Lichtman expressed concern when testifying for Plaintiffs that Congressional District 15 and Congressional District 25 might be marginal, or moving toward a "toss-up," he acknowledged on cross-examination that all four of the districts at issue, 15, 25, 27, and 28, are Hispanic opportunity districts, defined as a district in which Hispanic voters have an effective opportunity to control outcomes in both primary and general elections.[156] Dr. Lichtman expressed concern that in Congressional District 25 under Plan 1374C, while Hispanic voters would control the primaries, Congressman Lloyd Doggett, the incumbent in Congressional District 10 under Plan 1151C and an Anglo Democrat, might run and win the general election without a majority of Hispanic *501 votes.[157] Dr. Lichtman nonetheless agreed that Congressman Doggett has had "overwhelming Latino support" in his current congressional district.[158]
Several witnesses expressed particular concern over Congressional District 15, which under Plan 1374C has a Latino citizen voting age population of 58.5% and a Spanish-surnamed registered voter population of 56.7%. Although these numbers are lower than the levels that had been present in Congressional District 15 under Plan 1151C, the regression analyses showed that the Hispanic-preferred candidate won every primary and runoff election studied, and lost in only one general election out of six.[159] Both Dr. Lichtman and Dr. Engstrom testified that Congressional District 15 was a minority opportunity district, although not as strong as it had been under Plan 1374C.[160] In contrast, Dr. Polinard testified that given this reduction in strength, Congressional District 15 was no longer an effective or performing opportunity district, merely an influence district.[161]
In Plan 1151C, Congressional District 27 included all of Cameron County along the border, but only part of Nueces County to the north. In Plan 1374C, Congressional District 27 includes all of Nueces County but divides Cameron County. The result did not significantly change the relevant data. In Plan 1374C, Congressional District 27 has a Hispanic citizen voting age population of 60.4% and a Spanish-surnamed registered voter population of 58%, reduced from a Hispanic citizen voting age population of 63.6% and a Spanish-surnamed registered voter population of 61.6% under Plan 1151C.[162] As noted, the regression analyses showed that Hispanic candidates of choice won seven of seven statewide primaries and five of six statewide general elections involving candidates of different ethnicity.[163] Dr. Lichtman testified that Congressional District 27 under 1374C is a minority opportunity district.[164] Dr. Engstrom testified that Congressional District 27 in Plan 1374C is a district in which Hispanics have the opportunity to elect their preferred candidate.[165]
Congressional District 28 under Plan 1374C includes part of Laredo in South Texas and extends north to the relatively heavily populated areas of Central Texas. The demographic figures show that the district maintains a decisive Hispanic citizen voting age population majority, although reduced from the levels present under Plan 1151C. In Congressional District 28 under Plan 1374C, the Hispanic citizen voting age population is 56.2% and the Spanish-surnamed registered voter population is 54.3%, slightly less than the 61.5% of Hispanic citizen voting age population and 59.6% Spanish-surnamed registered voter population under Congressional District 28 in Plan 1151C.[166]
*502 At trial, witnesses familiar with the areas covered by Congressional Districts 15, 25, 27, and 28 and with the difficulties faced by candidates supported by Latino voters expressed concern as to whether these districts would be effective as Latino opportunity districts.[167] The witnesses testified that the size of the districts; the fact that they include several media markets; and the fact that they combine communities along the border with communities in Central Texas, with diverse needs and interests, could make it more difficult for thinly financed Latino-preferred candidates to achieve electoral success and to provide adequate and responsive representation once elected.[168] These concerns bear on the extent to which the new districts are functionally effective Latino opportunity districts, important to understanding whether dilution results from Plan 1374C.[169]
The "bacon-strip" districtsCongressional Districts 15, 25, and 28are unquestionably long. Congressional District 25 is 300 miles long and 77% of its total population comes from either end of the district; 39% from Travis County in Central Texas and 38% from Hidalgo County at the southern end. Congressional District 15 is also 300 miles long, from Cameron County in South Texas to Bastrop County in Central Texas, and its population is also concentrated at either end. Congressional District 28 runs nearly 300 miles from Hays County south to Zapata County on the border with Mexico. Districts that began in the same area in Plan 1151C were also long and relatively narrow, extending from the border of South Texas to Central Texas, although not as far. The record does not disclose the number of media markets covered in the districts under Plan 1151C, but it is clear that several of the areas joined in districts under Plan 1374C were also joined together in districts under Plan 1151C. It is also clear that adding a third district based in the Rio Grande Valley made each of the three districts extend north and include residents of both the Rio Grande Valley and Central Texas. While Latino residents in both areas generally have lower socio-economic indicators than Anglos, the evidence at trial showed that the needs and interests of Latino communities on the South Texas border are different from the needs and interests of Latino communities in Central Texas. The issue is whether these features mean that the newly-configured districts dilute the voting strength of Latinos.
At trial, the court was greatly assisted by the testimony of elected officials from the districts at issue. These witnesses, including Congressman Hinojosa, representing Congressional District 15; State Representative Aaron Peña, who resides in Congressional District 15 and represents a district located in Congressional District 25; State Representative Jim Solis from Cameron County in Congressional District 27; and County Judge Ramon Garcia and County Commissioner Ricardo *503 Godinez from Hidalgo County, were most concerned that the districts would no longer be dominated by the border cities in the Rio Grande Valley. Instead, the districts would also contain a number of constituents from northern, less impoverished communities. The witnesses testified that the size and diversity of the newly-configured districts could make it more difficult for the constituents in the Rio Grande Valley to control election outcomes. For example, witnesses testified that Congressional District 27 under Plan 1374C includes more affluent and higher-turnout voting areas in Nueces County, in contrast to Congressional District 27 in Plan 1151C, which included only half of Nueces County, and expressed concern that Latinos from the border might have difficulty in maintaining control over election outcomes because of low turnout.[170] The district, however, has a Latino citizen voting age majority population of 60.4%, and 58% of the registered voters have Spanish surnames. Witnesses consistently testified that Congressional District 27 under Plan 1374C is a district where Hispanics have an effective opportunity to elect their preferred candidate, and the regression data supports this conclusion.[171] As noted, witnesses testified that Congressional District 25, while a more effective Latino opportunity district than Congressional District 23 had been in Plan 1151C, might elect Lloyd Doggett, a well-known and well-financed Anglo Democrat from Central Texas, to Congress, but acknowledged that many Hispanics support this Anglo Democrat.[172] The legal test of an effective opportunity district is not whether a Hispanic candidate is elected each time, but whether a Hispanic-preferred candidate has an effective opportunity to be elected.[173] Witnesses testified that Congressional Districts 15 and 25 would span colonias in Hidalgo County and suburban areas in Central Texas, but the witnesses testified, and the regression data show, that both districts are effective Latino opportunity districts, with the Hispanic-preferred candidate winning every primary and general election examined in District 25 and, in District 15, winning every primary and runoff election studied and losing in only one general election out of six.[174] Witnesses testified that Congressional District 28 had been, and would continue to be, an effective Hispanic opportunity district, confirmed by the regression data showing that Hispanic candidates of choice won in every primary and general election examined.[175]
A close examination of the voluminous record and the testimony at trial leads to a finding that Plan 1374C does not impermissibly dilute the voting strength of Latinos in South and West Texas in violation of § 2. The newly-configured Districts 15, 25, 27, and 28 cover more territory and travel farther north than did the corresponding districts in Plan 1151C. The districts combine more voters from the central *504 part of the State with voters from the border cities than was the case in Plan 1151C. The population data, regression analyses, and the testimony of both expert witnesses and witnesses knowledgeable about how politics actually works in the area lead to the finding that in Congressional Districts 25 and 28, Latino voters will likely control every primary and general election outcome; in Congressional Districts 15 and 27, Latino voters will likely control every primary outcome and almost every general election outcome; and in Congressional District 23, Latino voters will likely control every primary outcome but not the general elections. The fact that Hispanic-preferred candidates will have to campaign for votes not only from Latinos in the Rio Grande Valley but also from Latinos in Central Texas in Congressional Districts 25, 28, and 15 does not mean that Latinos have suffered an impermissible dilution of voting strength in those districts. The fact that Latinos from the Rio Grande Valley in Congressional District 27 are combined with voters from Nueces County, while maintaining a decisive citizen voting age population and Spanish-surnamed registered voter majority, as well as consistent electoral control, does not mean that Latinos have suffered an impermissible dilution of voting strength in that district.[176]
As the Court stated in Gingles, "[T]he relative lack of minority electoral success under a challenged plan, when compared with the success that would be predicted under the measure of undiluted minority voting strength the court is employing, can constitute powerful evidence of vote dilution."[177] Whether compared to Plan 1151C or to the GI Forum Plaintiffs' demonstration plans, Plaintiffs have not shown an impermissible reduction in effective opportunities for Latino electoral control or in opportunities for Latino participation in the political process. Section 2 guarantees minority voters an effective opportunity to exercise electoral control, not overwhelming electoral majorities or guarantees of success. The totality of facts and circumstances, including those pointing to proportionality, as well as past and predicted election outcomes and evidence as to the likely functioning of the newly-configured districts, does not show a violation of § 2 in South and West Texas under Plan 1374C.
Plaintiffs argue that taking a broad view of the state-wide effect of Plan 1374C, dilution results because of the loss of the "influence districts" in other parts of the State in which Latino voters played a role, specifically, Congressional District 24 in Dallas and Tarrant County and Congressional District 10 in Travis County. The State responds in part by pointing to the strengthening of Congressional District 29 in Harris County as a Latino influence district. But Plaintiffs have not urged that additional Gingles Latino majority-minority districts can be placed in those areas; they have not identified a wrong in *505 those areas under § 2 that would justify requiring the State to effect a remedy. As the Court explained in Growe, "Unless [the Gingles prerequisites] are established, there neither has been a wrong nor can be a remedy."[178] Plaintiffs have not met the burden of showing that § 2 forbids the State from making the political choices that primarily shaped the changes reflected in Plan 1374C because the effects of those changes impermissibly diluted the opportunity of Latinos to participate in the political process.
In De Grandy, the Court emphasized that one reason it would not embrace "bottom line" proportionality as a "safe harbor" was that it could make "the most blatant racial gerrymandering in half of a county's single-member Districts ... irrelevant under § 2 if offset by political gerrymandering in the other half."[179] Plaintiffs argue that the reduction of Congressional District 23 from an emerging effective Hispanic opportunity district for political purposes was political gerrymandering and that the creation of six majority Hispanic citizen voting age population districts in the remainder of West and South Texas resulted from racial gerrymandering. We turn to an examination of this claim.
D
Plaintiffs contend that in Plan 1374C, the map drawers used ethnicity to an unlawful degree and drew districts that reflect a derogation of the traditional districting values of compactness, respect for political lines, and communities of interest. The Supreme Court has phrased the test for a plaintiff bringing such a Shaw claim in different ways. In 1995, in Miller v. Johnson,[180] the Court struck down a Georgia districting plan on the ground that race had been "the predominant factor motivating the Legislature's decision to place a significant number of voters within or without a particular district."[181] That conclusion will generally follow, the Court explained, where "the legislature subordinated traditional race-neutral districting principles ... to racial considerations."[182] In her concurrence in Bush v. Vera,[183] Justice O'Connor reaffirmed that test, but explained it in slightly different terms: "[S]o long as they do not subordinate traditional districting criteria to the use of race for its own sake or as a proxy, States may intentionally create majority-minority districts, and may otherwise take race into consideration, without coming under strict scrutiny.... Only if traditional districting criteria are neglected and that neglect is predominantly due to the misuse of race" is the district presumptively unconstitutional.[184] States are not required to ignore race; indeed, the Supreme Court has acknowledged that states will always be aware of race when they draw district lines.[185] The factor of race or ethnicity may be considered in the process as long as it does not predominate over traditional *506 race-neutral districting principles.[186] The fact that race is given consideration in the process and the fact that majority-minority districts are intentionally created do not suffice to trigger strict scrutiny.[187]
Plaintiffs bear the burden of proving that race was the predominate factor in the Legislature's districting decisions.[188] That burden is significant.[189] As the Court stated in Miller, "To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices.... [A]pplication of the Court's standard helps achieve Shaw's basic objective of making extreme instances of gerrymandering subject to meaningful judicial review."[190]
Courts analyzing Shaw claims frequently examine: (a) district shape and demographics; (b) statements made by legislators and their staff; and (c) the nature of the data used to determine whether race played an excessive and unjustifiable role in the redistricting process.[191] The parties presented evidence of two widely accepted measures of compactness, "smallest circle" and "perimeter to area" scores.[192] The compactness scores of the challenged districts in Plan 1374C are as follows:
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CD 23 CD 28 CD 25 CD 15 CD 27
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Smallest Circle 3.8 5.0 8.5 6.5 3.1
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Perimeter to Area 5.1 5.7 9.6 11.6 5.1
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The scores for the corresponding districts in Plan 1151C are:
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CD 23 CD 28 CD 25 CD 15 CD 27
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Smallest Circle 4.2 3.7 5.0 3.1
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Perimeter to Area 6.1 5.4 8.5 4.1
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The general measures of compactness do not lead to a conclusion that the districts in Plan 1374C are bizarre in a Shaw sense. Dr. John Alford, an expert witness for the Jackson Plaintiffs, testified that he did not find the perimeter to area scores for Congressional Districts 15, 25, and 28 in Plan 1374C to be troublesome on their own.[193] Neither the smallest circle nor *507 perimeter to area scores of Plan 1374C approach those of districts so bizarrely and irregularly drawn that courts interpret their creation as "an effort to segregate the races for purposes of voting, without regard for traditional districting principles."[194]
Compactness scores cannot be considered in isolation; the issue is whether a district's shape, as measured by compactness scores, provides evidence of a constitutional violation when considered in relation to the geography and population distribution in the relevant part of the State.[195] Texas has vast geographical areas with widely dispersed population; except for areas around major cities, the State is a challenge for any redistricter who cherishes compactness as a value.[196] For example, Congressional District 23 in both Plans 1151C and 1374C extends approximately 800 miles along the border. In Plan 1151C, Congressional District 17 in the north-central part of the State includes 36 counties. Under Plan 1151C, Congressional District 13 in North Texas is larger than a number of states, spanning 40,000 square miles and 43 counties, but many with fewer than three thousand people.[197]
Texas geography and population dispersion limit the availability of district compactness in the southern and western regions of the state. Under Plan 1374C, the population densities in Congressional Districts 28, 25, and 15, both Anglo and Hispanic, are highest in the Valley and in Central Texas, separated by relatively sparsely populated areas. The high-density population pockets necessary to achieve the one-man-one-vote requirement are situated at either end of the elongated "bacon-strip" shaped districts. As a result, the boundaries of such "strip" districts in Plan 1374C must reach into Central Texas to obtain the requisite number of people, whether Anglo or Latino. For example, in Congressional District 15, the "dumbbell" district, 90% of the population is in the northern and southern tips. Congressional District 15 was already a "strip" district in Plan 1151C; in Plan 1374C, legislators elongated it to add people because part of the lower half was used to create new Congressional District 25. The smallest circle measure of compactness for the southern and western districts in Plan 1374C, examined in relation to the geography and population, reflect the sheer size and population distribution of the area, rather than a calculated stretch to find voters of a particular ethnic makeup.[198]
The perimeter to area scores for Plan 1374C similarly do not reflect the predominance of ethnicity in drawing the district lines. Perimeter to area calculations are useful for determining whether the map drawers used convoluted lines to bring *508 members of one racial group into a district while excluding members of another racial group. An examination of Congressional Districts 25, 28, 15, and 27, in relation to the population distribution within and without the district lines, does not reveal lines precisely drawn to include Hispanics and exclude Anglo voters, to ensure Hispanic citizen voting age majority districts, but rather lines drawn to include enough voters to meet the one-man-one-vote constitutional requirement. An examination of the record, including the maps that show the relationship of Hispanic voting age population to district lines in Congressional Districts 15, 25, and 28, does not show that the districts were extended north in a determined search for Hispanics, in contrast to the way in which the districts in Miller, Bush, and Shaw twisted or spanned diverse areas to reach every available minority of voting age population.[199] Neither the districts' shape nor their shape in relation to ethnic demographics and population densities provides circumstantial evidence of forbidden racial gerrymandering.
Plaintiffs criticized the Legislature for "cracking" Webb County in a way that removed a large number of Latino voters from Congressional District 23 and placed them in Congressional District 28. The State presented undisputed evidence that the Legislature changed the lines of Congressional District 23 to meet the political purpose of making the district more Republican and protecting the incumbent, Congressman Bonilla. Plaintiffs agree that the primary purpose of this change was political and concede that there is a strong correlation between Latino and Democratic voters. Dr. Lichtman stated in his report that the change in the Webb County district boundary affected an area of voters who were more than 90% Hispanic in voting age population and 86.5% Democratic in voting, according to the 2002 statewide elections.[200] Plaintiffs nonetheless fault the Legislature for drawing a line that separated Hispanic voters, recognizing that they were also reliably Democratic voters, to achieve the political purpose.[201]
*509 The Supreme Court has recognized that a legislature "must have discretion to exercise the political judgment necessary to balance competing interests," and that courts must "exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race."[202] In this case, the State has articulated a political reason for the districting decision, protecting a Republican incumbent. The Supreme Court has recognized that incumbency protection can explain a state's decision to depart from other traditional districting principles as well as, or even better than, race.[203] In Theriot v. Parish of Jefferson,[204] the Fifth Circuit rejected a racial gerrymander claim where "the inclusion or exclusion of communities was inexorably tied to issues of incumbency."[205] The decision to move the southeastern edge of Congressional District 23 to the west affected voters whose ethnicity and political partisanship voting achieved strong correlation. Under such circumstances, caution requires this court to defer to the Legislature's discretion.[206] As the Supreme Court has stated, "a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be Black Democrats and even if the state were conscious of that fact."[207] The geography and population distribution, in relation to the lines drawn in Congressional Districts 15, 23, 25, 27, and 28, do not provide support for Plaintiffs' claim of impermissible racial gerrymandering.
Plaintiffs' primary evidence of a deviation from traditional districting principles is that Congressional Districts 23, 25, 28, 15, and 27 do not observe political lines or respect communities of interest. However, credible testimony from the State's witnesses demonstrated that factors at the heart of traditional districting criteria, including political goals, predominately influenced the numerous decisions embodied in the location of each district line.
In response to Plaintiffs' criticisms, the State provided credible race-neutral explanations for Plan 1374C's county cuts, city divisions, and linking of border and Central Texas communities. The legislative motivation for the division of Webb County between Congressional District 23 and Congressional District 28 in Plan 1374C was political. The State provided evidence *510 that in dividing Webb County, the map drawers in part used the interstate highway as a district boundary, deviating where necessary to achieve population balance.[208] Plaintiffs faulted the inclusion of part of Comal County in Central Texas in Congressional District 28, arguing that legislators drew the line between Congressional District 21 and Congressional District 28 to place the heavily Hispanic part of Comal County in Congressional District 28. The State provided evidence of a political reason for this county split: to make Congressional District 21 more safe for its Republican incumbent, who was concerned about the effect of including Democratic-leaning voters in his district because of changes to what had been Congressional District 10 in Plan 1151C. Map drawers placed reliably Democratic voters from Comal County into Congressional District 28 to make up for the inclusion in Congressional District 21 of Democratic voters from Travis County resulting from the changes to former Congressional District 10. The State also presented evidence that the part of Comal County placed in Congressional District 28 corresponded to a local election boundary.[209]
Plaintiffs also faulted the inclusion of a heavily Hispanic part of Hays County, also in Central Texas, in Congressional District 28. The State presented evidence that this decision resulted from the Legislature's desire to keep Texas State University, located in Hays County, out of Congressional District 21, which contains the University of Texas at Austin.[210]
Plaintiffs criticized the split that placed part of Cameron County into Congressional District 15. The State responded with credible evidence that Congressional District 15 extends into Cameron County in order to keep the city of Harlingen together in a single district. Plaintiffs castigated the division of Hidalgo County between Congressional District 15 and Congressional District 25. The State introduced testimony that Congressman Hinojosa asked that the cities of Mission and Edinburg be kept whole, which could be accomplished only by splitting Hidalgo County.[211] Plaintiffs criticized the Legislature for extending Congressional District 27 to include all of Nueces County and part of San Patricio County; under Plan 1151C, only half of Nueces County was included in Congressional District 27. The State introduced evidence that a state senator on the Redistricting Commission, Senator Luna, wanted to keep Nueces County and San Patricio County undivided in a single district. Although that was not feasible because of the need to achieve population balance, the Legislature was able to keep the port of Corpus Christi, located in Nueces County, in a single district with the port communities of San Patricio County.[212] The Legislature's primary map drawer, Bob Davis, and the sponsor of the redistricting bill in the State House of Representatives, Representative Phil King, provided credible testimony that the numerous decisions embodied in the location of each district line combined the broad political goal of increasing Republican seats with local political decisions that are the most traditional of districting criteria.[213]
*511 The Supreme Court has focused on the specific features of a district that cause it to depart from compactness in assessing whether those features are justifiable on traditional districting grounds. In Bush, as here, the State attempted to justify its decisions on the traditional ground of partisan politics.[214] In that case, the Court found it significant that "the maps reveal that political considerations were subordinated to racial classification in the drawing of many of the most extreme and bizarre district lines."[215] The Bush Court found as clear evidence of the subordination of politics to race the fact that the State was willing, in the course of extending a noncompact tentacle engulfing a pocket of African-American voters, to include a large number of Republican voter tabulation districts in a congressional district ostensibly designed to maximize Democratic power.[216] In the present case, by contrast, the evidence did not reveal such internal inconsistencies. Instead, the Legislature's line-drawing decisions were primarily driven by the political goal of increasing Republican strength in Congressional District 23; the related political goal of ensuring that newly created Congressional District 25, as well as reconfigured Congressional Districts 15, 28, and 27, did not weaken Republican strength in adjacent Congressional District 21; a number of localized political considerations; and the overall need for a balanced population distribution.[217] Although the Legislature clearly intended to create a majority Latino citizen voting age population district in Congressional District 25 and maintain Congressional Districts 15, 28, and 27 as majority Latino citizen voting age population districts, the evidence does not show that it subordinated all other traditional districting criteria to a scheme in which ethnicity predominated.[218] To the contrary, the evidence shows that many of the lines were drawn for such reasons as balancing population, keeping certain cities or areas intact in a district, and satisfying requests from state or federal legislators to keep certain areas together, or place universities in different districts.[219] The evidence also shows that the lines did not make twists, turns, or jumps that can be explained only as efforts to include Hispanics or exclude Anglos, or vice-versa. Plan 1374C does not reveal a subordination of traditional districting principles to ethnic considerations.
Plaintiffs urge that a derogation of traditional districting principles in Plan 1374C *512 is evidenced by the fact that it links disparate communities in single districts, compromising the ability of the most impoverished and needy areas to obtain necessary representation. Plaintiffs complain that the new plan places border towns with large Hispanic populations in the same districts as Central Texas areas with large Hispanic populations, with ethnicity as their only common characteristic.
According to the Supreme Court, manifestations of a community of interest include, "for example, shared broadcast and print media, public transport infrastructure, and institutions such as schools and churches."[220] The district challenged in Shaw I was clearly not driven by communities of interest; the Court described the district as one that "winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas" in an attempt to gather up "enclaves of black neighborhoods" and "even towns are divided."[221] And in Miller, because the challenged district reached out to include African-American pockets in several entirely separate urban communities, linked by narrow corridors to a sparsely populated and wholly rural core, the "social, political and economic makeup of the Eleventh District [told] a tale of disparity, not community."[222]
The "bacon-strip" districts of Plan 1374C, Congressional Districts 15, 25, and 28, include disparate communities of interest. Plaintiffs presented evidence of differences in socio-economic status, education, employment, health, and other characteristics between Hispanics who live near Texas's southern border and those who reside in Central Texas. However, like the deviations from compactness, these deviations from the traditional districting principle of protecting communities of interest were necessary to meet the constitutional requirement of equal district populations in an area in which population is clustered at the southern tip and the center of the State. Plaintiffs' evidence has not demonstrated that the linking of disparate border and Central Texas Hispanic communities was caused by the factor of ethnicity, rather than the factors of geography and population distribution and the need to achieve equipopulosity.[223] Given the presumption in favor of legislative integrity,[224] we cannot say that the combination of communities of interest here provides circumstantial evidence of the predominance of ethnicity.
The record does not present evidence of statements by legislators or staff supporting the claim that ethnicity predominated in the redistricting process. To the contrary, the emails, statements, and other communications from those involved in the process reveal that politics predominated.[225] Similarly, the data the Legislature used in the districting process does not support a claim of unwarranted reliance on ethnicity to make the line-drawing decisions. In Bush, the Court condemned the use of census blocks as the fundamental unit for a redistricting plan because the *513 use of such units allows a state to focus too heavily on race in drawing district lines.[226] In the present case, by contrast, the State presented undisputed testimony that the map drawers examined race at the block level in the South and West Texas districts on only a few occasions in order to avoid splitting minority communities.[227]
The Supreme Court has made it clear that a legislature may give consideration to race and ethnicity in the districting process, as long as those factors do not predominate and districting decisions are explainable on grounds other than race.[228] The districting decisions involved in Plan 1374C are best explained by Texas's geography and population distribution and its Legislature's predominately political intent. The record in this case does not show that ethnicity predominated or that the South and West Texas district boundaries in Plan 1374C cannot be explained except by ethnic considerations. Plaintiffs have not met their significant burden of demonstrating racial gerrymandering.[229]
VII.
Congressional District 18 is a historically significant African-American majority district in Houston, Harris County, Texas. Its first representative was Congresswoman Barbara Jordan. Jordan was elected at the creation of the district in 1972 as one of the two first African-Americans elected to Congress from the South since Reconstruction and the first African-American elected to Congress from Texas. Congressional District 18 is currently represented by Congresswoman Sheila Jackson Lee. Congressional District 30 is also a historically significant district, the first African-American majority district in Dallas, Dallas County, Texas. Congresswoman Eddie Bernice Johnson represents Congressional District 30. Both Congresswomen Jackson Lee and Johnson provided helpful testimony in this case, adding their voices to those emphasizing that racial polarization and appeals to racial prejudice persist in Texas politics and political campaigns.
Plaintiffs Jackson Lee and Johnson, supported by the NAACP and other plaintiffs, criticize Plan 1374C as diluting the African-American voting strength in Congressional Districts 18 and 30. As to Congressional District 18, Plaintiffs claim that in order to create Congressional District 9 as an additional African-American opportunity district in Houston, Plan 1374C moved high turnout African-American voters out of Congressional District 18 and placed them in Congressional District 9. In Congressional District 18, according to Plaintiffs, those voters were replaced with what the NAACP characterized as "transient and Hispanic voters who are noted for their low participation in elections."[230] Plaintiffs criticize Congressional District 30 in Plan 1374C on a similar ground. Plaintiffs assert that the plan removes from Congressional District 30 a predominately Anglo area from Irving, Texas and replaces it with an area of largely Hispanic voters from Congressional District 24 in Plan 1151C. Congresswoman Johnson criticized the effects on Congressional District 30 as removing an economically strong area from the district and combining *514 areas of African-American and Hispanic voters, setting up a competition between them that could dilute African-American voting strength. Recognizing that both districts retain a strong African-American majority in Plan 1374C, Plaintiffs rely on projections of the relative growth of the Latino population in the years 2005 and 2010 to support the argument that dilution is threatened, if not present.
The evidence that Plaintiffs present does not support their claim of dilution, present or threatened. Congressional Districts 18 and 30 are effective African-American opportunity districts under Plan 1374C.[231] Plaintiffs' own population and voting data support this conclusion. In Plan 1374C, Congressional District 18 has an African-American voting age population of 40.3% and an African-American citizen voting age population of 48.3%. This is only slightly below the figures that were present in Plan 1151C, which had a Black voting age population of 42.1% and a Black citizen voting age population of 49.8%. Plaintiffs argue that Plan 1374C increases the number of Hispanics and reduces the number of high-turnout African-American voters. The Hispanic citizen voting age population in Congressional District 18 under Plan 1374C is 19.6%, only slightly higher than it was under Plan 1151C (17.9%). And the percentage of Spanish-surnamed voters in Congressional District 18 under Plan 1374C in 2002 is 16%, only slightly higher than the 14.2% under Plan 1151C.[232] Plaintiffs' comparisons of voting patterns in the areas removed from and added to Congressional District 18 under Plan 1374C support the conclusion that the exchange does not dilute the strength of African-American voters in the district. In the U.S. Senate primary for 2002, which pitted African-American candidate Ron Kirk against Latino candidate Victor Morales, African-American candidate Kirk won by 78% in the area removed from the district, and 76% in the area added to the district.[233] In the 2002 general election, the African-American Democratic candidate received 78.8% of the vote in the area removed from the district and 65.8% in the area added to the district.[234] These changes are too slight to support the claim that the strength or status of Congressional District 18 as an effective African-American opportunity district, that has and will reliably elect the African-American candidate of choice, is diluted.
The projections of the population changes between 2000 and 2010 by Dr. Richard Murray, expert witness for Plaintiffs Jackson Lee and Johnson, do not alter this conclusion.[235] Indeed, Dr. Murray's projections shed little light on the issue because while he projected the growth of African-American and Hispanic voting age population, he simply did not include any projections of Hispanic citizen voting age population. The failure to include this information makes his projections interesting but of little value to assessing any trend toward future dilution in the relevant period.
As to Congressional District 30, Congresswoman Johnson remained confident that the district would continue to send her to Congress and to elect other African-American candidates of choice. *515 Again, the figures support her conclusion. In Congressional District 30, under Plan 1374C, the Black citizen voting age population is 50.6%, while the Hispanic citizen voting age population is 15.6%. This is only slightly more than the Black citizen voting age population (48.6%) and only slightly more than the Hispanic citizen voting age population (14.3%) in Plan 1151C. And in Congressional District 30 under Plan 1374C, the Spanish-surnamed voters in 2002 accounted for only 12.5% of registered voters. The comparison of vote patterns verifies the continuing strength of Congressional District 30 as an effective African-American opportunity district in Plan 1374C. In the 2002 Democratic primary runoff for the Senate, the African-American candidate of choice, Ron Kirk, received 64.2% of the vote in the area removed from Congressional District 30 and Victor Morales, the Latino candidate of choice, received 35.8% of the vote.[236] In the area added to Congressional District 30, Ron Kirk received 61.9% of the vote and Victor Morales received 38.1% of the vote.[237] Again, the reduction in the votes received by the African-American candidate of choice is too slight to support any inference of dilution. And in the 2002 general election for the Senate, in the area removed from the district, Ron Kirk received 39% of the vote, while he received 61.9% of the total vote in the area added to the district.[238] Dr. Murray's population projections are no more useful in understanding the likely African-American voting strength of Congressional District 30 in 2005 and 2010 than they were for Congressional District 18.[239] Again, Dr. Murray neglects to include any analysis of the likely Hispanic citizen voting age population in the district in the future. He concludes that Congressional District 30 is an effective opportunity district for African-Americans now and offers no basis for believing that its status will change before the next decennial census.
The record, in short, offers no support for the dilution claim as to Congressional Districts 18 and 30. Rather, the arguments underscore that there is no cohesion between African-American and Latino voters in primary elections, particularly those that pit an African-American candidate against a Latino candidate. Although the congresswomen representing these districts ask this court to create districts that are almost exclusively African-American and to create a separate majority Latino citizen voting age population district in Dallas, there is no Gingles analysis to support this request and the record does not suggest that one could be provided. Plan 1374C does not violate § 2 of the Voting Rights Act.
VIII
For the foregoing reasons, we deny all relief requested by Plaintiffs. Judgment will be entered for Defendants.
WARD, District Judge, concurring in part and dissenting in part.
I.
I join the court's opinion that the law does not preclude the State's Legislature from enacting a mid-decade redistricting plan following a court-ordered remedial plan such as the one enacted by the court in Balderas v. State of Texas. I understand the court's opinion to be limited to that question. I write separately to emphasize *516 that it is one question to ask whether the law prohibits a state from enacting a mid-decade redistricting plan. It is quite another to ask whether a state may dictate electoral outcomes by using its Article I authority to thwart the Supreme Court's mandate that votes cast in a Congressional election be given as nearly equal weight as possible.
I do not read the Court's decisions in U.S. Term Limits v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) and Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001) quite as narrowly as my colleagues. Admittedly, those cases rejected state laws which sought to add to the Qualifications Clause either directly as in Term Limits, or indirectly, through pejorative ballot descriptions as in Cook. From that standpoint they are easier cases than this one to decide. Nonetheless, these decisions underscored that "the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints." Term Limits, 514 U.S. at 833-34, 115 S.Ct. 1842; Cook, 531 U.S. at 523, 121 S.Ct. 1029.
Although the state's authority to issue procedural regulations is broad, at some point a state exceeds the power granted to it by the Elections Clause. Modern technology effectively allows a state to dictate electoral outcomes and to favor or disfavor a class of candidates by enabling extreme partisan gerrymandering. I join the court's decision that the Elections Clause does not prohibit mid-decade redistricting and note that there may be legitimate state interests advanced by the effort. Whether the present exercise is a "legitimate" state interest may ultimately be resolved by the Supreme Court in Vieth v. Jubelirer, and it seems to me that the Elections Clause would be equally offended by a state's abuse of its authority regardless of whether such abuse occurred in the beginning, the middle, or the end, of a decade following the release of the census data. It is not the timing of the endeavor that creates problems, it is the fact of it.
As noted by the court in Balderas, partisan gerrymandering reflects a "fundamental distrust of voters." As in other contexts, extreme partisan gerrymandering leads to a system in which the representatives choose their constituents, rather than vice-versa. I join the court's judgment on the partisan gerrymandering issue given the high bar set in the equal protection context, but I do not join the court's discussion of the issue under Section III.B. That discussion implies that extreme partisan gerrymandering is okay as long as one party can reverse the tide when it takes over the statewide offices. Dr. Alford's report and testimony provides a detailed analysis of the effects of the extreme partisan gerrymander enacted in this case and the dangers of ignoring these issues. As Dr. Alford explains, these dangers include the encouragement of race-based redistricting. At present, we lack the legal precedent to sustain this challenge under either the Equal Protection Clause or the Elections Clause. The present case fails under the standards announced in Davis v. Bandemer and its progeny-even though those standards may or may not ultimately control the disposition of this case, given its timing and that of the arguments in Vieth v. Jubelirer.
I join much of the balance of the opinion. I agree that the plaintiffs have not prevailed on their equal protection claims and I agree that no violation of the Voting Rights Act has been shown with respect to Districts 18 and 30. On the remaining § 2 *517 issues, I dissent from the court's opinion related to the issues surrounding District 23 and I concur in the court's judgment insofar as it rejects the claims surrounding District 24 and the claims surrounding Districts 1, 2, 4, 9, 10, 11 & 17. I will first examine the claims related to District 23 and then visit the issue of the influence districts.
II.
A.
The state action in this case unlawfully dilutes the strength of the Latino voters residing in former District 23. To that end, the majority errs when it holds that the State may permissibly "trade off" the rights of minority voters in former District 23 for those in new District 25, a district created to assist the state with its preclearance efforts. I would enjoin the operation of Plan 1374C, permit the Legislature to remedy the violations, and, given the amount of the state that would likely be affected by the changes, order that the elections be conducted under Plan 1151C.
B.
For a statute whose purpose "is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race," Georgia v. Ashcroft, ___ U.S. ___, ___, 123 S.Ct. 2498, 2517, 156 L.Ed.2d 428 (2003), the Voting Rights Act receives a curious interpretation in this case. The State's heavy reliance on the flexibility given to it by Ashcroft might carry the day with me if Plan 1374C bore any resemblance to the redistricting plan at issue there. It does not.
To begin, the state senate plan at issue in Ashcroft was overwhelmingly supported by the minority legislators. Just the opposite is true in this case. Georgia's plan sought to maximize the statewide influence of black voters in the State of Georgia. The plan unpacked districts in which blacks constituted a super-majority and (1) maintained the number of majority-minority districts and, at the same time, (2) increased the number of "influence districts" in which blacks would be expected to exert a significant-if not decisive-force in the electoral process. Georgia did so by placing black voters into districts that were likely to lean Democratic in the election returns. Because black voters in Georgia usually supported Democratic candidates, the creation of these influence districts made it likely that blacks could exert more influence in the election process and, correspondingly, increased the likelihood that the elected candidate would be responsive to the black communities' needs. The distinct but related concepts of substantive versus descriptive representation were at issue.
Georgia argued that, although the plan made the super-majority districts somewhat less "safe," its plan as a whole increased the political clout of blacks statewide and therefore did not result in a retrogression in African-American voters' effective exercise of the electoral franchise. Ashcroft held that "[i]n order to maximize the electoral success of a minority group, a State may choose to create a certain number of `safe' districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. Alternatively, a State may choose to create a greater number of districts in which it is likely-although perhaps not quite as likely as under the benchmark plan-that minority voters will be able to elect candidates of their choice." Ashcroft, ___ U.S. at ___, 123 S.Ct. at 2511. The Court explained that the extent to which a plan created coalition and influence districts were important considerations in the preclearance inquiry. Ultimately, the Court held that *518 the three-judge court, by circumscribing its focus on the unpacked districts, had engaged in too narrow a review of whether the redistricting plan would lead to retrogression at the statewide level. The majority reads Ashcroft to give the state flexibility to comply with its obligations under the Voting Rights Act. This is true, to a point. Ashcroft was a § 5 case and its language certainly permits the states a certain amount of latitude in determining how to maximize minority voter influence. But I do not read Ashcrofta decision designed to foster minority participation in the political processto permit the state to dismantle an existing opportunity district for political purposes so long as the loss is made up somewhere else. Nor do I read Ashcroft to make it harder to prove claims under § 2. There was no § 2 question decided in Ashcroft. Indeed, one of the grounds Georgia asserted in support of pre-clearance was the plan's compliance with § 2 of the Voting Rights Act. It is hard for me to believe that the Supreme Court intended to make it harder to prove a § 2 claim by endorsing a statewide approach that the Court believed could have the effect of maximizing minority influence.
Ashcroft recognizes the value of safe districts, coalition districts, and influence districts as means to increase minority voting opportunities and political influence. Make no mistake about it: Despite the State's protestations to the contrary, the changes to District 23 under Plan 1374C were not intended to increase minority voter participation either by strengthening the district or "unpacking" the minority voters into adjoining districts to maximize the overall political strength of Hispanics. These changes were designed to crush these minority voters' participation in the political process.
C.
Under Plan 1000C, in effect after the 1990 census, as well as under its successor, Plan 1151C, District 23 was a protected Latino opportunity district. The district had a Latino citizen voting age population in excess of 50% and was designed to offer Latino voters the opportunity to elect candidates of choice. Under Plan 1000C, the district boasted a Spanish Surname Voter Registration of 53.3%. And under Plan 1151C, that figure was increased to 55.3%. The Balderas court implicitly recognized that District 23 under Plan 1151C was a protected minority opportunity district when it maintained only six Latino majority citizen voting age districts. A review of the statistical package for Plan 1000C reveals that District 23 was one of those six districts. All six (and only those six) had a Spanish Surname Voter Registration in excess of 50%.
As it was configured under Plan 1151C, District 23 offered Latino voters the opportunity to elect their candidate of choice. In the present case, Dr. Gaddie, the State's expert, testified that District 23 under Plan 1151C performed for Latino voters in 2002 by electing the Latino candidate of choice in 13 out of 15 statewide elections. He also testified that a district which elects the Latino-preferred candidate of choice in such numbers offers Latinos the opportunity to elect their candidate of choice. Dr. Engstrom, the GI Forum plaintiffs' expert, reached a similar conclusion: He analyzed racially contested statewide elections from 1994 to 2002 and concluded that District 23 under Plan 1151C elected the preferred Latino candidate in 5 out of 8 races and offers Latino voters the opportunity to elect candidates of choice. Dr. Lichtman, called by the Jackson plaintiffs, arrived at the same conclusion.
*519 When it enacted Plan 1374C, the State altered the racial composition of District 23 not to increase the likelihood that the Latino community therein would elect a candidate of its choice, but to ensure it would have no practical influence on the congressional election. All of the experts agree that Plan 1374C alters District 23 to the point where it has no hope of functioning as an effective Latino opportunity district. There is no dispute that the State altered District 23 to help re-elect Congressman Henry Bonilla because it predicted that if Latinos continued to constitute a majority of the citizen voting age population in District 23, Congressman Bonilla would ultimately lose. The evidence is that he is not the Latino candidate of choice. The 2002 congressional election foreshadowed the need for this change: Congressman Bonilla received only 8% of the Hispanic vote. Spanish surname voter registration has correspondingly risen during the same time period and, until the Legislature passed Plan 1374C, had grown to approximately 55% for the district.
The State's solution to this political problem was brutal, yet simple: destroy the opportunity district. The state did so by cracking a cohesive Hispanic community out of Webb County and taking in Anglos from the Texas Hill Country to build a district in which the Hispanic community will not be able to influence the outcome of the election. The majority's characterization of new District 23 as a Latino "influence district" is therefore in error. An influence district is a district in which the minority population carries enough political weight potentially to be the swing vote in the election and command the attention of the representative. A competitive district is the touchstone. Not so with new District 23. The Hispanic citizenship figures have been reduced by so great a margin that the Hispanics in District 23, although having the ability to control the Democratic primary, will lose the general election every time. The undisputed regression analyses confirm this. Contrary to the majority's characterization, the district's very design ensures a lack of competitiveness and a corresponding lack of responsiveness.
There are, however, a total of 359,000 Latinos who continue to reside in new District 23. They object to the State's dismantling of their opportunity district under § 2. The question presented is whether a state can, consistent with § 2, intentionally dilute a minority group's voting rights in an existing opportunity district to obtain a partisan advantage while, at the same time, offset the effects by creating a new district in another part of the state. The majority's answer is that Ashcroft and Johnson v. De Grandy, 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994), permit this sort of line-drawing. I disagree.
D.
Contrary to the majority, I do not read Ashcroft or De Grandy to encourage the sort of voting rights swap meet put into play by Plan 1374C. The majority effectively reads Ashcroft's § 5 holding and De Grandy to countenance violations of § 2 in one part of the state, so long as those violations are "offset" by the creation of new minority opportunity districts elsewhere in the state. The State conceded that this was its position in response to questions from the bench during closing arguments. By its terms, of course, Ashcroft says nothing about a state plan which unlawfully dilutes the minority strength in one part of the state and seeks to "offset" that dilution by the creation of a new minority opportunity district in a different part of the state-one of Georgia's contentions *520 was the plan's compliance with § 2 required pre-clearance under § 5.
That Ashcroft did not endorse the approach suggested by the State is not surprising. The Court had already answered this question once in De Grandy and again in its Shaw cases. In De Grandy, the state proposed a per se rule that proportionality was a safe harbor, insulating any reapportionment plan which provided proportional representation from a Section 2 challenge. In rejecting that proposal, the Court stated that the state's argument rested on an "unexplored premise of highly suspect validity: that in a given case, the rights of some minority voters under § 2 may be traded off against the rights of other members of the same minority class." 512 U.S. at 1019, 114 S.Ct. 2647. Later, in Shaw v. Hunt, 517 U.S. 899, 917, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996)(Shaw II), the Court made its views even more explicit:
If a § 2 violation is proved for a particular area, it flows from the fact that individuals in this area "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b). The vote-dilution injuries suffered by these persons are not remedied by creating a safe majority-black district somewhere else in the State. For example, if a geographically compact, cohesive minority population lives in south-central to southeastern North Carolina, as the Justice Department's objection letter suggested, District 12 that spans the Piedmont Crescent would not address that § 2 violation. The black voters of the south-central to southeastern region would still be suffering precisely the same injury that they suffered before District 12 was drawn. District 12 would not address the professed interest of relieving the vote dilution, much less be narrowly tailored to accomplish the goal.
Arguing, as appellees do and the District Court did, that the State may draw the district anywhere derives from a misconception of the vote-dilution claim. To accept that the district may be placed anywhere implies that the claim, and hence the coordinate right to an undiluted vote (to cast a ballot equal among voters), belongs to the minority as a group and not to its individual members. It does not.
Although I recognize that "States retain broad discretion in drawing districts to comply with the mandate of § 2," Shaw II, 517 U.S. at 917 n. 9, 116 S.Ct. 1894 (citing Voinovich v. Quilter, 507 U.S. 146, 156-57, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993); and Growe v. Emison, 507 U.S. 25, 32-37, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)), I do not read the Court's cases to mean that the "effects" test of § 2, if satisfied, may be defended against by pointing to a political agenda in the affected portion of the jurisdiction and compensation, over the long haul, to other members of the injured group residing elsewhere in the jurisdiction. De Grandy rejected the state's proposed safe harbor rule precisely because it encouraged what happened in this case. The court said: "... we reject the safe harbor rule because of a tendency the State would itself certainly condemn, a tendency to promote and perpetuate efforts to devise majority minority districts even in circumstances where they may not be necessary to achieve equal political and electoral opportunity." De Grandy, 512 U.S. at 1019-20, 114 S.Ct. 2647 (emphasis added). New District 25 falls squarely within the scope of this statement.
In this case, the State's redistricting effort mirrors precisely what De Grandy cautioned against. The fundamental flaw *521 in the majority's approach is that it fails to appreciate that the Latino districts created in Plan 1374C are not in "the same area" as the Gingles districts have been located historically. In the past, the Latino groups have enjoyed participation in the six Gingles districts located in Plan 1000C and in Plan 1151C. Although there are still six Latino opportunity districts in Plan 1374C, those new districts take in quite different geography and population. The State took in, geographically, 10 additional counties and portions of 4 others which span an area of at least 8,500 square miles. The State also took in more than 651,000 additional persons. To accomplish its goals, the state was forced to create new District 25 which reaches from the border in excess of three hundred miles north to include Hispanic population in Travis County.
In its effort to validate Plan 1374C, the majority first tells us that District 25 was created "[t]o avoid retrogression under Section 5." Quite correctly, the majority recognizes that the changes to District 23 resulted in the dilution of the Latino vote therein. But then, when confronted with the language of Shaw and De Grandy which prohibits exactly this sort of trade-off, the majority explains that the state enjoys the flexibility under De Grandy to draw Gingles districts in a different way, so long as it creates a total of six (but only six) districts in which Latinos may elect a candidate of choice. But Gingles addresses liability under § 2. No one suggests the State needed to create new District 25 to guard against a potential vote dilution challenge by a resourceful if not aspiring coalition of Latinos living in Travis County and those living in the colonias over 300 miles away near the Texas-Mexico border. At yet another place in its opinion, the majority implicitly repudiates this very species of § 2 liability when it holds to be non-compact the GI Forum's demonstration districtseven though all have better compactness scores than new District 15 in Plan 1374C.
The majority blurs the distinction between the State's flexibility to comply with its procedural obligations under § 5 and its flexibility to comply with its remedial obligations under § 2. The majority misses this distinction because it fails to appreciate the fact that the Latino opportunity districts in Plan 1374C take in different populations and geography than before.[1] The majority's initial reaction to new District 25 was of course correct: the State created new District 25 to "offset" the loss of old District 23 for § 5 preclearance purposes. But the underlying forces driving the need for new District 25 are inconsistent with Ashcroft's rationale. At issue in Ashcroft was Georgia's decision to unpack black opportunity districts to increase the statewide political might of the minority voters. Central to Ashcroft's willingness to provide states with flexibility was the Court's recognition that the plan was intended (or at least contended to be intended) to increase minority voting strength statewide. Unlike the efforts in Ashcroft, the dilution of Latino voting strength in District 23 was not designed to maximize Latino voting strength statewide, and, as noted, the majority's characterization of District 23 as continuing on as some sort of an Hispanic influence district is error. Under the majority's theory of influence districts, we are left to conclude that Congressman Bonilla will be more *522 responsive to the Latino community now that they constitute over 10% less of his constituency.
This turns Ashcroft on its head. District 23 is designed so that the Hispanic population therein will not influence the outcome of the elections and will not tend to make the elected representative more responsive to the community's needs. The only thing the Hispanic community in District 23 will influence is the total population of the district to meet "one person, one vote" requirements. The state action was designed to increase Henry Bonilla's chance of electoral success at the expense of District 23's dissatisfied Hispanic voters. To suggest that those minority voters cannot prevail on a dilution claim under § 2 elevates the State's political agenda over the individual rights of Latino voters in former District 23. For these reasons, I would reject the State's efforts to trade the rights of Latinos in old District 23 for those in new District 25.
E.
As stated, it is my opinion that the State violated § 2 when it dismantled old District 23 and replaced it with new District 25. If the majority is correct that the State could draw new District 25 to comply with its Gingles obligations, then the majority is confronted at once with the GI Forum plaintiffs' dilution claim. These plaintiffs claim that Plan 1374C dilutes the statewide strength of Hispanic voters because it fails to create a seventh Latino majority district. The majority, however, rejects the GI Forum plaintiffs' claims for several reasons. First, the majority opines that the proposed districts will not be effective. Second, the majority holds that the districts are not compact. Third, the majority determines that De Grandy proportionality tends to show that Plan 1374C will not have the effect of unlawfully diluting the Latino vote. Finally, the majority suggests that Balderas rejected the identical claim. None of these reasons is persuasive.
1.
In this case, if the State is permitted or required to draw Gingles remedial districts into the new areas of the state and in the manner in which it did, the GI Forum plaintiffs assert that the Gingles preconditions suggest that seven majority Latino districts should be created. I agree. The evidence is undisputed that, under Plan 1385C, sponsored by the GI Forum plaintiffs, Latino voters constitute the majority of citizen voting age population in seven congressional districts in South and Central Texas. See Valdespino v. Alamo Heights Independent School Dist., 168 F.3d 848 (5th Cir.1999)(interpreting Gingles to require consideration of citizen voting age population or "CVAP"); Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir.1997)(same). These districts are District 15 (63.3% CVAP), District 16 (68.0% CVAP), District 20 (58.0% CVAP), District 23 (57.2% CVAP), District 25 (58.4% CVAP), District 27 (59.9% CVAP), and District 28 (50.3% CVAP).
The majority resists the GI Forum plaintiffs' demonstration plan because it believes the plan does not provide seven "effective" Latino districts. I disagree. The majority places great emphasis on the fact that the Hispanic CVAP of District 28 in Plan 1385C is only 50.3%. Be that as it may, under the evidence submitted by the GI Forum plaintiffs, the district elected the Latino candidate in 8 out of 8 elections since 1994, and the vote for the Latino candidate in the most recent elections, 2002, exceeded 55% of the total vote in each of the four elections. See, e.g. GI Forum plaintiffs' Exh. 131; (Tr. 12/16/03 a.m. at 29-30). On balance, District 28 is almost identical in performance to District *523 28 in the State's plan 1374C despite the fact that, in District 1374C, District 28 has an Hispanic CVAP of 56.2%. By contrast, the weakest district in the GI Forum plaintiffs' demonstration map is District 23, which elected the Latino candidate of choice in 5 out of 8 elections at margins nearly identical to those which led the Balderas court to conclude that District 23 was a protected minority opportunity district. Each of the remaining Latino districts in Plan 1385C elects the Latino candidates to office in 8 out of 8 elections. Viewed in the light of these election returns as opposed to simply looking at the CVAP content or any other single statistic, all of these districts perform, in terms of winning elections, at least as well as their counterparts in Plan 1374C.
The majority also relies on the testimony of experts called by other parties, including Dr. Jerry Polinard, an expert witness called by the Valdez-Cox plaintiffs. The majority reads Dr. Polinard's testimony to suggest that in all cases a higher Hispanic CVAP number is necessary to find an effective Hispanic opportunity district. The majority is wrong. In the first place, as set forth above, Dr. Engstrom's analysis of the election results tell a different story. Moreover, Dr. Polinard was in fact testifying about the effects of the districts as drawn in Plan 1374C, not Plan 1385C. What Dr. Polinard said with respect to numbers is:
I have no magic number. That's going to vary-vary by District. I will state the obvious, that if the Spanish surname voter registration percentage goes up, the opportunity goes up.
I think you become comfortable with opportunity districts once you break into those 60 percent ranges.
(Tr. 12/16/03 p.m. at 50-51).
The majority also cites the testimony of the State's expert with respect to new District 15 to reject as effective District 28 in the demonstration plan. In terms of actual election results, however, new District 15 appears to perform worse than the GI Forum plaintiffs' proposed District 28, despite the fact that new District 15 has a higher Hispanic CVAP than proposed District 28.
The truth of the matter is that the effectiveness of a minority opportunity district will vary by the district. A expert might find, for example, a need for a greater Hispanic CVAP in a district ranging from Travis County to the border and covering three or four media markets than would be needed in a district that is somewhat more compact. Under the evidence, all of the districts in Plan 1385C have the numbers to make them effective Latino opportunity districts.
This might be a closer call if the demographic evidence were otherwise. A showing that Latino population growth and voter registration was on the decline might counsel a court to conclude that gains over the short run might be offset by anticipated losses in the end. That is not our record. The evidence establishes that the Latino voter registration as well as overall population growth is rising. Over the course of the decade, the only conclusion to be drawn from this evidence is that Latino voting strength in these districts will become stronger, not weaker. The GI Forum plaintiffs have established that their proposed districts would be effective.
2.
The majority also rejects the GI Forum plaintiffs' contention that their districts are "compact." But under the objective compactness scores, several of the GI Forum plaintiffs' demonstration districts are, on balance, more compact than those in Plan 1374C. Although a few are worse, none of the districts scores worse than District 15 *524 in Plan 1374C. Under the demonstration plan, 5 of the proposed districts have better "perimeter to area" scores than their counterparts in Plan 1374C. None of the districts in Plan 1385C have a perimeter to area score as high as District 15 in Plan 1374C. Under the smallest circle measure, three of the demonstration districts score better, one scores the same, and none is, again, as high as District 15 in Plan 1374C.
The majority disregards these scores, saying the comparison "understates the unusual shapes of the proposed demonstration districts." But it is the majority who overstates the significance of the "unusual" shapes of the districts. Focusing in on the "look" of the map as opposed to the objective scores and population centers, the majority says that District 25 virtually "bisects" District 23 in the demonstration plan. Viewed in the context of a redistricting plan, however, the two districts make perfect sense. District 23 strives to include the border communities of interest along the Rio Grande and, at the same time, retains over 99% of the City of Laredo-a major border population center-in District 23. The portions of District 25 which allegedly "bisect" District 23 are actually the boundaries of Dimmitt County, the total population of which is 10,248. The population of Laredo, 99% retained in District 23, is 176,576. The GI Forum plaintiffs' demonstration plan is, on balance, more compact than the pertinent portions of Plan 1374C.
3.
The majority's principal answer to the GI Forum plaintiffs is that Plan 1374C provides Latinos the opportunity to elect congressional candidates in substantial proportion to their share of the relevant population as a whole under Johnson v. De Grandy. I disagree.
a.
In De Grandy, the Court noted:
If the three Gingles factors may not be isolated as sufficient, standing alone, to prove dilution in every multimember districting challenge, a fortiori they must not be when the challenge goes to a series of single-member districts, where dilution may be more difficult to grasp. Plaintiffs challenging single-member districts may claim, not total submergence, but partial submergence; not the chance for some electoral success in place of none, but the chance for more success in place of some. When the question thus comes down to the reasonableness of drawing a series of district lines in one combination of places rather than another, judgments about inequality may become closer calls.
512 U.S. at 1012-13, 114 S.Ct. 2647.
Under De Grandy, proportionality is one factor to be considered in assessing the totality of circumstances to determine whether unlawful vote dilution has occurred under § 2. Id. at 1022, 114 S.Ct. 2647. "Proportionality" in this sense involves a comparison between (1) the percentage share of legislative districts in which the population of the protected class has a majority and (2) the protected class's percentage of the relevant population. Proportionality is one factor to be considered, and it does not create a safe harbor precluding § 2 liability when present, nor does it impose per se § 2 liability when absent.
b.
Proportionality does not compel the rejection of the GI Forum plaintiffs' claims in this case. Because of the procedural posture in De Grandy, the Court reserved the question whether proportionality should be measured on a statewide basis or by focusing on a smaller area of the jurisdiction at issue. De Grandy, 512 U.S. *525 at 1022, 114 S.Ct. 2647 ("[w]e have no occasion to decide which frame of reference should have been used if the parties had not apparently agreed in the District Court on the appropriate geographical scope for analyzing the alleged § 2 violation and devising its remedy."). Other courts have struggled with the question, but many have assessed proportionality by focusing on the nature of the specific Voting Rights Act claims at issue.[2]
Under the facts of the present case, De Grandy proportionality should be measured by comparing the number of effective Latino congressional districts to the Latino percentage of the relevant statewide population. It is true that the GI Forum plaintiffs propose their Latino districts in the South and West Texas areas; however, it is equally the case that the GI Forum plaintiffs attack the operation of Plan 1374C because of its impact and its overall effect on the Latino voters in the state as a whole. They did not limit their challenge to the effect of Plan 1374C to the areas in South and Central Texas. An integral part of the claim is Plan 1374C's failure to maintain districts in other parts of the state in which minority communities might play an influential if not outcome determinative role in the general elections to increase the likelihood that the elected candidate will respond favorably to the minority communities' needs.
The State apparently agreed with this approach until the evidence was in and it became apparent there was a problem under § 2 with 1374C. The State's pretrial submissions addressed proportionality on a statewide basis. In particular, the State's trial brief addressed De Grandy proportionality and represented, misleadingly, that proportionality was met under Plan 1374C, because Hispanics "would have a majority of the population in 25% of the districts." Revised State Defendants' Trial Brief, filed December 3, 2003, at 39 (emphasis added).[3] It was not until after the close of the evidence that the State, or anyone else, contended that proportionality should not be assessed statewide.
There is no risk that assessing proportionality on a statewide basis will lead to an over-representation of Latinos in Congress. For instance, there is no evidence tending to prove that Latinos elsewhere in the state (e.g., the panhandle, Dallas/Fort *526 Worth, or East Texas) constitute a reasonably compact effective voting majority such that they could in the future assert a Section 2 violation in those parts of the state and require the creation of yet additional Gingles districts. Such evidence might require the court to assess proportionality on a smaller scale. Rural West, 209 F.3d at 844 ("The State complains that by allowing the plaintiffs to define the frame of reference for their § 2 claim, we will enable future litigants to carve up successively smaller areas of the State until they are able to maximize the number of majority-minority legislative districts-a result not countenanced by the Voting Rights Act [but] as the district court pointed out, however, the Gingles preconditions operate to prevent just the sort of limitlessly small `reverse gerrymander' whose specter the State raises here."). In this case, however, the claim is that Plan 1374C dilutes the statewide voting strength of Latinos. That is the proper geographic scope by which to measure De Grandy proportionality.
c.
So measured, Latinos constitute 32% of the total population and 29% of the voting age population in the State of Texas. De Grandy proportionality thus suggests that Latinos should comprise an effective voting majority, depending on whether one uses voting age or total population figures, in possibly nine or ten such districts. Under either measure, Plan 1374C fails to provide proportional representation to Latinos. Latinos enjoy the ability to elect representatives of their choice in only six districts: Districts 15, 16, 20, 25, 27 and 28. As a result, Plan 1374C fails to provide proportional representation.
The majority concludes that proportionality should be assessed on the basis of the minority group's percentage of the citizen voting age population. The majority overlooks that this question arises in the context of the apportionment of seats to the United States Congress. The seats are apportioned according to total population. From 1990-2000, the Latino growth in Texas accounted for more than 60% of the state's total population. The state thus enjoys the benefit of the total Latino population through an increase in its Anglo congressional delegation, but at the same time seeks to restrict the Latino's opportunity to elect to the fewest number of districts. Latinos are thus counted one way for apportionment purposes, but another when it comes to equal opportunity to participate in the political process. Stated another way, the state seeks the maximum use of the Latino population to gain power but seeks to minimize the sharing of power with the Latinos by using a more restrictive measure.
d.
Even assuming the correctness of the majority's approach, however, 6 districts out of 7 remains at the low end of rough proportionality. For reasons that are apparent from this record, the majority errs when it rejects the § 2 claims by relying on rough proportionality. I would ascribe far less weight to the proportionality issue given the circumstances under which the present case comes to us. We must remember that the State is having to defend this claim because it made the conscious choice to dismantle a minority opportunity district to thwart the growing Latino dissatisfaction with an incumbent Congressman. Just when it became apparent that District 23 was becoming more effective for the class it was intended to protect, the State intentionally altered it. The State thus placed itself in this position and the related position of having to create a new Latino opportunity district to meet a retrogression concern. Although the majority concludes this action is permitted by De *527 Grandy, that case rejected a safe harbor rule precisely because such a rule would encourage states to do what Texas did: create an "offsetting" district where none was necessary and substitute one group's voting rights for another.
The weight ascribed to proportionality by the majority allows the State to mask its efforts to thwart the policies underlying the Voting Rights Act. To illustrate, suppose that new District 15 in Plan 1374C fails to perform and does not elect a candidate of choice for Latinos. Suppose further that over the course of the next few years, the Latino community mobilizes and puts pressure on the incumbent. To use De Grandy to permit the State at that stage to dismantle District 15 and create a new district somewhere else has a tendency to perpetuate the legacy of discrimination, not to thwart it. Our record, and the State's action directed toward old District 23, is no different.
4.
Finally, the majority suggests that the Balderas court rejected this identical claim. The Balderas court did not. It is ironic that the State finds comfort in a remedial order that the Legislature rejected as controlling. Although I agree that the State has the authority to enact a redistricting plan, that new plan must stand or fall on its own merit, and not on any language of the Balderas remedial order-an order which must be read in context of Plan 1151C as a whole and which did not purport to address the merits of Plan 1374C. Balderas drew a remedial plan without the benefit of either the controlling citizen voting age population data or the most recent election returns. Those data are now available. Under those figures, seven districts may be drawn in which Latino voters will have the opportunity to elect their candidates of choice to Congress.
Balderas was primarily motivated by the desire to meet the Supreme Court's holding that a federal court should draw a remedial plan bearing in mind the requirements of the Voting Rights Act. The remedial order was thus forced to straddle the requirements of § 2 and § 5. At that time, prior to Ashcroft, a compelling argument could be made that a reduction in the overall Latino voting strength in any of the particular districts would have worked a retrogression prohibited by § 5. One of the forces driving the Balderas court's rejection of a seventh Latino district in the Central and South Texas regions was that very concern. But the Attorney General has concluded, at least as to Plan 1374C, that an increase to the relevant geographic and population locations to accommodate six Latino districts, coupled with a corresponding reduction in the strength of District 15, will not lead to a retrogression of the minority group's effective exercise of the electoral franchise. It is incumbent upon us, therefore, to assess whether, by embracing that increased geographic area and drawing new districts, the State has drawn its districts in a way that will dilute the strength of the Latino vote therein.
The state is trying to have its cake and eat it too. The Balderas court found no vote dilution based on the totality of the circumstances then before it. The Balderas court expressly noted that its remedial plan increased the Latino voting strength in District 24 and created a minority opportunity district in District 25 and, in doing so, hardly left "a bleak terrain" for minority voting opportunities. Similarly, under Plan 1151C, Latino voters enjoyed substantial influence over the outcome of the elections in, at a minimum, Districts 10, 11 and 17 which influence, in turn, increased the likelihood that the elected candidates from those districts would be responsive to the needs of the minority *528 communities. The presence in 1151C of districts in which the candidates are responsive to the needs of the minority community is a relevant consideration under the Zimmer factors. Under the totality of the circumstances, the failure to create additional opportunities did not lead to a dilution in statewide Latino voting strength. Section 2 is concerned with effects, and the State is unable to point to the presence of these minority influence districts to counterbalance its failure to create a seventh Latino majority-minority district. The State cannot rely on the Balderas order to overcome this particular Section 2 challenge any more than the plaintiffs can rely on it to defeat the Legislature's ability to redistrict mid-decade. Balderas therefore stands as no opposition to the GI Forum plaintiffs' Section 2 claim.
III.
My opinion that the State violated § 2 when it dismantled old District 23 and replaced it with new District 25 renders it unnecessary to assess whether the "bacon strip" districts violate the principles set forth in Shaw v. Reno and its progeny.[4] Restructuring of the South and Central Texas districts is necessary to remedy that § 2 violation. It is doubtful that the court could, consistent with Upham v. Seamon, simply remedy the areas adjoining District 23, without treading on the state's policy as reflected overall in Plan 1374C. It is possible that any new configuration would cure any Shaw issues. For present purposes, it is enough for me to embrace the wisdom of Dr. Alford's opinion that any Shaw issues present in South and Central Texas under Plan 1374C resulted from the state's own action in altering District 23 for political purposes. The ripple effect of changes to this area of the map, however, would likely be felt across a large portion of the state. E.g., Abrams v. Johnson, 521 U.S. 74, 86, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). Given the primary schedule, and the evidence in the record about the difficulties of conducting the elections even under the plan as enacted by the State, I would grant the Legislature the opportunity to cure these defects and order the elections to be held under Plan 1151C, a plan that is beyond dispute a legal one.
IV.
This is not an easy case. My colleagues' concerns with interfering with legislative and political prerogatives are not without force, and I agree that politics motivated many of the decisions involved in the case. As difficult as the case is, however, I am unable to agree with the majority that § 2 was not violated when the state enacted Plan 1374C. I therefore dissent from that portion of the court's opinion.
V.
As I stated at the outset, I reluctantly concur with the court's judgment insofar as it addresses the claims related to the dismantling of District 24. It is not so much my agreement with the majority's assessment of the facts that causes me to do so, but rather it is instead the lack of clear guidance from the Supreme Court or the circuits regarding the extent to which Ashcroft's recognition of the value of coalitional and influence districts carries over into the § 2 context. At the present time, controlling law compels the conclusion reached by the majority.
The question whether § 2 creates influence dilution liability is a close one-made so by language in Ashcroft recognizing the importance and the value of such districts. My philosophical trouble with the controlling law's sacrosanct view of the 50% rule *529 flows from the fact that the Voting Rights Act endeavors to put minority voters on an equal footing in all aspects of the political process. See generally Stanley Pierre-Louis, The Politics of Influence; Recognizing Influence Dilution Claims Under Section 2 of the Voting Rights Act, 62 U. Chi. L.Rev. 1215, 1224 (1995)("Indeed, Section 2 refers to open participation for minority voters in the `political processes leading to nomination or election' as well as the opportunity `to elect representatives of choice.'") Just as minority voters are not immune from the obligation to "pull, haul, and trade to find common political ground," neither should a redistricting plan have the effect of operating unequally on a minority group's ability to engage in these very activities.
Participation in the political process is hard work. It is harder for minority groups who have suffered the legacy of a history of official discrimination. We heard compelling testimony from Deralyn Davis, the Chairman Emeritus of the Texas Coalition of Black Democrats, about just how hard it is for minority voters in the state of Texas. She described the grassroots efforts of her and others to build coalitions, mobilize, and increase the African American influence in the state's political machine. The efforts did not focus on one location in the state, but extended statewide. The testimony of others was consistent.
Under Plan 1000C, in use until the 2000 census, the black citizen voting age population of District 24 was 20.1%. Under Plan 1151C, the court drawn plan, District 24 has a black voting age population of 21.4%. The electorate in the Democratic primary over the last four election cycles has been roughly 64% African American. Both Dr. Lichtman and the State's expert, Dr. Gaddie, agreed that current District 24 performs for African Americans because those voters control the primary election. The key to the performance of District 24 is the makeup of the balance of the district. It is a political reality that blacks and Latinos in Texas vote largely Democratic in the general elections. They do so because, at least in Texas, the Democratic candidates are generally more responsive to the concerns of these minority communities. Under Texas's election scheme, in a Democratic leaning district, the key to a minority group's ability to elect a candidate of its choice on an ongoing basis is found in the group's practical ability to "pull, haul, and trade to find common political ground" in the Democratic primary. The ability to nominate in such districts is tantamount to the ability to elect.
The Supreme Court recently reminded us that "the power to influence the political process is not limited to winning elections." Ashcroft, ___ U.S. at ___, 123 S.Ct. at 2512. Ashcroft noted that "various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or coalition districts." Id. at ___, 123 S.Ct. at 2512-13 (citing David Lublin, Racial Redistricting and African-American Representation; A Critique of "Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?," 93 Am. Pol. Sci. Rev. 183, 185 (1999); Charles Cameron, David Epstein & Sharyn O'Halloran, Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?, 90 Am. Pol. Sci. Rev. 794, 808 (1996); C. Swain, Black Faces, Black Interests 193-234 (1995); and Bernard Grofman, Lisa Handley, & David Lublin, Drawing Effective Minority Districts; A Conceptual Framework and Some Empirical Evidence, 79 N.C.L.Rev. 1383 (2001)). If the most effective way to maximize minority voting strength is to create more influence or coalition districts, then the most effective way to minimize *530 minority voting strength may be to dismantle those districts in which a minority group has proven successful in its efforts to "pull, haul, and trade to find common political ground."[5]
Ashcroft leaves the state with flexibility to choose the method of creating fewer black majority-minority districts in favor of a greater number of influence or coalition districts. Alternatively, a state enjoys the flexibility to strengthen its existing majority-minority districts to ensure those districts will continue to elect candidates of choice of the minority community. In the Dallas/Fort Worth area, Texas chose neither route. Texas identified District 24, in which the minority community played a decisive role in the nomination and election processes and, because that group was not a literal majority and elected an Anglo Democrat, rearranged a cohesive community of those voters not into new District 12 (where they might have an impact on the general election), but into new District 26. This arrangement has the practical effect of eliminating the minority voters' political influence. But it has a much larger effect: by treating the minority group in this manner, the state action, I fear, will have the effect of destroying the minority group's hope. It is not accidental that, unlike the plan in Ashcroft, the present plan had overwhelming opposition from the minority legislators. The law's insistence on a 50% majority shields this move, but at the same time it ignores the political and social reality that there is more to participation in the electoral process than winning elections.
It is no answer that the disparate destruction of such coalitions might be tough to identify and even harder to remedy. Our charge is not to decide just the easy cases: it is to apply and, when necessary, enforce the protections of the Voting Rights Act. The question, difficult as it may be to answer, should be whether the treatment of such minority coalitions disproportionately affects those voters' ability to participate in the political process. The remedy need not require the protection inviolate of an old district, but it might require the creation of a more competitive one.
The treatment of the minority coalitions in old District 24 was inconsistent with the purposes of the Voting Rights Act. The evidence demonstrates that District 24 under Plan 1151C and Plan 1000C functioned as a district that fostered our progression to a society that is no longer fixated on race. Under this record, the black voters in old District 24 repeatedly nominated and helped to elect an Anglo congressman with an impeccable record of responsiveness to the minority community. To this end, I view the fact that Congressman Frost has not had a primary opponent to reflect favorably on his record. I would credit the testimony of Mayor Ron Kirk and Senator Royce West. Their testimony concerning how District 24 functions for the African American community is persuasive. Although the State, for § 5 purposes, created a new black opportunity district in the Houston area, this is of little consolation to the minority voters in old District 24, particularly the African American community in Tarrant County. The political influence of that minority community has been diluted, understanding, as *531 did the court in Ashcroft, that power at the polls and participation in the political process is not always measured by mathematical majorities. Given the current state of the law, however, I join the court's judgment denying relief on the plaintiffs' claim that the State violated § 2 by the dismantling of District 24. For the same reasons, I necessarily join the court's judgment denying relief with respect to the plaintiffs' claims that the changes to Districts 1, 2, 4, 9, 10, 11 and 17 resulted in cognizable influence dilution claims.
NOTES
[1] 2003 Texas House Bill 3, 78th Leg., 3d C.S. (Oct. 12, 2003).
[2] To avoid unnecessary confusion, we will attribute the arguments raised against Plan 1374C to the Plaintiffs as a group. We recognize, of course, that each Plaintiff has brought distinct arguments to the table.
[3] See Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex. 2001).
[4] Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D.Tex. Nov. 14, 2002), aff'd mem., 536 U.S. 919, 122 S.Ct. 2583, 153 L.Ed.2d 773 (2002).
[5] Balderas v. Texas, 536 U.S. 919, 122 S.Ct. 2583, 153 L.Ed.2d 773 (2002).
[6] 2 U.S.C. § 2c (2003).
[7] U.S. CONST. art. I, § 4.
[8] U.S. CONST. art. I, § 4.
[9] See, e.g., Smiley v. Holm, 285 U.S. 355, 366-67, 52 S.Ct. 397, 76 L.Ed. 795 (1932).
[10] Wesberry v. Sanders, 376 U.S. 1, 7-9, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
[11] Id. at 8, 84 S.Ct. 526.
[12] See 2 U.S.C. § 2a, 2c (2003).
[13] The recent decision by the Colorado Supreme Court, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo.2003), rests squarely on state law. That court did not hold that the U.S. Constitution limits states to once-a-decade redistricting.
[14] See, e.g., Branch v. Smith, 538 U.S. 254, 123 S.Ct. 1429, 1437, 155 L.Ed.2d 407 (2003) (affirming the district court's imposition of a redistricting plan, but noting that the district court's "alternative holding is not to be regarded ... as binding upon state and federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court"); Upham v. Seamon, 456 U.S. 37, 44, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982) (observing the parties' argument "that because the District Court's plan is only an interim plan and is subject to replacement by the legislature in 1983, the injury to appellants, if any, will not be irreparable"); Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978) ("Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the `unwelcome obligation' of the federal court to devise and impose a reapportionment plan pending later legislative action." (internal citations omitted)); Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977) (implicitly assuming that the state legislature could replace a "permanent" plan imposed by a district court); White v. Regester, 422 U.S. 935, 95 S.Ct. 2670, 45 L.Ed.2d 662 (1975) (noting that Texas's legislative plan "does not become effective until the 1976 elections"); Vera v. Bush, 980 F.Supp. 251, 253 (S.D.Tex. 1997) ("Because the legislature has failed to act, this Court is left with the `unwelcome obligation' of providing a congressional redistricting plan for the 1998 and millennial election cycles pending later legislative action." (emphasis added)); Vera v. Bush, 933 F.Supp. 1341, 1346, 1353 (S.D.Tex.1996) ("Bullock and Laney contend that the Texas Legislature is ready and willing to redistrict during its 1997 regular session. Of course, in any event, they will have that opportunity, as this Court's remedy is an interim plan and the Court will require the legislature to prepare its own constitutional redistricting plan next year."); Terrazas v. Clements, 537 F.Supp. 514 (N.D.Tex.1982) (implementing a temporary reapportionment plan that would remain "in effect for all elections through December 31, 1983, unless valid apportionment plans are enacted sooner"); Bush v. Martin, 251 F.Supp. 484, 517 (S.D.Tex.1966) (tentatively approving a legislative redistricting plan, but noting that the Texas Legislature could improve the plan before the next decennial census: "We retain jurisdiction to enable the 60th Legislature, convening in January of 1967 and any special sessions convened through July 1967, to take further action.... Indeed, this very litigation in its advocative hammering out of the issues, possible standards, strengths and deficiencies of H.B. 67, has made a substantial contribution to the continuing legislative process and function as the Texas Legislature takes the second and sharper look.").
[15] 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982).
[16] Id. at 44, 102 S.Ct. 1518.
[17] 538 U.S. 254, 123 S.Ct. 1429, 1437, 155 L.Ed.2d 407 (2003).
[18] 437 U.S. 535, 540, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978) (citing Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977) (emphasis added)).
[19] U.S. CONST. art. I, § 2, cl. 3.
[20] U.S. CONST. art. 1, § 2, cl. 3.
[21] Plaintiffs' argument depends, to some extent, on the assumption that states are required by the Constitution to draw district lines. This assumption, however, is unfounded. As we noted above, in the early years of this nation, many states did not draw district lines, but rather used statewide at-large districts. Since the Constitution itself does not require a state to draw district lines, it is difficult to see how the Census Clause could limit the states' power to redistrict.
[22] 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995).
[23] Article I, Section 2, Clause 2 specifies that "[n]o person shall be a Representative who shall not have attained to the Age of twenty five years, and been seven Years a citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
[24] U.S. Term Limits, 514 U.S. at 805, 115 S.Ct. 1842.
[25] Id.
[26] Id. at 796, 115 S.Ct. 1842.
[27] Indeed, because Article I, Section 2 specifies that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," the failure to give the states power over representatives' qualifications is all the more telling.
[28] Section 2a reads in pertinent part:
On the first day, or within one week thereafter, of ... each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under ... each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.
2 U.S.C. § 2a (2003).
[29] Section 2c provides in pertinent part:
In each State entitled ... to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ....
2 U.S.C. § 2c (2003).
[30] Wise v. Lipscomb, 437 U.S. 535, 539-540, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978); Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977).
[31] Branch v. Smith, 538 U.S. 254, 123 S.Ct. 1429, 1435, 155 L.Ed.2d 407 (2003); Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993).
[32] Upham v. Seamon, 456 U.S. 37, 39, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982).
[33] Id. ("We have never said that the entry of an objection by the Attorney General to any part of a state plan grants a district court the authority to disregard aspects of the legislative plan not objected to by the Attorney General. There may be reasons for rejecting other parts of the State's proposal, but those reasons must be something other than the limits on the court's remedial actions. Those limits do not come into play until and unless a remedy is required; whether a remedy is required must be determined on the basis of the substantive legal standards applicable to the State's submission.").
[34] Branch, 123 S.Ct. at 1435.
[35] To put the argument in slightly different terms, had the Framers intended to deprive states of authority to regulate whenever Congress spoke on the subject, they would surely have phrased the Elections Clause differently. For example, the Framers could have written: "The legislatures of the states may prescribe the time, places and manner of holding elections until Congress does so."
[36] 2 U.S.C. § 2c (2003).
[37] Plaintiffs also cite to the Supreme Court's decision in Utah v. Evans, 536 U.S. 452, 461, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002), presumably in an effort to bolster their linkage argument. Evans, however, does not discuss whether federal law limits the frequency with which a state can redistrict.
[38] Incidentally, there is no question that Plan 1374C complies with this requirement.
[39] See supra note 14 and accompanying text.
[40] To reach this conclusion, Plaintiffs first observe that § 2c is "just as binding" on the courts as it is on state legislatures. Second, when a federal court creates congressional districts under § 2c, it necessarily does so in the manner provided by state law. Finally, § 2c is a valid exercise of Congress's reserve power under the Elections Clause. Taken together, these three principles are said to prove that court-drawn districts are "functionally equivalent" to congressional districts drawn by state legislatures through the exercise of the power by Article I, Section 4, cl. 1.
[41] Initially, the Court used tradition as a lens through which charges of racial gerrymandering are analyzed. Thus, in Easley v. Cromartie, 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001), the Court reiterated that "that those who claim that a legislature has improperly used race as a criterion, in order, for example, to create a majority-minority district, must show at a minimum that the `legislature subordinated traditional race-neutral districting principles ... to racial considerations.'" 532 U.S. 234, 241, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (quoting Miller v. Johnson, 515 U.S. 900, 928, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)).
[42] 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).
[43] 538 U.S. 254, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003).
[44] White, 412 U.S. at 795, 93 S.Ct. 2348.
[45] Section 2a(c)(5) requires that representatives shall be elected in at-large elections "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment," whereas § 2c requires states to be divided into single-member districts and prohibits courts from ordering at-large elections. See 2 U.S.C. §§ 2a(c)(5), 2c.
[46] Branch, 123 S.Ct. at 1444 (citations omitted).
[47] Technically, the state would be bound to follow whatever districting traditions were in force as of the passage of § 2c.
[48] As further evidence of Texas's districting "traditions," Plaintiffs assert that the Texas Constitution bars mid-decade redistricting. We have already rejected the notion that the Texas Legislature is limited by its own traditions; therefore, we need not address this constitutional assertion. However, even if Texas's own traditions did limit the Texas Legislature, Plaintiffs have shown this court nothing in the Texas Constitution that would limit mid-decade redistricting. The State has not questioned this court's authority to enforce state law against the State of Texas. Given our finding that state law is no prohibition to mid-decade redistricting, we have no occasion to face the jurisdictional issue sua sponte.
The Texas Constitution does not explicitly allocate responsibility for drawing congressional districts. Plaintiffs point to this fact and argue that without an affirmative constitutional grant allowing the Legislature to undertake mid-decade redistricting, it may not do so. Plaintiffs' argument fails, however, precisely because the Texas Constitution is altogether silent on the topic of congressional redistricting. That is, not only does it not explicitly give the State Legislature the power to redistrict mid-decade; it does not explicitly give the State Legislature the power to draw congressional districts at all. Yet there is no doubt under Texas law that the State Legislature is in fact empowered to draw congressional district lines. The Texas Supreme Court reached this precise conclusion in Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex.2001), and numerous other courts have implicitly reached the same conclusion. It is well-established under Texas law that the Texas Legislature may legislate in any area not specifically proscribed by the Texas Constitution. Since the Texas Constitution does not deprive the Legislature of the power to pass congressional redistricting plans mid-decade, the Legislature has the power under Texas law to enact redistricting schemes intradecenially.
Although the Texas Constitution does not explicitly allocate the power to draw congressional districts, Article III, § 28 does address redistricting for state legislative districts. It requires the Texas Legislature to draw state representative and senatorial districts at its first regular session after the publication of the decennial census. If the Legislature fails to do so, § 28 confers the responsibility on a special body, the Legislative Redistricting Board.
Section 28 is generally thought to apply only to state legislative redistricting, but Plaintiffs assert that it applies to congressional redistricting as well, by analogy if not directly. Plaintiffs argue that § 28 prevents the Legislature from redrawing district lines mid-decade. For support, they point to a provision in the Texas Constitution of 1876 that limits the Texas Legislature to once-a-decade redistricting. While this provision was removed from the Constitution by an amendment to Article III, there is evidence that the 1876 provision remains in force.
The difficulty is that Plaintiffs ask us to do more than just apply Article III, § 28. They ask that we restore a provision removed over 100 years ago, apply it beyond its plain text to congressional redistricting, and strike down in the name of state law the first redistricting plan passed by the State Legislature since 1991. We are aware of no Texas case that has ever directly held that Article III, § 28 applies in full to congressional redistricting; all Texas decisions of which we are aware have assumed that § 28 does not control. And the Texas Attorney General Opinion Letters that Plaintiffs cite to bolster their argument also do not opine that Article III, § 28 applies in full to congressional redistricting. The letters address the State's duties under Article III, § 28 without addressing the Legislature's power to draw congressional districts.
[49] Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir.1998).
[50] 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
[51] Id. at 239, 96 S.Ct. 2040.
[52] Id.
[53] 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
[54] Id. at 265-66, 97 S.Ct. 555.
[55] 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).
[56] Id. at 278-79, 99 S.Ct. 2282 (internal citations omitted); Justice Stewart went on to explain that the impact was relevant as in Arlington Heights. Id. at 279 n. 24, 99 S.Ct. 2282 ("Proof of discriminatory intent must necessarily usually rely on objective factors, several of which were outlined in Arlington Heights v. Metropolitan Housing Dev. Corp. The inquiry is practical. What a legislature or any official entity is `up to' may be plain from the results its actions achieve, or the results they avoid. Often it is made clear from what has been called, in a different context, `the give and take of the situation.'" (citations omitted)).
[57] Miller v. Johnson, 515 U.S. 900, 934, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (Ginsburg, J., dissenting) (internal citations omitted).
[58] See Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D.Tex. Nov. 14, 2002), aff'd mem., 536 U.S. 919, 122 S.Ct. 2583, 153 L.Ed.2d 773 (2002).
[59] See Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D.Tex. Nov. 28, 2001), available at 2001 WL 34104833; Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D.Tex. Nov. 28, 2001), available at 2001 WL 34104836.
[60] See, e.g., Tr. 12/11 PM (Lichtman), at 67-68; Jackson Pls.' Exs. 1, 10, 12-13, and 15.
[61] Tr. 12/18 AM (Davis), at 77. State Representative Phil King, the bill sponsor for redistricting on the House side, added: "my job was to get eight votes aye on the redistricting committee then 76 on the Floor and then six in the conference committee. And Kent Grusendorf had said that hethat he would not support any planhe was on the redistricting committeethat did not keep the City of Arlington whole. He said Arlington always gets split up. He wanted it whole." Tr. 12/18 PM (King), at 135-36.
[62] Tr. 12/18 AM (Davis), at 78. Representative King reinforced Davis's testimony, stating: "I had also been directed by the Speaker of the HouseGlenn Lewis, was the first Democrat and the first minority member to come out supporting him publicly for Speaker. And Glenn Lewis had asked the Speaker that his District not be divided up, but remain intact within a Congressional District, non-specific as to which District, although he made it clear his preference was that it stay in a Martin Frost District. So I was directed by the Speaker of the House to under no circumstances split up Glenn Lewis's House seat, which is 95." Tr. 12/18 PM (King), at 136.
[63] Tr. 12/18 AM (Davis), at 79.
[64] Id. at 79: 19-24.
[65] Id. at 80: 2-9. Representative King testified to the same political result: "[W]hat we did in Tarrant County, the only way we could do that is basically took Stop Six Poly and Handley and Meadowbrook area and all of that and moved it up into north and tied it in with the Denton County area. And thosewe tried to, the best we could, maintain the city limit lines for Ft. Worth and for Arlington in that measure. And generally, you had that level of polities going on in every county, particularly the metropolitan ones throughout the State." Tr. 12/18 PM (King), at 137.
[66] Tr. 12/15 AM (Alford), at 109.
[67] Tr. 12/15 AM (Ratliff), at 35.
[68] Miller v. Johnson, 515 U.S. 900, 934, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (Ginsburg, J., dissenting).
[69] The Appellants in Vieth v. Jubelirer note the problems resulting from litigants turning to race-based claims when they have no chance of proving a Bandemer claim: "[W]ith no prospect of prevailing on a forthright claim of partisan gerrymandering under the lower courts' interpretation of Bandemer, aggrieved partisans instead often allege racial gerrymandering or minority vote dilution in violation of the Voting Rights Act. The incentive to couch partisan disputes in racial terms bleeds back into the legislative process, too, as members of the `out' partybelieving they can win only in court, and only on a race-based claimmay be tempted to spice the legislative record with all manner of racialized arguments, to lay the foundation for an eventual court challenge." Brief for Appellant at 10-11, Vieth v. Jubelirer, 2003 WL 22070244 (2003) (internal citations and footnotes omitted).
[70] 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986).
[71] Id. at 173, 106 S.Ct. 2797 (Powell, J., concurring in part and dissenting in part).
[72] Professor Samuel Issacharoff has explored this idea in a recent article. See Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593 (2002).
[73] 42 U.S.C. § 1973.
[74] Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). To aid courts in investigating a plaintiff's § 2 claim, the Gingles Court identified other factors that may, in "the totality of the circumstances," support a claim of racial vote dilution. Derived from the Senate Report accompanying the 1982 amendment to § 2, those factors include:
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, to 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 group 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; and
7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
Additional factors that may be probative of vote dilution in some cases are:
8. 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; and
9. 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.
Id. at 37, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417, 97th Cong., 2nd Sess., at 28-29 (1982), reprinted in U.S.Code Cong. & Admin.News 1982, at 206-07).
[75] See Metts v. Murphy, 2003 WL 22434637 (1st Cir.2003). We note, however, that the First Circuit elected to take Metts en banc and issued an order expressly withdrawing and vacating the panel decision. See Metts v. Murphy, No. 02-2204 (1st Cir. Dec. 3, 2003) (order granting petition for rehearing en banc).
[76] See, e.g., Valdespino v. Alamo Heights Ind. School Dist., 168 F.3d 848, 852-53 (5th Cir. 1999), cert. denied, 528 U.S. 1114, 120 S.Ct. 931, 145 L.Ed.2d 811 (2000); Cousin v. Sundquist, 145 F.3d 818, 827-29 (6th Cir.1998); Colleton County Council v. McConnell, 201 F.Supp.2d 618, 643 (D.S.C.2002).
[77] 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).
[78] Id. at 1015-16, 114 S.Ct. 2647.
[79] Id. at 1018-19, 1023-24, 114 S.Ct. 2647; see also, Barnett v. City of Chicago, 141 F.3d 699, 705 (7th Cir.1998); J. Gerald Hebert, Redistricting in the Post-2000 Era, 8 GEO. MASON L. REV. 431 (2000) ("As a practical matter, ... one factor is particularly important: the `proportionality,' or lack thereof, between the number of minority-controlled districts and the minority's share of the state's relevant population.").
[80] A redistricting plan may, of course, achieve proportionality and yet violate § 2. See, e.g., Rural West Tennessee African-American Affairs Council v. Sundquist, 209 F.3d 835 (6th Cir.2000); Harvell v. Blytheville Sch. Dist. No. 5, 126 F.3d 1038 (8th Cir.1997); Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382 (8th Cir.1995); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., # 1, 56 F.3d 904 (8th Cir.1995); Barnett v. Daley, 32 F.3d 1196 (7th Cir.1994).
[81] De Grandy, 512 U.S. at 1020, 114 S.Ct. 2647.
[82] 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
[83] 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996).
[84] Id. at 917, 116 S.Ct. 1894.
[85] De Grandy, 512 U.S. at 1019, 114 S.Ct. 2647.
[86] Valdespino v. Alamo Heights Ind. Sch. Dist., 168 F.3d 848, 852-53 (5th Cir.1999), cert. denied, 528 U.S. 1114, 120 S.Ct. 931, 145 L.Ed.2d 811 (2000).
[87] 876 F.2d 448, 453 (5th Cir.1989).
[88] See Post-Trial Brief of Jackson Plaintiffs, at 39 (conceding that "African-American and Hispanics in the Metroplex are not consistently `jointly' cohesive in Democratic primaries"). Furthermore, even assuming that Blacks and Hispanics vote cohesively, Plaintiffs have failed to meet their burden to disprove partisanship as the driving force behind the bloc voting. See LULAC v. Clements, 999 F.2d 831, 850 (1993) (en banc).
[89] Gingles, 478 U.S. at 51 n. 17, 106 S.Ct. 2752.
[90] ___ U.S. ___, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003).
[91] The parties assign various names to these districts, but we will follow the Supreme Court's taxonomy.
[92] Ashcroft, ___ U.S. at ___, 123 S.Ct. at 2511.
[93] Id. at ___, 123 S.Ct. at 2512 (quoting De Grandy, 512 U.S. at 1020, 114 S.Ct. 2647).
[94] Id.
[95] Id.
[96] Id. at ___ - ___, 123 S.Ct. at 2507-08. The districts reduced the minority populations from 60.58%, 55.43%, and 62.45% to 50.31%, 50.66%, and 50.80%, respectively.
[97] Id. at ___, 123 S.Ct. at 2511.
[98] Id. at ___, 123 S.Ct. at 2512.
[99] Id. at ___, 123 S.Ct. at 2513.
[100] Gingles, 478 U.S. at 50, 106 S.Ct. 2752.
[101] See Post-Trial Brief of Jackson Plaintiffs, at 5 n. 3.
[102] See Uno v. City of Holyoke, 72 F.3d 973, 979 n. 2 (1st Cir.1995); Rural West Tenn. African-Am. Affairs Council, Inc. v. McWherter, 877 F.Supp. 1096, 1101 (W.D.Tenn. 1995).
[103] Parker v. Ohio, 263 F.Supp.2d 1100, 1104 (S.D.Ohio) (three-judge panel), aff'd, ___ U.S. ___, 124 S.Ct. 574, ___ L.Ed.2d ___ (2003).
[104] Ashcroft, ___ U.S. at ___, 123 S.Ct. at 2512 (internal citations omitted).
[105] MICHAEL BARONE, THE ALMANAC OF AMERICAN POLITICS 2004, at 1580 (Nat'l Journal Group 2003).
[106] Id. at 1581.
[107] Id. at 1448 ("The plan carefully constructs democratic districts with incredibly convoluted lines and packs heavily Republican suburban areas into just a few districts.").
[108] Tr. 12/17 PM (Johnson), at 154-155, 161, 164-165.
[109] BARONE, supra note 105, at 1508.
[110] Id. at 1510.
[111] 165 F.3d 368 (5th Cir.1999), cert. denied, 528 U.S. 1114, 120 S.Ct. 930, 145 L.Ed.2d 810 (2000).
[112] 168 F.3d 848 (5th Cir.1999), cert. denied, 528 U.S. 1114, 120 S.Ct. 931, 145 L.Ed.2d 811 (2000).
[113] 2003 WL 22434637 (1st Cir.2003), vacated and reh'g en banc granted, No. 02-2204 (1st Cir. Dec. 3, 2003).
[114] Dr. Keith Gaddie credibly testified that Plaintiffs' view of influence districts "would lock in a majority of seats for the party getting the minority of the vote." Deposition of Keith Gaddie, November 22, 2003, at 101. Further, he testified that it was not protected under § 2 and that it was not possible to draw a second, sufficiently compact majority-minority district in Dallas. Id. at 75 ("[District 24] is not going to meet the first prong of the Gingles criteria.... It is not a district in which you have one minority group which can constitute a majority of the population. It's not a district where that minority group controls primary and the general election. It's not possible to draw a second sufficiently compact majority district in Dallas if you draw District 30."). Accordingly, if § 2 protection is afforded to old District 24 despite the absence of the Gingles factors, the Voting Rights Act begins to protect political affiliation and not race. If the Voting Rights Act protects a district where coalitions are required to elect a candidate of choice
you're on a slippery slope to essentially saying, "Well, if it's a Democratic district, you can't re-draw it." And intellectually, that to me is troubling because it sets up a circumstance where one party has its constituency protected under the Voting Rights Act and ... the other party doesn't have any protections at all.
Id. at 100. Protecting districts that are defined and controlled by political coalition and not race would infringe on the clear right of the state to choose its method of compliance with the Voting Rights Act. If there is no obligation to create an influence district, there is no obligation to retain one.
[115] See Abrams v. Johnson, 521 U.S. 74, 92, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997).
[116] See supra note 108. District 24 adjoins Johnson's District 30, a Gingles-mandated district, meaning it exists because Anglos vote as a block to defeat Black preferences.
[117] The record, we should note, is largely bereft of evidence that Hispanics and Blacks vote cohesively as a group in these districts. We therefore echo our conclusion on District 24 and find that Plaintiffs have failed to prove that the Latino and Black communities in Districts 1, 2, 4, 9, 10, and 11 function as a cohesive voting bloc.
[118] The map reveals that Hudspeth County, next to El Paso County, includes 3,344 people; Culberson County and Jeff Davis County directly to the east contain 2,975 and 2,207 people, respectively. Presidio County to the southeast is the only county between El Paso and Maverick Counties with an excess of 50% or more Hispanic voting age population, and it has only 7,304 people. The vast area between Presidio and Maverick Counties includes Brewster County, with 8,866 people; Terrell County, with 1,081 people; Val Verde County, with 44,856 people; and Kinney County, with 3,379 people.
[119] Many of the counties north of Hidalgo County (569,463) and Cameron County (335,227) in the Rio Grande Valley are thinly populated. They include Jim Hogg County, northwest of Hidalgo County (5,281); McMullen County (851); Kenedy County (414); Live Oak County (12,309); and Goliad County (6,928).
[120] Congressional District 23 in Plan 1151C was made up of 24 counties; in Plan 1374C, it included 25 counties. Congressional District 28 included 11 counties in both Plan 1151C and Plan 1374C. New Congressional District 25 in Plan 1374C comprised 9 counties. Congressional District 15 in Plan 1151C included 8 counties; in Plan 1374C, Congressional District 15 included 13 counties. Congressional District 27 in Plan 1151C included 5 counties; in Plan 1374C, it included 6 counties.
[121] 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
[122] 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).
[123] Id. at 1012-13, 114 S.Ct. 2647.
[124] There is an obvious difference between the roles of the Balderas court and this court. The Balderas court had the remedial task of crafting a congressional redistricting plan according to neutral factors because the Legislature had failed to implement a plan following the 2000 census. This court, by contrast, must carefully and thoroughly examine the legislative redistricting plan to determine whether the Legislature used factors and reached results that violate federal law. This court is "barred from intervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the States, and not the federal courts, to conduct apportionment in the first place. Time and again [the Supreme Court has] emphasized that `reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than [that] of a federal court.'" Voinovich v. Quilter, 507 U.S. 146, 156, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (quoting Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)). "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." Id. The difference in the roles played by the Balderas court and this court does not lead to a difference in outcome as to the issue of an additional Hispanic majority citizen voting age population district in South and West Texas.
[125] In the demonstration plan, 1385C, Congressional District 23 is almost bisected by Congressional District 25, which surrounds the intruding district on three sides. Congressional District 25 travels north, then west, with an arm that projects to the northeast into Central Texas. Congressional District 15 goes from the Rio Grande Valley east to the coast north of Nueces County, then cuts north into Central Texas. A comparison of the compactness scores between the two plans understates the unusual shapes of the proposed demonstration district, as compared to both 1151C and 1374C. The "smallest circle" figure is a "dispersion" measure that captures the density of a district by calculating the ratio of the district's area to the area of the minimum circle that could circumscribe it. The "perimeter to area" measure captures the irregularity or jaggedness of a district's border by calculating the ratio of the district's area to the square of its perimeter. At trial, Plaintiffs vigorously criticized the legislative plan for high compactness scores, particularly for Congressional Districts 15 and 25. While those districts have slightly better compactness scores in the demonstration plan, the perimeter to area scores for Congressional Districts 23 and 28, which begins in Bexar County and moves toward Travis County, taking small parts of five different counties, are significantly worse. And Plaintiffs' criticisms of parts of Plan 1374C for extending certain districts across disparate and distant communities would seem even more applicable to parts of demonstration Plan 1385C.
-------------------------------------------------------------------------------
Perimeter to Area Smallest Circle
-------------------------------------------------------------------------------
Congressional
District 1374c 1385c 1374c 1385c
-------------------------------------------------------------------------------
15 11.6 8.8 6.5 5.4
-------------------------------------------------------------------------------
16 3.8 4.1 2.9 4.6
-------------------------------------------------------------------------------
20 7.3 5.8 3.0 2.7
-------------------------------------------------------------------------------
23 5.1 9.4 3.8 4.5
-------------------------------------------------------------------------------
25 9.6 5.9 8.5 2.8
-------------------------------------------------------------------------------
27 5.1 3.4 3.1 3.1
-------------------------------------------------------------------------------
28 5.7 10.0 5.0 6.0
-------------------------------------------------------------------------------
[126] The State provides an analysis, as follows:
-------------------------------------------------------------------------------
1374C Districts Total CVAP Percent Hispanic
-------------------------------------------------------------------------------
15 379,368 58.5%
-------------------------------------------------------------------------------
16 359,793 69.9%
-------------------------------------------------------------------------------
20 419,668 60.8%
-------------------------------------------------------------------------------
23 407,130 45.8%
-------------------------------------------------------------------------------
25 358,683 55.0%
-------------------------------------------------------------------------------
27 398,328 60.4%
-------------------------------------------------------------------------------
28 404,341 56.2%
-------------------------------------------------------------------------------
TOTAL 2,727,311 57.94%
-------------------------------------------------------------------------------
(State's Post-Trial Br. at 62).
[127] De Grandy, 512 U.S. at 1014 n. 11, 114 S.Ct. 2647. "Proportionality" in this sense is only one factor to be considered in assessing the totality of circumstances to determine if unlawful vote dilution has created an "unequal political and electoral opportunity" for a protected class. Id. at 1022, 114 S.Ct. 2647. Just as the Supreme Court in De Grandy made clear that "proportionality" of opportunity cannot be a "safe harbor" precluding § 2 liability, which turns on total circumstances, id. at 1017-22, 114 S.Ct. 2647, so, too, a showing of lack of proportionality is but one factor in the total circumstances analysis. The Supreme Court has made clear that "the degree of probative value assigned to proportionality may vary with other facts. No single statistic provides courts with a shortcut to determine whether a set of singlemember districts unlawfully dilutes minority voting strength." Id. at 1020-21, 114 S.Ct. 2647.
[128] Id. at 1014 n. 11., 114 S.Ct. 2647
[129] Id. at 1022, 114 S.Ct. 2647.
[130] See Jackson Pls.' Ex. 64.
[131] See, e.g., Old Person v. Brown, 312 F.3d 1036, 1047-49 (9th Cir.2002) (emphasizing that the same frame of reference should be used for analyzing proportionality and the Gingles factors); Rural W. Tenn. African-Am. Affairs Council v. Sundquist, 209 F.3d 835, 840-41 (6th Cir.2000) (using the same sixcounty frame of reference to examine proportionality and the Gingles factors); Solomon v. Liberty County Comm'rs, 221 F.3d 1218, 1220 (11th Cir.2000) (using the same county as a frame of reference in analyzing all factors); African-Am. Voting Rights Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1354-55 (8th Cir. 1995) (using all 28 wards of the city of St. Louis as the frame of reference for analyzing both proportionality and the Gingles preconditions).
[132] 512 U.S. at 1023, 114 S.Ct. 2647.
[133] Id. at 1024, 114 S.Ct. 2647. This circuit, along with every other circuit to consider the question, has concluded that the relevant voting population for Hispanics is citizen voting age population. See Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 853 (5th Cir.1999); Perez v. Pasadena Indep. Sch. Dist., 165 F.3d 368, 372 (5th Cir.1999); Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir.1997) (courts "must consider the citizen voting-age population of the group challenging the electoral practice when determining whether the minority group is sufficiently large and geographically compact to constitute a majority"); Barnett v. City of Chicago, 141 F.3d 699, 704 (7th Cir.1998) ("We think that citizen voting-age population is the basis for determining equality of voting power that best comports with the policy of [§ 2].").
[134] Dr. Jerry Polinard, a political scientist testifying for the Valdez-Cox Intervenors, testified that there is "no magic number" as to the level of Spanish-surname voter registration required in order for Hispanics to effectively nominate and elect their candidates of choice, but he noted that "you become comfortable with opportunity districts once you break into those 60%-plus ranges." (Tr. File 8 at 50-51). Dr. Allan J. Lichtman, an expert retained by the Jackson Plaintiffs, testified that reductions in Hispanic citizen voting age population, even to a point where Hispanics still constitute a majority of the electorate, along with low Hispanic voter turnout, can move a district toward "the danger zone" in terms of Latino voting opportunity. (Tr. File 1 at 156-57). Congressman Charlie Gonzalez testified that, "If you just go with population figures ... [t]hat really doesn't translate to having an effective voice or ability to elect someone of your choice" because the more pertinent indicator is the percentage of Hispanic citizens of voting age who register to vote and actually turn out on election day, which results in far less effectiveness. (Tr. File 1 at 118-19). Congressman Rubén Hinojosa testified that "along the Texas border region from Brownsville to McAllen to Laredo to El Paso ... in order to win an election, you need to have about 57, 58% or higher Hispanic voter age population because of the low turnout." (Tr. File 4 at 48).
[135] Dr. Keith Gaddie, a political science expert retained by the State, testified in his deposition that in Congressional District 15 under Plan 1374C, Latinos would control the primary elections but, if turnout was low, might not unilaterally control the outcome of general elections, although Latino candidates of choice would generally be elected. (See Gaddie Dep., Jackson Pls.' Ex. 140 at 46-47; Gaddie Report, Jackson Pls.' Ex. 141 at 8). Dr. Gaddie submitted regression data showing that in Congressional District 15, in seven primary or runoff elections, all the Latino candidates of choice would be successful, and five out of six Latino candidates of choice would win in the general elections. (Gaddie Report, Jackson Pls.' Ex. 141 at 7-8). Dr. Lichtman concluded that the turnout of Latino voters in the general election decreased from a mean of 52% under Plan 1151C to a mean of 38% under Plan 1374C, but testified that Congressional District 15 remains a minority opportunity district rather than an influence district. (Lichtman Report, Jackson Pls.' Ex. 1 at 69; Tr. File 1 at 156, 166-67). Dr. Richard Engstrom, an expert retained by the GI Forum Plaintiffs, testified that in Congressional District 15 under Plan 1374C, there was no racially contested election that he examined in which the Latino-preferred candidate lost and that the reduction in Latino turnout in the general election did not make Congressional District 15 ineffective as a Latino opportunity district. (Tr. File 7 at 53, 64-65; see Table 3 of Addendum to Engstrom Report, GI Forum's Ex. 130).
[136] The GI Forum provided an analysis, as follows:
-------------------------------------------------------------------------------
1385C 1374C
-------------------------------------------------------------------------------
Congressional
district HVAP HCVAP HVAP HCVAP
-------------------------------------------------------------------------------
15 68.7 63.2 64.0 58.5
-------------------------------------------------------------------------------
16 72.7 67.7 74.8 69.9
-------------------------------------------------------------------------------
20 60.7 57.9 63.6 60.8
-------------------------------------------------------------------------------
23 63.5 56.9 50.9 45.8
-------------------------------------------------------------------------------
25 63.8 58.4 63.4 55.0
-------------------------------------------------------------------------------
27 63.5 59.9 64.2 60.4
-------------------------------------------------------------------------------
28 54.3 50.3 60.1 56.2
-------------------------------------------------------------------------------
(GI Forum's Post-Trial Br. at 14).
[137] GI Forum's Post-Trial Br. at 15.
[138] Table 3 of Addendum to Engstrom Report, GI Forum's Ex. 130.
[139] Gaddie Report, Jackson Pls.' Ex. 141 at 9-10.
[140] 512 U.S. at 1015-16, 114 S.Ct. 2647. The Court noted in De Grandy that findings that certain lines were drawn to separate portions of Hispanic neighborhoods, while others drew several Hispanic neighborhoods into a single district, in themselves, "would be to say only that lines could have been drawn elsewhere, nothing more." Id.
[141] See, e.g., Voinovich, 507 U.S. at 153, 113 S.Ct. 1149.
[142] 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996).
[143] Id. at 917, 116 S.Ct. 1894.
[144] Id.
[145] This case reflects what commentators have recognized as a tension in the cases under § 2 between recognizing the individual right to an undiluted vote and the fact that dilution can be determined and remedied only by addressing the aggregate treatment of group members. See generally Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663 (2001).
[146] Indeed, in arguing for an additional Latino majority citizen voting age population district, the GI Forum Plaintiffs emphasize that the Gingles criteria are met throughout the South and West Texas area.
[147] See Bush v. Vera, 517 U.S. 952, 978, 116 S.Ct. 1941, 135 L.Ed.2d 248 ("the States retain a flexibility that federal courts enforcing § 2 lack ... insofar as deference is due to their reasonable fears of, and to their reasonable efforts to avoid, § 2 liability"); see also Lawyer v. Dep't of Justice, 521 U.S. 567, 575-77, 117 S.Ct. 2186, 138 L.Ed.2d 669 (1997).
[148] 517 U.S. at 917 n. 9, 116 S.Ct. 1894; cf. Georgia v. Ashcroft, ___ U.S. ___, ___, 123 S.Ct. 2498, 2511, 156 L.Ed.2d 428 (2003) (under § 5, a state may choose to create a certain number of effective majority-minority districts or a greater number of minority influence districts).
[149] De Grandy, 512 U.S. at 1011, 114 S.Ct. 2647.
[150] Table 3 of Engstrom Report, GI Forum's Ex. 89; Table 3 of Addendum to Engstrom Report, GI Forum's Ex. 130; Attachments to Gaddie Report, State's Ex. 31.
[151] Number of Times Latino-Preferred
Candidate was Elected under Plan
1374C in Eight Racially-Contested
Congressional District Elections from 1994-2002
--------------------------------------------------------------------
15 8
--------------------------------------------------------------------
16 8
--------------------------------------------------------------------
20 8
--------------------------------------------------------------------
23 1
--------------------------------------------------------------------
25 8
--------------------------------------------------------------------
27 8
--------------------------------------------------------------------
28 8
--------------------------------------------------------------------
(GI Forum's Post-Trial Br. at 15).
[152] The one Hispanic-preferred candidate loss occurred when 37% of the Hispanic voters supported a Hispanic Republican over an Anglo Democrat. (Gaddie Report, Jackson Pls.' Ex. 141 at 8).
[153] Id. at 10.
[154] Id. at 11.
[155] Id.
[156] Tr. File 1 at 157, 167-68.
[157] Id. at 151-52.
[158] Id. at 153.
[159] Gaddie Report, Jackson Pls.' Ex. 141 at 8.
[160] Lichtman Test., Tr. File 1 at 167; Engstrom Test., Tr. File 7 at 64-65.
[161] Tr. File 8 at 53-54, 64.
[162] Gaddie Report, Jackson Pls.' Ex. 141 at Table 3.
[163] Id. at 11.
[164] Tr. File 1 at 166-67.
[165] Tr. File 7 at 53-54. Again, Dr. Polinard disagreed, testifying that Congressional District 27 was weakened as compared to Plan 1151C to the point of becoming an influence district. (Tr. File 8 at 48-49).
[166] Gaddie Report, Jackson Pls.' Ex. 141 at Table 3.
[167] See, e.g., Gonzalez Test., Tr. File 1 at 123-24; Hinojosa Test., File 4 at 53; Richard Raymond Test., Tr. File 6 at 85-86; Aaron Peña Test., Tr. File 6 at 168.
[168] These concerns also bear on Plaintiffs' Shaw claim that the map drawers subordinated traditional districting concerns, such as compactness and respecting communities of interest, to the goal of collecting enough Latinos to achieve a majority of citizen voting age population in the districts. See Part VI.D.
[169] As De Grandy makes clear, the ultimate conclusions about equality of opportunity are to be based on a comprehensive examination of the relevant facts. 512 U.S. at 1011, 114 S.Ct. 2647; see also Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1390-91 (8th Cir. 1995).
[170] See, e.g., Hinojosa Test., File 4 at 48-53; Peña Test., Tr. File 6 at 167.
[171] See, e.g., Lichtman Test., Tr. File 1 at 166-67; Engstrom Test., Tr. File 7 at 53-54; Gaddie Report, Jackson Pls.' Ex. 141 at 11.
[172] See, e.g., Lichtman Test., Tr. File 1 at 151-53; Peña Test., Tr. File 6 at 168-69; Polinard Test., Tr. File 8 at 57-58.
[173] See De Grandy, 512 U.S. at 1014 n. 11, 114 S.Ct. 2647; Lewis v. Alamance County, N.C., 99 F.3d 600, 607 (4th Cir.1996).
[174] See, e.g., Peña Test., Tr. File 6 at 169-72; Polinard Test., Tr. File 8 at 63-65; Ron Kirk Test., Tr. File 4 at 23-24; Gaddie Report, Jackson Pls.' Ex. 141 at 8, 10.
[175] See Lichtman Test., Tr. File 1 at 166-67; Engstrom Test., Tr. File 7 at 54; Gaddie Report, Jackson Pls.' Ex. 141 at 11.
[176] See De Grandy, 512 U.S. at 1014 n. 11, 114 S.Ct. 2647 ("[T]he ultimate right of § 2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race."); Gingles, 478 U.S. at 47, 106 S.Ct. 2752 ("The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.") (emphasis added); Sanchez v. State of Colorado, 97 F.3d 1303, 1310 (10th Cir.1996) ("The lack of electoral opportunity is the key."); Uno v. City of Holyoke, 72 F.3d 973, 979 (1st Cir.1995) ("While the statutory scheme does not provide an assurance of success at the polls for minority candidates, it does provide an assurance of fairness.") (citations omitted).
[177] 478 U.S. at 99, 106 S.Ct. 2752.
[178] 507 U.S. at 40-41, 113 S.Ct. 1075; see also Harvell, 71 F.3d at 1393; Johnson v. Mortham, 926 F.Supp. 1460, 1473 (N.D.Fla. 1996).
[179] 512 U.S. at 1019, 114 S.Ct. 2647.
[180] 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995).
[181] Id. at 916, 115 S.Ct. 2475.
[182] Id.
[183] 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996).
[184] Id. at 993, 116 S.Ct. 1941 (O'Connor, J., concurring).
[185] Miller, 515 U.S. at 916, 115 S.Ct. 2475; Shaw I, 509 U.S. at 646, 113 S.Ct. 2816.
[186] Id.; Shaw II, 517 U.S. at 907, 116 S.Ct. 1894 (race is predominate when it is "the criterion that, in the State's view, [can] not be compromised").
[187] Shaw I, 509 U.S. at 646, 113 S.Ct. 2816; Bush, 517 U.S. at 962, 116 S.Ct. 1941.
[188] See Bush, 517 U.S. at 958-59, 116 S.Ct. 1941; Miller, 515 U.S. at 916, 115 S.Ct. 2475.
[189] Easley v. Cromartie, 532 U.S. 234, 241, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001); Miller, 515 U.S. at 928, 115 S.Ct. 2475 (O'Connor, J., concurring); see Cano v. Davis, 211 F.Supp.2d 1208, 1215 (C.D.Cal.2002) ("All of the racial gerrymandering cases emphasize that a plaintiff bringing such a claim faces an extraordinarily high burden.").
[190] 515 U.S. at 928-29, 115 S.Ct. 2475 (O'Connor, J., concurring).
[191] See Bush, 517 U.S. at 959, 116 S.Ct. 1941; Miller, 515 U.S. at 916-19, 115 S.Ct. 2475; Shaw I, 509 U.S. at 647, 113 S.Ct. 2816.
[192] See Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483 (1993), cited in Shaw II, 517 U.S. at 923, 931, 116 S.Ct. 1894.
[193] Tr. File 6 at 25.
[194] Shaw I, 509 U.S. at 642, 113 S.Ct. 2816; Hunt v. Cromartie, 526 U.S. 541, 548 n. 3, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).
[195] See Miller, 515 U.S. at 917, 115 S.Ct. 2475 ("Although by comparison with other districts the geometric shape of the Eleventh District may not seem bizarre on its face, when its shape is considered in conjunction with its racial and population densities, the story of racial gerrymandering ... becomes much clearer.").
[196] Indeed, Dr. Alford conceded that Texas has not valued compactness during the period in which Texas has engaged in districting. Tr. File 6 at 21.
[197] BARONE, supra note 105, at 1548, 1557, 1576.
[198] Cf. Theriot v. Parish of Jefferson, 185 F.3d 477, 487-88 (5th Cir.1999) (rejecting a claim of racial gerrymandering where one-man-one-vote considerations and the district's geography substantially limited the ability of map drawers to adhere to compactness standards).
[199] See Jackson Pls.' Ex. 59-63.
[200] See Jackson Pls.' Ex. 1 at 57.
[201] The GI Forum Plaintiffs presented Dr. Morgan Kousser, a political scientist, as an expert witness on determining legislative intent to discriminate in a redistricting plan. Dr. Kousser criticized the Legislature for "tak[ing] a correlation between voting and race that's true in Texas now ... and freez[ing] it in place .... It would be possible, had the redistricting chosen other means, that in some future redistricting partisanship and race would not be so highly correlated and that you could attain a partisan end without using racial means. But the Republicans chose to do it in a different way, a way that only achieves the partisan end by using the racial means. And my conclusion is that they chose that on purpose and that was a racially discriminatory intent." (Tr. File 7 at 118-19). Dr. Kousser's conclusion of discrimination is not supported by the current case law, which recognizes that a partisan goal is permissible and that where, as here, there is a strong correlation between race or ethnicity and party, drawing district lines along political lines that may coincide with racial or ethnic lines does not evidence intentional racial discrimination. See Hunt, 526 U.S. at 551-52, 119 S.Ct. 1545. Dr. Kousser's criticism of the State's choice to create a "safe" Hispanic majority district in Congressional District 25 rather than allow Congressional District 23 to continue as an evolving Hispanic influence district is a criticism of the wisdom of the Legislature's redistricting approach, rather than its legality. As the Supreme Court recently stated in Georgia v. Ashcroft, "[A] State may choose to create a certain number of `safe' districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice.... Alternatively, a State may choose to create a greater number of districts in which it is likelyalthough perhaps not quite as likely as under the benchmark planthat minority voters will be able to elect candidates of their choice." ___ U.S. at ___, 123 S.Ct. at 2511.
[202] Miller, 515 U.S. at 915-16, 115 S.Ct. 2475.
[203] Bush, 517 U.S. at 967, 116 S.Ct. 1941; Karcher v. Daggett, 462 U.S. 725, 740, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983) (recognizing incumbency protection as a legitimate state goal in reapportionment).
[204] 185 F.3d 477 (5th Cir.1999).
[205] Id. at 486.
[206] See Easley, 532 U.S. at 242, 121 S.Ct. 1452 ("Caution is especially appropriate ... where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated.").
[207] Hunt, 526 U.S. at 551, 119 S.Ct. 1545; see id. at 551-52, 119 S.Ct. 1545 ("Evidence that blacks constitute even a supermajority in one congressional district while amounting to less than a plurality in a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines when the evidence also shows a high correlation between race and party preference."); Bush, 517 U.S. at 968, 116 S.Ct. 1941 (finding that district lines that correlate with race because they are drawn on the basis of a political affiliation that correlates with race do not amount to a racial classification); see also Shaw II, 517 U.S. at 905, 116 S.Ct. 1894; Miller, 515 U.S. at 916, 115 S.Ct. 2475; Shaw I, 509 U.S. at 646, 113 S.Ct. 2816.
[208] Davis Test., Tr. File 11 at 85.
[209] Id. at 81 (explaining that Plan 1374C splits Comal County along a city council district line).
[210] Id. at 90-91.
[211] Id. at 89.
[212] In all, Plan 1374C split 122 cities and 14 Census Designated Places. By comparison, Plan 1151C split 132 cities and 15 Census Designated Places.
[213] Cf. Theriot, 185 F.3d at 485-86 (rejecting a claim of racial gerrymandering where map drawers testified that reapportionment was based on political negotiations).
[214] 517 U.S. at 959, 116 S.Ct. 1941.
[215] Id. at 971, 116 S.Ct. 1941.
[216] Id.
[217] See Bush, 517 U.S. at 964, 116 S.Ct. 1941 (suggesting that the achievement of political goals, including incumbency protection, constitutes a traditional districting criterion); Chen v. City of Houston, 206 F.3d 502, 507 (5th Cir.2000) (same); Clark v. Putnam, 293 F.3d 1261, 1266 (11th Cir.2002) (same); see also Shaw I, 509 U.S. at 651, 113 S.Ct. 2816 (citing United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 168, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (opinion of White, J., joined by Stevens and Rehnquist, J.J.)) (characterizing the achievement of population equality as a traditional districting principle).
[218] See Bush, 517 U.S. at 962, 116 S.Ct. 1941 (noting that the drawing of majority-minority districts is not objectionable unless traditional districting criteria are subordinated to race).
[219] Cf. Theriot, 185 F.3d at 487-88 (holding that race was not the predominate factor in a reapportionment based on political negotiation, including incumbency protection, and limited by one-man-one-vote concerns and irregular geography).
[220] Bush, 517 U.S. at 964, 116 S.Ct. 1941.
[221] Shaw I, 509 U.S. at 635-36, 113 S.Ct. 2816 (internal citations omitted); see Chen, 206 F.3d at 512.
[222] 515 U.S. at 908, 115 S.Ct. 2475.
[223] Cf. Chen, 206 F.3d at 513 (noting that, at least when relatively large districts are involved, the mere existence of socioeconomic variations within a district is generally not probative of the predominance of race or ethnicity in districting decisions).
[224] Miller, 515 U.S. at 915, 115 S.Ct. 2475.
[225] Davis Test., Tr. File 11 at 85-125; King Test., Tr. File 12 at 135-40; Jackson Pls.' Ex. 136.
[226] 517 U.S. at 961-62, 116 S.Ct. 1941.
[227] Davis Test., Tr. File 11 at 92, File 12 at 27-28.
[228] Hunt, 526 U.S. at 546, 119 S.Ct. 1545; Bush, 517 U.S. at 993, 116 S.Ct. 1941 (O'Connor, J., concurring); Miller, 515 U.S. at 916, 115 S.Ct. 2475.
[229] See Bush, 517 U.S. at 959, 116 S.Ct. 1941.
[230] Texas NAACP Pl.'s Post-Trial Brief at 27.
[231] Gaddie Report, Jackson Pls.' Ex. 141 at 13, 14; see Murray Report, Jackson Lee and Johnson Pls.' Ex. 27.
[232] Jackson Pls.' Ex. 141 at Table 3.
[233] Jackson Lee and Johnson Pls.' Ex. 27 at 8, Table 6.
[234] Id.
[235] See id. at 4-9.
[236] Jackson Lee and Johnson Pls.' Ex. 27 at 12, Table 9.
[237] Id.
[238] Id.
[239] See id. at 9-13.
[1] To be sure, under any configuration, the geography spanned by the districts in South and West Texas is vast. But some of the districts include large areas to capture population; new District 25 is noncompact because of its need, under § 5, to capture Hispanic population.
[2] Old Person v. Brown did not reach the question because proportionality was lacking under either a statewide or a more narrow geographic scope. 312 F.3d 1036, 1044-46 (9th Cir.2002) ("Our holding that proportionality analysis could not here be limited to the districts of the plaintiffs' residence does not require us to choose between the state or the four counties as frame of reference. In either case, there is a lack of proportionality"). And, the court in Rural West Tennessee African-American Affairs Council v. Sundquist, adopted plaintiffs' proposed geographic scope when vote dilution claim focused on particular area of state. 209 F.3d 835, 844 (6th Cir.2000). African American Voting Rights Legal Defense Fund v. Villa measured proportionality of a citywide apportionment plan using the entire city, noting "[w]e also believe that the district court's focus upon the entire city of St. Louis rather than upon the five central corridor wards was consistent with Johnson.... We agree that Johnson stands for the proposition that the proper geographic scope for the comparison is the scope that is pleaded in the complaint and subjected to proof." 54 F.3d 1345 (8th Cir.1995). Finally, in Campuzano v. Illinois State Board of Elections, the court stated "[f]or a plan to provide minority voters equal participation in the political process, it must generally provide a number of `effective' majority-minority districts that are substantially proportionate to the minority's share of the state's population." 200 F.Supp.2d 905, 909 (N.D.Ill. 2002).
[3] This statement is misleading precisely because De Grandy proportionality examines the ratio of CVAP majority districts to the share of the relevant population.
[4] I agree that District 29 in Houston is not subject to such a challenge.
[5] Recent decisions interpreting Ashcroft have held that influence dilution claims are cognizable. The first, Metts v. Murphy, supra, is cited by the majority. The second is McNeil v. Legislative Apportionment Commission, 177 N.J. 364, 828 A.2d 840, 853 (2003)(holding a provision of New Jersey's state constitution preempted under Section 2 of the Voting Rights Act and noting "we believe that Georgia v. Ashcroft supports our conclusion that [influence dilution] claims are permitted"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3766023/ | This case is controlled by Fawcett v. G.C. Murphy Co. (1976),46 Ohio St.2d 245, 75 O.O. 2d 291, 348 N.E.2d 144. The question there, as here, was when does a statute impliedly create a private cause of action. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2236011/ | 929 N.E.2d 175 (2006)
367 Ill. App.3d 1107
NELSON
v.
NORTHVILLE TP. BD.
No. 3-05-0659.
Appellate Court of Illinois, Third District.
August 8, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2983959/ | May 22, 2014
JUDGMENT
The Fourteenth Court of Appeals
JOHN WOODS, Appellant
NO. 14-12-00775-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard ON REMAND from the Court of Criminal Appeals
on the transcript of the record of the court below. The record reveals no error in the
judgment. The Court orders the judgment be AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2609829/ | 72 Wash. App. 746 (1994)
866 P.2d 56
THE STATE OF WASHINGTON, Respondent,
v.
DAVID R. HUNDLEY, Appellant.
No. 15337-8-II.
The Court of Appeals of Washington, Division Two.
January 28, 1994.
Kenneth G. Johnson, for appellant.
Nelson E. Hunt, Prosecuting Attorney, and Douglas E. Jensen, Deputy, for respondent.
SEINFELD, J.
David Hundley appeals his convictions of possession of cocaine and of heroin. At his bench trial, Hundley claimed that he believed the 0.5 grams of green-brown vegetable matter that the police found in his wallet to be incense or potpourri. He further claimed that he had received the material as an unsolicited free sample from a mail order company. On appeal, Hundley challenges the sufficiency of the evidence. He also contends that the trial court erred in requiring him to bear the burden of proving unwitting possession by a preponderance of the evidence. We reverse.
*748 FACTS
In a search incident to Hundley's arrest for fourth degree assault, Lewis County Sheriff's Deputy Frederick Wetzel discovered in Hundley's wallet a small plastic bag containing the 0.5 grams of green-brown vegetable material.[1] Wetzel sent the bag to the Washington State Patrol Crime Laboratory.
Using a portion of the material, state forensic scientist Greg Frank tested for the presence of marijuana. This test was negative. Frank then used another portion to perform an extraction procedure designed to eliminate plant material that can obscure detection of controlled substances. He tested the extract in a gas chromatograph mass spectrometer (GCMS).
According to trial testimony, GCMS testing can detect amounts of a substance measured in micrograms, a millionth of a gram, or in nanograms, a billionth of a gram. Other testimony indicated that when the test results match standard graphs produced earlier using the same equipment and techniques on known substances, the GCMS test is definitive. Frank's GCMS test of the material indicated the presence of both heroin and cocaine. Arnold Mellinkoff reviewed the data generated by Frank's tests and concurred in his conclusion that the material contained heroin and cocaine.
Hundley submitted the remaining untested material to a different laboratory for testing. Raymond Grimsbo received .12 grams of the material and tested .05 grams. Grimsbo used the same extraction method used by the state laboratory and tested the material in his GCMS. Grimsbo did not detect heroin or cocaine in the material he tested, but conceded that he could not say that the material he did not test was free of those drugs. Mellinkoff testified that drugs can be present in parts of material tested for drugs and not in other parts.
Hundley admitted possessing the material in the bag, but testified that he believed it to be incense or potpourri. He said he received it, as an unsolicited free sample, from Mid *749 American Drug, a mail order company which sometimes mailed him free samples of products. A Mid American price list admitted into evidence, which Hundley testified had been folded up in his wallet next to the bag, listed prices for several types of incense sold by Mid American. Grimsbo acknowledged in his testimony that the material had an "herbal kind of smell, a potpourri".
Hundley waived trial by jury. The trial court found that the material in the bag contained heroin and cocaine, and concluded as a matter of law that Hundley had the burden of proving his defense of unwitting possession by a preponderance of the evidence. The court found that Hundley had not met this burden, although he had created a reasonable doubt. Accordingly, the trial court found Hundley guilty of possession of cocaine and heroin. Hundley appeals.
SUFFICIENCY OF THE EVIDENCE
Hundley argues the evidence was insufficient to prove that the material in the bag contained heroin and cocaine. Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Seattle v. Slack, 113 Wash. 2d 850, 859, 784 P.2d 494 (1989).
Viewing the evidence in this light, a rational trier of fact could find that the portion of the material tested by the state laboratory contained the drugs beyond a reasonable doubt, albeit in small quantities. Hundley did not discredit the State's GCMS procedures or the accuracy of the GCMS results. Testimony for the State indicated that drugs are often imperfectly mixed with benign materials, so that testing one portion will not reveal the presence of drugs, but testing another portion will.
UNWITTING POSSESSION
In 1981, the Washington Supreme Court held that the statute forbidding possession of a controlled substance[2] does *750 not require proof of guilty knowledge. State v. Cleppe, 96 Wash. 2d 373, 378-80, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982). However, the Cleppe court allowed the continued use of the "affirmative defense" of unwitting possession. 96 Wash. 2d at 380. The availability of the defense
ameliorates the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance. If the defendant can affirmatively establish his "possession" was unwitting, then he had no possession for which the law will convict. The burden of proof, however, is on the defendant.
Cleppe, 96 Wn.2d at 381.
[1] Hundley contends that unwitting possession negates the unlawfulness of possession; therefore, the State must prove absence of the defense beyond a reasonable doubt. He relies on State v. McCullum, 98 Wash. 2d 484, 656 P.2d 1064 (1983) and State v. Acosta, 101 Wash. 2d 612, 683 P.2d 1069 (1984). Under those cases, the State must prove beyond a reasonable doubt the absence of a defense which negates an element of the crime charged. Acosta, 101 Wn.2d at 615; McCullum, 98 Wn.2d at 490; but see State v. Camara, 113 Wash. 2d 631, 639-40, 781 P.2d 483 (1989).
[2] However all three divisions of this court agree that Cleppe requires that the defendant bear the burden of proving the defense of unwitting possession. State v. Huff, 64 Wash. App. 641, 654, 826 P.2d 698 (Division Two), review denied, 119 Wash. 2d 1007 (1992); State v. Sims, 59 Wash. App. 127, 132 n. 4, 796 P.2d 434 (1990) (Division One), aff'd, 119 Wash. 2d 138, 829 P.2d 1075 (1992); State v. Knapp, 54 Wash. App. 314, 318, 320, 773 P.2d 134 (Division Three), review denied, 113 Wash. 2d 1022 (1989). Unwitting possession does not negate an element of the crime; the Supreme Court recently reaffirmed that neither guilty knowledge nor intent to possess is an element. State v. Johnson, 119 Wash. 2d 143, 146, 829 P.2d 1078 (1992); State v. Sims, 119 Wash. 2d 138, 142, 829 P.2d 1075 (1992). As we said in Huff, "[i]n Washington, it is well settled that the defendant bears the burden of proving unknowing possession, as opposed to the State bearing *751 the burden of proving knowing possession." 64 Wash. App. at 654.
Thus, Hundley had the burden of persuading the court that his possession was unwitting. See State v. McAlister, 71 Wash. App. 576, 578-79, 860 P.2d 412 (1993). However, Cleppe did not specify the required degree of certainty or level of proof for this defense. Hundley argues he must present sufficient evidence of unwitting possession to create a reasonable doubt as to his guilt; the State argues Hundley must present sufficient evidence to prove unwitting possession by a preponderance of the evidence.
The Legislature requires defendants to prove certain statutory affirmative defenses by a preponderance of the evidence. McCullum, 98 Wn.2d at 492. It is constitutionally permissible to do so, so long as the State is not relieved from proving beyond a reasonable doubt all facts constituting a crime. Patterson v. New York, 432 U.S. 197, 206-10, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). However, unwitting possession is a judicially created affirmative defense. Thus, the Legislature has not required any particular level of proof.
[3] In the absence of a legislative enactment, the general rule is that a defendant must establish an affirmative defense only to the extent necessary to create a reasonable doubt as to the guilt of the defendant. State v. Bromley, 72 Wash. 2d 150, 155, 432 P.2d 568 (1967); State v. Rosi, 120 Wash. 514, 518, 208 P. 15 (1922); McAlister, 71 Wn. App. at 583-84; State v. Ziegler, 19 Wash. App. 119, 121-22, 575 P.2d 723 (1978); see State v. Wilson, 20 Wash. App. 592, 597-99, 581 P.2d 592 (1978). We see no reason to depart from the general rule and require a higher level of proof for unwitting possession than for other affirmative defenses.
Our holding is supported by State v. Worland, 20 Wash. App. 559, 566, 582 P.2d 539 (1978), a pre-Cleppe case. There we said that a defendant's burden is to prove unwitting possession "by evidence sufficient to create a reasonable doubt in the minds of the jury." 20 Wash. App. at 566.
We note that in Knapp, 54 Wn. App. at 321-22; accord, State v. Quintero-Quintero, 60 Wash. App. 902, 906, 808 P.2d *752 183 (1991); State v. Adame, 56 Wash. App. 803, 806-07, 785 P.2d 1144, review denied, 114 Wash. 2d 1030 (1990), Division Three held that a defendant must prove unwitting possession by a preponderance of the evidence.[3] We respectfully decline to follow these cases.
The Knapp court analogized the defense of unwitting possession to statutory exceptions to liability for possession of controlled substances, noting that the statute required the defendant to prove such exceptions.[4]Knapp, 54 Wn. App. at 319-20. However, earlier cases construing former but similar statutes[5] held that the defendant's burden in proving the statutory exceptions was only to produce evidence sufficient to create a reasonable doubt as to the unlawfulness of the possession. State v. Morris, 70 Wash. 2d 27, 34, 422 P.2d 27 (1966); State v. Boggs, 57 Wash. 2d 484, 486-87, 358 P.2d 124 (1961); State v. Helmer, 166 Wash. 602, 603-04, 8 P.2d 412 (1932).
Furthermore, pre-Cleppe cases[6] addressing the level of proof for the affirmative defense of unwitting possession require only that the defendant create a reasonable doubt. *753 Morris, 70 Wn.2d at 34; Wilson, 20 Wn. App. at 597-98; Worland, 20 Wn. App. at 566; State v. Dimmer, 7 Wash. App. 31, 37, 497 P.2d 613, review denied, 81 Wash. 2d 1003 (1972); State v. Tretton, 1 Wash. App. 607, 612-13, 464 P.2d 438 (1969), review denied, 77 Wash. 2d 963 (1970); see State v. Edwards, 5 Wash. App. 852, 855, 490 P.2d 1337 (1971) (cites Rosi as to the defendant's burden of affirmatively proving unwitting possession; Rosi requires proof of an affirmative defense to the extent necessary to create a reasonable doubt as to guilt), review denied, 80 Wash. 2d 1004 (1972). Dimmer and Edwards were decided by Division Three, but not cited by that division in Knapp, Adame, or Quintero-Quintero.
In this case, Hundley produced sufficient evidence of unwitting possession to create a reasonable doubt that he knowingly possessed the drugs. Having thus affirmatively established his unwitting possession, Hundley "had no possession for which the law will convict." Cleppe, 96 Wn.2d at 381. Applying the correct law to the trial court's findings, the trial court was not persuaded to the degree required to convict Hundley. Thus, we reverse the judgment and sentence.
MORGAN, C.J., and ALEXANDER, J., concur.
Review granted at 124 Wash. 2d 1007 (1994).
NOTES
[1] Wetzel actually discovered two small bags, but Hundley's conviction was based on the contents of only one bag.
[2] RCW 69.50.401(d), originally codified at RCW 69.50.401(c).
[3] Division One recently approved, as a lesser included offense instruction, an instruction requiring proof of unwitting possession by a preponderance, citing Adame, State v. Sanders, 66 Wash. App. 380, 389, 832 P.2d 1326 (1992).
[4] "It is not necessary for the state to negate any exemption or exception.... The burden of proof of any exemption or exception is upon the person claiming it." RCW 69.50.506(a).
[5] The statute construed in State v. Boggs, 57 Wash. 2d 484, 486, 358 P.2d 124 (1961) stated (in part) "it shall not be necessary to negative any exception ... or exemption, contained in this chapter, and the burden of proof of any such exception ... or exemption, shall be upon the defendant."
The statute construed in State v. Helmer, 166 Wash. 602, 603-04, 8 P.2d 412 (1932) stated (in part) "it shall not be necessary ... for the plaintiff to prove that the defendant does not come within any of the exceptions herein contained; but such exceptions shall be considered as a matter of defense, and the burden shall be upon the defendant to show that he comes within such exceptions."
[6] Like Cleppe, pre-Cleppe cases held that the State need not prove intent or guilty knowledge to prove the crime of possession. Rather, they required the defendant to prove that the possession was unwitting. E.g., State v. Walcott, 72 Wash. 2d 959, 968, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609836/ | 866 P.2d 1138 (1994)
Gail NELSON and Chuan Liu, Appellants,
v.
PECKHAM PLAZA PARTNERSHIPS, Respondent.
No. 23395.
Supreme Court of Nevada.
January 12, 1994.
Beasley, Holden & Brooks, Reno, for appellants.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and Matthew C. Addison, Reno, for respondent.
OPINION
SHEARING, Justice:
Appellants Gail Nelson and Chuan Liu leased property from respondent Peckham Plaza Partnerships ("Peckham"), and operated *1139 a Mongolian Barbecue restaurant ("Panda") on the premises. After five years, the lease expired and Panda vacated the premises and removed some of its equipment. Peckham was not satisfied with the condition of the property as it was left by Panda, and incurred expenses in repairing and restoring the property.
The district court awarded Peckham damages and attorneys' fees based on Panda's negligent removal of the equipment and on the damaged condition of the property beyond the contractual allowance of "ordinary wear and tear." Panda contends that the district court did not base its conclusions of fact on substantial evidence. We disagree.
Panda first argues that the trial judge erred in awarding Peckham damages in the amount of $7,939.50 for the removal and replacement of the entire vinyl floor covering when only a small portion of it was damaged. When a party negligently damages the property of another, damage awards should be designed to compensate the injured party in full measure for the total harm proximately caused by the defendant's breach of duty. Martinez v. City of Cheyenne, 791 P.2d 949, 959 (Wyo.1990).
The flooring in the premises consisted of 1,250 square feet of black and white one-by-one vinyl tiles, 1,250 square feet of sheet vinyl, and approximately 750 square feet of carpeting. The trial judge found that Panda was negligent in damaging the vinyl flooring when it removed its trade fixtures.
The trial judge heard evidence on whether only the damaged areas of the vinyl flooring could be replaced instead of the whole vinyl floor. Expert witnesses testified that because the existing vinyl tiles and sheet vinyl were worn, replacing only the damaged tiles with new tiles would result in an inconsistent floor pattern. Panda's own expert admitted that replacing only the damaged tiles would not result in a match. Furthermore, the trial judge heard testimony that the removal and replacement of the damaged sections of the sheet vinyl would result in seams in the flooring which would collect water and be easily noticeable. In essence, there were three separate areas of damage, two different kinds of flooring and the difficult task of matching replacements of each type.
The trial judge concluded that the only way Panda could repair the damage caused by its negligence was by removing and replacing all of the vinyl tiles. If Panda had not negligently damaged the vinyl flooring, it would not have been required to replace the flooring because it was only contractually required to vacate the premises in good condition, ordinary wear and tear excepted. However, in light of Panda's negligence, the trial judge's finding that Peckham could only be compensated in full through the replacement of the entire vinyl flooring was not erroneous.
Panda also argues that it was error for the trial judge to award Panda $4,950 to cover the costs of repairing and cleaning the premises. After Panda surrendered the premises, Peckham hired Comstock Maintenance to repair and clean the premises. Comstock Maintenance charged Peckham $5,000 for completing the work; however, the district court only awarded Peckham $4,950, finding that $50 of the $5,000 was incurred in repairing damages which Peckham had the obligation to repair under the lease. Panda asserts that the district court erred in its award of $4,950 because most of the damage was due to ordinary wear and tear.
The district court's findings of fact will not be set aside unless those findings are clearly erroneous. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92 (1990). Accordingly, if the district court's findings are supported by substantial evidence, they will be upheld. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 130, 734 P.2d 1236, 1237 (1987). Testimony and pictures presented at trial demonstrated that the damage and "filth" left behind by Panda went well beyond ordinary wear and tear. We therefore conclude that the district court's findings were supported by substantial evidence and were not erroneous.
Finally, Panda argues that the district court erred in awarding Peckham $9,037.50 in attorney's fees. Unless there is a manifest abuse of discretion, a district *1140 court's award of attorney's fees will not be overturned on appeal. County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653 P.2d 1217, 1220 (1982). In the case at bar, the lease agreement provided that if a suit is brought to enforce any covenant of the lease or for any breach of any covenant or condition of the lease, the prevailing party is entitled to its reasonable attorney's fees and costs. The district court did not abuse its discretion in applying the attorney's fees provision of the lease and awarding Peckham, the prevailing party, reasonable attorney's fees and costs.
We affirm the district court's judgment.[1]
STEFFEN, J., and ZENOFF, Senior Justice, concur.
YOUNG, Justice, with whom ROSE, Chief Justice, joins, dissenting:
I dissent because the measure of damages, in my view, is palpably unfair to Panda and deviates from generally accepted principles of damages.
Panda paid approximately $210,000 for rent to Peckham over five years. Peckham knew that Panda would be using the premises as a restaurant and would operate a Mongolian barbecue in its operation. The lease, which Peckhama sophisticated business partnershipprepared, provided that Panda would return the premises in good condition, ordinary wear and tear excepted.
Of 1,250 floor tiles, Panda damaged only twenty, i.e., less than two percent of the surface. The district court's award, however, held Panda responsible for all 1,250 tiles. Assuming for sake of argument that Panda's negligence caused the damage, I cannot agree that Peckham is entitled to a completely new floor at Panda's expense.
The majority declares that because Panda was negligent in allowing twenty tiles to become scorched by the barbecue, Peckham must be compensated in full for the cost of a totally new floor. I disagree. Assuming arguendo that Panda was negligent with regard to twenty tiles, Panda did not damage Peckham to the extent of 1,250 tiles. Rather, Panda's culpability extends to a fraction of the 1,250 tilesless than two percent.
The measure of damages for breach of the lessee's covenant to surrender the premises in a particular condition is generally the cost of putting the premises in the condition in which it should have been surrendered. See 51C C.J.S. Landlord & Tenant § 416 (1968) and cases cited therein. In this instance, Panda should have returned the floor in "good" condition; that is, "good" for a five-year-old floor. Indeed, Peckham expectedand agreedthat upon return of the premises, the flooring would be marred by five years of normal wear and tear. Certainly Peckham could not reasonably expect to regain possession of the premises with a brand new floor made up of 1,250 new tiles! Thus, contrary to the majority opinion, Peckham is not entitled to a new floor, but rather a floor five years worn.
Peckham is entitled to damages for the twenty damaged tiles. Alternatively, Peckham is entitled to receive from Panda damages measured by the difference in value between a five-year-old floor with twenty damaged tiles and a five-year-old floor with no damaged tiles. Unfortunately, Panda cannot return a five-year-old floor in "good" condition to Peckham. That fact, however, does not require Panda to return to Peckham an entirely new floor. The majority's holding smacks of punitive damages, and I cannot agree.
NOTES
[1] The Honorable David Zenoff, Senior Justice, was appointed to sit in place of the Honorable Charles E. Springer, Justice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609828/ | 866 P.2d 139 (1994)
STATE of Alaska, Appellant,
v.
Mefail CELIKOSKI, Appellee.
No. A-4555.
Court of Appeals of Alaska.
January 7, 1994.
W.H. Hawley, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellant.
Ben Esch, Anchorage, for appellee.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
OPINION
COATS, Judge.
On October 1, 1991, Mefail Celikoski filed an application for post-conviction relief, alleging that he had been denied conflict-free representation as guaranteed by the United States and Alaska Constitutions.[1] Following a hearing, Superior Court Judge Milton Souter granted post-conviction relief. The state appeals. We affirm.
On January 9, 1986, Mefail Celikoski, Ajradin Celikoski, and Medzait Ramadanoski were indicted on six counts of third-degree misconduct involving a controlled substance. An Illinois attorney, Robert Novelle, was hired as counsel for Ramadanoski. Beginning *140 in January of 1986, an Alaskan attorney, Bill Bryson, acted as Novelle's local co-counsel in Ramadanoski's case. Novelle testified that he consulted Bryson for advice concerning appropriate statutes, sentencing, and plea bargaining procedures. Novelle's testimony concerning the substance of the conversations was vague and he did not remember whether he and Bryson had discussed a strategy for Ramadanoski's defense.
On March 4, Mr. Bryson entered an appearance for Celikoski. Celikoski testified that Bryson did not tell him that he was also acting as co-counsel for Ramadanoski.[2] Bryson testified that he did not remember telling Celikoski that he (Bryson) was also acting as co-counsel for Ramadanoski. Bryson recalled discussing the strength of the state's case with Novelle and whether each defendant was going to change his plea. Bryson also testified that both he and Novelle may have sat in on discussions with both defendants concerning whether or not the defendants were going to change their pleas. Bryson recalled being present on at least one occasion when Novelle met with Ramadanoski before Ramadanoski changed his plea. Bryson further testified that he and Novelle had discussed some strategy concerning Ramadanoski's defense. On April 22, both Celikoski and Ramadanoski changed their pleas to guilty.
During the post-conviction relief hearing, Judge Souter inquired of Bryson, "Was any of the advice that you gave Mr. Celikoski tempered by your concern for Mr. Ramadanoski's fate in the criminal system?" Bryson responded:
I don't have specific recall of that. As I recall the case, both of them were in a situation where they would not have a very good chance at trial. And so at that point the advice was negotiate for the best disposition we could get. And that was to be done on behalf of each of them. And Mr. Novelle advised Mr. Ramadanoski, I advised Mr. Celikoski. As I previously stated, because they tended to trust Mr. Novelle because of his connection with family members, I believed that they each spoke with Mr. Novelle.
Bryson later stated, "I suppose that's the ultimate problem here in that none of us have a recall as to whether or not there were strategic advantages gained. I mean from what I remember of the case my advice would have been the same regardless of the role... ."
At the post-conviction relief hearing, Celikoski testified that the judge who accepted his plea did not explain to him that Bryson was representing Ramadanoski, and that Celikoski never waived his right to conflict-free representation. Celikoski stated that no one had explained the dangers of dual representation to him.
Judge Souter granted Celikoski's application for post-conviction relief. Judge Souter found that Bryson's representation of Ramadanoski was more than a technical representation; he found that Bryson had advised Ramadanoski and provided practical representation. Therefore, he found that Celikoski had established dual representation by a preponderance of the evidence. Judge Souter stated that, under Moreau v. State, 588 P.2d 275, 284 (Alaska 1978), the burden of showing that Celikoski suffered no substantive harm then shifted to the state. Judge Souter concluded the state failed to meet this burden. Judge Souter emphasized that Bryson had been unable to declare, with certainty, that his representation of Ramadanoski *141 did not influence his representation of Celikoski.
The state argues that the trial court applied the wrong legal standard to Celikoski's application. In ruling on Celikoski's application, Judge Souter relied on the standard announced in Moreau. The Moreau court addressed the issue of joint representation of defendants in criminal trials, stating:
We do, however, recognize the dangers of joint representation to a defendant's right to counsel protected under both the United States and Alaska Constitutions. Minnesota has recently emphasized its disapproval of joint representation, and has established procedures to assure that any waiver of the sixth amendment right to conflict-free representation meets constitutional standards. State v. Olsen, 258 N.W.2d 898, 903-08 (Minn. 1977). Henceforth, in that state, the trial judge must personally advise the defendant of potential dangers inherent in dual representation. If the record fails to establish a "satisfactory" inquiry, the burden shifts to the state to prove beyond a reasonable doubt that a prejudicial conflict did not exist. We approve this standard adopted by the Minnesota court, and it will be applied to Alaska cases tried after the mandate is issued in the instant appeal.
Id. at 284 (footnotes omitted). Judge Souter ruled as follows:
[T]he applicant, under Moreau, has to bear the burden of proof by a preponderance to show the ground for post conviction relief. Here the ground for post conviction relief is the improper joint representation not inquired into by the court, not waived by the defendant, Mr. Celikoski. And that ground has certainly been established here. There is absolutely no question in this record that Mr. Celikoski was represented by the same counsel who was representing a codefendant. [Celikoski] has therefore established a sufficient ground for post conviction relief unless unless under the Moreau case the state has shown beyond a reasonable doubt that the defendant suffered no substantive harm in the situation.
The state asserts that Judge Souter applied Moreau incorrectly because "[u]nder Moreau, Celikoski is entitled to relief if and only if Bryson had a `prejudicial conflict' of interest due to his concurrent representation of Ramadanoski." However, the language in Moreau indicates that Celikoski does not bear the burden of proving prejudicial conflict. Once Celikoski establishes dual representation and the failure of the trial court to make an appropriate inquiry, the state bears the burden of proving an absence of prejudicial conflict.
The state also argues that Judge Souter should not have applied the Moreau standard, but rather should have applied the standard set out by the United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).[3]Cuyler holds that:
In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.
Id. at 348, 100 S. Ct. at 1718 (footnote omitted).
Unlike the instant case, however, Cuyler deals with a situation where the defendant was aware of his attorney's representation of his co-defendants. Moreover, in Moreau the Supreme Court of Alaska appears to have adopted a standard which is more favorable to defendants. We recognize that Moreau was decided before Cuyler. Although we cannot be sure that the Alaska Supreme Court would continue to apply the Moreau test in light of developments in the law since *142 that decision, the Moreau opinion appears to have adopted a rule specifically for Alaska based on policy considerations. The court did not appear to be merely attempting to apply federal law and we, therefore, believe that we must follow Moreau in this case.
The state argues that Celikoski has the burden of establishing all facts necessary to his claim by a preponderance of the evidence because he is the petitioner in a post-conviction relief action. Therefore, the state claims, he must prove by a preponderance of the evidence both the existence of a conflict and that the conflict adversely affected his representation. Only then would the state be required to demonstrate that Celikoski's dual representation was harmless beyond a reasonable doubt.
Consistent with Moreau, however, in order to qualify for post-conviction relief, Celikoski need only establish that Bryson had undertaken the dual representation and that the trial judge did not "personally advise the defendant of potential dangers inherent in dual representation." Moreau, at 284. Once Celikoski proved this, and it is undisputed that he did,[4] he had met his burden of establishing all facts necessary to his claim and "the burden [then shifted] to the state to prove beyond a reasonable doubt that a prejudicial conflict did not exist." Id. Prejudice is not a part of a defendant's claim under Moreau.
To support its position, the state also cites two Minnesota cases, Mercer v. State, 290 N.W.2d 623 (Minn. 1980) and Lundin v. State, 430 N.W.2d 675 (Minn.App. 1988). In these post-Moreau cases, Minnesota courts denied post-conviction relief to defendants who claimed prejudice resulting from dual representation. However, in each of these cases, the appellants were aware of the dual representation at the time it occurred. Mercer at 626; Lundin at 678. In fact, in Mercer, the court found that Mercer suggested the joint representation in spite of his attorney's previous warning about the potential conflict. Furthermore, in both Mercer and Lundin, appellate courts affirmed trial court decisions that appellants had not been prejudiced by dual representation.
Celikoski testified that he was never aware of Bryson's conflict of interest. Bryson testified that he did not recall advising Celikoski of the conflict. Although Judge Souter never made any specific factual findings concerning Celikoski's awareness of the conflict, we believe that on this record we must accept Celikoski's allegation that he knew nothing of Bryson's involvement in Ramadanoski's defense until years later.
We may reverse Judge Souter's finding, that the state failed to prove the absence of a prejudicial conflict beyond a reasonable doubt, only if that finding is clearly erroneous. The state has relied on the testimony of Celikoski's former attorney to establish that Celikoski was not prejudiced. Bryson recalled that the case against Celikoski was "a fairly strong case." Bryson stated that, to the best of his recollection, the charges against Celikosky resulted from alleged hand-to-hand drug transactions with an undercover police officer who had been involved in a prior prosecution of Celikoski. Bryson recalled that several of these transactions were recorded. Although Bryson stated that he thought his advice would have been the same regardless of the dual representation, he was unable to recall the case and was very equivocal in his responses. We believe that the evidence is such that Judge Souter could find that the state did not "prove beyond a reasonable doubt that a prejudicial conflict did not exist." Moreau at 284.
We accordingly AFFIRM Judge Souter's decision granting Celikoski's application for post-conviction relief.
NOTES
[1] U.S. Const.Amend. VI; Alaska Const. Art. I § 11.
[2] Rule of Professional Conduct 1.7 (formerly DRS-105) provides in pertinent part:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client in the same or a substantially related matter, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
[3] Shortly after Cuyler was decided, Federal Rule 44(c) was adopted. Federal Rule 44(c) provides:
Joint representation. Whenever two or more defendants have been jointly charged and are represented by the same retained or appointed counsel the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel.
[4] The record suggests that the trial judge before whom Celikoski entered his plea was aware that Bryson was representing both Ramadanoski and Celikoski since Bryson filed an appearance for both defendants. Yet the trial court did not comply with the mandate of Moreau by advising Celikoski "of potential dangers inherent in dual representation." Moreau at 284. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876002/ | 260 S.W.3d 429 (2008)
In the Matter of K.S.
No. WD 68804.
Missouri Court of Appeals, Western District.
August 19, 2008.
Dennis J. Campbell Owens, Kansas City, MO, for appellant.
Ralph Gregory Gore, Blue Springs, MO, for respondent.
Before HAROLD L. LOWENSTEIN, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
ORDER
Elizabeth Honeycutt appeals the circuit court's judgment to modify its paternity judgment by granting Jason Schuler sole legal custody of the couple's child, designating his address as the child's address "for educational and mailing purposes," and awarding Schuler more parenting time than Honeycutt under the joint physical custody arrangement. We affirm the circuit court's judgment in this per curiam order pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609881/ | 73 Wash. App. 13 (1994)
866 P.2d 1276
MARJORIE I. KALK, Individually and as Personal Representative, Respondent,
v.
SECURITY PACIFIC BANK WASHINGTON N.A., Appellant.
No. 31398-3-I.
The Court of Appeals of Washington, Division One.
February 14, 1994.
Robert J. Adolph and Adolph & Smyth, P.S., for appellant.
John Martin and O'Shea, Barnard, Martin & Hendrickson, for respondent.
*15 SCHOLFIELD, J.
Security Pacific Bank appeals the trial court's grant of partial summary judgment to Marjorie Kalk, contending its perfected security interest in three certificates of deposit was binding on Kalk after the assignor-joint tenant's death. We reverse.
Marjorie Kalk and her mother, Marjorie Worsham, owned three certificates of deposit (CD's) as joint tenants with right of survivorship. The first two CD's, purchased from Seattle Trust in 1982, were in the face amounts of $20,000 and $55,000, respectively. Each CD stated, "This certificate is not transferable except on the books of Seattle Trust." The third CD was purchased from Rainier National Bank (Rainier Bank) in 1983, in the face amount of $100,000, and stated it was a "non-negotiable time certificate of deposit." All three CD's were payable to Marjorie Worsham or Marjorie Kalk, and all three designated Worsham and Kalk as joint tenants with right of survivorship. The record does not reflect whose funds were used to purchase any of the CD's.
On January 12, 1983, Worsham signed a Rainier Bank security agreement, pledging the $100,000 Rainier Bank CD as collateral for a loan by Rainier Bank to William Argo.[1] Argo was Worsham's accountant. Argo invested the loan proceeds into Pacific Wood Products, a company he established.
On June 14, 1989, Worsham signed a security agreement to Security Pacific Bank Washington (the Bank), the successor to Rainier Bank. Worsham assigned the two Seattle Trust CD's in the aggregate amount of $75,000 to the Bank as security for another loan to Argo.[2] The Bank took possession of each of the CD's covered by the two security agreements. Kalk did not sign either of the security agreements, nor was she aware of them.
*16 Worsham died March 9, 1990. The Bank renewed the loans to Argo in late March 1990. On December 11, 1990, the Bank informed Argo he was in default on the loans and claimed ownership of the secured CD's. Kalk, as the surviving joint tenant owner of the CD's, was not notified of Argo's default or the Bank's intent to claim the CD's.
Kalk sued the Bank on a number of theories. On cross motions for partial summary judgment, the trial court granted Kalk's motion, concluding that Kalk owned the certificates free of the Bank's security interests at the moment of Worsham's death. The Bank appeals the order and judgment awarding Kalk the face value of the three CD's plus interest.[3]
WORSHAMS RIGHT TO ASSIGN THE CD'S
The statute applicable to ownership interests of individual deposit accounts, including certificates of deposit,[4] is the Financial Institution Individual Account Deposit Act, RCW 30.22.010 et seq. (the Act). The Act defines a joint account with right of survivorship as
an account in the name of two or more depositors and which provides that the funds of a deceased depositor become the property of one or more of the surviving depositors.
RCW 30.22.040(8). With respect to the rights among depositors, the Act provides that the funds in the account
belong to the depositors in proportion to the net funds owned by each depositor on deposit in the account, unless the contract of deposit provides otherwise or there is clear and convincing evidence of a contrary intent at the time the account was created.
RCW 30.22.090(2). There is no evidence in the record regarding the proportion of funds contributed by Worsham and Kalk.
[1] The Act gives further guidance, providing that
[p]ayments of funds on deposit in an account having two or more depositors may be made by a financial institution to or *17 for any one or more of the depositors named on the account without regard to the actual ownership of the funds by or between the depositors....
RCW 30.22.140. In other words, if a person's name is on an account, that person can withdraw all the funds in the account, regardless of ownership of the funds. This is consistent with common law joint tenancy where "each of the tenants has an undivided interest in the whole, and not the whole of an undivided interest." Merrick v. Peterson, 25 Wash. App. 248, 258, 606 P.2d 700 (1980).
There is a "contract of deposit" in the record, but only with respect to the Rainier Bank CD, which specifies on its face that "[a]ny Owner may transfer [the Rainier Bank CD] on behalf of all Owners except when it is registered in form requiring action by more than one Owner." The Rainier Bank CD was payable to Worsham or Kalk, and was therefore not registered in a form requiring action by more than one owner. Thus, Worsham could "transfer" the Rainier Bank CD, by virtue of its terms, and was authorized to receive "payment" of the Seattle Trust CD's pursuant to RCW 30.22.140.
Logically, the power to withdraw funds, or "receive payment" in the Act's terms, includes the power to assign those funds. The Act's definitions of "withdrawal" and "payment" support that conclusion.
"Withdrawal" means payment to a person pursuant to check or other directive of a depositor.
RCW 30.22.040(17).
"Payment(s)" of sums on deposit includes withdrawal, payment by check or other directive of a depositor or his agent, any pledge of sums on deposit by a depositor or his agent, any set-off or reduction or other disposition of all or part of an account balance....
(Italics ours.) RCW 30.22.040(14). Thus, payment "to or for any one or more of the depositors", RCW 30.22.140, includes "pledge[s] of sums on deposit by a depositor", RCW 30.22.040(14).
*18 When utilized in determining the rights of a financial institution to make or withhold payment, and/or to take any other action with regard to funds held under a contract of deposit, "depositor" means the individual or individuals who have the current right to payment of funds held under the contract of deposit without regard to the actual rights of ownership thereof by these individuals.
RCW 30.22.040(11), in part.
In short, joint tenant depositors' rights to withdraw all the funds in an account, such as a certificate of deposit account, include the power to pledge those funds. Therefore, because Worsham was a joint tenant, she had the authority to pledge the entire balance of the three CD's, as did Kalk.
[2] However, even if Worsham did not have authority to pledge or otherwise withdraw all the funds on deposit, the Bank
may rely conclusively and entirely upon the form of the account and the terms of the contract of deposit at the time the payments are made. A financial institution is not required to inquire as to either the source or the ownership of any funds received for deposit to an account, or to the proposed application of any payments made from an account. Unless a financial institution has actual knowledge of [a] dispute between depositors, ... all payments made by a financial institution from an account at the request of any depositor to the account ... in accordance with this section and RCW 30.22.140, ... shall constitute a complete release and discharge of the financial institution from all claims for the amounts so paid regardless of whether or not the payment is consistent with the actual ownership of the funds....
RCW 30.22.120. In other words, the Bank may assume each of the owners listed on an account has authority over all of the funds on deposit. Moreover, unless the Bank specifically knows of a dispute regarding the funds, it may make payment "to or for any one or more of the depositors named on the account without regard to the actual ownership of the funds by or between the depositors...". RCW 30.22.140. If the funds are paid to an account holder who does not own the funds, the proper remedy is for the actual owner to sue the joint tenant; such rights are preserved by RCW 30.22.130.
*19 PERFECTED SECURITY INTEREST
[3] The Bank contends it had a perfected security interest in the three CD's, pursuant to the Uniform Commercial Code (UCC), RCW 62A. Kalk argues the UCC does not apply. Kalk's contention is not supported; we agree with the Bank. First, the security agreements are clearly "intended to create a security interest". RCW 62A.9-102(1)(a). Moreover, even if the security agreements constitute a "pledge" as Kalk contends, Article 9 "applies to security interests created by contract including pledge, [and] assignment ...". RCW 62A.9-102(2).
Nor are these transactions excluded by RCW 62A.9-104(1), as Kalk contends. That section provides that Article 9 does not apply "to a transfer of an interest in any deposit account (subsection (1) of RCW 62A.9-105), except as provided with respect to proceeds ...". RCW 62A.9-105(1)(e) defines a "deposit account" as
a demand, time, savings, passbook or like account maintained with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a certificate of deposit[.]
(Italics ours.) Thus, UCC Article 9 applies to this transaction involving certificates of deposit.
To determine if the Bank had a perfected security interest, we must categorize the collateral, determine if a security interest attached and, if so, if the Bank perfected a security interest.
Collateral
[4] Characterizing CD's for purposes of Article 9 is a question of first impression in Washington. Although there is authority to the contrary,[5] a CD is an instrument.[6] An instrument is
*20 a negotiable instrument (defined in RCW 62A.3-104), or a certificated security (defined in RCW 62A.8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in [the] ordinary course of business transferred by delivery with any necessary indorsement or assignment[.]
(Italics ours.) RCW 62A.9-105(1)(i). None of the three CD's at issue is negotiable, and none is a certificated security. However, each is clearly a writing which evidences a right to payment of money. Moreover, a CD is not a security agreement or lease, and it is transferred in the ordinary course of business by delivery with an endorsement. In fact, these CD's were not endorsed, but Worsham did not intend to transfer them she intended to pledge them.
Attachment
Attachment occurs when (a) a security agreement describing the collateral is signed; "(b) value has been given; and (c) the debtor has rights in the collateral." RCW 62A.9-203(1).
Worsham signed a security agreement describing the Rainier Bank CD on January 12, 1983, and she signed a security agreement describing the two Seattle Trust CD's, dated June 14, 1989. Value was given in the form of loans to Argo. Finally, the "debtor" had rights remaining in the collateral. Article 9 provides that
[w]here the debtor [(the person who owes payment)] and the owner of the collateral are not the same person, the term "debtor" means the owner of the collateral in any provision of the Article dealing with the collateral....
RCW 62A.9-105(1)(d). Worsham was thus the "debtor" here: she (and Kalk) owned the collateral relied on by the Bank for Argo's loan, and she (and Kalk) retained an interest in the CD's after her pledges. Thus, because there was a security agreement, value given, and rights retained, the Bank's security interest attached to the three CD's owned by Worsham and Kalk.
*21 Perfection
"A security interest in money or instruments ... can be perfected only by the secured party's taking possession ...". RCW 62A.9-304(1). The Bank had possession of all three CD's at all relevant times.[7] Therefore, the Bank had a perfected security interest in the three CD's. The only question remaining is what effect, if any, Worsham's death had on the Bank's perfected security interest.
EFFECT OF WORSHAMS DEATH
As with the characterization of CD's, this is a question of first impression in Washington, and there is a split of authority among other courts which have considered the issue.
Representative of one view is In re Certificates of Deposit Issued by Hocking Vly. Bank of Athens Co., 58 Ohio St. 3d 172, 569 N.E.2d 484 (1991), relied on by the trial court here. In that case, a husband and wife purchased six CD's, with a face value of $10,000 each, payable to the husband or wife as joint tenants with right of survivorship. The husband and wife subsequently both signed a security agreement pledging their interest in one of the CD's as collateral for a loan to them. The following year, the husband alone received five additional loans from the bank, and individually signed five security agreements pledging the remaining five CD's as collateral. The husband died prior to the loans' maturity dates, and the bank and surviving wife each claimed ownership of the five CD's individually pledged by the husband. The Supreme Court of Ohio held that
when only one joint tenant with the right of survivorship to a certificate of deposit signs a security agreement and pledges the certificate as collateral to secure his or her loan, and such joint tenant dies before the loan is satisfied, the joint tenant survivor(s) is entitled to the entire amount of the certificate, as the bank's interest is extinguished upon the death of the debtor joint tenant.
Hocking, at 174. The court characterized the husband's interest in the CD's as an "ownership interest [limited] to *22 his lifetime subject to divestment on his death." Hocking, at 174. Several other states agree with this approach.[8]
The other view, rejected by the trial court here, is that a perfected security interest survives a pledging joint tenant's death, and that the surviving joint tenants take ownership subject to the security interest. This view is represented by Bridges v. Central Bank & Trust Co., 926 F.2d 971 (10th Cir.1991). In that case, one of five joint owners with right of survivorship pledged a CD as collateral for a loan solely to him. The lending bank perfected its security interest by possessing the CD. After the pledgor's default, the lending bank demanded payment of the CD by the issuing bank, which surrendered the funds. The remaining joint tenants sued the issuing bank for breach of contract and conversion. The Tenth Circuit Court of Appeals held that
an instrument arguably held in joint tenancy and nominated in the alternative under Kansas law can be effectively unilaterally pledged in full by one of the co-owners as security for a loan and later redeemed by the secured creditor in foreclosure.
Bridges, 926 F.2d at 974.
The trial court here distinguished Bridges because the Bridges court relied on a specific Kansas statute "which made an instrument that used the conjunction `or' as opposed to `and' a negotiable instrument". Actually, the Bridges court relied on that statute, which is similar to RCW 30.22.140, for the proposition that a CD payable to joint tenants in the alternative is "payable to any one of them" and thus any one of them with possession of the CD could cash the CD in or pledge it in its entirety. Bridges, at 973 n. 2.
The trial court here also distinguished Heffernan v. Wollaston Credit Union, 30 Mass. App. Ct. 171, 567 N.E.2d 933 (1991), which the Bank relied on. Heffernan and Dore opened a joint savings account payable to either of them, *23 with a right of survivorship. Dore subsequently pledged part of the balance of the account as collateral for a car loan. Dore died before the loan was due; after the due date, the bank transferred the amount due from the joint account, and the surviving joint tenant sued. The Massachusetts court found that a "party to a Massachusetts joint bank account ... has the right to withdraw all the funds in a joint account, or any portion of them." Heffernan, at 177. The court concluded that "the authority to create a security interest, equitable or otherwise, is included within the ordinary and reasonable meaning of the authority to assign or transfer." Heffernan, at 179.
The trial judge here distinguished that case because he thought the decision turned on a specific statute providing for mandatory loans to member depositors in credit unions, and statutory language which specifically provided for pledging jointly held accounts. The mandatory loan statute was mentioned, but the Massachusetts court specifically held it was not applicable.[9] Moreover, the statute specifically allowing for pledges of joint accounts is similar to RCW 30.22.140 in language and identical in meaning.
This view is also represented by Jamison v. Society Nat'l Bank, 66 Ohio St. 3d 201, 611 N.E.2d 307 (1993). The facts of that case are analogous to Heffernan, except that the account at issue was a payable on death (P.O.D.) certificate of deposit. Thus, unlike Kalk, the P.O.D. beneficiary in Jamison had no ownership interest in the account when it was encumbered. The court noted the
lifetime owner of a P.O.D.C.D. has a complete present interest in the account, and may withdraw its proceeds, change the beneficiary, or pledge the P.O.D.C.D. as collateral for a loan. Upon the owner's death, the beneficiary's interest vests and, if the owner has pledged the P.O.D.C.D. as collateral, the beneficiary is entitled to only an encumbered interest in the P.O.D.C.D. proceeds.
Jamison, at 205.[10]
*24 We find the reasoning of the Ohio Supreme Court in the Hocking Valley Bank case unpersuasive when applied to the facts and law of the case before us. Hocking followed case law holding the rights of a survivor paramount to a bank's security interest "when the bank fails to encumber the interest of all joint tenants." Hocking, at 173-74. The bank prevailed in respect to the one CD where both the husband and the wife signed the security agreement.
[5] In this State, there is clear statutory authority for one joint owner to withdraw or pledge all funds on deposit. RCW 30.22.140; RCW 30.22.040(17), (14). The Hocking court reasoning cannot prevail in the face of the Washington statutory scheme, which also provides that payment to a depositor
shall constitute a complete release and discharge of the financial institution from all claims for the amounts so paid regardless of whether or not the payment is consistent with the actual ownership of the funds....
RCW 30.22.120. As previously discussed (see page 17), payment to a depositor includes "pledge[s] of sums on deposit by a depositor". RCW 30.22.040(14).
In light of the Washington statutory scheme, we find the reasoning of Bridges v. Central Bank & Trust Co., supra, and Heffernan v. Wollaston Credit Union, supra, more persuasive.[11]
*25 The trial court's grant of partial summary judgment to Marjorie Kalk is reversed.
FORREST, J. Pro Tem., concurs.
BAKER, J., concurs in the result.
Reconsideration denied March 14, 1994.
Reversed at 126 Wash. 2d 346.
NOTES
[1] By signing the security agreement, Worsham agreed to "[deliver] and [grant] to the Bank a Security Interest" in the $100,000 CD as security for the Bank's loan to William Argo, including all renewals.
[2] This security agreement provided that Worsham's pledge of the two CD's was "security for the payment ... of all promissory notes executed by William Argo ... now, in the past or in the future and all renewals, modifications or extensions thereof ...".
[3] The total judgment was for $211,552.
[4] Certificates of deposit are specifically included in the definition of "account". RCW 30.22.040(1).
[5] Bank IV Topeka, N.A. v. Topeka Bank & Trust Co., 15 Kan. App. 2d 341, 807 P.2d 686 (1991); Franke v. Third Nat'l Bank & Trust Co., 31 Ohio App. 3d 189, 190, 509 N.E.2d 955, 957 (1986) (in dicta, held nonnegotiable CD is a "'general intangible'", not an instrument).
[6] Jamison v. Society Nat'l Bank, 66 Ohio St. 3d 201, 204-05, 611 N.E.2d 307, 310 (1993); Republican Vly. Bank v. Security State Bank, 229 Neb. 339, 426 N.W.2d 529 (1988) (nonnegotiable CD is an assignable instrument); General Elec. Co. v. M&C Mfg., Inc., 283 Ark. 110, 671 S.W.2d 189 (1984) (nonnegotiable, nontransferable CD is an instrument); Wightman v. American Nat'l Bank, 610 P.2d 1001, 1004 (Wyo. 1980); Citizens Nat'l Bank v. Bornstein, 374 So. 2d 6 (Fla. 1979); First Nat'l Bank v. Lone Star Life Ins. Co., 524 S.W.2d 525, 529-30 (Tex. Civ. App. 1975).
[7] Finding of fact 1.4.
[8] Olson v. Fraase, 421 N.W.2d 820 (N.D. 1988); Franke v. Third Nat'l Bank & Trust Co., supra; Sherman Cy. Bank v. Lonowski, 205 Neb. 596, 289 N.W.2d 189 (1980); Ogilvie v. Idaho Bank & Trust Co., 99 Idaho 361, 582 P.2d 215 (1978); Commercial Banking Co. v. Spurlock, 238 Ga. 123, 231 S.E.2d 748 (1977); Home Trust Mercantile Bank v. Staggs, 714 S.W.2d 792 (Mo. Ct. App. 1986).
[9] Heffernan, at 178 n. 9.
[10] See also Wightman v. American Nat'l Bank, supra.
[11] "Our interpretation is in accord with the probable intent of parties to such transactions. By making a pledge, an equitable pledge, or otherwise creating a security interest in funds on deposit with a bank, a borrower is expressing a willingness to have the funds in the account used to pay the debt when it becomes due, whatever the reason for nonpayment. A bank lending money to a depositor needs reasonable protection against nonpayment, whether caused by the debtor's financial inability to repay the loan or some other cause, such as the debtor's death. The coowner of the account, on the other hand, is no more disadvantaged by another owner's pledging a portion of the funds than by a withdrawal. In fact, a co-owner generally is better off if the funds are pledged to the bank than if they are withdrawn as, upon repayment of the loan, the co-owner's right to use the funds would automatically be restored." Heffernan, at 180. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2524316/ | 949 N.E.2d 665 (2011)
TAGLIERE
v.
WESTERN SPRINGS PARK DIST.
No. 111701.
Supreme Court of Illinois.
March 1, 2011.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables are preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3106232/ | NO. 07-11-0300-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 5, 2011
______________________________
IN RE: HARVEY BRAMLETT, JR. AND JASON BLAKENEY, RELATORS
______________________________
ORIGINAL PROCEEDING
ARISING FROM PROCEEDING BEFORE THE 108TH DISTRICT COURT
OF POTTER COUNTY; NO. 99,017-00-E;
HONORABLE DOUGLAS WOODBURN, JUDGE PRESIDING
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Relators, Harvey Bramlett, Jr. and Jason Blakeney, proceeding pro se and in
forma pauperis, seek a writ of mandamus to compel the Honorable Douglas Woodburn
to make and file findings of fact and conclusions of law in their case against the Texas
Department of Criminal Justice Institutional Division, et al. Final judgment was entered
in the case on March 14, 2011, and Relators complied with Rules 296 and 297 of the
Texas Rules of Civil Procedure in requesting findings and conclusions. By order issued
this same date, Relators' direct appeal in cause number 07-11-0139-CV was abated
and the cause was remanded to the trial court with instructions to enter findings of fact
and conclusions of law.
Consequently, Relators' request for mandamus relief is rendered moot.
Per Curiam
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3106233/ | Opinion issued January 14, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00509-CV
———————————
JOSE LUIS CARDENAS D/B/A J & S BODY SHOP, Appellant
V.
BETTY WILSON AND JEFFERY WILSON, Appellees
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Case No. 2013-25987
OPINION
In this dispute over a pick–up truck repair bill, Betty Wilson and Jeffery
Wilson moved in the trial court that it review auto–mechanic Jose Cardenas’ notice
of intent to file a mechanic’s lien and set the lien aside. See TEX. GOV’T CODE
ANN. § 51.903 (West 2013). The trial court found that Cardenas’ lien was | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2609767/ | 866 P.2d 406 (1993)
116 N.M.App. 678
Herman KELLEWOOD, Claimant-Appellee,
v.
BHP MINERALS INTERNATIONAL, and CNA Insurance Companies, Respondents-Appellants.
No. 14218.
Court of Appeals of New Mexico.
December 2, 1993.
*407 Dennis R. Francish, Albuquerque, for claimant-appellee.
Mary Therese Buescher, A. Brent Bailey, Hatch, Allen & Shepherd, P.A., Albuquerque, for respondents-appellants.
OPINION
FLORES, Judge.
This is an appeal by BHP Minerals International (Employer) and CNA Insurance Companies (Insurer) (collectively referred to as Respondents) from the Workers' Compensation Judge's (judge) order denying Respondents' objection to Herman Kellewood's (Worker) notice of change of health care provider (the order). In our second calendar notice reassigning this case to the general calendar, we directed the parties to brief the issue of the finality of the order appealed from in light of Worker's pending claims for compensation and medical benefits. Respondents argue two issues on appeal: (1) that the judge's order is a final appealable order, and (2) that there was not substantial evidence to support the judge's order. We conclude that the order is not final and appealable, and therefore dismiss this appeal without prejudice for lack of jurisdiction. Accordingly, we do not address Respondents' second issue.
BACKGROUND
Worker was employed by Employer on both February 25, 1991 and October 1, 1991. Worker claims he suffered on-the-job accidental injuries on both of those days. Respondents dispute that the injuries are work-related. Following the first injury, Employer referred Worker to his regular doctor for treatment of his injury. After the second injury, Employer took Worker to the emergency room at San Juan Regional Medical Center. Thereafter, Worker sought and continued treatment for his second injury from Dr. Ron Calcote.
In June 1992, Worker filed a claim for workers' compensation benefits for the October 1991 injury. Thereafter, in October 1992, he filed a second claim for benefits for the February 1991 injury. The two claims have been consolidated and are presently pending before the Workers' Compensation Administration (WCA).
On August 6, 1992, Worker filed a notice of change of health care provider, pursuant to NMSA 1978, Section 52-1-49 (effective January 1, 1991) (Repl.Pamp. 1991), which mandates that an employer shall provide reasonable and necessary health care services to an injured worker and establishes the procedure by which the worker's health care provider is selected and changed. On August 10, 1992, Respondents filed their objection to Worker's notice of change of health care provider. A hearing was held on August 18, 1992 which resulted in the judge's order denying Respondents' objection. It is from this order that Respondents appeal.
DISCUSSION
This appeal addresses the issue essentially left unresolved by this Court in City of Albuquerque v. Sanchez, 113 N.M. 721, 725, 832 P.2d 412, 416 (Ct.App. 1992), namely, whether a judge's order denying a request, or an objection, to change health care provider *408 is final and appealable when a claim for benefits is pending before the WCA.
Respondents first argue that the order is final and appealable because the judge assigned as the WCA miscellaneous proceedings judge, under the Workers' Compensation Rules (Rules WCA 91-1(V)(A)(1); (VI)) in effect at the time, only had to address the change of health care provider issue, and since he was not assigned to hear the claims for compensation benefits, such claims were not pending before him. We are not persuaded by Respondents' argument. Whether or not other issues were pending before the same miscellaneous proceedings judge that heard the health care provider issue is not determinative of whether a claim was pending. For the purpose of analyzing the finality of an order, it is sufficient that the worker's compensation claim was pending before the WCA as a whole. Under the facts and circumstances of this case, it is undisputed that Worker had certain claims pending before the WCA requesting disability and vocational benefits as well as medical expenses regarding Worker's alleged February and October 1991 work-related injuries.
Respondents also contend that the order is final and appealable even if the same judge that decides the health care provider issue still has the other pending issues to decide. In this regard, Respondents argue that it may be necessary for the judge to decide the health care provider issue at the earliest possible date since a ruling on this issue is crucial to how the parties approach and prepare for a hearing on a claim for benefits. Respondents submit that once that ruling is made, it should be treated as a final order even if the judge has other issues to decide. We reject Respondents' second argument for the reasons that follow.
The New Mexico Supreme Court recently reiterated what has long been the general rule in New Mexico for determining the finality of an order or judgment, namely, "`an order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible.'" Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 236, 824 P.2d 1033, 1038 (1992) (quoting B.L. Goldberg & Assocs. v. Uptown, Inc., 103 N.M. 277, 278, 705 P.2d 683, 684 (1985)). Although we recognize that the Supreme Court in Kelly Inn also stated that this general rule was flexible enough to allow various exceptions and qualifications, id., we hold that the order in this case does not come within the guidelines set forth in Kelly Inn, 113 N.M. at 238, 824 P.2d at 1040: "Where a judgment declares the rights and liabilities of the parties to the underlying controversy, a question remaining to be decided thereafter will not prevent the judgment from being final if resolution of that question will not alter the judgment or moot or revise decisions embodied therein." In Kelly Inn there was a "judgment" which "declare[d] the rights and liabilities of the parties to the underlying controversy" (whether the lease was properly terminated), and the only "question remaining to be decided" involved determining the amount of attorney fees to be awarded. Moreover, in Kelly Inn, the "remaining question" (amount of attorney fees) would not prevent the judgment from being final because the remaining question would not alter the judgment on the merits or moot or revise it in any way. We recognize that the Supreme Court has limited its holding in Kelly Inn, see Trujillo v. Hilton of Santa Fe, 115 N.M. 397, 851 P.2d 1064 (1993), but we do not understand the limitation to affect either the general rule or its application to the facts of this case. See also Valley Improvement Ass'n v. Hartford Accident & Indem. Co., 116 N.M. 426, 863 P.2d 1047 (1993).
In this case, the "judgment" is the judge's order denying Respondents' objection to Worker's notice of change of health care provider. The "judgment" is interrelated to a determination on the merits of the underlying compensation claims. Here, the "question remaining" to be decided is a determination of whether Worker's injuries are causally related to his employment, and thus whether Worker is entitled to compensation, including medical benefits. If Worker is unable to prove a compensable injury, he will not be entitled to an award of medical benefits. In such an event, this Court's determination of the issue on appeal regarding the *409 health care provider order would become irrelevant, unnecessary, and moot. See Alcala v. St. Francis Gardens, 116 N.M. 510, 864 P.2d 326 (Ct.App. 1993) (where a compensation claim is pending, an order awarding attorney fees for legal services rendered in a workers' compensation proceeding to change health care provider is an interim determination and not a final and appealable order because developments in the compensation case might alter or revise the order for attorney fees).
We also note and distinguish this Court's recent case, In re Estate of Newalla, 114 N.M. 290, 293-94, 837 P.2d 1373, 1376-77 (Ct.App. 1992). This Court in Newalla determined pursuant to the Probate Code that each petition in a probate file is a separate independent action. Id. An order which disposes of the matters raised in the petition is therefore generally considered to be a final, appealable order. Id. at 294, 837 P.2d at 1377. However, the rationale behind this analysis hinged upon (1) the unpredictability of whether future orders will be sought, because, absent supervised administration, it is uncertain whether a particular order in a probate case will be followed by another order; and (2) "as a practical matter, there may be no real relationship between two proceedings regarding the same estate." Id. at 293, 837 P.2d at 1376. However, here, as previously noted, there is a related case pending below regarding consolidated compensation claims for injuries occurring in February and October of 1991.
It is well-established policy that piecemeal appeals are disfavored, Kelly Inn, 113 N.M. at 239, 824 P.2d at 1041, and that fragmentation in the adjudication of related legal or factual issues is to be avoided. Banquest/First Nat'l Bank v. LMT, Inc., 105 N.M. 583, 585, 734 P.2d 1266, 1268 (1987). Under the facts of this case, and in the interest of judicial economy, it is our determination that the order is not final.
Finally, we cannot say that this case comes under the collateral order doctrine. See Carrillo v. Rostro, 114 N.M. 607, 613, 845 P.2d 130, 136 (1992); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S. Ct. 1221, 1226, 93 L. Ed. 1528 (1949). In the instant case, the order denying Respondents' objection to Worker's notice of change of health care provider can be reviewed on appeal from the final compensation order. Therefore, the order fails to satisfy the third requirement of the Cohen-Carrillo collateral order doctrine, which is that the order "`be effectively unreviewable on appeal from a final judgment.'" See Carrillo, 114 N.M. at 613, 845 P.2d at 136 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 2458, 57 L. Ed. 2d 351 (1978)).
CONCLUSION
We therefore hold that the order is not final and appealable, and dismiss this appeal without prejudice for lack of jurisdiction.
IT IS SO ORDERED.
MINZNER, C.J., and ALARID, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609769/ | 866 P.2d 85 (1993)
Alan James SULIBER, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 92-248.
Supreme Court of Wyoming.
December 30, 1993.
*87 Leonard D. Munker, State Public Defender, and Deborah Cornia, Appellate Counsel (argued), for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Mary Beth Wolff, Asst. Atty. Gen. (argued), for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
CARDINE, Justice.
Alan James Suliber appeals from his conviction for the murder of his stepson, seven year-old Adam Franklin. Appellant asserts that the trial court erred by admitting prior bad acts testimony and by admitting appellant's statements to the police which were given after he made an equivocal request for counsel. Appellant also challenges the sufficiency of the evidence to sustain the second degree murder conviction.
We affirm.
Appellant raises the following issues:
ISSUE I
Did the trial court err in allowing the introduction of evidence concerning the character and prior bad acts of the appellant?
ISSUE II
Did the admission of appellant's statements to the police after an equivocal request for counsel violate appellant's rights under the Fifth Amendment of the United States Constitution and Article One, Section 11 of the Wyoming Constitution?
ISSUE III
Was there sufficient evidence to support the conviction of second degree murder?
FACTS
This tragic tale begins in March of 1991 when Katie Franklin (Franklin) and her then six year-old son, Adam Franklin (Adam), moved to Rock Springs, Wyoming. Franklin went to work for the Rock Springs post office, where she met a customer, Alan Suliber (appellant). They began dating shortly thereafter, and a serious relationship quickly developed between the two. They were married in October of 1991.
Throughout the time they were married, Franklin noticed various injuries to Adam. These included scratches, bruises and blisters. There was also an incident in July of 1991, which occurred prior to the marriage, where appellant slapped Adam so hard that he left a bruise on Adam's face in the shape of a hand. These injuries were also noticed by several other persons at various times.
On February 13, 1992, Franklin drove her son and appellant to a boy scout meeting. She then went to her job at the post office, where she worked from 5:00 pm to 3:30 am. Meanwhile, appellant and Adam attended the scout meeting; and after it was over, they walked to a friend's house to get a ride home. The friend, however, was not home, so appellant and Adam began to walk home. After they had walked awhile, a passerby stopped and gave them a ride. They arrived home around 6:30 p.m. that night.
Adam went to bed that night around 8:00 p.m., and appellant testified that he went to bed around 10:00 p.m. Franklin arrived home from work around 4:00 a.m. the morning of February 14. She turned on the television *88 and read the mail for about ten minutes. She noticed that appellant was not sleeping on the couch or in his art room. She thought it was unusual because he usually did that when she worked late. After Franklin went to bed, she remembered that she had not kissed Adam goodnight, which was her habit. Appellant awoke, held her tight, and told her not to worry about it; it was not important.
The next morning, Franklin was awakened by appellant who said that something was wrong with Adam. She ran down to Adam's room where she found him lying on his back on the floor next to his bunk bed. Adam was not breathing, and his skin felt cool. Franklin immediately attempted to resuscitate Adam by performing CPR.
Appellant called 911, and an ambulance was sent to the scene. The EMTs attempted to revive the boy, but they were unsuccessful; and Adam was declared dead by a doctor at the hospital emergency room. Both the EMTs and the doctor noticed bruising on Adam that was inconsistent with any type of accidental death. They also noticed other bruises on his body, including on his buttocks. An autopsy subsequently confirmed that Adam died from injuries that were the result of a beating with a blunt object.
Appellant was charged with second degree murder in the beating death of Adam Franklin. A jury convicted appellant, and he was sentenced to life in prison. He now appeals that conviction.
DISCUSSION
A. W.R.E. 404(b)
Appellant challenges the admissibility of prior bad acts testimony by the State's witnesses. These witnesses testified about the relationship between appellant and Adam. Several of those witnesses testified about the July 1991 slapping incident and the resulting bruise on Adam's face. Three of the witnesses testified about instances of emotional abuse, such as when appellant bathed Adam and soap was in Adam's hair, and appellant told Adam not to open his eyes or they would burn, then watched Adam walk around the house for several hours and eat a meal with his eyes closed.
Appellant claims that this testimony was irrelevant and constituted an improper attack on his character. He points out that the testimony was elicited during the prosecutor's case-in-chief; and he argues, as a consequence, it was used to show he had the propensity to commit the crime charged. Appellant further asserts that the testimony was not admissible to show identity under W.R.E. 404(b) because the acts testified to were not peculiar or unique enough to show a personal "signature." Finally, appellant complains that the admission of this testimony violated W.R.E. 403 because it put him on trial for who he was, not for the crime charged.
W.R.E. 404(b) provides:
(b) Other crimes, wrongs, or acts.Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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.
In reviewing Rule 404(b) evidence, we give great deference to the trial court's determination of admissibility. Longfellow v. State, 803 P.2d 848, 851 (Wyo.1990). We will not find abuse of discretion as long as there is a legitimate basis for the court's decision. Pino v. State, 849 P.2d 716, 719 (Wyo.1993); Pena v. State, 780 P.2d 316, 318 (Wyo.1989). The trial court's discretion does have some limits, and to that end we have established a five-part test to determine the admissibility of evidence under Rule 404(b). The five factors to be considered are:
1. The extent to which the prosecution plainly, clearly, and convincingly can prove the other similar crimes.
2. The remoteness in time of those crimes from the charged offense.
3. The extent to which the evidence of other crimes is introduced for a purpose sanctioned by W.R.E. 404(b).
*89 4. The extent to which the element of the charged offense, that the evidence is introduced to prove, is actually at issue.
5. The extent to which the prosecution has a substantial need for the probative value of the evidence of the other crimes.
Longfellow, at 851; Bishop v. State, 687 P.2d 242, 246 (Wyo.1984), cert. denied 469 U.S. 1219, 105 S. Ct. 1203, 84 L. Ed. 2d 345 (1985). Not all five of these factors need to be satisfied for 404(b) evidence to be admissible. Longfellow, at 851; Pena, at 318. Usually, however, when 404(b) evidence has been properly admitted, all five factors will be found. Longfellow, at 851. Finally, the probative value of the evidence must outweigh any unfair prejudice or confusion of the issues as a result of its admission. W.R.E. 403; Wehr v. State, 841 P.2d 104, 109 (Wyo. 1992).
The determination of whether prior bad acts testimony is admissible under W.R.E. 404(b) necessarily includes the determination of relevancy. Coleman v. State, 741 P.2d 99, 103 (Wyo.1987). Thus the question of relevancy is considered at the same time the admissibility of the evidence under Rule 404(b) is determined. Longfellow, at 850 n. 2.
The State offered the evidence as probative of intent, identity and malice. At trial there was no dispute that Adam was beaten to death; according to the defense's opening statement to the jury, the only question was who did it. The night of Adam's death only two people had been with himFranklin and appellant. The defense theory was that Franklin had beaten her son to death as stated in his closing argument. Therefore, the identity of Adam's killer was a critical issue in dispute at trial.
This case is very similar to what occurred in Longfellow. There the question was whether the mother or her boyfriend beat a baby to death. We held that prior bad acts evidence which showed the mother had abused her other child was admissible to prove intent and identity. Longfellow, at 853-54. The evidence in this case, as in Longfellow, was needed by the prosecution to establish whether appellant or Franklin beat Adam to death. Id. The testimony of the prior bad acts was circumstantial evidence from which the identity of Adam's killer could be inferred. Barnes v. State, 858 P.2d 522, 532 (Wyo.1993).
Also, the evidence was relevant as proof of intent. As we pointed out in Longfellow, even though second degree murder is a general intent crime, the prosecution must still prove that the defendant undertook the prohibited conduct voluntarily. Longfellow, at 853; see also Crozier v. State, 723 P.2d 42, 52 (Wyo.1986). Appellant denied committing the act at all, thus intent was at issue at trial.
Finally, the evidence was admissible to establish malice. Appellant was charged with second degree murder. In order to establish that charge, the prosecution must prove:
1) appellant
2) purposely and maliciously
3) without premeditation
4) killed Adam Franklin
W.S. 6-2-104. The jury was also instructed on manslaughter as a lesser included offense. Malice is not an element of manslaughter. W.S. 6-2-105. Whether a person acted maliciously (second degree murder) or in the "sudden heat of passion" (voluntary manslaughter) is a question for the jury. Smith v. State, 564 P.2d 1194, 1197-98 (Wyo.1977). Thus the question of malice was in dispute at the trial. The prior bad acts evidence was admissible as evidence from which malice could be inferred.
Having found the third and fourth factors of the Bishop test present, we conclude that the first, second and fifth factors are present also. The prosecution "plainly, clearly, and convincingly" proved the acts through witnesses who saw the acts or observed their effects. All of the acts testified to occurred within a year of appellant being charged with murdering Adam, which is sufficiently close in time. See Pena, at 319 (acts seven years before charged offense not too remote). The circumstantial nature of the prosecution's case and the existence of two suspects gave the prosecution a substantial need for the evidence. See Longfellow, at 854. Thus all five of the factors have been met in this case.
*90 The decision under Rule 403 of whether the probative value of the evidence is outweighed by unfair prejudice or confusion is within the trial court's discretion. Wehr, at 109. The evidence was substantially probative of identity and malice. The trial court did not abuse its discretion.
B. REQUEST FOR COUNSEL
Appellant was interviewed four times by the police. The first two were at the hospital immediately following the victim's death. The third was at the police station on the same day. The fourth was also at the station, but it took place on the following day, February 15.
Appellant does not challenge the propriety of the first three interviews, only the fourth one. At the start of the fourth interview, the police showed appellant a rights-waiver form and asked him to sign it. A police officer testified that the following then occurred:
[defense attorney] No. Right after you asked him about it [the waiver form], did he not say, "Do I need a lawyer"?
[officer] Yes, sir.
[defense attorney] And then he's told he's not under arrest. It's a continuation of questioning, and then he goes ahead and signs off, but he asked if he needed a lawyer?
[officer] Yes, sir.
Appellant argues that his statements from the fourth interview should have been suppressed because they were given after he had made an equivocal request for counsel. Appellant made statements about Adam's bruises which were conflicting with prior accounts he had given, and he admitted to spanking the child two days before his death. Appellant claims that the admission of these statements violated his rights against self-incrimination under the Fifth Amendment to the United States Constitution and Art. 1, § 11 of the Wyoming Constitution.
The Fifth Amendment provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Article 1, § 11 of the Wyoming Constitution provides:
No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense. If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.
At the trial court, appellant challenged the interviews in the context of Black v. State, 820 P.2d 969 (Wyo.1991) (continued interrogation by police was coercive where pregnant suspect was emotionally distraught and police already had a case against her). Appellant has raised the question of an equivocal request for counsel for the first time on appeal. Therefore, we examine his claim for plain error. Ramos v. State, 806 P.2d 822, 827 (Wyo.1991). In order for plain error to be found, appellant must show that:
(1) the record clearly shows what occurred at trial, (2) transgression of a clear and unequivocal rule of law, and (3) which adversely affected one of [appellant's] substantial rights. Failure to establish each element of this three-part test precludes a finding of plain error.
Geiger v. State, 859 P.2d 665, 668 (Wyo.1993) (citations omitted); Ramos, at 827.
Once a person makes a request for counsel, no further interrogation is allowed unless counsel has been made available or the person voluntarily chooses to communicate. Best v. State, 736 P.2d 739, 742 (Wyo. 1987) (quoting Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 reh'g denied 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981)). If the request for counsel is equivocal, however, the police can continue *91 to talk with the person in order to "resolve the question of the suspect's desire for counsel." Best, at 743; see also Cheatham v. State, 719 P.2d 612, 619 (Wyo.1986). The police may not question the suspect on the offense until they determine whether he desires counsel or not. Id. If he does not, the police must obtain a voluntary written waiver for interrogation to continue. Best, at 743-44.
The purpose behind this rule is to protect a person's constitutional right against compelled self-incrimination. U.S. Const.Amend. V; Wyo. Const. Art. I, § 11; Best, at 742; see also Edwards, 451 U.S. at 482, 101 S. Ct. at 1883; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh'g denied 385 U.S. 890, 87 S. Ct. 11, 17 L. Ed. 2d 121 (1966).
Throughout the fourth interview, appellant repeatedly denied killing Adam. Even if we assumed that appellant was improperly questioned after requesting counsel, we fail to see how those statements rise to the level of plain error. Appellant did make inconsistent statements during the interview about how Adam received his injuries, however, the statements do not incriminate appellant in the sense that he admitted to the crime. To the contrary, he emphatically denied killing Adam throughout the interview.
In his brief, appellant provides no argument as to what effect, if any, the suppression of his statements would have had on the trial. There is abundant evidence in the record that appellant did in fact kill Adam. Thus even if we suppressed his statements, the outcome of appellant's trial would likely be the same. Consequently, no substantial right of appellant was adversely affected by the admission of the statements and there was no plain error.
C. SUFFICIENCY OF THE EVIDENCE
Appellant, in his final issue, questions the sufficiency of the evidence to sustain his second degree murder conviction. In reviewing sufficiency of the evidence claims we examine the evidence to determine
whether all of the evidence presented is "adequate to support a reasonable inference of guilt beyond a reasonable doubt to be drawn by the finder of fact, viewing the evidence in the light most favorable to the state." * * * We do not substitute our judgment for that of the jury in applying this rule, and our only duty is to determine if a quorum of reasonable and rational individuals would, or even could, have come to the same result the jury actually did.
Taul v. State, 862 P.2d 649, 657 (Wyo.1993) (citations omitted) (quoting Saldana v. State, 846 P.2d 604, 619 (Wyo.1993)). In order to sustain appellant's conviction for second degree murder, the evidence must be sufficient to show that he killed Adam purposely and maliciously without premeditation. W.S. 6-2-104.
It is undisputed that Adam was beaten to death. There is evidence from eyewitnesses and from the autopsy of the extensive injuries that Adam suffered. There was evidence of the physical and emotional abuse that permeated appellant's relationship with Adam. The appellant had ample time and access to Adam on the night of his death. While this evidence is circumstantial, it was sufficient for a reasonable jury to conclude that appellant was guilty of second degree murder in the beating death of Adam Franklin.
CONCLUSION
The prior bad acts evidence, which related to appellant's relationship with the victim, was admissible under W.R.E. 404(b) as tending to prove intent, identity and malice. The admission of appellant's statements from his fourth interview with the police did not rise to the level of plain error. Finally, there was sufficient evidence to sustain appellant's second degree murder conviction. Therefore, appellant's conviction and sentence are affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609770/ | 866 P.2d 463 (1993)
125 Or. App. 122
FRIENDS OF THE METOLIUS and Toni Foster, Petitioners,
v.
JEFFERSON COUNTY, Dan Richartz and Cindi Richartz, Respondents.
93-002; CA A80307.
Court of Appeals of Oregon.
Petition for Reconsideration October 27, 1993.
Decided December 8, 1993.
Reconsideration Denied February 2, 1994.
*464 Bill Kloos, Anne C. Davies, and Johnson & Kloos, Eugene, for petitioners.
Before DEITS, P.J., and RIGGS and DURHAM, JJ.
On Petitioners' Petition for Reconsideration October 27, 1993.
DEITS, Presiding Judge.
Petitioners seek Supreme Court review and, thereby, our reconsideration of our opinion. They argue that, in holding that Jefferson County's interpretation of its zoning ordinance was not reversible under the standard of review articulated in Clark v. Jackson County, 313 Or. 508, 836 P.2d 710 (1992), we accorded more deference to the local government's interpretation of its land use legislation than Clark requires or even allows. We allow reconsideration to respond to petitioners' contentions regarding that question.
Petitioners assert that Clark requires consideration, inter alia, of the context of local legislation by the local bodies that interpret it and by LUBA and the courts in reviewing the interpretations.[1] Petitioners contend that, because the local legislation here has been acknowledged as complying with the statewide planning goals, the goals are part of its "context," within the meaning of Clark, and the local interpretation must be reviewed against and found to be consistent with the goals in order to pass scrutiny under Clark. Petitioners argue that the county's interpretation here is contrary to Goal 14, that the interpretation is therefore reversible and that LUBA and we erred by not so holding.
We reject petitioners' contention that the Supreme Court intended in Clark for the goals to be regarded as part of the context of acknowledged local legislation and, therefore, among the criteria by which a reviewing body tests a local government's interpretation of its own legislation. In Byrd v. Stringer, 295 Or. 311, 666 P.2d 1332 (1983), and Foland v. Jackson County, 311 Or. 167, 807 P.2d 801 (1991), the Supreme Court held that, after local comprehensive plans and land use regulations are acknowledged, the local legislation becomes the applicable law for most kinds of land use decisions by the local government, including decisions of the kind involved here, and the goals cease to apply to the decisions directly.[2] The court made passing reference to that principle in Clark itself, 313 Or. at 513, 836 P.2d 710, and *465 expressly reiterated it in Smith v. Clackamas County, 313 Or. 519, 524, 836 P.2d 716 (1992), a case decided on the same day as Clark.
Although there is no necessary inconsistency between the holdings of Byrd and Foland that the goals cease to be directly applicable after acknowledgment and the proposition that the goals can constitute part of the framework for interpreting acknowledged legislation, the Supreme Court appears to have taken the view that the goals have no bearing on post-acknowledgment land use decisions of the kind in question, apart from the local legislation that has been found to comply with them. It said in Foland:
"This policy of not requiring a city or county to make land use decisions in compliance with the goals after plan acknowledgment has been obtained provides the entire basis for the integrity of the acknowledgment process. Once a plan has been acknowledged, a land use decision made in compliance with an acknowledged plan is ipso facto in compliance with the goals. To require a city or county which has an acknowledged plan nonetheless to make all of its land use decisions by separate reference to and in compliance with the goals would make an acknowledgment meaningless." 311 Or. at 172, 807 P.2d 801.
Petitioners point to nothing in the language or reasoning of Clark that supports their position that the court intended to depart from that view expressed in its earlier cases, or to make the goals part of the interpretive context of local legislation. As we read the Supreme Court's opinion, it supports the opposite understanding. In each of the various statements of the standard of review in Clark, the clear import is that local legislation is to be treated as an internally contained and independent body of law for purposes of applying the standard, and that "context" refers to other provisions in the local legislation itself that shed light on the meaning of the specific provision that is the subject of the interpretation. See 313 Or. at 514-15, 518, 836 P.2d 710; see also Smith v. Clackamas County, supra, 313 Or. at 528, 836 P.2d 716 (county's interpretation found to be "consistent with [ordinance's] express language and its context as provided by other provisions of the ordinance " (emphasis supplied)).[3] Moreover, petitioners suggest no reason why the court might have intended in Clark, a case that altered and reduced the scope of LUBA and judicial review of local interpretations of local legislation, to add the goals to the criteria for making and reviewing interpretations of acknowledged legislation when they had not played that role under the broader review standard that existed before Clark.[4]
Petitioners also rely on Oregon Laws 1993, chapter 792, section 43, which provides:
"The Land Use Board of Appeals shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government's interpretation:
"(1) Is inconsistent with the express language of the comprehensive plan or land use regulation;
"(2) Is inconsistent with the purpose for the comprehensive plan or land use regulation;
"(3) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or
"(4) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements."
That statute had not taken effect at the time of the events relevant to our review, and petitioners do not argue that it has any direct *466 application here. Rather, they argue that subsection (4) is evidence that supports their reading of Clark, and that that statute's inclusion of the goals in the review scheme constitutes a legislative recognition of what was "already implicit in the statutory scheme and the Clark standard."
That understanding of section 43 is not persuasive. The first three subsections have direct analogsalbeit not necessarily duplicatesin the language and substance of Clark. Subsection (4) does not. For the reasons that we have discussed, Clark simply does not say what petitioners read into it, and we do not agree with their premise that the substance of subsection (4) was already implicit in the Clark standard.
Section 43 may eventually have profound effects on the Clark standard and on future cases. However, this case does not provide an appropriate occasion for interpreting the 1993 statute or for applying revisionist history to Clark.
Reconsideration allowed; opinion adhered to.
NOTES
[1] The court said in Clark:
"[I]n reviewing a county's land use decision, LUBA is to affirm the county's interpretation of its own ordinance unless LUBA determines that the county's interpretation is inconsistent with express language of the ordinance or its apparent purpose or policy. LUBA lacks authority to substitute its own interpretation of the ordinance unless the county's interpretation was inconsistent with that ordinance, including its context." 313 Or. at 515, 836 P.2d 710.
The principal issue that we address turns on the meaning of the word "context" in that passage and elsewhere in Clark and related cases. We consider the word as a term of art, to the extent that Clark makes it one, and we do not use the word in its colloquial sense in this opinion.
[2] The court in Foland noted, 311 Or. at 180 n. 10, 807 P.2d 801, as have we, see, e.g., Forster v. Polk County, 115 Or.App. 475, 839 P.2d 241 (1992), and authorities there cited, that applicable state statutes, unlike the goals, remain directly applicable to post-acknowledgment land use decisions along with the local legislation. However, no argument is made here that turns on state statutory provisions.
[3] Some confusion could arise from the fact that the local legislation involved in Clark, as is often the case with local land use legislation, referred to and required compliance with specific state statutes.
[4] Petitioners contend that Clark was not intended to create a "radical change" from the standard of review that it displaced. Whatever the intended dimensions of the change might have been, however, there can be no question about the direction of the change. See, e.g., Cope v. City of Cannon Beach, 115 Or.App. 11, 836 P.2d 775 (1992), aff'd on other grounds 317 Or. 339, 855 P.2d 1083 (1993); Reusser v. Washington County, 122 Or.App. 33, 857 P.2d 182, rev. den. 318 Or. 60, 865 P.2d 1296 (1993), and authorities there cited. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609773/ | 866 P.2d 447 (1993)
Scott HILDEBRAND, individually and as father and next friend of Lacie Hildebrand, and Phyllis Richards, individually and as mother and next friend of Tracie Richards, Appellees,
v.
Carl Norman GRAY, Defendant,
American Capital Indemnity Corporation, an Oklahoma insurance company, by and through its receiver, Oklahoma Property and Casualty Insurance Guaranty Association, Appellee, and
Mid-Continent Casualty Company, Appellant.
No. 79512.
Court of Appeals of Oklahoma, Division No. 1.
November 23, 1993.
Richard D. Gibbon, Tulsa, for appellant.
Daniel M. Davis, Roger B. Hale, Oklahoma City, for appellees, Hildebrand and Richards.
Brad Smith, Tulsa, for appellee, American Capital Indemnity/Oklahoma Property and Cas. Ins. Guar. Ass'n.
Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 1.
*448 MEMORANDUM OPINION
JONES, Presiding Judge:
Appellant, Mid-Continent Casualty Company [Mid-Continent], seeks reversal of summary judgment rendered against it in a garnishment proceeding by Appellees, Scott Hildebrand and Phyllis Richards. We hold the trial court erred in applying the doctrines of issue preclusion to deprive Appellant of an opportunity to litigate its defenses against the garnishment.
Hildebrand and Richards commenced this action to recover for injuries suffered by them and their minor children when Carl Norman Gray crashed his car into the Richards's house. The crash occurred at the conclusion of a high-speed chase following the unsuccessful attempt by two Ottawa County deputy sheriffs to serve an arrest warrant on Gray.[1]
Hildebrand and Richards chose to cast their tort action in negligence. The case proceeded to jury trial, but the jury merely fixed damages, the court having directed a verdict in favor of Hildebrand and Richards on negligence. They subsequently filed postjudgment garnishment against Mid-Continent, Gray's liability insurer. The insurer filed its answer denying any indebtedness to Gray, and the garnishors filed their election to take issue with the denial.
Garnishors moved for summary judgment. The evidentiary materials attached to the motion consisted of several items from the underlying suit (1) the "partial" judgment; (2) the jury instructions; (3) the pre-trial order; and (4) Gray's answers to interrogatories, to which were attached a copy of the Mid-Continent policy. Mid-Continent responded with an affidavit from one of the deputies who had tried to arrest Gray, that in his opinion Gray had intentionally aimed his car at the Richards's house. Mid-Continent also asked the trial court to take judicial notice of the criminal charges filed against Gray following the crash. (Gray had been charged with nine counts of assault and battery with a dangerous weapon[2], and pleaded guilty to all nine.)
The trial court initially granted summary judgment in favor of the garnishors, but garnishors moved to vacate the judgment because it did not specify an amount, but rather ordered Mid-Continent only to pay such sums as were due on the liability policy. Mid-Continent agreed to the garnishors' request to vacate the judgment.
After new attorneys became involved in the case for garnishors, another motion for summary judgment was filed, the body of which was for all practical purposes identical to the first motion.[3] Although the second *449 motion referred to exhibits, none were attached. Mid-Continent responded, attaching a copy of its previous response, including the deputy's affidavit. The trial court again granted summary judgment for garnishors, and this appeal followed.
Mid-Continent's seeks to defend the garnishment action by asserting the following exclusion under the liability coverage of its insurance policy:
This policy does not apply under Part I:
* * * * * *
(b) to bodily injury or property damage caused intentionally by or at the direction of the insured;
* * * * * *
[Rec. 63.] In its response to the motion for summary judgment, Mid-Continent asked the trial court to take judicial notice of the earlier criminal proceedings against Gray, in which Gray was accused of wilfully and intentionally committing an assault and battery upon the occupants of the Richards house, "with the unlawful and felonious intent then and there to do [them] great bodily harm" [Rec. 185-87], the charges to which he had pleaded guilty. Gray entered his guilty plea on September 23, 1987, over two months before Appellees sued him for negligence. [Rec. 200.]
"Negligence" is defined as a failure to exercise ordinary care to avoid injury to another's person or property, i.e., failure to do what an ordinarily prudent person would do in the same or similar circumstances, or doing what an ordinarily prudent person would not do under such circumstances. See, e.g., Guegel v. Bailey, 199 Okl. 441, 186 P.2d 827, 829 (1947). We note that juries in Oklahoma may be instructed on both negligent and intentional conduct in the same case. The uniform instructions adopted by the Supreme Court contemplate a finding of negligence by the jury and subsequent award of punitive damages based on the malicious i.e., intentional conduct. See Oklahoma Uniform Jury Instructions: Civil No. 5.5 at 59-60, No. 9.2 at 91-92 (2nd ed. 1993).
Garnishment proceedings are distinct from the underlying action, although the liability established in the underlying action is prerequisite to proceeding against an insurer by garnishment. In Henderson v. Eaves, 516 P.2d 270 (Okla. 1973), the garnishor's underlying judgment recited that the defendant [insured] had been served by leaving a copy of the summons with his mother at defendant's usual place of residence. The plaintiff argued the recital estopped defendant's insurer from claiming in a subsequent garnishment action that the defendant did not, in fact, reside at the address where the summons was served. The court disagreed, holding that the fact of the defendant's residence was not "material" for purposes of the underlying action. In so holding, the court stated the rule which both parties to the present appeal have cited in support of their respective positions:
One who is required either by law or contract to protect another from liability is bound by the result of the litigation to which such other is a party, provided the former had notice of such litigation and an opportunity to control its proceedings; but a judgment against a party indemnified is conclusive in a suit against his indemnitor only as to the material facts therein established.
Henderson v. Eaves, 516 P.2d at 273, quoting from United States Fidelity & Guaranty Co. v. Dawson Produce Co., 180 Okl. 119, 68 P.2d 105, 107 (1937). See also Greene v. Circle Insurance Co., 557 P.2d 422, 424 (Okla. 1976).
These cases recognize that such contractual obligation as may exist between the insured and insurer is not and cannot be the subject of the tort suit by third parties against an insured. Appellees suggest, somewhat disingenuously we think, that Mid-Continent could have protected its interests by employing separate counsel[4] in *450 the underlying case. Alternatively, Appellees suggest Mid-Continent should have denied any defense to Gray, thereby preserving, in their view, an opportunity to raise its garnishment defense based on the "intentional act" exclusion.
The mere fact of garnishment does not alter or enlarge the rights as against the garnishee. The judgment creditors, Appellees here, could not acquire by their tort judgment any greater rights than the insured, Gray, possessed. Moral Insurance Co. v. Steves, 208 Okl. 529, 257 P.2d 836, 839 (1953); Ray v. Paramore, 170 Okl. 495, 41 P.2d 73, 76 (1935). A judgment creditor stands in the shoes of the judgment debtor vis a vis rights against any liability owed to the judgment debtor by the garnishee. Culie v. Arnett, 765 P.2d 1203, 1205 (Okla. 1988).
In Greene, the insurer argued in a garnishment action that the statute of limitations had run on the plaintiff's cause of action. The court held that the insurer could not relitigate any defense which should have been raised in the main action. Greene, 557 P.2d at 424. Of course, the insurer here does not assert any defense which could have been raised in the main action. Notwithstanding Appellees' suggestions in their brief[5], there was no realistic way for Gray to assert his conduct was intentional (and therefore not negligent) in the underlying action.
Here, we are presented an issue of "collateral estoppel" also known in our jurisprudence as "estoppel by judgment" as opposed to res judicata. As stated by the Oklahoma Supreme Court in Schneider v. Republic Supply Co., 123 Okl. 98, 252 P. 45, 47 (1926):
For a judgment to be an estoppel, there must be an identity of parties, as well as of subject-matter; and the parties between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered in the same capacities and in the same antagonistic relation, or in privity with the parties in such former action.
See Laws v. Fisher, 513 P.2d 876, 877 (Okla. 1973); Smittle v. Eberle, 353 P.2d 121, 122-23 (Okla. 1960). While res judicata acts as a bar to re-litigation of the same cause of action between the same parties, the bar of collateral estoppel operates with respect to a different cause of action, in which there is one or more issues which were actually litigated in the former action. Wabaunsee v. Harris, 610 P.2d 782, 785 (Okla. 1980); see Bras v. First Nat. Bank & Trust Co., 735 P.2d 329, 332-33 (Okla. 1985); State ex rel. Trimble v. Kindrick, 852 P.2d 758, 760 (Okla. Ct. App. 1992).
In the present case, we have neither an identity of parties nor an identity of issues. In the context of the general rule stated in Henderson v. Eaves, it remains only to determine whether Mid-Continent is nonetheless bound as being in privity with Gray. We answer that question in the negative. Mid-Continent's involvement in the main action against Gray was limited to hiring an attorney for him.[6] That attorney, however, did not represent Mid-Continent, nor seek to advance the insurer's interests. Indeed, in some critical respects, the interests of Gray and Mid-Continent were antagonistic. For example, the insurer's pecuniary interests would doubtless have been served if Gray defended the main action by claiming his acts were intentional, because Mid-Continent might thereby have been relieved by its policy exclusion from indemnifying Gray against the tort judgment. But Gray (and, according to the applicable rules of ethical conduct, his insurer-retained attorney) were obliged to defend Gray's interests, including preservation of whatever rights of insurance which they thought reasonably available to Gray.
In order for the "privity" rule to apply, the party in privity must actually have *451 the same interest, character, or capacity as the party against whom the prior judgment was rendered. However, the scope of who qualify as "privies" varies according to the circumstances of the particular case. "In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right." 46 Am.Jur.2d, Judgments § 532 at 683 (1969). If the interests of the two parties are in conflict in the main action, they are not privies within the meaning of the rules of res judicata and collateral estoppel. See id., at 686.
These principles are now incorporated in the Restatement (Second) of Judgments § 58 (1982):
(1) When an indemnitor has an obligation to indemnify an indemnitee (such as an insured) against liability to third persons and also to provide the indemnitee with a defense of actions involving claims that might be within the scope of the indemnity obligation, and an action is brought against the indemnitee involving such a claim and the indemnitor is given reasonable notice of the action and an opportunity to assume its defense, a judgment for the insured person has the following effects on the indemnitor in a subsequent action by the indemnitee for indemnification:
(a) The indemnitor is estopped from disputing the existence and extent of the indemnitee's liability to the injured person; and
(b) The indemnitor is precluded from relitigating those issues determined in the action against the indemnitee as to which there was no conflict of interest between the indemnitor and the indemnitee.
(2) A "conflict of interest" for purposes of this Section exists when the injured person's claim against the indemnitee is such that it could be sustained on different grounds, one of which is within the indemnitor's obligation to indemnify and another of which is not.
Clearly, there is in this case a "conflict of interest" as defined in § 58(2); Appellees could have pressed a claim against Gray for either intentional assault and/or battery, or negligence. A favorable judgment on either of the former theories, by definition, would be excluded from coverage under Mid-Continent's policy; while a judgment for negligence would not. In short, the mere fact that the insurer may have some remote connection with the main negligence action against its insured, because it has retained counsel to defend the insured, does not estop the insurer from subsequently raising a policy defense to subsequent garnishment proceedings by a successful plaintiff in the main action.
The trial court's summary judgment against Mid-Continent is REVERSED, and this case is remanded to the trial court for further proceedings in conformity with the views expressed in this opinion.
REVERSED AND REMANDED.
HANSEN, C.J., and ADAMS, J., concur.
NOTES
[1] Gray was charged with raping his step-daughter. The deputy had come to the Richards's home to serve Gray. Mrs. Richards pointed him out to the deputy, and Gray then took flight.
[2] The nine assault and battery counts corresponded to the number of people in the Richards's house when Gray crashed his car into it.
[3] The second motion differed from the first motion in only two respects: First, it recited the prior ruling on the first summary judgment motion, and subsequent vacation of that ruling. Second, an additional paragraph was inserted in which Appellees stated, "[A]ll parties have agreed that no matter the ultimate outcome of the case at bar, an Appeal will be made to the Oklahoma Supreme Court for redetermination. This being the case, Plaintiffs submit that this Motion for Summary Judgment be GRANTED in order to save Judicial time and monies [sic] ..." [Rec. 123.]
[4] By this, Appellees acknowledge that Mid-Continent had already hired counsel to represent Gray, as required by Gray's insurance policy.
[5] We find it incredible to suggest, as Appellees do, that Gray could or should have defended the negligence action by claiming he crashed his car intentionally, but not negligently. By doing so, Gray would have been depriving himself of the only insurance coverage available to him. Thus, accepting Appellees' argument would require us to indulge the assumption that Gray should have adopted a position directly contrary to his pecuniary interest.
[6] According to the briefs, Mid-Continent defended Gray under reservation of rights. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609774/ | 866 P.2d 339 (1993)
116 N.M. 611
Joe WHITE, on behalf of The BANES COMPANY DERIVATIVE ACTION, Plaintiff-Appellant,
v.
The BANES COMPANY, Priscilla Jolly, as personal representative of the Estate of Vernon Jolly, and Priscilla Jolly, Personally, Defendants-Appellees.
No. 20984.
Supreme Court of New Mexico.
December 14, 1993.
*340 Thompson & Kushner, Randall L. Thompson, Albuquerque, for appellant.
Sheehan, Sheehan & Stelzner, Judith D. Schrandt, Timothy M. Sheehan, Albuquerque, for appellees.
OPINION
FRANCHINI, Justice.
Joe White appeals from a partial summary judgment entered in favor of defendants on a shareholder's derivative action and a judgment for specific performance in favor of defendants on their counterclaim. Specifically, the trial court ordered White to tender his shares of stock to defendant Banes Company (Banes) for purchase at a price of $17.87 per share or a total of $67,441.38. The trial court awarded defendants their costs and attorney's fees in the amount of $60,894.79 and offset this sum against the purchase price of the stock. We affirm the judgment of the trial court except for its holding that White was not a shareholder, and we reverse the award of attorney's fees under NMSA 1978, Section 53-11-47(B) (Repl.Pamp. 1993).
I.
The defendants-appellees in this appeal are Banes and Priscilla Jolly. Priscilla Jolly is the widow and personal representative of Vernon Jolly, who was the chairman, chief executive officer, and majority shareholder of Banes. This lawsuit was brought as a shareholder derivative suit by White to contest the Banes' decision to drop two life insurance policies insuring the life of Vernon Jolly. One policy was a $50,000 whole life policy with a cash value of less than $4,000. The second policy was a $1,000,000 term policy with no cash value. The life insurance was purchased to insure against the inevitable economic loss to Banes should Vernon die prematurely, and also for bonding and financial purposes, at a time when Banes was an active construction company. The insurance was dropped after Banes had ceased doing business as a construction company and was winding down its affairs. When Banes dropped the insurance, the insurance agent offered the policies to Vernon, who assumed ownership of the policies rather than let them lapse. Vernon was diagnosed with melanoma in September 1989 and died in December 1990.
Banes counterclaimed and alleged that White failed to tender the remainder of his shares of stock as required in the Stock Restriction Agreement. White was employed by Banes until December 1985, when he resigned. On May 1, 1987, White signed an application for stock distribution from Banes' Employee Stock Ownership Plan (ESOP), under which he had accrued an interest during his employment. In the application, White agreed that the stock distributed to him was subject to the ESOP agreement which required him to sell back his shares over a period of four years. About the same time, the shareholders and Banes entered into the Restated Stock Restriction Agreement. This agreement excluded shareholders who received stock through an ESOP distribution.
In 1987 and 1988, White gave notice of offer and tendered stock in accordance with *341 the ESOP agreement. Banes bought the stock at its September 30, 1986 and 1987 book value, pursuant to the terms of the agreement, without objection from White. In 1989, after giving notice of offer, White approached Vernon Jolly and complained about the September 30, 1988 book value. By letter, he requested that Banes not purchase the stock offered and Banes did not purchase his tendered stock. White has not tendered all of his shares under the terms of the ESOP and still holds six percent of Banes' stock.
Banes filed a motion for partial summary judgment stating that White had an obligation to sell back his shares pursuant to the ESOP, and that therefore he did not have standing as a shareholder because he was holding his shares in breach of that agreement. White argued that there was an oral agreement based on a conversation he had with Vernon that rescinded the ESOP. The trial court ruled that the oral agreement to modify the ESOP was barred by the statute of frauds and that therefore White "has no standing to bring a stockholder derivative action." The trial court specifically provided that White would not be precluded from asserting in the trial of the counterclaim the fact that an evaluation of his stock should take into consideration the effect of any alleged improper sale or transfer of corporate assets.
Trial on Banes' counterclaim was held in May 1992. The trial court found that Banes was entitled to specific performance of the ESOP. The trial court concluded that White was required to tender all his stock back to Banes by May 31, 1991 and that Banes was obligated to buy this stock at the valuation set as of September 30, 1990. With respect to the life insurance issue, the trial court concluded that the changes of ownership and beneficiary designations on the life insurance policies were not improper transfers of Banes' assets and such changes were supported by the business judgment rule. The trial court concluded that White had no standing to enforce the Restated Stock Agreement because he was not a party to it or a third party beneficiary as an ESOP shareholder. The trial court also concluded that Banes' failure to purchase Vernon Jolly's shares of stock from Priscilla was not actionable. Finally, the trial court concluded that White's shareholder derivative action was brought without reasonable cause and that the defendants were entitled to recover their cost and attorney's fees.
II.
White raises the following three issues on appeal: (1) Whether the trial court erred when it entered summary judgment based on its holding that White did not have standing to bring a shareholder's derivative action; (2) whether the trial court erred in applying the business judgment rule to the life insurance transfers; and (3) whether the trial court abused its discretion in assessing attorney's fees against White.
White contends that the trial court erred when it granted summary judgment based on its holding that White did not have standing to bring a shareholder derivative action. Although we disagree with the trial court on White's shareholder status, the judgment on standing did not prevent the court from reaching issues of alleged mismanagement, the most important being whether Banes acted improperly in transferring the life insurance policies. That issue was addressed by the court in determining the value of White's shares for purposes of the buy-sell agreement. White's shareholder status does affect the issue of awarding attorney's fees and, furthermore, we consider the issue of standing important enough to address.
For a shareholder to bring an action "in the right of a domestic or foreign corporation" he or she must be, "a shareholder of record or the beneficial owner of shares held by a nominee or the holder of voting trust certificates at the time of the transaction of which he complains... ." NMSA 1978, Section 53-11-47(A) (Repl.Pamp. 1993). We have never interpreted this section of the Business Corporation Act, NMSA 1978, Sections 53-11-1 to -18-12 (Repl.Pamp. 1993). Section 53-11-47(A) was part of the 1975 amendments to the New Mexico Corporation Act. 1975 N.M. Laws, ch. 64, § 24. Drafters of the 1975 amendments sought to keep our *342 Act consistent with the "Model Act to facilitate interpretation of the state corporation statutes by making case law of other states available for guidance." Charles I. Wellborn & Suzanne M. Barker, 1975 Amendments to the New Mexico Business Corporations Act, 6 N.M.L.Rev. 57, 57 (1975). The parallel section enacted in 1975 was NMSA 1953, Section 51-24-45.1(A) (Supp. 1975). This provision was consistent with prior New Mexico case law which held that to be able to bring a derivative suit, a stockholder must be a stockholder at the time of the transaction complained of unless the wrong is a continuing one and has not been consummated at the time the stockholder acquired his or her shares. Goldie v. Yaker, 78 N.M. 485, 487, 432 P.2d 841, 843 (1967).
Banes encourages us to interpret our contemporaneous ownership requirement to also include a continuous ownership rule. See Metal Tech Corp. v. Metal Teckniques Co., 74 Or. App. 297, 703 P.2d 237, 242 (1985) (requiring contemporaneous and continuous ownership of stock throughout the duration of litigation to maintain standing in a derivative action). Under this interpretation, Banes contends, White lost his standing to bring the derivative action when the trial court ruled on Banes' motion for summary judgment whereby White was obligated to sell back his shares under the terms of the buy-sell agreement.
First, we agree with the reasons for the continuous ownership rule. A shareholder derivative action is a procedure by which the shareholder can assert a right of action on behalf of the corporation when the corporation has refused a properly made demand to enforce the corporation's rights. Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 522, 67 S. Ct. 828, 830, 91 L. Ed. 1067 (1947). As Justice Jackson observed in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 549, 69 S. Ct. 1221, 1227, 93 L. Ed. 1528 (1949):
[The shareholder plaintiff] sues, not for himself alone, but as representative of a class comprising all who are similarly situated. The interests of all in the redress of the wrongs are taken into his hands, dependent upon his diligence, wisdom and integrity. And while the stockholders have chosen the corporate director or manager, they have no such election as to a plaintiff who steps forward to represent them. He is a self-chosen representative and a volunteer champion.
Id. Thus, "[s]tanding is justified only by [the] proprietary interest created by the stockholder relationship and the possible indirect benefits the nominal plaintiff may acquire qua stockholder of the corporation which is the real party in interest." Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 735-36 (3d Cir.1970), cert. denied, 401 U.S. 974, 91 S. Ct. 1190, 28 L. Ed. 2d 323 (1971). We do not believe that our legislators would choose to entrust the responsibility of vindicating unenforced corporate rights to someone who is no longer a member of the class which will benefit or suffer from such actions. Yet, this is not the case here. White is still a legal shareholder; although he is holding his shares in breach of the agreement, he still holds the shares. He currently is the owner of 3,774 shares of Banes' stock, the judgment for specific performance having been stayed on appeal. Also, at the time this action was filed, White was a shareholder and neither party had complied with the terms of the ESOP. Banes' first attempt to enforce the agreement was its counterclaim filed on July 19, 1991. We will not allow the filing of the counterclaim to serve to defeat White's standing. "[L]ack of standing should not be applied to abolish an existing substantive right of action." Shelton v. Thompson, 544 So. 2d 845, 848 (Ala. 1989).
Although the trial court erred in holding that White was not a shareholder, the grant of partial summary judgment did not preclude litigation of the merits of the case. On summary judgment, and at trial, the court heard evidence to support its conclusions that White was required to tender his shares, White was not a party to the Restated Stock Restriction Agreement, and Banes was not obligated to purchase Priscilla's shares after Vernon's death. We will not correct errors which will not affect the ultimate decision of the trial court. Prude v. Lewis, 78 N.M. 256, 260, 430 P.2d 753, 757 (1967).
*343 White contends that the trial court erred in applying the business judgment rule to the transfers of the life insurance policies. The business judgment rule states:
"If in the course of management, directors arrive at a decision, within the corporation's powers (inter vires) and their authority, for which there is a reasonable basis, and they act in good faith, as the result of their independent discretion and judgment, and uninfluenced by any consideration other than what they honestly believe to be the best interests of the corporation, a court will not interfere with internal management and substitute its judgment for that of the directors to enjoin or set aside the transaction or to surcharge the directors for any resulting loss."
DiIanconi v. New Cal Corp., 97 N.M. 782, 788, 643 P.2d 1234, 1240 (Ct.App. 1982) (citations omitted) (quoting Harry G. Henn & John R. Alexander, Laws of Corporations § 242 (1983)).
We examine the record with those basic considerations in mind. The evidence shows that there was no need for the insurance with respect to bonding or financing because Banes was no longer engaging in construction. Nor was there a need for insurance to finance the buy out of Vernon's share by other managing shareholders, since there were no other managing shareholders with a right to buy out Vernon's share. The premiums constituted a significant expense to Banes that could be eliminated by dropping the policies. Furthermore, the cash value of the policies was not significant. The million-dollar policy had no cash value and was not an asset on the corporate books. The cash value of the $50,000 policy was attributed to compensation for Vernon. Viewing this evidence in the light most favorable to support the trial court's findings, Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 101 N.M. 291, 294, 681 P.2d 717, 720 (1984), we believe the court's findings are amply supported by the evidence. Findings to the effect that there was no longer a viable business purpose for Banes to have insurance on Vernon's life support the trial court's conclusion that the change in ownership of the policies was done in good faith and that the transaction was inherently fair to the corporation.
White's final argument addresses whether the trial court abused its discretion in assessing attorney's fees against him. Section 53-11-47(B) contemplates a discretionary award of attorney's fees upon a finding that the action was brought "without reasonable cause." There are no New Mexico cases interpreting Section 53-11-47(B). The commentary to the Model Business Corporation Act, on which our Act is patterned, states that the "without reasonable cause or for an improper purpose" test is "similar to but not identical" to the test for dissenters' rights to attorney's fees, which is arbitrary, vexatious or not in good faith. 2 Model Business Corp. Act Ann. § 7.46 cmt. (1984). "The derivative action situation is sufficiently different from the dissenters' rights situation to justify a different and less onerous test for imposing cost on the plaintiff." Id. The reasonable cause or improper purpose test is "appropriate to deter strike suits, on the one hand, and on the other hand to protect plaintiffs whose suits have a reasonable foundation." Id.
White urges us to interpret "without reasonable cause" to mean "groundless" and apply the subjective standard used in City of Farmington v. L.R. Foy Construction Co., 112 N.M. 404, 407, 816 P.2d 473, 476 (1991). Under this interpretation, for the plaintiff to be sanctioned with attorney's fees, a showing must be made that "[he or she] subjectively knew at the time the suit was filed that the complaint was groundless." Id. A "groundless" claim is one in which the allegations in the complaint are "not in good faith discoverable through litigation." Id. at 408, 816 P.2d at 477.
Banes contends that "without reasonable cause" is more closely analogous to the award of attorney's fees for unreasonable denial of an insurance claim under NMSA 1978, Section 39-2-1 (Repl.Pamp. 1991). Under this section, we look at "the insurer's conduct from an objective standpoint and [measure] it against a `reasonably prudent insurer' standard." Jackson Nat'l Life Ins. Co. v. Receconi, 113 N.M. 403, 420, 827 P.2d 118, 135 (1992).
*343 If our purpose in awarding attorney's fees is to protect plaintiffs whose suits have a reasonable foundation, we believe the "groundless" test is a better test to pattern the "reasonable cause test" after. Thus, if White knew when he filed the action that his complaint was without a reasonable foundation, Banes would be entitled to attorney's fees.
With those guidelines in mind, we hold that the trial court's conclusion that White's action was brought without reasonable cause was an abuse of discretion. First and most importantly, as we determined earlier, White was a shareholder, and therefore had standing. Additionally, the trial court relied on White's failure to exhaust his intercorporate remedies in awarding attorney's fees under Section 53-11-47(B).
Section 53-11-47(A)(3) requires that the complainant allege "with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors and the reasons for his failure to obtain the action or for not making the effort." Substantially the same requirement exists in SCRA 1986, 1-023.1. The Arizona court in Callanan v. Sun Lakes Homeowners' Ass'n No. 1, 134 Ariz. 332, 656 P.2d 621 (Ct.App. 1982), held that the trial court is entitled to consider plaintiffs' failure to comply with presuit demand requirements in determining the presence of "reasonable cause." Although we believe the demand requirement is crucial to the derivative action, in our view, relying on it alone as the reason for awarding attorney's fees was an abuse of discretion here.
In RCM Securities Fund, Inc. v. Stanton, 928 F.2d 1318, 1329 (2d Cir.1991), the federal appeals court stated that the federal rule equivalent of SCRA 1-023.1, "is only a procedural requirement empowering federal courts to determine from the pleadings whether the demand requirement has been met." If White's complaint was defective under Section 53-11-47(A)(3) and SCRA 1-023.1, why was it not dealt with by a motion to dismiss or a motion for a more definite statement? White could have amended his complaint and stated the efforts he made to obtain results from the directors or, in the alternative, demonstrated the futility of such a demand. We hold that it was an abuse of discretion for the trial court to wait until $60,000 of legal fees were incurred and then order the payment of those legal fees on the basis that the action was unreasonable because of a failure to pursue intercorporate remedies.
In view of the foregoing, we affirm the judgment of the trial court except for its holding that White was not a shareholder, and reverse the award of attorney's fees. Accordingly, the cause is remanded for an entry of judgment consistent with this opinion.
IT IS SO ORDERED.
RANSOM, C.J., and FROST, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898342/ | NO. 07-07-0266-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 21, 2009
______________________________
JAIME TREVINO, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 379TH DISTRICT COURT OF BEXAR COUNTY;
NO. 2004CR6365; HONORABLE BERT RICHARDSON, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
CONCURRING AND DISSENTING OPINION
I agree with the majority’s disposition of Appellant’s points of error three through six; however, I write separately to express my opinion that the trial court erred by failing to permit Appellant to withdraw his plea of guilty.
See
art. 26.13(2), Tex. Code Crim. Proc. Ann. (Vernon Supp. 2009). As stated in the majority opinion, the trial court implicitly found that it had “accepted” the plea agreement, making it a binding agreement between the State and Appellant.
State v. Moore,
240 S.W.3d 248 (Tex.Crim.App. 2007). However, rather than follow that agreement as to punishment, the trial court found Appellant violated a non-existent condition that he be a “viable” witness. In doing so, the trial court implicitly rejected the negotiated plea bargain agreement and was, therefore, statutorily obligated to permit Appellant to withdraw his plea of guilty. Having failed to do so, the trial court erred. I would sustain Appellant’s second issue and reverse and remand.
Patrick A. Pirtle
Justice | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1875907/ | 260 S.W.3d 912 (2008)
Earl A. TURNER, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 90355.
Missouri Court of Appeals, Eastern District, Division Two.
September 2, 2008.
*913 Michelle Murphy Rivera, St. Louis, MO, for appellant.
Shaun J. Mackelprang, Dora A. Fichter, Jefferson City, MO, for respondent.
Before ROY L. RICHTER, P.J., LAWRENCE E. MOONEY, J, and GEORGE W. DRAPER III, J.
ORDER
PER CURIAM.
Earl A. Turner (Movant) appeals from the judgment denying his motion for postconviction relief under Rule 24.035 without an evidentiary hearing. Movant contends that the motion court clearly erred in denying his motion because plea counsel coerced his guilty plea by failing to be prepared for trial.
The motion court's findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value and we affirm by written order. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609779/ | 254 Kan. 454 (1994)
866 P.2d 1029
IN THE MATTER OF THE ADOPTION OF BABY BOY B.
No. 68,762
Supreme Court of Kansas.
Opinion filed January 21, 1994.
Paula K. Casey, of Alexander, Floodman & Casey, Chartered, of Wichita, argued the cause and was on the brief for appellant natural mother.
Kevin M. Hill, of Finley, Miller, Cashman, Weingart & Schmitt, of Hiawatha, argued the cause, and John L. Weingart, of the same firm, was with him on the briefs for appellants/prospective adoptive parents.
Elizabeth Lea Henry, of Fletcher & Mathewson, P.A., of Wichita, argued the cause and was on the brief for appellee natural father.
*455 The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an appeal from the district court's order denying the petition of the couple who sought to adopt Baby Boy B. The natural father had opposed their petition, and they had sought to terminate his parental rights on the ground that he had failed, without reasonable cause, to provide support for the mother during the six months prior to the child's birth. The Court of Appeals affirmed the district court's denial of the petition in an unpublished opinion filed June 18, 1993. We granted the couple's petition for review.
Baby Boy B. was born on March 20, 1992. His mother and father were not married. His mother consented to his adoption by the couple; his father did not.
The couple who sought to adopt Baby Boy B. filed a petition for adoption in the district court and were granted custody of the child pending the hearing on their petition. Their amended petition for adoption alleges that the child's father "has failed and refused to consent to this adoption." The couple sought to have his parental rights terminated. In his answer, the father admitted being the father of the child and asserted his rights as a parent.
The hearing on the couple's petition was held on May 7, 1992, with the Honorable Keith W. Sprouse presiding. The theory which the couple sought to develop was that the father's consent was unnecessary, pursuant to K.S.A. 1992 Supp. 59-2136(h)(4), for the reason that after having knowledge of the pregnancy, he failed without reasonable cause to provide support for the mother during the six months prior to the child's birth. At the conclusion of the hearing, the district court judge took the matter under advisement.
On June 2, 1992, the Honorable Paul E. Miller was assigned to "hear and determine" this case. The record does not contain an explanation for the change.
On July 16, 1992, a journal entry of judgment was filed, denying the petition for adoption, setting aside the temporary custody order, and placing custody of the child with the father. The district court denied the couple's request for a stay pending appeal, and it was ordered that the transfer of custody occur on July 17, 1992.
*456 Two issues are raised by the couple in this appeal:
1. What is the proper standard of appellate review?
2. Did the father provide support to the mother during the six-month period before the child was born within the meaning of K.S.A. 1992 Supp. 59-2136(h)(4)?
We will first address the issue of the proper standard of appellate review. In the only published opinion reviewing a district court's decision on parental rights pursuant to K.S.A. 1992 Supp. 59-2136(h)(4), the Court of Appeals stated: "The controlling issue is whether the findings of fact by the trial court are supported by substantial competent evidence of clear and convincing quality." In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 312, 822 P.2d 76 (1991). The requirement that the evidence be "clear and convincing" was specified by the legislature. In Baby Boy S., the Court of Appeals applied general principles which had been stated by this court in In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987). 16 Kan. App. 2d at 312. In F.A.R., we held:
"In an adoption proceeding, the question of whether an individual has failed or refused to assume the duties of a parent for the required period of time pursuant to K.S.A. 1986 Supp. 59-2102(a)(3) is ordinarily a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing." Syl. ¶ 1.
"When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below." Syl. ¶ 2.
"Generally speaking, adoption statutes are strictly construed in favor of maintaining the rights of natural parents in those cases where it is claimed that, by reason of a parent's failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required. [Citation omitted.]" Syl. ¶ 5.
"In making a determination in an adoption proceeding of whether a non-consenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered." Syl. ¶ 6.
"Before a child can be adopted without the consent of one of the natural parents, the facts warranting an exception as prescribed by statute must be clearly proven." Syl. ¶ 10.
*457 On the appeal of the present case, the natural father advocates that the standard of review which this court applied in F.A.R. and which the Court of Appeals adopted in Baby Boy S. is controlling in the present case. The couple and the mother rely on the rule that review should be de novo when the controlling facts are presented by a written record, the reason being that the appellate court has as good an opportunity to consider the record and determine the facts as did the trial court.
There is an exception to the general rule that an appellate court will decide the facts for itself on a written record. The exception has been applied where the testimony of one witness must be credited over that of another. In Boese v. Crane, 182 Kan. 777, 780, 324 P.2d 188 (1958), this court stated the limited application of the rule:
"This rule, however, is not universally applied under all conditions. It has been applied where all the evidence is in written form [citation omitted]; where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form [citation omitted]; but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others [citations omitted]."
The Court of Appeals in the present case noted:
"The record available to Judge Miller is similar to the record provided to the district court in Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P.2d 180 (1958). Karlan was a replevin action decided on the basis of documentary evidence, including a written stipulation as to the testimony that specified witnesses would give if they were present at trial. The Supreme Court described the nature of that stipulation:
`It should be noted at this point that the stipulation last above mentioned contains statements by witnesses for both the plaintiff and the defendants; that it gives their respective views on controverted phases of the lawsuit; and that in no sense is it to be regarded as an agreed statement of facts. The most that can be said for it is that, while it presented the evidence of each witness in documentary form, it permitted the court to weigh the testimony of all witnesses and decide for itself the weight to be given such testimony in reaching its decision on the decisive issues involved.' 182 Kan. at 757.
In view of the record presented to the district court, the Supreme Court rejected a request for de novo review:
`In reaching the conclusions last above announced we have not overlooked contentions strenuously advanced by appellants to the effect that since the *458 only evidence of record is in documentary form this court is required to decide for itself what the facts established, substantially in the same manner it would if this were an original case. We have so held. [Citations omitted.] It must be remembered, however, such rule is subject to some elasticity under certain conditions. In that connection we have pointed out that even though we determine the facts from the printed page we cannot disregard the testimony of one witness and accept as true the testimony of others but, under such circumstances, should follow the ordinary rule, giving credence where the trial court gave credence, unless its findings of fact are illogical, improbable and unwarranted.' 182 Kan. at 760."
In their petition for review and in a supplemental brief filed in this court, the couple contend that the record in this case does not contain conflicting testimony. They argue, therefore, that the present case fits the rule for de novo review of decisions based on a written record rather than the exception for a written record containing conflicting testimony. They focus on the example of disputed facts set out in the Court of Appeals' opinion: "For example, natural father testified that he offered to give money to natural mother, but that she refused to accept the funds. Natural mother testified that natural father merely offered to loan her money, on the condition that she not give the baby up for adoption."
The couple contend that the testimony of the mother and father is not conflicting in that he stated what he said and she stated how she interpreted what he said. Their argument is okay as far as it goes. The issue on which the father and mother were testifying is whether or not the father offered support. If, as the couple advocate, the district court had simply accepted the testimony of both witnesses as true, this factual issue would not have been resolved. In order for the district court to have accepted as true both witnesses' testimony and made this factual determination, it would necessarily have accepted as fact that the father offered support because that is what he testified he did. The unavoidable corollary is that the mother misinterpreted his intent when she assumed that the offer was conditional.
In addition, the couple have focused exclusively on one portion of the testimony. Thus, they have not demonstrated that there are not other instances of testimony "where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others." Boese v. Crane, 182 Kan. at *459 780. In fact, there are other instances where the testimony of these witnesses disputes essential facts. For example, the mother testified that she used her food stamps to buy food for the father, his three boys, and herself in September and October 1991. The father testified that she used her food stamps to buy only their milk and that she sold the remaining stamps to her former husband.
The Court of Appeals was not impressed with the cases relied upon by the appellants, stating:
"The cases relied on by appellants to justify de novo review are distinguishable. Stith v. Williams. 227 Kan. 32, 605 P.2d 86 (1980), was a land ownership case tried to the district court on an agreed statement of facts. 227 Kan. at 34. Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 336, 592 P.2d 74 (1979), a declaratory action arising out of a lease, was `submitted to the trial court on the oral statements and stipulations of counsel and documentary evidence. No witnesses testified.' Finally, In re Estate of Broadie, 208 Kan. 621, 493 P.2d 289 (1972), concerned the validity of an antenuptial agreement and a consent to a will. The Supreme Court concluded that the uncorroborated claims of a widow that her husband had undervalued his property were insufficient to set aside an antenuptial agreement on the grounds of fraudulent concealment. The Broadie decision mentions only the deposition testimony of the widow. Although a de novo review is employed, the decision does not indicate that the record contained conflicting testimony."
The Court of Appeals reviewed Keimig v. Drainage District, 183 Kan. 12, 325 P.2d 316 (1958), and found it is procedurally dissimilar to the present case and not controlling authority for de novo review in the present case. It stated:
"Notably lacking in Keimig is a clear indication that the court resolved factual disputes arising from conflicting testimony.... The Keimig opinion does not reflect a process of weighing evidence, preferring one witness's testimony over that of another, or disregarding one witness in favor of another. See North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 759, 352 P.2d 1060 (1960) (noting that Keimig references numerous authorities for the rule permitting de novo review of stipulated facts)."
In Giblin v. Giblin, 253 Kan. 240, 253-54, 854 P.2d 816 (1993), we said:
"The rationale behind not allowing appellate de novo determination of facts in a case involving witness testimony is that we do not weigh conflicting testimony. There was no conflicting evidence presented, written or oral, to contradict York's testimony about her conversations with Readey and Linville. *460 Thompson did not even cross-examine York. York's testimony is arguably no different than the affidavits submitted. Additionally, at the November 6, 1991, hearing, the parties agreed there was sufficient written evidence for the trial court to decide the case. The trial court even noted this in its memorandum decision. It was at the court's request that York testified. In this situation, we can determine de novo what the facts establish.
"The appellees also contend this court cannot determine de novo what the facts establish because the standard of review is abuse of discretion. The appellants' argument concerns the manner in which this court reviews the evidence, not the standard of review. Abuse of discretion whether the trial court's actions were arbitrary, fanciful, or unreasonable or whether any reasonable person would agree with the trial court's actions necessitates a review of the evidence. In so doing, this court either can determine de novo what the facts establish or this court can determine if the statutory requirement of having a reasonable basis in fact has been met. Abuse of discretion and a de novo determination of what the facts establish are not necessarily mutually exclusive."
We agree with the Court of Appeals that the record does include conflicting testimony, and thus the standard of review is whether substantial competent evidence exists to support the district court's findings.
We therefore must determine whether substantial competent evidence exists to support the district court's finding that the father did provide support to the mother during the six-month period before the child was born, within the meaning of K.S.A. 1992 Supp. 59-2136(h)(4). The district court construed K.S.A. 1992 Supp. 59-2136(h)(4) to require the father to provide support "of some consequence and reasonable under all the circumstances existing in this case." The couple contended that the district court used an incorrect standard of "support" in applying the statute.
K.S.A. 1992 Supp. 59-2129(a)(1) and (2) provide: "Consent to an independent adoption shall be given by: (1) The living parents of the child; or (2) one of the parents of the child, if the other's consent is found unnecessary under K.S.A. 59-2136." K.S.A. 1992 Supp. 59-2136(a) provides: "The provisions of this section shall apply where a relinquishment or consent to an adoption has not been obtained from a parent and K.S.A. [1992 Supp.] 59-2124 and [K.S.A. 1992 Supp.] 59-2129, and amendments thereto, state that the necessity of a parent's relinquishment or consent can be determined under this section." K.S.A. 1992 Supp. 59-2136(h) provides:
*461 "When a father or alleged father appears and asserts parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act. If a father desires but is financially unable to employ an attorney, the court shall appoint an attorney for the father. Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
(1) The father abandoned or neglected the child after having knowledge of the child's birth;
(2) the father is unfit as a parent or incapable of giving consent;
(3) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth;
(4) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior the child's birth;
(5) the father abandoned the mother after having knowledge of the pregnancy;
(6) the birth of the child was the result of rape of the mother; or
(7) the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition.
"In making a finding under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child's birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent."
The legislature limited the circumstances in which an adoption may be granted without the consent of the father to those seven specified in 59-2136(h)(1) through (7). In the only reported Kansas appellate opinion which has construed 59-2136(h)(4), In re Adoption of Baby Boy S., the Court of Appeals stated:
"This case is analogous to cases where the trial court must determine if a parent has failed or refused to assume the duties of a parent for two consecutive years prior to an adoption pursuant to K.S.A. 1990 Supp. 59-2136(h)(7) (repealing and replacing K.S.A. 1989 Supp. 59-2102[a][3]). The tests and rules applicable in those instances are equally applicable when a trial court must determine whether a father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth." 16 Kan. App. 2d at 313.
*462 The "tests and rules" applicable to subsection (h)(7) are those which are set out in this court's decision in F.A.R., 242 Kan. 231. In F.A.R., we held that neither the fitness of the parent nor the best interests of the child is a controlling factor. We said:
"[T]his court has consistently held that adoption statutes are to be strictly construed in favor of maintaining the rights of a natural parent, especially where it is claimed that consent to adoption is not required due to the natural parent's failure to fulfill parental obligations. E.g., In re Sharp, 197 Kan. 502, 504, 419 P.2d 812 (1966). This court has also held that a parent's reasons, if any, for inaction may be properly considered by the court in support of an answer to an adoption petition. In re Sharp, 197 Kan. at 508.
....
"In considering whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered.... [I]t is for the trial court to determine the sufficiency of such efforts.... Whether the efforts made by appellee were sufficient to meet his parental obligations under all the circumstances will be considered in connection with appellant's attack upon the sufficiency of the evidence. We hold that it was not error for the trial court to take into consideration the limiting aspects of appellee's confinement in determining whether he had failed to assume his parental duties.
"... The ultimate finding that the natural mother interfered with appellee's rights to maintain contact with his sons was supported by the evidence, when it is viewed in the light most favorable to appellee. .. . The record contains support for the trial court's finding that the natural mother interfered with appellee's rights to keep in contact with his sons. However, the court also recognized the natural reluctance of the mother to take two small children to the prison to visit and was sympathetic to her. It does not appear that the trial judge's finding of fact on this point was a principal factor in his ultimate decision in this case. It merely was one of the circumstances considered in the overall decision and was certainly not a controlling factor." 242 Kan. at 235-37.
The couple urge this court to measure the adequacy of the father's support of the mother by reference to the Internal Revenue Code or the Kansas Child Support Guidelines (Administrative Order No. 83 [1993 Kan. Ct. R. Annot. 71]) or by balancing one party's need against the other's ability to pay, as if computing an award of maintenance.
In this regard, the Court of Appeals stated:
"These arguments are not persuasive. Appellants offer no authority that would justify the court in adding to the statute a rigid standard which the legislature has not chosen to use. Had the legislature wished to incorporate the Internal Revenue Code or the Child Support Guidelines into the statute, *463 it could have done so. In fact, a recent amendment to 59-2136, not applicable here, creates a rebuttable presumption that a father has failed or refused to assume the duties of a parent if he has `knowingly failed to provide a substantial portion of the child support as required by judicial decree.' K.S.A. 1992 Supp. 59-2136(h). That amendment references a child support order, not merely an amount which might be calculated on the basis of the guidelines."
The Court of Appeals agreed that the decision in Baby Boy S. is controlling in the present case, stating:
"The case-by-case approach adopted in In re Adoption of Baby Boy S., In re Adoption of F.A.R., and In re Adoption of B.J.H. requires that we reject a rigid test for measuring adequate support. The language of the statute does not require an inflexible level of support. In fact, In re Adoption of F.A.R. instructs `the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability.' 242 Kan. at 236. The trial court here did not err in applying a `reasonable under all the circumstances' test to decide natural father had provided support to natural mother."
We agree. In the present case, the focus is on the wording of 59-2136(h)(4). As the father correctly points out, the legislature did "not state that it must be shown that the father failed to support the mother but rather that he failed to provide support for her." The language used indicates that some but not a specific amount of support is required. The father's argument is that "support" within the meaning of this statute is an individualized concept and that it need be only a contribution toward, rather than the full amount required for, the mother's living expenses. That the legislature contemplated only a reasonable contribution is supported, not only with respect to the wording of subsection (h)(4), but also when all parts of (h) are read together. Other parts require the district court to find, for example, that the father raped the mother, that the father abandoned the mother or the child, or that the father is unfit as a parent. A father who contributed to the support of the mother but failed to fully support her before the birth of the child would not seem to be in the same category or to deserve the same sanction having his parental rights terminated as those who raped and abandoned and were unfit. The reasoning of Baby Boy S. and F.A.R., in measuring the adequacy of the support on a case-by-case basis *464 according to the circumstances in each case, applies in the present case. As the trial court correctly held:
"`Support,' as that term is set forth in K.S.A. [1992 Supp.] 59-2136(h)(4), does not mean all support of the mother, nor is it sufficient if it is incidental or inconsequential in nature. The `some' support standard suggested by counsel for the natural father seems reasonable to the Court. Support must be of some consequence and reasonable under all of the circumstances existing in the case."
The test to be applied in determining if the natural father's consent is necessary under K.S.A. 1992 Supp. 59-3136(h)(4) is one of reasonableness under all the relevant surrounding circumstances existing in the case.
In the present case, the surrounding circumstances relevant to the father's providing support to the mother during the last six months of her pregnancy can be summarized as follows: During the fall of 1991, the mother and father lived together for approximately six weeks. Each had three children by a previous marriage. The father's children lived with him. During the six-month period before the child whose adoption is at issue was born, the mother's three children lived with their father, her former husband. When she was not living with the father, the mother lived with her former husband. The mother did not consider that the father was contributing to her support when she lived at his house because he would have incurred the rent and utilities whether she had been there or not. She estimated that the father spent during that time $75-80 on her for entertainment and restaurant meals and $100 on maternity clothes. She testified that in September and October 1991 she bought food for the father, his children, and herself with her food stamps. The father testified that she bought their milk with her food stamps and sold the remaining food stamps to her former husband.
The record contains four checks which total $130 that the father wrote to the mother in the fall of 1991. The mother testified that she could not recall the reasons for the payments.
The mother became employed in mid-October. In November, she no longer received food stamps because her income exceeded eligibility. On Thanksgiving Day, she moved in with her sister. The mother paid rent to her sister.
*465 The State paid her medical expenses. The mother testified that she and the father discussed early in her pregnancy the possibility of "taking on the bill ourselves" so that she could go to the medical care provider of her choice, but that "we chose not to do it that way."
After the mother moved in with her sister, she continued to see the father. She spent Christmas with him at his parents' home, and they attempted to get married, but they had failed to obtain a marriage license. He gave her boots and a sweater for Christmas. In January, he wrote a check to her for $31. He took her out to eat approximately once a week in February and March. He sent her flowers on one occasion. They used her car when they went out together, and he filled her car with gasoline approximately three times in February.
The mother testified that several weeks before Baby Boy B. was born, the father offered her $1,000 from his anticipated income tax refund. He also offered to pay her approximately $1,100 for living expenses for the month after the baby was born. She indicated that she refused these offers of assistance because she believed them to be loans conditioned on her not giving up the baby for adoption. The father testified that the offers were unconditional and that he never followed through on them because the mother refused the offers. The father testified that he assisted her to the extent she would allow him to do so. He further testified that the mother said she could not give the baby up for adoption if she took money from him.
It is clear from the record that the mother has continuously insisted that the baby be given up for adoption. The father, to the contrary, has steadfastly insisted on raising the child just as he is raising three children from a previous marriage. This was the major source of dissension between the two and was the reason stated by the mother for not accepting the assistance offered by the father. The district court properly considered her refusal as a factor in determining if the father provided support to the mother. The district court found her refusal a reasonable cause for the natural father's not paying more support than he did.
Reviewing the evidence in the light most favorable to the father, who prevailed in the district court, we conclude that substantial *466 competent evidence exists to support the holding of the district court.
The judgments of the Court of Appeals and the district court are affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609815/ | 866 P.2d 494 (1994)
125 Or. App. 613
STATE of Oregon, Respondent,
v.
David H. ESMOND, Appellant.
CM92-0565; CA A75640.
Court of Appeals of Oregon.
Argued and Submitted July 27, 1993.
Decided January 5, 1994.
Eric R. Johansen, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Janet A. Klapstein, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before DEITS, P.J., and ROSSMAN and DURHAM, JJ.
*495 ROSSMAN, Judge.
Defendant was convicted of escape in the second degree, ORS 162.155(1)(c), after absconding from court-ordered home detention. We affirm.
On February 7, 1992, defendant pled guilty to two counts of menacing and was placed on probation. One of the conditions of probation required him to complete 90 days "in [Benton County Community Correction (BCCC) ] home detention program subject to direction of BCCC[.]" On the 53rd day of his home detention, defendant left his residence without permission and then left town. When apprehended, he was charged with escaping from a correctional facility and violating the terms of his probation. He unsuccessfully moved for a judgment of acquittal and was found guilty of both charges.
On appeal, defendant argues that his premature departure from home detention does not constitute "escape from a correctional facility," ORS 162.155(1)(c), because he "was never sentenced to any correctional facility to begin with, * * * was never actually or constructively in the custody of a correctional facility," and, therefore, could not have "escaped" therefrom.
A "correctional facility" is defined as "any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order." ORS 162.135(2). "Escape" is defined as
"the unlawful departure of a person from custody or a correctional facility. * * * [It] does not include failure to comply with provisions of a conditional release in ORS 135.245." ORS 162.135(5).
The conditional release decisions addressed in ORS 135.245 pertain to pretrial releases. Accordingly, we have held that failure to comply with a pretrial release agreement does not constitute escape. State v. Wilde, 123 Or.App. 493, 862 P.2d 105 (1993).
This case, however, does not involve pretrial release. See State v. Schaffer, 124 Or. App. 271, 862 P.2d 107 (1993) (defendant sentenced to courtroom confinement has not been conditionally released).[1] Here, defendant was originally convicted of menacing and ordered to complete 90 days in a home detention program. As a participant in that program, he was booked into the Benton County Correctional Facility, given an alternate cell assignment and advised that departure from his residence without approval from his probation officer would constitute escape from custody. During the relevant 90-day period, he was in the constructive custody of the Benton County Correctional Facility, regardless of the fact that he was physically housed elsewhere. State v. Sasser, 104 Or.App. 251, 799 P.2d 1146 (1990), rev. den. 311 Or. 151, 806 P.2d 129 (1991); State v. Torgerson, 98 Or.App. 248, 778 P.2d 991 (1989). Because defendant's unlawful departure from his residence constituted "escape," the trial court did not err in denying his motion for judgment of acquittal.
Affirmed.
NOTES
[1] In Schaffer, we should have noted that the "conditional release" exception in escape cases, ORS 162.135(5), did not apply because the defendant in that case was sentenced. He was not failing to comply with a pre-trial release, to which ORS 135.245 applies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609862/ | 866 P.2d 1 (1993)
STATE of Utah, Plaintiff and Appellee,
v.
Robert A. LUCERO, Defendant and Appellant.
No. 920821-CA.
Court of Appeals of Utah.
November 23, 1993.
Patrick L. Anderson, Salt Lake City, for defendant and appellant.
David E. Yocum and C. Dane Nolan, Salt Lake City, for plaintiff and appellee.
*2 Before GREENWOOD and JACKSON, JJ., and GARFF[1], Senior Judge.
OPINION
JACKSON, Judge:
Robert A. Lucero appeals a judgment and sentence for conviction of possession of a deadly weapon with intent to assault in violation of Utah Code Ann. § 76-10-507 (1992), and also appeals an order denying a motion for new trial. We affirm.
FACTS
In an information dated August 5, 1992, the State charged Lucero with one count of possession of a deadly weapon with intent to assault, a class A misdemeanor. The substance of the charge was that Lucero unlawfully possessed a deadly weapon, a screwdriver, with the intent to unlawfully assault a deputy sheriff during a traffic stop. A jury trial was held and before retiring for deliberation, the jury was fully instructed on the elements of the offense. All jury instructions were in writing and were provided to the jury. During deliberation and while Lucero and counsel were absent, the jury sent a written question to the judge asking, "[i]s intent against the law?"[2] The trial judge, without consulting Lucero, his attorney, or the prosecutor, responded in writing, "[i]t is illegal to possess a deadly weapon with intent to assault. Intent without a deadly weapon is not illegal."
After the trial judge sent this supplemental instruction to the jury, and upon the return of the parties, the judge called Lucero, his attorney, and the prosecutor into the courtroom to put the jury's question and the instruction into the record. Lucero's attorney stated that he was concerned about the second sentence of the instruction but that it was "adequate." He stated, "I can't propose a better wording, anyway." Later, when he had been instructed that the jury had reached a verdict, the trial judge again gave Lucero and his attorney the opportunity to place any objections into the record. Lucero's attorney did not object to any of the instructions or the fact that the trial judge had communicated with the jury without consulting him.
The jury returned a guilty verdict. Lucero later filed a motion for new trial on the grounds that the supplemental jury instruction was an incorrect statement of the law and that the judge improperly communicated with the jury during their deliberations. In support of his motion for new trial, Lucero submitted an affidavit from one of the jurors. The trial court denied the motion, and Lucero appeals his conviction and the trial court's denial of the motion for new trial.
ISSUES
Lucero raises the following issues: (1) whether the trial judge's supplemental instruction to the jury during its deliberations was an incorrect and misleading statement of the law; (2) whether the trial judge improperly communicated with the jury during its deliberations in violation of Rule 17(m) of the Utah Rules of Criminal Procedure; and (3) whether the trial judge improperly refused to consider the affidavit of a juror in ruling on Lucero's motion for a new trial.[3]
ANALYSIS
Jury Instruction
Lucero asserts that the trial judge's supplemental instruction to the jury *3 during deliberation was an incorrect and misleading statement of the law. A challenge to a jury instruction as incorrectly stating the law presents a question of law, which we review for correctness. State v. Archuleta, 850 P.2d 1232, 1244 (1993), cert. denied, ___ U.S. ___, 114 S. Ct. 476, 126 L. Ed. 2d 427 (1993). Jury instructions must be read and evaluated as a whole. State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989). They must accurately and adequately inform a criminal jury as to the basic elements of the crime charged. State v. Roberts, 711 P.2d 235, 239 (Utah 1985). However, if taken as a whole they fairly instruct the jury on the law applicable to the case, the fact that one of the instructions, standing alone, is not as accurate as it might have been is not reversible error. State v. Brooks, 638 P.2d 537, 542 (Utah 1981); State v. Tennyson, 850 P.2d 461, 470 (Utah App.1993).
Lucero claims the second sentence of the supplemental jury instruction, "[i]ntent without a deadly weapon is not illegal," misled the jury because it was not clear from the sentence that Lucero must have had intent to assault. We agree that the second sentence of the jury instruction, viewed in isolation, may be confusing. However, when viewed with the first sentence, "[i]t is illegal to possess a deadly weapon with intent to assault," it is clear that the word "intent" in the second sentence refers to intent to assault. Moreover, in considering this supplemental instruction along with the other jury instructions, as we are required to do, the jury instructions properly informed the jury of the elements of the crime charged. Jury Instruction 15 states:
To convict the defendant, Robert Lucero, of possession of a deadly weapon with intent to assault, each of the following elements must be proved beyond a reasonable doubt:
One: That on or about July 14, 1992;
Two: In Salt Lake County, Utah;
Three: The defendant, Robert A. Lucero;
Four: Did have upon his person a dangerous weapon with intent to unlawfully assault another.
If you find from the evidence that the elements have been proved beyond a reasonable doubt, then it is your duty to return a verdict of guilty; however, if you have a reasonable doubt as to one or more of the elements, it is your duty to return a verdict of not guilty.
This instruction clearly states that the jury must find intent to assault, not intent to possess a deadly weapon. Accordingly, viewing the jury instructions as a whole, we conclude the sentence, "[i]ntent without a deadly weapon is not illegal," was not an incorrect or misleading statement of the law.
Communication with Jury
Lucero also alleges the trial judge improperly communicated with the jury during its deliberations in violation of Rule 17(m) of the Utah Rules of Criminal Procedure. Rule 17(m) provides:
After the jury has retired for deliberation, if they desire to be informed on any point of law arising in the cause, they shall inform the officer in charge of them, who shall communicate such request to the court. The court may then direct that the jury be brought before the court where, in the presence of the defendant and both counsel, the court shall respond to the inquiry or advise the jury that no further instructions shall be given. Such response shall be recorded. The court may in its discretion respond to the inquiry in writing without having the jury brought before the court, in which case the inquiry and the response thereto shall be entered in the record.
Lucero asserts that although not specifically stated, this rule requires the trial judge to consult with Lucero, Lucero's counsel, and the prosecutor before communicating with the jury in writing. In support of his position, Lucero cites cases from other jurisdictions which hold that it is reversible error for a trial judge to communicate with the jurors after they have retired to deliberate unless the defendant and counsel have been notified and given an opportunity to be present. See State v. Fletcher, 149 Ariz. 187, 717 P.2d 866 (1986); People v. Leonardo, 687 P.2d 511 (Colo.Ct.App.1984), rev'd on other grounds, *4 728 P.2d 1252 (Colo.1986); Cavanaugh v. State, 102 Nev. 478, 729 P.2d 481 (1986); Fisher v. State, 736 P.2d 1003 (Okla.Crim. App.1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2833, 100 L. Ed. 2d 933 (1988); State v. Allen, 50 Wash.App. 412, 749 P.2d 702 (1988).
However, these states all have case law or statutes that either prohibit the judge from communicating with the jury in writing or specifically require the trial judge to consult with the defendant and counsel before communicating with the jury in writing.[4] Utah's rule is not so narrow. Pursuant to Rule 17(m), the court may respond to an inquiry from a jury in writing without having the jury brought before the court. If the judge chooses this course, he or she must at some point enter the question and answer into the record, giving counsel opportunity to object to the instruction. Utah R.Crim.P. 17(m).
This is precisely what the trial judge did in this case. Upon the return of the parties, the judge called Lucero, his attorney, and the prosecutor into the courtroom to put into the record the jury's question and the instruction. Rule 17(m) does not require the judge to request input from counsel before giving the instruction; rather, it requires the judge to put the question and response into the record. Accordingly, we find the judge's issuance of the supplemental instruction to be proper.[5]
Juror Affidavit
Lucero also alleges that the trial judge improperly refused to consider a juror affidavit in ruling on Lucero's motion for a new trial. Rule 606(b) of the Utah Rules of Evidence allows testimony on the question of "whether any outside influence was improperly brought to bear upon any juror." However, Rule 606(b) provides that evidence by affidavit will not be admitted as to "any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror."
All inquiries into the thought processes of the jurors are improper because they undermine the integrity of the verdict. State v. Thomas, 830 P.2d 243, 248 n. 4 (Utah 1992); State v. Gee, 28 Utah 2d 96, 498 P.2d 662, 665-66 (1972). An affidavit of a juror will not be received to show the juror's opinions, surmises, and processes of reasoning in arriving at a verdict. Thomas, 830 P.2d at 248 n. 4. "Rule 606(b) limits testimony to the objective existence of extraneous prejudicial information or an outside influence; jurors may not testify as to how they or the other jurors were subjectively affected by the extraneous information." Id.
In support of his motion for a new trial, Lucero submitted an affidavit from one of the jurors. The affidavit did not allude to extraneous information or influence, in conformance with Rule 606(b), but rather outlined the alleged influence of the supplemental instruction on the jury and the jury's process of reasoning. Because the affidavit contains information concerning the jury's deliberations, the trial court properly refused to consider it.[6]
CONCLUSION
The trial judge's supplemental jury instruction to the jury during deliberation was *5 not an incorrect and misleading statement of the law and the trial judge did not violate Rule 17(m) in submitting it to the jury. Further, the trial judge properly refused to consider the affidavit of a juror in ruling on Lucero's motion for a new trial. Accordingly, we affirm.
GREENWOOD, J., and GARFF, Senior Judge, concur.
NOTES
[1] Senior Judge Regnal W. Garff, acting pursuant to appointment under Utah Code Ann. § 78-3-24(10) (1992).
[2] The trial judge received the question from the jury during a twenty minute break for all parties to get dinner. Rather than waiting for counsel to return, the judge answered the question and notified counsel upon their return.
[3] The State argues that Lucero did not properly preserve the first two issues for appeal because counsel for Lucero did not properly object to the trial judge's communication with the jury or to the content of the supplemental jury instruction. However, even if we determined Lucero did not properly object, the trial court's consideration and ruling on the merits of the issues addressed in Lucero's motion for a new trial sufficiently preserved those issues for appeal. See State v. Seale, 853 P.2d 862, 870 (Utah), cert. denied, ___ U.S. ___, 114 S. Ct. 186, 126 L. Ed. 2d 145 (1993); State v. Belgard, 830 P.2d 264, 266 (Utah 1992); State v. Johnson, 821 P.2d 1150, 1161 (Utah 1991).
[4] For example, Rule 22.3 of the Arizona Rules of Criminal Procedure states that supplemental jury instructions may be given only after notice to the parties. Fletcher, 717 P.2d at 870. Colorado and Nevada case law requires the court to contact counsel before answering questions by the jury during deliberation. Leonardo, 687 P.2d at 512; Cavanaugh, 729 P.2d at 485. An Oklahoma statute requires the trial court to call the jury back into the courtroom in the presence of, or after notice to, the district attorney and defense counsel before the judge may answer any question submitted by a jury. 22 O.S.1981 § 894. Washington courts have held that no communication between the court and jury is proper in the absence of the defendant. Allen, 749 P.2d at 706.
[5] Even if the communication had been improper, it was harmless error because the supplemental instruction was accurate. See State v. Kozik, 688 P.2d 459, 461 (Utah 1984) (error must be substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a different result).
[6] We have also reviewed Lucero's allegation that the submission of an allegedly "erroneous" verdict form was plain error and find it to be without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561278/ | J. A21031/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
GEICO ADVANTAGE INSURANCE : IN THE SUPERIOR COURT OF
COMPANY, AS SUBROGEE OF ITS : PENNSYLVANIA
INSURED, MONIL PATEL :
:
v. :
:
MODERN AUTO CRAFTERS, : No. 3489 EDA 2019
:
Appellant :
Appeal from the Judgment Entered November 22, 2019,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 180302579
BEFORE: LAZARUS, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED AUGUST 28, 2020
We find that this appeal concerning Section 9-605 of the Philadelphia
Towing Ordinance properly falls within the purview of the Commonwealth
Court’s jurisdiction. See Hammer v. Nikol, 659 A.2d 617, 619 n.4
(Pa.Commw.Ct. 1995) (noting that appeal originally filed in this court was
properly transferred to the Commonwealth Court pursuant to Pa.R.A.P. 751
and 752, because one of the issues involved a violation of the Philadelphia
Towing Ordinance); 42 Pa.C.S.A. § 762(a)(2).
Accordingly, we transfer this case to the Commonwealth Court.
Appellant’s application for oral argument is dismissed as moot.
J. A21031/20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/20
-2- | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1000522/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7103
GEORGE LUTHER COOK, III,
Petitioner - Appellant,
versus
RONALD ANGELONE, Director of the Virginia De-
partment of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior Dis-
trict Judge. (CA-99-105-2)
Submitted: December 16, 1999 Decided: December 29, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Dismissed by unpublished per curiam opinion.
George Luther Cook, III, Appellant Pro Se. Steven Andrew Witmer,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Luther Cook, III, seeks to appeal the district court’s
order denying his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 1999). We have reviewed the record and the district
court’s opinion accepting the recommendation of the magistrate
judge and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal on the reasoning of
the district court. See Cook v. Angelone, No. CA-99-105-2 (E.D.
Va. July 29, 1999). We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000567/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4433
THOMAS JEFFERSON PRICE, III, a/k/a
Thomas Price,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-98-104)
Submitted: November 30, 1999
Decided: January 6, 2000
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michael A. Grace, MICHAEL A. GRACE, P.A., Winston-Salem,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Benjamin H. White, Jr., Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Thomas Jefferson Price, III, pled guilty without a plea agreement
to conspiracy to possess methamphetamine with intent to distribute,
see 21 U.S.C. § 846 (1994), and three counts of methamphetamine
distribution. See 21 U.S.C. § 841(a) (1994). He appeals the 330-
month sentence imposed by the district court, arguing that the district
court erred when it refused to compel the government to move for a
substantial assistance departure pursuant to U.S. Sentencing Guide-
lines Manual § 5K1.1, p.s. (1998). We affirm.
Shortly before he was scheduled to go to trial, Price's attorney dis-
cussed a possible guilty plea with the Assistant United States Attor-
ney handling the case, David Folmar, and learned that, if Price
decided to plead guilty and cooperate, the government would be inter-
ested in pursuing Price's sources. To that end, Folmar said the gov-
ernment would try to have Price debriefed and would try to make a
case against his sources if possible. Price entered a guilty plea and
was debriefed a few days before his first scheduled sentencing in
October 1998. Sentencing was continued to November, on Price's
motion, to give the government more time to decide whether a sub-
stantial assistance motion would be made. Because the investigation
had not progressed by then, sentencing was again continued to Febru-
ary 1999. All sentencing issues were resolved at the February hearing,
leaving only a dispute as to whether the government had induced
Price's guilty plea through an oral agreement to use any information
he provided in a further investigation and, possibly, move for a depar-
ture under § 5K1.1 if the information proved helpful.
At the final sentencing hearing in May 1999, Folmar described the
events leading to Price's guilty plea, and the reasons for the subse-
quent delay in investigating Price's sources. The government noted
that a substantial assistance motion was still possible because Rule
2
35(b) of the Federal Rules of Criminal Procedure now permits the
court to consider pre-sentence assistance when deciding a Rule 35(b)
motion. The district court then determined that the government had
not entered into any agreement, oral or written, that obligated it to
make a § 5K1.1 motion, that no contract had been breached, and that
there was no evidence of bad faith on the part of the government. The
court denied Price's motion to compel the government to file a
§ 5K1.1 motion.
On appeal, Price claims that the court erred because his guilty plea
was induced by an oral agreement on the part of the government to
give him the opportunity to render substantial assistance. The record
discloses that, to the extent there was such an oral agreement, Price
received the benefit of it, because he was debriefed and was given the
opportunity to provide substantial assistance.
Price also suggests that an implied term of his alleged contract was
breached; presumably he means that the government was slow to use
the information he had provided in the hope that it would lead to a
§ 5K1.1 departure. However, Price has not shown that the govern-
ment promised him a speedy investigation. Most importantly, Price
does not claim that the government obligated itself to file a § 5K1.1
motion even if he did render substantial assistance, and the district
court determined that there was, in fact, no such agreement. The court
did not err in this determination. Price did not produce any evidence
that the government committed itself to move for a substantial assis-
tance departure, no matter how useful his assistance proved to be.
When there is no plea agreement, a defendant cannot compel a
§ 5K1.1 motion even if he has provided substantial assistance to the
government, unless he can also show that the government's decision
not to make the motion was based on a constitutionally impermissible
motive, such as race or religion. See Wade v. United States, 504 U.S.
181, 186 (1992); United States v. Dixon, 998 F.2d 228, 230 (4th Cir.
1993). Because Price has not shown that the government's failure to
move for a substantial assistance departure was based on an unconsti-
tutional motive, the district court did not err in denying his motion to
compel.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
3
materials before the court and argument would not aid the decisional
process.
AFFIRMED
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903409/ | 773 N.W.2d 562 (2009)
DE LA LUZ
v.
RENDON.
No. 08-1892.
Court of Appeals of Iowa.
August 19, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
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