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https://www.courtlistener.com/api/rest/v3/opinions/1252569/ | 352 S.C. 552 (2003)
575 S.E.2d 77
The STATE, Respondent,
v.
Danny THOMPSON, Appellant.
No. 3584.
Court of Appeals of South Carolina.
Submitted December 10, 2002.
Decided January 6, 2003.
*554 Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport; and Solicitor Warren B. Giese, all of Columbia, for Respondent.
ANDERSON, J.:
Danny Thompson was indicted for first degree criminal sexual conduct, kidnapping, and carjacking. A jury convicted Thompson of all three charges. The trial court sentenced him to concurrent thirty year terms of imprisonment for criminal sexual conduct and kidnapping, and a concurrent twenty year term of imprisonment for carjacking. Thompson argues the trial court erred in admitting improper hearsay testimony and in failing to declare a mistrial after evidence of his prior bad acts was improperly introduced. We affirm.[1]
FACTS/PROCEDURAL BACKGROUND
At approximately 2:30 a.m. on October 8, 1999, the victim parked her Camaro in a lot located on the University of South Carolina's campus. As the victim was exiting her car, a man *555 approached her, pushed her back inside the car, and jumped in the backseat. The man grabbed the victim by the hair and threatened to kill her if she did not drive him to his destination.
The victim cooperated with the man and drove to a rural area in lower Richland County. The man directed the victim to pull her car over on a dirt road and he raped her. After the sexual assault, the man asked the victim for money. When the victim indicated she did not have any money, the man allowed her to exit the car. The victim, wearing only her skirt and a bra, then "took off" running toward some lights she saw in the distance. She "remembered that there were houses that way." The victim ran to a house on Lykesland Trail to ask for assistance. The residents telephoned 911 and the victim was taken to a hospital. After the victim escaped, the man drove off in her Camaro.
The victim was examined at the hospital pursuant to the protocol for sexual assault victims. Her clothing was taken for evidence and a pelvic examination was performed. The examination revealed vaginal tears and bruising, which are indicative of forcible sexual intercourse. A sexual assault nurse examiner collected vaginal swabs from the victim.
The victim described her assailant to the police as a black male "a little bit shorter than" six feet tall weighing about 160 pounds and wearing dark clothing. She gave a description of her car and the license plate number.
On the morning of the assault, a police officer from the University of South Carolina went to the parking lot where the victim was abducted and discovered that several cars in the lot had been vandalized. The officer noticed a Mitsubishi parked in the lot without a student parking decal. He ran a check of the license plate number and discovered the Mitsubishi had been reported stolen. Lynette Metze, the owner of the Mitsubishi, testified that on October 7, 1999, her friend, Danny Thompson, took her car without permission. Metze stated that, after unsuccessfully attempting to locate either Thompson or her car, she notified the police that Thompson had stolen her car.
Acting on the information obtained from the campus police officer and Metze, the Richland County Sheriff's Department *556 issued a BOLO notice ("be on the look-out") for Thompson. The police provided a description of the victim's Camaro to the local media. The next morning, the police received an anonymous tip that the victim's Camaro was located on Old Ferry Road in lower Richland County. Officers went to Old Ferry Road and found the victim's Camaro parked in a driveway of an abandoned farm. A bystander, who knew one of the officers, informed the investigators that the man driving the Camaro could be found in a home located about 200 yards from where the car was parked. The Thompson family lived in the home, which was owned by Thompson's father.
The officers went to the home and found Thompson. Thompson's father consented to a search of the house. The officers retrieved a pair of baggy, blue sweat pants that matched the victim's description of her attacker's clothing. The police drove Thompson to the police station.
At the police station, Thompson was read his Miranda rights and questioned by Sgt. Lancy Weeks. Thompson signed a statement in which he admitted taking Metze's Mistubishi, abducting the victim, raping her, and taking her car. Thompson informed the officer questioning him that the blue sweat pants retrieved from his home were the same pants he wore when he raped the victim. Additionally, Thompson wrote a letter to the victim apologizing for his actions.
Thompson's palm print was recovered from the exterior of Metze's Mitsubishi, but none of the prints found in the victim's Camaro belonged to Thompson. The police found Metze's car keys inside the victim's car. The victim's wallet, which contained the driver's license of the owner of one of the cars broken into on the campus parking lot, was discovered on Air Base Road where Thompson told police he had driven the victim's car.
The victim was unable to identify Thompson in a photo line-up that was presented to her. However, the victim testified that she did not look directly at her attacker during the assault because she was afraid he might hurt her if he thought she could recognize him.
At trial, a forensic expert declared that Thompson's DNA matched the DNA obtained from the vaginal swabs taken from the victim and the semen found on her underwear. The *557 expert further opined that only one in thirty-two quadrillion persons have the same genetic marker as Thompson.
The jury found Thompson guilty of first degree criminal sexual conduct, kidnapping, and carjacking.
LAW/ANALYSIS
I. Hearsay/Bystander Statement
Thompson contends the trial court erred in admitting the police officers' testimony about the bystander who told them that the person driving the Camaro lived in the Thompsons' home. Thompson alleges this testimony was inadmissible hearsay and, "even if it were not hearsay, it was an improper reference to [Thompson's] character and its prejudicial effect outweighed its probative value." We disagree.
At trial, Deputy Thomas Vail, with the Richland County Sheriff's Department, testified an anonymous citizen reported that the victim's Camaro was on Old Ferry Road. He further stated that when he and Sergeant Bruce Scott arrived at the scene, they found the car. Thereafter, the Solicitor asked Deputy Vail if he received any other information while at the scene. Over Thompson's hearsay objection, Deputy Vail declared:
While we were out with the vehicle, Sergeant Scott and myselfSergeant Scott saw an individual that he knew from personalpersonally. This individual who lives out in that area said, as I recall, he said, told Sergeant Scott, the guy who was driving that car is over there and he pointed to a house just at the intersection of Old Ferry and Congaree Road.
According to Sergeant Scott, the bystander told him that "the person that we were looking for that was the [sic] driving the Camaro lived on Congaree Road and he actually pointed to the mobile home." Scott testified the bystander told him that he did not want to be identified.
Thompson objected to the testimony of both Vail and Scott regarding the bystander. He claimed the testimony was hearsay. Thompson maintained he needed the opportunity to cross-examine the bystander because the bystander directly implicated Thompson as the driver of the victim's car. The *558 trial court overruled Thompson's objection, concluding that the officers' testimony regarding the bystander was not offered to prove the truth of the matter asserted but rather to explain the officers' reasoning for going to the Thompson home.
A leading case in South Carolina in regard to evidence offered for the purpose of explaining why a government investigation was undertaken is State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). Brown edifies:
Brown argues the trial judge erred in failing to direct a mistrial after two police officers' statements were admitted. Brown claims the officers' statements about receiving information before establishing a surveillance, receiving complaints while in the neighborhood, and being "familiar with" the neighborhood were hearsay.
Evidence is not hearsay unless it is an out of court statement offered to prove the truth of the matter asserted. State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991), cert. denied, 502 U.S. 1103, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992). Additionally, an out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken. United States v. Love, 767 F.2d 1052 (1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 849, 88 L.Ed.2d 890 (1986). Here, these statements were not entered for their truth but rather to explain why the officers began their surveillance. These statements are not hearsay and, therefore, the trial judge committed no error in allowing these statements into evidence.
Brown, 317 S.C. at 63, 451 S.E.2d at 893-94. Evidence explaining why law enforcement is in a particular area has been held to be relevant information for the jury to consider. State v. Johnson, 318 S.C. 194, 456 S.E.2d 442 (Ct.App.1995); State v. Davis, 309 S.C. 56, 419 S.E.2d 820 (Ct.App.1992).
The case of Rhodes v. State, 349 S.C. 25, 561 S.E.2d 606 (2002), is instructive. Rhodes involves testimony from the victim's friend that he gave the victim a middle school yearbook with the defendant's picture in it because the friend had heard rumors that the defendant was involved in shooting "a guy and a girl." The Rhodes court determined:
*559 We find that the testimony admitted in this case about Thompson hearing petitioner was the shooter does not constitute hearsay. The rule against hearsay prohibits the admission of an out-of-court statement to prove the truth of the matter asserted. E.g., Dawkins v. State, 346 S.C. 151, 551 S.E.2d 260 (2001). Here, it was repeatedly made clear during trial that the information Thompson had heard was "from the street," i.e., a "rumor." It was not offered to prove that petitioner had committed the crimes, but rather to explain Cook's identification of petitioner in the yearbook. This in turn led to petitioner's apprehension and the subsequent identification of him by both victims via the photographic line-up.
Rhodes, 349 S.C. at 31, 561 S.E.2d at 609 (footnote omitted).
In the instant case, the officers' testimony regarding statements made by the bystander were not entered for their truth but rather to explain and outline the officers' investigation and their reasons for going to the Thompsons' home. Thus, the evidence was not hearsay and was properly before the trial court. See Caprood v. State, 338 S.C. 103, 111, 525 S.E.2d 514, 518 (2000) (finding statements made regarding unrelated crimes not hearsay where "officers were explaining their actions in pursuing the defendants and the statements were not offered for their truth"); State v. Kirby, 325 S.C. 390, 396, 481 S.E.2d 150, 153 (Ct.App.1996) (concluding testimony by police officer about dispatcher's call was not hearsay where offered to explain "the reason for the initiation of police surveillance of the vehicle in question"); State v. Johnson, 318 S.C. 194, 197, 456 S.E.2d 442, 444 (Ct.App.1995) (ruling testimony that defendant was in a "high drug traffic area" was not hearsay because it was introduced as "background information" about the investigation). Cf. German v. State, 325 S.C. 25, 478 S.E.2d 687 (1996) (determining, in context of post-conviction claim of ineffective assistance of counsel, that undercover drug agent's testimony that he had tips that defendant was distributing drugs and that he had been given description of defendant that would make him easily identifiable was not admissible to explain why police first stopped defendant, and testimony was objectionable; noting that, while State v. Brown, supra, allowed general statements referring to drug activity in an apartment complex in which a defendant *560 lived, agent's testimony in German specifically referred to defendant and his character).
II. Mistrial
Thompson argues the trial court erred in failing to declare a mistrial based on Deputy Vail's testimony concerning warrants against Thompson. Thompson contends the reference to the warrants "constituted improper evidence of prior bad acts." We disagree.
The Solicitor questioned Vail regarding what he and Scott were trying to ascertain when they approached the Thompsons' home. Vail responded: "We were trying to ascertain if the suspect, the defendant at the time that we knew had warrants, Mr. Thompson, if he was actually at the residence or not."
The decision to grant or deny a mistrial is within the sound discretion of the trial judge. State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999); State v. Simmons, No. 3572, 352 S.C. 342, 573 S.E.2d 856 (Ct.App.2002); State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct.App.1999). The court's decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law. State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000); State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998); see also State v. Arnold, 266 S.C. 153, 157, 221 S.E.2d 867, 868 (1976) (the general rule of this State is that "the ordering of, or refusal of a motion for mistrial is within the discretion of the trial judge and such discretion will not be overturned in the absence of abuse thereof amounting to an error of law.").
"The power of a court to declare a mistrial ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes" stated into the record by the trial judge. State v. Kirby, 269 S.C. 25, 28, 236 S.E.2d 33, 34 (1977); see also State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999) (granting of motion for mistrial is extreme measure which should be taken only where incident is so grievous that prejudicial effect can be removed in no other way); Patterson, 337 S.C. at 227, 522 S.E.2d at 851 (mistrial should only be granted in cases of manifest necessity and with the greatest caution for very plain and obvious reasons). A *561 mistrial should only be granted when "absolutely necessary," and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial. Harris, 340 S.C. at 63, 530 S.E.2d at 628; see also State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999) (mistrial should not be granted unless absolutely necessary; to receive mistrial, defendant must show error and resulting prejudice). "The less than lucid test is therefore declared to be whether the mistrial was dictated by manifest necessity or the ends of public justice." State v. Prince, 279 S.C. 30, 33, 301 S.E.2d 471, 472 (1983).
We find that Deputy Vail's single reference to warrants that existed against Thompson did not constitute sufficient prejudice to justify a mistrial. As an initial matter, there is no indication from Deputy Vail's testimony that the warrants referred to unrelated charges or other bad acts committed by Thompson. Prior to the testimony concerning the warrants, the jury heard testimony that a BOLO had been issued against Thompson based on the suspicion that he had been involved in the attack of the victim. Thus, it would be reasonable to assume the jury inferred that the warrants related to the charged offenses. Additionally, a vague reference to a defendant's prior criminal record is not sufficient to justify a mistrial where there is no attempt by the State to introduce evidence that the accused has been convicted of other crimes. See State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999) (determining law enforcement agent's isolated testimony that he compared defendant's fingerprints with fingerprint card agency had on record was not so prejudicial to defendant as to warrant mistrial because it was questionable whether jury drew connection between fingerprint card and defendant's prior criminal activity); State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996) (recognizing appellant's possible drug dealing was merely suggested and no testimony was presented concerning such behavior); State v. Singleton, 284 S.C. 388, 326 S.E.2d 153 (1985), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (noting that references to defendant's prior crimes in arresting officer's testimony that he told defendant that he was under arrest for escape and murder and that he asked defendant where correctional truck was were extremely vague); State v. Robinson, 238 S.C. 140, 119 S.E.2d 671 (1961), overruled on other *562 grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (Court emphasizing that, even if the testimony created the inference in the jury's mind that the accused had committed another crime, the State never attempted to prove the accused had been convicted of some other crime).
III. Harmless Error
Finally, considering the overwhelming evidence of Thompson's guilt, any possible error that resulted in the introduction of the alleged hearsay evidence and the testimony concerning the warrants was harmless.
Whether an error is harmless depends on the circumstances of the particular case. State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998); State v. Reeves, 301 S.C. 191, 391 S.E.2d 241 (1990). "No definite rule of law governs this finding; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case." State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985). Error is harmless when it could not reasonably have affected the result of the trial. Mitchell, 286 S.C. at 573, 336 S.E.2d at 151; State v. Key, 256 S.C. 90, 180 S.E.2d 888 (1971). Where a review of the entire record establishes the error is harmless beyond a reasonable doubt, the conviction should not be reversed. State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); State v. King, 349 S.C. 142, 561 S.E.2d 640 (Ct.App.2002).
Here, the victim's car was located near Thompson's home. Moreover, Thompson confessed to raping and abducting the victim, as well as taking her car; he identified the clothes seized from his home as the ones he wore when he raped the victim; and he wrote the victim a letter apologizing for his actions. Additionally, keys from the car Thompson took from Metze were found inside the victim's car. Furthermore, forensic evidence established that Thompson's DNA matched the DNA obtained from the vaginal swabs taken from the victim and semen found in the victim's clothing. Thus, there was overwhelming evidence indicating Thompson's guilt, and any perceived error from the officers' testimony was harmless.
*563 CONCLUSION
Accordingly, Thompson's convictions are
AFFIRMED.
HEARN, C.J., and CURETON, J., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326564/ | Curran, Dennis J., J.
The Maynard Retirement Board denied retirement benefits to Anthony Tyler under G.L.c. 32, §§10(1) and 15(4). That decision was reversed by a district court judge. The Retirement Board presently seeks review of that reversal under G.L.c. 249, §4. Tyler has filed a motion to dismiss which, for the following reasons, is DENIED.
I. BACKGROUND
In addition to accepting as true the factual allegations in the Board’s complaint for purposes of a motion to dismiss under Rule 12(b) (6), the court may also take into consideration the record of the district court proceedings (“Record”). Durbin v. Board of Selectmen *592of Kingston, 62 Mass.App.Ct. 1, 4 n.5 (2004) (“In a certiorari proceeding, the pleadings contain the record on the basis of which the reviewing court decides the case”).
A.The Underlying Facts
The following underlying facts are undisputed.
Tyler was appointed as a firefighter to the Maynard Fire Department on June 12, 1987, at which time he became a member of the Maynard retirement system; he was classified as Group 2.1 Record, at 106, 144. He was also an emergency medical technician (“EMTj.2 Gerry Byrne was a Maynard firefighter as well, and he and his wife Lori lived next door to Tyler in Maynard, Massachusetts. Starting in about 1991, Tyler became close friends with the Byrnes and their children. On various occasions between 2002 and 2006, Tyler sexually molested the Byrne’s son and told him that if he told anyone, he could lose his wife and job. After the Byrne’s son told his parents about the repeated and longstanding pattern of Tyler’s sexual assaults, they confronted him in September 2006. Tyler admitted it.
Around that same time, in September 2006, Tyler began calling in sick to work. The Fire Department’s chief learned in October 2006 that Tyler had been arrested, but the Department did not take any action against Tyler. On October 12, 2006 a Middlesex County grand jury indicted Tyler on three counts of indecent assault and battery on a person over fourteen (2006-1375-001, 002, 003) in relation to his abuse of the Byrne’s son (“the 2006 case”).3 Record, at 93-95.
Another of Tyler’s victims, a family friend whom Tyler had touched inappropriately repeatedly over several years, came forward in October 2006 after hearing of the 2006 case. He alleged that Tyler assaulted him in his car, at the victim’s home, and at the fire department where the victim’s uncle was stationed as a firefighter. In January 2007, a Middlesex County grand jury indicted Tyler for his assault of that victim at a charity golf tournament in September 2002, charging him with one count of rape (2007-CR-107-001) and one count of indecent assault and battery on a person over fourteen (2007-CR-107-002) (“the 2007 case”).4
In March 2008, Tyler pled guilty to all three counts of the 2006 case. A Superior Court justice sentenced Tyler to MCI Cedar Junction on counts 001 and 002 for two concurrent sentences of three years to three years and one day, and on count 003 to five years of probation conditions,5 from and after the sentence imposed on counts 001 and 002. In July 2008, Tyler pled guilty to indecent assault and battery on a person over fourteen (count 002 in the 2007 case), and the Commonwealth filed a nolle prosequi on count 001, rape. A second Superior Court justice sentenced Tyler to MCI Cedar Junction for three years to three years and one day, to be served from and after the sentence in the 2006 case.
B. The Board’s Actions
On October 12, 2006, the same day as his indictment in the 2006 case, Tyler applied to the Board for superannuation retirement. Record, at 104. The Board6 granted his application, effective October 15, 2006, in the amount of $17,402.76 per year, calculated under “Option C.”7 Record, at 145.8
On May 12, 2008, the Middlesex District Attorney’s Office informed the Public Employee Retirement Administration Commission of Tyler’s March 2008 guilty pleas in the 2006 case; and on July 22, 2008, the Middlesex District Attorney’s Office informed the Retirement Commission of Tyler’s July 2008 guilty plea in the 2007 case.9 As to both cases, the Retirement Commission related this information to the Board shortly after receiving the District Attorney’s notification.10
In a letter dated August 7, 2008, the Board informed Tyler that it was initiating proceedings to determine whether his convictions triggered mandatory forfeiture of his pension under G.L.c. 32, §10(1) and/or §15(4). The Board held two days of hearings on this matter, on September 10, 2008, and November 6, 2008;11 although Tyler was represented by counsel, he chose not to attend either hearing. In a decision dated November 19, 2008, the Board unanimously concluded that Tyler was not entitled to receive a retirement allowance, and further, was required to return the amount he received after March 20, 2008 (“Board decision”).12
C. District Court Appeal
Under G.L.c. 32, §16(3)(a),13 Tyler filed a petition for review of the Board decision with the Concord District Court on December 19, 2008, seeking the reinstatement of his pension.14 He filed a memorandum in support of his petition in July 2009, and the district court held a hearing on August 26, 2009. In a deliberative decision dated May 7, 2010, the district court judge set aside the Board decision and ordered Tyler’s benefits reinstated retroactive to November 19, 2008 (“district court decision”).15
II. DISCUSSION A. Standard of Review
The Board filed its complaint under G.L.c. 249, §4, asserting that the district court decision reinstating Tyler’s pension was erroneous as a matter of law. In his motion to dismiss, Tyler claims that the Board has “[f]ail[ed] to state a claim upon which relief can be granted” and that the district court decision properly interpreted G.L.c. 32, Sections 10(1) and 15(4). See State Bd. of Ret. v. Woodward, 446 Mass. 698, 703 (2006) (“Woodward!’) (“The appropriate means to test the adequacy of the allegations set forth in a complaint seeking relief in the nature of certiorari is by [a] motion to dismiss”).
The Board’s opposition has the effect of a motion for judgment on the pleadings in that it describes the *593ways in which the district court decision is erroneous by detailing the “proper” interpretation of G.L.c. 32, §15(4).16 Thus, the resolution of Tyler’s motion decides the case: if allowed, the court concludes that the district court decision was not based on an error of law and the case is dismissed; if denied, the court concludes that the district court decision was based on an error of law, thereby quashing the district court decision and effectively reinstating the Board decision.
The standard underlying the Board’s complaint is relevant to this analysis. General Laws c. 249, §4 permits parties to bring in the Superior Court “[a] civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal ...” “The requisite elements for availability of certiorari are (1) a judicial or quasi-judicial proceeding (2) from which there is no other reasonably adequate remedy (3) to correct substantial error of law apparent on the record (4) that has resulted in manifest injustice to the plaintiff or an adverse impact on the real interests of the general public.” Woodward, 446 Mass. at 703-04, citing Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 790 (2000). The Board has satisfied those requirements here: it seeks review of the District Court decision, a judicial proceeding; “(t]he decision of the [District] [C]ourt shall be final[,]” according to G.L.c. 32, §16(3)(a), and thus the Board has no other reasonably adequate remedy; and the Board asserts that the district court decision is based on a substantial error of law, i.e., the misapplication and misinterpretation of G.L.c. 32, §15(4), that has resulted in manifest injustice by requiring the Board to pay Tyler his pension. See, e.g., Woodward, 446 Mass. at 704 (“These allegations adequately state a cause of action for relief in the nature of certiorari from judgments of the District Court under G.L.c. 32, §16(3)”); Durbin, 62 Mass.App.Ct. at 5 (providing for review even when a statute provides that the ruling of the court whose decision is sought to be reviewed ‘shall be final’ “ (citation and internal quotations omitted)).
“[T]he function of a court acting pursuant to G.L.c. 249, §4, is ‘not to reverse or revise findings of fact [,]’ ” Police Comm’r of Boston v. Robinson, 47 Mass.App.Ct. 767, 770 (1999), and is not “to remedy mere technical errors that have not resulted in manifest injustice.” Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass.App.Ct. 605, 607 (2002), quoting Massachusetts Prisoners Ass’n Political Action Comm. v. Acting Governor, 435 Mass. 811, 824 (2002). Rather, “(t]he reviewing judge is limited to what is contained in the record of proceedings below...” Police Comm’r of Boston, 47 Mass.App.Ct. at 770. Based on that record, the court may “correct only a substantial error of law . . . which adversely affects a material right of the plaintiff’ and “rectify only those errors of law which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public." State Bd. of Ret. v. Bulger, 446 Mass. 169, 173 (2006) [“ Bulger "), quoting Massachusetts Bay Transp. Auth., 430 Mass. at 790, in turn quoting Carney v. Springfield, 403 Mass. 604, 605 (1988); Macero v. MacDonald, 73 Mass.App.Ct. 360, 366 (2008).
B. The Board Decision’s Analysis of G.L.c. 32, §15(4)
At the time of the Board decision, the leading case interpreting G.L.c. 32, §15(4), was Bulger, 446 Mass. 169. Board decision, Record, at 14.17 In that case, the Supreme Judicial Court held that the violation resulting in forfeiture under G.L.c. 32, §15(4), had to be “related to the member’s official capacity” and required the reviewing court to look “to the facts of each case for a direct link between the criminal offense and the member’s office or position . . .” Id., quoting Bulger, 446 Mass. at 175. The retiree in that case was a clerk-magistrate convicted of perjury. Id. “The Court [in Bulger] concluded that ‘[a]t the heart of a clerk-magistrate’s role is the unwavering obligation to tell the truth’ ” and that he had forfeited his pension because his “crimes could not be separated from the nature of his particular office.” Id. (second alteration in original), quoting Bulger, 446 Mass. at 179.
The Board also discussed two decisions of the Division of Administrative Law Appeals. In the first, Cornwell v. Plymouth Ret. Bd., CR-90-837 (Dec. 15, 1991) (affirmed, Contributory Retirement Appeal Board July 10, 1992), “a firefighter committed an assault and battery on a woman and was guilty of breaking and entering in the night time.” Board decision, Record, at 15. The Division held that “[a]t the very heart of fire fighting is protection of person and property. By the criminal acts of breaking into a home to commit larceny and assaulting and battering a woman therein, the [firefighter] . . . irreparably violated the trust which must go with an individual charged with defending victims of a conflagration, who are at times helpless to help themselves and their kin.” Id., quoting Cornwell CR-90-837, at 5. The Division thus concluded that G.L.c. 32, §15(4) prevented the firefighter from receiving accidental disability retirement. Id. In the second, Shine v. Athol Ret. Bd., CR-98-383 (Contributoiy Retirement Appeal Board Dec. 15, 1993), the agency relied on Cornwell to conclude that the firefighter’s “plea of guilty ... to the charge of indecent assault on a child under the age of fourteen constitute[d] a violation of the laws applicable to his position as a fire fighter . . .” Id., quoting Shine, CR-93-383, at 3.
Turning to the case before it, the Board noted that “[t]he facts here are strikingly similar to those in the Shine and Cornwell cases. Protection of person and property is at the very heart of fire fighting; by his criminal conduct, Mr. Tyler violated the fundamental tenets of his position.” Id. at 15-16. The Board also found that “the fact that the molestations were com*594mitted on a fellow firefighter’s son” was further evidence of a “direct link” between Tyler’s offenses and his position “[e]ven though there is no evidence that the crimes took place at the fire station, or that Mr. Tyler was ever on duiy when he committed the crimes . . .” Id. at 16.
Based on these considerations, the Board concluded that under G.L.c. 32, §15(4), Tyler was “not eligible to receive a superannuation retirement allowance.” Id.
C. The District Court Decision’s Analysis of G.L.c. 32, §15(4)
The district court decision also set out the Supreme Judicial Court’s interpretation of G.L.c. 32, §15(4), and concluded that “(t]he decisional law makes clear that pension forfeiture under §15(4) must be based on the directness of the link between a criminal conviction and a member’s position or office, rather than the gravity of the member’s offenses.” District Court decision, Record, at 325. Opining that G.L.c. 32, §15(4), would require forfeiture “where a firefighter was convicted of arson, as such conduct would constitute a violation of the laws applicable to his position [,]” id. at 326, n.3, the district court judge concluded that there was “no direct link between Tyler’s convictions and his position as a Maynard fire fighter and EMT.” Id. at 326.
The district court offered two reasons for this conclusion. First, “(a)lthough Tyler knew his victims through his fellow firefighters, his offenses were personal in nature.” Id. Second, “(t]he evidence on record indicates that Tyler’s actions underlying his indecent assault and battery convictions occurred outside the firehouse while Tyler was not on duty.” Id. For example, “(t]here is no evidence in the record that Tyler used a fire truck ... to entice a young person; or that while in uniform he importuned a young person to visit a past fire site in order to commit indecent acts . . .” Id. at 326, n.4. Such overstatements, however, do not advance the requisite analysis.
The district court also rejected the Board decision’s “oblique suggestion that Tyler’s violation[s] of the rules of the Maynard Fire Department are independent grounds upon which to deny Tyler his pension ...” Id. at 326-27.18 Tyler’s “convictions are much graver than a mere rule violation” of the Department’s rules; “but the rules are only determinative for employment or civil service purposes, not for Chapter 32 purposes.” Id. at 327. It is “[t]he strict language of’ G.L.c. 32, and not the Fire Department’s Rules and Regulations, that “governs for purposes of the retirement laws.” Id.
The district court judge accordingly reversed the Board decision and reinstated Tyler’s superannuation benefits retroactive to November 19, 2008, id. at 328-29, concluding that “Tyler’s convictions do not constitute violations of the laws applicable to his position as a Maynard firefighter with a nexus sufficient to trigger pension forfeiture under G.L.c. 32, §15(4).” Id. at 327. In reaching this conclusion, the judge acknowledged “the deep pain to the victims and their families, [Tyler’s] abuse of the trust given to him, and his embarrassment of the Maynard Fire Department.” Id. “While it may be unfortunate that an employee, such as Tyler, who has acted so reprehensibly may receive retirement benefits, Tyler’s unbecoming conduct does not relieve [the District Court] of its duty to be faithful to the language of [G.L.c.] 32.” Id. at 328. In this respect, the district court decision is wanting.
In its conclusion, the decision offered commentaiy on the inaction of the Fire Department and the Board itself.19 First, the judge opined that its decision “was foreordained by [the Fire Department chiefs] failure to suspend, fire, or take any disciplinary action against Tyler upon learning of Tyler’s arrest. The Chief knew that Tyler had called in sick for approximately five consecutive weeks, and he did not inquire into the validity of Tyler’s absence from work.” Id. This inaction suggested to the District Court “that those in charge likely knew about the allegations against Tyler both before and certainly after his arrest and chose not to stand in the way of his resignation and retirement, with its pension benefits.” Id.
Second, the District Court judge found “stunning” the Board’s “failure to investigate Tyler’s absence from work for the several weeks preceding his application for superannuation retirement benefits, and its granting of the benefits within day(s) after receiving Tyler’s application . ..” Id. “Even if the Board had not learned of the allegations about Tyler before his arrest and about the existence of a criminal investigation, the Board would have learned of the arrest and the underlying charges and Tyler’s continued absence from work through a simple investigation. Maynard is a small town.” Id. But such commentaiy misses the mark—it is the perpetrator Tyler’s conduct that is at issue here, not the fire chiefs.
D. Interpretation of G.L.c. 32, §15(4)
General Laws c. 32, §15(4) “refers to final criminal convictions rather than criminal offenses!,]” Gaffney v. Contributory Ret. Appeal Bd., 423 Mass. 1, 6 (1996), and provides that “[i]n no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of’ G.L.c. 32, §§1-28; G.L.c. 32, §15(4). “A member who becomes subject to the mandates of §15(4) forfeits entitlement to a retirement allowance, but the member ‘shall receive, unless otherwise prohibited by law, a return of his accumulated total deductions; provided, however, that the rate of regular interest for the purpose of calculating accumulated total deductions shall be zero.’ ” Bulger, 446 Mass. at 175, quoting G.L.c. 32, §15(4); Gaffney, 423 Mass. at 3 n.3 (noting that application of this provision “cause [s] loss of . . . future pension benefit payments and accumulated interest”). The forfeiture “is manda*595tory and occurs by operation of law . . . [It] is an automatic legal consequence of conviction of certain offenses.” Woodward, 446 Mass. at 705 (alteration in original) (citation omitted); see id. at 708 (“The words ‘[i]n no event’ connote the absolute never or ‘under no circumstances!,]’ . . . [and] excludes all discretionary consideration” (first alteration in original) (internal citations omitted)).
The parties agree that because G.L.c. 32, §15(4) is a penal statute, “its language must be construed narrowly, not stretched to accomplish an unexpressed result.” Bulger, 446 Mass. at 174-75, citing Gaffney, 423 Mass. at 3 n.3; Collatos v. Boston Ret. Bd., 396 Mass. 684, 686-87 (1986). Although the Legislature’s intent in enacting G.L.c. 32, §15(4), was “ ‘to avoid having the precise form of the criminal enforcement action make a difference with respect to the pension forfeiture issue[,]’ . . . §15(4) [is] not limited to violations of ‘highly specialized crimes addressing official actions’ or even criminal conduct committed ‘in the course of [official] duties’. ..” Bulger, 446 Mass. at 180 (final alteration in original), quoting Gaffney, 423 Mass. at 4. At the same time, however, the Legislature “did not intend pension forfeiture to follow as a se-quelae of any and all criminal convictions.” Id. at 175, quoting Gaffney, 423 Mass. at 5. Rather, “[o]nly those violations related to the member’s official capacity” fall within the scope of G.L.c. 32, §15(4); therefore, the criminal activity must be “connected with the office or position” for G.L.c. 32, §15(4), to apply. Id. at 175 (emphases added), quoting Gaffney, 423 Mass. at 4-5.
In Gaffney, the “direct link” between the criminal offense and the plaintiffs office was clear. See 423 Mass. at 5. There, the plaintiff had pled guilty to charges that he stole money and property from the town while he was superintendent of the town’s water and sewer department. Id. at 2. His duties in that position included “the management of‘the administrative tasks of the Department,’ the preparation of the yearly budget, supervision of activities connected to the reading of water meters and the billing of customers, and the control of departmental costs." Id. at 4. “It was from these funds that [the plaintiff] stole town money for which he . . . pleaded guilty.” Id. Upon identifying this direct link between the plaintiffs offenses and his position, the Court held that G.L.c. 32, §15(4), applied to the plaintiffs pension. Id. at 5.
Discovering the “direct link” in Bulger involved more substantive discussion than in Gaffney. There, the State Board of Retirement sought the Supreme Judicial Court’s review, under G.L.c. 249, §4, of a Boston Municipal Court judge’s reversal of the board’s decision “permanently to rescind [the defendant clerk-magistrate’s] retirement allowance, and order [] [that] the board . . . reinstate [his] pension . . .” Bulger, 446 Mass. at 172-73. The board argued that the Boston Municipal Court judge “had misinterpreted G.L.c. 32, § 15 (4), and that [the clerk-magistrate] had violated the laws applicable to his position as clerk-magistrate.” Id. at 173. The question before the Court, then, was “whether, pursuant to G.L.c. 32, §15(4), [the clerk-magistrate’s] convictions of two counts of perjury and two counts of obstruction of justice in [the] [fiederal [district [c]ourt involved ‘violation[s] of the laws applicable to his office or position’ as clerk-magistrate of the Boston Juvenile Court such that he forfeited his entitlement to a retirement allowance as a member of the State employees’ retirement system.” Id. at 169 (final alteration in original).
Reiterating the established law that requires the court to look “to the facts of each case for a direct link between the criminal offense and the member’s office or position!,]” the Court began its analysis by considering the laws applicable to the clerk-magistrate’s position. Id. at 175. That position “is one created and defined by statute!,]” id., citing G.L.c. 218, §§8, 33, 35A, 58 and G.L.c. 221, §§62B, 62C; and the Code of Professional Responsibility for Clerks of the Courts, S.J.C. Rule 3:12, sets forth the “standards governing the norms of conduct and practice associated with” the position. Id. at 177-78. The Court examined those statutes and the code—which also has “the force of law[,]” id. at 177—and concluded that, “[a]t the heart of a clerk-magistrate’s role is the unwavering obligation to tell the truth, to ensure that others do the same through the giving of oaths to complainants, and to promote the administration of justice.” Id. at 179.
The Court then considered “whether [the clerk-magistrate] violated the laws applicable to his office or position when he was convicted of perjury and obstruction of justice in an arguably personal matter such that he was required to forfeit his retirement allowance pursuant to §15(4).” Id. at 178. The Court held that “[t]he nature of [the clerk-magistrate’s] particular crimes [could not] be separated from the nature of his particular office when what is at stake is the integrity of our judicial system.” Id. at 180. When the clerk-magistrate “committed the crimes of peijury and obstruction of justice, he violated the fundamental tenets of the code and of his oath of office . . ." Id. at 179. As the clerk-magistrate’s convictions “involved ‘violation[s] of the laws applicable to his office or position,’ pursuant to G.L.c. 32, §15(4), [they] mandated the forfeiture of his retirement allowance.” Id. at 180.
In contrast, the conduct at issue in Herrick v. Essex Reg’l Ret. Bd., 77 Mass.App.Ct. 645 (2010), did not involve violations of the laws applicable to the plaintiffs position. Id. at 647, 654-55. There, the plaintiff was “a maintenance mechanic and custodian” for a housing project, id. at 647, and his job afforded him access to the keys to the individual units. Id. at 654. The plaintiff “pleaded guilty to two counts of indecent assault and battery” on his daughter, a child. Id. at 647. Thereafter, the defendant retirement board denied the plaintiffs application for a superannuation *596retirement and challenged on appeal the Superior Court’s reversal of that denial, id. at 646, arguing that the plaintiffs convictions were “directly linked to his job as a custodian for the housing project because he had access to keys to the individual units." Id. at 654; see id. at 648 (noting that the Superior Court’s decision was “comprehensive and well-reasoned”). The Appeals Court held that G.L.c. 32, §15(4) did “not apply to the circumstances” of this case because “the record [did] not show that the offenses were connected with [the plaintiffs] official capacity, nor does there appear to be the type of direct link intended by the Legislature . . .” Id. at 653, 654.
Unlike in Bulger, 446 Mass. at 180, where “the nature” of the clerk-magistrate’s position broadly obligated the plaintiff to promote the administration of justice, the nature of the plaintiffs position in Herrick, 77 Mass.App.Ct. at 654, imposed duties that were of a more limited scope. Possession of the housing project’s keys likely imposed upon the plaintiff the obligation of ensuring the safely of the property, and arguably imposed upon him the obligation of ensuring the safety of the housing project’s inhabitants. See id. On this basis, the Appeals Court found significant the facts that the offense did not occur at the housing project and that it “was not committed upon anyone who was employed by or who resided at the public property . . .” Id. at 654. The plaintiffs conduct was, in essence, a personal transgression unrelated to his position. See id. at 647, 654. Contra Bulger, 446 Mass. at 174, 179 (holding that, although clerk-magistrate’s “misconduct occurred in the context of what was arguably a personal matter!,]” his crimes “did not constitute mere personal transgressions wholly unrelated to the office of clerk-magistrate but, rather, were crimes that undermined the very essence of a clerk-magistrate’s responsibility to facilitate the administration of justice”).
E. Analysis of the District Court Decision
Preliminarily, this Court agrees with the District Court judge that the times and locations of Tyler’s offenses did not create a direct link because he did not commit those offenses at the firehouse or while on duty, and that his knowing his victims through fellow firefighters was likewise insufficient. See, e.g., Bulger, 446 Mass. at 179 (finding it was immaterial that clerk-magistrate committed offenses not as clerk-magistrate but “in the context of what was arguably a personal matter”); Herrick, 77 Mass.App.Ct. at 647, 654 (holding that location (housing project unit) and victim (housing project employee or resident) could have served as direct link because retiree was entrusted with keys to housing project units). Respectfully, however, the analysis does not end there. Instead, the district court’s decision to reinstate Tyler’s retirement benefits rested on an erroneous interpretation of G.L.c. 32, §15(4), a substantial error that, by requiring the Board to pay Tyler, has resulted in manifest injustice. G.L.c. 249, §4; Woodward, 446 Mass. at 703-04.
Following the analytical construct established by the appellate courts, this court must consider the laws applicable to the retiree’s position. Tyler was a firefighter. The parties agree that, as a firefighter, Tyler was responsible for preventing harm to people and property. Tyler claims that his responsibility is limited to situations involving fire; the Board defines it more broadly as protecting people. The Board is correct: the public safety obligations of a firefighter extend beyond the simple context of a fire, and Ttyler’s commission of sexual assaults on others contravenes this obligation. Contra Herrick, 77 Mass.App.Ct. at 654 (holding that plaintiffs offenses were not connected to his official capacity where his obligations as custodian were limited to housing project where he worked). Just as in the district court decision, however, the Board decision did not go far enough in considering the issue.
General Laws c. 48, §42 states that the chief of a fire department “shall have charge of extinguishing fires in the town and the protection of life and property in case of fire.” The chief has “full and absolute authority in the administration of the department, [and] shall make all rules and regulations for its operation . . .” Id. Pursuant to this statute, the Fire Department has promulgated rules and regulations to which the firefighters must adhere. See Maynard Fire Department Rules and Regulations, §13.02 (Record, at 129) (“Every person appointed to the [Fire] Department shall abide by the Rules and Regulations of the [Fire] Department. . .’’¡Rules and Regulations, §15.01 (Record, at 130) (“It shall be the duty of members of the . .. Fire Department to become thoroughly familiar with the provisions of these Rules and Regulations . . .”); Rules and Regulations, §15.13 (Record, at 131) (“Members and employees of the [Fire] Department shall be held responsible for the proper performance of duties assigned to them and for strict adherence on their part to these or any other rule or regulation ”) 20
The Foreword to these Rules and Regulations describes afire department as “a uniformed organization engaged in inherently hazardous duties, related to the protection of life and property within the community . . . This concept also explains the high regard that a well run department, manned by conscientious people, may expect to receive from the citizens of the community in which it serves.” Rules and Regulations (Record, at 110). With the latter statement, the Fire Department expressly acknowledges the trust accorded the firefighters by its community. Contra Herrick, 77 Mass.App.Ct. at 654 (finding “no connection or direct link to [plaintiffs] official position” as a custodian where that position limited his duties to housing project and its residents).
As a consequence of this position of trust, the Fire Department places on its firefighters additional obli*597gations beyond “the protection of life and property in case of fire." G.L.c. 42, §48. Among the “offenses [that] are strictly forbidden” are “[c]onduct unbecoming a member, whether on or off duty, which tends to lower the service in the estimation of the public!,]” (Rules and Regulations, §15.58(A) (Record, at 139), “[violation of any criminal law[,]” (Rules and Regulations, §15.58(D) (Record, at 139), or “[cheating discord or lack of harmony.” Rules and Regulations, §15.58(V) (Record, at 139). Clearly, Tyler’s guilty pleas in the 2006 and 2007 cases meet all three qualifications: they are “strictly forbidden" offenses that violate the criminal law, “tend []to lower the service” in the public’s eyes, and “create discord or lack of harmony” within the Fire Department.
The Maynard Fire Department Rules and Regulations governing Tyler’s conduct as a firefighter provide a “direct link” between Tyler’s criminal offenses and his position, enabling this court to conclude that Tyler’s “criminal offense[s] involved] violation[s] of the laws applicable to his office or position . . .” G.L.c. 32, §15(4). The district court judge’s dismissal of these Rules and Regulations as “determinative for employment or civil service purposes, not for Chapter 32 purposes” is therefore erroneous, as is its ultimate conclusion that there is no direct link. District Court decision, Record, at 327. As the Supreme Judicial Court demonstrated in Bulger, consideration of a position’s rules of conduct are relevant to determining whether the criminal offense has a “direct link” to the individual’s position such that G.L.c. 32, §15(4), precludes entitlement to retirement benefits. See 446 Mass. at 177-79; cf. Falmouth v. Civil Serv. Comm’n, 61 Mass.App.Ct. 796, 801-02 (2004) (holding that police department’s “standards [of conduct] themselves are critical to the proper functioning of the police force” and apply “to off-duty as well as on-duty officers” and that violation of standards “was not only a stain upon [officer’s] personal record, but reflected upon the [police] department as a whole”).
Even if the duties stemming from the role of firefighter are artificially limited to fire-related matters, Tyler was not only a firefighter but also an EMT, which removes the “fire-related” limitation. Moreover, both of these positions exist in the broader context of the civil service system, G.L.c. 31, which affords significant job protections in exchange for “selecting public employees of skill and integrity . . .” Cambridge v. Civil Serv. Comm’n, 43 Mass.App.Ct. 300, 304-05 (1997); see Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 498 (1937). The public has an interest “in having only public officers and employees of good character and integrity ...” Commissioner of Metro. Dist. Comm’n v. Director of Civil Serv., 348 Mass. 184, 193 (1964) (analyzing precursor to G.L.c. 31).
“Good character and integrity” are not mere words. They are the living and working embodiment of the trust which we repose in our public safety officials— whether they are probation officers, police officers, or firefighters. The public—by its hard-earned tax dollars—deserves as much. Tyler destroyed that trust that the public placed in him as a public safety official; and he has severed that bond with his fellow firefighters.21 See Rules and Regulations Foreword (Record, at 110).
Public protection is the essence of a firefighting, just as trust is its lifeblood. Firefighters are viewed by many as heroes: they risk their lives for their communify and their fellow firefighters; they live and eat in close quarters; they are obliged to maintain a constant edge of vigilance; and their lives and safety are inextricably linked with their fellow firefighters. Who can rationally deny that public protection is paramount among their duties? And who can plausibly question that trust flowing from the communify and their fellow officers is utterly indispensable to the proper performance of those duties?
As a firefighter and an EMT, Tyler had an obligation to protect members of the Maynard communiiy from harm. Tyler’s commission of the criminal offenses underlying the 2006 and 2007 cases—crimes against the sanctity of the person—violated that obligation and the laws governing his position.
For these reasons, the district court decision is quashed and under G.L.c. 32, §15(4), Tyler is “not entitled to receive a retirement allowance” as determined by the Board. That portion of the Board decision concerning G.L.c. 32, §15(4) contains an insufficient analysis of the laws applicable to Tyler’s position. Accordingly, this court will not simply reinstate the Board decision but instead, remand this matter to the Board for further action including, but not limited to, the adoption of this court’s decision.
ORDER
For these reasons, it is ORDERED that Tyler’s motion to dismiss is DENIED, the District Court decision is QUASHED, and the matter is REMANDED to the Board for action consistent with this decision.
Members of Group 2 are set forth in G.L.c. 32, §3(g), and include “ambulance attendants of a municipal department who are required to respond to fires and perform duties assigned to them . . .” On his October 2008 Application for Voluntary Superannuation Retirement, Tyler left blank the spaces where he was to identify his group number and the amount of “creditable service” in that position, and he left blank the section asking if he was employed by other Massachusetts governmental units or political subdivisions. Record, at 104-05.
On his October 2008 Application for Voluntary Superannuation Retirement, Tyler indicated that his position with the Fire Department was that of firefighter/EMT.
Commonwealth v. Tyler, Crim. No. 06-CR-1375 (Middle-sex Super.Ct.).
Commonwealth v. Tyler, Crim. No. 07-CR-0107 (Middle-sex Super.Ct.).
The probation terms prohibited Tyler from having any contact with children under the age of sixteen years (with the *598exception of his grandchildren), and required sex offender evaluation and treatment, and a mental health examination.
More accurately, the Public Employee Retirement Administration Commission approved Tyler’s application, and informed the Board of its approval in a letter dated October 20, 2006. Record, at 145.
The terms of Option C, “Joint and Last Survivor Allowance,” are set forth in G.L.c. 32, §12(2).
The parties do not dispute the propriety of Tyler’s retirement application. However, it is unclear to this court how Tyler could retire on these facts (there is no mention of another job that may have increased his service to twenty years).
Curiously, the Application for Voluntary Superannuation Retirement that Tyler submitted on October 12, 2006, suggests that Tyler did not satisfy the “Eligibility Requirements for Superannuation Retirement.” Tyler’s date of birth is May 25, 1962, his employment with the Fire Department began on June 12, 1987 and therefore, as of the effective date of his “retirement,” October 15, 2006, Tyler was forty-four years old, and he had worked for the Fire Department for nineteen years and four months. The application sets forth the following eligibility requirements:
If you are a member of Group 1 or 2, you are eligible to retire at any age with at least twenty years of creditable service. [2] If you last became a member of a retirement system prior to January 1, 1978 you may, as a member in service, retire at 55 with any number .of years of service. [3] If you last became a member of a retirement system on or after January 1, 1978 and you have less than 20 years of creditable service, you must have at least ten years of creditable service and. be at least age 55 to retire. [41] If you are a member of Group 4, you are eligible to retire at any age with 20 years of creditable service or at age 55. The amount of your allowance depends on your age, creditable service, group classification and salary.
Record, at 104 (emphasis added).
Tfyler did not satisfy any of these four possible situations. First, he did not have twenty years of creditable service with the Fire Department. See G.L.c. 32, §4(l)(a) (providing that individuals cannot “be credited with more than one year of creditable service for all such membership service rendered during any one calendar year”). Second, he did not become a member of the retirement system before Januaiy 1978, but, in any event, he was under fifty-five years of age. Third, he had more than ten years and less than twenty years of creditable service, but he was under the age of fifty-five. Finally, again, he had neither reached the age of fifty-five nor accrued twenty years of creditable service.
Given the questions raised by these facts, the Court invites the parties to submit memoranda addressing this issue, and reserves the right to modify this decision. Such memoranda are due twenty-one (21) days from the date of this ruling.
The Middlesex District Attorney’s Office notified the Retirement Commission under G.L.c. 32, §15(5).
The Record also contains a letter from the Board’s attorney to the Middlesex District Attorney’s office seeking formal notification regarding Tyler’s guilty plea in the 2007 case which the Board learned of through media reports. Record, at 86. This letter is dated July 25, 2008, one day after the Retirement Commission’s letter to the Board relaying the information concerning the 2007 case; presumably, the letters crossed in the mail.
xThe Board held this hearing in executive session. Record, at 39 (September 10, 2008); Record, at 163 (November 6, 2008).
The court will discuss the details of the Board decision in Section II, entitled “Discussion” in the context of the statutory analysis.
General Laws c. 32, §16(3) (a) provides, in pertinent part:
[A]ny member who is aggrieved by any action taken or decision of a board or the public employee retirement administration commission rendered with reference to his dereliction of duty as set forth in Section fifteen, may, within thirty days after the certification of the decision of the board, bring a petition in the district court within the territorial jurisdiction in which he resides praying that such action and decision be reviewed by the court. After such notice as the court deems necessary, it shall review such action and decision, hear any and all evidence and determine whether such action was justified. If the court finds that such action was justified the decision of the board or the public employee retirement administration commission shall be affirmed; otherwise it shall be reversed and of no effect. If the court finds that such member was unjustifiably retired, removed or discharged from his office or position he shall be reinstated thereto without loss of compensation. The decision of the court shall be final.
Tyler v. Maynard Ret. Bet, Civil No. 0847-CV-0714 (Dist.Ct.Dept.Concord Div.).
The court will discuss the details of the district court decision in Section II, infra.
As noted below, the Board conceded in its opposition “that the failure of the employer to remove or discharge Tfyler from employment, for whatever reason, prevents the application of the moral turpitude prohibition of Section 10(1) to Tfyler’s retirement.” Board Opposition, at 5.
For purposes of consistency, this court will cite to the page numbers as they appear in the Record for both the Board decision and the district court decision.
The district court judge likely characterized the suggestion as “oblique” because the Board mentioned the Fire Department’s Rules and Regulations only once, in ¶2 of its Findings of Fact: “At all pertinent times, the rules and regulations of the Maynard Fire Department prohibit conduct unbecoming a member, whether on or off duty, which tends to lower the service in the estimation of the public. The rules and regulations also prohibit violation of any criminal law . . .” Board decision, Record, at 9.
Although this commentary is more relevant to the District Court’s analysis under G.L.c. 32, §10(1), the court includes it for the sake of completeness.
Section 15.46 of the Maynard Fire Department Rules and Regulations states that “(e]very person appointed to the [Fire] Department shall, before entering upon his/her duties, make and subscribe to the oath of office, sign an agreement to abide the Rules and Regulations as they are or may be established, and be subject to any penalties imposed by the Chief of the [Fire] Department for violations thereof.” Record, at 136. At the September 2008 hearing before the Board, the Fire Department’s chief helpfully stated that he conducted an informal poll of some Fire Department firefighters and “either most of them said that they hadn’t taken an official oath or don’t even remember putting their right hand up taking an oath . . . [and he was] quite sure that Tfyler didn’t [take the oath].” Record, at 43.
Those regulations prohibit “[c]onduct unbecoming a member, whether on or off duty, which tends to lower the service in the estimation of the public” and conduct “[cheating discord or lack of harmony.” Rules and Regulations, §15.58(A) (Record at 139). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2900412/ | COURT OF APPEALS
COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
)
) No.
08-01-00244-CV
)
IN
THE MATTER OF N.N.D.W., ) Appeal from
)
a Juvenile. ) 327th District Court
)
) of El Paso County, Texas
)
) (TC# 00,00837)
O
P I N I O N
Appellant
brings this appeal alleging ineffective assistance of counsel. Because the juvenile reached her eighteenth
birthday prior to submission of the cause and issuance of an opinion, and
because no other relief is available to the juvenile through this appeal, we
dismiss as moot.
FACTUAL AND PROCEDURAL SUMMARY
On
September 13, 2000, Appellant, a juvenile then sixteen years old, was
adjudicated a delinquent child for the offense of assault. She was placed on supervised probation with
electronic monitoring until her eighteenth birthday. The juvenile violated her probation on
several occasions, including leaving the electronic monitoring premises. The State filed a motion to modify the disposition but it was dismissed after the
juvenile completed an attitude adjustment program. Shortly thereafter, the juvenile again
violated her probation by leaving the electronic monitoring premises and the
juvenile court sustained the State=s
motion to modify the disposition. The
State filed another motion to modify the disposition and it was sustained by
the juvenile court. A disposition hearing was held and the record
of that hearing is the basis of this appeal.
Tracy
Gorman of the El Paso County Juvenile Probation Department testified about the
modification-disposition report she prepared for the court. Gorman recommended that the juvenile be
removed from her present home and placed in the care, custody, and control of
the Challenge Program of El Paso County until her eighteenth birthday. Gorman discussed the problems between the
juvenile and her mother while living together, the juvenile=s performance in school, and her
history of substance abuse. The juvenile=s mother no longer wanted the juvenile
in the house. Gorman also included in
her disposition report the statement that the juvenile mentioned she wanted to
have her case heard by a particular judge because she heard he was Aeasy.@ Counsel for the juvenile asked Gorman whether
her inclusion of this statement in the report was an attempt to influence the
presiding judge to follow her recommendation.
Gorman denied the allegation.
Counsel also questioned Gorman about the possibility of an alternative
program, the Serious Habitual Offenders Comprehension Act Program
(S.H.O.C.A.P.). Gorman responded that
she believed the juvenile would not have benefitted from that program because
the juvenile had indicated that she could not complete it, and the program
involved in-home counseling, which had already been attempted. Gorman explained that her main reason for
recommending the Challenge Program was the fact that the juvenile had problems
in the home with her mother and that sending her back into the home would not
address her needs. The trial court
followed the probation department=s
recommendation and found that it was in the juvenile=s
best interest that she be removed from her mother=s
home and sent to the Challenge boot camp.
Counsel for the juvenile made no argument urging an alternative
arrangement. Following the judge=s finding, counsel for the juvenile
made the following statement to the court:
Yes, sir, if you
wouldn=t mind
let me just make a comment for the record.
I think it is necessary that I do this possibly because there is such a
departure in the sanction level in the recommendation of the department, of the
probation department. Normally, as you
know, the policy of the juvenile system is to be the least restrictive as
possible, and S.H.O.C.A.P. and Project Spotlight probably would have been the
least restrictive in this case. However,
the reason that I don=t
argue for that, and didn=t
argue for that, and basically going along and give consent with the
recommendation of the department is that we are quickly running out of time for
this young juvenile. She=s going to be 18 here pretty quick and
she=s got some problems at home that I
think require immediacy to give her some skills that will allow her to live on
her own. I think she has some anger
problems that this Court can see from the report that was given, that I think
can be addressed by Challenge and I think Challenge is a very good program . .
. . So in the sense I=m telling the Court that I don=t want the Court to believe that I=m being faulty in my duty representing
the juvenile, I do believe that this recommendation is in the best interest,
even though it is quite a jump up.
Following the
hearing, the juvenile filed a grievance form stating that she wanted a new
attorney. She also inquired whether it
was possible for her to join the Army reserves rather than attend boot
camp. The juvenile filed a notice of
appeal on June 25, 2001.
MOOTNESS
In
her sole point of error, the juvenile contends that she was provided
ineffective assistance of counsel at her disposition hearing. She claims that counsel failed to adequately
represent her when he acquiesced in the probation department=s recommendation that she be sent to
the Challenge Program. Because the
juvenile preferred to enter the military, counsel should have argued in
accordance with her preference instead of acting on his personal belief that
the program was in her best interest.
Appellant also complains that defense counsel failed to object to the
admission of the modification-disposition report that contained prejudicial
statements concerning the juvenile=s
request to have her case heard by a specific judge because he was an Aeasy@
judge.
Because
of the timing of this appeal, we cannot address the merits. The issues for review are moot since the
trial court=s order
expired on March 12, 2002, prior to submission and issuance of this
opinion. Appellate courts do not have
authority under the Texas Constitution or by statute to render advisory
opinions. See Tex.Const. art. II, '1; Speer v. Presbyterian Children=s Home and Service Agency, 847
S.W.2d 227, 229 (Tex. 1993); In re Salgado, 53 S.W.3d 752, 757
(Tex.App.--El Paso 2001, orig. proceeding). The mootness doctrine limits courts to deciding
cases in which an actual controversy exists.
Federal Deposit Insurance Corporation v. Nueces County, 886
S.W.2d 766, 767 (Tex. 1994); Salgado, 53 S.W.3d at 757. When there has ceased to be a controversy
between the litigating parties due to events occurring after judgment has been
rendered by the trial court, the decision of an appellate court would be a mere
academic exercise and the court may not decide the appeal. Olson v. Commission for Lawyer Discipline,
901 S.W.2d 520, 522 (Tex.App.--El Paso 1995, no writ); Salgado, 53
S.W.3d at 757. If a judgment cannot have
a practical effect on an existing controversy, the case is moot. Olson, 901 S.W.2d at 522; Salgado,
53 S.W.3d at 757.
The
judgment entered by the juvenile court ordered that the juvenile be placed on
probation under various terms and conditions, including attendance in the
Challenge Program, until her eighteenth birthday. At the entry of judgment, the juvenile was
seventeen years old. Appellant perfected
appeal on June 25, 2001. She was born on
March 12, 1984 and March 12, 2002 marked her 18th birthday. The order that placed the juvenile in the
Challenge Program was not suspended by reason of the filing of this appeal and
remained in effect during the appellate process. The Texas Family Code provides:
An appeal does
not suspend the order of the juvenile court, nor does it release the child
from the custody of that court or of the person, institution, or agency to
whose care the child is committed, unless the juvenile court so orders. However, the appellate court may provide for
a personal bond. [Emphasis added].
Tex.Fam.Code Ann. ' 56.01(g)(Vernon Supp. 2002). The juvenile has completed her probationary
period. Because the prayer for relief
requested only that the judgment be set aside and the case remanded for a new
disposition, the issues presented for review are moot.
June 20, 2002
ANN CRAWFORD
McCLURE, Justice
Before Panel No. 4
Barajas, C.J., Larsen, and
McClure, JJ.
(Do Not Publish) | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2615204/ | 35 Wash. App. 560 (1983)
668 P.2d 610
THE STATE OF WASHINGTON, Appellant,
v.
ROBERT H. WOLL, Respondent.
No. 5693-3-II.
The Court of Appeals of Washington, Division Two.
August 22, 1983.
Michael G. Spencer, Prosecuting Attorney, for appellant.
Michael R. Hutton, for respondent.
PETRIE, J.
Plaintiff, the State of Washington, appeals an order dismissing "all charges against and prosecution" of defendant, Robert H. Woll, "in the interest of justice pursuant to CrR 8.3(b)" following Woll's conviction by jury verdict of the crime of first degree theft. The State also appeals the trial court's alternative portion of that order granting defendant's motion for a new trial, which was based primarily on the trial court's previous refusal to present to the jury defendant's proposed instructions on *562 the issue of "intent." We reverse both the trial court's order of dismissal under CrR 8.3(b) and the trial court's alternative order granting a new trial.
The State's appeal raises three questions: (1) whether the trial court had authority under CrR 8.3(b)[1] to dismiss the instant case after the jury had entered a guilty verdict; (2) whether dismissal under CrR 8.3(b) "in the furtherance of justice" was improper absent governmental misconduct or arbitrary action; and (3) whether an information that charges theft under RCW 9A.56.020(1)(c)[2] requires proof of an intent by the accused to deprive the owner permanently of the property.
On February 1, 1979 defendant Woll deposited $448 in his checking account at the Aberdeen Branch of the Seattle-First National Bank (Sea-First). The bank mistakenly credited Woll's account with $4,448. The defendant discovered this error when he received his next bank statement several days later. Woll testified that he contacted a person, whose name and title he did not obtain, at Sea-First about the mistake and was told to "keep it in limbo until the error has been found." For the next 3 months, Sea-First continued erroneously to credit Woll's account. Then, on April 18, 1979, Woll closed the Sea-First account by cashing a check in the amount of $4,223.93 and depositing the proceeds in an interest-bearing account in another bank. Although Woll denied that he had any "intention to deprive Sea-First of the money" and denied that he had any "intent to permanently take the money," he subsequently spent it all within 2 months.
*563 The Federal Reserve Board detected the bank's mistake on February 21, 1980 and notified Sea-First of its error. The bank then demanded reimbursement from Woll. Because Woll did not timely repay Sea-First, the bank reported the matter to the prosecuting attorney who then initiated these criminal proceedings. On June 11, 1980, Woll was charged with having committed first degree theft "on or about April 18, 1979," by appropriating lost or misdelivered property under RCW 9A.56.020(1)(c). Three days before trial, Woll repaid the bank from the proceeds of a second mortgage he placed on his house.
Following trial and conviction, Woll moved to arrest judgment and/or for a new trial based on the grounds that the trial court erroneously refused to submit to the jury his proposed "to convict" and "intent" instructions.[3] Woll contends that one of the elements the State had to prove beyond a reasonable doubt was that he intended to deprive the bank permanently of its money. The trial court instructed the jury that theft by the appropriation of misdelivered property merely required proof, in the statutory language, of the "intent to deprive."[4]
After considering defendant's alternative motions, the court, on its own motion, dismissed this charge and conviction *564 in the "furtherance of justice" under CrR 8.3(b), declaring that the State had improperly decided to prosecute Woll and that the bank had improperly used the criminal justice system to collect a debt. In addition, the court, alternatively, granted defendant's motion for a new trial. The court reasoned that its refusal to present defendant's proposed instruction might have prevented the jury from finding that defendant had intended merely to borrow the bank's money.
We consider first whether the trial court properly dismissed the case under CrR 8.3(b). For purposes of this appeal only, we accept Woll's contention that the trial court had authority to act under CrR 8.3(b) even after return of the guilty verdict, but we cannot accept his contention that CrR 8.3(b) confers upon a trial court such broad discretion that an appellate court should defer to that discretion under the facts of this case.
[1] CrR 8.3(b) does allow a court to dismiss any criminal prosecution "in the furtherance of justice." However, "the furtherance of justice" under CrR 8.3(b) has been narrowly construed to require "governmental misconduct" or "arbitrary action." State v. Whitney, 96 Wash. 2d 578, 580, 637 P.2d 956 (1981); State v. Starrish, 86 Wash. 2d 200, 544 P.2d 1 (1975).
The record in the instant case is totally devoid of any evidence of governmental misconduct or arbitrary action. Although the trial court (and we might also have) disagreed with the prosecutor's decision to file the charges, the prosecutor's decision is clearly not conduct falling within the purview of CrR 8.3(b). Neither can we hold that the prosecutor's decision to file the charge constituted "arbitrary action." The order of dismissal is therefore reversed.
We turn, then, to the central issue of whether theft by the appropriation of lost or misdelivered property requires proof of the intent to deprive the owner permanently of the property.
The wrongful appropriation of property mistakenly delivered appears to have been considered larceny at common *565 law only if, upon receipt, the recipient knew that it was mistakenly delivered and at that time formed the intent to keep it.[5] However, State v. Olds, 39 Wash. 2d 258, 235 P.2d 165 (1951) and State v. Heyes, 44 Wash. 2d 579, 269 P.2d 577 (1954), construing Rem. Rev. Stat. § 2601(4) (the statutory forerunner of RCW 9A.56.020(1)(c)), distinguished this statutory offense from common law larceny.[6] In State v. Olds, supra, the court expressly held that, in order to sustain a conviction under Rem. Rev. Stat. § 2601(4), no evidence of original felonious intent was necessary. One noted authority interpreted State v. Olds, supra, as holding that Washington's statutory offense of wrongfully appropriating misdelivered property is distinguishable from common law larceny:
The wrongful withholding of property delivered by mistake, with knowledge of the mistake acquired subsequent to the receipt, may be punishable by statute under the name of larceny, but it is an offense distinct from common law larceny.
(Italics ours.) R. Perkins, Criminal Law 254 n. 76 (2d ed. 1969).
[2] Thus, the common law of larceny required proof that the defendant's intent to steal concurred with his mistaken receipt of the property,[7] whereas, under RCW 9A.56.020(1)(c) *566 the "intent to deprive" must exist at the time of the appropriation. In the case at bench, Woll was charged with having committed the crime on or about April 18, 1979. Thus, under the charge and under the trial court's instruction, the prosecution had to prove defendant's intent on the date he transferred the funds not the date or dates on which he subsequently spent the money. Under Washington law, "[t]he gravamen of the offense is the appropriation of the property after having received it". (Italics ours.) State v. Heyes, 44 Wn.2d at 588.
We are persuaded that in order to prove a charge of theft under the statutory offense of appropriation of misdelivered property, the quality of the intent required is the same as that required under the statutory offense of embezzlement. Embezzlement, also, was not larceny at common law. Washington courts have, accordingly, declined to read into the crime of embezzlement the common law requisite for larceny (the intent to deprive permanently). Embezzlement requires proof only of the intent to deprive, and the crime is completed when the accused fraudulently misappropriates the property. State v. Garman, 76 Wash. 2d 637, 647-48, 458 P.2d 292 (1969); State v. Burnham, 19 Wash. App. 442, 445 n. 3, 576 P.2d 917, review denied, 90 Wash. 2d 1020 (1978); State v. Dorman, 30 Wash. App. 351, 355-56, 633 P.2d 1340, review denied, 96 Wash. 2d 1019 (1981).
Therefore, we reject the defendant's contention that theft by the appropriation of misdelivered property incorporates the intent to commit common law larceny. We hold that this crime requires proof of the intent merely to deprive, at any time, the property appropriated and not necessarily coincidental with the wrongful receipt, precisely *567 as the jury was instructed.
Therefore, we reverse the trial court's order granting a new trial as well as the order dismissing the information. The jury's verdict is reinstated, and the cause is remanded for imposition of sentence.
PETRICH, C.J., and WORSWICK, J., concur.
NOTES
[1] CrR 8.3(b) provides:
"The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order."
[2] RCW 9A.56.020(1) provides in part:
"(1) `Theft' means:
"...
"(c) To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him of such property or services."
[3] Defendant's proposed instruction regarding the elements necessary to convict recited in relevant part:
"That the defendant intended to permanently deprive the rightful owner of the property."
Defendant's proposed instruction regarding the necessary intent to commit the crime recited:
"The intent required to establish theft is an intent to permanently deprive the rightful owner of the property. Taking property with an intent to return it does not meet such requirement."
[4] Instruction 5 recited in relevant part:
"That on or about the 18th day of April, 1979, the defendant appropriated lost or misdelivered property of another ... [t]hat the defendant intended to deprive the other person of property ..."
Instruction 7 recited:
"Theft means to appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive that person of such property or services."
[5] Crimes (Clark & Marshall) § 12.06, at 848-49 (M. Barnes 7th ed. 1967); W. LaFave & A. Scott, Criminal Law § 85, at 629 (1972); R. Perkins, Criminal Law 254-56 (2d ed. 1969).
[6] Rem. Rev. Stat. § 2601 provided in relevant part:
"Every person who, with the intent to deprive or defraud the owner thereof
"...
"(4) Having received any property by reason of a mistake, shall with knowledge of such mistake secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto ...
"...
"... shall be guilty of larceny." (Italics ours.)
[7] "Delivery of Possession by Mistake. ... Whether a conversion by the person to whom it is delivered constitutes larceny depends upon his intent when he obtains possession. If property intended for one person is delivered to another by mistake, he acquires the possession, and only the possession. If he acquires possession innocently, his subsequent conversion of the property, animo furandi, [with felonious intent] on discovery of the mistake, is not larceny, but he is guilty of larceny if he knows of the mistake when he receives the property, and takes it then animo furandi. The same is true when a person, in paying or lending money to another, gives him by mistake more money than is intended." (Footnotes omitted. Italics ours.) Crimes (Clark & Marshall) § 12.06, at 848-49 (M. Barnes 7th ed. 1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3092417/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00527-CR
Anthony Devern Session § From the 371st District Court
§ of Tarrant County (1301952D)
v. § April 3, 2014
§ Opinion by Justice Meier
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Bill Meier_______________________
Justice Bill Meier | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3119902/ | AFFIRM as modified; Opinion issued October 30, 2012
In The
(!nurt uf pithi
Viftt! 1i!ttICt tit iXWi tit IZIftW
No. 05-I 2-00382-CR
THE STATE OF TEXAS, Appellant
V.
CRAIG MASON, Appellee
On Appeal from the County Criminal Court No. 6
Dallas County, Texas
Trial Court Cause No. M09-261-39
OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Morris
The trial court in this case denied the State’s first motion for continuance on the day Craig
Mason’s trial for driving while intoxicated was set to begin. After the trial court denied its motion
for continuance, the State filed a motion to dismiss the case without prejudice. The trial court, over
the States objection. dismissed the case with prejudice. The State contends on appeal that the trial
court had no authority to dismiss the prosecution with prejudice without the State’s consent. We
modify the trial court’s order to delete the “with prejudice” language and affirm the order as
modified.
I.
At the Iirst trial setting in appellee’s DWI case. the State filed a written motion for
continuance. Ilie prosecutor explained that the State had subpoenaed the otheer who stopped
appellee but the officer had not appeared that morning for trial. The State had also attempted
to
reach the oftcer through his police department, but the department had been unable to locate the
officer. who was on patrol. The trial court denied the State’s motion br continuance, at which time
the State filed a motion to dismiss the case without prejudice.
At the conclusion of the hearing on the motion for continuance and the motion to dismiss,
the trial judge made clear that she intended to dismiss the case with prejudice, noting that almost
three years had passed from the time of the alleged offense to the time of the first trial setting. The
trial judge also mentioned a possible “time bar” in the case. The trial judge asked where the “good
faith” was in the State’s reflhing the case. The prosecutor responded that the State still believed it
could “make our case once we have the presence of our officer.” At that point, the judge again
decried the fact that almost three years had passed from the time of the alleged offense to the trial
date. She stated that both the motion for continuance and the motion for dismissal had not been
timely filed. She then stated that she thought appellee was entitled to a dismissal with prejudice.
The dismissal order does just that. The record contains no evidence of a speedy trial motion being
filed by appellee. in addition, the record reflects that appellee was released on bond, rather than
incarcerated, from the time of his arrest to the time of trial.
11.
The State brings two issues challenging the trial court’s order. In its first issue, the State
asserts that it is permitted to appeal the trial court’s order under Texas Code of Criminal Procedure
article 44.01 (a)(1). See TEx. CODE CRIrI. PRoc. ANN. art. 44.01 (a)(1) (West Supp. 2011). Appellee
does not contest the State’s right to do so, and it is clear the order is appealable. See Id. We will
therefore confine our analysis to the State’s second issue, whether the trial court erred in dismissing
the case with prejudice.
The State contends that the trial court not only committed reversible error by dismissing the
case with prejudice without the State’s consent hut also committed a void act because the trial court
lacked any legal authority to do so under the circumstances of appellee’s case. A court may take a
particular action only ifthat action is authorized by constitutional provision, statute, or common law.
or if the power rises from an inherent or implied power. Exparle Seidel, 39 S.W.3d 221, 223 (Tex.
Crirn. App. 2001). Irialcourts have no general authority to dismiss a case without the prosecutor’s
consent. See State v. Plantheck, 182 S.W.3d 365. 369 (Tex. Crim. App. 2005). And, ordinarily, a
trial court may dismiss a case only if the prosecutor so requests. State v. Mungia, 119 S.W.3d 814,
816 (Tex. Crim. App. 2003). 1 lere, the State actively opposed the trial coUrt’s granting the dismissal
with prejudice, and the trial court never made findings or stated its specific statutory or constitutional
grounds for dismissing the cause with prejudice.
We have found no authority permitting a trial court to dismiss a case with prejudice based
on the State’s alleged had faith or harassment of the defendant. See Stale v. harbor. No. 01-11-
00574-CR, 2012 WL 1355741, at *3 (Tex. App.—Houston [1St Dist.J Apr. 19. 2012, no pet.) (not
yet released for publication). Moreover, neither the trial judge nor appellee ever alleged the State
engaged in acts demonstrating had faith or prosecutorial misconduct. (‘f State v. Fiye, 897 S.W.2d
324, 331 (Tex. Crim. App. 1995) (upholding lower court’s decision to affirm dismissal of indictment
without State’s consent based on egregious prosecutorial misconduct). To the extent the trial court
was acting in the interest of appellee’s right to a speedy trial, the record contains no evidence
showing appellee moved for a speedy trial or complained of a delay in the case. In fact, the record
shows appellee was not incarcerated as he awaited trial. Accordingly, the trial court had no authority
to dismiss the case with prejudice based on a speedy trial ground. See Harbor. 2012 WI. 1355741,
at *4_5: see a/so lFx. CoD[: C’RRl. PROC. ANN. art. 28061 (West 2006) (authorizing dismissal with
prejudice when “a motion to set aside an indictment, information, or complaint for failure to provide
a speedy trial is sustained”).
To the extent the court was acting to protect appellee’s due process rights proscribing
oppressive delay, we again note that appellee never raised such a complaint and the due process
clause applies to oppressive delays from the time of the alleged offense to the time the charging
instrument is filed. Appellee was charged by information less than four months after the offense
date. The record fails to support the trial court’s action on this basis as well. See Harbor, 2012 WL
1355741, at *5 Further, the two-year statute of limitations for misdemeanor-level DWI was tolled
during the pendency of the charging instrument complained of here, so the trial court could not
dismiss the case with prejudice based on its belief that any future charges would be barred by the
statute of limitations. See Ti/a v. Slate. 267 S.W.3d 3337 (Tex. Crim. App. 2008): see also TEx.
CoDE CRIM. PRoc. ANN. art. 12.02 (West Supp. 2011).
Although a trial court may dismiss a charging instrument to remedy a constitutional violation.
such a dismissal is a “drastic measure only to be used in the most extraordinary circumstances.” See
Man/ga, 119 S.W.3d at 817. Where the record fails to demonstrate a constitutional violation or
where the appellee’s rights were violated but dismissal of the charging instrument is not necessary
to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing
the charging instrument without the consent of the State. See id. in this case, the trial court had the
consent of the State to grant the State’s motion to dismiss but had no additional authority to do so
with prejudice. The language in the order classifying the dismissal as “with prejudice” is not
authorized by law and is therefore void. See Seidel, 39 S.W.3d at 225. Accordingly, we resolve the
State’s second issue in its favor.
We modify the trial court’s order to delete the phrase ‘with prejudice.” See State’ v. Pierce.
816 S.W.2d 824, 831 (Tex. App.—Austin 1)91. no pet.); see also State v, [ass, 846 S.W.2d 934,
936 (Tex. App.—Austin 1993. no pet.). We affirm the trial court’s order as modified.
JOSEYfI B MRRIS
( JLSi1CE
Publish
TEX. R. App. P. 47
1203 82F.P05
nitrt tif 4Tra1
fiftIi itrict 01 ixai it 1t1kt
JUDGMENT
TI IF STATE OF TEXAS. Appellant Appeal from the Count Criminal Court No.
6 of Dallas County, Texas. (Tr.Ct.No. M09-
No. 05-12-003 82-CR 261-39).
Opinion delivered by Justice Morris.
CRAIG MASON. Appellee Justices Francis and Murphy participating.
Based on the Court’s opinion of this date, the trial court’s order dismissing the case
against appellee is MODIFIED to DELETE the phrase “with prejudice.”
As modi0ed, the judgment is AFFIRMEI).
Judgment entered October 30. 2012.
JQsEPTT1ORR1S
_—1JSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4561331/ | 08/28/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 9, 2020 Session
DEBORAH D. BARTLEY ET AL. v. TINY NUNLEY, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF ANTHONY GENE NUNLEY
Appeal from the Chancery Court for Carter County
No. 29844 John C. Rambo, Chancellor
No. E2019-01694-COA-R3-CV
This appeal arose from a dispute between relatives concerning the ownership of improved
real property. The property at issue was conveyed in 2000 via warranty deed to a married
couple, William and Jewel Nunley, and their adult son, Anthony Gene Nunley, each as
tenants in common. Following William Nunley’s death in 2007, Anthony Nunley
purchased his mother’s interest in the property, executing a promissory note in the
amount of $112,509.00 and a deed of trust secured by title to the property.1 In 2015,
Jewel Nunley and Anthony Nunley executed a document stating that the remaining
balance on the note was $37,509.00. Anthony Nunley (“Decedent”) died intestate in June
2016. Decedent’s surviving spouse, Tiny Nunley, filed a petition in the probate division
of the Carter County Chancery Court (“probate court”) and was granted letters of
administration to act as the personal representative (“Personal Representative”) of
Decedent’s estate (“the Estate”). Jewel Nunley filed a claim against the Estate for the
balance owed on the promissory note, which was later settled and released by agreement.
Personal Representative filed an action in the probate court to reform the deed and quiet
title to the subject real property. Two of Decedent’s three adult sisters objected and filed
an action in the Carter County Chancery Court (“trial court”) to partition the property.
The probate court transferred the reformation action to the trial court, treating Personal
Representative’s petition to reform the deed and quiet title as a compulsory counterclaim
to the partition action. The plaintiffs asserted that via the 2000 deed, the property was
conveyed in part to William Nunley as a tenant in common with his one-third interest in
the property then passing to his wife, Jewel Nunley, and their four children, including
Decedent, through intestate succession. Personal Representative contended that the use
of the phrase, “tenants in common,” in the 2000 deed had constituted a mutual mistake
and that the parties had intended for William and Jewel Nunley to own one-half of the
property as tenants by the entirety and for Decedent to own the other half as a tenant in
1
Because several of the individuals involved in this lawsuit share a surname, we will at times refer to
individuals by their first and last names for ease of reference and clarity. No disrespect is intended.
common. Averring that her position was supported by evidence of an oral agreement
between Decedent and his parents, Personal Representative maintained that upon transfer
of Jewel Nunley’s interest to Decedent, he became the sole owner of the property. The
plaintiffs moved for a judgment on the pleadings and filed a motion in limine, requesting
that the trial court exclude any testimony or parol evidence related to alleged oral
agreements among the parties to the 2000 deed. Following a hearing, the trial court
granted the plaintiffs’ motion in limine, finding that the deed was unambiguous and that
admission of additional evidence of Decedent’s intent would violate the parol evidence
rule, the Dead Man’s Statute, and the Statute of Frauds. Accordingly, the trial court
granted the plaintiffs’ motion for judgment on the pleadings, finding that the deed
conveyed title to the property at issue to Decedent and each of his parents as tenants in
common and that William Nunley’s one-third interest had transferred to his wife and
children upon his death. Upon Personal Representative’s motion, the trial court certified
the judgment as final pursuant to Tennessee Rule of Civil Procedure 54.02. Personal
Representative has appealed. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Mark S. Dessauer and Matthew F. Bettis, Kingsport, Tennessee, for the appellant, Tiny
Nunley, individually and as Administratrix of the Estate of Anthony Gene Nunley.
Brett A. Cole, Johnson City, Tennessee, for the appellees, Deborah D. Bartley and
Delilah J. Nunley.
OPINION
I. Factual and Procedural Background
Following Decedent’s death in June 2016, Personal Representative filed her
petition for letters of administration in the probate court on July 1, 2016, averring, inter
alia, that Decedent had died intestate and that he had been the sole proprietor of The
Chair Factory, a furniture store located in Elizabethton, Tennessee. The subject real
property is described in the relevant deeds as “Lots 3 and 4 of Barfield Subdivision,”
located in Elizabethton (“the Property”). The Property had served as a warehouse for
Decedent’s furniture business prior to his death. The probate court entered an order
appointing Personal Representative and also finding her to be the sole beneficiary of the
Estate in accordance with her petition.
2
The warranty deed primarily at issue was executed on August 22, 2000 (“the 2000
Deed”) and operated to convey fee simple title in the Property from East Tennessee Chair
Company, Inc., to William Nunley, Jewel Nunley and Decedent. The conveyance
language at issue in the 2000 Deed stated:
THIS INDENTURE made and entered into on this the 22nd day of
August, 2000, between EAST TENNESSEE CHAIR COMPANY, INC.,
party of the first part, and WILLIAM NUNLEY, JEWEL NUNLEY and
ANTHONY NUNLEY, as tenants in common, parties of the second part.
The 2000 Deed was duly recorded by the Carter County Register of Deeds.
As the trial court found in its final judgment, it is undisputed that at the time of the
2000 Deed’s execution, William and Jewel Nunley had “pledged their personal residence
as collateral to borrow the funds to purchase the [P]roperty for $260,000.” However, as
the trial court also found, “[t]here is a dispute as to whether there was an agreement
between [William and Jewel] Nunley and [Decedent] that [Decedent] would pay this debt
and would then fully own the property.”
On September 15, 2016, Jewel Nunley filed a verified claim against the Estate,
alleging that at the time of his death, Decedent had owed a remaining balance of
$46,705.59 due on a promissory note (“the Note”) secured by a deed of trust (“the Deed
of Trust”) encumbering the Property. She attached a copy of the Deed of Trust, which
had been executed on May 23, 2013, by Decedent, conveying the Property to attorney
T.J. Little, Jr., as trustee and to his successor in trust. The Deed of Trust also stated that
title to the Property had been conveyed via quitclaim deed (“2013 Quitclaim Deed”) on
the same date from Jewel Nunley to Decedent. The 2013 Quitclaim Deed and the Deed
of Trust had been duly recorded. Personal Representative initially filed an exception to
the claim, and Jewel Nunley filed an amended claim with a revised balance in the amount
of $40,974.34.
On April 21, 2017, Personal Representative filed in the trial court a complaint to
reform the 2000 Deed and quiet title to the Property. Personal Representative requested
that “[t]he Deed be reformed to show the intention of the parties and the Court declare
[Decedent] the sole owner of the Warehouse property.” She also requested that the trial
court quiet title in the name of Decedent and that “[a]ll children of William Nunley be
made parties to this lawsuit.” Personal Representative averred that Decedent and his
parents had entered into the 2000 Deed as grantees with the understanding that Decedent
would pay off the mortgage encumbering the parents’ residence and that Decedent would
become the sole owner of the Property once he had paid his parents’ indebtedness in full.
3
Personal Representative attached to her reformation complaint copies of the 2000
Deed; the 2013 Quitclaim Deed; the Deed of Trust; the Note, setting forth Decedent’s
promise to pay $112,509.00 secured by the Deed of Trust; an August 2015 “Agreed
Receipt and Balance on Deed of Trust,” reflecting a remaining balance due under the
Note, agreed to by Jewel Nunley and Decedent, in the amount of $37,509.00 (“2015
Agreement”); and a “Contract to Purchase Real Estate” concerning the Property
(“Contract to Purchase”), which had been executed on May 23, 2013, between Jewel
Nunley as the seller and Decedent as the buyer. The terms of the Contract to Purchase
provide in pertinent part:
1. The agreed purchase price for said real property shall be of the
payment in full of indebtedness owed on Loan Number 01-06-
026589, to Security Federal Savings Bank, in the approximate
amount of $116,000.00, secured by Deed of Trust against the
premises of Jewel Nunley. It was and is the understanding between
the parties hereto at the time of the purchase of the above premises
that the SELLER and her late husband would secure a loan against
their home to purchase the premises and that the BUYER would
discharge said indebtedness in full.
2. The said purchase price shall be paid as follows upon receipt of
evidence of payment in full of the note hereinabove referenced,
SELLER will deliver to BUYER a Quitclaim Deed for all her right,
title and interest in and to the property.
***
7. This Agreement shall inure to the benefit of, and shall be binding
upon, the respective parties and their heirs, personal representative,
successors and assigns.
On May 22, 2017, two of Decedent’s sisters, Deborah D. Bartley and Delilah J.
Nunley, filed in the probate court a motion to dismiss Personal Representative’s
reformation action on the basis of (1) lack of subject matter jurisdiction in the probate
court; (2) lack of standing for Personal Representative to file the petition; and (3) failure
to join necessary parties, particularly Jewel Nunley and Snap-On, Inc. (“Snap-On”),
which they averred held a leasehold interest in the Property. On May 23, 2017, Jewel
Nunley filed a release of her claim against the Estate upon having received payment from
the Estate for the balance due on the promissory note. Filing in the trial court, Personal
Representative replied to the motion to dismiss her reformation action on June 26, 2017,
4
asserting that the trial court had subject matter jurisdiction, that Personal Representative
had standing because the Property was part of the Estate, and that neither Jewel Nunley
nor Snap-On was a necessary party because Jewel Nunley had released her claim against
the Estate and Snap-On did not possess a leasehold interest in the Property.
Ms. Bartley and Delilah Nunley (collectively, “Plaintiffs”) filed a complaint for
partition of the Property by sale, pursuant to Tennessee Code Annotated § 29-27-101
(2012 & Supp. 2019) et seq., in the trial court on July 6, 2017. They named as
defendants Tiny Nunley, both individually and as Personal Representative of the Estate;
Diana N. Gorman, Decedent’s third sister; and Snap-On. Plaintiffs averred in their
complaint that the 2000 Deed unambiguously represented a conveyance of a one-third
interest in the Property each to William Nunley, Jewel Nunley, and Decedent as tenants
in common, meaning that, pursuant to Tennessee Code Annotated §§ 31-2-103 and 104
(2015), William Nunley’s one-third share would have vested in his surviving spouse
(Jewel Nunley) and each of their four children upon his death intestate. See Tenn. Code
Ann. § 31-2-104 (providing that the surviving spouse’s share of an intestate estate if there
are also surviving children is “one-third (1/3) or a child’s share of the entire intestate
estate, whichever is greater.”).
Plaintiffs posited in their complaint that given the prior respective ownership
interests of Jewel Nunley and Decedent following William Nunley’s death, the Property
was owned as follows at that time: (1) Jewel Nunley, 8/18 interest; (2) Decedent, 7/18
interest; (3) Ms. Bartley, 1/18 interest; (4) Delilah Nunley, 1/18 interest; and (5) Ms.
Gorman, 1/18 interest. Further positing that the 2013 Quitclaim Deed therefore conveyed
to Decedent solely the 8/18 interest owned by Jewel Nunley at the time of its execution,
Plaintiffs asserted that following that conveyance, the Property was owned as follows:
(1) Decedent, 15/18 interest; (2) Ms. Bartley, 1/18 interest; (3) Delilah Nunley, 1/18
interest; and (4) Ms. Gorman, 1/18 interest. Plaintiffs attached to their complaint copies
of the 2000 Deed; the 2013 Quitclaim Deed; the Contract to Purchase; and a map of a
portion of Carter County referenced as the plat map in the relevant deeds.
In addition to requesting a partition of the Property by sale according to purported
ownership interests, Plaintiffs asserted in their complaint a claim of unjust enrichment
against Personal Representative and the Estate, alleging that Snap-On had been making
lease payments to Decedent for an unspecified period of time with no portion remitted to
Plaintiffs. In her answer to the partition complaint, filed on July 21, 2017, Personal
Representative denied any knowledge of lease payments made by Snap-On and any
unjust enrichment. Upon Plaintiffs’ subsequent motion of voluntary dismissal, the trial
court entered an order dismissing the claims against Snap-On without prejudice on
September 28, 2017. Snap-On is not participating in this appeal.
5
In her answer, Personal Representative also objected to the legal conclusions
contained in Plaintiffs’ complaint, maintaining her position that Decedent was the sole
owner of the Property at the time of his death. She listed affirmative defenses of the
statute of limitations, accord and satisfaction, estoppel, laches, payment, release, and
waiver. Personal Representative concomitantly filed three motions: one to dismiss the
partition complaint; one to require Plaintiffs to post bond in an amount equal to or double
the amount of the Property pursuant to Tennessee Code Annotated § 29-27-219 (2012);
and one for a stay of the proceedings until her action to reform the deed and quiet title
could be resolved. She also requested attorney’s fees and discretionary costs. Plaintiffs
filed a response objecting to Personal Representative’s motions requesting bond and a
stay.
Personal Representative subsequently filed a memorandum of law in support of
her motion to stay, arguing in part that the trial court had subject matter jurisdiction to
hear both actions because the probate court was a division of the chancery court. As
Personal Representative noted in her memorandum, the same chancellor presided over
both courts. Accordingly, the chancellor conducted a hearing on August 3, 2017, under
the auspices of both the probate court and the trial court. The chancellor subsequently
entered an order on August 24, 2017, transferring Personal Representative’s action to
reform the 2000 Deed and quiet title from the probate court to the trial court upon finding
that the probate court was not the “appropriate forum” in which to consider the matter.2
The trial court directed that Personal Representative’s transferred complaint would be
treated as a compulsory counterclaim to Plaintiffs’ partition complaint. Denying Personal
Representative’s motions to post bond and to stay the partition complaint, the trial court
also directed that it would first adjudicate Personal Representative’s reformation
counterclaim and then proceed to the partition action only if it found that Plaintiffs or
other individuals possessed ownership interests in the Property.
On September 22, 2017, Plaintiffs filed an answer to Personal Representative’s
counterclaim, denying that Decedent was the sole owner of the Property at the time of his
death and denying that the 2000 Deed did not reflect the intent of Decedent and his
parents. Plaintiffs asserted as affirmative defenses (1) lack of ambiguity in the 2000
Deed; (2) no mutual mistake or unilateral mistake coupled with fraud that would allow
for reformation of the 2000 Deed; (3) failure to plead mistake with particularity pursuant
2
We note that pursuant to Tennessee Code Annotated § 16-16-201(a) (Supp. 2019), the chancery court in
Carter County has “exclusive jurisdiction over the probate of wills and the administration of estates of
every nature, including the estates of decedents and of wards under guardianships or conservatorships and
all matters relating thereto . . . .” See generally, In re Estate of Trigg, 368 S.W.3d 483, 494 (Tenn. 2012).
However, as the trial court here determined, probate matters are heard in the probate division of the Carter
County Chancery Court. See, e.g., In re Conservatorship of Hudson, 578 S.W.3d 896, 907 (Tenn. Ct.
App. 2018).
6
to Tennessee Rule of Civil Procedure 9.02; (4) violation of the Statute of Frauds pursuant
to Tennessee Code Annotated § 29-2-101(a)(4)-(5) (2012); (5) violation of the Dead
Man’s Statute, pursuant to Tennessee Code Annotated § 24-1-203 (2017), as barring
introduction of evidence concerning agreements involving William Nunley or Decedent;
(6) waiver through settlement of Jewel Nunley’s claim against the Estate; (7) prejudice
against Plaintiffs due to the passage of time and death of potential witnesses; and (8)
laches.
Upon agreement of the parties, the trial court entered an order on October 19,
2017, joining Tiny Nunley individually as a necessary party when she had previously
been a party solely in her representative capacity (hereinafter collectively, “Personal
Representative”). On November 1, 2018, the trial court entered an order, taking notice
that Personal Representative’s original counsel had died, allowing her counsel’s firm to
withdraw from representation, and giving Personal Representative through the new year
to retain substitute counsel. The trial court subsequently entered an order sua sponte on
January 16, 2019, setting the case for trial and another order on January 25, 2019, finding
that because Personal Representative had not filed notice of new representation, she
would be considered pro se for trial.
On February 6, 2019, Plaintiffs filed a motion for judgment on the pleadings,
pursuant to Tennessee Rule of Civil Procedure 12.03, requesting that Personal
Representative’s counterclaim to reform the deed and quiet title be dismissed. Plaintiffs
also sought a declaration based on the pleadings that via the 2000 Deed, William Nunley,
Jewel Nunley, and Decedent each acquired an undivided one-third ownership interest in
the Property as tenants in common. They requested that the trial court declare that Ms.
Bartley, Delilah Nunley, and Ms. Gorman each held a 1/18 interest in the Property
“pursuant to the interest each inherited from William Nunley upon his death.”
Plaintiffs concomitantly filed their motion in limine, requesting that upon a finding
that the 2000 Deed was unambiguous, the trial court would enter a ruling that “all parol
or extrinsic evidence seeking to construe and interpret the 2000 Warranty Deed and the
title conveyed to the grantees thereby [would be] inadmissible.” They asserted that “all
testimony regarding transactions or statements by and among [Decedent], William
Nunley, and Jewel Nunley” should be found inadmissible pursuant to the Dead Man’s
Statute and that “all testimony and all parol evidence regarding alleged agreements or
understandings by and among William Nunley, Jewel Nunley, and [Decedent]” should be
found inadmissible pursuant to the Statute of Frauds.
Acting through newly retained counsel, Personal Representative filed motions on
February 13, 2019, seeking to continue a hearing that had been set concerning Plaintiffs’
motions and to continue trial. In the meantime, upon agreement of the parties and
7
following a separate hearing, the trial court entered an order on February 20, 2019,
dismissing without prejudice Ms. Gorman as a party to the case. During this hearing, Ms.
Gorman announced through her individual counsel that she had executed and delivered a
quitclaim deed conveying her ownership interest in the Property to Personal
Representative. The trial court subsequently entered an order on February 27, 2019,
granting Personal Representative’s motions for continuance and setting dates for a
hearing on Plaintiffs’ motions and for trial.
Meanwhile, Personal Representative filed a motion to amend her answer to
Plaintiffs’ complaint on February 25, 2019. Relative to the partition action, Personal
Representative sought to add the following affirmative defenses: (1) the statute of
limitations pursuant to Tennessee Code Annotated § 28-3-110 (2017), (2) laches, (3)
waiver, and (4) equitable estoppel. Alternatively, if the trial court were to find that
Plaintiffs possessed legal interests in the Property, Personal Representative sought to
have the trial court declare the value of those interests and determine that payment for
value could be made to Plaintiffs in lieu of selling the Property.
Personal Representative concomitantly filed responses opposing Plaintiffs’ motion
for judgment on the pleadings and Plaintiffs’ motion in limine. In her response opposing
a judgment on the pleadings, Personal Representative postulated that the allegations in
her reformation complaint, “when construed liberally in her favor by taking all factual
allegations as true and giving her the benefit of all the inferences that can be reasonably
drawn from the pleaded facts, state[] a claim for reformation of the Deed.” Personal
Representative alternatively argued that “genuine issues of material fact remain[ed] as to
whether the Deed should be reformed on the grounds of mutual mistake.” She attached
to her response a transcript of a deposition taken from Mr. Little, the attorney who had
been retained by Jewel Nunley in 2013 to prepare the Contract to Purchase and 2013
Quitclaim Deed. Personal Representative also cited excerpts from Mr. Little’s deposition
testimony in her response.
On March 18, 2019, Plaintiffs filed a response to Personal Representative’s motion
to amend, arguing that because the motion to amend was filed nineteen months after the
answer was filed and because the case was set for trial in August 2019, it would be
prejudicial to Plaintiffs to allow Personal Representative to amend her answer to add
affirmative defenses. Plaintiffs simultaneously filed replies to Personal Representative’s
responses to their motions in limine and for judgment on the pleadings, arguing, inter
alia, that the trial court should solely consider the pleadings and that because the
language at issue in the 2000 Deed was purportedly unambiguous, “the only conclusion
that [could] be drawn from the pleadings [was] that the grantees under such Deed
received title to the Warehouse Property as tenants in common . . . .” Following a
hearing, the trial court entered an order on April 3, 2019, granting Personal
8
Representative’s motion to amend her answer to add additional affirmative defenses and
an alternate request for relief and approving an agreement concerning the additional time
for production of documents requested by Plaintiffs.
The trial court subsequently entered its order granting Plaintiffs’ motion for
judgment on the pleadings and dismissing Personal Representative’s counterclaim to
reform the deed on July 17, 2019. In this order, the trial court also determined that “[t]he
statements by and among [Decedent], William [Nunley], and Jewel Nunley are Barred
under the Dead Man’s Statute”; “[u]nder the Statute of Frauds, the agreements and
undertakings, other than 2000 Warranty Deed, are not admissible”; and “[t]he 2000
Warranty Deed is not Subject to Reformation in Light of the 2013 Purchase Contract.”
Noting the parties’ agreement that the “meaning of the language creating the original
tenancy” in the 2000 Deed also controlled the interest of each of the instant parties, the
trial court determined that the 2000 Deed was unambiguous in creating a tenancy in
common among William Nunley, Jewel Nunley, and Decedent. The trial court thereby
declared that at the time of his death, Decedent owned a 5/6, or 15/18, interest in the
Property and that his three sisters—Ms. Bartley, Delilah Nunley, and Ms. Gorman—each
owned an undivided 1/18 interest in the Property.
Upon Personal Representative’s motions, the trial court entered an order on
September 11, 2019, certifying the July 2017 judgment as final, pursuant to Tennessee
Rule of Civil Procedure 54.02, and staying further proceedings in the trial court pending
appeal. Personal Representative timely appealed.
II. Issues Presented
Personal Representative raises three issues on appeal, which we have restated
slightly as follows:
1. Whether the trial court erred by granting Plaintiffs’ motion for
judgment on the pleadings and dismissing Personal Representative’s
counterclaim to reform the deed.
2. Whether the trial court erred by finding that the language of the
conveyance in the 2000 Deed was not ambiguous.
3. Whether the trial court erred by granting Plaintiffs’ motion in limine
based on the Tennessee Statute of Frauds, the parol evidence rule,
and the Tennessee Dead Man’s Statute.
Plaintiffs raise two additional issues, which we have restated as follows:
9
4. Whether, if this Court determines that the trial court erred in
excluding evidence found inadmissible in response to Plaintiffs’
motion in limine, the 2013 Quitclaim Deed and the 2015 Agreement
should also be admitted.
5. Whether the trial court properly applied the standard for a motion for
judgment on the pleadings and, if not, whether Personal
Representative’s counterclaim should be dismissed under the
summary judgment standard.
III. Standard of Review
This Court has previously explained that “[w]hen reviewing orders granting a
Tenn. R. Civ. P. 12.03 motion [for judgment on the pleadings], we use the same standard
of review we use to review orders granting a Tenn. R. Civ. P. 12.02(6) motion to dismiss
for failure to state a claim.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).
As our Supreme Court has elucidated concerning a Tennessee Rule of Civil Procedure
12.02(6) motion to dismiss:
The sole purpose of a Tennessee Rule of Civil Procedure 12.02(6)
motion to dismiss is to test the sufficiency of the complaint, not the strength
of the plaintiff’s evidence. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
1999); Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997). When reviewing
a dismissal of a complaint under Rule 12.02(6), this Court must take the
factual allegations contained in the complaint as true and review the trial
court’s legal conclusions de novo without giving any presumption of
correctness to those conclusions. See, e.g., Doe v. Sundquist, 2 S.W.3d at
922. Because a motion to dismiss a complaint under Rule 12.02(6)
challenges only the legal sufficiency of the complaint, courts should grant a
motion to dismiss only when it appears that the plaintiff can prove no set of
facts in support of the claim that would entitle the plaintiff to relief. See,
e.g., Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn.
2002).
Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 710 (Tenn. 2003).
IV. Judgment on the Pleadings versus Summary Judgment
Personal Representative contends that when the trial court granted Plaintiffs’
motion in limine, the court “refused to consider any other documents or deposition
10
testimony that were either exhibits to or outside of the pleadings when it granted
Plaintiffs’ motion for summary judgment on the pleadings . . . .” Personal Representative
essentially argues that the trial court failed to properly apply the standard applicable to a
Tennessee Rule of Civil Procedure 12.03 motion for judgment on the pleadings because
the court failed to accept as true all of the allegations in her reformation complaint. See
Young, 130 S.W.3d at 63 (explaining that in reviewing a trial court’s decision on a Rule
12.03 motion for judgment on the pleadings, as in reviewing a Rule 12.02(6) motion to
dismiss, “we must construe the complaint liberally in favor of the non-moving party and
take all the factual allegations in the complaint as true.”). However, Personal
Representative also asserts that because Mr. Little’s deposition testimony, attached to her
response to the motion for judgment on the pleadings, “was not excluded by the trial
court,” Plaintiffs’ motion should be treated as one for summary judgment. In response,
Plaintiffs contend in part that because “Personal Representative has no evidence to prove
a different intent behind the 2000 deed or mutual mistake, either Summary Judgment or a
Judgment on the Pleadings is appropriate.” As a threshold matter and upon careful
review, we determine that the trial court did not consider matters outside the pleadings
and properly declined to convert Plaintiffs’ motion for judgment on the pleadings to one
for summary judgment.
Tennessee Rule of Civil Procedure 12.03 provides:
After the pleadings are closed but within such time as not to delay the trial,
any party may move for judgment on the pleadings. If, on a motion for
judgment on the pleadings, matters outside the pleadings are presented to
and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made pertinent
to such a motion by Rule 56.
Generally, “[i]f matters outside the pleadings are presented in conjunction with either a
Rule 12.02(6) motion [to dismiss] or a Rule 12.03 motion [for judgment on the pleadings]
and the trial court does not exclude those matters, the court must treat such motions as
motions for summary judgment and dispose of them as provided in Rule 56.” Patton v.
Estate of Upchurch, 242 S.W.3d 781, 786 (Tenn. Ct. App. 2007).
In this case, Personal Representative had initially attached to her reformation
complaint, which upon transfer to the trial court became her counterclaim, copies of the
2000 Deed, the 2013 Quitclaim Deed, the 2013 Deed of Trust, the 2013 Note, the 2013
Contract to Purchase, and the 2015 Agreement. Given that Personal Representative
sought to prove that the 2013 documents and 2015 Agreement demonstrated a different
interpretation of the intent of the parties to the 2000 Deed than the language of the 2000
11
Deed would indicate, Personal Representative properly attached these documents
pursuant to Tennessee Rule of Civil Procedure 10.03, which provides:
Whenever a claim or defense is founded upon a written instrument other
than a policy of insurance, a copy of such instrument or the pertinent parts
thereof shall be attached to the pleading as an exhibit unless the instrument
is (1) a matter of public record in the county in which the action is
commenced and its location in the record is set forth in the pleading; (2) in
the possession of the adverse party and this fact is stated in the pleading; (3)
inaccessible to the pleader or is of such nature that attaching the instrument
would be unnecessary or impracticable and this fact is stated in the
pleading, together with the reason therefor. Every exhibit so attached or
referred to under (1) and (2) shall be a part of the pleading for all purposes.
These documents attached to Personal Representative’s counterclaim thereby became
part of her pleading. See Tenn. R. Civ. P. 10.03.
When Plaintiffs filed their initial motion to dismiss the reformation complaint in
the probate court, they attached solely a copy of the 2013 Deed of Trust, which was
already a part of Personal Representative’s pleading. When Plaintiffs subsequently filed
their partition complaint in the trial court, they attached copies of the 2000 Deed, the
2013 Quitclaim Deed, the 2013 Contract to Purchase, and a plat map of a relevant portion
of Carter County. Although in this consolidated action, Plaintiffs’ partition complaint
was also a pleading, we note that the only exhibit attached by Plaintiffs that had not been
included in Personal Representative’s counterclaim was the plat map, which is a public
record. See W. Express, Inc. v. Brentwood Servs., Inc., No. M2008-02227-COA-R3-CV,
2009 WL 3448747, at *3 (Tenn. Ct. App. Oct. 26, 2009) (delineating exceptions to the
general rule, including “matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned”
(quoting Ind. State Dist. Council of Laborers v. Brukardt, No. M2007-02271-COA-R3-
CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19, 2009))).
Plaintiffs did not attach any documents or other exhibits to their motion for a
judgment on the pleadings. However, Personal Representative attached the transcript of
Mr. Little’s deposition to her response to the motion for judgment on the pleadings, as
well as citing excerpts of the deposition in her response. She also attached the exhibits to
the deposition, all of which had been previously attached to pleadings except for Mr.
Little’s notes. Concerning the potential effect of attaching and referencing Mr. Little’s
deposition, Personal Representative expressly stated the following in her response:
12
[Personal Representative] has submitted the discovery deposition of T. J.
Little in support of her opposition to the Plaintiffs’ motion. If the
deposition is not excluded by the Court, then Plaintiffs’ motion should be
treated as one for summary judgment. In such event, then consideration of
the motion should be deferred as [Personal Representative] has not had
adequate time for discovery or alternatively denied, as genuine issues of
material fact remain with respect to [Personal Representative’s] claim to
reform the Deed.
We agree that if the trial court had considered Mr. Little’s deposition transcript or
his notes, the effect would have been to convert Plaintiffs’ motion for a judgment on the
pleadings to a motion for summary judgment. See, e.g., Patton, 242 S.W.3d at 787
(“[T]he Plaintiffs and two of the Defendants presented extraneous evidence, and the [trial
court] accepted the extraneous evidence which converted the Rule 12 motion into one for
summary judgment.”). However, we cannot agree with Personal Representative’s
contention that because the trial court did not expressly exclude the deposition transcript
in its judgment, the motion must be converted to one for summary judgment. The trial
court did not mention or reference the deposition transcript whatsoever in its judgment.
Additionally, as Personal Representative acknowledges, the trial court found that
pursuant to the Statute of Frauds, “the agreements and undertakings, other than [the]
2000 Warranty Deed,” would not be admissible in this action, a ruling that clearly
encompassed any testimony that Mr. Little could have offered concerning the
circumstances surrounding the 2013 documents he drafted.
Upon careful consideration of the trial court’s judgment in this action, we
determine that the trial court did not consider Mr. Little’s deposition transcript or his
notes and therefore did not consider matters outside the pleadings. The trial court
properly declined to convert Plaintiffs’ Tennessee Rule of Civil Procedure 12.03 motion
for judgment on the pleadings to a Tennessee Rule of Civil Procedure 56 motion for
summary judgment.
V. The 2000 Deed
In determining that Plaintiffs were each entitled to a 1/18 ownership interest in the
Property, the trial court found the 2000 Deed to be “clear and unambiguous” and not a
candidate for reformation. Personal Representative contends that the trial court erred by
declining to recognize the omission in the 2000 Deed of the marital relationship between
William Nunley and Jewel Nunley as a latent ambiguity. She argues that this latent
ambiguity raises a question concerning whether the intent of the parties to the 2000 Deed
was that each grantee would own a one-third interest in the Property as tenants in
common or that William and Jewel Nunley would own a one-half interest in the Property
13
as tenants by the entirety while Decedent would own the other one-half interest. Personal
Representative further contends that the trial court erred by failing to treat all of her
assertions in the counterclaim as true and by declining to consider evidence beyond the
2000 Deed that the use of “tenants in common” in the conveyance was the result of
mutual mistake in expression by the parties to the 2000 Deed.
Plaintiffs contend that the trial court properly found no latent ambiguity in the
2000 Deed and no relevant factual allegations in Personal Representative’s complaint
that, taken as true, would demonstrate a mutual mistake at the time of the 2000 Deed’s
execution. Upon thorough review of the record and applicable authorities, we conclude
that the trial court did not err in determining that the 2000 Deed unambiguously created a
tenancy in common among the three grantees. Moreover, because even when treating all
of Personal Representative’s factual allegations as true, William Nunley’s intent at the
time of the 2000 Deed’s execution concerning which type of tenancy would be created
cannot be demonstrated and the grantor’s intent remains unknown, we conclude that the
trial court properly determined that the 2000 Deed could not be reformed.
Concerning interpretation of a deed and the standard for reformation of a deed,
this Court has recently explained:
“A deed is a contract.” Richards v. Taylor, 926 S.W.2d 569, 571
(Tenn. Ct. App. 1996). In evaluating a deed, we apply certain established
principles. Id. “The interpretation of a deed is a question of law,” which
we review de novo. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453,
466 (Tenn. 2012) (citations omitted). In interpreting a deed, courts
ascertain the intention of the grantor from the words of the deed as a whole
and from the surrounding circumstances. Id. “Contracts are to be judged
by an objective standard, i.e., what a reasonable onlooker would conclude
the parties intended from the words expressed in the instrument.” See
Richards, 926 S.W.2d at 572 (citation omitted). “It is well settled that a
deed, regular on its face, and properly signed acknowledged, and recorded,
will be reformed only upon the most satisfactory proof that it does not
express the real intention of the parties; that is, what is known as clear,
cogent, and convincing proof, or clear and indisputable proof.” Anderson
v. Howard, 74 S.W.2d 387, 390 (Tenn. Ct. App. 1934).
In re Philip Roseman 2012 Irrevocable Gift Trust, No. M2017-01994-COA-R3-CV, 2018
WL 3217245, at *4 (Tenn. Ct. App. July 2, 2018).
“Tennessee recognizes three basic forms of concurrent ownership in real property:
joint tenancy, tenancy in common, and tenancy by the entirety.” Bryant v. Bryant, 522
14
S.W.3d 392, 399 (Tenn. 2017). Concerning the distinctions among these forms of
concurrent ownership, our Supreme Court has elucidated:
A tenancy by the entirety is held exclusively by persons who are
legally married. It is ancient in origin and remains firmly established in
Tennessee. Griffin [v. Prince], 632 S.W.2d [532,] 535 [(Tenn. 1982),
overruled on other grounds by In re Estate of Fletcher, 538 S.W.3d 444
(Tenn. 2017)]; see Tenn. Code Ann. §§ 36-3-505, 31-1-108. Tenancy by
the entirety is based on the concept that those who are married are not
separate persons; rather, they “are but one person.” Tindell v. Tindell, 37
S.W. 1105, 1106 (Tenn. Ch. App. 1896) (quoting Den v. Hardenbergh, 10
N.J.L. 42, 45 (1828)); see Taul v. Campbell, 15 Tenn. (7 Yer.) 319, 333
(1835) (noting that a husband and wife “take but one estate, as a
corporation would take, being by the common law deemed but one
person”). Consequently, co-tenants in a tenancy by the entirety do not hold
their interest by moieties (by parts), they hold by the entirety: “Each is not
seised of an undivided moiety, but both are . . . seised of the whole. They
are seised, not per my et per tout [by the half and by the whole], but solely
and simply per tout [by the whole].” Tindell, 37 S.W. at 1106 (quoting
Den, 10 N.J.L. at 45).
When property is held in a tenancy by the entirety, upon the death of
one spouse, the survivor continues to own the whole in fee simple.
Technically, then, the surviving spouse does not acquire the fee simple
interest through a right of survivorship; the survivor “enjoys the whole
[after the death of the other spouse], . . . not because any new or further
estate or interest becomes vested, but because of the original conveyance,
and of the same estate and same quantity of estate as at the time the
conveyance was perfected.” Id. (quoting Den, 10 N.J.L. at 45) (explaining
that “[b]etween husband and wife, the jus accrescendi [right of
survivorship] does not exist”); see Cole Mfg. Co. v. Collier, 95 Tenn. 115,
31 S.W. 1000, 1001 (1895); Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695,
698 (1956); Taul, 15 Tenn. (7 Yer.) at 336-37.
At common law, the primary difference between holding in joint
tenancy and tenancy in common is that joint tenancy includes a right of
survivorship between the co-tenants by operation of law, whereas tenancy
in common does not. See Peebles [v. Peebles], 443 S.W.2d [469,] 470
[(Tenn. 1969)]; Bunch [v. Bunch], [No. 02A01-9705-CH-00106,] 1998 WL
46217, at *1 [(Tenn. Ct. App. Jan. 8, 1998)]. While a tenancy by the
entirety can consist only of two persons seized of one estate, both joint
15
tenancy and tenancy in common “impl[y] a plurality of persons” and “each
of the owners has an undivided moiety, or other proportional part, of the
whole premises.” Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45);
see Taul, 15 Tenn. (7 Yer.) at 336 (citation omitted) (noting that, unlike a
tenancy by the entirety, “[t]he estate of joint tenants is [a] unit, made up of
divisible parts subsisting in different natural persons”).
“Tenants in common are jointly seized of the whole estate, each
having an equal right of entry and possession . . . .” Moore v. Cole, 200
Tenn. 43, 289 S.W.2d 695, 697 (1956). Right of survivorship is not an
incident of tenancy in common; however, the grantor may include in the
instrument of conveyance express language attaching a right of
survivorship to the tenancy in common. See Runions [v. Runions], 207
S.W.2d [1016,] 1017 [(Tenn. 1948)] (“Even a tenancy in common may
have a right of survivorship attached to it if the grantor expresses an
intention that it shall be so.” (quoting Mitchell v. Frederick, 166 Md. 42,
170 A. 733, 735-36 (1934))).
Id. at 400-401 (footnotes omitted). We note that “the creation of a tenancy by the entirety
can be rebutted only when a contrary intention is expressed in the instrument itself, as
opposed to extrinsic evidence.” Smith v. Sovran Bank Cent. S., 792 S.W.2d 928, 930
(Tenn. Ct. App. 1990).
In finding that the language of the 2000 Deed unambiguously created a tenancy in
common, the trial court stated in its judgment in pertinent part:
In the present case, the language of the deed provides for an
ownership as tenants in common. The deed states:
THIS I[N]DENTURE made and entered into on this the 22nd
day of August, 2000, between EAST TENNESSEE CHAIR
COMPANY, INC., party of the first part, and WILLIAM
NUNLEY, JEWEL NUNLEY and ANTHONY NUNLEY, as
tenants in common, parties of the second part.
The language leaves no ambiguity because it plainly states the
tenancy. The language here uses explicit, clear language of tenants in
common in the deed to establish ownership. The intent of the parties is
evidenced by the language from the deed that states the names followed by
the legal phrase “tenants in common.”
16
It is true that the deed fails to explain that Jewel and William
[Nunley] were married. [Personal Representative] asserts the lack of words
concerning marriage is evidence that the deed is latently ambiguous. As
such, one could infer that the deed lacks clarity because there is no
language to show the relationship of the parties or a clause to clarify the
ownership. Nonetheless, the deed explicitly states that the tenancy is a
tenants in common arrangement. Therefore, the language of the deed is
clear and unambiguous.
Further, the language, here, does not leave any latent ambiguities
because the language clearly states the intent of the parties. The deed uses
the descriptive legal phrase, tenants in common, following the creation of
the tenancy. The 2000 Warranty Deed created a Tenancy in Common.
***
Here, the deed uses the phrase “tenants in common” following the
names of the parties who are in tenancy. Here, the plaintiffs argue the
language is clear because it shows the tenancy and the parties in ownership,
while [Personal Representative] argues that the tenancy was intended to be
a tenancy by the entireties because William and Jewel [Nunley] were
married when the tenancy was created and [Decedent] was going to take
ownership. The instrument is assumed to be a tenancy in the entirety unless
the instrument provides an intent to create a tenants in common.
Comparable to Myers [v. Comer, 234 S.W. 325, 326 (Tenn. 1921)], the
deed contains language that explicitly describes a tenancy in common. Id.
at 481. The language, here, shows intent to describe a tenancy in common
because the deed has language that uses the terms, tenants in common.
Therefore, the 2000 Warranty Deed created a tenancy in common.
We agree with the trial court’s determination.
In this case, the language of the 2000 Deed is clear and unambiguous in creating a
tenancy in common among William Nunley, Jewel Nunley, and Decedent. Personal
Representative postulates that under Tennessee law, because William and Jewel Nunley
were married at the time of the 2000 Deed’s execution, a presumption was created that
“the interest in the Property owned by William Nunley and Jewel Nunley was as tenants
by the entirety.” In support of this position, Personal Representative relies on our
Supreme Court’s decision in Bennett v. Hutchens, 179 S.W. 629 (Tenn. 1915). In
Bennett, the 1897 deed at issue listed the two grantees, who were married, by name but
did not specify whether they would hold the property as tenants in common or tenants by
17
the entirety. Bennett, 179 S.W. at 630. The High Court determined that the deed created
a tenancy by the entirety. Id. (“By the authorities it is held that a deed to husband and
wife, which would at common law have created in them an estate in joint tenancy, had
they not been married, does, by the fact of the marriage, create in the husband and wife
an estate by the entireties.”). More recently, in a case involving the “gap years”
following passage of the Bejach Law, our Supreme Court explained that although during
a time period spanning January 1, 1914, through April 15, 1919, “a conveyance of real
property to a husband and wife created a tenancy in common, with no right of
survivorship,” “at all other times under the common law . . . such conveyance created a
tenancy by the entirety with a right of ownership in the surviving spouse”). Roberts v.
Bailey, 470 S.W.3d 32, 38 (Tenn. 2015).
The key distinction between cases falling under this common law rule and the case
at bar is that the 2000 Deed at issue here specifically set forth the grantees as tenants in
common.3 The trial court analogized the factual situation here to that in Myers v. Comer,
234 S.W. 325, 326 (Tenn. 1921), wherein the deed in question conveyed property to a
husband and wife “‘jointly and severally in equal moities.’” Our Supreme Court
determined that because these words “denote[d] that it was the intention of the grantor
that the grantees should take and hold the land in joint and severable equal shares,”
“[t]his would prevent the grantees from taking as tenants by the entirety.” Id. Contrary
to Personal Representative’s assertion, we do not discern any latent ambiguity in the
omission of the marital relationship between two of the grantees in the 2000 Deed.4
Inasmuch as the 2000 Deed specifically set forth that William Nunley, Jewel Nunley, and
Decedent would own the Property as tenants in common, the trial court properly
concluded that the 2000 Deed unambiguously created a tenancy in common among the
3
Our Supreme Court has recently noted that the common law rule of “a joint tenancy incidentally and
implicitly includ[ing] a right of survivorship” has never been adopted by Tennessee in its statutory
scheme. Estate of Haire v. Webster, 570 S.W.683, 691 n.12 (Tenn. 2019).
4
This Court has defined a latent ambiguity in a contract as follows:
A latent ambiguity is one where the equivocality of expression or obscurity of intention
does not arise from the words themselves, but from the ambiguous state of extrinsic
circumstances to which the words of the instrument refer, and which is susceptible of
explanation by the mere development of extraneous facts without altering or adding to
the written language or requiring more to be understood thereby than will fairly comport
with the ordinary or legal sense of the words and phrases used. Teague v. Sowder, 121
Tenn. 132, 114 S.W. 484 (1908).
Moore & Assocs. Memphis LLC v. Greystone Homeowners Ass’n Inc., No. W2016-00721-COA-R3-CV,
2017 WL 244112, at *4-5 (Tenn. Ct. App. Jan. 20, 2017) (quoting Ward v. Berry & Assoc., 614 S.W.2d
372, 374 (Tenn. Ct. App. 1981)).
18
three grantees with each owning an undivided one-third interest. See id. (“It is also the
general rule governing the construction of deeds, when it is sought to determine what
estate was conveyed thereby, to ascertain the intention of the parties, if possible, by
giving to each word of the deed its appropriate meaning and enforce that intention.”).
In determining that the reformation of the 2000 Deed requested by Personal
Representative was not possible, the trial court found in its judgment in relevant part:
Here, [Personal Representative] seeks to reform the 2000 warranty
deed to reflect the alleged original intent of William [Nunley], Jewel
[Nunley] and [Decedent] that either survivor spouse would have a one-half
interest in the property that could be sold to [Decedent] as reflected by the
assertion that [Decedent] acquired full title with the 2013 Contract to
Purchase. This is a request of the Court that requires the Court to rewrite
the 2000 deed, not merely reform it. If the Court attempted to reform the
2000 Warranty Deed, the change will likely reflect the intention of two
parties, Jewel [Nunley] and [Decedent], at the time of the purchase contract
in 2013. However, the reform will not represent all parties’ interest. The
2013 Contract was made after the death of William [Nunley], years after
the original deed. Therefore, the interests and agreement between all three
parties is likely not reflected in the 2013 Contract. Furthermore, the Court
will lack testimony of two of the three parties who obtained ownership. In
conclusion, the Court will not reform the deed because [Personal
Representative] will not be able to show a mistake with clear evidence as
two parties are deceased and the contract only concerns two of the parties
years after the original deed.
The trial court thus found that William Nunley’s intent at the time of the 2000 Deed’s
execution could not be known and could not be demonstrated by the evidence of
subsequent agreements between Jewel Nunley and Decedent that Personal Representative
sought to present. Upon careful review, we agree with the trial court on this point as
well.
Regarding the reformation of a written agreement, such as the 2000 Deed at issue
here, this Court has articulated:
[I]t is well settled that the courts have the power to alter the terms of a
written contract where, at the time it was executed, both parties were
operating under a mutual mistake of fact or law regarding a basic
assumption underlying the bargain. The courts are also empowered to
modify the provisions of a written contract where only one of the parties
19
was operating under a mistake of fact or law if the mistake was influenced
by the other party’s fraud.
The judicial alteration of the provisions of a written agreement is an
equitable remedy known as “reformation.” The basic purpose of
reformation is to make the contract “conform to the real intention of the
parties.” It is “driven by a respect for the parties’ intent and gives effect to
the terms mutually agreed upon by the parties.” Because the law strongly
favors the validity of written instruments, a person seeking to reform a
written contract must do more than prove a mistake by a preponderance of
the evidence. Instead, the evidence of mistake must be clear and
convincing.
An important subcategory of mistake is mistake in the expression, or
integration, of the agreement. A mistake in expression occurs where one or
both parties to a written contract erroneously believe that the contract
embodies the agreement that both parties intended it to express. In such
cases, the courts may adjust the provisions of the written contract to make it
express the true agreement reached by the parties.
In order to obtain reformation on the basis of mistake in expression,
a party must present clear and convincing evidence that: (1) the parties
reached a prior agreement regarding some aspect of the bargain; (2) they
intended the prior agreement to be included in the written contract; (3) the
written contract materially differs from the prior agreement; and (4) the
variation between the prior agreement and the written contract is not the
result of gross negligence on the part of the party seeking reformation.
Reformation is not automatically barred simply because one of the parties
denies that there was an antecedent agreement or claims that the mistake
was not mutual.
Sikora v. Vanderploeg, 212 S.W.3d 277, 286-88 (Tenn. Ct. App. 2006) (footnotes and
internal citations omitted).
As Plaintiffs have asserted on appeal, the parties to the 2000 Deed included the
grantor, The Chair Factory, as well as the three grantees. Personal Representative has
made no factual assertions regarding whether The Chair Factory intended to convey the
Property to the grantees as an equally divided, three-part tenancy in common or as a two-
part tenancy in common with one-half of the ownership interest as a tenancy by the
entirety. Collier v. Walls, 369 S.W.2d 747, 760 (Tenn. Ct. App. 1962) (defining a mutual
mistake as “a mistake common to all the parties to the written contract or the instrument
20
or in other words it is a mistake of all the parties laboring under the same
misconception.”). Inasmuch as the grantees were the parties whose rights were affected
by the distinction, for purposes of this analysis and in light of the issues raised by
Personal Representative, we will confine our consideration of intent at the time of the
2000 Deed’s execution to the grantees. However, we note that in the event that the
reformation action had proceeded to trial, the intent of The Chair Factory at the time of
the 2000 Deed’s execution also would have been relevant.
Personal Representative posits that if the trial court had considered all of the
factual allegations in her reformation complaint as true, pursuant to the Rule 12.03
standard for a judgment on the pleadings, the court would have found that her allegations
revealed a mutual mistake in the use of the language, “tenants in common,” in the 2000
Deed. However, in her complaint and in her argument, Personal Representative relies
heavily on documents and assertions related to documents created and executed in 2013
and 2015, long after the 2000 Deed had been executed and long after one of its three
grantees, William Nunley, had died in 2007. The only factual allegation in Plaintiff’s
complaint concerning William Nunley’s intent at the time of the 2000 Deed’s execution
is the following paragraph:
[Personal Representative] avers that [Decedent] entered into an agreement
with his parents, William Nunley and wife, Jewel Nunley to purchase a
warehouse for $260,000.00 from East Tennessee Chair Company, and that
William Nunley and wife, Jewel Nunley would use their home to borrow
the money for said purchase and that [Decedent] would pay back the
indebtedness and he would own the property outright.
(Paragraph numbering omitted.)
We emphasize that in order to reform the 2000 Deed based on a mutual mistake,
Personal Representative would have to be able to demonstrate that the mistake occurred
at the time of the deed’s execution. See Sikora, 212 S.W.3d at 288 n.13 (“To reform a
contract based on mistake, a plaintiff must establish that the contract was executed under
mutual mistake or a unilateral mistake induced by the defendant’s fraudulent
misrepresentation.” (quoting 27 WILLISTON ON CONTRACTS § 70:93, at 495)); see, e.g.,
Hitchcock Metal Sources, Inc. v. Mulford, No. E2003-00738-COA-R3-CV, 2004 WL
178390, at *6 (Tenn. Ct. App. Jan. 29, 2004) (affirming the trial court’s denial of the
plaintiff’s request to reform the parties’ contract upon concluding that “the essential
element” of mutual mistake had not been met).
Even when taken as true, Personal Representative’s allegation does not set forth
whether William Nunley intended to own the Property prior to Decedent’s payment of
21
the indebtedness as equal tenants in common with Jewel Nunley and Decedent or, as
Personal Representative contends, as a one-half tenancy by the entirety with Jewel
Nunley with the other one-half interest vested in Decedent. The allegation merely sets
forth an agreement that once Decedent paid off the debt, he would own the Property
“outright.” Nothing is set forth in the complaint concerning William Nunley’s intent in
the event that he died before the completion of the agreement, which he unfortunately
did. Ergo, the trial court did not err in determining that Personal Representative had
failed to present a viable claim for reformation of the 2000 Deed.
VI. Motion in Limine
Personal Representative has also raised an issue concerning whether the trial court
erred by granting Plaintiffs’ motion in limine upon finding documents and testimony
inadmissible based on the Tennessee Statute of Frauds, the parol evidence rule, and the
Tennessee Dead Man’s Statute. In response, Plaintiffs have raised an issue specifically
regarding the 2013 Quitclaim Deed and the 2015 Agreement if this Court were to
conclude that the trial court had erred in granting the motion in limine. Having
determined that the trial court did not err by granting Plaintiffs’ motion for judgment on
the pleadings based on the plain language of the 2000 Deed and the lack of any available
evidence concerning William Nunley’s intent in entering into a tenancy in common, we
further determine that the parties’ issues pertaining to the motion in limine are
pretermitted as moot.
VII. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court. We remand
this case for enforcement of the judgment, further proceedings consistent with this
opinion, and collection of costs below. Costs on appeal are taxed to the appellant, Tiny
Nunley, individually and as Administratrix of the Estate of Anthony Gene Nunley.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
22 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2900439/ | COURT OF APPEALS
COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
ENRIQUE DIAZ, )
)
No. 08-01-00495-CR
Appellant, )
) Appeal from the
v. )
)
168th Impact District Court
THE STATE OF TEXAS, )
)
of El Paso County, Texas
Appellee. )
)
(TC# 20000D02369)
)
O
P I N I O N
Appellant Enrique
Diaz appeals of his conviction for possession of marijuana and a
ten-year probated sentence.
In January 2002,
this Court became aware that no reporter=s
record for this case had been filed. The
assigned court reporter filed an affidavit with the Court stating no financial
arrangements had been made for the preparation of a reporter=s record to support Appellant=s appeal. She also stated she had been informed that
Appellant=s
attorney had been unable to contact Appellant.
As a result, this Court issued an order on February 11, 2002, requiring
the trial court to conduct a hearing to determine whether the appellant desired
to prosecute his appeal, whether he had been deprived of a reporter=s record or effective assistance of
counsel, and to make appropriate findings and recommendations. On February 22, 2002, the trial court held a
status hearing in compliance with the Court Order. The trial court filed findings of fact and a
recommendation stating that Appellant had failed to maintain contact with his
attorney and recommending this appeal be dismissed. This Court then issued an order that the
appeal be submitted on the clerk=s
record alone, pursuant to Tex.R.App.P.
37.3(c).
In light of the
abovementioned occurrences, we find authority to dismiss this appeal pursuant
to Tex.R.App.P. 37.3(c), which
states:
(C)
If No Reporter=s
Record Filed Due to Appellant=s
Fault. Under the following
circumstances, and if the clerk=s
record has been filed, the appellate court may--after first giving the
appellant notice and a reasonable opportunity to cure--consider and decide
those issues or points that do not require a reporter=s
record for a decision. The court may do this if no reporter=s record has been filed because:
(1)
the appellant failed to request a reporter=s record; or
(2)(A) appellant failed to pay or make arrangements
to pay the reporter=s fee to
prepare the reporter=s
record; and
(B) the
appellant is not entitled to proceed without payment of costs.
Tex.R.App.P.
37.3(c).
There is no
question that Appellant has been given reasonable and adequate opportunity to
demonstrate he still wishes to maintain his appeal in this Court. This Court has no issues or points before it
that do not require a reporter=s
record for decision. We are therefore
unable to reach the merits of the appeal.
The appeal is dismissed pursuant to Tex.R.App.P.
37.3(c).
June
13, 2002
DAVID WELLINGTON
CHEW, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish) | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1499840/ | 711 S.W.2d 857 (1986)
Monica (Coleman) WHICKER (Reynolds), Appellant,
v.
Don Delore WHICKER, Appellee.
Court of Appeals of Kentucky.
May 30, 1986.
Case Ordered Published and Modified by Court of Appeals June 13, 1986.
*858 Charles E. Lowe, Pikeville, for appellant.
Thomas Goodman, Pikeville, for appellee.
Before HAYES, C.J., and CLAYTON and WHITE[1], JJ.
CLAYTON, Judge.
This is an appeal from an order of the Pike Circuit Court which (1) denied to the appellant arrearages in child support in the sum of $7,280.00; and (2) increased appellee's child support obligation from $75.00 per month to $175.00 per month. We affirm in part and reverse in part.
Appellant Monica Whicker (now Monica Reynolds) and appellee Don Whicker were divorced in 1975. Pursuant to the divorce decree Don Whicker was ordered to pay $75.00 per month child support for one child, who was at that time four years old. By 1984, however, Don was in arrears in the sum of $7,280.00 and Monica brought a motion in Pike Circuit Court to hold Don in contempt.
Don, in his defense, asserted that he and Monica had made an oral agreement whereby Monica would forego all arrearages owed by Don, and Don would increase his child support payments by five dollars per month to a total of $80.00 per month. The trial court found that the parties had, indeed, made such an agreement, and that Monica was not entitled to any arrearages. In addition, the trial court sua sponte increased Don's child support payments to $175.00 per month, although neither party had made any motion for modification of child support.
We first consider the appellant's motion for sanctions pursuant to CR 76.12(8)(c), based upon the appellee's failure to file a brief in this appeal. Pursuant to CR 76.12(8)(c)(i) the Court accepts the appellant's statement of the facts and issues as correct. Where those facts conflict with findings of fact by the trial court, however, we may accept them only where we can say that the trial court's findings are clearly erroneous. CR 52.01; Tuskos Engineering *859 Corp. v. Tuskos, Ky.App., 676 S.W.2d 794, 797 (1984).
The appellant first contends that the trial court erred (1) in finding the existence of an oral agreement between the parties, and (2) in enforcing that agreement with regard to the appellee's child support arrearages.
There is conflicting law on the issue of whether the parties to a divorce and support agreement may privately modify such an agreement without prior judicial approval. One line of cases holds that private agreements, even oral agreements, are permissible. Ruby v. Shouse, Ky., 476 S.W.2d 823 (1972); Tinnell v. Tinnell, Ky.App., 681 S.W.2d 918 (1984). See also Story v. Story, Ky., 423 S.W.2d 907 (1968); Davis v. Davis, Ky., 431 S.W.2d 866 (1968). Such agreements may be enforced by the courts against the parties so long as (1) they are proved with "reasonable certainty," and (2) the court finds that the agreement is equitable and fair to the affected children under the circumstances. Ruby v. Shouse, 476 S.W.2d at 825.
A second line of cases supports the traditional view that there is an absolute duty to support one's child and that such obligation may not be diminished by contract between the parties. Fyffe v. Fyffe, Ky., 375 S.W.2d 407, 409, (1964); Wilford v. Wilford, Ky., 371 S.W.2d 867, 868 (1963); Elkins v. Elkins, Ky., 359 S.W.2d 620, 622 (1962); Pegram v. Pegram, 310 Ky. 86, 219 S.W.2d 772, 773 (1949); Hayden v. Hayden, 215 Ky. 299, 284 S.W. 1073, 1074 (1926); Edleson v. Edleson, 179 Ky. 300, 200 S.W. 625, 631 (1918).
The issue is further complicated by KRS 403.250(1), which states in pertinent part:
Except as otherwise provided . . . the provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. Id.
KRS 403.250(1) provides the exclusive method for effecting a modification of an award of child support where a parent paying support has not agreed to automatic increases based upon a percentage of earnings. McGowan v. McGowan, Ky.App., 663 S.W.2d 219, 225 (1983).
Several policy considerations regarding private modification of child support seem fundamentally clear. First, any agreement between parties to a divorce which avoids the adversarial judicial process is to be encouraged. Second, such agreements, to be enforceable, must be approved by a court of law, which must make its determination according to the existing equities under the circumstances. In enforcing any modification, furthermore, the interests of the children involved must be a major consideration. Finally, a parent's obligation to support a child may not be absolutely waived by any contract between the parties.
With the foregoing discussion in mind, we hold that oral agreements to modify child support obligations are enforceable, so long as (1) such agreements may be proved with reasonable certainty, and (2) the court finds that the agreement is fair and equitable under the circumstances. In order to enforce such agreements, a court must find that modification might reasonably have been granted, had a proper motion to modify been brought before the court pursuant to KRS 403.250 at the time such oral modification was originally agreed to by the parties. Furthermore, in keeping with prior decisions, such private agreements are enforceable only prospectively, and will not apply to support payments which had already become vested at the time the agreement was made. See Dalton v. Dalton, Ky., 367 S.W.2d 840, 842 (1963).
Parties who decline to use the procedures set out in KRS 403.250 run the risk of having their private agreements declared invalid by a court when the parties attempt to have the agreements judicially enforced. Those agreements which attempt to accomplish privately what a court could not order legally will be declared invalid and will not be enforced.
In the case before us, the trial court found that there was an oral agreement *860 between the parties. As there is nothing in the record on appeal to indicate the evidence considered by the trial court, we are unable to determine whether the existence of the agreement was proved with sufficient certainty. However, we must presume, in the absence of evidence to the contrary, that the trial court's finding was supported by the evidence before it. Reid v. Reid, Ky., 300 S.W.2d 225, 225 (1957). We cannot say, therefore, that the trial court was clearly erroneous in finding the existence of the agreement.
The trial court abused its discretion, however, in enforcing the agreement. First, the terms are manifestly unfair to the affected child. The agreement, as enforced, allowed the custodial parent to forego $7,280.00 in return for a promise to pay a total of $270.00 over approximately 54 months until the child's majority. Such an agreement is inequitable on its face and should not have been enforced.
Second, the agreement was erroneously upheld as to support arrearages which had already become vested at the time the agreement was allegedly made by the parties. As stated in our discussion, supra, it was error for the trial court to permit the parties to accomplish privately what the court could not have ordered. We therefore reverse that portion of the trial court's order which held that the appellant was not entitled to arrearages in child support.
The appellant next contends that the trial court erred in finding that she was entitled to an increase in child support, in the absence of a motion for modification by either party. The trial court, in ordering an increase in child support, necessarily made a finding that such increase was justified under KRS 403.250(1). Again, as there is nothing in the record on appeal to indicate what evidence was considered by the trial court, we must presume that the evidence supported the findings which were made. Reid, 300 S.W.2d at 225. We note that the trial court failed to make required findings of fact. CR 52.01; Burnett v. Burnett, Ky., 516 S.W.2d 330, 332 (1974). We also note, however, that no request was made for such findings, and we do not consider the issue on appeal. CR 52.04; Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982). As the appellant suffered no prejudice, and in the absence of a brief for the appellee, we decline to say that the trial judge was clearly erroneous in his findings, or that he abused his discretion in ordering an increase in the appellee's child support payments. Nothing would preclude, however, a motion by Don Whicker for further modification pursuant to KRS 403.250(1), or appropriate private agreement between the parties.
The judgment of the Pike Circuit Court is affirmed in part and reversed in part with directions for the trial court to address the issue of child support arrearages owed to the appellant Monica Whicker Reynolds by the appellee Don Delore Whicker, and to provide to the appellant such remedy as she may be entitled.
All concur.
NOTES
[1] This case was submitted prior to Judge White's appointment to the Kentucky Supreme Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1405173/ | 593 F.3d 196 (2010)
David H. WEINTRAUB, Petitioner-Appellant,
v.
BOARD OF EDUCATION OF The CITY SCHOOL DISTRICT OF The CITY OF NEW YORK, Community School District 32, City of New York, Douglas Goodman, Daisy O'Gorman, Felix Vazquez, Frank Miller, Aida Serrano, Lawrence Becker, Jerry Cioffi, Respondents-Appellees.[*]
Docket No. 07-2376-cv.
United States Court of Appeals, Second Circuit.
Argued: November 25, 2008.
Decided: January 27, 2010.
*198 Richard A. Engelberg, Kreines & Engelberg, Mineola, NY, for Petitioner-Appellant.
Edward F.X. Hart (Leonard Koerner, on the brief), of Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Respondents-Appellees.
Before: JACOBS, Chief Judge, WALKER, and CALABRESI, Circuit Judges.
Judge CALABRESI dissents in a separate opinion.
JOHN M. WALKER, JR., Circuit Judge:
Petitioner-Appellant David H. Weintraub, a former New York City public school teacher, appeals from an order of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), inter alia, dismissing his First Amendment employment retaliation claim against Respondents-Appellees the Board of Education of the City School District of the City of New York, Community School District 32, the City of New York, Douglas Goodman, Daisy O'Gorman, Felix Vazquez, Frank Miller, Aida Serrano, Lawrence Becker, and Jerry Cioffi (collectively, "Defendants"). Weintraub alleged that Defendants violated his First Amendment rights by retaliating against him for filing a formal grievance with his union that challenged the school assistant principal's decision not to discipline a student who had thrown books at Weintraub during class. The district court dismissed Weintraub's claim in light of Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which held that the First Amendment does not protect speech made pursuant to a public employee's official duties.
We find that Weintraub's filing of the grievance was in furtherance of one of his core duties as a public school teacher, maintaining class discipline, and had no relevant analogue to citizen speech. Accordingly, we conclude that, under Garcetti, 547 U.S. at 421-24, 126 S.Ct. 1951, Weintraub filed the grievance "pursuant to [his] official duties," and thus, not as a citizen for purposes of the First Amendment. The grievance, therefore, is not protected speech, and we affirm the district court's dismissal of Weintraub's retaliation claim.
BACKGROUND
The underlying facts and procedural history of this case are detailed in the district court's April 28, 2006 opinion that granted in part and denied in part Defendants' motion for summary judgment. See Weintraub v. Bd. of Educ. of City of N.Y., 423 F.Supp.2d 38, 42-48 (E.D.N.Y.2006) ("Weintraub I"). We set forth below only such facts as are relevant to this appeal.
I. Underlying Events
In September 1998, Weintraub began teaching fifth grade at P.S. 274, a public school in Brooklyn, New York. During his first two months, there were no apparent problems in his class, with his performance, or between Weintraub and school administrators.
On Friday, November 6, 1998, after a student threw a book at him during class, Weintraub referred the student to his immediate supervisor, Assistant Principal Douglas Goodman. Shortly thereafter, *199 Goodman returned the student to Weintraub's classroom. The next school day, the same student threw additional books at Weintraub. Weintraub again referred the student to Goodman, who returned the student to Weintraub's class.
Weintraub was "upset" by Goodman's decision not to discipline the student and concerned that "if this child could do this to [Weintraub], ... it would put the ... other students at risk." (Pl.'s Dep. 51:17-19, Jul. 19, 2002.) Weintraub subsequently learned that the same student "put a kid in the hospital later in the year." (Pl.'s Dep. 51:20-21, 23-25.) After the second book-throwing incident, Weintraub told Goodman, "If nothing is going to be done, I [will] have to file a grievance with the union to have something done about this because [the student] should be suspended for this," (Pl.'s Dep. 43:3-6), and "it is not an environment a teacher would want to go to where a child is allowed to throw a book at teachers," (Pl.'s Dep. 47:10-12). Weintraub also "underst[oo]d" that under "citywide Board of Education policy ... a student assaulting the teacher in 5th grade... should have been suspended." (Pl.'s Dep. 44:3-6.) Weintraub told other teachers at P.S. 274 about the incidents and his intention to file a grievance, and then filed the grievance with his union representative.
Weintraub alleges that because of his complaints, including his grievance, Goodman and other school officials retaliated against him through "acts of intimidation, harassment, workplace abuse, and deliberate attempts to undermine [his] authority." Weintraub I, 423 F.Supp.2d at 42. Specifically, Weintraub avers that he received unfounded negative classroom evaluations, performance reviews, and disciplinary reports; was wrongfully accused of sexually abusing a student and abandoning his class; was arrested for misdemeanor attempted assault of another teacher at P.S. 274 on allegedly false grounds; and was ultimately terminated. After the criminal charges against him were dropped, Weintraub was denied reinstatement to teach and unsuccessfully sought review of his dismissal in state court.
II. District Court Proceedings
In July 2000, Weintraub commenced this action in the Eastern District of New York asserting several claims against Defendants, including adverse employment retaliation in violation of the First Amendment. Defendants moved for summary judgment on all of Weintraub's claims.
On April 28, 2006, the district court denied Defendants' motion with respect to Weintraub's First Amendment claim, reasoning that "the content of speech questioning an administrative response, or lack thereof, to discipline problems in the classroom relates to a matter of public concern, regardless of whether that speech comes from a[n] elected official, citizen, or teacher." Id. at 52. Finding that the "form and context of Weintraub's statements" did not warrant a finding to the contrary, and that Weintraub's "primary motivation was a general concern for safety in the classroom and school," rather than "a desire for some personal gain," the district court held that "Weintraub's complaint to Goodman and subsequent grievance were protected by the First Amendment." Id.
On May 29, 2007, after Defendants moved for reconsideration in light of the Supreme Court's subsequent decision in Garcetti, 547 U.S. at 421-24, 126 S.Ct. 1951, the district court granted in part and denied in part Defendants' motion for summary judgment with respect to Weintraub's First Amendment claim. The district court identified three categories of speech for which Weintraub could "plausibly claim retaliation":
*200 (1) [his] private conversation with Goodman in which he expressed his dissatisfaction with Goodman's handling of the book-throwing incidents and threatened to file a grievance if the situation was not rectified; (2) Weintraub's conversations with other teachers about the incidents and Goodman's failure to impose adequate discipline; and (3) the formal grievance itself.
Weintraub v. Bd. of Educ. of City of N.Y., 489 F.Supp.2d 209, 214 (E.D.N.Y.2007) ("Weintraub II").
The district court denied summary judgment with respect to the second category, because "Weintraub's conversations with other teachers about his conflict with Goodman ... [we]re clearly not within the scope of his employment duties." Id. at 220.
In contrast, the district court concluded that under Garcetti and in light of cases from other circuits applying Garcetti in similar situations, the First Amendment does not protect the first and third categories of speech: "In both instances, Weintraub was speaking as an employee, proceeding through official channels to complain about unsatisfactory working conditions." Id. at 219-20. The district court, however, believed that "a substantial ground for difference of opinion may exist on" the precise issue of "whether a public employee acts as an `employee,' and not as a `citizen,' when he notifies his supervisors, either formally or informally, of an issue regarding the safety of his workplace that touches upon a matter of public concern, as well as on the employee's own private interests." Id. at 221-22. The district court noted that the issue was one of first impression in this circuit. The district court then dismissed Weintraub's First Amendment claims based on his conversation with Goodman and his filing of a grievance. The district court encouraged Weintraub to file an interlocutory appeal on the basis that the case involves a controlling question of law for which there is substantial ground for difference of opinion, and stated its intent to stay the action pending the outcome of any such appeal.
Pursuant to 28 U.S.C. § 1292(b), we accepted Weintraub's interlocutory appeal, which is limited to the question of whether the First Amendment protects his filing of a grievance. We now examine his claim.
DISCUSSION
We review de novo the district court's partial grant of summary judgment, construing the evidence in the light most favorable to the non-moving party. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c), and accordingly, when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
"Regardless of the factual context, we have required a plaintiff alleging retaliation to establish speech protected by the First Amendment." Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). Under the First Amendment, "a state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). "Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti, 547 U.S. at 417, 126 S.Ct. *201 1951; see also Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick, 461 U.S. at 147, 103 S.Ct. 1684. A public employee, however, must "by necessity. . . accept certain limitations on his or her freedom," because, his or her speech can "contravene governmental policies or impair the proper performance of governmental functions." Garcetti, 547 U.S. at 418-19, 126 S.Ct. 1951. The Supreme Court's employee-speech jurisprudence reflects "the common sense realization[s] that government offices could not function if every employment decision became a constitutional matter," and that "government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Connick, 461 U.S. at 143, 146, 103 S.Ct. 1684. Accordingly, the Supreme Court has strived "to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
In Garcetti, the Supreme Court, while keeping "these principles in mind," 547 U.S. at 420, 126 S.Ct. 1951, "`narrowed the Court's jurisprudence in the area of employee speech' by further restricting the speech activity that is protected." Reilly v. City of Atl. City, 532 F.3d 216, 228 (3d Cir.2008) (quoting Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir.2007)). Garcetti involved a deputy district attorney's memorandum to his supervisor expressing his view that an affidavit used to obtain a search warrant contained serious misrepresentations. 547 U.S. at 414, 126 S.Ct. 1951. Garcetti explained that "[u]nderlying [the Supreme Court's employee-speech jurisprudence] has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to `constitutionalize the employee grievance.'" Id. at 420, 126 S.Ct. 1951 (quoting Connick, 461 U.S. at 154, 103 S.Ct. 1684). Specifically, Garcetti "h[e]ld that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951.
"If [we] determine[ ] that [Weintraub] either did not speak as a citizen or did not speak on a matter of public concern, `[he] has no First Amendment cause of action based on his . . . employer's reaction to the speech.'" Sousa v. Roque, 578 F.3d 164, 170 (2d Cir.2009) (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951). We hold that Weintraub, by filing a grievance with his union to complain about his supervisor's failure to discipline a child in his classroom, was speaking pursuant to his official duties and thus not as a citizen. Accordingly, Weintraub's speech was not protected by the First Amendment, and there is no cause for us to address whether it related to a "matter of public concern." See id.; see also Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (finding "the controlling factor" to be whether the employee-speech at issue was made pursuant to official duties and declining to examine whether it related to an issue of public concern).
The Garcetti Court defined speech made "pursuant to" a public employee's job duties as "speech that owes its existence to a public employee's professional responsibilities." 547 U.S. at 421, 126 S.Ct. 1951. In Garcetti, this inquiry was straightforward because the plaintiff admitted that his speech was part of his official job duties. See id. at 424, 126 S.Ct. 1951. In *202 the instant case, Weintraub asserts that he did not file his grievance pursuant to his official duties. Instead, he contends that "[t]he key" to the First Amendment inquiry provided by Garcetti is whether he was "required, as part of his employment duties to initiate grievance procedures against . . . Goodman." (Appellant's Br. at 11 (emphasis in original).) Weintraub further alleges that Defendants have pointed to no "rule or regulation of the Board of Education, federal or state statute, job handbook or other job description, [that] state[s] unequivocally that the speech for which [Weintraub] claims he was retaliated against" was made pursuant to his official duties as a public school teacher. (Appellant's Reply Br. at 8.)
We are unpersuaded. The objective inquiry into whether a public employee spoke "pursuant to" his or her official duties is "a practical one." Garcetti, 547 U.S. at 424, 126 S.Ct. 1951. The Garcetti Court cautioned courts against construing a government employee's official duties too narrowly, underscoring that
[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.
Id. at 424-25, 126 S.Ct. 1951. In light of Garcetti, other circuit courts have concluded that speech that government employers have not expressly required may still be "pursuant to official duties," so long as the speech is in furtherance of such duties, e.g., Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.2007).
In Williams, the Fifth Circuit concluded that the plaintiff, an Athletic Director, wrote memoranda to his school principal and office manager requesting information about the use of funds collected at athletic events in order to perform his duties of buying sports equipment, taking students to tournaments, and paying their entry fees. 480 F.3d at 693-94. The Williams court explained that "[s]imply because [the plaintiff] wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job"; instead, "[a]ctivities undertaken in the course of performing one's job are activities pursuant to official duties." Id.
Similarly, in Renken v. Gregory, 541 F.3d 769 (7th Cir.2008), the Seventh Circuit held that when a professor complained to university officials about the difficulties he encountered in administering an educational grant he had been awarded, he was speaking as a faculty employee because the grant, though not necessarily a formal requirement of his job, was "for the benefit of students" and therefore "aided in the fulfillment of his teaching responsibilities." Id. at 773. See also Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir.2006) (same for a public officer's negative remarks following an official meeting to discuss plans for department reorganization, because the comments were made "in her capacity as a public employee contributing to the formation and execution of official policy"). The Ninth, Tenth, and Eleventh Circuits have drawn similar conclusions, finding that "a public employee's duties are not limited only to those tasks that are specifically designated," Phillips v. City of Dawsonville, 499 F.3d 1239, 1242 (11th Cir.2007). See, e.g., Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1204 (10th Cir.2007) (holding that teachers spoke pursuant to their job duties when they discussed the school academy's expectations regarding student behavior, curriculum, pedagogy, and classroom-related *203 expenditures); Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir.2006) (same for a prison guard's internal complaints documenting her superior's failure to respond to inmates' sexually explicit behavior towards her); Battle v. Bd. of Regents, 468 F.3d 755, 761 (11th Cir.2006) (same for university employee's report alleging improprieties in her supervisor's handling and management of federal financial aid funds).
We join these circuits and conclude that, under the First Amendment, speech can be "pursuant to" a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was "pursuant to" his official duties because it was "part-and-parcel of his concerns" about his ability to "properly execute his duties," Williams, 480 F.3d at 694, as a public school teachernamely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning. See, e.g., Brammer-Hoelter, 492 F.3d at 1204 ("[A]s teachers, Plaintiffs were expected to regulate the behavior of their students."). As in Renken and Williams, Weintraub's speech challenging the school administration's decision to not discipline a student in his class was a "means to fulfill," 541 F.3d at 774, and "undertaken in the course of performing," 480 F.3d at 693, his primary employment responsibility of teaching.
Judge Calabresi's dissent questions whether our decision today conflicts with the result in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). Dissent of J. Calabresi at 207-08. It does not. In Givhan, a junior-high English teacher was dismissed primarily because she internally aired her grievances regarding the placement of black people working in the cafeteria, the integration of the administrative staff, and the placement of black Neighborhood Youth Corps workers in semiclerical positions. See id. at 411, 99 S.Ct. 693; Ayers v. W. Line Consol. Sch. Dist., 555 F.2d 1309, 1313 (5th Cir.1977). Givhan expressed concern with the impression that the "respective roles of whites and blacks" in these positions would leave on black students. Ayers, 555 F.2d at 1313. From our brief recitation of the facts of Givhan, it is plain that, unlike here, the grievance she aired was not in furtherance of the execution of one of her core duties as an English teacher. Givhan's grievance concerned the general impression that blacks students might take away from the staffing of non-teaching positions; Weintraub's grievance, in contrast, concerns the administration's refusal to discipline a student who threw books at Weintraub during class.
Our conclusion that Weintraub spoke pursuant to his job duties is supported by the fact that his speech ultimately took the form of an employee grievance, for which there is no relevant citizen analogue. The Garcetti Court drew a distinction between the unprotected speech at issue in that case, and "public statements outside the course of performing [an employee's] official duties" which "retain some possibility of First Amendment protection." 547 U.S. at 423, 126 S.Ct. 1951. While "[t]he First Amendment protects some expressions related to the speaker's job," id. at 421, 126 S.Ct. 1951, "[w]hen a public employee speaks pursuant to employment responsibilities,. . . there is no relevant analogue to speech by citizens who are not government employees," id. at 424, 126 S.Ct. 1951. Garcetti provided two examples of speech with a citizen analogue: (1) a schoolteacher's "letter to a local newspaper," which the Supreme Court held to be *204 protected in Pickering, because it had "no official significance and bore similarities to letters submitted by numerous citizens every day," and (2) "discussi[ons of] politics with a co-worker." Id. at 422-23, 126 S.Ct. 1951. Although the lack of a citizen analogue is "not dispositive" in this case, id. at 420, 126 S.Ct. 1951, it does bear on the perspective of the speakerwhether the public employee is speaking as a citizenwhich is the central issue after Garcetti, see Williams, 480 F.3d at 692 (stating that "[u]nder Garcetti, we must shift our focus from the content of the speech to the role the speaker occupied when he said it" to determine whether the speaker was "acting in her role as `citizen'").
In Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006), the Ninth Circuit shed light on when a relevant analogue to citizen speech exists. The Freitag court focused on a former prison guard's "responsibility as a citizen to expose . . . official malfeasance" in holding that the First Amendment protected her complaints to a state senator and the Inspector General's office about her superior's failure to respond to inmates' sexually explicit behavior towards female guards. Id. at 545 (emphasis in original). The Freitag court emphasized that there was a relevant citizen analogue to the employee's speech, because the "right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee." Id.
The lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general. Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication made pursuant to an existing dispute-resolution policy established by his employer, the Board of Education. Cf. Boyce v. Andrew, 510 F.3d 1333, 1343-44 (11th Cir.2007) (finding that the "form and context" of the employees' complaints, which were made directly to supervisors and were not "sent to an outside entity," weighed against First Amendment protection). As with the speech at issue in Garcetti, Weintraub could only speak in the manner that he did by filing a grievance with his teacher's union as a public employee. Cf. Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008) (compiling cases "holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job"). His grievance filing, therefore, lacked a relevant analogue to citizen speech and "retain[ed no] possibility" of constitutional protection. Garcetti, 547 U.S. at 423, 126 S.Ct. 1951.
Notwithstanding the Supreme Court's pronouncement in Garcetti, Weintraub urges us to find that his speech is protected by the First Amendment under Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158 (2d Cir. 2006), a case we decided two months before the Supreme Court issued its decision in Garcetti. In Cioffi, we held that the First Amendment protected a high school athletic director's letter to his supervisor and to the school board criticizing the school district's handling of a sexual harassment and hazing incident. Id. at 161-65. Weintraub directs us to a footnote in Cioffi opining that "[t]he Supreme Court's forthcoming decision in Garcetti. . . as to whether the First Amendment protects an employee's purely job-related speech . . . does not affect the disposition of [Cioffi's] case because the record here establishes that Cioffi's speech was not made strictly pursuant to his duties as a public employee." (Appellant's Br. at 15 *205 (quoting Cioffi, 444 F.3d at 167 n. 3) (emphases in Appellant's Brief).)
We are not persuaded that Cioffi compels us to find that the First Amendment protects Weintraub's filing of a grievance. In Cioffi, we held that a letter that an athletic director wrote to his supervisor and to the school board was protected speech. Id. at 161, 165. The speech at issue in Cioffi had been publicly disclosed and the athletic director subsequently pursued the public controversy in a press conference; thus, the "public's interest in receiving the well-informed views" of the athletic director, as a government employee, Garcetti, 547 U.S. at 419, 126 S.Ct. 1951, was strong. In contrast, Weintraub never communicated with the public about the book-throwing incidents and the school administration's subsequent refusal to discipline the particular student. Accordingly, we remain convinced that under Garcetti, because Weintraub made his statements "pursuant to" his official duties as a schoolteacher, he was "not speaking as [a] citizen[ ] for First Amendment purposes," 547 U.S. at 421, 126 S.Ct. 1951, and thus, that his speech was not protected.
CONCLUSION
For the reasons stated above, the order of the district court is AFFIRMED.
CALABRESI, Circuit Judge, dissenting:
Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), lends itself to multiple interpretations, and the majority's decision to construe it broadly (and, concomitantly, to construe public employees' First Amendment protections narrowly), while a possible reading, is not compelled by anything in the Supreme Court's opinion. Because I think a less expansive definition of speech made "pursuant to . . . official duties," id. at 421, 126 S.Ct. 1951, is both a more appropriate reading of Garcetti and a more constructive resolution of the "delicate balancing" required by the First Amendment in the public employment context, id. at 423, 126 S.Ct. 1951, I respectfully dissent.
As I read the majority opinion, it holds that a public employee's speech is "pursuant to official duties" and accordingly unprotected when it both (a) is "in furtherance of" the employee's "core duties," and (b) "ha[s] no relevant analogue to citizen speech." Maj. Op. at 198. To be sure, Garcetti contains some language that can be read along these lines. But Garcetti leaves open the definition of "pursuant to official duties," and I do not think that the majority's two requirements, either separately or in combination, provide the right doctrinal framework for analyzing that question.[1]
The majority's first prong, which looks to whether speech is "in furtherance of" an employee's "core duties," seems to me too broad. The majority's discussion could be read to imply thatassuming the second prong of the majority's test is also satisfiedclassroom teachers receive no First Amendment protection anytime they speak on matters that implicate anything that is "an indispensable prerequisite to effective teaching and classroom learning." Maj. Op. at 203. But the prerequisites for effective learning are broad and contentious; everything from a healthy diet to a two-parent *206 family has been suggested to be necessary for effective classroom learning, and hence speech on a wide variety of topics might all too readily be viewed as "in furtherance of" the core duty of encouraging effective teaching and learning. The line-drawing this entails is necessarily subjective and provides little certainty to the employers and employees who must structure their behavior around our law. Is speech regarding, say, a teacher's concerns about a student's misconduct outside the classroom "in furtherance of" the teacher's core duty of maintaining class discipline? What of a teacher who discovers that a student is the victim of domestic abuse, which is affecting the student's classroom performance, and brings his concerns to the administration's attention? The majority's elaboration of Garcetti provides no administrable standards for analyzing such cases, and as such poorly serves not only the courts and juries that will hear future cases but also the parties who look to us for legal guidance.
The majority's second prong, which asks whether there is a "relevant citizen analogue" to Weintraub's speech, Maj. Op. at 203, is also a plausible interpretation of Garcetti, but I am not convinced that it is the right one. I do not read Garcetti's discussion of "analogue[s] to speech by citizens who are government employees," Garcetti, 547 U.S. at 424, 126 S.Ct. 1951, to set out a doctrinal requirement. Rather, the Supreme Court was expounding upon "the theoretical underpinnings of [its] decisions." Id. at 423, 126 S.Ct. 1951. That is, it was explaining why speech that is "pursuant to employment responsibilities," id. at 424, 126 S.Ct. 1951, is unprotected, not defining that category of speech.
The idea that the existence of citizen analogues is a prerequisite for suit seems contradicted by Garcetti's statement that the fact that a public employee "expressed his views inside his office, rather than publicly, is not dispositive." Id. at 420, 126 S.Ct. 1951; accord Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) ("[The Supreme] Court's decisions . . . do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly."). A "citizen analogue" inquiry will often replicate the private/public distinction that the Supreme Court has disavowed. The majority's analysis illustrates this problem, noting that "[r]ather than taking his grievance elsewhere, through channels available to citizens at large, Weintraub's speech took the form of an internal communication made pursuant to an existing dispute-resolution policy established by his employer." Maj. Op. at 204.[2] The Supreme Court has made clear that not all internal speech is unprotected, see Garcetti, 547 U.S. at 420, 126 S.Ct. 1951, and accordingly some speech that is not "through channels available to citizens at large" must be free from retaliation.
Even when read together, the majority's two prongs permit readings that would allow retaliation against much speech that seems to me to require protection and to remain protected after Garcetti. This sits uneasily with the Supreme Court's repeated assertion that "the members of a community most likely to have informed and definite opinions" about an issue must "be able to speak out freely on such questions *207 without fear of retaliatory dismissal." Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 572, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); accord Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Consider Givhan, for example. In Givhan, a junior-high teacher had privately requested that the school principal make a number of administrative changes, all of which "reflect[ed] Givhan's concern as to the impressions on black students of the respective roles of whites and blacks in the school environment." Ayers v. W. Line Consol. Sch. Dist., 555 F.2d 1309, 1313 (5th Cir.1977). Writing for a unanimous Supreme Court, then-Justice Rehnquist wrote that Givhan's speech was protected even though it consisted of a private, internal communication and even though the principal was a willing recipient of her speech. See Givhan, 439 U.S. at 415-16. Would Givhan come out the same way under the majority's framework? Givhan's speech concerned her students' opinions on the school's handling of racial issues, a matter that has serious pedagogical implications. Accordingly, it could be described as a "means to fulfill . . . [his] primary employment responsibility of teaching," and, thereby, as an effort to further her core duty of "effective teaching." Maj. Op. at 203 (internal quotation marks and citations omitted); cf. id. at 202 (citing Renken v. Gregory, 541 F.3d 769, 773 (7th Cir. 2008), for the proposition that any actions taken "for the benefit of students" and that "aid[ ] in the fulfillment of . . . teaching responsibilities" are within a teachers' duties). And it certainly was a private communication to a willing audience that a regular citizen likely could not access in the same way. As a result, I fear that some courts will conclude that speech like Givhan's would fail both prongs of the majority's test. But Garcetti specifically reaffirmed Givhan. See Garcetti, 547 U.S. at 420-21, 126 S.Ct. 1951.[3]
Furthermore, the pragmatic concerns motivating Garcetti do not support such an expansive reading. Garcetti recognized the need for employers to have the freedom to "ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission." Id. at 422-23, 126 S.Ct. 1951. When an employee is engaged in speech that the "employer itself has commissioned or created," id. at 422, 126 S.Ct. 1951, then the employee is acting as an agent or a mouthpiece of the employer, and the employer must have a substantial degree of control over the employee's execution of his responsibilities. If an employer could not discipline or fire an employee for the substance of his work product, the employer would be all but unable to function.
By contrast, when an employee's speech is not part of the implementation of the employer's business operations, the employer does not depend on "substantive consistency and clarity," id. at 422, 126 S.Ct. 1951, in that speech. Instead, employers may well benefit from a narrowly defined exception to First Amendment protection, for an exemption that sweeps more broadly than necessary will likely encourage employees to make complaints publicly when they might otherwise be handled internally. See id. at 424, 126 S.Ct. 1951 ("Giving employees an internal *208 forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.").[4]
I would hold the scope of Garcetti to be coextensive with its prime concerns and to go no further. An employee's speech is "pursuant to official duties" when the employee is required to make such speech in the course of fulfilling his job duties. This necessitates a "practical" inquiry into each plaintiff's job duties. See id. at 424, 126 S.Ct. 1951; see also Marable v. Nitchman, 511 F.3d 924, 932-33 (9th Cir.2007). I do not mean to suggest that speech must be explicitly envisioned in a job description or specifically requested by the employer; on this point I agree with the majority. See Maj. Op. at 203. ("[S]peech can be `pursuant to' a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer."). But it must be possible to say that the employer has "commissioned or created" the speech, Garcetti, 547 U.S. at 422, 126 S.Ct. 1951that the employer in some way relies on the speech made by the employee, as where the speech is an "official communications" or is used by the employer to "promote the employer's mission," id. at 423, 126 S.Ct. 1951.
In Garcetti, for example, the plaintiff Richard Ceballos's responsibilities as a calendar deputy called for him "to advise his supervisor about how best to proceed with. . . pending case[s]." Id. at 421, 126 S.Ct. 1951. The speech at issue involved a memo recommending that a case assigned to Ceballos be dismissed, which Ceballos was not authorized to do without his supervisor's approval. Brief of Petitioner at 4, Garcetti, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The memo that Ceballos wrote was not merely related to his job duties, but rather it was the very thing he was paid by the Los Angeles County District Attorney's Office to do. Without Ceballos's competent advice and input, his employer could not function anywhere near as well. His employer therefore had a need to supervise the quality and content of that speech, and was entitled to discipline him accordingly.
As far as the record reflects, Appellees here did not in any way depend on Weintraub bringing union grievances or refraining from bringing them (subject, of course, to the requirement that speech not "disrupt[] the workplace," Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006)). He may well have been in a position to file a grievance only because of his official duties, and the subject matter of that grievance may have had the potential to further those duties, but neither of these facts establishes that he filed his grievance pursuant to his official duties.
In the present posture of the case, I take it as a given that Weintraub's duties entailed informing the school administration of violent incidents, such as those at the root of this case, as a means of facilitating the school's disciplinary apparatus. This justifies the District Court's holding that Weintraub's comments to his supervisor were not protected.[5] But grieving the administration's response through his union is quite another matter. And neither *209 the Appellees nor the majority direct us to any evidence that such a response was in any way required of Weintraub. It is possible that the union grievance was an official part of a process by which employees brought subjects of concern to Appellees' attention, facilitating corrective action; if this were the case, then Weintraub's grievance might be pursuant to his official duties and exempt from First Amendment protection.[6] But on the record before us, there is no reason to think this is so.[7]
For these reasons, I respectfully dissent.
NOTES
[*] The Clerk of Court is directed to amend the caption as noted.
[1] I do not share the majority's belief that the Supreme Court "`narrowed [its] jurisprudence in the area of employee speech'" in Garcetti. Maj. Op. at 201 (quoting Reilly v. City of Atl. City, 532 F.3d 216, 228 (3d Cir. 2008)). Garcetti did not overturn or even call into question any of the Court's prior precedents on employee speech; indeed, it specifically reaffirmed or cited approvingly many of the precedents that the majority opinion suggests were "narrowed." See, e.g., Garcetti, 547 U.S. at 417, 419, 420, 126 S.Ct. 1951.
[2] Additionally, the description of Weintraub's union complaint as an "internal communication" seems dubious. The Union Federation of Teachers is an external body, even if the union representative through whom Weintraub directed his complaint was presumably an employee of the Appellees.
[3] I recognize and greatly appreciate the majority's analysis of why its two-prong test is consistent with Givhan, and why Givhan is distinguishable from the case before us. But if Givhan survives it is because the two-pronged test the majority employs is not in fact the end of the matter. For that reason, I discuss Givhan primarily to illustrate why I believe that the test outlined today does not suffice to differentiate protected and unprotected speech.
[4] On this point, both the majority and at least one of the dissenters in Garcetti were in agreement. See Garcetti, 547 U.S. at 427, 126 S.Ct. 1951 (Stevens, J., dissenting) ("[I]t seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.").
[5] Because Weintraub does not appeal this part of the District Court's holding, we need not consider it in any detail.
[6] As a general matter, I doubt that most employers would view union activity as something that their employees do for the employer's benefit. There is a distinct irony in the idea that unions, which so many employers seek to exclude from the workplace, are somehow transmuted into entities that "promote the employer's mission," Garcetti, 547 U.S. at 423, 126 S.Ct. 1951, for purposes of the First Amendment.
[7] If nothing else, this presents a question that should be explored on remand or put before a jury. It should not be disposed of on summary judgment without further inquiry. This is exactly what the Ninth Circuit did in Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006), upon which the majority relies. Freitag found that a first level of internal forms filed by a corrections officer about inmate misconduct was unprotected, as the officer was "required as a part of her official duties to report inmate misconduct and to pursue appropriate discipline," but it also remanded the case to the district court "for a determination of whether prison guards are expected to air their complaints regarding prison conditions all the way up to the CDCR director." Marable, 511 F.3d at 932; see also Freitag, 468 F.3d at 546. I agree with the majority that Freitag provides a good model for the case before usbut I do not believe that it supports the majority's conclusion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614891/ | 124 Ariz. 362 (1979)
604 P.2d 626
April TANSY and Paul Tansy, wife and husband, Appellants,
v.
Charles E. MORGAN and Jane DOE Morgan, husband and wife, Appellees.
No. 14168.
Supreme Court of Arizona, In Division.
December 26, 1979.
Paul Broadwell, P.C., Robert C. Howard, Jr., Phoenix, for appellants.
Johnson, Tucker, Jessen & Dake, P.A., by G. Michael Jessen, Richard H. Oplinger, Phoenix, for appellees.
GORDON, Justice:
Plaintiffs April and Paul Tansy appeal a judgment in favor of defendants Charles E. and Jane Doe (Michelle) Morgan after trial by jury of an automobile collision suit. Assuming jurisdiction pursuant to 17A A.R.S., *363 Arizona Rules of Civil Appellate Procedure, Rule 19(e), we reverse the judgment of the Superior Court.
The facts in this case, as they developed from testimony at trial, are almost entirely undisputed. April Tansy was driving her car eastbound on Peoria Avenue near 71st Avenue with her sister and nephew as passengers in the front seat. The weather was clear, and there were no visual obstructions on Peoria Avenue that day. At the site of the accident, Peoria Avenue had a 50 m.p.h. speed limit and was a two-lane roadway which was level and straight for a long distance in both directions. Plaintiff came to a slow stop, because there were two tumbleweeds on her side of the road, one of which was blocking her vision. At the location where plaintiff halted, there was a shoulder on the right side of the road that was just wide enough for one car. Beyond the shoulder was an irrigation ditch. Because of oncoming westbound traffic in the other lane, plaintiff was prevented from circumventing the tumbleweeds via the paved portion of the road.
Plaintiff remained at a stop for two or three minutes while she and her sister discussed whether they ought to get out and remove the obstructions. Plaintiff did not activate her emergency flashes while stopped, but she and her sister testified at trial that she did keep her foot on the brake to prevent her car, which had an automatic transmission, from moving. The only disputed fact in the case is whether plaintiff's brake lights were in operation while she was stopped.[1]
Defendant Charles Morgan had driven east onto Peoria Avenue from 73rd Drive with his wife Michelle Morgan seated beside him. It was approximately a quarter of a mile from 73rd Drive to the site of the accident. There were no other vehicles between defendant's and plaintiff's cars. As he entered Peoria Avenue, defendant began traveling at 25-30 m.p.h. He first became aware of plaintiff's car ahead of him when he was approximately 300 feet from it. At that point, he concluded that the vehicle was moving, because he saw no brake lights, no intersection, and no other apparent traffic impediment, which might have caused plaintiff's car to stop.
When defendant was approximately 100 feet from plaintiff's car, and traveling at about 45 m.p.h., he realized that plaintiff's car was not moving. He braked immediately, but was unable to stop and collided with the rear of plaintiff's vehicle. Defendant did not swerve to the left because of oncoming westbound traffic. Although he did consider swerving to the right, he chose not to, viewing it unsafe because of the irrigation ditch beyond the road's shoulder.
Plaintiffs appeal the judgment entered on the jury's verdict in defendants' favor and the court's denial of a motion for a new trial, citing as error two jury instructions, which the court gave over plaintiffs' timely objections.
The first challenged instruction involved the doctrine of sudden emergency:
"A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence or the appearance of imminent danger to himself or others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he does all the law requires of him, although in the light of after-events it should appear that a different course would have been better and safer.
"If a motor vehicle driver himself created the sudden emergency or brought about the perilous situation through his *364 own negligence, he cannot avoid liability for an injury merely on the ground that his acts were done in the stress of a sudden emergency. He cannot shield himself behind an emergency created by his own negligence."
Preliminarily, it bears emphasis that this Court must view the evidence from a perspective most favorable to the party who requested the instruction, in this case the defendants. Worthington v. Funk, 7 Ariz. App. 595, 442 P.2d 153 (1968).
Precedent instructs that three prerequisites must be satisfied before a sudden emergency instruction is appropriate. There must be a sudden or unexpected confrontation with imminent peril. See, e.g., Sheehy v. Murphy, 93 Ariz. 297, 380 P.2d 152 (1963); Worthington v. Funk, supra; Kudrna v. Comet Corp., Mont., 572 P.2d 183 (1977); Vander Laan v. Miedema, 385 Mich. 226, 188 N.W.2d 564 (1971). The emergency must not be a result of the negligence of the person seeking the instruction. See, e.g., Cano v. Neill, 12 Ariz. App. 562, 473 P.2d 487 (1970). Finally, the party seeking application of the doctrine must have had two or more alternative courses of conduct available. Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 (1964); Woods v. Harker, 22 Ariz. App. 83, 523 P.2d 1320 (1974).
Plaintiffs contend that the first two of the above requirements were not met. We are persuaded that the evidence in the case did not reasonably support the instruction, see Rodriguez v. Besser Co., 115 Ariz. 454, 565 P.2d 1315 (App. 1977), because the defendant was not suddenly or unexpectedly confronted with imminent peril. Plaintiff's car had been stationary for several minutes. It was in plain view, in broad daylight, under favorable weather conditions for a period of time that was more than ample to give defendant the opportunity to stop. Other courts faced with fact situations similar in various respects to the instant one have concluded that a sudden emergency instruction was improper. E.g., Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978); Kudrna v. Comet Corp., supra; Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504 (1974); Vander Laan v. Miedema, supra; Spillers v. Simons, 42 Mich. App. 101, 201 N.W.2d 374 (1972).
The only aspect of the situation that was "sudden" was defendant's realization that plaintiff's car was stopped and that he was then too close to avoid collision. See Kudrna v. Comet Corp., supra. Thus, we cannot say that defendant was so suddenly confronted with an unexpected, physical danger as to deprive him of his power to use reasonable judgment. Pittman v. Boiven, 249 Cal. App. 2d 207, 57 Cal. Rptr. 319 (1967). The court erred in instructing the jury on sudden emergency.
We next address the issue of the second challenged jury instruction because of the likelihood of its reoccurrence upon retrial. This instruction sought application of A.R.S. § 28-871(A) and was worded as follows:
"If you find that any party to this suit violated any of the following laws, then that party is negligent. You should then determine whether that negligence was a cause of the plaintiff's injury.
* * * * * *
A.R.S. § 28-871A
"Upon any highway outside of a business or residence district, no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park or so leave the vehicle off that part of the highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of the stopped vehicles shall be available from a distance of [200] feet in each direction upon the highway."
Plaintiffs contend, first, that this instruction should not have been given, because the Tansy vehicle was not stopped within the meaning of the statute. They argue that April Tansy's stop is excepted from the operation of the statute by A.R.S. § 28-602(19), which defines stopping as follows:
*365 "`Stop, stopping or standing,' when prohibited, means any stopping or standing of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with directions of a police officer or trafficcontrol sign or signal." (Emphasis added.)
We disagree with plaintiffs' assertion that the stop was necessary to avoid conflict with westbound traffic on Peoria Avenue. The evidence indicated that plaintiff was at a complete stop in the roadway and that there was sufficient room on the right shoulder for a vehicle to pull off the road. Plaintiff could have avoided conflict with traffic by so utilizing the shoulder rather than by stopping in the middle of the road. The jury, therefore, could reasonably conclude that it was "practicable" for the plaintiff to stop her vehicle off the highway and that failure to do so was a "stop" in violation of A.R.S. § 28-871 A.
Plaintiffs also contend that the Legislature did not intend A.R.S. § 28-871 to prohibit involuntary stops, as demonstrated by the exception provided for disabled vehicles in subsection B:
"This section shall not apply to:
"1. The driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position."
Because there was ample evidence that it was possible for the plaintiff to avoid stopping, the jury could reasonably conclude that the stop was voluntary and in violation of A.R.S. § 28-871. Plaintiffs' challenge to the giving of this instruction is without merit.
Reversed and remanded.
STRUCKMEYER, V.C.J., and HOLOHAN, J., concurring.
NOTES
[1] Plaintiff testified that the car was only four months old. Her sister testified that she had seen the lights working only fifteen minutes before the accident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611948/ | 8 Cal. 4th 812 (1994)
884 P.2d 55
35 Cal. Rptr. 2d 598
WILLET H. BROWN et al., Plaintiffs and Respondents,
v.
JOSEPH GREEN et al., Defendants and Appellants.
Docket No. S034105.
Supreme Court of California.
November 23, 1994.
*816 COUNSEL
N. Mark Lam, Lawrence A. Agran, Moreno, Purcell & Schindler and Hermez Moreno for Defendants and Appellants.
Selman, Bretiman & Burgess, Jeffrey C. Segal and Murray M. Sinclair as Amici Curiae on behalf of Defendants and Appellants.
Sandler & Rosen and Charles L. Birke for Plaintiffs and Respondents.
OPINION
ARABIAN, J.
We granted review to consider the effect of the developing public awareness of environmentally hazardous building materials, and the often substantial cost of their abatement, on traditional rules allocating, as between lessor and lessee, the duty to make repairs and alterations to the leasehold required to comply with laws affecting commercial property. We conclude that settled and well-understood legal rules for determining which party has assumed the burdens of compliance and repair continue to yield fair and reasonable results when applied to leases of nonresidential property presenting abatement of hazardous materials issues.
Disputes between landlords and tenants of commercial property over responsibility for hazardous materials abatement are not, in other words, unique or so extraordinary in nature as to require special rules governing their resolution. In most cases, however, they do require a court presented with such a controversy not only to construe the relevant lease terms terms that presumptively reflect the parties' intent but to assess the result yielded by that analysis in light of established, judicially developed criteria designed to confirm the text-based conclusion that the parties agreed that the lessee would assume certain (often substantial) risks. (1a) Here, given a narrowly drawn compliance with laws clause, the absence of a lease provision expressly allocating responsibility for the abatement of environmentally hazardous materials, and a resultant ambiguity as to how the parties intended to allocate responsibility for compliance with government-ordered alterations unrelated to the lessees' use, we apply these established factors and conclude that the parties agreed the lessee would assume the burden of removing asbestos-laden materials from the building as required by a government abatement order.
We underline the context-dependent nature of both the inquiry and the result in cases such as this. We deal in this case with the long-term lease of *817 an entire warehouse-like building by sophisticated business partners who had substantial experience in leasing commercial property: lessees who were on written notice of at least the potential for asbestos contamination prior to executing the lease, who inspected the building and elected not to investigate the possible presence of hazardous materials before negotiating and signing an agreement that by its terms shifted the major risks of property ownership to the lessee, negated any repair obligations on the part of the lessor, and omitted any representations respecting the condition of the property. In addition, the cost of complying with the mandated work, although substantial in absolute numbers, is less than 5 percent of the total rent payable over the life of the lease.
Under these circumstances, we have no difficulty in concluding that the Court of Appeal was correct in deciding that the lessees agreed to accept responsibility for the government-ordered abatement of asbestos-containing materials. As we explain, however, such determinations are usually closely tied, not only to the terms of the lease itself, but to the context in which it is made, assessed in light of a handful of factors designed to elucidate the probable intent of the parties. Contrary to the result we reach in this case, even though a lease may by its terms require the lessee to be responsible for all repairs and alterations, without limitation, the legal and practical scope of that duty may well be less, especially where a short-term commercial lease is at issue and the cost of compliance is more than a small fraction of the aggregate rent reserved over the life of the lease. Similarly, where questions regarding the duty to abate arise in a case presenting unforeseeable or hidden defects or conditions, the result may well be the opposite of the one we reach in this case.
Together, our opinions in this case and in Hadian v. Schwartz (1994) 8 Cal. 4th 836 [35 Cal. Rptr. 2d 589, 884 P.2d 46], also filed today, illustrate the relationship between the literal text of a nonresidential lease and the result yielded by applying these interpretive factors. In Hadian, we construe a preprinted, short-term lease with terms virtually identical to the one at issue in this case and conclude that, contrary to the purport of language placing an unqualified responsibility on the lessee for all building alterations and repairs, the conclusion arising from the literal text of the lease is negated by a consideration of the circumstances surrounding its execution. We reason in that case that, despite the unqualified language of the lease, the lessor rather than the lessee is responsible for a municipally ordered seismic upgrade of the leased building, at a cost that is almost one-half of the total rent payable over the life of the original lease and option combined.
Thus, although broadly applicable criteria for determining the repair and compliance with laws obligations of the parties to a nonresidential lease can *818 be articulated, it does not follow that the outcome in a particular case can be easily forecast on the basis of the text of the lease alone. Each agreement must be evaluated in light of its individual terms under generally applicable contextual criteria and the principle of reasonable construction.
I
In 1984, Willet H. Brown purchased a 45,000-square-foot building at 8921 Venice Boulevard in Los Angeles, which he immediately leased to Hillcrest Motor Company, a West Los Angeles Cadillac dealership of which Brown was president and chief executive officer, for use in preparing automobiles for delivery to buyers. After he withdrew from the new car business in late 1985, Brown began looking for a potential lessee for the Venice Boulevard property; he enlisted a real property brokerage firm, Coldwell Banker, to find a tenant and broker the lease transaction. In April of 1986, Joseph Green, a partner in a retail furniture business with between 10 and 20 outlets in the Los Angeles area, all of which operated out of leased premises and grossed cumulative annual revenues of between $10 and $20 million, saw a listing for the property and made inquiries. The Green partnership later retained its own broker to facilitate lease negotiations with Brown's broker.
On May 8, 1987, following a discussion of terms between the two brokers and Green, Green and another partner signed on behalf of the partnership a two-page, preprinted document entitled "Proposal to Lease Industrial Space," given them by a Coldwell Banker agent, for Brown's consideration. At the foot of the second page of the proposal, just below Joseph Green's signature, appeared the following boxed text, in what appears to be 10-point type:
"CONSULT YOUR ADVISORS This document has been prepared for approval by your attorney. No representations or recommendation is made by Coldwell Banker as to the legal sufficiency or tax consequences of this document or the transaction to which it relates. These are questions for your attorney. [¶] In any real estate transaction, it is recommended that you consult with a professional, such as a civil engineer, industrial hygienist or other person, with experience in evaluating the condition of the property, including the possible presence of asbestos, hazardous materials and underground storage tanks."[1]
At his deposition, Green testified that he had inspected the building by walking through it, had understood the boxed text, and had made a "deliberate" decision not to retain a professional to inspect the property for *819 environmental hazards; the trial court made a finding of fact to that effect in its judgment. After additional negotiations between Brown, his son Michael (a vice-president of Hillcrest designated by Brown to oversee the lease transaction), and their broker and lawyer, and the Green partnership and their broker and lawyer, the parties reached agreement on June 25, 1987, and signed a written lease agreement. That document, a preprinted, six-page form published by the American Industrial Real Estate Association, was modified by the parties by several strike-throughs and interlineations and a three-page, typewritten "Addendum to Standard Industrial Lease Net" attached to the modified form lease agreement; each page of the lease bore the initials of the signatories.
As modified and signed by the parties, the lease provided for a term of 15 years at a monthly rent of $28,500; the lessees agreed to pay the annual property taxes and to obtain and pay the premiums for liability (but not casualty) insurance on the building. A handful of other lease provisions are material in resolving the question presented in this suit. Paragraph 6.2(b), entitled "Compliance with Law," provided that "Lessee shall, at Lessee's expense, comply promptly with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof, regulating the use by the Lessee of the premises...." (Italics added.) In addition, paragraph 7.1 of the lease, "Maintenance, Repairs and Alterations," provided that "Lessee shall keep in good order, condition and repair the Premises and every part thereof, structural and non-structural (whether or not ... the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises) including, without limiting the generality of the foregoing, all plumbing, heating, air-conditioning." (Italics added.) Paragraph 7.4 of the lease purported to limit the Lessor's obligations by providing that "Except for the obligations of Lessor under paragraph 9 [specifying the obligations of the parties in the event the building was destroyed], it is intended by the parties hereto that Lessor have no obligation in any manner whatsoever, to repair and maintain the Premises nor the building located thereon nor the equipment therein, whether structural or nonstructural, all of which obligations are intended to be that of the Lessee under Paragraph 7.1 hereof...." (Italics added.)
In addition, subparagraphs 6.2(a) and 6.3(a) of the form lease agreement, by which the lessor warranted compliance with applicable laws and the condition of the property on the date the lessee took occupancy, were crossed out by the parties. Last, the lease set forth provisions requiring the *820 lessee to indemnify and hold harmless the lessor against any claim arising from the use of the property during the term of the lease. According to the evidence, apart from the import of the notice appearing at the foot of the lease proposal, at the time the lease was executed, neither party had actual knowledge or reason to believe that the building contained asbestos, and the parties discussed neither that possibility nor, if discovered, which of them would bear the responsibility for its abatement; the trial court made an express finding of fact to that effect.
Less than two years after taking possession of the property and opening a retail furniture store, the Green partnership suffered business reverses at the Venice Boulevard location. In March of 1989, the partners held a liquidation sale and sublet the entire building to Green's son Ricky and his business partner, who continued to operate a retail furniture store under a new name. In the fall of that year, in the course of a routine inspection of the building, the county Department of Health Services (Department) found that debris containing friable asbestos had flaked onto the floor and furniture in the store's showroom.[2] Ambient air samples of the interior of the building showroom were positive for the presence of airborne asbestos fibers at levels deemed harmful to humans. Soon after the inspection, the Department served the subtenants with a notice of asbestos contamination, advising them of its hazardous nature, and directing that it be abated; a copy of the Department's notice was mailed subsequently to Brown.
There ensued a period of additional monitoring and sampling of the showroom and other areas of the building by private consultants independently retained by Brown and Ricky Green. Both of these studies confirmed the Department's findings by documenting the presence of asbestos-laden particles on the showroom floor and adjacent areas. Both studies also concluded that the hazardous debris had flaked from asbestos-containing fireproofing material sprayed on the structural beams supporting the roof of the building and that the flaking itself, a condition described as "delamination," was apparently caused by the installation of track lighting on the ceiling of the showroom by the lessees, by frequent striking of the surface of the asbestos containing material in the movement of furniture stored on the building's mezzanine, by vibrations of the building induced by customer use of the roof parking area, and by the failure to repair a leak in the roof, water from which had soaked into and degraded the fireproofing material, causing it to disintegrate.
Amid charges and countercharges by the parties to the lease over who was responsible for arranging for and financing the cost of removing the asbestos laden material, the subtenants converted the retail furniture operation by *821 moving the sales and showroom into what had been the warehouse portion of the building, and sealing off the area subject to the flaking debris. Ricky Green also sublet a small portion of the newly converted warehouse area. Although Ricky Green and his partner, as subtenants, paid rent on the property directly to Brown from April of 1989 to May of 1990, thereafter neither the Green partnership nor the subtenants paid any rent for the use of the building, which Ricky Green and his partner continued to occupy; as of the date of trial, the county had not pursued abatement proceedings against the site and no asbestos cleanup work had been undertaken.
Having failed to settle his differences with the lessees over responsibility for the asbestos cleanup, Brown filed this action against Green and his partners in November of 1990. The complaint sought as damages accrued rent (totaling $504,278.37, including property taxes, on the date judgment was entered) and the cost of the environmental cleanup, estimated by plaintiff's experts at $251,856, together with attorney fees as provided in the lease agreement. By agreement of the parties, the matter was tried before a superior court judge on a record consisting of stipulated facts, excerpts of deposition testimony, and documentary exhibits. After reviewing the record and hearing oral argument, the trial judge made findings of fact and filed a memorandum decision. Relying principally on our opinion in Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal. 2d 666 [75 Cal. Rptr. 889, 451 P.2d 721] (Sewell), the trial court concluded that the language of the relevant lease provisions allocated responsibility for asbestos removal and cleanup to the lessees; the court rejected the claim of the Green partners that because the lease did not expressly refer to the risk of asbestos or other environmental hazards, the parties had made no agreement with respect to that subject. The Court of Appeal affirmed the judgment of the trial court, concluding that our decision in Sewell was dispositive. We then granted the lessees' petition for review of the Court of Appeal judgment. We affirm.
II
A
We begin with an account of our reasoning in Sewell, supra, 70 Cal. 2d 666. In 1953, the Loverdes entered into a multiyear lease (with an option to renew) of property for use as an automobile repair shop. With the consent of the lessor, the Loverdes converted the property into a trailer park, using an on-site septic system to dispose of waste. Sometime later, Sewell sublet the entire property for the remaining three years of the option, intending to continue operating the trailer park. During the term of Sewell's sublease, county officials determined that the septic system was in danger of failing; *822 they ordered Sewell to connect to a nearby public sewer or to cease using the property as a trailer park. After investigating the cost of complying with the county's order and finding it beyond his means, Sewell evicted his tenants, closed the park, and abandoned the property.
Sewell later sought declaratory relief to the effect that the Loverdes, rather than he, were responsible for payment of the accrued rent. The Loverdes cross-complained for the back rent and Sewell defended on the ground that the duty of complying with the county's order to connect to the public sewer fell on them. In an opinion for a unanimous court, Chief Justice Traynor held that under the terms of the lease and sublease, Sewell had the duty of complying with the county's order to cease using the septic system and connect to the public sewer and was thus liable for payment of the back rent. We reasoned that although neither party to a commercial lease owes a duty to repair leased property in the absence of an agreement allocating that responsibility, "[a] different conclusion must be reached ... when preventative or reparative actions are required by laws and orders governing the premises and their uses. In such a case public policy requires that someone at all times be obliged to comply with such laws and orders, and parties to a lease will not be permitted to create a hiatus in their respective duties of compliance.... Since the property owner is initially under the duty to comply with all laws and orders, he, as lessor, remains subject to that duty unless it is assumed by the lessee." (Sewell, supra, 70 Cal.2d at p. 672.)
Our opinion noted that there are two principal ways in which a lessee can assume the duty of compliance with laws or government orders requiring the repair or alteration of commercial property. The first is by "voluntarily put[ting] the premises to uses different from those to which they were put before the creation of his tenancy, and thereby caus[ing] the premises to fall within the scope of existing laws not previously applicable to the premises...." (Sewell, supra, 70 Cal.2d at p. 672, fn. omitted.) Without such a rule, we noted, a lessee would "have the lessor at his mercy." (Id. at p. 673.) A lessee's responsibility for complying with laws may also be the subject of negotiations between the parties to the lease, and may be transferred from the lessor as an obligation undertaken by the lessee by agreement. Even in such cases, however, there is an implied limitation on the scope of the lessee's burden. "[T]he general rule is that a lessee's unqualified covenant to comply with applicable laws, standing alone, does not constitute an assumption of the duty to comply with those laws that require curative actions of a `substantial' nature." (Id. at p. 674, fn. omitted, italics added.)
Applying these principles to the lease before us in Sewell, supra, 70 Cal. 2d 666, we noted that although the lessee had expressly agreed to comply with *823 applicable laws, that covenant alone did not encompass the repairs at issue if they qualified as "substantial." We were not, however, required to apply the six factors used by the courts (and enumerated in Sewell, supra, at pp. 674-675, fn. 10 of our opinion)[3] to determine whether the county-mandated alterations were "substantial," in light of additional obligations assumed by Sewell under the lease agreement. Because Sewell represented that he had examined the property and knew its condition, and because the lease relieved the lessors of any obligation to repair or maintain the property, we concluded that "[i]n the absence of a covenant by the Loverdes to repair or maintain the improvements, their only obligation in this respect would arise from the duty to comply with applicable laws." (Id. at p. 675, fn. omitted.) That circumstance, however, led us to conclude that the lessor's disclaimer of any obligation to repair or maintain the property "can be given effect only by interpreting [the lease provision] to relieve the [lessors] of any duty to take those `substantial' curative actions required by law...." (Ibid.)
Importantly, we looked to the nature of the lessee's use of the property as confirming our conclusion based on the text of the lease provisions alone. Any doubt that Sewell had agreed to assume the risks of compliance and repair was dispelled, we reasoned, "by a consideration of the character of the premises involved." (Sewell, supra, 70 Cal.2d at p. 675.) In light of the nature of trailer parks the essentials of which consist of ground space, trailer pads and utilities, including sewer facilities "one who intends to operate a trailer park must know that laws respecting and regulating such facilities would be of primary importance to him and would be those most obviously included in a clause requiring compliance with all applicable laws." (Id. at p. 676.)
B
To both the trial court and the Court of Appeal, the lease terms at issue here and those parsed in Sewell, supra, 70 Cal. 2d 666, were sufficiently alike to make our analysis in Sewell dispositive. Relying wholly on similarities in the texts of the two leases, and without discussing either the scope of the compliance with laws clause or the nature of the lessees' use, the Court of *824 Appeal concluded that "[u]nder Sewell, the lease before us can only be read to transfer to the tenant the duty to abate the asbestos." Although we agree that the duty of compliance was transferred from the building owner to the lessees, we reach that result by a route different from the logic of the lease terms themselves that the Court of Appeal purported to deduce from our opinion in Sewell.
It is true that the compliance with laws clauses in both cases are, in substance, identical both require the lessee to comply with laws, orders, etc., regulating the lessee's use of the property.[4] The distinguishing feature of this case, however, is that, unlike Sewell, supra, 70 Cal. 2d 666, here it was not the lessee's particular use of the property that led to the government's compliance order. In Sewell, on the other hand, we relied on the fact that it was the lessee's use of the property as a trailer park that led to the county's demand that he modify the existing waste disposal system. Indeed, we went so far as to observe in support of our holding that, as the lessee of a trailer park, Sewell "must [have known] that laws ... regulating such [waste disposal] facilities would be of primary importance to him and would be those most obviously involved in a clause requiring compliance with all applicable laws." (Id. at p. 676.)
Unlike the situation in Sewell, supra, 70 Cal. 2d 666, the lease at issue here does not contemplate a use of the property by the lessee of the sort likely to trigger a municipally ordered hazardous materials cleanup. It is clear from the record that the substantial cause of the flaking of the asbestos laden material was activity within the building that would have been typical of virtually any occupant, including the predecessor dealer preparation work undertaken by Hillcrest Motor Company. Given these characteristics, it also follows that, unlike the lessee in Sewell, supra, 70 Cal. 2d 666, the Green partnership cannot reasonably be charged with notice, arising from "the character of the premises involved," that the "laws respecting and regulating [asbestos abatement in] such facilities would be of primary importance to [them] and would be those most obviously involved in a clause requiring *825 compliance with all applicable laws." (Id. at pp. 675-676.) Because the lessee's particular use of the property here is not one that triggered the county's abatement order, unlike the use at issue in Sewell, it lies outside the literal text of the compliance with laws clause of the lease.
As the Court of Appeal's reasoning in this case illustrates, however, our opinion in Sewell, supra, 70 Cal. 2d 666, is apt to be misinterpreted as one which, in the search for the parties' intent, exalts a text-bound logic over a close consideration not only of the terms of the lease but of the circumstances surrounding its making. It is true that we determined in Sewell that effect could be given to the lessor's disclaimer of any responsibility for the condition of the property only by concluding that the lessee had agreed to assume the burden of the county-ordered alterations, and that we appeared to reach that conclusion solely on the basis of the interlocking provisions of the lease itself. But it is important to recognize that that textual inference arose in a context in which the lessee had agreed to comply with applicable laws affecting his use of the property and continued a new use begun by the Loverdes, one that by its very nature triggered the alterations ordered by the county. Sewell's conduct, in combination with that of his predecessor in interest, thus satisfied both of the conditions by which a lessee may assume the burden of complying with government-ordered alterations, that is, putting the premises to a different use and undertaking the obligation of compliance by agreement. (See Sewell, supra, 70 Cal.2d at pp. 672-673.) Equally important, our opinion in Sewell in fact gave substantial weight to the circumstances surrounding the making of the lease, observing, as we have noted above, that as the lessee of a trailer park, Sewell must have been aware of the importance of waste disposal facilities in such an enterprise and the likelihood that a compliance with laws clause would embrace such matters.[5] (70 Cal.2d. at p. 676.) These considerations are decisive in distinguishing the lease at issue here from the one we considered in Sewell.
*826 Because the lessees' use of the property in this case lies outside the literal scope of the compliance with laws clause, it is unclear from that provision, standing alone, how the parties intended to allocate the risk of compliance with respect to government orders arising from property conditions unrelated to a particular use by the lessee. In the face of that ambiguity, we may properly consider other relevant provisions of the lease as well as the factors employed by the courts to determine the intent of the parties to a nonresidential lease, factors that, in the words of our opinion in Sewell, "offer insight into the probable intent of the parties" "despite the use of unqualified language" in the lease. (Sewell, supra, 70 Cal.2d at p. 674, fn. 10.)
III
A
Although the Green partnership neither agreed expressly to comply with laws not regulating their use of the property, nor used the building in particular ways that triggered the county's asbestos abatement order, it did agree to a duty of repair that is, on its face, virtually global in scope. In combination with other features of the lease, the extent of that obligation strongly suggests that the parties intended to transfer to the lessees substantially all of the responsibilities of property ownership, including the duty to comply with the county-ordered asbestos cleanup.
(2a) Lessees urge us to adopt the contrary view with respect to the duty to comply with government-mandated alterations. They argue that, because the compliance clause of the lease only obligates them to comply with laws affecting their particular use of the property, and because the county's order mandating the replacement of the asbestos-containing material applies to any occupant of the building, the abatement order is outside the scope of paragraph 6.2 of the agreement and that is the end of the matter. (See, e.g., Bush Term. Assoc. v. Federated Dept. Stores (1980) 73 A.D.2d 943 [424 N.Y.S.2d 28 [Environmental Protection Agency requirement that new sewer lines be installed to abate dumping of raw sewage was responsibility of lessor under lease provision requiring lessee to comply with laws affecting its use of property since any occupancy would have required installation of a new sewer system]; Wolf v. 2539 Realty Associates (1990) 161 A.D.2d 11 [560 N.Y.S.2d 24] [replacing asbestos laden fireproofing material responsibility of lessor]; Mayfair Merchandise Co. v. Wayne (2d Cir.1969) 415 F.2d 23, 25 [requirement to install sprinkler system was lessor's despite lessee's covenant to make "all necessary repairs"]; but see First Nat. Stores v. Yellowstone Shop. Ctr. (1968) 21 N.Y.2d 630 [290 N.Y.S.2d 721, 237 N.E.2d 868] [lessee had obligation to install city-ordered sprinkler system *827 based on character of building use despite lessor's covenant to make all repairs required by government order].)
Although as noted, we agree that the text of the compliance clause of the lease literally applies only to governmental laws, orders, et cetera, regulating the uses made of the property by the lessee, that conclusion alone is not dispositive. Several circumstances surrounding the transaction persuade us that the parties intended that the Green partnership accept responsibility for government-mandated work on the building unrelated to the particular use made of it by the lessees.
An interpretation of the lease which places the burden of complying with the abatement order on the lessor would, we think, lead to a strained and unrealistic result, given the unqualified duty of repair imposed by the lease on the lessees and the absence of any significant obligations on the part of the lessor. Moreover, viewed through the prism of the economics of the transaction, we think the case for concluding that the lessees assumed a virtually unqualified burden of compliance with government-ordered alterations, maintenance and repair of the property is stronger here than in Sewell, supra, 70 Cal. 2d 666, itself. Financial considerations implicit in the text of the lease agreement make it clear that Brown negotiated a "net" lease, an arrangement that is not uncommon in long-term commercial leases, especially of entire buildings. (3) As one commentator on the characteristics of such leases has explained, "A net lease presumes the landlord will receive a fixed rent, without deduction for repairs, taxes, insurance, or any other charges, other than landlords' income taxes. Accordingly, the repair clause requires [the] tenant to make all repairs, inside and out, structural and otherwise, as well as all necessary replacements of the improvements on the premises (and to comply with all legal requirements affecting these improvements during the term). A lease is not `net,' as this term is used in long-term leases, if the tenant's repair obligations are less than these." (1 Friedman on Leases (3d ed. 1990) Repairs, § 10.8, pp. 672-673, fn. omitted.) The economic exchange supporting such "net" leases has been succinctly described as one under which "the landlord foregoes the speculative advantages of ownership in return for the agreed net rental. The tenant, in turn, gambles on the continued value of the location and the improvement[s] .... and assumes all risks in connection therewith." (Van Doren, Some Suggestions for the Drafting of Long Term Net and Percentage Leases (1951) 51 Colum. L.Rev. 186.)
(2b) The fact that the form lease used by the parties here bears the word "net" at the foot of each page and that the heading of the addendum negotiated by the parties and annexed to the lease used the word "net," while *828 probative of the parties' intent, is not alone decisive. What is persuasive is a consideration of the provisions of the lease agreement as a whole, including its comparatively long 15-year term, the lessees' agreement to pay property taxes, to assume the risk of third party liability and to insure against that risk, the unqualified nature of the repair clause, the lessor's "negative" covenants with respect to any obligation to maintain or repair the property, and the elimination of any warranties on the part of the lessor.
It is, in short, reasonably clear from the four corners of the agreement itself that the parties intended to transfer from the lessor to the tenants the major burdens of ownership of real property over the life of the lease. Substantial and recent authority from other jurisdictions supports that conclusion. (See Washington Univ. v. Royal Crown Bottling (Mo. Ct. App. 1990) 801 S.W.2d 458 [lessee was obligated to make all repairs, including "structural" repairs, under 25-year commercial lease where lessee controlled entire building, paid lump-sum rental fixed for entire term, obtained and paid for casualty and liability insurance, and lease included clear language that parties intended to create a net lease]; Fisher Properties v. Arden-Mayfair, Inc. (1986) 106 Wash. 2d 826 [726 P.2d 8, 16] [lease of commercial property for 25 years with additional extensions, was a "long-term triple net lease" under which "the tenant has a virtually complete obligation to repair ..."]; Chicago City Bank & Trust v. Ceres Terminals (1981) 93 Ill. App. 3d 623 [49 Ill. Dec. 180, 417 N.E.2d 798, 805] ["A net lease generally puts the burdens of ownership on the lessee, who pays all taxes and operating expenses on the property so that the landowner receives a fixed or `net' rental."]; cf. Ell and L. Investment Co. v. International Trust Co. (1955) 132 Colo. 137 [286 P.2d 338, 339] [20-year lease of entire building; lessor to receive "a net annual rental" and all other expenses "of every nature whatsoever" to be borne by lessee; held: lessee responsible for cost of major structural repairs to save building from condemnation]; Rietsch v. T.W.H. Co., Inc. (Mo. Ct. App. 1985) 702 S.W.2d 108, 114 [702 S.W.2d 108]; Capitol Funds, Inc. v. Arlen Realty, Inc. (11th Cir.1985) 755 F.2d 1544, 1548-49.)
B
(4) Lessees and supporting amicus curiae press us to adopt a rule that the obligation to remove environmentally hazardous materials always falls on the lessor of commercial property unless the responsibility for their removal is explicitly allocated to the lessee by the text of the lease agreement. They argue that factors similar to those we enumerated in Sewell, supra, 70 Cal. 2d 666, 674, footnote 10, compel such a result. We are not persuaded of the wisdom of adopting a bright-line rule of the kind sought by lessees. Apart from the relative novelty of environmental cleanup demands, there is little to *829 distinguish requiring a lessee to abate asbestos laden building materials and to replace, say, the entire roof of a large warehouse-like building of the sort involved in this case. We agree, however, that, given the differences between the use at issue here and the one in Sewell, supra, 70 Cal. 2d 666, it is appropriate to apply the factors enumerated in Sewell, supra, at page 674, footnote 10 as "offer[ing] insight into the probable intent of the parties...." (Ibid.)
Whether the parties actually intended the allocation of responsibilities suggested by the use of unqualified language in a lease is an inquiry better approached through the application of a handful of relevant factors than by a "four corners" analysis of the text that focuses exclusively on the interlocking provisions of the agreement itself and their legal consequences. Such an inquiry seems all the more appropriate in cases such a this one, involving the use of a so-called "form" lease, where the logic of preprinted terms may favor the interests of one party over that of the other and, even where interlineated by the parties, produce an unreasonable result. Although, as we noted in Sewell, supra, 70 Cal.2d at page 674, the factors are typically applied in deciding whether a compliance or repair obligation "require[s] curative actions of a `substantial' nature," they are also highly relevant to the resolution of the cognate question as to which of the parties to a commercial lease has assumed the burden of complying with laws requiring the removal and disposal of hazardous building materials.
More significantly, in seeking the intent of the parties, courts can seldom safely rely solely on the text of the lease. As the New York high court has written, judges have long sought the intention of the parties, "not as much from the letter of the lease as from a reasonable construction of their agreement, having in mind the rent payable, the terms of the lease, the nature of the construction required, the relative benefit thereof to the respective parties, and what the parties had in contemplation when they executed this agreement." (Cohen v. E. & J. Bass (1927) 246 N.Y. 270 [158 N.E. 618, 620], italics added.)
(5a) We recognized explicitly in Sewell, supra, 70 Cal. 2d 666, that in assessing the terms and the circumstances surrounding a nonresidential lease transaction, courts usually apply a handful of factors as "clues" or indicators as to whether the parties agreed that the lessee "assumed certain risks, despite the use of unqualified language." (Id. at p. 674, fn. 10.) That proposition has long been bedrock law. (See, e.g., Baca v. Walgreen Co. (1981) 6 Kan. App. 2d 505 [630 P.2d 1185], affd. 230 Kan. 443 [638 P.2d 898], cert. den., 459 U.S. 859 [74 L. Ed. 2d 112, 103 S. Ct. 130] (1982); Gaddis v. Consolidated Freightways, Inc. (1965) 239 Ore. 553 [398 P.2d *830 749]; SKD Enterprises Inc. v. L & M Offset Inc. (1971) 65 Misc. 2d 612 [318 N.Y.S.2d 539]; Mayfair Merchandise Co. v. Wayne, supra, 415 F.2d 23; Mid-Continent Life Insurance Co. v. Henry's, Inc. (1974) 214 Kan. 350 [520 P.2d 1319]; Iverson v. Spang Industries, Inc. (1975) 45 Cal. App. 3d 303, 310 [119 Cal. Rptr. 399] ["... covenants [to repair] are generally reasonably interpreted to avoid placing any unwarranted burden of improvement on the lessee."]; Annot., Extent of Lessee's Obligation Under Express Covenant as to Repairs (1951) 20 A.L.R. 2d 1331; 1 American Law of Property (Casner ed. 1952) Landlord and Tenant, § 3.80, p. 353.)[6]
(1b), (5b) We examine the six factors as they apply to the record in this case.
(1) The relationship of the cost of the curative action to the rent reserved.
Not surprisingly, lessees seize on the absolute cost of the asbestos disposal operation set at $251,856 in the judgment entered by the trial court as confirming that the costs at issue here qualify as "substantial." The inquiry, however, is not quite so straightforward. Lessor points out that the roughly quarter million dollars estimated as necessary to finance asbestos-related disposal is less than 5 percent of the total rent reserved over the 15-year life of the lease, an expression of the value of the repair that throws a different light on the relative financial magnitude (and hardship) of the undertaking.[7]
As Friedman observes, "The language of a tenant's repair clause does not fully determine its construction.... [¶] Even a clause that states that the *831 tenant is to make structural repairs has been deemed insufficient to require structural repairs by a tenant. In these cases the terms of the leases have been relatively short and the cost of the repair or change in question would have been as great, or nearly so, as the tenant's aggregate rent during the term. In this situation, there is a virtual refusal of [the] courts to construe this language literally. Where the term is longer, and the tenant has time to amortize the cost, a repair clause is more apt to be construed literally." (1 Friedman on Leases, supra, Repairs, § 10.601, at pp. 655-656, fns. omitted, italics added; cf. Washington Univ. v. Royal Crown Bottling, 801 S.W.2d at p. 465.)
(6) The relationship between the cost of compliance and the aggregate rent payable over the life of the lease is thus a significant factor in divining the probable intent of the parties and determining which of them agreed to bear the burden of compliance. In many perhaps most cases, it is likely that the cost of the mandated work, expressed as a percentage of the aggregate rent over the life of the lease, will tip in favor of the lessee. It is, after all, highly unlikely that a lessee would intend or expect to assume a repair/compliance burden that is, say, equal to or even a substantial fraction of the total rent over the life of the lease. The analysis is different, however, where, as in this case, the hazardous condition is discovered relatively early in a long-term lease, the total rent reserved over the life of the lease is a very high multiple (here, 20 times) of the cost of disposal, and the provisions of the lease agreement otherwise suggest that the parties intended that the lessees assume the major burdens of ownership.
(2) The term for which the lease was made.
(5c) There is little question under this rubric that a lease for a term of 15 years is a comparatively lengthy one. Although the inquiry is irreducibly relative, a lease of 15 years is closer to the "long-term" 25-year leases construed by the courts in Washington Univ. v. Royal Crown Bottling, supra, 801 S.W.2d 458, and Fisher Properties v. Arden-Mayfair, Inc., supra, 726 P.2d 8, 16, for example, than to the typical short-term lease of 3 or even 5 years. We need not, of course, decide forevermore whether a 15-year lease is "long-term" or not; under the circumstances of this case involving the lease of an entire building and the transfer of substantial ownership obligations to the lessees we decide only that a term of 15 years qualifies as "long."
The length of the lease term has significance for the determination of responsibility for government-ordered alterations for the reasons mentioned in the analysis of factor (1), above. Where the term of the lease is short, it is *832 highly unlikely that the lessee would have expected to assume responsibility for the cost of alterations that are, in effect, capital improvements to the property that will benefit primarily the owner. Conversely, where the lease term is a comparatively long one, the lessee has more time in which to amortize the cost of the alterations and stands more in the shoes of the building owner.
(3) The relationship of the benefit to the lessee to that of the reversioner.
No evidence was introduced at trial bearing on the projected useful life of the building. It is thus impossible to say on the basis of the record to what extent disposal of the asbestos laden material would benefit the lessor. Lessees argue that the benefits would be substantial, noting that, at the end of their term, the lessor would be in a position to market an "asbestos free" building, thus gaining a commercial advantage. Although that scenario seems a plausible one, it is also true that given the long-term nature of this 15-year lease and the fact that the hazardous material was discovered in only the third year of the term, the cleanup would be of substantial benefit to the lessees themselves. On balance, then, given this record, the benefit of the mandated work will inure to both parties.
(4) Whether the curative action is structural or nonstructural in nature.
Lessees point out that the removal and disposition of asbestos-containing fireproofing material is costly and expensive, requiring special equipment for containment of the material, warning signs, area evacuation and "moonsuited" workers. Moreover, because the removal here requires that the fireproofing material adhering to the building's structural beams be stripped, the work is literally "structural." That is true, of course, and under ordinary principles of construction might place the burden of cleanup on the lessor. (Cf. Finnegan v. Royal Realty Co. (1950) 35 Cal. 2d 409, 432 [218 P.2d 17] [notwithstanding lease provision requiring the lessee to comply with all legal requirements, installation of building fire escapes was responsibility of lessor "because they are of a permanent nature and substantially benefit [the lessor's] reversionary interest"]; compare Strecker v. Barnard (1952) 109 Cal. App. 2d 149, 153 [240 P.2d 345] [lease provision requiring lessee to "`comply with all [laws] pertaining to said premises'" required lessee to make repairs to existing elevator ordered by county] with Browning v. Aymard (1964) 224 Cal. App. 2d 277, 280 [36 Cal. Rptr. 604] [under identical compliance provision of lease, responsibility to install a fire alarm system was lessor's]; see 6 Miller & Starr, Cal. Real Estate (2d ed. 1989) Landlord & Tenant, § 18.106, p. 278.)
*833 In the context of this case, however, the argument overlooks the fact that the lease agreement shifts, explicitly and systematically, responsibility for all repairs expressly including "structural" repairs to the tenants both by an affirmative provision (par. 7.1) and by expressly absolving the lessor of any responsibility for repairs, whether or not "structural" (par. 9), and that it does so in an overall context supporting the conclusion that the parties intended the lessees to assume the burdens of compliance and repair. The language of the lease is thus sufficiently definite and clear to negate the argument that "structural" alterations are not within the lessees' obligations. (Cf. Fisher Properties v. Arden-Mayfair, Inc. supra, 726 P.2d 8, 16 [lease covenant to "make ... all repairs of all kinds, both inside and outside" properly interpreted in context of net lease to require lessee "to perform whatever repairs and maintenance were necessary to keep the premises in good repair ...."].)
(5) The degree to which the lessee's enjoyment of the premises will be interfered with while the curative action is being undertaken.
Our review of the case law suggests that if the lessee's use of the premises is substantially interfered with by the work required to comply with a given law or government order, that fact supports an inference that the lessor accepted the burden of compliance. (See, e.g., Gaddis v. Consolidated Freightways, Inc., supra, 398 P.2d at p. 752.) That supposition is consistent, we think, with the notion that the greater the magnitude (and the likely disruptive effect) of the compliance effort, the more likely it is to qualify as "substantial" and thus as part of the lessor's duty. Here, although the factual record is scanty on the point, it appears that the lessees were able to "work around" the flaking debris through the expediency of moving the retail sales operation into the former storage area and storing inventory in the area subject to delamination. The record is devoid of evidence as to whether this arrangement could be continued throughout the course of the actual abatement work, however. On balance, the most that can be concluded in light of the evidence is that the degree of interference is not so great as to weigh heavily in favor of a finding that the lessor accepted the compliance responsibility.
(6) The likelihood that the parties contemplated the application of the particular law or order involved.
In light of the finding of the trial court and the evidence supporting it, we can only conclude that although neither party was aware of or had reason to believe hazardous materials were present within the building at the time the lease agreement was negotiated and signed, both had notice of the possibility *834 that such a condition might exist, at least in the abstract. We think this fact is especially telling in a context in which lessees with substantial experience in retail leasing conceded that they had read and understood the notice at the foot of the lease proposal and elected not to pursue an investigation of that contingency. Although this factor is not dispositive of the question of responsibility for complying with the county-ordered abatement work, it is of considerable weight in leading us to conclude that the parties intended that the lessees would assume the burden of compliance with the abatement order. (We note, of course, the obvious fact that a finding of no abatement liability on the part of the lessee is likely where the condition at issue was unforeseeable or would not have been disclosed by a reasonable inspection of the site.)
C
(1c) An evaluation of the lease terms in light of factors substantially similar to those proposed by the lessees themselves leads us to conclude that the Court of Appeal was correct in ruling that the lessees assumed responsibility for removing the asbestos laden material from the building. That conclusion, we point out, does not necessarily follow in the typical short-term commercial lease. As several commentators have noted and as our opinion in Hadian v. Schwartz, supra, 8 Cal. 4th 836, also filed today, confirms application of the factors identified above will in many, perhaps even most, cases place the burden of compliance on the property owner, both because the cleanup substantially enhances the lessor's reversionary rather than the lessee's possessory interest, and because the cost of compliance may be a substantial percentage of the entire rent reserved over the life of the term. (See, e.g., Washington Univ. v. Royal Crown Bottling, 801 S.W.2d at p. 465 ["... there is no general rule which applies to the circumstances found in short-term leases.... [W]here the lease is for a short-term and the costs of repair are more than the aggregate rent over the term, courts are reluctant to construe `repair' to include major structural repairs."]; see also, Stern & Tubbs, Hazardous Substance Issues in Commercial Leasing (1988) 13 ALIABA Course Materials J. 7; Glazerman, supra, 22 ABA Real Prop., Prob. & Trust J. at p. 691; 2 Friedman on Leases, supra, Compliance with Laws, § 11.1, pp. 700-701.) That conclusion, however, remains a mixed question of fact and law arising out of the provisions of a particular agreement and its terms and the context in which it arises, considered in light of established common law factors and the principle of reasonable construction, rather than one dependent on a bright line, a priori allocation of risk.[8]
*835 CONCLUSION
The judgment of the Court of Appeal is affirmed.[9]
Lucas, C.J., Mosk, J., Kennard, J., Baxter, J., George, J., and Werdegar, J., concurred.
Appellants' petition for a rehearing was denied February 16, 1995.
NOTES
[1] In addition to the mention of asbestos made in the lease proposal, Coldwell Banker had already sent Brown a form entitled "Notice to Owners, Buyers and Tenants Regarding Hazardous Wastes or Substances and Underground Storage Tanks" in 1986, soon after obtaining the listing on the property. That notice provided information concerning potential legal liability of owners and tenants of property containing hazardous materials, including asbestos.
[2] According to the American Heritage Dictionary of the English Language (3d ed. 1992) at page 727, "friable" means "readily crumbled."
[3] Our opinion recognized that the rule and its associated factors "also appl[y] to covenants to repair or maintain." (Sewell, supra, 70 Cal.2d at p. 674, fn. 10.) The factors themselves are discussed extensively, post, beginning at page 830. They consist of "(1) the relationship of the cost of the curative action to the rent reserved, (2) the term for which the lease was made, (3) the relationship of the benefit to the lessee to that of the reversioner, (4) whether the curative action is structural or non-structural in nature, (5) the degree to which the lessee's enjoyment of the premises will be interfered with while the curative action is being undertaken, and (6) [in cases involving compliance with laws or orders] the likelihood that the parties contemplated the application of the particular law or order involved." (70 Cal.2d at pp. 674-675, fn. 10.)
[4] A comparison of the relevant portions of the text of the compliance clauses in both leases is instructive. In Sewell, supra, 70 Cal. 2d 666, the compliance clause provided that the tenant "agrees that he will occupy and dispose the leasehold estate in a manner commensurate with the requirements and limitations imposed by said basic lease and by the requirements of applicable, federal, state, county, city and district laws, ordinances, rules and regulations pertaining to any and all segments of the operations and uses to which the property may be subjected or put." (Id. at p. 674, fn. 9.)
As noted, ante, the lease at issue here contains the following compliance with laws clause (par. 6.2): "Lessee shall, at Lessee's expense, comply promptly with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof, regulating the use by the Lessee of the Premises...."
[5] Indeed, our reasoning in Sewell, supra, 70 Cal. 2d 666, is open to the charge of internal inconsistency. While we acknowledged the "general rule" that a lessee's unqualified covenant to repair does not, standing alone, encompass "substantial" curative actions (id. at p. 674), and described the six factors that "offer insight into the probable intent of the parties" (id. at p. 674, fn. 10), we declined to apply those factors in light of other, unqualified, provisions of the lease. (Id. at p. 675.) Despite this conclusion, however, we relied explicitly on the nature of the subtenant's use as clinching our conclusion, since it "dispelled" "[a]ny doubt ... that Sewell assumed the risk of conforming the sewer system to the governmental requirements...." (Id. at p. 675.) Thus, we not only considered the character of the property and its use by the tenant (two of the six factors enumerated in fn. 10), but evaluated the sixth factor itself the likelihood that the parties contemplated the application of the particular law or order in justifying our result. We reconcile these seeming deviations on the basis of the practical, commonsense proposition that a tenant is responsible for government-ordered alterations when he either introduces a new use that triggers the order at issue or agrees to accept responsibility for government-ordered alterations arising out of a particular use of the property.
[6] Lessees rely on two comparatively recent scholarly treatments of legal liability for asbestos abatement in the nonresidential lease context, treatments purporting to distill from the case law five criteria for allocating liability for complying with a government-ordered cleanup. (See Glazerman, Asbestos in Commercial Buildings: Obligations and Responsibilities of Landlords and Tenants (1987) 22 ABA Real Prop., Prob. & Trust J. 661 (Glazerman); Jensen, Lessor and Lessee Liability Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): The Catch-22 of Lease Agreements (1991) 32 S.Tex. L.Rev. 447.) They urge us to apply those criteria in this case.
Even though it is true that Sewell, supra, 70 Cal. 2d 666, was decided in an era in which the public was only dimly aware of the spectrum of potential environmental hazards, the multifactor approach noted in Sewell, supra, page 674, footnote 10, has been sanctioned by long use. Indeed, more recent formulations of the factors are closely similar to those enumerated in Sewell. (See, e.g., Glazerman, supra, 22 ABA Real Prop., Prob. & Trust J. at p. 666.) Given that similarity, we think the better approach is to continue to employ the factors enumerated in our Sewell opinion, interpreted in light of the intervening expansion of the public understanding of environmental hazards, the cost of their removal and disposition, and the likely effect of their possible presence on the intentions of the parties to a lease.
[7] That figure is derived by multiplying the monthly rental ($28,500) by the life of the lease (15 x 12 = 180 months) to yield total rental payment of $5,130,000, and dividing the cost of abatement ($251,856) by that figure, yielding 4.9 percent.
[8] Lessees fail to persuade us that a developing body of national case law has uniformly placed the burden of asbestos abatement in nonresidential properties on lessors. They rely on two decisions of New York's intermediate appellate court (Wolf v. 2539 Realty Associates, supra, 560 N.Y.S.2d 24; Linden Boulevard, L.P. v. Elota Realty (1993) 196 A.D.2d 808 [601 N.Y.S.2d 949]) and a decision of the Georgia Court of Appeal (Sun Ins. Services v. 260 Peachtree St. (1989) 192 Ga. App. 482 [385 S.E.2d 127]). In none of these cases, however, is the rationale for the court's decision the per se presence of asbestos-containing materials in the leased building. Rather, the courts in all three cases interpreted the lease provisions at issue in light of Sewell-like factors before concluding that the landlord had agreed to assume the burden of alterations requiring the removal of asbestos in order to comply with abatement orders. The fact that in each case the cost of abatement was allocated to the landlord only confirms the supposition that application of the six factors will, in most cases, point to the lessor as the party assuming the burden; it does not, however, support an extrapolation of liability untethered to the text and the circumstances of the lease transaction. In short, we find the rationale of these decisions supportive of, rather than in conflict with, our own analysis.
[9] Having concluded that lessees assumed responsibility for complying with the county's abatement order, their dependent claim that the lessor's failure to remedy the asbestos condition amounted to a partial constructive eviction, entitling them to cease paying rent on the property while continuing to occupy it, falls of its own weight. (Cf. Petroleum Collections, Inc. v. Swords (1975) 48 Cal. App. 3d 841 [122 Cal. Rptr. 114].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1821252/ | 468 So. 2d 1207 (1985)
Ernest A. DUFAU
v.
CREOLE ENGINEERING, INC.
No. 85-C-0753.
Supreme Court of Louisiana.
May 24, 1985.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326565/ | Kern, Leila R., J.
In December of 2010, the grand juiy returned twelve (12) indictments against the defendant, charging him with two counts of rape, four counts of indecent assault and battery on a person over the age of fourteen, three counts of intimidation of a witness, one count of assault and battery, one count of accosting a person of the opposite sex, and one count of open and gross lewdness. There are three alleged victims of the conduct involved in the indictments. The defendant now moves for the court to order separate trials on indictments 001, 002, 003, 004, 005, 010, Oil, 012, and 006, 007, 008, 009. For the reasons contained herein, the motion is DENIED.
BACKGROUND
The defendant was employed by the Wayside Inn as the supervisor of the dishwashing staff since 1998.1 Each of the three alleged victims were employees of the Wayside Inn who worked under the defendant’s supervision. With respect to Jane2 the defendant maintains that his relationship with her was entirely consensual and she only made accusations of rape once he had ended their romantic relationship. Jane, however, claims that in February, March and June of 2009, the defendant sexually assaulted her and had sexual intercourse with her against her will. Jane went to the police but later decided not to go through with the matter because the defendant allegedly threatened her family and gave her money to stop with the proceedings. The second and third victims, Sarah and Michelle, both allege that the defendant sexually assaulted them in the workplace.
STANDARD OF REVIEW
If a defendant is charged with two or more related offenses, a “trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.” Mass.R.Crim.P. 9(a)(3). Two or more offenses are related “if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.” Mass.R.Crim.P 9(a)(1). “The propriety of joining offenses for a single trial often turns on whether the evidence of the other offense(s) could be admissible in separate trials on each offense.” Commonwealth v. Pillai, 445 Mass. 175, 180 (2005). Evidence of criminal propensity is inadmissible in separate trials and “joint trial of offenses is improper if it will have the same effect.” Commonwealth v. Hoppin, 387 Mass. 25, 32-33 (1982). Evidence may, however, “be admissible for other purposes, such as ‘to show a common scheme or pattern of operation.’ ” Pillai, 445 Mass. at 181, quoting Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). Joinder is a matter to be resolved by the discretion of the trial judge. Commonwealth v. Montanez, 410, Mass. 290, 303 (1991).
DISCUSSION
The Supreme Judicial Court has held that offenses are related if the evidence “in its totality shows a common scheme and pattern of operation that tends to prove all the indictments.” Commonwealth v. Feijoo, 419 Mass. 486, 494-95 (1995). The court provides guidance in Commonwealth v. Mamay, wherein the indictments relating to four victims were joined for trial. Commonwealth v. Mamay, 407 Mass. 412, 413 (1990). In Mamay, a gynecologist was charged with six (6) counts of criminal sexual conduct, including indecent assault and battery, and rape. Id. In each incident, the complainants were patients of the defendant. Id. The court held that the evidence showed that the defendant “used his position of authority and trust to commit sexual crimes upon the female patients visiting his office.” Id. at 416. Furthermore, the court determined that minor factual differences in the nature of the offenses were irrelevant when “there [was] such similarity in the method by which the defendant committed the various offenses.” Id. at 417. Also, the fact that the incidents occurred over a span of eight (8) months did not indicate that the offenses were unrelated when the method and facts were so similar as to show a common scheme. Id.
The present case is similar to Mamay in several ways. First, the relationship between the defendant and the complainants is similar because the defendant here had authority over the employees he supervised, including the complainants. Second, there are factual similarities among the incidents.3 The incidents all involve allegations of criminal sexual conduct and there are repeated instances of the defendant touching a complainant’s buttocks and undoing his pants and forcing himself on the complainants. The fact that there is a range in the iypes of sexual conduct does not prove that the incidents are unrelated. Finally, these incidents take place over about 14 months. *600Although it is longer than the eight (8) months in Mamay, the court was clear in stating that some distance in time does not indicate that the offenses are unrelated if the method and facts of the incidents are similar and show a common scheme. Id. Therefore, it is proper for all of the indictments to be joined for trial.4
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant’s Motion for Relief from Prejudicial Joinder is DENIED.
It is unclear when his employment was terminated but it seems that he worked there through at least June of 2010.
Nile pseudonyms “Jane," “Sarah,” and “Michelle" will be used to identify the three victims in this matter.
Defendant maintains that his relationship with Jane was romantic and consensual and is thus clearly different and severable from the allegations of the other two victims. However, the evidence tends to show that the defendant entered into all of his sexual encounters or relationships by way of his relationship with the complainants and his power over them, regardless of whether the encounters were consensual or nonconsensual. The defendant’s burden, however, is “not satisfied by a showing merely that [his] chances for acquittal would have been better had the [complaints] been tried separately.” Commonwealth v. Delaney, 425 Mass. 587, 595 (1997), quoting Commonwealth v. Montanez, 410 Mass. 290, 304 (1991). Rather, the defendant must show that “the prejudice resulting from a joint trial is so compelling that it prevent[ed] [him] from obtaining a fair trial.” Id. quoting Commonwealth v. Clarke, 418 Mass. 207, 217 (1994). In Delaney, the court joined charges of violating a c. 209A order, stalking, and intimidating a witness (all involving the same victim). The jury convicted the defendant on five (5) of the six (6) charges of violating a protective order, but acquitted him on the stalking and intimidation charges, as well as one of the charges of violating a protective order. Clearly, the jury carefully considered the evidence of the case with respect to each crime charged, resulting in a fair trial. The jury in the trial of the instant case wiE likewise be able to weigh the evidence with respect to each crime charged, giving the defendant a fair trial.
See also Commonwealth v. Feijoo, 419 Mass. 486 (2005) (thirteen indictments charging karate teacher with the rape of three of his male students were joined for trial because the evidence showed that the defendant used his position as the students’ teacher “to induce the complainants’ cooperation and submission to his desire for homosexual activity”). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2984617/ | March 4, 2014
JUDGMENT
The Fourteenth Court of Appeals
DERICK HANDY, Appellant
NO. 14-14-00027-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below. The
record indicates that the appeal should be DISMISSED. The Court orders the
appeal DISMISSED in accordance with its opinion.
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/1380703/ | 586 F.3d 1185 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
William John MAHAN, Defendant-Appellant.
No. 08-30475.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 6, 2009.
Filed November 16, 2009.
*1186 Terri Wood, of Eugene, OR, argued the cause for the defendant-appellant and filed the briefs.
Frank R. Papagini, Jr., Assistant United States Attorney for the District of Oregon, Eugene, OR, argued the cause for the appellee and filed the brief. Karin J. Immergut, United States Attorney for the District of Oregon, and Kelly A. Zusman, Assistant United States Attorney for the District of Oregon, were on the brief.
Before: DIARMUID F. O'SCANNLAIN and N. RANDY SMITH, Circuit Judges, and CHARLES R. WOLLE,[*] Senior District Judge.
O'SCANNLAIN, Circuit Judge:
We must decide whether an individual who trades drugs for guns possesses the firearms "in furtherance of" his drug trafficking offense.
I
A
Late on the evening of November 30, 2005, Zane Isabell and Shawn Copley offered to sell several stolen firearms to William Mahan. Copley initially called his mother to gauge her interest in acquiring them; during this phone call, he ultimately spoke with Mahan, who was living with Copley's mother at the time. Based on Copley's conversation with Mahan, Copley and Isabell drove to his mother's house with the stolen firearms. After smoking some methamphetamine that Mahan supplied, the three left the house and went to a nearby shed, where Copley showed Mahan the guns. After viewing the firearms, Mahan agreed to buy them for a combination of 1/8 ounce of methamphetamine and approximately $700 in cash.
*1187 B
Mahan was eventually arrested and charged on a three-count indictment. The final count charged him with possession of a firearm "in furtherance of" a drug trafficking offense in violation of 18 U.S.C. § 924(c). Mahan's motion for acquittal was denied before closing argument. The jury convicted Mahan, who timely appeals.[1]
II
Mahan challenges the district court's decision to deny his motion for acquittal.[2] In essence, we are confronted with a narrow question of law: whether a defendant who receives guns in exchange for drugs possesses those guns "in furtherance of" his drug trafficking offense within the meaning of 18 U.S.C. § 924(c).
A
Section 924(c)(1)(A) establishes minimum penalties for offenders who use firearms to commit drug trafficking offenses. It provides, in pertinent part:
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime
(i) be sentenced to a term of imprisonment of not less than 5 years;
(emphasis added).
"[T]he natural meaning of `in furtherance of' is `furthering, advancing or helping forward.'" United States v. Hector, 474 F.3d 1150, 1157 (9th Cir.2007) (internal citations omitted). The government can establish that a defendant has used a gun to "promote or facilitate" a crime if "facts in evidence reveal a nexus between the guns discovered and the underlying offense." United States v. Krouse, 370 F.3d 965, 968 (9th Cir.2004). Mahan rather argues that, in order to obtain a conviction under the "in furtherance of" prong of section 924(c), "the government must show that the defendant intended to use the firearm to promote or facilitate the drug crime." United States v. Rios, 449 F.3d 1009, 1012 (9th Cir.2006) (emphasis added).
This argument misreads Rios, where we applied the familiar "nexus" requirement to uphold the defendant's conviction. Although we described the government's burden as requiring proof of intent, we clarified that "[e]vidence of this intent is sufficient when facts in evidence reveal a nexus between the guns discovered and the underlying offense." Id. (internal quotation marks and citations omitted).
Moreover, the text of the statute clearly demonstrates that "in furtherance of" does not simply mean "intends to use." Section 924(d), the subsection following the one in issue, draws a distinction between firearms "used" in an offense and those "intended *1188 to be used." 18 U.S.C. § 924(d)(1); see also Bailey, 516 U.S. at 146, 116 S. Ct. 501. Thus, we reject Mahan's attempt to recharacterize the meaning of "in furtherance of," and again reaffirm that "intended to be used" and "in furtherance of" are different standards. Given that the statute uses these two phrases in different contexts, there is no reason to interpret the two provisions as identical. Thus, Mahan's attempt to redefine the phrase "in furtherance of" is unpersuasive.
B
The determination of whether a defendant possessed firearms in furtherance of a drug offense "turns on the intent of the defendant," and is generally fact specific, focusing on the evidence linking the firearm to the drug crime. See Krouse, 370 F.3d at 967. When guns are located within strategic reach of a dealer such that they can use the guns to protect their illicit trade or the proceeds thereof, then a defendant's possession would typically be characterized as "in furtherance of" the drug crime. Compare id. at 968 (holding that high-caliber firearms located within easy reach in a room containing drugs were possessed "in furtherance of" a drug offense), with United States v. Mann, 389 F.3d 869, 872-73 (9th Cir.2004) (holding that guns located within a locked safe in the defendant's truck were not possessed "in furtherance of" trafficking drugs located within a tent).
From these cases, Mahan attempts to glean the principle that a gun must be within close physical proximity to a drug trafficker or his drugs in order to be possessed "in furtherance of" the drug offense. Although all of this court's prior decisions interpreting this statute have done so in the context of a defendant who possessed a firearm near drugs, see, e.g., United States v. Lopez, 477 F.3d 1110, 1115 (9th Cir.2007) (holding that the defendant violated section 924(c) when both drugs and firearms were within his reach when he was stopped by the police), neither the statute nor our prior cases limit it to such situations.
Five other courts of appeals have confronted cases factually similar to this one, and all have either decided or assumed without deciding that a defendant who, like Mahan, receives firearms in exchange for drugs possesses those firearms "in furtherance of" a drug trafficking offense. See United States v. Sterling, 555 F.3d 452, 458 (5th Cir.2009) ("We thus assume, without deciding, that bartering drugs for guns constitutes `possession in furtherance'[of a drug trafficking offense.]"); United States v. Dolliver, 228 Fed.Appx. 2, 3 (1st Cir.2007) (holding that trading drugs for a gun is a violation of the "in furtherance of" prong of the statute); United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir.2007) (same); United States v. Boyd, 209 Fed.Appx. 285, 290 (4th Cir. 2006) ("We conclude that accepting possession of firearms as payment for crack cocaine is possession in furtherance of a drug trafficking crime."); United States v. Frederick, 406 F.3d 754, 764 (6th Cir.2005) (holding that trading drugs for a firearm violates the "in furtherance of" prong of the statute).
These cases demonstrate the common sense proposition that when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gunthe "currency" for the purchasethe drug sale would not take place. As the Sixth Circuit observed:
As a matter of logic, a defendant's willingness to accept possession of a gun as consideration for some drugs he wishes to sell does "promote or facilitate" that illegal sale. If the defendant did not accept possession of the gun, and instead insisted on being paid fully in cash for his drugs, some drug salesand *1189 therefore some drug trafficking crimes would not take place.
Frederick, 406 F.3d at 764. When a defendant accepts a gun as payment for his drugs, his saleand thus his crimeis incomplete until he receives possession of the firearm. We fail to see how possession that completes a drug trafficking offense is not possession "in furtherance of" a drug trafficking offense.
Mahan cites no precedent, from this circuit or any other, for the proposition that accepting guns as payment for drugs does not constitute possession of firearms "in furtherance of" a drug trafficking offense.[3] In light of the unanimity and clarity of our sister circuits' precedent, we decline Mahan's invitation to create a circuit split, and hold that a defendant who accepts firearms in exchange for drugs possesses the firearms "in furtherance of" a drug trafficking offense.
III
Mahan offers several arguments to rebut our construction.
A
First, Mahan cites a pair of Supreme Court opinions. He compares Watson v. United States, 552 U.S. 74, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007), where the Court held that a defendant does not "use" a gun when he receives it in trade for drugs, to Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993), where the Court held that a defendant does use a gun if he trades it to "purchase" drugs. Watson, however, interpreted only section 924(c)'s "use" prong. The government did not charge Mahan under section 924(c)'s "use" prong, however. Instead, it charged him under section 924(c)'s "in furtherance of" prong. Therefore, Watson's holding does not control. Indeed, Watson expressly declined to discuss whether receiving guns in exchange for drugs violates the "in furtherance of" prong of section 924(c). Thus, these Supreme Court decisions shed no light on whether Mahan's conduct falls within the "in furtherance of" prong of section 924(c).
B
Second, Mahan claims that his possession of the firearms was not "in furtherance of" his drug trafficking offense because they did not play an "emboldening role" in his offense. He argues that Congress amended the statute to include the "in furtherance of" prong to address a situation "where a defendant kept a firearm available to provide security for the transaction, its fruit or proceeds, or was otherwise emboldened by its presence in the commission of the offense." 144 Cong. Rec. 26,608-09 (1998) (statement of Sen. DeWine).[4] This lone senator's statement, however, cannot overcome the plain language *1190 of the statute. To whatever extent the legislative history is relevant, the frequently cited House Judiciary Committee Report[5] states that in order to obtain a conviction under this prong of the statute, "[t]he government must clearly show that a firearm was possessed to advance or promote the commission of the underlying offense." H.R.Rep. No. 105-344, at 12 (1997). Thus, we deem Mahan's attempt to import additional elements into section 924(c) unpersuasive.
IV
For the foregoing reasons, the district court's denial of Mahan's motion for acquittal is
AFFIRMED.
NOTES
[*] The Honorable Charles R. Wolle, Senior United States District Judge for the Southern District of Iowa, sitting by designation.
[1] Mahan's claim that the district court's sentence was improper is disposed of in a memorandum disposition filed concurrently with this opinion.
[2] A motion for acquittal must be filed within seven days of a jury verdict. Fed.R.Crim.P. 29(c). Mahan did not file his motion until nine months after the jury verdict, and thus, it was untimely. However, because Mahan made a Rule 29(a) motion as to the sufficiency of the evidence (at the conclusion of the evidence adduced at trial), we review de novo the denial of a Rule 29 motion for acquittal. United States v. Tisor, 96 F.3d 370, 379 (9th Cir.1996).
[3] For these same reasons, we reject Mahan's claim that he did not possess the firearms "in furtherance of" his drug trafficking offense since he did not acquire possession of the firearms until the completion of his offense. This argument incorrectly interprets the phrase "in furtherance of" to mean "during." The statute does not require that the defendant possess the gun throughout the entirety of his drug deal; rather, it simply requires that whatever the specific nature of his gun possession, it "further[], advanc[e] or help[] forward" the underlying drug sale. Hector, 474 F.3d at 1157 (quoting United States v. Castillo, 406 F.3d 806, 814 (7th Cir.2005)).
[4] Mahan also points to United States v. Polanco, 93 F.3d 555, 566-67 (9th Cir.1996), for the proposition that, in order to demonstrate that he possessed the firearms "in furtherance of" his drug trafficking crime, the government must prove that his use of a gun "emboldened" him to commit his offense. We decided Polanco two years before Congress amended section 924(c) to include the "in furtherance of" prong, so the case does not bear on the meaning of this phrase.
[5] This court, as well as other courts interpreting this portion of the statute, has frequently looked to the House Report accompanying the statute for guidance. See Rios, 449 F.3d at 1013 (quoting House Report 105-344); see also United States v. Combs, 369 F.3d 925, 932 (6th Cir.2004) (same). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607752/ | 280 F. Supp. 651 (1968)
Richard E. SMITH et al., Plaintiffs,
v.
Charles F. DENNY, Principal, Enterprise High School et al., Defendants.
Civ. No. S-322.
United States District Court E. D. California.
February 28, 1968.
*652 Benjamin Dreyfus, Garry, Dreyfus, McTernan & Brotsky, San Francisco, Cal., for plaintiffs; Rabinowitz & Boudin, New York City, of counsel.
Robert A. Rehberg, County Counsel, Redding, Cal., for defendants.
MEMORANDUM AND ORDER
MacBRIDE, Chief Judge.
Plaintiffs in this action are students at Enterprise High School in Redding, California and their parents who are suing as their guardians. Defendants are the Principal of Enterprise High School, the President of the Board of Trustees of Enterprise High School, and the Superintendent of the Board of Trustees of Enterprise High School. Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1343, 2201, 2281 and 2284.
In their amended complaint plaintiffs seek a declaration by a three-judge court that § 5211 of the California Education Code constitutes an unconstitutional deprivation of the free exercise of religion and an establishment of religion in violation of the first and fourteenth amendments to the Constitution. Section 5211 reads in pertinent part:
In every public secondary school there shall be conducted daily appropriate patriotic exercises. The giving of the pledge of allegiance to the Flag of the United States of America shall satisfy such requirement. Such patriotic exercises for secondary schools shall be conducted in accordance with the regulations which shall be adopted by the governing board of the district maintaining the secondary school.
According to the amended complaint, the governing board in the district in which Enterprise High School is located has adopted regulations pursuant to this statute which require daily recitation of the Pledge of Allegiance in the form that includes the phrase "one nation, under God, indivisible, with liberty and justice for all." (Emphasis added) Plaintiffs assert that the regulation, by requiring inclusion of the words "under God" violates the first and fourteenth amendments. They ask that the three-judge court direct defendants to remove the words "under God" from the Pledge of Allegiance.
Defendants resist plaintiffs' request for a three-judge court on the ground that the constitutional questions raised are insubstantial. They have moved to dismiss the action for failure to state a claim (Fed.R.Civ.P. 12(b)) on the same ground.
*653 In an action seeking a declaration of unconstitutionality of a state statute, a substantial federal question must be present before a district judge can convene a three-judge court. Powell v. Workmen's Compensation Bd. of State of New York, 327 F.2d 131 (2d Cir. 1964). When no substantial federal question is presented, he has the duty to dismiss. Smith v. State of California, 336 F.2d 530 (9th Cir. 1964).
Plaintiffs point to decisions by the Court in cases involving a required oath declaring belief in God by public officers (Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961), required reading of Bible verses and prayers in school (School District of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963), Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962)), and release of school time for religious purposes (Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952); People of State of Illinois ex rel. McCollum v. Board of Education, etc., 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948)). While no case litigating the issue of whether the reference to God in the pledge of allegiance violates the first amendment has been decided by the Supreme Court, plaintiffs assert that the cases cited above are sufficiently analogous to show that a substantial constitutional question exists.
Defendants reply that these cases all involved wholly or essentially religious exercises which are analytically different from patriotic exercises containing ancillary references to God. Support for this distinction is found in dicta in School District v. Schempp, supra, and Engel v. Vitale, supra. In the latter case, which involved a required classroom prayer, Mr. Justice Black stated:
There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance. Id. 370 U.S. at 435 n. 21, 82 S.Ct. at 1269.
This statement was quoted with approval in Mr. Justice Goldberg's concurring opinion (in which Mr. Justice Harlan joined) in School District v. Schempp, supra, 374 U.S. at 307, 83 S.Ct. at 1616. Mr. Justice Brennan also wrote a concurring opinion in Schempp wherein he declared in discussing the beneficial aspects of solemn exercises in the school:
It has not been shown that readings from the speeches and messages of great Americans, for example, or from the documents of our heritage of liberty, daily recitation of the Pledge of Allegiance, or even the observance of a moment of reverent silence at the opening of class, may not adequately serve the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government. Id. at 281, 83 S.Ct. at 1602 (footnote omitted.)
An excellent illustration of the distinction between a forbidden religious exercise and a permissible patriotic ceremony is found in Sheldon v. Fannin, 221 F. Supp. 766 (D.Ariz.1963). The suit was under the Civil Rights Act for injunctive relief on behalf of students who were suspended from a public school for insubordination because of their refusal to stand for the singing of the National Anthem.[1] The ground for their refusal *654 was their religious belief as Jehovah's Witnesses. The late Judge Mathes held that the suspensions were violative of first amendment rights and enjoined the school board from excluding such students from school attendance. In doing so, however, Judge Mathes first rejected plaintiffs' contention that the National Anthem was an establishment of religion within the meaning of the first amendment:
Relying upon the recent "school-prayer" decisions * * * the plaintiffs first argue that the National Anthem contains words of prayer, adoration and reverence for the Deity, and that a State's prescription of participation therein amounts to a prohibited "establishment of religion." This contention must be rejected. The singing of the National Anthem is not a religious but a patriotic ceremony, intended to inspire devotion to and love of country. Any religious references therein are incidental and expressive only of the faith which as a matter of historical fact has inspired the growth of the nation. Id. at 774 (citations omitted.)
While, as stated previously, the Supreme Court has not been faced with the precise issue here, the pronouncements of the Court set forth above provide me with sufficient guidance to decide that § 5211 of the California Education Code and the regulations adopted pursuant to it do not constitute either a deprivation of the free exercise of religion or an establishment of religion within the meaning of the first amendment. It follows that plaintiffs' claim presents no substantial constitutional question. My feelings are best summed up by Mr. Justice Goldberg in his concurrence in School District v. Schempp, supra, wherein he stated:
The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow. Id. 374 U.S. at 308, 83 S.Ct. at 1616.
It is therefore ordered that plaintiffs' request for a three-judge court is hereby denied.
It is further ordered that defendants' motion to dismiss be granted and the action is hereby dismissed.
NOTES
[1] It should be noted that the instant case does not raise the question of the propriety of sanctions imposed by school officials for students' refusal to participate in the recitation of the Pledge of Allegiance. The Supreme Court has dealt with that situation in the context of expulsion of Jehovah's Witnesses from a public school, finding the expulsions to be unconstitutional. West Virginia State Board of Education v. Barnett, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943). The student plaintiffs here remain silent during the ceremony. While it is alleged that the inclusion of the words "under God" has "necessarily" resulted in the exercise of "coercion" upon plaintiffs (amended complaint, para. 15), this appears to be a reference to the feelings of ostracism that are often a by-product of the assertion by minorities of their alleged constitutional rights. Nowhere is it alleged plaintiffs' conduct has caused them to be penalized by teachers or school officials. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1193775/ | 519 F.3d 1123 (2008)
In re Sue ANTROBUS and Ken Antrobus, Petitioners.
No. 08-4002.
United States Court of Appeals, Tenth Circuit.
March 14, 2008.
Brigida Benitez, Jason Metha, P. Davis Oliver, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Rebecca C. Hyde, Gregory G. Skordas, Skordas, Caston & Hyde, Salt Lake City, UT, Paul G. Cassell, for Petitioners.
Sue Antrobus, Salt Lake City, UT, pro se.
Before HARTZ, TYMKOVICH, and GORSUCH, Circuit Judges.
ORDER
This is an original proceeding in the nature of mandamus under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771(d)(3). Sue and Ken Antrobus, the parents of Vanessa Quinn, request that Ms. Quinn be recognized as a victim of Mackenzie Glade Hunter's crime of transferring a handgun to a juvenile in violation of 18 U.S.C. § 922(x)(1). Mr. Hunter is scheduled to be sentenced on Monday, January 14, 2008.
*1124 I
On February 12, 2007, Sulejman Talovic murdered five people, including Ms. Quinn, and injured four others at the Trolley Square Shopping Center in Salt Lake City, Utah. One of the guns Talovic used in his rampage was a handgun that he had purchased from Mr. Hunter in the summer of 2006, when Talovic was a "juvenile" as defined in § 922(x). Talovic was killed on the scene.
Mr. Hunter pleaded guilty to two charges. Only one count, that of transferring a handgun to a juvenile, is relevant to this action. After the plea hearing, the Antrobuses sought to have Ms. Quinn declared a victim of Mr. Hunter's crime so that they, on her behalf, could assert certain rights provided by the CVRA. See 18 U.S.C. § 3771(a)(4) (establishing "[t]he right to be reasonably heard" at the sentencing); id. § 3771(d)(6) (establishing "[t]he right to full and timely restitution as provided in law"). The district court denied the motion. United States v. Hunter, No. 2:07CR307DAK, 2008 WL 53125 (D.Utah Jan. 3, 2008). In doing so, it proceeded on the basis that the handgun sold by Mr. Hunter killed Ms. Quinn, id. at *1, though Mr. Hunter asserts before us that this fact is not discernible from the record of this case. The district court also indicated that other allegations were unsupported, particularly whether Talovic remarked to Mr. Hunter or in Mr. Hunter's hearing that he intended to commit a bank robbery, but stated that its ruling would not change even assuming such facts. Id. at *4.
As permitted by the CVRA, 18 U.S.C. § 3771(d)(3), the Antrobuses filed a petition for a writ of mandamus seeking review of the district court's decision. Pursuant to this court's order, Mr. Hunter filed a response.
II
Standard of Review
The Supreme Court has made it clear that mandamus is a "drastic" remedy that is "to be invoked only in extraordinary situations." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S. Ct. 188, 66 L. Ed. 2d 193 (1980) (per curiam). "[T]he writ of mandamus has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Id. at 35 (quotations omitted). Petitioners must show that their right to the writ is "clear and indisputable." Id. (quotations omitted).
The Antrobuses argue that, even though the CVRA provides for mandamus review, this court should apply those standards that would apply on normal appellate review. See In re W.R. Huff Asset Mgmt. Co., LLC, 409 F.3d 555, 562-63 (2d Cir. 2005); Kenna v. U.S. Dist. Ct., 435 F.3d 1011, 1017 (9th Cir.2006). We respectfully disagree, however, with the decisions of our sister circuit courts.
Congress could have drafted the CVRA to provide for "immediate appellate review" or "interlocutory appellate review," something it has done many times. Instead, it authorized and made use of the term "mandamus."
[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.
Morissette v. United States, 342 U.S. 246, 263, 72 S. Ct. 240, 96 L. Ed. 288 (1952). *1125 Mandamus is the subject of longstanding judicial precedent. "We assume that Congress knows the law and legislates in light of federal court precedent." Bd. of County Comm'rs v. U.S.E.E.O.C., 406 F.3d 840, 845 (10th Cir.2005). Applying the plain language of the statute, we review this CVRA matter under traditional mandamus standards.
Analysis
The CVRA defines a "crime victim" as "a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia." 18 U.S.C. § 3771(e). While acknowledging that Ms. Quinn undeniably was a crime victim, the district court held that she was not a victim of the particular crime to which Mr. Hunter pleaded guilty because Mr. Hunter's offense and Talovic's rampage were "too factually and temporally attenuated." Hunter, 2008 WL 53125, at *4. Following the rationale of United States v. Sharp, 463 F. Supp. 2d 556 (E.D.Va.2006), the district court determined that Talovic's actions were an "independent, intervening cause" of Ms. Quinn's death. Id. at *5.
This is a difficult case, but we cannot say that the district court was clearly wrong in its conclusion. The only court that has decided an analogous case under the CVRA held that the movant was not a "crime victim" under that statute. See Sharp, 463 F. Supp. 2d 556. Based on its factual finding that Mr. Hunter was unaware of Talovic's intentions for the firearm,[1] to find for the Antrobuses we would have to determine that selling a gun to a minor is the proximate cause of any resulting injury to third persons. This area of the law, however, is not well-developed and is evolving. While authority is mixed in the common law context, some courts have held as a matter of law that proximate cause' does not exist between a sale of a firearm to a person statutorily disqualified from making the purchase and later injuries to a third person through use of the firearm. See, e.g., Robinson v. Howard Bros. of Jackson, Inc., 372 So. 2d 1074, 1076 (Miss.1979). Others have held that proximate cause can be found in some such circumstances but may not (as would be required here) be found on a per se basis. See, e.g., Olson v. Ratzel, 89 Wis. 2d 227, 278 N.W.2d 238, 250, 249-51 (1979); Phillips v. Roy, 431 So. 2d 849, 853 (La.Ct.App. 1983). Such questions have not yet been decided in this jurisdiction. Finally, at most the statute Mr. Hunter violated indicates the foreseeability of the foolish (or, sadly, as here, worse) use of firearms by juveniles. But such foreseeability does not obviously extend to an individual who employs a ^gun only after becoming an adult as a matter of law. And here, the Antrobuses have not shown that Talovic was still a juvenile when he committed the murders more than seven months after purchasing the; handgun from Mr. Hunter. See 18 U.S.C. § 922(x)(5) (defining juvenile as a "person who is less than 18 years of age"). *1126 In light of these circumstances, we cannot say that the Antrobuses' right to the writ is "clear and indisputable," Allied Chem. Corp., 449 U.S. at 35, 101 S. Ct. 188 (quotations omitted).
III
The Antrobuses' motion to proceed in forma pauperis is GRANTED. Their Motion to Strike Anticipated Defense Objection to Petition for Writ of Mandamus and Renewed Motion to Strike Defense Objection are DENIED. Their alternative motion for leave to supplement the record is GRANTED and their proffered exhibit is accepted for filing under seal. Their alternative motion for order directing the government to supplement the record is DENIED. Mr. Hunter's motion to unseal the portions of his presentence report that were submitted as Exhibit D to his response is GRANTED. The petition for a writ of mandamus is DENIED.
TYMKOVICH, Circuit Judge, concurring.
We live in a post-Columbine High School massacre world. In that world, juveniles are willing to procure guns and use them to commit violent, horrific cranes. In this case, the previously unthinkable act of random killing took place in a mall in Bait Lake City. Sulejman Talovic was the shooter and he used a handgun and shotgun to kill five people. One of the murder weapons was procured from Mackenzie Hunter, and used to kill Vanessa Quinn. I write separately because the process in this case failed to adequately support the rights of crime victims such as Ms. Quinn as guaranteed by the CVRA.
Two issues are presented for review. The first is the standard of review. The Second and Ninth Circuits have applied a relaxed standard for resolving appeals under the CVRA The Ninth Circuit, for example, would "issue the writ whenever [it] find[s] that the district court's order reflects an abuse of discretion or legal error." Kenna v. U.S. Dist. Ct., 435 F.3d 1011, 1017 (9th Cir.2006). The Second Circuit holds that in reviewing a petition under the CVRA we should review factual determinations for clear error, legal issues de novo, and the resolution of the application for a writ for abuse of discretion. In re W.R. Huff Asset Mgmt. Co., LLC, 409 F.3d 555, 562 (2d Cir.2005). We part company with these circuits and apply the traditional standard of review for petitions of mandamus.
Whatever the mandamus standard, the central issue is whether Vanessa Quinn's parents may seek to have her declared as a "crime victim" under the CVRA. Applying traditional rules of "but-for" and "proximate" causation, they argue that the district court should have concluded that she was a victim. In my view, the district court and the government erred in failing to permit the Antrobuses reasonable access to evidence which could support their claim. With this information, the Antrobuses may have been able to demonstrate the requisite causal connection between Hunter's crime and Ms. Quinn's murder. The government's cooperation is mandated by the CVRA which requires the government to "make their best efforts to see that crime victims are notified of, and accorded, the rights" set forth in the Act. 18 U.S.C. § 3771(c)(1).
Here is what the Antrobuses might have demonstrated given the government's cooperation. First of all, the victim must be "directly" harmed by the crime. This encompasses a "but-for" causation notion that is met here.
In addition, the harm must "proximately" result from the crime. That is the more difficult issue, but the record suggests that the following evidence could be developed to show that Talovic's crime was a reasonably foreseeable result of the illegal *1127 gun sale. (1) Hunter knew Talovic was a minor and could not legally purchase a gun in the first place; (2) the murder weapon was previously stolen; (3) Hunter heard Talovic's intent to commit bank, robbery, a crime of violence where the use of a gun could reasonably result in a shooting; and, finally; (4) the shooting was not so remote in time as to be unforeseeable. I do not think it matters that Talovic committed a crime that is different from what he told Hunter; only that the crime could obviously and likely lead to violence. The language included in the indictment in fact makes clear that the government believed Hunter, knew that Talovic "intended to carry or otherwise possess, or discharge or otherwise use the handgun in the commission of a crime of violence." If the intervening cause was foreseeable then proximate cause can be established.[1]
Taken together, these facts could establish that Ms. Quinn was a crime victim for purposes of the CVRA. This evidence may well be contained in the government's files. Sadly, the Antrobuses were not allowed a reasonable opportunity to make a better case.
ORDER
Petitioners seek panel rehearing of our order of January 11, 2008 denying their petition for mandamus under the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. § 3771(d)(3).[1] We do not believe rehearing is appropriate, but offer here some additional words of explanation in light of petitioners' latest filing and the time constraints under which we operated when initially disposing of their mandamus petition.
I
In their petition for rehearing, petitioners Restate and develop their argument that this court should apply normal appellate standards of review rather than those applicable to writs of mandamus. We cannot agree. The plain language of the CVRA provides that "[i]f the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus." 18 U.S.C. § 3771(d)(3). Mandamus is a well worn term of art in our common law tradition. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170-71, 2 L. Ed. 60 (1803) (discussing mandamus standard for relief); Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S. Ct. 2576, 159 L. Ed. 2d 459 (2004).[2] And the Supreme Court has made clear that "where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed *1128 word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Morissette v. United States, 342 U.S. 246, 263, 72 S. Ct. 240, 96 L. Ed. 288 (1952).
To be sure, petitioners point us to In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555 (2d Cir.2005). There, the Second Circuit held that ordinary mandamus standards do not apply in the CVRA context, stating that
[u]nder the plain language of the CVRA, however, Congress has chosen a petition for mandamus as a mechanism by which a crime victim may appeal a district court's decision denying relief sought under the provisions of the CVRA. It is clear, therefore, that a petitioner seeking relief pursuant to the mandamus provision set forth in § 3771(d)(3) need not overcome the hurdles typically faced by a petitioner seeking review of a district court determination through a writ of mandamus.
Id. at 562 (internal quotations and citations omitted). The Ninth Circuit, in an equally brief passage, reached the same result. Kenna v. U.S. Dist. Court, 435 F.8d 1011, 1017 (9th Cir.2006); see also In re Walsh, 229 Fed.Appx. 58, 60 (3d Cir.2007). With respect to our sister circuits, and aware of the time pressures under which they operated, we see nothing in their opinions explaining why Congress chose to use the word mandamus rather than the word appeal. To us, Chief Justice Marshall's admonition in Marbury seems to control here: "the appellate jurisdiction may be exercised in a variety of forms, and [] if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed." 5 .U.S. at 175.[3]
Along these lines, it seems to us relevant that Congress well knows how to provide for ordinary interlocutory appellate review, rather than mandamus review, when it wishes to do so. In fact, merely four months after the CVRA was enacted, Congress passed the Class Action Fairness Act ("CAFA"), altering the general rule that an order by a district court remanding a previously removed case to the state court is not reviewable on appeal. Specifically, *1129 CAFA provides that a court of appeals may, in its discretion, hear an appeal from such an order if application to the court of appeals is made within seven days, and having taken the case, the court of appeals must, again as a general rule, enter its judgment no more than 60 days after the appeal is filed. 28 U.S.C. § 1453(c). Of course, Congress equally could have opted for a different, mandamus, procedure, in CAFA; the fact that it did not, we think, ought not be ignored. And, although it is only a rough measure, a computer-aided search of the United States Code indicates that the phrase "interlocutory appeal" appears 62 times, and the word "interlocutory" appears 123 times in the same sentence as the word "appeal."
Petitioners' argument that Congress could not practicably provide for an expedited form of interlocutory appellate review without modifying a host of standing legal rules is likewise without merit. Congress has placed time limits on when interlocutory appeals must be filed that differ from ordinary deadlines to file a notice of appeal,[4] and has placed time constraints on how long the court of appeals may take to rule.[5] In light of the, fact that Congress regularly provides for and delineates the nature and scope of ordinary interlocutory appellate review, we see no reason to suppose that the use of the word mandamus in the CVRA has other than its traditional meaning.
This is especially so in light of the CVRA's own structure and language. While the CVRA provides individuals seeking review of a district court's "victim status" decision with mandamus review, it simultaneously affords the government with the ability to obtain ordinary appellate review of the same decision. See 18 U.S.C. § 3771(d)(4). Given this, to read the CVRA's mandamus provisions as requiring ordinary appellate review would "run[] afoul of the usual rule that when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended." Sosa v. Alvarez-Machain, 542 U.S. 692, 712 n. 9, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (2004) (internal quotations omitted). To be sure, petitioners offer arguments why individuals like themselves should be afforded greater appellate rights, more akin to the government's, but their arguments are best directed to Congress. Our job is to apply the CVRA as written, not to rewrite it as one might wish the law to be.
Additionally, petitioners claim that our reading of the statute renders the CVRA superfluous in light of the fact that the All Writs Act, 28 U.S.C. § 1651, already grants crime victims, or anyone else for that matter, the ability to petition for a writ of mandamus. On the contrary, however, we read Section 3771(d)(3) and (4) as affording litigants considerably more rights than they would otherwise have, with the former requiring that putative crime victims receive a decision from the court of appeals within 72 hours, a substantial expansion on the common law right codified in the All' Writs Act, and the latter providing the government with a right to appeal a decision adverse to other *1130 parties (those seeking crime victims status).
Finally, to the extent that the 72-hour requirement can be read to suggest anything about Congress's intended standard of review, we think it too favors application of the deferential mandamus standard of review. It seems unlikely that Congress would have intended de novo review in 72 hours of novel and complex legal questions, such as, as here, whether the sale of a gun to a minor in violation of a statute is a proximate cause of any subsequent violent act committed with the gun by its purchaser.
II
In the alternative, petitioners contend that even if traditional mandamus standards apply, the application in our January 11, 2008 order of a "clear and indisputable" standard is inconsistent with our precedent. That simply is not the case.
Petitioners argue that in this circuit we consider five factors to determine whether to grant a writ of mandamus, asking whether (1) the petitioner has alternative means to secure relief; (2) the petitioner will be damaged in a way not correctable on appeal; (3) the district court's order constitutes an abuse of discretion; (4) the order represents an often repeated error and manifests a persistent disregard of federal rules; and (5) the order raises new and important problems or issues of law that are questions of first impression. See, e.g., In re Qwest Commc'ns Int'l Inc., 450 F.3d 1179, 1184 (10th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 584, 166 L. Ed. 2d 429 (2006); United States v. Gonzales, 150 F.3d 1246, 1253-54 (10th Cir. 1998); United States v. McVeigh, 119 F.3d 806, 810 (10th Cir.1997). Contrary to petitioners' suggestion, however, these five factors are not an alternative to the "clear and indisputable right" standard, which the Supreme Court has reaffirmed as recently as 2004. See Cheney, 542 U.S. at 381, 124 S. Ct. 2576 & supra note 2. Rather, the five factors are simply one, nonexclusive means of applying that standard.
The five factors apparently first came into use in this circuit in Dalton v. United States (In re Dalton), 733 F.2d 710 (10th Cir.1984). There, we explained that the issuance of writs of mandamus is "limited strictly . . . to those exceptional cases where the inferior court acted wholly without jurisdiction or so clearly abused its discretion as to constitute usurpation of power," and that "in order to justify the invocation of this extraordinary remedy, the petitioning party has the burden of showing that its right to issuance of the writ is `clear and undisputable.'" Id. at 716. Although we went on to offer five factors to help guide that analysis, we declined to hold that the satisfaction of those factors necessarily constituted a sufficient basis for the writ to issue. Id. at 716-17. Indeed, most of the cases petitioners cite in support of the five factors acknowledge as much. See, e.g., In re Qwest, 450 F.3d at 1182-83 ("The Supreme Court has required that a party seeking mandamus demonstrate that he has no other adequate means of relief and that his right to the writ is `clear and indisputable.'"); United States v. Roberts, 88 F.3d 872, 882 (10th Cir.1996) ("The petitioner must demonstrate its right to a writ of mandamus is clear and indisputable."); Pacificare of Okla., Inc. v. Burrage, 59 F.3d 151, 153 (10th Cir.1995) ("The party seeking the writ must show that the right to the writ is `clear and indisputable.'").
III
Petitioners spend virtually no time arguing that our earlier order erred on the merits, instead focusing their efforts on the standard of review. In doing so, they fail to explain how the outcome would necessarily *1131 change under the standard of appellate review they seek. Neither is it obvious to us that the outcome would change.
If we were to hold, on this record, that petitioners' daughter is a crime victim within the meaning of the CVRA, we would effectively establish a per se rule that any harm inflicted by an adult using a gun he or she illegally obtained as a minor is directly and proximately caused by the seller of the gun. In the instant case, and on this record, Mackenzie Glade Hunter knew only that Sulejman Talovic was a minor at the time the gun changed hands; the record before us is silent on the question whether Mr. Hunter had knowledge of Mr. Talovic's intentions with the firearm, see January 11, 2008 Order at 5, and Mr. Talovic was apparently an adult when he committed his terrible crimes. Id. at 6; Appellee's Response to Petition for Writ of Mandamus, Ex. B at 2. To be sure, some courts hold that the seller of a gun to a minor in violation of a statute is per se the proximate cause of harm inflicted by the minor (during his or her minority) with that gun. And to be sure, there are courts that refuse to apply a per se rule, but will hold sellers liable for harm inflicted by minors (again, during their minority) when there is some indicia that the seller of the gun knew of the minor's intent to misuse it. But petitioners have directed us to no authority of any kind suggesting that harm inflicted by an adult with a gun purchased during the adult's minority is, without more, per se directly and proximately caused by the seller of the gun, Thus, they fail to demonstrate or even suggest how adopting their proposed standard of review would affect the outcome of their petition.
* * *
The petition for panel rehearing is denied. The petition for rehearing en banc was transmitted to all of the judges of the court Who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, that petition also is denied.
NOTES
[1] "Even at the time the gun was sold, Hunter had no knowledge as to Talovic's intentions. And, after the gun was sold, Hunter had no contact with Talovic." Hunter, 2008 WL 53125, at *4; see also id. at *5 ("[T]here is no indication that he spoke to Talovic about his intentions. At most, Hunter surmised that Talovic might use [the gun] to rob a bank."). One might question whether, with additional discovery, the Antrobuses might have been able to determine whether, in fact, Mr. Hunter knew about Talovic's intentions and what such knowledge might mean for the foreseeability to Mr. Hunter of Talovic's crimes. However, petitioners have not sought mandamus on the basis that the district court should have afforded them such discovery. Accordingly, the issue is not before us and we must take as true die district court's finding that Mr. Hunter was not aware of Talovic's intentions.
[1] The CVRA limits its causal nexus to traditional standards. See, e.g., Restatement (Second) of Torts §§ 302, 390, 449; and see McDermott v. Midland Management, Inc., 997 F.2d 768, 770 (10th Cir.1993) ("[L]iability will still attach despite the existence of an intervening cause where the intervening cause was foreseen or might reasonably have been foreseen.").
[1] Petitioners' petition for rehearing en banc in this matter is addressed at the end of this order. On February 1, 2008, we denied a second mandamus petition from petitioners in a separate matter, No. 08-4013; we note that rehearing has not been sought in that matter.
[2] "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine the court against which mandamus is sought to a lawful exercise of its prescribed jurisdiction, Although courts have not confined themselves to an arbitrary and technical definition of jurisdiction, only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy." Cheney, 542 U.S. at 380, 124 S. Ct. 2576 (internal citations and alterations omitted).
[3] Having decided the appeal vs. mandamus issue, the Second Circuit proceeded to decide the appropriate appellate standard of review, analogizing to Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988). Because under the statute at issue in Pierce "neither a clear statutory prescription nor a historical tradition" existed regarding the appropriate standard of review, the Supreme Court opted to apply an abuse of discretion standard. Id. at 558. Arguing that the same held true in the CVRA context, the Second Circuit likewise chose to apply an abuse of discretion standard of review. In re W.R. Huff Mgmt. Co., 409 F.3d at 563; see also Kenna, 435 F.3d at 1017 (relying on In re W.R. Huff Mgmt. Co.). But, in Pierce the Supreme Court was asked to decide the standard of review applicable to a district court's award of attorney's fees under the Equal Access to Justice Act ("EAJA"). The provisions of the EAJA before the Court indicated that attorney's fees shall be awarded "unless the court finds that the position of the United States was substantially justified." Pierce, 487 U.S. at 559, 108 S. Ct. 2541. In analyzing what standard of review such language dictated, the Court stated that "[f]or some few trial court determinations, the question of what is the standard of appellate review is answered by relatively explicit statutory command. For most others, the answer is provided by a long history of appellate practice." Id. at 558, 108 S. Ct. 2541. The Court concluded, however, that the "substantial justification" language neither provided a clear statutory command nor was it enacted against the backdrop of historical appellate practice. By contrast, and, as discussed above, the CVRA contains a clear statutory prescription regarding the nature of the appellate review petitioners may seek, and it also happens to be one imbued with' a long history. We thus respectfully suggest that a correct application of Pierce leads back to mandamus review.
[4] See, e.g., 28 U.S.C. § 1292(b) (providing that the court of appeals may, in its discretion, consider an interlocutory appeal if, inter alia, the appeal is filed within ten days of the interlocutory order appealed).
[5] Indeed, it did so just four months later in CAFA. 28 U.S.C. § 1453(c)(2). See also 18 U.S.C. § 2339B(f)(5)(B)(iii) (stating that in an interlocutory appeal by the government from an order authorizing, inter alia, the disclosure of classified information, the court of appeals shall hear argument within 4 days of the filing of the appeal and issue its decision no more than 4 days after argument). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/987499/ | IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 68174-5-1
Respondent,
DIVISION ONE
v.
B.K.. UNPUBLISHED OPINION
DOB: 03/20/96
Appellant. FILED: March 11. 2013
Spearman, A.C.J. — B.K., a juvenile, appeals his adjudication for possession of a
stolen vehicle, arguing that the trial court erroneously failed to suppress the testimony of
A.R., who testified about B.K.'s confession only after being illegally recorded t£ffl§ng^9.
about the confession. Because A.R.'s testimony was not about the recorded ^5
statements, but instead consisted of his independent recollections of facts obtained c^rn
before any recording, there was no error in admitting the testimony. We affirm. \o '&"'
^ ->o
FACTS
On June 11, 2011, Martin Ross awoke to find his blue Prius missing. Ross later
realized the spare keyfrequency operated button (FOB), which he kept in a kitchen
drawer, was also missing. Ross and his wife had asked his neighbor's son to watch
their house while they were out of town. Upon returning, it was clear the neighbor's son
No. 68174-5-1/2
had entertained several friends at their house while they were away. Ross reported his
suspicions about the neighbors' son to the police.
On June 16, Officer William Anderson1 the stolen Prius near Northgate Mall and
attempted to stop the car in the mall parking lot. After Anderson activated his lights and
siren several times, the car eventually pulled into a parking spot. The car's doors
opened and the occupants started to get out. After Anderson asked them to get back in
the car, the three-backseat passengers remained, but the three in front ran toward
Macy's. The driver, M.B., was arrested inside the mall shortly thereafter.
Three days later, on June 19, Officer Eric Michl drove to Safeco Field with his
son A.R. in his police car. A.R. had plans to watch the Mariners' game with friends and
family while Michl worked directing traffic. When Michl pulled over to park, he flashed
his lights, thereby activating the camera/recording system inside the police car. Michl
either attempted to deactivate the recording system and failed, or simply forgot about
the recording, upon leaving to direct traffic. A.R. waited in his dad's patrol car. A.R. had
general knowledge that activation of the lights activated the camera, but did not think
about it, and did not give consent to be recorded. While in the car, A.R. called his
girlfriend. One of the topics of discussion included appellant B.K.'s theft of the Prius.
Michl later realized the recording device had been activated and listened to the
recording. Michl heard his son A.R. tell his girlfriend that B.K. had stolen a car. Michl
contacted various parents, including B.K.'s father. Later that day, Michl also confronted
1 All of the officers referred to herein, serve with the Seattle Police Department.
2
No. 68174-5-1/3
his son, who disclosed all of his conversations with the appellant B.K. According to A.R.,
on June 11, 2011, he was at B.K.'s house, when B.K. admitted that he stole a Prius.
B.K. said he had taken it from a house his brother's friend was watching. B.K. told A.R.
he took the keys first and returned later to take the car. A.R. saw B.K. driving the Prius
at school the following Monday. Michl approached Officer Hossfeld, telling Hossfeld that
his son had information that B.K. had stolen the Prius. A.R. gave a statement to the
police. Hossfeld arrested B.K., and the State charged him with possession of a stolen
vehicle.
Regarding the CrR 3.6 portion of the combined CrR 3.6 and adjudicatory hearing,
defense counsel argued the testimony and statements of A.R. should be excluded as
fruit of the poisonous tree:
But I think it's pretty clear... that the evidence of Ramirez would not
otherwise have been discovered but for his father's illegal recording
and I think at this point the court should apply the exclusionary rule
to all of his testimony, including his statements and his own
personal observations, again, because it is connected back to the
illegal search, the illegal recording, in violation ofthe Privacy Act.
Verbatim Report of Proceedings (VRP) 12/13/12 at 207.
The court found A.R.'s conversation was private and entitled to protection under
Washington's Privacy Act. The court thus declined to admit the recording. The court
found, however, the violation to be "sufficiently attenuated" from A.R.'s testimony as to
make exclusion of his testimony unnecessary:
I would say that what I think the record shows here is that the
witness Ramirez, his observations and alleged overhearing of
alleged admissions of the respondent here happened before the
recorded conversation, so that's a factor. The recorded conversation
itself is not being offered into evidence. The youth has said that he
No. 68174-5-1/4
has decided that what is supposed to have happened here was
wrong and he wanted to participate. I think the court has to analyze
that with care because I think he was subpoenaed one way or the
other, so he has to participate, whether he wants to or not. His father
is a police officer and did some investigation on the case, and so
that's a factor or not. So I think what 1 do is I look at the fruit of the
poisonous tree factors.
The case of Childress is helpful, and those factors were argued. I
think it's not an exclusive list, so I think I can consider here that it was
the testimony is sought to be admitted is prior and independent of the
illegally recorded conversation and involves a witness, not a co-
defendant or a participant and there was free will exercised. He was
quite clear in his testimony that he wanted to come in and cooperate
now. And it says: Factor 3. The fact that the exclusion would
permanently disable the witness from testifying about relevant
material facts, regardless of how unrelated such testimony might be
to the purpose of the original illegal search. I do think in the end that
his testimony is not related to the illegal recording, so I'm going to
find that his testimony is sufficient attenuated, not to be subject to the
exclusionary rule under the fruit of the poisonous tree doctrine. So I
will admit it.
VRP 12/14/13 at 4-6.
At trial, M.B. (the driver of the Prius) testified that the B.K. had been in the front
«
passenger seat when they were pulled over, and that B.K. had given him the FOB key
to drive the car earlier in the day. M.B. also testified that B.K. told him the car was stolen
as the police were pulling them over. Additionally, S.B., one of the juveniles who
remained in the back seat of the Prius, testified that the respondent B.K. provided M.B.
with the Prius.
The trial court adjudicated B.K. guilty of possession of a stolen vehicle. B.K.
appeals.
DISCUSSION
B.K. argues the trial court erroneously declined to suppress the testimony ofA.R.
in that the "attenuation" doctrine does not apply in Washington. The State concedes the
No. 68174-5-1/5
trial court erroneously focused on whether A.R.'s testimony was attenuated from the
recording, but it nevertheless argues suppression was not warranted because the
Privacy Act does not apply to A.R.'s testimony. We agree with the State.
RCW 9.73.050 operates to exclude "information obtained in violation of RCW
9.73.030." Such information includes the recordings themselves, as well as testimony
from witnesses describing the content of the illegal recordings, or the behavior and
mannerisms of persons while being illegally recorded. See, e.g., State v. Fiermestad,
114Wn.2d828, 835, 791 P.2d 897 (1990) ("any information" to be excluded includes
"visual observations and assertive conduct" occurring during the illegal recording).
Where the challenged testimony, however, "is not about recorded statements but
consists of the witnesses' independent recollections of facts obtained through personal
knowledge prior to the recordings" such testimony "is not subject to suppression under
the privacy act." State v. Johnson, 40 Wn. App. 371, 375, 699 P.2d 221 (1985). Here,
A.R.'s testimony was about his independent recollection of B.K. telling him he stole the
car, and that recollection was gained through personal knowledge before the recording
at issue in this case. As such, A.R.'s testimony was not subject to suppression under the
privacy act, and it was not error to decline the motion to suppress.
Moreover, any error in admitting A.R.'s testimony was harmless. Admission of
evidence in violation of the privacy act is a statutory, not a constitutional, violation. State
v. Courtney, 137 Wn. App. 376, 383, 153 P.3d 238 (2007). Accordingly, the error is
deemed harmless unless it is reasonably probable that, had the error not occurred, the
No. 68174-5-1/6
outcome of the trial would have been different. State v. Cunningham, 93 Wn.2d 823,
831, 613P.2d 1139(1980).
Here, the driver of the Prius, M.B., testified that B.K. had been in the front
passenger seat when they were pulled over, that B.K. had given him the FOB key to
drive the car earlier in the day, and that B.K. told him the car was stolen. Additionally,
S.B. testified that B.K. provided M.B. with the Prius. In finding of fact 12, which is
unchallenged and therefore a verity on appeal, the trial court found M.B.'s testimony to
be credible. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Under
these circumstances, it is not reasonably probable that, had A.R.'s testimony been
suppressed, the trial court would have declined to adjudicate B.K. guilty of possession
of a stolen car.
Affirmed.
WE CONCUR: n y
4£i
I^Jk^e | 01-03-2023 | 07-02-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1888991/ | 817 A.2d 426 (2003)
358 N.J. Super. 254
Joseph Dello RUSSO, M.D., Joseph Dello Russo, M.D., P.A., t/a New Jersey Eye Center, Medical Care, P.L.L.C., d/b/a Dello Russo Laser Vision, a foreign Corporation and Stephanie Dello Russo, Plaintiffs-Appellants,
v.
Bruce H. NAGEL, Esq., Jay J. Rice, Esq., David A. Mazie, Esq., Joanne M. Bonacci, Esq., Robert D. Solomon, Esq., Adam Slater, Esq., Individually, and Nagel, Rice, Dreifuss & Mazie, L.L.P., Defendants-Respondents.
Superior Court of New Jersey, Appellate Division.
Argued February 3, 2003.
Decided March 12, 2003.
*429 Richard D. Koppenaal argued the cause for appellants.
Elliott Abrutyn argued the cause for respondents (Morgan Melhuish Monaghan Arvidson Abrutyn & Lisowski, attorneys; Mr. Abrutyn and Warren Usdin, on the brief).
Before Judges PETRELLA, BRAITHWAITE and LINTNER. *427
*428 The opinion of the court was delivered by PETRELLA, P.J.A.D.
Plaintiffs Joseph Dello Russo, M.D., Joseph Dello Russo, M.D., P.A., t/a New Jersey Eye Care Center, Medical Care, P.L.L.C., d/b/a Dello Russo Laser Vision, and Stephanie Dello Russo, filed an appeal of a February 2, 2002 order granting summary judgment to defendants and dismissing their complaint. Their motion for reconsideration was denied. The claims brought by plaintiffs against defendants, the law firm of Nagel, Rice, Dreifuss & *430 Mazie, L.L.P., and its principals, alleged that the defendants orchestrated a campaign to destroy the good name and medical practice of Dr. Dello Russo. The complaint alleged defamation, extortion, attempted harmful actions, and tortious interference with plaintiffs' contract and business opportunity. Dr. Dello Russo's wife, Stephanie Dello Russo, also alleged negligent infliction of emotional distress. A per quod claim was then asserted on behalf of Dr. Dello Russo based on the asserted emotional distress suffered by his wife.
On appeal plaintiffs argue that the motion judge erred: (1) in dismissing their complaint because a cause of action upon which relief may be granted was pled; (2) when he found that defendants' defamatory statements were not actionable and were subject to privilege because the advertisement placed by the respondents was defamatory; (3) in determining, as a matter of law, that defendants' actions did not constitute an actionable claim for tortious interference with plaintiffs' contract and business opportunity; (4) in dismissing Stephanie Dello Russo's complaint based upon negligent infliction of emotional distress; and (5) in dismissing Joseph Dello Russo's per quod claim which relied on his wife's claims.
Between March and November 2001, the law firm of Nagel Rice Dreifuss & Mazie, filed four separate civil lawsuits against Dr. Dello Russo. The first two cases, DeAngelis v. New Jersey Eye Center, et al., and Cucopulis v. New Jersey Eye Center, et al., alleged: (1) negligent medical care in connection with laser eye surgery, and (2) fraud and battery arising from post-operative care provided by William T. Kellogg when his medical license was revoked. The third case, Dell'ermo v. NJ Eye Center, et al., asserted medical malpractice arising out of the performance of laser surgery on a man who was an inappropriate candidate. The fourth case was Macedo v. NJ Eye Center, et al. which sought class action status on behalf of all persons claiming improper treatment by Kellogg, who was asserted to be an unlicensed doctor who was allegedly held out by Dr. Dello Russo to be a physician.
According to the record of this appeal, at a meeting at the Nagel firm, Dr. Dello Russo's attorney offered defendants $2 million, provided, among other things, that the firm would agree not to sue Dr. Dello Russo in the future. That offer was rejected. Plaintiffs contend that Bruce Nagel demanded $3 million from Dr. Dello Russo personally to make matters go away. Dr. Dello Russo asserted that Nagel allegedly threatened that if he did not comply, Nagel would go public, contact the media, call a press conference and also place an ad in the newspapers. Dr. Dello Russo refused his demands.
On August 1, 2001, the defendant law firm ran a newspaper advertisement for the purposes of soliciting potential claimants who might have complaints against Dr. Dello Russo. The advertisement asked whether readers were "treated by Dr. Dello Russo or Dr. William Kellogg at the NJ Eye Center," and whether they "suffered a bad result from eye surgery," and if so, defendants offered a "free consultation to discuss your legal rights."
After this newspaper advertisement was published, Dr. Dello Russo sought injunctive relief against the law firm and sought to prevent it from interviewing potential witnesses in connection with the four pending lawsuits instituted on behalf of the firm's clients against Dr. Dello Russo and his business. This application was denied and the action was dismissed for failure to state a legally cognizable claim.
Dr. Dello Russo contends that the result of this publication had an immediate and *431 continuing impact on his medical practice and his reputation. He asserts that many of his patients canceled their surgeries and his office suffered a significant drop-off in new patients, and that defendants contacted several of his patients seeking information regarding their treatment.
I.
A motion to dismiss for failure to state a claim under R. 4:6-2(e) is granted with great caution. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771-772, 563 A.2d 31 (1989); Leon v. Rite Aid Corp., 340 N.J.Super. 462, 466, 774 A.2d 674 (App.Div.2001). The test is whether a cause of action is suggested by the facts alleged in the complaint.
The first, second, third, and fifth counts of the verified complaint were predicated on claims that plaintiffs were defamed. Whether a statement is defamatory is a matter of law to be determined by the court. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 426, 730 A.2d 327 (1999). To establish a prima facie case of defamation, whether denominated libel or slander, a plaintiff must show that defendant communicated a false statement about plaintiff to a third person that harms plaintiff's reputation in the eyes of the community or deters third persons from associating with the plaintiff. Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-165, 735 A.2d 1129 (1999). Plaintiffs' burden of proof for each of the elements of defamation is by clear and convincing evidence. Rocci v. Ecole Secondaire MacDonald-Cartier, 165 N.J. 149, 159, 755 A.2d 583 (2000); Lynch, supra (161 N.J. at 165, 735 A.2d 1129).
When determining if a statement is defamatory on its face "a court must scrutinize the language `according to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence.'" Ibid. (quoting Romaine v. Kallinger, 109 N.J. 282, 290, 537 A.2d 284 (1988)). The threshold issue is whether the language used is reasonably susceptible of a defamatory meaning. Decker v. Princeton Packet, 116 N.J. 418, 424, 561 A.2d 1122 (1989); Romaine, supra (109 N.J. at 290-291, 537 A.2d 284); Kotlikoff v. The Cmty. News, 89 N.J. 62, 67, 444 A.2d 1086 (1982). If the statement is susceptible of only a non-defamatory meaning, it cannot be considered defamatory, and the complaint must be dismissed. Romaine, supra (109 N.J. at 290, 537 A.2d 284). However, where the statement is capable of more than one meaning, one of which is defamatory and another not, the question of whether its content is defamatory must be resolved by the fact finder. Id. at 290-291, 537 A.2d 284.
In deciding whether a statement is defamatory a court examines its content, verifiability, and context. Id. at 167, 735 A.2d 1129; Ward v. Zelikovsky, 136 N.J. 516, 529, 643 A.2d 972 (1994). A statement's content is judged by its objective meaning to a reasonable person of ordinary intelligence. Lynch, supra (161 N.J. at 167-168, 735 A.2d 1129). Secondly, only verifiable statements can be defamatory. Ibid.; Ward, supra (136 N.J. at 530-531, 643 A.2d 972). Finally, a statement's meaning can be affected by its context. Lynch, supra (161 N.J. at 168, 735 A.2d 1129). The focus is on the effect of the alleged defamatory statement on third persons, that is, whether they viewed the plaintiff in a lesser light as a result of hearing or reading the offending statement. Arturi v. Tiebie, 73 N.J.Super. 217, 223, 179 A.2d 539 (App.Div.1962); Scelfo v. Rutgers Univ., 116 N.J.Super. 403, 411, 282 A.2d 445 (Law Div.1971).
Plaintiffs argue that the newspaper advertisement placed by defendants *432 is actionable because of the use of the language "bad result" in the advertisement. As noted, the advertisement consisted of questions and an offer to consult with potential clients. Although attorneys are constitutionally and ethically permitted to advertise,[1] plaintiffs contend that the use of the language "bad result" is not a communication of factual information by the defendants' law firm that is permitted in attorney advertising. Plaintiffs contend that the advertisement sends the message that Dr. Dello Russo conducts such bad surgery that his patients should sue him. Dr. Dello Russo argues that an acceptable advertisement would have to mention the total number of his successful surgeries.
Plaintiffs rely on Mick v. American Dental Assoc., 49 N.J.Super. 262, 139 A.2d 570 (App.Div.), certif. denied, 27 N.J. 74, 141 A.2d 318 (1958), where we sustained the dismissal of a libel action brought against the American Dental Association by a member-dentist who opposed fluoridation of public drinking water. Thereafter, the Association responded to an inquiry about the dentist by stating it believed his views "to be based on complete misinformation and to be totally irresponsible." Id. at 271, 139 A.2d 570. We commented that the letter was not so unambiguous that a court could hold as a matter of law that it was capable only of the non-defamatory interpretation that there was no attack on the plaintiff's ability or competence as a dentist. Readers of the publication could have lessened esteem for a dentist whose views on fluoridation were "irresponsible," with the implication that his professional reputation would suffer. Id. at 275, 139 A.2d 570. However, the defamation action based on the letter was barred as to the addressee of the letter on the theory of invitation or consent. Id. at 276, 139 A.2d 570.
Plaintiffs' reliance on Mick is misplaced because there was ambiguity as to whether the allegedly defamatory statements in that case were in fact defamatory. Here, the advertisement does not state that Dr. Dello Russo is incompetent or that he has a history of bad results. Rather, it asks whether patients who had been treated at the New Jersey Eye Center by either Dr. Dello Russo or Kellogg suffered a bad result. The motion judge reasoned that the term "bad" used by defendants was not significant because the defendants were trying to limit the patients who contacted them to those who experienced unfavorable results. We agree. The judge properly concluded that defendants' advertisement was not defamatory.
Plaintiffs also contend that they were defamed by statements made by defendants in a settlement meeting. Plaintiffs' complaint does not refer to specific statements, but presumably they refer to defendants' threat during the settlement conference to go public if Dr. Dello Russo did not settle. Generally, however, the litigation privilege protects a litigant from liability for statements made in the course of judicial, administrative, or legislative proceedings by a litigant or other trial participant. Erickson v. Marsh & McLennan *433 Co., Inc., 117 N.J. 539, 563, 569 A.2d 793 (1990) (citing Rainier's Dairies v. Raritan Valley Farms, 19 N.J. 552, 558, 117 A.2d 889 (1955)). The litigation privilege extends to "`any communication (1) made in judicial and quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Hawkins v. Harris, 141 N.J. 207, 216, 661 A.2d 284 (1995) (quoting Silberg v. Anderson, 50 Cal.3d 205, 266 Cal. Rptr. 638, 786 P.2d 365, 369 (1990)). Thus, provided the communication has a nexus with the litigation, it would be privileged. Indeed, it covers statements made during settlement negotiations or while engaged in a private conference with an attorney regarding litigation. Ibid. It would not, for example, properly apply to a threat of criminal prosecution unless some concession is made.
The litigation privilege is not absolute. For example, it does not insulate a litigant from liability for malicious prosecution. Rainer's Dairies, supra (19 N.J. at 564-566, 117 A.2d 889). Nor does it protect against professional discipline for an attorney's unethical conduct. Ruberton v. Gabage, 280 N.J.Super. 125, 134, 654 A.2d 1002 (App.Div.), certif. denied, 142 N.J. 451, 663 A.2d 1358 (1995). "The potential harm which may result from an absolute privilege is mitigated by the comprehensive control of the trial judge and the rules of professional conduct which govern attorney conduct." Peterson v. Ballard, 292 N.J.Super. 575, 588, 679 A.2d 657 (App.Div.1996) (citing Hawkins, supra (141 N.J. 207, 661 A.2d 284)). See also R.P.C. 3.4(g).
In Ruberton, supra (280 N.J.Super. at 133-134, 654 A.2d 1002), in the context of an abuse of process case, we held that threats of criminal prosecution made by an attorney during a settlement conference, even if tortious, were protected by the litigation privilege. We reasoned that "during such conferences an attorney must be free to advance the strengths of his or her client's case in a candid and objective way, unfettered by the fear that the attorney may be the subject of a tort action, whether sounding in defamation or any other `action under a different label.'" Id. at 133-134, 654 A.2d 1002 (quoting Rainier's Dairies, supra (19 N.J. at 564, 117 A.2d 889)). However, we would not necessarily apply Ruberton to all threats of criminal prosecution made by an attorney.
The motion judge held that the statements that were made in the settlement meeting did not constitute defamation, and rejected plaintiffs' arguments. Here, the judge properly ruled that defendants' statements during the settlement negotiations were protected by the litigation privilege.
II.
The sixth count of the verified complaint alleged the crime of theft by extortion. N.J.S.A. 2C:20-5 provides that a person is guilty of theft by extortion if he purposely and unlawfully obtains property of another by extortion. In pertinent part, a person extorts if he purposely threatens to:
....
b. Accuse anyone of an offense or cause charges of an offense to be instituted against any person;
c. Expose or publicize any secret or any asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;
*434 ....
g. Inflict any other harm which would not substantially benefit the actor but which is calculated to materially harm another person.
Defendants respond that as a matter of law, there is no civil cause of action for theft by extortion and the criminal statute does not provide a civil remedy. Defendants are correct in their assertion. The motion judge properly dismissed plaintiffs' claims because there is no civil cause of action for theft by extortion. In any event, the record does not establish the elements of extortion.
The fourth count of plaintiffs' complaint alleged that defendants committed a wrongful act when they "attempted to contact and in fact directly contacted and solicited current and former patients of plaintiffs in an attempt to have such patients discuss their medical treatment with defendants." It is hardly clear exactly what cause of action plaintiffs allege in this count. In any event, the judge correctly dismissed this count because no cause of action was identified or suggested by the facts in this count of the complaint. See Printing Mart, supra (116 N.J. at 746, 563 A.2d 31).
III.
The third count of plaintiffs' complaint alleged that defendants' defamatory statement was an act of tortious interference with plaintiffs' prospective economic opportunity and business interests. The fourth count also alleged that defendants contacted plaintiffs' patients and during those contacts defamed plaintiff which was an act of tortious interference with plaintiffs' contract. Plaintiffs claim that the motion judge erred in dismissing those counts of their complaint.
To establish a claim for tortious interference with contractual relations, a plaintiff must prove: (1) actual interference with a contract; (2) that the interference was inflicted intentionally by a defendant who is not a party to the contract; (3) that the interference was without justification; and (4) that the interference caused damage. 214 Corp. v. Casino Reinvestment Dev. Auth., 280 N.J.Super. 624, 628, 656 A.2d 70 (Law Div.1994) (citing Printing Mart, supra (116 N.J. at 751-752, 563 A.2d 31)).
Interference with a contract is intentional "if the actor desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action." Restatement (Second) Torts, § 766A, comment e (1977). "An individual acts with malice when he or she intentionally commits a wrong without excuse or justification." Cox v. Simon, 278 N.J.Super. 419, 433, 651 A.2d 476 (App.Div.1995). However, the fact that a breaching party acted "to advance [its] own interest and financial position" does not establish the necessary malice or wrongful conduct. Sandler v. Lawn-A-Mat Chem. & Equip. Corp., 141 N.J.Super. 437, 451-452, 358 A.2d 805 (App.Div.), certif. denied, 71 N.J. 503, 366 A.2d 658 (1976). A claim for tortious interference with the performance of a contract must be based, in part, on
facts claiming that the interference was done intentionally and with `malice.'... For purposes of this tort, `[t]he term malice is not used in the literal sense requiring ill will toward plaintiff.' ... Rather, malice is defined to mean that the harm was inflicted intentionally and without justification or excuse.
Printing Mart, supra (116 N.J. at 751, 563 A.2d 31) (citations omitted).
Defendants argue that the complaint was properly dismissed because it *435 failed to identify specific words of defamation which led to tortious interference. In order to properly plead a claim for libel or slander the defamatory words must be identified. Zoneraich v. Overlook Hospital, 212 N.J.Super. 83, 514 A.2d 53 (App. Div.), certif. denied, 107 N.J. 32, 526 A.2d 126 (1986); Lands v. Baseman, 200 N.J.Super. 247, 491 A.2d 47 (App.Div.), certif. denied, 101 N.J. 281, 501 A.2d 945 (1985). Here, we are satisfied that the motion judge properly dismissed this count of the complaint because it failed to identify any defamatory statements that were allegedly made to Dr. Dello Russo's patients.
IV.
The seventh and eight counts of the complaint sought damages for emotional distress for Dr. Dello Russo's wife, Stephanie Dello Russo, and a per quod claim on behalf of Dr. Dello Russo for the emotional distress suffered by his wife. The defendants argue that Stephanie Dello Russo cannot prove the elements of her emotional distress claim.
The tort of negligent infliction of emotional distress "can be understood as negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care." Decker v. Princeton Packet, 116 N.J. 418, 429, 561 A.2d 1122 (1989). Thus, under a basic negligence analysis, the elements of the tort of negligent infliction of emotional distress are: (a) defendant owed a duty of reasonable care to plaintiff; (b) defendant breached that duty; (c) plaintiff suffered severe emotional distress; and (d) defendant's breach of duty was the proximate cause of the injury. Ibid. Whether the defendant has a duty of care to the plaintiff depends on whether it was foreseeable that the plaintiff would be seriously, mentally distressed. Id. at 429, 561 A.2d 1122.
Plaintiffs rely on Tornquist v. Perkowski, 208 N.J.Super. 88, 89, 504 A.2d 1226 (Law Div.1984), in contending that the Dello Russos presented a claim against defendants based upon negligent infliction of emotional distress. However, Tornquist is inapposite. That case addressed comparative fault in the context of a per quod claim and allowed a Portee[2] type claim for a spouse who also had a per quod claim for loss of consortium. Moreover, Tornquist was overruled by Tichenor v. Santillo, 218 N.J.Super. 165, 174, 527 A.2d 78 (App.Div.1987), where we held that a per quod claim will be reduced by the percentage of negligence attributable to the injured spouse, and by the percentage of any negligence attributable to the spouse asserting the per quod claim. Regardless, these cases have nothing to do with extending causes of action for emotional distress injuries.
In the present case, Mrs. Dello Russo's emotional distress claim does not allege, nor do the factual allegations support, a cause of action based on bodily injury or sickness resulting from fright or apprehension of danger. Falzone v. Busch, 45 N.J. 559, 569, 214 A.2d 12 (1965). In addition, because her claim fails, so does Dr. Dello Russo's per quod claim in the eighth count of the complaint. Without a valid claim by Mrs. Dello Russo, he does not have a valid per quod claim. See Rex v. Hutner, 26 N.J. 489, 492, 140 A.2d 753 (1958). As the elements of the tort of negligent infliction of emotional distress have not been met, the motion judge properly dismissed the seventh and eighth counts of the complaint.
Affirmed.
NOTES
[1] The United State Supreme Court has held that a state may not prohibit attorneys from soliciting employment through truthful and non-deceptive advertising, even if it is targeted at a specific group. Zauderer v. Office of Disciplinary Counsel of the Sup.Ct. of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). New Jersey permits lawyers to advertise services in newspapers and other periodicals. In re Felmeister & Isaacs, 104 N.J. 515, 519, 518 A.2d 188 (1986); R.P.C. 7.2. However, this advertising must be predominately informational because the public is better served by more information about the legal system in order to know its legal rights and to help it choose a lawyer to enforce those rights. Id. at 516, 524, 518 A.2d 188.
[2] Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1227023/ | 818 P.2d 469 (1991)
MBA COMMERCIAL CONSTRUCTION, INC., a Colorado corporation, Appellant,
v.
ROY J. HANNAFORD COMPANY, INC., an Oklahoma corporation; Aetna Insurance Company, a Connecticut corporation; Oklahoma State University, an agency of the State of Oklahoma; and Utica National Bank & Trust Company, a banking corporation, Defendants,
Frankfurt-Short-Bruza Associates, P.C., Appellee.
METRO REBAR INC., a Texas corporation, Appellant,
v.
ROY J. HANNAFORD COMPANY, INC., an Oklahoma corporation; Aetna Insurance Company, a Connecticut corporation; and Oklahoma State University, an agency of the State of Oklahoma, Defendants.
No. 71842.
Supreme Court of Oklahoma.
September 17, 1991.
Rehearing Denied October 29, 1991.
Brian J. Rayment, Blackstock Joyce Pollard & Montgomery, Tulsa, for appellants MBA Commercial Const., Inc. and Metro Rebar, Inc.
George D. Davis, McKinney, Stringer & Webster, P.C., Oklahoma City, for appellee Frankfurt-Short-Bruza Associates, P.C.
*470 ALMA WILSON, Justice:
The dispositive issue in this appeal is: Whether a negligence claim accrues at the time of discovery of the negligent act even though the alleged resulting injury is sustained subsequent to the negligent act. We hold that for purposes of 12 O.S. 1981, § 95 Third, a negligence claim accrues when any injury to the plaintiff, for which an action could proceed, is certain and not merely speculative.
In June, 1984, appellee, Frankfurt-Short-Bruza Associates, P.C. (FSB), an architectural and engineering firm, entered into a contract with Oklahoma State University (OSU) for the design of the two-building 21st Century Center on the OSU campus. Pursuant to the owner/architect contract, FSB was exclusively responsible for the design of the project and supervision of the project construction, including: 1) preparation of the schematic design, design development documents, working drawings and specifications; 2) assistance in the approval and bidding process; 3) full and overall responsibility for accuracy and contents of plans and specifications during all phases of construction; 4) general familiarity with construction work in progress; and, 5) approval of payments to contractor based on construction site observations. The contract provided for periodic payments to FSB throughout the phases of design, development and construction. In addition to the architect fee based on a percentage of the total cost of construction, the contract allowed additional payments for major revisions in drawings, specifications or other documents when the revisions are inconsistent with previous instructions and due to causes beyond control of the architect.[1]
The plans and specifications prepared by FSB were included in the bid of the public works construction project. Roy J. Hannaford *471 Company, Inc. (prime contractor) was the successful bidder and entered into a contract with OSU for construction of the project. Subsequent to the design phase and the bid process, error in the architectural plans and specifications was discovered. The architectural plans and specs as bid required the buildings to be constructed to support a live load of 125 pounds per square foot which was inconsistent with other portions of the design. In November, 1985, the live load designations in the plans and specs were revised, reducing the load requirement in most areas of the buildings to 100 pounds per square foot.
In the summer of 1985, the prime contractor entered into contracts with appellant, MBA Commercial Construction, Inc. (MBA), for the concrete forming and bracing work and appellant, Metro Rebar, Inc. (Metro), for the post tension design, supply and rebar placement. After discovery of error in the architectural plans and specifications but prior to performance, the original contracts with MBA and Metro were revised. Under the revised contracts, the construction work by MBA and Metro was scheduled to be completed by March 31, 1986.
Revision of the architectural plans and specs required revision in the working drawings. These revisions caused delay in the construction of the project. Water drainage problems also caused delay in the construction. During these delays, MBA and Metro maintained equipment, supplies, materials and labor at the construction site. The corrected working drawings were approved after the scheduled completion date of March 31, 1986. Upon receiving the approved working drawings, MBA and Metro went to work. After performing approximately fifty percent of the work, on September 2, 1986, MBA declared its contract in default and ceased work thereunder. After performing approximately eighty percent of the work, on November 22, 1986, Metro declared its contract in default and ceased work. One reason MBA walked-off the construction project was that its invoice for costs after March 31, 1986, was rejected for payment. The record does not reflect whether FSB or the prime contractor or both rejected payment nor does it reveal whether Metro experienced similar refusal to pay construction costs.
MBA and Metro filed actions in the district court in Payne County, Oklahoma, seeking actual, consequential and punitive damages allegedly suffered as a result of delays in the construction progress due to the wrongful acts of the prime contractor in the construction of the two-building 21st Century Center. By second amended petition filed on February 26, 1988, MBA added FSB as a party defendant. MBA alleged that FSB negligently designed the project and negligently prepared the architectural plans and specifications for the two-building construction project and that FSB's negligence proximately caused actual and consequential damage to MBA. By amended petition, Metro also added FSB as a defendant asserting allegations and seeking damages similar to MBA.
The trial court consolidated the actions of MBA and Metro. FSB moved for summary judgment asserting that MBA and Metro's negligence claims were barred by the two-year limitation period in 12 O.S. 1981, § 95 Third. The trial court granted summary judgment in favor of FSB. Subsequently, the trial court entered partial judgment relating to the issues between MBA and Metro and the prime contractor and its insurer, Aetna Insurance Company. Aetna initiated this appeal from the partial judgment. MBA and Metro counter-appealed, seeking relief from the denial of their motion for new trial on FSB's summary judgment. Resolutions of all controversies below are final, with the exception of the controversy between MBA and Metro and FSB.[2]
*472 The trial court entered a general summary judgment order in favor of FSB.[3] The Court of Appeals affirmed concluding that under the discovery rule the limitation period began to run when MBA and Metro discovered or should have discovered FSB's negligence in the preparation of the architectural plans and specification.[4] We found merit in the dissent which expressed the view that the opinion of the Court of Appeals mistakenly equated discovery of the negligence with the actual accrual of the cause of action. We previously granted certiorari. Upon review of the record on appeal, we find the evidence insufficient to support summary judgment in favor of FSB and hold that the negligence claims alleged by MBA and Metro against FSB did not accrue until MBA and Metro suffered damages which were certain and not merely speculative.[5]
Summary judgment is appropriate only when the depositions, admissions in the pleadings, stipulations, answers to interrogatories and request for admissions, affidavits, and exhibits on file or filed with the motion for summary judgment show that there is no substantial controversy as to any material fact. Rules for District Courts of Oklahoma, 12 O.S.Supp. 1990, ch. 2, app., Rule 13 (Amended by order of Oct. 30, 1984, eff. Nov. 1, 1984). Whether an action is barred by the applicable statutory time limitation is a question of fact to be determined upon the evidence in each case. American Insurance Union v. Jones, 135 Okla. 101, 274 P. 478, 479 (1929). The party asserting the limitation defense has the burden to present evidence reasonably tending to establish the time-bar. Id. And, an affirmative defense of the statute of limitations vests upon the running of the applicable limitation period. Trinity Broadcasting Corp. v. Leeco Oil Co., 692 P.2d 1364, 1367 (Okla. 1984).
In accordance with the above authority, summary judgment on a statute of limitations defense in favor of the asserting party is appropriate where the evidence is sufficient to support a finding of fact of the time-bar and where the evidence establishes there is no dispute as to the time the *473 limitation period began to run or the running of the limitation period.
In support of summary judgment, FSB asserts that the statute of limitations began to run against the negligence claims on the date MBA and Metro first discovered the error in the architectural plans and specifications, which was more than two years prior to commencement of the claims against FSB. MBA and Metro assert alternatively that the limitations period did not begin to run until; 1) the date of substantial completion of the project,[6] 2) the dates MBA and Metro declared their contracts in default and walked off the construction site, 3) the scheduled completion date of March 26, 1986, as specified in their contracts, or 4) the date MBA and Metro discovered they had actually suffered damages.
The parties argue the limitations issue under 12 O.S. 1981, § 95 Third.[7] The statute provides:
Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued and not afterwards:
Third. Within two (2) years: An action ... for injury to the rights of another, not arising on contract and not hereinafter enumerated... .
(Emphasis added.)
Section 95 is not a statute of repose which extinguishes a cause of action even before it arises. Section 95 is an ordinary statute of limitations which operates to extinguish the remedy after a substantive right has vested. The limitation periods in § 95 begins to run from the time the elements of a cause of action arise.[8]Reynolds v. Porter, 760 P.2d 816, 820 (Okla. 1988). The elements of a cause of action arise, that is, the cause of action accrues when a litigant first could have maintained his action to a successful conclusion. Sherwood Forest No. 2 Corp. v. City of Norman, 632 P.2d 368, 370 (Okla. 1980).
The three elements of actionable negligence are: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom. Sloan v. Owen, 579 P.2d 812, 814 (Okla. 1978). The substantive right to damages vests when these three elements are present. The alleged basis of this lawsuit is that MBA and Metro have been injured by FSB's failure to properly prepare architectural plans and specifications. For purposes of summary judgment, FSB does not challenge the existence of a duty to protect MBA and Metro nor the violation of that duty. Those issues are not before us in this appeal. The alleged injuries proximately resulting from FSB's negligence in preparing the plans and specifications for which MBA and Metro seek to recover monetary damages are increased costs under their contracts. The damages sought by MBA and Metro are within the measure of damages for torts specified in 23 O.S. 1981, § 61, which provides:
For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment *474 proximately caused thereby, whether it could have been anticipated or not.
In order for a litigant to maintain a negligence action to a successful conclusion, the litigant must allege injury or damages that are certain and not speculative. Martin v. Griffin Television, Inc., 549 P.2d 85, 92-93 (Okla. 1976); Rainbow Travel Service v. Hilton Hotels Corp., 896 F.2d 1233, 1239 (10th Cir.1990). Thus, the summary judgment herein must be supported by evidence that establishes the time injuries or damages that are certain and not speculative were sustained by MBA and Metro. Or, if the injuries were not discoverable at the time the injuries occurred, then the evidence must establish the date the injuries could have been discovered. Reynolds v. Porter, 760 P.2d at 820. At that time the alleged negligence action accrued and the time limitation in § 95 Third began to run.
FSB contends that the statute of limitations had expired for both claims because the amended petitions were filed February 26, 1988, more than two years after MBA and Metro discovered the error in the architectural plans. In answers to interrogatories, Metro admitted knowledge of the load error in the architect's plans as of September 17, 1985. On deposition MBA's corporate controller, George Hustler, admitted that in January, 1986, he discussed the problem of the erroneous load designation with a representative of FSB and discussed the same problem with the prime contractor in the middle of February, 1986. These admissions establish that MBA and Metro had knowledge of the alleged negligent acts committed by FSB. They do not establish that injury occurred at the time the negligent acts occurred not at the time the negligence in design and in preparing the plans and specs was discovered.
Rather, the record tends to show that MBA and Metro were not injured until after March 26, 1986. Reasonable inferences can be drawn from the undisputed facts and other materials that the parties acquiesced in the extension of the construction completion dates and that MBA and Metro had been compensated for their costs invoiced prior to the scheduled completion date. The parties do not dispute that the live load designation should have been 100 pounds per square foot, instead of 125 pounds per square foot and that the erroneous load designation caused delay in the construction of the project. There is no dispute that delay was also caused by other problems such as water drainage and revision of working drawings. Representatives of the owner, architect, prime contractor and subcontractors had several meetings wherein the problems, resolutions and attendant delays were analyzed and discussed. After these meetings, MBA and Metro were given the approved working drawings and presumably they were asked to perform the construction work in accordance with the drawings.
In the instant controversy, injury or damage would be certain and not speculative when MBA and Metro knew or should have known that they would not be paid for their costs incurred in the construction. Testimony of Hustler, on deposition, shows that MBA and Metro were not injured until after March 31, 1986. Hustler testified that MBA invoiced its "back charge"[9] in the amount of $109,000.00 for the slowdowns to the prime contractor; that Hustler, another officer of MBA and their attorney attended a meeting with the prime contractor in July of 1986 to resolve the back charges. At that point MBA was told that FSB was holding up the completion of the project. The back charges were never resolved.
On summary judgment, FSB had the burden to present evidence sufficient to establish an undisputed date prior to February 26, 1986, when injury, certain and not speculative, resulted from its undisputed negligent act. That is, FSB had the burden to present evidence to establish an earlier date that payment was refused or to show *475 that MBA and Metro knew or should have known at an earlier date that payment would be refused. The record on appeal indicates that FSB failed to carry this burden. This evidentiary record does not support summary judgment in favor of FSB on its statute of limitations defense. Accordingly, the opinion of the Court of Appeals is vacated, the judgment of the trial court is reversed and the cause remanded for further proceedings consistent with the views expressed in this opinion.
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF APPEALS VACATED;
JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED WITH DIRECTIONS.
HODGES, V.C.J., and LAVENDER, DOOLIN, KAUGER and SUMMERS, JJ., concur.
OPALA, C.J., concurs in result.
SIMMS and HARGRAVE, JJ., dissent.
SIMMS, Justice, dissenting:
I must respectfully dissent. In my opinion plaintiff subcontractors did not have a remedy against defendant architectural firm based on the tort theory of "negligent design" as a matter of law. Whatever recovery they were able to pursue for claims stemming from the delay of their contractual performance was limited to contract law. The major contractual issues between the parties were apparently resolved in the companion case. Remaining contractual issues, if any, which may have been presented initially in the instant matter appear to have been waived in this appeal by Metro and MBA.
I would hold that judgment was properly entered in favor of FSB because Metro and MBA did not state a tort claim against FSB; not because the statute of limitations had run on a tort action.
I am authorized to state that Justice HARGRAVE joins with me in the views expressed herein.
NOTES
[1] The petitions allege that MBA and Metro are third party beneficiaries under the contract between OSU and FSB. These allegation were denied by FSB. The trial court has not specifically ruled on that issue and we do not address it on appeal.
[2] By order of April 3, 1972, we require the style of all cases to be parallel with the style in the trial court in accordance with 20 O.S. 1981, § 3002, which provides: "The designation of parties in the caption of any cause appealed to the Supreme Court or the Court of Criminal Appeals shall correspond with the sequence in which the designation of the parties appeared in the trial court case." Frankfurt, Short, Bruza Associates, P.C. does not appear in the caption of either of the two consolidated cases from which this appeal was taken. Because our order requires that the appealing parties be designated in the style, we now include Frankfurt, Short, Bruza, P.C. in the sequence in which they appeared in the trial court.
[3] The pleadings in this case allege claims arising out of contract and tort. The motion for summary judgment does not assert a time-bar as to any contract claim. It argues the two-year statute of limitations applicable to torts. The trial court's summary judgment on the statute of limitations applicable to remedies to recover tort damages rejected, as a matter of law, any contract theory alleged by MBA and Metro and any contract damages recoverable thereunder. The trial court is not required to set out the undisputed facts in support of its conclusion of law on summary judgment. 12 O.S. 1981, § 611. However, in cases where the petition seeks damages which may be recoverable under either a tort theory or a contract theory, the better practice is for the trial court to determine the statute of limitations defenses to the tort theory and the contract theory separately. Flint Ridge Development Company, Inc. v. Benham-Blair and Affiliates, Inc., 775 P.2d 797, 801 (Okla. 1989). In Flint Ridge we reversed a summary judgment on the two-year limitation period in § 95 Third in favor of architect, where plaintiff made claims for damages that may be recoverable under a tort theory or a contract theory, stating that the trial court should appropriately limit the scope of the damages available under the appropriate theory. On remand, the proceedings should be consistent with our holding the FSB is not entitled to summary judgment on its tort statute of limitations defense.
[4] Reynolds v. Porter, 760 P.2d 816 (Okla. 1988), at 820, n. 8, explains application of the discovery rule. The discovery rule allows a plaintiff to establish that the element of injury, necessary to the cause of action, did not occur concurrent with the tortious act or omission or that the injury could not be discovered until a time after the occurrence of the negligence. Under the discovery rule, the limitation period begins to run from the time plaintiff knew or should have known of the "injury".
[5] Several legal and factual questions regarding the contract theory as well as the tort theory for recovery of damages remain unresolved in this case. The trial court did not treat the two theories separately in determining the time-bar. A partial record has been transmitted to this court in this appeal. Although this court may order undesignated portions of the record, Rule 1.20, we decline to do so and limit our review to those portions designated, Rule 1.25, Rules of Appellate Procedure in Civil Cases, 12 O.S.A., ch. 15, app. 2.
[6] MBA and Metro argued before the trial court that their claims against FSB are governed by 12 O.S. 1981, § 109. MBA and Metro abandoned this argument on appeal.
[7] There is no contract between MBA and Metro and FSB. Because contracts bind only the parties to the contract, only the parties may enforce it unless the contract is made for the benefit of a third party, in which case the third party beneficiary may enforce the contract. Drummond v. Johnson, 643 P.2d 634, 639 (Okla. 1982). As we have noted, it appears the trial court did not consider the third party beneficiary contract claims asserted by MBA and Metro.
[8] The terms "claim" and "cause of action" are interchangeable. The former pleading code required that a petition state facts sufficient to constitute a "cause of action." 12 O.S. 1981, § 267(Sixth). Under the new pleading code the plaintiff is required to set forth a statement of the claim showing that the pleader is entitled to relief. 12 O.S.Supp. 1990, § 2008(A)(1). Accordingly, the term "cause of action" has been replaced by a "claim for relief" in the pleading code. For the significance of the change in terms in the pleading code, see the Committee Comment to Section 2008, 12 O.S.A. (West Supp. 1991).
[9] According to the deposition, a back charge is a term of art of the construction industry for extra charges billed to a contractor for work performed by the subcontractor but which was not included in the contract between the parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614900/ | 604 P.2d 1192 (1979)
Jimmie D. ARNOLD and Juanita Arnold, Plaintiffs-Appellees and Cross-Appellants,
v.
Richard G. GEBHARDT, Public Trustee of the County of Boulder, State of Colorado, Defendant-Appellee and Cross-Appellee, and
Thomas Harvey Thompson, Jr. and Claudia Lee Thompson also known as Claudia L. Thompson, Defendants-Appellants and Cross-Appellees.
No. 78-889.
Colorado Court of Appeals, Division I.
December 6, 1979.
*1193 Newcomer & Douglass, William A. Ahlstrand, Boulder, for plaintiffs-appellees and cross-appellants.
Hutchinson, Black, Hill, Buchanan & Cook, Forrest E. Cook, Boulder, for defendant-appellee and cross-appellee.
Law Offices of William Pehr, David W. Pehr, Westminister, for defendants-appellants and cross-appellees.
SILVERSTEIN, Judge.
Plaintiffs, Jimmie D. Arnold and Juanita Arnold, filed an action against the Public Trustee of Boulder County and Thomas H. Thompson and Claudia L. Thompson seeking to have the public trustee's foreclosure sale set aside or to have the period of time for redemption extended. The trial court entered a final judgment allowing plaintiffs additional time in which to redeem their property. The Thompsons appeal, contending, inter alia, that the trial court made erroneous findings of fact and that the trial court erred in providing equitable relief after the expiration of the statutory redemption period. Plaintiffs cross-appeal against the public trustee. We affirm.
In 1975, the Arnolds executed a deed of trust on the subject property to secure payment of a promissory note to the United Bank of Broomfield. The property is used by the Arnolds to conduct an iron welding business from which they earn their livelihood. The Arnolds defaulted on the note, and the bank commenced a foreclosure proceeding with the public trustee's office in February 1978. The foreclosure sale was held on April 4, 1978, and the Thompsons submitted the highest bid for the property. At the time of the sale, the public trustee made an initial determination that a six-month redemption period was applicable to the property and the office file was marked accordingly.
In April 1978, the Arnolds employed a real estate agent and asked him to place their property on the market. In furtherance of that objective, the agent contacted the public trustee's office in early May 1978 and inquired as to the redemption period for the property in the foreclosure proceeding. A deputy public trustee advised the agent that the redemption period was 180 days and that the date for redemption was October 4, 1978. The agent informed the Arnolds of his phone conversation with the public trustee's office and advised them *1194 that they had until October 4, 1978, to redeem the property.
Around June 16, 1978, the public trustee, after consulting with his attorney, determined, contrary to his initial opinion, that the subject property was non-agricultural and that the 75-day redemption period as provided in § 38-39-102, C.R.S.1973, was applicable. On June 20, 1978, a public trustee's deed was issued to the Thompsons.
The Arnolds first learned that the public trustee's deed had been issued on June 23, 1978. On June 26, 1978, the Arnolds filed their complaint for equitable relief alleging that the six-month period of redemption was applicable because the property was agricultural and that they had relied upon the public trustee's statements to their agent that the redemption period was six months. They further alleged that the public trustee failed to give them proper notice of their redemptive rights, and prayed that the sale should be set aside for gross inadequacy of price.
A hearing on the Arnolds' motion for preliminary injunction was held. At the conclusion of the hearing, the parties agreed that the trial court should enter a final judgment on all issues except plaintiffs' claims for damages, because no additional evidence would be offered at a trial on plaintiffs' claim for a permanent injunction.
The trial court ruled that the 75-day redemption period was applicable to the property and dismissed plaintiffs' claims against the public trustee. The court further ruled that the plaintiffs had established a compelling case for the invocation of the court's equitable power to extend the redemption period and granted plaintiffs an additional 27 days in which to redeem the property by depositing the full price paid by the Thompsons plus all incidental costs and expenses into the registry of the court. The plaintiffs deposited the necessary sums within the time allotted, and, in a post-judgment order, the trial court ordered the Thompsons to convey title to the property to the plaintiffs. The court also dismissed without prejudice the plaintiffs' claim for damages.
The Thompsons' first contention is that the trial court erred in finding that the plaintiffs acted in reliance on the public trustee's statement that the applicable statutory redemption period for the property was six months. There is sufficient competent evidence in the record to support this finding. Jimmie Arnold testified that on the date of the foreclosure sale, Mr. Thompson stopped in to say that he had bid on the property and that he would be willing to rent it to the Arnolds. Jimmie Arnold declined the offer and stated he was planning to redeem the property. Before and after the foreclosure sale, Jimmie Arnold had been in contact with the First National Bank of Lafayette concerning a loan to redeem the property, and he had received an oral commitment. He further stated that he did not take steps to finalize the loan or redeem the property in May because he thought, based upon his real estate agent's conversation with the public trustee's office, that he had until October 4, 1978, to do so. Juanita Arnold also testified that she believed they had until October 4, 1978, because the agent had so informed them and that they would have redeemed the property with bank financing if they had known the redemption period was 75 days.
The Thompsons further dispute the grant to plaintiffs of an extension of time in which to redeem their property. Acknowledging the trial court's equitable power, in some instances, to extend the statutory period of redemption, the Thompsons contend that such power does not arise absent a showing of fraud, deceit, or collusion on the part of a third-party purchaser at a foreclosure sale. We disagree. "It is the traditional duty of a court of equity to safeguard the interests of a mortgagor in the foreclosure of his equity of redemption." Handy v. Rogers, 143 Colo. 1, 351 P.2d 819 (1960).
The equitable extension of a redemption period beyond the statutory period in foreclosure proceedings is not confined to circumstances of fraud, deceit, or collusion, *1195 but may also be granted where the holder of the right to redemption relies on erroneous information given him by the public officer conducting the sale. Hamilton v. Hamilton, 51 Mont. 509, 154 P. 717 (1916). See Burrell Registration Co. v. McKelvey, 194 Colo. 157, 570 P.2d 248 (1977); Kimtruss Corp. v. Westland Manor Nursing Home North, Inc., 39 Colo. App. 542, 568 P.2d 105 (1977).
The Thompsons also challenge the trial court's finding that the sales price at the foreclosure sale was grossly inequitable. On uncontradicted evidence, the trial court found that the fair market value of the property was $80,000 and that the sale price of $32,200 was inadequate.
The trial court concluded that the inadequacy of price, standing alone, did not warrant setting aside the sale, but considered it merely one of the factors which required the court to employ an equitable remedy for the plaintiffs. We agree.
The trial court based the exercise of its equity power upon the mistake of the public trustee which misled the Arnolds as to their redemptive rights, see Holt v. Mitchell, 96 Colo. 412, 43 P.2d 388 (1935), coupled with the inadequate sales price. See Handy v. Rogers, supra. We concur with the trial court's determination that, under the circumstances at issue here, extension of the period of redemption was the appropriate remedy to rectify the inequities presented.
The Thompsons' remaining issues on appeal are without merit. Because we affirm the trial court's order and the Arnolds have indicated their satisfaction with the relief granted, we do not address the issues raised against the public trustee on cross-appeal.
Judgment affirmed.
COYTE and KELLY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2657367/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 7, 2014
TERENCE DAVIS v. CHERRY LINDAMOOD, WARDEN
Appeal from the Circuit Court for Hardeman County
No. CC-2013-CR-50 Joseph H. Walker, III, Judge
No. W2013-01081-CCA-R3-HC - Filed March 19, 2014
The Petitioner, Terence Davis, appeals as of right from the Hardeman County Circuit Court’s
summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that one
of his judgments of conviction is void because it fails to properly reflect his pretrial jail
credit. Following our review, we affirm the judgment of the habeas corpus court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.
Terence Davis, Whiteville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; and Clark B. Thornton, Senior
Counsel, for the appellee, State of Tennessee.
OPINION
The Petitioner was arrested on April 22, 2006, on a warrant for rape and sexual
battery. He was released on bail on April 26, 2006. He was subsequently indicted on these
charges in Case No. 06-06292. On May 1, 2007, the Petitioner was indicted in Case No. 07-
03102 on new charges of aggravated burglary, aggravated rape, and statutory rape alleged
to have occurred in 2005. He was arrested on May 22, 2007, on a capias issued with the
second indictment. The Petitioner remained in custody until he entered guilty pleas in both
cases. He was sentenced to concurrent eight-year terms for each case.
The judgment for Case No. 07-03102 shows that the Petitioner was awarded pretrial
jail credit from May 22, 2007 to February 23, 2009, in that case. The judgment for Case No.
06-06292 shows that Petitioner was awarded pretrial jail credit on that charge from April 23,
2006 to April 26, 2006, and also from September 7, 2007 to February 23, 2009. On April 10,
2013, the Petitioner filed a petition for writ of habeas corpus in the Hardeman County Circuit
Court asserting that he is missing approximately three months of pretrial jail credit in Case
No. 06-06292. On April 16, 2013, the circuit court summarily dismissed the petition.
The Petitioner contends that his judgment is void because the trial court failed to
properly award him pretrial jail credit from May 22, 2007 to September 6, 2007, in Case No.
06-06292. Essentially, he argues that during that time period he was being held on both
charges, and thus should have had that time credited on both judgments. The State responds
that although the Petitioner claims that he was released on bail on the initial charge, he did
not provide any documentation showing that his bond had been revoked or suspended at the
time of his May 22, 2007 arrest. Therefore, the State concludes that the Petitioner has failed
to show that he was being held on the charges in Case No. 06-06292 during the time period
in question, and that the trial court’s allocation of pretrial jail credits was proper.
Under Tennessee law, the “grounds upon which habeas corpus relief may be granted
are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only
where the petitioner has established: (1) a lack of jurisdiction for the order of confinement
on the face of the judgment or in the record on which the judgment was rendered; or (2) that
he is otherwise entitled to immediate release because of the expiration of his sentence. See
State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000); Archer v. State, 851 S.W.2d 186, 189
(Tenn. 1993). The purpose of the habeas corpus petition is to contest a void, not merely a
voidable, judgment. State ex. rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn.
1968).
A void, as opposed to a voidable, judgment is “one that is facially invalid because the
court did not have the statutory authority to render such judgment.” See Summers v. State,
212 S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of establishing a void
judgment or illegal confinement by a preponderance of the evidence. See Wyatt v. State, 24
S.W.3d 319, 322 (Tenn. 2000). A habeas corpus court may summarily dismiss a petition
without a hearing when the petition “fails to demonstrate that the judgment is void.”
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); Tenn. Code Ann. § 29-21-109.
The failure of a trial court to credit a petitioner with mandated pretrial jail credit
results in an illegal sentence; therefore, it is a cognizable claim for habeas corpus relief.
Tucker v. Morrow, 335 S.W.3d 116, 123 (Tenn. Crim. App. 2009). To establish such a
claim, a petitioner must show “(1) that he was incarcerated ‘pending arraignment and trial’
on the offense or offenses that led to the challenged convictions or ‘subsequent to’ the
challenged conviction or convictions and (2) that the trial court failed to award credit for the
incarceration on the challenged judgment.” Id. As such, a petitioner “must exhibit to his
-2-
petition sufficient documentation from the record to establish that he is indeed entitled to
pretrial jail credit . . . and that the trial court erroneously failed to award it.” Id. at 124.
Furthermore, where a petitioner is serving concurrent sentences for multiple charges
and pretrial jail credit was not applied equally to both charges,“[t]he dispositive issue [on
appeal] is whether [the petitioner] was committed and held in pretrial custody on both
charges at the same time.” State v. Henry, 946 S.W.2d 833, 834-35 (Tenn. Crim. App.
1997). For example, if a petitioner was “incarcerated on [a] first offense and later separately
charged for [a] second offense, then he can receive pretrial jail credit on the second offense
only from the time of that charge.” Id. at 835.
The Petitioner asserted that he was arrested in 2006 for Case No. 06-06292 and that
he made bail on that charge. In 2007, he was arrested on an indictment for a rape that
occurred in 2005 in Case No. 07-03102. The record shows that the Petitioner was committed
to the Shelby County Jail on May 22, 2007, solely for the indictment in Case No. 07-03102.
The record does not contain any documents demonstrating that the Petitioner’s bond had
been surrendered or revoked in Case No. 06-06292 at the time he was arrested on May 22,
2007. A petitioner is only entitled to equal pretrial jail credit for both concurrent sentences
when it is proven that, for the time period in question, the defendant was being held on both
charges. See Henry, 946 S.W.2d at 834-35. Without documentation that the Petitioner’s
bond had been revoked or surrendered when he was arrested the second time, the record is
insufficient to support his claim that he was in custody for both charges from May 22, 2007
to September 6, 2007. Therefore, the habeas corpus court did not err in summarily
dismissing the petition.
In consideration of the foregoing and the record as a whole, the judgment of the
habeas corpus court is affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
-3- | 01-03-2023 | 03-20-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2402296/ | 721 S.W.2d 287 (1986)
FIRST NATIONAL BANK OF EAGLE PASS, Petitioner,
v.
Mrs. Ben LEVINE, Respondent.
No. C-5332.
Supreme Court of Texas.
November 26, 1986.
*288 John W. Claybrook, Eagle Pass, for petitioner.
Fulbright & Jaworski, John Wesley Raley and Roger Townsend, Houston, amicus curiae on behalf of petitioner.
David L. Willis and Arnold L. Levey, Levey, Levey & Baugh, San Antonio, for respondent.
WALLACE, Justice.
This is a suit by Mrs. Ben Levine against First National Bank of Eagle Pass, Texas, for tortious interference with business relations. The sole issue is whether the two-year or four-year statute of limitations applies to this cause of action. The trial court granted a summary judgment for the Bank on the basis that the two-year statute applies. The court of appeals, based upon a holding that the four-year statute applies, reversed the judgment of the trial court and remanded the cause for trial. 706 S.W.2d 749 (Tex.App.1986). We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
The petition of Mrs. Levine alleged that she had made an application for a loan from the Small Business Administration and gave the Bank as a credit reference. The loan was refused. She submitted another application without the Bank as a reference and the second application was granted. She further alleged the Small Business Administration told her that the Bank had given a negative credit reference. The parties stipulated that the events made the basis of this suit occurred more than two years, but less than four years, prior to the filing of the suit.
The applicable statute of limitations in effect at the time the case was filed was TEX.REV.CIV.STAT.ANN. art. 5526, now TEX.CIV.PRAC. & REM. CODE ANN. § 16.003 (Vernon 1986) (the two-year statute) and art. 5529, now TEX.CIV.PRAC. & REM. CODE § 16.004 (Vernon 1986) (the four-year statute). Article 5526 stated in pertinent part:
There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
1. Actions of trespass for injury done to the estate or the property of another.
Article 5529 stated in pertinent part:
Every action ... for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring same shall have accrued and not afterward.
The dispositive question in this case is whether a suit for tortious interference with business relations is an action of trespass for injury done to the estate or property of another. To determine the answer to that question we must look to judicial history and its treatment of the tort of "trespass."
The Constitution of the Republic of Texas, 1836, Art. IV, Sec. 13, 1 Laws of Texas 1074, provided that Congress should as early as practicable enact by statute the Common Laws of England. In response to that constitutional mandate, the Congress of the Republic of Texas, on January 20, 1840, declared that "the Common Law of England... should continue in force until altered or repealed by Congress." 2 Laws of Texas 177.
In reviewing the history of English Common Law, we find that the original meaning of the term "trespass" was that "a *289 defendant `with force and arms' and `against the peace of our Lord the King' had interfered with a plaintiff's land or goods." B. Lyon, A Constitutional & Legal History of Medieval England, 634 (2d ed. 1980). By the thirteenth century, however, the definition of "trespass" had been expanded to include what, in our jurisprudence, is known as a tort. S.F.C. Milsom, Historical Foundation of the Common Law, p. 261 (1969).
Following the English Common Law, this Court in 1885, in interpreting "trespass" as used in the two year statute of limitations stated:
The word "trespass" as here used, is used, not in the technical sense, but broadly, and means any act violative of the right of another through which injury is done to his estate or property.
Bear Bros. & Hirsch v. Marx & Kempner, 63 Tex. 298 (1885).
Tortious interference with a contract was held to be controlled by the two-year statute in Atomic Fuel Extraction Corp. v. Estate of Slick, 386 S.W.2d 180 (Tex.Civ. App.San Antonio 1964) writ ref'd n.r.e. per curiam, 403 S.W.2d 784 (Tex.1965). In National Founders Corp. v. Central National Bank, 521 S.W.2d 92 (Tex.Civ.App. Houston [14th Dist.] 1975, writ ref'd n.r. e.), the plaintiff alleged a tortious interference with business relations by the defendant bank by wrongful foreclosure of stock pledged to secure a loan. The court of civil appeals upheld a summary judgment based upon a holding by the trial court that suit was barred by the two-year statute of limitations.
In Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375 (Tex.Civ.App. Tyler 1978, writ ref'd n.r.e.), a former client of a law firm alleged that the firm actively "interfered with [his] interest in the family business." The trial and appellate courts held the action to be barred by the two-year statute of limitations.
Black's Law Dictionary defines "trespass" as:
Trespass. An unlawful interference with one's person, property, or rights. At common law, trespass was a form of action brought to recover damages for any injury to one's person or property or relationship with another.
BLACK'S LAW DICTIONARY 1347 (5th ed. 1979).
The court of appeals in this case relied on Phillips Chemical Co. v. Hulbert, 301 F.2d 747 (5th Cir.1962) in holding that the case is controlled by the four-year statute. In Hulbert, the court, without discussing the issue, stated that the four-year statute of limitations applied to an action for interference with business relations. The court cited Brown v. American Freehold Land Mortgage Co., 97 Tex. 599, 80 S.W. 985 (1904) as authority. The Brown case merely held that the plaintiff's cause of action was not limited to libel and slander, thus the one-year statute of limitations did not apply. It is inapplicable both to the Hulbert facts and to this case. For this reason, the court in Hulbert incorrectly held the four-year statute applied to wrongful interference with business relations.
The Fifth Circuit case which correctly interprets Texas law is Coastal Distributing Co., Inc. v. NGK Spark Plug Co., Ltd., 779 F.2d 1033 (5th Cir.1986), which held that the two-year statute of limitation applied to a case alleging unfair competition. The court stated:
The unfair competition claim, based on NGK's wrongful acquisition and use of Coastal's trade secrets, is a tort governed by the two-year limitations period of article 5526.
779 F.2d at 1038.
We hold that trespass, within the meaning of article 5526, includes suits for tortious interference with business relations. Accordingly, we reverse the judgment of the court of appeals and affirm the judgment of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1708769/ | 139 Mich. App. 124 (1984)
362 N.W.2d 787
PEOPLE
v.
HARDESTY
Docket No. 57810.
Michigan Court of Appeals.
Decided November 19, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by P.E. Bennett), for defendant on appeal.
Before: SHEPHERD, P.J., and CYNAR and S.D. BORMAN,[*] JJ.
CYNAR, J.
A jury found defendant to be guilty of four counts of first-degree murder, MCL 750.316; MSA 28.548, one count of second-degree murder, MCL 750.317; MSA 28.549, and two counts of assault with intent to murder, MCL 750.83; MSA 28.278, but mentally ill. He was sentenced to life terms for the five murders, and terms of 100 to 200 years and 150 to 300 years on the assaults. Defendant filed an appeal as of right alleging seven grounds for reversal.
The charged offenses occurred at three different locations in Wayne and Washtenaw Counties during the night of October 18-19, 1978. On the evening of October 18, defendant shot and killed his parents, Ronald and Jeannette Hardesty, at their home in rural Wayne County. Later that night, he shot and killed Troy Curry and Timothy Schofield outside Abigail's Bar in Ypsilanti. The same night, he went to Stiles-Wood Building, a machine shop in Ypsilanti Township, Washtenaw County, and shot and killed Daniel Wood, the brother of his former wife. He also shot Tommy Lee Brown, a *128 witness to the Wood killing. He later returned to the machine shop and shot Bobby Joe Baker as he fled after discovering the dead and wounded men at the machine shop. Defendant was arrested at his home on the morning of October 19, 1978.
On November 8, 1978, defendant was admitted to the Center for Forensic Psychiatry in Ypsilanti for a competency evaluation. After two Forensic Center examiners testified that defendant was not competent to stand trial but might eventually be rendered competent, the trial judge found defendant incompetent and committed him to the Department of Mental Health for treatment.
In March, 1979, a competency hearing was again held and defendant was found competent to stand trial. However, on June 15, 1979, the judge, on his own motion, found reason to believe defendant again might not be competent. He ordered that defendant be returned to the Forensic Center for another evaluation, and at the next hearing he was again found incompetent. Defendant was recommitted to the Forensic Center.
In August, 1980, Dr. Lee of the Forensic Center staff recommended that defendant be found competent to stand trial. During his commitment, defendant was given psychotherapy and drug therapy, receiving injections of Prolixin (fluphenazine decanoate), an antipsychotic medication and major tranquilizer. Dr. Lee strongly recommended that Hardesty be continued on this chemotherapy while awaiting trial. The judge found defendant competent to stand trial by an order dated September 11, 1980. He ordered that defendant's treatment not be changed without consultation with Dr. Lee.
On January 30, 1981, just prior to the trial herein, the judge heard several motions, including a motion seeking to discontinue use of psychotropic drugs in defendant's treatment program. *129 Defense counsel argued that this would give the jury a truer picture of defendant's mental condition when he took the stand. The motion was denied without prejudice.
Defense counsel also argued prior to trial that the evidence was insufficient to support the prosecutor's charges of first-degree murder in the killings of defendant's parents. The trial judge denied defendant's motion for a directed verdict on this issue, and defendant went to trial on these charges. After the prosecutor's case in chief, defendant again moved for a directed verdict on this issue, which the trial court again denied.
The trial commenced on February 13, 1981, and continued through 11 days of proceedings, until the case went to the jury on the evening of March 4, 1981. The prosecutor's case-in-chief included the testimony of 35 witnesses. Following the denial of defendant's motion for a directed verdict of dismissal with respect to the first-degree murder charges in the killings of Ronald and Jeannette Hardesty, the defendant presented nine witnesses, including defendant, in support of defendant's insanity defense. The judge refused to allow defendant's clinician at the Forensic Center to testify as an expert on his criminal responsibility, but allowed her to testify on his competency for trial.
Among his witnesses, defendant produced three experts who testified that he was insane at the time of the killings. In rebuttal, the prosecutor presented four expert witnesses who had examined defendant and determined that he was not insane and should be found criminally responsible.
The jury deliberated all day on both March 5 and March 6, 1981, ultimately finding defendant guilty as charged but mentally ill on six of the seven counts, and guilty of second-degree murder but mentally ill in the killing of his father.
*130 I
WHETHER DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL JUDGE'S INSTRUCTIONS ON INSANITY WERE INCORRECT AND CONFUSING.
In order to have been insane at the time of the crime, a defendant first must have been mentally ill:
"As used in this chapter, `mental illness' means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life." MCL 330.1400a; MSA 14.800(400a).
Then, a defendant must meet a further condition:
"A person is legally insane if, as a result of mental illness * * * that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." MCL 768.21a(1); MSA 28.1044(1)(1).
Thus, whether or not he was mentally ill, a defendant is legally sane if he had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. If any evidence of insanity is introduced, the prosecution then bears the burden of establishing the defendant's sanity beyond a reasonable doubt. People v Murphy, 416 Mich 453, 463-464; 331 NW2d 152 (1982).
In defense counsel's opening remarks, he stated that the sole issue in the case was defendant's sanity at the time of the shootings. He argued that the prosecution could not prove beyond a reasonable doubt that defendant was not mentally ill and not insane at the time of the offenses. Following *131 the defense attorney's opening statement, the trial judge gave instructions on the statutory definitions of mental illness and insanity. However, near the end of such instructions, the judge said:
"Correspondingly, a person is legally sane if despite mental illness that person possesses substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law he is charged with violating." (Emphasis added.)
Before the jury deliberations began, the judge again instructed on mental illness and insanity, repeating the instructions as given before. Defense counsel did not object to the judge's erroneous instructions on legal sanity given after his opening remarks. However, he properly objected to the instruction prior to the jury deliberations, apparently pointing out that the instruction was incorrect because the Michigan Standard Criminal Jury Instruction 7:8:02A improperly used the article "or" instead of "and".
This Court in People v Gasco, 119 Mich App 143, 145; 326 NW2d 397 (1982), lv den 414 Mich 951 (1982), said:
"While the CJI definition of legal insanity correctly states the law, the CJI definition of legal sanity is erroneous. The court's instructions on legal sanity allow the jury to find defendant criminally responsible if it concluded that: (a) he knew the difference between right and wrong; or (b) he could conform his conduct to the requirements of the law. In fact, pursuant to MCL 768.21a(1); MSA 28.1044(1)(1), defendant would be legally sane only if both (a) and (b) were true. CJI 7:8:02A, and the trial court, should have used `and' instead of `or' in the definition of legal sanity."
After defense counsel's conference with the judge, the judge announced that he was going to *132 amend and correct his previous instruction. Defendant, on appeal, argues that the attempted correction was again wrong because although the judge properly replaced the "or" of the incorrect instruction with an "and", the correction mistakenly replaced "sane" with "insane". After defendant filed his appellate brief, however, the official court reporter filed an affidavit with corrected transcript pages 1550-1554. The affidavit states that the court reporter compared the original transcript with her own notes and the back-up tape recording of the proceedings to correct the transcripts. Corrected page 1551 beginning at line 21 shows that the trial judge properly replaced the "or" with an "and", and properly said "sane" rather than "insane". Nonetheless, defendant argues that where both correct and incorrect versions of an instruction are rendered, it must be presumed that the jury followed the incorrect instruction. Gasco, supra, p 145.
This is a worthy rule to be sure, but we decline to extend it to cases where, as here, the trial court expressly repudiates the incorrect instruction. Such a holding would make every inadvertent but substantive instructional error irremediable and hence subject to mistrial, even though the error is brought to the attention of the judge prior to deliberation. We can discern no prejudice to a defendant where instructional mistakes are timely corrected.
II
WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION IN REFUSING TO ALLOW DEFENDANT'S EXPERT WITNESS TO GIVE HER OPINION OF DEFENDANT'S CRIMINAL RESPONSIBILITY.
The trial judge refused to allow Joan Schonthaler, *133 a clinical psychologist, to render an opinion as to defendant's sanity at the time of the offenses. The judge found that an inadequate foundation had been laid as to her experience in evaluating criminal responsibility.
This Court reviews a trial court's admission, exclusion, or limitation of expert testimony for abuse of discretion. Patelczyk v Olson, 95 Mich App 281; 289 NW2d 910 (1980). We will not disturb the court's exercise of discretion in this case. Although Schonthaler's contact with defendant was a consideration, it does not outweigh her overall lack of experience and education in evaluating the sanity of an accused. See People v Parney, 74 Mich App 173; 253 NW2d 698 (1977).
III
WHETHER DEFENDANT WAS DENIED HIS RIGHTS AGAINST CRUEL AND UNUSUAL PUNISHMENT, TO BE PRESENT AT TRIAL, TO CONFRONT WITNESSES AGAINST HIM, AND TO FREEDOM OF THOUGHT BECAUSE HE WAS MADE COMPETENT TO STAND TRIAL ONLY THROUGH THE USE OF PSYCHOTROPIC DRUGS.
This is one of the two issues focusing on the psychopharmaceutical restoration and maintenance of defendant's competence before and during trial. We address these issues in a different order than defendant has raised them, as the proper resolution of the instant issue has implications affecting the issue following.
The conviction of an accused while he is incompetent to stand trial violates due process. US Const, Ams V, XIV; Const 1963, art 1, § 17; Pate v Robinson, 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966); People v Chambers, 14 Mich App 164, 174; 165 NW2d 430 (1968), lv den 381 Mich 802 (1969). Under the Michigan Mental Health Code, an accused *134 may be adjudicated competent to stand trial even if competency is obtained or ensured through medicinal agents:
"A defendant shall not be determined incompetent to stand trial because psychotropic drugs or other medication have been or are being administered under proper medical direction, and even though without such medication the defendant might be incompetent to stand trial. However, when the defendant is receiving such medication, the court may, prior to making its determination on the issue of incompetence to stand trial, require the filing of a statement by the treating physician that such medication will not adversely affect the defendant's understanding of the proceedings or his ability to assist in his defense." MCL 330.2020(2); MSA 14.800(1020)(2).
As previously noted, defendant was originally found incompetent, then competent, then incompetent again, and finally competent after he was placed on biweekly injections of Prolixin at the Forensic Center. The record indicates a substantial possibility that discontinuance of drug treatments prior to trial would have caused defendant's condition to regress to a state of incompetency.
Defendant maintains that the above statutory provision is unconstitutional, arguing:
"If the prosecution cannot make a person competent to stand trial without forcedly affecting his mind, then the prosecution has no right to try him for a crime. Rather than a trial the state's remedy is to initiate civil commitment proceedings. Jackson v Indiana [406 US 715; 92 S Ct 1845; 32 L Ed 2d 435 (1972)].
"The State could only make Mr. Hardesty competent to stand trial through the administration of mind-altering drugs. The State was changing a mentally ill and insane person into a criminal by drugging him. Because Hardesty was involuntarily made competent, his convictions should be reversed."
*135 Defendant rests his argument almost exclusively upon State v Maryott, 6 Wash App 96; 492 P2d 239 (1971). In that case the defendant's jailers administered to him a variety of tranquilizing drugs solely for the purpose of controlling his behavior in court. The record indicated that the defendant was dull and listless during trial and that he was unable to assist in his defense. Testimony in the case indicated that the tranquilizers would affect the thought, expression and manner of the person maintained under their influence.
In holding that the defendant's conviction was improperly obtained, the Maryott court displayed concern about state action infringing upon an accused's ability to think. See Palko v Connecticut, 302 US 319; 58 S Ct 149; 82 L Ed 288 (1937). Such conduct was held to be offensive to the defendant's right to be present and confront witnesses against him; these rights, though not absolute, could not be interfered with absent a demonstrated need. Illinois v Allen, 397 US 337; 90 S Ct 1057; 25 L Ed 2d 353 (1970). The Maryott court further stated:
"In the instant case, it is difficult to see a legitimate state interest in imposing drugs on a defendant who asks to be free of them. If the motive is to control a possibly obstreperous defendant, two conclusions are suggested, analogously, by the reasoning in Allen. First, no control should be imposed until its need has been demonstrated. Second, the control which is imposed should insure an orderly trial with the least interference with a defendant's rights." Maryott, supra, p 103.
Neither the reasoning nor the result in Maryott compels the conclusion that the state may not try an accused made competent in whole or in part through psychotropic medication. Quoting from Allen, supra, the Maryott court recognized:
"The safeguards that the constitution accords to *136 criminal defendants presuppose that government has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of "ordered liberty" and prerequisite to social justice and peace." Maryott, supra, p 103, citing Allen, supra.
In Maryott this interest was not served by the involuntary medication of the defendant; the drugs used were not essential to render the defendant competent to stand trial, indeed they tended to seriously erode his ability to assist in his defense. In our case the medication allowed the state to bring defendant to trial so that his culpability and criminal responsibility could be adjudicated. Additionally, the record clearly demonstrates that the drugs used enhanced, rather than diminished, defendant's ability to engage in rational thought and assist counsel at trial. This being the case, the balance of competing interests favors the state:
"The state's substantial interest in bringing to trial defendants accused in good faith and on probable cause of violating its laws an interest in `the integrity of its criminal justice system' and therefore at the very core of its police power would seemingly be counted as sufficiently compelling to outweigh the defendant's interest in avoiding medication which, although highly intrusive, will generally not result in irreversible effects." (Footnotes omitted.) Winick, Psychotropic Medication and Competence to Stand Trial, 1977 American Bar Foundation Research Journal 769, 812-813.
Defendant's position, if accepted, would mean that the state would either have to avoid rendering drug therapy to an incompetent accused or else give up its right to try him once competence is restored. We find such a result unacceptable. Psychopharmaceutical restoration of a mentally incompetent accused is now a common and effective *137 procedure. See Haddox & Pollack, Psychopharmaceutical Restoration to Present Sanity (Mental Competency to Stand Trial), 17 J For Sci, 568, 576 (1972); Buschman & Reed, Tranquilizers and Competency to Stand Trial, 54 ABA Journal 284 (1968). Additionally, extrajurisdictional decisions which have pondered this same problem have found no impropriety in the trial of a drug-normalized accused. State v Stacy, 556 SW2d 552 (Tenn Crim App, 1977) ("We find nothing offensive in allowing a defendant's competency to stand trial to be induced by the use of tranquilizing medication"); People v Parsons, 82 Misc 2d 1090; 371 NYS2d 840 (1975) ("Any other holding would constitute an atavistic repudiation of the advances made in the treatment of the mentally ill during the past two decades"); State v Hampton, 253 La 399; 218 So 2d 311 (1969) (The state "does not look beyond existing competency and erase improvement produced by medical science"). See also People v Dalfonso, 24 Ill App 3d 748; 321 NE2d 379 (1974); State v Potter, 285 NC 238; 204 SE2d 649 (1974); State v Arndt, 1 Or App 608; 465 P2d 486 (1970); State v Rand, 20 Ohio Misc 98; 247 NE2d 342 (1969); State v Plaisance, 252 La 212; 210 So 2d 323 (1968), cert den 393 US 1005; 89 S Ct 496; 21 L Ed 2d 470 (1968).
We hold that an incompetent accused may be made competent through medicinal agents, and may be tried even though medication must be continued throughout trial to prevent the accused from again becoming incompetent. In so doing, we uphold the constitutionality of MCL 330.2020(2); MSA 14.800(1020)(2).
IV
WHETHER DEFENDANT'S RIGHT TO TESTIFY IN HIS *138 OWN BEHALF WAS VIOLATED BECAUSE HE WAS KEPT ON PSYCHOTROPIC DRUGS DURING HIS TESTIMONY.
Having previously upheld the state's right to try a drug-normalized defendant, we must now inquire whether the state may maintain the defendant's competence at trial through drugs where insanity is advanced as a defense and the defendant's demeanor on the witness stand is an element of his proofs.
Following the second determination of incompetency to stand trial in October, 1979, defendant was returned to the Forensic Center, where the staff began treating him with Prolixin. Prolixin Decanoate is described in the Physician's Desk Reference (1984 ed) at p 1934 as "a highly potent behavior modifier with a markedly extended duration of effect". It is used in treatment of chronic schizophrenics, and is about 100 times more potent than Thorazine. Prolixin blocks or lessens delusions and hallucinations and would not be given on a regular basis to a person who was not mentally ill.
Joan Schonthaler testified that defendant received injections once every two weeks. At first Dr. Lee gave him a dosage of 12.5 milligrams every two weeks, but he gradually increased the dosage until it reached 50 milligrams every two weeks. Defendant improved considerably, and the medication was reduced to a maintenance dosage of 25 milligrams. The voices defendant claimed to hear went away and he seemed to be less suspicious of people and could think more rationally.
Before trial, defendant moved to be taken off Prolixin. Defense counsel conceded that without the drug defendant might fall apart, but argued that the jury would get a truer picture of defendant's mental condition. He contended that, because defendant's behavior and thinking processes *139 were being affected by Prolixin, defendant appeared much less psychotic than he really had been at the time of the shootings. The trial judge denied the motion without prejudice, telling defense counsel that he wanted a factual foundation from a medical officer at the Forensic Center that withdrawing defendant from medication would not cause him to regress and again become incompetent to stand trial.
Apparently, defense counsel never renewed this motion before or during trial. Defendant took the stand in his own behalf.
Defendant contends that requiring him to appear at trial in a sedated condition was an abridgment of his fundamental constitutional and statutory right to testify in his own behalf. MCL 600.2159; MSA 27A.2159; US Const, Ams V, VI, XIV, Const 1963, art 1, § 17, 20; Guilty Plea Cases, 395 Mich 96, 120; 235 NW2d 132 (1975). It is argued that, in attempting to preserve defendant's rights to be present and competent at his trial, the court traded away defendant's right to present a defense and to testify in his own behalf, because the jury could not properly evaluate the extent of defendant's mental illness and insanity. Defendant urges that if his mind had not been under the control of psychotropic drugs when he testified, the jury might have found not only that he was mentally ill, but that he was insane.
The Mental Health Code permits the trial court to keep the defendant on medication in order to maintain his competence:
"If the defendant is receiving medication and is not determined incompetent to stand trial, the court may, in order to maintain the competence of the defendant to stand trial, make such orders as it deems appropriate for the continued administration of such medication *140 pending and during trial." MCL 330.2030(4); MSA 14.800(1030)(4).
Defendant has not cited, nor have we discovered, any Michigan authority on the subject of the conflict between this statute and a defendant's right to testify at his trial in a drug-free condition.
It has long been recognized, in this and other jurisdictions, that the demeanor in court of one who has raised the issue of his sanity is of probative value to the trier of fact. United States v Chandler, 72 F Supp 230 (D Mass, 1947); 4 Wigmore, Evidence, § 1160 (3d ed, 1940); Beaubien v Cicotte, 12 Mich 459 (1864). Indeed, in People v Van Diver, 79 Mich App 539; 261 NW2d 78 (1977), the defendant's demeanor, coupled with the content of his testimony, was sufficient to make the issue of his sanity a jury question even though he was the sole defense witness.
The prosecutor suggests that this issue may not have been preserved adequately for appellate review, since defendant failed to renew his motion after it was denied without prejudice. However, a review of the motion hearing suggests that the trial court desired a showing that defendant would not regress and again become incompetent if withdrawn from drugs. Because defendant's argument suggets that the possibility of reversion to incompetence would not be a legitimate consideration, we will review the issue.
In State v Maryott, supra, the defendant's demeanor was also a consideration. In reversing his conviction, the Court noted that, despite his highly excitable condition, "the jury saw him as very quiet because he was drugged". The Maryott court stated:
"When mental competence is at issue, the right to *141 offer testimony involves more than mere verbalization. The demeanor in court of one who has raised the issue of his sanity is of probative value to the trier of fact.
* * *
"In the instant case, * * * the demeanor and attitude of the defendant are of particular significance. If the state may administer tranquilizers to a defendant who objects, the state then is, in effect, permitted to determine what the jury will see or not see of the defendant's case by medically altering the attitude, appearance and demeanor of the defendant, when they are relevant to the jury's consideration of his mental condition." Maryott, supra, pp 101-102.
The court concluded that it would not:
"* * * allow the state to erase, by drugs they have administered, the major contours of the demeanor, appearance, and attitude of a defendant who is pleading his mental condition and then explain to the jury what they have, in effect, chosen for the jurors not to see." Maryott, supra, p 102.
While Maryott is persuasive on the weight to be accorded a defendant's right to testify in a drug-free state where insanity is an issue, it must be remembered that in that case the state had advanced no legitimate competing interest in maintaining the defendant on drugs. A more compelling case for defendant is Commonwealth v Louraine, 390 Mass 28; 453 NE2d 437 (1983). In Louraine the defendant had a history of hallucinations, had been committed to mental hospitals, had a history of ingesting drugs, had acted in a strange and violent fashion on several occasions, and had attempted suicide several times. There was no evidence that the defendant was taking any antipsychotic medication at the time of the homicide. Prior to his competency hearing, the defendant was placed on heavy amounts of the antipsychotic *142 drugs Prolixin, Thorazine, Mellaril and Trilafon. The defendant's pretrial motion, that if he were found competent he should be permitted to attend trial in an unmedicated condition, was denied. The judge found that the defendant would not be competent to stand trial if he did not receive medication. The judge reasoned that the defendant could properly present an insanity defense by having expert witnesses bring the effects of the medication to the jury's attention. However, no such testimony was presented at trial. The Massachusetts Supreme Court reversed his conviction, citing Maryott and saying:
"In a case where an insanity defense is raised, the jury are likely to assess the weight of the various pieces of evidence before them with reference to the defendant's demeanor. Further, if the defendant appears calm and controlled at trial, the jury may well discount any testimony that the defendant lacked, at the time of the crime, substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. * * * This tendency may render also valueless the defendant's right to testify on his own behalf * * *.
"The ability to present expert testimony describing the effect of medication on the defendant is not an adequate substitute. At best, such testimony would serve only to mitigate the unfair prejudice which may accrue to the defendant as a consequence of his controlled outward appearance. It cannot compensate for the positive value to the defendant's case of his own demeanor in an unmedicated condition." 390 Mass ___; 453 NE2d 442.
The Massachusetts Supreme Court went on to discuss several cases in other jurisdictions that supported reversal:
"In State v Hayes, supra 118 NH at 462, 389 A2d *143 1379, the court held that the defendant could be compelled to take medication only `if the jury is instructed about the facts relating to the defendant's use of medication and if at some time during the trial, assuming the defendant so requests, the jury views him without medication for as long as he is found to have been without it at the time of the crime.' In In re Pray, [133 Vt 253; 336 A2d 174 (1975)], the court reversed the conviction where the State had administered the drugs to the defendant without fully disclosing to the defendant or his counsel what effect they had on the defendant. Chief Justice Barney, writing for the Vermont Supreme Court, stated that `[a]t the very least, [the jury] should have been informed that he was under heavy, sedative medication, that his behavior in their presence was strongly conditioned by drugs administered to him at the direction of the State, and that his defense of insanity was to be applied to a basic behavior pattern that was not the one they were observing. In fact, it may well have been necessary, in view of the critical nature of the issue, to expose the jury to the undrugged, unsedated Gary Pray, at least, insofar as safety and trial progress might permit.' Id. 133 Vt at 257-258, 336 A2d 174. These cases support the result we reach here." 390 Mass ___; 453 NE2d 443-444.
In a footnote the Louraine court said:
"We note that we are not deciding today whether the Commonwealth may administer medication to criminal defendants involuntarily to ensure their competence to stand trial." 390 Mass ___; 453 NE2d 444 fn 13.
But because the court did not dispute the trial judge's findings that the defendant would not be competent without the drugs, the Louraine court implicitly held that such a right, if it existed, would be subordinated to the defendant's right to have his demeanor scrutinized in a drug-free state. Oddly enough, the language from Pray, supra, cited in Louraine, hints that the balance should be *144 drawn the other way. Again, the Pray court said that when demeanor was critical, it might be necessary to expose the jury to the unsedated defendant "at least, insofar as safety and trial progress might permit".
In State v Jojola, 89 NM 489; 553 P2d 1296 (1976), the court reached a result contrary to that in Louraine. There the defendant was competent to stand trial only as long as he was maintained on Thorazine. The Jojola court rejected the defendant's argument that he had a per se right to be tried free of drugs, distinguishing Maryott on the grounds that there was no evidence that the defendant's thought processes were affected by the Thorazine. The defendant also argued that his right to due process was violated, as his demeanor on the witness stand was relevant to his defense. The court ruled that the defendant was not denied due process, since he had been given the opportunity at trial to inform the jury as to the fact of the medication and its affects.
Similarly, in Ake v State, 663 P2d 1 (Okla, 1983), cert gtd Ake v Oklahoma, ___ US ___; 104 S Ct 1591; 80 L Ed 2d 123 (1984), where the defendant argued that because of the effect of Thorazine he was not actually present at his trial, the court held that, since the jury was apprised of the fact that the defendant was being maintained on drugs, there was no error.
In our case, there is no claim that the drugs administered to defendant rendered him incompetent. Compare Maryott, supra; Peters v State, 516 P2d 1372 (Okla Crim App, 1973). Defendant was not reduced to a near catatonic state as were the defendants in Maryott and Ake; indeed, he was an active and beneficial witness in his own behalf. We are concerned only with the effect of the drugs on defendant's demeanor.
*145 We decline to adopt a per se rule that a drug-normalized accused must be allowed to discontinue medicinal treatment so that the jury may observe his demeanor in a drug-free state, even though a substantial probability exists that the accused may thereby become incompetent at trial. We believe the proper test is to balance the state's interests in safety and trial continuity, Pray, supra, with the defendant's interest in presenting probative evidence of insanity through his manner and demeanor on the witness stand, the issue being resolved on a case-by-case basis. Compare State v Murphy, 56 Wash 2d 761; 355 P2d 323 (1960). Under the facts of this case, we resolve the question in favor of the state and find no reversible error. A defendant's demeanor on the witness stand is probative of the issue of sanity only to the extent that the defendant's mental state at trial approximates his mental state at the time of the offense. Compare State v Hayes, 118 NH 458; 389 A2d 1379 (1978) ("The defendant would not be entitled to have the jury view him in a state as free from the effects of medication as he would be after seven days, unless there is evidence that he was in such a state at the time of the crime"). In our case, defendant had received a considerable amount of treatment in the 2-1/2 years from the time of the shootings until the time of trial, and had lapsed in and out of mental competency several times. Proofs taken below also revealed that defendant had ingested a considerable quantity of Valium at the time the crimes were committed. Under these circumstances, the probative value of defendant's demeanor at trial was attenuated. As in Jojola and Ake, the jury was apprised of the fact and effect of defendant's medication. Since it was a matter of speculation how nearly defendant in an undrugged state at trial would reflect his *146 mental state at the time of the offenses, we believe that informing the jury of his drugged condition adequately protected his right to testify.
V
DEFENDANT'S REMAINING ISSUES.
The last three issues raised by defendant do not require extended discussion.
Our review of the record convinces us that sufficient evidence was presented by the prosecution to survive a motion for a directed verdict as to the first-degree murder counts involving defendant's parents. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). Premeditation and deliberation could be inferred not merely from the characteristics of the slayings, but from defendant's words and actions prior to and subsequent to the deaths of Ronald and Jeannette Hardesty.
Defendant's next contention, that the guilty but mentally ill verdict deprived him of his right to a fair trial by encouraging jury compromise, has been previously considered and rejected by this Court. People v Delaughter, 124 Mich App 356; 335 NW2d 37 (1983); People v Thomas, 96 Mich App 210; 292 NW2d 523 (1980).[1]
Finally, the jury's finding that defendant was mentally ill at the time of the offenses was not inconsistent with the finding of malice, premeditation, or specific intent. People v Broadnax, 111 Mich App 46, 52-53; 314 NW2d 522 (1981), lv den 412 Mich 936 (1982). See also People v Hamm, 120 Mich App 388; 328 NW2d 51 (1982), lv den 417 Mich 1016 (1983).
*147 Affirmed.
SHEPHERD, P.J., concurred.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] The entire issue of the constitutionality of the guilty but mentally ill verdict is presently on appeal in the Supreme Court and defendant will be free to take appropriate steps after that issue has been resolved. See People v Bruce Ramsey, 89 Mich App 468; 280 NW2d 565 (1979), lv gtd 414 Mich 864 (1982).
S.D. BORMAN (concurring).
I concur. Appellant's argument that he should have been allowed to testify free of the effects of the antipsychotic drugs which rendered him competent is a very compelling one. A practical alternative may lie in allowing the defendant to present a video tape deposition of testimony given by him prior to trial in a drug-free state. In this way, the defendant could present probative evidence of his insanity through his manner and demeanor on the witness stand. This would preserve his right to be tried while mentally competent and, at the same time, recognize the state's interest in courtroom safety and order.
I find no error in the case at bar however because the evidence revealed that defendant was not, in fact, in a drug-free state at the time the crimes were committed. Moreover, the testimony he gave at his trial revealed a picture of a severely disturbed individual even while under the influence of psychotropic drugs.
I agree that this issue will have to be resolved on a case-by-case basis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540917/ | 155 B.R. 418 (1993)
In re EL PASO REFINERY, L.P., Debtor.
Bankruptcy No. 92-13446FM.
United States Bankruptcy Court, W.D. Texas, Austin Division.
May 26, 1993.
Charles A. Beckham, Jr., Kemp, Smith, Duncan & Hammond, P.C., El Paso, TX, for debtor.
Adrian M. Overstreet, Overstreet, Winn & Edwards, P.C., Austin, TX, for examiner.
Don Williams, I.R.S., Austin, TX, for IRS.
MEMORANDUM OPINION ON RESPONSE OF UNITED STATES OF AMERICA TO APPLICATION OF DEBTOR TO EMPLOY WRIGHT KILLEN & CO. AS TECHNICAL AND INDUSTRY CONSULTANTS, NUNC PRO TUNC
FRANK R. MONROE, Bankruptcy Judge.
On April 15, 1993, the Court held a hearing on the Response of United States of *419 America ("Response") to Application of Debtor to Employ Wright Killen & Co. as Technical and Industry Consultants, Nunc Pro Tunc ("Nunc Pro Tunc Application"). This is a core matter under 28 U.S.C. § 157(b)(2)(A) as it deals with the administration of this estate. As such, it is a matter which arises under Title 11. Therefore, this Court has jurisdiction to enter a final order disposing of the merits of the matter pursuant to 28 U.S.C. § 1334(a) and (b), 28 U.S.C. § 151, 28 U.S.C. § 157(a) and (b)(1) and the standing Order of Reference existing in this District. Pursuant to Bankruptcy Rules 7052 and 9014, this Memorandum Opinion shall constitute Findings of Fact and Conclusions of Law upon which the ruling of the Court is based.
Findings of Fact
1. On October 23, 1992, the debtor filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. The debtor's business was the operation of a high conversion gasoline refinery located in El Paso, Texas.
2. Wright Killen & Company ("Wright Killen") is a process industry management and engineering consulting firm from Houston, Texas.
3. Prior to the bankruptcy filing, Wright Killen provided technical assistance and assisted in the valuation of the refinery. These services, which were unrelated to the filing, resulted in Wright Killen being paid $32,681.45 by the debtor on or about October 14, 1992.
4. The debtor also agreed with Wright Killen to employ it for work anticipated to be needed after the filing, including the rendering of technical assistance and advice regarding operating, shutting down, maintaining and budgeting for the refinery. In addition, Wright Killen was to provide assistance to the Debtor on asset valuation matters, restructuring of the debtor's assets and operations, and an analysis of pertinent industry issues. Wright Killen was given a retainer in the sum of fifty thousand dollars ($50,000.00) by the debtor on or about October 20, 1992, to secure this post-petition work.
5. Wright Killen provided copies of its employment contract to Andrews & Kurth, L.L.P. ("Andrews & Kurth") debtor's counsel, so that counsel could file an application seeking Court authorization to employ Wright Killen. However, Andrews & Kurth never filed the application.
6. In reliance on counsel's representations and assurances that they would take care of filing the application to employ, Wright Killen performed those services requested of it by the debtor from approximately October 14, 1992, through the first week of December 1992.
7. On or about November 2, 1992, shortly after the bankruptcy commenced, the Court conducted hearings and heard testimony regarding the operation of the refinery and the debtor-in-possession's request to use cash collateral. The Court denied the request and found that it was in the best interests of the creditors of this estate for refinery operations to be shut down by January 1993. That shut down subsequently occurred.
8. Wright Killen advised the debtor regarding the shut down process to employ and monitored the same to ensure that it was conducted safely and in a manner that preserved the value of the refinery equipment.
9. Wright Killen ceased providing services to the debtor as of the end of December 1992.
10. On January 20, 1993, the debtor-in-possession replaced Andrews & Kurth with its current counsel, Kemp, Smith, Duncan & Hammond, P.C. ("Kemp, Smith").
11. On February 2, 1993, the Examiner filed a Motion to Require Professionals to Seek and Obtain Authorization for Employment or Return Monies to the Debtor ("Motion"). An expedited hearing on the Motion was held on February 16, 1993. Pursuant to that hearing, an Order Granting the Motion with conditions ("Order") was entered in the case on February 26, 1993. The Order required Wright Killen to file an application to employ within twenty (20) days of the Order or return eighty-two *420 thousand six hundred and eighty-one dollars and forty-five cents ($82,681.45).
12. On March 8, 1993, the debtor-in-possession filed this Nunc Pro Tunc Application seeking authority to hire Wright Killen.
13. On March 16, 1993, the Internal Revenue Service filed its Response to the Nunc Pro Tunc Application.
14. Wright Killen has agreed with the Examiner appointed in the case that it will perform no further services except upon his written consent.
Conclusions of Law
An agreement between Wright Killen, the Examiner, and Bank Brussels Lambert has resolved all other objections to the Nunc Pro Tunc Application. Only the IRS' objection remains. The IRS contends that Wright Killen is not entitled to be employed under 11 U.S.C. § 327 as they are not a "disinterested" party since they received payment of $32,681.45 for pre-bankruptcy work unrelated to the filing on or about October 14, 1992. However, the IRS failed to place evidence in the record to establish that this payment is a voidable preference under § 547 of the Bankruptcy Code. For all we know the payment may have been made contemporaneously with the issuance of the invoice and may have been made in accordance with industry custom and that of the parties.
Wright Killen's Disclosure of Compensation Affidavit filed in connection with this Nunc Pro Tunc Application states that Wright Killen had previously been employed by the debtor and that at the time of the filing the debtor was not indebted to Wright, Killen. Whether Wright Killen received a preferential payment is simply not determinable from the record. It is, however, undisputed that Wright Killen was not a creditor of this estate at the time this bankruptcy was filed. As such, this Court concludes that as of October 23, 1992, Wright Killen was a "disinterested" party entitled to be employed under 11 U.S.C. § 327.
The IRS next objects on the basis that the services performed by Wright Killen post-petition were not authorized by the Court and Wright Killen knew it. Further, the IRS alleges that a portion of these services were of no benefit to the estate because they went beyond the scope of the services necessary to the shut-down, i.e. they included advice and counseling on refining, operating, modeling, planning and scheduling, restart, and industry business and market conditions. The lack of benefit argument is premature. That should be taken up with regard to any request for fees that Wright Killen may make. It is inappropriate to consider now.
Wright Killen admits it performed work for the debtor-in-possession at a time when it knew it had not been authorized by the Court to be retained. The IRS's position is that this alone is sufficient cause to deny Wright Killen's Nunc Pro Tunc Application. The IRS cites three cases in support of its argument, In re Yeisley, 64 B.R. 360 (Bankr.S.D.Tex.1986); In re Eastern Inns of New Hampshire, Inc., 72 B.R. 418 (Bankr.Me.1987); In re Prime Foods of St. Croix, Inc., 80 B.R. 758 (D.C.V.I.1987).
The cases are not on point. In Yeisley the nunc pro tunc application of the auctioneer was denied by the Court because the auction was never conducted as the property was sold by private treaty. Further, the Court found that the services that were performed by the auctioneer could and should have been performed by the Trustee as part of his required duties.
In the case at hand Wright Killen performed the services for which it seeks to be retained and they were special services which the debtor-in-possession could not itself perform because it lacked the expertise necessary to do so.
In Eastern Inns the movant sought concurrent approval from the Court of both the nunc pro tunc application of the realtor and his request for compensation. The Court held that both must be denied as there was no benefit to the estate where the property was actually sold by a third party.
Here, there is no dispute that Wright Killen actually did the work the debtor-inpossession *421 requested of it. And, as previously noted, the issue of benefit is more appropriately taken up with regard to any fees that Wright Killen may request.
The last case cited by the IRS is Prime Foods. In that case there were two attorneys before the Court. One, as general counsel for the debtor, sought nunc pro tunc approval of his employment application and fees. The other, special counsel to the debtor, sought only nunc pro tunc approval of his fees. The Court denied the fees of the second attorney en toto. Although he labeled himself a bankruptcy specialist, he had never sought nor obtained Court approval of his employment. To make matters worse, he had received his legal fees from the debtor without any disclosure to the Court or any application for fees being filed. The first attorney did seek nunc pro tunc approval of his employment as attorney for the debtor. The Court denied retroactive approval of his employment because the only "extraordinary circumstance" presented by the applicant was that he believed that no application was necessary. The Court found this excuse was insufficient and did not qualify as "extraordinary".
Here, Wright Killen did know that they were required to obtain Court approval of their application for employment and they timely prepared the paperwork necessary for their application to be filed and delivered it to the debtor-in-possession's attorneys, Andrews & Kurth, who assured them that the application would be properly filed by them. Reasonably relying on these assurances, Wright Killen performed the services for which it had contracted with the Debtor. The application, however, was never filed. The reason it was never filed was due solely to the failure of Andrews & Kurth to act as they represented they would. The attorneys in Prime Foods were responsible for their own failure to timely file their requisite employment applications. Here, Wright Killen was not responsible for their application not being filed. Andrews and Kurth was. It would be unjust and improper to penalize Wright Killen for the failure of Andrews & Kurth to perform their duties.
The applicable cases in the Fifth Circuit regarding nunc pro tunc employment applications are Matter of Triangle Chemicals, 697 F.2d 1280 (5th Cir.1983), In re MortgageAmerica, 831 F.2d 97 (5th Cir. 1987), and In re Anderson, 936 F.2d 199 (5th Cir.1991).
Triangle Chemicals established that there is no per se rule that compensation must be denied regardless of benefit to the estate where the applicant had failed to obtain prior court authorization of employment. Specifically it stated that,
". . . the bankruptcy court retains equitable power in the exercise of its sound discretion, under exceptional circumstances, to grant such approval [for employment] NUNC PRO TUNC, upon proper showing, and to award compensation for all or part of the services performed by such attorney that have subsequently benefited the debtor's estate and, consequently, its creditors."
Triangle Chemicals, 697 F.2d at 1289.
In MortgageAmerica and Anderson the Fifth Circuit has reiterated its position in Triangle Chemicals that,
". . . NUNC PRO TUNC orders are allowed in bankruptcy proceedings where the judge feels that the circumstances require it, as a result of a previous oversight or omission."
MortgageAmerica, 831 F.2d at 99.
Conclusion
Applying that standard to this case the Court finds that the failure of Wright Killen to obtain the necessary court approval of their employment application was due solely to the omission of debtor's counsel. If Wright Killen's application had been timely filed it would have been routinely granted. Under these circumstances equity and good conscience require approval of Wright Killen's Application nunc pro tunc.
An Order of even date herewith will issue authorizing Wright Killen's employment nunc pro tunc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1602840/ | 577 So.2d 155 (1991)
Leroy VALET
v.
CITY OF HAMMOND and ABC Insurance Co.
John GERAGE and Katherine Gerage
v.
Leroy VALET and State Farm Mutual Automobile Insurance Company.
Nos. CA 89 1835, CA 89 1836, CA 90 1197 and CA 90 1198.
Court of Appeal of Louisiana, First Circuit.
March 5, 1991.
*157 Gordon W. Matheny, Chris Moody, Hammond, for John & Katherine Gerage.
Tom H. Metheny, Hammond, Dermot S. McGlinchey, Margaret Diamond, James M. Garner, New Orleans, for City of Hammond.
Adrianne Baumgartner, Covington, for Leroy Valet.
Before LOTTINGER, SHORTESS and CARTER, JJ.
LOTTINGER, Judge.
The City of Hammond (Hammond) suspensively appeals two separate judgments rendered against it in the second of two consolidated cases arising from a head-on collision automobile accident. Both appeals will be considered in this opinion.
The first judgment appealed by Hammond (CA 89 1835-1836) was the granting of Mr. Leroy Valet's peremptory exception raising the objection of res judicata and/or motion for summary judgment, and the dismissal of Hammond's third party claim *158 for indemnity against Mr. Valet.[1] Mr. Valet has answered this appeal seeking damages for frivolous appeal.
The second judgment appealed by Hammond (CA 90 1197-1198) was rendered after trial on the merits of the Gerages' claim. The trial court held that Hammond was liable to the Gerages under both the theories of negligence and strict liability, and apportioned fault at ninety percent to Hammond and ten percent to Mr. Valet. The trial court assessed Mr. Gerage's damages as $417,445.07, and Mrs. Gerage's damages as $35,000.00.[2]
FACTS
On March 11, 1986, at approximately 12:00 noon, Mr. Valet was driving his pickup truck 35 to 40 m.p.h. in an easterly direction on C.M. Fagan Drive within the city limits of Hammond. As he entered a slight left hand curve on Fagan Drive, the right wheels of his vehicle inadvertently left the paved portion of the highway on the right side.
When Mr. Valet realized that his right wheels had left the paved portion of the highway, he did not apply his brakes or wait for his vehicle to slow down, but rather tried to get back onto the highway immediately. There were no obstructions on the shoulder nor any other exigent circumstances which necessitated an immediate return to the paved portion of the highway.
When Mr. Valet attempted to pull back onto the highway, his tires encountered a seven inch drop-off from the paved portion of the road down to the shoulder. The steep drop-off caused Mr. Valet's tires to skid along the edge of the pavement for a short distance before climbing onto the highway. This caused the rear of the truck to swing around to the right, or fish-tail, as it came back onto the road.
Mr. Valet then lost control of his truck, crossed the center line into the west-bound lane, and struck a west-bound vehicle, driven by Mr. Gerage, head-on. Mr. Valet did not see the drop-off before he tried to get back on the highway. Both Mr. Valet and Mr. Gerage were alone in their respective vehicles at the time of the accident.
Mr. Valet suffered serious, permanent and disabling injuries to his body, particularly to his chest and jaw. Mr. Gerage was pinned against his steering wheel for at least twenty minutes following the accident and had to be extricated from the vehicle by emergency personnel using a device called "the jaws of life." He suffered severe injuries to his entire body, especially to his head, and spent a total of nine days in the hospital, including three days in intensive care, following the accident.
The drop-off encountered by Mr. Valet as he attempted to re-enter the highway existed because of some combination of improper shoulder construction and/or improper maintenance of the shoulder. Construction of C.M. Fagan Drive began in 1981 under contract from the City of Hammond, and the road was opened to the public in December of 1982. However, the shoulder work was never completed to the City of Hammond's specifications, even though the City accepted the roadway as "substantially complete", and opened it to traffic.[3]
Following the opening of the roadway to traffic, the City and its contractor became *159 embroiled in litigation which concerned, in part, the incomplete shoulders. The City and its contractor ultimately settled their differences over the construction of the roadway, but the shoulders were never completed. Instead the City placed "low shoulder" signs at various points along the road, and these were in place at the time of the accident, although it is unclear from the record if any were in the immediate vicinity of the accident. The City cites economic considerations as the reason the shoulders were not completed.
Sometime between the opening of the road in December of 1982, and the time of the accident in March of 1986, the drop-off, or rut, which contributed to the accident was formed. The evidence indicates that the steepness of the shoulder created the potential for severe erosion and that the rut was indeed caused by the erosion of the shoulder.[4]
Mr. Howard Ridgedell, the Superintendent of Streets and Parks for the City of Hammond, whose job it is to oversee the maintenance of the roads in the City of Hammond, testified that soon after C.M. Fagan Drive was completed, his crew placed shells and clay along the shoulders in various places along that road to repair erosion damage. Mr. Ridgedell testified that this repair, made soon after construction, was the only time that his crew repaired erosion damage on the shoulder of C.M. Fagan Drive. When shown the photographs of the shoulder which were introduced into evidence, Mr. Ridgedell admitted that it needed repair.
PROCEDURAL HISTORY
Two personal injury suits were filed as a result of this accident. On June 23, 1986, Mr. Valet filed suit against Hammond and the ABC Insurance Company[5]("Valet v. City of Hammond"). Hammond filed a third party demand against Mr. and Mrs. Gerage for indemnity or contribution in this suit. On October 8, 1986, the Gerages filed suit against Mr. Valet and State Farm ("Gerage v. Valet"). The Gerages sued State Farm in its capacity as the Gerages' uninsured motorist carrier and Valet's liability insurer. This suit was later amended to add Hammond as a defendant.
Valet v. City of Hammond was tried on the merits on February 25, 1987. The trial court apportioned one hundred percent of the fault for the accident to the City of Hammond and held them liable to Mr. Valet. A judgment was entered on July 8, 1987 in favor of Mr. Valet and against Hammond. From this judgment, Hammond appealed suspensively, and Mr. Valet appealed devolutively. Thereafter, a settlement was reached between Mr. Valet and Hammond, and a joint motion to dismiss the two appeals in Valet v. City of Hammond was filed on July 8, 1988.
Meanwhile, on April 20, 1987, Valet v. City of Hammond and Gerage v. Valet were consolidated on motion of Mr. Valet and State Farm. Then, in May 1987, prior to the judgment rendered in Valet v. City of Hammond, the Gerages entered into a settlement agreement with Mr. Valet and State Farm, thereby releasing their claims against these two parties in consideration for $25,000. The Gerages filed a limited motion to dismiss Mr. Valet and State Farm in June of 1987. Pursuant to this motion, Mr. Valet and State Farm were *160 dismissed, with prejudice, as defendants in Gerage v. Valet.
On March 21, 1989, Hammond amended its answer in Gerage v. Valet, to include a demand for contribution from Mr. Valet. Mr. Valet asked that Hammond voluntarily dismiss its third party demand against him since the settlement agreement had released him of any further liability. Hammond refused to dismiss its third party claim voluntarily. Thus, on July 17, 1989, Mr. Valet filed a peremptory exception raising the objection of res judicata and/or a motion for summary judgment as to Hammond's third party claim for contribution against Mr. Valet.
Hammond contended that it was not a party to the settlement agreement between the Gerages, Mr. Valet and State Farm, nor was it informed of the existence of such agreement. Mr. Valet contended that Hammond was informed of the settlement agreement and that Hammond was provided copies of the releases shortly after the settlement in 1987 and again after the third party demand was filed in March 1989.
On August 7, 1989, the trial court granted the peremptory exception raising the objection of res judicata and/or motion for summary judgment, and dismissed, with prejudice, Hammond's third party claim for contribution against Mr. Valet in Gerage v. Valet. From this judgment, Hammond has filed the first of the instant suspensive appeals. Mr. Valet answered this appeal, and seeks damages for frivolous appeal.
On September 12, 1989, the trial court, over Hammond's objection, proceeded with a trial on the merits of the Gerages' claims against Hammond in Gerage v. Valet,[6] The trial court found that the City of Hammond had the exclusive care, custody, and control of the roadway in question; that the shoulder near the scene of the accident was defective or unreasonably dangerous for normal use; that the City of Hammond had actual knowledge of the defective condition yet failed to correct it; and that the defect was a substantial factor in causing the accident and resulting damage to Mr. Gerage.
The trial court held that the City of Hammond was liable to the Gerages both in negligence and strict liability. It apportioned fault at ninety percent to the City of Hammond, and ten percent to Mr. Valet. Judgment was entered for the amount previously set forth above in favor of the Gerages and against Hammond on February 22, 1990.
VALET v. CITY OF HAMMOND
APPEAL NO. CA 89 1835-1836
Hammond's first appeal is limited to the following issues: (1) whether the trial court's ruling on Mr. Valet's peremptory exception raising the objection of res judicata and/or motion for summary judgment was in error, and (2) whether the trial court erred by proceeding with a trial on the merits after the trial judge had signed an order of suspensive appeal. In answering the appeal, Mr. Valet seeks damages for frivolous appeal.
DISMISSAL OF THE THIRD PARTY DEMAND
The issue here is whether the Gerages' settlement with and release of Mr. Valet and his insurer, State Farm, precludes Hammond from seeking contribution or indemnity from Mr. Valet. The parties to the settlement agreement were the Gerages, Mr. Valet and State Farm. Hammond contends that it should not be precluded from suing Mr. Valet for contribution for the claims of the Gerages because of an existing settlement agreement to which it was not a party. Additionally, Hammond contends that the settlement agreement did not have the effect of completely releasing Mr. Valet and State Farm from any further proceeding, especially since Hammond had not even received notice of the release.
La.Civ.Code art. 1803 sets forth a remedy for a solidary obligor who may be disadvantaged as a result of an obligee's decision to settle with another solidary obligor. *161 La.Civ.Code art. 1803 provides in pertinent part:
Remission of debt by the obligee in favor of one obligor, or a transaction or compromise between the obligee and one obligor, benefits the other solidary obligors in the amount of the portion of that obligor.
According to this article, the solidary obligor who has not settled with the obligee is entitled to have the obligee's recovery reduced by the amount of the released obligor's portion of fault or liability. When an obligee settles and releases a solidary obligor, the remaining solidary obligors are deprived of their right to contribution against the solidary obligor who has been released. This is a well settled rule and was first established in Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir.1964). See, Recard v. Trinity Universal Insurance Co., 503 So.2d 519 (La.App. 3rd Cir.), writ granted, 506 So.2d 105 (La.1987), dismissed by joint motion 509 So.2d 1011 (La.1987); Garrett v. Safeco Insurance Company, 433 So.2d 209 (La.App. 2nd Cir.1983).
Pursuant to Article 1803, any right that Hammond may have had against Mr. Valet in contribution was lost as a result of the Gerages' release of Mr. Valet. Since Hammond no longer had a right to contribution from Mr. Valet, the third party claim for contribution filed by Hammond was without merit. Therefore, the trial court did not err in granting the peremptory exception raising the objection of res judicata and/or motion for summary judgment and dismissing Hammond's third party claim against Mr. Valet.
However, La.Civ.Code art. 1803 provides Hammond with an equitable remedy. Under the terms of this article, Hammond is entitled to have the trial court determine Mr. Valet's percentage of fault in causing the accident, and is then entitled to have the amount of the Gerages' award reduced by the percentage of negligence assessed to Mr. Valet, the released obligor. This is exactly what the trial court did. This assignment of error lacks merit.
TRIAL COURT'S JURISDICTION OVER THE MAIN DEMAND
Hammond next contends that the trial court erred in proceeding with a trial on the merits in the main demand once an order granting this suspensive appeal was signed. Pursuant to La.Code Civ.P. art. 2088[7] Hammond argues that the trial court was divested of jurisdiction from the moment that the trial judge signed the motion and order for suspensive appeal.
Hammond argues that the circumstances of this case do not fall under any of the enumerated situations set forth in La.Code Civ.P. art. 2088; therefore, jurisdiction over this case vests with the court of appeal *162 rather than the trial court once the motion and order for suspensive appeal was signed.
La.Code Civ.P. art. 2088 is not drafted as narrowly as Hammond would have this court believe. The statute specifically provides that the trial court's jurisdiction is divested only as to those matters that are "reviewable under the appeal." The trial judge granted Mr. Valet's peremptory exception raising the objection of res judicata and/or motion for summary judgment and dismissed the third party claim filed by Hammond against Mr. Valet. The granting of this exception/motion and the dismissal of Mr. Valet, together with the issue of whether the trial court retained jurisdiction over the merits of the main demand were the only matters appealed in CA 89 1835-1836.
The merits of the main demand filed by the Gerages are not reviewable by this court in CA 89 1835-1836. Hammond itself specifically points this out in its original and supplemental briefs. "This appeal is on the very narrow issues of the judgment of August 7, 1989 together with the issue of the error of the trial court in proceeding with the case." Hammond's original brief in CA 89 1835-1836 at p. 5. "The issues of law concerning fault and the exorbitant financial judgment would be more appropriate at another time." Hammond's supplemental brief in CA 89 1835-1836.
According to La.Code Civ.P. art. 2088, only those matters that are "reviewable on appeal" are removed from the jurisdiction of the trial court. In Hammond's appeal from the trial court's dismissal of its third party demand for contribution, only those issues posed by the judgment granting the peremptory exception raising the objection of res judicata and/or motion for summary judgment and dismissing the third party demand for contribution are subject to review by this court on appeal.
The judgment appealed from did not touch upon or adjudicate any of the Gerages' claims against Hammond. Since the trial court was divested of jurisdiction only as to the issues which were the subject of the judgment appealed from, the trial court maintained jurisdiction over the merits of the main demand and did not err in proceeding with a trial on the merits once it signed the motion and order for suspensive appeal.
Furthermore La.Code Civ.P. art. 1915[8] allows the trial court to render a partial final judgment and retain jurisdiction over the remaining issues in the case. The August 7, 1989 judgment granting the peremptory exception raising the objection of res judicata and/or motion for summary judgment and dismissing the third party demand was such a partial final judgment, and the trial court retained jurisdiction to resolve the remaining issues in the case. Neither La.Code Civ.P. art. 2088 nor La. Code Civ.P. art. 1915 dictate that the trial court stay any further proceeding in the Gerages' main demand for damages against Hammond as a result of this appeal. This assignment of error lacks merit.
Not only does this issue lack merit, but it is also well settled as evinced by this court's decision in Welch v. Crown-Zellerbach Corp., 365 So.2d 586 (La.App. 1st Cir.1978), where the effects of La.Code *163 Civ.P. art. 2088 in conjunction with La.Code Civ.P. art. 1915 were discussed:
This article [2088] is to be understood to divest the trial court of jurisdiction over the case when the appeal is taken only with respect to those matters which are reviewable under the appeal. Therefore, since the January 24, 1977 judgment mentioned only the sustaining of peremptory exceptions and the dismissal of plaintiff's suit as to Crown Zellerbach, it was the only matter reviewable on appeal and therefore only this fell under the divesting effect of CCP Article 2088. Walker v. Jones, 257 La. 404, 242 So.2d 559 (1970).
While we appreciate the problems involved in this lengthy and procedurally complicated case, we find that the trial court was not divested of jurisdiction as to Campbell's and Southern's exception when Welch was granted its devolutive appeal as to the sustaining of Crown Zellerbach's peremptory exceptions.
Welch, 365 So.2d at 590.
This rule is similarly applicable where a suspensive appeal is taken:
In this suspensive appeal the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, "on the timely filing of the appeal bond."
Guilliot v. City of Kenner, 326 So.2d 359, 362 (La.1976) (emphasis added).
ANSWER TO APPEAL NO. CA 89 1835-1836
Mr. Valet, by way of answer, seeks damages for frivolous appeal, arguing that this appeal, if not the filing of the third party demand, by Hammond is in bad faith and frivolous. Damages for frivolous appeal are authorized in La.Code Civ.P. art. 2164.[9] The courts have been very reluctant to grant damages under this article as it is penal in nature and must be strictly construed.
Appeals are favored and damages for frivolous appeal will not be awarded unless it manifestly appears that appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Jackson v. East Baton Rouge Par. Sch. Bd., 348 So.2d 739 (La.App. 1st Cir.1977). Even though, in our opinion, the instant appeal lacks serious merit, we cannot say that the appeal was taken solely for delay or that plaintiff's counsel did not seriously and earnestly believe in and advocate plaintiff's position.
Weatherall v. Department of Health and Human Resources, 432 So.2d 988, 997 (La. App. 1st Cir.), writ denied, 437 So.2d 1150 (1983).
Under the court's analysis in Weatherall, we must first determine if the appeal lacks merit. The rule concerning an obligor's right to contribution against a solidary obligor who has been released by the obligee has been settled since Harvey v. Travelers Insurance Company. The obligee's act of settling and releasing a solidary obligor deprives the remaining solidary obligors of their right to contribution against the solidary obligor who has been released.
The foundation of Hammond's argument is that its right to contribution survived the Gerages release of Mr. Valet because it was not a party to the release agreement. Hammond was unable to cite any support for its position because the existing law and jurisprudence are to the contrary. Hammond's sole remedy at law is to have the trial court proportionately reduce the Gerages' award by the percentage of fault attributable to Mr. Valet. Considering the jurisprudence and La.Civ.Code art. 1803, this court finds that the trial court dismissal was proper and any claim to the contrary is without serious merit.
In addition to finding that the appeal lacks serious merit, the court must find *164 that the appeal was taken solely for delay or that the appealing counsel does not seriously believe in the position he advocates. Hammond's second assignment of error indicates this appeal was taken in hopes of staying the trial court proceeding at least until the appeal is decided by this court. A review of Hammond's brief on the issue of the dismissal of the third party demand raises no legitimate issues. It does not even discuss the applicable law. It is obvious that Hammond had no basis in the law other than to attempt to delay the trial of the Gerages' claims. Considering Hammond's failure to support the position it advances, it is difficult for this court to find that counsel for Hammond was serious in advocating his position. Therefore, we will grant Mr. Valet's demand for attorney's fees under La.Code Civ.P. art. 2164.
GERAGE V. VALET
APPEAL NO. CA 90 1197-1198
In this appeal from the final judgment of the trial court after a trial on the merits of the Gerages' claim, Hammond urges seven specifications of error. However, there are only three basic issues presented in this appeal, and the seven specifications of error are merely different arguments on one or another of these three issues. The issues are: (1) the liability of the City of Hammond to the Gerages, (2) the apportionment of fault between the City of Hammond and Mr. Valet, and, (3) the quantum of the damages awarded to the Gerages.
LIABILITY OF THE CITY OF HAMMOND
By specification of errors one, two, and three, Hammond contends that the trial court erred in finding that the shoulder was defective, that Hammond had actual or constructive knowledge of the defect and failed to remedy it within a reasonable time, and that the defect was a causative factor in the accident and resulting injuries. In specification of error six, Hammond contends that it is immune from liability to the Gerages based on La.R.S. 9:2798.1, the discretionary function exception to governmental tort liability, and that it was error for the trial court not to consider this statute.
ARTICLE 2315/2317 LIABILITY
The trial court held Hammond liable to the Gerages based on both negligence and strict liability. Since the enactment of La.R.S. 9:2800, the elements which must be proved in order for a plaintiff to recover damages from a public entity defendant based on the defective condition of a roadway are the same whether based on negligence or strict liability.[10] The plaintiff must prove under either theory that: (1) the defendant owned or had custody of the thing which caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive knowledge of the defect or risk of harm posed thereby and failed to take corrective action within a reasonable time; and, (4) causation.
The trial court found all four of the above elements were proven by the plaintiff. Hammond contends the trial court erred in all but the first of these findings. These findings by the trial court that the shoulder of C.M. Fagan drive was defective, that Hammond knew of the defect but failed to repair it within a reasonable time, and that the defective shoulder was a substantial factor in causing the accident, are findings of fact which will not be set aside on appeal absent manifest error. Rosell v. Esco, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
*165 We cannot say that the finding by the trial court, that the shoulder of C.M. Fagan Road was defective or unreasonably dangerous for normal use, was manifestly erroneous. The shoulder in question had a drop-off, or rut, over one hundred feet long and from four to seven inches deep. All of the experts testified that this was a dangerous condition, and we agree that this much of a drop-off clearly constitutes a defective or unreasonably dangerous condition.
Nor is the trial court's finding that Hammond knew of the defect and failed to remedy it within a reasonable time manifestly erroneous. After the road was built and accepted as substantially complete, the City of Hammond withheld final payment to its contractor in part because the shoulders had not been completed to its satisfaction or specifications. The contractor sued for the balance owed under the contract, and Hammond ultimately settled with the contractor.
However, instead of completing the shoulders, Hammond chose merely to erect "low shoulder" signs along the road. It is obvious from the placement of the "low shoulder" signs and the litigation involving the incompleted shoulders, that Hammond was aware that the shoulders did not meet the specifications called for in the contract.
Even though Hammond knew of the substandard nature of the shoulders of C.M. Fagan Drive, it made no attempt to repair them except to erect "low shoulder" signs. While the placement of these signs may have been sufficient to warn of a steeply sloping, narrow shoulder, they were not sufficient to warn of the steep drop-off that existed between the pavement and the shoulder near the scene of the accident.
Additionally, the City of Hammond knew of the potential for erosion along the shoulder and that erosion did in fact occur, as evinced by the repairs to correct erosion damage soon after the road was constructed. Yet from the time these repairs were made, "soon after" construction was completed, no additional erosion repairs were made until the time of this accident, although erosion was obviously occurring.
The finding by the trial court that the drop-off was a substantial cause of the accident was also not manifestly erroneous. Mr. Valet testified that he lost control of his vehicle when his right wheels encountered the drop-off. The police officer who investigated the accident testified as to the existence of a "pretty good drop-off" where Mr. Valet came back onto the road, and there were "scuff marks" left by his tires extending from the drop-off to the point of impact. Additionally, all of the accident reconstruction/road design experts testified that the drop-off contributed to Mr. Valet's loss of control of his vehicle. Hammond's specifications of error one, two, and three lack merit.
LA.R.S. 9:2798.1
By its specification of error number six, Hammond contends[11] it is immune from tort liability in this case pursuant to the discretionary function exception to tort liability applicable to governmental entities, La.R.S. 9:2798.1. This statute provides:
A. As used in this Section, "public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based on the exercise or performance or the failure to exercise or perform their *166 policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.
Hammond argues that its decision to accept C.M. Fagan Drive as substantially complete, and open it to the public, notwithstanding the substandard nature of its shoulders, was a discretionary governmental function, and it is therefore immune from liability arising from defects in the shoulder pursuant to La.R.S. 9:2798.1. In other words, Hammond argues this statute provides tort immunity to a governmental entity for injuries arising out of a defective roadway where the governmental entity makes a conscious decision to build, or accept from the contractor, a defective roadway.
While this is, in our opinion, a questionable proposition, it is one that we need not decide. The trial court specifically held Hammond liable based on its failure to maintain the shoulder, not on its decision to accept a substandard shoulder. The trial court stated in its written reasons that: "the operative fault of the City stems from its not properly maintaining the road shoulderand does not stem from the discretionary act of Hammond City officials accepting from the contractor a clearly substandard roadway."
It was the drop-off from the pavement to the shoulder which constituted the defect upon which the trial court based Hammond's liability. It is true that the erosion which created the drop-off was exacerbated by the lack of sufficient shells and the steep slope of the shoulder, but the testimony of the City's engineer was that when the road was accepted and opened to the public, the shoulders were flush with the edge of the asphalt. The trial court based Hammond's liability on its failure to properly maintain the shoulders and repair the erosion damage, not on its acceptance of defective shoulders.
The City of Hammond has a legal duty to maintain the shoulders of all non-state highways within its jurisdiction in a reasonably safe condition. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Moon v. City of Baton Rouge, 522 So.2d 117 (La.App. 1st Cir.), writ denied, 523 So.2d 1319, 1320, 1327 (La.1988); Keith v. Bearden, 488 So.2d 1071 (La.App. 2nd Cir.1986), amended and affirmed on other grounds, 498 So.2d 706 (La.1988). This duty includes the leveling of the shoulders when they become too low. Moon, 522 So.2d 117. C.M. Fagan Drive is within the city limits of Hammond, it was built by the City of Hammond, it is not a state highway, and neither the State nor any other governmental entity has assumed the responsibility for its maintenance. The duty to maintain its shoulders rests squarely on the City of Hammond.
This duty is one imposed by law on the City of Hammond. Whether or not to assume the duty to maintain the roads within their jurisdiction is not a policy-making or discretionary function of the City of Hammond. There is simply no decision to be made; the duty to maintain the roads in a reasonably safe condition exists depending on the location and classification of the particular road involved. A municipality such as the City of Hammond, or the DOTD for that matter, cannot decide what level of maintenance to provide; it must maintain the road in a reasonably safe condition. Failure to do so results in liability to those injured by the unreasonably dangerous condition.
*167 Of course, the decision to repair or perform maintenance on a particular road, and the extent of the repairs or maintenance, is a decision which the authority responsible for the upkeep and maintenance of that road, in this case the City of Hammond, must make. However, this is an operational decision, not a policy-making or discretionary function decision for which La.R.S. 9:2798.1 provides immunity.
The policy, i.e., to maintain the shoulders in a reasonably safe condition, has been made by the legislature. La.R.S. 48:35. Any decision made by Hammond regarding the maintenance of the shoulders of roads within its jurisdiction is operational in nature; such a decision merely implements, to one degree or another, the policy decision of the legislature. Operational decisions are not considered to be "discretionary" within the meaning of La.R.S. 9:2798.1 and are not shielded from liability thereby. Cf., Freeman v. State, 705 P.2d 918, 920 (Alaska 1985). Hammond's specification of error number six lacks merit.
APPORTIONMENT OF FAULT
By specifications of error four and five, the City of Hammond argues that the trial court erred in its apportionment of ninety percent fault to Hammond and ten percent fault to Mr. Valet. The City contends that Mr. Valet was one hundred percent at fault in that he was negligent in running off the road in the first place, and also negligent in the manner in which he came back onto the road.
The apportionment of fault among co-tortfeasors is a finding of fact. Motton v. Travelers Insurance Company, 484 So.2d 816 (La.App. 1st Cir.1986); Gilder v. Branton, 471 So.2d 976 (La.App. 1st Cir. 1985); Efferson v. State, Department of Transportation & Development, 463 So.2d 1342 (La.App. 1st Cir.1984), writ denied, 465 So.2d 722 (La.1985). Findings of fact will not be set aside on appeal unless found to be manifestly erroneous. Rosell, 549 So.2d 840; Arceneaux, 365 So.2d 1330.
In this case, Mr. Valet ran partially off the road for no apparent reason, then immediately tried to get back on without waiting for his vehicle to slow down, notwithstanding the lack of obstructions on the shoulder immediately ahead. He then lost control of his vehicle upon reentry onto the road due to an unreasonably dangerous drop-off between the shoulder and the road. There was clearly negligence on the part of both Mr. Valet and the City of Hammond.
Mr. Valet's negligence was an active cause of the accident and subsequent injuries to Mr. Gerage, whereas, Hammond's negligence, although a substantial cause of the accident and resulting injuries, was more passive in nature. It was therefore manifest error for the trial court to assign only ten percent of the blame for this accident to Mr. Valet.
Considering the evidence, and the factors set out in Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985), it is our opinion Mr. Valet and the City of Hammond are equally to blame for this accident. Mr. Valet inadvertently allowed the right wheels of his vehicle to leave the paved portion of the road and go onto the shoulder. This was negligence, although slight negligence on his part. Mr. Valet then compounded this slightly negligent act by attempting an immediate re-entry onto the road without slowing down, even though there were no obstructions on the shoulder ahead or other exigent circumstances, and in the face of oncoming traffic.
The City of Hammond failed to adequately maintain the shoulder of the road where Mr. Valet attempted to reenter it. This lack of proper maintenance lead to the formation of the drop-off of up to seven inches between the pavement and the shoulder which caused Mr. Valet to loose control of his vehicle.
In light of the above, we apportion fault at fifty percent to Mr. Valet, and fifty percent to the City of Hammond. See, Brooks v. City of Baton Rouge/Parish of East Baton Rouge, 558 So.2d 1177 (La. App. 1st Cir.), writ denied, 566 So.2d 982 (La.1990). Accordingly, the City of Hammond is entitled to a fifty percent reduction *168 from the total amount of damages suffered by the Gerages.
QUANTUM
By specification of error number seven, Hammond contends that the trial court erred in awarding excessive general and loss of consortium damages to the plaintiffs. The trial court assessed Mr. Gerage's general damages as being $400,000.00, including impairment to earning capacity, and Mrs. Gerage's loss of consortium damages as being $35,000.00.[12]
Before an appellate court will alter the quantum of a trial court's award, the record must clearly reveal an abuse of the trier of fact's much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). A trier of fact has abused its much discretion only when the award is so excessively high or low that it shocks the conscience of the reviewing court such that it is compelled to correct the award. Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir.), writ denied, 386 So.2d 357 (La.1980).
In written reasons for judgment, as to the issue of Mr. Gerage's damages, the trial judge found as follows:
These include remaining trapped in his vehicle for at least 20 minutes, "while jaws of life" were used to extract him from his vehicle, admission to ICU and inpatient status at Westpark Hospital for 9 days, including surgery, four fractured ribs and extensive bruising of his upper limbs and trunk; lacerations of the head and hip; a closed head injury with left cerebral contusion which has caused him to suffer from amnesia, impaired vision, and double vision. He has suffered from a loss of memory and has been diagnosed as having frontal lobe pathology. Mr. Gerage exhibits "Alzheimer's-like" symptoms of disorientation and confusion which was evident to the Court (sic) as he testified and sat at counsel table. He is unable to engage in farming activities and his sex life with his wife of many years is almost non-existent. There are times when he cannot remember the names of his own family members. He suffers a gross disfigurement of his left biceps muscle area and unattractive scarring at or near the left temple and forehead area. In short, this 72 year old plaintiff has forfeited the full enjoyment in every respect of his "golden years" as a result of this accident.
The trial court did not indicate in its written reasons what part of the $400,000.00 in general damages awarded to Mr. Gerage was for lost earning capacity. However, the plaintiffs contend in their brief that the trial court awarded $25,000.00 to Mr. Gerage for loss of earning capacity, and they do not complain of that amount. Therefore, we will accept $25,000.00 as the amount awarded to Mr. Gerage for loss of earning capacity. It follows that the trial court assessed Mr. Gerage's general damages as being $375,000.00.
Mr. Gerage's pain and suffering was undoubtedly substantial, and his loss of memory is a significant and debilitating injury. Therefore, we are of the opinion that $375,000.00, though on the high side, is not grossly excessive compensation for these injuries. Also, the award of $35,000.00 to Mrs. Gerage for loss of consortium, while on the high side, is not so excessive as to shock this court into reducing it. Hanzy, 385 So.2d 355.
CONCLUSION
Therefore, for the above and foregoing reasons, the judgment of the trial court granting Mr. Valet's peremptory exception of res judicata and/or motion for summary judgment and dismissing Hammond's third party claim for contribution is affirmed; and it is hereby ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Mr. Valet granting him damages for frivolous appeal in the amount of $750.00 against the City of Hammond.
Additionally, for the above and foregoing reasons, the judgment of the trial court is *169 amended insofar as the apportionment of fault between the parties is concerned; and it is hereby ORDERED, ADJUDGED AND DECREED that fault for the accident and resultant injuries is hereby apportioned at fifty percent to the City of Hammond and fifty percent to Mr. Valet.
Further additionally, for the above and foregoing reasons, the judgment of the trial court is affirmed insofar as the award of general damages to Mr. and Mrs. Gerage is concerned. The City of Hammond is entitled to a fifty percent reduction from these awards, due to the release of Mr. Valet.
The judgment of the trial court is affirmed in all other respects. Costs are assessed against the City of Hammond in the amount of $5,306.28.
AMENDED AND AFFIRMED AS AMENDED.
NOTES
[1] Prior to this judgment, Mr. Valet and his insurer settled with and were released by the Gerages.
[2] Mr. Gerage's damages are comprised of $17,445.07 for past and future medical expenses and $400,000.00 for general damages including impairment to earning capacity. Mrs. Gerage's damages are for loss of consortium only.
The judgment signed by the trial judge in favor of the Gerages and against the City of Hammond reflects a ten percent reduction of these awards due to the release of Mr. Valet by the Gerages. The judgment is in the amount of $375,700.57 to Mr. Gerage and $31,500.00 to Mrs. Gerage for loss of consortium.
[3] Mr. William Boden, the City of Hammond's engineer who drew up the plans and specifications for C.M. Fagan Drive, testified that when the contractor turned the road over to the City, the shoulders did not meet the specifications because they sloped down to the ditch at too steep of an angle. A report prepared by Mr. Boden in preparation for the litigation between the City and its contractor, introduced into evidence in this case, states that the shoulder was sloped so steeply that in effect the slope of the ditch began at the edge of the asphalt.
[4] Mr. William Burt, an expert in highway design, testified via deposition that the steepness of the shoulders when the road was opened created a potential for severe erosion and maintenance problems. Mr. Luther Cox, another expert in highway design, testified via deposition that from the photographs of the shoulders introduced into evidence, it appeared that the shoulders were in disrepair and in need of maintenance. Our own interpretation of these photographs is that erosion did in fact play a part in the creation of the drop-off at issue. These pictures depict the vertical edge of an asphalt road, which is several inches thick, resting on a layer of dirt several inches above the level of a sloping shell shoulder. The asphalt surface of the road extends out slightly farther than the dirt it is resting on. This indicates to us that the edge of the dirt foundation upon which the road is built has eroded away. The resulting condition is a very severe drop-off, or rut, of approximately six or seven inches between the surface of the road and the shell shoulder below.
[5] The petition was amended to add the ABC Insurance Company as a defendant.
[6] Whether or not it was proper to proceed with the trial of the Gerage's claim is an issue raised in the first of Hammond's two appeals and will be discussed below.
[7] La.Code Civ.P. art. 2088 provides:
The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.
[8] La.Code Civ.P. art. 1915 provides:
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969.
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
B. If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.
[9] La.Code Civ.P. art. 2164 provides:
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.
[10] La.R.S. 9:2800, which took effect prior to the accident at issue here, provides that before a public entity can be held strictly liable under civil code article 2317 for damages caused by a defective condition of a thing in its custody, it must have had actual or constructive notice of the defective condition that caused the damages and had a reasonable opportunity to remedy the defect but failed to do so. Since this type of notice is the only distinction between negligence under article 2315 and strict liability under article 2317; see, Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982), the elements necessary to impose liability upon a public entity based on negligence or strict liability are now the same. Griffin v. City of New Orleans, 533 So.2d 1048 (La.App. 4th Cir.1988).
[11] In addition to the extensive arguments on this issue in the briefs of the parties, the following Louisiana cities, towns, and/or consolidated governments have filed amicus curiae briefs supporting Hammond's position on the applicability and effect of La.R.S. 9:2798.1 in this case: The Cities of Abbeville, Bastrop, Bogalusa, Gretna, Natchitoches, Oberlin, Opelousas, Pineville, Ridgecrest, Ruston, Slidell, Sulphur, Thibodaux, Vidalia, Ville Platte, West Monroe, Westwego, Zachary, the Town of Mooringsport, and the City of Baton Rouge/Parish of East Baton Rouge.
[12] The actual amount awarded to the Gerages in the judgment reflects a ten percent reduction from these amounts due to the trial court's apportionment of ten percent of the fault for the accident to Mr. Valet, who settled with and was released by the Gerage's. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877683/ | 285 So. 2d 50 (1973)
Carolyn Dike NELMS, Appellant,
v.
James Q. NELMS, Appellee.
No. 73-429.
District Court of Appeal of Florida, Fourth District.
November 9, 1973.
Gordon V. Frederick, Sanford, for appellant.
Ned N. Julian, Jr., Sanford, for appellee.
DOWNEY, Judge.
This is an interlocutory appeal from an order of the trial court refusing to dissolve the marriage of the parties and ordering them to seek marriage counselling.
The wife filed her petition to dissolve the marriage because it was irretrievably broken. The husband answered admitting said allegation. The parties entered into an agreement providing for child support, possession of the home by wife and children, and other incidental matters. At final hearing the wife testified the marriage was irretrievably broken because she no longer loved her husband and could not live with him. Further inquiry developed that he had physically abused her during the marriage and that he paid little or no attention to their children; that they had spent untold hours discussing their problems, always without success; that she had suffered mental and physical abuse from him she would never forget; that he had sued her once before for divorce. The trial judge then interrogated the husband who stated essentially that at one time he had tried to get her to seek counselling without success; that in view of her steadfast position for some five months that the marriage was broken, he did not feel they could put it back together. The chancellor then announced he would require them to seek counselling in the hope the marriage might be saved. From such a judgment ordering counselling and withholding a determination as to a termination of the marriage, the wife appealed and the husband joined with her in the appeal.
It seems clear now that failure to contest the allegation that the marriage is irretrievably broken, or a stipulation that it is so broken, does not suffice. The chancellor must make that finding based upon the evidence adduced. Ryan v. Ryan, Fla. 1973, 277 So. 2d 266; Riley v. Riley, Fla. App. 1972, 271 So. 2d 181. If the evidence demonstrates the marriage is broken beyond repair he must dissolve the marriage, Carrigan v. Carrigan, Fourth D.C.A., 283 So. 2d 574, *51 opinion filed October 12, 1973, commendable as may be his efforts to effectuate a reconciliation.
Based upon the pleadings and evidence in the court below, it is our view that the chancellor abused his discretion in refusing to dissolve the marriage. Accordingly, the order appealed from is reversed with directions to enter a final judgment dissolving the marriage.
WALDEN and MAGER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440468/ | 641 S.W.2d 809 (1982)
Lou M. McCOMAS, Plaintiff-Appellant,
v.
Lee Roy UMLAUF, Defendant-Respondent.
No. 12445.
Missouri Court of Appeals, Southern District, Division One.
September 28, 1982.
Motion for Rehearing or Transfer Denied October 14, 1982.
Application to Transfer Denied December 13, 1982.
*810 Wm. C. Morgan, Waynesville, for plaintiff-appellant.
Ronald J. Fuller, Rolla, for defendant-respondent.
Motion for Rehearing or Transfer to Supreme Court Denied October 14, 1982.
TITUS, Judge.
Via a four-count first amended petition plaintiff sued to quiet title to certain described Pulaski County real estate, to enjoin defendant from trespassing thereon and for *811 damages on account of alleged past trespasses. Defendant answered and cross-petitioned in three counts for relief similar to that sought by plaintiff. The trial court entered judgment in favor of defendant on plaintiff's petition and declared plaintiff and defendant respectively to be the owners of certain described adjoining real estate. The judgment also dismissed counts II, III and IV of plaintiff's petition and counts II and III of defendant's cross-petition. Plaintiff appealed.
Dexheimer et uxor were the owners of the "70 acres, more or less" involved in this litigation. In 1969 the Dexheimers agreed to sell the north "4.4 acres, more or less" of their property to the Plummers. To determine the southern boundary of the property to be sold, Dexheimer constructed a southwest-northeast fence to mark that boundary and had J.T. Powell, a registered land and county surveyor, survey the property to be sold and prepare a certified plat thereof. Before the survey was made, Dexheimer showed Powell the already constructed and standing fence and explained that the fence was to be the southern boundary of the tract to be described and conveyed to the Plummers. The warranty deed of the Dexheimers to the Plummers described the property being conveyed exactly as stated by Powell on the plat of the real estate. The deed, inter alia, stated: "Description as per Survey made by J.T. Powell under date of June 29, 1971." In 1971 defendant purchased from the Plummers the same tract of land described in the deed from the Dexheimers to the Plummers. Five years thereafter, or in 1976, the Dexheimers conveyed the remaining "65½ acres, more or less" of their property to the plaintiff. The deed given plaintiff described all of the property originally owned by the Dexheimers "Except that part ... described in conveyance to Earl M. Plummer and wife recorded in Book 242, Page 108 ...."
In June 1978 plaintiff had a new survey made by Robert Elgin. The surveyor did not follow the description contained in the Dexheimer-Plummer deed and used different bearings and methods than those employed by Powell and recited in the deeds. The new survey purported to show that defendant's south boundary should be 90 feet north of the existing fence. At trial plaintiff claimed that in 1977 defendant had moved the original fence 90 feet further south from its original location. This assertion was denied by defendant, his son, a neighbor Gass and Dexheimer, all of whom claimed the fence remained constantly in the same location as when originally erected by Dexheimer in 1969. After the new survey had been made, plaintiff undertook to construct a new fence along the line therein indicated. Defendant removed the new fencing material and placed it on plaintiff's property south of the original line fence. Shortly thereafter plaintiff instituted the instant action.
Plaintiff's first point relied on in this appeal is that the trial court erred in declaring defendant to be the owner of the land described in the judgment because defendant, via his answer, judicially admitted that plaintiff was the owner of the real estate described in the deed given plaintiff by the Dexheimers. In paragraph 2 of Count I of plaintiff's first amended petition, plaintiff alleges that she is the owner of certain real estate described as was done by Robert Elgin who conducted the June 1978 survey at plaintiff's behest. In answering paragraph 2, defendant specifically denied "that Plaintiff is the owner in fee simple of the real estate described in said Paragraph 2." Defendant's further answer asserting that plaintiff was the owner of only that property described in the deed given her by the Dexheimers is far from constituting a judicial admission that plaintiff was the owner of property whose description expanded that contained in the deed. The deed to plaintiff conveyed to her all of the Dexheimer property "Except that part ... described in conveyance to Earl M. Plummer and wife recorded in Book 242, Page 108 ...." The reference to the deed given Plummer et uxor in the deed given plaintiff, made the reference part and parcel of the deed to the plaintiff. Mexico Refractories Co. v. Roberts, 237 Mo.App. 299, 306, 167 S.W.2d 660, 663[3] (1942). The answer does not constitute the admission *812 claimed by plaintiff and the first point is denied.
The second point relied on by plaintiff restates many of the same objections to the judgment nisi as asseverated in her first point. Apparently plaintiff has ignored the rule that in court-tried cases we are obliged upon appeal to sustain the judgment of the trial court unless we find it to be against the weight of evidence or unless it erroneously declares or applies the law. Before we may so conclude, we must be possessed of a firm belief the judgment is wrong for the trial court's resolution of conflicting evidence must be afforded due deference by us as that court, as trier of the facts, has leave to believe all, part or none of the testimony of any witness. Where conflicts in testimony exist, as in the present cause, we may assume the trial court believed the testimony and evidence which was consistent with its findings and judgment. State ex rel. Hillhouse v. Hunter Raffety Elevator, Inc., 636 S.W.2d 400, 402[1] (Mo.App.1982); McClelland v. Williamson, 627 S.W.2d 94, 96[1, 2] (Mo.App. 1982).
Plaintiff additionally contends that ejectment and not quiet title was the proper remedy. This overlooks that count IV of plaintiff's first amended petition was for ejectment and that the court dismissed that count and refused to eject defendant from property which the court declared was owned and occupied by defendant and his predecessors in title since 1969. Plaintiff may not successfully fault the defendant for not filing an ejectment claim when the evidence, obviously accepted by the trial court, established that defendant was in possession of all the land conveyed to him. This being so, there was no call or need for defendant to seek ejectment of plaintiff.
Plaintiff's assertion that defendant's cross-petition did not state a cause of action on the relief afforded, ignores that plaintiff's pleadings, per § 527.150 RSMo 1978, asked the court to "try, ascertain and determine the estate, title and interests of the parties ... in and to the said real estate, and define and adjudge ... the title, estate, and interest of the parties ... in and to said real estate ... to hear and finally determine any and all rights, claims, interests ... whatsoever of the parties concerning or affecting the said real estate.... to award full and complete relief, whether legal or equitable." The statute, i.e. § 527.150, relating to determination of interests in and quieting title to real estate is remedial and is to be liberally construed. Wallis v. St. Louis County, 563 S.W.2d 93, 95[2] (Mo.App.1978). In actions to quiet title, the trial court "is required to adjudicate the respective interests of the parties even though the plaintiff fails to establish his claim of title and even if the defendant does not request an adjudication of title." Baldwin v. Black, 618 S.W.2d 730, 731[1] (Mo.App.1981). Plaintiff's second point relied on is denied.
As previously recited, the description of the land sold by the Dexheimers to the Plummers and by them to the defendant, was that written by J.T. Powell, a registered land and county surveyor, after he had made a survey of the land to be sold and had prepared a certified plat thereof. In making the survey J.T. Powell was assisted by his son, William, who had been associated with his father in the surveying business for several years. J.T. Powell was dead at the time of the trial herein and William, not a registered land surveyor, was called as a witness by defendant to identify the certified plat of the survey and to explain how the survey was conducted. Plaintiff in point III of her brief claims the trial court erred in considering the survey and William's testimony because William, not a registered land surveyor, was not competent to testify.
Neither party mentions that under § 60.150 RSMo 1978 a survey made by a county surveyor shall be considered legal or prima facie evidence. We do not undertake to decide if the Powell survey was admissible under the statute although we do note that under point IV of plaintiff's brief she observes that the description of the property in the surveys made by Powell and Elgin both "start at exactly the same spot on the ground." However, it is not necessary that we detail plaintiff's criticism of the trial court in permitting entry of the Powell plat *813 and the testimony of William. "When, as here, an action is tried sans a jury, the trial court may properly allow wide latitude in the admission of testimony. Unlike a jury, an experienced trial judge, as we have here, can winnow testimony which is purely chaff from the true grains contained in the evidence and come by that which is to be properly considered." McClelland v. Williamson, supra, 627 S.W.2d at 99[18]. Also, Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 632[9] (Mo.App.1976). Plaintiff's third point is denied.
Although, per Rule 84.08, V.A.M.R., plaintiff was given a second chance to restate her points relied on, plaintiff's fourth amended point is repetitious and diffuse. We have already (see discussion of point I, supra) disposed of plaintiff's erroneous contention that defendant in his answer admitted that plaintiff was the owner of the land described in count I of her first amended petition. Her second assertion under this point that it was established that plaintiff's petition accurately described the land in the deed to her does not, contrary to Rule 84.04(d), V.A.M.R., state "wherein and why" the petition, or what part thereof, made an accurate description or "wherein and why" the description resulting from Robert Elgin's survey had to be accepted without question by the trier of the facts. The mere fact, as erroneously alleged by plaintiff, that Elgin's survey and testimony thereto went uncontradicted or unobjected to by defendant, was not alone sufficient to satisfy plaintiff's burden of persuasion because, as previously observed, the trial court had leave to believe or disbelieve all, part or none of Elgin's testimony. Barnes v. Bank of Bourbon, 619 S.W.2d 906, 907[2] (Mo.App. 1981). Plaintiff's assertion that the trial court erred in reforming the involved deeds because no such relief had been prayed is also error. No reform was undertaken of plaintiff's deed because her deed, as initially drawn and as declared by the court, consisted of all the involved property except that which had previously been deeded to defendant and his predecessors. The point is denied.
We disagree with plaintiff's claim via her fifth point that the trial court erred in determining that a latent ambiguity existed in the involved deeds. Apparently this stems from the fact that plaintiff's position is predicated on the contention that the trial court should have blindly accepted Robert Elgin's new description of the property originally deeded by the Dexheimers to the Plummers. A latent ambiguity in a deed is an uncertainty in the description of the land not appearing on the face of the instrument but which is shown to exist when undertaking to apply the language in the deed to the ground. Such an ambiguity may be explained and removed by parol evidence. Having been revealed by matters outside the deed, the ambiguity may be removed in the same manner. Becker v. Workman, 530 S.W.2d 3, 6 (Mo.App.1975). As the Dexheimers-plaintiff deed excepted the property conveyed in the Dexheimers-Plummers deed, the question then is the intention of the parties to the Dexheimers-Plummers deed for, obviously regardless of the intention of any party to the Dexheimers-plaintiff deed, the Dexheimers could not effectively convey to the plaintiff any part of that which they had already conveyed to the Plummers.
The existence of a latent ambiguity initially appears in plaintiff's petition wherein she seeks to quiet title to land described differently from that described in her deed from the Dexheimers and is enhanced by Robert Elgin's testimony which sought to establish a description of defendant's property different from that set forth in the exception contained in plaintiff's deed. Moreover, except for the point of beginning, Elgin's survey and plaintiff's evidence deviated from every call in Plummers' and defendant's deeds as to distances and direction and thus established that an ambiguity existed in those deeds. As seen in the beginning of this opinion, it was the intention of the Dexheimers to sell and convey to the Plummers that particular parcel of land whose southern boundary was delineated by a fence which Thomas Dexheimer had constructed for that very purpose. In other words, it was the intention of the parties to convey and receive a certain tract of land whose southern boundary *814 was fixed and marked by the line fence irrespective of what particular land description may have been employed in the deed. This is what the court decided and what intention it employed in describing the property owned by the defendant. Plaintiff's fifth point is denied.
Plaintiff's final point complains anent the trial court's dismissal of counts II, III and IV of her petition. The counts sought trespass damages against defendant, damages for defendant's wrongful withholding of possession and an injunction against defendant to prevent further acts of trespassing. We have heretofore concluded, as did the trial court, that defendant was, in fact, the lawful owner of the property concerned in the three counts of plaintiff's petition. Consequently, defendant could not be guilty of trespassing on land which was his, he could not be guilty of withholding its possession from plaintiff and he should not be enjoined from occupying his own property.
Judgment affirmed.
GREENE, P.J., and FLANIGAN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/703542/ | 65 F.3d 174
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Paul BROADWELL, Plaintiff-Appellant,v.Richard WEARE, Clerk of the United States District Court forthe District of Arizona, Defendant-Appellee.
No. 95-15276.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 16, 1995.*Decided Aug. 22, 1995.
Before: ALARCON, FERNANDEZ and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Paul Broadwell appeals pro se the district court's summary judgment dismissal of his Bivens action against Richard H. Weare, Clerk of the United States District Court for the District of Arizona, as barred by the statute of limitations. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm for the reasons set forth in the district court's order filed January 19, 1995, as amended by its order of February 1, 1995.
3
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2614894/ | 604 P.2d 1248 (1979)
In the Matter of John Henry RICH, IV and Dawn Raquel Rich, children under the age of eighteen years.
John Henry RICH, III, Appellant,
v.
Loyd LANG and Geneva Lang, Appellees.
No. 48773.
Supreme Court of Oklahoma.
December 18, 1979.
Gary E. Payne, Payne & Stubblefield, Atoka, Stanley G. Schneider, Richard L. Griffin, Huntsville, Tex., for appellant.
Cal Hoover, W.B. Ward, Jr., Ada, for appellees.
*1249 OPALA, Justice:
This appeal raises four questions: [1] Was an indigent out-of-state prisoner entitled to a free trial transcript in this civil appeal from an order adjudicating his children's *1250 status as deprived and terminating his paternal rights? [2] Was the prisoner denied due process when the trial court proceeded to terminate his paternal rights over the objection by appointed counsel that he had been prevented by out-of-state incarceration from being able to appear in person to give viva voce testimony in the case? [3] Is there competent evidence to support the verdict which finds the children in a deprived status? and [4] Was denial of paternal grandparents' plea in intervention reversible error? We find the proceedings under review free from both error and constitutional infirmity.
Appellant [Father] is incarcerated in a Texas prison under a life sentence for the murder of his wife, the mother of the children whose status is here in question. Maternal grandparents, who had charge of these children, sought an adjudication of their status as deprived, permanent custody and termination of Father's rights. In accordance with a jury verdict in the proceeding the children's deprived status was judicially determined. Some nine months later Father's rights came to be terminated. This is an appeal by the Father from both the deprived-status adjudication as well as from the termination order. He is represented here by counsel appointed by the trial court who has been active in his behalf since the very inception of the proceedings below, as well as by a self-procured Texas lawyer, of whom he had three in succession.
Father's initial petition-in-error was filed here thirty-one days after the deprived-status order.[1] Because the last day for bringing that appeal fell on a Sunday, the motion by appellees, maternal grandparents, to dismiss it must be denied. The appeal was timely instituted. When the public office in which an act is to be performed is closed on the terminal day prescribed therefor, time to perform that act is extended to the next business day.[2]
For over four decades now federal case law has been increasingly coming to grips with the impact of broadly phrased constitutional values on the responsibility of our government federal, state and local to guard against what may appear as plainly uneven forensic combat between the government's own forces of police and prosecution and those indigent individuals who are haled into courts for imposition of criminal punishment or juvenile delinquency-related sanctions.[3] The large body of extant federal precedent is grounded on more than a single source of fundamental law. Some of the cases invoke Due Process that universal gauge of our constitutionally-mandated dimension of fairness in the legal system others profess to rest on Equal Protection, the Sixth Amendment's right to counsel or that amendment's guaranty of compulsory process for defense witnesses.[4] Beyond the contours of criminal, delinquency and, perhaps, mental health process, there is but meager federal constitutional authority on the subject.[5] Fixed landmarks *1251 there are none to guide us through the pathway of federally-mandated state responsibility to prevent that civil process disadvantage at trial or appellate level which stems from a party's lack of adequate economic resources and results in an unfair court battle against his non-public adversary. Suffice it to say that in forensic disputes over parental, spousal or custodial rights, the U.S. Supreme Court has not been willing to extend the resourceless litigant the very same constitutional protection and procedural safeguards which apply to a felony defendant under the Bill of Rights.
Oklahoma law shows a high degree of sensitivity to the resourceless litigant involved in non-delinquency-related aspects of juvenile process. It affords him/her both access to our courts and the means of fairly litigating in them. Our statutes authorize the appointment of state-paid counsel for both indigent parents and minors.[6] No court costs may be taxed to any party in the proceeding.[7] Since 1972 this court has been authorized to dispense with cost deposit when civil appeal is sought to be prosecuted by an indigent person.[8] The Father in this case is a recipient of all these legal benefits. He has been allowed the services of a court-appointed lawyer, although he has had three additional self-procured counsel in succession. The last one of these is co-counsel here. So far as the record discloses, he has had no difficulty securing, cost-free, needed process for the attendance of his witnesses. Lastly, the clerk of this court has accepted his petition-in-error, with an affidavit pursuant to 12 Ohio St. 1971 § 922, as sufficient for institution of his appeal in forma pauperis. No one challenged here the Father's condition as a person without means by invoking the provisions of 28 O.S.Supp. 1978 § 152. We hence permit the case to stand in its present costfree posture. Moreover, we recognize the course followed as being in compliance with 20 O.S.Supp. 1978 § 15 and with the current operating procedures of this court.
I
Oklahoma law also shows a high degree of sensitivity to the needs of those persons, with limited or no means at their disposal, who desire to procure appellate review of trial proceedings but cannot afford to defray the high cost of a court reporter's transcript based on a legislatively prescribed per-page rate.[9] Alternatives to the transcript, which may be available as an approved form of substituted record, provisional or permanent, are:
(1) a statement of material facts alleged not to have been proved which were deemed essential to support the judgment sought to be reviewed.[10]
(2) a statement of the evidence in narrative form.[11]
(3) a stipulation of all, or pertinent part of, the proceedings.[12]
*1252 (4) the medium (tape, disc or record) on which the proceedings were electronically recorded when certified as to correctness by the trial judge or court reporter.[13]
Neither the Father's brief nor the record discloses why one of these alternative devices was not available or was inadequate for a fair prosecution of this appeal. Under federal constitutional case law it is not error to deny a cost-free transcript in a criminal prosecution when the availability of an adequate alternative has been shown.[14] Not even in criminal cases is state government required by the Equal Protection Clause to furnish penny-for-penny, every conceivable resource which a financially able litigant may be willing to expend in order to vanquish his adversary.[15]
Father's federally-grounded claim that denial of a free transcript deprived him of Due Process or Equal Protection is without merit. He was afforded a meaningful and legally adequate opportunity for a fair resolution of issues which pertain to his status vis-a-vis the two children. Turning to the Father's assertion of state constitutional rights under Art. 2 §§ 6 and 7, Okl.Con.[16] we establish as a rule of practice that an application for cost-free transcript in a juvenile proceeding unrelated to delinquency must be accompanied or followed by a showing of unavailability or inadequacy of alternative media for record preparation.[17] In each instance the burden shall additionally rest on the applicant to show that a transcript is indispensable to afford him/her Due Process. Absent a requisite showing, it is not error to deny the application.
The trial court's order denying the Father's request for a transcript at public expense is free from federal or state constitutional infirmity. Our previous order to the same effect, rendered in pre-decisional stage of this appeal, must stand.
II
The Father contends that his involuntary absence from the two proceedings in which his children were adjudicated to be in a deprived status and his paternal rights came to be terminated operates to deny him due process within its Fourteenth Amendment meaning.
Oklahoma law allows testimony from an incarcerated witness to be taken by deposition in lieu of viva voce.[18] The record discloses *1253 no effort to secure the Father's testimony in this manner.[19]
The Father is entitled under the Federal Constitution to a meaningful and fair opportunity to defend in a family-status suit.[20] He was assured of effective access to the courts by the appointment of free counsel. His opportunity to meet the issues raised via deposition testimony was nowhere impaired. If he had no lawyer in these proceedings we could not expect him to make a record conformable to prescribed procedure. Since legal counsel were serving, we must ascribe the absence of deposition testimony in the record to deliberate strategy choices of counsel acting in the best interest of their client's cause.
The Father's presence at these proceedings was not the only effective means of fairly meeting the issues. He was hence, by his absence, denied no opportunity for a fair and just hearing. Courtroom confrontation with one's civil adversary is not required either by due process or other constitutional strictures.[21]
III
We next pass to the Father's contention that the evidence adduced at both the hearings to adjudicate the status of his children and to terminate his paternal rights was insufficient to support the orders made.
The papers forwarded to us contain no record of trial proceedings in any form. Nor do we have before us deposition testimony or any other evidence upon which we may determine the merits of this assigned error. The Supreme Court is, of course, confined to the record made below. It may not accept, as a basis for its decision, argument for which there is no foundation in the record before it.[22]
Where the record does not contain evidence presented at trial and no errors appearing on the face of the judgment roll are assigned, there is nothing for us to review and the trial court's judgment may not be disturbed.
IV
The Father urges that the trial court erred in refusing to allow in the proceedings below intervention by his parents, the paternal grandparents. Although the record shows that these grandparents filed a motion to intervene before the deprived-status adjudication, it is silent as to the disposition made. The court's order terminating paternal rights recites that the grandparents were in fact allowed to appear in person and by counsel at the dispositional hearing below.
No appeal was lodged by the Father's parents. A denial of intervention, a final order as to them, would have been appealable. Since they did not bring an appeal, the Father cannot maintain one in their behalf to complain of errors by which they, rather than he, came to be aggrieved.[23]
We find the proceedings both free from error and any vitiating constitutional infirmity.
Affirmed.
LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, HODGES, HARGRAVE, JJ., concur.
*1254 BARNES, J., concurring in part, dissenting in part.
SIMMS and DOOLIN, JJ., dissent.
SIMMS, Justice, concurring in part, dissenting in part:
I concur in the judgment of the Court. This appellant was denied no federal or state constitutional rights in these proceedings. I have serious reservations concerning the dicta in the majority opinion, however, and I must dissent generally to adopting any "rule" on transcripts in this action and specifically to that "rule" which the majority adopts.
The issue of an indigent parent's right to a free transcript of a proceeding terminating his or her parental rights is NOT before us. Appellant did NOT request a transcript from that hearing. He requested a transcript only of the initial proceeding to determine whether his children were dependent and neglected and where their temporary custody should be placed. That request was denied for his failure to comply with existing rules of appellate procedure. He made no request for a transcript of the subsequent proceeding to terminate his parental rights.
The Court's attempt to answer a question which is not at issue is inappropriate and the answer is dicta. We respectfully submit that the answer is also wrong.
Inasmuch as the majority has decided to pronounce in this case a "rule" on cost free transcripts for indigent parents appealing from adverse judgments in termination of parental rights proceedings, I will discuss here why that rule is constitutionally defective.
The majority's analysis of which rights must be afforded an indigent parent is based on a simplistic division of "civil" versus "criminal" actions. The majority reasons that criminal defendants are entitled to many protections and civil litigants, not so many. From this starting point, the majority easily concludes that because this is a "civil" action, an indigent parent can be forced to bear burdens which cannot constitutionally rest on a criminal defendant seeking a transcript without cost.
This analysis is superficial and leads the majority to an erroneous result. As the Supreme Court of the United States has advised us on numerous occasions, labels are not important. It is the substance of the rights in jeopardy which we must examine, not the label which a State places upon its conduct or its statute.[1] Termination of parental rights is not the same thing as personal injury litigation or an action on an overdue account, where a private litigant battles out private disputes against his "non-public adversary." The majority's refusal to recognize that difference here will lead to innumerable problems in the future for families, as well as our courts.
Unlike the majority, I find the constitutional "landmarks" are more than adequate to guide us to a correct resolution of the question.
Before proceeding to that point however, I find it necessary to discuss certain federal decisions concerning transcripts for indigent criminal defendants. The discussion of same by the majority is so extremely abbreviated that some may be unable to glean the importance of those rights at issue here which the majority denies to future appealing indigent parents.
I.
Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, 55 A.L.R. 2d 1055 (1956), was the Court's first free transcript case. In holding that both due process and equal protection were violated when indigent defendants were denied cost free transcripts which would allow them to obtain full appellate review of nonconstitutional errors, the Court established the now familiar principle that "[t]here can be no equal justice *1255 where the kind of trial a man gets depends on the amount of money he has." 351 U.S. at 19, 76 S.Ct. at 591. "Destitute defendants" the Court held, "must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." 351 U.S. at 19, 76 S.Ct. at 591.
The principle of Griffin has been steadily and consistently applied by the Court to protect the rights of the poor. It has been applied to right to counsel,[2] and filing fees,[3] as well as numerous other transcript cases.[4]
The transcript progeny of Griffin make clear the following points which are relevant to the issue decided by the majority opinion:
1. A state need not furnish a complete verbatim transcript in every case but "[i]n all cases the duty of the state is to provide the indigent as adequate and effective an appellate review as that given appellants with funds." Draper v. Washington, supra, 372 U.S. 487, 83 S. Ct. 774. (Emphasis added)
2. "In terms of a trial record, the State must afford the indigent a `record of sufficient completeness' to permit proper consideration of [his] claims." Draper, 372 U.S. at 499, 83 S.Ct. at (quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962)).
3. "Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise." Draper, 372 U.S. 495, 83 S.Ct. at 779. (Emphasis added)
4. The defendant is not required to make a showing of need tailored to the facts of a particular case. The value of a transcript is recognized. See, Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971).
5. "We emphasize, however, that the State must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal as would be available to the defendant with resources to pay his own way. Moreover, where the grounds of appeal, * * * make out a colorable need for a complete transcript, the burden is on the state to show that only a portion of the transcript or an `alternative' will suffice for an effective appeal on those grounds." Mayer v. City of Chicago, 404 U.S. 189, 195-196, 92 S. Ct. 410, 415, 30 L. Ed. 2d 372 (1971). (Emphasis added)
6. The Constitution tolerates no distinction between felony and nonfelony offenses. In Williams v. Oklahoma City, supra, the Court rejected an argument "that an indigent person, convicted for a violation of a city ordinance, quasi criminal in nature, and often referred to as a petty offense, is [not] entitled to a casemade or transcript at city expense in order to perfect an appeal." 395 U.S. at 459, 89 S.Ct. at 1819.
7. Likewise, the differences in sentences that may be imposed do not lessen the invidiousness of discrimination against an indigent. Where confinement is not an issue and payment of a fine is the only punishment for violation of a nonfelony city ordinance, Griffin applies and the State's fiscal interest is "irrelevant". The Court explained in Mayer that is because:
"Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made *1256 available only to those who can pay is not erased by any differences in the sentences that may be imposed." 404 at 196-197, 92 S.Ct. at 416.
It should be of great interest to know that the defendant in Mayer was sentenced to pay two $250 fines.
The majority's summary of Britt v. North Carolina, supra, as supporting the notion that "it is not error to deny a cost-free transcript in a criminal prosecution when the availability of an adequate alternative has been shown" misapprehends the point of that decision and overlooks the fact that it was explicitly decided upon its unique factual situation. The transcript sought there was of petitioner's first trial which ended in a mistrial. The following "narrow circumstances of this case," 404 U.S. 228, 92 S. Ct. 431, led the Court to decide that Griffin did not require furnishing a complete transcript before the second trial: both trials took place in a small town, before the same judge, with the same counsel and court reporter, and if counsel had requested it, the reporter would have read him his notes of the mistrial at any time. Although holding no error in rejecting the claim under these circumstances, and where petitioner had conceded availability of an informal alternative "substantially equivalent" to a transcript, the Court emphasized again that:
"Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case." 404 U.S. 228, 92 S. Ct. 434. And that "[a] defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight." 404 U.S. 230, 92 S. Ct. 435. (Emphasis added)
There is no merit to the majority's position that the Supreme Court has given us no "fixed landmarks" which guide our application of transcript principles to an appeal from a judgment terminating parental rights.
II
Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113, involved indigent plaintiffs seeking access to divorce courts without payments of costs. In deciding that Connecticut's refusal to admit the impoverished plaintiffs to its courts was a denial of due process, the Supreme Court repeatedly emphasized two points: (1) The fundamental importance of family relationship interests under our Constitution, and (2) The State's monopolization of the means for dissolution of the marriage relationship. Parties to a marriage cannot divorce themselves. Because of this, the Court concluded that the resort of the plaintiffs to the judicial process was "no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court. For both groups, this process is not only the paramount dispute-settlement technique, but, in fact, the only available one." (Emphasis added) It was in view of this that the Court found the issues "properly to be resolved in light of the principles enunciated in our due process decisions that delimit rights of defendants compelled to litigate their differences in the judicial forum." 401 U.S. 376, 377, 91 S. Ct. 785.
Of especial significance to the question the majority seeks to answer here is the fact that Boddie was decided under the rationale of Griffin v. Illinois, supra, the watershed of transcript cases. The Court stated:
"We are thus left to evaluate the State's asserted interest in its fee and cost requirements as a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois. * * * In Griffin it was the requirement of a transcript beyond the means of the indigent that blocked access to the judicial process. While in Griffin the transcript could be waived as a convenient but not necessary predicate to court access, here the State invariably imposes the costs as a measure of allocating its judicial resources. Surely, then, the rationale of Griffin covers this case." At 382-383, 91 S. Ct. at 788.
*1257 Let us examine then the nature of the rights at issue and the nature and amount of governmental involvement in an action to terminate parental rights.
Placed in jeopardy by the State of Oklahoma are the biological and emotional ties of parent and child. Clearly these interests involve fundamental constitutional rights.[5]
The interests of a parent in the companionship, care, custody and management of his or her children must "come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic interests." (citations omitted) Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551. The "liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in `this Nation's history and tradition'." (citations omitted) Smith v. Organization of Foster Families, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14.[6]
The governmental involvement in termination proceedings far exceeds that which exists in marriage regulation and dissolution.[7] First, of course, the State does not involuntarily divorce people; at least one partner to the marriage must affirmatively seek such relief.
The State does, on the other hand, prosecute termination actions, sometimes involuntarily terminating parental rights against the wishes of both parents and children. There may be no other proceeding where the governmental involvement, both qualitatively and quantitatively, is so great; for in termination actions the State is involved at all stages and on all sides. In any termination action the role of the State (separate and apart from the judicial function) may include any or all of the following: investigation of the family; initiation of the petition; temporary custodial care and/or other services for the children; educational, health or other services for the family; prosecution of the action; separate representation of the parents and/or children; defense on appeal; custodial care of the children; adoption investigation; and representation at adoption proceedings. This list is not meant to be exhaustive, only illustrative.
The difference between those actions which involve fundamental rights of marriage and family subject to great governmental control and those actions which involve lesser interests with fewer governmental controls, has been consistently recognized by the Supreme Court.
In United States v. Kras, 409 U.S. 434, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973), the Court discussed at length the comparison between the government's role in marriage regulation and in private commercial relationships, *1258 and held that due process was not denied an indigent when filing fees were charged as a condition to obtaining a discharge in bankruptcy. The Court found that Boddie did not control as that denial to the judicial forum had touched directly on "the marital relationship and on associational interests ... of that relationship", whereas being relieved of debt burdens does not rise to the same constitutional level. Neither does governmental control reach the level of exclusivity in private commercial relationships that it does in marriage regulation; private negotiation is possible as is the expiration of statutes of limitations. For equal protection purposes, bankruptcy legislation falls into the area of economics and social welfare, requiring only a rational justification rather than the compelling governmental interest required before marriage a fundamental interest may be regulated.
The lesser constitutional significance of economic and social welfare interests as compared to the more fundamental interests of marriage was again recognized by the Supreme Court in Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973), where the Court held that the equal protection clause is not violated by a statutory appellate filing fee for an adverse welfare decision, although special rights to appeal in forma pauperis are given in criminal areas, civil cases that result in loss of liberty and termination of parental rights. The Court found Kras, not Boddie, controlled and that the fee was rationally justified and not arbitrary or capricious.
Given the fundamental rights involved in a termination proceeding and the overwhelming governmental involvement, it is erroneous for the majority to place on indigent appealing parents the burdens of particularizing their need for transcripts and proving that alternatives are not available.
These are not acceptable burdens in a proceeding which threatens rights of such magnitude. These were unacceptable burdens in Mayer where the defendant faced only payment of two $250 fines.
Surely no one believes that our Constitution offers fewer protections against governmental intrusion to parents and children than to individuals paying a municipal fine.
The appellant was denied no substantial rights. He was given every opportunity for fair and just hearing and consideration of his defense. He received the full panoply of procedural due process protections,[8] and there is no reason to address questions not raised by this appeal. I have strong misgivings about the posture the Court assumes in doing so.
I am authorized to state that Justice Doolin joins with me in the views expressed herein.
NOTES
[1] A civil appeal must be commenced within 30 days of the appealable decision. 12 Ohio St. 1971 § 990.
[2] 12 Ohio St. 1971 § 82; 25 Ohio St. 1971 § 82.1; Evans v. Davis, Okl., 405 P.2d 975, 977 [1965]; Crabtree v. Crabtree, Okl., 420 P.2d 494, 496 [1966]; David v. Pennwalt Corp., Okl., 592 P.2d 980, 981 [1979].
[3] Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 [1932]; Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 [1938]; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]; In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]; Mayer v. Chicago, 404 U.S. 189, 92 S. Ct. 410, 30 L. Ed. 2d 372 [1971].
[4] Powell v. Alabama, supra note 3 (Due Process); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956] (Equal Protection); Gideon v. Wainwright, supra note 3 (Sixth Amendment right to counsel); and Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 [1967] (right to compulsory process for witnesses).
[5] Boddie v. Connecticut, 401 U.S. 371, 380-382, 91 S. Ct. 780, 787-788, 28 L. Ed. 2d 113 [1971], holds that due process is denied when resourceless persons, unable to pay court costs, are barred from the opportunity to litigate matters of family status (divorce) in state courts of first instance. We applied Boddie in the Matter of Del Moral Rodriguez v. State, Okl., 552 P.2d 397, 399 [1976] to impose on the state the responsibility for paying the costs of publication in a parental termination proceeding.
The full shield of safeguards afforded in criminal prosecutions does not apply to parental rights' litigation. In Smith v. Organ. of Foster Families for E. & Reform, 431 U.S. 816, 97 S. Ct. 2094, 2112, 53 L. Ed. 2d 14 [1977] the Court said that "`[D]ue process is flexible and calls for such procedural protections as the particular situation demands.'"; Cf. Matter of Chad S., Okl., 580 P.2d 983, 985 [1978]. Our due process concept under Art. 6 § 7, Okl.Con., is said to be coextensive with its federal counterpart. McKeever Drilling Co. v. Egbert, 170 Okl. 259, 40 P.2d 32, 36 [1935].
[6] 10 Ohio St. 1971 § 24.
[7] 10 O.S.Supp. 1976 § 1124.
[8] 20 O.S.Supp. 1978 § 15. Before the 1972 amendment this court deemed itself precluded from entertaining appeals attempted to be brought on a pauper's affidavit. In re Lee, 64 Okl. 310, 168 P. 53 [1917] and Howe v. Federal Surety Co., 161 Okl. 144, 17 P.2d 404 [1942].
[9] 20 O.S.Supp. 1972 § 106.4(b).
[10] Rule 1.21, Civ.App.Proc.Rules, 12 O.S. Ch. 15, App. 2.
[11] Rule 1.22, Civ.App.Proc.Rules, 12 O.S. Ch. 15, App. 2; See Nu-Pro, Inc. v. G.L. Bartlett & Co., Inc., Okl., 575 P.2d 620, 622 [1977].
[12] Rule 1.20(f), Civ.App.Proc.Rules, 12 O.S. Ch. 15, App. 2.
[13] This alternative stands approved for criminal review in Britt v. North Carolina, 404 U.S. 226, 229-230, 92 S. Ct. 431, 434-435, 30 L. Ed. 2d 400 [1971]; Mayer v. Chicago, supra note 3. See also Morgan v. Graham, Okl.Cr., 497 P.2d 464 [1972].
[14] Britt v. North Carolina, supra note 13. Britt requires the prosecution to show the alternatives offered are partly or wholly inadequate.
[15] Ross v. Moffitt, 417 U.S. 600, 616, 94 S. Ct. 2437, 2447, 41 L. Ed. 2d 341 [1974]. There the Court said: "The duty of the State ... is not to duplicate the legal arsenal that may be privately retained ... but only to assure the indigent ... an adequate opportunity to present his claims fairly ..." [emphasis ours].
[16] Art. 2 § 6 Okl.Con., provides:
"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."
Art. 2 § 7, Okl.Con., is Oklahoma's counterpart of the Fifth Amendment's Due Process Clause.
[17] Unlike in Britt, supra note 13, a criminal case, we place upon the applicant the burden of showing unavailability or inadequacy of record devices alternative to the transcript. We see no reason in a civil case to saddle the onus on the successful litigant in the trial court and thereby disturb the presumption of correctness which attaches to the judgments of a first-instance civil court.
[18] Testimony of witnesses may be taken by (1) affidavits (2) deposition and (3) oral examination. 12 Ohio St. 1971 § 421. A deposition may be used when a party is unable to attend court because of his incarceration. 12 Ohio St. 1971 § 433. Where a deposition is taken and filed in the case, either party is entitled to its use in the trial of the case. Smart v. Cain, Okl., 493 P.2d 821 [1972], and it becomes a part of the record. U.S. v. Choctaw, O. & G.R. Co., 3 Okl. 404, 41 P. 729 [1895].
[19] Since no demonstrable attempt was made by the Father to secure testimony by deposition, we need not reach the issue of whether under Boddie v. Connecticut, supra note 5, the state would have been subject to liability for the costs of deposition on the theory that the Father was seeking to litigate a matter of family status in the tribunal of first instance and that without the aid of deposition testimony his involuntary absence from the trial court would impair a fair trial of the issues.
[20] Boddie v. Connecticut, supra note 5.
[21] The Sixth Amendment's right of confrontation applies to criminal cases. There is no similar right in a civil trial. Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 [1968]; Kiddie v. Kiddie, Okl., 563 P.2d 139, 141 [1977].
[22] Ajax Contractors, Inc. v. Myatt, Okl., 424 P.2d 30, 35 [1967]; Price v. Price, Okl., 471 P.2d 894, 895-896 [1970]; McGhee v. McAllister, Okl., 474 P.2d 940, 941 [1970].
[23] Trapp v. Board of Com'rs of Okmulgee County et al., 79 Okl. 214, 192 P. 566 [1920]; Ogle v. Ogle, Okl., 517 P.2d 797, 799 [1973].
[1] See, e.g., Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Giacco v. State of Pennsylvania. 382 U.S. 399, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966); Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 6 L. Ed. 2d 39 (1961).
[2] Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).
[3] Burns v. Ohio, 360 U.S. 352, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959); Smith v. Bennett, supra, Note 1.
[4] See, e.g., Roberts v. LaVallee, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967); Williams v. Oklahoma City, 395 U.S. 458, 89 S. Ct. 1818, 23 L. Ed. 2d 440 (1969); Long v. District Court of Iowa, 385 U.S. 192, 87 S. Ct. 362, 17 L. Ed. 2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963).
[5] See, e.g., Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942); May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Cleveland Bd. of Education v. LeFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974); Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).
[6] The majority's reliance on Smith as somehow supporting its puzzling position that "the full shield of safeguards" does not apply to "parental rights' litigation" is misleading. Smith was not an action concerning parental rights, but rather rights of foster parents whose relationships with children had its source in contractual arrangements with the State. One of the major points of Smith is that the interest of such a foster parent is not as great as the interest of a parent. "Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents." 97 S.Ct. at 2111.
[7] As is occasionally the case, this termination proceeding was initiated by private individuals rather than an employee of a state agency. The majority implies that this fact somehow changes the nature of the proceeding and lessens the governmental involvement in the involuntary cessation of the family relationship. Termination of parental rights is, of course, state action whether the initiating party is public or private.
[8] Matter of Chad S., Okl., 580 P.2d 983 (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614896/ | 24 Wash. App. 545 (1979)
604 P.2d 177
THE STATE OF WASHINGTON, Respondent,
v.
RICHARD EUGENE LOUX, Appellant.
No. 6745-1.
The Court of Appeals of Washington, Division One.
September 10, 1979.
As amended by order October 26, 1979.
*546 Chambers, Marston, Hodgins, Shorett, Young & Gillingham and David L. Shorett, for appellant.
Norm Maleng, Prosecuting Attorney, and J. Robin Hunt, Deputy, for respondent.
[As amended by order of the Court of Appeals October 26, 1979, deleting directions that the opinion should not be published.]
SWANSON, A.C.J.
Richard Eugene Loux appeals the denial of his motion to withdraw a guilty plea, his conviction as a habitual criminal, and the court's entry of a special finding that he was armed with a deadly weapon and a firearm.
[1] Loux first contends that the trial court erred in denying his motion to withdraw his plea of guilty because he did not enter the plea with knowledge that he thereby waived his Fifth Amendment right against self-incrimination. Upon entry of his plea Loux was accompanied by defense counsel who informed the court he had "gone over the defendant's statement on plea of guilty with Mr. Loux, advised him of the rights that he has; the rights that he will waive." The court then asked Loux if he agreed in all respects with what his attorney had said. Loux answered in *547 the affirmative. The court accepted Loux' guilty plea, finding that he entered it voluntarily and with "full knowledge of [his] constitutional rights." Loux subsequently moved to withdraw his guilty plea, contending the plea was accepted without an understanding of the consequences and specifically of the waiver of his Fifth Amendment privilege against compulsory self-incrimination. The statement signed by Loux contains no specific mention of the right against self-incrimination and, at the hearing on the motion, Loux' attorney testified he "did not specifically advise" Loux of his Fifth Amendment right when he filled out the statement on plea of guilty. The court denied Loux' motion, finding that the plea was entered voluntarily, intelligently, and knowingly. Loux argues Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), and CrR 4.2(d) require that the trial court specifically inform the defendant of his Fifth Amendment right to remain silent prior to acceptance of his guilty plea. Loux' contention is answered by what we said in State v. Lewis, 16 Wash. App. 132, 135, 553 P.2d 127 (1976):
The consequences of a guilty plea include the waiver of certain constitutional rights which include the waiver of the privilege against self-incrimination, the right to a trial by jury, and the right to confront one's accusers. Boykin v. Alabama, supra. The due process principles announced in Boykin, and the rule enunciated under former Fed. R. Crim. P. 11 (now paraphrased in our state rule CrR 4.2), do not require the trial judge to inform a defendant that the privilege against compulsory self-incrimination is waived upon a plea of guilty before the court may accept a plea of guilty.
(Citations omitted.) Whether a guilty plea is made voluntarily and with knowledge of its consequences is "a fact to be determined from all the circumstances." Miesbauer v. Rhay, 79 Wash. 2d 505, 507, 487 P.2d 1046 (1971).
In this case, upon entry of the plea Loux acknowledged to the court that he understood everything contained in the statement. His attorney stated that he had discussed with him the rights which he would waive by pleading guilty. In *548 light of the representations made the trial court was entitled to believe that counsel had previously reviewed with Loux all of the rights which he would waive and that Loux understood all the consequences of a guilty plea.
[2, 3] Loux also claims that the motion to withdraw his guilty plea should have been granted because he was not competent at the time the plea was entered. The trial court is vested with broad discretion in judging the mental competency of every defendant to plead guilty and may make its determination from many things, including the defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports, and the statements of counsel. State v. Dodd, 70 Wash. 2d 513, 514, 424 P.2d 302 (1967). Loux submitted the report of a psychologist who examined him 5 months after the entry of his guilty plea which indicated that entry of the plea was "not the product of reason." Expert opinion testimony, however, is not binding on the trial court, Brewer v. Copeland, 86 Wash. 2d 58, 74, 542 P.2d 445 (1975), and the credibility of witnesses testifying is exclusively within the province of the trier of fact. State v. Edwards, 5 Wash. App. 852, 855, 490 P.2d 1337 (1971). The trial judge was entitled to give credence to his own recollections and counsel's testimony that Loux was competent. We will not substitute our judgment for that of the trial court.
[4] Loux next contends that a fingerprint card which was stapled to other prison records was not properly authenticated for purposes of proving prior conviction in a habitual criminal proceeding because it was not specifically itemized as a part of the document packet. We do not consider this assignment of error, as the prison records considered by the trial court are not a part of the record on appeal. State v. Wilson, 75 Wash. 2d 329, 332, 450 P.2d 971 (1969).
[5] Loux also contends that his prior federal kidnapping conviction did not include elements sufficient to amount to a felony in this state, and it therefore should not have been used as a prior conviction for habitual criminal purposes. *549 The general rule is that a previous conviction under a federal statute may be used for purposes of a state habitual criminal act so long as elements sufficient to amount to a state felony were included in the federal offense and were proven beyond a reasonable doubt. State v. Wait, 9 Wash. App. 136, 142, 509 P.2d 372, 65 A.L.R. 3d 578 (1973). The test to be employed in determining whether a conviction in a foreign jurisdiction would amount to a felony in this state is whether the indictment or information under which one is convicted in the foreign jurisdiction states facts sufficient to amount to the minimum elements of a felony in this state. State v. Wait, supra at 143.
The federal indictment under which Loux was convicted states in part:[1]
That on or about November 22, 1964, ... Richard Eugene Loux ... did knowingly transport in interstate commerce from Walla Walla in the Southern District of the Eastern District of Washington to Clackamus County, Oregon, Andrew Jackson Jeppe and Cora May Jeppe who had therefore been unlawfully seized, kidnapped, carried away and held by ... Richard Eugene Loux ... for ransom or reward or otherwise in violation of S. 1201 Title 18 U.S.C.
These facts were sufficient to amount to the minimum elements of unlawful imprisonment, under RCW 9A.40.040, which is a class C felony in this state.[2]
In 1961, Loux escaped from King County jail where he was being held following conviction of attempted unlawful *550 taking of an automobile,[3] which at that time was a felony.[4] He was subsequently convicted of felony escape under former RCW 9.31.010.[5] In 1975, RCW 9A.56.070 was enacted, making the crime of taking a motor vehicle without permission a class C felony. RCW 9A.28.020, enacted at the same time, made it a gross misdemeanor to attempt to commit a class C felony.
Loux' argument is that because the crime for which he was being held when he escaped is now a gross misdemeanor, his escape conviction can be considered only as a misdemeanor and cannot be used as a prior conviction in a habitual criminal proceeding. The argument is not well taken. The prior conviction used in the habitual criminal proceeding was a conviction for escape, not a conviction for attempted unlawful taking of an automobile. The current escape statute, RCW 9A.76.120, provides in part:
(1) A person is guilty of escape in the second degree if:
(a) He escapes from a detention facility; ...
...
(2) Escape in the second degree is a class C felony.
RCW 9A.76.010 defines "detention facility" as:
[A]ny place used for the confinement, of a person (a) arrested for, charged with or convicted of an offense, ...
Then, as now, Loux' escape constituted a felony and thus was properly employed for habitual criminal purposes.[6]
[6] Loux' final contention is that the court erred in entering a deadly weapon/firearm finding because there was *551 no mention in the statement of defendant on plea of guilty of the possibility of the entry of such a finding. Loux' argument, insofar as it concerns the firearm finding under RCW 9.41.025, is controlled by State v. Workman, 90 Wash. 2d 443, 454-55, 584 P.2d 382 (1978), which holds that invocation of the enhanced penalties mandated by that statute is improper where use of a firearm has already enhanced the penalty for the substantive crime of first-degree robbery. The deadly weapon statute, RCW 9.95.040, may, however, be invoked as that statute is directed to the parole board and not the sentencing court. State v. Workman, supra.
Entry of the deadly weapon finding under RCW 9.95.040 was proper in this case. The statement of defendant on plea of guilty, which Loux signed and indicated that he understood, specifically states:
I have been further advised that the crime with which I am charged carries a mandatory minimum of 7 1/2 years.
That is the sentence imposed by RCW 9.95.040(2). Loux cannot now argue that he was unaware of the mandatory penalty which could be imposed. Even were there no specific acknowledgment by Loux of the sentence he would receive as a result of his plea, we would find that he had notice of it. The information contained an allegation that Loux was armed with a deadly weapon, thereby putting him on notice that he was subjecting himself to a possible mandatory minimum sentence. Miller v. Morris, 10 Wash. App. 694, 696, 519 P.2d 1314 (1974).
The convictions are affirmed, and the cause is remanded for resentencing without invocation of RCW 9.41.025.
DORE and RINGOLD, JJ., concur.
Reconsideration denied October 18, 1979.
NOTES
[1] The specific language of the federal indictment does not appear of record; however, the parties agree to the accuracy of the language of that indictment.
[2] RCW 9A.40.040 provides:
"(1) A person is guilty of unlawful imprisonment if he knowingly restrains another person.
"(2) Unlawful imprisonment is a class C felony."
RCW 9A.40.010 defines restraint as follows:
"(1) `Restrain' means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty."
[3] The parties agree to these facts, although they do not appear in the record.
[4] Former RCW 9.54.020.
[5] Former RCW 9.31.010 provided:
"Every prisoner confined in a prison or being in the lawful custody of an officer or other person, who escapes or attempts to escape from such prison or custody if he is held on a charge, conviction, or sentence of a felony, shall be guilty of a felony; if held on a charge, conviction, or sentence of a gross misdemeanor or misdemeanor, he shall be guilty of a misdemeanor."
[6] RCW 9.92.090 allows use, in habitual criminal proceedings, of "any crime which under the laws of this state would amount to a felony ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614897/ | 604 P.2d 400 (1979)
288 Or. 193
William FAST, Respondent,
v.
WESTERN TRANSPORTATION COMPANY, Petitioner.
No. A7711-16481; CA 12257; SC 26239.
Supreme Court of Oregon.
Argued and Submitted October 2, 1979.
Decided December 18, 1979.
*401 Alex L. Parks, of White, Sutherland, Parks & Allen, Portland, argued the cause for petitioner. On the briefs was William F. White, Portland.
William B. Aitchison, of Franklin, Bennett, Ofelt & Jolles, P.C., Portland, argued the cause and on brief for respondent.
Erskine B. Wood, of Wood, Tatum, Mosser, Brooke & Holden, Portland, on brief amicus curiae for Columbia River Tugboat Assn.
Before DENECKE, C.J., and HOLMAN, TONGUE, HOWELL, LINDE and PETERSON, JJ.
DENECKE, Chief Justice.
Plaintiff brought this action to recover damages for the partial destruction of his floating dock. The dock had been moored to plaintiff's property on the Willamette River. Directly across the river from plaintiff's property lies a commercial dock, at which barges are loaded with sawdust. Defendant operates several tugboats, which transport barges to and from the sawdust dock. The river in front of plaintiff's property is only 400 feet wide. In this constricted stretch of the river the defendant's tugs often maneuvered barges ranging in length from 150 to 180 feet. In the course of these maneuvers the wash from the tugboat propellers sometimes engulfed the plaintiff's floating dock. This constant pounding eventually tore the dock from its moorings and caused it to partially break up on the bank.
The trial court, sitting without a jury, found that the defendant negligently permitted the propeller wash from its tugs to damage the dock, and awarded plaintiff damages. The Court of Appeals affirmed the judgment. Fast v. Western Transportation Co., 39 Or. App. 803, 593 P.2d 1254 (1979). We granted review and reverse.
The petition for review presents only one question for our consideration. Defendant maintains that plaintiff's dock was an "illegal structure," because plaintiff had never applied for or received a permit from the Secretary of the Army (Corps of Engineers), as required by 33 U.S.C. § 403 (1976).[1] Defendant further contends that *402 when a vessel damages a dock built in a navigable river but lacking the required permit, the owner of the dock is presumed to be negligent. In order to recover he must show that his statutory violation could not have been a cause of the damage to the dock. The trial court declined to impose any such presumption of negligence. This the defendant assigns as error.
The rule of law defendant would have us apply derives from the holding of the United States Supreme Court in The Pennsylvania, 86 U.S. 125, 22 L. Ed. 148 (1874). That case involved a collision between two vessels in a dense fog. A federal statute provided that fogbound sailing ships shall sound a horn when under way, and a bell when not under way. One of the vessels sounded a bell, even though it was moving. The Supreme Court held:
"The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute." 86 U.S. at 136.
The Pennsylvania rule has been criticized for its severity,[2] but American courts have followed it in all maritime collision cases where one of the parties violated a statutory rule intended to prevent collisions. The Pennsylvania rule has been applied to collisions between vessels and structures lacking the permit required by 33 U.S.C. § 403. See, e.g., United States v. Norfolk-Berkley Bridge Corp., 29 F.2d 115, 125 (E.D.Va. 1928); Board of Commissioners v. M/V Agelos Michael, 390 F. Supp. 1012 (E.D.La. 1974); Dow Chemical Co. v. Dixie Carriers, Inc., 330 F. Supp. 1304, 1308 (S.D.Tex. 1971), aff'd 463 F.2d 123 (5th Cir.), cert. den. 409 U.S. 1040, 93 S. Ct. 525, 34 L. Ed. 2d 490 (1972); William B. Patton Towing Co. v. Spiller, 440 S.W.2d 869 (Tex.Civ.App. 1969).
Plaintiff's response to the statutory violation argument is that his dock did not need a permit. The plain language of the statute would appear to require a permit for any obstruction to the navigability of the Willamette, including "any wharf, pier, * * * or other structures * * *." But a regulation promulgated by the Corps of Engineers introduces some uncertainty. 33 C.F.R. § 322.4 (1979) exempts certain structures and work from the requirements of 33 U.S.C. § 403, including:
"(c) The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure or of any currently serviceable structure constructed prior to the requirement for authorization; provided such repair, rehabilitation, or replacement does not result in a deviation from the plans of the original structure, and further provided that the structure to be maintained has not been put to uses differing from uses specified for it in any permit authorizing its original construction;
"* * *.
"(g) Structures or work completed before 18 December 1968 * * *."
Plaintiff contends that his dock was "grandfathered" by the above regulation, because the dock had been there prior to 1968, and because the modifications which *403 plaintiff made to the dock did not "result in a deviation from the plans of the original structure." Plaintiff testified that he had telephoned the Corps "back quite some years ago," and "they" told him he did not need a permit. The plaintiff never indicated with whom he spoke.
Defendant presented evidence that plaintiff substantially modified the dock after he acquired it in 1971. Plaintiff added a "topper" float, replaced a boathouse with a boat slip, changed the means by which the dock was anchored in the river, and added a steel gangway. Curiously, neither side presented evidence to show how the Corps construes its own regulation. Such evidence would not be conclusive, for the applicability of a regulation to a particular set of facts is a question of law about which a court must always draw its own conclusions. Kirkpatrick v. Peet, 247 Or. 204, 211, 428 P.2d 405 (1967). However, we accord considerable weight to the views of an agency concerning the interpretation of statutes with which it deals on a regular basis. Rogers Construction Co. v. Hill, 235 Or. 352, 356, 384 P.2d 219 (1963).
The trial court treated the question of plaintiff's compliance with 33 U.S.C. § 403 as an issue of fact. The court ruled from the bench as follows:
"The only testimony in this case is that both plaintiff and the previous owner communicated with the appropriate authorities, whether that is the Corps of Engineers or whoever, and that they were informed that no license or permit was required for this particular use. The evidence was uncontroverted. No contrary evidence was offered by the defendant."
The Court of Appeals concluded that the trial court was in error on this point, holding that the issue of plaintiff's compliance is a question of law, not of fact, and that the modifications to the dock "have `resulte[d] in a deviation from the plans of the original structure,' removing plaintiff from the exemption of 33 CFR § 322.4(c)." 39 Or. App. at 807, 593 P.2d at 1257. Nevertheless, the Court of Appeals affirmed the judgment, reasoning that "in the narrow context of these facts as they appear in this case, the public interest [in freely navigable waterways] is not so strong as to require plaintiff to pursue his inquiries regarding the dock permit further than he did in order to avoid the consequences of the Pennsylvania rule." 39 Or. App. at 808, 593 P.2d at 1258.
We agree with the Court of Appeals that plaintiff's dock did not fall within the exemption of 33 CFR § 322.4(c) and (g). There is no issue of fact concerning plaintiff's modifications to the dock. The evidence on that point came from the plaintiff himself. Neither party cited any case or administrative ruling in which a court or the Corps construed the critical language of 33 CFR § 322.4: "provided such repair, rehabilitation or replacement does not result in a deviation from the plans of the original structure," nor could we find any authority on point. Until 1977, Corps regulations grandfathered only structures or work completed by 1968. 33 CFR § 209.120(g)(12)(vii) (1976). In 1977 the Corps promulgated the language quoted above. 42 Fed.Reg. 37121, 37140 (1977). The explanatory text accompanying the new rules stated only that "no deviation from original plans is authorized." Id. at 37126. If that is the standard, we hold that the work plaintiff performed, including a change in the basic method for anchoring the dock in the river, resulted in several deviations from the plans of the original structure.
The Court of Appeals held, however, that even if the exemption does not apply, plaintiff should not have to bear the burden imposed by the Pennsylvania rule, when the Corps of Engineers told him that the dock did not need a permit. With this conclusion we cannot agree. The regulations of the Corps provide that any person proposing to construct a float-supported platform in a navigable river must file a written application form with the District Engineer. 33 CFR § 325.1(b) (1979). The application must include certain pertinent information, including sketches or plans, the location and intended use of the structure, the names *404 and addresses of adjacent property owners, and the location and dimensions of adjacent structures. Id., § 325.1(c)(1), (4). Had the plaintiff followed this procedure and then been told by the Corps that no permit was required, the plaintiff would have done everything within his power to comply with the statute. The policy underlying the Pennsylvania rule "to enforce obedience to the mandate of the statute"[3] would have been carried out. Under those circumstances, there would be no reason to impose a harsh presumption of negligence, even if a correct reading of the regulation would require the Corps to issue a permit for the dock.
The facts of this case are much different. At no time did plaintiff file anything in writing with the Corps. The only evidence in the record of plaintiff's effort to comply with the statute is his testimony that "back quite some years ago" he telephoned some unnamed government employe, "and they said it wasn't necessary." The record does not indicate with whom the plaintiff spoke, what that person actually said, or what information plaintiff furnished concerning the details of his proposed modifications to the dock. In short, the evidence did not show that a responsible official of the Corps advised plaintiff, after reviewing his plans, that a permit would not be necessary.
A similar issue arose in United States v. Sunset Cove, 5 ERC 1023 (D.Or. 1973), affd. in part, 514 F.2d 1089 (9th Cir.) cert. den. 423 U.S. 865, 96 S. Ct. 125, 46 L. Ed. 2d 94 (1975). In that case the federal government brought a civil action against a corporation which violated 33 U.S.C. § 403 by creating an elevated sandspit in the estuary of the Necanicum River, near Seaside, Oregon. There were questions as to whether the river was navigable, and whether the locations where defendant dumped debris fell within the boundaries of the navigable servitude. The defendant did not apply for a permit prior to commencing the work, but an officer of the defendant called an unidentified individual in the Portland office of the Corps, who allegedly told him it was safe to stay above six feet. 5 ERC at 1027. A Corps employe who visited the project site allegedly said the same thing. Defendants claimed that the government was thereby estopped to object to the land fill. The court rejected this argument:
"The telephone inquiries to Corps employees in Seattle and Portland are an insufficient basis for estoppel. There is no written record of these calls, and the only evidence of them was the recollection of one of defendant's owners. The identity of the second official is unknown. Neither of them had defendant's plans before them, and it is unclear in what context the answers were given. * * * Had [the defendant] made an application in advance to the Corps for a permit, or at least if it had made an inquiry and provided the Corps with complete plans of its intentions, its position would be less vulnerable. By failing to take advantage of the opportunity which it had, not only did it forfeit a claim to a right of estoppel, but it also deprived the Corps of a means whereby its attention could have been formally directed to issue." 5 ERC at 1028-29.[4]
See also Potomac River Assn., Inc. v. Lundeberg Maryland Seamanship School, Inc., 402 F. Supp. 344, 355 (D.Md. 1975), in which the court held that the Corps may make decisions under 33 U.S.C. § 403 only when presented with a permit application.
Plaintiff may not rely on his casual inquiry to excuse noncompliance with the permit *405 requirement. Having determined that the dock required a permit, that it did not have one, and that plaintiff did not have a right to rely on an oral exemption from an anonymous official, we conclude that the trial court should have applied the Pennsylvania rule.
As noted above, the rule imposes an onerous burden on the statutory violator. In order to prevail the plaintiff would have had to show that his failure to obtain a permit and to comply with any conditions attached to the permit could not have caused or contributed to the injury. In this case, that would have meant showing that the Corps could not have required plaintiff to build a sturdier dock, as a condition to the issuance of a permit. Plaintiff did not advance that argument, nor could he have done so. 33 CFR § 325.5(a)(2) (1979) provides that "Special conditions applicable to the specific activity will be included in the permit as necessary to protect the public interest." 33 CFR § 322.5(d) (1979), states:
"Particular attention will be given to the location and general design of [small boat docks] to prevent possible obstructions to navigation with respect to both the public's use of the waterway and the neighboring proprietors' access to the waterway. Obstructions can result from both the existence of the structure * * and from its inability to withstand wave action or other forces which can be expected."
The trial court found that defendant's negligence subjected the dock to greater stress than could have been expected from the normal passage of river traffic. That may be so, but we cannot say that the Corps could not have mandated structural improvements, as "insurance" against the type of damage that ultimately occurred. The possibility that compliance with the permit requirements might have prevented the accident is fatal to plaintiff's claim, however unlikely it may be that the Corps would have mandated improvements as a condition to the issuance of a permit.
Reversed.
TONGUE, J., dissenting.
NOTES
[1] The statute provides, in pertinent part:
"[I]t shall not be lawful to build or commence the building of any wharf, pier, * * or other structures in any port, roadstead, haven, harbor, canal, navigable river or other water of the United States * * * except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; * * *.
All parties agree that the Willamette is a navigable river of the United States, and that plaintiff never obtained a permit for the dock.
[2] See, e.g., J. Griffin, The American Law Collision § 201 (1949): "It may perhaps be regretted that the word `could' was employed in the statement of the rule in The Pennsylvania. In almost any instance of fault it is possible to imagine that the fault `could' have had some relation to the accident * * *."
[3] The Pennsylvania, 86 U.S. 125, 136, 22 L. Ed. 148 (1874).
[4] In Sunset Cove, the issue of a citizen's right to rely on statements from officials of the Corps regarding the need for a permit arose in the context of an estoppel claim in litigation between the government and a private party, rather than as an issue in litigation between two private parties. In both cases, however, the court is asked to excuse noncompliance with a statute on the ground that the citizen relied on a statement by an official of the agency in charge of administering the statute. In both cases, the issue is whether the citizen had reasonable grounds to rely on the statement as a definitive summary of his legal obligations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614915/ | 69 Wash. App. 143 (1993)
847 P.2d 538
THE STATE OF WASHINGTON, Respondent,
v.
TROY S. PETERSON, Appellant.
No. 12295-6-III.
The Court of Appeals of Washington, Division Three.
March 18, 1993.
Daniel M. Arnold, for appellant.
Gary A. Riesen, Prosecuting Attorney, for respondent.
*144 SHIELDS, C.J.
Troy Peterson appeals a superior court finding of noncompliance with a condition of postrelease community placement and its order to serve 60 days in the county jail. We set aside the finding and order.
Mr. Peterson pleaded guilty to one count of rape in the second degree and one count of burglary in the first degree on October 3, 1988. The Chelan County Superior Court sentenced him to 41 months in prison and 1 year of community placement. The court imposed a condition on Mr. Peterson's community placement: "The defendant shall participate in crime related treatment or counseling services as directed by his corrections officer once he is released from prison".
Mr. Peterson was released from prison on December 1, 1991, and placed in the Aberdeen area. His corrections officer directed him to see Dr. Michael Barsanti, an Olympia-based psychologist specializing in sexual deviancy treatment. Mr. Peterson does not dispute that Dr. Barsanti was the only qualified specialist in the region.
Mr. Peterson had attended sex offender treatment programs twice previously. The year before the 1988 rape, while in the juvenile detention system, he completed a sex offender treatment program at the Maple Lane Correctional Facility. A year after the rape, while in the state prison system, he attended the Twin Rivers Sex Offender Treatment Program for 4 months. However, he was terminated from this program because of aggressive behavior and threats.
Mr. Peterson made the 60-mile trip to Olympia and appeared for his appointment with Dr. Barsanti on January 23, 1992. At that meeting, Mr. Peterson said that he came to see the doctor "to let the people know I'm ok." "I did my time, I'm staying away from booze and drugs, and dealing with self-esteem." "I think I got rid of my sex problem when I went to Maple Lane." "I don't have a problem." "I think my problems disappeared in the joint." "I felt coerced into doing the burglary and rape. The other guy had threatened me."
*145 Based on that meeting, Dr. Barsanti declined to accept him into treatment with his outpatient therapy group. Dr. Barsanti gave the following reasons for his decision: Mr. Peterson had committed violent sex crimes, had been terminated from the Twin Rivers Sex Offender Treatment Program because of aggression and threats, and refused to admit he had a sex deviance problem. Three weeks later, Mr. Peterson was arrested in Wenatchee for failing to enter Dr. Barsanti's treatment program, thus failing to comply with a condition of community placement.
Mr. Peterson first contends placement in a sex offender treatment program is not an authorized condition of community placement under RCW 9.94A.120(8). He argues RCW 9.94A.120(8) does not by its terms authorize coerced performance of affirmative conduct by an offender. Because RCW 9.94A.120(8)(c)(iii) does not define "crime-related treatment or counseling", he argues the interpretation of "crime-related prohibitions" in State v. Parramore, 53 Wash. App. 527, 529-30, 768 P.2d 530 (1989) should apply. He further points out he was not sentenced under the special sexual offender sentencing alternative (SSOSA), which allows first-time sexual offenders to be placed in treatment, if they are amenable to it, as an alternative to prison. RCW 9.94A.120(7).
[1, 2] Mr. Peterson properly notes that this court must give effect to the purposes of the statute as a whole. State v. Stannard, 109 Wash. 2d 29, 36, 742 P.2d 1244 (1987). RCW 9.94A.120(8) is written in terms of "community placement" but does not define that term. However, RCW 9.94A.030(7) defines a similar term, "community supervision", relating to first offenders, as:
(7) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court pursuant to this chapter or RCW 46.61.524.
Although a "prohibition" cannot, by definition, require affirmative conduct, "other sentence conditions" can. The relevant *146 "other sentence conditions", which apply to first offenders, are set out in RCW 9.94A.120(5) as:
(a) Devote time to a specific employment or occupation;
(b) Undergo available outpatient treatment for up to two years, or inpatient treatment not to exceed the standard range of confinement for that offense;
(c) Pursue a prescribed, secular course of study or vocational training;
(d) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;
(e) Report as directed to the court and a community corrections officer; or
(f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030 and/or perform community service work.
(Italics ours.) Thus, the statute does give authorization to require an offender on community placement to undergo available outpatient treatment. RCW 9.94A.120(5)(b). Here, that outpatient treatment was not available to Mr. Peterson because he was considered not amenable to treatment.
Mr. Peterson next contends that even if receiving treatment is a valid condition, he did not willfully violate the condition of community placement. He drove 60 miles to keep the appointment and was open with the doctor about his feelings; it was Dr. Barsanti who declined to accept him. He also argues that the community corrections officer made no effort to find alternative crime-related treatment for him.
The State correctly points out that the statute governing noncompliance with a condition of a sentence requires only a preponderance of the evidence to show a failure to comply. RCW 9.94A.200(2)(b). Once the State shows a failure to comply, the burden shifts to the offender to show cause why he should not be punished. RCW 9.94A.200(2)(a). Contrary to Mr. Peterson's position, willfulness is a factor only in modifying orders regarding payment of legal financial obligations and community service obligations. RCW 9.94A.200(2)(c). Neither of those obligations is involved here.
Were willful noncompliance the issue, it would have been necessary for the State to show an ability to comply with the *147 condition. See State v. Hayes, 56 Wash. App. 451, 453, 783 P.2d 1130 (1989). The State could not have shown ability to comply in light of Dr. Barsanti's refusal to accept Mr. Peterson for treatment. The refusal placed Mr. Peterson in the position of being unable to comply. However, at issue is simply whether Mr. Peterson complied with the condition of his community placement.
The State's motion alleged Mr. Peterson failed to comply "[b]y failing to enter into a sex offender treatment program on January 23, 1992, in Thurston County." However, entry into Dr. Barsanti's outpatient sex offender treatment program was not the condition the sentence imposed. Rather, the condition was to "participate in crime related treatment or counseling services", as authorized by statute. (Italics ours.) If the corrections officer directs entry into a particular sex offender treatment program which will not accept the offender, no volitional act of noncompliance has occurred, from the offender's standpoint, under the sentence condition as imposed. Thus, the State has not shown Mr. Peterson's failure to comply.
Mr. Peterson finally argues that RCW 9.94A.120(8), when read with RCW 9.94A.120(7)(a)(i), prohibits imposition of a treatment condition unless the court first finds the offender is amenable to treatment. The argument, on the facts before us, is immaterial. RCW 9.94A.120(7)(a)(i) is a special provision for first-time nonviolent sex offenders who may avoid jail or prison time if they qualify for SSOSA. Use of SSOSA requires an evaluation of amenability to treatment and relative risk to the community. Only if a first-time nonviolent sex offender is found amenable to treatment, and other considerations are met, will the offender qualify for SSOSA.
Mr. Peterson is not a first-time nonviolent sex offender; his relative risk to the community has been measured by a term in prison; and his nonamenability to treatment makes outpatient treatment unavailable. Available alternative treatment or counseling services have not been offered or explored. This is precisely the purpose of RCW 9.94A.120(8)(d). The Department of Corrections should have recommended *148 a modification of its condition to treatment which was available.[1]
[3] The trial court's sentencing authority cannot exceed the authority conferred by statute. In re Carle, 93 Wash. 2d 31, 33, 604 P.2d 1293 (1980). It was beyond the authority of the court to punish Mr. Peterson for failing to gain admission to a particular sex offender treatment program. The court's finding of noncompliance is set aside and the order to serve 60 days in the county jail is reversed.
MUNSON and THOMPSON, JJ., concur.
NOTES
[1] This is not to say Mr. Peterson does not appear to pose a risk to the community. Our holding simply states Mr. Peterson must be dealt with according to law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877695/ | 285 So. 2d 670 (1973)
Charles Henry SUMMIT, Appellant,
v.
The STATE of Florida, Appellee.
No. 72-1316.
District Court of Appeal of Florida, Third District.
October 2, 1973.
Rehearing Denied December 7, 1973.
Henry E. Coleman, Key West, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Miami, for appellee.
Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.
PER CURIAM.
Defendant-appellant was informed against, tried by jury, convicted, and sentenced to ten (10) years imprisonment for lewd and lascivious conduct upon a female child under the age of fourteen (14) [Fla. Stat. § 800.04, F.S.A.].
On appeal one of appellant's contentions is that the trial court erred in admitting into evidence testimony concerning prior sexual offenses with the victim and the victim's sister. We cannot agree.
We find Ross v. State, Fla.App. 1959, 112 So. 2d 69 to be controlling. In Ross, this Court, citing Talley v. State, 160 Fla. 593, 36 So. 2d 201 and Williams v. State, Fla. 1959, 110 So. 2d 654, held that in a prosecution for assault in a lewd and lascivious manner upon a girl under 14 years of age, evidence of similar conduct toward another young girl on a continuing series of occasions, was relevant and admissible to show character of the deed as to motive, intent, and absence of mistake.
Turning to the case sub judice, we find the testimony of the victim and her sister regarding prior similar conduct on the part of the defendant with them to show the character of the deed as to motive and intent to be relevant and admissible. Therefore, we hold the trial court to be correct in denying defendant's motion for mistrial on the grounds that the above testimony was admitted improperly.
*671 On appeal, defendant-appellant additionally argues that the evidence was insufficient to support the conviction. We disagree.
Upon a review of the evidence, we conclude that it was sufficient to support the judgment. See Giuliano v. State, Fla. 1950, 46 So. 2d 182.
We also have considered appellant's remaining points on appeal and find them to be without merit.
Accordingly, the judgment appealed must be and hereby is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877731/ | 285 So. 2d 618 (1973)
Richard W. DODGE, Petitioner,
v.
SEA LEDGE PROPERTIES, INC., et al., Respondents.
No. 44626.
Supreme Court of Florida.
November 14, 1973.
Certiorari dismissed. 283 So. 2d 55. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900468/ | COURT OF APPEALS
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE SPIKE S RANCH, INC. AND
GUIDO PATHAK,
Appellants,
v.
FOREIGN TRADE AND
MANAGEMENT, S.A.
Appellee.
'
'
'
'
'
'
No.
08-99-00411-CV
Appeal from the
County Court at Law
No. 3
of El Paso County, Texas
(TC# 99-2521)
MEMORANDUM OPINION
The instant appeal is reinstated
following an automatic stay and the motion to substitute counsel is
granted. Pending before the Court is a
motion for rehearing and joint motion to dismiss appeal.
Shortly after issuance of our opinion
which reversed the trial court=s order denying arbitration, appellants filed a bankruptcy
petition. Spike S. Ranch, Inc. v.
Foreign Trade and Management, S.A., No. 08-99-00411-CV, 2000 WL 1038165
(Tex. App.--El Paso July 27, 2000, no pet.) (not designated for
publication). As a result of the
automatic stay, the Court could not act upon appellee=s motion for rehearing or other
pending motions.
Appellants and appellee have resolved
all matters between them in the course of the bankruptcy proceedings. Accordingly, the parties have filed this
motion to dismiss appeal pursuant to Tex.
R. App. P. 42.1, which states that:
(a) On Motion or By Agreement. The appellate court may dispose of an
appeal as follows:
(1) On Motion
of Appellant. In accordance with a
motion of appellant, the court may dismiss the appeal or affirm the appealed
judgment or order unless disposition would prevent a party from seeking relief
to which it would otherwise be entitled.
(2) By
Agreement. In accordance with an
agreement signed by the parties or their attorneys and filed with the clerk,
the court may:
(A) render judgment effectuating the parties= agreements;
(B) set aside the trial court=s judgment without regard to the merits and remand the
case to the trial court for rendition of judgment in accordance with the
agreements; or
(C) abate the appeal and permit proceedings in
the trial court to effectuate the agreement.
The motion for rehearing is denied as
moot, and the appeal is dismissed pursuant to the agreement of the
parties. The judgment of July 27, 2000
is withdrawn and the judgment of December 11, 2003 is substituted. Each party shall bear its own costs in this
Court and the court below.
SUSAN
LARSEN, Justice
December 11, 2003
Before Panel No. 3
Barajas, C.J., Larsen, and Chew,
JJ. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984607/ | March 4, 2014
JUDGMENT
The Fourteenth Court of Appeals
CHARLES KENNEBREW, SR. AND ELITE PROTECTIVE SERVICES, LLC,
Appellants/Cross-Appellees
NO. 14-12-01015-CV
NO. 14-12-01044-CV V.
MICHAEL R. HARRIS, Appellee/Cross-Appellant
________________________________
This cause, an appeal from the judgment signed August 9, 2012 in favor of
appellee Michael R. Harris, was heard on the transcript of the record. We have
inspected the record and find error in the judgment. We therefore REFORM the
judgment of the court below to
a. increase the actual damages awarded to Harris from $29,295.29 to
$64,144.19; and
b. delete the portions of the judgment holding Charles Kennebrew Sr. jointly
and severally liable with Elite Protective Services, LLC.
Thus, in the judgment as modified, Elite is solely liable to Harris for $64,144.19 in
actual damages and $50,023.00 in attorney’s fees, together with costs and post-
judgment interest.
We order the judgment of the court below AFFIRMED except as modified
in this judgment.
We order appellant/cross-appellee Elite Protective Services, LLC to pay all
costs incurred in this appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1670108/ | 553 So. 2d 334 (1989)
Charles Thomas REZNER, Appellant,
v.
Karen Carmen REZNER, Appellee.
No. 88-2156.
District Court of Appeal of Florida, Fourth District.
December 6, 1989.
*335 Paul F. King of Edna L. Caruso, P.A., West Palm Beach, for appellant.
Burton G. Sharff, West Palm Beach, for appellee.
WARNER, Judge.
The husband appeals a final judgment of dissolution claiming that the award of permanent alimony to the wife and the division of the marital property amounted to an abuse of discretion by the trial judge. We agree and reverse.
The wife has primary physical custody of one minor child and receives child support for this child. The husband has primary physical custody of the parties' other two children. Despite the fact that the income of both parties was insufficient to meet their respective expenses, the wife received an award of permanent periodic alimony which resulted in her having a greater disposable income than the husband.[1] The wife contends that the trial court was attempting to equalize their respective positions. However, with the husband supporting two of the children without any support flowing from the wife the result is to make their positions substantially unequal.
Furthermore, the wife has the ability to become and is in fact self supporting. She is a teacher who has advanced rapidly since re-entering this profession. Her income is more than two-thirds of her husband's current income. The wife has also been a very successful real estate salesperson in the past, at one time selling $500,000 of real property in one month. With this kind of support ability on behalf of the wife the award of permanent alimony to the wife was an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). See also Contogeorgos v. Contogeorgos, 482 So. 2d 590 (Fla. 4th DCA 1986), and Wismar v. Wismar, 522 So. 2d 552 (Fla. 5th DCA 1988).
We also reverse the award to the wife of the husband's interest in the marital home as lump sum alimony. That distribution to the wife resulted in the wife receiving 80% of the marital assets.[2] We have held in Longo v. Longo, 533 So. 2d 791 (Fla. 4th DCA 1988), that marital assets should be divided equally unless there is some showing of disparity in contribution or other justification to warrant the disparate treatment. The trial court expressed no justification except that it was awarded as "lump sum alimony and in full payment of Respondent's obligation towards Petitioner's attorney fees and costs." Compensation for attorney's fees is not a justification for disparate division of marital assets under Canakaris, Tronconi v. Tronconi, 425 So. 2d 547 (Fla. 4th DCA 1982), aff'd 466 So. 2d 203 (Fla. 1985), or any other decided authority. Lump sum alimony is a method with which to satisfy support obligations, special claims, or equitable disposition of interests in jointly held properties. Tronconi, 466 So.2d at 205. It is not a vehicle to assure payment of attorneys fees. In addition, the amount of attorney's fees claimed here was only about one-fourth of the value of the husband's one-half interest in the home. Therefore, even under the trial court's rationale, the wife would be substantially overcompensated for her attorney's fees.
There are in this case other factors in the record which may justify a disparate division of marital assets or the award of lump sum alimony to the wife. Whether and to what extent these factors are sufficient to justify the division made by the trial court absent the justification of attorneys fees is properly left to the trial court's resolution, and we remand for the trial court to redetermine *336 the equitable distribution of marital assets and lump sum alimony. Furthermore, the trial court will have to evaluate the request for attorneys fees on behalf of the wife after it distributes the marital assets.
Finally, on remand the trial court should provide for payment of the parties' credit card debts which was not addressed in the final judgment. See Italiane v. Italiane, 342 So. 2d 1003 (Fla. 4th DCA 1977).
Reversed and remanded for further proceedings consistent with this opinion.
ANSTEAD and GLICKSTEIN, JJ., concur.
NOTES
[1] Our result therefore takes into account the amended final judgment which changed the primary physical residence of one of the children. While by order it appeared that this court had denied a motion to supplement the record with this order, that was in fact an error.
[2] The husband has also claimed that the wife received the balance of their money market account which was not considered by the trial court. Including those monies, the wife received more than 80 percent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/716480/ | 81 F.3d 174
U.S.v.Whiley*
NO. 94-3246
United States Court of Appeals,Eleventh Circuit.
Mar 15, 1996
Appeal From: N.D.Fla., No. 94-03060-4-LAC
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/847539/ | 706 N.W.2d 741 (2005)
PEOPLE v. DOBY.
No. 128392.
Supreme Court of Michigan.
December 15, 2005.
Application for leave to appeal.
SC: 128392, COA: 251680.
On order of the Court, the motion to add issues is GRANTED. The application for leave to appeal the February 22, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. We take this opportunity to clarify that, although defendant is not entitled to the new sentencing provisions contained in MCL 333.7401(2)(a)(ii), he is entitled to early parole eligibility under MCL 769.234(11). Defendant committed his offense before March 1, 2003, and that statute grants early parole eligibility to persons convicted of "violating or conspiring to violate section 7401(2)(a)(ii) . . . before March 1, 2003." | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614935/ | 847 P.2d 276 (1993)
EMPIRE LATH & PLASTER, INC., Plaintiff and Respondent,
v.
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant and Appellant.
No. 92-090.
Supreme Court of Montana.
Submitted on Briefs May 28, 1992.
Decided February 11, 1993.
Rehearing Denied March 4, 1993.
Richard J. Andriolo, Berg, Lilly, Andriolo & Tollefsen, Bozeman, for Defendant and Appellant.
P. Bruce Harper, Billings, for Plaintiff and Respondent.
TRIEWEILER, Justice.
Defendant American Casualty Company of Reading, Pennsylvania (American Casualty), appeals from a default judgment of $58,049.40, entered in favor of Empire Lath & Plaster, Inc. (Empire) on November 6, 1991, in the Thirteenth Judicial District Court, Yellowstone County. American Casualty's subsequent motion to set aside the *277 judgment was deemed denied pursuant to Rule 60(c), M.R.Civ.P., when the District Court failed to rule on the motion within 45 days.
We affirm.
The sole issue for our consideration is whether the District Court abused its discretion when it did not grant American Casualty's motion to set aside the default judgment.
This litigation arises out of a construction contract associated with the building of the Billings Parking Garage and City Hall Expansion Project. In April 1990, the City of Billings awarded the general contract for the construction project to C & D Contractors, Inc. (CD), and CD thereafter subcontracted a portion of the project to Empire. In connection with the general contract, a bond in excess of $3 million was executed by American Casualty to guarantee payment to subcontractors for labor, material, and equipment supplied during the construction project.
Empire completed its portion of the work on April 16, 1991, and submitted its final billing statement to CD which reflected an unpaid balance due Empire totalling $47,124.96. In addition to the amount owed under the subcontract, Empire had performed a "change order" for the project which had been authorized by CD and approved by the project architect, at a cost of $1,200.00.
At the same time Empire submitted its final statement, CD sent a letter to Empire confirming the outstanding balance due under the contract, but asserting that Empire had failed to "diligently pursue its work in a timely manner." CD claimed this failure to properly perform under the contract delayed the entire project and resulted in significant additional costs to CD. No further facts nor specifics were ever provided to Empire in regard to the alleged contract breach.
After computing the costs which it alleged were a result of Empire's delay, CD determined it would withhold $31,576.00, and tendered a check to Empire for $15,548.96. The check contained a restrictive endorsement which provided that Empire's endorsement would acknowledge final and conclusive payment for all work performed, and would release CD from any further liability under the subcontract. Empire refused to execute the check due to the restrictions, and insisted on either full payment, or payment of the uncontested sum of $15,548.96, with an understanding that the parties would attempt to resolve the dispute over the remaining amount.
Empire received no payments from CD, and on July 2, 1991, Empire submitted a notice to the City of Billings, CD, and American Casualty (as the surety for the project), stating that it had a claim of $47,124.96 against the bond for the work performed under the subcontract, and also for the $1,200.00 incurred for the change order. Empire received no response from either CD or American Casualty regarding the claim notice.
On August 14, 1991, Empire filed a complaint in District Court against American Casualty in order to collect the outstanding balance owed to Empire which was guaranteed by the bond. This civil action was filed in Yellowstone County as required by provisions contained in the bond; CD was not named as a defendant in the case because the subcontract between CD and Empire required venue in Lewis and Clark County. The summons and complaint were served on American Casualty's legal department on August 23, 1991.
The Claims Analyst for American Casualty immediately forwarded the summons and complaint to CD, along with a letter tendering the defense of the action to CD as was apparently standard practice. Although American Casualty was in communication with CD on other matters, Empire's pending lawsuit was never discussed, and CD asserts that it had no knowledge of the action nor ever received American Casualty's letter tendering the defense of the action to CD.
The District Court, based on an affidavit from the supervising architect of the construction project, found that Empire had fully and competently performed the requirements of the subcontract in a timely *278 manner, and that there was no basis to withhold full payment to Empire. The court concluded that Empire had complied with all conditions required by the bond, and was, therefore, entitled to recover from American Casualty under the bond. The court entered a default judgment against American Casualty on November 6, 1991, for $58,049.40, which represented the contract amount due Empire, plus interest, the $1,200.00 incident to the change order, and attorney fees and costs of $170.39.
The following day, American Casualty discovered that the default judgment had been entered and that no appearance had been made by CD on behalf of the surety. On November 14, 1991, American Casualty moved to set aside the default judgment, filed its answer to the complaint, and requested a trial on the merits. The District Court did not rule on the motion within 45 days from the time it was filed, and the motion was, therefore, deemed denied pursuant to Rule 60(c), M.R.Civ.P. From this denial of the motion to set aside the default judgment, American Casualty appeals.
The issue presented is whether the District Court abused its discretion when it did not set aside the default judgment. American Casualty argues that the court should have granted relief from the judgment under Rule 55(c), M.R.Civ.P., which allows for the setting aside of a default judgment:
For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).
Rule 60(b), M.R.Civ.P., states in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason justifying relief from the operation of the judgment.
Where a trial court fails to grant a motion to set aside a default judgment, the finding of even a slight abuse of discretion is sufficient to justify reversal of such an order. Board of Directors Edelweiss Owners' Assn. v. McIntosh (1991), 251 Mont. 144, 822 P.2d 1080. In Lords v. Newman (1984), 212 Mont. 359, 363, 688 P.2d 290, 293, we emphasized two basic tenets to be considered in setting aside default judgments: (1) every litigated case should be tried on its merits and judgments by default are not favored; and (2) trial courts have a certain amount of discretion when considering a motion to set aside a default judgment. We have also clearly stated that the burden of proof rests on the party seeking to set aside the default judgment. Siewing v. Pearson Co. (1987), 226 Mont. 458, 461, 736 P.2d 120, 122.
After considering these factors and applying the appropriate standard of review to the present case, we conclude that the District Court did not abuse its discretion when it failed to grant American Casualty's motion.
American Casualty contends that the failure to file an answer was excusable neglect, and it is, therefore, entitled to relief from the judgment pursuant to Rule 60(b), M.R.Civ.P. However, in In re Marriage of Castor (1991), 249 Mont. 495, 817 P.2d 665, we emphasized that "mistake," inadvertence," and "excusable neglect" generally require some justification for an error beyond mere carelessness or ignorance of the law. Castor, 817 P.2d at 667 (citing Lomas and Nettleton Co. v. Wiseley (7th Cir.1989), 884 F.2d 965, 967). In this instance, we conclude that American Casualty's neglect was not justified and that the criteria of Rule 60(b) have not been satisfied.
The bonding company asserts that it was standard practice to have CD take over the defense of actions filed against American Casualty. American Casualty then maintains that after notifying CD, the claims analyst kept the complaint with other active files because she was purportedly monitoring negotiations between Empire and CD. This resulted in the normal calendaring procedure being overlooked and, consequently, American Casualty did not check to see that a timely response had been filed. Furthermore, CD claims it never *279 received the tender letter, and attributes this to the fact that CD was moving its offices and reducing office personnel at the time the letter was sent.
Based on Blume v. Metropolitan Life Insurance Company (1990), 242 Mont. 465, 791 P.2d 784, where this Court found the district court abused its discretion when it refused to vacate a default judgment, American Casualty suggests the neglect in this situation is also inadvertent and excusable. In Blume, certified mail containing a summons and complaint was delivered to the defendant company, but was apparently lost before anyone in a position of authority saw it. After reviewing the record in this case, however, we conclude that the neglect demonstrated by both American Casualty and CD is not comparable to the inadvertence we excused in Blume.
Unlike Blume, where the defendant company was unaware that the plaintiff was seriously considering filing suit and had no reason to suspect that a court appearance was necessary, neither American Casualty nor CD can profess ignorance of Empire's intention to pursue recovery under the bond. When Empire refused to execute the check for $15,548.96 because acceptance of this check would have released CD from further liability under the subcontract, CD was fully aware that Empire was challenging the unilateral withholding of payments. Empire then complied with the required notice provisions prior to filing its complaint, thus giving both American Casualty and CD written notice of its claim against the bond and intent to seek recovery.
The record shows that American Casualty was put on notice that Empire would assert its rights under the bond directly against the bonding company a minimum of five times prior to the filing of the complaint, and unlike the defendant in Blume, the appropriate personnel did receive a copy of the summons and complaint. While it may have been reasonable to assign CD the responsibility of responding to Empire's complaint, American Casualty cannot justify its failure to follow-up on the matter. This is particularly true in light of the following statement made in the August 27, 1991 tender letter:
Please acknowledge your acceptance of this tender of defense prior to the answer date and furnish the undersigned with a copy of the answer.
As the only defendant named in the case, American Casualty had the responsibility to follow-up on its own request and insure that CD received and accepted the tender, and was preparing an appearance on American Casualty's behalf.
The neglect demonstrated in this case was not like the unintentional oversight in Blume, and is, therefore, not excusable.
[3] In addition to finding excusable neglect, the judgment of a district court can be set aside for "any other reason justifying relief from the operation of the judgment." Rule 60(b)(6), M.R.Civ.P. Generally, relief is afforded under this subsection only in extraordinary situations when circumstances go beyond those covered specifically in Rule 60(b). Castor, 817 P.2d at 668; Fuller v. Quire (6th Cir.1990), 916 F.2d 358, 360. After reviewing the record, we conclude that American Casualty has failed to establish any other reason which would justify relief from the operation of the default judgment.
We hold the District Court did not abuse its discretion when it did not grant the motion to set aside the judgment entered against American Casualty.
Affirmed.
HARRISON, HUNT, McDONOUGH and WEBER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2367076/ | 671 S.W.2d 604 (1984)
Don Kenneth KELLER, Jr., Appellant,
v.
Russell JUDD, Appellee.
No. 04-83-00096-CV.
Court of Appeals of Texas, San Antonio.
April 18, 1984.
*605 Daniel R. Rutherford, San Antonio, for appellant.
Robin V. Dwyer, Dibrell, Dotson, Dibrell & Dibrell, San Antonio, for appellee.
Before BUTTS, TIJERINA and DIAL, JJ.
OPINION
DIAL, Justice.
The trial court rendered judgment for appellee in his suit against appellant for breach of warranty and misrepresentation in the sale of an automobile which was later confiscated by the State of Texas as a stolen vehicle.
Appellant's points of error deal with two issues. First, appellant claims three statutes are unconstitutional when applied in connection with each other: the Texas Certificate of Title Act, TEX.REV.CIV.STAT. ANN. art. 6687-1 (Vernon 1977 and Vernon Supp.1984); the breach of warranty provisions of the Texas Business and Commerce Code, TEX.BUS. & COM.CODE ANN. § 2.312 (Vernon 1968); and the Texas Deceptive Trade Practices Act, TEX.BUS. & COM.CODE ANN. §§ 17.50 and 17.50A (Vernon Supp.1984). Second, appellant cites as error the trial court's refusal to permit joinder of the State of Texas as a third-party defendant and to abolish governmental immunity. We affirm.
The facts of this case are as follows. Around September, 1980, while at a paint-and-body shop checking into work being done for him, appellant encountered one Jerome Crayton. Crayton offered to sell a 1980 Bill Blass Lincoln Continental for $15,000. Appellant said that was too much but agreed to buy when Crayton lowered his price to $10,000. Crayton said his brother-in-law needed to sell the car and that it had been damaged. Subsequently, Crayton handed appellant a Texas certificate of title already signed by Crayton's alleged brother-in-law, Larry Lawson. Appellant *606 arranged for a bank loan, and he and the bank officer checked the vehicle identification number against the number listed on the title certificate. Appellant cashed the bank's check and gave Crayton $10,000.
Three or four weeks later, appellant sold the car to appellee. Appellant signed the certificate of title and appellee paid $10,358 to retire appellant's bank note plus $441.12 to appellant as equity. Appellant admitted representing to appellee that he was the owner of the car. When appellee applied for a certificate of title, the Texas Highway Department had by then learned that the Michigan certificate accompanying the first application for title was counterfeit. A Texas Department of Public Safety investigator inspected the car and found the identification number had been altered in some, but not all, places on the car. The car was confiscated and later awarded to AAA of Michigan Insurance Company as a result of that insurer's intervention in The State of Texas v. 1980 Lincoln, VIN # OY89G649411.
The present record does not include all the details on the car's title certificates. However, the Texas Department of Public Safety investigator testified the first title certificate was issued to Larry Lawson and was assigned on the back to appellant. The investigator did not know if Lawson or anyone had initially had the car physically inspected by a peace officer. The investigator did not say if a "quick title" certificate were involved, but he acknowledged "quick titles" are no longer available.[1]
Appellant feels it is unfair that he be subjected to breach of warranty and DTPA liability as a result of his reliance on a Texas certificate of title, yet the State, which erred in issuing that certificate, escapes liability because of sovereign immunity. Appellant argues that the Texas Highway Department under art. 6687-1 has assumed "sole responsibility for determining ownership of a motor vehicle" and that he was "forced, as a citizen of Texas, to act in accordance with the statute and rely upon the action of the Texas Highway Department."
Appellant misapprehends the Highway Department function and the purpose of art. 6687-1. The Highway Department is not and never claimed to be an insurer of the genuineness of the legal title of a vehicle. Article 6687-1 merely regulates transfer of title pursuant to the state interest in curtailing trafficking in stolen vehicles. TEX.REV.CIV.STAT.ANN. art. 6687-1, § 1. A certificate of title raises a presumption of ownership, but it is not conclusive evidence of ownership. Villa v. Alvarado State Bank, 611 S.W.2d 483, 485 (Tex.Civ.App.Waco 1981, no writ). The State does not guarantee or warrant that the one named on the title certificate is the true owner. A thief can convey no title even if he possesses a certificate of title. Chapman Motors, Inc. v. Taylor, 506 S.W.2d 724, 726 (Tex.Civ.App.Waco 1974, writ ref'd n.r.e.). Article 6687-1 does not blindfold buyers. A prudent buyer must *607 look to the whole context of a sale, not merely to the certificate. Likewise, a seller makes representations of ownership and warranties of good title based on his total knowledge, not merely the title certificates. Simply because the State mandates registration does not mean the State compels buyers and sellers to rely exclusively on title certificates as proof of ownership.
Appellant's arguments on the constitutionality of the statutes in question seem based on the application of these statutes in his particular case rather than on the statutes per se. Appellant alleges "confiscation of property after failure by the State of Texas to exercise due diligence." Appellant has not been deprived of property without due process.[2] Appellant's arguments suggest he was injured because some government agent erred in issuing a title certificate and because appellant believed that the certificate was conclusive, state-guaranteed evidence of ownership. On the one hand, appellant could have sued his seller, Crayton. Or, if his allegations of error fit the requirements of art. 6687-1, § 56 (Vernon 1977), he could sue designated agents on their bonds. Doyle v. Harben, 660 S.W.2d 586, 589 (Tex. App.San Antonio 1983, no writ). To the extent appellant seeks to sue government agents except as provided for under § 56, appellant would have us abolish sovereign immunity. We decline to do so. Waiver of governmental immunity is a matter addressed to the legislature. Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex. 1976). The facts here show no exception to the rule that the government cannot be sued except by consent. On the other hand, appellant's misunderstanding about the legal significance of a certificate of title cannot be attributed to the State, its agents, or statutes. Appellant's points dealing with the constitutionality of art. 6687-1 and TEX.BUS. & COM.CODE ANN. §§ 2.312, 17.50 and 17.50A are overruled.
Appellant contends the trial court's refusal of leave to file a cross-action against the State of Texas constitutes error. TEX.R.CIV.P. 38 (Vernon 1979).[3] Rules of Civil Procedure grant trial courts broad discretion in matters of joinder, and the trial court's denial of joinder will not be disturbed on appeal except for abuse of discretion. Williamson v. Tucker, 615 S.W.2d 881, 886-87 (Tex.Civ.App.Dallas 1981, writ ref'd n.r.e.). Appellant has failed to show the trial court abused its discretion. Appellant's TEX.R.CIV.P. 38 motion presented two bases for joinder: (1) both action and cross-action involve common issues of fact and law in a dispute arising out of the same transaction and (2) the disputes cannot be correctly adjudicated without all parties being joined in one suit. The trial court could have found both bases deficient in merit. First, appellant's cross-action against the State faced the legal hurdles of res judicata (the judgment in The State of Texas v. 1980 Lincoln, VIN # OY89G649411) and sovereign immunity, and dealt with facts preceding appellant's transaction with appellee, namely, Highway Department error in issuing a certificate of title to Lawson. On the other hand, appellee's suit against appellant involved clear-cut legal issues of breach of warranty and misrepresentation and facts subsequent to the alleged Highway Department error. Second, appellee made no claim against the State, nor would judgment in this suit bar other action by appellant against the State. See, e.g., Packer v. First Texas Saving Association of Dallas, 567 S.W.2d 574, 574-75 (Tex.Civ.App. Eastland 1978, writ ref'd n.r.e.); Southwest Bank & Trust Co. v. Executive Sportsman Association, 477 S.W.2d 920, 930 (Tex.Civ.App.Dallas 1972, writ ref'd n.r. e.). We find no abuse of discretion. Appellant's *608 point of error relating to trial court refusal of permission to file his cross-action against the State is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Nothing in the record indicates when or under what procedures the first Texas certificate of title was issued on the Lincoln. Article 6687-1, § 30 states the requirements for title for a motor vehicle last registered and titled in some other state or country. Section 30 was amended, effective June 6, 1979. Previous to the amendment, section 30(a) required the applicant to furnish the Highway Department agent with a certificate from a peace officer certifying that the officer had made a physical examination of the motor number and serial number, or the permanent identification number of the motor vehicle. (Vernon 1977). Section 30(a) as amended, requires the applicant to furnish a certificate specified by TEX.REV.CIV.STAT. ANN. art. 6701d, § 142A, namely, that a state-appointed inspection station has recorded the permanent identification number of the vehicle on the certificate of inspection. Motor Vehicles Certificates of TitleInspections, ch. 312, §§ 1, 142A, 1979 Tex.Gen.Laws 716. Appellant complains of Highway Department error in issuing the title. However, appellant does not specify the nature of the error, e.g., whether the physical examination by a peace officer or inspection station was not made or whether it was made negligently; or whether some other Highway Department procedure was performed negligently or whether agents would have detected the Michigan certificate counterfeit if department rules at the time in question had required a longer interval between application for and issuance of the Texas certificate.
[2] The judgment in The State of Texas v. 1980 Lincoln, VIN #OY89G649411 recites that appellant "though having appeared earlier in this cause through his attorney and though having notice of said hearing did not appear."
[3] TEX.R.CIV.P. 38 as amended effective April 1, 1984, removes the need to get leave of court to begin third-party action if the third-party petition is timely filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1421320/ | 372 F. Supp. 928 (1974)
Ronald STARKS et al., Plaintiffs,
v.
ORLEANS MOTORS, INC. and Colonial Bank, Defendants.
Civ. A. No. 73-1427.
United States District Court, E. D. Louisiana.
February 11, 1974.
*929 Patrick D. Breeden, New Orleans, La., for plaintiffs.
Edward J. DeMartini, New Orleans, La., for defendant Colonial Bank.
Carl J. Barbier, New Orleans, La., for defendant Orleans Motors, Inc.
*930 ALVIN B. RUBIN, District Judge:
Ronald Starks purchased a used 1970 Ford automobile from Orleans Motors, Inc.; Colonial Bank "handled the financing" for the sale. Initially Starks agreed to purchase the automobile for $1795. He made a cash deposit of $100. When taxes, license fee, and a fee for transferring title of the car were added to the cash price, and the $100 deposit was credited, the unpaid balance was $1805. After this agreement was reached, a representative of Orleans called Dale Black, Vice-President in charge of installment loans with Colonial Bank, to see whether Colonial would lend Starks the money necessary to pay the unpaid cash balance. Black advised Orleans that Colonial would not lend more than $1500 on the vehicle. This information was given to Starks, and the proposed sale was cancelled.
Since Starks still desired to purchase the auto, he and Orleans reached a new agreement whereby Starks was to make an additional cash deposit of $50 and Orleans was to lower the price of the auto to a total of $1650. This would leave an unpaid cash balance of $1500 after the deposit was credited against the purchase price. Orleans then prepared a chattel mortgage, naming itself as mortgagee, a note, and disclosure statement, which were signed by Ronald and Gilda Starks. Orleans then called Black a second time to see whether Colonial would make a loan for the unpaid cash balance. Black told Orleans that Colonial would not lend this amount unless Starks had at least two endorsers for the note and chattel mortgage.
Another attempt was then made to meet Colonial's requirements. Orleans prepared a second note, chattel mortgage (naming itself mortgagee) and disclosure statement; these were signed by Starks and two endorsers at Orleans' place of business. Orleans delivered the papers to Colonial, and executed an assignment of them to Colonial. Colonial then began the necessary procedures to have the $1500 credited to the account of Orleans, and Starks took possession of the auto. The bank also credited a portion of the finance charge, $94.59, to a reserve account it maintained in Orleans' name as a commission for placing the loan with it.
It is Mr. Starks' contention that both defendants violated the Truth in Lending Act (15 U.S.C. § 1601 et seq.) and Regulation Z promulgated thereunder (12 C.F.R. § 226 et seq.) in failing to indicate on the required disclosure form that they held a vendor's privilege on the car (L.S.A.-C.C. art. 3227). In addition, Orleans is alleged to have failed properly to disclose certain charges in connection with the transfer of license and title.
I. Truth in Lending
The Truth in Lending Act has two purposes: to avoid the uninformed use of credit through disclosures, and to enable borrowers to "shop" effectively for credit by comparing the information found in the creditors' disclosures. Regulation Z makes the scope of the act clear in its preamble: "[T]his part applies to all persons who in the ordinary course of business regularly extend, or offer to extend, or arrange, or offer to arrange, for the extension of consumer credit. . . ." 12 C.F.R. § 226.1(a)(1).
Colonial was of course a creditor in every legal sense, as well as within the meaning of the Act. In addition Orleans was an arranger for the extension of credit, since it received a fee from the Colonial Bank for loans routed to the bank by it; as an arranger it was also a creditor within the meaning of the regulations. 12 C.F.R. § 226.2(f) and (m).
II. The Vendor's Privilege
Defendants argue forcefully that the instant transaction did not give rise to a vendor's privilege; hence there was no need to mention it in the disclosure form. They theorize that this was in fact a cash sale from Orleans to plaintiff, *931 with Colonial lending plaintiff the money that he needed to make his purchase, and that no privilege arose. If this were an accurate statement of what happened, no privilege would have arisen from the purchase.
But this version does not comport with what happened. Plaintiffs gave their promissory note and a down-payment to Orleans in return for the car. Orleans also retained a chattel mortgage to secure payment of the note. It was only when Orleans assigned the note and mortgage to Colonial that it received payment for the auto. Nor does it comport with the form of transaction the parties chose to describe in the documents that they prepared. A disclosure statement was drawn indicating that a loan was obtained to pay for the car. The disclosure shows that the loan was "by Orleans Motors, Inc." and "for Ronald Starks." The mortgage note, while payable to bearer, was endorsed by Orleans, as mortgagee. The chattel mortgage clearly states that Orleans, not Colonial, is the mortgagee. On its reverse side, the mortgage specifically says that the taking of the mortgage does not operate as a waiver of the vendor's privilege held by the mortgagee.
Nor is it accurate to say that, despite these contrary indicia, the parties did not intend a credit sale, for, as noted above, the disclosure statement itself recites that this loan was to be assigned to Colonial, not negotiated directly with Colonial. This was a credit sale under Louisiana law and, Orleans, as vendor, retained in law what it recited it had in the chattel mortgage: a vendor's privilege for the remainder of the purchase price when it assigned the note to Colonial. Colonial acquired the privilege as an accessory of the debt. L.S.A.-C.C. art. 2645; Perkins v. Gumbel, 1897, 49 La. Ann. 653, 21 So. 743; Succession of Forstall, 1887, 39 La.Ann. 1052, 3 So. 277; National Collection Serv., Inc. v. Woodward, La.App. 2 Cir. 1959, 111 So. 2d 189. Louisiana law of course determines only whether a security interest arose; for purposes of applying Truth in Lending we must characterize the transaction as prescribed by Regulation Z.
Section 226.8(b)(5) of Regulation Z requires disclosure of "any security interest" retained by the creditor, and section 226.2(z) includes within the definition of security interest "any interest in property which secures payment . . . of an obligation. The terms include . . . vendor's liens in . . . personal property. . . ." This embraces a vendor's privilege of the kind that arose here.
Liability for failure to disclose a statutory lien attaches alike to the creditor and the arranger for the extension of credit who have participated in the making of a joint disclosure. 12 C.F.R. § 226.6(d). Therefore, Orleans and Colonial must each bear the responsibility for this omission.
It makes no difference that this error was unintentional and made without wilful purpose to mislead. Although these factors might have some weight were we faced with possible criminal penalties under the Act (28 U.S.C. § 1611), the reference to "unintentional error" in section 1640(c) has been held to apply only to clerical error. Palmer v. Wilson, N.D.Cal.1973, 359 F. Supp. 1099; Douglas v. Beneficial Finance Co., D. Alaska 1971, 334 F. Supp. 1166; Buford v. American Finance Co., N.D.Ga.1971, 333 F. Supp. 1243; Ratner v. Chemical Bank New York Trust Co., S.D.N.Y. 1971, 329 F. Supp. 270. But see Thrift Funds of Baton Rouge, Inc. v. Jones, La.1973, 274 So. 2d 150 (good faith misinterpretation of state law, not the Truth in Lending Act).
We are asked to view the requirements of the Act liberally because here the defendants' disclosure of the existence of a chattel mortgage and "the disclosure of the mortgage on the automobile sufficed to comply with the intent and purpose of the Truth in Lending Act and Regulation Z. . . ." But it is not enough to say that both a vendor's privilege and a chattel mortgage *932 allow the creditor to seize the auto under a writ of sequestration. L.S.A.-C.C.P. art. 3571. Had the preparation of the mortgage failed to comply with the requirements of law, the court cannot believe that defendants would have hesitated to fall back upon their rights under the privilege. Disclosure of the one is not disclosure of the other.[1] Where the nature of an act is remedial, as here, it should be construed liberally in an attempt to provide the remedy, not avoid it. See Thomas v. Myers-Dickson Furniture Co., 5 Cir. 1973, 479 F.2d 740.
III. License Fees
The question of Orleans' alleged improper disclosure of license and title fees is also raised. On the itemized sales order, a figure of $15 is noted, purporting to cover "license, license transfer, title, [and] registration fee." On the disclosure statement this figure is neither separately itemized nor listed as part of the finance charge, but has been included within the cash price. Orleans claims that the figure does not actually represent the money paid for the title, etc., but is a "charge" for a "service" that includes obtaining the necessary papers. However, any attempt to fit this service within the meaning of section 226.2(i), allowing inclusion within the total purchase price of certain services, must fail because the language of that section excludes charges described in section 226.4. Section 226.4(b)(4) states that license, title and registration fees "need not be included in the finance charge" if itemized. The options are clear; nowhere is there allowance for inclusion within the cash price.
Nor does it meet the requirements of itemization that Orleans listed the $15 charge separately on the sales order. The total cost of license, title and registration fees in Louisiana is less than $15. Part of the $15 charge in fact represented compensation to Orleans. Had Orleans tried to rely on the sales itemization of $15, to the extent that figure exceeded actual license and title fees, there would be a "hidden finance charge" that must be included within the total finance charge. 12 C.F.R. § 226.8(c)(8). In addition, any itemization must be on the disclosure statement, not on a separate document such as a sales order. 12 C.F.R. § 226.8(a).
IV. Damages
The Truth in Lending Act provides, "any creditor who fails in connection with any consumer credit transaction to disclose any" of the required information shall be liable for damages in the amount of twice the finance charge (not to exceed $1000) plus reasonable attorney's fees. 15 U.S.C. § 1640.
The finance charge found on the disclosure statement is $307.28. To this must be added the $15 "service" fee since, under section 226.4(b)(4), if not separately itemized, these charges are to be included within the finance charge. This gives a total finance charge of $322.28.
The court is aware that at least one case has allowed damages against each of several defendants where two of the defendants arranged the loan and a third defendant extended the credit. Ljepya v. M. L. S. C. Properties, N.D. Cal.1973, 353 F. Supp. 866. However, there it was found that the concealment was deliberate and intentional. The finance charge in that case was more than $11,500, but $1000 is the maximum damages allowed by section 1640. The award of $1000 against each defendant apparently was an attempt by the court to give the plaintiffs the maximum relief that could possibly be found using the most liberal interpretation of the statute. Even the $3000 ultimately *933 awarded was far less than the finance charge. Here the finance charge was $322.28. Twice that figure ($644.56) is well within the $1000 maximum. Thus there is no need for the court to look outside of the clear language of the section to ensure that the aims of the statute are satisfied. Nor does it appear necessary, in order to effect the purpose of the statute, to multiply penalties by the number of defendants. Accordingly, the court finds that the defendants Colonial Bank and Orleans Motors are liable jointly and severally to the plaintiffs for the sum of $644.56, twice the finance charge made for this loan.
The defendants are also responsible under the statute for reasonable attorney's fees. With respect to lawyer's fees, the Code of Professional Responsibility states: "[A]dequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession." It then states:
Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
Disciplinary Rule 2-106.
The court has several times reviewed the factors to be considered in fixing attorney's fees under similar statutes. Clark v. American Marine Corp., E.D. La.1970, 320 F. Supp. 709; Nelson v. Weinberger, C.A. No. 69-2646 (October 25, 1973); Jefferson v. L & I Corp., C. A. No. 71-2840 (June 25, 1973).
At the present time lawyers in New Orleans charge a fee of $35 per hour. Those with long experience or expertise in a particular area charge substantially more. Their overhead is continually rising.
Where the lawyer undertakes to prosecute a case on a contingent fee, as Truth in Lending Cases in general must be and this one was, the lawyer who recovers only a minimum fee if he prevails must lose money. Because inevitably he will recover nothing in some cases.
Defendants palter with respect to the amount of time effectively spent by plaintiff's counsel compared with the time shown on his time summary. But the court has observed the time required. Indeed, to some extent, the time expended was partially within the defendants' control. Their strenuous and able opposition exacted more time and greater effort from plaintiff's counsel. Confronted with a claim of this nature, defendants may properly elect to fight hard. But if they do and lose, they must pay what the statute commands.
Considering the time spent by plaintiff's counsel, the factors outlined above, the fact that trial on the merits (albeit eventually on stipulated facts) became necessary, I think a fee of $2000 is reasonable.
NOTES
[1] For the same reason, it is not correct to suggest that Starks was not damaged by nondisclosure of the vendor's privilege because he knew the automobile would be repossessed if he did not pay. He was entitled to be told exactly what security interests were retained and his ability to make a legally discriminating evaluation of the differences between one and the other is immaterial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1190052/ | 14 Cal. 3d 169 (1975)
534 P.2d 1001
121 Cal. Rptr. 97
THE PEOPLE, Plaintiff and Respondent,
v.
CHARLES C. WINGO, Defendant and Appellant.
Docket No. Crim. 17942.
Supreme Court of California. In Bank.
May 9, 1975.
*172 COUNSEL
Richard S. Buckley, Public Defender, and Charles A. Gessler, Deputy Public Defender, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Russell Iungerich and Cynthia S. Waldman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOSK, J.
Defendant was charged in count I with murder (Pen. Code, § 187) and in count II with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). The case was submitted to the trial court on the transcript of the preliminary hearing. Defendant was acquitted on the murder count, but was found guilty of the assault and sentenced to prison for the term prescribed by law. He appeals from the judgment, contending that the punishment imposed is cruel or unusual in violation of article I, section 17, of the California Constitution,[1] and the Eighth and Fourteenth Amendments to the United States *173 Constitution.[2] For the reasons stated we conclude the judgment must be affirmed.
I
The facts are essentially undisputed. The assault was perpetrated upon one William Love, an "aged and thin" man, 72 years old, who walked with a cane. It occurred in a park, during daylight hours, and consisted of repeated kicks to the victim's head and upper body after defendant had first knocked the victim to the ground. A bystander intervened and terminated the beating, and defendant was thereafter arrested by an officer who happened upon the scene. While being transported to the police station defendant was heard to scream, "Yes, I kicked his ass, and I don't think I kicked it well enough."
Love died in a Los Angeles hospital nine days later. The cause of death was a heart attack. The injuries sustained in the assault included facial bruises and lacerations and a fracture of the left thigh bone. Medical testimony was unable to declare with certainty whether there was a causal relationship between such injuries and the heart attack.
Penal Code section 245, subdivision (a) (hereinafter section 245(a)), provides inter alia: "Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for six months to life, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment...."[3] As noted, defendant was sentenced to state prison "for the term prescribed by law." His sole contention is that the punishment is disproportionate to his offense and thus is unconstitutionally cruel or unusual.
*174 At the outset we note that the felony penalty provisions of section 245(a) are part of the indeterminate sentence law. (Pen. Code, §§ 1168, 3020-3025.) Under this system the trial court "does not specify the length of imprisonment but simply sentences the defendant for the term `prescribed by law.' (Pen. Code, § 1168.) It is the Adult Authority, an administrative agency within the Department of Corrections (Pen. Code, §§ 5001, 5075-5082), which thereafter determines within statutory limits the length of the term the defendant will actually be required to serve. (Pen. Code, §§ 3020-3025.)" (In re Lynch (1972) 8 Cal. 3d 410, 415 [105 Cal. Rptr. 217, 503 P.2d 921].) Thus in the case of a conviction under section 245(a) the Adult Authority may fix the term of confinement at any point between the statutory minimum of six months and the maximum of life.
As another preliminary matter we observe that the statute under discussion proscribes two distinct categories of offenses: (1) assault with a deadly weapon, and (2) assault by means of force likely to produce great bodily harm. As will be seen, within these categories is included an extremely broad spectrum of culpable behavior, a fact of which the Legislature was undoubtedly cognizant in enacting the equally wide range of penalties for violation of the section.
Finally we pause to emphasize the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual.[4] The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. (1) Perhaps foremost among these are the definition of crime and the determination of punishment. (People v. Bauer (1969) 1 Cal. 3d 368, 375 [82 Cal. Rptr. 357, 461 P.2d 637, 37 A.L.R. 3d 1398]; People v. Knowles (1950) 35 Cal. 2d 175, 181 [217 P.2d 1].) While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned "unless their unconstitutionality clearly, positively, and unmistakably appears." (In re Lynch (1972) supra, 8 Cal.3d at p. 415, quoting from In re Dennis M. (1969) 70 Cal. 2d 444, 453 [75 Cal. Rptr. 1, 450 P.2d 296].) With these fundamental considerations in mind we proceed to the merits of defendant's case.
*175 II
Defendant relies on our holding in Lynch to support his contention that the penalty provisions of section 245(a) are cruel or unusual. In Lynch we struck down the provision of Penal Code section 314 which punished second-offense indecent exposure by imprisonment "for not less than one year." (2a) In assessing the validity of the potential life-maximum term in that case we employed a three-part analysis: (1) "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (id. at p. 425); (2) a comparison of "the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious" (id. at p. 426); and (3) "a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." (Id. at p. 427.) (3) (See fn. 15.) We concluded that the disproportion between the crime of second-offense indecent exposure and the penalty of potential life imprisonment was so great as to shock the conscience, and accordingly declared void the recidivist provision of section 314.[5]
In In re Foss (1974) 10 Cal. 3d 910 [112 Cal. Rptr. 649, 519 P.2d 1073], we were compelled by the Lynch analysis to invalidate the penalty provisions of Health and Safety Code section 11352 (formerly § 11501). These provisions precluded parole consideration for certain narcotics recidivists for 10 years in the case of a second offender, and 15 years for a third offender. We determined that such a penalty, imposed "without regard to the existence of such possible mitigating circumstances as the addict status of the offender, the quantity of narcotics involved, the nature of the purchaser, or the purposes of the sale, is in violation of [former] article I, section 6 of the California Constitution." (Id. at p. 929.)[6]
Similarly, defendant here asserts that the penalty provisions of section 245(a) cannot withstand application of the Lynch criteria. Before *176 proceeding to that analysis, however, we must point out a fundamental distinction between Lynch and the case at bar. There we were concerned with whether the maximum term of life imprisonment was ever permissible for the crime of second-offense indecent exposure. The statute proscribed a single mode of behavior, and we held that under no circumstances could that behavior justify a potential life maximum. By contrast, in the instant case we are called upon to determine the constitutionality of a statute which prohibits a wide range of culpable conduct, with a correspondingly wide range of punishment. Thus, unlike Lynch, we are here concerned with a maximum penalty which might be permissible in some circumstances but excessive in others.
A
We begin with the first Lynch test. The offenses proscribed by section 245(a) are serious, frequently committed with great violence and resulting in painful, sometimes permanent, injury to the victim. (See, e.g., In re Downs (1970) 3 Cal. 3d 694 [91 Cal. Rptr. 612, 478 P.2d 44]; People v. Martinez (1973) 31 Cal. App. 3d 355 [107 Cal. Rptr. 284]; People v. Lovely (1971) 16 Cal. App. 3d 196 [93 Cal. Rptr. 805].) If our focus were confined to this type of behavior there could be no question but that the degree of danger to society was sufficiently high to justify imposition of a severe sentence. But the breadth of the challenged statute encompasses considerably more than this narrow range of offenses. At one end of the spectrum there is conduct virtually indistinguishable from premeditated murder, while at the other there is a mere attempt to seriously injure which lacks any specific intent and is completely futile.
An example may serve to illustrate this disparity. A defendant, heavily intoxicated, is present when a fight breaks out in a barroom. In the excitement of the fray he strikes out at an intended victim with his fists, but because of his impaired faculties completely misses his target.[7] The use of hands or fists alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury. (People v. Chavez (1968) 268 Cal. App. 2d 381, 384 [73 Cal. Rptr. 865]; People v. White (1961) 195 Cal. App. 2d 389 [15 Cal. Rptr. 665].) Moreover, since the statute focuses on force likely to produce harm, it is immaterial that the force actually resulted in no harm whatever. (Cf. People v. Wells (1971) 14 Cal. App. 3d 348, 358 [92 Cal. Rptr. 191]; People v. Samuels (1967) 250 *177 Cal. App.2d 501, 513 [58 Cal. Rptr. 439].) And since the offense is a general intent crime, the defendant's intoxication could not be considered a mitigating factor, nor, of course, could it be a defense. (People v. Rocha (1971) 3 Cal. 3d 893, 896-897 [92 Cal. Rptr. 172, 479 P.2d 372]; People v. Hood (1969) 1 Cal. 3d 444, 452-459 [82 Cal. Rptr. 618, 462 P.2d 370].)[8]
Thus a single errant swing by an intoxicated defendant could, under the language of the statute, result in conviction of an offense carrying a potential life maximum. It is true that no such case has been brought to our attention, but the possibility nonetheless remains.[9] Accordingly, in examining the degree of danger presented to society through violation of section 245(a) we must be mindful of the entire range of such inclusive conduct.
In the instant case, of course, we are faced with circumstances entirely at variance with the foregoing hypothetical. Here a particularly vicious attack took place, on a relatively helpless victim, resulting in substantial injury. There was no evidence of intoxication, and no indication of lack of specific intent. Yet this simply serves to emphasize the wide variety of behavior included under the umbrella of section 245(a). We thus conclude that any determination of the danger to society created by violations of section 245(a) must in all instances turn on the peculiar facts of the individual case.
*178 B
The second Lynch test requires a comparison of the challenged offense with those which must be deemed more serious. If after this examination there "are found more serious crimes punished less severely than the offense in question, the challenged penalty is to that extent suspect." (8 Cal.3d at p. 426.)
Here again, however, there appears a difficulty in classification. Because of the wide range of conduct proscribed by section 245(a), a given instance of that offense may involve the most brutal type of violent behavior equal to any interdicted by the Penal Code. If such a case were used as a benchmark a court would be hard pressed to find another offense that could be deemed "more serious." But here we are on firmer ground than in the determination of the degree of danger of the conduct proscribed by section 245(a), since there are a considerable number of crimes in which either specific intent or demonstrable injury is a necessary ingredient.
Using this as our point of comparison we find many "more serious" crimes for which a lesser penalty is prescribed. Thus the punishment for manslaughter (§ 193) is up to 15 years; for assault with intent to commit murder (§ 217), 1 to 14 years; for kidnaping (§ 208), 1 to 25 years; for mayhem (§ 204), up to 14 years; for assault with intent to commit rape, sodomy, mayhem, or robbery (§ 220), 1 to 20 years; for assault with caustic chemicals with intent to injure or disfigure (§ 244), 1 to 14 years; for battery on a peace officer or fireman engaged in the performance of his duties (§ 243), 1 to 10 years; for burglary by torch or explosives (§ 464), 10 to 40 years; for wrecking a vehicle of a common carrier with intent to cause bodily harm (§ 219.1), 1 to 14 years; for shooting at an inhabited dwelling (§ 246), 1 to 5 years; for poisoning food or drink with the intent to injure a human being (§ 347), 1 to 10 years; for drunk driving causing bodily injury (Veh. Code, § 23101), up to 5 years; for forcible abduction for purposes of prostitution (§ 266a), up to 5 years; for wilful cruelty to a child likely to produce great bodily harm or death (§ 273a), 1 to 10 years; for wilful wife or child beating resulting in a traumatic condition (§ 273d), up to 10 years.
The foregoing list is illustrative rather than exhaustive. Yet it is evident that the offenses described demand considerably more culpability than many of those embraced by section 245(a). This does not per se compel a conclusion that the challenged statute is unconstitutionally *179 excessive, since we have never required mathematical exactitude in fitting punishment to crime. But it is a further indication that the penalty under consideration is unusual, and if combined with like results from the other Lynch tests, may result in a finding of impermissible disproportion.
C
Under the third Lynch test the sentence is examined in light of penalties imposed in other jurisdictions for the same offense. As with the previous tests this inquiry is not mechanical but will, if the results warrant, provide an additional ground for suspecting the constitutionality of the challenged penalty.
Nor are we concerned here with conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide. In the vast majority of cases the penalties imposed by the Legislature are just and equitable. Occasionally there may appear those "isolated excessive penalties" enacted "in response to transitory public emotion" that were condemned in Lynch. (8 Cal.3d at p. 426.) But in the main our codes have served as a model for the nation rather than a mere mirror of the laws of other jurisdictions, and we have no inclination to arbitrarily reverse that process.
Yet when there appears a significant disproportion between a challenged penalty and that imposed for the same crime by our sister states, the penalty should be deemed suspect. In Lynch it was found that only two states permitted life-maximum sentences for second-offense exhibitionists, while the overwhelming majority disposed of the problem by a short jail term and/or a small fine. (8 Cal.3d at p. 436.) In Foss we determined that although a number of states imposed a minimum 10-year term for heroin sale with a prior narcotics offense, only four precluded parole consideration for that length of time. (10 Cal.3d at p. 928.) In each case we held the comparative evidence to be indicative of the excess of the California term.
Here we are presented with similar data. With the sole exception of Arizona, no jurisdiction imposes a life term for the offense of assault with a deadly weapon. Forty-six states and the District of Columbia provide that the offense is punishable in terms of years, usually with a maximum of 5 or 10 years and never in excess of 21. The remaining two states do not appear to have a statute similar to section 245(a). With *180 regard to assault by means of force likely to produce great bodily harm, we find that 7 states have no felony assault statute, 16 impose a term of 5 years or less, 3 give a term of 6 to 7 years, 16 provide a term of 10 years, and 8 impose various terms up to and including 20 years.[10]
It follows that by application of the criteria delineated in Lynch the penalty provision of section 245(a) is suspect. The sentence is potentially disproportionate in terms of punishment imposed within California for more serious offenses, and actually disproportionate with respect to penalties assessed in other jurisdictions for the same offense.
The first Lynch test thus becomes dispositive; yet as we have seen, the myriad of factual contexts comprising offenses punishable under section 245(a) precludes an a priori appraisal of the precise nature of the crime. (4a) Accordingly we are impelled to conclude that there can be circumstances, as yet undefined, when imposition of a life-maximum sentence for violation of section 245(a) would constitute cruel or unusual punishment.[11]
III
(5) A statute valid on its face may be unconstitutionally applied. (Yick Wo v. Hopkins (1886) 118 U.S. 356, 373-374 [30 L. Ed. 220, 227-228, 6 S. Ct. 1064]; Brock v. Superior Court (1939) 12 Cal. 2d 605, 610 [86 P.2d *181 805]; Wade v. City & County of San Francisco (1947) 82 Cal. App. 2d 337, 338-339 [186 P.2d 181]; cf. Furman v. Georgia (1972) 408 U.S. 238 [33 L. Ed. 2d 346, 92 S. Ct. 2726].) In People v. Schueren (1973) 10 Cal. 3d 553 [111 Cal. Rptr. 129, 516 P.2d 833], we invoked this principle to declare unconstitutional under former article I, section 6, an imposition of a life-maximum penalty for violation of section 245(a). The defendant in Schueren had been charged with assault with a deadly weapon with intent to commit murder (Pen. Code, § 217; 1 to 14 years), and was convicted of the lesser included offense defined in section 245(a).[12] We observed that "had defendant pleaded guilty to the offense charged or been found guilty of that offense his prison term could not have exceeded 14 years but by asserting his constitutional rights ... and by successfully defending against the crime charged ... he is now faced with the possibility of life in prison." (10 Cal.3d at p. 560.) We concluded, "under the circumstances of this case a prison term exceeding 14 years for assault with a deadly weapon ... is an unconstitutional application of the penalty provision of that section." (Id. at p. 561.)
(4b) Defendant asserts there may likewise be occasions where because of the lack of culpability of the individual offender a life-maximum sentence would be an unconstitutional application of section 245(a). The contention, for the reasons given above, is meritorious. However, we refuse to accept defendant's further assertion that the provision is therefore void in its entirety. Rather we assume the Legislature intended that the statute be constitutionally applied, and we thus interpret the penalty provision as presupposing that the Adult Authority would fix terms, within the statutory range, which are not disproportionate to the individual culpability of the offender.[13]
If superficially examined, this interpretation seems contrary to a major proposition in Lynch. There we said, "when a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is *182 whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, regardless of whether a lesser term may be fixed in his particular case by the Adult Authority." (8 Cal.3d at p. 419.) Here it is the very ability of the Adult Authority to set a lesser term which preserves the validity of the challenged penalty.
Yet as discussed above there is a fundamental difference between Lynch and the instant case, namely, the nature of the "offense" defined by the Legislature. (6) If a statute proscribes a single, narrowly delineated mode of behavior as in Lynch it is appropriate in considering the constitutionality of the penalty to look only to the maximum in order to determine whether under any circumstances the crime would justify the punishment. But this analytic proves inconclusive when applied to a statute regulating a broad variety of conduct, since by definition there is no single "offense" to measure against the subject penalty. Accordingly in this context a consideration of only the maximum is fruitless, leaving as our sole alternative a determination whether in light of the individual offense the actual penalty imposed is excessive.
(7) We recognize that traditionally "[o]ne who is legally convicted has no vested right to the determination of his sentence at less than maximum" (In re Schoengarth (1967) 66 Cal. 2d 295, 302 [57 Cal. Rptr. 600, 425 P.2d 200].) Moreover, "a defendant under an indeterminate sentence has no `vested right' to have his sentence fixed at the term first prescribed by the Adult Authority `or any other period less than the maximum sentence provided by statute.'" (Lynch, at p. 417 of 8 Cal.3d, quoting from In re Cowen (1946) 27 Cal. 2d 637, 641 [166 P.2d 279].) "It has uniformly been held that the indeterminate sentence is in legal effect a sentence for the maximum term" (In re Lee (1918) 177 Cal. 690, 693 [171 P. 958]), subject only to the ameliorative power of the Adult Authority to set a lesser term. (Id. at pp. 692-693; Pen. Code, §§ 3020-3025.)
But these propositions, valid in the abstract, must be qualified when the maximum term is challenged as disproportionate. In such a case a defendant has an undeniable "vested right" in insuring that his term be fixed proportionately to his offense. Thus a sentence may be unconstitutionally excessive either because the Adult Authority has fixed a term disproportionate to the offense or, in some circumstances, because no term whatever has been set. A failure to fix his term may be just as violative of a defendant's right as an actual excessive term, since "It is *183 fundamental to the indeterminate sentence law that every such sentence is for the maximum unless and until the Authority acts to fix a shorter term. The Authority may act just as validly by considering the case and then declining to reduce the term as by entering an order reducing it.... This principle of law is, of course, the same whether we are dealing with a maximum term of life or a maximum term of years." (In re Mills (1961) 55 Cal. 2d 646, 653 [12 Cal. Rptr. 483, 361 P.2d 15].) "In the case of a life term convict who the Authority does not believe merits a lesser term it may, and customarily does, act by simply refraining from fixing his term at a span of years. Since by statute he is already serving a life term there is no occasion for the Authority to re-declare the fact." (People v. Harmon (1960) 54 Cal. 2d 9, 16 [4 Cal. Rptr. 161, 351 P.2d 329].)
(2b) We therefore hold that when a defendant convicted under a section encompassing a wide range of conduct challenges the statute as imposing cruel or unusual punishment, judicial review must await an initial determination by the Adult Authority of the proper term in the individual case. When the term is fixed a court can then analyze the constitutionality of the statute as applied. If the Authority, either by omission or by the exercise of its discretion, fails or declines within a reasonable time to set a term, the particular conduct will be measured against the statutory maximum. The Lynch criteria will continue to be employed, but analysis under the first test i.e., the nature of the offense and/or the offender will turn on the facts and circumstances of the individual case.
(8) Habeas corpus is the remedy available to an aggrieved petitioner after his term has been set, or if the Adult Authority fails to fix the term within a reasonable time. (In re Foss (1974) supra, 10 Cal. 3d 910, 916-917; In re Masching (1953) 41 Cal. 2d 530, 532 [261 P.2d 251].)[14] Any petitioner challenging his term as disproportionate will bear the burden of demonstrating that his sentence is excessive, which challenge, if devoid of merit, may be disposed of by summary denial. We regard this procedure preferable to an often inconclusive statute-by-statute analysis of the Penal Code in light of Lynch.[15]
*184 In the present case the Adult Authority has not had the opportunity to determine, in the light of this opinion, the maximum sentence defendant should serve.[16] Thus it is premature to decide whether defendant's term would be disproportionate to his offense. Only when such a term is set, or if the Authority within a reasonable time decides not to fix a term, may defendant utilize the remedy of habeas corpus to determine if the penalty is excessive under the facts and circumstances of the crime of which he stands convicted.
The judgment is affirmed.
Wright, C.J., Tobriner, J., and Sullivan, J., concurred.
CLARK, J.
I concur in affirming the judgment, but dissent from holding the Adult Authority must promptly and irrevocably fix the maximum term of a prisoner committed under a statute "encompassing a wide range of conduct." The possibility the maximum sentence provided by law for such an offense may be so disproportionate to the culpability of a particular offender as to constitute cruel or unusual punishment should not be used as a pretext for judicial legislation radically altering the indeterminate sentence law. By refusing to entertain defendant's claim until he has served the term admittedly proportionate to his culpability, this court could protect his right to be free from cruel or unusual punishment without unduly interfering with the administration of the indeterminate sentence law.
The indeterminate sentence law once provided for early, irrevocable term fixing, but such requirements are clearly contrary to more recent expressions of legislative intent. As originally enacted in 1917, section 1168 of the Penal Code provided that "[t]he governing authority of the reformatory or prison in which such person may be confined ... shall *185 determine after the expiration of the minimum term of imprisonment ... what length of time, if any, such person shall be confined...." (Stats. 1917, ch. 527, § 1, p. 665.) A 1929 amendment to section 1168 added that "[t]he term of imprisonment so fixed by the state board of prison directors, shall not thereafter be increased or diminished by said board for any reason whatsoever except [the allowance or forfeiture of `good time' credits]." (Stats. 1929, ch. 872, § 1, p. 1930.)
However, in 1935 another amendment to section 1168 broadened the board's power to refix terms. "In case any convicted person undergoing sentence in any of the State prisons commits any infraction of the rules and regulations of the prison board, or escapes while working outside such prison under the surveillance of prison guards, the Board of Prison Directors may revoke any order theretofore made determining the length of time such convicted person shall be imprisoned, and make a new order determining such length of time not exceeding the maximum penalty provided by law for the offense for which he was convicted...." (Stats. 1935, ch. 603, § 1, p. 1700.) In the same amendment the requirement that the board "shall" fix a term after the expiration of the minimum term was deleted and the permissive "may" substituted.
Finally, in 1941, section 1168 was rewritten and various of its provisions distributed elsewhere in the Penal Code. Those governing the fixing of terms became sections 3020 and 3021. The 1941 amendment gave to the board, without apparent limitation, the power to "determine and redetermine" the time a prisoner must serve on his sentence or sentences. (Stats. 1941, ch. 106, §§ 13, 15, p. 1083.)
Thus the indeterminate sentence law has evolved over the past half-century from a program in which a prisoner was entitled to an early, irrevocable fixing of his maximum term, into one in which the prisoner has "no vested right to the determination of his sentence at less than maximum," and in which his term once fixed may be refixed at the statutory maximum for cause at any time. (In re Schoengarth (1967) 66 Cal. 2d 295, 302 [57 Cal. Rptr. 600, 425 P.2d 200].) There are indications that the appropriate branches of government may soon reverse this trend, but it is not our province to do so.
McComb, J., concurred.
RICHARDSON, J.
I join in Justice Clark's concurring and dissenting opinion, and add only the following:
*186 I readily concur in the majority opinion insofar as it concludes that Penal Code section 245, subdivision (a), is constitutional on its face. Although a maximum term of life imprisonment would seem excessive as applied to certain offenders under section 245, such a term may be wholly justified as applied to others. Furthermore, I believe it fair to conclude that by reason of the availability of parole, only rarely will a person sentenced under section 245 actually serve an unduly prolonged term.
I respectfully disagree, however, with the majority's holding, unsupported by prior authority, that whenever a person sentenced under section 245 challenges his indefinite sentence as constituting cruel or unusual punishment, the Adult Authority must, within a reasonable time thereafter, fix the "proper term" of confinement or else risk reversal of the conviction on cruel and unusual punishment grounds. (Ante, p. 183.) Under the majority's opinion, unless the Adult Authority irrevocably fixes a definite maximum term of imprisonment for each prisoner sentenced under the Indeterminate Sentence Law, the courts will presume that the actual term is the statutory maximum (i.e., life imprisonment in the instant case) and will "analyze the constitutionality of the statute" accordingly.
In my view, the majority (in two short paragraphs of the opinion) substantially alter the Indeterminate Sentence Law, for in order to avoid a ruling that an indeterminate sentence in a particular case is cruel and unusual (as in In re Lynch, 8 Cal. 3d 410, 419 [105 Cal. Rptr. 217, 503 P.2d 921]), the Adult Authority will be compelled to forfeit its term-fixing discretion and set individual maximum terms for every prisoner, terms which cannot thereafter be increased by the authority. I see no escape from the conclusion that the flexibility which is the heart of the indeterminate sentence system is thereby destroyed.
The majority attempt to justify this major change in the effect of the law on the ground that an initial fixing of the maximum term is required so that "a court can then analyze the constitutionality of the statute as applied." (Ante, p. 183.) The majority ignore the fact, properly noted by Justice Clark, that the Indeterminate Sentence Law has operated in a constitutional fashion since its inception and, despite the absence of initial term-fixing, has withstood innumerable constitutional challenges.
*187 Further, the majority's holding in this regard is directly contrary to the Legislature's very express statutory command contained in Penal Code section 3020: "In the case of all persons heretofore or hereafter sentenced under the provisions of Section 1168 of this code [indeterminate sentencing], the Adult Authority may determine and redetermine, after the actual commencement of imprisonment, what length of time, if any, such person shall be imprisoned...." (Italics added.)
Finally, the majority flatly contradict the unanimous expression of this court in In re Schoengarth, 66 Cal. 2d 295, 302 [57 Cal. Rptr. 600, 425 P.2d 200], wherein it described the legislative import of Penal Code section 3020 in the following clear and unambiguous words: "The Adult Authority, by statute, has exclusive jurisdiction to fix the length of time a prisoner must serve within the limits of an indeterminate sentence. [Citation.] One who is legally convicted has no vested right to the determination of his sentence at less than maximum [citations], and hence the authority `may redetermine such sentences as conditions require' [citations]." (Italics added.)
I see no basis in logic or reason on which to reconcile the majority opinion either with the clear language of Penal Code section 3020 or the relatively recent unanimous expression of this court in Schoengarth. Nor are there any compelling reasons why the Adult Authority must fix a prisoner's maximum term so that courts can "analyze" the constitutionality of the term. As I have suggested above, in most cases a prisoner will be released from confinement well within the range of penalties permitted under the "cruel and unusual punishment" provisions of the federal and state Constitutions. In those relatively rare cases in which a prisoner is confined beyond those limits, the habeas corpus remedy is available to secure his release. (See In re Sturm, 11 Cal. 3d 258, 269 [113 Cal. Rptr. 361, 521 P.2d 97].) I see no intrinsic constitutional impairment in the system.
There are very valid and demonstrable social, penal, and psychological reasons for changes in the Indeterminate Sentence Law. We are advised that the Legislature has the law under close study, and indeed that the Adult Authority already has implemented administratively a plan for major reform in its application. The present system is, no doubt, ripe for major changes in procedure. Nonetheless, in my view, the appropriate changes should come from legislative hands far better equipped to evaluate alternatives, to weigh conflicting policy considerations, *188 and to develop a carefully conceived plan of reform. The system has been subjected to the judicial microscope many, many times. The changes are neither compelled by, nor should they result from, any "constitutional" infirmities previously concealed or recently revealed.
McComb, J., concurred.
Respondent's petition for a rehearing was denied June 4, 1975. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
NOTES
[1] Article I, section 17 (former art. I, § 6) provides: "Cruel or unusual punishment may not be inflicted or excessive fines imposed."
[2] Because of the disposition herein we find it unnecessary to reach the merits of defendant's federal constitutional claim.
[3] The section was first enacted in 1872 and has undergone frequent amendment. In its original form the offense required specific intent and the use of a deadly weapon, with a penalty of not more than two years and/or a fine of not more than $5,000. An 1873-1874 amendment deleted the intent provision and added the phrase, "or by any means of force likely to produce great bodily injury." An alternative penalty of imprisonment in county jail was also provided. A 1921 amendment increased the maximum period of imprisonment to 10 years. In 1961 subdivision (b) was added relating to assaults on police officers, and in 1965 the penalty for a second offense under subdivision (b) was increased to five years to life. Finally in 1970 the present alternative felony penalty of six months to life was made applicable to first offenses under both subdivisions (a) and (b).
[4] See People v. Morgan (1973) 36 Cal. App. 3d 444, 447-450 [111 Cal. Rptr. 548] (armed robbery), In re Jones (1973) 35 Cal. App. 3d 531, 533-542 [110 Cal. Rptr. 765] (sale of marijuana), People v. Brown (1973) 35 Cal. App. 3d 317, 325-328 [110 Cal. Rptr. 854] (unlawful sexual intercourse), and In re Maston (1973) 33 Cal. App. 3d 559, 561-566 [109 Cal. Rptr. 164] (kidnap-robbery with bodily harm), all of which upheld the challenged penalty against the contention that it was cruel or unusual under Lynch.
[5] Lynch was the first case in which we recognized that "a punishment may violate [former] article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Fn. omitted.) (8 Cal.3d at p. 424.) Of course a cruel or unusual method of punishment will provide a separate ground for holding a penalty unconstitutional. (See Weems v. United States (1910) 217 U.S. 349, 377 [54 L. Ed. 793, 802-803, 30 S. Ct. 544].)
[6] Foss did not consider the constitutionality of either the maximum or minimum penalty, but only of the period during which parole was precluded.
[7] Of course if the defendant were so intoxicated that he lacked the present ability to "commit a violent injury," there could be no assault and a fortiori no aggravated assault. (Pen. Code, § 240.)
[8] Pursuing the hypothetical example further, it is ironic to note that if the defendant had actually succeeded in killing the victim his diminished capacity would preclude a conviction of murder or of assault with intent to commit murder (Pen. Code, § 217 [1 to 14 years]), and the proper judgment would be a conviction of the crime of manslaughter. (Pen. Code, § 193 [imprisonment not exceeding 15 years].)
[9] There have been cases closely approaching the lesser end of the scale of conduct under section 245(a). In People v. Lopez (1969) 271 Cal. App. 2d 754 [77 Cal. Rptr. 59], the defendant was arrested for possession of marijuana and in attempting to escape swung a belt coin-changer at the officers, missing his target. A conviction under subdivision (b) of section 245 was sustained. (See also People v. Samuels (1967) supra, 250 Cal. App. 2d 501, 513 [section 245(a) conviction based on beating administered to willing victim in sadomasochistic film; defendant claimed the apparent injuries were cosmetically induced, but judgment was affirmed because "An aggravated assault, like any other assault, may be committed without the infliction of any physical injury"]; People v. White (1961) 195 Cal. App. 2d 389 [15 Cal. Rptr. 665] [single punch in the eye]; People v. Mitchell (1940) 40 Cal. App. 2d 204 [104 P.2d 545] [defendant reached over heads of two or three people and hit victim, who had been original aggressor, with beer bottle]; People v. Pullins (1950) 95 Cal. App. 2d 902 [214 P.2d 436] [defendant "chewed" finger of victim causing it to become "bent"]; People v. Score (1941) 48 Cal. App. 2d 495 [120 P.2d 62] [defendant struck victim with fist, then accidentally fell on him, breaking his leg]; People v. Hahn (1956) 147 Cal. App. 2d 308 [305 P.2d 192] [victim hit on head four times with empty beer can].)
[10] The proposed new California Criminal Code would establish a sliding scale of penalties, with a maximum of up to 15 years for specific intent, nonintoxicated, aggravated assaults with a deadly weapon (or upon the person of a peace officer) resulting in serious bodily harm. (§§ 820, 315, subd. (c).) The American Law Institute's Model Penal Code (Proposed Official Draft 1969) would set a maximum penalty of 10 years for "aggravated assault." (§§ 211.1, 6.06.) As noted above, prior to 1970 the maximum penalty under section 245(a) was 10 years, and thus was more in line with accepted penalties nationwide. (Fn. 3, ante.)
[11] The case of People v. Jennings (1972) 22 Cal. App. 3d 945 [99 Cal. Rptr. 739], does not compel a different conclusion. There it was held that the penalty provision of section 245(a) was not unconstitutional as violative of the equal protection clause of the Fourteenth Amendment, although a defendant convicted of this offense receives a greater penalty than one convicted of the more serious crime of assault with intent to commit murder. (Pen. Code, § 217; 1 to 14 years.) However, it does not appear that the Jennings court was presented with the claim that the statute prescribed cruel or unusual punishment in violation of article I, section 17.
In a case decided nearly nine decades ago, Ex parte Mitchell (1886) 70 Cal. 1, 2 [11 P. 488], the present issue was briefly considered and the court concluded that section 245 was not violative of former article I, section 6. At the time Mitchell was decided, however, the maximum term of imprisonment for this offense was two years. (See fn. 3, ante.)
[12] The information was actually a composite of sections 217 and 245(a), thus making the section 245(a) offense necessarily included under the language of the accusatory pleading. (10 Cal.3d at p. 559.)
[13] The People point to language in Schueren in which we stated, "The People are still free to charge violations of sections 217 and 245 in separate counts." (10 Cal.3d at p. 561.) If the offense can constitutionally be charged in a separate count, it is urged that a fortiori it can be charged in a single count. We agree. Nothing said herein derogates from the power of the People to charge and convict under section 245. As discussed above, our sole concern is the unconstitutional application of the penalty provision to factual instances which are not sufficiently egregious to merit a life-maximum sentence.
[14] Nothing said herein should be taken to prohibit a petitioner in a genuine Lynch situation from challenging a penalty as cruel or unusual on direct appeal. But this remedy is available only if it is shown that the subject statute encompasses a narrow range of behavior which under no circumstances could constitutionally support the given penalty.
[15] There are presently a wide variety of offenses in the Penal Code carrying life maxima, ranging in culpability from murder (Pen. Code, § 190) to corrupt collusion with bidders or suppliers by the superintendent of state printing (Pen. Code, § 100; not less than two years). Some may proscribe broad ranges of behavior, and it seems clear that the interests of judicial efficiency will best be served by allowing the Adult Authority to make an initial determination of the proper penalty for the individual offense before a judicial challenge is considered. (See Pen. Code, §§ 100, 110, 182, 190, 209, 210, 211, 216, 217.1, 245, 264, 264.1, 286, 288, 288a, 288b, 454, 461, 644, 647a, 12022, 12022.5, 12303.2, 12303.3, 12308, 12309.) In addition there are numerous Health and Safety Code and Military and Veterans Code sections prescribing life maxima for designated offenses.
[16] The dissents grossly overreact when they express apprehension that we are somehow altering the indeterminate sentence law. We have merely declared that we cannot evaluate whether punishment is cruel or unusual until the sentence is determined, or until the Adult Authority, after a reasonable time, fails or declines to do so. Nothing contained in our opinion affects the discretion vested by law in the Adult Authority. (See In re Minnis (1972) 7 Cal. 3d 639, 644 [102 Cal. Rptr. 749, 498 P.2d 997].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1213338/ | 575 F.3d 959 (2009)
Glen Scott MILNER, Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF THE NAVY, Defendant-Appellee.
No. 07-36056.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 12, 2009.
Filed August 5, 2009.
*961 David S. Mann and Keith P. Scully, Seattle, WA, for the appellant.
Peter A. Winn, Assistant United States Attorney, Seattle, WA, for the appellee.
Before: WILLIAM A. FLETCHER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.
TALLMAN, Circuit Judge:
This appeal highlights the tension between the public's right of access to government files under the Freedom of Information Act and the countervailing need to preserve sensitive information for efficient and effective government operations. Glen Scott Milner appeals the denial of a request he filed pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. He sought information that would identify the locations and potential blast ranges of explosive ordnance stored at Washington's Naval Magazine Indian Island ("NMII"). The district court granted summary judgment in favor of the Navy. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
Indian Island is a small island strategically located in Puget Sound near the towns of Port Hadlock and Port Townsend, Washington. The island is used to store and transship munitions, weapons, weapon components, and explosives for the Navy, U.S. Joint Forces, Department of Homeland Security, and other federal agencies and allied forces. The Navy is responsible for all operations on NMII.
Magazine management and safety operations are conducted pursuant to a Navy manual entitled Ammunition and Explosives Ashore Safety Regulations for Handling, Storing, and Production Renovation and Shipping ("OP-5 manual"). Though the Navy considers the OP-5 manual to be restricted information, Milner managed to purchase one section of the manual on the Internet. The portion of the OP-5 manual in the record of this case states:
The purpose of this volume is to acquaint personnel engaged in operations involving ammunition, explosives, and other hazardous materials, and to prescribe standardized safety regulations for the production, renovation, care, handling, storage, preparation for shipment, and disposal of these items.
*962 The OP-5 manual also calls for development of technical drawings and specifications, which "should be consulted for additional, detailed requirements."
The technical information developed pursuant to the OP-5 manual includes Explosive Safety Quantity Distance ("ESQD") data. The ESQD calculations measure the effects of an explosion at a particular location. The information is expressed either as a mathematical formula or as an arc map, where the center of the arc is the source of an explosion and the arc's periphery is the maximum area over which the force of the explosion would reach. The Navy uses this information to design and construct NMII ammunition storage facilities in compliance with the safety guidelines spelled out in OP-5. The ESQD arcs indicate the maximum amounts of explosives that should be stored in any one storage facility, and minimum distances that various explosives should be stored from one another. This aids the Navy in storing ordnance in such a way that the risk of chain reactions, or "sympathetic detonations," is minimized if one storage facility suffers an attack or accident. The ESQD arcs are "designed to be a long term planning tool for the Navy."
Milner is a Puget Sound resident and a member of the Ground Zero Center for Nonviolent Action, an organization dedicated to raising community awareness of the dangers of the Navy's activities. On December 7, 2003, and January 29, 2004, he submitted two FOIA requests to the Navy.[1] He requested three types of documents:
1. [A]ll documents on file regarding [ESQD] arcs or explosive handling zones at the ammunition depot at Indian Island. This would include all documents showing impacts or potential impacts of activities in the explosive handling zones to the ammunition depot and the surrounding areas;
2. [A]ll maps and diagrams of the ammunition depot at Indian Island which show ESQD arcs or explosive handling zones; and
3. [D]ocuments regarding any safety instructions or operating procedures for Navy or civilian maritime traffic within or near the explosive handling zones or ESQD arcs at the ammunition depot at Indian Island.
The Navy identified 17 document packages totaling about 1,000 pages that met these parameters. The Navy compiled a thorough index of the relevant documents and disclosed most of them to Milner. It withheld only 81 documents, claiming that their disclosure could threaten the security of NMII and the surrounding community.
Milner filed suit under FOIA to compel disclosure of the remaining documents related to ESQD information. Commander George Whitbred, Commanding Officer of NMII, and other officers filed detailed affidavits discussing the nature and uses of the ESQD information. The commander's affidavit specified his concern that the information, if disclosed, could be used to plan an attack or disrupt operations on NMII. Both parties moved for summary judgment. The Navy argued the documents were exempt from disclosure under 5 U.S.C. §§ 552(b)(2) ("Exemption 2") and (b)(7)(f) ("Exemption 7"). The district court granted summary judgment in favor of the Navy under Exemption 2. Milner v. U.S. Dep't of Navy, No. C06-1301-JCC, 2007 WL 3228049 (W.D.Wash. Oct.30, 2007). It did not reach the question whether the documents would also be exempt under Exemption 7. Milner timely appealed.
*963 II
We apply a two-step standard of review to summary judgment in FOIA cases. "The court first determines under a de novo standard whether an adequate factual basis exists to support the district court's decisions. If an adequate factual basis exists, then the district court's conclusions of fact are reviewed for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo." Lane v. Dep't of Interior, 523 F.3d 1128, 1135 (9th Cir.2008) (internal citations omitted). Both parties agree that an adequate factual basis exists to support the district court's decision. They dispute only the applicability of the exemptions from disclosure.
An agency bears the burden of proving it may withhold documents under a FOIA exemption. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991). It may meet this burden by submitting affidavits showing that the information falls within the claimed exemption. Minier v. CIA, 88 F.3d 796, 800 (9th Cir.1996). "In evaluating a claim for exemption, a district court must accord substantial weight to [agency] affidavits, provided the justifications for nondisclosure are not controverted by contrary evidence in the record or by evidence of [agency] bad faith." Id. (internal quotations omitted).
III
A
FOIA reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976) (quoting S.Rep. No. 813-89, at 3 (1965)). An agency may withhold a document, or portions thereof, only if the material falls into one of the nine statutory exemptions delineated by Congress in § 552(b). Id. at 361, 96 S. Ct. 1592. These nine exemptions are "explicitly exclusive." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989) (quoting Adm'r FAA v. Robertson, 422 U.S. 255, 262, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975)). The delineated exemptions "are to be interpreted narrowly." Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir.2009) (quotation omitted).
Our concern in this case is the scope of Exemption 2. That section exempts from disclosure matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). There are two categories of information that may fall within Exemption 2's ambit "Low 2" and "High 2." Low 2 materials include rules and practices regarding mundane employment matters such as parking facilities, lunch hours, and sick leave, which are not of "genuine and significant public interest." See Rose, 425 U.S. at 363, 96 S. Ct. 1592 (citing S.Rep. No. 813-89, at 8 (1965)); id. at 369, 96 S. Ct. 1592; Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655 (9th Cir.1980).
The High 2 exemption protects more sensitive government information.[2] This category applies to "internal personnel rules and practices," disclosure of which "may risk circumvention of agency regulation." Rose, 425 U.S. at 369, 96 S. Ct. 1592; *964 see, e.g., Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C.Cir.1992) (holding an agency's litigation strategy "does qualify as `high 2' material because its disclosure would risk circumvention of statutes or agency regulations"). Only the High 2 category is at issue here.
B
Information may be exempted as High 2 if it (1) fits within the statutory language and (2) would present a risk of circumvention if disclosed. See Morley v. CIA, 508 F.3d 1108, 1124 (D.C.Cir.2007) (citing Schwaner v. Dep't of Air Force, 898 F.2d 793, 794 (D.C.Cir.1990)). The essential question in this case is what standard we employ to determine whether the requested information relates sufficiently to the "internal personnel rules and practices" of the agency, as required by the statute. The Navy argues we should apply the "predominantly internal" standard employed by the D.C. Circuit. Milner argues our prior caselaw forecloses this approach, and that our inquiry is limited to whether the information at issue is "law enforcement material."
In Hardy v. Bureau of Alcohol, Tobacco & Firearms, we addressed the question of circumvention left open in Rose. 631 F.2d at 656. We considered FOIA requests for the ATF's Raids and Searches manual. We joined the Second Circuit in holding that "law enforcement materials, the disclosure of which may risk circumvention of agency regulation, are exempt under Exemption 2." Id. (citing Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d Cir.1978)). Hardy concluded that the instructions contained in the manual "concern[ed] internal personnel practices" and were therefore exempt from disclosure under Exemption 2. Id.
Following our decision in Hardy, the D.C. Circuit decided Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc). Like the plaintiff in Hardy, the plaintiff in Crooker sought disclosure of portions of the same ATF raid manual. Our sister circuit noted that the materials sought were "law enforcement" in nature, but went on to formulate a "predominantly internal" standard to determine which personnel materials could be withheld under Exemption 2. Id. at 1072-74.
The D.C. Circuit undertook an extensive analysis of FOIA's structure and legislative history, its underlying policy, and the applicable caselaw. It concluded that "the words `personnel rules and practices' encompass not merely minor employment matters, but may cover other rules and practices governing agency personnel, including significant matters like job training for law enforcement personnel." Id. at 1056. To balance the competing implications of the words "related" and "solely," the court settled on the modifier "predominantly."[3]Id. at 1056-57; see Schwaner, 898 F.2d at 795. The court ultimately determined that documents related to personnel rules and practices should be exempt when the materials are "predominantly internal."
The Navy argues that the Ninth Circuit's caselaw post-Hardy has essentially adopted this standard, or, in the alternative, that we should do so explicitly. The district court granted summary judgment *965 on this ground, reasoning that our cases take such a broad view of the term "law enforcement" that "the test they embody bears more than a passing resemblance" to the D.C. Circuit's "predominantly internal" standard. Milner, 2007 WL 3228049 at *7. We agree that Exemption 2 is not limited to "law enforcement" materials, and now take the opportunity to formally endorse the D.C. Circuit's analysis, as set forth in Crooker. We hold that Exemption 2 shields those personnel materials which are predominantly internal and disclosure of which would present a risk of circumvention of agency regulation.
Our existing caselaw is consistent with the D.C. Circuit's approach. Hardy held that "law enforcement materials, the disclosure of which may risk circumvention of agency regulation, are exempt under Exemption 2." 631 F.2d at 656. It did not hold that only law enforcement materials are exempt under Exemption 2. The shorthand descriptor "law enforcement materials" was apt in Hardy because the case concerned policies and procedures for executing search warrants. The Crooker court apparently understood that Hardy addressed law enforcement materials but did not limit Exemption 2 to such information, relying on Hardy without adopting or even considering the use of "law enforcement" as a generally applicable standard. 670 F.2d at 72. The Crooker court, like the Second Circuit in Caplan and our panel in Hardy, used "law enforcement" to describe the materials at issue. Id. at 1056, 1057. It went on to determine that the manuals were "predominantly internal" and that their disclosure "significantly risks circumvention of the federal statutes or regulations." Id. at 1073-75.
Maricopa Audubon Society v. United States Forest Service, 108 F.3d 1082 (9th Cir.1997), our most recent case examining Exemption 2, also treated the "law enforcement" test as merely one way to meet Exemption 2's requirements. Maricopa first held generally that goshawk nesting site data does not "relate `solely,' or even predominantly, `to the internal personnel rules and practices of an agency.'" Id. at 1085 (quoting 5 U.S.C. § 552(b)(2)). It relied heavily on cases from the Tenth and D.C. Circuits, both of which cited Crooker. Id. at 1085-86; see Audubon Soc. v. U.S. Forest Serv., 104 F.3d 1201, 1203-04 (10th Cir.1997); Schwaner, 898 F.2d at 794. Only then did Maricopa proceed to consider, and reject, the more specific argument that the nest site data was exempt because it was "law enforcement" material. 108 F.3d at 1086-87. In sum, the instructive cases on Exemption 2 do not limit the class of exempt information to "law enforcement" materials alone. Therefore, finding information to be "law enforcement" material is a sufficient, but not necessary, condition to exemption under Exemption 2.
We adopt the "predominantly internal" standard for several reasons. First, limiting Exemption 2 to "law enforcement" materials has no basis in either Supreme Court precedent or the statute. The Supreme Court in Rose does not use the phrase except in a footnote relating to a different FOIA exemption. Nor does the phrase "law enforcement" appear in the text of § 552(b)(2), which exempts matters "related solely to the internal personnel rules and practices of an agency." A proper standard would combine Congress's requirement that the material be related to "internal personnel rules and practices" and the Supreme Court's focus on the risk of circumvention of the law. Crooker's standard properly reflects both.
As a matter of statutory interpretation, a definition of "internal personnel rules and practices" that rests solely on whether the information is "law enforcement" material makes little sense in light of the entire list of FOIA exemptions. *966 "Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous." Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991).
First, other provisions of FOIA indicate Congress was concerned with the disclosure of sensitive materials. Such materials will usually be, by their nature, predominantly internal. Exemption 1 covers information with a particular legal status classified information. 5 U.S.C. § 552(b)(1). Exemptions 7(e) and (f) exempt law enforcement materials that, if disclosed, would risk circumvention of the law or place individuals in danger. Id. § 552(b)(7). These exemptions reflect a concern that much of an agency's internal information could be used by individuals with ill intent. It would be incongruent if FOIA protected sensitive information when it is contained in a classified or law enforcement document, but not when it is contained in a document developed predominantly for use by agency personnel. Cf. Crooker, 670 F.2d at 1065 ("It would be inconsistent to no small degree to hold that Exemption 2 would not bar the disclosure of investigatory techniques when contained in a manual restricted to internal use, but that Exemption 7(E) would exempt the release of such techniques if contained in an `investigatory record.'").
Second, Exemption 7 protects "records or information compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7). If Exemption 2 also covers only "law enforcement" materials, Exemption 7 is redundant. See, e.g., Gordon v. FBI, 388 F. Supp. 2d 1028, 1036 (N.D.Cal.2005) (discussing Exemptions 2 and 7 together, applying the same standards and reasoning to both). Moreover, Exemption 7 contains meaningful limitations on the use of law enforcement materials which are not present in Exemption 2. Exemption 7 protects "records or information compiled for law enforcement purposes," but only in certain situations, such as when disclosure would be expected to interfere with enforcement proceedings, deprive someone of a fair trial, or expose a confidential source. 5 U.S.C. § 552(b)(7). Applying a general "law enforcement materials" test under Exemption 2 renders meaningless the conditions that Congress has placed on non-disclosure of law enforcement materials under Exemption 7.
Congress has impliedly approved of Crooker's approach. The Freedom of Information Reform Act of 1986, Pub.L. No. 99-570, subtit. N, 100 Stat. 3207, 3207-48 (1986), codified part of Crooker into Exemption 7. The legislative history of the Reform Act expressly states that the amended Exemption 7 was modeled after "the `circumvention of the law' standard that the D.C. Circuit established in its en banc decision in Crooker v. BATF, 670 F.2d 1051 (D.C.Cir.1981) (en banc) (interpreting Exemption 2)." S.Rep. No. 221-98, at 25 (1983). As the Seventh Circuit concluded in Kaganove v. EPA, "[b]ecause Congress saw fit to codify the very language of Crooker, and because nothing in the legislative history of the Reform Act suggests the slightest disagreement with that case's holding, we believe that Crooker accurately expresses congressional intentions." 856 F.2d 884, 889 (7th Cir. 1988), cert. denied, 488 U.S. 1011, 109 S. Ct. 798, 102 L. Ed. 2d 789 (1989). Though this statutory history is not dispositive, it is certainly illustrative.
Finally, we note two practical considerations that favor adoption of the "predominantly internal" test. First, narrowing Exemption 2 to only "law enforcement" materials forces our courts *967 to strain the term "law enforcement." See, e.g., Dirksen v. U.S. Dep't of Health and Human Servs., 803 F.2d 1456, 1459, 1461 (9th Cir.1986) (Ferguson, J., dissenting) (accusing the panel majority of "judicial legislation" and "expand[ing] the concept of law enforcement" in holding that Medicare payment processing guidelines were "law enforcement" materials). Hardy did not define "law enforcement" and plainly contemplated a broad understanding of the term. 631 F.2d at 657 ("`Law enforcement' materials involve methods of enforcing the laws, however interpreted...." (emphasis added)). Yet the term "law enforcement" must have some meaning and limit. See Maricopa, 108 F.3d at 1087 ("[N]o common-sense definition of the term suggests that goshawk nest-site information can be deemed `law enforcement material'"). Maricopa carefully applied Hardy and suggested the limits of the term: whether the information "tell[s] the [agency] how to catch lawbreakers; [or tells] lawbreakers how to avoid the [agency's] enforcement efforts." Id.
Our existing cases lead our district courts to strain the logical limits of "law enforcement" to cover otherwise valid invocations of Exemption 2. They regularly deny requests for disclosure of all kinds of internal documents, including those related to the military and national security, even if unrelated to investigations or prosecutions. See, e.g., Kelly v. FAA, No. 07-00634, 2008 WL 958037 (E.D.Cal. Apr.8, 2008) (magistrate judge recommending exemption of "grading sheet" for hiring of Designated Pilot Examiners); L.A. Times v. Dep't of Army, 442 F. Supp. 2d 880, 898 (C.D.Cal.2006) (holding data on insurgent and other attacks in Iraq are "law enforcement materials"); Gordon, 388 F.Supp.2d at 1036 (holding "no fly" and other aviation watch lists are "law enforcement materials"); Coastal Delivery Corp. v. U.S. Customs Serv., 272 F. Supp. 2d 958, 965 (C.D.Cal.2003) (examining both Hardy and Crooker and holding data on the number of Customs inspections at a particular port constitute "law enforcement material"). If judges must regularly labor to apply the standard in order to fit their intuitive understanding of congressional intent, there is something wrong with the standard.
Our second practical concern stems from a preference for national uniformity. Crooker has become the authoritative case on Exemption 2. It presents an extraordinarily comprehensive analysis of the statutory language, legislative history, and caselaw. At least four of our sister circuits have adopted or relied on Crooker. See Abraham & Rose, PLC v. United States, 138 F.3d 1075, 1080 (6th Cir.1998); Audubon Soc., 104 F.3d at 1204; Massey v. FBI, 3 F.3d 620, 622 (2d Cir.1993); Kaganove, 856 F.2d at 889. Bringing our circuit into alignment with the D.C. Circuit would create a more uniform standard for national agencies like the U.S. Navy. It would also allow our district courts to seek guidance from the D.C. Circuit's extensive case law in applying Exemption 2, in the absence of authoritative Ninth Circuit or Supreme Court rulings.
In short, FOIA "resolved two crucial but potentially conflicting interests: the right of the citizenry to know what the Government is doing, and the legitimate but limited need for secrecy to maintain effective operation of Government." Crooker, 670 F.2d at 1062. The text and history of Exemption 2 indicate that Congress intended to prevent disclosure of personnel matters that are predominantly internal, regardless of whether they are "law enforcement" in nature. Limiting Exemption 2 to "law enforcement materials" would frustrate that policy while rendering Exemption 7 almost entirely superfluous. Adopting the "predominantly internal" *968 standard gives due respect to Congress's policy choices. It also simplifies our approach to Exemption 2 and brings us into alignment with some of our sister circuits.
Therefore, we hold that a personnel document is exempt as "High 2" if it is predominantly internal and its disclosure presents a risk of circumvention of agency regulation. Law enforcement materials, as defined in Hardy and Maricopa, satisfy these criteria. However, other sorts of materialssuch as Navy data used for internal planning and safety purposes may also meet the standard for exemption under Exemption 2. We now turn to the question of whether the ESQD information requested here satisfies these criteria.
IV
A
We first consider whether the ESQD arcs fit within the statutory languagethat is, whether they are "predominantly internal" personnel rules or practices. The ESQD arcs at issue here are essentially an extension of the OP-5 manual, which governs operations on NMII. As noted above, the Foreword to the manual states that "[t]he purpose of this volume is to acquaint personnel engaged in operations" involving explosives with the relevant procedures. The Foreword further states that "[t]he instructions and regulations prescribed in [the] OP-5 [manual]... are considered minimum criteria. The specific items, technical manuals, drawings, and specifications referenced in this publication should be consulted for additional, detailed requirements." ESQD arcs are one of the "specific items" referenced in the OP-5 manual. Therefore, the ESQD arcs constitute one part of the internal policies and procedures that NMII personnel are bound to follow when handling and storing explosive ordnance.
Our understanding comports with the Navy's declarations that ESQD arcs are used by its personnel to "design, array, and construct ammunition storage facilities, and to organize ammunitions operations for risk mitigation and enhanced safety"the very subjects of the OP-5 personnel manual. The ESQD data is indeed an integral part of the Navy's personnel practices. Like the ATF raid manual at issue in Hardy and Crooker, the information sought here is predominantly used for the internal purpose of instructing agency personnel on how to do their jobs.
Milner and the dissent suggest that the Navy should classify this information in order to keep it internal. However, not all internal information can be classified, for legitimate reasons of personal and national security. Classifying such information may present logistical challenges that could actually impede safe and effective operations. For instance, the Navy has occasionally shared ESQD information with civilian first responders around Port Townsend whose fire, rescue, and police services would be needed in the event of an accident or attack on NMII.
Milner further argues the decision to share the information with local officials means the information is not "internal." We disagree. The decision to share otherwise internal information with emergency responders does not necessarily place the information outside the bounds of Exemption 2. First, we do not wish to discourage agencies from sharing internal information with local first responders. Such cooperation encourages coordinated and effective mutual aid that improves safety for both government employees and citizens. Agencies must be permitted to grant limited, confidential access to other federal and local agencies without risking broader disclosure. Second, limited disclosure for official purposes does not violate the standard that information must be "predominantly internal." Of course, if *969 an agency regularly and publicly discloses its practices, it can no longer claim the information is predominantly internal. That is not the case here. The ESQD arcs are "predominantly internal," regardless of prior limited disclosure to local officials.
Finally, FOIA's fundamental concern with the existence of "secret law" is not implicated here. See Hardy, 631 F.2d at 657 (stating that administrative materials, which "involve the definition of the violation and the procedures required to prosecute the offense, ... contain the `secret law' which was the primary target of [FOIA's] broad disclosure provisions"). When internal personnel practices are used as "a source of `secret law,' as important to the regulation of public behavior as if they had been codified," we cannot say the information is predominantly internal. Crooker, 670 F.2d at 1075 (discussing the guidelines for prosecutorial discretion at issue in Scott v. United States, 419 F.2d 264, 277 (D.C.Cir.1969)); Hardy, 631 F.2d at 657. Even if the information sought was developed for purely internal uses, we could not permit invocation of Exemption 2 if the information had external legal effect.
In this case, the personnel procedures derived from ESQD arcs are certainly not written to regulate the public. The ESQD arcs have absolutely no legal or enforcement ramifications whatsoever on the citizens of the Puget Sound region. Nothing about the data even could be codified in any logical way to regulate public behavior, and the Navy has not attempted to do so. We therefore hold the requested ESQD information is "predominantly internal."[4]
B
We next turn to the question whether disclosure of the ESQD information "may risk circumvention of agency regulation." Rose, 425 U.S. at 369, 96 S. Ct. 1592; see Crooker, 670 F.2d at 1070 (exempting ATF raid manual because disclosure risked "circumvention of the law"). In Rose, the Supreme Court surveyed the House and Senate reports related to Exemption 2 in considering the scope of the exemption. 425 U.S. at 362-67, 96 S. Ct. 1592.[5] The Court noted the House Report's emphasis on preventing circumvention of agency regulation and discussed prior cases relying on this Report:
Those cases relying on the House, rather than the Senate, interpretation of Exemption 2, and permitting agency withholding of matters of some public interest, have done so only where necessary to prevent the circumvention of agency regulations that might result from disclosure to the subjects of regulation of the procedural manuals and guidelines used by the agency in discharging its regulatory function.
Id. at 364, 96 S. Ct. 1592. However, because Rose was not a case "where knowledge of administrative procedures might help outsiders to circumvent regulations or standards," id. (quotation omitted), the Court left open the question whether Exemption 2 would apply "where disclosure may risk circumvention of agency regulation," id. at 369, 96 S. Ct. 1592.
Building on this framework, Crooker addressed the general question whether "Exemption 2 might be construed to cover internal agency materials where disclosure might risk circumvention of the law." 670 F.2d at 1067. It concluded, "we hold that *970... if disclosure significantly risks circumvention of agency regulations or statutes, then Exemption 2 exempts the material from mandatory disclosure." Id. at 1074. Five years later, the D.C. Circuit again summarized the scope of the circumvention requirement:
[W]e have not limited the "high 2" exemption to situations where penal or enforcement statutes could be circumvented. Rather, we have held that "[w]here disclosure of a particular set of documents would render those documents operationally useless, the Crooker analysis is satisfied whether or not the agency identifies a specific statute or regulation threatened by disclosure."
Schiller, 964 F.2d at 1208 (quoting Nat'l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 530-31 (D.C.Cir. 1986)).
In cases following Crooker, courts have exempted information that would aid individuals in thwarting various kinds of rules, procedures, and statutes.[6]See Massey, 3 F.3d at 622 (exempting "redact[ed] internal FBI notations containing the name of an FBI agent, the initials of other FBI employees, and certain administrative markings"); PHE, Inc. v. Dep't of Justice, 983 F.2d 248, 251 (D.C.Cir.1993) (exempting "specific documents, records and sources of information available to Agents investigating obscenity violations" because "release of FBI guidelines as to what sources of information are available to its agents might encourage violators to tamper with those sources of information"); Schiller, 964 F.2d at 1208 (exempting documents containing the National Labor Relations Board's litigation strategies in Equal Access to Justice Actions); Kaganove, 856 F.2d at 889-890 (exempting EPA document used to rate job candidates); Dirksen, 803 F.2d at 1458-59 (exempting guidelines used for processing Medicare payment claims); Nat'l Treasury Employees Union, 802 F.2d at 530-31 (exempting "crediting plans" used to evaluate job applicants); Founding Church of Scientology v. Smith, 721 F.2d 828, 829, 831 (D.C.Cir. 1983) (affirming district court's judgment that disclosure of "administrative handling instructions" "would risk circumvention of federal statutes").
The record before us reveals that the ESQD information falls squarely within this class of cases. An agency must "submit to the district court a detailed affidavit describing how disclosure would risk circumvention of agency regulation." Hardy, 631 F.2d at 657 (relying on Cuneo v. Schlesinger, 484 F.2d 1086, 1092 (D.C.Cir.1973)). "If the explanation is reasonable, the district court should find the materials exempt from disclosure, unless in camera examination shows that they contain secret law or that the agency has not fairly described the contents in its affidavit." Id. (citing Cox v. U.S. Dep't of Justice, 576 F.2d 1302, 1311-12 (8th Cir. 1978)).
*971 The Navy has described in detailed affidavits precisely how public disclosure would risk circumvention of the lawthe ESQD arcs sought here point out the best targets for those bent on wreaking havoc. The arcs indicate specific blast ranges for individual magazines within NMII. A terrorist who wished to hit the most damaging target or a protestor who wished to disrupt the Navy's monitoring and transportation protocols would be greatly aided by such information.[7] The dissent does not apparently dispute that this risk exists; it concludes only that risking sabotage of military explosives is not the sort of "circumvention of the law" that should concern us.
As in National Treasury Employees Union, disclosure of the ESQD data "would quickly render those documents obsolete for the purpose for which they were designed." 802 F.2d at 530. The ESQD arcs are created as a planning tool to prevent catastrophic detonations; disclosing the arcs would make catastrophe more likely. The fact that requests for similar information from the Bangor nuclear submarine base have been granted is irrelevant to our analysis. "[T]he release of certain documents waives FOIA exemptions only for those documents released." Mobil Oil Corp. v. EPA, 879 F.2d 698, 701 (9th Cir.1989). Moreover, Commander Whitbred explicitly addressed this argument in his affidavit: "[NMII] is not a submarine base. The nature of its mission is completely different, as are its security parameters, and physical characteristics. Furthermore, [NMII] is not a single-weapon system facility such as the bases referenced where the risks are associated with a single program." Because the Navy's safety concern rests on the potential utility of the ESQD arcs in identifying the most hazardous target among many, these distinctions are significant. Hardy and Minier instruct us to accord substantial weight to these reasonable explanations. Hardy, 631 F.2d at 657; Minier, 88 F.3d at 800.
The Navy released roughly 1,000 documents responsive to Milner's requests. It withheld the narrow class of documents at issue here because, as Commander Whitbred put it, "I believe strongly that release of the sensitive ESQD information involved in this case would jeopardize the safety and security of the storage, transportation, and loading of ammunitions and explosives" (emphasis original). There is no basis to "suspect" that the Navy has ulterior, political motives for denying the requested information. See Dissent at 10385. The Navy has met its burden of describing how disclosure would risk circumvention of its regulations. Therefore, the district court properly exempted the requested ESQD information from disclosure.[8]
V
In conclusion, we reiterate our approach to Exemption 2. First, the material withheld must fall within the terms of the statutory language. To determine whether a personnel document falls within the statutory language, we inquire whether it is "predominantly internal." Law enforcement material, as defined in Hardy and Maricopa, qualifies as predominantly internal, but it is not the only category of *972 materials that may meet this test. Second, if the material is predominantly internal, the agency may defeat disclosure by proving that disclosure may risk circumvention of the law. The ESQD arcs requested here are predominantly internal personnel materials, and if disclosed would present a serious risk of circumvention of the law. The district court properly ruled that the information sought is exempt from FOIA disclosure.
AFFIRMED.
W. FLETCHER, Circuit Judge, dissenting:
The question in this case is whether Explosive Safety Quantity Distance ("ESQD") arc maps are exempt from disclosure under the Freedom of Information Act ("FOIA"). The Navy claims the maps are exempt under FOIA Exemption 2 and Exemption 7(F). Exemption 2 covers information "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Exemption 7(F) covers "records or information compiled for law enforcement purposes" that, if disclosed, "could reasonably be expected to endanger the life or physical safety of any individual." Id. § 552(b)(7)(F). The majority holds that ESQD maps are exempt under Exemption 2. It does not reach Exemption 7(F).
The majority's holding is inconsistent with both the statute and the uniform case law interpreting Exemption 2. I would hold that the ESQD maps are not exempt under either FOIA Exemption 2 or Exemption 7(F).
I. Background
Naval Magazine Indian Island ("NMII") is an ordnance storage depot located on the northwest side of Indian Island on Port Townsend Bay in Washington State. The bay is on the northeast corner of the Olympic Peninsula, where the Straits of Juan de Fuca come in from the Pacific Ocean to meet Puget Sound. The bay is used by many kinds of pleasure and work boats. The northern part of NMII is a little more than two miles southeast of the town of Port Townsend across the open water of the bay, and several hundred feet west of Fort Flagler State Park on nearby Marrowstone Island. The southern part of NMII is a little more than a mile east of the towns of Port Hadlock and Irondale across the open water of the bay. NMII is used to store and transship ammunition, weapons, weapon components and explosives for the Navy, U.S. Joint Forces, Homeland Security and other federal agencies and allied forces. The Navy is responsible for all operations on NMII.
Glen Scott Milner is a life-long resident of the Puget Sound region. For the past twenty years he has done research and written about explosive hazards related to Navy activities in Puget Sound. He has published articles in the Bulletin of Atomic Scientists, BASIC (British American Security Information Council, in London), Seattle Times, Seattle Post-Intelligencer, Kitsap Sun, Port Townsend Leader, Washington Free Press, and Real Change in Seattle. In addition, numerous radio and television shows and newspaper articles have featured his comments about local Navy activities or used information that he obtained through FOIA.
The Navy develops ESQD arc maps as part of its explosives safety program. On an arc map,[1] an hypothesized explosion is at the focus of the arc. The arc represents the distance at which the force of the explosion will be felt. The distance between the site of the explosion and the arc varies depending on the kind and quantity *973 of ordnance. ESQD arc maps are essentially safety maps, telling the Navy (and anyone else who is allowed to see them) not only where different kinds and quantities of ordnance should be stored, but also how far away people and structures should be located to ensure their safety in the event of an explosion.
Milner submitted two FOIA requests to the Navy, one on December 7, 2003, and the other on February 3, 2004, for information about explosion hazards at NMII. The district court found Milner's two requests "substantially identical" and treated them as a single FOIA request. Milner requested three kinds of documents:
[1] [A]ll documents on file regarding ESQD arcs or explosive handling zones at the ammunition depot at Indian Island. This would include all documents showing impacts or potential impacts of activities in the explosive handling zones to the ammunition depot and the surrounding areas[;] ...
[2] all maps and diagrams of the ammunition depot at Indian Island which show ESQD arcs or explosive handling zones"[;][and]
[3] documents regarding any safety instructions or operating procedures for Navy or civilian maritime traffic within or near the explosive handling zones or ESQD arcs at the ammunition depot at Indian Island.
The Navy identified seventeen document packages totaling about 1,000 pages that met Milner's request. The Navy disclosed most of these documents to Milner, but withheld 81 documents, claiming that their disclosure could threaten the security of NMII and the surrounding community.
Jefferson County Commissioner Phil Johnson states in a declaration that he wrote two letters to Rear Admiral W.D. French requesting a meeting between Navy officials and the general public concerning safety of ordnance storage and handling at NMII. Jefferson County encompasses the towns of Port Townsend, Port Hadlock and Irondale. In his first letter, dated February 21, 2006, Commissioner Johnson recounted that Captain Kurtz, the then-Commanding Officer of NMII, and his staff had provided a tour of NMII to "local governmental leaders and the press." He wrote, "The three hours that we spent touring the facilities and listening to the presentations about the Magazine's safety record, the `standard operating procedures' and the Navy's environmental program were indeed impressive." Commissioner Johnson then proposed a discussion lasting one to two hours at Fort Worden State Park "with our general public, Captain Kurtz and his staff," and with a "neutral facilitator who will keep the audience focused on the purpose of the meeting." Admiral French wrote back thanking Commissioner Johnson for his "support of the U.S. Navy," stating that "the Navy values its outstanding relationship with Jefferson County," and describing meetings Captain Kurtz had had with different groups, including the Chambers of Commerce of Port Hadlock and Port Townsend. However, Admiral French did not mention Commissioner Johnson's proposal for a general public meeting.
In a second letter to Admiral French, dated April 3, 2006, Commissioner Johnson again requested a general public meeting. This time he proposed that an "open public forum" be held at the Jefferson County Courthouse. He proposed that Captain Kurtz and his staff appear on a panel with "panelists from the Hospital, Emergency Operations and Law Enforcement/Fire." He again proposed that there be a "neutral moderator, who we will provide, to insure that the forum remains focused on NAV MAG Indian Island and the plans for the island." This time, Admiral French responded to Commissioner Johnson's proposal. *974 He declined, writing on May 3, 2006:
Thank you for your letter ... in which you propose that a public forum be held... with presentations by the Navy, the local hospital, your Emergency Operations Department, Law Enforcement and the East Jefferson Fire District. While we appreciate this opportunity and desire to keep the lines of communication open, we prefer to continue our current outreach program.
Admiral French listed occasions on which Captain Kurtz had spoken to "many community groups and civic organizations in the Port Townsend area." He stated, "We believe that these public engagements have been quite successful in providing information to the citizens of Jefferson County."
On September 11, 2006, Milner sued the Navy under FOIA seeking disclosure of the documents the Navy had refused to provide in response to his FOIA request.
Commander George Whitbred IV, the current Commanding Officer of NMII, states in a declaration filed in this suit that ESQD arcs "define minimum separation distances for quantities of explosives based on required degrees of protection. These separation distances are established to afford reasonable safety to Department of Navy shore activities, and, to the extent possible, protect adjacent public and private property." Commander Whitbred states that "ESQD arcs can be `reverse engineered' with the right information," and that "some arcs reveal more than others about the particular ammunition, explosive or weapons system." He states that arc maps are provided to civilian members of the public on a "case-by-case basis." Commander Whitbred states further:
We sometimes share ESQD information with "first responders" at both Jefferson County and the City of Port Townsend. However, ESQD information is not released to the general public if a determination is made that the release might pose a serious threat of death or injury to any personeither inside or outside the installation boundaries.
Milner states in a declaration that the Navy submarine base at Bangor, Washington, "handles much of the ammunition that is sent to Indian Island. The ammunition is routed by railcars and then sent by truck to Indian Island." He further states that the Navy has voluntarily handed over to him, pursuant to FOIA requests, comparable arc maps for ordnance stored at the Bangor base. The Navy's behavior with respect to the arc maps for the Bangor base contrasts sharply with its behavior with respect to the arc maps for NMII, even though the same type of ordnance is stored at both bases. Milner states:
Numerous documents showing ESQD arcs and related information about the Bangor base, similar to the documents I requested for Indian Island, have been released to me through FOIA. One 1995 document ... lists 33 different sites with ESQD arcs at Naval Base Kitsap-Bangor. The Net Explosives Weight at these sites is listed from 5,000 to 3.72 million pounds.... The document also contains a map showing ESQD arcs at Bangor. Numerous similar maps showing ESQD arcs at Bangor have been released to me in the past.
Bangor is the Puget Sound base for the Navy's Trident nuclear submarines. The Bangor base is located on the north-eastern shore of Hood Canal, a little less than 40 miles due south of Port Townsend. Despite its name, Hood Canal is not a canal; rather, it is a long narrow inlet of Puget Sound mostly running north and south along the eastern edge of the Olympic Peninsula. The nearest town to the Bangor *975 base is Silverdale, four or five miles across land to the south.
The Navy has not contradicted Milner's statement about the nature and quantity of ordnance at Bangor. Nor has it contradicted his statement that it has voluntarily released to him under FOIA numerous arc maps for the ordnance stored at the Bangor base. Though it undoubtedly could have done so, the Navy has not provided affidavits or declarations from anyone connected with the Bangor base. Commander Whitbred of NMII has provided the Navy's only response to Milner's statements about the Bangor base. He states in his declaration, "I am not an expert on Trident Submarines; nor do I know the reasons why information about ESQD arcs might have been released by those commands in the past."
Both parties moved for summary judgment. The Navy contended that the documents were protected from disclosure under FOIA Exemptions 2 and 7(F). The district court granted summary judgment to the Navy under Exemption 2. The court did not address Exemption 7(F). Milner timely appealed.
II. Discussion
I would hold that neither Exemption 2 nor Exemption 7(F) permits the Navy to withhold the requested ESQD arc maps.
A. FOIA
The goal of FOIA is "to open agency action to the light of public scrutiny." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989) (internal quotation omitted). FOIA revised § 3 of the Administrative Procedure Act ("APA"), which Congress had declared was "full of loopholes which allow agencies to deny legitimate information to the public." S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) ("Senate Report"); see also H.R.Rep. No. 1497, 89th Cong., 2d Sess., 4 ("House Report") ("Section 3 of the [APA], though titled `Public Information' and clearly intended for that purpose, has been used as an authority for withholding, rather than disclosing, information."). In the words of the Supreme Court, "Section 3 was generally recognized as falling far short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute." Dep't of Air Force v. Rose, 425 U.S. 352, 360, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976) (quoting EPA v. Mink, 410 U.S. 73, 79, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973)).
FOIA mandates that government agencies disclose their records through three methods. 5 U.S.C. § 552(a). Section 552(a)(1) requires that agencies publish certain information in the Federal Register. Section 552(a)(2) requires that certain other types of material be made available for public inspection and copying. Section 552(a)(3), upon which Milner relies, requires disclosure of all other reasonably described records not already released under § 552(a)(1) or (a)(2).
Federal agencies may withhold requested documents only if they fall under one of the nine enumerated exemptions to mandatory disclosure under FOIA. Exemptions under FOIA "must be narrowly construed." Rose, 425 U.S. at 361, 96 S. Ct. 1592. Exemptions under FOIA are also "explicitly exclusive." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S. Ct. 2841, 106 L. Ed. 2d 112 (1989) (quoting Adm'r FAA v. Robertson, 422 U.S. 255, 262, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975)). That is, we may not read additional exemptions into FOIA, no matter how desirable such exemptions might be in the view of the agency or the court. See also Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7-8, 121 S. Ct. 1060, 149 L. Ed. 2d 87 (2001); Maricopa *976 Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082, 1085 (9th Cir.1997). The existence of these nine enumerated exemptions "do[es] not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361, 96 S. Ct. 1592.
B. FOIA Exemption 2
FOIA Exemption 2 allows agencies to withhold "matters ... related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). The question before us is whether ESQD arc maps are "related solely to internal personnel rules and practices" within the meaning of Exemption 2. I would hold that they are not.
I agree with part of the majority's analysis. I agree that we should adopt the reasoning of the D.C. Circuit articulated in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc). I further agree that our circuit's three decisions dealing with Exemption 2Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653 (9th Cir. 1980); Dirksen v. United States Department of Health and Human Services, 803 F.2d 1456 (9th Cir.1986); and Maricopa Audubon Society v. United States Forest Service, 108 F.3d 1082 (9th Cir.1997)are not inconsistent with Crooker. Finally, I agree that under Crooker, documents must be "predominantly internal" and pertain to "personnel rules and practices of an agency" to qualify under Exemption 2.
However, I strongly disagree with the majority's application of the part of Crooker that deals with what it calls "the circumvention requirement." Maj. Op. at 969-70. Crooker held that a predominantly internal document whose release might result in the circumvention of agency regulation is protected under Exemption 2. Circumvention of agency regulation has a precise, and restricted, meaning. Crooker and all subsequent cases have held that the circumvention must be by a person or entity that is subject to regulation by the agency in question.
Crooker carefully described the sort of circumvention of agency regulation that qualifies a document for exemption under Exemption 2. Crooker noted that the Supreme Court's opinion in Rose had left open the question whether documents that would permit circumvention of regulation were exempted by Exemption 2. Crooker answered the question, holding that such documents were exempted. It quoted from Rose to make clear the sort of circumvention at issue. First, the Court in Rose had referred to Exemption 2 as being potentially available
only where necessary to prevent the circumvention of agency regulations that might result from disclosure to the subjects of regulation of the procedural manuals and guidelines used by the agency in discharging its regulatory function.
Crooker, 670 F.2d at 1066 (quoting Rose, 425 U.S. at 364, 96 S. Ct. 1592) (emphasis altered). Second, the Court had noted that the primary focus of the House Report on Exemption 2 had been on "exemption of disclosures that might enable the regulated to circumvent agency regulation." Crooker, 670 F.2d at 1066 (quoting Rose, 425 U.S. at 366-67, 96 S. Ct. 1592) (emphasis added). Thus, under Crooker, agency documents embodying "personnel rules and practices" are exempt under Exemption 2 only when they are "procedural manuals and guidelines used by the agency in discharging its regulatory function," and only when their disclosure "to the subjects of regulation" might result in the "circumvention of agency regulations." Crooker, 670 F.2d at 1066 (quoting Rose, 425 U.S. at 364, 96 S. Ct. 1592).
*977 Examples of documents whose release might result in circumvention of agency regulation by regulated persons or entities include "instructions to such government officials as investigators and bank examiners." Crooker, 670 F.2d at 1057. The documents we held exempt under Exemption 2 in Hardy and Dirksen are further examples of such documents. In Hardy, we held exempt under Exemption 2 a Bureau of Alcohol, Tobacco, and Firearms ("BATF") training manual whose disclosure risked circumvention of BATF regulation by parties subject to that regulation. In Dirksen, we held exempt under Exemption 2 a document containing Medicare processing Guidelines whose disclosure risked circumvention of agency reimbursement regulations by Medicare providers subject to Health and Human Services regulation. In Hardy, we emphasized that the BATF manual was a law enforcement manual, and in Dirksen, we analogized the Guidelines document to a law enforcement manual.
In a consistent line of cases decided after Crooker, the D.C. Circuit has restricted the application of Exemption 2 to documents whose release would permit the subjects of the agency's regulation to circumvent that regulation. In National Treasury Employees Union v. United States Customs Service, 802 F.2d 525 (D.C.Cir.1986), the court held that the Customs Service could withhold "crediting plans" it used to evaluate job applicants. Id. at 531. The court determined that "release of the plans creates a significant risk that the Service's applicant evaluation program will be seriously compromised" because "advance knowledge of the plans by applicants would allow and induce at least some of them to embellishor perhaps even fabricatetheir backgrounds to suit the appropriate crediting plan." Id. at 529.
In Schiller v. NLRB, 964 F.2d 1205 (D.C.Cir.1992), the court similarly allowed the National Labor Relations Board ("NLRB") to withhold documents containing the agency's litigation strategies in Equal Access to Justice Act ("EAJA") actions. Id. at 1207. The EAJA allows prevailing parties to recover attorney's fees and costs from the agency in certain circumstances. See 5 U.S.C. § 504. The court held that requiring the NLRB to disclose its litigation strategies would "compromis[e] the Board's ability to defend itself in EAJA actions." 964 F.2d at 1208.
In PHE, Inc. v. Department of Justice, 983 F.2d 248 (D.C.Cir.1993), the court allowed the FBI to claim Exemption 2 for the section of its Manual of Investigative Operations and Guidelines related to interstate transportation of obscene matter. Id. at 251. This withheld section "detailed specific documents, records and sources of information available to Agents investigating obscenity violations, as well as the type of patterns of criminal activity to look for when investigating certain violations." Id. The court agreed with the government that the disclosure of this portion of the Manual would "provide[ ] violators with an opportunity to impede lawful investigations." Id.
The case law in other circuits is consistent with that of the D.C. Circuit. In Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d Cir.1978), the Second Circuit held exempt under Exemption 2 a BATF Raids and Searches training manual. Id. at 546. The court stated that releasing the manual would "significantly assist those engaged in criminal activity by acquainting them with the intimate details of the strategies employed in its detection." Id. at 547. The Seventh Circuit followed suit in Kaganove v. EPA, 856 F.2d 884 (7th Cir.1988), holding exempt *978 under Exemption 2 an EPA document used to rate job candidates. Id. at 889-90. The court found that disclosing the document would allow job applicants to exaggerate their credentials to receive higher ratings. Id. at 890.
The majority does not acknowledge the limited sense in which circumvention of agency regulation is used in the case law interpreting Exemption 2. The majority has cited no caseand can cite no casein which Exemption 2 was applied more broadly than in the cases I have just described. In all of the reported cases dealing with the issue, Exemption 2 applies only to documents whose release would facilitate circumvention of agency regulation by a regulated person or entity. Under long-standing and well-established law, a document is protected under Exemption 2 only if its release risks circumvention by a regulated person or entity. Exemption 2 does not apply in this case because there is no such person or entity. The Navy is not acting as a regulatory or law enforcement agency, and the arc maps do not regulate anyone or anything outside the Navy itself.
The majority ignores a consistent line of cases in which agency maps have been held not to qualify under Exemption 2. Most important is our own case, Maricopa Audubon Society v. United States Forest Service, 108 F.3d 1082 (9th Cir.1997), in which we held that Forest Service maps showing the locations of goshawk nests were not protected from disclosure under Exemption 2. 108 F.3d at 1086-87. We so held despite the concern expressed by the district court that if the maps fell into the wrong hands harm to the goshawks could result. Id. at 1084.
Other cases include Audubon Society v. United States Forest Service, 104 F.3d 1201 (10th Cir.1997), Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313 (D.Utah 2003), and DeLorme Publishing Co. v. National Oceanic & Atmospheric Administration of the United States Department of Commerce, 917 F. Supp. 867 (D.Me.1996). In Audubon, the Tenth Circuit held that maps identifying Mexican spotted owl nest sites were not protected from disclosure under Exemption 2. 104 F.3d at 1204. In Living Rivers, the district court determined that the Bureau of Reclamation could not withhold maps showing which downstream areas would be flooded if the Hoover Dam or the Glen Canyon Dam failed. 272 F.Supp.2d at 1318. The court so held despite the government's contention that releasing the maps "would [compromise] dam security and the security of the surrounding populations." Id. at 1315. In DeLorme, the district court rejected the National Oceanic and Atmospheric Administration's attempt to withhold compilations of its nautical charts from disclosure under Exemption 2. 917 F.Supp. at 876.
The key question in these cases was not whether the documents at issue were maps per se, but rather the consequence of the release of the maps. Even though there was some potential risk of harm from the release of the maps, their release did not risk circumvention of regulation by regulated persons or entities. I agree with the majority that releasing a map showing the location of cameras in a prison would be protected under Exemption 2. See Maj. Op. at 970 n.6. Such a map would be protected because its disclosure would risk circumvention of regulation by regulated persons, i.e. by the prison's inmates. But our case is quite different. In our case, there isat least, according to the Navy a risk of harm from release of the maps. But the risk is not that a regulated person or entity will be thereby assisted in avoiding the agency's regulation.
Given the foregoing extensive and consistent lines of precedent, the conclusion is *979 inescapable that the arc maps at issue in this case are not exempt under Exemption 2. The ESQD arc maps do not qualify for Exemption 2 under this circuit's analysis in Hardy and Dirksen; under the D.C. Circuit's analysis in Crooker and subsequent cases; or under the analyses of the other circuits. The arc maps are not "procedural manuals [or] guidelines used by the agency in discharging its regulatory function" whose disclosure "to the subjects of regulation" might result in the "circumvention of agency regulations." Crooker, 670 F.2d at 1066. Rather, the maps fall squarely under the analysis in our circuit's decision in Maricopa, in the Tenth Circuit's decision in Audubon, and in the district courts' decisions in Living Rivers and DeLorme. I would therefore hold that the ESQD arc maps at issue in this appeal are not exempt under Exemption 2.
C. FOIA Exemption 7(F)
Because I would hold that the ESQD arc maps are not exempt under Exemption 2, I would also reach the question whether the maps are exempt under Exemption 7(F). Exemption 7(F) covers "matters that are ... records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information... could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). I would hold that the ESQD arc maps are not covered under Exemption 7(F) because they were not "compiled for law enforcement purposes."
The Navy has the burden of proving that it is a "law enforcement" agency and that the ESQD arc maps were "compiled for law enforcement purposes." Church of Scientology of Cal. v. U.S. Dep't of the Army, 611 F.2d 738, 748 (9th Cir.1979). An agency with a "`mixed' function, encompassing both administrative and law enforcement functions, must demonstrate that it had a purpose falling within its sphere of enforcement authority in compiling the particular document." Id. A law enforcement purpose is an "adjudicative or enforcement purpose[ ]," such as the "enforcement of any statute or regulation within the authority" of the agency. Id. "Information need not have been originally compiled for law enforcement purposes in order to qualify for the `law enforcement' exemption, so long as it was compiled for law enforcement purposes at the time the FOIA request was made." Lion Raisins v. U.S. Dep't of Agric., 354 F.3d 1072, 1082 (9th Cir.2004) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 155, 110 S. Ct. 471, 107 L. Ed. 2d 462 (1989)).
The Navy concedes that it is an agency with a mixed function. Therefore, it must demonstrate that it "had a law enforcement purpose based upon properly delegated enforcement authority" for compiling the ESQD arc maps. Church of Scientology, 611 F.2d at 748. The Navy does not meet this standard. Agencies with law enforcement powers have the ability to conduct investigations or adjudications to enforce laws or regulations. See, e.g., Church of Scientology Int'l v. I.R.S., 995 F.2d 916, 919 (9th Cir.1993) (finding that the Exempt Organization Division of the IRS performs a law enforcement function "by enforcing the provisions of the federal tax code that relate to qualification for tax exempt status"); Lewis v. I.R.S., 823 F.2d 375, 379 (9th Cir.1987) (holding that the I.R.S. has a law enforcement purpose in the context of a criminal tax investigation); Binion v. U.S. Dep't of Justice, 695 F.2d 1189, 1194 (9th Cir.1983) (stating that the F.B.I. has a "clear law enforcement mandate"). The divisions of the Navy responsible for producing ESQD arc maps and conducting operations on NMII have no such powers. These divisions are distinct from those with investigative powers, such as the Naval *980 Investigative Service of the Office of Naval Intelligence, which we examined in Church of Scientology. 611 F.2d at 748.
Even if the branch of the Navy that created the ESQD arc maps had law enforcement authority, these documents were not compiled for law enforcement purposes. Commander Whitbred stated that the Navy "use[s] these arcs to design, array, and construct ammunition storage facilities, and to organize ammunition operations for risk mitigation and enhanced safety." This is not an "adjudicative or enforcement purpose[]." Church of Scientology, 611 F.2d at 748. I would therefore hold that the ESQD arc maps at issue in this appeal are not exempt under Exemption 7(F).
D. FOIA Exemption 1
I am myself a former Navy officer. I yield to no one in my admiration for the care and professionalism of the Navy in its handling of ordnance, at NMII and elsewhere.
There is reason to suspect that the Navy's reluctance to release the ESQD arc maps for NMII is not based on the danger to national security that might be posed if the arc maps were released to Milner and the general public, but rather on the political difficulties that might be created by their release. This is strongly suggested by the contrast between the Navy's behavior with respect to the arc maps for the Bangor base and its behavior with respect to comparable arc maps for NMII. The Navy voluntarily provided to Milner under FOIA numerous ESQD arc maps for the Bangor base. That base is located four to five miles across land from the nearest town. So far as the record reveals, there was little political sensitivity to the possible dangers posed by the storage of conventional ordnance at Bangor.
By contrast, the Navy has been unwilling to provide to Milner the comparable ESQD arc maps for the same type of ordnance stored at NMII. NMII is located a little more than two miles across open water from Port Townsend and a little more than a mile across open water from Port Hadlock and Irondale. It is clear from the record that there is substantial political sensitivity to the possible danger posed by the storage of ordnance at NMII. This political sensitivity is shown, for example, by Jefferson County Commissioner Johnson's invitation to the Navy to appear at a public forum to discuss "NAV MAG Indian Island and the plans for the island" on a panel with local hospital, emergency operations, law enforcement and fire fighting personnel. The nature of the Navy's response is shown by its unwillingness to accept the invitation, and its preference instead to continue to conduct its "current outreach program" in which Captain Kurtz, appearing alone, spoke to various community groups and civic organizations.
Commander Whitbred states in his declaration that a person may be able to "reverse engineer" ESQD arc maps, and thereby to discover information about "particular ammunition, explosive[s and] weapons systems," with possible adverse consequences for national security. I have trouble reconciling Commander Whitbred's statement about the national security risks of releasing the ESQD arc maps for NMII with the Navy's failure to classify these maps. Exemption 1 of FOIA specifically exempts from disclosure classified matters "kept secret in the interest of national defense or foreign policy." 5 U.S.C. § 552(b)(1). This exemption is specifically designed to allow government agencies to withhold information that might jeopardize our national security. If the disclosure of the ESQD arc maps is as dangerous as Commander Whitbread claims, the Navy is acting irresponsibly by not classifying them. I would be willing to remand to the district court, even at this late stage in the *981 litigation, in order to give the Navy an opportunity to classify the arc maps at NMII and thereby to qualify them under Exemption 1 if it truly believes that Commander Whitbred's stated concerns about reverse engineering are legitimate. But my colleagues in the majority have declined to follow this course.
Conclusion
FOIA is a careful "balance between the interests of the public in greater access to information and the needs of the Government to protect certain kinds of information from disclosure." John Doe Agency, 493 U.S. at 157, 110 S. Ct. 471. FOIA protects information that, if released, would jeopardize our national security or endanger the lives of individuals. Such information is protected under Exemption 1 if it is classified and under Exemption 7(F) if it is "compiled for law enforcement purposes" and "could reasonably be expected to endanger the life or physical safety of any individual" if disclosed. The majority's determination to expand Exemption 2 to protect information that the Navy has not seen fit to classify distorts Congress's careful balance and defies the Supreme Court's instruction that FOIA exemptions "must be narrowly construed" and are "explicitly exclusive." Rose, 425 U.S. at 361, 96 S. Ct. 1592; Tax Analysts, 492 U.S. at 151, 109 S. Ct. 2841 (quoting Robertson, 422 U.S. at 262, 95 S. Ct. 2140).
I conclude, based on a long line of consistent precedent in this and other circuits, that neither Exemption 2 nor Exemption 7(F) applies to the arc maps at issue in this appeal. I respectfully dissent.
NOTES
[1] The district court found Milner's two requests "substantially identical" and treated them as a single FOIA request. We agree with the district court's assessment.
[2] This category developed from Rose, in which the Supreme Court held that Air Force disciplinary studies were not exempt from disclosure because they were a matter of genuine and significant public interest. 425 U.S. at 364-70, 96 S. Ct. 1592. However, the Court explicitly left open the question whether Exemption 2 would cover situations "where disclosure may risk circumvention of agency regulation." Id. at 369, 96 S. Ct. 1592.
[3] The court relied on Judge Leventhal's analysis in a prior case:
[P]ushed to their logical ends, "relating" is potentially all-encompassing while "solely" is potentially all-excluding. It seems unlikely that Congress intended either extreme, and that "solely" in this context has to be given the construction, consonant with reasonableness, of "predominantly."
Crooker, 670 F.2d at 1056-57 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1150-51 (D.C.Cir. 1975) (Leventhal, J., concurring)).
[4] The dissent does not dispute that the requested materials satisfy Exemption 2's "predominantly internal" requirement.
[5] The Court ultimately chose to rely on the Senate Report in determining Congress' intent in resolving the question at issue in Rose, 425 U.S. at 367, 96 S. Ct. 1592.
[6] The dissent refers to "a consistent line of cases in which agency maps have been held not to qualify under Exemption 2." Dissent at 977-78. We concede that the maps at issue in the cited cases were deemed non-exempt. However, the fact that the information at issue was expressed in the form of a map is utterly irrelevant to our analysis. A map may or may not meet the standard for Exemption 2; it will depend, in each case, on what information the map conveys and the purpose for which it is used. Even under the dissent's narrow reading of the circumvention requirement, a map might well facilitate circumvention by a regulated person or entity. For instance, a map or diagram showing the location of cameras in a prison would be of great interest to an inmate who wishes to avoid detection when he violates prison regulations. We decline to draw distinctions based on whether the information appears in images, numbers, words, or any other format.
[7] Milner's argument that such acts of sabotage are already criminalized is unavailing. The same is equally true for misdeeds involving drugs and firearms, but Hardy and Crooker nonetheless concluded that criminals should not have the benefit of inside information in frustrating an ATF raid. Hardy, 631 F.2d at 656; Crooker, 670 F.2d at 1073.
[8] Because we conclude the requested information was properly exempted under Exemption 2, we need not reach the alternative argument that Exemption 7 also applies.
[1] When I refer to ESQD arc maps, I refer not only to the maps but to the mathematical calculations of which the maps are the graphic representation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1891906/ | 224 B.R. 431 (1998)
In re Douglas A. LIEN, Debtor(s).
Douglas A. LIEN, Plaintiff(s),
v.
UNITED STATES of America, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant(s).
Bankruptcy No. A95-00410-HAR, Adversary No. A95-00410-001-HAR, No. 97-3229.
United States Bankruptcy Court, D. Alaska.
July 2, 1998.
*432 M. Gregory Oezkus, Anchorage, Alaska, for II, Sole Practitioner.
Elizabeth S. O'Leary, Asst. U.S. Attorney, Anchorage, Alaska, for Δ, U.S. Attorney's Office.
MEMORANDUM DECISION REGARDING DENIAL OF SUMMARY JUDGMENT TO THE USA
HERBERT A. ROSS, Bankruptcy Judge.
1. INTRODUCTION Douglas Lien, a chapter 7 debtor, had prepetition Health Education Assistance Loan (HEAL) obligations. Within a year after his discharge, he married his long-time domestic partner, Carla Lien. Shortly after that, the Liens learned that a chronic medical problem which Carla suffered was more serious than they suspected. It resulted in substantial post-discharge medical expense, including the cost of pain medication which is critical to Carla's well-being.
Is Dr. Lien barred from getting an "unconscionability" discharge because he voluntarily assumed the legal obligation for Carla, and all the medical bills have occurred after his discharge? I find that he is not.
2. FACTS AND PROCEDURAL BACKGROUND Douglas Lien obtained a number of loans in the 1980s to pay for his dental education. He graduated from dental school and is licensed to practice dentistry in Alaska. His financial success at the practice of dentistry has been limited.
Lien filed a chapter 7 bankruptcy and was discharged in 1995. At the time, he was a dentist practicing in Homer, Alaska, and a large percentage of his income came from payments received from the Medicaid and Medicare programs.
On January 1, 1996, he married his longtime domestic partner, Carla Lien. Carla had been suffering from a chronic condition which had affected her jaw and face, and as a result had undergone a number of operations *433 before the marriage. It was only after the marriage that the Liens learned that her problem was a more serious medical condition than they suspected, described as "persistent osteomyelitis of the maxillary sinuses."[1] The condition has resulted in substantial post-discharge medical expense for the Liens, including the cost of pain medication which is essential to Carla until she can beat the disease.
The U.S. of America had attempted to collect the HEAL loans from Dr. Lien both pre- and postpetition, but was unable to do so. So, in late 1996, the government invoked its power to bar Dr. Lien from participating in Medicare and Medicaid programs.[2] The inability to be compensated through these programs will make Dr. Lien's practice of dentistry financially unfeasible. As a conciliatory gesture, the government is allowing Dr. Lien to participate in these programs pending the outcome of this dischargeability proceeding.
Dr. Lien can escape the stringency of the statutes cutting off his right to participate in Medicare and Medicaid programs if he can show that his loan is nondischargeable. To do that, he must meet the strict test for proving unconscionability under 42 U.S.C. § 292f(g). See, In re Rice.[3]
To establish his right to discharge of the HEAL loan, Dr. Lien filed this adversary proceeding. The government filed a motion for summary judgment. Using the standards set out in In re Rice, I have previously denied the government's summary judgment motion, subject to further briefing on whether Dr. Lien qualifies for relief given his voluntary post-discharge assumption of the legal obligation to care for Carla (what I will call a "lifestyle change" in this Memorandum).[4] That is what this Memorandum addresses.
My concern, and reason for requesting additional briefing, was that:
Dr. Lien was single at the time of the bankruptcy and discharge;
All the medical expenses were incurred postpetition; and,
The legal obligation for those medical expenses occurred post-discharge.
In trying to determine if Dr. Lien qualified for discharge of his HEAL loan, I posed to the parties a hypothetical about a debtor who, ten years after his discharge in bankruptcy and after making payments during those ten years on a HEAL loan, suffers catastrophic events.[5] Can he come back even ten years later and use his long-closed bankruptcy as a vehicle to obtain a judgment discharging the HEAL loan?
Inherently, one feels that a HEAL loan debtor must at some point lose the ability to rely on a closed bankruptcy case as a vehicle to establish unconscionabilityespecially where the debtor has had voluntary lifestyle changes which contribute to the facts giving rise to the claim of unconscionability.
3. LEGAL ANALYSIS
3.1. What is the Appropriate Date to Use to Analyze the Debtor's Financial Situation? Most cases do not analyze what is the appropriate date to use in making the determination of whether a student loan under 11 U.S.C. § 523(a)(8), (10) or a HEAL loan is nondischargeable. They merely assume the circumstances at the time of trial will be used as the basis for deciding whether repayment of the educational loan will be an undue hardship or unconscionable.
These cases often include a statement that the court should review the financial circumstances *434 of the debtor debtor's "current" income and expenseat the time of the trial.[6]
One case that did discuss the issue in more detail is In re Sobh.[7] The court entered a judgment denying a discharge for undue hardship under 11 U.S.C. § 523(a)(8)(B). In its judgment, the court included a provision that the debtors would not be barred by res judicata from circumstances changed to bring the debtor within the requirements for an undue hardship exception. The educational lender appealed to have that provision stricken. The district court found that changed circumstances might support a second adversary proceeding to determine the nondischargeability of an educational loan.
The law seems to be almost universal that the court is not restricted to the debtor's circumstances on the petition date in making a determination regarding undue hardship or unconscionability. Since the events giving rise to the unconscionability occurred relatively shortly after his discharge, I find that the chapter 7 case which had been recently concluded can be used as a vehicle to seek an unconscionability discharge of Dr. Lien's HEAL obligations.
3.2. Do Lifestyle Changes of the Debtor Post-Discharge Bar the Discharge of a HEAL Loan for Unconscionability Purposes?- What if the debtor has made some lifestyle changes that contribute to the claim of unconscionability? A debtor who could not have established unconscionability on the date of his discharge may undertake obligations post-discharge which, if used as part of the financial analysis, would make it "unconscionable" to make the HEAL loan payments. In balancing the rights of a debtor to conduct his or her life and the right of a HEAL lender to be paid, what lifestyle changes should be tolerated?
The issue of lifestyle changes, and how they effect such things as confirmation of chapter 13 plans and discharge of educational loans was the subject of a law review article, Lifestyles of the Not-So-Rich or Famous: the Role of Choice and Sacrifice in Bankruptcy.[8]
The law review article contains a section entitled Lifestyle Choices That Prevent Debtors From Repaying Presumptively Non-Dischargeable Debts In Order To Support Non-Legal Dependents.[9] In this section, cases are cited where courts allowed educational loans to be discharged, notwithstanding the debtor's financial support of non-legal dependents rather than paying the presumptively nondischargeable student loans. So, a debtor was granted a discharge even though he chose to divert income to voluntarily provide support for his retired mother and unemployed father.[10] And, a debtor received a discharge in an 11 U.S.C. § 523(a)(15) case, even though he used income to support two children for whom he had no legal obligation.[11]
On the other hand, the article notes courts that have refused to allow such choices to be used as part of the justifications for discharging an educational loan. Noting that a debtor had made a choice to live in a non-traditional family and provide some support for children who were not his own, one court indicated the debtor could not use this as an excuse to avoid his legal obligation to his educational lenders.[12]
In Dr. Lien's case, no evidence has been provided that he attempted to orchestrate a finding of unconscionability by marrying Carla. The chronology belies this. He had a long-term relationship to begin with. They did not know the extent of her medical condition when they marriedthe diagnosis came later.
*435 4. CONCLUSION- Under the facts of this adversary proceeding, I conclude that this adversary proceeding is close enough in time to the bankruptcy case to be a vehicle to address the issue of dischargeability based on unconscionability, and that the lifestyle changes of Dr. Lien do not per se disqualify him from relief, absent a more direct showing that he has tried to manipulate the HEAL loan system by his marriage to Carla.
NOTES
[1] See, letter from Dr. Robert Harrington, Harborview Medical Ctr., Univ. of Washington, dated January 21, 1998, attached as Exhibit 11 to Affidavit of Douglas Lien, Docket Entry 23, filed April 7, 1998.
[2] See, letter from the Director of Health Care Administrative Sanctions to Dr. Lien, dated November 19, 1996, which is Exhibit J to the government's Motion and Memorandum in Support of Motion for Summary Judgment, Docket Entry 14, filed March 10, 1998.
[3] 78 F.3d 1144 (6th Cir. 1996).
[4] See, Order Denying Summary Judgment and Setting Additional Briefing Schedule, Docket Entry 33, filed May 19, 1998.
[5] See, footnote 4.
[6] See, In re Cheesman, 25 F.3d 356, 359 (6th Cir.1994) and In re Brunner v. New York Higher Education, 831 F.2d 395, 396 (2nd Cir.1987).
[7] 61 B.R. 576 (E.D.Mich.1986).
[8] A. Mechele Dickerson, Lifestyles of the Not-So-Rich or Famous: the Role of Choice and Sacrifice in Bankruptcy, 45 Buff LR 629 (Fall 1997).
[9] Id, around footnotes 141-162.
[10] In re Clay, 12 B.R. 251, 254 (Bankr.N.D.Iowa 1981).
[11] In re Hill, 184 B.R. 750, 755 (Bankr.N.D.Ill. 1995).
[12] In re Melton, 187 B.R. 98, 102-04 (Bankr. W.D.N.Y.1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913999/ | 705 So. 2d 723 (1998)
Dean LEA, Petitioner,
v.
Donald WIGTON and Barbara Wigton, et al., Respondents.
No. 98-62.
District Court of Appeal of Florida, Fifth District.
February 20, 1998.
Barry Kalmanson, Maitland, for Petitioner.
No Appearance for Respondents.
ON PETITION FOR WRIT OF CERTIORARI
ANTOON, Judge.
Dean Lea (petitioner) filed a petition for writ of certiorari requesting that this court quash the trial court's order denying his motion to strike Donald and Barbara Wigton's (respondents) affirmative defenses. We deny the petition because Lea has failed to establish that entry of the trial court's order constituted irreparable harm.
On April 30, 1997, the trial judge heard argument regarding the petitioner's motion to strike the respondents' affirmative defenses and then took the matter under advisement. On November 13, 1997, the trial judge entered an order disqualifying himself because he was "personally acquainted" with the respondents. Thereafter, on December 14, 1997, the trial judge entered an order denying the petitioner's motion to strike the respondents' affirmative defenses.
The petitioner correctly argues that the trial judge departed from the essential requirements of the law by entering the order denying the motion to strike the respondents' affirmative defenses. In this regard, once an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case. Dream Inn, Inc. v. Hester, 691 So. 2d 555, 556 (Fla. 5th DCA 1997). As a result, any order entered by a judge after that judge has been disqualified is void. Bolt v. Smith, 594 So. 2d 864 (Fla. 5th DCA 1992).
However, more is required for issuance of a writ of certiorari. Specifically, a petitioner seeking this extraordinary relief must also demonstrate that if the writ is not issued then judicial error will result in material injury throughout the remainder of the proceedings leaving no adequate remedy on direct appeal. See generally Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.1995). This burden of irreparable harm cannot be met in this case because the erroneous order denying the petitioner's motion to strike is void and therefore has no effect. In fact, the petitioner's motion to strike is still pending and may be heard by the successor judge. Accordingly, we must deny the petition for writ of certiorari.
PETITION DENIED.
HARRIS and THOMPSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1904257/ | 206 N.J. Super. 608 (1986)
503 A.2d 376
MICHAEL J. MATTHEWS, MAYOR OF THE CITY OF ATLANTIC CITY, PLAINTIFF-APPELLANT,
v.
ADELAIDE DEANE, THE CITY CLERK OF THE CITY OF ATLANTIC CITY, AND JAMES W. MASLAND, III, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Submitted November 27, 1985.
Decided January 13, 1986.
*609 Before Judges FRITZ, BRODY and GAYNOR.
Tort, Jacobs, Todd & Bruso, attorneys for appellant (Edwin J. Jacobs, Jr., on the brief).
Eisenstat, Gabage & Berman, attorneys for respondent James W. Masland, III (Gerald M. Eisenstat and Suzanne Pasley, on the brief).
PER CURIAM.
In this appeal, plaintiff attacks the validity of a recall election that resulted in his being deposed as mayor of Atlantic City. Following the entry of judgment in the trial court, plaintiff pleaded guilty to federal racketeering charges. As a consequence, he is "forever disqualified" from the holding of public office in New Jersey. N.J.S.A. 2C:51-2. Accordingly, his appeal is moot with respect to all issues raised below from which this appeal is taken.
While it is clear that we may determine a moot appeal when the public interest in the issues presented is so great as to make their resolution desirable, Busik v. Levine, 63 N.J. 351, 364 (1973), app. dism. 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973), we think the circumstances of the matter before us bespeak restraint. The very nature of the controversy here and the issues it presents suggest that we should not indulge in that which would constitute an advisory opinion with respect to the policy questions involved. We are satisfied we should leave them to be decided in the milieu of the factual situation which requires their decision. De Rose v. Byrne, 139 N.J. Super. 132 (App.Div. 1976).
In such case, our opinion should not be construed as either approval or disapproval of that which is said in the published trial court opinions in the matter: 196 N.J. Super. 428 (Ch.Div. *610 1984); 196 N.J. Super. 441 (Ch.Div. 1984); 201 N.J. Super. 583 (Ch.Div. 1984). De Rose v. Byrne, supra 139 N.J. Super. at 134.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877718/ | 210 S.W.3d 191 (2007)
Kimberly RUSSELL n/k/a Kimberly Bichsel, Respondent,
v.
Mark RUSSELL, Appellant.
No. SC 87917.
Supreme Court of Missouri, En Banc.
January 9, 2007.
*193 Jonathan K. Glassman, David G. Waltrip, Chad S. Stockel, Clayton, for Appellant.
Jane E. Tomich, Claude C. Knight, St. Charles, for Respondent.
MICHAEL A. WOLFF, Chief Justice.
Introduction
What is the legal standard for modification of a judgment granting joint physical custody of a minor child?
The modification in this case, as in many such cases, involves scheduling of time between mother and father. The statute governing modifications of custody judgments requires that there be a change in circumstances and that the modification be in the best interest of the child. For visitation questions, the statute requires simply that the proposed change be in the best interest of the child.
A brief impressionistic history will illustrate the problem that currently divides some of the courts in our state. A few generations ago, a marriage not ended by death could be terminated with a judgment of "divorce." A divorce judgment, where there were minor children subject to the court's jurisdiction, awarded custody of the minor children to one parent or the other, and the noncustodial parent would in most circumstances be granted visitation rights. Statutes of this earlier era embodied a common law preference for custody by the mother, with visitation by the father. The mother would be granted custody unless she was shown to be unfit. A change in custody could not be granted unless there was a "substantial" change in circumstances that justified changing the judgment to grant sole custody to the person who was not given custody in the original decree. With proper respect to the finality of judgments, such changes in circumstances were not recognized as sufficient unless they were "substantial" and unknown or unforeseen at the time of the original judgment. Visitation rights, on the other hand, could be modified simply by showing that the modification was in the best interest of the child. In sole-custody divorce judgments, modification of visitation typically did not involve questions of parental fitness and, thus, did not involve fundamental changes in a court's original judgment.
Modern marital statutes changed the terminology of the harsh term "divorce," which typically was granted on grounds that one party had wronged the other. "Divorce" gave way to the softer Latinicized word "dissolution," accompanied by elimination of the requirement that one party be proved at fault for the failure of the marriage. More significantly, modern statutes provide for joint physical custody between the two parents and, of course, have eliminated the gender-biased preference of the one parent over the other. The statute modifying judgment in a joint custody situation requires a "change in *194 circumstances," but, as in previous statutes, the word "substantial" does not appear. The idea that a change must be "substantial" remains from the earlier era when a change in judgment was governed by judicial notions of respect for judgments embodied in the doctrine of res judicata. That some courts have read the word "substantial" into the statute is a tribute to the persistence of judicial respect for the finality of judgments, and an indication that new law is sometimes obscured by a thorough knowledge of old law.
Today, the proper standard for modification of a joint physical custody judgment is that found in sec. 452.410.1.[1] The word "substantial" does not appear in sec. 452.410.1 and should not be read into the statute for changes of scheduling parenting time between mother and father.
The statute recognizes that changes in circumstances can, as in the visitation context, justify modifying a judgment so that the arrangements are in the best interest of the child. That is the proper standard to use in all cases, except where one party is seeking to revise or modify a judgment to deprive one custodial parent of custody altogether, that is, a change from a joint custody decree to a judgment with sole custody. A motion to change from joint custody to sole custody is premised upon a change in the factual underpinnings of the original judgment; in such circumstances it is fitting for courts to respect the finality of such judgments and to be unwilling to alter such judgments fundamentally without a showing that the change in circumstances is indeed substantial.
With that overview, the Court reviews the facts of this case and the statutes that apply.
Facts and Procedure
The Russells' marriage was dissolved in 2000. The couple had one child during the marriage, a daughter born in July 1997. The parties' original dissolution judgment related to child custody, child support, and payment of the child's education expenses, among other things.
In the dissolution, mother and father were awarded "joint legal and physical custody" of the child. Father was awarded physical custody "[e]very weekend beginning at 6:00 p.m. Friday" through the following Monday morning, on alternating holidays and special days, and for one-half of the child's summer vacation.
Mother filed a motion to modify the dissolution judgment, seeking a rearrangement of father's physical custody award, an increase in father's child support obligation, and reimbursement from father for some of the child's private school tuition. Mother also asked that the court grant her the dependent tax deduction for the child each year and award her attorney's fees and costs. After a hearing, the trial court entered a modification judgment granting in part and overruling in part mother's motion to modify. The trial court later modified its judgment, rearranging the parental custody schedule.
The circuit court made the following findings of fact regarding the mother's changed circumstances. At the time of the dissolution, mother was working part-time on the weekends and the child, then three years old, was not in school so that mother and the child were together every day during the week. Because of this, father was awarded physical custody from 6:00 p.m. Friday through 11:00 a.m. the following Monday every weekend, other than *195 certain holidays and a part of the summer. Since the entry of the dissolution judgment, mother has become employed full time working from 8:00 a.m. until 4:30 p.m., Monday through Friday, and the child is attending school five days a week full time.
The circuit court's findings of fact detail changes in the father's circumstances. Since the entry of the dissolution judgment, father has had National Guard duty one weekend per month from 7:00 p.m. until approximately 3:00-4:00 p.m. Saturday and Sunday of that weekend. Father was called to active duty on March 1, 2003, until approximately February 18, 2004, and was outside of the St. Louis area during this period, except for ten days in June 2003. During father's active duty, mother had custody of the child on many of father's weekends.
The trial court also found that during the period of time between the entry of the dissolution judgment until father's call to active duty, the parties did not adhere strictly to the weekend physical custody schedule. Since the dissolution, father has allowed mother to have custody of the child on some weekends in exchange for other times with father. In addition, father works on Friday night until 10:00 or 11:00 p.m., so that during a portion of the father's custody time on Friday nights, the child is actually in the custody of father's sister.
The circuit court's conclusions of law recognized a change of circumstances so as to make the original physical custody arrangement of the parties not in the child's best interest. The court changed the parental schedule with father having the child on Saturday at 9:00 a.m. every weekend except one weekend per month. In a modified judgment, the court clarified that mother will have the third weekend of each month or father's assigned military drill weekend.
The court also modified the amount of child support, in light of the parties' incomes and the form 14 calculations. The court determined that there had been a change of circumstances consisting of a more than 20% increase from the existing amount of child support; the support amount was increased accordingly. The trial court concluded that father has a better ability to pay a portion of mother's attorney's fees and ordered him to pay $1000 of mother's attorney's fees.
Father appealed the circuit court's order decreasing the amount of time he is awarded physical custody, increasing the amount of child support he must pay, and awarding mother attorneys' fees. The court of appeals, after opinion, transferred the case to this Court under Rule 83.02.
The judgment of the circuit court is affirmed.
Discussion
Father raises three points of trial court error. First, that the trial court erroneously declared and applied the law by applying the wrong statute in this custody modification case or, in the alternative, the judgment was against the weight of the evidence based on the standard applied by the circuit court. Second, that the trial court's decision to modify child support is not supported by substantial evidence, is against the weight of the evidence, and erroneously applied the law in determining that there has been a 20 percent change in child support because the trial court erred in calculating mother's income and did not make the proper adjustment for father's custodial periods. Third, the trial court abused its discretion in awarding mother's attorney's fees.
*196 Section 452.410 applies to modification of joint physical custody
Two statutes govern the modification of prior parenting arrangements.[2] Section 452.410 provides the standard for modification of a custody decree, and section 452.400.2 states the standard for modification of a visitation award.
As to custody, a court "shall not modify a prior custody decree unless . . . it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child." Section 452.410. This Court has stated that the change in circumstances necessary to modify a prior custody decree must be a "substantial" one. Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999). In contrast, to modify a previous order of visitation rights, a court must merely find that the modification would serve the best interests of the child.[3] Section 452.400.2; Turley v. Turley, 5 S.W.3d 162, 164 (Mo. banc 1999).
The question here is which modification statute applies to a court's previous award of joint physical custody. A threshold matter in many modification cases will be whether the initial custody arrangement is, in fact, joint physical custody, as defined by statute.[4] In this case, the issue need not be addressed because the initial dissolution judgment appropriately denominates the arrangement as joint physical custody, and that designation is not contested.
In resolving this matter, this Court is guided by the statute's definition of "custody." Section 452.375.1(1) defines "custody" for purposes of chapter 452 as including "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof." Thus, by definition, a modification of joint physical custody is a custody modification, triggering the application of section 452.410. The statute directs courts to consider a modification of any kind of custody award under the standard contained in section 452.410.
This Court does, however, revisit the question of whether the change in circumstances necessary to modify an award of joint physical custody must be "substantial," a term that is not in the statute. Prior to the 1974 enactment of section 452.410.1, case law required that the change in circumstances substantially and/or materially affect a child. Searcy v. Seedorff, 8 S.W.3d 113, 116 (Mo. banc 1999), citing J.G.W. v. J.L.S., 414 S.W.2d 352, 354 (Mo.App.1967); Application of Shreckengaust, 219 S.W.2d 244, 247 (Mo. *197 App.1949). A custody modification would only be made if the child's welfare required it. See Irvine v. Aust, 193 S.W.2d 336, 342 (Mo.App.1946); Hawkins v. Thompson, 210 S.W.2d 747, 751-752 (Mo. App.1948). This requirement appears to be substantially derived from principles of res judicata and the concern for finality of judgments. Hawkins, 210 S.W.2d at 751.
The substantial and/or material change in circumstances requirement remained viable in the courts even after the adoption of section 452.410.1, despite its omission from the statute. Searcy, 8 S.W.3d at 117. The requirement was maintained, in part, based on the desire to "maintain a stable nurturing environment for the child." Id. This body of law arose when custody determinations almost exclusively resulted in one parent having sole custody with the other parent granted visitation rights. A change from sole custody in one parent to sole custody in another parent is drastic, and courts rightly concluded that the modification must be based on a "substantial" change.
The general assembly introduced joint custody as an option in 1983. Section 452.375.3, RSMo Supp.1983; Margolin v. Margolin, 796 S.W.2d 38, 48 (Mo.App. 1990). Subsection 3 of that amendment provided: "The court may award joint custody or sole custody to either parent . . .," with the 1984 amendments distinguishing between joint physical and joint legal custody. Today, joint physical and legal custody is the preference in dissolution actions. Section 452.375; Margolin, 796 S.W.2d at 49-50.
This case presents a clear example of one concern created by this legal paradigm shift. Changes such as those the circuit court made here essentially a few hours a week are not as drastic as a shift from sole custody of one parent to sole custody of another parent. The requirement that the change be substantial is no longer appropriate where simple shifts in parenting time are at issue. Courts should not require a "substantial" change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule. Similarly, the parties and the courts are advised to be clear in the language of the original judgment, as was the case here. The original judgment labeled the custody provisions as joint legal and physical custody, and there is no doubt that the circuit court's description complies with the statutory definition.
Although the circuit court in this proceeding incorrectly applied the visitation modification statute, its ultimate decision can be affirmed by applying the correct standard. The evidence shows that a change in circumstances has occurred that warrants a modification of custody arrangements. At the time of the parties' dissolution, mother worked on weekends. Because of this, father had the child on the weekends and mother had the child during the week. This arrangement maximized the time each parent had with the child, who was not then in school. Since the dissolution, however, mother's work schedule changed such that she works regular weekday hours, and the child has started attending school. In addition, the parties have rearranged their custody schedule around father's weekend drill schedule and because of father's military duty. Further, during a portion of the father's custody time on Friday nights, the child is actually in the custody of father's sister. These changes in circumstances are sufficient to support the circuit court's judgment.
This Court also agrees with the circuit court that a modification is in the child's best interest. Because of mother's new job, she was unable to spend the same *198 amount of time with the child as before. In addition, the child will be able to spend Friday nights with her mother, instead of father's sister, thus maximizing the amount of time the child will spend with a parent. In sum, the evidence shows that a change in circumstances in both the child and the mother has occurred and that the modification is in the best interests of the child.
The circuit court did not err in calculating mother's income
Father next claims that the circuit court erred in calculating child support by not including mother's higher wage as a phlebotomist, her overtime income, and bonus pay in the form 14 calculation. Father asserts that mother would not have satisfied the standard for child support modification had her income been properly calculated.
This Court will affirm the judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An award of child support is within the sound discretion of the circuit court and this Court will not substitute its judgment for that of the circuit court. Krost v. Krost, 133 S.W.3d 117, 119 (Mo.App.2004). The decision to include overtime and bonus compensation is within the circuit court's sound discretion.
In the modification judgment, the circuit court calculated mother's gross monthly income as $2,773.00 based on a rate of $16 per hour for forty hours per week. The court did not include bonus or overtime pay in this calculation. Mother testified at trial that she works at Gateway Medical Research and that her rate of pay is $16 per hour for her work as a recruiter. Mother sometimes works as a phlebotomist, making $17 per hour, but she only works drawing blood when she loses time through the week and has to make up hours. Mother also occasionally receives "bonus" compensation by doing extra work drawing blood samples. Mother only does this work when she is needed. The company does not have a set schedule for this work and it is not guaranteed. Additionally, mother only worked these hours to pay for the child's school tuition and will not continue this work if the child does not attend private school. The evidence shows that mother's bonus and overtime compensation is sporadic and not guaranteed. It was within the sound discretion of the trial court to exclude this pay from mother's gross income calculation, especially since the court held that the child will no longer attend private school.
Father also challenges the circuit court's decision not to give father an adjustment above ten percent for father's periods of overnight custody. Form 14 provides an adjustment in child support for overnight periods the child will spend with the parent paying support. If the paying parent has custody or visitation of the child between 92 and 109 days per year, the circuit court must make a ten percent adjustment in the child support obligation. Krost v. Krost, 133 S.W.3d 117, 120-121 (Mo.App.2004). However, "if the parent obligated to pay child support is or has been awarded periods of overnight visitation or custody of more than 109 days per year," the overnight adjustment may be greater than ten percent. Id; Hatchette v. Hatchette, 57 S.W.3d 884, 890 (Mo.App.2001). Under the parenting plan adopted by the trial court, father received 110 days per year of overnight custody. The trial court granted father a ten percent adjustment in child support. The circuit court's decision not to give father a *199 greater adjustment based on one extra overnight period is not reversible error.
The circuit court did not err in modifying father's child support obligation.
The circuit court did not abuse its discretion in awarding mother attorney's fees
Father argues that the circuit court erred in awarding mother attorney's fees. Generally, parties in dissolution disputes are responsible for paying their own attorney's fees. Alberswerth v. Alberswerth, 184 S.W.3d 81, 93 (Mo.App.2006). A circuit court, however, is permitted to award attorney's fees under section 452.355.1, which requires the court to consider "all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action." A trial court's decision to award attorney's fees is reviewed for an abuse of discretion. Aurich v. Aurich, 110 S.W.3d 907, 916 (Mo.App.2003). "To demonstrate an abuse of discretion, the complaining party must show the trial court's decision was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice." Id. Financial inability of the spouse to pay attorney's fees is not a requirement for awarding attorney's fees. Kieffer v. Kieffer, 590 S.W.2d 915, 918 (Mo. banc 1979). In addition, one party's greater ability to pay is sufficient to support an award of attorney's fees. Stufflebean v. Stufflebean, 941 S.W.2d 844, 847 (Mo.App. 1997).
The court calculated father's gross income as $5,552.00 per month and mother's as $2,773.00 per month. Due to father's considerably higher income, he has a greater ability to pay attorney's fees. The circuit court did not abuse its discretion in awarding mother attorney's fees.
Conclusion
The evidence supports the circuit court's modification of the child custody arrangement under the appropriate legal standard. The court's decisions regarding child support and attorney's fees are legally correct and within the court's discretion.
The judgment of the circuit court is affirmed.
All concur.
NOTES
[1] Unless otherwise noted, all references are to RSMo 2000.
[2] This Court will affirm the circuit court's decision "if the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law." Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005). A trial court's determination of custody "is afforded greater deference than other types of cases," but must still be supported by credible evidence. Id.
[3] Additionally, "the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or impair his or her emotional development." Section 452.400.
[4] Section 452.375.1(3) defines "joint physical custody." It provides the following:
(3) "Joint physical custody" means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents; | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900603/ | Criminal Case Template
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN RE: DARIUS BRIGGS,
Relator.
§
§
§
§
§
No. 08-03-00356-CR
AN ORIGINAL PROCEEDING IN
MANDAMUS
OPINION ON PETITION FOR WRIT OF MANDAMUS
Darius Briggs was convicted of sexual assault and sentenced to life imprisonment. See
Briggs v. State, No. 08-01-00307-CR, 2003 WL 318528, at *1 (Tex. App.--El Paso Feb. 13, 2003,
no pet.) (not designated for publication). He appealed, arguing that his videotaped statement should
not have been admitted into evidence because it included polygraph evidence and statements
pertaining to his prior criminal record and sexual offender registration. Id. We reversed and
remanded for a new trial. Id. at *8. Our mandate issued on June 10, 2003. Briggs has now filed a
petition for writ of mandamus, seeking to compel the trial court to retry him or to release him on bail.
To be entitled to mandamus relief, a relator must establish that there is no adequate remedy
at law and that the act sought to be compelled is ministerial in nature. Ater v. Eighth Court of
Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991). The relator must also demonstrate that the
trial court was asked to perform the ministerial act, but refused to do so. In re Villarreal, 96 S.W.3d
708, 710 (Tex. App.--Amarillo 2003, orig. proceeding).
In this case, Relator has adequate remedies in the trial court for his complaints. He could file
a motion in the trial court for a speedy trial or a motion to be released on bond. Relator’s petition
for writ of mandamus contains nothing to indicate that he has pursued these remedies in the trial
court. Therefore, he has not demonstrated his entitlement to mandamus relief.
The petition for writ of mandamus is denied.
September 9, 2003.
_________________________________________
RICHARD BARAJAS, Chief Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2235783/ | 929 N.E.2d 173 (2006)
367 Ill. App.3d 1102
PEOPLE
v.
FULTZ.
No. 2-04-0889.
Appellate Court of Illinois, Second District.
September 21, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589001/ | 71 N.Y.2d 923 (1988)
The People of the State of New York, Respondent,
v.
Thomas Pitts, Appellant.
Court of Appeals of the State of New York.
Argued March 22, 1988.
Decided April 21, 1988.
Andrew C. Fine and Philip L. Weinstein for appellant.
Robert M. Morgenthau, District Attorney (Paul Harnisch and Mark Dwyer of counsel), for respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
*924MEMORANDUM.
The order of the Appellate Division, insofar as appealed from, should be reversed and a new trial ordered.
Pitts and two codefendants, Waldo and Jones, were jointly tried for crimes committed during a robbery in which two persons were fatally shot. All three defendants gave written and videotaped confessions to the police. The confessions were identical as to the nature of the crimes committed but differed as to the role each defendant played. The confessions of Waldo and Jones identified defendant as the trigger man. On the other hand, defendant portrayed himself in his confession as a lookout only who entered the crime scene apartment searching for drugs and was merely present when the second victim was shot dead.
Defendant's effort to sever the trials on a pretrial motion was denied and the three confessions were admitted at the joint trial with limiting instructions to the jury. Each defendant was convicted of two counts of intentional murder, two counts felony murder, and four lesser offenses, including robbery and burglary. Only defendant Pitts is before us by leave of a Judge of this court.
Pitts argues that admission of his codefendants' confessions deprived him of his Sixth Amendment right of confrontation. The Appellate Division has already reversed his conviction on the two intentional murder counts, concluding that the codefendants' statements did not "interlock" with defendant's confession as to those counts and were thus impermissibly *925 admitted into evidence. As to the remaining counts, however, that court affirmed, noting that the confessions did "interlock" and were therefore properly admitted, as limited under the existing law.
On appeal to this court, Pitts renews his challenge to the admission of the codefendants' statements based on Cruz v New York (481 US ___, 107 S Ct 1714), decided after the Appellate Division affirmed the conviction on the counts now before us. In Cruz, the Supreme Court held that "where a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant * * * the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him" (481 US, at ___, 107 S Ct, at 1719, supra). The Supreme Court ruled, however, that such situations were subject to harmless error analysis.
The People concede before us that, under Cruz, the admission of the two codefendants' statements as to the remaining counts was error, thus narrowing the decisive issue to whether the erroneous admission of this evidence is harmless beyond a reasonable doubt. It cannot be so viewed in this case under the governing principles (People v Crimmins, 36 N.Y.2d 230, 237; see also, People v Baker, 23 N.Y.2d 307, 318).
On the contrary, the codefendants' confessions and characterization of defendant's central, instigatory role in the commission of these murders unquestionably presents the "reasonable possibility" that the jury was affected, especially in respect to its assessment of defendant's proffered issue as to the voluntariness of Pitts' own entire confession, not just some part or parts of it (People v Crimmins, supra, at 237 and 240-241).
Defendant's other contentions are either unpreserved or without merit, and it is unnecessary in this case to pass on the instruction to jury issue involving voluntariness of the defendant's confession in view of our decision here which, along with the Appellate Division determination of the other counts, sends the entire case back to Supreme Court for a new and separate trial.
Order insofar as appealed from reversed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589003/ | 71 N.Y.2d 788 (1988)
Retail Software Services, Inc., Plaintiff-Appellant,
v.
Hal Lashlee et al., Defendants, and William Janeski et al., Defendants-Appellees.
Court of Appeals of the State of New York.
Argued May 26, 1988.
Decided June 9, 1988.
Andre R. Jaglom, Jamie B. W. Stecher and Josiah Greenberg for plaintiff-appellant.
No submission by defendants-appellees.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in Per Curiam opinion.
*789Per Curiam.
The United States Court of Appeals for the Second Circuit has certified to this court the following question: "[W]hether New York's Franchise Sales Act, N.Y. Gen. Bus. Law § 686 (McKinney 1984), provides a basis for personal jurisdiction as well as a method for service of process." Although we accepted the question for review pursuant to section 500.17 of this court's rules (22 NYCRR 500.17), upon such review we now conclude that the question, as proffered, does not satisfy our State constitutional requirement that the question certified "may be determinative of the cause * * * pending in the certifying court" (NY Const, art VI, § 3 [b] [9]). Therefore, we must decline to answer the question.
The question arose in the following context. Plaintiff, a New York corporation, entered into seven franchise agreements with Software Centre International (SCI), a California franchisor, for microcomputer software retail stores to be located in New York State. Shortly thereafter, however, SCI went bankrupt *790 and never performed the agreement. Plaintiff then commenced this lawsuit in the Federal District Court for the Eastern District of New York seeking recovery of deposits it paid and expenses it incurred under the agreements. Among other things, plaintiff alleged that during a California meeting defendants Robert Fick and William Janeski, both California residents and officers of SCI, had made various misrepresentations concerning SCI's financial condition and other relevant aspects of the arrangement, upon which plaintiff relied in entering into the agreements. Plaintiff claimed that, by reason of these misrepresentations, defendants had violated New York's Franchise Sales Act (General Business Law § 680 et. seq.).
The United States District Court granted the motions of Janeski and Fick to dismiss the complaint as against them for want of personal jurisdiction. The court rejected plaintiff's claim that a jurisdictional basis could be found in General Business Law § 686, which provides that "[a]ny person who shall offer to sell or sell a franchise in this state as a franchisor, subfranchisor or franchise sales agent shall be deemed to have irrevocably appointed the secretary of state as his or its agent upon whom may be served [process] directed to such person, or any partner, principal, officer, salesman or director thereof". In addition, relying in part on the fiduciary shield doctrine, the court held that SCI's activities in New York did not provide a basis for jurisdiction over the individual defendants under CPLR 302 (a).[*] Plaintiff appealed to the Second Circuit Court of Appeals which, as noted, certified to this court the question quoted above.
It is now apparent that the question certified does not comport with our rules (22 NYCRR 500.17) or the constitutional provision which authorizes our response to certified questions (NY Const, art VI, § 3 [b] [9]) because it does not satisfy the requirement that it "may be determinative" of the pending action. If we were to answer the question, as framed, in the affirmative, we would establish only the abstract proposition that, in some circumstances, section 686 provides a basis for jurisdiction. Such an answer would not necessarily determine, for example, whether the statute provides a basis for jurisdiction where, as in the present case, the individual *791 defendants have apparently engaged in no activities within this State.
In addition, the certified question asks only whether the statute provides a basis for personal jurisdiction as well as a method for service of process, but we cannot answer that question in a vacuum, divorced from consideration of the constitutionality of the statute in its actual application. Defendants mounted a constitutional challenge in the District Court, based on the absence of minimal contacts, but neither the certified question nor plaintiff's unopposed submission in this court permits consideration of that issue. We would have to assume constitutionality in order to answer the question posed.
Finally, even if this court were to conclude that this statute did not provide a basis for personal jurisdiction, that answer would not be determinative here, since the question would remain whether our long-arm statute (CPLR 302) makes these defendants amenable to suit in this State in any event. Thus, however we might respond to the question, as framed, our answer would not be meaningful, let alone dispositive of the cause pending in the Second Circuit.
Accordingly, the question certified to this court by the United States Court of Appeals for the Second Circuit should not be answered upon the ground that it does not satisfy the requirements of article VI, § 3 (b) (9) of the New York Constitution and section 500.17 of this court's Rules of Practice.
Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this court pursuant to section 500.17 of the Rules of Practice of the New York State Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for one of the parties and consideration of a brief and appendix submitted, no other parties having appeared or submitted papers, certified question not answered.
NOTES
[*] We note that the District Court's decision preceded our discussions of the fiduciary shield doctrine in Kreutter v McFadden Oil Corp. (71 N.Y.2d 460) and CPC Intl. v McKesson Corp. (70 N.Y.2d 268). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589011/ | 71 N.Y.2d 910 (1988)
Francis K. Cove, Jr., et al., Appellants,
v.
Robert J. Sise, as Chief Administrative Judge of the Office of Court Administration of the State of New York, et al., Respondents. (Proceeding No. 1.)
New York State Court Officers Association, Appellant,
v.
State of New York Unified Court System Classification Review Board, Respondent. Joseph W. Bellacosa et al., Intervenors-Respondents. (Proceeding No. 2.)
Court of Appeals of the State of New York.
Argued March 17, 1988.
Decided April 21, 1988.
Esther Bernheim and Joseph A. Faraldo for Francis K. Cove, Jr., and others, appellants.
Rosemary Carroll for New York State Court Officers Association, appellant.
Patricia P. Satterfield, Michael Colodner and John Eisenman for Joseph W. Bellacosa, intervenor-respondent.
Raymond G. McGuire and Harlan J. Silverstein for New York State Supreme Court Officers Association, intervenor-respondent.
Judges SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur; Chief Judge WACHTLER and Judge BELLACOSA taking no part.
*911MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
These article 78 proceedings challenge determinations of the Classification Review Board (the Board) upholding classification of the court officer title in New York City and Nassau County pursuant to a classification plan for nonjudicial court employees (see, Judiciary Law § 39 [8] [a]); petitioners seek consolidation of the court officer (JG16) title and salary grade with those of the senior court officer (JG18). The classification plan was established by the Chief Administrative Judge (see, former 22 NYCRR 25.45 [now 25.41]). Petitioners' appeals were denied by the Chief Administrative Judge, and thereafter by the Board. In an extensive decision supporting its conclusion that there was insufficient basis for the appeals, the Board noted that the essence of the two job titles was "so similar as to warrant serious de novo review for the purpose of possible consolidation in the future under a common title", *912 but the Board specifically rejected the need for a common classification as conflicting with its initial finding that "there is insufficient basis upon which to conclude that JG-16 is inappropriate for the lowest level security title in the Plan, i.e., Court Officer."
Special Term perceived the Board's reference to possible future consolidation as a factual finding that immediate revamping was required; held that the Board was obliged to "issue the mandate necessary to implement its finding"; and granted the petitions to the extent of remanding the matter to the Board to fashion the appropriate remedy. The Appellate Division reversed and dismissed the petitions, concluding that the Board's determinations dismissing the appeals were not irrational or arbitrary.
Administrative determinations concerning position classifications are of course subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis (see, Matter of Dillon v Nassau County Civ. Serv. Commn., 43 N.Y.2d 574, 580; Matter of Grossman v Rankin, 43 N.Y.2d 493, 503, rearg denied 44 N.Y.2d 733). Petitioners made no such showing with respect to the Board's conclusion, upon an enumeration of the pertinent factors supporting this entry-level title and promotional-level title, that petitioners had presented "insufficient basis upon which to conclude that the allocation of the [court officer] title in the Plan to JG-16 is improper, unfair or inequitable."
Given this disposition, we do not reach the question whether the Board even had authority to reclassify job titles and reallocate salary grades.
Order affirmed, with costs, in a memorandum. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589038/ | 3 A.D.2d 1 (1956)
In the Matter of the Application of Guaranty Trust Company of New York as Trustee of the Trust, Described as Petroleum Research Fund and Created by Shell Oil Company Incorporated and Others. American Chemical Society et al., Appellants; Independent Refiners Association of America et al., Intervenors-Respondents
Appellate Division of the Supreme Court of the State of New York, First Department.
December 18, 1956.
Theodore Kiendl of counsel (Walter D. Fletcher, Andrew Y. Rogers, Taggart Whipple, J. Dormer Cannon and Henry L. King with him on the brief; Davis Polk Wardwell Sunderland & Kiendl, attorneys), for Guaranty Trust Company of New York, as trustee of the Petroleum Research Fund, appellant.
Elisha Hanson of counsel (E. Douglas Hamilton and Burton K. Farber with him on the brief; Elisha Hanson, Arthur B. Hanson, Brown, Cross & Hamilton, attorneys), for American Chemical Society, appellant.
Edwin Jason Dryer of counsel (Lilleston, Spradling, Gott & Stallwitz, Jochems, Sargent & Blaes, Oppenheimer, Hodgson, Brown, Baer & Wolff and Meyers & Batzell with him on the brief; Blum, Jolles, Gruber Szabad & Gersen, attorneys), for Independent Refiners Association of America et al., intervenors-respondents.
Peter H. Kaminer of counsel (Kenneth M. Spence, William A. Delano and William W. Karatz with him on the brief; Winthrop, Stimson, Putman & Roberts, attorneys), for South Penn Oil Company; (Lowenstein, Pitcher, Spence, Hotchkiss, Amann & Parr, attorneys), for Quaker State Oil Refining Corp. et al., intervenors-respondents.
BOTEIN, J. P., RABIN, FRANK and BERGAN, JJ., concur.
*2VALENTE, J.
The record before us presents a proper case for the exercise of discretionary power to grant intervention, as found in subdivision 2 of section 193-b of the Civil Practice Act. We construe this section as applying to both actions and proceedings.
To limit discretionary supervision to actions only, as contended by the appellant, is to utterly disregard the considerations which led to its enactment. A procedural device that is calculated to reform and modernize the remedy of intervention *3 deserves a wide latitude of construction to effectuate its purposes.
This section was adopted in 1946 (L. 1946, ch. 971) on the recommendation of the Judicial Council. (Twelfth Annual Report of N. Y. Judicial Council, 1946, pp. 163-232.) The Judicial Council stated at page 225 of its report that section 193-b represented an adaptation of rule 24 of the Federal Rules of Civil Procedure. Its purpose was to extend the remedy of intervention to cases where it had theretofore been denied in New York and thus add another device for the promotion of trial convenience.
A reading of the trust agreement, its purposes and objects makes plain the fact that while the intervenors are not trust beneficiaries, they do have a real and substantial interest in the outcome of this proceeding.
The trust was established by agreement dated October 26, 1944, between six major oil companies as donors and Guaranty Trust Company as trustees. By its terms the donors transferred to the trustee their interests in Universal Oil Products Company (hereinafter called "Universal") and the income derived from the operation of Universal was to be paid to the beneficiary, American Chemical Society, to be used by it "exclusively for advanced scientific education and fundamental research in the `petroleum field'".
Universal was (according to the trust agreement) "engaged primarily in research and development work in the petroleum field and the ownership and licensing of processes, patents and patent rights relating to the petroleum field. The Donors believe that the carrying on of such business is in the public welfare." The express general object of the trust agreement was to advance the public welfare in accordance with the laws of this State relating to charitable trusts.
Under article Fourth of the trust agreement, it is provided that the trustee, unless and until it shall have been authorized by a court of competent jurisdiction, cannot sell or otherwise dispose of any of the securities of Universal or permit Universal to discontinue research and development work in the petroleum field and the ownership and licensing of processes and patent rights relating to the petroleum field. Following these clauses are the words: "It is the intention of this provision that the Trustee shall be relieved of the foregoing restrictions only in case it shall be demonstrated to a court of competent jurisdiction that conditions shall have changed in such manner and to such extent that the public welfare will be no longer effectively served by such restrictions."
*4These provisions clearly spell out a definitive intent, on the part of the donors, to perpetuate Universal's services for the benefit of the refining industry including the intervenors herein all of which they deem to be in the interest of the public welfare.
It further appears from two letters from the Department of Justice, Washington, D. C., one addressed to the Attorney-General of the State of New York, the other to the Guaranty Trust Company, that our National Government is concerned with these proceedings and recognizes that Universal "has been a source of technology important to the operations of independent refiners."
We also find persuasive that, in the absence of the intervenors, there is, as a practical matter, no real adversary proceeding before the court. The beneficiary of the trust and the Attorney-General do not oppose the trustee's application. Responsibility for ultimate decision rests with the court. Obviously, the court will be assisted materially by a presentation of relevant facts by the intervenors who propose to contest the petitioner's application.
Permission to intervene does not depend on any finding that the intervenors are beneficiaries of the trust. The incidental nonmonetary benefits which the intervenors derive, while of sufficient importance to permit their being heard in this proceeding, are not such as to make them beneficiaries of a charitable trust so as to invalidate it because they are operated as profit making corporations.
While the court below refers to its inherent power to grant intervention, and the language in some cases seems to support such a view (see Industrial & Realty Financial Corp. v. Continental Bank & Trust Co., 242 App. Div. 598; Central Westchester Humane Soc. v. Hilleboe, 202 Misc. 873), we need not pass on that question since we have found sufficient power to act in section 193-b of the Civil Practice Act. However, it should be pointed out that our conclusion can be buttressed further by the language of section 192 and section 1309 of the Civil Practice Act. The latter provision, found in article 79, gives the court power at any stage of the proceedings, by supplemental order to show cause, to bring in parties not named in the original order to show cause.
There is no merit to the respondents' contention that the orders are not appealable. Clearly they affect a substantial right and are therefore appealable (Civ. Prac. Act, § 631). In fact, this court only recently in Harrison v. Bain Estates (2 Misc 2d 52, affd. 2 A D 2d 670) *5 considered an appeal from a similar order.
Upon this record it appears that Special Term acted properly and within its discretion in granting the application for intervention.
In order to insure against any undue delay or prejudice, we have concluded that the orders should be modified to the extent that all the intervenors be represented at the trial by one chief counsel who shall participate in the conduct of the trial on behalf of all intervenors. Said chief counsel is to be agreed upon among the intervenors, or, upon failure to agree, is to be appointed by the court at Special Term. In addition, the orders should provide that the trust funds shall not be charged for any counsel fees for services rendered on behalf of the intervenors in this proceeding.
The orders below should be modified accordingly and, as so modified, affirmed, without costs.
Orders, granting intervenors' motions for leave to intervene, unanimously modified in accordance with the opinion herein and, as so modified, affirmed. Settle order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611922/ | 125 Wash. 2d 364 (1994)
884 P.2d 1319
GEORGE B. TELLEVIK, as Chief of the State Patrol, ET AL, Appellants,
v.
REAL PROPERTY KNOWN AS 31641 WEST RUTHERFORD STREET, ET AL, Respondents.
No. 60982-9.
The Supreme Court of Washington, En Banc.
December 8, 1994.
*365 Christine O. Gregoire, Attorney General, and Roselyn Marcus, Assistant; Driano & Sorenson and Dominick V. Driano, for appellants.
Allen M. Ressler and George Bianchi, for respondents.
Richard J. Troberman on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae for respondents.
JOHNSON, J.
This is the second appeal in a drug forfeiture action involving residential property owned by Respondents Donald and Janet Pearson. At issue is the validity of this court's constitutional holding in the prior appeal in light of a recent United States Supreme Court decision, and the meaning of certain language in this court's decision in the prior appeal.
FACTS
On September 26, 1989, members of the Eastside Drug Task Force executed a warrant to search residential property located at 31641 West Rutherford Street in Carnation, Washington. At the time of the search the property was owned by Donald and Janet Pearson and leased to Stephen Cimbalista. The search uncovered a marijuana growing operation in the basement. Officers seized more than 30 mature marijuana plants, approximately 65 marijuana buds, and *366 various fans, timers and lights. Based on the evidence uncovered during the search, Donald Pearson and Cimbalista were arrested and subsequently convicted of possession with intent to manufacture marijuana, in violation of RCW 69.50.401(a).
On April 13, 1990, the chief of the Washington State Patrol filed a complaint for forfeiture in rem against the Pearsons' property at 31641 West Rutherford Street. At an ex parte hearing the same day, the judge found probable cause to believe the property was subject to forfeiture under RCW 69.50.505 and signed the warrant of arrest in rem. The State then filed a lis pendens against the Pearsons' interests in the property and a "notice of seizure and intended forfeiture". The notice of seizure stated that any person claiming ownership in the property "shall be afforded a hearing thereon if they notify the Washington State Patrol in writing ... within ninety (90) days of the seizure of said real property". Clerk's Papers, at 16.
The Pearsons filed separate answers to the notice of seizure and moved to dismiss the complaint on the ground that the forfeiture statute is unconstitutional on its face and as applied. Janet Pearson additionally moved to dismiss based on the innocent owner provisions of RCW 69.50.505(a)(8)(i). The trial court granted both motions, quashed the warrant for arrest in rem, and canceled the lis pendens. The State appealed directly to this court. That appeal was consolidated with another forfeiture action involving property owned by Charles and Janet Wilson at 9209 218th N.E. in Redmond.
On October 15, 1992, this court held RCW 69.50.505(b) was constitutional as applied to the facts of this case, and, as construed, constitutional on its face. Tellevik v. 31641 W. Rutherford St., 120 Wash. 2d 68, 838 P.2d 111, 845 P.2d 1325 (1992) (Tellevik I). Construing the statute, this court found the term "seizure" establishes only an inchoate property interest in the seizing agency. In its discussion of the claimants' due process argument, the court explained, "[c]laimants are entitled to a full adversarial hearing within 90 days if they contest the seizure. RCW 69.50.505(e)". Tellevik I, *367 120 Wn.2d at 86. Four paragraphs later, the court again stated, "the statute requires a full adversarial hearing with judicial review within 90 days of the seizure of real property if the claimant notifies the seizing agency in writing". See Tellevik I, causes 57566-5, 57763-3 (filed Oct. 15, 1992), slip op. at 24.
The Wilsons moved for reconsideration, arguing this court had misread RCW 69.50.505(e).[1] On February 12, 1993, the court denied the motion for reconsideration but amended the second sentence quoted above, deleting the words "of the seizure of real property". The revised sentence read, "the statute requires a full adversarial hearing with judicial review within 90 days if the claimant notifies the seizing agency in writing". Order Clarifying Op. and Denying Mots. for Recons. and Reh'g, at 2; Clerk's Papers, at 29-30. The court also added a citation to RCW 34.05.419 following this sentence. The case was then mandated on February 16, 1993.
Nearly 6 months later, in August 1993, the State requested the Superior Court set a trial date for the forfeiture action involving the Pearsons' property. On August 13, 1993, the court set trial for February 15, 1994. Five days later the Pearsons moved to dismiss the forfeiture action, arguing this court's decision in Tellevik I required the hearing to be held within 90 days from the date of the mandate and the State failed to act within this period. The trial court agreed and granted the Pearsons' motion to dismiss.
The State then initiated this appeal, alleging the trial court erred in dismissing the State's forfeiture action because the claimants were not given a hearing within 90 days of the mandate issued in Tellevik I. In their reply brief, Respondents raise the issue whether Tellevik I is still good law in *368 light of a recent United States Supreme Court decision invalidating a similar seizure action. United States v. James Daniel Good Real Property, 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). The State and Respondents disagree as to whether the Supreme Court's decision undermines this court's holding in Tellevik I. Therefore we first address the continuing validity of Tellevik I in light of Good.
ANALYSIS
I
In December 1993, 10 months after this court mandated Tellevik I, the United States Supreme Court decided United States v. James Daniel Good Real Property, 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). Like Tellevik I, Good involved a residential property seizure pursuant to drug forfeiture laws. In Good, police officers executed a warrant to search James Daniel Good's residential property. The search uncovered over 80 pounds of marijuana, vials containing hashish oil, and other drug paraphernalia. Good, 126 L.Ed.2d at 498. Good was subsequently convicted of promotion of a harmful drug, sentenced to 1 year in jail and 5 years' probation, and fined $1,000.
Four and one-half years later, the United States filed an in rem action, seeking to forfeit Good's house and property under the federal drug forfeiture statute. Good, 126 L.Ed.2d at 498. In an ex parte proceeding, a United States magistrate issued a warrant of arrest in rem, authorizing seizure of the property. Three days later the government took control of Good's property, executing an occupancy agreement which permitted the tenants to remain on the premises, but which directed the payment of future rents to the United States Marshal. Good, 126 L.Ed.2d at 499.
The Supreme Court rejected the government's seizure of Good's property, holding the ex parte procedure violated the due process clause of the Fifth Amendment. Absent exigent circumstances, explained the Court, due process prohibits the government from seizing real property without first affording *369 the owner notice and an opportunity to be heard. Good, 126 L.Ed.2d at 508-09.
The Pearsons contend Tellevik I is no longer good law given the Supreme Court's decision in Good. We disagree. Tellevik I is distinguishable both on its facts and in the type of seizure authorized under the state and federal statutes. Consequently, Tellevik I does not need to be reconsidered for the purposes of this appeal.
In Good, the government seizure addressed by the Court included actual control over the claimant's property. "Seizure", explained the Court, included,
not only the right to prohibit sale, but also the right to evict occupants, to modify the property, to condition occupancy, to receive rents, and to supersede the owner in all rights pertaining to the use, possession, and enjoyment of the property.
Good, 126 L.Ed.2d at 503-04. The Court rejected ex parte seizures in a civil forfeiture action because the government had means, "short of seizure, to protect its legitimate interests in forfeitable real property". Good, 126 L.Ed.2d at 507. According to the Court, these means included filing a lis pendens, as well as obtaining restraining orders or additional search and arrest warrants. Good, 126 L.Ed.2d at 506. Given these means, "[t]here [was] no reason to take the additional step of asserting control over the property without first affording notice and an adversary hearing". Good, 126 L.Ed.2d at 507.
[1] In Tellevik I, the State's seizure action was consistent with those means permitted under Good without a predeprivation opportunity to be heard. The State initiated the forfeiture action by filing a summons and complaint. The judge issued an ex parte warrant of arrest in rem and the State filed a lis pendens. However, unlike the federal government in Good, the State did not take control of the premises. Instead, the lessees were permitted to remain on the premises and the Pearsons continued to collect the rent.
Moreover, this court specifically rejected a broad definition of seizure in order to preserve the constitutionality of *370 the state statute. This court held that "seizure", as it is used in the context of RCW 69.50.505, "establish[es] only an inchoate property interest in the seizing agency ...", and does not itself "allow the seizing agency to remove the occupants from physical possession of the property". Tellevik I, 120 Wash. 2d at 85.
This court then further limited the scope of government control of the seized property by construing the statute so as to provide a prompt postseizure process. Under RCW 69.50.505:
Once the property has been seized, the seizing agency may take further action to remove the occupants or enter into an occupancy agreement only upon further order of the court following notice and an opportunity for the property owners to be heard. Claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure.
Tellevik I, 120 Wash. 2d at 86. Thus, unlike the federal forfeiture statute, the Washington statute does not permit the State to take actual possession until after a full adversarial hearing. Consequently, Tellevik I is still good law and controls the outcome of this second appeal.
II
A
We next determine whether the trial court properly dismissed the forfeiture action because the Pearsons were not afforded a hearing within 90 days of the mandate in Tellevik I. The State contends this court's language in Tellevik I, that "[c]laimants are entitled to a full adversarial hearing within 90 days if they contest the seizure", Tellevik I, 120 Wash. 2d at 86, was dicta and should not have been relied upon by the trial judge.[2]
[2, 3] The State is plainly wrong. The fundamental issue in Tellevik I was whether the seizure provisions of the state civil forfeiture statute afforded claimants adequate due process protection. We recognized in Tellevik I that due process *371 generally affords an individual notice and an opportunity to be heard when the government deprives the individual of a life, liberty, or property interest. Tellevik I, 120 Wash. 2d at 82-83; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 94 L. Ed. 865, 70 S. Ct. 652 (1950). The amount and type of process due an individual corresponds to the nature of the interest and the severity of the deprivation. See Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). We further recognized, absent exigent circumstances, "some type of hearing prior to a deprivation is required by due process". Tellevik I, 120 Wash. 2d at 82.
In Tellevik I, we found the ex parte proceeding provided by the Washington civil forfeiture statute adequate because the deprivation was minimal and because the claimant was afforded a prompt postdeprivation opportunity to be heard. The statute at issue, RCW 69.50.505, provides a claimant minimal due process protection, requiring only an ex parte proceeding prior to state seizure of real property. RCW 69.50.505(b). However, the statute also significantly restricts the State's control of the property once seizure occurs. The statute effectively limits the State's "seizure" action to the filing of a lis pendens, and it expressly prohibits the State from "transfer[ring] or otherwise convey[ing] [the property] until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later". RCW 69.50.505(b). Therefore, at the seizure stage of a forfeiture action under RCW 69.50.505, a claimant's right to enjoy, use, and benefit from the real property is not affected.
So as to preserve the constitutionality of the statute, this court further construed the term "seizure" to "establish only an inchoate property interest in the seizing agency", and explained, "a seizure, itself, does not allow the seizing agency to remove the occupants from physical possession of the property". Tellevik I, 120 Wash. 2d at 85-86.
We also recognized that where a predeprivation hearing is ex parte, a prompt postdeprivation hearing is an integral component of due process. This court construed the forfeiture *372 statute so as to entitle claimants "to a full adversarial hearing within 90 days if they contest the seizure" and placed the burden "upon the seizing agency to prove the real property is subject to seizure". Tellevik I, 120 Wash. 2d at 86.
Contrary to the State's assertion, the 90-day hearing requirement articulated in Tellevik I is not dicta, but is, instead, central to its holding. This result is consistent with the Supreme Court's recent decision in United States v. James Daniel Good Real Property, supra, and with prior federal due process decisions. In Good, the Court explained:
Whether the seizure of real property for purposes of civil forfeiture justifies such an exception [to the general predeprivation hearing rule] requires an examination of the competing interests at stake, along with the promptness and adequacy of later proceedings.
(Italics ours.) Good, 126 L.Ed.2d at 503. See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 551, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (Marshall, J., concurring in part) ("[t]he adequacy of the predeprivation and postdeprivation procedures are inevitably intertwined").
It is clear had we not construed seizure as we did in Tellevik I, Good would require a predeprivation hearing as a matter of federal constitutional due process under the Fifth and Fourteenth Amendments. However, the degree of deprivation triggers the amount of due process required in a particular case, and, in this case, due process is satisfied by a prompt postdeprivation hearing.
B
[4] Finding the 90-day hearing limitation is applicable to this appeal, we next address whether the trial court properly dismissed the forfeiture action. The mandate in Tellevik I was issued on February 16, 1993. The Pearsons were therefore entitled to a full adversarial hearing within 90 days of the issuance of the mandate, or, in other words, by May 17, 1993. The State ignored the clear and unambiguous language in Tellevik I and waited nearly 6 months before obtaining a trial date.
*373 The State claims the delay occurred because the State was waiting for the Pearsons to file a petition for a writ of certiorari in the United States Supreme Court, and the State, therefore, took no action "until after the time to [petition] the U.S. Supreme Court had run". Opening Br. of Appellants, at 7. We find this assertion misleading and without merit. The State does not have the power to ignore the statutory limitations on a hearing date on the chance the Respondents would petition for certiorari. Moreover, the Pearsons had 90 days in which to petition the Supreme Court. See 28 U.S.C. § 2101(c). Even if, for the sake of argument, the State was justified in waiting 90 days until the time to petition the Supreme Court had run, it was certainly not justified waiting nearly 3 additional months before requesting a trial date.
Lastly, the State argues the trial court should not have dismissed the forfeiture action even if there is a 90-day hearing requirement. The State contends dismissal with prejudice is a harsh sanction and it is not authorized under any statute, rule, or constitutional provision. The State cites to Good for the proposition that if a statute does not specify a consequence for noncompliance with internal timing provisions, the court cannot fashion its own coercive sanctions. Good, 126 L.Ed.2d at 509-10.
In Good, the government initiated the forfeiture within the 5-year statute of limitations for drug forfeiture actions, but failed to comply with "a series of internal requirements relating to the timing of forfeitures". Good, 126 L.Ed.2d at 509. After reviewing the nature and function of the internal requirements, the Court concluded "the courts should not dismiss a forfeiture action for noncompliance". Good, 126 L.Ed.2d at 510. The Court explained:
Because [the relevant procedural laws incorporated by the forfeiture statute] contain[] a statute of limitations the usual legal protection against stale claims we doubt Congress intended to require dismissal of a forfeiture action for noncompliance with ... internal timing requirements....
Good, 126 L.Ed.2d at 510.
*374 [5] The State's reliance on Good is inapposite. Unlike Good, the 90-day requirement is not merely an "internal timing requirement". Here, as discussed above, the time limitation requirement was read into the statute in order to preserve its constitutionality. Because a prompt postdeprivation hearing was an integral component of the Pearsons' due process rights under the Fifth and Fourteenth Amendments, and the Pearsons were denied this right, dismissal of the action was appropriate. The decision of the trial court is therefore affirmed.
ANDERSEN, C.J., and UTTER, BRACHTENBACH, DOLLIVER, and SMITH, JJ., concur. MADSEN, J. (dissenting in part)
I must respectfully disagree with the majority in this case as to the appropriate remedy for the State's failure to renote this matter for trial following its successful appeal in Tellevik v. 31641 W. Rutherford St., 120 Wash. 2d 68, 93, 838 P.2d 111, 845 P.2d 1325 (1992) (Johnson, J., dissenting). The harsh remedy imposed by the majority is neither mandated by the applicable statute nor by our decision in Tellevik. Worse, it is unfair.
The question presented in this case is whether the State complied with the due process requirement in Tellevik that an opportunity for a full adversarial hearing be provided within 90 days of the seizure of real property. The clear answer is yes. In Tellevik this court stated that:
The effect of a seizure is to commence the forfeiture proceeding. RCW 69.50.505(c). Once the property has been seized, the seizing agency may take further action to remove the occupants or enter into an occupancy agreement only upon further order of the court following notice and an opportunity for the property owners to be heard. Claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure. RCW 69.50.505(e). At the hearing, the burden is upon the seizing agency to prove the real property is subject to seizure. RCW 69.50.505(e).
Tellevik, at 86.
*375 Looking at the case before us, Tellevik v. Real Property Known as 31641 W. Rutherford St., the State filed a complaint for forfeiture in rem and a lis pendens on April 13, 1990. At an ex parte hearing held that day, the trial court signed a warrant of arrest in rem. The summons, complaint for forfeiture in rem, lis pendens, notice of seizure and intended forfeiture, the warrant of arrest in rem and supporting affidavit were served on the Defendants on April 13, 1990, as well. The Defendants appeared in superior court and moved to dismiss the complaint, arguing that the authority, therefore, RCW 69.50.505(b), was unconstitutional. Defendant Pearson also moved for summary judgment under the innocent owner provision of the statute. The State moved to continue the summary judgment motion pursuant to CR 56(f). On September 5, 1990, the trial court denied the State's continuance, granted Defendants' motion for summary judgment, quashed the warrant for arrest in rem, canceled the lis pendens, and found RCW 69.50.505(b) was unconstitutional on its face and as applied. The State appealed.
This court accepted direct review and held that RCW 69.50.505(b) was not unconstitutional on its face nor as applied. It is implicit in this conclusion that RCW 69.50.505(b) was constitutional as applied precisely because the Defendants had received a full opportunity to contest the forfeiture action in King County Superior Court. This court reversed the trial court, including the grant of summary judgment and denial of the State's CR 56(f) motion and stated: "Plaintiffs in Tellevik v. 31641 West Rutherford Street should be allowed to complete discovery in their case against Janet Pearson. As to the remaining Defendants, both cases are remanded for trial on the forfeitures." Tellevik, at 92.
The Defendants argue here, and the majority agrees, that the 90-day period ordered by Tellevik applies to the renoting of their cases for trial and that the State's failure to comply with this time limitation requires the dismissal of their cases. I disagree. Due process requires only an opportunity to be heard and to contest the seizure. Tellevik, at 86-87. The *376 Defendants clearly have had that and more. Through the course of this matter the Defendants have even had the opportunity for Supreme Court review. The effect of the mandate in Tellevik was simply to put the parties back in their respective positions before the trial court entered its erroneous dismissal order on September 5, 1990. Given the procedural history in this case, I would hold that due process has been afforded to these Defendants. As with other substantive time limits, such as a statute of limitations, once the time requirement has been complied with, it need not be complied with again. For example, remand following reversal of a jury verdict in a civil case does not subject the case to the statute of limitations again. Rather, the civil rules of procedure dictate the course of the action on remand.
Since due process was satisfied any further time requirements are not of constitutional magnitude but are merely procedural. The State argues that time requirements which are merely procedural do not require dismissal for noncompliance. I agree with the State. As the United States Supreme Court held recently in United States v. James Daniel Good Real Property, 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993), if a statute does not specify a consequence for noncompliance with an internal timing provision, the court should not fashion its own coercive sanction. Good, 114 S.Ct. at 506. RCW 69.50.505 specifies neither a time limit for trial following remand nor a consequence if trial is set beyond 90 days from the issuance of a mandate. Nor does Tellevik provide a time requirement for trial following remand. If dismissal was improper in Good, where the statute contained a timing provision, it is clearly improper in this case where the statute and the case law are silent as to time requirements for trial following appeal. As the court concluded in Good, dismissal is not the proper remedy.
In support of dismissal, the Defendants attempt to analogies the forfeiture scheme of RCW 69.50 to the speedy trial requirement of CrR 3.3. They cite Seattle v. Hilton, 62 Wash. App. 487, 815 P.2d 808 (1991), review denied, 122 Wash. 2d 1012 (1993) as authority for their argument that the man *377 date in Tellevik retriggers the running of the 90-day hearing requirement. In Hilton, this court was asked to construe the provisions of CrRLJ 3.3 which set out the time requirements for trial in criminal cases following appeal or stay. The court found that the time requirements of the rule were commenced by the filing of the mandate. As the State correctly points out, however, there is no corresponding rule which dictates time limits for commencement of trial following appeal in a drug forfeiture case. Nor, as pointed out earlier, does Tellevik address whether the 90-day requirement begins anew following appeal. Defendants' reliance on CrR 3.3 is thus unpersuasive.
Moreover, if Defendants are correct that the filing of a mandate following appeal triggers the same preappeal requirements, such as the right to a hearing within 90 days as determined by Tellevik, then it follows that the Defendants should also be required to recomply with RCW 69.50.505(e) by filing another written notice contesting seizure after the mandate. See Tellevik, at 86. That statute, as well as Tellevik, requires that a reasonable opportunity to be heard be afforded to the property owner only if that person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the property within 90 days. RCW 69.50.505(e); Tellevik, at 87. The failure of the owner to notify the seizing agency of a claim to the property will result in automatic forfeiture after 90 days. RCW 69.50.505(e).
Here, the Defendants filed no written notice contesting the seizure of their property following the mandate in Tellevik. The only written notice by the Defendants in this case was filed on June 12, 1990. If the State has not met its burden, the Defendants, likewise, have not met theirs.
Finally, the State correctly argues that the Defendants themselves caused the delay in resetting the case. An affidavit filed by counsel for the State recites a conversation between the State and the Defendants' attorney about selecting the trial date. The State had contacted the defense to set a court date within 90 days following the mandate. In that discussion, the Defendants' counsel stated his preference *378 that the matter be put off pending a decision to seek review by the United States Supreme Court. It is well settled that the right to due process may be waived. In re Adoption of Jackson, 89 Wash. 2d 945, 952, 578 P.2d 33 (1978); State v. Myers, 86 Wash. 2d 419, 426, 545 P.2d 538 (1976). Although the State would have been wise to formalize the agreement for delay in a case such as this, in which both parties are struggling with application of new law, this court should find that the verbal request for delay by defense counsel was sufficient to waive the 90-day requirement; that the State relied, to its detriment, on defense counsel's position; and that the Defendants are estopped from complaining of the delay.
It must be borne in mind that we are not dealing with fundamental rights such as the right to speedy trial under CrR 3.3 nor the right to a jury of 12 in a criminal case. Under consideration today is the renoting of a matter in which the trial court's erroneous grant of summary judgment and dismissal resulted in reversal and remand. Given this circumstance, this court's dismissal for failure to comply with the 90-day requirement set forth in RCW 69.50.505(e) is both an inappropriate and an unfair result.
DURHAM and GUY, JJ., concur with MADSEN, J.
NOTES
[1] RCW 69.50.505(e) states:
"If any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in ... (a)(8) of this section within ... ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right...."
[2] Curiously, the State now takes and argues the position advocated by the claimants (the Wilsons) in the prior appeal, and which this court rejected in the motion for reconsideration in Tellevik I. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611925/ | 884 P.2d 1258 (1994)
Julia Lee ASKEW, Plaintiff and Appellant,
v.
Paul HARDMAN, Defendant and Appellee.
No. 930537-CA.
Court of Appeals of Utah.
October 11, 1994.
Rehearing Denied December 2, 1994.
Gary A. Dodge, Mark F. James (argued), Kimball, Parr, Waddoups, Brown & Gee, Salt Lake City, for appellant.
Stephen G. Morgan, Mitchel T. Rice (argued), Morgan & Hansen, Salt Lake City, for appellee.
*1259 Before BENCH, BILLINGS and ORME, JJ.
BENCH, Judge:
Plaintiff Julia Lee Askew appeals the trial court's denial of her motion to compel defendant's insurance company to produce documents in its claim file. We reverse and remand for a new trial.
FACTS
Late at night on November 20, 1989, plaintiff was seriously injured when the vehicle in which she was a passenger struck a horse. The horse, which belonged to defendant, had escaped from defendant's fenced pasture and wandered onto a public highway. Defendant contacted his insurance company, Utah Farm Bureau, which sent adjuster Robert Harmon to investigate the accident. Adjuster Harmon took some pictures and recorded a conversation he had with defendant. Deputy Jerry Monson, of the Utah County Sheriff's Office, also investigated the accident. Both adjuster Harmon and deputy Monson observed that a portion of the pasture fence was down.
Plaintiff brought an action against defendant alleging that he was negligent in the construction and/or maintenance of the pasture fence. Defendant maintained that the accident was caused by deer hunters who had knocked down his fence in order to pass over his property.
Prior to trial, plaintiff attempted to discover the contents of the file prepared for Utah Farm Bureau by adjuster Harmon. Utah Farm Bureau refused plaintiff's request claiming that the contents of adjuster Harmon's investigative file were prepared in anticipation of litigation and therefore protected from discovery by the work-product doctrine. Thereafter, the trial court denied plaintiff's motion to compel production of the information in adjuster Harmon's file. The jury returned a no-cause-of-action verdict in favor of defendant and this appeal followed.
ANALYSIS
Work-Product Doctrine
Plaintiff argues that the trial court erred by holding that the contents of adjuster Harmon's investigative file were prepared in anticipation of litigation and therefore protected by the work-product doctrine. We agree.
Rule 26(b)(3) of the Utah Rules of Civil Procedure provides, in relevant part:
[A] party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation.
Id. For written materials to fall under the protection of the work-product doctrine, three criteria must therefore be met: "(1) the material must be documents and tangible things otherwise discoverable, (2) prepared in anticipation of litigation or for trial, (3) by or for another party or by or for that party's representative." Gold Standard, Inc. v. American Barrick Resources Corp., 805 P.2d 164, 168 (Utah 1990).
In Gold Standard, the Utah Supreme Court addressed the issue of whether a memorandum written as part of an accident investigation was entitled to work-product protection. The court stated that "[i]f in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is produceable in civil pre-trial discovery." Id. at 171 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982)).
Under Gold Standard, an accident report prepared in the ordinary course of business is clearly discoverable. Defendant argues, however, that adjuster Harmon's report is entitled to work-product protection because it was prepared at the request of Utah Farm Bureau's attorney and because all such reports *1260 are prepared in anticipation of litigation. Utah has never addressed whether an insurance adjuster's report is, by its very nature, entitled to work-product protection. Because Utah's Rule 26(b)(3) is nearly identical to its federal counterpart, "federal interpretations of the rule are persuasive." State v. Smith, 817 P.2d 828, 829 (Utah App.1991); accord Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 965 n. 5 (Utah 1986); Salt Lake City v. Holtman, 806 P.2d 235, 237 n. 2 (Utah App.1991).
In Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367 (N.D.Ill.1972), the court addressed the question of whether documents prepared by an expert hired by Fireman's Fund American Insurance Companies to investigate a marine cargo loss were discoverable. Fireman's Fund argued that after an insurance claim has arisen, "litigation may be deemed a contingency and any document prepared after such a claim has arisen is prepared in anticipation of litigation... irrespective of whether an attorney in the role of counsellor has been consulted...." Id. at 373. The court rejected Fireman's Fund's argument and stated, in pertinent part:
An insurance company by the nature of its business is not called into action until one of its insured has suffered some form of injury and has a potential claim against some other party and/or the insurer itself. At this point, the insurer must conduct a review of the factual data underlying the claim, presumably through the talents of agents or employees who summarize the data for middle- or upper-management, the latter deciding whether to resist the claim, to reimburse the insured and seek subrogation of the insured's claim against a third party, or to reimburse the insured and forget about the claim thereafter. The logical absurdity of the plaintiff's position is that, under its theory, the amendments to the discovery rules which were believed to be a liberalization of the scope of discovery would be a foreclosure of discovery of almost all internal documents of insurance companies relating to the claims of insureds. We do not believe that Rule 26(b)(3) was designed to so insulate insurance companies merely because they always deal with potential claims.
Id. The court went on to hold that "[o]nce we have determined that no document authored prior to the consultation of an attorney may be deemed to have been prepared in anticipation of litigation, it follows that the documents requested ... were not prepared in anticipation of litigation...." Id. The court further stated:
The mere fact that Fireman's Fund may have anticipated the possibility of pursuing a subrogation claim against the defendants herein is a far cry from anticipating litigation.... It is a fact of common knowledge that an overwhelming majority of claims asserted by parties generally are amicably resolved and that only a very small portion of them rise to the level of disputes, let alone to the level of lawsuits. If every time a party prepared a document in the ordinary course of business to guide claim handling, this document was deemed to be prepared in anticipation of litigation, it is difficult to see what would be discoverable.
Id. at 373-74; accord Binks Mfg. Co. v. National Presto Indus. Inc., 709 F.2d 1109, 1118-19 (7th Cir.1983); Janicker, 94 F.R.D. at 650.
Similarly, in McDougall v. Dunn, 468 F.2d 468 (4th Cir.1972), the court discussed the issue of whether statements made to an insurance adjuster during the course of an accident investigation were discoverable. Although the court ultimately decided the issue on other grounds, it rejected the insurance company's contention that the statements were prepared in anticipation of litigation and held that the statements were "secured by the claim adjuster in the regular course of his duties as an employee of the insurance company and presumably were incorporated in the files of the company." Id. at 473.
Thomas Organ and its progeny have been criticized by some courts for creating a hard and fast rule that insurance adjusters' reports are never entitled to work-product protection unless an attorney has participated in their preparation in anticipation of litigation. Courts disagreeing with Thomas Organ have generally adopted one of two other positions. The first group of courts have adopted a rule *1261 contrary to Thomas Organ, holding that any "routine investigation of an accident by a liability insurer is conducted in anticipation of litigation." Ashmead v. Harris, 336 N.W.2d 197, 201 (Iowa 1983); see, e.g., Fontaine v. Sunflower Beef Carrier, Inc., 87 F.R.D. 89, 92-93 (E.D.Mo.1980); Almaguer v. Chicago, Rock Island & Pac. R.R. Co., 55 F.R.D. 147, 149 (D.Neb.1972); Harriman v. Maddocks, 518 A.2d 1027, 1033-34 (Me.1986); Fireman's Fund Ins. Co. v. McAlpine, 120 R.I. 744, 391 A.2d 84, 89-90 (1978). The second group of courts, recognizing the concerns of the Thomas Organ court about insulating insurance adjuster reports from discovery, but finding the Thomas Organ view too restrictive, have adopted a case-by-case analysis. See, e.g., Suggs v. Whitaker, 152 F.R.D. 501, 506 (M.D.N.C.1993); Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199, 202 (M.D.Fla.1990); Airheart v. Chicago & N.W. Transp. Co., 128 F.R.D. 669, 671 (D.S.D.1989); Taroli v. General Elec. Co., 114 F.R.D. 97, 98-99 (N.D.Ind.1987); Mission Nat'l Ins. Co. v. Lilly, 112 F.R.D. 160, 164 (D.Minn.1986); Basinger v. Glacier Carriers, Inc., 107 F.R.D. 771, 773-74 (M.D.Pa. 1985); State Farm Fire & Casualty Co. v. Perrigan, 102 F.R.D. 235, 238 (W.D.Va.1984); APL Corp. v. Aetna Casualty & Surety Co., 91 F.R.D. 10, 18 (D.Md.1980); Spaulding v. Denton, 68 F.R.D. 342, 345-46 (D.Del.1975).
Utah has only slightly modified the rigid Thomas Organ approach, indicating that attorney involvement in the preparation of accident investigation documents is only one factor to be considered in determining whether the documents were prepared in anticipation of litigation and are therefore entitled to work-product protection. Gold Standard, 805 P.2d at 168-69. In Gold Standard, the Utah Supreme Court held that "the fact that no attorney was involved may suggest that a document was prepared in the ordinary course of business and not in anticipation of litigation." Id. at 169. The court set forth the test to be used to determine whether material was prepared in anticipation of litigation.
An inquiry to determine whether a document was prepared in anticipation of litigation should focus on the "primary motivating purpose behind the creation of the document." Under this standard, "if the primary purpose behind the creation of the document is not to assist in pending or impending litigation," then work product protection is not justified. The mere possibility that litigation may occur or even "the mere fact that litigation does eventually ensue" is insufficient to cloak materials with the mantle of work product protection.
Id. at 170 (citations omitted) (emphasis added). Under Gold Standard, therefore, the party asserting work-product protection must demonstrate that the documents were created to assist in pending or impending litigation. See also Binks Mfg., 709 F.2d at 1118 (party asserting work-product doctrine has burden to demonstrate that documents in file were prepared in anticipation of litigation).
A number of other states have similarly held that an insurance adjuster's report is generally discoverable. See, e.g., LaMonte v. Personnel Bd., 581 So. 2d 866, 868 (Ala.Civ. App.1991) (documents compiled during investigation are not entitled to work-product protection unless produced in anticipation of litigation); Langdon v. Champion, 752 P.2d 999, 1007 (Alaska 1988) ("materials contained in an insurer's files shall be conclusively presumed to have been compiled in the ordinary course of business" and are not entitled to work-product protection); Brown v. Superior Court, 137 Ariz. 327, 335, 670 P.2d 725, 733 (1983) (insurance claim investigative documents not prepared in anticipation of litigation are not entitled to work product protection); Hawkins v. District Court, 638 P.2d 1372, 1377-78 (Colo.1982) (absent proof of pending litigation, insurance adjuster's report was prepared in course of ordinary business and thus discoverable); Burr v. United Farm Bureau Mut. Ins. Co., 560 N.E.2d 1250, 1255 (Ind.Ct.App.1990) ("[b]ecause an insurance company has a duty in the ordinary course of business to investigate and evaluate claims ... the claim files containing such documents usually cannot be entitled to work product protection"); Henry Enters. Inc. v. Smith, 592 P.2d 915, 921 (Kan.1979) (initial investigation of claim made by insurance company prior to commencement of litigation *1262 is not entitled to work-product protection); McHugh v. Chastant, 503 So. 2d 791, 793 (La.Ct.App.1987) ("An insurer's file is not created in anticipation of litigation simply because it is only compiled after an accident has occurred and, therefore, at a time when litigation must be considered a possibility."); Hall v. Goodwin, 775 P.2d 291, 295-96 (Okla. 1989) (statement taken by insurer's attorney during course of accident investigation but not in anticipation of litigation was discoverable); National Tank Co. v. Brotherton, 851 S.W.2d 193, 202-03 (Tex.1993) (documents not prepared in anticipation of litigation are not entitled to work-product protection).
In the present case, defendant has not established that the report of Utah Farm Bureau's insurance agent was prepared in anticipation of litigation. Defendant argues only that, in 1986, Utah Farm Bureau's attorney sent a letter instructing its claims agents on how to prepare claim reports in the event of litigation. This fact does not support defendant's argument that the particular documents prepared in this case were prepared at the request of an attorney. The attorney's letter merely advised Utah Farm Bureau as to how to conduct its affairs so it would be prepared if litigation became necessary. This is "a far cry" from an attorney's involvement in the handling of a specific claim after it arises. See Thomas Organ, 54 F.R.D. at 373. The fact that no attorney was involved in the preparation of the Askew claim file suggests that it "was prepared in the ordinary course of business." Gold Standard, 805 P.2d at 169.
Defendant has therefore failed to demonstrate that the documents were prepared to assist in pending or impending litigation. At most, defendant has demonstrated that the documents were prepared in the course of an accident investigation. Adjuster Harmon's report is therefore not entitled to work-product protection and the trial court erred by refusing to compel its production.
Prejudice
Defendant argues that even if the trial court erred in denying plaintiff's motion to compel discovery of adjuster Harmon's claim file, such error was harmless. We disagree.
Generally, an erroneous decision by a trial court "cannot result in reversible error unless the error is harmful." State v. Hamilton, 827 P.2d 232, 240 (Utah 1992). In Crookston v. Fire Insurance Exchange, 817 P.2d 789, 796-97 (Utah 1991), the Utah Supreme Court defined harmless error as follows:
"Harmless error" is defined ... as an error that is "sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings." ... Put in other words, an error is harmful only if the likelihood of a different outcome is sufficiently high as to undermine our confidence in the verdict.
Id. (citations omitted); accord Utah R.Civ.P. 61. The burden normally rests with the complaining party to show not only that the "error occurred, but that it was substantial and prejudicial in that the [complaining party] was deprived in some manner of a full and fair consideration of the disputed issues by the jury." Ashton v. Ashton, 733 P.2d 147, 154 (Utah 1987).
However, the usual harmless-error analysis is inapposite where the trial court has erroneously denied a discovery request. In such situations, this court is required to presume prejudice unless it is shown that the denial was harmless. Weahkee v. Norton, 621 F.2d 1080, 1083 (10th Cir.1980); accord Shaklee Corp. v. Gunnell, 748 F.2d 548, 550 (10th Cir.1984). Prejudice is presumed because to require the requesting party to show that the error was harmful would place the requesting party in the untenable position of having to demonstrate that the contents of inaccessible information would have affected the outcome of the case. Because the requesting party does not have the information, he or she will never be able to demonstrate that the trial court's erroneous denial of a discovery request was anything but harmless.[1] The burden of demonstrating *1263 that the erroneous denial of a discovery request was not prejudicial must therefore rest with the party resisting discovery. See In re California Public Utilities Comm'n, 892 F.2d 778, 783-84 (9th Cir.1989). Where we cannot determine from the record whether the requested documents might have changed the outcome of the trial, we cannot say that the error was harmless. Weahkee, 621 F.2d at 1083; Shaklee Corp., 748 F.2d at 550. Because defendant has not demonstrated that the denial of plaintiff's discovery request was not prejudicial, and because we cannot determine from the record whether the requested documents would have changed the outcome of the case, the trial court committed prejudicial error in denying plaintiff's discovery request.
CONCLUSION
The trial court erred in holding that adjuster Harmon's investigative file was prepared in anticipation of litigation and therefore protected by the work-product doctrine. Defendant has not demonstrated how the erroneous denial of plaintiff's discovery request did not prejudice the outcome of the trial, and the record is inadequate for us to determine that the requested documents would not have changed the outcome of the trial. The error was therefore prejudicial.
The trial court's ruling on the discovery request is reversed. The jury verdict is vacated and the case is remanded for a new trial.[2] Because of this disposition, we need not reach plaintiff's additional issues on appeal.
BILLINGS, J., concurs.
ORME, Associate Presiding Judge (dissenting):
I respectfully dissent. Because of a perceived pre trial discovery glitch, and the mere theoretical possibility that some earth-shattering evidence might have been found in the insurance adjuster's file, the majority gives plaintiff a new trial. Without regard to what plaintiff might actually have found in the file, plaintiff gets a whole new bite at the apple a second chance to select jurors, interrogate and cross-examine witnesses, argue for and against jury instructions, and argue to a jury. Not only is this unfair to defendant, it needlessly burdens the system. A second staging of a 10-day jury trial is not something that should be required absent unavoidable necessity.
There is no such necessity in this case. The majority errs in presuming the existence of a smoking gun in the insurance file, when in fact all of the circumstances of the case indicate that no such evidence exists. The key issue for the jury was whether a horse escaped because trespassers knocked the fence down or because defendant was negligent in constructing and maintaining the fence. Persuaded by the evidence of deer entrails and tire tracks at the scene, the jury accepted the trespasser theory. The majority points to nothing likely to be found in the insurance adjuster's file that would probably have led the jury to the alternative conclusion.
Even if the trial court erred in ruling that the insurance file was protected by the work product doctrine, such an erroneous decision "cannot result in reversible error unless the error is harmful." State v. Hamilton, 827 P.2d 232, 240 (Utah 1992). See Jenkins v. Weis, 868 P.2d 1374, 1376 (Utah App.1994). As a general rule, an error is harmless unless appellant can demonstrate it was prejudicial *1264 to her case, i.e., unless "there is a `reasonable likelihood that the error affected the outcome of the proceedings.'"[1]Steffensen v. Smith's Management Corp., 820 P.2d 482, 489 (Utah App.1991) (quoting State v. Verde, 770 P.2d 116, 120 (Utah 1989)), aff'd, 862 P.2d 1342 (Utah 1993). See also Utah R.Evid. 103(a) (error which does not affect substantial right of party is harmless); Utah R.Civ.P. 61 (same).
The majority would have us presume that the undiscovered evidence was pivotal to plaintiff's case. However, there is no indication that the undiscovered material contained even additional pertinent evidence, let alone evidence which would affect the outcome of the case. Plaintiff was able to obtain the photographs taken by adjuster Harmon and to depose him concerning his investigation of the fence site. She also deposed defendant and extensively cross-examined him at trial regarding the condition of the fence and the surrounding area, including testimony concerning tire tracks and deer entrails found at the site. The only other remaining witness, Deputy Monson, filed a police report on his observations and also testified at trial. In sum, even though plaintiff had access to all of the pertinent witnesses and physical evidence, she cannot point to any possible evidence or additional facts having any effect on her case that would have been gleaned through discovery of the insurance file.[2]
Instead, plaintiff contends that the usual rule on prejudice should not apply to her because by reason of the very error of which she complains she has been unable to learn the contents of the file and thus is unable to show what is there and how its admission into evidence or how its leading to other admissible evidence would likely have produced a more favorable result at trial. I appreciate that plaintiff now confronts something of a "Catch-22." However, the dilemma is largely of her own making, as viable procedural alternatives were available by which she could have preserved more of a record on which we could have meaningfully evaluated her claim of prejudice.
Plaintiff could have made a formal request that the trial court review the documents in camera and enter findings on any evidence contained therein. See Utah R.Civ.P. 26(b)(1), 26(c); Madsen v. United Television, Inc., 801 P.2d 912, 915-18 (Utah 1990). Plaintiff might also have moved the trial court to require submission of the materials to the court, to be kept under seal for subsequent review by this court or the trial court if so ordered on remand. See Utah R.Civ.P. 26(c). Cf. Utah R.Evid. 505(d)(1) (court can seal and preserve privileged evidence for possibility of appeal).
In contrast, given the current posture of the case, plaintiff's appeal is based on the *1265 entirely speculative existence of evidence which might undermine the verdict against her. Because the possibility that such evidence will be found in the insurance file is so remote, and because plaintiff failed to take reasonable steps to preserve a better record of what the file contains, I would not employ the Tenth Circuit's Weahkee rule in this case and presume prejudice, thereby shifting to appellee the burden to show that production of the file would not have altered the outcome at trial. Rather, were it up to me, without treating the merits of the issue dealt with in the majority opinion, I would be tempted to hold any error in this regard to be harmless, given the record before us, and affirm the jury's verdict in favor of defendant. At a minimum, I would remand to the trial court with instructions to order production of the file and to give plaintiff an opportunity to explain what she would have done differently had she had access to the material in the file and to demonstrate how that may well have made her victorious at trial. But in no event would I give her a new trial absent some colorable indication of actual prejudice resulting from the discovery error, if there was one.
NOTES
[1] In some settings, a trial judge might examine documents in camera to determine the import of their contents. However, this approach is unsatisfactory in this context. We are concerned not only with whether the requested information on its face might change the outcome of the trial, but also with what impact discovery of that information might have had on trial counsel's overall preparation and conduct of the trial. Only in the most clear-cut cases could any judge, without the benefit of trial counsel's thinking and strategy, make a determination as to whether information in the documents could aid the requesting party.
[2] Without citing any support for its proposition, the dissent suggests the less drastic remedy of remanding the case to the trial court to allow plaintiff the opportunity of demonstrating how she was prejudiced. Based solely on considerations of judicial economy in this case, the proposed remedy does have some appeal. However, that remedy would reverse the traditional burden of proof in this area of the law. See, e.g., California Public Utilities Comm'n, 892 F.2d at 783-84. In any event, we are aware of no case tried to a jury where the approach proposed by the dissent was used to cure the erroneous denial of a discovery request.
[1] Further defining the "reasonable likelihood" standard, the Utah Supreme Court has stated that "`[f]or an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict.'" State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)). In making such a determination, "we must look beyond the mere fact of error and consider in totality all the evidence and proceedings below." Steffensen v. Smith's Management Corp., 820 P.2d 482, 489 (Utah App. 1991), aff'd, 862 P.2d 1342 (Utah 1993). Accord Hamilton, 827 P.2d at 240.
[2] In fact, the only possible evidence which might affect the outcome of the case would be if the undiscovered materials contain evidence of a conspiracy between the adjuster and defendant to obscure any possible indication of defendant's negligence in the construction of the fence by making it look like hunters had knocked it down. Were such a conspiracy to occur, it seems highly unlikely that the conspirators would document their efforts in the insurance file. By contrast, where the record or the circumstances of the case suggest that the undiscovered materials are likely to be highly probative, it makes sense to presume prejudice because any error in prohibiting access to such information could readily affect the outcome of the case. Both cases primarily relied on by the majority are of this caliber. For example, in In re California Public Utilities Commission, 892 F.2d 778, 783-84 (9th Cir. 1989), Westinghouse Electric Corporation sought quarterly reports submitted by Southern California Edison Company to the California Public Utilities Commission concerning the progress of underlying litigation between Edison and Westinghouse in order to establish Edison's state of mind before and during the underlying lawsuits, an essential component of both Edison's fraud claim against Westinghouse and Westinghouse's counterclaim for abuse of process. Similarly, in Weahkee v. Norton, 621 F.2d 1080, 1082-83 (10th Cir.1980), plaintiff employee sought his employer's personnel files to compare employee evaluations and work performance in order to prove his discrimination and retaliation claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611944/ | 884 P.2d 392 (1994)
77 Hawai`i 329
STATE of Hawai`i, Plaintiff-Appellee,
v.
Lian-Wen CHEN, Defendant-Appellant.
No. 16374.
Intermediate Court of Appeals of Hawai`i.
October 25, 1994.
Order Granting in Part and Denying in Part Reconsideration and Modifying Opinion in Part November 10, 1994.
Certiorari Denied November 28, 1994.
*395 Daphne E. Barbee, on the briefs, Honolulu, for defendant-appellant.
Doraine F. Meyer, Deputy Pros. Atty., City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.
Daphne E. Barbee, on the motion for reconsideration, Honolulu, for defendant-appellant.
Before BURNS, C.J., and HEEN and ACOBA, JJ.
ACOBA, Judge.
On July 23, 1991, Defendant-Appellant Lian-Wen Chen (Defendant) was charged in Count I of the subject indictment with failing to stop at the scene of an accident in violation of Hawai`i Revised Statutes (HRS) § 291C-12(a) (1985), and in Count II with negligent homicide in the third degree in violation of HRS § 707-704 (Supp.1992)[1]; all violations were alleged to have taken place on December 20, 1989. Jury trial began on June 22, 1992. Defendant moved for judgment of acquittal at the close of the State's case. The circuit court denied the motion, and Defendant introduced evidence in his defense. On June 26, 1992, the jury returned a verdict of guilty as to Count I and not guilty as to Count II, and was discharged.
On July 9, 1992, Defendant filed a motion for judgment of acquittal as to Count I (motion). The State filed a memorandum in opposition to the motion on July 16, 1992, and the court orally denied the motion on July 24, 1992. The written order denying the motion was filed on August 10, 1992. On July 31, 1992, Defendant was sentenced to probation for five years with special conditions consisting of a $500 fine and 100 hours of community service.
Defendant appeals his conviction under Count I.
We affirm.
Preliminarily, it is evident that Defendant failed to file his motion within the time required under the rules. In pertinent part, Hawai`i Rules of Penal Procedure (HRPP) Rule 29(c) states that a motion for judgment of acquittal, after the jury has been discharged, "may be made or renewed within 10 days after the jury is discharged or within such further time as the court may fix during the 10-day period." Including Saturdays and Sundays,[2] the motion was filed thirteen days after the jury returned its verdict, making the motion untimely under HRPP Rule 29(c). The record does not indicate that the trial court fixed any additional time during the ten-day period within which Defendant could file the motion.
The State did not raise the motion's untimely filing in the circuit court. Nor did the circuit court address the motion's untimeliness in its oral or written orders. On appeal, the State again did not object to the untimely filing of the motion.
The Supreme Court of the State of Hawai`i recently addressed the timeliness of a motion for judgment of acquittal in State v. Reed, 77 Hawai`i 72, 881 P.2d 1218 (1994). In Reed, the defendant filed a motion for judgment of acquittal and a motion for a new trial more than two months after the jury delivered its verdict. Nevertheless, the trial court heard and denied the motions. Id. at 83, 881 P.2d at 1229. The court found that the "[trial] court was without authority to waive the time requirements set forth in HRPP [Rule] 29(c)... and, therefore, was without jurisdiction *396 to entertain [defendant's] motions for ... judgment of acquittal." Id. The court thus held that "the trial court's rulings denying [defendant's] motions for new trial and judgment of acquittal are null and void." Id. Because Defendant, here, failed to file his motion within the requisite time period, the circuit court lacked jurisdiction to hear it. Accordingly, the circuit court's order denying the motion must be vacated.
Defendant's failure to timely file his motion would ordinarily preclude us, on appeal, from considering the grounds raised in his motion. It has been held, however, that where the defendant had previously moved for judgment of acquittal at the end of the government's case and presented evidence on his or her behalf but failed to renew the motion at the close of all the evidence, the grounds raised in the motion may still be considered on appeal to avoid manifest injustice or plain error. United States v. Alvarado, 982 F.2d 659 (1st Cir.1992) (clear and gross injustice); United States v. Teague, 956 F.2d 1427 (7th Cir.1992) (manifest miscarriage of justice); United States v. Williams, 940 F.2d 176 (6th Cir.1991) (manifest miscarriage of justice); United States v. Pennyman, 889 F.2d 104 (6th Cir.1989) (plain error); United States v. Tapia, 761 F.2d 1488 (11th Cir.1985) (miscarriage of justice). Analogously, Defendant, here, had moved at the close of the State's case for a judgment of acquittal, but his failure to timely file a new motion or to renew the prior motion as to Count I at the end of the case made the subject motion a nullity.
Additionally, the failure to file a motion for judgment of acquittal within the time allowed has not precluded a court from reviewing the case on appeal to avoid manifest injustice.[3]Teague at 1433. Indeed, "[t]he cases ... are ... many in which convictions have been reversed though a motion [for judgment of acquittal] was not made, or was not properly renewed, in the trial court." 2 C. Wright, Federal Practice and Procedure: Criminal § 469 at 674 (1982). "And quite frequently courts will review the evidence while saying they are not obliged to do so." Id. Also, while acknowledging a defendant's failure to file or renew a motion for judgment of acquittal, courts have examined the sufficiency of the evidence although ultimately affirming the convictions. E.g., United States v. Chu, 5 F.3d 1244 (9th Cir.1993); Alvarado; United States v. Pruneda-Gonzalez, 953 F.2d 190 (5th Cir.1992); United States v. Sherod, 960 F.2d 1075 (D.C.Cir. 1992); United States v. Richard, 943 F.2d 115 (1st Cir.1991); Pennyman; United States v. Hernandez, 876 F.2d 774 (9th Cir. 1989); United States v. Landers, 484 F.2d 93 (5th Cir.1973). We believe it appropriate, in this particular case, to determine whether plain error exists, although the motion was not timely made.
Moreover, our consideration of Defendant's motion on appeal would obviate a foreseeable petition under HRPP Rule 40[4] and any subsequent ineffective assistance of counsel claim arising from defense counsel's failure to file a timely motion for judgment of acquittal. Since "the ineffective assistance of counsel [here was] ... so obvious from the record[,] ... a [HRPP] Rule 40 proceeding would serve no purpose except to delay the inevitable and expend resources unnecessarily." State v. Silva, 75 Haw. 419, 438-39, 864 P.2d 583, 592 (1993).
We turn, then, to an examination of the evidence adduced at trial. The following facts were stipulated to by the parties:
That on or about December 20, 1989 ... [Defendant] was the driver of a Fort [sic] *397 Mustang [automobile and] ... said Ford Mustang was involved in a collision with... a Cadillac Sedan de Ville taxi ... driven by Khoe Van Nguyen.... That as a result of being struck by the Cadillac Sedan de Ville taxi driven by Khoe Van Nguyen, [the pedestrian] received serious injuries which were the proximate cause of her death....[5]
Barbara Kumuhone (Kumuhone), a witness called by the State, first noticed Defendant near the Aloha Tower (in Honolulu, on the island of O`ahu) because he "wasn't paying attention to his driving ... [and] was doing a lot of talking to passengers he had [sic]." Kumuhone was in the only car behind Defendant, who was driving a Ford Mustang (Mustang) in the middle lane of the three lanes on Ala Moana Boulevard. As Defendant approached the intersection at Ala Moana Beach Road near the entrance to Ala Moana Beach Park, the traffic light at the intersection turned "yellow" and Defendant's vehicle slowed down.
Kumuhone was about two car lengths behind Defendant when she saw "the [Mustang] turning slowly on [sic] the right lane" but Defendant did not signal to indicate that he was making the turn. As the Mustang entered the right lane, Kumuhone "looked in [her] side view mirror, and [] saw a ... taxi coming on [sic] the right lane." According to Kumuhone, the taxi looked like it was speeding. About a hundred feet from the intersection, the taxi struck the front right and the passenger side of the Mustang.
After the collision with the Mustang, the taxi veered to the right, through the intersection and onto the sidewalk. Officer Edwin Koga, a traffic accident investigator, testified that the taxi "struck a traffic light pole, ... continued ..., struck [a] fire hydrant and a short stone wall, ... [and] also hit a street light pole[,]" finally resting against a tree. On cross examination, Officer Koga stated that he did not notice any tire marks or skid marks on the roadway. Officers Glenn Kusatsu and Mark Mikami also participated in the investigation of the accident. Both confirmed that they recovered debris from the road consisting of a broken plastic lens cover and part of a hubcap that matched the damage from Defendant's Mustang. Officer Mikami also indicated that he observed damage to the right front portion and the right side of the Mustang.
Kumuhone saw that the impact of the collision moved Defendant's Mustang into the middle lane of the road. While there, Kumuhone noticed that Defendant and his passengers looked at the taxi. She observed the passenger in the back seat of the Mustang make a "forward and back" hand gesture.[6] Kumuhone also saw the taxi on the side of the road and "two legs [of the pedestrian] underneath the vehicle sticking out."[7] After fifteen seconds passed, Defendant drove off and Kumuhone followed Defendant into the Waikíkí area and alerted a police officer who eventually stopped Defendant.
Arresting officer Claire Hagel approached Defendant and asked if he was "involved in an accident" and he replied, "But it wasn't my fault." Officer Hagel observed that "[t]here was an older oriental couple in the car with [Defendant]." She did not see any injuries on Defendant or his passengers, nor did she have any "reason to believe they *398 needed any" medical assistance. She noted that Defendant "was speaking English ... [but] he only said a few words" and appeared to understand her instructions.
Officer Calvin Tong assisted Officer Hagel and he recalled that Defendant "calmly" asked him, "Excuse me, Officer, how is the lady that was hit? Is she okay, the lady that was hit by the other car?"
Defendant testified that on the morning of the accident he had just picked up his parents, who were visiting from Taiwan, from the airport. According to Defendant, he did not see the vehicle that struck his Mustang, nor did he cross over to the right lane of the road. He claimed he was still in the center lane when he was struck by the other vehicle. Defendant continued to drive after being hit because he was concerned for his "parents' safety"[8] and he did not know that the other car hit a pedestrian. Defendant drove towards his apartment to look for one of his roommates to help him get his parents to the hospital, because he did not know the location of the nearest hospital and his roommates spoke English better than he did. Defendant did not get his parents to the hospital until the following morning because he was detained by the police and his parents were tired from their trip. At the hospital, his father's right leg was bandaged and his mother was examined but was not treated for any injuries. On cross-examination, Defendant testified that he learned that a woman was killed in the accident when he overheard officers talking about it after he was stopped. He admitted he knew he had been in an "accident," and that as a result, he was required to stop.
Defendant called an "accident reconstructionist" as an expert witness. The expert estimated the taxi's speed at impact with the Mustang to be about forty-four to forty-eight miles per hour, while the Mustang's speed was approximately twenty miles per hour.[9] Hence, the expert believed "the momentum and velocity of the taxi would have carried it basically straight down the roadway" after its impact with the slower Mustang. Instead, the taxi veered to the right. This suggested to the expert that "to get it over to where it went, the taxi driver had to make an input to the vehicle[,] ... a turn to the right."[10] In conclusion, the expert opined that the impact between the taxi and the pedestrian was caused by "the speed of the taxi[,] ... the failure of the taxi to do any type of braking from [sic] observing the light turning yellow or the drifting of the Mustang," and the driver turning the taxi to the right after the impact with the Mustang.
From what we can determine, Defendant raises two points on appeal. First, he argues that the court erred in denying his motion for judgment of acquittal based on three grounds: (a) Defendant was not involved in the accident because he "was not the driver of a vehicle which struck a pedestrian;" (b) Defendant's collision with the taxi was a separate accident from the incident involving the taxi and the pedestrian; and (c) the not guilty verdict on Count II (negligent homicide) was inconsistent with the guilty verdict on Count I (failing to stop at an accident). While Defendant's motion was not timely filed as we indicated previously, we treat it as if it had been, for purposes of our analysis. Second, Defendant contends that the evidence was insufficient to sustain the guilty verdict.
I.
We address, then, the specific arguments raised in Defendant's motion.
*399 A.
Initially, Defendant contends that he could not have been "involved in an accident resulting in death" because he was "not the driver of a vehicle which struck a pedestrian." Defendant is incorrect.
The pertinent statute, HRS § 291C-12(a)[11] states in relevant part:
The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 291C-14.[12]
The instruction given by the circuit court on the element of causation in Count II, the negligent homicide count, required the jury to find that Defendant caused or was a concurrent cause of the death of the pedestrian beyond a reasonable doubt.[13] Under the Hawai`i Penal Code, HRS Title 37 (1985), "[c]onduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred." HRS § 702-214 (1985).
On the other hand, Count I called for proof beyond a reasonable doubt that Defendant was "involved in an accident resulting in death." Count I, then, did not necessitate proof that "but for" Defendant's conduct, the death would not have been caused, but only proof that the vehicle Defendant was driving was a "vehicle involved in an accident [which] result[ed] in injury ... or death." HRS § 291C-12(a). On its face, the statute's express language does not mandate that the defendant driver or his vehicle "cause" the accident or "cause" injury or death, to be considered "involved" in the requisite accident. Accordingly, criminal liability under HRS § 291C-12(a) does not require proof that the driver of a vehicle caused injury to or death of a person, but only that the accident the driver was involved in resulted in injury to or death of any person.
Supporting decisions under similarly worded statutes have held that, for the purpose of determining whether a defendant was "involved in an accident," it is not necessary to decide "whether [the] defendant caused or was at fault for the accident", People v. Kerger, 191 Ill.App.3d 405, 410-11, 138 Ill. Dec. 806, 809, 548 N.E.2d 36, 39 (1989), and "[o]ne can be involved ... in an accident without being its legal cause." People v. Bammes, 265 Cal. App. 2d 626, 631, 71 Cal. Rptr. 415, 419 (1968). So, "[w]hile the phrase `involved in an accident' certainly includes [a] `collision,' it is not exclusively limited to that term." Rivas v. State, 787 S.W.2d 113, 115 (Tex.Ct.App.1990).
Consequently, the jury could have reasonably believed that the evidence was insufficient to prove Defendant caused or was a concurring cause of the pedestrian's death, but could have found there was proof beyond *400 a reasonable doubt that the collision with the taxi involved him in an accident which resulted in injury to or death of the pedestrian.
However, Defendant's argument does raise the issue of the scope of the phrase "involved in an accident" in HRS § 291C-12. The statutory language is broad, hinging criminal liability for failing to give information and to render aid on involvement in the incident.
The term "involved" is not statutorily defined. "[O]rdinary meanings are attached to terms not given a statutory definition. Resort to legal or other well accepted dictionaries is one way to determine the ordinary meanings of certain terms." Rivas, 787 S.W.2d at 115 (citation omitted). Accord Wylie v. State, 797 P.2d 651, 657 (Alaska Ct.App.1990). "Involved" can be commonly understood to include the status of "being affected or implicated." Merriam-Webster's Collegiate Dictionary 617 (10th ed.1993). Accordingly, we hold that under HRS 291C-12(a), a driver is "involved in an accident" when his or her vehicle is affected or implicated in the accident. See also Wylie, 797 P.2d at 657 ("`[i]nvolved' means `to relate closely'" (quoting Webster's Third New International Dictionary of the English Language 1191 (Unabridged 1966))); Rivas, 787 S.W.2d at 115-16 ("`involve[d]'" means "`[t]o relate closely' or `[t]o have an effect on.'" (quoting Webster's New Collegiate Dictionary 637 (9th ed.1985))). Compare Kerger, 191 Ill.App.3d at 410, 138 Ill. Dec. at 809, 548 N.E.2d at 39 ("`involved in an accident'" means "`implicated in an accident or connected with the accident in a substantial manner'" (quoting 1979 Ill.Att'y Gen.Op. 57, 59)); Bammes, 265 Cal.App.2d at 631, 71 Cal. Rptr. at 418-19 ("`involved'" means "`being connected with (an accident) in a natural or logical manner'" (quoting People v. Sell, 96 Cal. App. 2d 521, 523, 215 P.2d 771, 772 (1950))).
This common understanding of the term "involved" is consistent with the apparent intent of the drafters of HRS § 291C-12(a). Prior to 1971, the statute's predecessor was much narrower in scope, requiring only those drivers who had actually struck a person or a vehicle to stop and render aid. The prior statute stated:
Whenever any vehicle strikes any person, or collides with any second vehicle containing a person, the driver ... shall immediately cause the vehicle to stop and shall forthwith render to the person struck, or to the occupant of the second vehicle, all needed assistance....
HRS § 291-2 (1968) repealed by 1971 Haw. Sess.L. Act 150, § 3 at 347. Repeal of this statute was part of the legislature's effort to "provide some uniformity in traffic regulation in the State." Hse.Stand.Comm.Rep. No. 157, in 1971 House Journal, at 742; Sen. Conf.Comm.Rep. No. 685, in 1971 Senate Journal, at 1102.
The legislature found that "[m]ost traffic regulation ... is dealt with by comprehensive traffic ordinances enacted by the several counties ... [which] contain many provisions which are similar to the provisions of the Uniform Vehicle Code[.]" Id. It therefore adopted a statewide code in "conformance with the Federal Highway Safety Program Standard on Codes and Laws." Id.
HRS § 291C-12(a) is verbatim section 10-102(a) of the Uniform Vehicle Code (Code). Referring to the predecessor statute, HRS § 291-2, and to three other state statutes like it, the Code pointed out that they "require stops only by drivers whose vehicles actually collide with other vehicles or persons, while the Code requires such stops by any driver `involved' in an accident even though there is no collision or striking of another vehicle or person." Uniform Vehicle Code Annotated § 10-102(a) at 25 (1967).
The expansive reach of Code § 10-102(a) and, thus, HRS § 291C-12(a) is evident. The purpose of statutes like HRS § 291C-12(a) which require drivers involved in an accident to stop at the scene of the accident, is "to protect those injured ... and [to] facilitate a determination of civil and criminal liability." Wylie, 797 P.2d at 657. See also State v. Liuafi, 1 Haw.App. 625, 643, 623 P.2d 1271, 1282 (1981) ("duty to render aid is clearly intended to furnish accident victims prompt assistance in order to minimize their injuries").
*401 Here, there was a collision between the taxi and Defendant's vehicle, an unplanned and unexpected event well within the scope of the term "involved" as contemplated by the Code. It would be premature at this point to forecast factual situations encompassed within the term "involved" when there is "no collision or striking of another vehicle or person." Uniform Vehicle Code Annotated § 10-102(a) at 25 (1967). In connection with the words "involved in an accident" under HRS § 291C-12(a), "[a]ny future cases requiring interpretation of this language must necessarily depend upon the particular facts of the case in light of the purpose behind the statute." Kerger, 191 Ill.App.3d at 410, 138 Ill. Dec. at 609, 548 N.E.2d at 39. But the Code's comment signifies a clear intent to broadly apply the duty to stop, give information, and render aid at accident scenes. Because of that, Defendant's argument fails under the version of the statute, HRS § 291C-12(a), in effect at the time of the accident.
B.
Defendant also contends that "the taxi driver was the driver of a vehicle involved in an accident resulting in [death]" and that the taxi was "involved in a separate accident with [Defendant's] vehicle." Obviously, the significance of Defendant's theory of two accidents rather than one accident is to establish that Defendant's collision with the taxi was not related to the impact between the taxi and the pedestrian. That theory is intended to raise a reasonable doubt as to Defendant's guilt under Count I. An evaluation of that theory required a weighing of the evidence concerning the relationship of the impact between the Mustang and the taxi, and thereafter the taxi and the pedestrian.
In that regard, the jury had the benefit of the eyewitness' and Defendant's testimony, and Defendant's "accident reconstruction" expert's testimony. While Defendant espoused a two-accident theory, we note that Defendant's "accident reconstruction" expert did not render any opinion indicating that there were two accidents.
"[I]ssues going to reasonable doubt ... [are] generally [] matter[s] for the fact finder to determine." State v. Gabrillo, ___ Hawai`i ___, ___, 877 P.2d 891, 895 (App.1994). For it was within the jury's province to accept or reject part or all of the witnesses' testimony and an appellate court "`will not attempt to reconcile conflicting evidence, [or] ... interfere with a jury decision based on the credibility of witnesses or the weight of the evidence.'" Id. at ___, 877 P.2d at 895 (quoting State v. Kekaualua, 50 Haw. 130, 133, 433 P.2d 131, 133 (1967) (Levinson, J. concurring)). We are required to give "`full play to the right of the factfinder [sic] to ... weigh the evidence, and draw justifiable inferences of fact.'" Id. at ___, 877 P.2d at 894 (quoting State v. Smith, 59 Haw. 456, 460, 583 P.2d 337, 341 (1978)). Doing so, we find that there was evidence of a close proximity of time, place and events which would enable a reasonable fact finder to conclude beyond a reasonable doubt that there was one accident, and that that accident resulted in the pedestrian's death.
C.
Finally, contrary to Defendant's assertion, it is not inconsistent that the jury found Defendant not guilty of negligent homicide in the third degree, a simple negligence crime (Count II), but guilty of intentionally, knowingly, or recklessly failing to stop at the accident scene (Count I). Defendant relies on State v. Liuafi, 1 Haw.App. 625, 623 P.2d 1271 (1981) in support of his argument that where inconsistent verdicts exist, the appellate court may affirm one and reverse the other. Liuafi held that a defendant "could not be convicted of both attempted murder and of violat[ing] HRS § 291C-12." Id. at 643, 623 P.2d at 1282 (footnote omitted). This holding was based on the court's finding that the word "accident" used in HRS § 291C-12 "taken in its usual sense," does not include "[a]n intentional attempt to murder a person by using one's vehicle as a weapon[.]" Id. Liuafi is not applicable because the verdicts here were not inconsistent.
Again, while the jury may have believed that the evidence was insufficient to find Defendant guilty of causing the pedestrian's *402 death, it could have reasonably found that Defendant intentionally, knowingly, or recklessly failed to stop at the scene after the accident occurred.
D.
We hold, then, that plain error was not committed by the trial court in denying Defendant's motion upon the arguments presented. Also, our holding is with prejudice to any HRPP Rule 40 petition based on the untimely filing of the motion. See Reed, 77 Hawai`i at 86, 881 P.2d at 1232. We turn, then, to the issue of whether there was substantial evidence to sustain the conviction.[14]
II.
As we stated before:
We are required to sustain the conviction "so long as there is substantial evidence [tending] to support the requisite finding[s] for [the] conviction." State v. Matias, 74 Haw. 197, 207, 840 P.2d 374, 379 (1992) (quoting State v. Ildefonso, 72 Haw. 573, 576-77, 827 P.2d 648, 651 (1992) (quoting State v. Tamura, 63 Haw. 636, 637, 633 P.2d 1115, 1117 (1981))). Thus, "[i]t matters not if a conviction ... might be deemed to be against the weight of the evidence...." Id. Indeed, "on appeal... [we do not determine] whether guilt is established beyond a reasonable doubt...." State v. Cummings, 49 Haw. 522, 533, 423 P.2d 438, 445 (1967). For, the test on appeal is "whether there [is] substantial evidence to support the conclusion of the trier of fact." Id.
. . . . .
Necessarily then, our search of the record is for the existence of evidence deemed "substantial"; that is, "evidence which a reasonable mind might accept as adequate to support [the] conclusion[]" of the fact finder. State v. Lima, 64 Haw. 470, 475, 643 P.2d 536, 539 (1982) (quoting State v. Naeole, 62 Haw. 563, 565, 617 P.2d 820, 823 (1980)). In such a search, the "evidence" must be considered "in its strongest light for the State." State v. Tamanaha, 46 Haw. 245, 251, 377 P.2d 688, 692 (1962) (citations omitted), reh'g denied, 46 Haw. 345, 379 P.2d 592 (1963). If there is substantial evidence which supports the fact finder's conclusion, affirmance is required; conversely, the absence of such substantial evidence requires reversal of the conviction.
Gabrillo, ___ Hawai`i at ___, 877 P.2d at 896 (citations and footnote omitted). See also State v. Silva, 75 Haw. 419, 432, 864 P.2d 583, 589-90 (1993).
As discussed in Part I, supra, the parties stipulated that Defendant was the driver of a vehicle that collided with the taxi, and that the taxi struck a pedestrian, causing her death. Defendant knew he collided with another vehicle and did not remain at the accident scene, but left the area. In addition, eyewitness Kumuhone saw the collision between Defendant's vehicle and the taxi, Defendant and his passengers looking at the taxi, the legs of a pedestrian extending out from beneath the taxi, and Defendant driving off after stopping for about fifteen seconds. As a result, we find in the record, "`evidence which a reasonable mind might accept as adequate'" to support the jury's guilty verdict. Id., ___ Hawai`i at ___, 877 P.2d at 896 (quoting Lima, 64 Haw. at 475, 643 P.2d at 536).
III.
For the foregoing reasons, the Judgment of conviction filed on July 31, 1992, is affirmed.
MOTION FOR RECONSIDERATION AND ORDER GRANTING IN PART AND DENYING IN PART AND MODIFYING OPINION IN PART
Lian-Wen Chen (Defendant) filed a motion for reconsideration of our October 25, 1994 opinion on November 2, 1994. Defense counsel argues that there was no ineffective assistance of counsel because Defendant's motion *403 for judgment of acquittal (motion) was deposited with the clerk of the circuit court judge but not filed within the time allowed under Hawai`i Rules of Penal Procedure (HRPP) Rule 29(c). Defense counsel also contends that this court should have held oral argument on the timeliness of the motion. Finally, defense counsel essentially reiterates the points in her briefs on appeal.
Based on the record on appeal, the motion was not "made or renewed" within the 10-day period required by HRPP Rule 29(c). Defense counsel contends, however, that she submitted the motion within the 10-day period to the trial court's chambers, in accordance with an informal procedure followed in the circuit court. Defense counsel represents that under this procedure, a motion "must first be submitted to the Judge's chambers for review and scheduling of a hearing date" before it can be filed. She states that the motion would not have been accepted for filing unless it was initialed by the judge's clerk and was assigned a hearing date.
Whatever the procedure was, the parties and the court were still obligated to insure that the record properly reflected the facts represented, or that the procedure allowed for filing within the time set forth in the rules, or that the motion was timely filed under whatever procedure was adopted by the court. The filing date on the document is the only reference available to the appellate court and we presume that the motion was "made or renewed" on the date filed, there being nothing else indicated in the record.
While no oral argument was held in this case, the October 12, 1994 order, determining that oral argument was not necessary, expressly afforded counsel the opportunity to "file a motion for retention of oral argument," but none was filed. The untimeliness of the motion was clearly reflected in the record and defense counsel, for whatever reason, chose not to address it.
However, we agree, that under the particular circumstances of this case, the procedure followed by the circuit court was not directly controlled by Defendant's counsel. We, therefore, grant the motion to reconsider that part of the opinion related to ineffective assistance of counsel and modify our opinion to hold that there was no ineffective assistance of counsel.
Although we hold that there was no ineffective assistance of counsel, our affirmance is not affected. Our original opinion had proceeded on the merits of the appeal without regard to the ineffective assistance issue. Based on what was submitted in the motion for reconsideration, we see no reason for amending the opinion as it relates to the merits of the case itself. Accordingly, the motion for reconsideration is denied as to the merits of the appeal.
NOTES
[1] Hawai`i Revised Statutes (HRS) § 707-704 (Supp.1992) provides as follows: "Negligent homicide in the third degree. (1) A person is guilty of the offense of negligent homicide in the third degree if that person causes the death of another person by the operation of a vehicle in a manner which is simple negligence."
[2] In this respect, Hawai`i Rules of Penal Procedure (HRPP) Rule 45(a) states:
(a) Computation. In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a holiday. When a period of time prescribed or allowed is less than 10 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. As used in these rules, "holiday" includes any day designated as such pursuant to Section 8-1 of Hawai`i Revised Statutes.
[3] We express no opinion as to the applicability of the manifest injustice standard of review because, as discussed, infra, a review for plain error sufficiently addresses the issue here.
[4] HRPP Rule 40(h) provides that "[a]ny party may appeal to the supreme court from a judgment entered in the [Rule 40] proceeding in accordance with Rule 4(b) of the Hawai`i Rules of Appellate Procedure."
In addition, HRPP Rule 40(f) provides in relevant part:
If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner.
[5] The stipulation also stated that Defendant took an intoxilyzer test a few hours after the accident, the results indicated no alcohol in his body, and "that the driver of the ... taxi ... was not arrested or charged with an offense in connection with the accident dated 12-20-1989."
[6] In Defendant's oral motion for judgment of acquittal made after the State rested, he argued that this hand gesture indicated that the passenger waved him to drive on after the collision, and acquittal on Count I should be granted on this basis.
[7] Kumuhone testified that she did not see the collision between the taxi and the pedestrian. During his testimony, Officer Koga did not indicate when the taxi struck the pedestrian. The location of the pedestrian prior to being struck by the taxi was never clearly established. Kumuhone, during her cross-examination, testified that she initially told the police officer that the person hit by the taxi was a jogger, then she later changed her statement and told the police that the victim was a pedestrian. She changed her statement because she "felt that anyone that was standing there was a pedestrian waiting to cross the street, whether it was a jogger or anyone." From Kumuhone's testimony, we infer that the pedestrian was on the sidewalk prior to the collision with the taxi.
[8] Pursuant to Defendant's request, the trial court instructed the jury on the "choice of evils" defense as to Count I based on Defendant's claim that he left the accident site to tend to his parents' injuries. We express no opinion as to whether the "choice of evils" defense was appropriate under these circumstances.
[9] The speed limit at Ala Moana Boulevard is thirty-five miles per hour. Although the taxi driver was available, the State did not call him to testify.
The estimate of the Mustang's speed is supported by testimony from Kumuhone who testified that she slowed down because the traffic light turned "yellow" and she was travelling at about twenty miles per hour behind the Mustang.
[10] The expert also opined that the taxi driver could have stopped short of the intersection and of hitting the Mustang.
[11] This section was amended by Act 243 § 4, S.B. No. 576, 16th Leg., 1992 Haw.Sess.Laws 642-43 to apply only in accidents "resulting in serious bodily injury or death" and to make its violation a class B felony. HRS § 291C-12.5 was added to apply to "accident[s] resulting in substantial bodily injury[,]" its violation a class C felony, while HRS § 291C-12.6 was added to apply to "accident[s] resulting in bodily injury[,]" a misdemeanor. Act 243 §§ 1 to 2, S.B. No. 576 16th Leg., 1992 Haw.Sess.Laws 642. The purpose of the amendments was to provide "grades of offenses in failure to render aid cases based on the severity of the injury involved." Hse. Stand.Comm.Rep. No. 1008, in 1992 House Journal, at 1276. See Hse.Stand.Comm.Rep. No. 1178, in 1992 House Journal, at 1346; Hse. Conf.Comm.Rep. No. 51, in 1992 House Journal, at 813; Sen.Stand.Comm.Rep. No. 1941, in 1992 Senate Journal, at 937-38; Sen.Conf.Comm.Rep. No. 51, in 1992 Senate Journal, at 753.
[12] HRS § 291C-14(a) (1985) requires "[t]he driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle ... [to] give the driver's name, address, and the registration number of the vehicle ... and ... exhibit the driver's license or permit to drive[.]" This section also requires the driver to "render to any person injured in the accident reasonable assistance[.]"
[13] In instructing the jury on negligent homicide, the court stated that "it [was] not necessary that [the jury] find that [Defendant's] negligence was the sole cause of the victim's death[,]" but that it might "properly consider" that "any negligence on the part of the Defendant was a concurring cause of the death of the victim." Our reference to the instruction does not indicate approval or disapproval of the instruction.
[14] Because Defendant appealed directly from the judgment of conviction, the failure to timely file his motion for judgment of acquittal does not preclude us from determining whether his conviction was supported by substantial evidence in the record. State v. Reed, 77 Hawai`i at 81, n. 17, 81-82, 881 P.2d at 1227, n. 17, 1227-28. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1914076/ | 981 A.2d 328 (2009)
HEINTZ
v.
ROBERTSON.
No. 2993 EDA 2008.
Superior Court of Pennsylvania.
June 10, 2009.
Affirmed, Vacated and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/831527/ | 780 N.W.2d 792 (2010)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Shane Julius EDWARDS, Defendant-Appellant.
Docket No. 140364. COA No. 287953.
Supreme Court of Michigan.
April 27, 2010.
Order
On order of the Court, the application for leave to appeal the November 24, 2009 judgment of the Court of Appeals is considered, *793 and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611910/ | 884 P.2d 156 (1994)
UNDERWATER CONSTRUCTION, INC., and Industrial Indemnity Company of Alaska, Appellants/Cross-Appellees,
v.
William M. SHIRLEY, Appellee/Cross-Appellant.
Nos. S-5247, S-5248.
Supreme Court of Alaska.
November 4, 1994.
*157 Mark L. Figura, Rose & Figura, Anchorage, for appellants/cross-appellees.
Chancy Croft, Chancy Croft Law Office, Anchorage, for appellee/cross-appellant.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION
COMPTON, Justice.
Underwater Construction, Inc. appeals an award of attorney's fees pursuant to section 145(a) of the Alaska Workers' Compensation Act (Act), AS 23.30.005-.270, claiming that the award was improper since it never "controverted" payment of compensation. We affirm the award with slight modification.
William W. Shirley cross-appeals the denial of his request for a determination that he is entitled to an order awarding him permanent partial disability payments pursuant to section 110(c) of the Act. We reverse the denial.
I. FACTUAL AND PROCEDURAL BACKGROUND
William W. Shirley was severely injured while working for Underwater Construction, Inc. (Underwater Construction) on August 4, 1989. On August 23, 1989, Underwater Construction's insurance carrier, Industrial Indemnity Company of Alaska (collectively, Industrial Indemnity), began paying Shirley temporary total disability (TTD) payments of *158 $449.37 per week. Although Shirley received extensive medical treatment, specialists concluded that he would not be competitively employed then or in the future.
On August 21, 1990, Dr. Shawn Hadley, a rehabilitative specialist, performed a permanent partial impairment (PPI) rating and concluded that Shirley had an impairment rating of 54% of the whole man. Industrial Indemnity indicated that the rating "may be premature," and sought to clarify impairment status through consultation with another head injury expert, Katherine Mateer, Ph.D. Industrial Indemnity continued to pay Shirley $449.37 per week in TTD benefits.
Shirley contacted an attorney and filed an application for permanent total disability (PTD) benefits. Industrial Indemnity filed an answer on a form provided by the Alaska Workers' Compensation Board (Board) in which it disputed Shirley's PTD claim: "Carrier is awaiting clarification from record review to determine P & T status. Until such time TTD is on-going." Industrial Indemnity also "reserve[d] the right to raise further defenses after discovery." In response to Shirley's claim for attorney's fees, Industrial Indemnity stated: "No benefits have been controverted. All benefits due and owing under the Alaska Workers' Compensation Act have been accepted and paid." In support of this, Industrial Indemnity noted that since the TTD and PTD rates are the same, its decision had no effect on the amount of Shirley's compensation benefits.
In January 1991 Industrial Indemnity received a report from Dr. Mateer which stated that "Mr. Shirley is permanently and totally disabled as a result of the August 4, 1989 injury." On this basis, Industrial Indemnity converted Shirley's status from TTD to PTD, effective January 24, 1991.
In March 1991 the Board held a hearing on Shirley's claim. The Board found that Shirley had been permanently totally disabled after August 21, 1990. Based on this finding, the Board held that Industrial Indemnity had "controverted in fact Employee's entitlement to PTD benefits." Accordingly, the Board required Industrial Indemnity to pay statutory minimum attorney's fees on all disability payments made after August 21. The Board also denied Shirley's request for "an award of PTD benefits until further board order," noting that Industrial Indemnity would be warranted in changing Shirley's status if his condition were to improve in the future.
Industrial Indemnity appealed the attorney's fee ruling to the superior court, Alaska R.App.P. 601; AS 22.10.020, arguing that it had not "controverted" the payment of disability benefits. The superior court affirmed the Board's order. Industrial Indemnity appeals that ruling. Shirley cross-appeals, claiming that the Board erred in denying his claim "for an award of permanent total disability benefits." Alaska R.App.P. 202(a); AS 22.05.010(c).
II. DISCUSSION
A. AWARD OF ATTORNEY'S FEES UNDER AS 23.30.145(a).
The central question before this court is whether the Board had the authority under section 145(a) of the Act to award statutory attorney's fees. Because this determination requires statutory interpretation involving no administrative expertise, the substitution-of-judgment standard is appropriate. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). We give no deference to the intermediate appellate decisions of the superior court. Id.
Alaska Statute 23.30.145(a) provides in part:
When the board advises that a claim has been controverted, in whole or in part, the board may direct that the fees for legal services be paid by the employer or carrier in addition to compensation awarded; the fees may be allowed only on the amount of compensation controverted and awarded... .
The parties dispute the effect of Industrial Indemnity's delay in changing Shirley's status from TTD to PTD. Industrial Indemnity argues that it never controverted any amount of compensation owed to Shirley and therefore the Board did not have authority to grant attorney's fees. It notes that it has paid Shirley $449.37 in weekly TTD benefits *159 since his injury the same amount for which he would be eligible if granted PTD status.
Shirley responds that Industrial Indemnity controverted his claim by "never unqualifiedly accept[ing] Shirley's claim for permanent total disability compensation." Because Industrial Indemnity satisfied the controversion requirement, the award of attorney's fees was appropriate.
We agree. Shirley's physician, Dr. Hadley, indicated in her July and August 1990 reports that Shirley was medically stable and that he would not be able to pursue gainful employment. Given these conclusions, Shirley was entitled to have his status changed at that time from TTD to PTD.[1] Accordingly, Industrial Indemnity's refusal to change Shirley's status constituted a controversion of Shirley's claim "in whole or in part" under AS 23.30.145(a).
Nonetheless, section 145(a) limits the Board's authority to award attorney's fees to "the amount of compensation controverted and awarded." AS 23.130.145(a); see Bignell v. Wise Mechanical Contractors, 651 P.2d 1163, 1169 (Alaska 1982) ("The statute unambiguously restricts the award of attorney's fees to amounts which are controverted."); J.B. Warrack Co. v. Roan, 418 P.2d 986, 990 (Alaska 1966) (holding that where although carrier did not controvert amount of employee's claim, no attorney's fees could be awarded). Industrial Indemnity argues that because the payment amount under TTD was exactly the same as it would have been under PTD, no "amount of compensation" was controverted.
We disagree. Industrial Indemnity controverted the permanent status of Shirley's disability, thus affecting the total amount he could collect during his lifetime. As the superior court noted, "[t]he distinction between TTD and PTD can be very important to an employee since TTD payments end with medical stability while PTD benefits do not." Shirley claimed $449.37 per week PTD. Regardless of TTD benefits being paid, Industrial Indemnity's action paid zero dollars PTD. Furthermore, Industrial Indemnity's suggestion that a status change would have no effect on the amount that Shirley receives is somewhat disingenuous. If indeed there had been no "amount of compensation" at stake, there would not have been any reason for Industrial Indemnity to controvert Shirley's claim. By controverting Shirley's entitlement to PTD benefits, Industrial Indemnity retained the option to claim that its liability ended as of the point at which Shirley achieved medical stability. Amounts payable and not voluntarily paid after that point were thus controverted.
The policies underlying the attorney's fees statute further support our conclusion. Alaska Statute 23.30.145(a) provides for attorney's fees in order to ensure that injured workers are able to obtain effective representation. Wien Air Alaska v. Arant, 592 P.2d 352, 365-66 (Alaska 1979), overruled on other grounds, Fairbanks N. Star Sch. Dist. v. Crider, 736 P.2d 770 (Alaska 1989). Where an employer resists payment of benefits, the injured worker must retain an attorney to protect his interests. "The employer is required to pay the attorneys' fees relating to the unsuccessfully controverted portion of the claim because he created the employee's need for legal assistance." Haile v. Pan American World Airways, Inc., 505 P.2d 838, 842 (Alaska 1973) (Rabinowitz, J., dissenting in part, concurring in part). In this case, Industrial Indemnity's dispute regarding the classification of Shirley's benefits required him to obtain representation. As the Board noted, Industrial Indemnity "should have changed [Shirley's] status to PTD and then pursued medical confirmation of [Shirley's] condition."
*160 Based on the foregoing, we conclude that the Board was correct in awarding attorney's fees to Shirley. However, we disagree with the Board's specific formulation of the fee award. The Board awarded "statutory minimum attorney's fees on all compensation benefits paid after August 21, 1990, the date of Dr. Hadley's final report." However, this award improperly includes Industrial Indemnity's payments made prior to the Board's decision. In Bignell, we affirmed the Board's decision that attorney's fees could not attach to the employer's voluntary payment of $6000, since that amount was not controverted. 651 P.2d at 1169. In this case, attorney's fees cannot attach to the payment "tendered" by Industrial Indemnity until the Board's award, since this amount was not controverted.[2] Accordingly, we modify the Board's award to apply to all compensation benefits paid after the date of the Board award. If the fees awarded under section 145(a) are disproportionately high, that fact should be taken into account by the superior court. Wien Air Alaska, 592 P.2d at 356.
B. DENIAL OF SHIRLEY'S REQUEST FOR AN AWARD OF PTD BENEFITS UNTIL FURTHER BOARD NOTICE
Shirley argues on cross-appeal that the Board erred by not explicitly granting him an award of PTD benefits. Shirley apparently desires an order from the Board that Industrial Indemnity must pay PTD benefits until further order of the Board. Shirley claims that the issue was ripe for determination, and AS 23.30.110(c) required the Board to make a determination and award of PTD compensation.
In response, Industrial Indemnity argues that this issue is moot because the Board expressly found that Shirley was entitled to PTD benefits after August 21, 1991. In the alternative, it argues that the statute does not require an employer to obtain a Board order prior to termination of disability benefits. It concludes that the Board properly denied Shirley's request for an order directing payment of PTD benefits until further Board order.
We disagree with Industrial Indemnity's argument that this issue is moot. The Board did not take "the action requested by Mr. Shirley," or expressly award Shirley PTD benefits. At the very most, the Board concluded that Shirley had been entitled to PTD benefits after August 21, 1990, and that Industrial Indemnity's refusal to change Shirley's status constituted a controversion. Nevertheless, this conclusion was drawn in the context of the Board's decision regarding attorney's fees. Regarding Shirley's request for an award of PTD benefits until further Board order, the Board denied and dismissed the request, stating that the "[e]mployee has not pointed to any statute which would give us authority to make the order he requests."
We therefore turn to the question of whether the Board was correct in concluding that it did not have the authority to grant Shirley's request. This is a question of law, requiring statutory interpretation and involving no administrative expertise. Accordingly, we review the decision under the substitution-of-judgment standard. Tesoro, 746 P.2d at 903.
The Board clearly did not believe that an express award of benefits would have made any difference to Shirley. The Board stated:
We believe it is clear (and always has been) that the employer and insurer have the authority to change an injured worker's pay status when the evidence in a given claim warrants a change... . [T]here is nothing in the [Act] to prevent or preclude [such a change].
This statement is most likely based on AS 23.30.180, which provides for compensation for permanent total disability "during the *161 continuance of the total disability." Because Shirley would not be entitled to continuing payments if his condition were to improve unexpectedly, the Board concluded that the employer or insurer could unilaterally cease payments upon the improvement.
Our review of the statutory framework indicates that this conclusion was incorrect. The Board erred in concluding that an employer or insurer has the unilateral authority to modify or terminate an employee's benefits, or to change an injured worker's status. Further, the Board erred in refusing to make an express award of PTD benefits to Shirley. Contrary to the Board's view, such an award was important to Shirley because it would have made it more difficult for Industrial Indemnity to change his status at a later time.
Alaska Statutes 23.30.150-.170, entitled "Payment of Compensation," outline the manner by which compensation payments are to be made. Compensation is payable "without an award, except where liability to pay compensation is controverted by the employer." AS 23.30.155(a). If payment of compensation is controverted, the employee is entitled to a hearing[3] and a compensation order "rejecting the claim or making the award."[4] AS 23.30.110(e). If an award is made, then compensation is "payable under the terms of an award." AS 23.30.155(f).
If an employer wishes to modify or terminate payments, it is required to "notify the Board and the employee of the nature and substance" of the change within twenty-eight days.[5] 8 Alaska Administrative Code (AAC) 45.136 (1991). More importantly, an employer seeking to modify or terminate payments made under a Board order must first seek the approval of the Board. The statute provides: "Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions, ... the board may ... review a compensation case under the procedure prescribed in respect of claims in AS 23.30.110." AS 23.30.130(a). The applicable regulation further clarifies the requirements which must be met before an award can be modified on the basis of a change in conditions: "A petition for a rehearing or modification based upon change of conditions must set out specifically and in detail the history of the claim from the date of the injury to the date of filing of the petition and the nature of the change of conditions." 8 AAC 45.150(c).
The above statutory and regulatory provisions indicate that an employer or insurer does not "have the authority to change an injured worker's pay status when the evidence in a given claim warrants a change." If payments are being made pursuant to a Board order, the employer or insurer must petition the Board for rehearing or modification of its order on the basis of "a change in conditions." AS 23.30.130(a). This conclusion explains why Shirley requested an express award of PTD benefits, and why Industrial Indemnity opposed such an award. Such an award would make it more difficult for Industrial Indemnity to modify or terminate the payment of benefits at a later date.
III. CONCLUSION
We AFFIRM the Board's conclusion that Industrial Indemnity "controverted" Shirley's *162 PTD claim for purposes of AS 23.30.145(a), however, we MODIFY the Board's award of attorney's fees. We REVERSE the Board's decision regarding Shirley's entitlement to PTD benefits, and we REMAND with directions to enter an order consistent with this opinion.
RABINOWITZ, Justice, dissenting in part.
I dissent from the court's holding that the Board, in the factual context of this case, has authority under AS 23.30.145(a), to award attorney's fees to Shirley.
In my view Section 145(a) does not furnish authority for the Board to award attorney's fees since Industrial Indemnity did not controvert any amounts of compensation. Under Section 145(a) attorney's fees "may be allowed only on the amount of compensation controverted." There is simply no record evidence that Industrial Indemnity was not prepared to pay any lifetime compensation benefits to which Shirley was entitled under the Act. What took place here was a temporary disagreement concerning the point at which the medical evidence justified classifying Shirley's disability as permanent rather than temporary.
Under the court's approach a difference over a few months regarding a change in Shirley's status from TTD to PTD translates into an award of attorney's fees based on a lifetime of compensation payments. This strikes me as basically unfair.[1]
The court advances three grounds in support of its holding that the Board can resort to Section 145(a) in awarding attorney's fees to Shirley. First, the court observes that Industrial Indemnity would not have bothered to controvert Shirley's claim for PTD if there wasn't an "amount of compensation" at stake. This rationale overlooks an employer's interest in accurate information as well as the possibility of an employer's reasonable belief in the claimant's recovery. Second, the court notes that even if Industrial Indemnity did not dispute the total amount it owed, it disputed the PTD amount it owed. This reasoning impliedly overrules Bignell v. Wise Mechanical Contractors, 651 P.2d 1163 (Alaska 1982). In Bignell, Wise classified its compensation payments incorrectly, just as Industrial Indemnity did in this case. Wise termed its payments PPD, and we held that Wise should have continued to pay TTD. Nonetheless, the $6,000 in mislabeled payments was subtracted from the "amount controverted" figure. In my view, the Bignell case and the instant case are indistinguishable. Lastly, the court notes that the State's controversion meant a dispute over "the total amount ... [Shirley] could collect during his lifetime." As noted above, in my view this is not an accurate reading of the record.
Given the inapplicability of Section 145(a), I would require the parties to file supplemental briefs as to whether Section 145(b) authorizes the Board to award attorney's fees to Shirley, or whether, due to the inapplicability of Sections 145(a) and (b),[2] Section 145(c) authorizes this court to consider uncompensated attorney's fees incurred before the Board, as well as attorney's fees for proceedings before this court, in making an award for attorney's fees.
NOTES
[1] Dr. Hadley did not conclude explicitly that Shirley was entitled to PTD (permanent total disability) status. Following the August 21, 1990 visit, Dr. Hadley gave Shirley a PPI (permanent partial impairment) rating of 54% of the whole man. Nevertheless, Dr. Hadley's conclusion that Shirley's condition was stable, combined with her previous statements that Shirley would never work again, support the Board's conclusion that Shirley was entitled to PTD status as of August 21, 1990. AS 23.30.180; see J.B. Warrack Co. v. Roan, 418 P.2d 986, 987-88 (Alaska 1966) (For workers' compensation purposes total disability means the inability "to perform services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exit.").
[2] This conclusion is also supported by our decision in Alaska International Constructors v. Kinter, 755 P.2d 1103 (Alaska 1988). In Kinter, the insurance carrier also claimed that no amount of compensation was controverted since it had paid TTD benefits which were the same weekly amounts as the PTD benefits to which Kinter was entitled. Id. at 1106. Despite this payment, however, the carrier's answer to Kinter's claim for PTD benefits indicated that it was denying all liability. Since the carrier essentially had made the TTD payments "under protest," we concluded that it had controverted all amounts paid after the answer was filed. Id. at 1106-07, 1107 n. 11.
[3] AS 23.30.100-.145, entitled "Compensation Proceedings," outline procedures to be followed when a dispute arises regarding an injured worker's compensation. If a hearing is requested pursuant to AS 23.30.110(c), the holding of a hearing is mandatory, not discretionary. Summers v. Korobkin Constr., 814 P.2d 1369, 1371 (Alaska 1991).
[4] The Board is required to "file its decision" within 30 days after the agency record closes. AS 23.30.110(c). The decision is referred to in the statute as a "compensation order," reviewable in a judicial proceeding, AS 23.30.125, and modifiable by the Board on its own initiative or the application of a party. AS 23.30.130. If a claim is controverted in whole or in part, the Board may allow attorney's fees "in addition to compensation awarded," but "only on the amount of compensation ... awarded." AS 23.30.145(a).
[5] The statute also provides the Board with the authority to intervene if an employer decides to modify or terminate benefits:
The Board may upon its own initiative at any time in a case in which payments are being made with or without an award, where right to compensation is controverted, or where payments of compensation have been [modified or terminated] ... hold the hearings, and take the further action which it considers will properly protect the rights of all parties.
AS 23.30.155(h).
[1] The court observes that "[i]f the fees awarded under Section 145(a) are disproportionately high, that fact should be taken into account by the superior court." Assuming 145(a) allows for deviation from its fee schedule the "disproportionately high" standard strikes me as illusory.
[2] Alaska Statute 23.30.145(b) provides:
If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of the claim, the board shall make an award to reimburse the claimant for the costs in the proceedings, including a reasonable attorney fee. The award is in addition to the compensation or medical and related benefits ordered.
AS 23.30.145(c) provides:
If proceedings are had for review of a compensation or medical and related benefits order before a court, the court may allow or increase an attorney's fees. The fees are in addition to compensation or medical and related benefits ordered and shall be paid as the court may direct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611920/ | 884 P.2d 286 (1994)
Christopher Shane GRAY, Petitioner,
v.
The DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT, and the Honorable John E. Anderson, III, one of the judges thereof, Respondents.
No. 94SA109.
Supreme Court of Colorado, En Banc.
October 11, 1994.
Rehearing Denied November 29, 1994.
*287 David F. Vela, State Public Defender, Natalie Frei, Robin Desmond, Deputy State Public Defenders, Denver, for petitioner.
John E. Anderson, III, Dist. Judge, Cañon City, for respondents.
Edward J. Rodgers, Dist. Atty., Eleventh Judicial Dist., Cañon City, for amicus curiae Dist. Atty., Eleventh Judicial Dist.
*288 Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Farley, Deputy Atty. Gen., John August Lizza, First Asst. Atty. Gen., Thomas S. Parchman, Asst. Atty. Gen., Human Resources Section, Denver, for amicus curiae the State of Colorado.
Colorado Dist. Attys. Council, Raymond T. Slaughter, Executive Director, Katherine M. Clark, Staff Atty., Denver, for amicus curiae Colorado Dist. Attys. Council.
Law Office of Stanley H. Marks & Richard A. Hostetler, Richard A. Hostetler, Denver, for amicus curiae Colorado Crim. Defense Bar.
Justice VOLLACK delivered the Opinion of the Court.
In this original proceeding pursuant to C.A.R. 21, we issued a rule directing the respondent, the Fremont County District Court, to show cause why it should not be prohibited from requiring petitioner, Christopher Shane Gray (Gray), to disclose to the prosecution psychiatric and psychological examinations and records produced in the course of treatment which occurred prior to the offense at issue.[1] We issued a rule to show cause and now discharge the rule.
I.
Gray is charged with one count of criminal attempt to commit murder in the first degree pursuant to sections 18-2-101 and 18-3-102, 8B C.R.S. (1986), one count of first-degree burglary pursuant to section 18-4-202, 8B C.R.S. (1986), one count of theft pursuant to section 18-4-401, 8B C.R.S. (1986), one count of second-degree kidnapping pursuant to section 18-3-302, 8B C.R.S. (1986), one count of aggravated intimidation of a witness or victim pursuant to section 18-8-705(1)(b), 8B C.R.S. (1986), one count of first-degree assault pursuant to section 18-3-202, 8B C.R.S. (1986), one count of second-degree burglary pursuant to section 18-4-203, 8B C.R.S. (1986), one count of first-degree trespass pursuant to section 18-4-502, 8B C.R.S. (1986), and five counts of violent crime pursuant to section 16-11-309, 8A C.R.S. (1986).
On November 17, 1993, Gray entered a plea of not guilty by reason of insanity and asserted the affirmative defense of impaired mental condition. He also filed a motion to suppress medical records of his psychiatric hospitalization in 1990, when at such time, he was evaluated and treated for mental health problems. Approximately six weeks later, Gray filed a motion for a constitutional interpretation of section 16-8-103.6, 8A C.R.S. (1994 Supp.).
At the hearing on the motion requesting a constitutional interpretation of section 16-8-103.6, the prosecuting attorney asserted that, pursuant to section 16-8-103.6, the prosecution is entitled to any records of any examinations ever performed on Gray in his lifetime that may deal with any psychological condition which might support a plea of not guilty by reason of insanity or not guilty by reason of impaired mental condition. Conversely, Gray contended that such an interpretation violates his right to effective assistance of counsel.
The district court denied Gray's motion to suppress the medical records regarding his 1990 psychiatric hospitalization. The district court ruled that the physician/psychologist-patient and attorney-client privileges do not apply to psychiatric and psychological examinations conducted before the date of the offenses in question, regardless of whether the defense intends to call a defense-retained psychiatrist as an expert witness. The district court additionally ruled that section 16-8-103.6 does not violate Gray's Sixth Amendment right to effective assistance of counsel. The district court later supplemented its order and ruled that, because Gray had placed his mental condition at issue by pleading not guilty by reason of insanity and by asserting the affirmative defense of impaired mental *289 condition, he had impliedly waived his right to assert any privilege.
Gray thereafter filed a petition for relief in the nature of a writ of prohibition pursuant to C.A.R. 21, and a request to stay proceedings pending resolution of this petition. We ordered the district court[2] to show cause why the relief requested in the defendant's petition should not be granted.
We now conclude that the admission of hospital records and psychiatric testimony neither violates the attorney-client privilege nor deprives the defendant of his constitutional right to effective assistance of counsel.
II.
SCOPE OF THE ATTORNEY-CLIENT PRIVILEGE
Gray argues that the attorney-client privilege under section 13-90-107(1), 6A C.R.S. (1987), applies to communications between a defendant and the physician or psychologist who is evaluating the defendant's mental condition at the request of the defense. Gray relies on two casesMiller v. District Court, 737 P.2d 834 (Colo.1987), and the dissent in People v. Fuller, 791 P.2d 702 (Colo.1990)to support his contention. Gray further contends that this court should narrowly construe section 16-8-103.6 and requests this court to interpret the statute consistently with the dissenting opinion in People v. Fuller. Gray additionally contends that his insanity or impaired mental condition defense does not create a waiver of the communication protection afforded under the attorney-client privilege.
In reexamining Miller and Fuller, we note that Miller was decided at the same time the legislature was enacting sections 13-90-107(3), 6A C.R.S. (1987), and 16-8-103.6, 8A C.R.S. (1994 Supp.). In Miller, we recognized that the attorney-client privilege extends to communications between the client and agents of the attorney and held that a defendant's disclosures to a psychiatrist retained by defense counsel to perform a mental status evaluation of the defendant's condition, but whom the defense did not intend to call as a witness at trial, were protected. Miller, 737 P.2d at 838. This holding was based on the fact that the psychiatrist is an agent of defense counsel for purposes of the attorney-client privilege. We additionally found that the defendant's assertion of an impaired mental condition defense did not create an implied waiver of his right to assert the attorney-client privilege as to disclosures made to a defense-retained psychiatrist since to hold otherwise would compromise a defendant's ability to communicate freely and confidentially with a psychiatrist retained to assist the defense. We therefore concluded that, absent a waiver of the privilege, the psychiatrist could not be forced to reveal disclosures made to him by the defendant.
In People v. Fuller, 791 P.2d 702 (Colo. 1990), the defendant claimed that section 16-8-103.6, 8A C.R.S. (1989 Supp.), violated his right to effective assistance of counsel because the language of the statute created uncertainty as to whether statements made by a defendant during the course of a medical examination by a defense-retained psychiatrist would have to be disclosed to the prosecution. Fuller argued that the uncertainty of the statute, coupled with the trial court's refusal to rule on the issue, hampered defense counsel's investigation concerning Fuller's mental condition and therefore violated his constitutional right to effective assistance of counsel. Because Fuller did not raise an impaired mental condition defense subsequent to the denial of his challenge of the constitutionality of the statute, a majority of this court found that Fuller lacked standing to challenge the constitutionality of the statute on appeal.
Three justices dissented and, in analyzing the language of section 16-8-103.6, determined that section 16-8-103.6 implied a waiver of the defendant's claim to confidentiality *290 arising from communications with a physician or psychologist during court-ordered examinations in preparation for trial. The dissent concluded that such an interpretation would violate a defendant's Sixth Amendment right to counsel based on Miller and Hutchinson v. People, 742 P.2d 875 (Colo. 1987). Fuller, 791 P.2d at 711-12.
The common law attorney-client, physician/psychologist-patient privileges have been codified in Colorado by section 13-90-107(1), 6A C.R.S. (1987). This statute defines these privileges and delineates their scope, as follows:
(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
....
(d) A physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient....
....
(g) A licensed psychologist shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment....
The purpose of the attorney-client privilege is to promote candid and open discussion between the client and the attorney. The attorney-client privilege applies only to confidential communications by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations. Lanari v. People, 827 P.2d 495, 499 (Colo.1992).
In 1987, the legislature enacted section 13-90-107(3):[3]
The provisions of paragraphs (d) [physician privilege] and (g) [psychologist privilege] of subsection (1) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S. Physicians and psychologists testifying concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S. do not fall under the attorney-client privilege in paragraph (b) of subsection (1) of this section.
Section 13-90-107(3)[4] applies to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to 16-8-103.6 and does not limit the time frame for the medical examination. Section 16-8-103.6, 8A C.R.S. (1994 Supp.), states in pertinent part:
Waiver of Privilege: A defendant who places his mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5,... waives any claim of confidentiality or privilege as to communications made by him to a physician or psychologist in the course of examination or treatment for such mental condition for the purpose of any trial or hearing on the issue of such mental condition. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.
Our analysis of this case is not governed by our decision in Miller since Miller was based on the statutory attorney-client privilege which, after Miller was decided, was amended. We therefore find Miller neither *291 controlling authority on the issue of the attorney-client privilege nor persuasive in interpreting Colorado's revised attorney-client privilege statute.
We now review the legislative history of section 16-8-103.6, which reveals that the statute is intended to provide for broad disclosure. House Bill 87-1233 was introduced in the 1987 legislature,[5] and hearings were held concerning it by a subcommittee of the Senate Judiciary Committee. In the Senate Committee on Judiciary Hearings, Deputy District Attorney Dan May, from the Fourth Judicial District, testified about the purpose of the statutory changes.
[W]hat our Bill needs to do is say, listen[,] if you want to plead insanity, fine.... Let's find out what the truth is. Let's see all these doctors' reports.... What we're trying to prevent is to allow the defendant to manipulate the system....
....
... What this is is really just to get at the truth.... [If a defendant asserts an insanity defense,] then [the defendant] open[s] the door. If [the defendant] want[s] to use [the insanity defense] as a benefit to [him,] then we say, OK, let's see if that's the truth or at least get all the information that there is on it. It opens the door in the impaired mental condition, in the insanity and in the competency [proceeding]....
....
... [Section] XX-XX-XXX[:] This is a privilege statute ... [;] all [it does] is ma[k]e it clear ... that if they want to plead insanity, impaired mental condition[,] or incompetency [the] psychiatrist or psychologist or physician is not bound by the confidentiality....
A plain reading of sections 13-90-107(3) and 16-8-103.6 demonstrates that the statutory attorney-client privilege does not extend to communications made to physicians or psychologists who are eligible to testify concerning a criminal defendant's mental condition once that mental condition has been asserted as a plea or defense. We therefore hold that Gray's medical records of psychiatric evaluations and treatments are not within the ambit of the attorney-client privilege.[6] Our holding is consistent with public policy considerations which weigh heavily in favor of the disclosure of Gray's medical records. The fundamental purpose of a criminal trial is the fair ascertainment of the truth, and the trier of fact should not be deprived of valuable evidence or witnesses.[7]
*292 III.
WAIVER
We next address Gray's argument that by pleading not guilty by reason of insanity or by asserting impaired mental condition, he waived neither the attorney-client nor the physician/psychologist-patient privilege.
In its order, which interpreted section 16-8-103.6, the district court stated:
The assertion in the Fuller dissent that the legislature intended waiver to be limited to examinations under subsection [16-8-]103.5(4) is not supportable on any basis. The examination to be undertaken under that subsection is ordered by the court pursuant to section 16-8-106. So it must be asked ... whether any defendant has successfully asserted a privilege with regard to section [16-8-]106 examinations, other than the privilege against self-incrimination set forth in subsection [16-8-]106(2). And since the answer is no, it seems highly unlikely that the legislative purpose in enacting section [16-8-]103.6 was to provide for waiver of a privilege which has never existed.
....
Under section [16-8-]103.6 those eligible to testify are any physicians or psychologists who have examined or treated the defendant post-offense for the mental condition at issue.... There is no language of limitation excluding defense physicians or psychologists.
... [A]s the legislature has provided at section [16-8-]103.6, waiver of privilege or confidentiality occurs when the defendant places his mental condition at issue.
Waiver ... extends not only to the physician and psychologist privilege, but to the attorney-client privilege as well. See added subsection 13-90-107(3).
(Emphasis added.)
In its order addressing Gray's motion to suppress his 1990 hospital records, the district court ruled:
[T]he prosecutor seeks to have the [District] Court extend the waiver of section 16-8-103.6 to otherwise privileged communication made even prior to the date of offense.... [T]he Court remains unconvinced that the legislature necessarily intended section 16-8-103.6 to apply to communications prior to the date of [the] offense....
Nonetheless, since this Defendant has placed his mental condition at issue both by virtue of his plea of not guilty by reason of insanity and by giving notice of the affirmative defense of impaired mental condition, there is an implied waiver with regard to the Charter Hospital records. See Clark[ v. District Court], [668 P.2d 3 (Colo.1983) ].[[8]]
(Emphasis added.)
Section 16-8-103.6, 8A C.R.S. (1994 Supp.), states in pertinent part:
Waiver of Privilege. A defendant who places his mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5,... waives any claim of confidentiality or privilege as to communications made by him to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of *293 any trial or hearing on the issue of such mental condition. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.
Based on a plain reading of the statute, section 16-8-103.6 indicates that the legislature has created a statutory waiver to any claim of confidentiality or privilege, which includes the attorney-client and physician/psychologist-patient privileges. The defendant waives the protection to communications, including medical records, that pre-date and post-date the criminal offense, made by a defendant to a physician or psychologist in the course of examination or treatment. We conclude that, where a defendant tenders his or her mental condition as an issue in the trial, the defendant waives the right to claim the attorney-client and physician/psychologist-patient privileges, and a prosecution's use of testimony of a defense-retained psychiatrist, who is not called by the defendant to testify at trial, is admissible at trial.
The legislative history of and intent behind section 16-8-103.6 lend further support for our holding. The bill's sponsor, Representative Phillips, in presenting her bill to the House Committee on Judiciary, explained the purpose and effect of House Bill 87-1233:
[T]he bill is a matter of opening all evidence to a jury in criminal insanity cases.... [T]he Colorado Supreme Court has twice ruled that a party does not waive a claim of confidentiality when that party places his mental condition at issue in criminal cases.... House Bill 1233 would "waive claims of confidentiality in such cases."
In the Senate Committee on Judiciary hearings, Senator Donley initially moved to amend the bill by adding a new statutory section, section 16-8-103.7, which would have provided that the waiver of the attorney-client privilege only extends to communications between a physician or psychiatrist and his patient which occurred less than two years prior to the commission of the crime. Senator Donley withdrew his proposed amendment to restrict the time period for applying the waiver after discussion by the committee, in which it was explained that the waiver only relates to the mental condition that is being used as a defense. The testimony demonstrates that the legislature intended for the waiver of privilege under section 16-8-103.6 to apply to medical or mental health records that may have even pre-dated the criminal offense.[9]
The legislative history demonstrates that the legislature intended to allow for full disclosure of medical and mental health records concerning the mental condition that the defendant has placed in issue in a criminal case. We therefore hold that, where a defendant tenders a plea of not guilty by reason of insanity or asserts the affirmative defense of impaired mental condition, the defendant waives his right to claim the attorney-client and physician/psychologist-patient privileges pursuant to section 16-8-103.6, and consents to disclosure of pre- or post-offense information concerning the defendant's medical condition.[10]
*294 IV.
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
Gray next maintains that section 16-8-103.6's requirement of the disclosure of defendant's medical examinations by defense-retained psychiatric experts, when the defense does not intend to call the witness or to use the material at trial, infringes on Gray's Sixth Amendment and state constitutional right to counsel. The district court maintains that allowing the prosecution to discover and use a defense-retained expert whom the defense does not intend to call as a witness does not violate a defendant's constitutional right to effective assistance of counsel.
The right to counsel established by the Sixth Amendment to the United States Constitution and Article II, Section 16, of the Colorado Constitution includes the right to effective assistance of counsel in the preparation of a case. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court stated that the "[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Id. at 686, 104 S. Ct. at 2063. Similarly, the Court has considered direct state interferences with counsel's decision-making process to be a Sixth Amendment violation. See, e.g., Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) (holding that court denied defendant effective assistance by preventing defense counsel and defendant from consulting during overnight recess); Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (holding that court violated Sixth Amendment by denying defense right to summation at bench trial); Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961) (holding that ban on direct examination of the defendant violated the Sixth Amendment).
In Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S. Ct. 2906, 2917-18, 97 L. Ed. 2d 336 (1987), the prosecution used a report of a defense-retained psychiatrist to rebut the mental status defense of the defendant where the defendant did not testify at trial. The court rejected the defendant's claim that the use of the report infringed upon his Sixth Amendment rights, noting that the defendant misconceives the nature of the Sixth Amendment right. Id. at 424, 107 S. Ct. at 2918-19. However, the Supreme Court has not considered whether a state's statute which indirectly may affect defense counsel's judgment also violates the Constitution.
In its order, the trial court stated:
*295 If we examine all the legitimate needs of a defendant and his counsel to effective use of expert witnesses as discussed in Hutchinson, there are none that are unduly intruded upon by section [16-8-]103.6 because there exist the substantial protections afforded by subsection [16-8-]107(1).
If, on the other hand, we yield to an absolutist approach and allow not even of a need for improvement in this area, we irrefutably and unnecessarily subjugate the truth seeking process.
It is the opinion of this Court that the statutory scheme now in place does not itself jeopardize a defendant's right to effective assistance of counsel. And claims of ineffective assistance of counsel should ordinarily focus on the facts of individual cases.
In Hutchinson v. People, 742 P.2d 875 (Colo.1987), this court assessed whether the use of a defense-retained handwriting expert, whom the defense did not intend to call as an expert to testify at trial and whom the prosecution wanted to call as a witness, violated a defendant's right to effective assistance of counsel. We held that the prosecution's use of a defense-retained handwriting expert during its case-in-chief, absent a waiver or compelling circumstances, conflicts with the meaningful exchange guaranteed by the Sixth Amendment and Article II, Section 16, of the Colorado Constitution. Id. at 880. This conclusion was based on the analysis that a defense expert may be needed as a defense witness or to rebut a case built upon the "powerful investigative arsenal" of the state. "Consequently, the prosecution should not be permitted to intrude upon this relationship as a matter of course and convert a defense expert into a potential witness-in-chief against the defendant. We can imagine few intrusions more disruptive to the efforts of defense counsel." Id. at 882.
Hutchinson, however, is not dispositive of the right to effective assistance of counsel issue before the court in this case since the defense expert in Hutchinson was offered on the issue of the defendant's guilt, and not on the limited issue of insanity or impaired mental condition. Further, policy considerations dictate full disclosure of mental evaluations performed by psychiatrists originally retained by the defense where a defendant asserts a mental status defense, since, unlike a trial to establish guilt, a defendant is the sole source of evidence concerning his mental condition. The state therefore has a significant interest in obtaining access to these psychiatric evaluations. Lange v. Young, 869 F.2d 1008, 1013 (7th Cir.1989), cert. denied, 490 U.S. 1094, 109 S. Ct. 2440, 104 L. Ed. 2d 996 (1990).
In resolving the question presented, we find instructive cases in other jurisdictions where the criminal defendant presents an insanity defense at trial and advances a claim that the defendant's Sixth Amendment rights were implicated. Many courts have found that statutory schemes similar to Colorado's do not violate a defendant's Sixth Amendment rights. The majority of courts that have reviewed this issue have found that, where the mental state of an accused is an issue in a criminal case, it is "`in the interest of public justice' for the trial court to permit both the Government and the defendant full access to the reports and conclusions" of physicians and psychologists who have evaluated the mental state of the defendant, and such access does not interfere with the defendant's Sixth Amendment guarantees. United States v. Carr, 437 F.2d 662, 663 (D.C.Cir.1970), cert. denied, 401 U.S. 920, 91 S. Ct. 907, 27 L. Ed. 2d 823 (1971); see also Noggle v. Marshall, 706 F.2d 1408 (6th Cir.) (finding that attorney-psychiatrist-client privilege is not mandated by effective counsel requirements), cert. denied, 464 U.S. 1010, 104 S. Ct. 530, 78 L. Ed. 2d 712 (1983); Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981) (concluding that admission of psychiatric testimony neither violated the attorney-client privilege nor deprived the defendant of his Sixth Amendment right to effective assistance of counsel), cert. denied, 455 U.S. 1003, 102 S. Ct. 1636, 71 L. Ed. 2d 870 (1982); State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338 (1990) (holding that there was no violation of right to counsel where the defendant, who asserted an insanity defense, was ordered to disclose statements he made to a defense-retained psychiatrist not endorsed by the defense as a witness. The court stated that, *296 "[i]f [a] defendant asserts an insanity defense, evidence pertaining to that defense must be available to both sides at trial."); State v. Craney, 347 N.W.2d 668 (Iowa) (holding that admission of psychiatric expert's testimony that included expert's opinion on defendant's sanity and diminished capacity, and expert's nonincriminatory observations of the defendant, was proper and did not create a Sixth Amendment violation), cert. denied, 469 U.S. 884, 105 S. Ct. 255, 83 L. Ed. 2d 192 (1984); State v. Dodis, 314 N.W.2d 233 (Minn.1982) (concluding that, where defendant raised a mental illness defense, a defense-retained expert, who had not been called by the defense to testify at trial, could be called as a witness by the prosecution during the mental illness portion of a trial and this procedure is consistent with the attorney-client privilege and constitutional rights to effective counsel).
In Lange v. Young, 869 F.2d 1008 (7th Cir.1989), the Seventh Circuit ruled that as a matter of state law the scope of the attorney client privilegewhich allowed a psychiatrist who interviewed the defendant, but whom had not been called as a defense witness, to be called by the state to testify on the issue of defendant's insanitydoes not violate the defendant's Sixth Amendment rights.
Unlike a trial to determine guilt, in which the state must assemble its evidence apart from any contact with the defendant, the defendant is the sole source of evidence in a trial to determine sanity. The defendant thus has the opportunity to manipulate the information the state receives. The state's ability to call a defense psychiatrist equalizes the advantage reaped by a defendant who asserts the insanity defense.
Id. at 1013.
Additionally, in State v. Carter, 641 S.W.2d 54 (Mo.1982), cert. denied, 461 U.S. 932, 103 S. Ct. 2096, 77 L. Ed. 2d 305 (1983), the court held that the defendant was not deprived of his constitutional right to effective assistance of counsel. In reaching this conclusion, the court recognized:
The fact that [the defendant] in preparing [his] defense ... could ... choose a psychiatrist who might make a report adverse to defense counsel's theory of [the] defense, or that in a psychiatric examination a defendant might speak guardedly or be less than candid with the doctor, knowing that the doctor might turn out to be a witness against him[,] are not considerations of sufficient importance in this case to outweigh and override the stated requirements of fairness, justice and public policy.
Id. at 59.
To deny the prosecution the ability to use such a defense expert simply because the defense does not wish to call the witness would interfere with the truth-seeking process inherent in a criminal trial. Further, any risk of prejudice to the defendant can be diminished by not informing the jury that the expert was originally employed by the defendant. See State v. Schneider, 402 N.W.2d 779, 788 (Minn.1987) ("Experts are not the paid harlots of either side in a criminal case and should not be portrayed in such a light."); People v. Speck, 41 Ill. 2d 177, 242 N.E.2d 208, 221 (1968) ("A witness is not the property of either party to a suit and simply because one party may have conferred with a witness and even paid him for his expert advice does not render him incompetent to testify for the other party."), rev'd in part, 403 U.S. 946, 91 S. Ct. 2279, 29 L. Ed. 2d 855 (1971).
A defendant's mental state at the time of the commission of the crime is at issue in a defendant's sanity or impaired mental condition case. Where the defendant asserts a mental defense, each party has a definite interest in finding out the truth concerning the defendant's mental state at the time the crime was committed. To ascertain the truth, both prosecution and defense counsel need full access to reports concerning defendant's medical history as well as a diagnostic assessment by psychiatric witnesses who treated or examined the defendant before or after the crime concerning the mental condition. Additionally, a psychiatrist who has evaluated a defendant at defense counsel's request shortly after the event may have more valuable information than a doctor who evaluates the defendant at a later time, when intervening factors may bias the defendant's initial perceptions and reactions.
*297 We therefore conclude that the trial court's order in this case to disclose Gray's hospital records, and the Colorado statutory scheme regarding disclosures, do not violate the defendant's constitutional right to effective assistance of counsel pursuant to the Sixth Amendment to the United States Constitution or Article II, Section 16, of the Colorado Constitution.
V.
In summary, we conclude that the admission of hospital records and psychiatric testimony neither violates the attorney-client privilege nor deprives the defendant of his constitutional right to effective assistance of counsel. We therefore discharge the rule.
LOHR, J., concurs in part and dissents in part, and SCOTT, J., joins in the concurrence and dissent.
Justice LOHR concurring in part and dissenting in part:
The majority upholds an order of the trial court denying the defendant's motion to suppress records pertaining to his psychiatric evaluation and treatment prior to the occurrence of his alleged criminal acts. In addition, the majority interprets section 16-8-103.6, 8A C.R.S. (1994 Supp.), to effect a waiver of any attorney-client or physician/psychologist-patient privilege by any defendant who pleads not guilty by reason of insanity or who asserts the affirmative defense of impaired mental condition (in this dissent such a plea and affirmative defense are referred to jointly as the "mental status defense"). Thus, the majority holds that the prosecution may compel discovery of the names of all defense-retained psychiatrists and of all defense-commissioned psychiatric reports regardless of defense counsel's intention to call the examining psychiatrist to testify at trial. Also, the prosecution may use the testimony of these defense experts in its case in chief. Maj. op. at 292-293. I concur with the majority as to the denial of suppression of pre-offense psychiatric records. However, I believe that the majority's interpretation of section 16-8-103.6 violates an accused's constitutional right to effective assistance of counsel. Therefore, I dissent regarding the disclosure of defense instituted psychiatric examinations.
I.
Facts and Procedural History
Christopher Shane Gray ("Gray") is charged with attempt to commit first degree murder, and with the additional crimes of first-degree burglary, theft, second degree kidnapping, aggravated intimidation of a witness or victim, first-degree assault, second degree burglary, first-degree trespass, and five counts of violent crime. See Maj. op. at 288.
On November 17, 1993, Gray entered pleas of not guilty by reason of insanity and asserted the affirmative defense of impaired mental condition. On that same day, Gray filed a motion to suppress medical records from a 1990 psychiatric hospitalization. These records were generated from examinations and treatments that occurred prior to Gray's alleged commission of the offenses at issue. On December 31, 1993, Gray filed a motion for a "constitutional interpretation" of section 16-8-103.6, 8A C.R.S. (1994 Supp.), contending that a construction of this statute that would require him to disclose information concerning examination or treatment by any physician or psychologist whom he does not intend to call at trial would violate certain of his constitutional rights.
The trial court denied Gray's motion to suppress the 1990 pre-offense psychiatric records. The trial court ruled that generally a defendant's pre-offense psychiatric records would be privileged under subsections 13-90-107(1)(d) and (g), 6A C.R.S. (1987 & 1994 Supp.) (physician/psychologist-patient privileges). The trial court held, however, that when a defendant pleads a mental status defense, the defendant implicitly waives any privilege pertaining to pre-offense psychiatric records. In ruling on the motion for a "constitutional interpretation" of section 16-8-103.6, the trial court concluded that a defendant who enters a mental status defense waives any claim of confidentiality or privilege as to communications by the defendant to any physician or psychologist who has *298 examined or treated the defendant post-offense for the mental condition at issue. The waiver, according to the trial court, extends not only to the physician/psychologist-patient privileges but to the attorney-client privilege as well. The trial court further held that its interpretation of section 16-8-103.6 did not contravene an accused's constitutional right to effective assistance of counsel.
Gray filed a petition for relief in the nature of a writ of prohibition pursuant to C.A.R. 21. We ordered the trial court to show cause why the relief requested in the defendant's petition should not be granted.[1] The majority now discharges the rule.
II.
Suppression of Pre-offense Psychiatric Reports
Suppression of pre-offense psychiatric reports is governed by the applicability of the physician-patient privilege as delineated in subsection 13-90-107(1)(d), 6A C.R.S. (1987).[2] Pre-offense psychiatric reports are not affected by the attorney-client privilege, which protects confidential communications between an attorney and a client. See § 13-90-107(1)(b), 6A C.R.S. (1987). We have held that the attorney-client privilege also applies to certain communications between clients and experts engaged by their attorneys. Hutchinson v. People, 742 P.2d 875 (Colo.1987) (handwriting expert hired by defense covered by attorney-client privilege); Miller v. District, 737 P.2d 834 (Colo.1987) (psychiatrist hired by defense counsel is an agent of defense counsel and covered by the attorney-client privilege); Bellmann v. District Court, 187 Colo. 350, 531 P.2d 632 (1975) (insurance investigator hired by insurance company defending client is covered by the attorney-client privilege). The individuals who examined Gray in 1990 were not agents of Gray's attorney. They could not be agents because the offenses with which Gray is charged did not occur until later. Thus, the attorney-client privilege is inapplicable to the issue of whether the psychiatric reports compiled in 1990 should be suppressed.
Subsection 13-90-107(1)(d), which codifies the physician-patient privilege, states, in pertinent part:
A physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient, ...
The purpose of this privilege is to facilitate diagnosis and treatment by protecting the patient from the embarrassment and humiliation that might be caused by disclosure of confidential information. Clark v. District Court, 668 P.2d 3, 8 (Colo.1983); see, e.g., People v. Taylor, 618 P.2d 1127, 1140 (Colo. 1980); Community Hospital Association v. District Court, 194 Colo. 98, 100, 570 P.2d 243, 244 (1977). This privilege prohibits both testimonial disclosures in court and pretrial discovery of information within the scope of the privilege. Clark, 668 P.2d at 8.
The legislature limited the scope of the physician-patient privilege by enacting section 13-90-107(3), 6A C.R.S. (1987):
The provisions of paragraphs (d) [physician privilege] and (g) [psychologist privilege] of subsection (1) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S. Physicians and psychologists testifying concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S. do not fall under the attorney-client privilege in paragraph (b) of subsection (1) of this section.
*299 This statute limits the physician-patient privilege for any testimony covered under section 16-8-103.6, 8A C.R.S. (1994 Supp.). Section 16-8-103.6 effects a waiver of the physician-patient privilege when a defendant pleads a mental status defense. The statute states:
A defendant who places his mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, or raising the question of incompetency to proceed pursuant to section 16-8-110 waives any claim of confidentiality or privilege as to communications made by him to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial or hearing on the issue of such mental condition. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.
The majority holds that once the defendant pleads a mental status defense, this statute requires disclosure of all medical records whether created before or after commission of the criminal offense at issue. The majority states:
Based on a plain reading of the statute, section 16-8-103.6 indicates that the legislature has created a statutory waiver to any claim of confidentiality or privilege, which includes the attorney-client and physician/ psychologist-patient privileges. The defendant waives the protection to communications, including medical records, that pre-date and post-date the criminal offense,...
Maj. op. at 293 (emphasis in original). I have become convinced that this is the meaning of the statute notwithstanding a possible alternative reading of section 16-8-103.6 that the legislature meant to effect a statutory waiver of the privileges only for statutorily required court ordered examinations. See § 16-8-103.5(4), 8A C.R.S. (1994 Supp.); § 16-8-105(1), 8A C.R.S. (1986); People v. Fuller, 791 P.2d 702, 711 (Colo.1990) (Lohr, J., dissenting on issue not addressed by majority).
In People v. Fuller, addressing in dissent the construction of section 16-8-103.6, an issue that the majority did not reach, I first noted that in interpreting statutes we should seek an interpretation that avoids constitutional defects. Although acknowledging that the statutory language seems to suggest the construction here adopted by the majority, I expressed the opinion that "[a]n interpretation of section 16-8-103.6 that would require the defendant to waive his right to confidentiality regarding conversations with a defense expert would violate the sixth amendment." Id.; see infra, part III. Nevertheless, I concede the force of the majority's argument; the construction it adopts reflects the true intent of the legislature.
The majority's construction is reinforced by section 16-8-108(2), 8A C.R.S. (1994 Supp.). This section requires that "[a] copy of any report of examination of the defendant made at the instance of the defense shall be furnished to the prosecution a reasonable time in advance of trial." The previous version of this statute only required the defense to provide the prosecution with copies of any reports or examinations containing information that the defense intended to introduce as evidence or testimony. § 16-8-108(2), 8A C.R.S. (1987) (amended by Ch. 119, sec. 4, § 16-8-108(2), 1987 Colo.Sess.Laws 622, 623). By amending section 16-8-108(2) and enacting section 16-8-103.6, the legislature intended to establish a statutory scheme that would provide the prosecution in cases where the defendant pleads a mental status defense with as full an array of psychiatric information about the defendant as possible.
Although the constitutionality of sections 16-8-103.6 and 16-8-108(2), 8A C.R.S. (1994 Supp.), as they pertain to post-offense examinations of the defendant is in question, see infra, part III, there is no constitutional issue regarding pre-offense examinations. A defendant's right to effective assistance of counsel is not implicated by requiring the defense to provide the prosecution with the defendant's pre-offense psychiatric reports. Therefore, I concur with the majority that a defendant is not entitled to suppression of *300 pre-offense psychiatric reports where the defendant waives the physician-patient privilege by pleading not guilty by reason of insanity pursuant to section 16-8-103, 8A C.R.S. (1986), or asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, 8A C.R.S. (1986 & 1994 Supp.).
III.
Effective Assistance of Counsel and Confidentiality Protections Afforded to Defense Experts
The Sixth Amendment to the United States Constitution and article II, section 16, of the Colorado Constitution guarantee a criminal defendant the right to counsel. Because the right to counsel is essential to ensuring that the accused receives a fair trial, it is well established that the right to counsel includes the right to effective assistance of counsel. E.g., McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14, 25 L. Ed. 2d 763 (1970); Hutchinson, 742 P.2d at 880; People v. Norman, 703 P.2d 1261, 1272 (Colo.1985); People v. White, 182 Colo. 417, 422, 514 P.2d 69, 71-72 (1973). As part of counsel's duty to provide effective assistance to the accused, counsel is required to make reasonable investigations in connection with the case. Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 2066-67, 80 L. Ed. 2d 674 (1984); White, 182 Colo. at 421-422, 514 P.2d at 71. In fact, the American Bar Association Standards for Criminal Justice Prosecution Function and Defense Function, which provides a guide to professional practice, requires defense counsel to conduct a prompt and thorough investigation. ABA standards for Criminal Justice Prosecution Function and Defense Function, standard 4-4.1 (3rd ed. 1993). The Commentary to standard 4-4.1 makes clear the importance of thorough investigation in order for a lawyer to provide effective assistance to a client. The Commentary states, "Effective investigation by the lawyer has an important bearing on competent representation at trial, for without adequate investigation the lawyer is not in a position to make the best use of such mechanisms as cross examination or impeachment of adverse witnesses at trial or to conduct plea discussions effectively." Id. at 183.
Expert psychiatric testimony as to a client's state of mind is a crucial avenue of investigation for a criminal defense attorney. The Fourth Circuit Court of Appeals in United States v. Taylor recognized the importance of expert psychiatric assistance to a criminal defense attorney:
The assistance of a psychiatrist is crucial in a number of respects to an effective insanity defense. In the first place, the presence or absence of psychiatric testimony is critical to presentation of the defense at trial....
Moreover the use of an expert for other, non-testimonial, functions can be equally important. Consultation with counsel attunes the lay attorney to unfamiliar but central medical concepts and enables him, as an initial matter, to assess the soundness and advisability of offering the defense. The aid of a psychiatrist informs and guides the presentation of the defense, and perhaps most importantly, it permits a lawyer inexpert in the science of psychiatry to probe intelligently the foundations of adverse testimony.
United States v. Taylor, 437 F.2d 371, 377 n. 9 (4th Cir.1971); see also Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (state must provide funds for a psychiatric exam of indigent defendant to aid defense in establishing insanity defense).
Because of the importance of expert psychiatric assistance to attorneys when counseling their clients, many courts have held that the results of defense ordered psychiatric exams, where the defense has not elected to introduce these findings at trial, are privileged under the attorney-client privilege. These courts have held this information privileged in cases where the defendant has pled not guilty by reason of insanity. See United States v. Alvarez, 519 F.2d 1036 (3rd Cir. 1975) (admission of testimony of psychiatrist who conducted examination of accused at behest of defense attorney in trial where defendant pled insanity was error); People v. Lines, 13 Cal. 3d 500, 119 Cal. Rptr. 225, 531 P.2d 793 (1975) (results of defense-requested *301 psychiatric examination in trial where defendant pled insanity not discoverable); State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979) (psychiatrist's testimony in trial where defendant pled insanity covered by defendant's attorney-client privilege even though psychiatric exam ordered by court on defense attorney's motion); State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957) (where psychiatrist was engaged by defendant's attorneys, mental diagnosis and opinion were privileged under the attorney-client privilege and privilege was not waived by defendant testifying at trial); see also Houston v. State, 602 P.2d 784 (Alaska 1979); Pouncy v. State, 353 So. 2d 640 (Fla.Dist.Ct.App.1977); People v. Knuckles, No. 73616, 1994 WL 46880 (Ill. Feb. 17, 1994); State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979); People v. Hilliker, 29 Mich.App. 543, 185 N.W.2d 831 (1971). We have also held prior to the enactment of section 16-8-103.6, 8A C.R.S. (1994 Supp.) that a defendant's disclosures to a defense-retained psychiatrist are privileged under the attorney-client privilege even in cases where the defendant pleads a mental status defense. Miller, 737 P.2d at 838.
The attorney-client privilege is closely related to the right to counsel guaranteed by the United States Constitution and the Colorado Constitution. U.S. Const. amend. VI; Colo. Const. art. II, § 16. We recognized this connection in Hutchinson, in which we stated:
We believe the confidentiality and loyalty of expert consultants traditionally enjoyed by defendants and defense counsel is a crucial element in the effective legal representation of the defendant. A relationship of trust permits the defendant, counsel and the expert to engage in a full and frank interchange, affording counsel an accurate and honest assessment of the defendant's case. Without such a relationship, the assistance of the expert, and thus defense counsel, is likely to be ineffective.
742 P.2d at 882. In this statement we acknowledged the importance of the attorney-client privilege to ensuring the effective assistance of counsel. In Hutchinson, we held that the attorney-client privilege extends to the findings of a handwriting expert hired by the defense. The attorney-client privilege barred the prosecution from calling in its case in chief an expert witness hired by the defense.
Although Hutchinson dealt specifically with the need for a handwriting expert, we identified the importance of expert testimony for an attorney in a variety of contexts:
Criminal cases commonly involve complex issues revolving around medical, psychiatric, scientific or accounting concepts. Frequently, in these types of cases, it is not only desirablebut absolutely vitalthat a defense attorney consult an expert for guidance and interpretation. Without such assistance, an attorney may be unable to rationally determine technical and evidentiary strategy or to properly prepare for cross examination of the prosecution's witnesses or for presentation or rebuttal of physical evidence.... Consequently, it cannot be denied that a defense counsel's access to expert assistance is a crucial element in assuring a defendant's right to effective legal assistance, and ultimately, a fair trial.
Id. at 881 (citations omitted and emphasis added).
Other courts have recognized the connection between protecting psychiatric testimony under the attorney-client privilege and the Sixth Amendment right to counsel in the insanity defense context. In Alvarez, the Third Circuit Court of Appeals wrote:
We see no distinction between the need of defense counsel for expert assistance in accounting matters and the same need in matters of psychiatry. The effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting.... But when, as here, the defendant does not call the expert the same privilege applies with respect to communications from the defendant as applies to such communications to the attorney himself.
519 F.2d at 1046; see also People v. Fuller, 791 P.2d 702, 711 (Colo.1990) (Lohr, J., dissenting); Knuckles, No. 73616, 1994 WL *302 46880, at 5; Pratt, 398 A.2d 421, 423; State v. Mingo, 77 N.J. 576, 392 A.2d 590, 592-594 (1978).[3] These courts have recognized that requiring the defense to provide the findings of its psychiatric experts to the prosecution severely compromises the defendant's right to effective assistance of counsel. A defense attorney's ability to investigate a case fully is substantially impaired if the attorney must risk production to the state of any prejudicial information discovered. This creates an impermissible pressure on attorneys to curtail their investigative efforts in order to avoid producing evidence for the prosecution.
The majority asserts in holding that section 16-8-103.6 does not violate an accused's right to effective assistance of counsel that this statute is necessary to promote the discovery of the truth. The majority argues that because the accused is the sole source of evidence to determine sanity, there is the potential for the defendant to obfuscate the truth by manipulating the information the state receives. Maj. op. at 296. In addition, the majority contends that the "interest of public justice" compels full disclosure of psychiatric evaluations in contrast to the protections afforded to other expert testimony. Maj. op. at 295. The majority also maintains that our holding in Hutchinson, that expert testimony is covered under the attorney-client privilege, is not dispositive of the present case. The majority states that in Hutchinson the defense expert's information was offered on the issue of the defendant's guilt rather than the limited issue of insanity as is the case here. Maj. op. at 295.
I find the majority's reasoning unpersuasive. First, the legislature has provided the prosecution with adequate access to psychiatric information about the defendant. Section 16-8-103.5(4), 8A C.R.S. (1994 Supp.), requires the court to order a defendant who pleads the defense of impaired mental condition to be examined pursuant to section 16-8-106, 8A C.R.S. (1986 & 1994 Supp.). Section 16-8-105(1), 8A C.R.S. (1986), requires the court to commit a defendant who pleads not guilty by reason of insanity for a sanity investigation. This sanity investigation is also conducted in compliance with section 16-8-106. Section 16-8-106(1), 8A C.R.S. (1994 Supp.), provides for a thorough examination of the defendant.[4] The prosecuting attorney has full access to reports of these examinations. § 16-8-106(4), 8A C.R.S. (1986). Further, this court has held that the mandatory examination scheme does not preclude the private employment of physicians or psychiatrists by the prosecution with a view toward offering their testimony. Early v. People, 142 Colo. 462, 468-469, 352 P.2d 112, 116, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).[5] In addition to the court ordered examinations, the prosecution is privy to any psychiatric reports the defense elects to use at the sanity trial.[6] § 16-8-108(2), *303 8A C.R.S. (1994 Supp.); People v. Rosenthal, 617 P.2d 551, 555 (Colo.1980). The prosecution may use this information to consult its own experts as well as to cross examine defense experts.
Second, psychiatrists and psychologists are experts in their field. The majority's fears that defendants will be able to manipulate their behavior to such an extent that professional psychiatrists and psychologists will be mistaken as to their sanity are overstated. Maj. op. at 296. I do not believe most defendants are capable of this manipulation or that trained professionals will be so easily deceived.
Third, I find the majority's suggestion that defense psychiatric records are necessary to promote truth because the accused will be more candid with defense experts to be unfounded. Maj. op. at 295, 296. Any extra openness a defendant may have with defense experts will disappear as a result of the majority's ruling. Defense counsel will advise their clients as to the effect of the majority's ruling in this case. Defendants, knowing that the prosecution may be able to use reports from any psychiatrist to whom they speak, will be equally guarded with all experts. The majority's ruling does little to enhance a trier of fact's knowledge as to a defendant's state of mind.
Fourth, the legislature has provided for examination of uncooperative defendants. Section 16-8-106(3), 8A C.R.S. (1986), provides:
When the defendant is noncooperative with psychiatrists and other personnel conducting the examination, an opinion of the mental condition of the defendant may be rendered by such psychiatrists or other personnel based upon such confessions, admissions, and any other evidence of the circumstances surrounding the commission of the offense, as well as the known medical and social history of the defendant, and such opinion may be admissible into evidence at trial. It shall also be permissible to conduct a narcoanalytic interview of the defendant with such drugs as are medically appropriate and to subject the defendant to a polygraph examination.
This provision furthers the truth-seeking process by allowing psychiatric experts to use a variety of methods to ascertain a defendant's "true" state of mind. In addition, this statute also authorizes "psychiatrists and other personnel" to testify as to the results of the narcoanalytic interview and polygraph examination to the extent that the results entered into the formation of their opinions. Id. This provision, by ensuring that the prosecution has reliable psychiatric data about the accused, lessens the prosecution's need for reports from defense-retained experts.
The majority also claims that our holding in Hutchinson, that the prosecution's use of a defense handwriting expert as part of its case in chief violated the defendant's right to effective assistance of counsel, is not dispositive of this case. Maj. op. at 295. The majority distinguishes Hutchinson by stating that the expert opinion in Hutchinson was offered in the guilt phase of a trial and the psychiatric testimony in this case is offered only on the issue of insanity. Id. Although in Hutchinson, we mentioned this guilt/sanity distinction, we did so only to distinguish non-controlling cases. 742 P.2d 875, 885. There is no significant difference between the guilt and sanity phases of a trial that justifies the majority's ruling.
We considered a similar argument in People ex rel. Juhan v. District Court, 165 Colo. 253, 263-270, 439 P.2d 741, 746-750 (1968). In Juhan we held a statute that required a defendant to prove insanity beyond a reasonable doubt to be unconstitutional. While doing so we considered and disposed of the argument that there is a difference between the guilt and insanity phase of trial that justifies a different constitutional standard. We stated:
The argument is made that in a criminal case, even though insanity is a full and complete defense, where that issue by statute must be tried separately no defendant *304 can be found guilty, and for that reason "due process of law" does not require that this very material ingredient of guilt must be established beyond a reasonable doubt. By procedurally requiring a separate trial on this issue of mental capacity to commit any crimewhich admittedly is a necessary ingredient of any offensein some mystical way, it is argued that the material ingredient thus set apart for separate trial shall be governed by rules wholly inapplicable to all other necessary ingredients of the completed offense to be thereafter adjudicated; and this is urged notwithstanding the firmly established doctrine that as to every necessary ingredient of the total crime there must be proof beyond a reasonable doubt.
Id. at 264, 439 P.2d at 747. In Juhan we recognized that in the separate sanity trial the guilt of the defendant as to mental capacity to commit a crime is being finally determined. Id. at 263, 439 P.2d at 746. For this reason we held that the defendant's right to due process and the attendant requirement of proof beyond a reasonable doubt is applicable to the sanity phase of a trial as well as to the guilt phase. The same reasoning should apply in the present case.
A defendant's liberty is equally at stake in both the guilt and sanity phases of trial. A defendant's need for effective assistance of counsel is equally grave. Because the defendant's legal culpability is being decided in both the guilt and insanity phases of trial, a defendant's constitutional right to effective assistance of counsel should be protected in both. Thus, the right of a defense counsel to consult with experts without fear of compelled disclosure should apply here.
Finally, the majority bases much of its decision on ensuring the viability of the truth-seeking process. Maj. op. at 296. Truth-seeking of course is important. However, the criminal justice system is based on the principle that truth seeking is best achieved through the adversarial process. "`The very premise of our adversary system of criminal justice is 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.'" United States v. Cronic, 466 U.S. 648, 655, 104 S. Ct. 2039, 2045, 80 L. Ed. 2d 657 (1984) (quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555, 45 L. Ed. 2d 593 (1975)). Allowing defense counsel to consult freely with their own experts will promote truth seeking through the adversary process. As we stated in Hutchinson:
Therefore, we cannot approve the use of defense counsel's expert in the fashion employed in this case [prosecution used defense handwriting expert in case in chief]. Such a practice is inconsistent with the meaningful adversarial exchange guaranteed by the sixth amendment and article II, section 16 of the Colorado Constitution. As the Supreme Court has said, when the judicial process loses its character as confrontation between adversaries, the right to counsel has been violated.
742 P.2d at 882 (citing Cronic, 466 U.S. at 656-57, 104 S. Ct. at 2045-46). Requiring disclosure of defense-procured psychiatric information erodes the adversarial process by compromising a defense counsel's ability to investigate a case and advise a client. Shielding this information will ensure effective advocacy and thus promote truth seeking.
The arguments advanced by the majority do not persuade me of the correctness of the cramped scope that it recognizes for a defendant's constitutional right to effective assistance of counsel. As explained above, the improvement to the truth seeking process is minimal and the detriment to the defendant and the criminal justice system is great. Absent a compelling necessity on the part of the prosecutionnot present hereI would hold that compelled disclosure of non-testifying defense psychiatric expert reports and prosecutorial use of these experts in its case in chief violates a defendant's constitutional right to effective assistance of counsel. To the extent that sections 16-8-103.6 and 16-8-108(2), 8A C.R.S. (1994 Supp.), require disclosure and allow the prosecution to use this testimony, I would hold these provisions unconstitutional.
SCOTT, J., joins in this opinion.
NOTES
[1] This court has original jurisdiction to issue a writ of mandamus or prohibition "where the district court is proceeding without or in excess of its jurisdiction," C.A.R. 21, and "where the trial court has abused its discretion and where an appellate remedy would not be adequate." Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902, 905 (Colo.1992); see also People v. District Court, 790 P.2d 332, 334-35 (Colo.1990); White v. District Court, 695 P.2d 1133, 1135 (Colo. 1984).
[2] The petition names as respondents in this case "The District Court of the Eleventh Judicial District, and the Honorable John E. Anderson III, one of the judges thereof." We refer to the respondents collectively as "Fremont County District Court" or "district court." Amici curiae briefs in support of respondents, opposing the relief sought by Gray, were filed by the District Attorney for the Eleventh Judicial District, the State of Colorado (through the Colorado Attorney General), and the Colorado District Attorneys Council.
[3] Act approved May 16, 1987, ch. 119, sec. 5, 1987 Colo.Sess.Laws 623.
[4] The statutory scheme contemplates that a psychiatric or psychological examination of a defendant by a defense-retained psychiatrist, acting as an agent of defense counsel, does not fall under the umbrella of the attorney-client privilege.
[5] Act approved May 16, 1987, ch. 119, sec. 1, 1987 Colo.Sess.Laws 622.
[6] Section 27-10-120, 11B C.R.S. (1989), additionally supports our determination that the prosecution is entitled to Gray's 1990 psychiatric hospitalization records. Section 27-10-120 provides:
Records....
(2)(a) Nothing in this article shall be construed as rendering privileged or confidential any information (except written medical records and information which is privileged under section 13-90-107, C.R.S.) concerning observed behavior which constitutes a criminal offense committed upon the premises of any facility providing services under this article or any criminal offense committed against any person while performing or receiving services under this article.
(b) The provisions of subsection (1) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to section 16-8-103.6, C.R.S.
[7] In State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338 (1990), the court reaffirmed its holding in State v. Bonds, 98 Wash.2d 1, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831, 104 S. Ct. 111, 78 L. Ed. 2d 112 (1983), that, where the defendant raises an insanity defense, the testimony of the defense's psychiatric expert is not protected under the attorney-client privilege. In Bonds, the court determined that the public interest in disclosure outweighs the privilege and found convincing the reasoning in Stephen A. Saltzburg, Privileges and Professionals: Lawyers and Psychiatrists, 66 Va.L.Rev. 597, 635-42 (1980), where the author argues
that the defense psychiatrist's examination of defendant is likely to be more accurate on the issue of insanity than that of the prosecution's. The defense psychiatrist will generally examine defendant earlier than the prosecution. The examination will thus be closer to the time of the offense, when defendant's recollections are clearer and there is less likelihood that defendant's mental condition has changed. Moreover, a defendant might benefit by undergoing several psychiatric examinations, examining reports of psychiatrists unfavorable to his insanity defense, and tailoring his responses in subsequent examinations more favorably to his defense. Defendant is also likely to be more cooperative with his own psychiatrist and give a more accurate impression of his mental condition. Saltzburg argues, and we agree, that for these reasons all available evidence of defendant's mental condition should be put before the jury.
Pawlyk, 800 P.2d at 341 (quoting Bonds, 653 P.2d at 1035).
We find persuasive Saltzburg's discussion of why full disclosure outweighs the benefits of the attorney-client privilege.
[8] Gray maintains that the trial court's reasoning is faulty and that the trial court misapplied Clark. Clark states:
When the privilege holder pleads a physical or mental condition as the basis of a claim or as an affirmative defense, the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition. The privilege holder under these circumstances has utilized his physical or mental condition as the predicate for some form of judicial relief, and his legal position as to that condition is irreconcilable with a claim of confidentiality....
Clark, 668 P.2d at 10.
[9] For example, Deputy District Attorney May testified:
[Y]ou're looking at who probably has the best knowledge of this particular person.... It is not unusual to confide in [a doctor whom you have seen] for many years prior to doing the crime. [This doctor] probably ha[s] the [most reliable] information of whether [the defendant]... is insane or not. So that's why we didn't put [a] time limit in because we would want to know what that [doctor] has to say as to whether [the defendant] is insane because [that doctor] would probably has the best grasp of whether [the defendant] is [insane]....
[10] The issue of whether the attorney-client privilege should apply to exclude testimony of a defense psychiatrist who is not called by the defense but is called by the prosecution to rebut the defense of mental illness has been considered by a number of state and federal courts in factual situations which are precisely or closely analogous to the situation presented in the present case. We are aware that many courts have held that, when a defendant enters an insanity defense and intends to call psychiatrists to testify as to that issue, the defendant waives the attorney-client privilege and the privilege does not extend to nontestifying defense-retained psychiatrists. See Noggle v. Marshall, 706 F.2d 1408 (6th Cir. 1983) (holding that a guarantee of effective counsel does not insulate from disclosure, on the issue of defendant's sanity, the opinion of a medical expert who was retained by the defense as a potential witness); see also Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987); State v. Craney, 347 N.W.2d 668 (Iowa), cert. denied, 469 U.S. 884, 105 S. Ct. 255, 83 L. Ed. 2d 192 (1984); State v. Carter, 641 S.W.2d 54 (Mo.1982), cert. denied, 461 U.S. 932, 103 S. Ct. 2096, 77 L. Ed. 2d 305 (1983); People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976).
In State v. Carter, 641 S.W.2d 54 (Mo.1982), the Supreme Court of Missouri concluded that the attorney-client privilege does not apply to communications between a client and a defense-retained psychiatrist in an effort to obtain a favorable opinion supporting the defendant's defense of mental disease or defect. The court stated that, had the testimony satisfied the privilege, the defendant, in any event, waived any right to assert any claim of attorney-client or physician-patient privilege by interposing the defense of insanity.
The New York Court of Appeals in People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976), held that, where the defense of insanity was asserted and the defendant offered evidence to establish the claim, a waiver of privilege was effected. Under such circumstances, it concluded, the prosecution is permitted to use a psychiatric expert, who had examined the defendant at his attorney's request, as a witness in rebuttal to another psychiatric witness presented by the defense. The court persuasively presented the waiver rationale:
"When the patient first fully discloses the evidence of his affliction, it is he who has given the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus creating a waiver removing it from the operation of the statute; and once the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose `for when a secret is out[,] it is out for all time[,] and cannot be caught again like a bird, and put back in its cage.... The legislature did not intend to continue the privilege when there was no reason for its continuance and it would simply be an obstruction to public justice.'"
Id. at 25, 350 N.E.2d at 402 (quoting People v. Al-Kanani, 33 N.Y.2d 260, 351 N.Y.S.2d 969, 307 N.E.2d 43 (1973)) (citations omitted).
[1] The order directed the trial court to show cause why the following relief should not be granted: "[W]hy the Fremont County District Court should not be prohibited from requiring Christopher Shane Gray to reveal the results of any confidential, privileged psychiatric examination to the prosecution and from allowing the prosecution the use of psychiatric records of Mr. Gray which were generated from treatment occurring prior to the offenses in question."
[2] My discussion addresses the physician-patient privilege; the reasoning is equally applicable to the psychologist-patient privilege codified in subsection 13-90-107(1)(g), 6A C.R.S. (1994 Supp.).
[3] I recognize that many courts have ruled that prosecutorial discovery and use of defense psychiatric information is not prohibited by the right to effective assistance of counsel. See Maj. op. at 295-296. I am persuaded, however, that the contrary authority upon which I rely is better reasoned and more consistent with effectuation of the protections that the Sixth Amendment right to counsel was adopted to provide.
[4] Section 16-8-106(1) requires: "All examinations ordered by the court in criminal cases shall be accomplished by the entry of an order of the court specifying the place where such examination is to be conducted and the period of time allocated for such examination.... The defendant shall be observed and examined by one or more physicians who are specialists in nervous and mental diseases during such period as the court directs. For good cause shown, upon motion of the prosecution or defendant, or upon the court's own motion, the court may order such further or other examination, including services of psychologists, as is advisable under the circumstances. Nothing in this section shall abridge the right of the defendant to procure a psychiatric examination as provided in section 16-8-108."
[5] Early was decided under 1953 C.R.S. § 39-8-1, and 1953 C.R.S. § 39-8-2 which are the predecessors to sections 16-8-103 and 16-8-105, respectively. Since the two statutory schemes are almost identical, the ruling in Early is equally applicable today.
[6] Section 16-8-108(2) as amended requires the defense to provide the prosecution with any report of examination of the defendant made at the instance of the defense. As stated above, this statute may violate a defendant's constitutional right to counsel. See supra, pp. 299-300. The reasoning in Section III, discussing a defendant's right to effective assistance of counsel as it pertains to the majority's discussion of section 16-8-103.6, is applicable to section 16-8-108(2) to the extent that section 16-8-108(2) requires a defendant to disclose to the prosecution reports of defense-retained psychiatrists which the defendant does not intend to use at trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611926/ | 884 P.2d 23 (1994)
Gordon T. DUBRAY and Linda Dubray, husband and wife, Appellants (Plaintiffs),
v.
Edward G. HOWSHAR and Mary Virginia Howshar, Appellees (Defendants).
No. 93-244.
Supreme Court of Wyoming.
October 28, 1994.
*24 John J. Maier, Torrington, for appellants.
Frank J. Jones, Wheatland, for appellees.
Before GOLDEN, C.J., THOMAS, CARDINE[*] and MACY, JJ., and BROWN, J., Retired.
CARDINE, Justice, Retired.
This case involves an action for personal injury damages arising out of a gunshot wound suffered by Gordon Dubray while patronizing a bar and restaurant in Torrington, Wyoming. The plaintiffs, a married couple, appeal the trial court's grant of summary judgment to the sellers by contract for deed of the bar and restaurant.
We affirm.
I. ISSUES
Appellants, plaintiffs below, raise one issue:
Did the trial court err in granting summary judgment to appellees when appellees are not entitled to judgment as a matter of law and when genuine issues of material fact exist?
II. FACTS
On January 3, 1989, Edward G. Howshar and Mary Virginia Howshar (Howshars), husband and wife, purchased what is now known as the Sugar Hill Restaurant and Lounge (Sugar Hill) located in Torrington, Wyoming. In November 1989, the Howshars orally leased Sugar Hill to Louis, Steve, and Alice Carabajal for a term of six months with an option to renew the lease. On December 6, 1989, Edward Howshar obtained a retail liquor license in his name for Sugar Hill. Also on December 6, 1990, Alice Carabajal (Carabajal) exercised her option to renew the lease from the Howshars. The second lease granted Carabajal an option to purchase Sugar Hill.
On November 8, 1990, Edward Howshar successfully renewed the liquor license for Sugar Hill. That license was valid from December 6, 1990, until December 5, 1991, and was issued to Edward Howshar. On September 30, 1991, Edward Howshar again applied for renewal of the liquor license.
*25 On October 24, 1991, Carabajal exercised her option to purchase Sugar Hill and entered into an installment agreement with the Howshars. The terms of that agreement provided: (1) that Carabajal would pay $10,000.00 down, make monthly installments until principal and interest were satisfied, pay property taxes after the date of the agreement, insure the premises, and maintain the premises in good condition; and (2) that the Howshars provide merchantable title, execute a warranty deed, and give Carabajal possession of the premises. The agreement also contained the following escrow clause:
9. ESCROW PROVISION: A copy of this Agreement, a Warranty Deed executed by Seller, a Quitclaim Deed executed by Purchaser, the abstract of title or title insurance policy, the re-assignment of liquor license and the casualty insurance policy as provided for herein shall be placed in escrow at Tri-County Federal Savings and Loan Association, Wheatland, Wyoming, without liability to said agent except the duty to account. All payments due hereunder shall be paid to the escrow agent for credit to Seller. Upon full performance of the terms of this Agreement by Purchaser, the escrow agent shall deliver all documents to the Purchaser. In the event of any default by Purchaser and upon written demand therefor, all documents shall be delivered to Seller.
In addition, under the agreement the Howshars retained the right to inspect Sugar Hill to insure that Carabajal properly maintained the premises, and they retained a veto power over any transfer or assignment of Sugar Hill or the agreement.
Also on October 24, 1991, the Howshars executed an assignment of Sugar Hill's liquor license to Carabajal. The assignment was made subject to Carabajal's ability to obtain approval for the transfer and required Carabajal to promptly apply for that approval. On November 6, 1991, after the installment sales agreement had been executed, Sugar Hill's liquor license was renewed and issued again in Edward Howshar's name.
Sometime during the evening of January 18, 1992, and the early morning hours of the next day, Gordon Dubray was shot in the right leg by an intoxicated Jose Luis Paramo-Quiroz (hereinafter the gunman) while at Sugar Hill. On January 12, 1993, Gordon Dubray and his wife, Linda Dubray, filed this action against Sugar Hill's owner before the Howshars, the Howshars, Carabajal, the gunman and the owner of the gun.
In their amended complaint, the Dubrays alleged that the Howshars were negligent in supervising Sugar Hill and for entrusting the control and operation of Sugar Hill and its liquor license to Carabajal, that the Howshars violated duties imposed by liquor licensing statutes, and that the Howshars were liable under nuisance statutes.
On May 28, 1993, the Howshars moved for summary judgment and filed supporting affidavits and exhibits. After the Dubrays filed a memorandum opposing summary judgment and supporting documents, the trial court, on September 15, 1993, granted the Howshars' motion for summary judgment and a W.R.C.P. 54(b) certification permitting this appeal. The case against the remaining defendants is still pending in the trial court.
III. DISCUSSION
We sustain summary judgment if: (1) there are no genuine issues of material fact, and (2) based on those undisputed material facts the prevailing party is entitled to judgment as a matter of law. W.R.C.P. 56. Success in negligence actions hinges on proof of four elementsdefendant's duty, defendant's breach of that duty, that the breach proximately caused the alleged injury, and the alleged injury. The failure to establish any one of the four elements is fatal to a claim of negligence. Claassen v. Nord, 756 P.2d 189, 194 (Wyo.1988). The Howshars are, therefore, entitled to summary judgment if the material facts are undisputed and those undisputed facts demonstrate that at least one of the elements of negligence is absent.
The existence of the first element, duty, is a "matter of law for the court to decide." Goodrich v. Seamands, 870 P.2d 1061, 1064 (Wyo.1994) (citing ABC Builders, Inc. v. Phillips, 632 P.2d 925, 931 (Wyo. 1981)).
*26 Common Law Claim
The Dubrays contend that the Howshars have a duty, as holders of legal title to Sugar Hill and as holders of the liquor license, to exercise reasonable care to avoid injuries to others while they are at Sugar Hill. The Howshars, however, assert that because they sold Sugar Hill before Dubray was shot they owed no duty to the Dubrays.
This court has adopted § 353 of the Restatement, Second, Torts to define the standard of care owed by vendors of real property. See ABC Builders, Inc., 632 P.2d at 932; Goodrich, 870 P.2d at 1064. When the purchaser of land (vendee) takes possession of the land, the seller (vendor) has a duty to disclose any natural or artificial condition that creates an unreasonable risk to persons on the land if: (1) the vendee does not know or have reason to know of the condition or the risk, (2) the vendor knows or has reason to know of the condition, (3) the vendor realizes or should realize the risk involved, and (4) the vendor has reason to believe that the vendee will not discover the condition or realize the risk. Goodrich, 870 P.2d at 1064 (citing Restatement, Second, Torts § 353).
The Dubrays contend that the Howshars are not "vendors" but should be classified as owners or lessors of Sugar Hill and subject to a duty of reasonable care under the circumstances because they retained sufficient control over Sugar Hill under the installment contract and by virtue of the liquor license. Legal treatises agree that a "vendor" of real property is one "who parts with title, possession and control" of that property. W. Page Keeton, Prosser and Keeton On Torts § 64 at 446 (5th ed. 1984), Restatement, Second, Torts § 351 comment a. Thus, we must determine whether the Howshars have parted with title, possession and control of Sugar Hill.
It is undisputed that the Howshars no longer possess Sugar Hill and that they executed a warranty deed to Carabajal, which is held in escrow. This court has held:
When property is sold under a valid contract and an escrow created, the purchaser under the contract is the equitable owner and assumes all the risk, including liability of ownership, while the seller holds legal title in trust for the purchaser as security for the performance of the contract.
Mayflower Restaurant, Co. v. Griego, 741 P.2d 1106, 1113 (Wyo.1987) (emphasis added). Therefore, in addition to no longer being in possession of Sugar Hill, the Howshars no longer hold title because Carabajal is the equitable owner.
The Dubrays contend that the Howshars retained control over Sugar Hill and should be treated as owners or lessors because Mr. Howshar's name remains on the liquor license and because the installment contract requires Carabajal to carry insurance, allows for "reasonable inspection," and limits transferability of Sugar Hill. In Anderson v. Cosmopolitan Nat'l Bank of Chicago, 54 Ill. 2d 504, 301 N.E.2d 296 (1973), the Supreme Court of Illinois wrote:
[T]he argument is that those who sell real estate upon installment contracts should be subjected to a different and more strict liability than is imposed upon other vendors * * * because of the significant rights that he retains under his contract. These rights usually include the right to enter and make repairs and to charge the cost to the buyer[,] * * * the right to insure if the buyer fails to do so and, in the event of a default on the part of the buyer, has a simple remedy by which he may regain possession. We are not persuaded by this argument. Substantially similar arguments can be advanced with respect to mortgagees, who have the same or substantially similar rights. That the device of the installment contract as a means of financing the purchase of real estate is subject to abuse, and indeed has been abused, does not mean that it is not a useful credit device or that this court should impose upon a contract seller the liability of an owner of real estate.
Anderson, 301 N.E.2d at 298-99; see also Welz v. Wong, 413 Pa.Super. 299, 605 A.2d 368, 370-71 (1992) (holding that liability of a seller under installment contract is the same as a conventional vendor and quoting Anderson). As to Dubrays' claim that the *27 Howshars retained control over Sugar Hill because of the terms of the installment contract, we find the reasoning of the Illinois Supreme Court to be persuasive. The very limited rights retained by the Howshars under this contract with Carabajal affords them no control over the day to day management of Sugar Hill and should not be a basis for imposing liability.
In addition, the simple fact that Mr. Howshar's name appears on the liquor license does not give him sufficient control over Sugar Hill to support a higher standard of liability. Since the Howshars assigned the liquor license to Carabajal, they obviously did not intend to use, nor have they used, the liquor license as a means to control Sugar Hill. It is also clear that the sales contract with Carabajal was a bona fide sale of property and that the Howshars have not been and are not involved in the day-to-day management and supervision of Sugar Hill.
Having determined that the Howshars have parted with possession, title and control over Sugar Hill, we hold that they are vendors who owed no duty to appellants based upon our pronouncements in ABC Builders, Inc. We are satisfied, based on the undisputed facts, that if anyone had reason to know or knew of the alleged dangerous conditioncareless operation of a liquor establishmentit was Carabajal, the vendee. And there being no dangerous condition of the premises, the Howshars had no duty to disclose as required by § 353 of the Restatement.
Statutory Claim
In addition to their claims of common law duties, the Dubrays assert that Edward Howshar, as the named licensee on the liquor license used at Sugar Hill when Mr. Dubray was shot, violated several provisions of Wyoming's Alcoholic Beverages Act (Title 12) and that those violations proximately caused Mr. Dubray's injuries. The alleged Title 12 violations are: (1) under W.S. 12-4-102(b), W.S. 12-4-201(a), W.S. 12-4-601 and W.S. 12-4-604 (1986), illegal transfer of a liquor license; and (2) under W.S. 12-8-102 (1986), selling liquor without a proper license.
The undisputed evidence demonstrates that Edward Howshar, at the time of Dubray's injury, was not selling liquor without a license and, therefore, was not violating any duty which may have been imposed under W.S. 12-8-102 (1986). The evidence does reflect, however, that Edward Howshar may have been in violation of the statutes governing the transfer of liquor licenses because he may not have obtained prior approval from the licensing authority before assigning the license to Carabajal, as required under W.S. 12-4-601.
In Distad v. Cubin, 633 P.2d 167 (Wyo.1981), this court adopted §§ 286 through 288C of the Restatement, Second, Torts, as guidelines for addressing negligence claims premised on duties created by statutes, regulations or ordinances. Id., at 175; see also Short v. Spring Creek Ranch, Inc., 731 P.2d 1195, 1198-99 (Wyo.1987) and Dubus v. Dresser Industries, 649 P.2d 198, 202 (Wyo.1982). Section 286 provides:
The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
In other words, a statute, regulation or ordinance may be adopted as the standard of care only if "the injured party belongs to the class of persons that the statute was intended to protect, and the injury is of the type that the statute was intended to prevent." Sagebrush Ltd. v. Carson City, 99 Nev. 204, 660 P.2d 1013, 1015 (1983).
Based on these "directions," we must determine whether the four criteria of § 286 are met "because, if * * * not, then the statute imposes no duty of care for the breach of which he will be heard to successfully *28 complain." Dubus, 649 P.2d at 202, and see Short, 731 P.2d at 1198-99. "[E]ven if the court finds that the [four] criteria of § 286 are met, [the court] is not required to adopt [W.S. 12-4-601] as the standard of conduct because of the permissive language of the Restatement 2d." Short, 731 P.2d at 1199 (citing Distad, 633 P.2d 167).
Under W.S. 12-4-604 it is illegal to transfer a liquor license except as directed in W.S. 12-4-601, which provides in part:
(b) A licensee, or the executor or administrator of the estate of a deceased licensee, may assign and transfer the license or permit by a sale made in good faith. The assignment and transfer shall first have the approval of the licensing authority, which consideration shall be based in part upon a public hearing and an application filed under oath by the assignee or transferee showing the person or entity to be qualified to hold a license or permit under Wyoming law. The approval of the transfer shall not be given by the licensing authority if proceedings are pending to suspend, revoke or otherwise penalize the original license or permit holder. A transfer of a license or permit shall not require the payment of any additional license fee for the transfer and upon assignment the assignee may exercise the privilege of continuing the business authorized by the license or permit.
The district court concluded that this statute is purely administrative and, therefore, it does not create a duty from the Howshars, as licensees, to the Dubrays. In McClellan v. Tottenhoff, this court held that several statutes in Title 12, which forbid the sale of liquor to minors, impose a duty on vendors toward the general public. McClellan, 666 P.2d 408, 413 (Wyo.1983). Unlike the statutes in McClellan, W.S. 12-4-601 and -604 are not intended to protect the general public from physical injury. The requirement that liquor licenses only be transferred according to W.S. 12-4-601 serves to assure that the regulatory authorities can administer the licensing process in an orderly fashion and that "the operator of [a] retail liquor establishment * * * be exposed to the scrutiny of the licensing process including a public hearing." Kurpjuweit v. Northwestern Dev. Co., Inc., 708 P.2d 39, 46 (Wyo.1985). Since the purpose of W.S. 12-4-601 and -604 is not to protect against the kind of harm suffered by the Dubraysphysical injury,we decline to adopt those statutes as the Howshars' standard of care.
Nuisance Claim
In their complaint, the Dubrays also asserted claims based on Wyoming's nuisance statutes, W.S. 6-6-201 and 6-6-209, which make it illegal to own, control or lease property "for * * * sale or disposition of intoxicating liquor * * * in violation of law." They allege that the Howshars' violation of the liquor licensing statutes amounts to a nuisance and that it proximately caused Dubray's injuries.
If any nuisance existed, it was not created by the Howshars.
[T]he test of liability for damage caused by a nuisance turns on whether the defendants were in control over the instrumentality alleged to constitute the nuisance, either through ownership or otherwise * * * [and] no one is to be held liable for a nuisance which he cannot himself physically abate without legal action against another for that purpose, unless the nuisance is the result of his own wrongful conduct.
58 Am.Jur.2d Nuisances §§ 117-118 (1989). Although Edward Howshar's name remained on the liquor license, the undisputed facts demonstrate that the Howshars neither owned, controlled, maintained nor leased Sugar Hill at the time that Gordon Dubray was injured. In addition, since the Howshars had sold Sugar Hill under a contract, they were bound by the terms of that contract and would have had to resort to legal proceedings to assert any significant control over Sugar Hill. Therefore, we hold that no action in nuisance lies against the Howshars because they had no control over the alleged nuisance.
IV. CONCLUSION
The district court properly entered summary judgment in favor of the Howshars because the undisputed material facts show that they owed no common law or statutory *29 duty to the Dubrays and, since they had little or no control over Sugar Hill, were not liable for nuisance, if any there was, created at Sugar Hill.
We affirm.
THOMAS, J., files a dissenting opinion.
THOMAS, Justice, dissenting.
The product of the majority opinion is that accountability with respect to compliance with the laws relating to the sale of intoxicating beverages and the transfer of liquor licenses is excused. I do not think that result is appropriate, and I dissent.
The major premise of the majority opinion is that no duty is owed to third persons by a vendor of real property under a contract for deed and, since the Howshars were vendors of real property under a contract for deed, they owed no duty to the Dubrays. The majority opinion eschews any reference to Scranton v. Whitlock, 389 P.2d 1015 (Wyo. 1964). Yet the thrust of Scranton is that, because of the violation of WYO.STAT. § 12-4-601(b) (1986), the very contract upon which the Howshars rely for protection from liability is "illegal, void, and unenforceable." Scranton, 389 P.2d at 1018. As it might apply to the facts of this case, in which the liquor license was held by someone other than the owner of the building in which it was used, Scranton was reaffirmed in Kurpjuweit v. Northwestern Dev. Co., Inc., 708 P.2d 39 (Wyo.1985).
My primary concern, however, is with the application of the statutory provisions relating to local licenses for the sale of alcoholic and malt beverages and the transfers of such licenses. In this regard, it is clear the county liquor license for the Sugar Hill Restaurant and Lounge was issued to Edward G. Howshar. It never was transferred to Alice Carabajal in connection with the sale of the business. WYO.STAT. § 12-4-103 (1986) provides in pertinent part:
(a) A license or permit authorized by this title shall not be held by, issued or transferred to:
* * * * * *
(iii) Any person who does not own the building in which the sales room is located or hold a written lease for the period for which the license will be effective containing an agreement by the lessor that alcoholic or malt beverages may be sold upon the leased premises, except as provided by paragraph (iv) of this subsection * * *. (Emphasis added.)
WYO.STAT. § 12-8-101 (1986) makes violation of any provision of the title a misdemeanor. In this instance, either the Howshars were in violation of the law because they held a license without owning the building in which the sales room was located; they were aiding and abetting a violation of the law by Carabajal for selling liquor without a license; or Carabajal was the Howshars' agent in the operation of the Sugar Hill Restaurant and Lounge. I would rather assume that any unlawful activity was not intended or undertaken, and Carabajal was the Howshars' agent. Since the complaint encompasses an adequate allegation of agency, the liability of the Howshars should be submitted to trial like any liability of Carabajal.
My understanding of our prior decisions in this area is that we have adopted a policy that demands accountability by the vendor of alcoholic beverages. White v. HA, Inc., 782 P.2d 1125 (Wyo.1989); Mayflower Restaurant Co. v. Griego, 741 P.2d 1106 (Wyo.1987); McClellan v. Tottenhoff, 666 P.2d 408 (Wyo. 1983); Fisher v. Robbins, 78 Wyo. 50, 319 P.2d 116 (Wyo.1957). In Tottenhoff, 666 P.2d at 412, we described "a duty to exercise the degree of care required of a reasonable person in light of all the circumstances." In the seminal case of Fisher, 319 P.2d at 126, we said:
We do not intend that anything which we have said should be considered as placing us in disagreement with the many well-considered statements from reputable authorities as to the high degree of care which must be exercised by those maintaining places for public patronage, and especially for that class of establishments where experience has shown disturbances of more or less violent character are more likely to occur. This is, of course, particularly true with respect to barrooms and *30 other similar places where intoxicating liquors are consumed, for it is common knowledge that the use of intoxicants frequently unduly excites the tempers, emotions and actions of those who indulge in them.
Apparently, the trial court applied this rule with respect to Carabajal. If the issue of liability is to be tried as to Carabajal, it follows that the vicarious liability of the Howshars must also be tried.
Applying the accountability of a vendor to the holder of the liquor license constitutes an appropriate extension of our policy, particularly in an instance such as this in which the only lawful utilization of the license would constitute the vendor the agent of the holder of the license. I cannot agree the case is appropriately resolved under rules relating to the ownership of real property, and I dissent from the decision of the majority.
I would reverse the case and remand it to the district court for trial on the question of the vicarious liability of the holder of the liquor license.
NOTES
[*] Retired July 6, 1994. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3342136/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
This matter comes before the Court on plaintiff's motion to substitute party plaintiffs and request for leave to amend.
Two Connecticut cases are determinative of the issues presented by plaintiff's motion and request. In Berlinski v. Ouellette, 164 Conn. 482 (1973) and Ciulewicz v. Doyle, 172 Conn. 177 (1976), the Court found that the assignment of a claim for personal injuries was barred as a matter of public policy.
The court, in Berlinski, at page 485, stated:
"Regardless of form and the protective coloration employed by use of the term `trust agreement,' it is an inescapable conclusion that the trust agreement purported to transfer from the plaintiff to Allstate the right to pursue at Allstate's own expense and by its own choice of counsel, and in the name of the plaintiff, the plaintiff's cause of action against the defendants to recover for itself damages for all his personal injuries and retain for itself any damages it recovered to the extent of its payment to the plaintiff. By whatever name the parties chose to call the agreement and the transfer of the cause of action, it CT Page 7984 was in essence an assignment of a cause of action for personal injuries and, in the absence of legislative change in the common-law rule against such an assignment is contrary to public policy and impermissible."
The Court further stated that there was no difference between the effect of subrogation and assignment, opining that while subrogation and assignment each have certain technical differences, each operates to transfer from one person to another a cause of action against a third person.
Similarly, in Ciulewicz, supra, the court, in refusing to distinguish it from Berlinski, said:
"We believe, however, that this case cannot be distinguished from Berlinski and the principles of law as stated in that case lead us to find no error on the present appeal. While the arbitration award had the force of a judgment as between the plaintiff and the insurance carrier, it had no such effect on the defendant. The present suit is not based on the arbitration award but on the underlying personal injury claim which the trust agreement purported to assign. That the dispute between the plaintiff and the insurance carrier was resolved by arbitration rather than by agreement does not alter the aspects of the personal injury claim assignment found illegal in Berlinski." Id. at 180-181.
Plaintiff's motion and request are denied.
Mihalakos, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2609705/ | 526 P.2d 1318 (1974)
Gladys Beatrice McLEOD, Individually and as mother and next friend of Gregory J. McLeod, et al., Petitioners,
v.
PROVIDENT MUTUAL LIFE INSURANCE COMPANY OF PHILADELPHIA and Beverly A. McLeod, Respondents.
No. C-438.
Supreme Court of Colorado, En Banc.
September 30, 1974.
Rehearing Denied October 21, 1974.
*1319 Gorsuch, Kirgis, Campbell, Walker & Grover, Bennett S. Aisenberg, Denver, for petitioners.
Keller & Dunievitz, Lionel Dunievitz, Alex Stephen Keller, Denver, for respondents.
LEE, Justice.
Certiorari was granted to review the decision of the Court of Appeals in Provident Mut. Life Ins. of Philadelphia v. McLeod, Colo.App., 515 P.2d 482. We reverse.
The underlying lawsuit involves an interpleader action commenced by respondent Provident Mutual Life Insurance Company of Philadelphia (Provident Mutual) to determine the proper beneficiaries of the proceeds of a life insurance policy.
Provident Mutual, in 1961, issued a life insurance policy in the amount of $10,000 on the life of Robert W. McLeod. The primary beneficiary named in the policy was the insured's wife, Gladys B. McLeod, petitioner herein. The insured's five children, Robert W. McLeod, Jr., Shelley A. McLeod, Gregory J. McLeod, Roger B. McLeod and Bruce C. McLeod, were named as contingent beneficiaries.
On August 2, 1966, a divorce was granted to petitioner, and on August 5, 1966, the court entered a decree providing for a division of property, custody, support money, permanent alimony, and attorney's fees. The court found, among other findings, that Robert W. McLeod was the owner of the above described insurance policy, and it decreed that he should designate his minor children as beneficiaries of the insurance policy and should maintain the children as beneficiaries until the youngest child attained the age of 21 years. He was further ordered to pay all premiums on the policy as the same became due. Neither party appealed from the decree on permanent orders.
McLeod did not comply with this portion of the court's decree ordering the designation of his minor children as primary beneficiaries of the insurance policy. Instead, in December 1966, he executed an irrevocable change of beneficiary, naming his new wife, Beverly A. McLeod, respondent herein, as the primary beneficiary and his five children as the secondary beneficiaries under the insurance policy.
In the interpleader proceedings, the parties stipulated that the Provident Mutual policy had a cash value of $500 at the time of the entry of the decree on permanent orders. It was further stipulated that petitioner and the minor children had no knowledge of the fact that on December 9, *1320 1966, Robert W. McLeod changed the primary beneficiary of the policy to respondent Beverly A. McLeod.
McLeod died in Mexico in May of 1971. His wife, Beverly, survived him and refused to release her rights under the insurance policy to petitioner, who claimed the proceeds as the mother and natural guardian of the children, pursuant to the provisions of the decree of court. Provident Mutual then instituted this interpleader action pursuant to C.R.C.P. 22 to determine which of the claiming parties had the right thereto.
The district court ruled that the trial court in the divorce action had no jurisdiction to enter the order requiring the designation of the minor children of the parties as primary beneficiaries under the insurance policy. It held that this portion of the decree was absolutely void, that it could be attacked in the interpleader proceeding, and that it had no binding effect upon any of the parties.
The Court of Appeals affirmed the judgment, holding that the order of the trial court exceeded its authority, was in excess of the court's jurisdiction, and was therefore void.
We agree with petitioners' contention that the Court of Appeals erred in affirming the trial court's holding that the order relating to the insurance policy was void. In our view, the order was merely voidable. Inasmuch as there was no direct attack upon the decree by writ of error or appeal, it became a final decree and was not subject to collateral attack in the interpleader action.
In Estate of Lee v. Graber, 170 Colo. 419, 462 P.2d 492, the test by which the validity or voidness of a judgment is measured is stated as follows:
"* * * The rule is firmly entrenched in Colorado, as it is elsewhere, that the validity of a judgment depends on the court's jurisdiction of the person and the subject matter of the issue it decides, and a judgment rendered without jurisdiction is void and may be attacked directly or collaterally. Whitten v. Coit, 153 Colo. 157, 385 P.2d 131."
Accord, DeBoer v. District Court, Colo., 518 P.2d 942; Brennan v. Grover, 158 Colo. 66, 404 P.2d 544, cert. denied, 383 U.S. 926, 86 S. Ct. 929, 15 L. Ed. 2d 845; French v. Terriere, 153 Colo. 326, 386 P.2d 352; Whitten v. Coit, 153 Colo. 157, 385 P.2d 131; Hill v. Benevolent League, 133 Colo. 349, 295 P.2d 231; Stokes v. Kingsbury, 63 Colo. 27, 164 P. 313; Clarke v. Asher, 53 Colo. 313, 125 P. 538. See also Hanley v. Four Corners Vacation Properties, Inc., 349 F. Supp. 229 (D.Colo.), aff'd, 480 F.2d 536 (10th Cir.); 46 Am.Jur.2d Judgments § 621. Cf. Restatement of Judgments §§ 5 and 7.
Here, it is clear that in the divorce proceeding the district court had jurisdiction in the fullest sense, not only of the subject matter of the action but also of the parties, both of whom appeared in court and sought relief by complaint and counterclaim for a divorce and for permanent orders relating to division of property, child custody, support money, permanent alimony, and attorney's fees. Thus, as measured by the foregoing test, the judgment of the court was not a void judgment.
This is not to say that the judgment was not subject to correction if irregular or erroneous by reason of improper application of procedural or substantive law. In Davidson Chevrolet v. Denver, 138 Colo. 171, 330 P.2d 1116, this Court refined the distinction between void and voidable judgments, as follows:
"* * * Judgments may be irregular, erroneous or void. An irregular judgment is one rendered contrary to the method of procedure and practice allowed by the law in some material respect. Northcutt v. King, 23 N.M. 515, 169 P. 473. An erroneous judgment is *1321 one rendered in accordance with the method of procedure and practice allowed by the law, but contrary to the law. Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Ealy v. McGahen, 37 N.M. 246, 21 P. (2d) 84.
"Irregular and erroneous judgments necessarily retain their force and have effect until modified by the trial court in consequence of its authority in certain circumstances, People ex rel. Best v. District Court, 115 Colo. 240, 171 P. (2d) 774, or until vacated pursuant to new trial procedures, Rule 59 R.C.P. Colo., or until reversed by an appellate court in review proceedings. Such judgments are subject only to direct attack; they are not vulnerable to collateral assault.
"* * * A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it. Defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or the relief to be granted. A judgment entered where such defect exists has neither life nor incipience, and a court is impuissant to invest it with even a fleeting spark of vitality, but can only determine it to be what it isa nothing, a nullity. Being naught, it may be attacked directly or collaterally at any time. Stubbs v. McGillis, 44 Colo. 138, 96 P. 1005, 18 L.R.A.,N.S., 405, 130 Am. St. Rep. 116.
As tested by the foregoing, the judgment here concerned was an erroneous judgment, and until modified by the court which entered it, or set aside on motion for new trial, or until reversed by an appellate court on direct review proceedings, was valid and binding.
It is clear, as noted by the Court of Appeals, that by decisions of this Court announced subsequent to the entry of the decree on permanent orders in the divorce proceeding it was error for the trial court to order the father to provide insurance benefits for his minor children, as was done in this case. Ferguson v. Olmstead, 168 Colo. 374, 451 P.2d 746; Laws v. Laws, 164 Colo. 80, 432 P.2d 632; Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328.
In each of those cases, this Court on direct review by writ of error set aside similar life insurance requirements to fund support money payments for minor children.
In those cases, language, perhaps imprecise, was used concerning the impropriety of the orders entered. In Ferguson, supra, the rhetorical question used the phrase "in excess of its jurisdiction." In Laws, supra, the language characterized the order as "in excess of the power of the court." And, in Giambrocco, supra, the objectionable order was held to be "beyond the jurisdiction of the trial court." Read without regard to the nature of the appellate proceeding in which the issues were considered, the language would appear to suggest a want of jurisdiction and resulting voidness of the judgment, as contrasted with mere error in the application of law to the issues of the case, resulting only in voidability.
When considered, however, in the procedural context in which those cases were decided, it is clear the judgments being reviewed were erroneous and voidable, rather than void as contended by respondent and held by the trial court and the Court of Appeals.
In the early case of Brown et al. v. Tucker, 7 Colo. 30, 1 P. 221, this Court observed:
"The decided weight of authority is to the effect that when jurisdiction has been obtained by the service of process, actual or constructive, all subsequent proceedings are exercise of jurisdiction, and, however erroneous, they are not *1322 void, but voidable only, and not subject to collateral attack. * * *"
See also Gerbig v. Spelts, 89 Colo. 201, 300 P. 606; Forman v. City of Central, 57 Colo. 535, 143 P. 573; Pinnacle Co. v. Popst, 54 Colo. 451, 131 P. 413; accord, Taggart v. Fugel, 46 Colo. 401, 105 P. 1090; The People v. McKelvey, 19 Colo. App. 131, 74 P. 533; Harter v. Shull, 17 Colo. App. 162, 67 P. 911; Cochrane v. Parker, 12 Colo. App. 169, 54 P. 1027.
Mere errors or irregularities in resolution of the question to be determined or the relief to be granted have not been considered to constitute jurisdictional defects by this Court in the past. As stated in Pinnacle Co. v. Popst, supra:
"Mistakes, errors, or irregularities are not jurisdictional, and, though they might reverse a case on review, will not render the judgment void."
See also Neville v. Bracher, 94 Colo. 550, 31 P.2d 911; Dillingham v. Schmidt, 85 Colo. 28, 273 P. 21; 46 Am.Jur.2d Judgments § 641.
Observance of this rule is required by a due regard for the repute of the courts and the solemnity of judicial proceedings. It "is not merely an arbitrary rule of law established by the courts, but it is a doctrine which is founded upon reason and the soundest principles of public policy." 1 H. Black, The Law of Judgments, ch. 13 § 245. Litigants who acquire rights on the faith of judicial proceedings are entitled to have the integrity of those rights preserved. Moreover, there is a definite public interest in the assured final adjudication of controversies and conclusiveness of judgments. As stated in 1 A. Freeman, Law of Judgments § 305 at 602-03:
"The law aims to invest judicial transactions with the utmost permanency consistent with justice. That the formal pronouncements of legal tribunals upon causes submitted to them should enjoy every possible degree of finality and conclusiveness would seem to be a necessary predicate to the proper functioning of the courts themselves. To permit their decisions to be evaded or disregarded for insufficient cause or in modes not sanctioned by law would tend to disrupt the administration of justice and bring courts into disrepute. Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown."
See also J. Vanfleet, The Law of Collateral Attack on Judicial Proceedings 2; 46 Am. Jur.2d Judgments § 622.
As noted heretofore, there was no challenge to the court's jurisdiction in the present case. The life insurance policy was a marital asset which the court had authority to dispose of in a variety of ways. That the court issued an erroneous order relative to the disposition of the policy did not render the order absolutely void and subject to collateral attack. The order was issued in exercise of the court's jurisdiction. The distinction discussed in Klancher v. Anderson, 113 Colo. 478, 158 P.2d 923, is pertinent here:
"Jurisdiction should be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. * * *
"Since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power, or upon the correctness or rightfulness of the decision made, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly * * *."
For the foregoing reasons, the decision of the Court of Appeals affirming the judgment of the district court is reversed, with instructions that the cause be remanded to the district court with directions to enter judgment awarding the proceeds of the insurance policy to petitioners. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2373960/ | 259 N.J. Super. 583 (1992)
614 A.2d 1071
GEORGE C. FEIGHNER, RONALD V. MANGRAVITE, ALLAN R. ANDERSON AND ROBERT V. VOGEL, A GENERAL PARTNERSHIP TRADING AS MANER CO., PLAINTIFFS-APPELLANTS,
v.
ANTON SAUTER AND EDITH SAUTER, HIS WIFE, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued September 14, 1992.
Decided October 22, 1992.
*586 Before Judges COLEMAN, J.H., ARNOLD M. STEIN and CONLEY.
William T. Smith argued the cause for appellants (Hook, Torack & Smith, attorneys; Mr. Smith on the brief).
Samuel D. Bornstein argued the cause for respondents.
The opinion of the court was delivered by COLEMAN, J.H., P.J.A.D.
This appeal raises two important issues: (1) whether the sellers of industrial realty encumbered by the Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 to 13, (ECRA), may unilaterally rescind a contract of sale when the owner's cleanup obligation has been capped at less than 9% of the selling price, and (2) whether the signing of a contract of sale is a "sale or transfer" which triggers ECRA cleanup responsibilities. The trial judge held that the seller could not rescind and that the buyers were entitled to specific performance of the contract of sale. We agree and affirm.
*587 I
The essential facts are not in dispute. Plaintiff partnership and the individual partners agreed to sell industrial realty located at 5 Fir Court, Oakland, New Jersey, to defendants for $1,200,000. The property consists of approximately one acre with a two story office building used for offices and light manufacturing. The contract of sale as amended was executed after the effective date of ECRA. While the contract acknowledges the applicability of ECRA, it does not specifically enumerate or define the sellers' ECRA responsibilities. The contract, however, does provide, among other things, that:
4. In the event the title is not passed from seller to buyer in accordance with Contract dated April 12, 1985, due to any fault of the seller, including failure to obtain ECRA approval, buyer will be entitled to the return of all deposit monies used in accordance with the preceding paragraphs.
The New Jersey Department of Environmental Protection and Energy (DEPE) informed plaintiffs on August 30, 1985, that because of the activities of two tenants in the premises, the sale of the property was "subject to the provisions of ECRA." That prompted plaintiffs to retain the services of B & P Environmental Resources, Inc. (B & P) to prepare a Sampling Plan and a Cleanup Plan. On approximately March 1, 1987, B & P advised plaintiffs that the cleanup costs were estimated to be between $50,000 and $70,000. Plaintiffs fired B & P near the end of March 1987.
Plaintiffs then retained Langan Engineering. Joseph Torlucci, a geologist and project manager assigned to plaintiffs' case, projected in January or February 1988 that soil remediation would range in costs from a low of less than $100,000 to a high of $300,000. On at least two occasions before March 1988, the DEPE and Torlucci recommended that plaintiffs execute an Administrative Consent Order (ACO) to permit the title closing to occur. As an incentive, in January 1988 defendants offered to post a performance bond, not exceeding $100,000, if plaintiffs would enter into an ACO with DEPE and close title. Plaintiffs refused to execute an ACO.
*588 On March 14, 1988, plaintiffs' attorney attempted to rescind the contract unilaterally in a letter addressed to defendants. The letter stated:
Unfortunately, despite the best efforts of my clients, they have been unable to satisfy the requirements of the Environmental Clean Up and Responsibility Act of the State of New Jersey, and, as a result, have been unable to transfer the property in accord with the terms of the contract.
At the present time they are uncertain as to when or if ever they will be able to satisfy the statutory requirements. For the foregoing reasons and in accord with the terms of the above referenced contract, I hereby declare this contract void. Pursuant to Paragraph 4, I have enclosed herewith a check in the amount of $30,577.79, representing a refund of your deposit monies as per Paragraph 4 of the second addendum to the contract.
When defendants rejected plaintiffs attempt to cancel the contract, plaintiffs instituted the present litigation on March 25, 1988 in the Chancery Division, General Equity, seeking rescission of the contract of sale. Defendants filed a counterclaim seeking the following relief:
A. Requiring that [plaintiffs] specifically perform the provisions of their Contract with the Defendants and obtain E.C.R.A. approval of the New Jersey Department of Environmental Protection for the transfer of title;
B. Requiring that they specifically perform their Contracts with the Defendants and convey the premises to the Defendants when E.C.R.A. approval has been obtained;
C. Requiring that they pay to the Defendants compensatory damages, interest and Court costs; and
D. For such other and further relief that the Court may deem appropriate and proper.
A bench trial was conducted between May and July 30, 1991. At the close of plaintiffs' evidence, the trial judge granted defendants' motion to dismiss the complaint. At the close of all the evidence, the trial judge determined that the plaintiffs' conduct had not been "fair, just or reasonable." The judge found that plaintiffs' conduct was inspired by a desire to make more money in another sale. He found that after the present contract was executed, the assessed valuation of the property increased to $2,289,400 in February 1987. He also found that the property operated at a loss through 1988, but in 1989 and 1990 it operated at a profit. We find sufficient credible evidence in the record to support these findings. Rova Farms *589 Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974).
In contrast, the judge found that the defendants had "acted in good faith" and that their conduct had been fair, just and reasonable. He based that finding on the fact that defendants cooperated with plaintiffs by permitting their deposit to be used for renovation for incoming tenants, and because they offered to pay up to $100,000 towards soil remediation or for posting a performance bond as financial assurance for an ACO. These findings are also supported by sufficient credible evidence in the record. Ibid.
Final Judgment was entered on September 5, 1991, directing plaintiffs to (1) specifically perform the contract as amended, (2) execute forthwith an ACO with DEPE to permit title to be conveyed to defendants, and (3) deduct $100,000 from the plaintiffs' share of the closing proceeds and to deliver it to defendants' attorneys as the plaintiffs' maximum cleanup liability. Should the cleanup cost less than that sum, the difference is to be returned to plaintiffs. Any amount in excess of that sum is to be borne by defendants. In other words, plaintiffs-landowners' cleanup responsibility was capped at $100,000.
II
In this appeal, plaintiffs argue that "the rights of the parties are defined by the terms of the contract, not by ECRA," and that based on the contract, plaintiffs' request for rescission should have been granted.
Plaintiffs' assertions that ECRA does not affect the rights of the parties to a contract to sell industrial realty is legally incorrect. Recently, our Supreme Court in Dixon Venture v. Joseph Dixon Crucible, 122 N.J. 228, 584 A.2d 797 (1991), recognized that ECRA affects the rights and/or obligations of both seller and buyer. When, as here, the seller and buyer enter into a contract with the knowledge that ECRA applies, and the contract does not shift the ECRA responsibilities *590 to the buyer, the statute imposes absolute liability for cleanup upon the seller. Id. at 232, 584 A.2d 797; N.J.S.A. 13:1K-9 and N.J.S.A. 13:1K-13. Dixon did not involve any contractual obligation to comply with ECRA, yet the Court found a statutorily imposed obligation upon the seller. Where the contract has not shifted the cleanup responsibility to the buyer, the "seller assumes the risks of cleanup and should not be able to avoid them by insistence on the rescission remedy." Id. at 234, 584 A.2d 797.
We also reject plaintiffs' contention that their request for rescission of the contract should have been granted. The power to rescind a contract to sell reality rests on equitable principles. The power to rescind should be exercised sparingly because equity abhors forfeitures and "if they can be avoided on a fair and reasonable interpretation of the instrument involved, a court of equity will undertake to do so." Tizard v. Eldredge, 25 N.J. Super. 477, 481, 96 A.2d 689 (App.Div. 1953).
The usual grounds for rescission are fraud, mutual mistake, undue influence, duress, lack of mental capacity, intoxication or inadequacy of consideration. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 611-612, 560 A.2d 655 (1989); Hilton Hotels Corp. v. Piper Co., 214 N.J. Super. 328, 336, 519 A.2d 368 (Ch.Div. 1986); 12 Williston on Contracts, § 1455 (Jaeger ed. 1970). The trial judge found neither of the above grounds existed in this case. Those findings are supported by the record. But even if the sellers were mistaken in their assumption as to the maximum they would be required to spend for cleanup, by limiting their expenditure to less than 10% of the selling price of the realty, means the seller's cleanup responsibility is not materially more onerous than it would have been if the contract had limited their exposure. See Beachcomber Coins, Inc. v. Boskett, 166 N.J. Super. 442, 445, 400 A.2d 78 (App.Div. 1979). Additionally, the contract conferred the option of rescission upon the buyers only and not the sellers. Since there was neither a factual nor legal basis to support the *591 sellers' claim for rescission, the denial of plaintiffs request for rescission does not represent an abuse of discretion.
Plaintiffs further contend that a purchaser's private right of action against a seller recognized in Dixon can be asserted by a purchaser only after there has been a "sale or transfer" of industrial realty. Plaintiffs argue essentially that because there was no transfer of title by deed as contemplated by the contract, no "sale or transfer" occurred, thereby triggering the ECRA requirements. They argue that it was, therefore, improper to order specific performance of their ECRA obligation.
We reject plaintiffs' assertion that there was no "sale or transfer" of industrial realty within contemplation of ECRA. N.J.S.A. 13:1K-9b provides that:
b. The owner or operator of an industrial establishment planning to sell or transfer operations shall:
(1) Notify the department in writing within five days of the execution of an agreement of sale or any option to purchase;
(2) Submit within 60 days prior to transfer of title a negative declaration to the department for approval, or within 60 days prior to transfer of title, attach a copy of any cleanup plan to the contract or agreement of sale or any option to purchase which may be entered into with respect to the transfer of operations. In the event that any sale or transfer agreements or options have been executed prior to the submission of the plan to the department, the cleanup plan shall be transmitted, by certified mail, prior to the transfer of operations, to all parties to any transaction concerning the transfer of operations, including purchasers, bankruptcy trustees, mortgagees, sureties, and financers;
The foregoing statutory language establishes certain preconditions which the owner must satisfy prior to delivery of a deed or other document transferring title. The event in this case which starts the cleanup time clock running is "the execution of an agreement of sale ... to purchase" the industrial realty. N.J.S.A. 13:1K-9b.
Independent of the language in N.J.S.A. 13:1K-9b, though consistent therewith, we are convinced that unless the contract of sale permits the seller to rescind based on ECRA requirements, and the present contract does not afford the sellers such an option, as between the seller and buyer, there is no reason *592 why the doctrine of equitable conversion should not be invoked. That concept was "created to assure justice between the parties to a real estate transaction." In re Estate of Houghton, 147 N.J. Super. 477, 485, 371 A.2d 735 (App.Div. 1977), aff'd, 75 N.J. 462, 383 A.2d 713 (1978). It is based on "the principle that equity regards things which are directed to be done as having actually been performed where nothing intervened which ought to prevent such a performance." Fidelity-Philadelphia Trust Co. v. Harloff, 133 N.J. Eq. 44, 56, 30 A.2d 57 (Ch. 1943). Under the doctrine of equitable conversion, upon execution of the contract of sale, an equitable transfer occurs. At that point, the defendants-buyers, in contemplation of equity, became the real owners, Coolidge & Sickler, Inc. v. Regn, 7 N.J. 93, 98, 80 A.2d 554 (1951); Marion v. Wolcott, 68 N.J. Eq. 20, 22, 59 A. 242 (Ch. 1904), subject to the sellers' ECRA responsibilities and a lien for the unpaid purchase price. See Roselin v. Roselin, 208 N.J. Super. 612, 617, 506 A.2d 789 (App.Div. 1986); Gallicchio v. Jarzla, 18 N.J. Super. 206, 211-212, 86 A.2d 820 (Ch.Div. 1952).
Next, we address the issue of whether specific performance was a proper remedy given the factual findings made by the trial judge. "Under long established equity principles, a contract for the sale of real property is specifically enforceable by the purchaser." Pruitt v. Graziano, 215 N.J. Super. 330, 331, 521 A.2d 1313 (App.Div. 1987). See also Friendship Manor, Inc. v. Greiman, 244 N.J. Super. 104, 113, 581 A.2d 893 (App.Div. 1990). Specific performance is, nonetheless, a discretionary remedy resting on equitable principles. Stehr v. Sawyer, 40 N.J. 352, 357, 192 A.2d 569 (1963). ECRA does not forbid a court from allowing "a proper equitable remedy," Dixon, supra, 122 N.J. at 234, 584 A.2d 797, such as specific performance if it can "do more perfect and complete justice." Fleischer v. James Drug Stores, 1 N.J. 138, 146, 62 A.2d 383 (1948). The trial judge concluded that the purchasers were entitled to specific performance because their conduct was fair, just and reasonable. Unlike the sellers', the purchasers' conduct *593 was not sharp and they did not seek an unfair advantage. Barry M. Dechtman, Inc. v. Sidpaul Corp., 89 N.J. 547, 551-552, 446 A.2d 518 (1982). Furthermore, the trial judge made all the findings essential to support the judgment granting specific performance.
Contrary to plaintiffs' assertions, defendants were not limited to the remedy of rescission. While the contract granted defendants the unilateral right of rescission as an election of remedies, the contract did not purport to diminish or dislodge other equitable remedies which our law has conferred upon a purchaser of realty. Dixon generally acknowledges that a purchaser has the right not only to rescind the contract, but the purchaser is also free to seek other equitable relief or monetary damages if the seller unreasonably fails to comply with ECRA. Dixon, supra, 122 N.J. at 232-233, 584 A.2d 797.
Even though the amended contract of sale provided that ECRA applied to the sale, the contract, nonetheless, did not specify or limit how much the sellers were required to spend to satisfy ECRA. When a contract for the sale of industrial realty is silent as to how much the seller is obligated to spend to comply with ECRA, by implication the seller is obligated to spend a reasonable sum in relation to the selling price listed in the contract. See Dixon, supra, 122 N.J. at 233, 584 A.2d 797; Becker v. Sunrise at Elkridge, 226 N.J. Super. 119, 129, 543 A.2d 977 (App.Div. 1988).
We hold that when the April 12, 1985 contract was amended on February 20, 1986 to acknowledge that ECRA applied, a "sale or transfer" occurred within the contemplation of ECRA. Under the ECRA scheme, execution of the contract of sale is the event in this case which triggers the sellers' obligation for remediation of the realty to be conveyed pursuant to the contract. To hold otherwise would mean the parties would be forced to conduct a closing and then hold everything in escrow pending disposition by the DEPE of the seller's obligations pursuant to ECRA. In that vein, the sellers contention *594 that a seller's ECRA obligations are not triggered until delivery of a deed at closing, would mean that a buyer could not specifically enforce a contract of sale for industrial realty even where the cleanup costs are minimal in comparison to the selling price of the realty. We find no basis to believe the Legislature intended such an absurd result.
Here, the trial judge carefully determined that plaintiffs acted in bad faith, thereby making them ineligible for any equitable relief. In contrast, defendants acted in good faith, and they were granted equitable relief properly. The judge limited the sellers' ECRA responsibility to less than 9% of the selling price. That was most reasonable under the Dixon standard, 122 N.J. at 233, 584 A.2d 797, which we have applied.[1]
The judgment is affirmed.
NOTES
[1] A word of caution is in order. We do not suggest that to be reasonable, the cleanup costs cannot exceed 10% of the selling price where the contract places no upper limit on the cleanup responsibility. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1121506/ | 71 Wash. App. 267 (1993)
857 P.2d 1074
THE STATE OF WASHINGTON, Respondent,
v.
VICTOR G. GOCKEN, Appellant. In the Matter of the Personal Restraint of VICTOR G. GOCKEN, Petitioner.
Nos. 28291-3-I; 31424-6-I.
The Court of Appeals of Washington, Division One.
September 13, 1993.
Joshua Weinstein of Washington Appellate Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and John Belatti, Deputy, for respondent.
AGID, J.
Victor Gocken appeals his judgment and sentence on one count of first degree murder and eight counts of forgery. He argues that: (1) the warrantless searches of the victim's condominium, where Gocken also lived, were unlawful *269 because there was no valid exception to the warrant requirement; (2) the State's amendment of the information adding the forgery counts on the first day of trial deprived him of his constitutional right to be notified of the charges against him; (3) the trial court erred by admitting autopsy photographs; (4) the evidence was insufficient to support a finding of premeditation; and (5) the testimony of four witnesses was improper because the record does not reflect that they responded to the oath administered before each testified. Gocken has also filed pro se briefs, and his personal restraint petition has been consolidated with this appeal. We affirm the trial court's judgment and sentence and deny Gocken's petition.
I
FACTS
On June 16, 1990, Officer Martin Brunette of the Auburn Police Department arrived at 72-year-old Ann Compton's condominium in response to a call from her friend Norma Haskell who had been unable to reach Compton for some time. Officer Brunette was aware that Compton was elderly and had mental health problems because she had a reputation at the police station for making "crazy" calls complaining that people from federal and local agencies were watching her.
When no one responded after Officer Brunette knocked on Compton's door and announced that he was from the police, he decided to perform a routine health and safety check[1] to see if Compton might have been injured and in need of assistance. He entered the condominium without a warrant through an unlocked window. He found the home very neat and orderly except for an unkempt bedroom with men's effects.[2] He also *270 saw a large door at the end of the hallway which he assumed was a closet. The door was locked but there was nothing unusual about it. When Officer Brunette initially entered the condominium, he had been aware that he might smell a dead body because Haskell was concerned that Compton had been injured.[3] However, he smelled no odors and, seeing nothing amiss, left the condominium.
Eight days later, on June 24, Officer Brunette responded to a second dispatch to Compton's condominium, assuming it would involve another health and safety check. Haskell was outside waiting with another woman. Because nothing around the condominium appeared unusual, Brunette did not enter it. He did not write a report for either of the two visits because he considered them only routine health and safety checks, not criminal investigations.[4]
At about the same time, Diana Berthon, Compton's niece, also became worried about Compton because she had not seen her for several weeks. On Thursday, June 20, Berthon left a note on Compton's door asking her to call. Later that day, Berthon received a call on her answering machine from Gocken saying that Compton had gone "over the mountains" and that he would be going to get her. On June 21, Berthon went to Compton's home and found a note signed "Ann" indicating she would be back Monday, June 25, but the note was not in Compton's handwriting. Berthon called the police and was advised that she should file a missing person report if Compton had not returned by Monday.
Because Berthon could not reach Compton on Monday, she filed the report with the police. Officer Victor Shively, who was not aware of Officer Brunette's previous visits, accompanied Berthon to Compton's condominium at 10 a.m. to do a health and safety check. Shively had met Compton once and remembered making a police call to her condominium about *271 2 years earlier. At the condominium, Berthon looked through a window and said she thought furniture was missing. She convinced Officer Shively that he should enter the condominium to see if Compton was sick or injured. She also mentioned that Compton had a roommate. Shively knocked and announced who he was and, after receiving no response, entered through the front window. He let Berthon in through a sliding glass door. Berthon confirmed that furniture was missing, but at that point Officer Shively did not consider that fact suspicious. There were also beer cans, food, and garbage strewn around the living room and kitchen.
Berthon began noticing a strong odor in the hallway and walked toward the closed door which she identified as her aunt's bedroom. She mentioned that Compton had had a dog that was put to sleep. Compton had been unable to part with it, and Berthon wondered if the smell might be the dog's body. She tried to open the door, but it was locked. She also noticed that the edges of the door were sealed with masking tape and a towel lay across the base of the doorway. Officer Shively recognized the odor as that of decaying flesh and immediately escorted Berthon out of the condominium. According to Shively, he "didn't know what [he] had at that point" and decided to contact his supervisor, Sergeant Lee.[5]
Sergeant Lee arrived at the condominium within 10 minutes. After learning of the circumstances and "[n]ot knowing what was in there", Sergeant Lee decided to use his cellular phone to call a police technician, Bob Phillips, to photograph the door and process it. Phillips arrived at the condominium shortly after 11 a.m. According to Sergeant Lee, the situation seemed "stable" because "nothing was happening" and *272 he saw "no need for any haste". He had decided to call Phillips as
[a] precaution. With the decay the smell of decaying flesh, you don't know what you have. The information I had was a lady was missing, ... her dog was missing. I didn't know what for sure I had there, but I didn't want to take a chance and destroy any ... potential evidence, so to be on the safe side, I had [Phillips] called out to process the door.
As the sergeant later testified, he was not treating the situation as an emergency at that point. When later asked if he suspected a homicide had occurred, he testified:
Well, no, suspicion's too strong a word. I mean, we [didn't] know what was there. It could have been it could have been anything, including the the so-called missing dog. So I just didn't know, and so we proceeded with caution.
Officer Shively and Phillips entered the condominium without a warrant. Phillips photographed the interior and removed the tape sealing the bedroom door. With Sergeant Lee's authorization, Shively and Phillips kicked open the locked bedroom door. Shively noticed a door to the right and opened it. Although it was dark inside, he recognized coagulated blood on the floor. The men immediately went outside and sealed off the condominium. No one entered again until a warrant was obtained. When the police reentered the condominium, they checked Compton's private bathroom and found her body wrapped in garbage bags and a blanket tied with cord.
From Officer Shively's perspective, he was doing a routine check on Compton's welfare, not a criminal investigation. Although he had a feeling that "maybe something was wrong" when he and Berthon found the door taped, he did not have any specific reason to believe that he was dealing with a homicide at that point. According to Shively, the events of that morning did not turn into a criminal investigation until Compton's dead body was found.
Gocken was subsequently arrested for Compton's murder after the police located him at a motel in Federal Way. Later investigation revealed, among other things, that someone had forged more than 30 of Compton's personal checks. On *273 June 28, 1990, Gocken was charged by information with one count of first degree murder.
Prior to trial, over defense objection, the information was amended to add eight counts of forgery. In addition, defense counsel moved to suppress the evidence found in Compton's bedroom and bathroom, arguing that the warrantless police searches violated the Fourth Amendment and the Washington State Constitution. The trial court denied Gocken's motion to suppress. It found that the June 16 search was a legitimate health and safety check, and there was no basis for Officer Brunette to assume any crime had been committed. The trial court also upheld the warrantless search on June 25 based on the exigencies created by Compton's age, her disability, and the circumstances of her apparent disappearance. Because there was no way of knowing whether Compton was ill and needed assistance until Officer Shively actually found her body, the court concluded that the search was not motivated by an "intent to arrest and seize evidence". Finally, the court held that Gocken lacked standing to challenge the search of Compton's bedroom and bathroom because his legitimate expectation of privacy did not extend to that portion of the premises.
During trial the medical examiner, Dr. Corinne Fligner, explained that when she began the autopsy the body had been wrapped in plastic garbage bags and a blanket. A towel and a ligature were tied around Compton's neck, and other ligatures tied her hands behind her back and bound her feet. Dr. Fligner also testified that the cause of death was asphyxia due to ligature strangulation, which might have been accompanied by manual strangulation.
Additional testimony from state witnesses indicated that Gocken used cocaine daily, had high bar tabs, and owed money to several people when Compton disappeared. In addition, Gocken acknowledged that he had earned no income since 1988 and sold various pieces of furniture to a store in Auburn between June 1 and June 16 for several hundred dollars. He told the store owner that the furniture had belonged to his mother who had died.
*274 Gocken testified that he did not murder Compton but found her strangled in the condominium one night in the first part of June. When he discovered Compton's body, he "freaked out" and believed that she had been murdered by the people who supplied his cocaine supplier, Gordon Schackle, to whom he owed $800 for cocaine. Schackle had warned him that the suppliers threatened to kill Gocken if he did not pay his debt.
When he found Compton dead, Gocken feared he would be blamed for the murder. He therefore wrapped the body in plastic bags and a blanket, which he tied with rope from the laundry room, and moved it into Compton's bathroom. According to Gocken's testimony, he decided then to try to meet Schackle's suppliers and confront them with the murder. He set about doing that by going to the bar that he and Schackle frequented and flashing a lot of money around in an attempt to attract the cocaine suppliers. He acknowledged that he had forged Compton's checks and sold her furniture in order to pay his debt to Schackle and carry out his plan of catching the people he believed murdered Compton. Gocken left his clothing and other possessions in the condominium and continued to use it on occasion. On June 24 he checked into the Federal Way motel where the police later arrested him.
The jury found Gocken guilty of first degree murder and all eight counts of forgery, and the court entered judgment and sentence accordingly. Gocken now appeals.
II
THE SEARCHES
We first address whether the trial court correctly concluded that the warrantless searches of Compton's condominium were permissible and that Gocken lacked standing to challenge the search of Compton's bedroom and bathroom.
Both the federal constitution and our state constitution prohibit unreasonable searches. U.S. Const. amend. 4; Const. art. 1, § 7. However, there are several well-established exceptions to the warrant requirement, including the emergency exception. State v. Loewen, 97 Wash. 2d 562, 647 P.2d 489 (1982), and cases cited therein; State v. Lynd, 54 Wash. App. 18, 20, 771 *275 P.2d 770 (1989). Under that exception, the police may conduct a warrantless search "where there is no probable cause of a crime, as when an officer enters a house to give emergency medical assistance." State v. Swenson, 59 Wash. App. 586, 588, 799 P.2d 1188 (1990). A warrantless search based upon the emergency exception must not be primarily motivated by the officer's intent to make an arrest and seize evidence. State v. Nichols, 20 Wash. App. 462, 465, 581 P.2d 1371, review denied, 91 Wash. 2d 1004 (1978). Instead,
[t]he emergency exception to the Fourth Amendment's warrant requirement requires that the entering officer subjectively believe that an emergency exists; therefore, the officer's motivation is the linchpin in the assertion of the emergency exception as justification for a warrantless entry.
State v. Bakke, 44 Wash. App. 830, 837, 723 P.2d 534 (1986), review denied, 107 Wash. 2d 1033 (1987). Further,
[i]n order for a search to come within the emergency exception, [a reviewing court] must be satisfied that the claimed emergency was not simply a pretext for conducting an evidentiary search and instead was "actually motivated by a perceived need to render aid or assistance."
Lynd, 54 Wn. App. at 21 (quoting Loewen, 97 Wn.2d at 568).
[1] Similarly, the police may be required to perform a warrantless search, not as a response to an immediate emergency, but as part of their function of protecting and assisting the public. See Utter, Survey of Washington Search and Seizure Law: 1988 Update, 11 U. Puget Sound L. Rev. 411, 538 (1987-1988) ("[i]f officers undertake a search in good faith for a reason other than investigating crime for example, to aid someone who has been injured any evidence they discover may be admissible"). As the Ninth Circuit recently observed:
"[I]n addition to being an enforcer of the criminal law," a police officer "is a jack-of-all-emergencies.'" United States v. Rodriguez-Morales, 929 F.2d 780, 784 (1st Cir. 1991), quoting W. LaFave, Search and Seizure § 5.4(c), at 525 (2d ed. 1987), cert. denied, ___ U.S. ___, 112 S. Ct. 868, 116 L. Ed. 2d 774 (1992). He is "expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an *276 infinite variety of services to preserve and protect community safety." Id. at 784-85.
United States v. Erickson, 991 F.2d 529, 531 (9th Cir.1993).
When an officer believes in good faith that someone's health or safety may be endangered, particularly if that person is known to have physical or mental problems, public policy does not demand that the officer delay any attempt to determine if assistance is needed and offer that assistance while a warrant is obtained. To the contrary, the officer could be considered derelict by not acting promptly to ascertain if someone needed help. See Lynd, 54 Wn. App. at 23. So long as it is undertaken in good faith and is not motivated by an intent to arrest or search for evidence of a crime, a warrantless search conducted in order to check on an individual's health or safety is a valid exception to constitutional warrant requirements.[6]See Cady v. Dombrowski, 413 U.S. 433, 447-48, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973) (an officer's warrantless "caretaking" search of a vehicle not in the custody or on the premises of the owner was not unreasonable; the Fourth Amendment gives only "the general standard of `unreasonableness' as a guide in determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required").
Thus, as in the case of the emergency exception, the State can demonstrate that an officer's warrantless entry is not merely a pretext to search for otherwise unavailable evidence by proving that: (1) the officer subjectively believed that someone likely needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that there was a need for assistance; and *277 (3) there was a reasonable basis to associate the need for assistance with the place searched. Cf. Loewen, 97 Wn.2d at 568; Lynd, 54 Wn. App. at 21; State v. Downey, 53 Wash. App. 543, 545, 768 P.2d 502 (1989).
In this case, Officer Shively's initial entry into Compton's condominium on June 25, 1990, was clearly intended to be a routine check on Compton's welfare.[7] He testified that he entered the condominium to determine if Compton was injured or ill. Although he was not certain "what [he] had", Berthon's concerns convinced him that Compton might have been inside in need of help. Hence, Officer Shively was motivated to enter Compton's home "by a perceived need to render aid or assistance" (see Loewen, 97 Wn.2d at 568), and the subjective prong of the test is satisfied as to that initial entry. Given that Compton was elderly, mentally ill, and on medication, and Berthon had been unable to contact her for several weeks, a reasonable person would also have concluded that Compton might have been injured and unable to care for herself or call for help.[8] Further, Officer Shively had a reasonable basis to associate Compton's potential need for assistance with her residence because that was where Berthon expected to find her and where she normally would be. See Lynd, 54 Wn. App. at 21.
[2] Once the officers were lawfully inside the condominium performing a health and safety check, their discovery of the tape around the door, the towel and the odor emanating from the locked room falls within the plain view doctrine *278 exception to the warrant requirement. State v. Bell, 108 Wash. 2d 193, 196-98, 737 P.2d 254 (1987).
A "plain view" seizure is valid if the following requirements are met: "(1) a prior justification for intrusion; (2) inadvertent discovery of incriminating evidence; and (3) immediate knowledge by the officer that he had evidence before him." [State v. Myrick, 102 Wash. 2d 506, 514, 688 P.2d 151 (1984)] (quoting [State v. Chrisman, 100 Wash. 2d 814, 819, 676 P.2d 419 (1984)]).
As we have just demonstrated, the officers' initial entry into the condominium was clearly justified by the need to perform a health and safety check and, once inside, they could not have avoided seeing the taped door and the towel or smelling the odor of decaying flesh. Thus, the first two elements of the plain view doctrine are satisfied.[9]
[3] As for the third element, "[a]ll that is required to satisfy the `immediate knowledge' element is a reasonable belief that evidence is present." Bell, 108 Wn.2d at 197-98. Despite Officer Shively's and Sergeant Lee's somewhat equivocal testimony to the effect that they were not sure "what [they] had" when they saw the door and smelled the odor, their actions establish that they had a reasonable belief that evidence of some kind was present. As soon as he smelled the odor, Officer Shively removed Berthon from the premises. He then called his sergeant who, in turn, called the evidence technician to process the door before they broke it down. In addition, it defies common sense to conclude that Compton could have taped herself into her bedroom. Therefore, while the officers clearly did not know that they had evidence of a homicide when they saw the door and smelled the odor, they did know that they had evidence of something. Once they entered Compton's bathroom, they also knew the nature of the crime to which it applied. They then knew "what [they] had".
*279 [4] The expiration of approximately an hour between Officer Shively's initial entry and the other officers' reentry does not defeat application of the plain view doctrine in this case. Both Washington and federal law establish that "the later entries were `no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.'" State v. Stevenson, 55 Wash. App. 725, 731, 780 P.2d 873 (1989) (quoting Michigan v. Tyler, 436 U.S. 499, 511, 56 L. Ed. 2d 486, 98 S. Ct. 1942 (1978); citing Bell, 108 Wn.2d at 198-201), review denied, 113 Wash. 2d 1040 (1990). We therefore conclude that no warrant was required to authorize Sergeant Lee, Officer Shively and the evidence technician to reenter the condominium in order to process and photograph the door. Any evidence they obtained was admissible under the plain view exception to the warrant requirement.[10]
[5, 6] As for the entry into Compton's bedroom and bathroom, we agree with the trial court that Gocken had no personal interest, and, thus, no legitimate expectation of privacy, in those areas. As State v. Foulkes, 63 Wash. App. 643, 647, 821 P.2d 77 (1991) aptly states:
Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). A defendant who does not personally claim a legitimate expectation of privacy in the area searched or property seized generally has no standing to challenge the search or seizure. See State v. Simpson, 95 Wash. 2d 170, 174-75, 622 P.2d 1199 (1980).... An individual has a "`justifiable,' ... `reasonable,' or ... `legitimate expectation of privacy'" if that individual has manifested an actual, subjective expectation of privacy in the area searched or item seized and society recognizes the individual's expectation of privacy as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979)[.]
*280 Gocken testified that he and Compton never had a romantic relationship and that he only entered her bedroom to get art supplies or to use the desk that he alleged was part of the "business" that he and Compton were starting. The trial judge specifically stated that she did not believe Gocken's testimony about the alleged business and concluded that he had no personal interest in Compton's bedroom and bath. On these facts, the trial court correctly held that Gocken lacked standing to challenge the search of Compton's bedroom and bathroom areas.
The judgment and sentence of the trial court are affirmed and Gocken's petition is denied.
The remainder of this opinion has no precedential value. Therefore, it will not be published but has been filed for public record. See RCW 2.06.040; CAR 14.
PEKELIS, A.C.J., and GROSSE, J., concur.
Reconsideration denied October 6, 1993.
Review denied at 123 Wash. 2d 1024 (1994).
NOTES
[1] In their testimony, the officers referred to it as a "welfare check". Because that term can be confused with investigations by public assistance caseworkers, we have substituted "health and safety check" to describe the officers' actions.
[2] Haskell had told Officer Brunette that Compton had a roommate. Gocken, who was 36 in 1990, began sharing Compton's condominium with her in October 1989. They had a platonic relationship, and Gocken did odd jobs for Compton in lieu of paying rent.
[3] Officer Brunette got the impression from Haskell's tone that she felt some wrongdoing had occurred.
[4] Officer Brunette testified that Auburn police officers always write a report about any criminal investigation.
[5] Officer Shively testified that his call to Sergeant Lee was part of the "normal, routine procedure". Gocken contends that this demonstrates that Shively did not perceive any emergency. However, Shively's testimony should be viewed in light of Sergeant Lee's testimony that it was standard procedure during a health and safety check for officers to contact their supervisors before breaking a door or otherwise damaging property to carry out the check.
[6] Erickson does not compel the opposite conclusion. In that case, the Ninth Circuit characterized an officer's investigation of a possible burglary as a "community caretaking function" and held that that function, in itself, did not justify a warrantless search of a private residence in the course of investigating a crime. 991 F.2d at 531. In contrast, the emergency exception to the warrant requirement, Lynd, and the health and safety check exception discussed here are limited to circumstances in which there is no probable cause to suspect a crime is being or has been committed. Because the officers involved in this case were not investigating a crime before they found Compton's body, Erickson's holding is inapposite.
[7] While Gocken, in his pro se brief, also challenges the constitutionality of Officer Brunette's search of Compton's condominium on June 16, 1990, and seeks to exclude all evidence relating to that search, there is no evidence to exclude.
[8] Gocken contends that the lack of an emergency situation is demonstrated by the fact that Berthon had been unable to contact Compton for more than 2 weeks. However, the passage of time from the last contact with a missing person is not the deciding factor as to whether a need for assistance exists which would justify police action. In this case, other factors, such as the fact that Compton was elderly and had mental health problems, support the conclusion that she may have been alive in her home but ill or otherwise unresponsive to phone calls or visitors.
[9] As the Supreme Court held in Bell, it is not necessary to establish that exigent circumstances were present if the first element of the plain view doctrine is otherwise satisfied. "[E]xigent circumstances are merely one factor to be considered in determining if the seizing officers' intrusion was justified." 108 Wn.2d at 198.
[10] We also note that, even if the evidence obtained from this portion of the search were not properly seized, its admission would be harmless beyond a reasonable doubt. The other evidence of the murder and Gocken's attempts to conceal it was overwhelming, and the photographs of the taped door added very little to the State's case against him. Under these circumstances, that evidence was inconsequential. Myrick, 102 Wn.2d at 515. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1160930/ | 88 Cal. Rptr. 2d 56 (1999)
981 P.2d 990
21 Cal. 4th 585
HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION, Petitioner,
v.
Gray DAVIS, as Governor, etc., et al., Respondents;
Frank Lawrence, Real Party in Interest.
Eric Cortez et al., Petitioners,
v.
Gray Davis, as Governor, etc., Respondent;
Frank Lawrence et al., Real Parties in Interest.
Nos. S074850, S074851.
Supreme Court of California.
August 23, 1999.
*59 Davis, Cowell & Bowe, Richard G. McCracken, Andrew J. Kahn and Michael T. Anderson, San Francisco, for Petitioner Hotel Employees and Restaurant Employees International Union.
Nielsen, Merksamer, Parrinello, Mueller & Naylor, Steven A. Merksamer, John E. Mueller, Richard D. Martland and Cathy A. Christian, Mill Valley, for William Campbell and Barry Keene, Sacramento, as Amici Curiae on behalf of Petitioner Hotel Employees and Restaurant Employees International Union.
Skadden, Arps, Slate, Meagher & Flom, Frank Rothman, Darrell J. Hieber, Harriet S. Posner, Gary S. Glickman, Los Angeles, Gibson, Dunn & Crutcher, Theodore B. Olson, John H. Sharer, Wayne W. Smith, Jeffrey H. Reeves, Thomas S. Jones and Amanda R. Wheeland, Irvine, for Petitioners Cortez et al.
Horvitz & Levy, Ellis J. Horvitz, Barry R. Levy and John A. Taylor, Jr., Encino, for the Dehesa Valley Community Council as Amicus Curiae on behalf of Petitioners Cortez et al.
Daniel E. Lungren and Bill Lockyer, Attorneys General, Roderick E. Walston, Chief Assistant Attorney General, Manuel M. Meideros, Assistant Attorney General, Sara J. Drake, Kenneth R. Williams, Ronald *60 L. Diedrich and Timothy M. Muscat, Deputy Attorneys General, for Respondents.
Munger, Tolles & Olson, Mark H. Epstein, Douglas A. Axel and Linda M. Burrow, Los Angeles, for Real Parties in Interest.
Lacy & Lacy and James V. Lacy, Laguna Niguel, for California Young Americans for Freedom, Bruce Herschensohn, Congressman Dana Rohrabacher, State Senators Dave Kelley and Cathie Wright, Assemblymen Tony Strickland and Brett Granlund, Brett R. Barbre, Director, Yorba Linda Water District, and Matthew Harper, Governing Board Member, Huntington Beach High School District as Amici Curiae on behalf of Real Parties in Interest.
California Indian Legal Services, James E. Cohen, Michael S. Pfeffer and Stephen V. Quesenberry, Oakland, for Blue Lake Rancheria, Bridgeport Paiute Indian Colony, Cedarville Rancheria, Guidiville Indian Rancheria, Karuk Tribe of California, La Joila Band of Indians, Manzanita Bank of Mission Indians, Mesa Grande Band of Mission Indians, North Fork Rancheria, Pauma Band of Mission Indians, Table Bluff Reservation-Wiyot Tribe, Timbisha Shoshone Tribe, the Torres Martinez Desert Cahuilla Indians and the U Tu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation as Amici Curiae on behalf of Real Parties in Interest.
Carole E. Goldberg, Los Angeles, for Indian Law Professors Jo Carrillo, Reid Chambers, Robert N. Clinton, Richard B. Collins, Arturo Gandara, Gerald Gardner, David Getches, Raleigh Levine, Nell Newton, Monroe Price, Renriard Strikland and Charles F. Wilkinson as Amici Curiae on behalf of Real Parties in Interest.
Gerald F. Uelman, Santa Clara, for California State Firefighters' Association, Palm Springs Chamber of Commerce, Murrieta Chamber of Commerce and Temecula Valley Chamber of Commerce as Amici Curiae on behalf of Respondents and Real Parties in Interest.
Van Bourg, Weinberg, Rozen & Rosenfeld and Sandra Rae Benson, Oakland, for California State Building and Construction Trades Council, Building and Construction Trades Council of Alameda, AFL-CIO, Contra Costa Building and Construction Trades Council and Napa/Solano Counties Building and Construction Trades Council as Amici Curiae on behalf of Respondents and Real Parties in Interest.
Robert D. Purcell for Laborers' International Union of North America as Amicus Curiae on behalf of Respondents and Real Parties in Interest.
Castle &' Krause and Tamara Utens, Temecula, for San Bernardino County Safety Employees' Association as Amicus Curiae on behalf of Respondents and Real Parties in Interest.
WERDEGAR, J.
In 1984, the people of California amended our Constitution to state a fundamental public policy against the legalization in California of casino gambling of the sort then associated with Las Vegas and Atlantic City: "The Legislature has no power to authorize, and shall prohibit casinos of the type currently operating in Nevada and New Jersey." (Cal. Const., art. IV, § 19, subd. (e), added by initiative, Gen. Elec. (Nov. 6, 1984).)
In 1998, at the November 3 General Election, the people approved a proposed initiative statute designated on the ballot as Proposition 5"The Tribal Government Gaming and Economic Self-Sufficiency Act of 1998"concerning gaming on Indian lands in the State of California. The principal provisions of this statutory initiative purport to authorize various forms of gaming in tribal casinos. As we will explain, to authorize such gaming facilities, however, would be to authorize casinos of the type expressly prohibited by article IV, section 19, subdivision (e) of the California Constitution (hereafter section 19(e)). Because *61 Proposition 5, a purely statutory measure, did not amend section 19(e) or any other part of the Constitution, and because in a conflict between statutory and constitutional law the Constitution must prevail, we conclude Proposition 5's authorization of casino gambling is invalid and inoperative.
We further conclude that only one provision of Proposition 5, the state's consent to suit contained in the final sentence of Government Code section 98005, is separable from the measure's invalid provisions. With the exception of that single provision, therefore, we will issue the writ sought by petitioners, prohibiting the Governor and the Secretary of State from implementing Proposition 5.
PROCEDURAL BACKGROUND
On November 4, 1998, Proposition 5 became effective by operation of law. (See Cal. Const, art. II, § 10, subd. (a).) Between November 4 and 12, the Governor received a request from each of 39 Indian tribes for the state to enter into a standard "Tribal-State Gaming Compact" as set forth in the measure to cover gaming on Indian lands. Under the measure, the Governor was obligated to execute an individual compact within 30 days after receipt of a request and would be deemed to have done so if he should fail. Under the federal Indian Gaming Regulatory Act (IGRA) (Pub.L. No. 100-497 (Oct. 17, 1988) 102 Stat. 2467, as amended, codified at 25 U.S.C. § 2701 et seq. and 18 U.S.C. § 1166 et seq.), before any such compact could go into effect, the Secretary of the Interior had to publish notice in the Federal Register that he had given his approval within a prescribed review period of 45 days. (25 U.S.C. § 2710(d)(3)(B), (d)(8)(C) & (d)(8)(D).)
On November 20, 1998, the Hotel Employees and Restaurant Employees International Union (hereafter the Union) filed a petition for writ of mandate in this court, with a request for a stay pendente lite. In its petition, the Union sought to compel Pete Wilson, in his official capacity as Governor, now succeeded by Gray Davis who takes his place by substitution, and Bill Jones, in his official capacity as Secretary of State, not to implement Proposition 5, claiming the measure was invalid under the law of both California and the United States. The Union named Frank Lawrence, the measure's proponent, as real party in interest. On that same day, Eric Cortez and others (hereafter collectively Cortez) filed a separate, similar petition for writ of mandate in this court, also with a request for a stay pendente lite, and also seeking to compel the Governor not to implement the measure, on the grounds it is invalid under state and federal law. Cortez named Californians for Indian Self-Reliance, as well as Frank Lawrence (hereafter collectively Real Parties) as real parties in interest.
On December 2, we acted in response to the petitions. We did so in recognition that a writ of mandate is available, in the absence of a "plain, speedy, and adequate remedy, in the ordinary course of law" (Code Civ. Proa, § 1086), against the implementation of an invalid statute (Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal. App. 3d 245, 264, 226 Cal. Rptr. 361). We determined to decide the matter ourselves, instead of allowing lower courts, in accordance with our custom, to address it in the first instance (see, e.g., Legislature v. Eu (1991) 54 Cal. 3d 492, 500, 286 Cal. Rptr. 283, 816 P.2d 1309), because we concluded the underlying questions were of "great public importance and must be resolved promptly (County of Sacramento v. Hickman (1967) 66 Cal. 2d 841, 845, 59 Cal. Rptr. 609, 428 P.2d 593; accord, Legislature v. Eu, supra, at p. 500, 286 Cal. Rptr. 283, 816 P.2d 1309).
We therefore ordered the Governor, the Secretary of State, and Real Parties to show cause in this court why the relief the Union and Cortez sought against Proposition 5 should not be granted, and stayed implementation of the measure pendente lite. Pursuant to our orders, Real Parties, *62 and the Governor and the Secretary of State filed returns to the petitions, and the Union and Cortez each filed a traverse. In his initial returns, Governor Wilson supported the Union's and Cortez's claims against Proposition 5 and their prayers for relief. With our leave, Governor Davis later withdrew the returns of Governor Wilson and filed substitute returns of his own, in which he expressed neutrality on the claims against Proposition 5 and the prayers for relief. On January 13, 1999, we ordered the Union's cause and that of Cortez consolidated for purposes of oral argument and decision.
On or about January 22, 1999, the Secretary of the Interior disapproved the tribal/state gaming compacts requested by Indian tribes under Proposition 5, reasoning that, because this court had stayed the operation of the measure, the compacts, which had not actually been executed by the Governor, could not be deemed executed pursuant to the measure's 30-day provision.
DISCUSSION
I. Legal Background
Proposition 5 was enacted against an extensive legal background of California and federal law regarding gaming and other gambling. We briefly review the most pertinent parts of these bodies of law.
A. California Gambling Law
Since 1849, the California Constitution has generally prohibited all lotteries and the sale of all lottery tickets. In the original document of 1849, the Constitution prohibited all lotteries and the sale of all lottery tickets, doing so in article IV, section 27. In the current document of 1879, it continues the prohibition, formerly in article IV, section 26, and presently in article IV, section 19, subdivision (a), which declares: "The Legislature has no power to authorize lotteries and shall prohibit the sale of lottery tickets in the State." Since 1872, section 319 et seq. of the Penal Code also has prohibited all lotteries and the sale of all lottery tickets. But since 1984, through the addition of article IV, section 19, subdivision (d), the California Constitution has provided: "Notwithstanding subdivision (a), there is authorized the establishment of a California State Lottery."
As we explained in Western Telcon, Inc. v. California State Lottery (1996) 13 Cal. 4th 475, 484, 53 Cal. Rptr. 2d 812, 917 P.2d 651 (Western Telcon), a lottery is defined by three elements, namely, a prize, distribution by chance, and consideration. "Consideration" is the fee (in the form of money or anything else of value) that a participant pays the operator for entrance. (See Cal. Gas. Retailers v. Regal Petroleum Corp. (1958) 50 Cal. 2d 844, 853-854, 857-862, 330 P.2d 778.) "Chance" means that winning and losing depend on luck and fortune rather than, or at least more than, judgment and skill. (Finster v. Keller (1971) 18 Cal. App. 3d 836, 844-845, 96 Cal. Rptr. 241; People v. Hecht (1931) 3 P.2d 399,119 Cal.App. Supp. 778, 784-787.) "Prize" encompasses property that the operator offers to distribute to one or more winning participants and not to keep for himself. (Western Telcon, supra, at pp. 485-4
88, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) The property offered may exist apart from the fees the participants pay the operator or it may arise from the fees themselves, as when, in the commonly used parimutuel system, the property consists of the fees in the form of a pool that remains after the operator has taken out some amount for himself. (Id. at p. 488 & fn. 4, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) The prize or prizes, however, must be "either fixed in advance" of the play or "determined by the total amount" of fees paid. (Id. at p. 489, 53 Cal. Rptr. 2d 812, 917 P.2d 651.)
Commencing in 1872, the year of the Penal Code's enactment, section 330 of that code has proscribed a number of games by name; since 1885 (Stats.1885, ch. 145, § 1, p. 135), the list has included the game "twenty-one." Also commencing in 1872, section 330 of the Penal Code has *63 prohibited all "banking" games, that is, those games in which there is a person or entity that participates in the action as "the one against the many" (People v. Ambrose (1953) 265 P.2d 191, 122 Cal. App. Supp. 2d 966, 970), "taking on all comers, paying all winners, and collecting from all losers" (Sullivan v. Fox (1987) 189 Cal. App. 3d 673, 678, 235 Cal. Rptr. 5), doing so through a fund generally called the bank (Western Telcon, supra, 13 Cal.4th at p. 487, 53 Cal. Rptr. 2d 812, 917 P.2d 651).
As we expressly held in Western Telcon, a banking game is not a lottery, and a lottery is not a banking game, for the two are "mutually exclusive." (13 Cal.4th at p. 494, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) In a lottery, the "operator distributes the prize or prizes to the winner or winners...." (Id. at p. 485, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) The operator is not a participant and, hence, does not compete with the participants. He has "no interest in the outcome of the lottery, "because neither the fact the prize will be disposed of, nor the value of the prize to be distributed, depends upon which, or how many," of the participants "might win it." (Id. at p. 488, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) Insofar as the operator is concerned, the result is invariable: he will give over the prize to one or more of the participants. (See id. at pp. 485-86, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) In a banking game, by contrast, the banker "pays off all winning wagers and keeps all losing wagers." (Id. at p. 485, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) He is in fact a participant and, hence, "compete[s] with the other participants: `he is the one against the many.'" (Id at p. 488, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) He has an "interest in the outcome of the game, because the amount of money" he "will have to pay out," or be able to take in, "depends upon whether each of the individual bets is won or lost." (Ibid.) The result is variable: the banker may either win or lose as to either some or all of the other participants. (See id. at pp. 485, 487, 489, 494, 53 Cal. Rptr. 2d 812, 917 P.2d 651.)
Commencing in 1885, section 330 of the Penal Code has similarly prohibited all "percentage" games, that is, those games in which the operator does not participate in the action but "collects a percentage ... computed from the amount of bets made, winnings collected, or ... money changing hands." (Sullivan v. Fox, supra, 189 Cal. App.3d at p. 679, 235 Cal. Rptr. 5.)
Since at least 1872, all nonprohibited card games, primarily "round" games such as various forms of poker, have been permitted. (See, e.g., Monterey Club v. Superior Court (1941) 48 Cal. App. 2d 131, 148-149, 119 P.2d 349.) Nevertheless, as reflected in section 19800 et seq. of the Business and Professions Code, such games are subject to regulation by the state and, in the absence of state regulation, to regulation and even prohibition by localities. (See Western Telcon, supra, 13 Cal.4th at p. 482, fn. 2, 53 Cal. Rptr. 2d 812, 917 P.2d 651 [stating that gambling games that are not prohibited "are generally subject to local control, with some state regulation"].)
Since 1911, section 330a of the Penal Code has prohibited all slot machines; section 330b of the same code, enacted in 1950, has redoubled the prohibition. The Penal Code's broad definitions of slot machines include virtually every kind of stand-alone gaming device. Section 330a impliedly defines slot machines as "any ... machine, contrivance, appliance or mechanical device, upon the result of action of which money or other valuable thing is staked or hazarded, and which is operated, or played, by placing or depositing therein any coins, checks, slugs, balls, or other articles or device, or in any other manner and by means whereof, or as a result of the operation of which any merchandise, money, representative or articles of value, checks, or tokens, redeemable in, or exchangeable for money or any other thing of value, is won or lost, or taken from or obtained from such machine, when the result of action or operation of such machine, *64 contrivance, appliance, or mechanical device is dependent upon hazard or chance...." (Pen.Code, § 330a, as added by Stats.1911, ch. 483, § 1, p. 951.) Section 330b expressly defines slot machines, in similar terms, as encompassing "[a]ny machine, apparatus or device ... that is adapted, or may readily be converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object, or by any other means, such machine or device is caused to operate or may be operated, and by reason of any element of hazard or chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value or additional chance or right to use such slot machine or device, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, irrespective of whether it may, apart from any element of hazard or chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment or other thing of value." (Pen.Code, § 330b, subd. (2), as added by Stats.1950, First Ex.Sess.1950, ch. 17, § 1, pp. 452-453; see also Pen.Code, § 330.1 [containing similar definition].)
Beginning in 1933, the California Constitution has authorized the Legislature to allow horse races and horse race wagering. (See now Cal. Const., art. IV, § 19, subd. (b), former art. IV, § 25a.) As reflected in section 19400 et seq. of the Business and Professions Code, the Legislature has done so, permitting licensed wagering in accordance with the parimutuel system. (Bus. & Prof.Code, §§ 19590, 19593.)
Beginning in 1976, in article IV, section 19, subdivision (c), the California Constitution has authorized the Legislature to permit bingo: "Notwithstanding subdivision (a)," which proscribes lotteries, "the Legislature by statute may authorize cities and counties to provide for bingo games, but only for charitable purposes." As reflected in section 326.5 of the Penal Code, the Legislature has done so.
Lastly, since 1984, through the addition of section 19(e), the California Constitution has declared: "The Legislature has no power to authorize, and shall prohibit casinos of the type currently operating in Nevada and New Jersey."
B. Federal Indian Gaming Law
We now briefly review the federal law concerning gaming on Indian lands.
In 1987, the United States Supreme Court handed down its landmark decision in California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (Cabazon), interpreting Public Law No. 280 (Aug. 15, 1953) 67 Statutes at Large 588. In Public Law No. 280, Congress granted certain states, including California, broad criminal jurisdiction over offenses committed by or against Indians in Indian country (including "all land within the limits of any Indian reservation under the jurisdiction of the United States Government" (18 U.S.C. § 1151)) within their respective borders. Pursuant to this grant, the Cabazon court held, the laws of these states generally applied to activities in Indian country to the extent the law was "prohibitory," but did not generally apply to the extent it was "regulatory," the shorthand test being whether the conduct at issue violates the state's public policy. (Cabazon, supra, at pp. 207-210, 107 S. Ct. 1083.) On the particular question at issue, whether California could apply to certain Indian tribes on their reservations its law governing the operation of bingo (Pen.Code, § 326.5), the high court gave a negative answer: "In light of the fact that California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates rather than prohibits gambling in general *65 and bingo in particular." (Cabazon, supra, at p. 211, 107 S. Ct. 1083, fn. omitted.)
In 1988, in the wake of Cabazon, Congress enacted IGRA (Pub.L. No. 100-97 (Oct. 17, 1988), 102 Stat. 2467, as amended, codified at 25 U.S.C. § 2701 et seq. and 18 U.S.C. § 1166 et seq.), with the declared purpose to "provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments" (25 U.S.C. § 2702(1)), while at the same time providing a basis for regulation of Indian gaming so as to shield it from organized crime and corruption, prevent exploitation for non-Indian profit, and ensure fair and honest gaming. (IGRA, § 3; 25 U.S.C. § 2702(1), (2).)
Section 4 of IGRA divides gaming into three categories"class I," "class II," and "class III." (25 U.S.C. § 2703(6), (7), (8).)
Class I gaming is "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations." (25 U.S.C. § 2703(6).)
Class II gaming is defined to include: "(i) the game of chance commonly known as bingo" and "(ii) card games" that "are explicitly authorized by the laws of the State" or "are not explicitly prohibited by the laws of the State and are played at any location in the State," "but only if such card games are played in conformity with those laws and regulations (if any) of the State regarding hours or periods of operation of such card games or limitations on wagers or pot sizes in such card games." (25 U.S.C. § 2703(7)(A).) The act excludes from its definition of class II gaming: "(i) any banking card games, including baccarat, chemin de fer, or blackjack (21)" and "(ii) electronic or electromechanical facsimiles of any game of chance or slot machines of any kind." (Id., § 2703(7)(B).)
Class III gaming is defined as "all forms of gaming that are not class I gaming or class II gaming." (25 U.S.C. § 2703(8).)
Section 11 of IGRA provides for the regulation of each of the three categories of gamingfrom the lightest regulation for class I, by tribal action alone without federal or state participation; to heavier regulation for class II, by joint federal and tribal participation; to the heaviest regulation for class III, by state and tribal participation through tribal/state compacts plus federal oversight. (25 U.S.C. § 2710.)
Specifically as to class III gaming, section 11(d)(1) of IGRA states that class III gaming activities are "lawful ... only if such activities are": "(A) authorized by an ordinance or resolution" that, among other things, is adopted by an Indian tribe and approved by the Chairman of the National Indian Gaming Commission; "(B) located in a State that permits such gaming for any purpose by any person, organization, or entity"; and "(C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ... that is in effect." (25 U.S.C. § 2710(d)(1).) Section 11(d)(3)(A) of IGRA describes the process whereby the Indian tribe and the state may commence negotiations toward a tribal/state compact: the tribe must "request" that the state "enter into negotiations," and, on receiving such request, the state must proceed to "negotiate with the Indian tribe in good faith. ..." (25 U.S.C. § 2710(d)(3)(A).) A compact takes effect only when approved by the Secretary of the Interior. (25 U.S.C. § 2710(d)(3)(B).)
C. Legal Conflicts Leading up to Proposition 5
Despite IGRA's negotiation and compact framework, several unresolved conflicts have developed between the State of California and Indian tribes surrounding class III gaming and, especially, gaming devices in casinos. Class III gaming, comprising all gaming outside class I and class II, including parimutuel horse race wagering, lotteries, banked table games and gaming devices, is, unquestionably, the "most lucrative kind." (U.S. v. Spokane Tribe of *66 Indians (9th Cir.1998) 139 F.3d 1297, 1299.)
The most notable conflict is that underlying Rumsey Indian Rancheria of Wintun Ind. v. Wilson (9th Cir.1994) 64 F.3d 1250. Pursuant to IGRA, several Indian tribes requested the State of California to negotiate compacts permitting "standalone electronic gaming devices" and "live banking and percentage card games." (Id at p. 1255, fns. omitted.) The state refused, asserting that its criminal law prohibited the games and devices in question. The state and certain tribes agreed to seek judicial determination through a test case whether the state was obligated to enter into negotiations concerning such games and devices; pursuant to that stipulation, the tribes initiated an action in federal district court for declaratory relief against the state. (Ibid.)
The district court gave summary judgment to the plaintiff tribes, concluding that, except for games using traditional casino game themes, the state was indeed obliged to negotiate over the games and devices in question. (Rumsey Indian Rancheria of Wintun Ind. v. Wilson, supra, 64 F.3d at p. 1255.) The Ninth Circuit Court of Appeals reversed in large part, concluding that, because California prohibited anyone in the state to engage in banked or percentage card games or operation of slot machines ("[w]ith the possible exception of slot machines in the form of video lottery terminals" (id. at p. 1260)), IGRA did not require the state to negotiate a compact allowing those activities to be conducted in tribal gaming facilities. (Id at pp. 1256-1258.) On remand, the district court determined California law did not permit slot machines in the form of California State Lottery terminals or otherwise, and ordered judgment for the defendants. (Rumsey Indian Rancheria of Wintun Ind. v. Wilson (E.D.Cal.1998) 39 F. Supp. 2d 1227.)
While the above proceedings and those leading to this court's 1996 decision in Western Telcon, supra, 13 Cal. 4th 475, 53 Cal. Rptr. 2d 812, 917 P.2d 651, were pending, a number of the tribes commenced and continued class III gaming activities without tribal/state compacts; in response, Governor Wilson refused to negotiate further until they ceased such gaming activities. (See Note, Western Telcon v. California State Lottery; Will Native Americans Lose Again? (1997) 19 Thomas Jefferson L.Rev. 361, 374-376.) Governor Wilson instead negotiated a compact with the Pala Band of Mission Indians, a tribe previously without gaming facilities, which he intended to serve as a statewide model. In part because of objections to the negotiation procedures and in part because of restrictions the Pala compact placed on the type and number of gaming devices, most of the tribes with existing casinos rejected the Pala compact. (See Comment, The Effect of the Indian Gaming Regulatory Act on California Native American's Independence (1998) 35 San Diego L.Rev. 179, 198-201).
It was to resolve such conflicts between the State of California and Indian tribes relative to class III gaming on Indian lands that Proposition 5 was drafted and circulated by petition. (See Gov.Code, § 98001, subd. (b) [measure intended to end "uncertainties" regarding class III gaming by tribes.]) That the initiative measure might not meet its purpose was known before the election: after the measure qualified for the ballot, but prior to the election, the Legislative Counsel issued an opinion concluding, inter alia, that the measure would be invalid under section 19(e) because it would authorize "casinos of the type currently operating in Nevada and New Jersey." (Ops. Cal. Legis. Counsel, No. 21947 (Oct. 8, 1998) Tribal Gaming: Proposition 5, pp. 8-14, 17-18.) At the election the people nevertheless approved the measure.
II. Proposition 5
Having reviewed Proposition 5's legal background and context, we turn to the *67 measure itself. Proposition 5 adds a single title to the Government Code, viz., title 16, "State-Tribal Agreements Governing Indian Gaming," which contains a single chapter, viz., chapter 1, "The Tribal Government Gaming and Economic Self-Sufficiency Act of 1998," which comprises sections 98000 through 98012.
Section 98001 of the Government Code contains three findings made by the people as electors.
The first finding opens as follows: "[H]istorically, Indian tribes within the state have long suffered from high rates of unemployment and inadequate educational, housing, elderly care, and health care opportunities, while typically being located on lands that are not conducive to economic development in order to meet those needs...." (Gov.Code, § 98001, subd. (a).) It notes that federal law (i.e., IGRA) "provides a statutory basis" for gaming on Indian lands "as a means of strengthening tribal self-sufficiency through the creation of jobs and tribal economic development." (Gov.Code, § 98001, subd. (a).) It also notes that federal law provides for class III gaming pursuant to tribal/state compacts. (Ibid.)
The second finding states that "uncertainties have developed over various issues concerning class III gaming and the development of Tribal-State compacts between the state and tribes, and ... those uncertainties have led to delays and considerable expense." (Gov.Code, § 98001, subd. (b).) It proceeds to declare that the terms of the model tribal/state compact set forth in Proposition 5 "are intended to resolve those uncertainties in an efficient and costeffective way, while meeting the basic and mutual needs of the state and the tribes without undue delay. The resolution of uncertainty regarding class III gaming in California, the generation of employment an tribal economic development that will result therefrom, and the limitations on the growth of gaming in California that are inherent therein, are in the best and immediate interest of all citizens of the state...." (Ibid.)
The third finding declares as follows: "[C]asinos of the type currently operating in Nevada and New Jersey are materially different from the tribal gaming facilities authorized under" Proposition 5, including its model tribal/state compact, "in that the casinos in those states (1) commonly offer their patrons a broad spectrum of housebanked games, including but not limited to house-banked card games, roulette, dice games, and slot machines that dispense coins or currency, none of which games are authorized under this chapter; and (2) are owned by private companies, individuals, or others that are not restricted on how their profits may be expended, whereas tribal governments must be the primary beneficiaries of the gaming facilities" hereunder, and "are limited to using their gaming revenues for various tribal purposes, including tribal government services and programs such as those that address reservation housing, elderly care, education, economic development, health care, and other tribal programs and needs, in conformity with federal law." (Gov.Code, § 98001, subd. (c).)
Section 98002 of the Government Code, among other things, authorizes and obligates the Governor to execute the model tribal/state compact on behalf of the State of California "as a ministerial act, without preconditions, within 30 days after receiving a request from" an Indian tribe "to enter into such a compact." (Gov.Code, § 98002, subd. (a).)
Section 98001 of the Government Code sets forth Proposition 5's model tribal/state compact. On behalf of the State of California, it "offers" such compact to any federally recognized Indian tribe that may choose to request and accept the compact. (Gov.Code, § 98004.) While the model compact contains numerous provisions detailing the manner in which tribal gaming facilities are to be licensed, staffed and operated, for present purposes we need *68 review only those provisions pertinent to the scope of gaming permitted.
Section 3.0 of the model tribal/state compact "authorize[s] and permit[s]" the Indian tribe to engage in the class III gaming activities expressly referred to in section 4 of the compact.
Section 4.0 of the model tribal/state compact sets out the scope of class III gaming activities. It authorizes and permits the Indian tribe to engage in the following four "forms or types of class III gaming" (Gov.Code, § 98004, model compact § 4.1).
First, the "operation of Tribal gaming terminals," provided, inter alia, that the Indian tribe "shall pay prizes solely in accordance with a players' pool prize system." (Gov.Code, § 98004, model compact § 4.1(a).) "Tribal gaming terminal" is defined as a "gaming device" of any kind "that does not dispense coins or currency and is not activated by a handle." (Id., model compact § 2.21.)
Second, the "operation of any [class III] card games that were actually operated in any tribal gaming facility in California on or before January 1, 1998," provided that the Indian tribe "shall pay prizes solely in accordance with a players' pool prize system." (Gov.Code, § 98004, model compact § 4.1(b).)[1]
Third, the "operation of any lottery game, including, but not limited to, drawings, raffles, match games, and instant lottery ticket games." (Gov.Code, § 98004, model compact § 4.1(c).)
Fourth, the operation of off-track parimutuel horse race wagering under specified terms and conditions, including consistency with an existing tribal-state compact covering the same subject. (Gov.Code, § 98004, model compact § 4.1(d).) Section 4.0 of the model compact also authorizes the Indian tribe to "establish and operate gaming facilities" and generally to "combine and operate" therein "any forms and kinds of gaming permitted under law." (Gov.Code, § 98004, model compact § 4.2.)
Section 98005 of the Government Code provides, among other things, that if the Governor does not execute a model tribal/state compact requested by an Indian tribe within 30 days after receiving its request, he will be "deemed" to have done so "to the extent permitted by law." (Gov. Code, § 98005.) This section also contains a waiver on the state's part of immunity to suit in federal court for certain compactrelated disputes. (Ibid.)
Section 98006 of the Government Code states that the gaming authorized pursuant to Proposition 5, including, but not limited to, the gaming authorized pursuant to its model tribal-state compact, "is not subject to any prohibition in state law now or hereafter enacted. Without limiting the foregoing, and notwithstanding any other provision of law, the following forms of gaming specifically are permitted and authorized to be conducted on Indian lands by a tribe that has entered into" a tribal/state compact:
First, any class III card games "that were operated on any Indian reservation in California on or before January 1, 1998," including, evidently, twenty-one or blackjack, subject to specified terms and conditions, including that the Indian tribe must pay prizes solely in accordance with a so-called "players' pool prize system." (Gov.Code, § 98006, subd. (a).)
Second, "[a]ny gaming or gambling device," also subject to specified terms and conditions, including that such devices may not "dispense coins or currency and are *69 not activated by handles," and that the Indian tribe must pay prizes solely in accordance with a players' pool prize system. (Gov.Code, § 98006, subd. (b).)
Third, the "operation of any lottery game, including, but not limited to, drawings, raffles, match games, and instant lottery ticket games." (Gov.Code, § 98006, subd. (c).)
A "players' pool prize system" is defined as "one or more segregated pools of funds that have been collected from player wagers, [that] are irrevocably dedicated to the prospective award of prizes in [authorized gaming activities,] and in which the house neither has acquired nor can acquire any interest. The tribe may set and collect a fee from players on a per play, per amount wagered, or time-period basis, and may seed the pools in the form of loans or promotional expenses, provided that the seeding is not used to pay prizes previously won." ([Gov.Code, § 98006, subd. (a); accord, id., § 98004, model compact § 2.16].)
Section 98009 of the Government Code declares that the provisions of Proposition 5's model tribal/state compact "are hereby incorporated into state law, and all gaming activities, including but not limited to gaming devices, authorized therein are expressly declared to be permitted as a matter of state law to any Indian tribe entering into" such a compact. (Gov.Code, § 98009.)
III. Proposition 5 and California Constitution, Article IV, Section 19(e)
We turn to the claims by the Union and Cortez that Proposition 5 is invalid under the California Constitution, specifically section 19(e)'s declaration that "[t]he Legislature has no power to authorize ... casinos of the type currently operating in Nevada and New Jersey." We consider and decide the causes before us on the pleadings, without recourse to evidentiary proceedings, for none of the papers raise any question as to a matter of fact essential to determination of the petition. (Code Civ. Proa, § 1090.) A statute inconsistent with the California Constitution is, of course, void. (Nougues v. Douglass (1857) 7 Cal. 65, 70.) In order to decide whether Proposition 5 is inconsistent with section 19(e), we begin by examining and interpreting each part of section 19(e).
"The Legislature has no power...."
The "power" referred to is, of course, the legislative power, which is the subject of article IV of the California Constitution as a whole. The legislative power may be exercised by either of two legislative bodies, inasmuch as article IV, section 1 declares that it is "vested" in the Legislature and also "reserve[d]" to the people acting through initiative, specifically, initiative statute. Section 19(e) could, therefore, be taken, relatively narrowly, to deny legislative power to the Legislature alone of the two legislative bodies or, relatively broadly, to deny legislative power to the legislative body as such and, hence, to both legislative bodies. For two reasons, we conclude the broader interpretation is the correct one.
First, as we held in Legislature v. Deukmejian (1983) 34 Cal. 3d 658, 674, 194 Cal. Rptr. 781, 669 P.2d 17, "[a] statutory initiative is subject to the same state and federal constitutional limitations as are the Legislature and the statutes which it enacts." In that case, we interpreted a provision of the state Constitution requiring that "[i]n the year following the year in which the national census is taken under the direction of Congress at the beginning of each decade, the Legislature shall adjust the boundary lines of various electoral districts. (Cal. Const., art. XXI, § 1.) Having previously held that this provision, and its predecessor, limited the Legislature to one reapportionment every ten years (see Legislature v. Deukmejian, supra, at pp. 668-671, 194 Cal. Rptr. 781, 669 P.2d 17), we considered and rejected the "novel theory" that, this implied limitation *70 applied only to the Legislature and not to the people's reserved initiative power. (Id. at p. 673, 194 Cal. Rptr. 781, 669 P.2d 17.) We found this theory "puzzling inasmuch as the reserved power to enact statutes by initiative is a legislative power, one that would otherwise reside in the Legislature. It has heretofore been considered to be no greater with respect to the nature and attributes of the statutes that may be enacted than that of the Legislature." (Ibid.) In the passing years, we have adhered to that broad holding without deviation. (See Rossi v. Brown (1995) 9 Cal. 4th 688, 696, fn. 2, 38 Cal. Rptr. 2d 363, 889 P.2d 557; Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal. 3d 531, 540, 277 Cal. Rptr. 1, 802 P.2d 317; Building Industry Assn. v. City of Camarillo (1986) 41 Cal. 3d 810, 821, 226 Cal. Rptr. 81, 718 P.2d 68; but see Kennedy Wholesale, Inc. v. State Bd. of Equalization, (1991) 53 Cal. 3d 245, 252, 279 Cal. Rptr. 325, 806 P.2d 1360 [rule does not apply to "procedural requirements addressed to the Legislature's deliberations" unless evidence shows such application was intended].) We see no reason either to depart from or further narrow Legislature v. Deukmejian today.
Second, section 19(e), the anticasino provision, parallels in language, and was presumably based upon, the preexisting antilottery provision of California Constitution, article IV, section 19, subdivision (a) (hereafter section 19(a)), which declares, "[t]he Legislature has no power to authorize lotteries...." Section 19(a) dates back to 1879 and to the very establishment of the current California Constitution in that year. At that time, prior to the 1911 constitutional amendment that provided for the initiative (see Stats.1911, Ex. Sess., pp. xvi-xviii), the Legislature was the sole legislative body. At that time, therefore, to deny legislative power to the Legislature was necessarily to deny legislative power to the legislative body as such. In 1911, when the people took the legislative power for themselves, they took it on these terms; they did not exempt themselves from existing substantive limits on the legislative power. After 1911 and to the present day, then, section 19(a) barred either legislative body, the people or the Legislature, from authorizing lotteries (subject, of course, to the exceptions in article IV, section 19, subdivisions (c) and (d) for charitable bingo and the California State Lottery). As "[t]he Legislature" in section 19(a) thus denotes the legislative body as such, meaning both the Legislature itself and the people acting through initiative statute, and as section 19(e) was apparently modeled upon section 19(a) and deals with a closely related subject, we should similarly interpret section 19(e) as restricting the legislative power in both its forms of exercise.
We recognize that in 1879, to which the substance of the antilottery provision dates, "[t]he Legislature" could not have been used to exclude the people as a legislative body, inasmuch as the people were not yet such, while in 1984, to which the anticasino provision dates, the phrase could have been so used. There is no indication, however, that it was. From all that appears, section 19(e) was designed to proscribe casinosspecifically, "casinos of the type currently operating in Nevada and New Jersey"by constitutional force, preventing any future legislative authorization of such casinos without constitutional amendment. (See Ballot Pamp., Analysis by Legis. Analyst of Proposition 37, as presented to the voters, Gen. Elec. (Nov. 6, 1984) p. 46 [in addition to establishing state lottery, Prop. 37 "would amend the Constitution to prohibit in California gambling casinos of the type that exist in Nevada and New Jersey. (Casino gambling currently is prohibited within the state by a statute, but not by the Constitution.)"].) It was not designed to proscribe the specified casinos only if they were authorized by the Legislature.[2]
*71 "Casinos."
In common usage around the time that section 19(e) was added to the California Constitution in 1984, a "casino" was defined simply as "a building or room for gambling." (Webster's New Internat. Diet. (3d ed.1961) p. 347, col. 1; accord, e.g., Rose, Gambling and the Law (1986) at p. 4.) In the anticasino provision itself, it does not appear to demand any different signification.
"Of the type currently operating in Nevada and New Jersey."
"Currently" is potentially ambiguous, in that it could refer to 1984, the time of its use in section 19(e), or to the time at which prohibited casinos are purportedly authorized. We adopt the former view. To declare, "The Legislature has no power to authorize ... casinos of the type ... operating in Nevada and New Jersey" in 1984, addresses an evil that was knowable and, in fact, known at the time the anticasino provision was added, that is, the kind of casino then existing in those states. By contrast, to declare, "The Legislature has no power to authorize ... casinos of the type ... operating in Nevada and New Jersey" from time to time, addresses an evil, if evil it be, that is altogether unknown and unknowable. That the amendment drafters or the voters intended only such an attenuated effect is unlikely.
The sense of the other words in this phrase within section 19(e) requires more effort to discern. What was meant by "the type" of casino "operating in Nevada and New Jersey" in 1984? Section 19(e) contains no definition of this phrase. Logic and reference to legislative history, however, allow us to see with reasonable clarity what the drafters and voters intended to prohibit in 1984.
The 1984 constitutional amenders must have had in mind a type of gambling house unique to or particularly associated with Nevada and New Jersey, since they chose to define the prohibited institution by reference to those states. On this logic, the "type" of casino referred to must be an establishment that offers gaming activities including banked table games and gaming devices, i.e., slot machines, for in 1984 that "type" of casino was legal only in Nevada and New Jersey and, hence, was particularly associated with those states. (See Rose, Gambling and the Law, supra, at p. 4 [of the states, only Nevada and New Jersey allow "[c]asinos offering the full range of gambling games"]; id. at pp. 6-7 [detailing gaming operations of the "average Atlantic City casino" in 1984]; Com. on the Review of the Nat. Policy Toward Gambling, Final Rep., Gambling in America (1976) pp. 88-89 [detailing gaming operations of Nevada casinos].)
Similarly, "the type" of casino "operating in Nevada and New Jersey" presumably refers to a gambling facility that did not legally operate in California; something other, that is, than "the type" of casino "operating" in California. The type of casino then operating in California is what has commonly been called a "card room" (see, e.g., Bristow v. Morelli (1969) 270 Cal. App. 2d 894, 897, 76 Cal. Rptr. 203) or "card club" (see, e.g., Wynn v. Monterey Club (1980) 111 Cal. App. 3d 789, 793, 168 Cal. Rptr. 878), a type that did not offer gaming activities including banking games and gaming devices. (See Rose, Gambling and the Law, supra, at pp. 3-4.) A California card room or card club was *72 not permitted to offer gaming activities in the form of: (1) lotteries; (2) banking games, whether or not played with cards; (3) percentage games, whether or not played with cards; (4) slot machines; or (5) games proscribed by name, including twenty-oneall of which were prohibited at least by statute. (See pt. I.A., ante.)
Thus, a casino of "the type ... operating in Nevada and New Jersey" may be understood, with reasonable specificity, as one or more buildings, rooms, or facilities, whether separate or connected, that offer gambling activities including those statutorily prohibited in California, especially banked table games and slot machines.
Real Parties object to this approach as rendering section 19(e) merely an elevation of statutory prohibitions on certain activities to the constitutional level. But the available legislative history suggests section 19(e) was designed, precisely, to elevate statutory prohibitions on a set of gambling activities to a constitutional level. (See Ballot Pamp., Analysis by Legis. Analyst of Proposition 37 as presented to the voters, Gen. Elec. (Nov. 6, 1984) p. 46 [in addition to establishing state lottery, Proposition 37 "would amend the Constitution to prohibit in California gambling casinos of the type that exist in Nevada and New Jersey. (Casino gambling currently is prohibited within the state by a statute, but not by the Constitution.)"]; Ballot Pamp., argument in favor of Prop. 37 as presented to the voters, Gen. Elec. (Nov. 6, 1984) p. 48 [Prop. 37 "adds a new CONSTITUTIONAL PROHIBITION AGAINST CASINO GAMBLING"].) Voters on the 1984 initiative would thus have understood the constitutional provision they added, section 19(e), as focusing on a set of statutorily prohibited activities, i.e. "casino gambling," and as endowing the existing statutory bars on that set of activities with a new, constitutional status.
From the interpretation of section 19(e), we turn to determining the effect of Proposition 5. As stated, Proposition 5, including its model tribal/state compact, authorizes tribal gaming facilities and authorizes in such facilities the operation of tribal gaming terminals, grandfathered class III card games, lotteries, and off-track parimutuel horse race wagering under specified terms and conditions.
As shown below, Proposition 5, including its model tribal/state compact, authorizes what would amount to prohibited casinos. With their tribal gaming terminals and grandfathered class III card games, tribal gaming facilities authorized under the measure would constitute facilities that offer gambling activities including those statutorily prohibited to card clubs in California in 1984, especially banked table games and slot machines.
According to Real Parties, who rely on the "players' pool prize system" of Proposition 5, the grandfathered class III card games, specifically including blackjack, are lotteries. According to the Union and Cortez, they are banking games.
We conclude the card games in question are not lotteries, but banking games. Here, unlike in lotteries, the Indian tribe does not "distribute" to a "winner or winners" (Western Telcon, supra, 13 Cal.4th at p. 485, 53 Cal. Rptr. 2d 812, 917 P.2d 651), with "no interest in the outcome" of the play (id. at p. 488, 53 Cal. Rptr. 2d 812, 917 P.2d 651), a "prize or prizes" (id. at p. 485, 53 Cal. Rptr. 2d 812, 917 P.2d 651) that are invariable because they are "either fixed in advance or determined by the total amount" of fees paid (id. at p. 489, 53 Cal. Rptr. 2d 812, 917 P.2d 651). Rather, as in other banking games, the tribe, through the prize pool, simply "pays off all winning wagers and keeps all losing wagers," (id. at p. 485, 53 Cal. Rptr. 2d 812, 917 P.2d 651) which are variable "because the amount of money" it "will have to pay out," or be able "depends upon whether each of the individual bets is won or lost" (id. at p. 488, 53 Cal. Rptr. 2d 812, 917 P.2d 651).
That the tribe must "pay[] all winners, and collect[] from all losers" *73 (Sullivan v. Fox, supra, 189 Cal.App.3d at p. 678, 235 Cal. Rptr. 5) through a fund that is styled a "players' pool" is immaterial: the players' pool is a bank in nature if not in name. It is a "` "fund against which everybody has a right to bet, the bank ... taking all that is won, and paying out all that is lost."` " (Western Telcon, supra, 13 Cal.4th at p. 487, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) Theoretically, an extraordinary run of good luck by one or more gamblers in a short period could exhaust the players' pool, thus breaking the bank, a course of events that cannot occur even theoretically in a lottery. (Id. at p. 488, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) True, the players' pool is limited in what it pays but not in what it collectsin that the tribe is prohibited from lending the pool money "to pay prizes previously won" ([Gov.Code, § 98004, model compact § 2.16]; accord, id., § 98006, subd. (a)). But, as we explained in Western Telcon, the fact that payouts on wagers must be made from a limited fund of money does not transform a banking game into a lottery. (Western Telcon, supra, at pp. 493-494, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) Such a banker simply finds itself "in the enviable position of a gambler who has, by law, an upper limit to his losses." (Id at p. 494, 53 Cal. Rptr. 2d 812, 917 P.2d 651.)
That Proposition 5 does not limit tribal casinos to card games operated as lotteries is especially clear if one focuses on the manner in which payouts are calculated under the "players' pool" system. Although this fund is the only permitted source of payouts, nothing in Proposition 5 or its model compact requires that payouts be calculated as shares of the "pool." (See Western Telcon, supra, 13 Cal.4th at p. 492, 53 Cal. Rptr. 2d 812, 917 P.2d 651 [California State Lottery's Keno a banking game rather than a lottery because payouts are fixed rather than "calculated as shares of a `prize pool.'"].) Of course, a lottery may use fixed prizes rather than a parimutuel system. "In a fixed-prize lottery, however, the total prize amount must be fixed in advance of the draw. If fixed prizes are offered, in other words, the number of such prizes must also be determined in advance of the draw." (Id. at p. 490, 53 Cal. Rptr. 2d 812, 917 P.2d 651, italics in original.) Again, nothing in Proposition 5 or its model compact requires that the number of fixed payouts for a given game be determined in advance of the game.[3]
Real Parties argue the games allowed under Proposition 5 are not house banked because the casino's tribal owner/operator cannot profit from surpluses in the "players' pool," which is dedicated to payment of prizes. Even if true, this limitation would not make the games lotteries rather than banking games, since a banking game, within the meaning of Penal Code section 330's prohibition, may be banked by someone other than the owner of the gambling facility. (Oliver v. County of Los Angeles (1998) 66 Cal. App. 4th 1397, 1407-1409, 78 Cal. Rptr. 2d 641.)[4] In any event, that the tribal operator does not profit from the prize pool's winnings is not *74 strictly true. The tribe retains an "interest in the outcome" of play (Western Telcon, supra, 13 Cal.4th at p. 488, 53 Cal. Rptr. 2d 812, 917 P.2d 651) even if it "neither has nor can acquire any interest" in the players' pool itself, which is "irrevocably dedicated to the prospective award of prizes in authorized gaming activities" (Gov.Code, § 98004, model compact § 2.16; accord, id., § 98006, subd. (a)). The more the players' pool collects from losers and the less it pays to winners, the lower the tribal operator's coststhe less likely it will be compelled to lend seed money to the players' pool in the future, the more likely it will be able to obtain repayment of seed money lent to the pool in the past. Conversely, the less the pool collects and the more it pays, the higher the operator's costs. Of necessity, moreover, the operator of a casino authorized under Proposition 5 must be concerned with maintaining ample funds in the players' pool or pools, since depletion of those funds will require lower payouts, hence worse odds on players' bets, hence less action to generate fee revenue for the operator. Even under Proposition 5's players' pool prize system, therefore, the "house" retains an interest in the outcome of play.
As to the "Tribal gaming terminals" (Gov.Code, § 98004, model compact §§ 2.21, 4.1(a)) or "gaming or gambling device[s]" (id., § 98006, subd. (b)) authorized by Proposition 5, Real Parties contend they differ from the slot machines found in Nevada and New Jersey casinos in two respects: first, they are not house banked, but rather operate as lotteries, because they must be conducted according to the players' pool prize system, and second, they "do not dispense coins or currency and are not activated by handles" (Gov. Code, § 98006, subd. (b); accord, id., § 98004, model compact § 2.21). The first assertion, as we have just seen, is incorrect. The player's pool prize system does not convert a game or device into a lottery; tribal gaming devices are not lottery terminals, rather than slot machines, merely because a player's winnings must come from, and his or her losses go into, a particular fund. The second assertion, while true, is immaterial. A slot machine is no less machine under California law because it dispenses a "credit, allowance or thing of value," rather than money (Pen.Code, § 330b, subd. (2)), or because it is "caused to operate" by one "means" rather than another (ibid.). Nor would the voters on the 1984 constitutional amendment likely have understood section 19(e) to permit casinos so long as the slot machines therein were activated by buttons rather than levers, and dispensed chips or electronic credits rather than coins.[5]
Real Parties point to several other respects in which tribal casinos authorized by Proposition 5 will presumably differ from the archetypical 1984 Nevada or New Jersey casino: tribal casinos will not be clustered together in an urban "strip"; tribal casinos, assertedly, may not serve free alcohol; tribal casinos will not be able to offer banked noncard games such as craps and roulette; and tribal casinos will be owned by tribes and the revenues used for tribal purposes. These asserted characteristics, however, fail meaningfully to distinguish casinos authorized under Proposition 5 from those prohibited by section 19(e). We think it highly unlikely that the 1984 constitutional amenders, who were told the measure before them would constitutionalize California's statutory prohibitions on "casino gambling," were concerned with such secondary nongambling *75 features of casinos as their mutual proximity or service of free alcohol. As to banked noncard games, we cannot agree that a casino offering activities including banked card games and slot machines differs in fundamental type from one offering, in addition, roulette and craps. Finally, because private ownership and forprofit operation were not unique to Nevada and New Jersey gambling facilities in 1984, and, indeed, characterized permitted California facilities such as card clubs and horse racing tracks, private ownership and for-profit operation could not logically have been the characteristics to which the constitutional amenders intended to refer in prohibiting "casinos of the type currently operating in Nevada and New Jersey."
In concluding as we do, we do not overlook the finding made in Proposition 5 that "casinos of the type currently operating in Nevada and New Jersey are materially different from ... tribal gaming facilities... in that the casinos in those states (1) commonly offer their patrons a broad spectrum of house-banked games, including but not limited to house-banked card games, roulette, dice games, and slot machines that dispense coins or currency, none of which games are authorized" under the measure, including its model tribal/state compact; and "(2) are owned by private companies, individuals, or others that are not restricted on how their profits may be expended, whereas tribal governments must be the primary beneficiaries of the gaming facilities ..., and are limited to using their gaming revenues for various tribal purposes, including tribal government services and programs such as those that address reservation housing, elderly care, education, economic development, health care, and other tribal programs and needs, in conformity with federal law." (Gov.Code, § 98001, subd. (c).)
"As a general rule, `[i]t is not the judiciary's function ... to reweigh the [findings of] "legislative facts" underlying a legislative enactment.'" (American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 348, 66 Cal. Rptr. 2d 210, 940 P.2d 797 (plur. opn. of George, C.J.).) To the extent the quoted findings actually state legislative facts, we follow the general rule of deference here. Thus we may take it is as given, for example, that the tribal facilities authorized by Proposition 5 would use their net revenues for tribal purposes, and that in this respect they differ from privately owned Nevada and New Jersey casinos. As just discussed, however, private ownership and for-profit operation did not distinguish Nevada and New Jersey casinos from California card clubs in 1984 and, therefore, these were almost certainly not the characteristics to which the drafters and voters intended to refer when barring authorization of casinos "of the type currently operated in Nevada and New Jersey."
To the extent the quoted findings do not consist of legislative fact, but of statutory or constitutional interpretation interpretation of section 19(e) or of California statutory law regarding lotteries and banking gamesthe general rule of deference is not implicated. The "finding" to the effect that the games and devices authorized under Proposition 5 are not banked card games and slot machines, for example, is a pure statement of law that we must independently evaluate (and, having done so, have found incorrect). Most importantly, the general statement that "casinos of the type currently operating in Nevada and New Jersey are materially different from the tribal gaming facilities authorized under this chapter" (Gov.Code, § 98001, subd. (c)) is not a "finding" of "legislative fact" or indeed of any other kind of "fact." Rather, it is a construction of the anticasino provision of section 19(e). As such, it commands no deference on our part, because we construe the provisions of the California Constitution independently. (Nougties v. Douglass, supra, 7 Cal. at p. 70 ["It would be idle to make the Constitution the supreme law, and then require the judges to take the oath to support it, and after all that, require the Courts to *76 take the legislative construction as correct."]; see also Raven v. Deukmejian (1990) 52 Cal. 3d 336, 354, 276 Cal. Rptr. 326, 801 P.2d 1077.)
Against the conclusion that Proposition 5 is invalid as inconsistent with the anticasino provision of section 19(e), Real Parties argue that IGRA preempts the anticasino provision itself. More particularly, they argue that under IGRA states may not regulate the manner in which permitted class III games are played or, indeed, impose any regulation except to prohibit specific games, by any means other than a tribal/state compact. Because section 19(e) is not a prohibition on particular gaming activities, but on conducting them in a Nevada- or New Jersey-style casino, Real Parties argue, IGRA preempts its application to tribal gaming.
Real Parties' preemption argument fails because neither of the premises upon which it rests is true. First, contrary to their representation, IGRA does not exempt gambling on Indian lands from state regulatory laws. Indeed, section 23 of IGRA provides that "for purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of gambling ... shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State." (18 U.S.C. § 1166(a).) Subsection (c) of the same section recognizes an exception to that rule for class III gaming conducted under a tribal/state compact but, as we further explain below, such a compact may not go into effect unless it is validly entered into under state law, which the model compact in Proposition 5 could not be, because its approval would violate section 19(e). In the absence of a valid tribal/state compact, therefore, California law regulating class III gaming activities does apply to such gaming on Indian lands, although the federal government has exclusive jurisdiction to prosecute violations of that law criminally. (18 U.S.C. § 1166(d); see U.S. v. E.C. Investments, Inc. (9th Cir.1996) 77 F.3d 327, 330-331 [in absence of compact, prohibition of slot machines in Penal Code section 330b applies to operation of such devices on Indian reservation, although only the federal government has jurisdiction to prosecute a violation].) Second, the argument incorrectly characterizes section 19(e): that provision does, in substantial part, prohibit specific gambling activities, including slot machines, banked card games and other banking games, when conducted in a casino setting.
More generally, Real Parties' reliance on IGRA is misplaced because IGRA legalizes only gaming conducted pursuant to a compact validly entered into by both the state and the tribe. In section 11(d)(1), IGRA declares that "[c]lass III gaming activities" are "lawful ... only if such activities are ... conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ... that is in effect." (25 U.S.C. § 2710(d)(1).) To be "entered into" by the state and the tribe means to be "entered into" validly in accordance with state (and tribal) law. (See Pueblo of Santa Ana v. Kelly (10th Cir.1997) 104 F.3d 1546, 1555 [concluding "the `entered into' language imposes an independent requirement and the compact must be validly entered into by a state before it can go into effect, via Secretarial approval, under IGRA" (fn.omitted)]; id. at pp. 1550-1551, 1557-1559 [agreeing with New Mexico Supreme Court that compact was invalid under the law of that state because the Governor did not have authority, without legislative enactment, to bind state to compact authorizing casino gambling otherwise prohibited by state law]; Kickapoo Tribe of Indians v. Babbitt (D.D.C.1993) 827 F. Supp. 37, 44-46, reversed on other grounds sub nom. Kickapoo Tribe of Indians in Kansas v. Babbitt (D.C.Cir.1995) 43 F.3d 1491 [same as to compact invalidly signed by Governor of Kansas]; see also Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44, 47, 116 S. Ct. 1114, 134 L. Ed. 2d 252 [observing that IGRA "provides that an Indian tribe may conduct *77 certain gaming activities only in conformance with a valid compact between the tribe and the State" (italics added)].)
With respect to a tribal/state compact, IGRA balances the interests of the state and the tribe. Its balancing is predicated on a recognition that the state and the tribe are sovereigns, albeit sovereigns subordinate to the federal union. That fact is implied in its provisions and is express in its legislative history, which presents the "use of compacts between tribes and states" as the "best mechanism to assure that the interests of both sovereign entities are met...." (Sen.Rep. No. 100-446, 2d Sess., p. 13 (1988), reprinted in 1988 U.S.Code Cong. & Admin. News, at p. 3083.) To recognize that the state and the tribe are sovereigns entails an acknowledgment that the law of each operates in its proper sphere and, therefore, that the law of each governs the validity of its own entry into a compact. IGRA would not make lawful particular gaming activities included in a compact if the compact itself were not validly entered into under the law of both the state and the Indian tribe in question. Such is the case here for the model tribal/state compact set forth in Proposition 5: entry into such a compact is beyond the legislative power under the law of California, conflicting as it would with the anticasino provision of section 19(e).
IV. Severability of Valid and Invalid Provisions
We therefore conclude Proposition 5 is inconsistent with the anticasino provision of section 19(e), insofar as it authorizes what would amount to proscribed casinos. Of course, a statute that is invalid as inconsistent with the California Constitution is not ineffective and inoperative to the extent that its invalid parts can be severed from any valid ones. (See, e.g., Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal. 3d 805, 821-822, 258 Cal. Rptr. 161, 771 P.2d 1247.) An invalid part can be severed if, and only if, it is "grammatically, functionally and volitionally separable." (Id at p. 821, 258 Cal. Rptr. 161, 771 P.2d 1247.) It is "grammatically" separable if it is "distinct" and "separate" and, hence, "can be removed as a whole without affecting the wording of any" of the measure's "other provisions." (Id at p. 822, 258 Cal. Rptr. 161, 771 P.2d 1247.) It is "functionally" separable if it is not necessary to the measure's operation and purpose. (See id. at pp. 821, 822, 258 Cal. Rptr. 161, 771 P.2d 1247.) And it is "volitionally" separable if it was not of critical importance to the measure's enactment. (Id. at p. 822, 258 Cal. Rptr. 161, 771 P.2d 1247.)
Although Proposition 5 and its model tribal/state compact both contain severability clauses (Gov.Code, § 98004, model compact § 14.0; id., § 98007), and although Proposition 5's invalid parts authorizing what would amount to proscribed casinos are grammatically separable, the invalid provisions are not functionally or volitionally separable from the remainder of the model compact or from Proposition 5 as a whole. First, the model compact as a whole is inseparable, both functionally and volitionally, from the compact's authorization of casino gambling. Without the provisions authorizing the operation of tribal gaming terminals and grandfathered class III card games, tribal gaming facilities would remain authorizedbut without resolution of the chief conflicts over class III Indian gaming that prompted the measure's circulation and passage. By the measure's own declaration, its authorization of gaming, including that authorized in the model tribal/state compact, was intended to be comprehensive, that is, to resolve the "uncertainties" regarding class III gaming, including tribal gaming terminals and class III card games, "in an efficient and cost-effective way." (Gov.Code, § 98001, subd. (b).) It would not be such if it should prove to resolve nothing about these gaming activities. Nor can the compact as a whole be considered volitionally separate from its authorization of casino gambling. The scope of authorized gambling *78 was of "critical" importance to the "enactment" of the measure, including its offer of a model compact (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at p. 822, 258 Cal. Rptr. 161, 771 P.2d 1247), because the scope of gambling was of critical importance to the measure itself.
Even apart from Government Code section 98004, which sets forth the model compact, and Government Code section 98006, which separately but in parallel fashion authorizes tribes to operate casinos prohibited by section 19(e), almost all of the measure's remaining provisions are functionally dependent on the existence of a model compact and the authorization of casino gambling. Setting aside the title (Gov.Code, § 98000), findings (id., § 98001), severability clause (id., § 98007), grant of gubernatorial signing authority (id., § 98008), guide to construction (id., § 98010) and amendability clause (id., § 98012), none of which could function separate from the measure as a whole, all the remaining sections of the measure except section 98005 concern the model compact or the gambling authorized under the compact and Government Code section 98006. (Id., §§ 98002, 98003, 98004, 98006, 98009, 98011.)
The first sentence of Government Code section 98005, as well, concerns the model compact. The second, and final, sentence of section 98005, however, deals with a functionally separate subjectthe State's waiver of immunity from suit in disputes arising out of negotiations for new or amended tribal/state compacts other than the measure's model compact. It provides as follows: "Without limiting the foregoing, the State of California also submits to the jurisdiction of the courts of the United States in any action brought against the state by any federally recognized California Indian tribe asserting any cause of action arising from the state's refusal to enter into negotiations with that tribe for the purpose of entering into a different Tribal-State compact pursuant to IGRA or to conduct those negotiations in good faith, the state's refusal to enter into negotiations concerning the amendment of a Tribal-State compact to which the state is a party, or to negotiate in good faith concerning that amendment, or the state's violation of the terms of any Tribal-State compact to which the state is or may become a party." (Gov.Code, § 98005.)
The consent to suit contained in the final sentence of Government Code section 98005 is functionally separable from the measure's authorization of casino gambling and its model compact. It concerns neither the scope of gambling permitted to tribes nor the implementation of the model compact but, rather, the resolution of future disputes concerning the negotiation, amendment and performance of compacts "different" from Proposition 5's model compact. In significant part, it would affect the resolution of any dispute arising out of the course of future negotiations for compacts tribes may seek in lieu of the compact invalidly offered in Proposition 5.
The final sentence of section 98005 is also volitionally separable from Proposition 5's authorization of casino gambling and its model compact. The enactors of Proposition 5 sought, among other things, to expedite and remove obstacles from the process of reaching tribal/state agreements on class III gaming. (Gov.Code, § 98001, subd. (b).) They sought to do so within the framework of IGRA. (Id., subd. (a).) As part of its framework for negotiating class III gaming compacts, IGRA provides for a tribal action in United States District Court against a state that has refused to negotiate for a compact or has failed to do so in good faith. (25 U.S.C. § 2710(d)(7)(A)(i).) The tribal remedy provided by Congress lost its effectiveness, however, with the United States Supreme Court decision in Seminole Tribe of Fla. v. Florida, supra, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252, to the effect that state sovereign immunity embodied in the Eleventh Amendment prevents Congress from authorizing suits in federal district court by Indian tribes against states to *79 enforce legislation enacted under the Indian Commerce Clause and, hence, that, in the absence of a state's consent to suit, the Eleventh Amendment renders invalid IGRA's purported grant to such court of jurisdiction. The final sentence of section 98005, in providing the state's consent to such a suit, is obviously intended to restore to California tribes the remedy provided in IGRA. Because doing so will tend to effectuate and expedite IGRA's process for achieving class III Indian gaming compacts, one of the express goals of Proposition 5, we are confident the enactors of Proposition 5 would have approved this portion of the measure even if they had known the remainder could not constitutionally be given effect.
The final sentence of Government Code section 98005 also survives the other challenges petitioners make to Proposition 5's validity: It is not beyond the people's initiative power as failing to enact a statute; subject to constitutional limitations, a statute may define the scope of the government's immunity to suit. (See, e.g., 28 U.S.C. §§ 2671-2680 [Federal Tort Claims Act]; Gov.Code, §§ 810-997.6 [California Tort Claims Act].) It does not impermissibly infringe on the Governor's executive power, as waiver of immunity is not an exclusively executive function. (See ibid.) It is not preempted by IGRA, as it is consistent with and furthers the purposes of IGRA. (Because all other provisions of Proposition 5 are invalid under section 19(e) or are inseparable from such invalid provisions, we need not address petitioners' remaining challenges as they concern Proposition 5 in general.)
CONCLUSION AND DISPOSITION
For the reasons stated above, we conclude that Proposition 5, except for the final sentence of Government Code section 98005, is invalid because it is inconsistent with the anticasino provision of article IV, section 19, subdivision (e) of the California Constitution.
We therefore discharge the orders to show cause and direct issuance of a peremptory writ of mandate compelling the Governor and the Secretary of state not to implement Proposition 5, with the exception of the final sentence of Government Code section 98005.
GEORGE, C.J., and CHIN, J., BROWN, J., GILBERT, J.,[*] and GAUT, J.,[**] concur.
Dissenting Opinion by KENNARD, J.
One of the fundamental powers reserved to the people of this state is the power to enact legislation by initiative. This court has recognized the importance of that power: "[T]he initiative power must be liberally construed to promote the democratic process. [Citation.] Indeed it is our solemn duty to jealously guard the precious initiative power, and to resolve any reasonable doubts in favor of its exercise.... [A]ll presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient; such measures must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears." (Legislature v. Eu (1991) 54 Cal. 3d 492, 501, 286 Cal. Rptr. 283, 816 P.2d 1309, italics in original.)
At the November 1998 General Election, the voters of California exercised their initiative power and enacted into law Proposition 5. The initiative offers Indian tribes a model agreement, or compact, regulating the conditions of gambling on Indian lands. Federal law requires either such a compact, or authorization by the Secretary of the Interior, before tribes may conduct gambling.
*80 Today, the majority rejects the will of the people by invalidating the model compact of Proposition 5. It concludes that the compact authorizes forms of gambling the state Constitution prohibits and therefore exceeds the people's power to legislate. Specifically, section 19, subdivision (e) (section 19(e)) of article IV of the California Constitution forbids legislation "authoriz[ing]" casinos of the type operating in New Jersey and Nevada. According to the majority, two of the forms of gambling regulated by the model compactgaming terminals and card games operated under a "players' pool prize system"are banking games rather than lotteries, and are therefore forms of casino gambling prohibited under section 19(e). In the majority's view, the model compact authorizes these forms of casino gambling and therefore violates section 19(e). I disagree.
First, because federal law has preempted the field of Indian gambling regulation, it is federal law, not state law, that authorizes Indian gambling. Federal law encourages tribes and states to enter into compacts addressing gambling on Indian land. By entering into a compact with a tribe, a state may influence the conditions under which Indian gambling is conducted and the regulations to which the gambling is subject, but a state lacks the power to either forbid or authorize Indian gambling. Thus, contrary to the majority, the model compact of Proposition 5 does not authorize Indian gambling and thus does not violate section 19(e) of article IV of the California Constitution.
Second, federal law authorizes a tribe to offer any form of gaming otherwise permitted by the state in which the tribe is located. California law permits lotteries but prohibits banking games. The gaming terminals and card games regulated by Proposition 5's model compact are lotteries rather than banking games because they operate under a players' pool prize system. Therefore, federal law authorizes California tribes to offer these games.
I
The Primacy of Federal Authority Over Indian Gambling
As the aboriginal possessors of America, Indian tribes have a unique and sovereign relationship with both the federal government and the states within which they are located. Tribal sovereignty and the federal power over Indian relations greatly limit the power of states to regulate Indian tribes and activities on tribal lands without congressional authorization. "`Indian relations [are] the exclusive province of federal law.'" (Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44, 60, 116 S. Ct. 1114, 134 L. Ed. 2d 252.) From the earliest days of our nation, states have lacked any general sovereign power over Indian tribes and tribal lands. As Chief Justice John Marshall said in a case rejecting the State of Georgia's attempt to apply its criminal laws within Cherokee tribal lands: "The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." (Worcester v. Georgia (1832) 31 U.S. (6 Peters) 515, 561, 8 L. Ed. 483.)
As the United States Supreme Court has explained, there are two independent but related barriers to a state's attempt to assert its power over activities on Indian lands. (White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136, 142-145, 100 S. Ct. 2578, 65 L. Ed. 2d 665.) One is the sovereign status of Indian tribes; the other is the federal Constitution's grant of power to Congress over Indian affairs. (Ibid.)
These barriers are not entirely fixed, however; Congress may also delegate to *81 the states some of its power over Indian affairs by authorizing the application of state law to Indian affairs. For example, in title 18 United States Code section 1162, enacted in 1953, Congress granted to certain states (including California) jurisdiction over criminal offenses in "Indian country," and it extended state criminal law to Indian country. Subsequently, California asserted that this grant of criminal jurisdiction authorized it to apply state gambling laws to Indian country.
In California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244, the United States Supreme Court rejected California's argument that in enacting title 18 United States Code section 1162 Congress had intended to extend all state gambling laws to Indian country. Rather, the high court held that under section 1162 only those state laws that entirely prohibited a particular form of gambling ("criminal/prohibitory" laws) could be applied to Indian country, and not those state laws that only restricted but did not prohibit a form of gambling ("civil/regulatory" laws). (480 U.S. at p. 209, 107 S. Ct. 1083.)
In the wake of that decision, Congress in 1988 enacted a detailed statutory scheme, the Indian Gaming Regulatory Act (IGRA), to regulate gambling on tribal lands. (Pub.L. No. 100-97 (Oct. 17, 1988) 102 Stat. 2467, codified at 18 U.S.C. §§ 1166-1168 and 25 U.S.C. §§ 2701-2721.) In the structure and scope of IGRA, which comprehensively addresses all forms of gambling on Indian lands, Congress made clear its intent that IGRA preempt the field of regulation of Indian gambling. Congress also made clear this intent to preclude state jurisdiction over Indian gambling in the statute's legislative history: "[IGRA] is intended to expressly preempt the field in the governance of gaming activities on Indian lands." (Sen. Rep. No. 100-446, 2d Sess., p. 6 (1988) reprinted at 1988 U.S. Code Cong. & Admin. News, p. 3076.) "[U]nless a tribe affirmatively elects to have State laws and State jurisdiction extend to tribal lands, the Congress will not unilaterally impose or allow State jurisdiction on Indian lands for the regulation of Indian gaming activities." (Id, 1988 U.S.Code Cong. & Admin. News, at p. 3075, italics added.)
IGRA divides all forms of gambling into three classes. The forms of gambling regulated by Proposition 5 and at issue here are so-called "class III gaming activities." (25 U.S.C. § 2703.) Section 2710(d)(1) of title 25 United States Code (hereafter section 2710(d)(1)) as a matter of federal law, conditionally authorizes tribes to engage in class III gaming activities that the state permits someone else to engage in. IGRA establishes three conditions for authorization: "Class III gaming activities shall be lawful on Indian lands only if such activities are[¶] (A) authorized by an ordinance or resolution" adopted by the tribe and approved by the Chairman of the National Indian Gaming Commission, "(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and [¶] (C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ... that is in effect." (Ibid) The second condition for authorization (condition (B)) is essentially the distinction that California v. Cabazon Band of Mission Indians, supra, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244, drew between gambling activities a state absolutely prohibits, and those it regulates or restricts but does not prohibit. In the words of IGRA: "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity." (25 U.S.C. § 2701(5), italics added.)
Section 2710(d) further provides a detailed mechanism by which a tribe may negotiate and enter into a tribal/state gambling compact, and by which the Secretary of the Interior may authorize tribal gambling *82 in the absence of a tribal/state gambling compact if a state refuses to enter into such a compact. Nothing in those provisions suggests that a state may use the process of negotiating and entering into compacts to prohibit a tribe from engaging in class III gaming activities that the state permits someone else to engage in.
IGRA also removed the power of states, recognized in California v. Cabazon Band of Mission Indians, supra, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244, to apply to Indian lands those state laws absolutely prohibiting a particular form of gambling. Instead, IGRA included a new federal criminal statute, codified at 18 United States Code section 1166, criminalizing gambling in "Indian country" that is not authorized by IGRA. The federal statute adopts "for purposes of Federal law" state gambling laws, but the federal government has exclusive jurisdiction to prosecute these offenses. (Ibid.)
Thus, if a state authorizes class III gaming activities by anyone, federal law authorizes a tribe to engage in those same activities once the tribe adopts an Indian gambling ordinance approved by the Chairman of the National Indian Gaming Commission and enters into a compact with the state. If the state fails or refuses to reach an agreement with the tribe, the Secretary of the Interior may authorize tribal gambling.
Several crucial points emerge from this review of IGRA. First, authorization or prohibition of Indian gambling is exclusively a matter of paramount federal law. Where Indian gambling is authorized, it is authorized by operation of federal law. Where Indian gambling is prohibited, it is prohibited by operation of federal law. Although a state's gambling law may shape the contours of the federal authorization, a state may not directly prohibit Indian gambling as such. A state may not criminalize or prosecute any tribal gambling activities, even for forms of gambling that the state prohibits to everyone. Only the federal government may prosecute gambling that IGRA does not authorize. Nor can a state on its own authorize Indians to engage in gambling, even gambling that it permits everyone else to engage in. For example, even if slot machines were legal everywhere else in California, IGRA would still prohibit their use on a reservation absent an approved tribal ordinance and a tribal/state compact. Even the power of a state to shape the contours of federal authorization is extremely limited. Once a state permits even a single entity (including the state itself) to engage in a class III gaming activity, federal law authorizes all tribes within the state to engage in that form of gambling (once they adopt an approved tribal ordinance and either enter into a compact or, if the state refuses to enter into a compact, receive authorization from the Secretary of the Interior).
II
Does the Model Compact of Proposition 5 Violate the California Constitution?
Do the California Constitution's prohibitions of legislative authorization of gambling bar the state from entering into the model tribal/state compact in accordance with IGRA, as the majority concludes? The answer is no. Three state constitutional provisions found in section 19 of article IV of the California Constitution are pertinent. Subdivision (a) of article IV, section 19 provides: "The Legislature has no power to authorize lotteries and shall prohibit the sale of lottery tickets in the State." Subdivision (d) of article IV, section 19 qualifies the lottery ban by authorizing a state lottery: "Notwithstanding subdivision (a), there is authorized the establishment of a California State Lottery." Subdivision (e) of article IV, section 19 provides: "The Legislature has no power to authorize, and shall prohibit casinos of the type currently operating in Nevada and New Jersey." *83 By entering into a tribal/state compact the state does not "authorize" lotteries or other forms of gambling. A state may only authorize, or prohibit, acts that are within the limits of its sovereignty. For the reasons stated above, it is utterly beyond the sovereign power of California to authorize or prohibit gambling on Indian lands within the state. California can no more authorize gambling on Indian lands than it can authorize gambling in another state. Section 19 of article IV of the California Constitution removes from the Legislature any power that the Legislature would otherwise have to authorize or prohibit lotteries or gambling casinos. For Indian gambling, however, the Legislature would not otherwise have the power to authorize or prohibit lotteries or gambling casinos because federal law completely preempts the field of Indian gambling and it is federal law, not state law, that authorizes or prohibits Indian gambling. Although the state may facilitate Indian gambling by negotiating and entering into a compact, doing so does not authorize Indian gambling in the sense of granting permission for an act the state otherwise has the power to prohibit. Nor does a state's failure to enter into a compact have the effect of prohibiting Indian gambling, for in the absence of a compact IGRA directs the Secretary of the Interior to establish procedures governing tribal gambling. The Legislature or, in this case, the voters, cannot sensibly be described as "authorizing" something they lack the power to prohibit.
To be sure, as the majority notes, the model compact purports to "authorize" tribes to engage in certain forms of class III gaming. (Gov.Code, § 98004, Tribal-State Gaming Compact, § 4.1.) Whether a tribe is authorized to engage in class III gaming, however, is a question of federal, not state, law. Whatever the compact may say, it cannot authorize a tribe to engage in class III gaming. For example, if the state otherwise completely prohibits a form of class III gaming, a compact purporting to authorize a tribe to engage in that form of gambling would be ineffectual, for condition (B) of section 2710(d)(1) would prohibit the tribe as a matter of federal law from offering that form of gambling.[1]
The parallel case of an interstate compact regulating gambling in another state also illustrates why a tribal/state gambling compact does not unconstitutionally authorize gambling. To further California's interests, the Legislature has entered into a compact with the neighboring State of Nevada, the Tahoe Regional Planning Compact, regulating the number and size of gaming facilities located in Nevada within the Lake Tahoe Basin. (Gov.Code, § 66801, Tahoe Regional Planning Compact, art. VI, §§ (d), (f).) That compact has never been considered to be an act by the Legislature authorizing casinos within the meaning of the term "authorize" as used in section 19 of article IV of the California Constitution.
Indeed, if any act of the State of California may be properly characterized as authorizing Indian gambling, it is the enactment of the constitutional provisions and statutes creating the California state lottery and horse race wagering. (Cal. Const., art. IV, § 19, subds.(b), (d).) These statutes authorizing forms of class III gambling trigger by force of federal law the collateral consequence of authorizing Indian tribes to engage in the same forms of gambling. But these statutes are constitutionally permitted; therefore, if they are the act of authorization of tribal gambling there is nothing unconstitutional about the authorization.
Accordingly, I conclude that the act of entering into a tribal compact pursuant to *84 IGRA is not the authorization of gambling within the meaning of section 19 of article IV of the California Constitution, for under IGRA a state lacks the power either to authorize or prohibit a tribe from engaging in gambling. The next question is whether the forms of gambling addressed by Proposition 5's model compact are authorized by IGRA as a matter of federal law.
III
Does IGRA Authorize the Forms of Indian Gambling Regulated by Proposition 5's Model Compact?
Because I conclude that the California Constitution does not bar the model compact of Proposition 5, I also reach the question of whether, as petitioners contend, the model compact conflicts with IGRA by allowing forms of gambling that IGRA does not authorize. In applying IGRA here, the initial question is whether two forms of class III gaming activities included in the model compact of Proposition 5gaming terminals under a players' pool prize system and card games under a players' pool prize system-are forms of gambling otherwise permitted in California and therefore meet IGRA's second condition for authorization of class III gaming activities: "Class III gaming activities shall be lawful on Indian lands only if such activities are ... [¶] ... [¶] (B) located in a State that permits such gaming for any purpose by any person, organization, or entity[.]" (§ 2710(d)(1).) In considering this question, it is important to recognize that, while state law defines the forms of gambling activities the state permits, the question of whether a form of tribal gambling falls within a category of gambling activities permitted by the state is ultimately a question of federal law.
The question whether gaming terminals under a players' pool prize system and card games under a players' pool prize system meet IGRA's above quoted second condition for authorization of class III gaming activities can in turn be broken down into two subordinate questions. First, what forms of class III gaming does California permit, even if only to a single person or entity? The answer is lotteries and horse race wagering. Thus, any California Indian tribe may offer these forms of gambling, and federal law obligates the state to negotiate a tribal-state compact addressing these forms of gambling. Second, are the gaming terminals and card games under a players' pool prize system described in Proposition 5's model compact either lotteries or horse race wagering? For the reasons I shall explain hereafter, I conclude that gaming terminals and card games under a players' pool prize system are essentially lotteries and thus within the scope of gambling activities that California "permits ... for any purpose by any person, organization, or entity." (§ 2710(d)(1).)
To determine whether gaming terminals and card games under a players' pool prize system are lotteries, it is necessary to examine the difference between a lottery and a banking game. In Western Telcon, Inc. v. California State Lottery (1996) 13 Cal. 4th 475, 53 Cal. Rptr. 2d 812, 917 P.2d 651, this court discussed this difference extensively. Although the state law definition of the term "lottery" is not ultimately controlling for purposes of federal law, the principles for distinguishing a lottery from a banking game discussed in that case are helpful here.
Our court said a lottery requires a prize offered by the operator, distributed on the basis of chance, to players who have paid consideration for the opportunity to win. (Western Telcon, Inc. v. California State Lottery, supra, 13 Cal. 4th 475, 484, 53 Cal. Rptr. 2d 812, 917 P.2d 651.) We explained: "[A] `"purse, prize, or premium is ordinarily some valuable thing offered by a person for the doing of something by others, into the strife for which he does not enter. He has not a chance of gaining the thing offered; and, if he abide by his offer, that he must lose it, and give it over to *85 some of those contending for it, is reasonably certain."' ... `[a] lottery operator does not "wager" or hazard his property against that of others. Whether the property offered by the lottery operator will be distributed is not the issue, as it is in gaming; in a lottery, the only issue is to whom will the property be distributed and the lottery operator, earning his revenue as a portion of the ticket sales, is not himself a contender for the prize.'" (Id. at pp. 485-486, 53 Cal. Rptr. 2d 812, 917 P.2d 651, italics omitted.)
"[T]he scheme in [People v.] Postma [(1945) 69 Cal. App. Supp. 2d 814, 818, 160 P.2d 221] was not a lottery because the operators offered no prize for disposal or distribution to others. Instead, they bet individually against each participant on the outcome of a race. In each bet, the operators had a chance to win the other bettor's stake and retain their own. In each bet, by the same token, the operators risked losing their stake. Unlike a lottery operator, who has offered a prize for reasonably certain disposal and has no interest in the outcome of the chance device by which the winner or winners are chosen, the operators in Postma had an interest in the outcome of each bet. It was possible, at least theoretically, that the operators might win all the bets in a given race or, as the court noted, that they might lose all the bets, `all bets being on the winning horse.'" (Western. Telcon, Inc. v. California State Lottery, supra, 13 Cal. 4th 475, 487, 53 Cal. Rptr. 2d 812, 917 P.2d 651.)
"These two categories of gambling [banking games and lotteries] are nonetheless exclusive of one another, and can be surely distinguished, not by the manner of play, but by the nature of the betting itself." (See, e.g., In re Lowrie [(1919)] 43 Cal. App. 564, 566-567, 185 P. 421 [complaint, alleging petitioner ran game in which the other participants bet against him on the outcome of a roll of dice, charged operation of a banking game, not a lottery, since petitioner allegedly kept a fund against which the other participants bet].) In a lottery the operator does not bet against any of the participants, but merely offers up a prize for distribution to one or more of them. The operator, in other words, has no interest in the outcome of the chance event that determines the winner or winnersthe `game' or `draw'because neither the fact the prize will be disposed of, nor the value of the prize to be distributed, depends upon which, or how many, of the lottery
entrants might win it. In a banking game, in contrast, the operator does compete with the other participants: `he is the one against the many.' (People v. Ambrose [(1953)] 122 Cal.App.2d [Supp. 966,] Supp. 970 [265 P.2d 191].) The operator thus has a direct interest in the outcome of the game, because the amount of money the operator will have to pay out depends upon whether each of the individual bets is won or lost.
"One corollary of the distinction drawn above is that the operator of a banked game may or may not, depending on the outcome of the game, be obliged to pay out more than the amounts wagered on a particular game. Moreover, an extraordinary run of bad luck on the part of the house may unpredictably deplete its funds. A bank, in theory, can be `broken.' A lottery can never be broken in this sense. True, if a lottery operator offers a fixed prizea particular automobile or piece of real property, for examplethe ticket receipts may be insufficient to cover the cost. But the operator's success or failure in such a lottery depends only on how many entries are attracted, not on which participant, or how many participants, win the prize. The outcome of the game or draw, in other words, does not determine whether the lottery operator makes or loses money on that game or draw." (Western Telcon, Inc. v. California State Lottery, supra, 13 Cal. 4th 475, 487-488, 53 Cal. Rptr. 2d 812, 917 P.2d 651, italics in original.)
To summarize, a banking game requires that the operator (banker) wager its property against the property of the players. *86 The banker gets to keep as its own the wagers of the losers, and it pays out of its own account the amounts due the winners. The banker hazards the gain and the loss, it wagers against the other players and like them its fortunes are at risk during play. The banker's gain or loss depends on whether the players win or lose; it profits when they lose and loses when they win. The banker has an interest in the outcome of each individual player's wagers because the bank gets to keep whatever a player loses. The banker is the one against the many, competing against the players.
The gaming terminals and class III card games that are the subject of Proposition 5 traditionally are operated as banking games. Under the model compact of Proposition 5, however, prizes for gaming terminals and class III card games are awarded instead under a players' pool prize system. The tribe's revenue comes from fees charged to all players rather than from retaining the wagers of losing players. The model compact describes the players' pool prize system as follows: "`Players' pool prize system' means one or more segregated pools of funds that have been collected from player wagers, that are irrevocably dedicated to the prospective award of prizes in authorized gaming activities, and in which the house neither has [acquired] nor can acquire any interest. The Tribe may set and collect a fee from players on a per play, per amount wagered, or time-period basis, and may seed the player pools in the form of loans or promotional expenses, provided that seeding is not used to pay prizes previously won." (Gov.Code, § 98004, Tribal-State Gaming Compact, § 2.16; accord, Gov. Code, § 98006, subd. (a).)
A players' pool prize system has none of the characteristics of a banking game. Under that system, the players share in the pool according to their success at the game, the players can win no more than the amount wagered by all players, and the players cannot win anything from the game operator. The game operator's share is independent of the success or failure of the players and is not increased if any or all players lose and is not decreased if any or all players win. The players' pool prize system makes the gaming terminals and card games at issue here lotteries because "[t]he outcome of the game or draw ... does not determine whether the lottery operator makes or loses money on that game or draw." (Western Telcon, Inc. v. California State Lottery, supra, 13 Cal. 4th 475, 488, 53 Cal. Rptr. 2d 812, 917 P.2d 651.)
The majority reaches a different conclusion.[2] It concludes that the gaming terminals and card games to be operated by Indian tribes under a players' pool prize system are banking games and not lotteries. It bases this conclusion on the following asserted distinctions between the players' pool prize system and lotteries: A players' pool prize system operator retains an interest in the outcome of play; the players' pool prize system operator bets against the players, keeping all losing wagers and paying out on all winning wagers; and the payouts on any given round of play under a players' pool prize system are variable. (Maj. opn., ante, 88 Cal.Rptr.2d at pp. 72-74, 981 P.2d at pp. 1005-1007.) The first two assertions are incorrect, while the third is equally true of both traditional lotteries and the players' pool prize system.
First, a players' pool prize system operator does not retain an interest in the outcome of play. A game operator under a players' pool prize system has no more interest in the outcome of the game than *87 any other lottery operator. Its income from a given round of play (in the form of player fees) is fixed and does not rise or fall depending on the success or failure of the players. The decision to make a future loan to the prize pool to seed future games is not "compelled," contrary to the majority (maj. opn., ante, 88 Cal.Rptr.2d at p. 73, 981 P.2d at p. 1006), and it does not give the operator any interest in the outcome of already completed games, just as a lottery operator's decision to offer a bigger prize in a future lottery does not give it any interest in the outcome of lotteries already completed. Nor does the fact that a high payout in a past game has delayed or prevented the repayment of a past loan to the prize pool by the operator give the operator an interest in the outcome of play, just as a lottery does not become a banking game simply because the operator might lose money if its revenues from operating the lottery are less than the cost of the prizes it offers.
Second, the players' pool prize system operator does not retain an interest in the outcome of play. As previously explained, neither the tribe nor anyone else acts as a "banker" who bets against the players and stands to profit or lose depending on the outcome of the gambling.
Third, the payouts on any given round of play under a players' pool prize system are no more variable than those of a lottery. Despite the majority's protestations to the contrary, the possibility that in a players' pool prize system the wagers collected in a given round of play may not all be awarded as prizes in that round of play does not distinguish that system from a lottery. In one common form of lottery, number-matching games like the Super Lotto of the California State Lottery, it is possible that no one will come up with the matching numbers to win the prize in a given round of play; in that case, the prize rolls over to the next round of play. Likewise, in a players' pool prize system, any amounts not won in one round of play become available as prizes in later rounds. The game operator does not acquire those amounts for its own account. Nor, contrary to the majority, can the pool itself sensibly be characterized as a bank simply because it collects wagers and pays winners, for those functions necessarily occur in every form of gambling.
Accordingly, gaming terminals and card games under a players' pool prize system are not banking games but lotteries. Because California permits lotteries, IGRA therefore, as matter of federal law, authorizes Indian tribes to offer gaming terminals and card games under a players' pool prize system. In turn, Proposition 5's model compact complies with IGRA by regulating these forms of authorized gambling, and it does not violate the California Constitution because it does not itself authorize the gambling.[3]
CONCLUSION
The rise of Indian gambling in the past two decades has stirred deep passions and heated political debate. The voters of California sought to resolve the status of Indian gambling in our state by enacting the model Tribal-State Gaming Compact of Proposition 5. Because the model compact complies both with our state Constitution and with the federal Indian Gaming Regulatory Act, I would uphold the will of the voters and deny the petition for a writ of mandate.
NOTES
[1] The record does not contain an exhaustive list of the card games played at tribal casinos on or before January 1, 1998, but there is no dispute they included one or more forms of blackjack or twenty-one. (See Ballot Pamp., Analysis by Legis. Analyst of Prop. 5, as presented to the voters, Gen. Elec. (Nov. 3, 1998) p. 20 ["Currently, ... Indian gambling operations in California ... offer a variety of gambling activities ... includ[ing] bingo, card games (including a type of blackjack), and electronic (video) gambling devices."].)
[2] Unlike the parties, Justice Kennard focuses on the word "authorize" in section 19(e), arguing that because "it is federal law, not state law, that authorizes Indian gambling ... the model compact of Proposition 5 does not authorize Indian gambling and thus does not violate section 19(e)." (Dis. opn. of Kennard, J., post, 88 Cal.Rptr.2d at p. 80, 981 P.2d at p. 1012.) By their terms, however, both the tribal/state compact (Gov.Code, § 98004, model compact § 4.1) and Government Code section 98006 would "authorize[]" various forms of gaming in tribal gaming facilities. Moreover, as federal legal authority for class III gaming is, under IGRA, dependent in two ways on state authorization (see 25 U.S.C. §§ 2710(d)(1)(B) [requiring such gaming be permitted under state law], 2710(d)(1)(C) [requiring existence of compact entered into by state and tribe] ), Justice Kennard's attempt to draw a bright line between federal and state authority in this area is unavailing.
[3] Justice Kennard compares the players' prize pool system to the "rollover" feature sometimes used in lotteries. (Dis. opn. of Kennard, J., post, 88 Cal.Rptr.2d at pp. 86-87, 981 P.2d at pp. 1017-1018.) There is little comparison between such an isolated feature of a lottery and the pervasive pooling of revenuenot only from round to round, but over indefinite time periods and between games as wellcharacterizing the players' prize pool system. In any event, prizes in even a rolledover lottery are calculated as shares of the ticket sales; payouts in the games authorized by Proposition 5 would neither be calculated as shares of revenue for the game nor as a prespecified number of fixed prizes.
[4] For the same reason, Justice Kennard's argument that games operated according to the players' prize pool system are lotteries, rather than banking games, because the tribal operator assertedly has no interest in the outcome (dis. opn. of Kennard, J., post, 88 Cal.Rptr.2d at p. 86, 981 P.2d at p. 1017), would fail even if its factual premise were true. The pool itself functions as a bank, collecting from all losers and paying all winners.
[5] Apart from their identity as banking games rather than lotteries, the card games and devices in question are within the prohibition of Penal Code section 330which section 19(e) was intended, in part, to constitutionalizeto the extent that the Indian tribe may, under Proposition 5, collect fees from players on a per-amount-wagered basis: to that extent, they may be played as percentage games. And the grandfathered card games are also within section 330 to the extent that they include twenty-one, or blackjack: to that extent, they are proscribed by name.
[*] Associate Justice of the Court of Appeal, Second District, Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[**] Associate Justice of the Court of Appeal, Fourth District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 ol the California Constitution.
[1] Likewise, another portion of Proposition 5, Government Code section 98006, purports to "authorize" tribal gaming terminals and card games using a players' pool prize system. It, too, is misleading to the extent it claims to authorize gambling on tribal lands over which California lacks jurisdiction.
[2] Although the majority and I both analyze whether games operated under a players' pool prize system are lotteries or banking games, our respective purposes in doing so are quite different. As explained at the outset of my opinion, I resolve this question to decide whether such games are authorized by IGRA as a matter of federal law; the majority decides this question to determine whether such games are prohibited by the casino gambling prohibition of section 19(e) of article IV of the California Constitution.
[3] I see no merit to petitioners' other arguments against Proposition 5. Like compacts enacted by the Legislature, it is a proper legislative act, establishing a policy applicable to all within its scope, and does not infringe on the prerogatives of the executive. (See American Federation of Labor v. Eu (1984) 36 Cal. 3d 687, 206 Cal. Rptr. 89, 686 P.2d 609.) Nor does it violate equal protection for the state, in response to the federal mandate of IGRA, to enact a compact recognizing the federal authorization of gambling on Indian lands. (Washington v. Yakima Indian Nation (1979) 439 U.S. 463, 99 S. Ct. 740, 58 L. Ed. 2d 740.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590672/ | 64 N.Y.2d 143 (1984)
Ismail Parsa, Respondent,
v.
State of New York, Appellant.
Court of Appeals of the State of New York.
Argued November 15, 1984.
Decided December 27, 1984.
Robert Abrams, Attorney-General (Betsy Broder and Peter H. Schiff of counsel), for appellant.
Morris Weissberg and Robert J. Krengel for respondent.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and KAYE concur.
*146SIMONS, J.
Claimant is a physician and a full-time professor of pathology at Downstate College of Medicine, a branch of the State University of New York. The State pays him a salary for his duties as professor and it pays him supplemental compensation for pathology services as a member of Downstate Pathology Associates, P. C. In this action claimant seeks further compensation for services performed in Downstate's kidney transplant program for end stage renal disease (ESRD) patients during a two-year period from April 1, 1981 to March 31, 1983. A proposed agreement between claimant and Downstate had been drafted which authorized payments of $145,000 per year for these services, but it was not executed by Downstate or approved by the State Comptroller. Downstate received Medicare benefits for ESRD patients from the Federal Government during this period, however, and paid part of them to claimant to compensate him for the services he had performed in the ESRD program. He rejected the payment as inadequate and instituted this action in the Court of Claims, claiming that the State owes him more.
Claimant's first and third causes of action are for money had and received. He alleges that a portion of the Medicare funds paid by the Federal Government to the State equalling $290,000 represented two years' compensation for his services in the ESRD program and that it rightfully belongs to him. His second and fourth causes of action seek relief in the nature of mandamus directing Downstate to comply with the Federal statute and to pay claimant $290,000 for his professional services. The State moved to dismiss the claim asserting that it failed to state a cause of action because claimant had not obtained approval of the payments by the State Comptroller as section 112 of the State Finance Law requires.[1] The Court of Claims granted the *147 State's motion, ruling that it lacked jurisdiction to adjudicate claims for money had and received and claims seeking relief in the nature of mandamus. The Appellate Division modified that order by reinstating the first and third causes of action. The court believed that Downstate was merely acting as a conduit in receiving Medicare funds representing compensation for claimant's services and that those funds belonged to him. It ruled, therefore, that claimant could assert a cause of action for money had and received, that the action was at law and within the jurisdiction of the Court of Claims and that it was not foreclosed by section 112 of the State Finance Law. It agreed that the second and fourth causes of action seeking relief in the nature of mandamus could not be maintained in the Court of Claims and that ruling is not contested.
A party contracting with the State is chargeable with knowledge of the statutes which regulate its contracting powers and is bound by them (Belmar Contr. Co. v State of New York, 233 N.Y. 189, 194). Moreover, the State's acceptance of benefits furnished under a contract made without authority does not estop it from challenging the validity of the contract or from denying liability pursuant to it (Becker & Assoc. v State of New York, 48 N.Y.2d 867, affg 65 AD2d 65; see, also, Seif v City of Long Beach, 286 N.Y. 382; McDonald v Mayor of City of N. Y., 68 N.Y. 23). Even though a promise to pay may be spelled out from the parties' conduct, a contract between them may not be implied to provide "rough justice" and fasten liability on the State when applicable statutes expressly prohibit it (see Lutzken v City of Rochester, 7 AD2d 498). The result may seem unjust but any other rule would completely frustrate statutes designed to protect the public from governmental misconduct or improvidence. The contractor's option is to withhold his services unless an agreement is executed and approved as the statutes require.
The Legislature has specified that contracts exceeding $5,000 shall not be effective unless first approved by the State Comptroller. Inasmuch as claimant's contract was neither executed by the State nor approved by the Comptroller, he may not maintain an action on it (see Becker & Assoc. v State of New York, 48 N.Y.2d 867, supra). Nor does he claim that he may. He contends that notwithstanding Downstate's failure to execute the contract or to obtain the Comptroller's approval, his claim may be maintained as an action resting on implied contract, an action for money had and received. We agree with the Appellate Division that an action for money had and received is an action *148 at law which may be maintained in the Court of Claims but we disagree that claimant has stated a right to recover under the circumstances presented. We therefore reverse and dismiss the claim.
It is important at the outset to note that the courts recognize two different types of implied contract. The first, a contract implied in fact, rests upon the conduct of the parties and not their verbal or written words. It is a true contract based upon an implied promise and therefore it is subject to the provisions of section 112 of the State Finance Law.
The second type, the type claimed here for money had and received is a contract implied in law. Although the action is recognized as an action in implied contract, the name is something of a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another (Miller v Schloss, 218 N.Y. 400, 406-407). It allows plaintiff to recover money which has come into the hands of the defendant "impressed with a species of trust" (see Chapman v Forbes, 123 N.Y. 532, 537) because under the circumstances it is "`against good conscience for the defendant to keep the money'" (Federal Ins. Co. v Groveland State Bank, 37 N.Y.2d 252, 258, quoting from Schank v Schuchman, 212 N.Y. 352, 358). The remedy is available "if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass" (Miller v Schloss, supra, p 408). The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law (see Roberts v Ely, 113 N.Y. 128; Diefenthaler v Mayor of City of N. Y., 111 N.Y. 331, 337). An action for money had and received has been permitted against a public body in instances where plaintiff has paid money by mistake, money has been collected for an illegal tax or assessment, or property is erroneously taken or withheld by a public official (McDonald v Mayor of City of N. Y., 68 N.Y. 23, 29, supra; see, e.g., Niagara Mohawk Power Corp. v City School Dist., 59 N.Y.2d 262; and New York R. T. Corp. v City of New York, 275 N.Y. 258, 264, affd 303 U.S. 573 [recovery of taxes paid under compulsion of an unconstitutional tax levy]; County of Oneida v First Citizens Bank & Trust Co., 264 App Div 212 [action by a county and its treasurer against a depositor bank to recover funds deposited in a self-insurance plan which were fraudulently paid to third parties]).
*149Subdivision 2 of section 9 of the Court of Claims Act gives that court jurisdiction to determine claims for "breach of contract, express or implied". The court had jurisdiction to adjudicate this claim for money had and received, therefore, because it states a legal cause of action for money damages founded upon an implied in law contract (see Stone v White, 301 U.S. 532, 534-535; Matter of First Nat. City Bank v City of New York Fin. Admin., 36 N.Y.2d 87). The action is not barred by section 112 of the State Finance Law because claimant is not seeking to enforce an agreement; he is seeking to recover funds from the State which he alleges belong to him and which the State is wrongfully withholding from him. His cause of action is predicated on his claim that he is entitled to $290,000 of the Medicare funds paid by the Federal Government to Downstate and, in the language of the cases, that he has been deprived of them by "oppression, imposition, extortion, or deceit, or by the commission of a trespass" (see Miller v Schloss, supra, p 408), or by mistake or illegality (see McDonald v Mayor of City of N. Y., supra, p 29). That was the Appellate Division's view of the action, that pursuant to the Federal statutes some allocable portion of Downstate's Medicare receipts belonged to claimant and that it was merely a collecting and disbursing agent. We reverse because the Medicare statute does not give claimant any legal claim to funds paid to Downstate for his services.
Federal Health Insurance for the Aged, popularly known as "Medicare", was adopted as part of the Social Security Act of 1965. In 1978 the program was expanded to extend benefits to victims suffering from end stage renal disease so that they would be assured of adequate medical treatment in the face of skyrocketing medical costs (US Code Cong & Admin News, 1978, vol 3, Legislative History, Pub L 95-292, p 848). The Medicare program consists of two basic, substantively distinct, parts part A providing insurance for hospital and hospital-related services (US Code, tit 42, §§ 1395c-1395i), and part B, which creates a voluntary insurance program to pay for medical and other health services, including physicians, diagnostic home health and outpatient services. Part B is available to persons age 65 and older who agree to pay monthly premiums as established by the Secretary of Health and Human Services (US Code, tit 42, §§ 1395j-1395w). Payments under part A are made only to providers, i.e., "a hospital, skilled nursing facility * * * or home health agency" (US Code, tit 42, § 1395x, subd [u]) whereas payments under part B may be made to the patient or to the patient's assignee. This claim concerns benefits paid for hospital services under the provisions of part A.
*150The rate of reimbursement to providers under part A is the lesser of "(A) the reasonable cost of such services * * * or (B) the customary charges with respect to such services" (US Code, tit 42, § 1395f, subd [b], par [1]) and reimbursement will be provided for such in-patient hospital services as bed and board, nursing services, use of hospital facilities, and "such other diagnostic or therapeutic items or services, furnished by the hospital or by others" (US Code, tit 42, § 1395x, subd [b]; see 20 CFR 405.116 [a]). Reimbursable items may include "medical or surgical services provided by a physician, resident, or intern" (US Code, tit 42, § 1395x, subd [b], par [7]; § 1395rr, subd [b], par [1], cl [A]).
For purposes of this motion we assume that claimant performed services in the ESRD program at Downstate College of Medicine between April 1, 1981 and March 31, 1983, that the services were compensable under Medicare and that Downstate received funds from the Government for them. That is not to say, however, that the State is holding funds that rightfully belong to him. The statute governs the relationship between the Secretary of Health and Human Services and providers of medical services to victims of renal disease. As a provider, the hospital was compensated for supplementary laboratory services claimant performed for it, as it was for other items included in its billing, i.e., "operating room", "radiology", "inhalation therapy", "cardiac lab", "renal dialysis", "CAT scan", "anesthesiology", etc. None of these charges, however, were made on behalf of named physicians or therapists supplying the services listed because the statute does not permit the payment of physicians' fees, as such. They were not entitled to payment under part A because they were not providers. The regulations provide that the hospital may be reimbursed for such services by receiving either sums of money representing part of staff salaries allocated to ESRD or that the Secretary also will recognize private agreements between the hospital as a cost of the provider.[2] But *151 payment for staff physicians' services are matters of private contract between the provider and the physician and whatever sums are paid over by the Federal Government, are payments to the hospital for services it supplied to the patients. Insofar as the statute refers to charges made by the provider which may include reasonable physician's services, it states a formula for computing the provider's charges, it does not set aside fees which the physician is entitled to receive as a matter of law.
In short, the State has not received nor is it holding sums of money to which claimant is entitled any more than any of the several physicians or therapists are entitled to the itemized sums listed on the hospital's bill for various services they supplied to in-patients and which, in the aggregate, constituted the hospital's total charge. Inasmuch as claimant cannot establish that the State is wrongfully withholding sums from him to which he is entitled under the Federal statute, he has failed to state a cause of action for money had and received.
Accordingly, the order of the Appellate Division should be reversed, the certified question should be answered in the negative, and the remaining claims dismissed.
Order reversed, with costs, remaining claims dismissed and question certified answered in the negative.
NOTES
[1] Section 112 of the State Finance Law provides, in pertinent part, as follows: "2. Before any contract made for or by any state department, board, officer, commission, or institution, shall be executed or become effective, whenever such contract exceeds five thousand dollars in amount, it shall first be approved by the comptroller and filed in his office. Whenever any liability of any nature shall be incurred by or for any state department, board, officer, commission, or institution, notice that such liability has been incurred shall be immediately given in writing to the state comptroller" (as amd by L 1980, ch 468, § 1).
[2] 42 CFR 405.484 provided:
"(b) Scope and effect of agreement. Typically, contracts between hospital-based physicians and hospitals provide for the payment of an aggregate amount (in the form of a salary, a percentage arrangement, or on some other basis) to the physician for all of his services within the institution without a service-by-service itemization. Where the physician is on salary and normally spends full time in administration of departmental affairs, the full salary may be considered a reimbursable hospital cost item and Medicare will bear its proportionate share of such cost. Where a salaried physician devotes only part of his time to institutional affairs and also renders an appreciable volume of personal patient care, only part of his salary may be attributed to hospital costs since the law requires that `medical or surgical services' must be excluded in determining a hospital's reimbursable costs.
"(c) Allocation of compensation by parties. An agreement by the parties that a certain portion of the physicians' compensation will be excluded from hospital costs and will be charged to those patients who are identified in accordance with § 405.483 will be respected unless, because of the small portion of time the physician devotes to the personal care of patients, such an agreement could lead to unreasonable charges to such patients." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2088066/ | 21 Ill. App. 3d 527 (1974)
315 N.E.2d 565
SANTUCCI CONSTRUCTION CO., Plaintiff-Appellee,
v.
COUNTY OF COOK, Defendant-Appellant.
No. 58921.
Illinois Appellate Court First District (5th Division).
July 12, 1974.
*528 Bernard Carey, State's Attorney, of Chicago (Sheldon Gardner and Paul P. Biebel, Jr., Assistant State's Attorneys, of counsel), for appellant.
James G. O'Donohue, of Chicago (Paul P. Pennick and Philip J. Rock, of counsel), for appellee.
Affirmed in part, reversed in part.
Mr. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court:
This is an appeal by defendant from a decree rescinding a contract bid submitted by plaintiff and ordering the return of the $75,000 bid deposit, together with interest. The issues presented for review are whether (1) the bid was the result of a mistake which justified rescission; (2) a presumption was raised against plaintiff because certain witnesses were not produced who allegedly were essential to its claim of mistake; (3) defendant was aware that a mistake was made; and (4) the court's award of interest was proper.
In November, 1966, defendant advertised for bids concerning the construction of the main drain of the Dan Ryan Expressway, and on December 14, 1966, plaintiff and three other construction companies submitted bid proposals. With its bid, plaintiff tendered a $75,000 deposit which was subject to forfeiture and retention by defendant in the event plaintiff was low bidder and failed to execute the contract.
Plaintiff's bid was $1,095,842, and the bids by the other three contractors were in the amounts of $1,693,353.85; $1,719,770; and $1,827,904.90. Each bid was required to specify a price for 7,132 lineal feet of drainpipe. In this regard, plaintiff's bid price, including labor, was $108.50 per lineal foot, with the other three contractors specifying $169.00, $180.00 and $200.00 respectively. The total price submitted by plaintiff for this item was $773,822 (its original estimate was $1,290,892); whereas, the prices specified by the other three contractors were $1,205,308; $1,283,760 and $1,426,400.
At the trial, Glenn Frederichs, Assistant Superintendent of Highways for defendant, testified that its cost estimate for the drainpipe, including labor, was $197.45 per lineal foot, with a total estimated cost of $1,408,213.40. He also testified that the county's estimate for the cost of the entire project was $1,937,856.40. When plaintiff refused to enter *529 into a contract for the project, bids were again requested and submitted, with the low bid of $1,596,554 obtaining the contract.
Richard Cramer, head of the Estimating Division of defendant, testified that the county's estimated cost for the pipe was $125.00 per lineal foot to which was added labor and material charges to obtain its estimated price of $197.45 per lineal foot. He testified it was his impression that plaintiff's bid of $108.50 per lineal foot was "cheap, low."
Carlo Santucci, General Manager of plaintiff, testified that on December 14, 1966, the day the bid was submitted, he was returning with Nicholas Santucci, President of plaintiff, from Indiana where they had been for two days and, upon radioing his office, he was informed that plaintiff was the low bidder on the project and that there had been a large discrepancy in bids. When he arrived at the company office, he examined the bid sheets and discovered that the original and intended material cost for the pipe of $142.75 per foot had been scratched out, and the figure of $74.00 had been substituted. He testified he could not buy the pipe for the latter figure and that before he went to Indiana the $142.75 cost figure had been used in their estimate, and he did not become aware of the substitution until his return. He also stated that plaintiff's estimator, Geza Zoltani, who had prepared the bid, had made the change.
Geza Zoltani testified that Nicholas Santucci, on the morning of December 14, 1966, told him to alter the bid so that it totaled approximately $1,095,000. He stated Nicholas Santucci was not out of town on that date and that he (Nicholas Santucci) had signed the bid book in the morning before his (Zoltani's) submission of the bid. He denied telling Carlo Santucci that he received a telephone bid from a supplier of drainpipe, offering a 50% discount. He admitted that he lost his pension rights when he left plaintiff to work for another contractor, and he denied, in the presence of Carlo Santucci and John Durgom, that he said he would testify in favor of plaintiff if his pension rights were reinstated.
John Durgom, president of Durgom Concrete Pipe Company, testified he had submitted an estimate to plaintiff of approximately $145.00 per lineal foot for the drainpipe in question. He was present in the hall outside the courtroom when Geza Zoltani told Carlo Santucci something like, "If you say that I get my pension, I can say what you want me to say in court."
Carlo Santucci was recalled and testified that Zoltani approached him in the courthouse and said, "I am unhappy about losing my profit sharing and if there was something I (Carlo Santucci) could do to get him his profit sharing, that he could see that this case went in our favor." *530 He also testified that he and Nicholas Santucci on the morning of December 14, 1966, were in Terre Haute, Indiana and that when he returned to the company office, Zoltani told him he had changed the price of the pipe after a phone call from Vulcan Materials, giving a 50% discount on the cost of the pipe. The practice of obtaining quotations by telephone was customary.
It further appears that on December 15, 1966, plaintiff sent a letter to defendant requesting that the bid be withdrawn; that defendant accepted plaintiff's bid on January 3, 1967, and when plaintiff refused to enter into a contract, that defendant retained plaintiff's bid deposit.
The trial court found that (1) plaintiff had made a mistake in the amount of its bid; and (2) defendant should have known that a mistake had been made. It rescinded the bid proposal and ordered that the $75,000 deposit be returned to plaintiff together with interest from December 15, 1966 to April 27, 1970, the date of the first hearing.
OPINION
Defendant first contends that plaintiff failed to sustain its burden of showing that a mistake justifying rescission had been made. It argues that if there was an error in the bid, it was the result of poor business judgment or negligence, neither of which would justify rescission.
1 We initially point out that the trial court's findings will not be disturbed on appeal where there is evidence in the record to support them and they are not against the manifest weight of the evidence. Kenny Construction Co. v. Metropolitan Sanitary District, 52 Ill. 2d 187, 288 N.E.2d 1.
Here, we note that the bid eventually accepted was for $1,596,554, and there was a great disparity in the specified cost of drainpipe in the various bids and estimates. Plaintiff's bid was (1) over $500,000 less than in its original estimate; (2) over $600,000 less than in defendant's estimate of drainpipe; (3) over $400,000 less than the next lowest bidder; and (4) over $650,000 less than the highest bidder. As a matter of fact, defendant's estimate for the entire project ($1,937,856.40) was $842,000 more than plaintiff's bid ($1,095, 842), which figure was $300,000 less than defendant's estimated cost of the drainpipe alone ($1,408,213.40). This disparity resulted primarily from the change by Zoltani of the cost of drainpipe (base price and material cost) from $181.00 per lineal foot in plaintiff's original estimate to $108.50 in the submitted bid. In addition, Carlo Santucci testified he could not purchase drainpipe for $74.00 per lineal foot, the base price used by Zoltani in reaching the $108.50 cost in the submitted bid, and furthermore, it appears that defendant had estimated a base price of $125.00 per lineal foot for drainpipe.
*531 Furthermore, Zoltani admitted he had no authority to submit bids without the approval of Nicholas Santucci, but it was his testimony that the latter had approved the changes on the morning of December 14, 1966, the date the bid was submitted. Carlo Santucci testified that he and Nick Santucci were out of town on that day and when they returned he was informed by Zoltani that the changes had been made after he received a telephone call from Vulcan Materials quoting a price of $74.00 per lineal foot for the pipe.
It is apparent from its decision that the trial court decided that Carlo Santucci was more credible than Zoltani and, on the question of whether Nicholas Santucci had directed or approved the change, we find no difficulty in accepting the court's conclusion to the contrary, particularly in view of the testimony of Carlo Santucci, corroborated by John Durgom, that Zoltani was willing to testify favorably to plaintiff if his pension rights were restored. Having so decided, the trial court could have determined that Zoltani mistakenly used the base figure of $74.00 in determining the cost of the drainpipe. In any event, we believe the totality of the evidence sufficiently supports the finding that a mistake had been made.
2 We turn now to the question as to whether the mistake justified rescission, and it is noted that in People ex rel. Department of Public Works and Buildings v. South East National Bank, 131 Ill. App. 2d 238, 266 N.E.2d 778, where the trial court rescinded a bid and ordered the return of the bid deposit, it was stated at page 241 that the conditions generally required for rescission are (1) that the mistake relate to a material feature of the contract; (2) that it is of such grave consequence that enforcement of the contract would be unconscionable; (3) that it occurred notwithstanding the exercise of reasonable care; and (4) that the other party can be placed in statu quo.
3 Here, in view of the fact that the mistake involved the drainpipe cost, which was three-fourths of the cost of the entire project, it clearly involved a material element of the contract. It appears also that plaintiff stood to lose a substantial sum if it performed at the price quoted in its submitted bid of $1,095,842. This amount was almost $600,000 less than the next lowest bid and $500,000 less than the bid of $1,596,554 subsequently entered into by defendant for construction of the drain. Under those circumstances, we are of the opinion that it would have been unconscionable to enforce the contract.
4 The trial court, in rescinding the bid, necessarily found that the mistake occurred despite the use of reasonable care on the part of plaintiff. Defendant contends that whether or not Zoltani was authorized to make the bid changes, he was negligent in doing so without further *532 verification of the Vulcan price quote. Defendant refers us to Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N.E. 564, where in adding figures a mistake of $421.00 was made in an $1,867.00 bid. The Illinois Supreme Court found the mistake was the result of negligence and required the fulfillment of the contract. We note however that at pages 14-15 the court stated:
"A mistake which will justify relief in equity must affect the substance of the contract, and not a mere incident or the inducement for entering into it. The mistake of the appellants did not relate to the subject matter of the contract, its location, identity or amount, and there was neither belief in the existence of a fact which did not exist or ignorance of any fact material to the contract which did exist."
In the instant case, as we have stated above, the mistake was one of substance which did relate to the subject matter of the contract; there was belief in a fact which did not exist, the $74.00 per lineal foot base price for drainpipe. Thus, it would appear that Steinmeyer supports the finding of due care by the trial court here. Moreover, the question of due care is one of fact to be decided by the trial court whose findings will not be disturbed unless they are manifestly against the weight of the evidence. (Kenny Construction Co. v. Metropolitan Sanitary District, supra.) Here, the evidence indicates that it was customary in the construction business to receive and act upon telephone price quotes. There is no testimony of any practice requiring verification or that there was some custom in that trade to prepare and submit bids in any other manner. In view thereof, it is our belief that the mistake was not the result of negligence.
As to whether defendant can be placed in statu quo, there was testimony to the effect that federal participation in the project was reduced to reflect the $75,000 forfeiture by plaintiff. However, it should be noted that plaintiff promptly notified defendant on December 15, 1966, of its intention to withdraw. Defendant could have allowed plaintiff to withdraw at that time, and thus no federal funds would have been lost. Furthermore, it appears that the contract was subsequently relet for $1,596,554, which was approximately $100,000 less than the second lowest bid submitted on December 14, 1966. Under the circumstances, it was apparent that defendant was not prejudiced.
Accordingly, we believe that the four conditions for rescission as set forth in South East National Bank were met.
5 We will next consider the propriety of the trial court's finding that defendant should have known of plaintiff's mistake. Defendant argues that plaintiff's bid was not on its face so grossly disproportionate to the *533 other bids as to give notice that the bid was a mistake. In this regard, we note that in Bromagin v. City of Bloomington, 234 Ill. 114, 84 N.E. 700, in holding that the party to whom the bid was made was aware of a mistake at the time the bid was accepted, the court stated at page 120:
"The bid submitted showed, by one item thereof, that appellees proposed to furnish and lay 6020 feet of sixteen-inch pipe for a sum therein designated. This sum was less than they could purchase this pipe for, leaving out of consideration the expense of laying the same. The city engineer, who was a member of the board of local improvements, observed this fact and acquainted the other members of the board therewith. It seems apparent, therefore, that the board of local improvements accepted the bid knowing that this mistake had been made. * * * Bromagin discovered the error in his bid and notified the city attorney of the same and asked to be relieved from any further obligation on the day and within five hours after the bid was accepted and before any contract had been actually signed. It does not appear but that the city, after Bromagin called on the city attorney, could have accepted some one of the other bids made."
We have previously noted the great disparity in the bids here, including the fact that plaintiff's submitted bid for the entire project was over $300,000 less than defendant's estimate for the cost of the pipe, and we cannot accept defendant's contention that they were not so disproportionate as to give notice that plaintiff's bid was the result of a mistake. Richard Cramer, head of the Estimating Division of defendant's Highway Department, testified that he considered plaintiff's bid to be "cheap, low." Moreover, the record discloses that plaintiff, after discovering the mistake and believing that it could not perform the contract as submitted, sent a letter to defendant on December 15, 1966, the day after its bid was submitted, requesting withdrawal of the bid. Approximately seventeen days later, defendant accepted the bid, even though it was clearly evident that there were large discrepancies between the amounts of the bids and particularly between plaintiff's bid and defendant's own estimate (over $842,000). We think the record amply justifies the trial court's finding that defendant should have been aware of plaintiff's mistake.
Defendant also contends that plaintiff's failure to produce a witness within its control created a presumption that the testimony of that witness, if produced, would be adverse to plaintiff. In support thereof, defendant points out that Zoltani testified that he was directed by Nick Santucci to make changes in the bid, and argues that the trial court *534 erred in accepting Carlo Santucci's uncorroborated testimony that Zoltani had informed him of the telephone call from Vulcan Material Company, quoting a $74.00 base price for the drainpipe. Defendant maintains that the failure on the part of plaintiff to produce someone from Vulcan to corroborate the telephone call raises the presumption that there was no such call and substantiates Zoltani's testimony that he was directed to change the bid.
It is the general rule that where a potential witness is available and appears to have information relevant to the case which would not be merely cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference arises that it would have been unfavorable. (Biel v. Wolff, 126 Ill. App. 2d 209, 261 N.E.2d 474.) Here, Carlo Santucci testified, when called in rebuttal, that he had a conversation with Zoltani in which the latter stated he had received a telephoned cost quote from Vulcan. As we view the record, it appears to have been accepted by the court as impeachment and that a proper foundation was laid for this impeachment in that Zoltani, in his prior testimony, had denied the conversation. Under the circumstances, to produce a witness from Vulcan merely to testify that a telephone call had been made would be merely cumulative. Furthermore, it does not appear that plaintiff was aware of the name of the individual from Vulcan who allegedly made the telephone call to Zoltani or that Vulcan kept a record of the cost quote. In addition, the record does not disclose any relationship whereby Vulcan might be expected to favor plaintiff. In view thereof, it is our opinion that the court did not err in accepting Carlo Santucci's testimony concerning the conversation with Zoltani. See Biel v. Wolff, supra.
Finally, defendant contends that, assuming we find a mistake justifying rescission of plaintiff's bid, it should only be liable for interest from the date of judgment. It argues that the trial court improperly awarded interest, "at the statutory rate, from December 15, 1966 to April 27, 1970."
In their briefs, both parties refer to section 2 of the interest statute (Ill. Rev. Stat. 1973, ch. 74, par. 2) as controlling. In pertinent part it provides:
"Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; * * * and on money withheld by an unreasonable and vexatious delay of payment."
In Kespohl v. Northern Trust Co., 131 Ill. App. 2d 188, 266 N.E.2d 371, *535 the court held that to apply the theory of unreasonable and vexatious delay, the evidence must show that the debtor had placed obstacles in the way of collection or had induced the creditor to delay taking proceedings to collect, and that to defend a lawsuit is a right which cannot be construed as unreasonable and vexatious delay.
6 In the instant case, we are of the opinion that there was an honest dispute as to whether defendant was legally obligated to return plaintiff's bid deposit. In addition, it appears from the record that plaintiff did not bring suit in this matter until March of 1968, a year and a half after its bid was accepted. Neither does it appear that defendant was responsible for the delay in bringing this matter to trial, or that defendant used any other tactics which could be considered the unreasonable and vexatious delay of payment.
For the reasons stated, we believe that the trial court's award of interest, pursuant to section 2 of the interest statute, was unwarranted and should be reversed.
Accordingly, the judgment is affirmed as to the rescission of the bid and the award of $75,000.00 to plaintiff but is reversed as to the award of interest from December 15, 1966 to April 27, 1970.[1]
Affirmed in part; reversed in part.
BARRETT and DRUCKER, JJ., concur.
NOTES
[1] Plaintiff is, however, entitled to interest at the rate of six percent per annum from the date of judgment, under the provisions of section 3 of the interest statute of Illinois (Ill. Rev. Stat. 1973, ch. 74, par. 3). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2219041/ | 197 Mich. App. 210 (1992)
494 N.W.2d 850
H J HEINZ COMPANY, INC
v.
DEPARTMENT OF TREASURY
Docket No. 126707.
Michigan Court of Appeals.
Decided December 7, 1992, at 9:15 A.M.
Howard & Howard (by Patrick R. Van Tiflin and Todd D. Chamberlain), for the plaintiff.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Russell E. Prins, Terry P. Gomoll, and Richard R. Roesch, Assistant Attorneys General, for the defendant.
Before: REILLY, P.J., and HOLBROOK, JR., and MARILYN KELLY, JJ.
MARILYN KELLY, J.
This case involves an interpretation of Michigan's Single Business Tax Act (SBTA) for the purpose of determining whether certain arrangements known as "repo" transactions are "sales" as defined under the act. MCL 208.1 et seq.; MSA 7.558(1) et seq. Plaintiff appeals as of right from an order of the Court of Claims which ruled that the transactions in question were not sales, thus denying plaintiff requested tax refunds. On appeal, plaintiff again argues that its repo transactions constituted sales under the act. We disagree and affirm.
I
Plaintiff is a Pennsylvania corporation doing business in over thirty-five states, including Michigan. It operates a pickle processing plant in Holland, Michigan. In 1988, after recharacterizing its repo transactions as sales, plaintiff filed amended single business tax returns seeking refunds for the tax years 1984 through 1987. The alleged sales arose from the "purchase" of securities, certificates of deposit and commercial paper through repurchase (repo) agreements.
*212 At the beginning of each business day, plaintiff's Cash Administrator, who worked in its Money and Banking Department, determined the cash needs of the company for that day. In the event of excess cash, the Cash Administrator contacted various financial institutions to determine which offered the highest yield. Then, the company's excess funds were wired to the institution offering the highest yield. The next day, the institution wired the funds back to plaintiff's account along with the previous day's earnings on them. The wireback was done automatically, without further contact from plaintiff. The securities, themselves, never changed hands.
II
The single business tax is a form of value-added tax which imposes a tax on the value added to a product at each step of its production and distribution. Trinova Corp v Treasury Dep't, 433 Mich. 141, 149; 445 NW2d 428 (1989), aff'd 498 US ___; 111 S. Ct. 818; 112 L. Ed. 2d 884 (1991). When calculating tax liability under the SBTA, a taxpayer must apportion its tax base according to the amount of activity it conducts inside as contrasted with outside the state. MCL 208.41; MSA 7.558(41). The tax base is the taxpayer's business income before apportionment. MCL 208.9(1); MSA 7.558(9)(1). The tax base is apportioned to Michigan by multiplying the tax base by:
Michigan Property Michigan Payroll Michigan Sales
__________________ + _________________ + _______________
Total Property Total Payroll Total Sales
__________________________________________________________
3
MCL 208.45(1); MSA 7.558(45)(1). If the taxpayer's *213 total sales increase, and the other factors remain constant, the taxpayer will owe less in single business taxes. See MCL 208.46; MSA 7.558(46); MCL 208.49; MSA 7.558(49); MCL 208.51; MSA 7.558(51).
A "sale" under the SBTA is defined as
the gross receipts arising from a transaction or transactions in which gross receipts constitute consideration: (a) for the transfer of title to, or possession of, property that is stock in trade or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the tax period or property held by the taxpayer primarily for sale to customers in the ordinary course of its trade or business, or (b) for the performance of services, which constitute business activities other than those included in (a), or from any combination of (a) or (b). [MCL 208.7(1); MSA 7.558(7)(1).]
III
In this case, when plaintiff amended its single business tax returns, it increased its total sales by denominating its repo transactions as sales rather than as interest bearing investments. Plaintiff's amended returns increased the total sales factor by the entire amount of the repo transaction, which includes the return of capital and interest. These calculations resulted in a lower apportionment percentage attributable to Michigan.
The trial court ruled that the repo transactions did not involve stock in trade held by plaintiff primarily for sale to customers in the ordinary course of its business. In fact, the gain received from the transactions arose from plaintiff's attempts to avoid holding idle cash. The court recognized that plaintiff had created a profitable Department *214 of Money and Banking. However, the department was formed for astute business operation, not for the sale of securities.
On appeal, plaintiff argues that the transactions in question involved the use of stock in trade. It asserts that the repo transactions were not merely collateralized loans but sales. It points out that express contractual language in the repurchase agreements or confirmation letters clearly established that plaintiff owned the securities. They contained such indicia of ownership as being alienable and vesting title and the risk of loss in plaintiff.
IV
We recently ruled in a case factually similar that receipts from the redemption and sale of certificates of deposit and other securities do not constitute sales under the SBTA. USX Corp v Treasury Dep't, 187 Mich. App. 256; 466 NW2d 294 (1991). In USX, the plaintiff "purchased" investment securities including certificates of deposit, commercial paper, stocks and bonds. The securities were acquired from those who issued them, then redeemed or resold to banks or investors. Id., 258.
In USX, we indicated there was insufficient evidence to categorize these transactions as sales. The trial court found that the plaintiff was neither in the business of selling securities to third parties nor licensed or registered as a dealer in marketable securities. The plaintiff's major lines of business were other than the sale of securities. The only evidence presented showed that the plaintiff was purchasing and selling securities for its own account. Id.
Plaintiff in this case admits that the facts underlying USX and this case are similar. In both, the *215 alleged sales occurred soon after the alleged purchases. Plaintiffs' major lines of business were other than the sale of securities. Each created a department dealing only with the investment of excess cash. One distinction in this case is that the alleged sales frequently were evidenced by a repurchase agreement requiring the sellers to repurchase identical securities at a later specified date. In USX, the plaintiff had no such commitment.
Some of the repurchase agreements or confirmation letters stipulated as exhibits in this case identified the transactions in issue as purchases and sales. One confirmation letter stated that plaintiff had the same rights as the seller in the securities. However, we must consider the real nature of the transactions without regard to the terms applied to them by the parties. Central Discount Co v Revenue Dep't, 355 Mich. 463, 467; 94 NW2d 805 (1959).
Unlike the plaintiff in USX, plaintiff in this case could not sell the securities to third parties. It could retrieve them and sell them on the market only if the financial institutions where it invested failed to reacquire the securities at maturity pursuant to the repurchase agreements. The financial institutions never failed to reacquire the securities.
We agree with those courts which classify repo transactions as collateralized loans rather than purchases and sales. See Hammond Lead Products, Inc v Indiana Tax Comm, 575 NE2d 998 (Ind, 1991); Massman Construction Co v Director of Revenue, State of Missouri, 765 S.W.2d 592 (Mo, 1989). We disagree with plaintiff that Matz should control our decision. Matz v Treasury Dep't, 155 Mich. App. 778; 401 NW2d 62 (1986). Matz is clearly distinguishable from this case; it did not involve the short term investment of excess daily *216 cash. Matz stands for the proposition merely that income from government securities flows through mutual funds to the original investors. Id.
Our classification of plaintiff's repo transactions as collateralized loans not sales is consistent with our ruling in USX. We find no reason to treat the transactions in this case differently from those in USX. Therefore, we conclude that the trial court did not err in ruling that plaintiff's repo transactions did not fall within the definition of sales under the SBTA.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2288029/ | 172 Cal.App.4th 644 (2009)
In re GABRIEL L., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
ALEJANDRO L., Defendant and Appellant.
No. D053805.
Court of Appeals of California, Fourth District, Division One.
February 27, 2009.
*647 Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
John S. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Marsha F. Levine, under appointment by the Court of Appeal, for Minor.
OPINION
NARES, Acting P. J.
Alejandro L. appeals orders placing his son, Gabriel L., with Gabriel's mother, Ashley O., providing family maintenance services for Ashley and terminating his services. The case presents the following issue: If, after a period during which both parents were offered reunification services, the child is then placed with one parent, what is the extent of the court's discretion to decide whether to continue to offer services to the noncustodial parent. As we shall explain, the court's discretion should be examined under Welfare and Institutions Code section 364[1] and is similar to the court's broad discretion as to whether to offer services under section 361.2 because in both situations the child is not in out-of-home placement, but in placement with a parent. We conclude the court may, but is not required to, continue services for the noncustodial parent. Given this discretion, we further conclude the court did not abuse its discretion by terminating *648 Alejandro's services when placing Gabriel with Ashley and providing family maintenance services for her. Accordingly, we affirm the court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
On July 30, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of two-year-old Gabriel under section 300, subdivision (b), alleging he was at risk because the family home was filthy and in severe disrepair, and there was no electricity, running water or furniture except mattresses on the floor. Gabriel was very dirty when he was taken into protective custody; his teeth were decayed and he had scratches and bruises on his body.
Ashley was on probation for a misdemeanor burglary conviction in June 2007. She said she began using methamphetamine and marijuana at an early age. Alejandro had been arrested in January 2006 for being under the influence of a controlled substance and in December 2006 had pleaded guilty to being under the influence of a controlled substance and possessing drug paraphernalia. He also had started using drugs when he was very young.
On August 20, 2007, the Agency amended the petition, adding Alejandro was unable to provide regular care for Gabriel because of his drug use and drug-related incarcerations. The social worker provided Alejandro and Ashley with referrals for the Substance Abuse Recovery Management System (SARMS), parenting education, counseling and in-home support services.
The court found the allegations of the amended petition to be true, declared Gabriel a dependent child, removed him from his parents' care, placed him in foster care and ordered Ashley and Alejandro to comply with their services plans. Subsequently, Gabriel was placed with his paternal aunt and uncle. On October 11, the court ordered Ashley to undergo substance abuse treatment. The substance abuse treatment referral for Alejandro was delayed because he was then in custody.
Ashley did not comply with drug abuse treatment requirements at first, but on November 28, 2007, she entered residential treatment. She also began parenting classes and therapy, completed a psychological evaluation and was visiting Gabriel.
Alejandro did not contact the social worker until February 2008, and he had his first visit with Gabriel at that time. Alejandro said he had been deported to Mexico after being incarcerated. He had been given referrals for services, but did not participate in any services. At the six-month review *649 hearing on March 4, 2008, the court continued services for both parents to the 12-month date. By that time Alejandro had been returned to custody.
Over the following months, Ashley continued to participate in residential treatment, therapy and parenting education and she had unsupervised extended overnight visits with Gabriel. Alejandro did not participate in any services. In August 2008, he contacted the social worker and said he had recently returned from Mexico. A visit with Gabriel was scheduled, but Alejandro did not appear. When the social worker met with him in September, Alejandro said he had lost the referrals the social workers had given him because of being deported.
Alejandro did not attend the 12-month hearing on September 23, 2008. It was stipulated that were he to testify he would say he did not come to court because he was afraid he would be arrested and deported again, but he would start services if they were offered and Ashley wanted him to be a part of Gabriel's life. The court placed Gabriel with Ashley and terminated Alejandro's court-ordered services. It ordered family maintenance services for Ashley.
DISCUSSION
Alejandro contends the court abused its discretion by terminating his services while ordering that Gabriel be placed with Ashley and ordering services for her. He argues terminating his services was not in Gabriel's best interests or in the interests of the permanent plan of reunification.
A. Statutory Framework
The Agency and Alejandro agree we should base our analysis of whether the court erred by terminating Alejandro's services under section 364, which governs hearings concerning dependent children who are not removed from their parents' physical custody, rather than under sections 366 and 366.21, which govern hearings concerning dependent children in foster care. The Agency reasons that because Gabriel had been returned to Ashley, the goal of reunifying with at least one parent had been achieved, and, thus, under section 364, the court had broad discretion to decide whether to continue to provide services for Alejandro. We agree that section 364 is the applicable statute.
The juvenile court must hold review hearings for dependent children no less often than once every six months. (In re N. S. (2002) 97 Cal.App.4th 167, 171 [118 Cal.Rptr.2d 259].) If a child has been removed from his parents and remains out of parental custody, the review hearings are held under sections 366 and 366.21. During the reunification period, except in certain specified *650 circumstances, the parents will be offered services, and at each hearing the court determines whether reasonable services have been offered or provided. (§§ 361.5, subd. (a), 366.21, subds. (e), (f).) At the six-month or the 12-month hearing, the court returns the child to the parents' custody unless it finds return would cause a substantial risk of detriment. (§ 366.21, subds. (e), (f).)
(1) Section 364 establishes procedures for review hearings for children who have been adjudged dependent children, but have not been removed from their parents. When proceeding under section 364, because the child is in placement with a parent, the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. (§ 364, subd. (c).) In In re N. S., supra, 97 Cal.App.4th 167, 171-172, this court held section 364 applies, not only to children who have never been removed from parental custody, but also to those who were removed and then returned to only one parent. In doing so, this court disagreed with In re Sarah M. (1991) 233 Cal.App.3d 1486, 1493 [285 Cal.Rptr. 374], which had held section 364 applies only to situations in which children have never been removed from their parents. (In re N. S., supra, at pp. 171-172; contra, In re Sarah M., supra, at p. 1493, disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204 [51 Cal.Rptr.2d 866, 913 P.2d 1075].) In In re N. S., the child was removed from the parents' custody, but then placed with the mother and the father was ordered not to reside in the home. (In re N. S., supra, 97 Cal.App.4th at p. 170.) This court stated that because the child was a dependent child of the juvenile court, the court was required to conduct review hearings every six months either under section 366.21 or under section 364. The court reasoned section 366.21 did not apply under the circumstances because the child was not out of parental custody, and, therefore, section 364 must apply. The court stated, "[u]nless section 364 applies, there is no statute governing the court's review hearings for a minor who has been removed from, but is subsequently placed back in, parental custody." (In re N. S., supra, at p. 172.) The court reasoned: "If section 366.21 does not apply, then section 364 must." (Ibid.) We agree that section 364, rather than section 366.21, governs subsequent review hearings when a dependent child has been placed back in the custody of one parent.
(2) Under section 364, subdivision (c) and California Rules of Court, rule 5.710(e)(2),[2] if the court determines the child may safely be returned to the parent, it terminates jurisdiction unless the social worker establishes that conditions still exist that require supervision. "The court shall terminate its jurisdiction unless the [social services agency] establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are *651 likely to exist if supervision is withdrawn." (§ 364, subd. (c); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 304 [55 Cal.Rptr.3d 647].) If, after returning the child to the parent's custody, the court determines continued supervision is required, it continues the matter for six months at which time it holds a review hearing. (§ 364, subd. (c).) Section 364 refers to services only by stating the social worker is required to report on the services offered and the progress made by the family, and the failure of the parent to participate regularly in a treatment program is prima facie evidence that continued supervision is necessary. (§ 364, subds. (b), (c).) Rule 5.710(e)(2) provides, "If the child is returned, the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within [six] months." (Rule 5.710(e)(2).)
(3) A court's discretion to provide services for parents when a child has been placed with one parent after a period of reunification services is similar to the situation when the child is removed from the custodial parent and placed with the noncustodial parent under section 361.2 because in both cases the child is in parental custody, not in foster care. When a child is in foster care, unless the case falls within a specified statutory exception, it is assumed that reunification services will be ordered. Under section 361.2, by contrast, that presumption is not present because the child is not in out-of-home placement, but with a parent. Instead, under section 361.2, the court has several choices. It may provide services to the previously custodial parent, to the parent who is assuming custody, to both parents, or it may instead bypass the provision of services and terminate jurisdiction. (§ 361.2, subd. (b)(1), (3).) The decision whether to provide services and to which parent is discretionary to the court because the child is not out of the home, but in placement with a parent. (In re Erika W. (1994) 28 Cal.App.4th 470, 475-478 [33 Cal.Rptr.2d 548] [court had discretion not to order reunification services for previously custodial parent when child was placed with previously noncustodial parent].) In our view, the court's discretion to order services is the same whether the child is placed with a previously noncustodial parent or is returned to one parent after a period of offering reunification services to both parents.
(4) A court has discretion to terminate services for one parent even when ordering services for the other parent. (In re Jesse W. (2007) 157 Cal.App.4th 49, 58 [68 Cal.Rptr.3d 435]; In re Alanna A. (2005) 135 Cal.App.4th 555, 565 [37 Cal.Rptr.3d 579].) During the reunification period, the court's offer of continued services to one parent is not based solely on the participation in services of the other parent. (In re Jesse W., supra, 157 Cal.App.4th at p. 60.) "In deciding whether to terminate the services of one parent who has failed to participate or make progress toward reunification, the court is not constrained by a consideration of the other parent's participation in services." (Ibid.)
*652 (5) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104 [254 Cal.Rptr. 364].) The reviewing court will not reverse the court's order in the absence of a clear abuse of discretion. (Id. at p. 1104.) Although section 364 does not expressly treat the issue of offering services to a nonreunifying parent, in accordance with the juvenile court's responsibility to weigh all of the factors present in a dependency case and to provide orders that will serve a child's best interests, the court has discretion to provide services for the nonreunifying parent if the court determines that doing so will serve the child's best interests. The court also has discretion to find that the ordering of such services to the nonreunifying parent is not in the child's interest and to not order services for that parent. (Cf. In re Erika W., supra, 28 Cal.App.4th at pp. 475-478; § 361.2.)
B. Analysis
(6) The court did not abuse its discretion by terminating Alejandro's services, placing Gabriel with Ashley, continuing dependency court jurisdiction and ordering family maintenance services for Ashley. Alejandro had made no progress in the services that had been offered during the 14 months of Gabriel's dependency. He did not appear at the disposition hearing, causing the court to issue a bench warrant. The social workers provided referrals for services to help him deal with the problems that had caused Gabriel to be brought into protective custody. The social workers supplied him with lists of therapists, parenting education classes, and a psychological evaluation and he was ordered to participate in substance abuse treatment through SARMS. His drug tests in August 2007 were positive for methamphetamine and marijuana. At times during the reunification period, he was arrested, incarcerated and deported. He did not participate in drug abuse treatment, nor did he begin therapy, start a parenting class or have a psychological evaluation. Also he did not visit Gabriel from the time Gabriel was removed in July 2007 until February 2008. He then failed to appear for most scheduled visits. The social worker reported every time she met with Alejandro he provided excuses for why he had not complied with his services plan.
"Resources available to the juvenile court are not unlimited." (In re Alanna A., supra, 135 Cal.App.4th at p. 566.) Because Alejandro did not participate in services during the reunification period and he made no progress in resolving the problems that led to Gabriel's removal, he has not shown the court abused its discretion by terminating his reunification services while ordering Gabriel placed with Ashley and ordering family maintenance services for her.
*653 DISPOSITION
The orders are affirmed.
Haller, J., and Aaron, J., concurred.
NOTES
[1] Statutory references are to the Welfare and Institutions Code.
[2] Rule references are to the California Rules of Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2329433/ | 514 A.2d 784 (1986)
OTIS ELEVATOR COMPANY, Appellant,
v.
Joanne M. HENDERSON, Appellee.
No. 85-1126.
District of Columbia Court of Appeals.
Argued June 24, 1986.
Decided August 12, 1986.[*]
Alan R. Siciliano, Upper Marlboro, Md., for appellant.
*785 John C. Williams, Washington, D.C., for appellee.
Before BELSON, TERRY and ROGERS, Associate Judges.
PER CURIAM:
This is an appeal from a jury verdict finding appellant Otis Elevator Co. (Otis) liable to appellee Joanne M. Henderson for $135,000 for injuries sustained when she attempted to enter an elevator maintained by Otis. Otis contends that the trial court erred in submitting the case to the jury on a res ipsa loquitur theory and in granting a credit rather than a fifty percent reduction of the judgment as a result of a pretrial settlement between Henderson and U.S. Food's Corporation (Food's), the owner of the elevator. Finding both of these claims meritless, we affirm.
To make out a prima facie case under a res ipsa loquitur theory, the plaintiff must present sufficient evidence to establish three elements:
(1) The event must be of the kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the control (exclusive or joint) of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.
Bell v. Westinghouse Electric Corp., 483 A.2d 324, 329 (D.C.1984), appeal after remand, 507 A.2d 548 (1986) (quoting PROSSER, Law of Torts § 39 (4th ed. 1971)); see Washington Sheraton Corp. v. Keeter, 239 A.2d 620, 622 (D.C.1968); Greet v. Otis Elevator Co., 187 A.2d 896, 898 (D.C.1963). Once the plaintiff has established these elements, the case may be submitted to the jury, which still must determine whether all of the elements necessary for a finding of negligence are present. See Washington Sheraton Corp. v. Keeter, supra, 239 A.2d at 622. However, the doctrine of res ipsa loquitur allows the "jury to infer there has been a lack of due care from the mere occurrence of an accident." McCoy v. Quadrangle Development Corp., 470 A.2d 1256, 1259 n. 7 (D.C.1983).
Otis does not argue that Henderson failed to establish one of the elements necessary to the application of the res ipsa loquitur doctrine. Instead, Otis maintains that it was inappropriate to apply the doctrine because it should be used only when the plaintiff cannot identify the cause of the injury with enough specificity to maintain an action based on specific negligence. According to Otis, because Henderson was able to identify the specific mechanical defects which led to her injury, she proved "too much" to be entitled to a res ipsa loquitur instruction. This argument is meritless.
As Henderson described the accident, the right elevator door closed on her and hit her shoulder when she entered the elevator. It did not retract immediately, but only when she hit the safety edge on the left-hand door. It is a reasonable inference from the evidence that there was something wrong with either the elevator's dwell time or the right door's safety edge, or both. But, as plaintiff's witness testified, any one or more of a number of specific mechanical defects could have led to these results. Thus, Henderson was not able to identify the specific mechanical failing so specifically that the doctrine of res ipsa loquitur was inapplicable to this case.[1] Absent conclusive evidence of a specific defect, which would render an instruction on res ipsa loquitur unnecessary, Henderson was entitled to have the jury instructed on res ipsa loquitur and negligence. Quin v. George Washington University, 407 A.2d 580, 583 (D.C.1979) (quoting Levy v. D.C. Transit System, Inc., 174 A.2d 731, 732-33 (D.C.1961).[2] This conclusion *786 is consistent with past District of Columbia case law in which a res ipsa loquitur instruction is given as long as "direct evidence of negligence is lacking, or where there is `little evidence,' or where the cause of the injury is left in doubt by the evidence or not clearly shown." Levy v. D.C. Transit System, Inc., supra, 174 A.2d at 733 (citation and footnotes omitted).[3] Therefore, the trial judge did not err in instructing the jury on the doctrine of res ipsa loquitur.
Otis also contends the trial court should have reduced the $135,000 judgment by half rather than crediting $20,000 against the judgment to account for the pretrial settlement between Henderson and Food's, the owner of the elevator. This contention is meritless.
A judgment is to be reduced by half where the plaintiff sues purported joint tortfeasors and one settles, but remains a party to the action because one of the other joint tortfeasors has submitted a cross-claim for contribution, and the settling tortfeasor is found by the jury to have been negligent. See Martello v. Hawley, 112 U.S.App.D.C. 129, 300 F.2d 721 (1962); McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659 (1943); see also Hall v. General Motors Corp., 207 U.S.App.D.C. 350, 359, 647 F.2d 175 (1980) (court would not apply 50% pro rata reduction where no cross-claim adjudicated and alleged joint tortfeasor's liability not determined); Kassman v. American University, 178 U.S. App.D.C. 263, 267 n. 24, 546 F.2d 1029, 1033 n. 24 (1976) (pro rata reductions permissible only where one tortfeasor would have been able to compel contribution, but for the plaintiff's settlement with another tortfeasor).
Henderson originally brought suit against both Otis and Food's. Almost three years before trial, however, Henderson and Food's entered into a "Joint Tort-Feasor Agreement" in which Henderson waived all future monetary claims against Food's in connection with the July 14, 1981, accident in return for a consideration of $20,000 paid by Food's. Food's expressly did not admit any liability for the accident. Otis never cross-claimed against Food's for contribution, and neither jury nor judge ever considered whether or not Food's was liable for Henderson's injuries. Under these circumstances, Otis was entitled only to a credit in the amount of the settlement between Henderson and Food's. Crooks v. Williams, 508 A.2d 912, 915 (D.C.1986); Kassman v. American University, supra, 178 U.S.App.D.C. at 269, 546 F.2d at 1035; Snowden v. District of Columbia Transit System, 147 U.S.App.D.C. 204, 206, 454 F.2d 1047, 1049 (1971). Such a credit is just because Henderson is entitled to be made whole for her injuries, but can obtain only a single recovery. Leiken v. Wilson, 445 A.2d 993, 999 (D.C.1982).
Accordingly, because we find no trial error, the judgment below is
Affirmed.
NOTES
[*] The decision in this case was originally released as a Memorandum Opinion and Judgment. It is being published pursuant to the direction of the court.
[1] We find no authority, and appellant cites none, which would preclude submission to the jury on the theory of res ipsa loquitur where the plaintiff proved facts, beyond the plaintiff's explanation of the accident, which would provide a basis for the jury to infer negligence.
[2] In Loketch v. Capital Transit Co., 101 U.S.App. D.C. 287, 288, 248 F.2d 609, 610 (1957), quoted in Lindsey v. United States, 140 A.2d 306, 308 (D.C.1958), the court stated:
* * * Evidence bringing to light the circumstances of the accident does not, as appellee contends, make res ipsa inapplicable. Washington Loan & Trust Co. v. Hickey, 1943, 78 U.S.App.D.C. 59, 61, 137 F.2d 677, 679. The doctrine becomes inapplicable when the circumstances have been so completely elucidated that no inference of defendant's liability can reasonably be made. (Emphasis supplied.)
[3] Because we hold Henderson made out a prima facie case of res ipsa loquitur, we need not address Otis' contention that she failed to make a prima facie case of negligent maintenance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2358275/ | 118 F. Supp. 2d 352 (2000)
Lakisha REYNOLDS, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards on their own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
Rudolph GIULIANI, as Mayor of the City of New York; Jason Turner, as Commissioner of the New York City Human Resources Administration, Brian J. Wing, as Commissioner of the New York State Office of Temporary and Disability Assistance; and Barbara Debuono, as Commissioner of the New York State Department of Health, Defendants.
No. 98 Civ. 8877(WHP).
United States District Court, S.D. New York.
July 21, 2000.
*353 *354 *355 Marc Cohan, Rebecca L. Scharf, Hwan-Hui Helen Lee, Legal Aid Society, Mary Ellen Burns, Northern Manhattan Improvement Corp., Constance P. Carden, New York Legal Assistance Group, New York City, for Plaintiffs.
Charles A. Miller, Caroline M. Brown, Covington & Burling, Washington, DC, Jonathan Pines, Assistant Corporation Counsel, New York City, for City Defendants.
James M. Hershler, Office of the Attorney General of the State of New York, New York City, for State Defendants.
MEMORANDUM & ORDER
PAULEY, District Judge.
This action involves class-based allegations that certain policies and practices of the New York City Human Resources Administration, the New York State Office of Temporary and Disability Assistance, and the New York State Department of Health have the effect of preventing eligible individuals from applying for and timely receiving food stamps, Medicaid and cash assistance benefits. This memorandum and order addresses three motions.
First, New York City Mayor Rudolph Giuliani and Jason Turner, Commissioner of the New York City Human Resources Administration (the "City defendants"), move to vacate the preliminary injunction entered by this Court on January 25, 1999 and modified on May 24, 1999. Additionally, defendants Brian J. Wing, Commissioner of the New York State Office of Temporary and Disability Assistance, and Barbara DeBuono, Commissioner of the New York State Department of Health (the "State defendants"), move for an order, pursuant to Fed.R.Civ.P. 12(b)(6), dismissing *356 the complaint as against them. Finally, plaintiffs Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas and Elston Richards move for an order, pursuant to Fed.R.Civ.P. 23, certifying as class plaintiffs "[a]ll New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, and/or cash assistance from City defendants at Job Centers." (Compl. ¶ 61)
The facts of this case, together with the statutory and regulatory framework underlying plaintiffs' claims, are set forth in two prior memoranda and orders of this Court, familiarity with which is assumed. See Reynolds v. Giuliani, 35 F. Supp. 2d 331 (S.D.N.Y.1999) ("Reynolds I"); Reynolds v. Giuliani, 43 F. Supp. 2d 492 (S.D.N.Y.1999) ("Reynolds II"). However, given the complexity of this litigation and the substantial evidentiary record that the parties have amassed, it is useful to summarize the factual background and procedural posture of the action before turning to the pending motions.
Background
Until March 1998, New York City's Human Resources Administration ("HRA") accepted and processed applications for public assistance at offices known as income support centers. Thereafter, HRA began converting its 31 income support centers to "job centers" in an effort to implement the changes in federal and State welfare policy wrought by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA"), Pub.L. No. 104-193, 110 Stat. 2105 (Aug. 22, 1996).
PRWORA changed welfare programs in New York and around the country by, among other things, ending the Aid to Families with Dependent Children ("AFDC") program and replacing it with a block grant program known as the Temporary Assistance to Needy Families ("TANF"). TANF introduces mandatory work requirements and limits the amount of time that a person can collect benefits. See, e.g., 42 U.S.C. § 607 (detailing mandatory work requirements for those receiving TANF benefits); 42 U.S.C. § 602(a)(1)(A)(ii) (requiring TANF recipients to work when they are determined to be ready to work, or after twenty-four months of benefits, whichever is earlier); 42 U.S.C. § 608(a)(1)(B) (forbidding states from using TANF money to assist a family if an adult in the family has received assistance for sixty months). New York passed its own welfare reform legislation in August 1997 and participates in TANF through two cash assistance programs: Family Assistance, which is available to pregnant women and families with a minor child, and Safety Net Assistance, which is available to childless adults. See N.Y. Social Services Law §§ 158 and 349.
In New York City, these public assistance programs are administered by HRA's Family Independence Administration ("FIA"). Since public assistance recipients are generally eligible for food stamps and Medicaid, FIA oversees the application process for individuals seeking a combination of benefits. (Smith Decl. ¶ 2) However, FIA is not directly responsible for eligibility determinations for food stamps or Medicaid. Instead, applicants seeking these benefits at job centers or income support centers are referred to separate agencies for eligibility determinations. (Id.) This division of responsibility for processing non-public and public assistance applications predates HRA's program of converting income support centers to job centers. (Id.)
Another important division within HRA is the Office of Quality Assurance ("OQA"), which is responsible for "preserving the quality, efficiency, and financial integrity of FIA's programs." (Abdullah Decl. ¶ 2) One of OQA's functions is to replicate the quality control reviews of food stamp eligibility conducted by federal and state agencies. Under the federal food stamps program, states with relatively high error rates may face sanctions by way of a reduction *357 in federal funding.[1]See 7 U.S.C.A. § 2025(d). OQA sends monitoring personnel out to centers to attempt to predict and minimize HRA's payment error rate.
At the present time, HRA operates twelve income support centers and sixteen job centers. In 1999, FIA merged four income support centers into two, converted three income support centers into job centers, and closed one income support center. The application process for public assistance at job centers is more rigorous than at income support centers, as job centers place greater emphasis on job search and employment activities for those able to work. Last year, HRA's job centers and income support centers received and processed approximately 168,000 public assistance applications and assisted approximately 350,000 individuals in engaging in employment activities. (Smith Decl. ¶ 3)
Procedural History
Plaintiffs commenced this action by order to show cause in December 1998 seeking, inter alia, a temporary restraining order enjoining the conversion of additional income support centers to job centers. Plaintiffs alleged that HRA's staff at job centers were routinely preventing prospective applicants from applying for benefits during their first visit to a job center, pressuring applicants to withdraw their applications, improperly denying combined applications for cash assistance, food stamps and Medicaid when only cash assistance had been denied, and failing to provide adequate notice of determinations. The complaint asserted private rights of action under federal food stamps and Medicaid statutes and regulations, including the right to apply for such benefits without delay and to receive timely determinations of eligibility. The complaint also set forth claims under 42 U.S.C. § 1983 based on alleged violations of these statutes and regulations as well as plaintiffs' federal due process rights.
Following a period of expedited discovery, this Court conducted a three-day evidentiary hearing in January 1999. On January 25, 1999, this Court held in Reynolds I that plaintiffs had established irreparable harm and a likelihood of success on their claims. The Court rejected the City defendants' argument that the errors and deficiencies at job centers were isolated problems. On the contrary, the evidence pointed to system-wide failures resulting from HRA's hurried conversions of income support centers to job centers and its incremental, post hoc responses to what appeared to be an array of serious and interrelated problems.
At the hearing, the Court heard evidence that HRA had opened its first job center in March 1998 as a test-bed with the intention of addressing problems as they arose. See Reynolds I, 35 F.Supp.2d at 341. The evidence demonstrated that problems abounded. Data proffered by plaintiffs revealed sharp declines in applicants being approved for benefits after an income support center was converted to a job center. Those declines appeared attributable to the efforts of job center personnel to deter applicants from applying for food stamps, Medicaid and cash assistance. See Reynolds I, 35 F.Supp.2d at 343. By way of example, a monthly average of 48.96% of all applicants were diverted from seeking assistance at the Jamaica Job Center. Id. Figures for other job centers were equally alarming. Other evidence confirmed what might be fairly characterized as a culture of improper deterrence at job centers, including summary reports prepared by job centers tracking the number of applicants diverted. Id. at 344-45.
Plaintiffs also presented evidence that job centers were failing to comply with *358 certain statutory and regulatory requirements for administering food stamps and Medicaid benefits. For example, the evidence indicated that job centers were failing to timely process applications, failing to separate eligibility determinations, erroneously denying food stamps and Medicaid applications, failing to allow individuals to apply for benefits on their first visit to a job center, and failing to provide adequate notice of determinations. See Reynolds I, 35 F.Supp.2d at 345-47.
Based on these findings, the Court granted plaintiffs' application for a preliminary injunction and directed the City defendants to:
allow plaintiffs and all persons applying for food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation grants to apply for such benefits on the first day that they visit a Job Center;
process all applications for expedited food stamps and temporary pre-investigation grants at Job Centers within the time frames required by law;
make eligibility determinations regarding food stamps and Medicaid applications at Job Centers separate from the eligibility determinations regarding cash assistance applications; and
send plaintiffs and all persons applying for food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation grants at Job Centers timely and adequate written notice of determinations of their eligibility for all benefits which they seek.
Reynolds I, 35 F.Supp.2d at 347-48. The Court enjoined the City defendants from opening new job centers and from converting existing income support centers to job centers, pending a hearing and determination on the adequacy of a corrective plan addressing remedial training and procedures for job center personnel. At a minimum, the corrective action plan was to address the following issues:
Procedures to permit applicants to file an application for food stamps, Medicaid or cash assistance on the first day of contact with a Job Center;
Procedures for separate determinations on an applicant's request for food stamps, Medicaid and cash assistance;
Procedures for processing applications for expedited food stamps within seven days from the date the application is submitted;
Procedures for processing applications for pre-investigation immediate needs cash assistance in a manner consistent with State law;
Procedures for processing applications for food stamps and/or Medicaid where applicants fail to comply with work requirements; [and]
Procedures for providing written notice to applicants denied food stamps, Medicaid and/or cash assistance together with the basis for those denials and an opportunity to request a fair hearing.
Reynolds I, 35 F.Supp.2d at 348.[2] The Court was (and remains) sensitive to intruding on HRA's ability to freely exercise its managerial prerogatives and to implement policy, but nevertheless observed:
In its quest to enhance the delivery of food stamps, Medicaid and cash assistance benefits to the City's most needy residents, the City cannot lose sight of the requirements imposed by federal statutes and regulations. Because some of the City's neediest residents continue to fall through the safety net at job *359 centers, this Court is impelled to ensure that remedial steps are taken on a specified time-line and that the effects of the revisions to job center procedures are measured to ascertain whether they are working.
Reynolds I, 35 F.Supp.2d at 341.
Thereafter, the City defendants set out to formulate a comprehensive corrective action plan and to retrain its front-line personnel at job centers and income support centers. After a series of revisions that were shaped in part by plaintiffs' suggestions and criticisms, the City defendants submitted a proposed corrective action plan and moved for an order lifting the stay on job center conversions.
On May 24, 1999, this Court approved the corrective action plan and modified the preliminary injunction to allow the City defendants to convert three more income support centers to job centers. See Reynolds II, 43 F.Supp.2d at 492. The Court declined to permit additional job center conversions because the City defendants' proof was inconclusive as to whether its corrective action plan and other remedial measures were having salutary effects at job centers.
At that time, FIA had audited its job centers and income support centers for the months of January and February 1999 in an effort to monitor their performance in a number of critical areas. While the City defendants argued that the audit data demonstrated improved accuracy in processing applications at job centers, plaintiffs drew contrary conclusions from the same data set and raised doubts about the reliability of FIA's audit procedures. See Reynolds II, 43 F.Supp.2d at 498. Those issues could not be resolved on the record as it existed at that time. The Court observed: "The disparities between the parties' calculations underscores the need for reliable, uniform audit procedures and statistically valid monitoring protocols. While data may always be subject to differing interpretations, the parties cannot even agree on the validity of the data set." Reynolds II, 43 F.Supp.2d at 498.
Accordingly, this Court ruled that it would consider a further modification of the preliminary injunction "after a hearing and determination on the adequacy of the City defendants' auditing procedures for job centers and an analysis of the data collected pursuant to those procedures." Reynolds II, 43 F.Supp.2d at 498. The City defendants were invited to amend or supplement their audit procedures, or to demonstrate that their existing procedures were reliable and valid. Id. In either event, the Court envisioned that additional data for the months of March, April, and May 1999 would be available for analysis so that it could be more fully informed "as to whether the reforms contemplated by the corrective action plan are translating into practice." Id.
Following Reynolds II, the parties engaged in additional discovery as the City defendants prepared to bring on a further application to modify the preliminary injunction. An evidentiary hearing was scheduled by this Court for July 26, 1999. On the eve of that hearing, after voluminous submissions had been filed with the Court, the City defendants requested that the hearing be adjourned. During a telephone conference conducted on July 26, 1999, the City conceded that it was not prepared to defend the reliability of their existing audit procedures. By order dated July 26, 1999, this Court denied the City defendants' motion to modify the preliminary injunction without prejudice to its renewal upon further application to the Court.
The City defendants balked at that time because they apparently recognized that the results of the audits conducted by FIA in anticipation of the hearing were materially flawed. One of the principal criticisms leveled by plaintiff's expert was that FIA sampling protocol which involved manually selecting cases from batches of application control cards that are maintained at job and income support centers generated *360 a hopelessly biased sample in which accepted cases were over-represented. (Faust 1st Rpt. ¶ 59; Faust 2d Rpt. ¶ 19)
During the months of August and September 1999, the City defendants conducted another audit of applications filed in May, June and July 1999 using a newly-designed audit instrument (the "Reynolds Audit"). Although plaintiffs suggested to the City defendants that their respective experts collaborate on the design of the new audit instrument, their overture was rejected.
On September 22, 1999, this Court conducted a status conference at which the City defendants indicated their intention to renew their motion to dissolve the preliminary injunction. Since plaintiffs had not participated in designing the Reynolds Audit, they sought time to conduct discovery. The Court acceded to the City defendants' request for a prompt hearing date and established tentative dates for the expeditious completion fact and expert discovery. During a further pretrial conference conducted on October 21, 1999, those tentative dates hardened into firm deadlines, and an evidentiary hearing was scheduled for December 15 and 16, 1999.
The hearing proceeded on December 15 and 16, 1999. A third and final day of testimony was taken on January 19, 2000, and thereafter the parties submitted post-hearing memoranda of law and proposed findings of fact. On March 2, 2000, the Court heard oral argument on the City defendants' motion. By order dated May 18, 2000, the Court directed plaintiffs and the State defendants to submit additional memoranda of law concerning the State defendants' motion to dismiss plaintiffs' claims as against them.
During the evidentiary hearing, the City defendants presented testimony from Patricia M. Smith, Executive Deputy Director for FIA; Jacqueline Flaumm, Assistant Deputy Commissioner for FIA; Rochelle L. Abdullah, Director of OQA; Andrew Bush, Executive Deputy Administrator of HRA's Office Policy and Program Analysis ("OPPA"); Meyer Elbaz, HRA's Assistant Deputy Administrator for Management Information Systems; and Dr. June E. O'Neill, an expert in statistical sampling and the use and interpretation of data. Plaintiffs' sole witness was their statistician, Richard Faust.
In addition to this testimony, the parties made extensive pre-hearing submissions. Notably, the City defendants offered a final version of their expert report, dated October 12, 1999. (City Ex. 1) The analyses contained in this final version of Dr. O'Neill's report included additional case files that were located and audited during the final weeks of the Reynolds Audit. Dr. O'Neill also submitted a lengthy supplemental declaration, dated January 7, 2000, containing a host of new tables and revised calculations. Plaintiffs' expert submitted two reports in connection with the Reynolds Audit, the first dated December 6, 1999 ("Faust 2d Rpt."), and the second dated January 17, 2000 ("Faust 3d Rpt.").[3] Plaintiffs' January 17, 2000 expert report addressed the matters raised in Dr. O'Neill's supplemental declaration of January 7, 2000.
Discussion
I. The City Defendants' Motion To Vacate The Preliminary Injunction
The purpose of the evidentiary hearing was to determine whether the corrective action plan approved in Reynolds II had translated into practice. The City defendants pointed to an array of initiatives and other items of proof in an effort to show that it had. Principally, the City defendants rely on the results of the Reynolds Audit in which HRA personnel audited 1,893 case files drawn from job centers and income support centers.
*361 The City defendants also contend that HRA has improved its other monitoring and oversight activities. In January 1999, OQA implemented Process Evaluation and Review Team ("PERT") audits, in which a pair of FIA auditors conduct a week-long inspection and review of the operations at a particular job center. The City defendants also highlight OQA's "QC [Quality Control] Doctor" program, in which several OQA personnel make repeated visits to a particular center to focus on and resolve particular problems. In addition, shortly after the preliminary injunction issued in Reynolds I, FIA began sending "spot-checkers" to job and income support centers. The spot-checkers posed as applicants in order to determine whether individuals were permitted to file for benefits on their first day of contact with a center. Apart from these oversight activities by HRA, centers are also subject to reviews by the New York State Office of Temporary and Disability Assistance ("OTDA"), as well as the United States Department of Agriculture ("USDA").
Additional monitoring activities have been undertaken in connection with this litigation. Pursuant to this Court's order entered on April 5, 1999, plaintiffs' counsel has been permitted to conduct one-day inspections of up to five job centers each month during discovery. The particular center to be inspected on any given day is identified by plaintiffs' counsel 48 hours in advance. In addition, the parties have utilized an "informal intervention" procedure in which plaintiffs' counsel may call HRA's attention to particular cases of exigent need for expedited food stamps and/or emergency cash assistance.
Finally, the City defendants have begun using the results of "fair hearing" appeals of agency determinations as a monitoring device for job center and income support center performance. By comparing HRA's "win rates" for appeals taken from both job center and income support center eligibility determinations, the City defendants conclude that job centers generally perform better.
Based on these efforts and the Reynolds Audit, the City defendants argue that there is no longer a basis for maintaining the preliminary injunction. (City Defs.' Post-Hearing Mem. at 2) Before turning to the merits of the City defendants' motion, the Court addresses the parties' divergent views as to the standard governing the City's application.
A. The Applicable Standard
This Court set out the applicable standard for modifying a preliminary injunction in Reynolds II. On such motions, "a court is charged with exercising the same discretion it exercised in granting or denying the injunction in the first instance." Reynolds II, 43 F.Supp.2d at 494 (citing Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir.1984)). "An injunction is an ambulatory remedy that marches along according to the nature of the proceeding. It is executory and subject to adaption as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change." Sierra Club, 732 F.2d at 256.
Though both plaintiffs and the City defendants would accept this general standard as controlling, they join issue as to how it should be applied. At the outset, the Court observes that the City defendants' motion seeks to vacate all portions of this Court's January 25, 1999 preliminary injunction, including both the stay on job center conversions and those decretal paragraphs ordering that applications for food stamps, Medicaid and cash assistance be processed in conformity with applicable statutory mandates.[4] Focusing on these *362 two aspects of the order, the City defendants contend that there is no longer a factual or legal basis for continuing the injunction.
Specifically, the City defendants argue that plaintiffs failed to prove during the evidentiary hearing that job center personnel continue to deter individuals from applying for benefits. The City defendants further contend that the Reynolds Audit demonstrated that job centers perform at least as well, and often better than, income support centers. Thus, as to job center conversions, the City defendants claim that the conditions that may have warranted preliminary injunctive relief in Reynolds I have abated, and they argue that plaintiffs have offered no evidentiary basis for its continuance.
With respect to that branch of the preliminary injunction requiring HRA to comply with federal and state law, the City defendants assert that any errors in processing applications at job centers are isolated occurrences. Relying again on the results of the Reynolds Audit, the City defendants further claim that HRA is in "substantial compliance" with applicable statutory and regulatory requirements. Consequently, the City defendants argue that the balance of the preliminary injunction should be vacated because plaintiffs cannot establish a municipal "policy or custom" pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).[5]
Plaintiffs attack the City defendants' characterization of the parties' respective burdens of proof at this juncture in the proceedings, and they dispute the applicability of Monell's policy or custom requirement. Plaintiffs argue that since their class-action complaint seeks only prospective injunctive relief, Monell is inapplicable. Plaintiffs also argue that even if Monell applied, the proof in Reynolds I established the requisite policy or custom, and the City defendants have not met their burden of showing compliance with applicable laws or cessation of improper deterrence at job centers. Since it is a threshold issue that really underlies both of the aforementioned branches of the preliminary injunction, the Court turns first to the City defendants' arguments concerning the relevancy of Monell.
There is scant and conflicting authority as to whether Monell applies in actions where the only remedy demanded is prospective injunctive and declaratory relief. However, those courts which have squarely addressed the issue have concluded that it does not. The Ninth Circuit's decision in Chaloux v. Killeen, 886 F.2d 247 (9th Cir.1989), is a leading example. In Chaloux, the plaintiffs were recipients of social security disability benefits who challenged the constitutionality of Idaho's statutory scheme of post-judgment execution and garnishment procedures. Their class action complaint alleged that the statute violated their due process rights and ran afoul of the Supremacy Clause because it permitted seizure of their federally exempt disability benefits. See Chaloux, 886 F.2d at 248-49. The plaintiffs invoked 42 U.S.C. § 1983 and sought prospective declaratory and injunctive relief. Id. at 250.
On appeal from the district court's order dismissing the complaint, the Ninth Circuit considered whether Monell's official policy or custom requirement was applicable to claims against the defendant county sheriffs named in their official capacities. The court ruled that this requirement did not apply to "a suit for prospective relief against a county or its officials for enforcing allegedly unconstitutional state laws." *363 Chaloux, 886 F.2d at 250. The court explained:
We reach this conclusion upon review of the policy justifications supporting the decision in Monell. The Monell Court set forth an "official policy or custom" requirement to limit § 1983 damage awards against municipalities. That limitation served to alleviate the imposition of financial liability on local governments based solely on a respondeat superior theory.
....
We find no persuasive reasons for applying the Court's "official policy or custom" requirement to suits against counties only for prospective relief. The justification for limiting an action for damages is notably absent when the relief sought is an injunction halting the enforcement of an unconstitutional state statutory scheme. The relief sought here, a declaration that the Idaho statutes are unconstitutional and an injunction against their enforcement, do not carry any threat of fiscal liability.
Chaloux, 886 F.2d at 250-51 (citations and footnotes omitted); accord Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir.1993) ("[T]he City can be subject to prospective injunctive relief even if the constitutional violation was not the result of an official custom or policy.") (internal quotation marks omitted); Nobby Lobby, Inc. v. City of Dallas, 767 F. Supp. 801, 810 (N.D.Tex.1991) ("The Court can find in the case law no reason to impose an official policy or custom requirement in a situation where prospective relief alone is at issue and there is no threat of municipal financial liability.") (internal quotation marks omitted), aff'd on other grounds, 970 F.2d 82 (5th Cir.1992); Santiago v. Miles, 774 F. Supp. 775, 792-93 (W.D.N.Y.1991) (in action for prospective injunctive relief against State officials pursuant to Ex parte Young, plaintiffs were not required to prove that defendants acted pursuant to a policy or custom).
Several courts have applied Monell's policy or custom requirement in actions involving only prospective injunctive relief, but did so without analysis. See Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir.1990); Salazar v. District of Columbia, 954 F. Supp. 278, 324 (D.D.C.1996); United States v. Commonwealth of Pennsylvania, 902 F. Supp. 565, 580, 649 (W.D.Pa.1995), aff'd, 96 F.3d 1436 (3d Cir.1996). Other cases cited by the City defendants are distinguishable in that they involved claims for both damages and injunctive relief, see, e.g., Barrett v. Harwood, 189 F.3d 297, 300, 303 (2d Cir.1999); Adkins v. Board of Educ. of Magoffin County, Ky., 982 F.2d 952, 957-59 (6th Cir.1993); Nix v. Norman, 879 F.2d 429, 433 (8th Cir.1989), or for retroactive declaratory relief, see Community Health Care Association of New York v. DeParle, 69 F. Supp. 2d 463, 471-72, 474-75 (S.D.N.Y.1999); see generally Green v. Mansour, 474 U.S. 64, 73, 106 S. Ct. 423, 428, 88 L. Ed. 2d 371 (1985).
Notwithstanding the paucity of case law supporting the City's position, its arguments are not without merit. Plaintiffs in this action seek broad-based, system-wide injunctive relief. Such relief would necessarily have some impact on the City's expenditure of public funds, thereby undercutting the rationale of Chaloux and its progeny. Viewed through a different lens, the relief plaintiffs seek would only require the City to comply with applicable federal requirements, something it is already bound to do. See generally Rothstein v. Wyman, 467 F.2d 226, 232 (2d Cir.1972). This Court, however, need not decide whether the City's argument concerning Monell raised now for the first time is correct.[6] Whether or not Monell requires *364 plaintiffs in this action to plead and prove a policy or custom, the evidence adduced in Reynolds I, see supra, was indicative of a widespread pattern of violations that would be actionable under Monell. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89, 109 S. Ct. 1197, 1204-05, 103 L. Ed. 2d 412 (1989); Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.1980).
Accordingly, to obtain the relief they seek, the City defendants must show that the conditions warranting preliminary injunctive relief in Reynolds I have been remedied through their successful implementation of the corrective action plan or have otherwise abated. Plaintiffs, having met their burden in Reynolds I of establishing a risk of irreparable harm based on the City defendants' failure to comply with federal law, are not required to re-prove their case for preliminary injunctive relief. The question for the Court is whether circumstances have changed, particularly since Reynolds II when the Court approved the City's corrective action plan, such that continuation of the preliminary injunction is no longer warranted. The burden of establishing such changed circumstances rests squarely on the City defendants. The Court will not presume that the City's corrective action plan has succeeded simply because it had all the right ingredients; the proof of the pudding is in the eating.
With these precepts in mind, the Court turns to the City defendants' motion.
B. The Reynolds Audit
1. Overview of the Sampling Process and the Audit Instrument
The City defendants' describe the Reynolds Audit as a "massive undertaking" (City Defs.' Post-Hearing Mem. at 10), a characterization plaintiffs do not dispute. The City defendants embarked on this effort immediately after informing the Court on July 26, 1999 that it was unprepared to defend its existing audit procedures.
First, the City defendants designed a series of protocols for selecting a random sample of cases from among the applications submitted at job centers and income support centers in May, June and July 1999. After drawing the sample, the City utilized a new audit instrument to review the sampled case files and measure performance in the following areas: "(a) providing immediate needs cash assistance where appropriate; (b) providing expedited food stamp service where appropriate; (c) timely providing immediate needs and expedited food stamps; and (d) making separate determinations or referrals for food stamps or Medicaid where cash assistance was denied or the application was withdrawn." (O'Neill Rpt. ¶ 9)[7] Additionally, the instrument sought to determine whether a notice of benefit determination was issued to an applicant.
In order to select its random[8] sample of case files, the City defendants initially decided *365 to utilize HRA's "NYCWAY" computerized database. HRA maintains over 100 different computer databases. (Elbaz Decl. ¶ 3) It uses the NYCWAY system to track appointments made for public assistance applicants in education, training and work programs. (Dep/Elbaz/154-55) Thus, the NYCWAY system focuses primarily on public assistance recipients rather than on applicants. (Elbaz Decl. ¶ 6)
Information for the NYCWAY system is electronically transmitted from the State of New York Welfare Management System ("WMS"), a state-operated computer system used to maintain information on applicants for certain benefits, including food stamps, Medicaid and cash assistance. NYCWAY receives updated information from the WMS system every night so it is available to case workers the following morning. (Dep/Elbaz/63-64) The primary focus of the WMS system is on active public assistance recipients who have completed the application process, though it contains limited information regarding applicants for food stamps, Medicaid and cash assistance. (Elbaz Decl. ¶ 5)
On or about August 5, 1999, the City defendants drew a sample of cases from the NYCWAY database. This was done with a computer program designed to select cases from job centers and income support centers in proportion to the number of applicants at each center. (O'Neill Rpt. ¶¶ 14, 16) The City defendants originally intended to include approximately 2,100 cases in the Reynolds Audit, consisting of an average of 25 cases per month for each center, with a minimum of 20 cases selected at any given center. (O'Neill Rpt. ¶ 14 and Ex. B)
However, as HRA auditors began to review the sampled case files, they discovered that the NYCWAY data set was over-inclusive. For example, it contained applications by persons with AIDS under the "DASIS" (Division of Aids Services and Income Support) program. (O'Neill Rpt. ¶ 16) Additionally, HRA realized that the NYCWAY data set was under-inclusive because it replaced old information about applicants with any new information. (Dep/Elbaz/52) Once old information is over-written on the NYCWAY system, it cannot be retrieved. For example, if an applicant files more than one application, the newest application automatically purges any information about all earlier applications. (Dep/Elbaz/55-56)
These shortcomings led the City defendants to draw a second sample from a different database known as the Eligibility Verification Review ("EVR") information system. Like the NYCWAY system, the EVR database receives applicant-specific information from the state-run WMS system. (Dep/Elbaz/66) The EVR computer system is oriented around the eligibility verification review process, wherein the information and supporting documentation provided by applicants is screened for accuracy. (Elbaz Decl. ¶ 8) Once an EVR appointment is scheduled, the system tracks the applicant through the application process. In contrast to the NYCWAY system, the EVR system does not overwrite data, so every filing of an application is preserved. (Dep/Elbaz/87, 97, 174)
The second sample of cases was drawn from the EVR database on or about August 11, 1999. (O'Neill Rpt. ¶ 17) At that time, however, HRA auditors had already begun reviewing case files for May 1999 from the NYCWAY sample. Rather than start anew, the City defendants decided that for cases filed in May 1999, it would rely primarily on the NYCWAY sample and would draw additional cases from the EVR database only when a sufficient number of NYCWAY-selected case files could not be physically located and retrieved from the centers. (O'Neill Rpt. ¶ 17) However, since the EVR database was superior because it more closely "approximated the target group" (O'Neill Rpt. ¶ 17) of applicants, the City defendants made it the primary database when it drew samples *366 for the months of June and July 1999; for those months, the NYCWAY database was used as a supplement.
Once the primary and secondary samples were drawn, the case files were physically delivered to a central location at HRA headquarters. (O'Neill Rpt. ¶ 20) There, the files were audited by OQA staff members. Of the ten auditors involved, some had prior experience in conducting such reviews while others did not. (Dep/Mortley/11; Dep/Ricks/13) The auditors used a newly-designed audit instrument that presented a series of questions in two stages. (O'Neill Rpt., City Ex. A)
Stage one of the audit instrument contained several categories of questions focusing on whether applications were properly screened and processed for, inter alia, immediate needs cash and/or expedited food stamps eligibility. Stage two confined its questions to cases where an application was rejected ("RJ") or "single/issue closed" ("SI/CL") The SI/CL category refers to applicants who actually received emergency cash assistance or expedited food stamps.
After the auditors finished their review, the case files and completed audit instruments were given a second-level review by selected staff members from job centers and income support centers. (Abdullah Decl. ¶ 22; Flaum Decl. ¶ 9) Thereafter, a third-level review was conducted by regional managers or their deputies. (Flaum Decl. ¶ 17)
2. Applicable Standards
The City defendants do not dispute that they bear the burden of demonstrating that Reynolds Audit was conducted in conformity with generally accepted survey principles. When a sample is drawn for the purpose of generating data about a population to be offered for its truth, as the Reynolds Audit is being offered here, "[t]he methods used must conform to generally recognized statistical standards." Manual for Complex Litigation, § 21.493 (3d ed.1997). Relevant factors include whether:
the population was properly chosen and defined;
the sample chosen was representative of that population;
the data gathered was accurately reported; and
the data was analyzed in accordance with accepted statistical principles.[9]
Manual for Complex Litigation, § 21.493. See generally Schering Corp. v. Pfizer Inc., 189 F.3d 218, 224-26 (2d Cir.1999).
Both parties' experts subscribe to the view that the representativeness of the sample is the primary concern of any researcher because without it, one cannot reliably project from the sample to the population. See Moore's Federal Practice, Reference Manual on Scientific Evidence, at 237 (Matthew Bender 1997) ("Identification of a survey population must be followed by selection of a sample that accurately represents that population."); accord Pittsburgh Press Club v. United States, 579 F.2d 751, 758 (3d Cir. 1978); Rosado v. Wyman, 322 F. Supp. 1173, 1181-82 (E.D.N.Y.1970), aff'd, 437 F.2d 619 (2d Cir.1970), aff'd, 402 U.S. 991, 91 S. Ct. 2169, 29 L. Ed. 2d 157 (1971). Representativeness can usually be assured when the source(s) from which the sample is drawn (i.e., the "sampling frame") accurately reflects the target population. See Moore's Federal Practice, Reference Manual on Scientific Evidence, at 235. In addition, the sampling protocol *367 should be designed so that every element in the sampled population has a known, nonzero probability of being selected. Id. at 237. See also American Home Products Corp. v. Barr Laboratories, Inc., 656 F. Supp. 1058, 1070 (D.N.J.1987), aff'd, 834 F.2d 368 (3d Cir.1987); Dreyfus Fund, Inc. v. Royal Bank of Canada, 525 F. Supp. 1108, 1116 (S.D.N.Y.1981); Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351, 429 (Judicial Conf.1960); Kevin H. Smith, External Validity: Representativeness and Projectability in the Probative Value of Sample Surveys, 39 Wayne L.Rev. 1433, 1484-87 (1993).
Nevertheless, even where a survey is found to suffer from technical or methodological flaws, it may still be received in evidence subject to arguments about its weight and probative value. See Schering, 189 F.3d at 228; Bacardi & Co. Ltd. v. New York Lighter Co., Inc., 2000 WL 298915, at *5 (E.D.N.Y. Mar. 15, 2000) (97 Civ. 7140(JS)). For example, where a sampling frame is under-inclusive, "the survey's value depends on the extent to which the excluded population is likely to react differently from the included population." Reference Manual on Scientific Evidence, at 236; accord Champion v. Shalala, 33 F.3d 963, 966-67 (8th Cir.1994). Similarly, criticisms that a sampling protocol was not random or otherwise reliable, see, e.g., Debra P. v. Turlington, 730 F.2d 1405, 1408, 1411 n. 11 (11th Cir.1984), or resulted in a high non-response rate, see, e.g., Champion, 33 F.3d at 967, will not render a survey inadmissable. Rather, such shortcomings will undermine a survey's reliability and erode its probative value. Of course, a combination of technical flaws or a single, fundamental defect may eviscerate the evidentiary force of a survey. See, e.g., Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 118 (2d Cir.1984).
Plaintiffs take the view that the Reynold Audit is fundamentally flawed in so many areas that it cannot be used to draw any reliable conclusions about the performance of job centers and income support centers. First, plaintiffs argue that the sampling frame for the Reynolds Audit, i.e., the NYCWAY and EVR computer databases, is under-inclusive of the population of applicants because it does not include applications that were withdrawn or rejected on the same day they were filed. Consequently, plaintiffs contend that the sampling frame is unrepresentative of the population. In addition, plaintiffs argue that the Reynolds Audit sample of 1,893 cases is not sufficiently representative of the NYCWAY and EVR databases from which it was drawn. Further, plaintiffs claim that an inordinately high number of cases could not be located and retrieved from centers or were erroneously excluded from the auditing process. Finally, plaintiffs contend that the two-stage audit instrument used to conduct the Reynolds Audit was poorly designed and failed to include necessary questions. The Court addresses these issues seriatim.
3. The Absence of Certain Withdrawn and Rejected Cases From the Sampling Frame
According to plaintiffs, the greatest fault with the Reynolds Audit is that its sampling frame excluded virtually all cases in which an application was withdrawn on the same day it was submitted. (Faust 2d Rpt. ¶¶ 29, 48-80) In fact, only 12 of the 1,893 cases in the Reynolds Audit sample are withdrawn cases. Relatedly, plaintiffs contend that an unknown number of cases rejected on the same day they were submitted are absent from the sampling frame, though plaintiffs acknowledge that this may present a lesser problem since the sample includes a substantial number of rejected cases. The City defendants do not dispute that the NYCWAY and EVR databases generally do not capture instances where an application is filed and withdrawn on the same day. (Bush Decl. ¶¶ 3-4) They argue, however, that the absence of withdrawn cases is largely immaterial *368 because they do not impact the principal issues being audited and therefore could not have biased the survey results. (City Post-Hearing Mem. at B-3) As for rejected cases, the City defendants appear to dispute that any significant number of rejected cases were improperly excluded.
Before turning to the merits of these arguments, the Court addresses several preliminary points. First, the Reynolds Audit was apparently intended to include withdrawn cases, even though it failed to do so. In that regard, page one of the audit instrument required auditors to indicate the disposition of the application being reviewed. One of the six check boxes provided on the audit instrument was for "WD" (withdrawn) applications.[10] Further, the City defendants' expert report observed that "[t]he instrument was designed to capture Job Center and Income Support Center performance in ... (d) making separate determinations or referrals for Food Stamps or Medicaid where cash assistance was denied or the application was withdrawn." O'Neill 2d Rpt. ¶ 9 (emphasis added).
Nevertheless, the expert reports submitted by the City defendants in advance of the evidentiary hearing failed to account for the absence of withdrawn cases from the NYCWAY and EVR databases. By way of illustration, Table I of the City defendants' expert report (City Ex. 1) provided statistical breakdowns of dispositions for the job center and income support center samples, as well as comparative data on dispositions from the NYCWAY and EVR databases. The table lists only five of the six disposition categories: application pending, single-issue, acceptance, rejected, and single-issue closed. Withdrawn cases are not mentioned, even though the 12 cases that were included in the Reynolds Audit constituted 0.8% of the job center sample and 0.5% of the income support center sample. (Faust 2d Rpt. ¶ 60)
The City defendants claim that they decided to draw audit samples from the NYCWAY and EVR databases, knowing that they might be under-inclusive or otherwise imperfect, because HRA does not maintain a computer database capable of tracking applications that are withdrawn on the same day they are filed. See Smith Supp. Dec. ¶ 8 ("[T]here is no computer database that contains all incidents of applications filed at the Centers.") (emphasis in original). Further, the City defendants hoped to avoid the pitfalls they experienced in connection with the aborted July 26, 1999 hearing where the audit samples were drawn manually using control cards. (Bush Decl. ¶¶ 4-5; Dep/Smith/20-23) Ultimately, the City defendants concluded that "the databases [were] the best available approximation of the universe of applicants," (Smith Decl. ¶ 19), and that auditing withdrawn cases would not have yielded additional useful information.
In the Court's view, the Hobson's Choice depicted by the City defendants was self-imposed. It is noteworthy that despite the City defendants' acknowledgment on July 26, 1999 that their existing audit results were fundamentally flawed, HRA personnel were drawing cases from the NYCWAY database less than two weeks later. While courts rarely find fault with a litigant who proceeds with alacrity, in this case the City defendants' hastily-conceived sampling protocol spawned an array of complex statistical issues that might have been avoided.
The City defendants acknowledge that "some of the peculiarities of the computer databases selected were not fully evident until the [] Reynolds audit was complete[.]" (Smith Decl. ¶ 19) See also O'Neill Rpt. ¶ 19 (referring to the "significant time constraints [the City defendants] faced in completing the audit."); Tr/O'Neill/86 ("Q: But, Dr. O'Neill, it was *369 your earlier testimony, wasn't it, just a few minutes ago, that you in fact knew that withdrawn cases are purged at the time you prepared this report? Isn't that correct? A: I said that I believed that I was conscious of something like that. Honestly, it was not something that I had focused on. It was something that was always a kind of fuzzy area."); Dep/Elbaz/86-87 ("Q: Do you know why, on approximately August 11, a sample was selected from a second data set?" "... A: A lot of this happened very quickly because of the pressure that I was under to produce something right away."). Against this backdrop, the City defendants' reasons for relying exclusively on the NYCWAY and EVR databases for the Reynolds Audit have the earmarks of post hoc rationalization.
This is most evident in Dr. O'Neill's second supplemental declaration, dated January 7, 2000, in which she discusses for the first time various statistical approaches for testing and compensating for over- and under-representativeness in samples. Dr. O'Neill's second supplemental declaration which easily surpasses her main expert report in length and complexity was precipitated by matters raised by plaintiffs during the portion of the evidentiary hearing conducted in December 1999. Plaintiffs, in turn, responded with a third expert report challenging the appropriateness of the corrective techniques employed by Dr. O'Neill as well as the results of her analyses. Such successive rounds of increasingly complex submissions would have been obviated had the City defendants taken the time to inform themselves of the "peculiarities" of the databases on which they chose to rely.[11]
Turning to the merits, it is useful to briefly explore why certain withdrawn and rejected cases may have been excluded from the sampling frame. New applications are initially entered into the State-run WMS database, which then transmits relevant information to the NYCWAY and EVR databases overnight on a daily basis. (Dep/Elbaz/63-67) However, applications withdrawn on the same day they are filed are automatically purged from the WMS system before a record of those applications is transferred to the NYCWAY or EVR databases. (Dep/Elbaz/194-97; Dep/Parker/110) On the other hand, if an EVR appointment is made for an applicant before his case is withdrawn, then the EVR system records (and preserves) the application without regard to the nightly WMS data transfer. Thus, there are only two ways in which a withdrawn application could enter the NYCWAY or EVR databases: (1) the application is not withdrawn on the WMS system on the same day it is entered into that system, in which case it will be transferred to the NYCWAY and EVR systems overnight; or (2) an EVR appointment is scheduled for an applicant before his application is withdrawn, in which case the EVR system will preserve a record of the application. (Faust 2d Rpt. ¶¶ 72, 73).[12]
Applications which are rejected on the same day they are filed may also be excluded from the NYCWAY and EVR databases, though the record is considerably *370 murkier as to how and when that might occur. (Dep/Elbaz/190-93 (opining that the answers to such questions lie within a labyrinth of computer programming code)) Ultimately, plaintiffs were unable to do more than speculate as to the number of rejected cases, if any, that may have been excluded. (Faust 2d Rpt. ¶ 29; Faust 3d Rpt. ¶ 41; Tr/Faust/367, 371-73) For that reason, the Court will focus instead on withdrawn cases and how their relative absence from the sample may have skewed the audit results. Nevertheless, the possibility that even a small number of rejected cases were inadvertently excluded from the sample raises concerns. According to the City defendants' own calculations, over the three-month audit period rejected cases exhibited significantly higher rates of inappropriate denials of immediate needs cash grants than accepted cases (39.4% 47.9% for rejected cases versus 8.8% 14.7% for accepted cases). (O'Neill Sec. Supp. Decl., Tbl. 11; Tr/O'Neill/481) Inappropriate denials of expedited food stamp applications were also much more prevalent among rejected cases than accepted cases (30.8% 41.0% versus 13.8% 19.8%). (Id. at Tbl. 15) Thus, the use of a database which may have excluded a segment of rejected cases could be a source of error.[13] The City defendants' expert report does not address the potential impact of purging rejected cases from the sampling frame. (Tr/O'Neill/100)
As mentioned earlier, only 12 withdrawn cases appear in the Reynolds Audit. Those cases constitute just 0.8% of the job center audit sample, a figure that plaintiffs demonstrated is grossly under-inclusive of the true population of withdrawn cases.
Plaintiffs performed tabulations of the true population of withdrawn cases based on two different sources. One set of population disposition data was derived from Job Center Applicant Reports prepared by HRA's Office Policy and Program Analysis ("OPPA"). A second set of tabulations was done by counting the number of withdrawn cases appearing on the Daily Activity Logs maintained by job centers. (Jeffrey Decl. ¶ 5)[14] Tabulations from the OPPA reports indicate that for the three-month audit period, 27.8% of those persons categorized as seeking assistance did not continue their application past the financial planning interview. (Jeffrey Decl. ¶ 7) Plaintiffs' review of the Daily Activity Logs indicated that 17.5% of those seeking assistance withdrew their applications at or before the financial planning interview. (Id. at ¶ 14)[15] These two figures of 17.5% and 27.8% are an upper and lower estimate of the true number of withdrawn applications at job centers.[16]
Plaintiffs' expert performed a binomial test of statistical significance, for all categories of disposition, on the percentages generated by the Reynolds Audit sample and the OPPA reports. Plaintiffs' expert similarly compared the percentage of withdrawn cases in the audit sample with the *371 Daily Activity Log tabulations. The respective percentages may be summarized as follows:
Disposition Status Audit Sample OPPA Rpts Activity Logs
AP (pending) 3.0 3 -
SI (single issue) 6.1 4 -
AC (accepted) 46.6 28 -
RJ (rejected) 19.5 18 -
SI/CL (SI closed) 24.1 20 -
WD (withdrawn) 0.8 28 17
For the AP (pending), SI (single issue), RJ (rejected) and SI/CL (single issue/closed) categories of disposition, there is little disparity between the sample and population figures, and the differences are not statistically significant. (Faust 2d Rpt. ¶ 64) However, for AC (accepted) cases and WD (withdrawn) cases, the differences (46.6% versus 28%, and 0.8% versus 17%-28%, respectively) are statistically significant beyond the 0.001 level. A finding that a disparity is statistically significant "at the 0.001 level" means that the chance is less than one in a thousand that the disparity occurred by chance. (Tr/Faust/286)[17]
As mentioned at the outset, the City defendants do not dispute that withdrawn cases were largely excluded from the Reynolds Audit sample. Rather, they argue that plaintiffs failed to demonstrate that the absence of withdrawn cases could have biased the audit results in favor of job centers. The City defendants further claim that withdrawn cases implicate, at most, only one of the several issues being audited. (City Defs.' Post-Hearing Response Mem. at 17; O'Neill Sec. Supp. Decl. ¶ 5) This Court disagrees.
The failure to capture withdrawn cases in the audit sample necessarily biases the results by over-representing the other dispositions, particularly accepted cases. (Faust 2d Rpt. ¶ 80) As indicated above, accepted cases have significantly lower rates of inappropriate denials for immediate needs cash grants and for expedited food stamps than rejected cases. For immediate needs cash grants, the difference in inappropriate denials is 8.8% 14.7% for accepted cases versus 39.4% 47.9% for rejected cases. For expedited food stamps, the figures are 13.8% 19.8% versus 30.8% 41.0%. Plaintiffs argue that inappropriate denials may well be more prevalent in withdrawn cases than accepted cases, and would likely occur more frequently in job centers given their more rigorous application process. Indeed, given this Court's previous finding that job centers were improperly deterring individuals from submitting applications, see Reynolds I, 35 F.Supp.2d at 343, the absence of withdrawn cases raises serious concerns that the audit results are biased in favor of job centers.
This concern is heightened by evidence presented by plaintiffs suggesting that some applicants are still improperly deterred from filing applications. The Daily Activity Logs from seven job centers contain handwritten entries suggesting that applicants withdrew their applications for assistance based on inaccurate information concerning eligibility criteria. (Jeffrey Supp. Decl., App. I) Some of the reasons listed for withdrawals, e.g., missing documents, applicant being under 21 years of age, or appearing at the job center without a spouse, echo problems discussed in Reynolds I. See Reynolds I, 35 F.Supp.2d at 344-45.
*372 It may be, as HRA Executive Deputy Director Patricia M. Smith asserted in her supplemental declaration dated January 7, 2000, that job center staff are simply noting legitimate issues of ineligibility in the Daily Activity Logs. (Smith Supp. Decl. ¶ 22)[18] The City defendants argue that "it is not enough to simply look at the very brief annotations in the Job Center daily logs and conclude that unlawful diversion is occurring." (City Defs.' Post-Hearing Mem. at 12) That too, may be true, and the Court does not view the Daily Activity Logs as conclusive proof of unlawful diversion. However, the Court found such practices of unlawful diversion existed in Reynolds I; it is the City defendants' burden on this motion to demonstrate that their corrective action plan and other remedial measures have put an end to those practices. At a minimum, the Daily Activity Logs raise doubts about whether unlawful deterrence continues to occur at job centers, and they compound the danger of having withdrawn cases essentially unrepresented in the audit sample. The City defendants have not adequately investigated and resolved these questions.
Similarly, the City defendants failed to adequately support their theory that withdrawn cases are only relevant for examining issues of separate Medicaid and food stamps eligibility determinations. Applicants who withdraw applications for cash assistance but continue their applications for food stamps and Medicaid must be screened for eligibility for expedited food stamps; they are also entitled to notice of their eligibility for ongoing food stamps and Medicaid. (Compare Tr/Smith/22-26 with Tr/O'Neill/489-91) In fact, of the twelve withdrawn cases in the audit sample, seven were reviewed by auditors for whether a correct determination of eligibility for expedited food stamps had been made. OQA's auditors found that in one of those instances, benefits had been wrongly denied. (Tr/Faust/417-18) One of the twelve withdrawn cases was evaluated for whether a correct determination of eligibility for an immediate needs grant had been made. In that case, the determination was correct. Id. While the City defendants suggest that such partial withdrawals are uncommon, (City Defs.' Post-Hearing Mem. at B-4), they offer no concrete proof to substantiate that assertion. In sum, the Court finds that the absence of withdrawn cases from the audit sample significantly undermines the reliability of the audit results.
4. The Sample Is Statistically Unrepresentative Of The NYCWAY And EVR Computer Databases From Which It Was Drawn
The City defendants do not dispute that the Reynolds Audit sample is unrepresentative of the NYCWAY and EVR computer populations from which it was drawn. Instead, the City argues that the deviations between the sample and these populations are not large enough "to seriously influence the results of the audit" and that "for all practical purposes the audit sample provides a reliable representation of the population from which it is drawn." (O'Neill Rpt. ¶ 27) The Court disagrees that the statistical deviations at issue are small enough to be treated lightly, and it declines the City's invitation to take a leap of faith and presume that these deviations did not bias the sample results.
The City defendants' expert elected to perform chi-square tests of representativeness of the audit sample to the computer populations. In this context, the chi-square test measures the extent to which the audit sample was drawn from the computer database population through a random, and therefore reliable, selection process.[19] The chi-square calculation results *373 in a number that may be compared to a table of "critical values" for different levels of significance. (Pls.' Ex. 112) Level of significance is a measure of the probability that an outcome occurred randomly. If the chi-square result exceeds the critical value listed at a certain level of significance, then the disparity may be attributable to non-random sampling error. A level of significance at the ".05 level" corresponds to two "standard deviations," responds to two "standard deviations," while a level of significance at the ".001 level" corresponds to three "standard deviations." "Social scientists consider a finding of two standard deviations significant, meaning there is about one chance in 20 that the explanation for a deviation could be random and the deviation must be accounted for by some factor other than chance." Waisome v. Port Auth., 948 F.2d 1370, 1376 (2d Cir.1991). A finding that a disparity is statistically significant at the .001 level means that the probability is less than one in a thousand that the disparity occurred by chance.
Using the chi-square test to compare disposition status (i.e., accepted, rejected, closed, etc.) between the sample and the computer database population, the City defendants' expert concluded that the differences were "somewhat larger than we would expect if pure sampling error were the only source of divergence (a Chi-square test)." (O'Neill Rpt. ¶ 27) In other words, the sample failed the chi-square test. Plaintiffs' expert replicated the chi-square test comparing sample dispositions with the computer database population and found that the results did not pass the test at any level of significance. (Pls.' Ex. 109)[20] In fact, he characterized the results as "way off the chart." (Tr/Faust/287)[21]
One possible source of non-sampling error may be the use of two separate computer database populations, i.e., NYCWAY and EVR. The EVR database contains approximately 7,000 more cases than the NYCWAY database, principally because the EVR system preserves multiple applications, whereas the NYCWAY system overwrites data and only includes the most recent application on file. (Elbaz Decl. ¶¶ 19-20)[22] Plaintiffs identified a number of significant differences in application dispositions between these computer populations. (Faust 2d Rpt. ¶¶ 99-100; Tbl. E) Another source of non-sampling error may be the fact that many case files could not be located and retrieved from the centers, thus requiring the City defendants to rely heavily on "supplemental" cases selected from the NYCWAY database.[23]
Although the City defendants performed additional tests of representativeness (e.g., comparing the audit sample with only the EVR database on the characteristic of household composition, and comparing disposition status after weighting the sample results), problems persisted. With respect to household composition (i.e., the number of adults and children in the applicant *374 household), plaintiffs' expert found the differences between the sample and database population to be statistically significant beyond the .001 level. (Faust 3d Rpt. ¶ 20)[24] The City defendants' use of statistical weighting to compensate for discrepancies in the sample and population distributions raises additional doubts. For example, the absence of withdrawn cases cannot be corrected by weighting because there are only 12 of them in the audit sample. (Faust 3d Rpt. ¶¶ 64-66) As plaintiffs' expert explained:
A: ... If you have a certain category that has missing cases, for instance, and you have some cases from that category in your sample, then you can weight it to correct for the cases that are missing. If you have no cases from that category in your sample, then you can't correct for it by weighting.
Q: And that would be the withdrawn cases[?]
A: Yes. In other words, in my opinion, the withdrawn cases are supposed to be 19 to 26 percent of all the job center cases. Now, there are only 12 cases, withdrawn cases, in the sample. And there's no way you could weight that up to be more than the population. But, for instance, if you had a good proportion of withdrawn cases and you had reason to believe but you should investigate this you had reason to believe that the withdrawn cases you have are similar to the withdrawn cases you don't have, then you can weight them to account for the withdrawn cases you don't have.
(Tr/Faust/399-400)
Unable to refute the statistical tests showing that the audit sample is unrepresentative of the databases from which it was drawn, the City defendants accuse plaintiffs of utilizing "an unrealistic standard of statistical purity," (City Defs. Response Mem. at 11), and claim that the sample is representative enough to be deemed reliable. These arguments are unpersuasive.
This Court recognizes that "in deciding whether a sample is adequate, practical limits to fact finding precision must be considered." Rosado, 322 F.Supp. at 1181. However, both the chi-square and binomial tests of statistical significance are recognized by courts as being valid means of assessing the representativeness of a sample. See, e.g., Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S. Ct. 1272, 1281 n. 17, 51 L. Ed. 2d 498 (1977); Board of Educ. of City School Dist. of City of New York v. Califano, 584 F.2d 576, 585 n. 29 (2nd Cir.1978), aff'd, 444 U.S. 130, 100 S. Ct. 363, 62 L. Ed. 2d 275 (1979); Jones v. New York City Human Resources Admin., 391 F. Supp. 1064, 1071 (S.D.N.Y.1975), aff'd, 528 F.2d 696 (2d Cir.1976). The sample consistently failed these tests of reliability, often by wide margins. The Court is unwilling to accept the City's ipse dixit that the sample is nonetheless reliable, particularly since its expert is unable to quantify its reliability or cite other factors which might offset the chi-square results and provide some guarantees of trustworthiness.[25]
*375 The Court concludes that the sample could not have been drawn from the population of applicants in the NYCWAY and EVR databases by a valid process because the disparities between the sample and the data set are statistically significant. The sample's failure to pass generally accepted tests of statistical reliability further erodes confidence in the audit results.
5. The Sample's Non-Retrieval Rate Is Significant And Constitutes Another Source Of Potential Error
The Reynolds Audit was originally intended to include approximately 1,800 cases selected from a single database (an average of 25 cases per month per center, with a minimum of 20 cases per center, for three months). (O'Neill Rpt. Ex. B at 3) The City decided to use two different databases after discovering drawbacks in the NYCWAY database. Thus, the City defendants generated two lists of cases to be retrieved and audited for the Reynolds Audit. The primary list was drawn from the NYCWAY database for May 1999 and from the EVR database for June and July 1999. The supplemental list was drawn from the EVR database in May 1999 and from the NYCWAY database in June and July 1999. Using the two databases, the City defendants' selection protocol required that "if more than 10% of a center's primary sample for a month can not be audited (due either to missing files, missing information in the files provided, or a case being inappropriate for audit), all cases from the supplemental sample for that month are requested from the center." (O'Neill Rpt. Ex. B at 4)
In practice, the City defendants experienced great difficulty retrieving the prescribed number of case files from centers and, in fact, were forced to tap the supplemental list every month for every center. (Faust 3d Rpt. ¶ 44); (Jeffrey Decl. Tbl. 4) Plaintiffs' tabulations indicated that the City sought to retrieve a total of 3,933 cases from job and income support centers. (Pls.' Exs. 7-12) Of these 3,933 case files, 1,299 (or 33%) were not retrieved for auditing. (Faust 2d Rpt. ¶ 103, Ex. F) Even using two samples, 8 of the 28 centers (29%) were unable to find a minimum of 60 cases over the three-month audit period. (Faust 3d Rpt. Ex. A) Four of those eight centers were job centers. The City defendants' expert acknowledged that "[s]ome of the centers had very poor responses. A few of them had quite low samples.... I know that it is generally true that there were a few centers that fell far short of their sample targets." (Tr/O'Neill/127)
The City defendants also failed to audit a large number of cases where records were retrieved. Of the 2,634 (3,933 minus 1,299) case files retrieved as part of the Reynolds Audit, only 1,893 were audited, leaving 741 cases (or 28%) found but not audited. The City defendants argued that of these 741 cases, "some 600" (City Defs.' Post-Hearing Mem. at B-10) were properly excluded for various reasons,[26] but they *376 specifically identified only 338 such cases. (Pls.' Ex. 13) The City defendants do not and presumably cannot account for the balance of 403 cases that were excluded.
It also appears that the City defendants failed to audit a significant number of cases based on "insufficient documentation," (Pls.' Ex. 13) where the files did, in fact, contain enough information to be audited. (Pls.' Exs. 21-36; Jeffrey Decl. ¶ 39) The only document whose absence would disable auditors from reviewing a case is the application, i.e., the Applicant Job Profile ("AJP"). (Dep/Mortley/57-58; Dep/Plummer/66; Dep/Ricks/60) Plaintiffs reviewed 169 of the cases not audited due to missing information and found that 12% of those case files contained an AJP for the relevant audit month. (Jeffrey Decl. ¶ 39)
The City defendants' expert failed to examine why so many cases were not retrieved from the centers, or whether their absence could have biased the audit results. Plaintiffs' expert, on the other hand, studied the significance of these missing cases and found a positive correlation between the percentage of unaudited cases and poor-performing centers. (Faust 3d Rpt. ¶¶ 47-56; Tr/Faust/437-38) Plaintiffs' expert also determined that late arriving cases were more likely to have a higher proportion of rejected cases, which in turn exhibited higher percentages of inappropriate denials of immediate needs grants and expedited food stamps. (Faust 3d Rpt. ¶¶ 69-73) The Court finds these analyses to be credible. It is fair to infer that unaudited cases would have been relatively poor performers, and that their absence from the Reynolds Audit is a significant source of potential error.
Unable to offer analyses of their own, the City defendants contend that the nonretrieval rate for the Reynolds Audit is comparable to non-response rates obtained in other surveys, such as the Current Population Survey ("CPS") conducted monthly by the Bureau of Labor Statistics and the Bureau of the Census. The Court rejects this analogy. According to Dr. O'Neill, the CPS has a survey non-respondent rate of 6.5% and, with respect to missing answers on questionnaires, a non-response rate near 10%. (O'Neill Decl. ¶ 13) Here, while the non-retrieval rate for the Reynolds Audit is difficult to ascertain with precision (largely because the City defendants prepared vague and incomplete tabulations), it is well above 10% by any conservative estimate.
The Court also rejects the City defendants' assertion that correlations found by plaintiffs' expert can be neutralized through statistical weighting. (City Defs.' Post-Hearing Mem. at B-13) As plaintiffs' expert explained, weighting is viable only where the characteristics of the missing cases are known. (Tr/Faust/400) ("[Y]ou see, that's the trouble. You don't know what the ... performance is in the missing cases. There's nothing in the sample you can weight for them.") The City defendants would presume that unaudited cases perform as well as audited cases, when in fact the only evidence on this issue indicates that their performance is worse.
6. The Audit Instrument and Procedures Were Flawed
Plaintiffs' expert characterized the Reynolds Audit instrument as "one of the most poorly designed instruments I have ever seen out of a professional organization which has research and auditing personnel on staff." (Faust 2d Rpt. ¶ 131) The Court finds most of plaintiffs' criticisms of the instrument to be material and well-founded. In particular, the Court agrees that the audit instrument omitted relevant questions, (Pls.' Rev. Proposed Findings of Fact and Conclusions of Law, ¶¶ 97, 98, 99, 101, 102); was confusing and incomplete in certain respects, (id. at ¶ 104, 106, 107, 108, 110); and should have been accompanied by written instructions for auditors, (id. at ¶ 113; Faust 2d Rpt. ¶ 156). The City defendants' own auditors experienced some difficulty understanding and using the instrument in a consistent *377 manner. (Dep/Plummer/33 ("We found a lot of grey areas with the instrument that we used in August."); Dep/Plummer/39-40; Dep/Mortley/78-79; Dep/Ricks/74-75; Dep/Abdullah/82-83)
7. Conclusion: The Results Of The Reynolds Audit Are Entitled To Only Minimal Weight
The foregoing deficiencies with the Reynolds Audit do not constitute the entirety of plaintiffs' objections. However, they are sufficient, when considered together, to vitiate the probative value of the audit results. The City defendants make several resourceful arguments touting the reliability of the audit results, asserting that job centers perform better than income support centers, and claiming that job center performance has improved over time. While those arguments have some surface appeal, they do not withstand close scrutiny.
For example, the City defendants asserted that even if some number of rejected cases are excluded from the NYCWAY and EVR databases, there is no reason to believe that their absence would bias the audit results in favor of job centers. According to the City, the Reynolds Audit established that job centers generally outperform income support centers (O'Neill 2d Supp. Decl., Tbls. 12 and 16), and adding more rejected cases to the sample would not close that disparity. (City Post Hearing Mem. at B-5, n. 2)
The problem with this argument (and similar ones advanced by the City defendants) is its reliance on a faulty premise: that the audit results are fundamentally reliable, and therefore provide a steady framework upon which such inferences may be drawn. That is not the case. Plaintiffs did far more than establish that the audit results are merely imprecise. The consequences of, inter alia, excluding withdrawn cases from the sampling frame do not manifest themselves by distorting an isolated figure by a percentage point or two. They are problems which render the Reynolds Audit statistically unrepresentative of the universe of applications and frustrate any responsible effort to project from the sample to the universe. In short, given the array of unanswered questions left in the wake of the Reynolds Audit, it is difficult to trust any of the extrapolations made by the City defendants comparing the performance of job and income support centers, or assessing the performance of job centers over time. It is safe to conclude only that the centers' true performance figures are probably much different than those presented by the City defendants.
Having failed to independently investigate the sources of error identified by plaintiffs, the City defendants resort to arguing that the evidence fails to show an actual bias in favor of job centers. Thus, the City defendants highlight the fact that plaintiffs' expert offered no opinion as to whether job center performance has improved over time, how they compare with income support centers, or whether the corrective action plan is being successfully implemented. (City Defs.' Post-Hearing Mem. at 12; Tr/Faust/355-56) The City argues that these uncertainties reveal gaps in plaintiffs' case. In fact, the opposite is true. The City defendants, as the proponents of the audit, bear the burden of assuring that the results lack statistical bias. In this Court's view, they have not done so. Once plaintiffs had thoroughly undermined the structural underpinnings of the Reynolds Audit, they were not required to identify the direction in which it would topple. Nevertheless, at least with respect to the absence of withdrawn cases, plaintiffs convinced this Court that the deck was stacked in favor of job centers.
Accordingly, the Court turns to the other items of proof put forth by the City defendants in support of their motion to vacate the preliminary injunction.
C. Spot-Checkers, PERT Audits and Other Monitoring Devices
Shortly after the preliminary injunction issued in January 1999, FIA implemented *378 a program of sending spot-checkers to job centers and income support centers. Spot-checkers make unannounced, anonymous visits to centers where they describe their (fictitious) needs and ask for an application. The spot-checkers then report back on their experiences to FIA. Where a spot-checker is not permitted to file an application on the day of their visit, or is treated in an unprofessional manner, FIA takes corrective action. (Smith Decl. ¶¶ 10-11; Flaum Decl. ¶¶ 20-40; Walton Decl. ¶¶ 4-18) The summaries of spot-checker reports offered by the City defendants show a downward trend in applicants being turned away from job centers and income support centers since January 1999. (City Defs. Exs. 18, 19)
In the Court's view, the spot-check program is a useful, albeit limited, management tool for FIA. Spot-checkers do not ascertain whether their applications will actually be accepted for processing, and whether they will have the opportunity to meet with a financial planner. Once they receive an application from a center, they leave. (Dep/Walton/48-49) The program's effectiveness has also been tempered by the failure of spot-checkers to adequately vary the scenario they present when requesting an application. (Dep/Walton/21-22) When this was finally done in August and September 1999 by having the spot-checkers claim to be aliens, it caused a modest rise in the rate of inappropriate denials of the right to obtain an application. (City Defs.' Ex. 18)
In addition to the spot-checker program, which FIA intends to continue indefinitely, the City defendants point to the results of "fair hearing" appeals of agency determinations as another monitoring device evidencing superior job center performance. These appeals are conducted by an administrative law judge employed by the New York Office of Temporary and Disability Assistance ("OTDA"). (Dworkin Decl. ¶ 2) Since April 1999, the City defendants have used data generated by OTDA concerning the results of those hearings to tabulate "win rates" for job centers and income support centers. (Dworkin Decl. ¶¶ 14-17; Dep/Dworkin/18)
According to the City defendants, the respective win rates for job and income support centers for application-related issues may be summarized as follows:
CITY DEFENDANTS' WIN-RATE
CALCULATION
Apr-99 May-99 Jun-99 Jul-99
Job Centers 68.8% 77.2% 79.1% 85.9%
IS Centers 84.3% 75.5% 80.3% 84.9%
(City Defs.' Exs. 10, 11) These figures hardly support the City defendants' assertion that job center determinations fare better than income support center determinations on appeal.
Moreover, the figures themselves are somewhat illusory because FIA excludes from its calculation instances where the administrative law judge has remanded a case for insufficient information. (Dworkin Decl. ¶ 28) If remands are factored back into the equation, and the City's win rate is calculated by dividing total wins (affirmances, defaults, appellant withdrawals and dismissals for lack of jurisdiction[27] ) by total appeals (affirmances, defaults, appellant withdrawals, dismissals, agency withdrawals, reversals and remands), the figures recalculate as follows:
RECALCULATED WIN-RATE (with
remands counted as losses)
May-99 Jun-99 Jul-99
Job Centers 50.0% 49.8% 58.0%
IS Centers 49.0% 56.0% 58.1[28]
*379 If the win rate is calculated, as plaintiffs suggest, on the basis of hearings held, and appellant defaults and jurisdictional dismissals are not counted as wins for the City, then the figures plunge further:
RECALCULATED WIN-RATE (on the
basis of hearings held where a decision
on the merits is rendered)
May-99 Jun-99 Jul-99
Job Centers 29.6% 32.9% 36.7%
IS Centers 33.5% 34.1% 33.5%
(Pls.' Mem. at 40, Tbl. 5) The Court recognizes that the recalculated figures are imprecise. FIA does not investigate remands or appellant withdrawals, so the data only permits rough generalizations about such dispositions. However, the reworked percentages provide a better indicator of the centers' appellate win rate.
The City defendants also contend that other oversight activities and initiatives for self-correction have improved and intensified. When the preliminary injunction issued in January 1999, OQA had just begun sending its newly established PERT teams into job and income support centers to conduct on-site performance reviews. Among other things, the PERT teams observe center operations and audit cases files. (Smith Decl. ¶ 13; Abdullah Decl. ¶ 10) OQA's other on-site review program, QC Doctor, is designed to identify and correct problems at individual centers through retraining and other initiatives. (Smith Decl. ¶ 14; Abdullah Decl. ¶ 9)
Centers are also subject to ongoing federal and state performance reviews for compliance with food stamp program procedures. In that regard, State defendant Wing and the OTDA conducted "Food Stamp Program Access Reviews" at nine job centers between July 1999 and October 1999. (Pls.' Exs. 72-81) Among the more serious problems identified by the State reviewers were untimely or incorrect determinations of expedited food stamps eligibility, failure to make separate eligibility determinations, and failure to provide necessary notices. (Jeffrey Supp. Decl. ¶¶ 58-62) The centers also had trouble retrieving case files; they located and produced only 178 of the 288 files requested for review. (Jeffrey Supp. Decl. ¶¶ 55-56) The City defendants, seeing this glass as half-full, emphasize that the OTDA has approved HRA's center-specific corrective action plans formulated in response to the access reviews. (Smith Supp. Decl. ¶ 23; City Defs.' Ex. 36)
Finally, the City defendants point out that job center operations have been under scrutiny within the context of this litigation, notably through the job center inspections conducted by plaintiffs' counsel and the informal intervention process. The City defendants claim that neither of these mechanisms have produced evidence indicative of systemic violations of federal and state law attributable to job center conversions. Plaintiffs dispute this characterization of the proof and allege, for example, that of the 225 applicants they interviewed during job center inspections, 61 reported probable violations of law. (Landeo Decl. ¶¶ 3-6; City Defs.' Post-Hearing Mem. at 9)
These are nettlesome but ultimately collateral disputes which the Court need not untangle. To the extent that the City defendants are correct that the evidence concerning job center inspections and informal intervention establishes only "that HRA workers make mistakes and that applicants do not always receive the treatment they deserve" (City Defs.' Post-Hearing Mem. at 9), then this proof provides the City little assistance in meeting its burden of demonstrating a significant change in circumstances since this Court entered the preliminary injunction in January 1999.
D. The City Defendants' Motion To Vacate The Preliminary Injunction Is Denied
In Reynolds II, the Court modified the preliminary injunction by permitting HRA *380 to convert three additional job centers based largely on the City defendants' formulation of a comprehensive corrective action plan which entailed, among other things, retraining several thousand personnel at job centers and income support centers. The Court struck a balance and allowed those conversions to proceed, but at the same time underscored the need for reliable, uniform audit procedures and statistically valid monitoring protocols. "In such a complex system, the translation of theory into practice presents unique challenges in terms of training HRA personnel and measuring the effectiveness of the Plan's initiatives." Reynolds II, 43 F.Supp.2d at 497.
At this juncture, the City defendants are unable to proffer reliable statistical evidence of job center and income support center performance because the results of the Reynolds Audit cannot be trusted.[29] While the City defendants continue to utilize a number of other tools designed to monitor and improve the centers' performance (e.g., spot checking and fair hearing results), those devices shed little light on whether the centers are complying with federal requirements. In short, the Court can find no principled basis for vacating or otherwise modifying the preliminary injunction at this time.
II. The State Defendants' Motion To Dismiss The Complaint
In response to plaintiffs' application for preliminary injunctive relief, the State defendants moved to dismiss the complaint as against them for failure to state a claim. At the close of the January 1999 hearing, plaintiffs' counsel conceded that preliminary injunctive relief directed against the State defendants would be premature. See Reynolds I, 35 F.Supp.2d at 340 n. 7. Consequently, no preliminary relief was entered against the State defendants, and the Court deferred reaching the merits of the State's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Thereafter, as a matter of case management, the Court channeled the parties' discovery efforts towards the City defendants' operation and management of the centers.
The State defendants move to dismiss each of plaintiffs' claims against them under Rule 12(b)(6) on the following grounds: (1) the State defendants are protected by Eleventh Amendment immunity; (2) plaintiffs have no cognizable private right of action for violations of the Food Stamp Act, Medicaid Act, and New York State cash assistance programs; (3) plaintiffs failed to exhaust their administrative remedies; and (4) plaintiffs fail to allege facts against the State defendants upon which relief can be granted. For the reasons set forth below, the State defendants' motion is denied.
A. Applicable Standard
In resolving a motion to dismiss, the pleadings and affidavits must be construed in favor of the plaintiff, and all doubts should be resolved in the plaintiff's favor and against the defendants. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998); Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir.1994). A complaint may not be dismissed under Rule 12(b)(6) unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Black Radio Network, Inc. v. NYNEX Corp., 44 F. Supp. 2d 565, 572 (S.D.N.Y.1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957)). The issue is not whether the Plaintiff will ultimately prevail but whether they are entitled to offer evidence in support of their claims. See Black Radio, 44 F.Supp.2d at 572.
*381 B. Eleventh Amendment Immunity
The State defendants contend that plaintiffs' claims against them are barred by the Eleventh Amendment to the United States Constitution. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. An unconsenting State is thus immune from suits in federal court brought by its own citizens, see Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 1355-56, 39 L. Ed. 2d 662 (1974), and such immunity extends to State agencies and officers acting on behalf of the State. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-47, 113 S. Ct. 684, 687-89, 121 L. Ed. 2d 605 (1993).
The Supreme Court, however, has recognized an exception to State immunity: "a suit challenging the constitutionality of a state official's action is not one against the state." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S. Ct. 900, 909, 79 L. Ed. 2d 67 (1984) (citing Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908)); accord Burnette v. Carothers, 192 F.3d 52, 57 n. 3 (2d Cir.1999). In Ex Parte Young, the Court held that Eleventh Amendment immunity does not shield State officials acting in violation of federal law. In those circumstances, the officials' unauthorized actions are stripped of their official character and may be challenged in a federal suit. See Ex Parte Young, 209 U.S. at 160, 28 S. Ct. at 454; accord Pennhurst, 465 U.S. at 102, 104 S. Ct. at 909. The doctrine of Ex Parte Young applies to violations of the United States Constitution as well as federal statutes, see Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir.1997), and permits a plaintiff to seek prospective injunctive relief to prevent continued violations. See Pennhurst, 465 U.S. at 102-03, 104 S. Ct. at 909 (citing Edelman, 415 U.S. at 666-67, 94 S. Ct. at 1357-58) ("[W]hen a plaintiff sues a state official alleging violation of federal law, the federal court may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief."); Ward v. Thomas, 207 F.3d 114, 119 (2d Cir.2000) ("[T]he Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law.") (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426, 88 L. Ed. 2d 371 (1985)).
Plaintiffs' claims against the State defendants fall squarely within the Ex Parte Young exception. See Reynolds I, 35 F.Supp.2d at 340 n. 8 ("the Court observes that official-capacity actions seeking prospective injunctive relief for alleged violations of federal law are not treated as actions against the State."). Plaintiffs have named state officials, not the state itself, as defendants. (Compl. ¶¶ 16-19) Plaintiffs allege that the state officials are violating and continue to violate federal laws, including the Fourteenth Amendment to the Constitution, the Food Stamp Act, 7 U.S.C. § 2020 et seq., and the Medicaid Act, 42 U.S .C. § 1396.[30] (Compl. ¶¶ 255-61, 263-66) Plaintiffs seek prospective injunctive relief, and not retroactive money damages, against the State defendants.[31]See Roberson v. Giuliani, *382 2000 WL 760300, at *9-10 (S.D.N.Y. Jun. 12, 2000) (99 Civ. 10900(DLC)) (denying State officials' motion to dismiss claims for prospective injunctive relief for violations of the Food Stamp Act); Graus v. Kaladjian, 2 F. Supp. 2d 540, 542 (S.D.N.Y.1998) (denying State defendant's motion to dismiss claims for prospective injunctive relief for violations of the Medicaid Act).
Relying on Pennhurst, 465 U.S. at 101, 104 S. Ct. at 908, and Seminole Tribe of Florida v. Florida, 517 U.S. 44, 75 n. 17, 116 S. Ct. 1114, 1133 n. 17, 134 L. Ed. 2d 252 (1996), the State defendants assert that the Ex Parte Young doctrine is inapplicable. This argument is unpersuasive.
The State defendants contend that since defendants Wing and DeBuono do not single-handedly oversee and supervise the State's food stamp and Medicaid programs, respectively, this action is barred under Pennhurst because the "the state is the real, substantial party in interest." (State Defs.' Supp. Mem. at 11) (citing Pennhurst, 465 U.S. at 101, 104 S. Ct. at 908). This argument overlooks that Pennhurst resolved whether the Eleventh Amendment shields a State official for violations of state law, not for violations of federal law. Additionally, the Pennhurst Court reiterated that there is an "important exception to this general rule: a suit challenging the constitutionality of a state official's action is not one against the State." Pennhurst, 465 U.S. at 102, 104 S. Ct. at 909 (citing Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714; Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)). As noted above, this exception has since been expanded to violations of federal law.
The State defendants cite Seminole Tribe for the proposition that the Ex Parte Young doctrine is inapplicable in this action because the Food Stamp and Medicaid statutes only impose duties on the "State agency" and not on state officials. (State Defs.' Supp. Mem. at 11-12) (citing Seminole Tribe, 517 U.S. at 75 n. 17, 116 S. Ct. at 1133 n. 17). However, the Court in Seminole Tribe described the limited situation in which the Ex Parte Young doctrine is inapplicable "where Congress prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based on Ex parte Young." Seminole Tribe, 517 U.S. at 74, 116 S. Ct. at 1132 (emphasis added). In fact, the Court specifically described the limited nature of its holding: "[W]e do not hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme. We find only that Congress did not intend that result in the Indian Gaming Regulatory Act." Seminole Tribe, 517 U.S. at 74 n. 17, 116 S. Ct. at 1133 n. 17 (emphasis added). The "detailed remedial scheme" that exists in the Indian Gaming Regulatory Act, such as delineated procedures limiting the remedies that federal courts can impose in the event of a violation, is absent in the Food Stamp and Medicaid Acts. The State defendants' reliance on Seminole Tribe is therefore unavailing, and their motion to dismiss the complaint on Eleventh Amendment grounds must be denied.
C. Private Rights of Action
The State defendants contend that plaintiffs have no private right of action for violations of the Food Stamp Act, Medicaid Act, and the State cash assistance programs under either 42 U.S.C. § 1983 or under the statutes themselves. This argument also fails.
As discussed in Reynolds I, in order to state a cause of action under Section 1983, "a plaintiff must assert the violation of a *383 federal right, not merely a violation of federal law." Reynolds I, 35 F.Supp.2d at 340 (citing Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359, 137 L. Ed. 2d 569 (1997)); see also Rodriguez v. DeBuono, 162 F.3d 56, 60 (2d Cir.1998). In analyzing whether plaintiffs pled violations of federal rights pursuant to Section 1983, this Court previously found that the complaint stated viable causes of action for violations of specific provisions of the Food Stamp Act, namely, 7 U.S.C. § 2020(e)(2)(B) (requiring consideration of application on same day filed); 7 U.S.C. § 2020(e)(3) (requiring determination of eligibility within 30 days from date of application); 7 U.S.C. § 2020(e)(9) (requiring provision of coupons to eligible households within 7 days of application). See Reynolds I, 35 F.Supp.2d at 340-41 (citing cases); see also Roberson, 2000 WL 760300, at *10-11 (holding violations of 7 U.S.C. §§ 2014(b), 2020(e)(2)(B) and 2020(e)(9) and their implementing regulations enforceable through Section 1983).
This Court also found that plaintiffs stated Section 1983 claims for violation of the Medicaid Act, specifically, 42 U.S.C. § 1396a(a)(8) (requiring reasonably prompt Medicaid assistance), and its implementing regulations. See Reynolds I, 35 F.Supp.2d at 341 (citing cases).[32] Finally, this Court held that plaintiffs stated viable claims for violation of their Fourteenth Amendment procedural due process rights pursuant to Section 1983 in regard to receipt of food stamps, Medicaid, and cash assistance. See Reynolds I, 35 F.Supp.2d at 341 (citing cases); see also Roberson, 2000 WL 760300, at *10 n. 13 (procedural due process claim regarding receipt of food stamps enforceable under Section 1983); Graus, 2 F.Supp.2d at 544-45 (procedural due process claim regarding Medicaid enforceable under Section 1983).
Plaintiffs have therefore stated viable causes of action under Section 1983. This makes it unnecessary to decide whether plaintiffs have also stated claims directly under the Food Stamp and Medicaid Acts pursuant to Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975). See Reynolds I, 35 F.Supp.2d at 340 n. 5 (citing cases); see also Roberson, 2000 WL 760300, at *10 n. 12.
D. Exhaustion of Administrative Remedies
The State defendants argue that this action must be dismissed because "the individual plaintiffs have not pursued or exhausted their State administrative remedies or complained to the State defendants about the alleged improprieties at the City defendants' Job Centers." (State Defs.' Supp. Mem. at 29, 34) This Court disagrees that exhaustion is required.
As discussed in the preceding section, the complaint asserts viable claims against the State defendants under 42 U.S.C. § 1983 for violations of federal law. This Court has already observed that exhaustion of administrative remedies is not required for such claims under Section 1983. See Reynolds I, 35 F.Supp.2d at 341 n. 9 (citing Wilbur v. Harris, 53 F.3d 542, 544 (2d Cir.1995); Jose P. v. Ambach, 669 F.2d 865 (2d Cir.1982)); see also Patsy v. Board of Regents, 457 U.S. 496, 516, 102 S. Ct. 2557, 2568, 73 L. Ed. 2d 172 (1982) ("exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983"); DeSario v. Thomas, 139 F.3d 80, 85-86 (2d Cir.1998), vacated and remanded on other grounds by Slekis v. Thomas, 525 U.S. 1098, 119 S. Ct. 864, 142 L. Ed. 2d 767 (1999) (same); Roberson, 2000 WL 760300, at *11 ("[A]lthough both the Food Stamp Act and Medicaid statute require States to provide for administrative hearings *384 when requested by recipients, the State defendants fail to point out any indication of congressional intent to require exhaustion of such remedies prior to brining a Section 1983 action.") (citations omitted).[33] Accordingly, the State defendants' motion to dismiss for failure to exhaust administrative remedies is denied.
C. Factual Predicate For Claims Against The State Defendants
The State defendants contend that plaintiffs have failed to allege facts against them sufficient to state a claim. Specifically, the State defendants argue that: (1) plaintiffs have not alleged that a State policy, practice or custom deprived them of a federal right; (2) plaintiffs failed to provide notice of alleged deficiencies to the State by availing themselves of the fair hearing process; (3) plaintiffs' allegations against the State defendants are insufficiently pled.
1. State Policy, Practice, or Custom
The State defendants claim that plaintiffs' complaint fails to allege that any violations of plaintiffs' federal rights occurred pursuant to a State policy, custom or practice. The State defendants also contend that plaintiffs' acknowledgment that the City defendants, and not the State defendants, operate the income support centers and job centers undermines their claims against State defendants. (Compl. ¶ 17) Essentially, the State defendants argue that they are not accountable for the City defendants' mistakes.
Plaintiffs argue that the State defendants' have a duty to oversee and supervise the City defendants to ensure compliance with federal requirements. Plaintiffs offer three bases for this duty to supervise. First, plaintiffs contend that the State defendants' duty to oversee and supervise the City defendants arises as a non-separable component of their duty to administer the Food Stamp and Medicaid Acts in conformity with federal law. Thus, to the extent that claims lie against the City defendants for violations of specific provisions of the Food Stamp Act, the Medicaid Act, and the due process clause, see supra, those same claims would also lie against the State defendants for failing to ensure the City defendants' compliance.
Second, plaintiffs claim that under the Food Stamp and Medicaid Acts, the State defendants have an independent duty to oversee and supervise. In that regard, plaintiffs rely on specific provisions of the Food Stamp Act and its implementing regulations, see 7 U.S.C. § 2012(n) (defining "state agency"); 7 U.S.C. § 2020(d) (describing requirements for approval of state plan); 7 C.F.R. § 275.5 (requiring State review of local agency performance); 7 C.F.R. §§ 275.16, 275.18 (describing State corrective action plans), and the Medicaid Act and its implementing regulations, see 42 U.S.C. § 1396a(a)(1) (State plan mandatory on local administering agencies); 42 C.F.R. § 435.903 (requiring State to monitor local administering agencies' performance and take corrective action when necessary), and argue that these provisions create privately enforceable rights.
*385 Finally, plaintiffs argue that the State defendants have a duty to provide the supervision and training necessary to prevent a violation of plaintiffs' constitutional and statutory rights. Plaintiffs contend that the State defendants have a policy, custom, or practice of failing to train and supervise adequately their employees or agents that is actionable under Section 1983.
The Court turns to plaintiffs' first theory of liability against the State defendants, i.e., that implicit in the State defendants' duty to administer the Food Stamp and Medicaid Acts is an obligation to ensure local agency compliance with the requirements of those statutes. Since the Court finds that theory to be viable, it is unnecessary to reach plaintiffs' remaining arguments.
States participating in the Food Stamp and Medicaid programs may choose one of two ways in which to administer benefits: designate a single State agency to implement the programs, or operate the programs on a decentralized basis using local agencies. See 7 U.S.C. § 2012(n) (Food Stamp Act); 42 U.S.C. § 1396a(a)(1) (Medicaid Act). New York has chosen to administer the Food Stamp and Medicaid Acts on a decentralized basis, and HRA is one such local administering agency.
This statutory framework completely undercuts the State defendants' contention that they are not responsible when HRA fails to comply with requirements of the Food Stamp and Medicaid Acts. Congress placed the duty to administer the Food Stamp and Medicaid Acts on participating States, see 7 U.S.C. § 2020 (requirements for Food Stamp State plans); 42 U.S.C. § 1396a (requirements for Medicaid State plans), and that duty is non-delegable. In the context of decentralized administration of welfare programs, such as the case here, the State defendants can only fulfill their statutory obligations if they actively oversee local administering agencies (such as the City defendants) and ensure statutory compliance. Thus, the duty to comply with federal statutory requirements is shared jointly by the State and City defendants.
Other courts have reached the same conclusion. In Robertson v. Jackson, 972 F.2d 529, the Fourth Circuit held that it was proper to enjoin the State agency responsible for administration of the Food Stamp Act to ensure that the local administering agencies fully complied with the requirements of the Act.[34] In rejecting the State's argument that it was not responsible for local agency compliance, the court cited to the Act's regulations and Congressional history in determining that "[a]lthough the state is permitted to delegate administrative responsibility for the issuance of food stamps, `ultimate responsibility' for compliance with federal requirements nevertheless remains at the state level." Robertson, 972 F.2d at 533.
Food stamp regulations require the State to enter into a legal agreement with the USDA in which the State undertakes to administer the food stamp program in accordance with the statute, monitor compliance with federal law, and ensure that action is taken to correct deficiencies. See 7 C.F.R. §§ 272.2, 275.5, 275.16, 275.18, 275.19. Congressional history regarding the definition of "state agency," which was amended to include "the counterpart local agencies," see 7 U.S.C. § 2012(n), also contemplates that responsibility for administering the program remains at the state level:
In essence, state welfare agencies are responsible for the day-to-day administration of the food stamp program (under Federal Rules) and a substantial *386 portion of their administrative costs. In a number of states, these responsibilities are passed down to local welfare agencies because of the structure of the state's welfare system. The state, however, remains ultimately responsible and is the unit with which the [USDA] deals.
Robertson, 972 F.2d at 534 (quoting H.R.Rep. No. 95-464, 95th Cong., 1st Sess. 299 (1977), reprinted in 1977 U.S.C.C.A.N. 1971, 1704, 2235) (emphasis added).
This Court agrees with Robertson's holding that a State that chooses to operate its food stamp program on a decentralized basis "cannot thereby diminish the obligation to which the state, as a state, has committed itself, namely, compliance with federal requirements governing the provision of the food stamp benefits that are funded by the federal government." Robertson, 972 F.2d at 534; see also Woods v. United States, 724 F.2d 1444, 1447 (9th Cir.1984) ("While the state may choose to delegate some administrative responsibilities, the `ultimate responsibility for operation of the [food stamp] plan remain[s] with the state.'") (quoting California v. Block, 663 F.2d 855, 858 (9th Cir. 1981)). The same rationale applies to the State's obligations under the Medicaid Act. See generally Hillburn v. Maher, 795 F.2d 252, 260 (2d Cir.1986) ("[T]he reason for the requirement that a state designate a `single State agency' to administer its Medicaid program, was to avoid a lack of accountability for the appropriate operation of the program.") (quoting 42 U.S.C. § 1396a(a)(5)).
The State defendants have a similar duty to oversee compliance with the State cash assistance programs to ensure against unconstitutional actions by the local agencies. See Moore v. Perales, 692 F. Supp. 137, 143 (E.D.N.Y.1988) ("Under AFDC, it is the state agency that is ultimately responsible; it must account to the federal government."); Beaudoin v. Toia, 45 N.Y.2d 343, 347-48, 408 N.Y.S.2d 417, 419, 380 N.E.2d 246 (1978) ("In the administration of public assistance funds, whether they come from Federal, State or local sources, ... the local commissions act on behalf of and as agents for the State.... Inasmuch as New York State has elected to participate in the Federal aid to families with dependent children program ..., the State is required to comply with the applicable Federal statute and regulations").
Accordingly, this Court determines that implicit in the State's obligations to administer the Food Stamp Act, Medicaid Act, and cash assistance programs is a duty to oversee the City defendants' administration of the programs to ensure compliance with federal law. The City defendants' failure to comply with the specific requirements of the Food Stamp and Medicaid Act, or their deprivation of plaintiffs' due process rights in connection with the food stamps, Medicaid and cash assistance programs, gives rise to corresponding Section 1983 claims against the State defendants.
2. Notice of Alleged Deficiencies Through the Fair Hearing Process
The State defendants contend that one primary way in which the State implements the Food Stamp and Medicaid Acts is by providing applicants and recipients with the right to administrative fair hearings to redress their grievances with local agency actions. The State defendants argue that the majority of plaintiffs have failed to avail themselves of the fair hearing process, and therefore cannot allege that the State defendants failed to supervise.
The Court rejects this argument. As discussed above, plaintiffs are not required to exhaust their administrative remedies. Additionally, the State defendants have an independent duty to investigate the City defendants' performance and act in an ongoing oversight capacity to ensure their compliance with federal mandates separate and apart from the fair hearing process. See supra Section E.1.
*387 3. Sufficiency of Pleadings
Finally, the State defendants contend that the allegations against them are conclusory. The complaint alleges that the State defendants' "failure to properly oversee and supervise the City defendants' administration of the food stamps and Medicaid programs violates plaintiffs' and plaintiff class members' rights...." (Compl. ¶ 265; see also Compl. ¶¶ 5, 266, Request for Relief b. (viii), e.) As factual support for these allegations, plaintiffs enumerate the ways in which the City defendants fail to meet the statutory mandates of the Food Stamp and Medicaid Acts, and fail to provide due process in connection with the food stamps, Medicaid and cash assistance programs. See Compl. ¶¶ 68-105. As discussed above, see supra Section E.1., the State defendants are obligated to ensure that the City defendants implement these programs in accord with federal constitutional and statutory requirements.
The Supreme Court has held that there is no heightened pleading standard for civil rights actions alleging municipal liability under Section 1983. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993). The Leatherman Court rejected the argument that "a plaintiff must do more than plead a single instance of misconduct" and held that a complaint need only include "a short plain statement of the claim showing that the pleader is entitled to relief." Leatherman, 507 U.S. at 167-68, 113 S. Ct. at 1162-63 (citing Fed.R.Civ.P. 8(a)(2)). Here, the complaint easily satisfies this standard.[35]
Accordingly, the State defendants' motion to dismiss for failure to allege sufficient facts against them is denied.
III. Plaintiffs' Motion For Class Certification
Plaintiffs move to certify a class consisting of "[a]ll New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, and/or cash assistance at a Job Center." (Compl. ¶ 61) Defendants oppose plaintiffs' motion for class certification on the following grounds: (1) the proposed class is amorphous and not readily capable of being ascertained; (2) it is unnecessary; and (3) it would make plaintiffs' request for certain relief unmanageable. For the reasons set forth below, plaintiffs' motion for class certification is granted.
A. Standard for Class Certification
Federal Rule of Civil Procedure 23 establishes two prerequisites for class actions. First, the party seeking class certification must prove that the proposed class meets the four requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999); Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir.1997). Second, the party seeking class certification must show that the proposed class action falls within one of the types of class actions maintainable under Rule 23(b): (1) prosecution of separate actions by individual parties *388 would create a risk of either inconsistent adjudications or would be dispositive of the interest of those members not parties to the adjudication; (2) defendants have acted or refused to act on grounds generally applicable to the class; or (3) questions of law or fact common to members of the class predominate, and a class action is superior to other available methods for adjudication. See Fed.R.Civ.P. 23(b); Caridad, 191 F.3d at 292; Marisol A., 126 F.3d at 376.
When considering a motion for class certification, courts should consider the allegations in the complaint as true. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978) ("it is proper to accept the complaint allegations as true in a class certification motion"). A court may not examine the merits of the case in a motion for class certification. See Caridad, 191 F.3d at 291 (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 2152 (1974)). However, a court may consider material outside the pleadings in determining the appropriateness of class certification. See Kaczmarek v. International Business Machines Corp., 186 F.R.D. 307, 311 (S.D.N.Y.1999) (citing Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir.1982)).
B. Requirements of Federal Rule of Civil Procedure 23(a)
1. Numerosity
Turning to the first requirement under Rule 23(a), plaintiffs must show that the proposed class is so numerous that joinder of all members is impracticable. Impracticable does not mean impossible, but simply difficult or inconvenient. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993).
Plaintiffs contend that "[u]pon information and belief, thousands of families and individuals apply for food stamps, Medicaid, and cash assistance from City defendants each month. Because City defendants deter, discourage, and prevent many of those who seek to file applications at Job Centers from filing those applications, the identify of many plaintiff class members is unknown to plaintiffs and, therefore, joinder is impracticable." (Compl. ¶ 62) See also Smith Decl. ¶ 3 (centers processed approximately 168,000 public assistance applications in 1999). These figures satisfy the numerosity requirement. See, e.g., Marisol A., 126 F.3d at 376 (class of thousands "obviously numerous"); Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995) (numerosity presumed at forty); Morel v. Giuliani, 927 F. Supp. 622, 633 (S.D.N.Y.1995) (24,000 class members satisfies the numerosity requirement); Cutler v. Perales, 128 F.R.D. 39, 44 (S.D.N.Y. 1989) (certifying class estimated "to be in the thousands").
Other reasons make joinder impracticable. Plaintiffs allege that the identity of may plaintiff class members is unknown to them, thus making joinder extremely difficult, if not impossible. (Compl. ¶ 62) Class members' lack of financial resources also makes joinder difficult. See Robidoux, 987 F.2d at 936 (financial resources of plaintiffs a factor in impracticability of joinder). Additionally, the fluid nature of the class further supports this Court's finding that joinder is impracticable. See, e.g., Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y.1985) ("The fact that the population ... is constantly revolving establishes sufficient numerosity to make joinder of the class members impracticable."); Jane B. v. New York City Dep't of Soc. Servs., 117 F.R.D. 64, 70 (S.D.N.Y.1987) ("the fluid composition of the populations ... [makes] joinder ... impracticable"); Arthur v. Starrett City Assocs., 98 F.R.D. 500, 505-06 (E.D.N.Y.1983) ("This fluctuating nature of the pool of prospective plaintiffs further demonstrates the impracticability of joinder.").
City defendants contend that this Court should deny plaintiffs' motion for *389 class certification because the proposed class is amorphous and not readily capable of being ascertained. However, precise enumeration or identification of class members is not required. See Robidoux, 987 F.2d at 935. Courts have rejected this argument and certified similarly defined classes in other welfare benefit cases. See, e.g., Morel, 927 F.Supp. at 633-35 (rejecting argument that class of "[a]ll residents of New York City who have received, receive, or will receive AFDC, Food Stamps or Home Relief benefits who have requested, are requesting or will request a fair hearing in response to an action by the City agency to discontinue, suspend, reduce or restrict benefits and are entitled to aid continuing" is "not precisely drawn" and certifying the class); Brown v. Giuliani, 158 F.R.D. 251, 269 (E.D.N.Y.1994) (rejecting argument that certification of class of "all residents of New York City who are recipients of AFDC and who have or will request change of circumstance grants under the AFDC and EAF programs and whose requests are not disposed of promptly" should be denied because "the bounds of the class are not precisely drawn," stating that "[a] class is clearly delineated if confined to eligible recipients of a government aid program," and certifying the class).
2. Commonality and Typicality
The next two requirements of Rule 23(a) are commonality and typicality. "The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)." Marisol A., 126 F.3d at 376. The crux of both requirements is to ensure that "maintenance of a class action is economical and [that] the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Marisol A., 126 F.3d at 376 (quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S. Ct. 2364, 2371 n. 13, 72 L. Ed. 2d 740 (1982)). The commonality requirement is met if the plaintiffs' complaints share a common question of law or fact, see Marisol A., 126 F.3d at 376; In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir.1987), while the "typicality requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability ... irrespective of minor variations in the fact patterns underlying the individual claims." Robidoux, 987 F.2d at 936-37.
Here, plaintiffs have met the commonality and typicality requirements. Common questions of law and fact in this action include: (1) whether defendants unlawfully deter individuals from applying for food stamps, Medicaid, and cash assistance, and (2) whether defendants process applications for food stamps, Medicaid, and cash assistance in accord with applicable federal and state laws. The commonality and typicality requirements are met in this action because the named plaintiffs' claims arise from the same course of conduct that gives rise to the claims of all the class members and are based on the same legal theories. See Drexel Burnham Lambert, 960 F.2d at 291; Escalera v. New York City Housing Authority, 425 F.2d 853, 867 (2d Cir.1970); Morel, 927 F.Supp. at 633.
Defendants claim that because each class member faces his or her own set of individual factual circumstances, the commonality and typicality requirements are not met. However, variations in the fact patterns of individual plaintiffs do not vitiate the commonality and typicality claims. See Robidoux, 987 F.2d at 937; Jane B., 117 F.R.D. at 70. This argument has been raised and rejected in other cases involving welfare benefits. See Marisol A., 126 F.3d at 377 (commonality and typicality requirements met where "plaintiffs allege that their injuries derive from a unitary course of conduct by a single system"); Morel, 927 F.Supp. at 633-34 (rejecting argument that definition of class *390 would "require the Court to examine the individual circumstances of each claimant" and noting that "every proposed class requires a determination as to an individual's membership, and that []determination does not defeat the identification of the class itself"); Brown, 158 F.R.D. at 268 (rejecting argument that "there are no questions of fact common to the class as a whole and that plaintiffs' claims are atypical ... [because of] the individual injuries suffered by each named plaintiff" and stating that "the overarching questions of fact are common to all class members, namely, whether defendants have failed to make timely determinations of [welfare] applications" and "the individual facts unique to each named plaintiff are merely methods of proving the ultimate fact"). Like the Marisol A. court, this Court believes "the myriad [of] constitutional, regulatory and statutory provisions invoked by the plaintiffs are properly understood as creating a single scheme for the delivery of ... welfare and as setting standards of conduct for those charged with providing such services standards that the defendants are alleged to have violated in a manner common to the plaintiff class...." Marisol A., 126 F.3d at 376. This is sufficient to meet the commonality and typicality requirements.
3. Adequacy
The adequacy of representation requirement entails two factors: (1) class counsel must be qualified, experienced and generally able to conduct the litigation, and (2) the interests of the named plaintiffs cannot be antagonistic to those of the remainder of the class. See Marisol A., 126 F.3d at 378; In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 290 (2d Cir.1992). Both factors are met in this case.
This Court is convinced that plaintiffs' counsel can adequately represent the class since they are experienced in class action litigation (Compl. ¶ 66), and have demonstrated throughout these proceedings that they will vigorously prosecute plaintiffs' claims.
The Court also believes that the named plaintiffs are able to fairly represent the class. "[O]nly a conflict that goes to the very subject matter of the litigation will defeat a party's claim of representative status." Kuck v. Berkey Photo, Inc., 81 F.R.D. 736, 740 (S.D.N.Y.1979) (quoting 7 Wright & Miller, Federal Practice & Procedure § 1768, at 639 (1972)); see also In re Joint Eastern and Southern Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir. 1996) (rejecting plaintiffs' inadequacy of representation claim where there was no indication that their claims were antagonistic to the claims of any other class members). The interests of the named plaintiffs appear to be identical to those of the proposed class because all are subject to the same allegedly unconstitutional actions by defendants. Both the named plaintiffs and the class members seek declaratory and injunctive relief to assure that defendants' actions comply with their constitutional and statutory rights. Thus, if the named plaintiffs prevail, all class members will benefit. Accordingly, plaintiffs have met each of the requirements of Rule 23(a).
C. Federal Rule of Civil Procedure 23(b) Requirements
Plaintiffs allege that their proposed class action is maintainable under Rule 23(b)(2) that defendants have acted on grounds generally applicable to the class, making appropriate injunctive or declaratory relief with respect to the class as a whole. See Fed.R.Civ.P. 23(b)(2). This Court agrees. The City defendants have improperly deterred individuals from applying for food stamps, Medicaid, and cash assistance, and failed to process applications within the statutorily mandated time periods. See Reynolds I, 35 F.Supp.2d at 341-47. The State defendants have failed to oversee the City defendants' compliance with welfare laws. See supra. Such actions by defendants make plaintiffs' request *391 for injunctive and declaratory relief with respect to the class as a whole appropriate. See Marisol A., 126 F.3d at 378; Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir.1994) (Rule 23(b)(2) satisfied where "the plaintiffs seek injunctive relief and they predicate the lawsuit on the defendants' acts and omissions with respect to" the class); Advisory Committee Note to Subdivision (b)(2) ("Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.") Accordingly, this Court finds that plaintiffs have met the requirements of Rule 23 for class certification.
D. Necessity
The City defendants argue that class certification is not necessary because the proposed class would, as a practical matter, benefit from any relief ordered in this action. They further contend that this Court can fashion any relief granted in a manner that will have class-wide effect, thus making certification unnecessary and inappropriate.
The Second Circuit has held that a district court need not certify a class where class certification is largely a formality. See Berger v. Heckler, 771 F.2d 1556, 1566 (2d Cir.1985); Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir.1973); Vulcan Society v. Civil Service Comm'n, 490 F.2d 387, 399 (2d Cir.1973). In affirming the district court's refusal to certify a class, the Galvan Court reasoned:
[I]nsofar as the relief sought is prohibitory, an action seeking declaratory and injunctive relief against state officials on the ground of unconstitutionality of a statute or administrative practice is the archetype of one where class action designation is largely a formality, at least for the plaintiffs.... [W]hat is important in such a case for the plaintiffs, or more accurately, for their counsel, is that the judgment run to the benefit not only of the named plaintiffs but of all others similarly situated.
Galvan, 490 F.2d at 1261 (first emphasis added) (second emphasis in original). City defendants claim that in this action, class certification would likewise be a formality.
District courts have held that the Galvan rule only applies when the relief sought by plaintiffs is prohibitory. See Cutler, 128 F.R.D. at 46; Jane B., 117 F.R.D. at 72; Milburn v. Coughlin, No. 79 Civ. 5077 (S.D.N.Y. Nov. 26, 1980); Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y. 1980); Monaco v. Stone, 187 F.R.D. 50, 63 (E.D.N.Y.1999); Ashe v. Board of Elections, 124 F.R.D. 45,50 (E.D.N.Y.1989). In Cutler, the court found the Galvan rule inapplicable where plaintiffs "seek relief that would require defendants to take affirmative steps to remedy existing unconstitutional conditions ... and to implement standards that comport with the mandates of federal and state laws and regulations." Cutler, 128 F.R.D. at 46 (quoting Jane B., 117 F.R.D. at 72); accord Monaco, 187 F.R.D. at 63; Ashe, 124 F.R.D. at 51. Much like the plaintiffs in those cases, plaintiffs here seek affirmative injunctive relief to compel the City defendants to process applications for cash assistance, Medicaid, and food stamps in a manner consistent with plaintiffs' rights under the federal and state statutory and regulatory scheme and compel State defendants to oversee the City defendants' administration of those welfare systems. See Compl. Request for Relief (d), (e), and (f). Because the relief requested by plaintiffs is not purely prohibitory, the Galvan rule is not a barrier to this Court's granting of class certification.
Even if, arguendo, the Galvan rule were applicable to this action, class certification is not a mere formality because it will insure against the danger of this action becoming moot. This case involves a fluid class where the claims of the named plaintiffs may become moot prior to completion of this litigation. The danger of mootness is magnified by the fact that *392 defendants have the ability to moot the claims of the named plaintiffs, thereby evading judicial review of their conduct. Thus, this Court, like other courts under these circumstances, believes that class certification is necessary. See Greklek v. Toia, 565 F.2d 1259, 1261 (2d Cir.1977) (affirming district court's grant of class certification in action requesting declaratory and injunctive relief "since only class certification could avert the substantial possibility of the litigation becoming moot prior to the decision"); Alston v. Coughlin, 109 F.R.D. 609, 612 (S.D.N.Y.1986) ("[t]he plaintiff's interest in averting the possibility of the action becoming moot, with the concomitant interest in judicial economy, makes class certification in this case more than an empty formality"); Jane B., 117 F.R.D. at 72 ("[a]n additional reason for granting the motion for certification lies in avoiding problems of mootness"); Ashe, 124 F.R.D. at 51 ("[a] further ground for finding class certification to be more than a `formality' here is to avoid the danger of the individual plaintiffs' claims becoming moot before a final adjudication"); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y. 1985) (class certification is necessary when "absent certification, there is a substantial danger of mootness"). Accordingly, plaintiffs' motion for class certification is granted.
E. Appropriateness as to Requested Relief
Finally, the City defendants argue that class certification should be denied because plaintiffs are seeking "retroactive damages" in addition to declaratory and injunctive relief, thus making certification "unmanageable." (City Defs.' Mem. at 8) This Court disagrees with the City defendants' characterization of the relief requested by plaintiffs. The complaint seeks, inter alia, an order requiring the City defendants to identify and reprocess the applications of those class members whose applications were wrongly denied. (Compl., Request for Relief f(i)). This request is for injunctive relief, not for retroactive money damages. Even assuming the Court granted this relief, the City defendants' concern that countless minitrials would be necessary to implement it is pure speculation.
For the reasons set forth above, plaintiffs' motion to certify as a class all New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, and/or cash assistance at a Job Center is granted.
Conclusion
For the reasons set forth above, the City defendants' motion to vacate the preliminary injunction is denied; the State defendants' motion to dismiss the complaint is denied; and the plaintiffs' motion for class certification is granted.
The Court will conduct a status conference with all counsel on August 4, 2000 at 3:45 p.m. in Courtroom 618.
NOTES
[1] While the federal government reimburses the states for the full value of the food stamp benefits distributed, it pays only part of a state's administrative expenses associated with that distribution. See 7 U.S.C. § 2025(a).
[2] The Court also continued a previously ordered informal intervention process under which individual cases could receive expedited review. See Reynolds I, 35 F.Supp.2d at 348.
[3] The first report submitted by plaintiffs' expert addressed the City defendants' audit for the hearing that had been scheduled for July 26, 1999.
[4] The City defendants' notice of motion, dated December 10, 1999, states in relevant part: "[T]he Corrective Action Plan approved by this Court on May 24, 1999, has been effective in improving and continuing to improve the circumstances that gave rise to the action, so that there is no longer any justification for continued judicial restrictions on defendants' conduct. Accordingly, City Defendants respectfully request that the preliminary injunction be vacated."
[5] The State defendants' similarly argue that plaintiffs' complaint does not plead a valid Section 1983 claim because it does not adequately allege a State policy or custom. See infra, Part III.
[6] In this Court's view, the surface appeal of the City defendants' argument that proof of a policy or custom is required in a case involving institutional reform lies not with their expansive reading of Monell, but rather with the well-established limitations on a federal court's authority to decree structural relief. See, e.g., Dayton Board of Educ. v. Brinkman, 433 U.S. 406, 420, 97 S. Ct. 2766, 2774, 2775, 53 L. Ed. 2d 851 (1977) ("[O]nly if there has been a systemwide impact may there be a systemwide remedy."); Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). Here, the scope of preliminary injunctive relief entered against the City defendants in Reynolds I reflected the nature of plaintiffs' class-based claims and the strength of the evidence supporting those claims.
[7] Citations to "O'Neill Rpt." are references to Dr. O'Neill's second amended report, dated October 18, 1999, submitted by the City defendants.
[8] Technically, the City defendants' sampling protocol was designed to select a "systematic" rather than a "random" sample. Compare O'Neill Rpt. ¶ 14 ("I assisted the City in designing a sample selection protocol that would generate a random but stratified sample of applicants ...."), and Tr/O'Neill/78 ("Do you understand that in fact the sampling protocol you designed for the [Reynolds] audit would more correctly be described as a systematic sampling protocol? A: Yes, exactly right."). In a systematic sampling, only the initial sampling unit is randomly selected; thereafter, every n th unit is drawn within a predetermined interval. (Faust 2d Rpt. ¶¶ 21, 27)
[9] In some contexts, it becomes necessary to distinguish between surveys conducted for the purpose of generating objective data to be offered for its truth, and sampling in order to gauge opinions, attitudes and beliefs held by a population. Surveys of the latter type, which are prevalent in trademark and false advertising cases, see Schering, 189 F.3d at 225, may be subject to additional scrutiny, especially with respect to how the survey questions were framed and presented. However, the four factors listed above establish benchmarks for assessing the reliability of any survey, irrespective of its methodology and objectives.
[10] The other checks boxes are "AP" (application pending), "SI" (single-issue), "AC" (acceptance), "RJ" (rejected) and "SI/CL" (single-issue, closed).
[11] Plaintiffs' expert testified that the NYCWAY database was a poor choice, and that the shortcomings of the EVR system should have been addressed either by reprogramming or by some other means before HRA committed its resources. (Tr/Faust/70) Although the City defendants claimed that its EVR database was the best available option, and that manual control cards are not uniformly maintained at all centers, plaintiffs' expert responded persuasively:
If you want to do a valuable audit, you have to have reliable data somewhere. It has to be in the computer or it has to be in the manual records. Otherwise you can't do a reliable audit.
Tr/Faust/70.
[12] Of the twelve withdrawn cases in the Reynolds Audit sample, seven had a computer-generated EVR appointment form in their case file and three were withdrawn some time after the date of application. (Jeffrey Decl. ¶¶ 28-29) Of the remaining two cases, one file was not located and the other contained insufficient information. (Id. at ¶ 26)
[13] Another shadowy issue is the effect, if any, of the NYCWAY database automatically overwriting old data, thereby obliterating instances of multiple applications. It may be reasonable to infer that applicants who filed more than one application experienced difficulties with their initial applications. (Faust 2d Rpt. ¶ 78) However, the Court cannot draw any conclusions about this potential source of bias because the City defendants did not investigate it.
[14] Tabulations could not be performed for income support centers for lack of comparable data sources.
[15] Because of inconsistencies in the way Daily Activity Logs are utilized at different job centers, plaintiffs were unable to decipher notations made in the logs at six job centers. Consequently, plaintiffs' tabulations do not include those centers.
[16] Responding to arguments advanced by the City, plaintiffs' expert recalculated the OPPA report tabulations of withdrawn cases as percentages of (1) persons seeking cash assistance, and (2) persons seen by a financial planner. (Faust 3d Rpt. ¶¶ 23-27) His results for the three-month audit period, 26.0% and 18.8%, respectively, are not materially different than the figures in the Jeffrey declaration.
[17] For a more detailed discussion of statistical tests and levels of significance, see infra, section I.B.4.
[18] It should be noted that in October 1999, HRA relieved job centers of the obligation to maintain Daily Activity Logs.
[19] See generally NAACP v. City of Mansfield, Ohio, 866 F.2d 162, 167 (6th Cir.1989) ("A chi-square value is a test of association which measures deviations from expected behavior. Certain deviations are expected to occur as a pattern of chance. However, at some point a discrepancy becomes so large that it is no longer expected to occur as a result of chance alone.").
[20] Plaintiffs performed the chi-square test for the preliminary audit sample of 1,720 cases and the final sample of 1,893 cases. The chi-square critical value at the .0001 level of significance, four degrees of freedom, is 18.464. The chi-square value comparing the job center sample to the NYCWAY and EVR databases is 147.89 and 34.27, respectively. For the income support center sample, the corresponding figures are 136.06 and 27.61. (Pls.' Ex. 109; Tr/Faust/287-88)
[21] The City defendants mischaracterize Mr. Faust's testimony concerning the so-called "10% rule of thumb." (City Defs.' Post-Hearing Mem. at B-7). Mr. Faust explained that this rule applies to non-response data, not to statistical disparities. (Tr/Faust/424-26; Faust 3d Rpt. ¶ 8)
[22] The City defendants' expert report failed to mention this disparity. (Tr/O'Neill/94-96)
[23] This latter issue is addressed below in section I.B.5.
[24] Plaintiffs' expert performed a further chi-square test on what he believed to be a more appropriate comparison: sample cases from the EVR database versus the EVR database. This time, the differences in household composition were statistically significant at the .02 level. (Faust 3d Rpt. ¶ 21)
In contrast, the City defendants' expert statistician conceded that she never performed a chi-square test on her household composition comparison (O'Neill Supp. Decl. Tbl. 19) before presenting it to the Court. (Tr/O'Neill/488) Instead, the City defendants' expert described the relevant distributions as "quite close," thereby "leading to the conclusion that the sample is more representative of the universe than one might conclude looking solely at disposition status." (O'Neill Supp. Decl. ¶ 42)
[25] It is noteworthy that the City defendants' expert statistician never informed the Court of the extent to which the sample is unrepresentative of the NYCWAY and EVR databases based on the chi-square test. (Compare Tr/O'Neill/55 ("In general one could not say that they are totally different. They are really fairly close. They don't make it statistically, but nonetheless they are reasonably close.") with Tr/Faust/287) ("It is obviously much, much higher.... Even the figures for EVR are off the chart. But the NYCWAY figures are way off the chart.")
Another detail the City defendants' expert avoided was that HRA recently awarded a $2.7 million grant to the Center for the Study of Business and Government at Baruch College, where she is the director. The purpose of the grant is to assist HRA to better understand the impact of implementing job centers and to examine methods for improving center management and performance. (Tr/O'Neill/479)
[26] For example, the City defendants excluded DASIS cases and cases on remand from fair hearings because they did not present the application issues being audited. (City Defs.' Post-Hearing Mem. at B-10)
[27] This disposition is listed as "other" in the "issues won" section of the fair hearing outcome summaries. (City Defs.' Ex. 10)
[28] Percentages are not provided for April 1999 because the underlying data summaries for that month were not provided in City Defs.' Exs. 10 and 11.
[29] It therefore is unnecessary for the Court to decide now the precise level of compliance required under the Food Stamps and Medicaid Acts. Compare Shands v. Tull, 602 F.2d 1156, 1160 (3d Cir.1979) (endorsing a standard of "substantial compliance"), with Withrow v. Concannon, 942 F.2d 1385, 1388 (9th Cir.1991) (observing that "the regulations require compliance, not `substantial compliance.'").
[30] The State defendants contend, and plaintiffs deny, that plaintiffs have sued them for violations of State law. See State Defs.' Supp. Mem. at 21-23; Pls.' Supp. Mem. at 28 n.16. Although the complaint appears to plead State law claims only against the City defendants, see Compl. ¶ 262, to the extent that plaintiffs' requested relief is premised on the State defendants' violations of State law, see Compl. Relief for Request ¶¶ b. (viii), e. (i), such relief is barred by the Eleventh Amendment. See Pennhurst, 465 U.S. at 104-06, 104 S. Ct. at 910-11.
[31] However, this Court reserves decision on whether, if such an issue arises, the State defendants are immune from a claim for retroactive money damages to the extent the federal government will reimburse the State for a retroactive money judgment. See generally Bennett v. White, 865 F.2d 1395, 1407-08 (3d Cir.1989); Bermudez v. Dep't of Agric., 490 F.2d 718, 721-24 (1973); Harrington v. Blum, 483 F. Supp. 1015, 1021-22 (S.D.N.Y. 1979); Conrad v. Perales, 92 F. Supp. 2d 175, 180-81 (W.D.N.Y.2000).
[32] While the Second Circuit has not determined whether implementing regulations themselves create a federal right of action that may be the predicate for a Section 1983 action, courts may consider implementing regulations in determining whether a statute creates a federal right. See Roberson, 2000 WL 760300, at *10 n. 14 (citing cases).
[33] It may be noted that exhaustion is not required for claims brought directly under the Food Stamp and Medicaid Acts, see, e.g., Commonwealth of Mass. v. Lyng, 893 F.2d 424, 427 (1st Cir.1990) ("the scheme of the food stamp statute does not require exhaustion"); Alacare, Inc.-North v. Baggiano, 785 F.2d 963, 967-69 (11th Cir.), cert. denied 479 U.S. 829, 107 S. Ct. 111, 93 L. Ed. 2d 59 (1986) (holding no exhaustion requirement in Medicaid cases). Additionally, exhaustion of administrative remedies by individual plaintiffs may be excused as futile in cases seeking institutional reform. See generally Jose P., 669 F.2d at 868-69 ("Plaintiffs argued successfully below that ... the individual appeal mechanism is inappropriate to resolve the systematic compliance issues raised in the class actions."); J.G. v. Board of Educ., 648 F. Supp. 1452, 1457-58 (W.D.N.Y.1986) ("To require thousands of class members to go through individual administrative hearings, or to expect the hearing officer in one case to order system-wide change would be both impractical and futile."), aff'd 830 F.2d 444 (2d Cir.1987).
[34] The fact that the decision failed to analyze whether plaintiffs' have a private right of action against the state for enforcement under the Blessing or Cort tests is irrelevant. That Court, like this Court now does, found that the state has an enforceable obligation to oversee local administering agencies' compliance with federal law implied in their duty to administer.
[35] Because this Court finds that the complaint makes sufficient allegations to survive a motion to dismiss, it need not reach plaintiffs' request to amend the pleadings pursuant to Fed.R.Civ.P. 15(b) in accord with the evidence presented at the January 1999 evidentiary hearing. However, it is worth noting that at that hearing, plaintiffs presented evidence that would further support their claims against the State defendants for deficiencies in monitoring and correcting failures to comply with federal constitutional and statutory requirements by the City defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2103718/ | 84 N.Y.2d 309 (1994)
642 N.E.2d 1065
618 N.Y.S.2d 609
Zurich Insurance Company, Respondent,
v.
Shearson Lehman Hutton, Inc., Formerly Known as Shearson Lehman Brothers, Inc., Appellant.
Court of Appeals of the State of New York.
Argued September 21, 1994.
Decided October 25, 1994.
McCormick, Fitzpatrick & Mertz, P. C. (Gregory S. Mertz, Keith J. Kasper and Michael J. Straub, of the Vermont Bar, admitted pro hac vice, of counsel), and Jacobson & Triggs, New York City, for appellant.
Siff Rosen, P. C., New York City (Ignatius John Melito and S. Dwight Stephens of counsel), for respondent.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
*312SIMONS, J.
This is a declaratory judgment action instituted by plaintiff insurer seeking a determination that it had no duty to indemnify *313 its insured for punitive damages awarded against the insured in two separate out-of-State slander actions. The question is whether New York's public policy precluding indemnification for punitive damages should prevail over the public policies of the judgment States, which allow indemnification.
The action originally encompassed five separate underlying personal injury suits. Three have been resolved. In the first of the two remaining actions, Alexander Simon, the business manager for the actor Burt Reynolds, decided to close the Reynolds account with Shearson because of heavy losses. The Shearson broker then forged Simon's name to a letter authorizing payment of the funds from that account to Simon's family and friends. After two senior Shearson executives informed Reynolds of the letter, Reynolds terminated his relationship with Simon. Simon then brought suit in Federal District Court in Georgia for negligence, fraud and slander. He prevailed on the fraud and slander claims, recovering both general and punitive damages, but the District Court set aside the award. On review, the Eleventh Circuit Court of Appeals reinstated the damages awarded on the slander claim when Simon agreed to accept a reduced amount (see, Simon v Shearson Lehman Bros., 895 F.2d 1304).
In the second action, Stuart Tucker was dismissed as a Shearson broker for selling limited partnerships without prior approval. In an attempt to retain Tucker's clients for the brokerage, a Shearson senior vice-president informed them that the Securities and Exchange Commission was going to take away Tucker's broker's license, and that he would never be able to work again as a broker. Tucker successfully sued for slander in Texas District Court, winning both compensatory and punitive damages. The Texas Court of Appeals affirmed.
Under the standard general comprehensive liability policy issued to Shearson, Zurich Insurance agreed to pay "all sums" Shearson might become legally obligated to pay as damages in a personal injury action. The policy specifically included an action for slander and contained no choice of law provision. When damages were awarded against Shearson in the out-of-State slander actions, Shearson sought indemnification from its carrier for both the compensatory and punitive damages awarded. In turn, Zurich brought this declaratory judgment action seeking a declaration that it had no duty to provide *314 coverage for the punitive damage awards, because New York law precludes indemnification for punitive damages.[1]
On Zurich's motion for summary judgment, Supreme Court ruled that under this Court's holding in Home Ins. Co. v American Home Prods. Corp. (75 N.Y.2d 196), New York's policy against indemnification for punitive damages would apply even though the punitive damages were incurred in a foreign State. However, the court concluded that New York's policy would preclude indemnification only for the Georgia award, although the conduct in both underlying personal injury actions would support an award of punitive damages in New York. Because Texas law recognized a compensatory component to a punitive damages award, the court reasoned, the award was not solely for punitive purposes and thus did not offend New York's policy. On cross appeals by both parties, the Appellate Division held that indemnification for the Texas award should be precluded as well, because the jury there had been charged only on the exemplary purposes of punitive damages, and there was no indication that the award included any compensatory elements. Notably, in both cases the Appellate Division relied on Home Ins. for the proposition that New York policy concerning indemnification for punitive damages applied to punitive damages awarded in a foreign State against a New York insured. There is an important contextual distinction between this case and Home Ins., however: in Home Ins., the public policy of the judgment State, like that of New York, precluded indemnification for punitive damages, while here the judgment States permit it. Thus, this case presents a choice of law issue not present in, or decided by, Home Ins.
We conclude that New York choice of law principles require application of New York's public policy. However, that public policy would not, under the circumstances of this case, preclude indemnification for the punitive damages awarded in the underlying action in the State of Georgia, only for those awarded in the action in the State of Texas.
Shearson attempts first to remove this case from the Home Ins. *315 universe entirely by arguing that the tortious conduct in the underlying personal injury actions would not support an award of punitive damages in New York. Under Home Ins. this is a necessary threshold determination for if the damages awarded would not be "punitive" under New York law, indemnification would not be precluded by New York public policy. In that case there would be no conflict between New York and the judgment States concerning indemnification and the choice of law problem central to this appeal would not arise.
Addressing the Georgia judgment, Shearson points out that in that action it was necessary to resort to extrinsic evidence to establish that the statements at issue constituted slander per se. Under New York law, if slander per se is established by extrinsic evidence, the plaintiff must plead and prove special damages as an element of the claim, or recovery is barred (see, Aronson v Wiersma, 65 N.Y.2d 592). Because Simon, the Georgia plaintiff, did not plead and prove special damages (California law did not require it),[2] Shearson argues that his recovery would be barred in New York and thus the conduct at issue would not support an award of punitive damages in this State. Shearson has failed, however, to distinguish between the conduct and the method of its proof.
In Home Ins., we stated that a New York court "must examine the nature of the claim, including the degree of wrongfulness for which the damages were awarded" (75 NY2d, at 201). We meant by this that the court must ascertain whether the conduct at issue exhibits the degree of culpability necessary to sustain a punitive award in New York, not whether the form of evidence or the method of proof acceptable to the judgment State would be sufficient in New York. Home Ins. in fact precludes the New York court from undertaking collateral review of the factual determinations or the legitimacy of the proceedings of the judgment State as part of its determination whether to apply New York's policy on punitive damages. The Georgia court found the statement at issue was made with "actual malice", which satisfies New York's legal standard for slander, and thus the conduct in the Georgia action would support a New York punitive damage award.
The rule in Home Ins. similarly disposes of Shearson's *316 argument that Tucker, the plaintiff in the Texas action, would not have prevailed in New York because the Shearson executive who uttered the slanderous statements was not sufficiently highly placed to establish the necessary level of corporate complicity. The Texas Court of Appeals affirmed that the standard for corporate liability under Texas law was satisfied, and under Home Ins. New York will not undertake collateral review of a sister State's application of its own law. Because the Texas jury found the statements had been made with "actual malice", the standard of culpability to support a New York punitive award is met here as well.
Shearson next argues that because the concept of punitive damages under Georgia and Texas law differs so fundamentally from that of New York, New York's public policy would not be offended by indemnification. Thus, it contends that indemnification for the Georgia award should be permitted because it is impossible to determine whether the jury awarding punitive damages contemplated an exemplary or a compensatory purpose, or indeed both, and that Shearson should accordingly be afforded the benefits of "the presumption of coverage".
We have consistently adhered to the view that the purpose of punitive damages is solely to punish the offender and to deter similar conduct on the part of others (see, Soto v State Farm Ins. Co., 83 N.Y.2d 718; Hartford Acc. & Indem. Co. v Village of Hempstead, 48 N.Y.2d 218). Punitive damages are not intended to compensate or reimburse the plaintiff (see, Home Ins. Co. v American Home Prods. Corp., 75 N.Y.2d 196, supra). However, under the Georgia statute in effect at the time of the Simon action (Ga Code Annot § 51-12-5 [a]), a jury in a tort action with "aggravating circumstances" could award "additional damages to deter the wrongdoer * * * or as compensation for the wounded feelings of the plaintiff".[3] The trial court indicated at the charge conference that her charge on punitive damages would track this statutory language. Inasmuch as the court charged the jury that the punitive damage award could include both punitive and compensatory elements and there was evidence to support each, the plaintiff must *317 supply coverage.[4]Home Ins. firmly establishes that only when the damage award is of a "punitive nature" is indemnification precluded by New York policy. On the record before us, it appears that the damages awarded in the Simon action also had a compensatory purpose and plaintiff must indemnify its insured for them.
In the Tucker action Texas law authorizing punitive awards permitted the jury to consider both exemplary and compensatory damages. Nevertheless, the court charged the jury that it should consider only exemplary damages and there is no evidence that the award was for other than deterrent purposes. Accordingly, because New York public policy precludes indemnification for the punitive damages awarded in the Tucker action, we must address the choice of law question not disposed of by our decision in Home Ins.
Historically, courts faced with a choice of law question in contract cases applied the law of the State where the contract was made or was to be performed (see, Restatement of Conflict of Laws § 370). However, as the flaws in the mechanical application of these rigid rules became apparent, our Court developed more flexible approaches to choice of law questions. In Auten v Auten (308 N.Y. 155) we inaugurated the use of "center of gravity" or "grouping of contacts" as the appropriate analytical approach to choice of law questions in contract cases.
The purpose of grouping contacts is to establish which State has "the most significant relationship to the transaction and the parties" (see, Restatement [Second] of Conflict of Laws § 188 [1]). The Second Restatement, in addition to the traditionally determinative choice of law factor of the place of contracting, offers four other factors to be considered in establishing this "most significant relationship": the places of negotiation and performance; the location of the subject matter; and the domicile or place of business of the contracting parties (see, id., § 188 [2]). Shearson has its principal place of business in New York, where the insurance contract was negotiated and issued, and where claims under the policy were handled. The parties dispute whether Zurich, a Swiss corporation with *318 its headquarters in Illinois, is a New York resident. In Matter of Zurich Ins. Co. v New York State Tax Commn. (144 AD2d 202), however, the Third Department noted that Zurich has maintained a selling office in New York, which has acted as the main supervisor of plaintiff's United States branch and its accounts examiner; thus, it stated, Zurich "is considered an adopted domestic of this State" (id., at 202). The Appellate Division here took judicial notice of this ruling and concluded Zurich qualifies as a "New York insurer". Thus, the Second Restatement factors to be considered in a grouping of contacts point to the application of New York law.
Beyond these general contract principles, however, the Second Restatement also separately addresses that special subset of contracts that involves insurance, and takes the position that where liability insurance contracts are concerned, the applicable law is "the local law of the state which the parties understood was to be the principal location of the insured risk * * * unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6[5] to the transaction and the parties" (see, Restatement [Second] of Conflict of Laws § 193). Shearson and Zurich take diametrically opposed views on the question of what the parties understood to be the location of the risk. Shearson maintains that it was orally agreed between the parties that the law of the judgment State would determine whether indemnification for punitive damages would be available. Zurich contends that there was no such oral agreement and that, because the risk insured against was the risk of financial loss, New York, as the center of Shearson's financial interests, is the effective location of that risk. We need not, however, attempt to resolve this dispute, or even to try to shape an abstract rule of general applicability concerning the location of the risk in general liability contracts where the insured party conducts business in many States. Under the circumstances of this case, even if we were to determine that the risks insured against were located in the judgment States, New York public policy would still apply.
We have previously noted that even in contract cases, where *319 grouping of contacts is the primary analytical tool, in certain instances "the policies underlying conflicting laws in a contract dispute are readily identifiable and reflect strong governmental interests, and therefore should be considered" (see, Matter of Allstate Ins. Co. [Stolarz], 81 N.Y.2d 219, 226; see also, Zeevi & Sons v Grindlays Bank, 37 N.Y.2d 220, 227 [application of New York law to implementation of an international letter of credit, to maintain New York's preeminent position as world finance center]). Theoretically, in a proper case, a foreign State's sufficiently compelling public policy could preclude an application of New York law otherwise indicated by the grouping of contacts analysis, particularly where New York's policy is weak or uncertain. This, however, is not that case. The strength of New York's unambiguous policy against insurance coverage for punitive damages is such that an identical result obtains even when public policy and governmental interests are taken into account in the grouping of contacts.
Initially, we note that such consideration of governmental interests does not transform the analytical paradigm into one of "interest analysis", our approach to choice of law questions in tort cases. Under interest analysis, controlling effect must be given to the law of the jurisdiction which "has the greatest concern with the specific issue raised in the litigation" (see, Babcock v Jackson, 12 N.Y.2d 473, 481), unless the public policy exception, available only when "`some deep-rooted tradition of the common weal'", dictates a contrary result (see, Cooney v Osgood Mach., 81 N.Y.2d 66, 78 [recently formulated New York policy permitting contribution against an employer did not preclude application of Missouri's workers' compensation statute which bars such contribution]). Although Shearson urges that tort cases provide the proper analytical framework for resolving conflicts over "tort-like issues" of punishment and deterrence, what is involved here is an insurance policy a contract. Moreover, because a question of whether New York's interest precludes indemnification for punitive damages focuses more on the conduct of the insured than on that of the insurer, the New York domicile of that insured becomes an even weightier contact once the governmental interest is taken into consideration.
We recently affirmed the continuing and unabated force of our public policy precluding indemnification for punitive damages in Soto v State Farm Ins. Co. (83 N.Y.2d 718, supra). In Soto, the insurance carrier had in apparent bad faith refused *320 a settlement offer in the underlying personal injury action which was within the policy limits. At the ensuing trial, the injured parties recovered compensatory damages well in excess of the policy coverage, as well as a sizable award of punitive damages. The insured sought to recover from the insurance carrier the amount of the punitive damages. Although we noted that the punitive damages award under the circumstances was "no different in principle" (id., at 723) from the award of excess personal injury damages, because both represented unindemnified liabilities to which the insured was exposed because of the carrier's bad faith, we concluded that to allow recovery would nevertheless be "unsound public policy" (id., at 724). Recognizing that the deterrent value of the rule precluding indemnification for punitive damages was "somewhat attenuated" in the context of the case, we nonetheless adhered to it because "the rule's equally important goal of preserving the condemnatory and retributive character of punitive damage awards remains clear and undiminished" (id., at 724). Here, the deterrent as well as the condemnatory character of the award is implicated.
Admittedly, the policy question is more problematic in cases where the liability for punitive damages is solely vicarious. The issue has been widely debated (see, e.g., Comment, Broker Churning: Who is Punished? Vicariously Assessed Punitive Damages in the Context of Brokerage Houses and Their Agents, 30 Hous L Rev 1775 [1993]; Parlee, Vicarious Liability for Punitive Damages: Suggested Changes in the Law Through Policy Analysis, 68 Marq L Rev 27 [1984]). Indeed, several States whose public policy prohibits liability insurance coverage of punitive damages have recognized an exception in cases of vicarious liability (see, Annotation, Liability Insurance Coverage as Extending to Liability for Punitive or Exemplary Damages, 16 ALR4th 11, § 4).
In Texas, unlike Georgia, there is no statutory authority explicitly authorizing insurance coverage for punitive damages, but the Texas courts have interpreted the general insurance law to permit such coverage, taking the view that coverage is particularly justifiable in cases of vicarious corporate liability (see, American Home Assur. Co. v Safway Steel Prods. Co., 743 SW2d 693, 703). New York, however, has taken the position that the imposition of vicarious punitive damages can significantly advance the deterrence goal by motivating an employer adequately to supervise its employees, particularly those whose actions may reflect what has come to be known as *321 "the corporate culture" and implicate the "institutional conscience" (see, Aldrich v Thomson McKinnon Sec., 589 F Supp 683, 686 [SD NY], judgment vacated on other grounds 756 F.2d 243), and to take preventive and corrective measures (see, Loughry v Lincoln First Bank, 67 N.Y.2d 369, 377). We have not deviated from this policy choice. That Texas has made another, equally legitimate choice, is not sufficient to compel a New York court to disregard our State's unswerving policy against permitting insurance indemnification for punitive damage awards, when New York choice of law principles dictate the application of that policy.
Accordingly, the order of the Appellate Division should be modified, without costs, by declaring that the punitive damage award arising out of the Simon action is covered by the Zurich policy at issue, and, as so modified, affirmed.
Order modified, without costs, etc.
NOTES
[1] Shearson then commenced two separate actions, one in Georgia and one in Texas, seeking declarations of coverage, and moved in Supreme Court for a dismissal or stay of Zurich's declaratory judgment action because of the pendency of the Georgia and Texas actions. Supreme Court denied Shearson's motion and granted Zurich's cross motion for a preliminary injunction restraining Shearson from pursuing the Georgia and Texas actions.
[2] The slanderous statement was made in a telephone conversation between a Shearson attorney in New York and another attorney in California.
[3] Georgia has now amended its statute on punitive damages to specify that such damages "shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant" (see, Ga Code Annot § 51-12-5.1 [c]).
[4] In reinstating the punitive award, the United States Court of Appeals indicated that there was evidence in the record supporting an award for deterrence and also "sufficient to demonstrate that the slander * * * caused an impairment of Simon's reputation, personal humiliation, and mental anguish and suffering" (see, Simon v Shearson Lehman Bros., 895 F.2d 1304, 1319, supra).
[5] Section 6 of Restatement (Second) of Conflict of Laws embodies the general choice of law principles. The Restatement notes in comment c to this section that these principles "will point in different directions in all but the simplest case", and that especially in complex situations like contract cases, all that can be done is to state a general principle "which provides some clue to the correct approach". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2409626/ | 719 S.W.2d 578 (1986)
Anthony Paul GODSEY, Appellant,
v.
The STATE of Texas, Appellee.
No. 843-82.
Court of Criminal Appeals of Texas, En Banc.
October 1, 1986.
*579 David K. Chapman (court appointed), Fort Worth, for appellant.
Bill M. White, Former Dist. Atty., Sam D. Millsap, Jr., Dist. Atty., and Alan E. Battaglia and Julie B. Pollock, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S AND APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW
W.C. DAVIS, Judge.
A jury convicted appellant of attempted capital murder. The court assessed punishment at confinement for ten years. The Fourth Court of Appeals in San Antonio reversed the conviction because of the failure of the trial court to charge on the lesser included offenses of aggravated assault and reckless conduct. Godsey v. State, 640 S.W.2d 336 (Tex.App.San Antonio, 1982). The Court of Appeals also held that the facts and circumstances of the offense were sufficient to permit a rational trier of fact to find that appellant had specific intent to commit capital murder and that he engaged in actions that amounted to more than mere preparation for the offense. We granted the State's petition for discretionary review on the issue of whether the evidence showed that appellant was guilty only of a lesser included offense. Appellant's petition was granted to review the Court of Appeals' holding that the evidence was sufficient to support a conviction for attempted capital murder, that the charge should have instructed the jury on the lesser included offenses of aggravated assault and reckless conduct, and if, in the event reversal was required, the State could retry appellant on the lesser included offenses.
On May 12, 1979, in the early evening, several people witnessed appellant firing a gun into the air around the Nimitz Apartments in San Antonio. Police arrived at the Nimitz Apartments and were directed to apartment F-6, as the one into which appellant had gone. The apartment was on the second level of the building and officers positioned themselves both upstairs and downstairs around the apartment. Several officers yelled that they were police officers and for appellant to come out with his hands over his head. Twenty to thirty minutes later six people came out of the apartment, including appellant's mother and sisters. The police identified themselves and instructed the six to put their hands above their heads. Apparently, they were somewhat surprised to see the police. Several officers testified that some of these six people told them appellant and an infant were still inside and appellant was armed. They were taken to another part of the apartment complex. The door to the apartment was left wide open after the six people had come out.
Between twelve and twenty officers, most of them uniformed, were present at *580 the scene. Officers West and Renken, who were positioned on the second level balcony, about six or eight feet from the door, yelled for appellant to come out, that they were police. West and Renken were situated to the side of the door and could not see inside the apartment. Detective Gaston and Officer Teel were standing directly across from the open front door, about twelve to fifteen feet away on the second level. They could see into the apartment. Other officers were positioned along the stairs leading up to the second level, and on the ground level.
One or two minutes after the six had exited the apartment, appellant stepped outside of the front door onto the balcony. Appellant had his left hand on top of his head and his right hand at his side. A pistol was stuck in the waistband of his pants. Gaston, Renken and West yelled at appellant not to touch the gun and to put both hands on top of his head. Appellant looked at Gaston across from him, looked at West and Renken to his side, and looked at the officers on the ground. Then, with "a sort of half-smile on his face," he slowly and deliberately pulled the gun out of his waistband with his right hand. The police yelled at him to drop the gun. Appellant raised the gun up, moving it in an arc, and in the process of moving it pointed it first toward Renken, and, continuing to move his arm, pointed it toward the officers on the ground level, and finally brought it up and pointed it at Gaston and Teel, who were directly across from him. Appellant leveled the gun at Gaston and Teel. Three officers then fired at appellant, one shot hit him in the jaw and knocked him backwards into the hallway of the apartment. His gun slid across the floor a few feet from his head.
Appellant's mother, cousin, and sister testified that appellant had been talking about committing suicide that afternoon and evening. Right before the shooting, when his mother was leaving the apartment apparently to get something to eat, appellant told her that he was going to commit suicide that night. She asked him to give her his gun, but he refused.
Appellant testified that he had been released from the state hospital eight days prior to the day of the offense, after undergoing treatment for alcoholism. He said that on the day of the offense he was trying to get drunk enough to have the nerve to kill himself. Appellant testified that he told his mother he was tired of living and tired of his problems. She talked to him for a few minutes, then told him she was going to get some food and would be right back. Appellant said that after she had gone, he left the gun in the bedroom and walked into the hallway, intending to go into the kitchen to get another beer. He said he was then shot in the hallway. Appellant did not remember confronting the officers and could not explain why his gun was found a few feet from his head in the hallway.
Appellant contends that the evidence is insufficient to show that he had the specific intent to commit capital murder or that he engaged in an act amounting to more than mere preparation for the offense of capital murder. V.T.C.A.Penal Code, Sec. 15.01(a) defines criminal attempt:
A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
Appellant was charged with attempted capital murder under V.T.C.A.Penal Code, Sec. 19.03(a)(1), specifically, that he did "intentionally and knowingly attempt to cause the death of Garland Gaston, ... having at the time the specific intent to commit the offense of capital murder, and the said complainant was a peace officer acting in the lawful discharge of an official duty, and the said defendant knew the complainant was a peace officer." Appellant contends that the facts do not show that he had this specific intent to intentionally cause the death of Officer Gaston.
The specific intent to kill may be inferred from the use of a deadly weapon, Flanagan v. State, 675 S.W.2d 734 (Tex.Cr. *581 App.1984); Bell v. State, 501 S.W.2d 137 (Tex.Cr.App.1973), unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Flanagan, supra; Hatton v. State, 31 Tex. Cr.R. 586, 21 S.W. 679 (1893). The court in Hatton, 21 S.W. at 679, stated what is still the law, namely: "If a deadly weapon is used in deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the evidence must be established by other facts." See also Flanagan, supra; Hall v. State, 418 S.W.2d 810 (Tex.Cr. App.1967); Kincaid v. State, 150 Tex.Cr.R. 45, 198 S.W.2d 899 (1947). The facts of the instant case show exhibition rather than use of a deadly weapon by appellant. Therefore, we cannot use the permissible inference supplied by use of a deadly weapon in a deadly manner. We must look to the facts and circumstances to establish specific intent to kill. The exhibition of a deadly weapon and the manner of its exhibition is a circumstance to be considered.
The old offense of assault with intent to murder is the predecessor to attempted murder. See V.T.C.A.Penal Code, Tables, and Flanagan v. State, 675 S.W.2d 734 (Tex.Cr.App.1984). Both offenses require(d) specific intent to kill. Flanagan, supra. Naturally, the most obvious cases and the easiest ones in which to prove a specific intent to kill, are those cases in which a firearm was used and was fired or attempted to have been fired at a person. See Wallace v. State, 679 S.W.2d 1 (Tex.Cr. App.1983); Flanagan, supra; Williams v. State, 567 S.W.2d 507 (Tex.Cr.App.1978); Colman v. State, 542 S.W.2d 144 (Tex.Cr. App.1976); Hill v. State, 456 S.W.2d 699 (Tex.Cr.App.1970); Hall v. State, 418 S.W.2d 810 (Tex.Cr.App.1967); Yanez v. State, 403 S.W.2d 412 (Tex.Cr.App.1966); Muro v. State, 387 S.W.2d 674 (Tex.Cr. App.1965); Streets v. State, 148 Tex.Cr.R. 517, 188 S.W.2d 582 (1945); Honey v. State, 132 Tex.Cr.R. 98, 102 S.W.2d 224 (1937); Hatton, supra. However, see also Thompson v. State, 37 Tex.Cr.R. 448, 36 S.W. 265 (1896) where the defendant "presented" a gun to the sheriff and forced the sheriff into a cell so that the defendants could escape. The defendant apparently made clear that he would kill the sheriff if the sheriff did not comply. The court found specific intent to kill simply by the circumstances surrounding the pointing of the gun. While very few cases can be found where pointing a loaded firearm has been involved, we emphasize that a finding of specific intent rests on the facts and circumstances of each individual case.
All cases in which a gun was fired or attempted to have been fired have not been upheld as sufficient to show specific intent. Appellant points to several cases in which a weapon was used and the facts were held insufficient to show specific intent to kill. He contends that if these cases are insufficient, the instant case is likewise insufficient.
In King v. State, 312 S.W.2d 677 (Tex.Cr. App.1958) a sheriff went to the defendant's house to talk to him. The defendant refused to talk with the sheriff and talked as if he "`didn't have the right sense'" or was "`cracking up.'" Three additional deputies arrived on the scene. The defendant came out of his house with a rifle and the deputies told him to drop the gun and talk with them. The defendant ran around his house and the deputies pursued him. As he ran, the defendant turned and shot his rifle. The deputies heard the bullet "`whistle'" by them and appellant continued fleeing. He was then shot by the deputies.
The court held, without any discussion, that these facts were not sufficient to show that the defendant was guilty of the offense of assault with intent to murder with malice.
King, supra, is distinguishable from the instant case. It was a prosecution for assault with intent to murder with malice. While the opinion is not clear on what basis the evidence was insufficient, it seems evident that malice was not proved. Malice requires cool, deliberate action or premeditation. See Parks v. State, 131 Tex.Cr.R. *582 464, 99 S.W.2d 943 (1937). The sheriff stated that the defendant talked as if he were "cracking up." Thus, although not specifically stated, it appears that the evidence was insufficient to that extent. The court did not address or discuss specific intent to kill, which could be present despite the absence of malice. See Parks, supra. King, does not support appellant's contention that specific intent was found to be lacking in King and therefore, by comparison, is not shown by the facts of the instant case. Cf. Parks, supra, in which the defendant actually fired at and wounded the complainant and the court held the evidence insufficient to show malice but indicated that the defendant could be retried for murder without malice.
Neal v. State, 534 S.W.2d 675 (Tex.Cr. App.1975), also cited by appellant, is distinguishable on its facts. The defendant in Neal started to reach for his gun. The police officer then fired a single shot at the defendant, missing him. The defendant threw his gun onto the ground. The defendant never pointed the gun or drew it. The facts are not similar to the instant case.
Appellant also cites Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974) which involved a conviction for assault with intent to murder. A police officer found a loaded gun on the ground under the car near the driver's door after stopping the defendant following a high speed chase. Four bullets in the gun had dents in them as if the gun had been fired. The officer testified that he had no reason to believe he had been shot at by the defendant. The evidence was found to be insufficient to show specific intent to kill. The facts in Davis do not even show that the defendant had a gun in his hand or that he had attempted to fire it at the officer. These facts are not similar to those in the instant case where testimony shows that appellant very deliberately pulled his gun and aimed it at the officers.
In Sloan v. State, 76 S.W. 922 (1903), in a prosecution for assault with intent to murder, the defendant "snapped" a shotgun at the complainant. In holding this insufficient to show intent to kill, the court stated that the barrel of the gun which the defendant attempted to discharge was incapable of being discharged, although the other barrel was loaded and could have been discharged. The court held the evidence insufficient to show intent to kill because the evidence showed that appellant could have easily killed the complainant at any time and he did not do so. The surrounding facts and circumstances, including use of a knife which the complainant easily took away from the defendant, did not demonstrate an intent to kill. There was no intervening cause which prevented the defendant from killing when he had the opportunity to do so and subsequent events to the "snapping" of the gun showed no intent. See Brown v. State, 142 Tex.Cr.R. 405, 154 S.W.2d 464 (1941).
Ginn v. State, 128 Tex.Cr.R. 109, 79 S.W.2d 327 (1935) is similar to Sloan, supra. In finding the evidence insufficient to show specific intent to kill, the court stated that the record reflected that the defendant's gun was ineffective beyond fifty yards and that the defendant fired into the ground when the complainant was two hundred yards away. In order to prove assault, the ability to commit a battery must be proved. The court noted that since appellant fired when the complainant was out of range, he had no ability to commit a battery. Further, the record showed that the defendant fired into the ground and not at the complainant. The facts and circumstances surrounding the use of the weapon thus showed no intent to kill. Ginn is distinguishable from the instant case.
In reviewing the sufficiency of the evidence to prove specific intent we must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found proof of specific intent beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (opinion on rehearing) (Tex.Cr.App.1983); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve *583 conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." 443 U.S. at 318-319, 99 S.Ct. at 2788-2789.
Appellant stood outside his door with a gun in his waistband. He saw the police, between twelve and twenty of them, most of them uniformed. They were pointing their guns at him and telling him to put his hands on top of his head. Appellant looked at them, ignored their order, and instead very slowly and deliberately pulled the loaded gun from his waistband. Then, again ignoring the instructions of the police to drop the gun, appellant exhibited it in a manner that indicated he intended to use it. He swung the gun in an arc until it was pointed directly at Gaston and Teel, who were twelve to fifteen feet directly across from appellant. He stopped the motion of his arm, as if he were aiming. At this point his actions were interrupted by shots from the police.
These actions are sufficient to show that appellant had the specific intent to kill. We are not holding that the pointing of the loaded gun, in and of itself, is sufficient. Rather, the context of the offense, the way in which the pointing came aboutthe facts and circumstances of the offense, prove the intent. Appellant was not merely waving the gun around. He deliberately pulled it out, after seeing the armed officers with their guns pointed at him. He ignored their orders not to draw the gun and then to drop the gun. And, finally, he pointed the gun in such a way that it was almost as if he were "drawing a bead" on Gaston and Teel. In addition, the jury heard the evidence about appellant's suicide wishes. The inference to be gotten from the evidence and one which supports an intent to kill, is that appellant could have decided to shoot the officers so that they would then shoot him. Viewing the evidence in a light most favorable to the verdict we hold that the facts and circumstances of the offense together with appellant's suicide wishes which support an intent to kill the officer, are sufficient to support the jury's finding of specific intent to commit attempted capital murder. The ground of error is overruled.
Appellant contends that the act of pointing a gun is not an act that amounts to more than mere preparation for the offense of attempted murder. He contends that something more is necessary. We do not agree.
As the practice commentary to V.T.C.A.Penal Code, Sec. 15.01 notes, the purpose and usefulness of the attempt statute is that it "permit[s] law enforcement personnel to intervene and prevent the harm intended...." Attempt law allows intervention before the defendant has come dangerously close to committing the intended crime and allows the police "`a reasonable margin of safety after the intent to commit the crime was sufficiently apparent to them.'" W. LaFave & A. Scott, Criminal Law, pp. 426-427 (1972). The only act that appellant did not do was pull the trigger, an act which could have accomplished the commission of murder. We do not believe that the intent of Sec. 15.01 was to draw a line at the "`last proximate act.'" McCravy v. State, 642 S.W.2d 450, 460 (opinion on rehearing) (Tex.Cr.App.1982). To require some proof that a defendant attempted to fire and the gun misfired or the shot missed its target undermines the notion of attempt offenses in which the act is more than mere preparation that "tends but fails to effect the commission of the offense intended." The precise intent of Sec. 15.01 is to punish action for the intended offense while allowing intervention before an act which could constitute the offense itself occurs. Appellant very slowly and deliberately pulled a loaded revolver in direct violation of police instructions and moved it in such a way as to aim at two officers. The only remaining act for the commission of capital murder was for appellant to pull the trigger and hit his target. His actions constituted more than mere preparation. The ground of error is overruled.
The State contends that the Court of Appeals erred in reversing the instant case because of the failure of the trial court to *584 charge on the lesser included offenses of aggravated assault and reckless conduct. V.T.C.A.Penal Code, Sections 22.02 & 22.05. The State contends that under the evidence presented appellant was not entitled to such charges. Specifically, the State points to appellant's testimony that he left the gun in his bedroom and was walking down the hallway inside his apartment, unarmed, when he was shot by police. The State argues that this testimony, if believed, shows that appellant is not guilty of any offense and merited no charge on lesser included offenses. See Wallace v. State, 679 S.W.2d 1 (Tex.Cr. App.1983).
The two step analysis for determining whether a charge on a lesser included offense should be given requires first, that the lesser included offense be included within the proof necessary to establish the offense charged; and second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442 (opinion on rehearing) (Tex.Cr. App.1981). The elements of aggravated assault applicable to the instant case are (1) a person, who (2) intentionally, knowingly, or recklessly (3) commits an assault (4) using a deadly weapon. See Rocha v. State, 648 S.W.2d 298 (opinion on rehearing) (Tex.Cr.App.1982). A person commits an assault by threatening another with imminent bodily injury. V.T.C.A.Penal Code, Sec. 22.01. Aggravated assault and reckless conduct are lesser included offenses of attempted murder and attempted capital murder. See Ethridge v. State, 648 S.W.2d 306 (Tex.Cr.App.1983); Rocha, supra; Gallegos v. State, 548 S.W.2d 50 (Tex.Cr. App.1977); Art. 37.09, V.A.C.C.P. The first step of the test is met in the instant case.
The Court of Appeals, citing Ruiz v. State, 523 S.W.2d 691 (Tex.Cr.App.1975) and Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974), held that appellant's testimony that he had no intent to kill required the trial court to charge on the lesser offense of aggravated assault. We disagree with the result and reasoning of the Court of Appeals.
Appellant testified that he left his gun in his bedroom and walked into the hallway to go to the kitchen. He said he never went outside of the apartment, never pointed his gun at the police, never saw any police officers the day of the offense, and did not intend to murder anyone. Appellant's testimony was that he did not commit any offense. It was in this context that he testified that he did not intend to kill any police officer. This is almost like saying, "I was not there so I could not intend to kill anyone." This testimony is similar to that of the defendant in Wallace, supra, where, by his own testimony, the defendant was guilty of no offense at all. The Court of Appeals gave a meaning to appellant's statement that appellant did not. The statement cannot be plucked out of the record and examined in a vacuum. The instant case is not like Ruiz, supra, or Thompson, supra, in which part of a defendant's testimony could be reasonably believed by a jury in the context of the facts, so as to support a charge on the lesser included offense. See Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984).
In the instant case, appellant's intent is the difference between a conviction for attempted capital murder or aggravated assault or reckless conduct. The evidence must show that appellant is guilty only of the lesser offense. The evidence shows that appellant had fired the gun earlier that day and that he came outside with the loaded gun stuck in his waistband.
He saw between twelve and twenty police officers, ignored their orders to put his hands on his head and slowly and deliberately pulled the loaded gun from his waistband. Again, he ignored officers' orders to put the gun down, officers who were pointing guns at him. He swung the gun in an arc and stopped, leveling and pointing it at the officers.
Appellant's actions progressed step by step toward the firing of the gun which was prevented only by the officers' "beating him to the trigger." Such actions manifest *585 only the intent to kill the officer and do not evidence a mere threat with the gun. Each act progressed toward getting ready and aiming to fire the gun. The deliberateness of appellant's actions belies any attempt to simply threaten. The evidence does not support any inference that appellant is guilty only of aggravated assault or reckless conduct. The ground of error is overruled. The judgment of the Court of Appeals is reversed and the conviction is affirmed.
CLINTON and TEAGUE, JJ., dissent.
WHITE, J., not participating.
MILLER, Judge, concurring.
In dealing with the State's ground of error concerning inclusion of a lesser included offense in the court's charge, the majority opinion adds a nuance to the Court's recent pronouncements in this area espoused in Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984); Bell v. State, 693 S.W.2d 434 (Tex.Cr.App.1985); and Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App. 1985). I write to highlight the importance and correctness of this nuance in the understanding of the doctrine of lesser included offenses in the court's charge.
In dealing with appellant's denial that he ever intended to kill, the majority opinion makes the following statement:
"The statement [by appellant that he did not intend to kill] cannot be plucked out of the record and examined in a vacuum. The instant case is not like [other cases] in which part of a defendant's testimony could be reasonably believed by a jury in the context of the facts, so as to support a charge on the lesser included offense." (emphasis added)
Maj. op at 584. Aguilar, Lugo and Bell, supra, must be understood in the context of the above quote from today's majority opinion.
These cases hold that if there is evidence that the defendant is guilty of only a lesser included offense (the "guilty only" test), then same is raised by the evidence. It is contemplated in these rules that a jury might selectively believe proffered and introduced affirmative evidence and arrive at a verdict of guilt for a lesser included offense. Therefore, where the State has introduced sufficient evidence to support a charge on the primary offense, we look at all the evidence introduced to decide if a lesser included offense is raised. BUT, in looking at all the evidence to see if the "guilty only" test is met we must look at it in the context of the facts.
Here, appellant's denial that he was present at the scene of the offense is, in one sense if taken alone, affirmative, proffered and introduced evidence that he had no intent to kill. Taken alone, however, it cannot fit within the context of the other facts concerning the offense. As such it cannot be proffered and introduced evidence which, when considered with all of the evidence in the case, amounts to some evidence that the defendant is guilty only of a lesser included offense.
In context of the facts of this case, the majority is quite correct in saying that the evidence does not support any inference that appellant is guilty only of aggravated assault or reckless conduct.
With these remarks I join the majority opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984627/ | February 27, 2014
JUDGMENT
The Fourteenth Court of Appeals
WILMA REYNOLDS, Appellant
NO. 14-13-00323-CV V.
WELLS FARGO BANK, N.A., WELLS FARGO BANK NA, ET AL, Appellee
________________________________
Today the Court heard its own motion to dismiss the appeal from the order
signed by the court below on June 6, 2013. Having considered the motion and
found it meritorious, we order the appeal DISMISSED.
We further order that all costs incurred by reason of this appeal be paid by
appellant, Wilma Reynolds.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2609697/ | 526 P.2d 424 (1974)
86 N.M. 627
STATE of New Mexico, Plaintiff-Appellee,
v.
Serafin Joe SANTILLANES, Defendant-Appellant.
No. 1529.
Court of Appeals of New Mexico.
August 21, 1974.
Carl J. Schmidt, Albuquerque, for defendant-appellant.
David L. Norvell, Atty. Gen., W. Royer, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
WOOD, Chief Judge.
Defendant appeals his conviction of aggravated battery. Section 40A-3-5, N.M.S.A. 1953 (2d Repl. Vol. 6). The two issues are: (1) sufficiency of the evidence, and (2) cross-examination concerning a pending civil suit. Commendably, the appellate record of trial proceedings is on tapes.
Sufficiency of the Evidence
Defendant contends his conviction is against the weight of the evidence. We do not consider the weight of the evidence on appeal. The weight of the evidence and the credibility of the witnesses are for the jury to determine. State v. McAfee, 78 N.M. 108, 428 P.2d 647 (1967). Our concern, on appeal, is whether there is substantial evidence to support the verdict. State v. McAfee, supra.
Defendant asserts the evidence is not substantial. We disagree. The evidence is: Dorado and Griego were playing pool with defendant and a fourth person. An argument began between Dorado and the fourth person. The fourth person hit Dorado with a cue stick. In the resulting altercation defendant pulled a gun, shot at Griego and missed, shot at Dorado and hit him in the leg.
*425 The foregoing is substantial evidence to support the conviction. There is conflicting evidence, but our review considers the evidence in the light most favorable to support the verdict. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App. 1973).
Cross-Examination Concerning a Pending Civil Suit
The bias or prejudice of a witness is material because it affects the credibility of the witness. State v. Newman, 29 N.M. 106, 219 P. 794 (1923). "Bias of a witness is always relevant. Therefore pendency of a civil action by a prosecuting witness seeking damages for an assault being tried in a criminal action is a proper subject of inquiry." Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261, 21 A.L.R. 2d 1074 (1950); § 20-4-611(b), N.M.S.A. 1953 (Repl.Vol. 4, Supp. 1973).
Defendant contends he attempted to cross-examine Dorado as to a pending civil suit based on the same facts as the criminal prosecution. He asserts the trial court erroneously refused to permit such cross-examination. We disagree.
Defendant began cross-examining Dorado about his nationality (Mexican) and his immigration papers. The State's objection to this line of questioning was sustained. Out of the presence of the jury, defendant asserted that he could properly question Dorado in an attempt to impeach him, that he had two lines of questions that went to Dorado's credibility. One asserted line of questions went to Dorado's immigration status. The second line went to "a civil lawsuit pending in this matter."
The trial court refused to permit either line of questioning. In ruling on the proposed questioning concerning a civil suit, the trial court remarked that while defendant was entitled to test Dorado's credibility, defendant could not "produce evidence" about a civil suit, and that the materiality of a civil suit had not been demonstrated. Nowhere in the colloquy between the court and defendant, was the court given any information about the civil suit. No tender of evidence was made. The trial court was never informed that Dorado had anything to do with a civil suit.
In the cross-examination of Griego, the trial court permitted defendant to establish that Griego and Dorado were plaintiffs in a civil damage suit against defendant. The difference in the cross-examination of the two witnesses is explained by the remark made by the trial court in allowing Griego to be questioned: "Now if you have any questions to ask of this witness including the fact that he filed a civil suit to test his bias or credibility, I will allow you to ask those on cross-examination. But I will not let you prove a civil suit."
Because the substance of the evidence was not made known to the trial court and was not apparent from the context of the colloquy between court and counsel, the trial court did not err in prohibiting the questioning of Dorado concerning an unidentified civil suit. Section 20-4-103(a)(1), N.M.S.A. 1953 (Repl. Vol. 4, Supp. 1973); State v. Slayton, 52 N.M. 239, 196 P.2d 734 (1948); State v. Martino, 27 N.M. 1, 192 P. 507 (1920).
The judgment and sentence is affirmed.
It is so ordered.
HENDLEY and HERNANDEZ, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2271525/ | 55 Cal. Rptr. 3d 647 (2007)
148 Cal. App. 4th 285
In re MARILYN A. et al., Minors.
Bridget A. et al., Petitioners,
v.
The Superior Court Of Los Angeles County, Respondent.
Los Angeles County Department of Children and Family Services et al., Real Parties in Interest.
No. B195282.
Court of Appeal of California, Second District, Division Seven.
March 5, 2007.
*649 Martha A. Matthews, Los Angeles, for Petitioners Bridget A. and Christopher A.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for Real Party Interest.
Jenny Cheung for Marilyn A., Real Party in Interest.
Cameryn Schmidt and Carol B. Gasa-Kittler for Joseph and Xochilt E., Real Parties in Interest.
*648 PERLUSS, P.J.
Absent extraordinary circumstances, at the 18-month permanency review hearing held pursuant to Welfare and Institutions Code section 366.22[1] the juvenile court either orders the return of a dependent child to parental custody or terminates reunification services and sets a hearing for the selection and implementation of a permanent plan pursuant to section 366.26. (§ 366.22, subd. (a); Cal. Rules of Court, rule 5.720(c)(1) & (3);[2] see In re Elizabeth R. (1995) 35 Cal. App. 4th 1774, 1788, 42 Cal. Rptr. 2d 200.) If the juvenile court determines there would be no substantial danger to the child if he or she were returned home provided there is continued supervision by a social worker and the ongoing provision of reasonable support services to preserve the family, is such supervised return an option available to the court? Or are the only alternatives returning the child and terminating dependency jurisdiction, on the one hand, or terminating reunification services and setting a section 366.26 hearing, on the other hand?
In this case the Los Angeles County Department of Children and Family Services (Department) recommended at Bridget and Christopher A.'s 18-month hearing that the two children and their three siblings be returned to their mother, Xochitl C, but that the juvenile court retain jurisdiction and family maintenance services be provided to ensure the children's safety. The juvenile court rejected the Department's recommendation, stating it had no statutory authority to order the children returned home without also terminating its jurisdiction. Following entry of the court's order returning the children to their mother and terminating its jurisdiction, Bridget and Christopher, who had objected to the juvenile court's refusal to consider the Department's proposed "middle option," petitioned this court for a writ of mandate directing the juvenile court to vacate its order terminating jurisdiction and to issue a new order setting a hearing pursuant to section 364 to determine whether continued court supervision is necessary to ensure their safety in the home of their mother.
We grant the requested relief. In determining whether to return a dependent child in an out-of-home placement to the custody of his or her parent at the six-month review hearing (§ 366.21, subd. (e)), the juvenile court properly considers if providing family maintenance services to the child and parent will facilitate the child's return to, and safe maintenance in, *650 the home. Although the juvenile court in this case correctly observed there is no express authority in either statute or rule for a similar order returning the child to his or her parent's custody and ordering family maintenance services at, the 12-month (§ 366.21, subd. (f)) or 18-month (§ 366.22) permanency review hearings, neither is there anything in the statutory scheme, including in section 364, that precludes the court in an appropriate circumstance from entering such an order at those hearings. In fact, this "middle option" appears to have been contemplated by the Legislature, as reflected in section 361.5, subdivision (a), and is fully consistent not only with the broad-ranging authority of the juvenile court to make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child" (§ 362, subd. (a)), but also with the fundamental policies underlying the dependency system.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Original Dependency Petition
Bridget (now 14 years old) and Christopher (now 13 years old) and their three siblings were initially named in a dependency petition filed on April 22, 2004 by the Department pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect;) and (j) (abuse of sibling). The petition, as amended and sustained on June 7, 2004, alleged Antonio E., Bridget and Christopher's stepfather, physically abused Christopher and two of his siblings (Joseph E. and Xochitl E.) and their mother, Xochitl C, failed to take appropriate action to protect her children, thereby placing all five children at risk; Xochitl C. herself physically abused Joseph E. and Marilyn A., placing not only those two children but also their siblings at risk; Antonio E. and Xochitl C. have a history of domestic violence in which they have assaulted each other in the children's presence; Antonio E. has a history of substance abuse and drug-related criminal activity and is a current user of alcohol and illicit drugs, which renders him incapable of providing regular care for the children; and Xochitl C. knew of Antonio E.'s substance abuse problem and failed to take appropriate action to protect the children.[3] The children were placed with their maternal grandmother, who came to live with the children in the family home. (Because the maternal grandmother's own home was too small to accommodate all the children, she moved into the family home to care for them; Antonio E. and Xochitl C. moved out of the home.)
In connection with the 12-month review hearing held on June 6, 2005 (§ 366.21, subd. (f)), the Department reported Xochitl C. and Antonio E. had complied with the case plan requirements concerning parenting and domestic violence classes, counseling, alcohol and drug abstinence and visitation and recommended they be allowed to return to the family home. The court agreed and entered home-of-parent orders for the children to be returned to the physical custody of Xochitl C. and Antonio E. under the continued supervision of the Department. The court scheduled a section 364 review hearing for December 5,2005.
2. The Subsequent Petition
On November 18, 2005 the Department filed a subsequent petition (§ 342); and *651 the children were again detained (and placed with their maternal grandmother in the family home with their parents required to leave) based on an allegation Xochitl C. had threatened Antonio E. with a loaded gun in the children's presence because she was afraid he was molesting their six-year-old daughter, Xochitl E. Christopher had attempted to separate his mother and Antonio E. by stepping between the two of them; he managed to take the gun from his mother.
On January 26, 2006 the court sustained portions of the supplemental petition, terminated its prior home-of-parent orders, ordered the children suitably placed with Department discretion to place them with any appropriate relative except the parents and directed the Department to provide only six additional months of family reunification services to Xochitl C. and Antonio E., who were allowed monitored visitation with the children and ordered to participate in counseling and to complete a 52-week domestic violence program.
3. The Review Hearing
In connection with the review hearing on July 27, 2006 (held pursuant to § 366.22 on the original petition and § 366.21, subd. (e), on the supplemental petition), the Department reported both parents were visiting the children consistently and had enrolled, albeit belatedly, in the required domestic violence program. No conjoint counseling had been initiated. The Department also reported Bridget and Christopher's visits with Xochitl C. were going well and both children wanted to return to their mother's care. The Department recommended termination of family reunification services because the parents had received the maximum amount (18 months) of services permitted by statute and had made only limited progress on the case plan. Because of notice issues, the court continued the review hearing to September 6, 2006. The Department's addendum report for the September 6, 2006 review hearing stated Xochitl C. was making good progress in the domestic violence program but, due to problems with scheduling and costs, the parents and children still were not participating in conjoint counseling. The Department again recommended termination of family reunification services, but also recommended Xochitl C. be permitted to have unmonitored visits with the children in the family home. The court granted unmonitored visits to Xochitl C. on condition Antonio E. not be present during the visits.
The review hearing was continued two more times, first to October 6, 2006, and then to November 6, 2006 for a contested hearing. An addendum report for the November 6, 2006 hearing states Xochitl C. was having unmonitored visits with the children, including overnight and weekend visits, that were going well with no concerns. Xochitl C. was making good progress in the domestic violence program (although Antonio E. had stopped attending), and the family was participating in conjoint counseling. The Department's report indicates the caseworker had discussed with Xochitl C. the possibility of her returning to the family home. The Department assessed the risk if this were to be allowed as "moderate," and stated the risk would be reduced further if mother continued to attend her counseling and domestic violence programs. Accordingly, the Department recommended the court enter a home-of-parent-mother order (that is, that the court allow the mother to live in the family home with the children, who were already there with their maternal grandmother) and order family maintenance services for Xochitl C. and the children. The Department continued to recommend termination *652 of family reunification services and monitored visitation for Antonio E.
4. The Court's Order Terminating Jurisdiction
At the outset of the contested review hearing on November 6, 2006, counsel for the Department stated, "The Department is recommending home of parent mother on the condition that the mother move into the home where the children are currently residing, and the Department is recommending family maintenance services." In response, the court indicated its intention to return the children to the custody of their mother and terminate its jurisdiction without providing additional services. Following a recess, counsel for the Department repeated the Department's recommendation for a home-of-parent-mother order with family maintenance services, but added, "if the court will not order home of parent mother, without the Department submitting on the issue of terminating jurisdiction, I will submit on that issue."
Counsel for Bridget and Christopher immediately objected to termination of dependency jurisdiction if the children were sent home. The court then asked if Xochitl C. had completed all requirements of the case plan. When counsel for the Department indicated she had made significant progress but had not yet completed the 52-week domestic violence course, the court suggested it might not allow the children to return home. Counsel for the Department urged the court to find there had been substantial compliance by Xochitl C. and repeated her client's position, "I have made my argument for [family maintenance services], but not to the point where I don't want the children returned home of the parent mother. I will then submit on the issue of the termination of jurisdiction. If that's the only way the court will order home of parent mother, that's the Department's position."
Before entering its orders, the court observed, "It's not a 364. It's not a [361.2]. It doesn't fall under any of those code sections. There is no code section controlling this thing. There is a `maybe' in the rules of court, but it's not controlled by anything else. I am not keeping these cases." The court then terminated its prior suitable placement orders, dated January 26, 2006, as to all five children; ordered each of the children placed in the home of the mother; granted legal custody of the children to Xochitl C. and Antonio E. with sole physical custody and primary residence with Xochitl C; and terminated its jurisdiction over the children, noting the objections of the Department and the children's counsel to the termination order.
5. Bridget and Christopher's Petition for Writ of Mandate
Following entry of the court's order terminating juvenile court jurisdiction, Bridget and Christopher petitioned this court for a writ of mandate directing the juvenile court to vacate that portion of its November 6, 2006 order terminating jurisdiction over them and to issue a new order setting a hearing pursuant to section 364 to determine whether continued court supervision is necessary to ensure their safety in the home of their mother.[4] The petition was supported in part by declarations from two *653 attorneys with the Children's Law Center of Los Angeles who appear before and are familiar with the procedures and practices in Department 416 (Commissioner Albert Garcia) of the Los Angeles Superior Court in which Bridget and Christopher's dependency case was pending. Both attorneys declared Commissioner Garcia has stated on numerous occasion he has no authority to continue dependency jurisdiction or to set a section 364 review hearing after he has made an order returning children to the custody of a parent or guardian. Accordingly, when the Department recommends a home-of-parent order and provision of family maintenance services for a child in an out-Of-home placement, as it did in this case, Commissioner Garcia will either continue the out-of-home placement or return the child to his or her parents and immediately terminate the juvenile court's jurisdiction.
The Department joined in Bridget and Christopher's petition. Counsel for Bridget and Christopher's three siblings have also filed "joinders" in the petition.[5] On December 7, 2006 we issued an order to show cause why the requested relief should not be granted. No return or other response has been filed by any real party in interest.
DISCUSSION
1. Standard of Review
We normally review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or "exit") order pursuant to section 362.4 for abuse of discretion (In re Stephanie M. (1994) 7 Cal. 4th 295, 318, 27 Cal. Rptr. 2d 595, 867 P.2d 706) and may not disturb the order unless the court "`"exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."'" (Ibid.; see In re Nicholas H. (2003) 112 Cal. App. 4th 251, 265, fn. 4, 5 Cal. Rptr. 3d 261.; In re Sarah M. (1991) 233 Cal. App. 3d 1486, 1501-1502; 285 Cal. Rptr. 374, disapproved on another ground in In re Chanted S. (1996) 13 Cal. 4th 196, 204, 51 Cal. Rptr. 2d 866, 913 P.2d 1075.) However, the sole question presented by Bridget and Christopher's writ petition does the juvenile court at a section 366.22 18-month review hearing have the authority to return a dependent child to the home of his or her parent while providing family maintenance services under court supervision concerns the scope of the juvenile court's discretion, *654 not the proper exercise of that discretion in a particular case, and thus is a question of law for this court. (See Choice-In-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal. App. 4th 415, 422, 21 Cal. Rptr. 2d 303 ["The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion."].)
To answer this question we must construe and harmonize several related provisions of the Welfare and Institutions Code and the California Rules of Court governing dependency review hearings, In approaching this task we are guided by well-established principles of statutory interpretation: The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. (In re Eric H. (1974) 54 Cal. App. 4th 955, 965, 63 Cal. Rptr. 2d 230; In re Christina A (2001) 91 Cal. App. 4th 1153, 1162, 111 Cal. Rptr. 2d 310.) "[T]o determine this intent, we begin by examining the language of the statute. [Citations.] But `[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.] Thus, '[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.' [Citation.]" (People v. Pieters (1991) 52 Cal. 3d 894, 898-899, 276 Cal. Rptr. 918, 802 P.2d 420; see People v. Broughton (2003) 107 Cal. App. 4th 307, 316-317, 133 Cal. Rptr. 2d 161.) "If statutory language is susceptible to more than one interpretation, courts must adopt the meaning that conforms to the spirit of the statutory scheme and reject that which would result in absurd consequences unintended by the Legislature. In applying these principles, courts must keep in mind the object to be achieved, and the evil to be prevented, by the legislation." (In re Christina A., at p. 1162, 111 Cal. Rptr. 2d 310.)
The Legislature has unequivocally declared the purpose of dependency law is "to provide for the protection and safety of . . . each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare. . . . When removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective . . . ." (§ 202, subd. (a); see In re Christina A., supra, 91 Cal.App.4th at p. 1162, 111 Cal. Rptr. 2d 310.) The Legislature has further instructed that the provisions of the Welfare and Institutions Code shall be "liberally construed" to carry out that purpose. (§ 202, subd. (a).)
2. The Statutes Governing Dependency Review Hearings
"California has a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. [Citations.] `The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.' [Citation.] When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. [Citation.]" (In re Celine R. (2003) 31 Cal. 4th 45, 52, 1 Cal. Rptr. 3d 432, 71 P.3d 787; Sara M. v. Superior Court (2005) 36 Cal. 4th 998, 1008, 32 Cal. Rptr. 3d 89, 116 *655 P.3d 550.) Under the current statutory scheme dependency proceedings in which a child is removed from his or her home typically involve four phases: jurisdiction, disposition, reunification and implementation of a permanent plan if reunification is unsuccessful. (See generally Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 247-250, 19 Cal. Rptr. 2d 698, 851 P.2d 1307; In re Summer H. (2006) 139 Cal. App. 4th 1315, 1324, 43 Cal. Rptr. 3d 682.)
After the juvenile court has assumed jurisdiction under section 355 by finding the child is a person described by section 300, the court is required to hear evidence on the question of the proper disposition to be made of the child. (§ 358, subd. (a).) In most cases at the disposition hearing the court determines what services the child and the family need to be reunited and free of court supervision. The court may enter an order ranging from dismissal of the petition (§ 390; rule 5.695(a)(1)) to declaring dependency, removing physical custody from the parents and making a general placement order for the child (§ 361; rule 5.695(a)(7)). If appropriate, the court may declare the child a dependent and, without removing the child from his or her home, order family maintenance services to ameliorate the conditions that made the child subject to the court's jurisdiction. (§ 362, subd. (a); rule 5.695(a)(5).) Alternatively, if the court determines by clear and convincing evidence there is a substantial danger to the physical health, safety, protection or physical or emotional well-being of the child if the child remains in his or her home and there is no other reasonable means to protect the child (§ 361, subd. (c)(l)-(4); rule 5.695(d) [removal of custody required findings]), in the absence of a noncustodial parent who desires custody (see § 361.2), the child must be removed from the physical custody of his or her parents and placed "under the supervision of the [county] social worker who may place the child" in an appropriate home. (§ 361.2, subd. (e).)
Whether or not the dependent child remains in the parent's home, however, child welfare services (either in the form of family reunification services for a child in an out-of-home placement[6] or family maintenance services for a child who remains at home[7]) must be provided to the parent unless the court finds by clear and convincing evidence that one of the 15 exceptions set forth in section 361.5, subdivision (b), applies. (§§ 361.5, subd. (a), 362, subd. (b); Rosa S. v. Superior Court (2002) 100 Cal. App. 4th 1181, 1188, 122 Cal. Rptr. 2d 866; In re Joel T. (1999) 70 Cal. App. 4th 263, 267, 82 Cal. Rptr. 2d 538.)
a. The six-month hearing
If a child has been declared a dependent of the juvenile court and placed under court supervision, the status of the child must be reviewed every six months. (In re N.S. (2002) 97 Cal. App. 4th 167, 171, 118 Cal. Rptr. 2d 259 ["In any matter in which a minor has been declared a dependent, the court must hold review hearings."]; In re Natasha A. (1996) 42 Cal. App. 4th 28, 38, 49 Cal. Rptr. 2d 332 ["As long as a minor remains a dependent of the juvenile court, the court is statutorily required to hold review hearings every six months."].) That *656 initial six-month review hearing will be held under either section 364 for a child who remains with his or her parent or guardian or section 366.21, subdivision (e), for a child in an out-of-home placement.
i. Section 364 review hearing
If the child has not been removed from the physical custody of his or her parent, the court must schedule a review hearing pursuant to section 364 to be held within six months of the date of the declaration of dependency and every six months thereafter. (§ 364, subds.(a), (d);[8] rule 5.710(a)(2); In re N.S., supra, 97 Cal. App.4th at p. 171, 118 Cal. Rptr. 2d 259; In re Janee W. (2006) 140 Cal. App. 4th 1444, 1450, 45 Cal. Rptr. 3d 445 (Janee W.); see In re Nicholas H., supra, 112 Cal.App.4th at pp. 263, 264, 5 Cal. Rptr. 3d 261.) At the hearing the issue before the court is "whether continued supervision is necessary." (§ 364, subd. (c);[9]In re Natasha A., supra, 42 Cal.App.4th, at p. 35, 49 Cal. Rptr. 2d 332; In re N.S., at p. 172, 118 Cal. Rptr. 2d 259.) Termination of dependency jurisdiction is required unless the Department establishes the conditions still exist that would justify the court taking jurisdiction of the child or such conditions would exist if jurisdiction were terminated. (§ 364, subd. (c); see In re N.S., at p. 173, 118 Cal. Rptr. 2d 259; Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal. App. 4th 692, 700, 51 Cal. Rptr. 3d 816; rule 5.710(e)(1).) If dependency jurisdiction is continued, the court must order continued services and set a further review hearing pursuant to section 364 to be held within six months. (Rule 5.710(e)(2).) This review process is repeated until the court terminates, jurisdiction. (§ 364, subd. (d); rule 5.710(a)(2):)[10]
ii. Section 366.21, subdivision (e), review hearing
If the child has been removed from parental custody and remains out of custody, the court must schedule a hearing pursuant *657 to section 366.21, subdivision (e), to be held within six months after the date the child entered foster care.[11] (Rule 5.710(a)(1); see In re Christina A, supra, 91 Cal.App.4th at pp. 1163-1165, 111 Cal. Rptr. 2d 310 [six-month review hearing for child in out-of-home placement must be held within six months from date of entry into foster care notwithstanding language in § 366.21, subd. (e), stating hearing to be held six months from date of disposition hearing].)
The initial task for the court at the six-month review hearing is to determine whether the child should be returned to the custody of his or her parent or guardian. There is a statutory presumption the child will be returned to parental custody unless the court finds the child's return would create "a substantial risk of detriment to the physical or emotional wellbeing" of the child. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 249, 19 Cal. Rptr. 2d 698, 851 P.2d 1307.) "At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e).) In making this determination, the court is to "consider the efforts or progress . . . demonstrated by the parent . . . and the extent to which he or she availed himself or herself [of] services provided." (Ibid.) The parent's failure "to participate regularly and make substantive progress in court-ordered treatment programs" is "prima facie evidence that return would be detrimental." (Ibid.)[12]
At this hearing the court must also determine whether reasonable reunification services have been offered or provided and evaluate the child's case plan and plan for permanent placement. (See Rule 5.710(e)(2)-(7).) If the child is not returned home, the court continues or modifies the reunification services being provided (rule 5.710(f)(11)) and schedules the 12-month permanency hearing pursuant to section 366.21, subdivision (f).[13]
*658 b. The 12-month hearing
At the section 366.21, subdivision (f), permanency review hearing, to be held within 12 months from the date the child enters foster care, the court again determines whether the child should be returned to the custody of his or her parent or guardian; and the same statutory presumption that the! child will be returned home applies. (§ 366.21, subd. (f); Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 249,19 Cal. Rptr. 2d 698, 851 P.2d 1307.) If the child is not returned to his or her parent because the juvenile court finds a substantial risk of detriment to the child exists, the court must terminate reunification services and facilitate the alternative permanent plan (generally by setting a hearing for the selection and implementation of a permanent plan pursuant to section 366.26) unless reasonable services have not been offered or provided or there is a substantial probability of return of the child within 18 months from the date of the child's removal from his or her home. (Rule 5.715(3); Cynthia D., at p. 249, 19 Cal. Rptr. 2d 698, 851 P.2d 1307 ["At the 12-month review, if the court does not return the child and finds that there is no substantial probability of return to the parent within 18 months of the original removal order, the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26. . . ."].)
If the court finds there is a substantial probability the child could be safely returned to the custody of his or her parent with additional reunification services, the court may extend the reunification period to a maximum of 18 months from the date of the original removal order (§§ 361.5, subd. (a), 6th par., 366.21, subd. (g)(1); Katie V. v. Superior Court (2005) 130 Cal. App. 4th 586, 596, 30 Cal. Rptr. 3d 320) and set a further permanency review hearing pursuant to section 366.22. (Rules 5.715(d)(1), 5.720(a) [§ 366.22 permanency review hearing "must be held no later than 18 months from the date of the initial removal"].)
c. The 18-month hearing
At the 18-month permanency review hearing the juvenile court either orders the return of a dependent child to parental custody or terminates reunification services and sets a hearing for the selection and implementation of a permanent plan pursuant to section 366.26.[14] (§ 366.22, subd. (a); rule 5.720(c)(1) & (3).) "Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which `the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.' [Citation.]" (Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 596, 30 Cal. Rptr. 3d 320; see In re Elizabeth R., supra, 35 Cal.App.4th at p. 1788, 42 Cal. Rptr. 2d 200 ["The Legislature has determined that the juvenile court must embrace or forsake family preservation at this point by circumscribing the court's options."].)
As was true at the six-month and 12-month review hearings, unless the court finds by a preponderance of the evidence that returning the child to the physical custody of his or her parents would create a substantial risk of detriment to the child's safety, protection or physical or emotional well-being, the court must order the child returned. (§ 366.22, subd. (a); *659 rule 5.720(c)(1).) "If the child is not returned to a parent or legal guardian at the [18-month] permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child. . . . The court shall also order termination of reunification services to the parent or legal guardian." (§ 366.22, subd. (a).) A finding of reasonable services offered or provided is not a precondition to ordering a section 36626 hearing. (Mark N. v. Superior Court (1998) 60 Cal. App. 4th 996, 1017, fn. 10, 70 Cal. Rptr. 2d 603.)
3. The Juvenile Court May Order a Dependent Child Home at the Six-month Review Hearing While Continuing Court Supervision and Services
The fundamental question to be addressed at the six-month, 12-month and 18-month review hearings is whether the dependent child can be returned safely to the physical custody of his or her parent. At least in the context of the section 36621, subdivision (e), six-month review hearing, there is no doubt that in answering that question the juvenile court properly considers whether continuing dependency jurisdiction and providing additional family maintenance services to the parent and child will facilitate the child's return to, and safe maintenance in, the home: "If the child is returned [at the six-month review hearing], the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within 6 months." (Rule 5.710(e)(2); see Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings (CJER rev.2005) § 103.33, p. 103-44 [at the six-month review hearing, "[i]f the child has been removed, the court may . . . [r]eturn the child and continue dependency with services to the child and family [citations]."].)
To be sure, as the juvenile court observed in this proceeding, no language in section 366.21, subdivision (e), itself specifically sanctions continuing dependency jurisdiction and providing family maintenance services when a child in out-of-home placement is returned to his or her parent at the six-month review hearing. (The statute similarly makes no mention of terminating jurisdiction upon the return of the child to the physical custody of his or her parent.) However, the Judicial Council's interpretation of this statute in rule 5.710 (former rule 1460), quoted above, expressly authorizes continuing court supervision and ordering family maintenance services. "[A]lthough not binding on the courts and invalid if contrary to statute, [a Judicial Council rule interpreting the dependency statutes] is entitled to great weight and will be overturned only if it is clearly erroneous." (Sara M. v. Superior Court, supra, 36 Cal.4th at p. 1014, 32 Cal. Rptr. 3d 89, 116 P.3d 550 [upholding portion of former rule 1460(f)(1)(B) authorizing the juvenile court to terminate reunification services and set the matter for a permanency planning hearing whenever it finds by clear and convincing evidence the parent has failed to contact and visit the child for six months after reunification services have begun]; see In re Alanna A. (2005) 135 Cal. App. 4th 555, 563-564, 37 Cal. Rptr. 3d 579 [approving interpretation of § 366.21, subd. (e), in rule 5.710(f)(11) ].)
Significantly, nothing in section 366.21, subdivision (e), or elsewhere in the statutes governing the dependency court's conduct of review hearings prohibits the court from returning the child to his or her parent and continuing court supervision with family maintenance services. Indeed, section 361.5, subdivision (a), seventh *660 paragraph, provides in part, "Physical custody of the child by the parents or guardians during the applicable time period under paragraph (1), (2), or (3) [specifying the duration of court-ordered family reunification services that may be provided to a child and his or her family] shall not serve to interrupt the running of the period." By precluding any "tolling'' of the maximum period for family reunification services for the time a child has been returned home and family maintenance services are provided, the Legislature has plainly expressed both its awareness and approval of the widespread practice of returning a child in an out-of-home placement to the physical custody of his or her parent subject to on-going court supervision and the provision of family maintenance services. It has also recognized the unfortunate reality that as happened in this case[15] the parent may subsequently lose custody of the child once again following the filing of a supplemental (§ 387) or subsequent (§ 342) petition. (§ 364, subd. (e); see, e.g., Carolyn R. v. Superior Court (1995) 41 Cal. App. 4th 159, .166, 48 Cal. Rptr. 2d 669 ["When a juvenile court sustains a supplemental petition pursuant to section 387, the case does not return to '"square one"` with regard to reunification efforts. [Citations] Instead, the question becomes whether reunification efforts should resume. . . .[T]he court determines at what chronological stage of the 12- to 18-month period the case is for reunification purposes and then proceeds pursuant to section 366.21 or section 36622 as appropriate."]; In re N.M. (2003) 108 Cal. App. 4th 845, 854, 134 Cal. Rptr. 2d 187.)
Moreover, when a child has been declared a dependent of the juvenile court, the court is expressly authorized to make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child. . . ." (§ 362, subd. (a); see also § 245.5 ["In addition to all other powers granted by law, the juvenile court may direct all such orders to the parent, parents, or guardian of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests of . . . the minor. These orders may concern the care, supervision, custody, conduct, maintenance, and support of the minor. . . ."].) Permitting a dependent child to return home while retaining jurisdiction and ordering the continuation (with or without modification) of services previously provided to ensure the child's safety plainly fall within this broad-ranging authority of the juvenile court. (In re Carmen M. (2006) 141 Cal. App. 4th 478, 486, 46 Cal. Rptr. 3d 117 [§ 362, subd. (a), and related provisions of juvenile law have been broadly interpreted to authorize wide variety of remedial orders intended to protect the safety and well-being of dependent children]; see In re Jose M. (1988) 206 Cal.App.3d 1098,1103-1104, 254 Cal. Rptr. 364 [juvenile court has broad discretion to determine what would best serve dependent child's interests and enter appropriate orders to protect the child].)
Sound public policy further supports permitting the juvenile court to enter a home-of-parent order at the six-month review hearing while retaining jurisdiction and ordering family maintenance services. The Legislature has directed the juvenile *661 court "to preserve and strengthen the minor's family ties whenever possible." (§ 202, subd. (a).) Even after making the required findings and declaring a child a dependent of the juvenile court, a child may not be removed from the custody of his or her parent or guardian absent proof the child cannot be adequately protected by providing reasonable in-home services. (§ 361, subd. (c); rule 5.695(d).) Once it becomes apparent a child initially in an out-of-home placement can safely return home if family maintenance services are made available, ordering that return, while continuing jurisdiction, furthers the legislative mandate to preserve the family whenever possible. (See § 202, subd. (a) [when removal of a child is necessary, "reunification of the minor with his or her family shall be a primary objective" of the juvenile court].)
4. The Juvenile Court May Order a Dependent Child Home at the 12-month Review Hearing While Continuing Court Supervision
The language in section 366.21, subdivision (f), directing the court to return a dependent child to the physical custody of his or her parent or guardian unless that return would create a substantial risk of detriment to the safety or physical or emotional well-being of the child is identical to the language in section 366.21, subdivision (e). Accordingly, although rule 5.715 prescribing the conduct of the 12-month permanency hearing does not address the court's ability to return the child to his or her home and order continued dependency services, as does rule 5.710(e)(2) with respect to the six-month hearing, there is no reason to conclude the juvenile court does not have full authority under section 362, subdivision (a), as well as sections 202, subdivision (a) (declaring purpose of juvenile law), and 245.5 (general powers of juvenile court), to enter a home-of-parent order at the 12-month hearing, continue court jurisdiction and direct that family maintenance services be provided to the child and his or her parents. (See Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings, supra, § 103.13, p. 103-26 [identifying among possible findings and orders at 12-month permanency hearing, "[c]hild is returned home and dependency continued/not continued. [Citation.] If dependency is continued, court sets review in six months."].) As discussed, the Legislature certainly contemplated such an order with the ant-tolling provision in section 361.5, subdivision (a), seventh paragraph, which applies when a child is initially removed, returned home at a periodic review hearing and then re-detained based on the allegations in a supplemental petition. (See, e.g., Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 166, 48 Cal. Rptr. 2d 669.)
At the 12-month permanency review hearing, if the dependent child is not returned to the custody of his or her parent or guardian, the court is authorized to order additional reunification services if it finds a substantial probability the child will be returned and safely maintained in the home within the extended period (not to exceed 18 months from the date of the original removal). (§§ 366.21, subd. (g), 361.5, subd. (a), 6th par.) Particularly in light of the legislative directive that family preservation be a primary objective of the dependency system during these initial phases of the proceedings (see Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 248-249, 19 Cal. Rptr. 2d 698, 851 P.2d 1307; In re Celine R., supra, 31 Cal.4th at p. 52, 1 Cal. Rptr. 3d 432, 71 P.3d 787), it would be anomalous at best to construe section 366.21, subdivision (f), to permit the court to maintain the child in an out-of-home placement while ordering additional *662 reunification services but not to allow the court to return the child to his or her parent while providing continued court and social worker supervision and child welfare (family maintenance) services to ensure the child's safety. We decline to adopt such an incongruous interpretation of the statutory scheme.
5. The Juvenile Court Has Discretion To Enter a Home-of-parent Order at the 18-month Permanency Review Hearing While Continuing Court Supervision, and Services
Section 3(16.22, subdivision, (a), like section 36621, subdivisions (e) and (f), contains a statutory presumption the child will be returned to parental custody unless the court finds the child's return would create "a substantial risk of detriment to the physical or emotional well-being" of the child. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 249, 19 Cal. Rptr. 2d 698,851 P.2d 1307 [discussing review hearings under all three provisions].) Also like section 36621, subdivisions (e) and (f), section 366.22 does not address the juvenile court's discretion to return the child to his or her home and order continued dependency services. Nonetheless, finding the child may be returned to, and safely maintained in, his or her parent's home at the 18-month permanency review hearing while retaining jurisdiction and directing that family maintenance services be provided to the child and his or her parent would appear to lit comfortably within the juvenile court's broad authority to make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the [dependent] child." (§ 362, subd. (a); see Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings, supra, § 103.13, p. 103-26 [identifying among possible findings and orders at 18-month permanency review hearing, "[c]hild is returned home and dependency continued/not continued. [Citation.] If dependency is continued, court sets review in six months."].)
A significant difference between continuing child welfare services following a home-of-parent order at the six-month or 12-month review hearing and a similar order at the 18-month permanency review hearing, however, is that the section 366.22 hearing "represents a critical juncture in dependency proceedings." (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1015, 70 Cal. Rptr. 2d 603.) "The cutoff date for fostering family reunification is the 18-month status review. At this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children." (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1788, 42 Cal. Rptr. 2d 200; Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 596, 30 Cal. Rptr. 3d 320.) "Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal. 4th 295, 309, 19 Cal. Rptr. 2d 544, 851 P.2d 826; In re Celine R., supra, 31 Cal.4th at p. 52,1 Cal. Rptr. 3d 432, 71 P.3d 787.)
We do not believe this 18-month limit on family reunification services constrains the juvenile court's authority to order family maintenance services beyond that time for a child who has been returned to the custody of his or her parent. There is no statutory limit on the provision of family maintenance services if the court believes the objectives of the service plan are being met. (See §§ 364, subd. (d), 16506; In re Joel T, supra, 70 Cal.App.4th at pp. 267-268, 82 Cal. Rptr. 2d 538.) There appears to be no reason, in either the language of the governing statutes or the public policy underlying the dependency system, to permit *663 these child welfare services to continue for a family with a dependent child who has never been removed from the home and to deny those services to an otherwise identical family whose child was originally removed and then returned because of the parents' substantial progress in completing their case plan.[16] Indeed, although the Legislature has directed in the anti-tolling provision of section 361.5, subdivision (a), seventh paragraph, that the combined period of family reunification and family maintenance services be considered in determining whether additional family reunification services may be provided at least to the extent family maintenance services were provided following the initial removal and subsequent return of a child to the custody of his or her parent or guardian (see In re N. M., supra, 108 Cal.App.4th at p. 854,134 Cal. Rptr. 2d 187 [acknowledging argument can be made that family maintenance services should not be counted against 18-month period when child is not removed from parent's custody until after services are provided] no similar mandate restricts the provision of family maintenance services beyond the 18-month date.[17]
*664 6. A Section $64 Review Hearing May Be Held for a Dependent Child Who Has Been Returned To His or Her Parent's Custody Following an Out-of-home Placement
In addition to noting the absence of express language in sections 361.21, subdivisions (e) and (f), or 361.22 authorizing the court to retain jurisdiction and order family maintenance services after returning a dependent child to his or her parent, the juvenile court in this case stated (as it had in other, similar cases according to the declarations submitted with the writ petition) it has no authority to set a section 364 review hearing after terminating an out-of-home placement and entering a home-of-parent order for a dependent child. It follows, therefore, if there can be no further review hearing for the child, the court must necessarily terminate its jurisdiction.
This narrow interpretation of the availability and scope of a section 364 review hearing is apparently based on language from several appellate cases and, in particular, from the recent opinion by Division Eight of this court in Janee W., supra, 140 Cal.App.4th at pages 1450, 45 Cal. Rptr. 3d 445 to 1451 suggesting section 364 applies only when a child has never been removed from the physical custody of the parent or guardian. (See also In re Sarah M., supra, 233 Cal.App.3d at p. 1493, 285 Cal. Rptr. 374 ["section 364 applies in cases where the dependent child has not been removed from the original custodial home."].) This analysis unnecessarily restricts the language of the statute itself, misreads the relevant case authority and disregards both an applicable Judicial Council rule and the broad authority of the juvenile court to make orders that further the best interests, of dependent children.
The juvenile court must conduct a review hearing for every child who has been declared a dependent of the court at least every six months. (In re Natasha A, supra, 42 Cal.App.4th at p. 38, 49 Cal. Rptr. 2d 332; In re N.S., supra, 97 Cal. App.4th at p. 172, 118 Cal. Rptr. 2d 259; compare § 366, subd. (a)(1) ["The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing until the hearing described in Section 366.26 is completed."] with § 364, subd. (d) ["If the court retains jurisdiction it shall continue the matter to a specified date, not more than six months from the time of the hearing. . . ."]; see also 42 U.S.C. § 675(5)(B) [under federal law judicial or administrative review of each dependent child's case must be held no less than every six months].) Section 364, subdivision (a), directs the juvenile court to conduct an initial review hearing for a dependent child who has not been removed from the physical custody of his or her parent or guardian within six months of the original disposition hearing pursuant to section 358. However, by its terms a section 364 review hearing must be set following "[e]very hearing" at which an order is made either placing a child under the supervision of the juvenile court or retaining dependency jurisdiction, provided at that hearing no order is made removing the child from the physical custody of his or her parent or guardian. (§ 364, subds.(a), (d).) In view of the Legislature's direction that we "liberally construe" the dependency laws "to preserve and strengthen the minor's family ties whenever possible" (§ 202, subd. (a)), we have no difficulty concluding a hearing at which an out-of-home placement is terminated and a home-of-parent order entered is the equivalent of a hearing "in which the child is not removed from the physical custody of his or her parent or guardian" within the *665 meaning of section 364, subdivision (a). (See Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings, supra, § 103.13, p. 103-26 [identifying among possible findings and orders at six-, 12- and 18-month review hearings continuing dependency jurisdiction and setting further review hearing pursuant to § 364, subd. (d) ].) Moreover, as the court explained in In re N.S:, supra, 97 Cal. App. 4th 167, 118 Cal. Rptr. 2d 259, to interpret section 364 narrowly, as suggested by the juvenile court in this case, would leave an unacceptable gap in the statutory scheme: "Unless section 364 applies, there is no statute governing the court's review hearings for a minor who has been removed from, but is subsequently placed back in, parental custody." (Id. at p. 172,118 Cal. Rptr. 2d 259.)
This commonsense construction of section 364 and related dependency statutes is further supported by rule 5.710(e)(2), which provides, as to a child who has been returned to the custody of a parent or guardian after initially being removed, the court "may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within 6 months." That further review hearing can be conducted only pursuant to section 364. (See In re N.S., supra, 97 Cal.App.4th at p. 172, 118 Cal. Rptr. 2d 259.)[18] In addition, rule 5.710(a)(2) directs the juvenile court to conduct a section 364 review hearing every six months for any dependent child who "remains in the custody of the parent or guardian." The rule draws no distinction between a child who was never removed from the custody of his or her parent and one who "remains" in his or her parent's custody at the time of the review hearing following an initial removal and subsequent return home. (Cf. Sara M. v. Superior Court, supra, 36 Cal.4th at p. 1014, 32 Cal. Rptr. 3d 89, 116 P.3d 550 [recognizing significant persuasive force of interpretation of dependency statutes contained in the California Rules of Court].)
None of the appellate decisions discussing when section 364 properly governs a periodic review hearing in the juvenile court mandates a different result. In Janee W. Division Eight considered only whether section 364 or section 361.2 provides the applicable procedural rules in reviewing the status of dependent children who had been taken from the physical custody of their mother and eventually placed with their father, with whom they did not live at the time they were first detained. Under section 361.2, subdivision (a), when the juvenile court orders the removal of a child from a parent's home and determines a noncustodial parent desires custody, it must place the child with that parent unless it finds that doing so poses a risk of harm to the child. Although section 361.2 by its terms applies only when the juvenile court first takes jurisdiction of a child, relying upon the relevant rules of court (former rules 1460(h) [now rule 5.710(h)], 1461(c)(2) [now rule 5.715(c)(2) ]), Division Eight held its procedures can be invoked at either the six-month or 12-month review hearings, as occurred in the case before it. (Janee W., supra, 140 Cal.App.4th at p. 1451, 45 Cal. Rptr. 3d 445.) Accordingly, the question whether to terminate jurisdiction should have been determined under the standards of section 361.2, not section 364.[19] The court's explanation of its holding *666 "Section 364 applies when a dependency court determines that jurisdiction under section 30(1 is appropriate, but `the child is not removed from the physical custody of his or her parent or guardian. . . .' [Citation.]" (Jawe W., at p. 1450, 45 Cal. Rptr. 3d 445) is not authority for the proposition the juvenile court may not set a section 364 review hearing after entering a home-of-parent order at the six-month, 12-month or 18-month review hearing. (Chevron U.S.A, Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal. 4th 1182, 1195, 81 Cal. Rptr. 2d 521, 969 P.2d 613 [it is "axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered."]; Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, 680, 36 Cal. Rptr. 3d 495, 123 P.3d 931 [same].)
The issue in In re Sarah M., supra, 233 Cal. App. 3d 1486, 285 Cal. Rptr. 374, was similar to that presented by Janee W.: Is termination of dependency jurisdiction with respect to a child removed from her custodial parent and placed with a nonoffending, noncustodial parent (here, her father and stepmother) properly determined under the standards of section 364 or 361.2 (Sarah M., at pp. 1493-1494, 285 Cal. Rptr. 374.) The court concluded section 361.2 applied and held before terminating its jurisdiction the juvenile court must make a factual finding that supervision is no longer necessary. (Sarah M., at p. 1498, 285 Cal. Rptr. 374.) As in Janee W., the general language in In re Sarah M. concerning the authority of the court to conduct a section 364 hearing when a child has initially been removed from the home of a custodial parent simply does not apply to the issue presented by Bridget and Christopher's writ petition: whether a section 364 review hearing may be set for a child who has been removed from, but then returned to, parental custody.[20]
In sum, whether at the six-month, 12-month or 18-month review hearing, the juvenile court has the authority, in its discretion, to return a dependent child to the physical custody of his or her parent or guardian and either to terminate its jurisdiction or to retain dependency jurisdiction and order family maintenance services to ensure the safety and physical and emotional well-being of the child.[21] In their petition to this court, Bridget and Christopher present powerful arguments as to why, although a home-of-parent order was *667 appropriate, continued court supervision is necessary for their protection and to ensure the conditions leading to dependency jurisdiction are not likely to recur. The juvenile court erred in refusing to consider those arguments, advanced initially before it by the Department and supported by Bridget and Christopher. Accordingly, we grant the petition, vacate the order terminating dependency jurisdiction and return the matter to the juvenile court for an appropriate exercise of its discretion in determining whether to retain jurisdiction in this case.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent juvenile court to vacate that portion of its order of November 6, 2006 terminating jurisdiction over Bridget A and Christopher A, as well as their siblings Joseph and Xochitl E., to issue a new order setting a hearing to determine whether continued court supervision is necessary to ensure the children's safety in the home of their mother and to conduct further proceedings not inconsistent with this opinion.
We concur: JOHNSON, and ZELON, J.
NOTES
[1] Statutory references are to the Welfare and Institutions Code.
[2] All references to rule or rules are to the California Rules of Court.
[3] At the time of the original section 300 petition, Christian A, the biological father of Marilyn, Bridget and Christopher, was identified as "whereabouts unknown." In subsequent filings the Department reported Christian A. was incarcerated at the United States Penitentiary in Lompoc.
[4] Although the order terminating jurisdiction is appealable (§ 395 [order entered after disposition hearing is appealable as an order after judgment]; see, e.g., In re Natasha A. (1996) 42 Cal. App. 4th 28, 33-34, 49 Cal. Rptr. 2d 332), Bridget and Christopher allege there is a substantial risk they could suffer serious physical abuse or emotional trauma absent court supervision and Department involvement during the time it would take to resolve an appeal.
[5] The documents filed on behalf of Bridget and Christopher's siblings, although denominated as "joinders," are in the form of statements of support for the positions asserted and relief requested by Bridget and Christopher rather than separate petitions to review the juvenile court's order terminating jurisdiction over them. (See rule 8.490(b) & (c) [detailing requirements for a petition for writ of mandate, certiorari or prohibition]; cf. Decker v. U.D. Registry, Inc. (2003) 105 Cal. App. 4th 1382, 1391, 129 Cal. Rptr. 2d 892 [although "standard practice" permits parties to join in each other's arguments, "joining in an argument is different from joining in a motion"; absent compliance with procedural requirements for a properly filed motion, party "joining" other party's motion lacks standing to seek relief from the court].) Nonetheless, in response to a question from the court at oral argument, counsel for Bridget and Christopher stated it was her understanding the siblings had intended to seek affirmative relief from this court. That position was confirmed by counsel for Joseph and Xochitl E. in a letter submitted after argument. However, counsel for Marilyn A. expressly disclaimed any intent to seek writ relief for her client. Accordingly, although it is far better practice in these circumstances for counsel to file a document that not only properly identifies itself as a petition but also complies with the applicable requirements of the California Rules of Court for a writ petition, we will exercise our discretion and treat the joinder by Joseph and Xochitl E. in this matter as, in effect, a supplemental petition for writ of mandate.
[6] "Family reunification services" are "activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care, while services are provided to reunite the family." (§ 16501, subd. (h).)
[7] "Family maintenance services" are "activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families." (§ 16501, subd. (g).)
[8] Section 364, subdivision (a), provides, "Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is riot removed from the' physical custody of his or her parent or guardian shall: be continued to a specific future date not to exceed six months after, the date of the original dispositional hearing. . . ." Section 364, subdivision (d), provides, "If the court retains jurisdiction [at the hearing held pursuant to this section], it shall continue the matter to a specified date, not more than six months from the time of the hearing, at which point the court shall again follow the procedure specified in subdivision (c)."
[9] Section 364, subdivision (c), provides, "After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shell determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the Conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary."
[10] "[N]othing in the statutes or rules limits the time period for court supervision and services when the child remains in the home. . ., If supervision is no longer required, the court simply terminates the dependency. Otherwise, the state may continue to provide supportive services and supervision to parents until the dependent minors reach their majority." (In re Joel T:, supra, 70 Cal. App.4th at pp. 267-268, 82 Cal. Rptr. 2d 538; see § 16506 [family maintenance services "may be extended in periods of six-month increments if it can be shown that the objectives of the service plan can be achieved within the extended time periods. . . ."].)
[11] Section 361.5, subdivision (a), and rule 5.502(9)(A) define the date the child entered foster care in dependency proceedings as the earlier of the date on which the court sustained the section 300 petition or 60 days after the child's initial removal from the physical custody of his parent or guardian. (See In re Christina A., supra, 91 Cal.App.4th at p. 1160, 111 Cal. Rptr. 2d 310.)
[12] The question whether to return the child to parental custody properly focuses on the well-being of the child at the time of the review hearing: "[Placement must continue regardless of whether that detriment mirrors the harm which had required the child's removal from parental custody." (In re Joseph B. (1996) 42 Cal. App. 4th 890, 900, 49 Cal. Rptr. 2d 900.)
[13] Different rules apply at the six-month hearing stage if the dependent child was under the age of three on the date of the initial removal: "If . . . the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 [to terminate parental rights] within 120 days." (§ 366.21, subd. (e); rule 5.710(f)(1); see Jessica A. v. Superior Court (2004) 124 Cal. App. 4th 636, 642, 21 Cal. Rptr. 3d 488.) Section 366.21, subdivision (e), further provides, "If, however, the court finds there is a substantial probability that the child, who was under the age of three years on the date of initial removal . . . may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (Jessica A., at pp. 642, 644-645, 21 Cal. Rptr. 3d 488.)
[14] The juvenile court need not schedule a section 366.26 hearing if it finds by clear and convincing evidence the child is not a proper subject for adoption and there is no one willing to accept legal guardianship. (§ 366.22, subd. (a); rule 5.720(c)(3)(A).)
[15] At the 12-month hearing held on June 6, 2005, after finding Xochitl C. and Antonio E. in compliance with their case plans, the juvenile court returned all five children to their physical custody, retained jurisdiction and ordered family maintenance services and set a further review hearing pursuant to section 364 for December 2005. The Department filed its subsequent petition pursuant to section 342 and re-detained the children prior to the date of the section 364 hearing.
[16] We are aware the final sentence of section 361.5, subdivision (a), seventh paragraph, provides, "If at the end of the applicable time period, a child cannot be safely returned to the care and custody of a parent or guardian without court supervision, but the child clearly desires contact with the parent or guardian, the court shall take the child's desire into account in devising a permanency plan." This language was added to a prior version of section 361.5, subdivision (a), in slightly different form in 1992 as part of Senate Bill No. 1564 (Stats.1992, ch. 455, § 2), which dealt primarily with including a new subdivision (b)(6) in section 361.5, permitting the juvenile court to deny reunification services to an offending parent who had inflicted severe sexual abuse or severe physical harm on his or her child if the court determined it would not benefit the child to pursue reunification services with that parent. Our review of the legislative history persuades us this language was intended only to ensure the juvenile court consider a child's desire to have continuing contact with his or her parent after reunification services have been terminated, and does not constitute a statutory bar to the court continuing dependency jurisdiction when returning a child to the physical custody of his or her parent at the section 366.22 hearing. (See, e.g., Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1564 (1991-1992 Reg. Sess.) as amended July 6, 1992, p. 2 [proposed legislation provides "a court shall take a child's wishes into account when devising a permanency plan for a child, where at the end of the 18 month reunification period, a child cannot be safely returned to the custody of a parent/guardian without court supervision, but the child clearly desires contact with the parent/guardian"].)
[17] Even if the 18-month limit on reunification services set forth in section 361.5, subdivision (a), sixth paragraph, were to some extent applicable in this context, the juvenile court would retain at least limited discretion to consider, as a middle option between leaving the child in an out-of-home placement and terminating services, on the one hand, and returning the child to his or her parent's custody and terminating dependency jurisdiction, on the other hand, entering a home-of-parent order and an order for family maintenance services. "[T]he Legislature never intended a strict enforcement of the 18-month limit to override all other concerns including preservation of the family when appropriate." (Mark N. v. Superior Court, supra, 60 Cal. App.4th at p. 1016, 70 Cal. Rptr. 2d 603; see § 362, subd. (a); cf. In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799, 42 Cal. Rptr. 2d 200 [§ 352, authorizing continuance of any hearing if not contrary to interests of dependent child, "provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing"]; Renee J. v. Superior Court (2002) 96 Cal. App. 4th 1450, 1465-1466, 118 Cal. Rptr. 2d 118 [recognizing juvenile court has discretion to continue reunification services past 18-month date in limited circumstances; "we think a compelling argument could be made [by petitioner] in favor of extending the 18-month hearing"].)
[18] The juvenile court utilized this procedure in this case in June 2005 at the 12-month permanency review hearing under section 366.21, subdivision (f), when it entered home-of-parent orders for Bridget, Christopher and their three siblings, retained jurisdiction and set a further review hearing for December 5, 2005 pursuant to section 364.
[19] When deciding whether to terminate dependency jurisdiction under section 361.2 following placement of a child with a previously noncustodial parent, the court determines only whether there is a need for continued supervision, not whether the conditions that justified taking jurisdiction in the first place still exist, as required under section 364. (Compare § 361.2, subd. (b)(1)-(3), and In re Austin P. (2004) 118 Cal. App. 4th 1124, 1134-1135, 13 Cal. Rptr. 3d 616 with § 364, subd. (c), and Janee W., supra, 140 Cal.App.4th at p. 1451, 45 Cal. Rptr. 3d 445.) `
[20] The court in In re Sarah M., supra, 233 Cal.App.3d at page 1493, 285 Cal. Rptr. 374 cited In re Espemnza G. (1985) 173 Cal. App. 3d 358, 360, 218 Cal. Rptr. 827, for its general statement regarding the unavailability of a section 364 hearing when a child has been removed from the original custodial home. In Esperanza G. Division Four of this court held only that the standards for terminating jurisdiction set forth in section 364 do not apply to a dependent child who remains in an out-of-home foster placement. (See In re N.S., supra, 97 Cal.App.4th at p. 171. 118 Cal. Rptr. 2d 259 [the court in Esperanza G. "merely quoted section 364 and did not analyze whether it applied to minors who have been removed from, but are returned to parental custody"].)
[21] Of course, if the Legislature disagrees with our construction of sections 364 and 366.22, it remains free to amend the statutes to better reflect its intent. (See Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd., supra, 19 Cal.4th at p. 1199, 81 Cal. Rptr. 2d 521, 969 P.2d 613; In re Summer H., supra, 139 Cal.App.4th at p. 1334, 43 Cal. Rptr. 3d 682.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2094666/ | 30 Mass. App. Ct. 406 (1991)
568 N.E.2d 1172
COMMONWEALTH
vs.
PAUL M. DION.
No. 90-P-525.
Appeals Court of Massachusetts, Middlesex.
January 17, 1991.
March 29, 1991.
Present: KASS, KAPLAN, & PORADA, JJ.
Peter T. Elikann for the defendant.
Wendy Murphy, Assistant District Attorney, for the Commonwealth.
KAPLAN, J.
The defendant Dion appeals from a judgment of conviction of the crime of rape of a child under the age of sixteen (G.L.c. 265, § 23), entered upon the verdict of a Middlesex jury.[1]
At oral argument of the appeal before us, counsel for the Commonwealth said, with commendable candor, "It's amazing we won this."[1a]
We describe the case in some detail in order to see whether the "victory" is fairly tenable upon appellate review.
*407 It is accepted that on August 10, 1988, John Smith (pseudonyms are used throughout), then fourteen years old, told his mother that his older brother Leonard, then fifteen, had told him that day that, at an unspecified time in the past, the defendant Dion had "put his private in my [Leonard's] butt."[2] The mother repeated to Leonard what John had told her. Mother, father, and John went promptly to the police station; two officers visited that evening at the Smith home; the following day mother, father, John and Leonard were interviewed, all four together, apparently, by Officer George Thomas Sullivan, and a statement was prepared and signed.
No further police work was done. Thus, although, according to John, his friend Morris Cato was present when Leonard spoke, the police did not interview Cato, who was available. Officer Sullivan did tell the mother to have Leonard examined by a physician, but he did not follow up whether this was done.[3] Grand jury indictment was not obtained until February 15, 1989, six months after the accusation in August. The police did not attempt any communication with the defendant. He first learned of the trouble he was in around the time of his arraignment on March 9, 1989.
The indictment stated that the criminal event occurred sometime between January 1 and May 1, 1987. Defendant's counsel requested particulars. Particulars were given only to the effect that it was after school in the afternoon.
On trial day in August, 1989, before jury empanelment, the defendant brought up his motion to dismiss the indictment on the ground that the four-month period mentioned was excessively broad and this exacerbated the difficulty of making a defense, especially because Leonard was mentally *408 retarded and cross-examination of him could not serve its normal function. The prosecutor said he had interviewed Leonard a half dozen times to try to fix the time more closely, but without result. He explained the May 1, 1987, end date by his belief that the defendant was then incarcerated, but there is little of record to support the January 1, 1987, beginning date. The putative offense could have occurred earlier, thus extending further the possible interval between the offense and the accusation, the so-called "fresh complaint." From the subsequent trial record, it appears that Leonard indicated he was thirteen years old when he was molested, but this would allow his thirteenth birthday, June 7, 1986, to serve as the beginning date. The problem was not much helped by Leonard's mention of June, Valentine's day, a day that started cold and ended warm, each supposed to approximate to the time of the offense; he also said it did not happen before Christmas, after Christmas, or on Christmas; he was generally vague about dates and times.[4]
At all events, the judge denied the motion to dismiss the indictment. The defense moved for voir dire to test whether Leonard's "complaints" were or were not "fresh," and thus to be admitted or excluded, but the judge said he would rather see how the evidence went. In response to cross-motions on the subject of the use of prior convictions to impeach the defendant, the judge ruled from the start that he would admit convictions of "dissimilar" offenses (there were no convictions of similar, i.e. sex-related offenses).
In his speech to the jury after empanelment, the prosecutor made two statements of some consequence. He said the proof would show that the defendant took Leonard's hand and led him from the TV room to the living room where the act took place; and that it was when a new family moved into the nearby house, in which the defendant's family had resided, that Leonard spoke to John.
*409 The judge saw the need for a preliminary examination of Leonard's competence as a witness, and a voir dire on the subject was held as Leonard was about to be called as the Commonwealth's first witness. Leonard was a "special needs" student in a vocational high school. He could sign his name, count to one hundred, recite the alphabet, perhaps write a sentence, but was much limited: the prosecutor (without scientific help) ventured a guess that Leonard was at the level of a seven or eight year old. He was learning at school the seven steps in cleaning a floor, which he was glad to recite. Since he could not articulate well in connected speech, questions often had to be put to him in "leading" form, to which he generally would respond by yes, no, I forgot, etc.[5] He could be led easily; thus, to questions by the prosecutor he would say yes, and to like questions by defense counsel, no. However, it was reasonably inferable from Leonard's voir dire examination (and more so from his testimony) that he had been schooled in certain questions the prosecutor would ask and in the answers expected of him. He held firmly, again and again, to the formula that lying gets you into trouble. But this impelled him to affirm that he had never lied in all his sixteen years. The judge ruled that Leonard was competent, but it seemed no more than a minimal competence.[6]
The prosecution drew from Leonard the details that, on the day, after returning home from school (customarily this was at 2:30 P.M.), and before John's return (say at 3:30), he and the defendant his former babysitter watched TV; then Leonard walked out of the room to the living room, followed, not led, by the defendant; Leonard lay face down on the sofa there; the defendant drew down Leonard's jeans and underwear, and inserted his penis in Leonard's anus. It hurt only a little. There was no indication of resistance on Leonard's *410 part, and nothing was said during the episode. The defendant went to the bathroom and then left the house. Leonard pulled up his clothes and resumed watching TV. As noted, it was hard for cross-examination regarding this testimony to be truly searching or to produce any telling effects, precisely because of the witness's limitations. He could not say whether the penetration lasted a short or a long time. In response to the prosecutor, he answered, yes, he was afraid of the defendant then (and was still afraid), but his answer to defendant's counsel was to the contrary. He had visited at the Dions' house after the happening. Why had he not told anyone sooner? He forgot.
As John took the stand, the defense objected to the admission of his testimony that Leonard complained to him (the objection was later made a continuing one to all complaint testimony). The judge responded by instructing the jury, briefly, that the evidence was not being received as proof of the event, but "to help you determine whether or not his brother [Leonard] told the truth on the stand when he testified." The judge did not elaborate and said nothing about "freshness." John testified to what Leonard said to him, with Morris Cato present. Leonard had not said when it happened. The prosecution tried to elicit from John some relation between the date of the complaint and the times when people moved in or out of the Dion house, but it is fair to say that little came of it.
From Leonard's mother, Ruth Smith, there was testimony that the defendant ceased babysitting when Leonard reached the age of twelve, presumably in 1985. However, the defendant was welcome in the Smith house thereafter. A note of acerbity entered at a time, again unspecified, when a dispute arose between the witness and the defendant over a veterinarian's bill, a quarrel not otherwise described, but apparently still rankling at the time of trial. The prosecution strove again to connect the "complaint" of August 10, 1988, with events at the Dion house. It was stipulated that the defendant moved out of that house finally on July 1, 1988. The witness testified that new people (outside the Dion family) *411 moved in on August 10, but it may be observed that the defendant himself had departed a month and more earlier. Again the evidence was quite unsatisfactory. The judge charged again, much as before, about admitting Leonard's complaint.[7]
Officer Sullivan testified as a third complaint witness, but added nothing of any substance. The Commonwealth rested.
On the part of the defense, Lucy Wendel, the defendant's mother, gave an account, which was at least pretty consecutive, of the defendant's movements in and out of the Dion house. In January, 1987, she said, the defendant, with his girlfriend and their child, moved out of the Dion house to the house of Vera Branch, his father's fiancee, elsewhere in Lowell;[8] in mid-August, 1987, he moved back with entourage and lived there to July 1, 1988 (the witness herself left in October, 1987). It was on August 15, 1988, Lucy Wendel said, that she rented the house to another family. She conceded, in effect, that the defendant might have visited in the neighborhood of the Dion house when he was residing elsewhere. Vera Branch testified that the defendant and girlfriend and child moved in with her in January, 1987. She placed his moving out at the end of May, 1987. He had been working steadily while he was living at her place.
As the last witness, the defendant testified in agreement with his mother that he had moved to Vera Branch's house in January, 1987, returned to the Dion house in August, 1987, and lived there to July 1, 1988. He said he was working full time to August, 1987, except, perhaps, for turning up late occasionally. The prosecutor was then able to show that he may have skipped whole days when he had to make appearances at District Court on various matters. Over objection, the prosecutor was then permitted to introduce prior District Court convictions of the defendant two for larceny *412 over $100 and one for assault and battery with a dangerous weapon.
In his closing argument, the prosecutor made much of those dates of court appearances, contradicting, he suggested, the defendant's testimony about his work record.[9] He chose to assert that on August 10, 1988, when Leonard spoke to John, new occupants had come to the Dion house.
The defendant requested an instruction about the care the jury should use in appraising the credibility of children as witnesses. We take the record to indicate that the judge undertook to charge in the sense of a cut-down version of the defendant's proposed instruction on the subject, but the judge did not do this, and the matter was overlooked. In the final instructions the judge repeated the previous statement about a complaint admitted for a corroborative purpose, then improved upon that instruction by mentioning the "promptness" of the complaint as bearing on the strength of the corroboration.
Discussion
In considering the appeal, we do well to recur to fundamentals. Justice Holmes wrote in Commonwealth v. Cleary, 172 Mass. 175, 176 (1898), that the notion of "fresh complaint" is a "perverted survival of the ancient requirement that she [the ravished woman] should make hue and cry as a preliminary to bringing her appeal" of felony. The doctrine is offensive to the modern law of evidence for, as Holmes said, "[i]n general, you cannot corroborate the testimony of a witness by proof that he has said the same thing before, when not under oath." Ibid. The doctrine has a measure of prophylactic or negative value: a victim of such an offense might be expected to cry out in complaint to third persons; if the victim did not do so, his or her testimony that a criminal event occurred may become clouded. The doctrine is mischievous unless the complaint is truly "fresh" and the limitations of *413 complaints as means of corroboration are made clearly understandable to the trier. Because, no doubt, of a realization of how easily the doctrine can be misused or allowed to misfunction, Holmes held that the trial judge should have a distinct control over the reception of complaint testimony there was to be "a preliminary finding by the judge" (for the record, not communicated to the jury) that the complaint was not "late" as matter of law. Id. at 177.
It remains the proper practice for the trial judge to face the question of law squarely and make a distinct ruling, see Commonwealth v. Dockham, 405 Mass. 618, 626 (1989). We regret that the judge here failed so to act, even though the fault can be unhappily palliated by saying that the submission to the jury implied a ruling on the question of law. See Commonwealth v. Sherry, 386 Mass. 682, 691 (1982).
Did the judge err in failing to exclude the complaint testimony?
It is recognized that "freshness" is not solely a question of the clock or calendar, yet the passage of time is surely important: as time extends itself, a complaint loses character as a spontaneous accusation after grievous wrong; moreover, opportunity grows for invention or distortion of an event by mistake, twist of memory, fantasizing, contrivance, etc. In the case of child complainants, one allows for some slack of time that may be due to the often-assumed indecisiveness and repressive reactions of children. And one considers whether threats or other kinds of intimidation were applied which might inhibit the first utterance of complaint, and (in much the same sense) what was the relationship between the complainant and the person accused of the crime. One considers, too, in cases where intimidating pressure may have been at work, whether the complainant spoke up when relieved of it.
Upon a fairly thorough search of the reported appeals (but without claim to being complete), we notice the following. In decisions of the 1900's before 1979, we find no instance where more than one day passed between the alleged attack and the complaint that was received in evidence. (Cases in *414 this period are cited in Appendix A.) From 1979 onward, where more significant delays have been excused, the complainants were generally small children, and either explicit threats were used or the accused was a parent or other familiar, or both elements were present. Still, the time intervals were relatively short, with only one instance running to as much as eighteen months. (Appendix B.) In the latter exceptional case, Commonwealth v. Amirault, 404 Mass. 221, 228-230 (1989), the defendant, operator of a day school which the four year old victim attended, had threatened to kill her family if she told; the complaint by this bewildered child came only after an investigative interview with her.
In the present case, the Commonwealth counts eighteen months from the putative event to the complaint. The supposed single event (no claim here of repeated abuse, as in many cases) was not fixed with precision at any point in time, and so, as we noted above, the interval involved may be taken as longer by one third (or more), thus a total of two years (or more). At eighteen months, the case is at the far end of decisional experience. No threats or other forms of intimidation were in evidence and an assertion of generalized fear on the complainant's part was promptly negated, and also put in question by the witness's visits to the Dion house after the supposed event. The defendant, although welcome at the Smith house, was surely not a figure of authority at the time of the alleged crime. The prosecutor intimated that the witness's sounding his complaint had some definite relation to happenings at the Dion house but nothing substantial came of it; unfortunately, the prosecutor in summation made a bald assertion about the Dion house occupancy. (Perhaps we should add that without scientific help we cannot know whether in sexual matters the witness should be seen as an adolescent of fifteen or a child of seven.) We conclude that the admission of the complaint testimony was out of line with precedent, unjustified, and reversible error.[10]
*415 We comment more generally about the quality and fairness of the proceeding.
We have here a principal witness at the margin of competence. The value that can be assigned to his testimony is subject to doubt on that ground. A further discount has to be applied because much of the testimony or responses to questions evidently had been impressed on the mind of this weak witness through rehearsal or insistent repetition: in saying this we do not impute fault to the prosecutor, whose difficulties with such a witness must be obvious.
The defense, on its part, encountered serious difficulties of another kind. As the supposed event was not established firmly in time, satisfactory alibi or similar exculpatory evidence could not be come by; and cross-examination of this witness missed fire not only because of the vagueness of the date of the alleged event, but also because the trier would tend to excuse contradictions or other weakness in such a witness's testimony by reference to his mental or psychological infirmities, rather than to the possible falseness of the testimony itself.
The judge's instructions could be defended as lexically correct as far as they went, but were not as informative as they should have been in a case where all depended on the jury's understanding of what "corroboration" entailed. The two instructions given as the evidence came in did not touch on "freshness" and appeared to assume that the term corroboration was self-proving. The final instruction was better, but without deeper explanation of the rationale of fresh complaint may well have left the jury without a sufficient guide to a hard task. The omission in the circumstances of any instruction about evaluating the credibility of child witnesses (or such witnesses with mental or psychological deficits) was ill advised.
The record does not have a shred of corroboration, in the usual sense, of the testimony that the single alleged criminal event actually happened. The case was thus one of word against word. Here the admission of prior convictions of "dissimilar" offenses was itself a serious, perhaps fatal blow to *416 the defense. The judge seems to have recognized that he had discretion. He made his decision at the outset of the case. Had he reconsidered it in the light of all the evidence, he might have decided that fairness called for excluding the convictions.
For material error as indicated, the judgment is reversed, the verdict is set aside, and the case is to stand for a new trial if the Commonwealth should be so disposed.
So ordered.
APPENDIX A.
Commonwealth v. Gangi, 243 Mass. 341 (1923): one hour. Commonwealth v. Colangelo, 256 Mass. 165, 166 (1926): immediately afterwards (another complaint made three to four months later was held inadmissible as fresh complaint). Glover v. Callahan, 299 Mass. 55, 56 (1937): two hours. Commonwealth v. Ellis, 319 Mass. 627, 629-630 (1946): five hours. Commonwealth v. Howard, 355 Mass. 526, 530 (1969): two days. Commonwealth v. Hanger, 357 Mass. 464, 466 (1970): a few hours. Commonwealth v. Izzo, 359 Mass. 39, 42 (1971): seven hours. Commonwealth v. Tempesta, 361 Mass. 191, 195 (1972): same evening. Commonwealth v. McGrath, 364 Mass. 243, 249 (1973): a few hours. Commonwealth v. Bailey, 370 Mass. 388, 390-391 (1976): next morning. Commonwealth v. Lund, 5 Mass. App. Ct. 884, 885 (1977): nine hours (court states that another complaint, thirty-one hours later, should have been excluded).
APPENDIX B.
Commonwealth v. Edwards, 7 Mass. App. Ct. 868 (1979): one and one-half days; ten year old victim; defendant lived with mother and victim was afraid of him. Commonwealth v. Healey, 8 Mass. App. Ct. 938 (1979): three months; eight year old victim; defendant threatened police would take father away if he told. Commonwealth v. Hannaford, 10 Mass. App. Ct. 903, 904 (1980): six days; adult victim; beaten and hospitalized by defendant after first attempt to complain. Commonwealth v. Wilson, 12 Mass. App. Ct. 942, 942-943 (1981): four to eight months; ten year old victim; defendant stepfather beat her, warned her not to tell mother. Commonwealth v. King, 387 Mass. 464, 473-474 (1982): one month (following victim's departure from house); nine year old; beatings; defendant boyfriend of victim's mother, who assisted him in the rapes; threats about complainant's younger sister. Commonwealth v. Brenner, 18 Mass. App. *417 Ct. 930, 931-932 (1984): three to four months; eight year old; repeated abuse; defendant friend of mother, visited home often. Commonwealth v. Coull, 20 Mass. App. Ct. 955, 955-958 (1985): one week; eleven year old; defendant boyfriend of mother; threats with a knife. Commonwealth v. Adams, 23 Mass. App. Ct. 534, 535-536 (1987): four months; nine year old; defendant acted as stepfather; mother discouraged complaint; repeated abuse. Commonwealth v. Comtois, 399 Mass. 668, 671-675 (1987): two months (following defendant's departure); eleven to twelve, and thirteen to fourteen year olds; defendant was father and stepfather; warned not to tell; repeated abuse. Commonwealth v. McDonough, 400 Mass. 639, 651-652 (1987): eleven months; six year old; defendant friend of mother who participated in offenses; repeated abuse. Commonwealth v. Rockwood, 27 Mass. App. Ct. 1137, 1138 (1989): four to six months; six year old; defendant father; repeated abuse. Commonwealth v. Dockham, 405 Mass. 618, 625-627 (1989): eleven days; four year old; defendants were victim's parents.
Compare the longest delays excused in the absence of these factors of threat or family ties. Commonwealth v. Gonsalves, 23 Mass. App. Ct. 184, 185-187 (1986): one month; nineteen year old male; homosexual rape; crying and trembling when finally complained; was discouraged by father's contemptuous reaction from complaining. Commonwealth v. Densten, 23 Mass. App. Ct. 981, 981-982 (1986): seventeen days; nine year old "special needs" boy. Commonwealth v. Lagacy, 23 Mass. App. Ct. 622, 624-628 (1987): three weeks; twenty-one year old victim; victim feared defendant after an aggravated rape, and waited until she was able to recall his license plate number before complaining. Compare also Commonwealth v. Montanino, 409 Mass. 500, 501, 507-511 (1991), S.C. 28 Mass. App. Ct. 516 (1990): four years; fifteen year old; two isolated events; defendant scoutmaster; no threats, though generalized fear expressed; defendant had not seen complainant for two years before complaint was made held, complaint should have been excluded.
NOTES
[1] The defendant was also indicted for indecent assault and battery of a child under the age of fourteen (G.L.c. 265, § 13B), but the court dismissed this indictment as duplicative of the rape charge. See Commonwealth v. Thomas, 401 Mass. 109, 119-120 (1987).
[1a] The context of that remark was a colloquy between the court and counsel about the difficulty of questioning an impaired victim-witness at trial. We do not intimate that the government was cavalier in prosecuting a difficult case.
[2] John testified that Leonard told him the defendant had "fucked me [Leonard] up the ass," but John modified the language in reporting to his mother. In his testimony in which he had been schooled (see infra), Leonard used the modified language.
[3] The mother did not have Leonard examined for the possible effects of penetration, as she thought a lengthy time had passed and Leonard was not complaining. There was an examination of Leonard for AIDS (result negative).
[4] We appreciate fully that mental deficiency, in some cases, might make a person vulnerable to sexual abuse and also make the person a poor witness.
[5] The Commonwealth moved to be permitted to use leading questions. The judge did not rule, but leading questions were used liberally.
[6] At one point the judge mentioned the need to assure that Leonard understood the meaning of an oath; then he found that Leonard did understand the oath; later he said he didn't think Leonard knew what "under oath" meant.
[7] To conclude on the mother's testimony, she said Leonard had been subject to seizures, but his last EEG was normal. In August, 1988, he was taking Ritalin "on and off."
[8] The Smith house was close by the Dion house and Branch's house was two and one-half miles away, all in Lowell.
[9] The prosecutor also questioned the defendant's diligence in trying, but failing, to reach his employer, who supposedly could have testified in his behalf.
[10] The error was material. As the prosecutor well realized, the complaint testimony was needed in the attempt to bolster the wavering testimony of the principal witness. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2568256/ | 58 F.Supp.2d 113 (1999)
UNITED STATES of America,
v.
Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah at Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a *114 "Marwan," a/k/a "Hydar," a/k/a "Abdullbasit Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.
No. S(6) 98 Crim.1023 (LBS).
United States District Court, S.D. New York.
June 30, 1999.
Mary Jo White, New York City, Kenneth Karas, Patrick Fitzgerald, Paul Butler, *115 Assistant United States Attorneys, United States Attorney for the Southern District of New York.
Paul McCalister, New York City, for defendant Salim.
James Roth, New York City, for defendant Mohamed.
Samuel Schmidt, New York City, for defendant El Hage.
Michael Young, Carl J. Herman, New York City, for defendant Odeh.
Leonard Joy, Robert Tucker, New York City, for defendant Al-`Owhali.
OPINION
SAND, District Judge.
The sixth superseding indictment in this case charges fifteen Defendants with numerous crimes arising from, among other things, the August 1998 bombings of the United States' embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, as well with subsequent attempts to hinder the investigation into those crimes. Five of the Defendants are presently in the custody of the Bureau of Prisons: Mamdouh Mahmud Salim, Ali Mohamed ("Mohamed"), Wadih El Hage ("El Hage"), Mohamed Sadeek Odeh ("Odeh"), and Mohamed Rashed Daoud Al-Owhali.
The Government has asked that the Court file a protective order containing the following language:
5. No defendant, counsel for a defendant, employee of counsel for a defendant, defense witness, or Courtroom personnel required by the Court for its assistance, shall have access to any classified information involved in this case unless that person shall first have:
(a) received approval from either the Government or the Court for access to the particular classified information in question ...; and
(b) ... agree[d] to comply with the term[s] of this Order.
6. For the purpose of establishing security clearances necessary for access to classified information that may be involved in the pre-trial preparation or trial or appeal of this case, Standard Form 86, "Questionnaire for National Security Positions," attached releases, and full fingerprints shall be completed and submitted to the CSO forthwith by all defense counsel, persons whose assistance the defense reasonably requires and by such [C]ourtroom personnel as the Court requires for its assistance.
(Karas Aff.Ex. K, at 3-4.)
The Department of Justice ("DOJ") regulations governing the clearance application process contain the following provisions:
(b) Eligibility for access to classified information is limited to United States citizens for whom an appropriate investigation of their personal and professional history affirmatively indicated loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information....
(c) The Department of Justice does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information. However, the Department may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No negative inferences concerning the standards for access may be raised solely on the basis of the sexual orientation of the employee or mental health counseling.
28 C.F.R. § 17.41 (1998).
The proposed security clearance procedure would be supervised by a Court-appointed Court Security Officer ("CSO") who (1) "would serve as an officer of this *116 [C]ourt in implementing and enforcing the terms of the proposed protective order" and (2) would "not be a member of the prosecution team in this case." (Karas Aff. ¶ 14; accord Gov't Ltr. Reply Ex. A, Background Material for Chairman Edwards on the Security Procedures for the Protection of Classified Information in the Custody of the Federal Courts, at 3, appended to Letter from Chief Justice Burger to Rep. Peter W. Rodino (July 10, 1981) [hereinafter "Memo. to Edwards"] ("The duties of the court security officer, thus, are clearly ministerial in nature; he is not an agent or representative of the prosecution and he has no independent authority to decide who gets access to classified information.").)
The Government has also indicated that the CSO would be required to maintain the confidentiality of materials relating to any clearance application and that the DOJ's recommendation with respect to any such application would be furnished only to the Court and the particular applicant. (See Def's Mem. at 40-41.) The regulations governing the clearance procedures provide for appeal within DOJ, see Exec.Order No. 12968, 60 Fed.Reg. 40,245, at Part 5 (1995), and any applicant who received an adverse recommendation could ultimately raise ex parte objections with the Court, which would be the final arbiter of all clearance questions. See generally United States v. Musa, 833 F.Supp. 752, 755-57 (E.D.Mo.1993) (providing a detailed description of procedures used in a case involving classified information, albeit one in which the Government did not request clearance of counsel).
Defendant Odeh filed a motion objecting to the proposed protective order insofar as it requires his counsel to obtain clearance before viewing classified information. Defendants Mohamed and El Hage subsequently joined this motion at oral argument. (See Tr. Oral Arg. at 15-16).[1] The Moving Defendants argue that the Court lacks the authority to require clearance of counsel and that, even if the Court were to possess such authority, exercising it would violate their Sixth Amendment rights. At oral argument on June 22, 1999, counsel for Defendant Odeh moved to intervene in the proceedings "for the limited purposes of asserting defense counsel's independent constitutional rights on this issue." (Tr. Oral Arg. at 27.) Although Defendants Mohamed and El Hage joined in Defendant Odeh's original objection to the protective order, there is no indication that their counsel joined in the motion to intervene. The Court reserved decision on both motions.
DISCUSSION
I. Introduction
We begin with three basic propositions. First, pursuant to Federal Rule of Criminal Procedure 16(d)(1), which governs the use of protective orders with respect to discovery in criminal cases, the Court "may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate."
Second, pursuant to Section 3 of the Classified Information Procedures Act ("CIPA"), Pub.L. No. 96-456, 94 Stat. 2025 (1980), codified at 18 U.S.C. app. 3 § 3, the Court has the authority to "issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States."[2]
Third, pursuant to Security Procedures Chief Justice Burger promulgated under Section 9 of CIPA, see 18 U.S.C.A. app. 3 *117 § 9 (West 1999), "[t]he government may obtain information by any lawful means concerning the trustworthiness of persons associated with the defense and may bring such information to the attention of the court for the court's consideration in framing an appropriate protective order pursuant to Section 3 of the Act." See Security Procedures Established Pursuant to Public Law 96-456, 94 Stat.2025, By the Chief Justice of the United States for the Protection of Classified Information, at ¶ 5 [hereinafter "Security Procedures"].
The Court is therefore empowered to take information regarding the background of Defense counsel in this case, gleaned from an investigation conducted by the United States Attorney's Office, and consider that information in framing a protective order that attempts to prevent disclosure of confidential information. (See Gov't Ltr. Reply Ex. B, Background Material for Chairman Boland and Chairman Rodino on the Security Procedures for the Protection of Classified Information in the Custody of the Federal Courts, at 2, appended to Letter from Chief Justice Burger to Rep. Peter W. Rodino (July 10, 1981) [hereinafter "Memo. to Boland and Rodino"] ("The purpose of ... [S]ection [5] is to make clear that it is proper for the court to receive and consider any information in the possession of the government which relates to the trustworthiness of persons associated with the defense.").)
The Moving Defendants have argued, however, that the rules do not allow the Court to direct Defense counsel to participate in any clearance process and, in addition, that use of such a compulsory procedure would be both unconstitutional and undesirable.
We are therefore presented with three questions. (1) Do the rules governing cases involving classified information permit the Court to direct counsel to apply for security clearance? (2) Is it constitutional to require counsel to utilize a process in which DOJ makes an initial recommendation as to clearance applications but that leaves final authority to resolve all clearance matters with the Court? (3) If use of this procedure is in fact permissible, should the Court direct counsel for the Moving Defendants to submit to it or, in the alternative, should the Court allow counsel to "opt out" and therefore force the United States Attorney's Office to conduct its own investigation into each attorney's background and to furnish that background information to the Court, pursuant to Section 5 of the Chief Justice's Security Procedures? There is a remarkable paucity of case law addressing these questions and they certainly appear to be matters of first impression within this Circuit.
II. Three Questions
(1) The Court's Authority to Compel Clearance
The Moving Defendants argue that the legislative history of CIPA and the circumstances surrounding Chief Justice Burger's promulgation of the Security Procedures create an inference that neither Congress nor the Chief Justice vested the Court with the authority to compel Defense counsel to undergo a DOJ-initiated security clearance procedure. We think the sounder reading of the available material indicates that although neither Congress nor the Chief Justice sought to impose a mandatory clearance requirement in all cases involving classified information, they did not attempt to foreclose resort to such a requirement in all circumstances.
CIPA and the accompanying Security Procedures create a system by which the trial court has wide latitude to impose reasonable restrictions likely to prevent the unauthorized disclosure of classified information. See, e.g., S.Rep. 96-823 (1980), reprint in 1980 U.S.C.C.A.N. 4294 ("The details of each [protective] order are fashioned by the trial judge according to the circumstances of the particular case."); Memo. to Boland and Rodino, at 2 ("The trial judge, and the trial judge alone, in *118 other words, decides what classified information the defendant is entitled to receive from the government and what provisions are to be included in a protective order."); id. at 5 ("In each instance, the trial court judge is free to make whatever decision he wishes to make with regard to defense access to classified information, and the rules in no way interfere with the judge's discretion in this regard."); Memo. to Edwards, at 3 (stating that the Court "in the exercise of its discretion," rather than the CSO, should "determine who may have access to classified materials" and "under what conditions the materials may be reviewed"); see also Gov't Br. at 23-24 (quoting Greymail Legislation: Hearings Before the Subcomm. on Legislation of the Permanent Select Comm. on Intelligence, 96th Cong. (1979) (statement of Morton H. Halperin, American Civil Liberties Union)).
The text and structure of both CIPA and the Security Procedures therefore create a presumption that the Court possesses the authority to require Defense counsel to seek security clearance before the Court will provide them with access to classified materials. Even conceding that the history surrounding enactment of these provisions is at times murky, there is simply little to support the contention that Congress or the Chief Justice acted to prohibit the courts from utilizing a clearance requirement in every circumstance. See, e.g., Memo. to Boland and Rodino, at 2 (stating that Section 5 of CIPA does not "require defense personnel to obtain security clearances" but that "an inquiry concerning defense personnel obviously may be appropriate in some cases," that "Section 5 does not attempt to define the range of inquiry that may be necessary," and offering no indication that either CIPA or the Security procedures disallow use of a clearance requirement).
We recognize that this position may appear to be at odds with the result in United States v. Jolliff, 548 F.Supp. 232 (D.Md.1981), which stated that "Section 5 [of CIPA] does not provide the Court with authority to make submission to a security clearance requirement a prerequisite to representation of a defendant in a case involving classified information." Id. at 233. A similar sentiment is expressed in United States v. Smith, 706 F.Supp. 593 (M.D.Tenn.1989), in which the Court stated that it "finds no authority in ... [S]ection [5] for requiring submission to a security clearance as a prerequisite to representation of a defendant in a case involving classified information". Id. at 596 n. 1, rev'd on other grounds, 899 F.2d 564 (6th Cir.1990). The Moving Defendants rely substantially on both decisions.
The Government distinguishes these cases on the ground that their analyses are limited to Section 5 of CIPA and make no reference to Section 3. We find the Government's reading of both decisions persuasive. We also note that the relevant clause from Jolliff may well be obiter dictum as the Government apparently did not request clearance in that case.
Even if we were to read Jolliff and Smith as holding that CIPA does not permit any clearance requirement, however, we would depart from their analyses. We simply see no indication that Congress or the Chief Justice aimed to preclude resort to compulsory clearance of counsel in all circumstances. To the contrary, both CIPA and the Security Procedures consistently leave the most sensitive questions surrounding classified information to be resolved in the sound discretion of the District Courts. We therefore conclude that our authority under the Federal Rules of Criminal Procedure, CIPA, and the Chief Justice's Security Procedures encompasses a power to require counsel to seek security clearance.
(2) The Constitutionality of Compelling Clearance
We must also evaluate whether it is consistent with the Federal Constitution to impose a clearance requirement on Defense *119 counsel in this case. The Moving Defendants have asserted that imposition of a mandatory DOJ-initiated clearance procedure violates their rights under the Sixth Amendment. Our starting point must be the Supreme Court's conclusion that the Sixth Amendment does not promise a defendant his choice of counsel but rather aims to guarantee that each criminal defendant receives an effective advocate. See Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).
In essence, the Moving Defendants' argument boils down to the claim that any DOJ-initiated security clearance procedure necessarily vests the Government with veto power over the Moving Defendants' choice of counsel and that the philosophy behind such a system is fundamentally inimical to the adversarial process. (See Def's Mem. at 9 ("Giving the Justice Department a veto power over who may serve as its opposing counsel offends the most elementary notions of fair play and impartial justice."); id. at 11 ("It is difficult to understand how there can be any serious question that giving the government the power to disqualify opposing counsel would be flatly unconstitutional.").) Although we agree that it would be flatly unconstitutional to grant the Government an unfettered ability to remove any Defendant's counsel, the facts of this case are a great distance from the parade of horribles raised by the Moving Defendants.
First, the facts do not indicate that the Government unduly delayed before requesting this procedure, such as might allow for an inference that the Government's true motivation was to harass or otherwise interfere with the Moving Defendants' pretrial preparations. The Moving Defendants argue forcefully that the Government erred by failing to advise counsel prior to appointment, or immediately thereafter, of the likely need to seek clearance. (See Young Aff. at 1.) We do not believe that the Government's conduct gives rise to a concern that the clearance requirement is designed to interfere with any counsel's ability to meaningfully represent his client.
On November 3, 1998, at the parties' first meeting, the Government advised Defense counsel "of the realistic probability that there would be classified information in the case, and that prudence dictated that they obtain security clearances to be permitted to receive such information." (Karas Aff. ¶ 9.) Two days later, the Government submitted a letter to the Court, which was also sent to counsel for each of the Defendants, summarizing the substance of this meeting. This letter contains the following passage:
The Government advised defense counsel that it is anticipated that during the litigation and trial of this matter the Government and defense counsel will have to deal with classified material in some manner.... The Government also suggested that while it is too early to have a specific conversation about how classified information may become pertinent to the litigation of this case, defense counsel may wish to apply (through the FBI) for security clearances which take some time to obtain.... [T]he Government will do whatever it can to assist in the expedited processing of security clearances for any defense counsel (or staff of the Court) seeking to obtain clearances. Given that past experience has shown that CIPA litigation can be time-consuming, it is respectfully suggested that any defense counsel who intend to seek a clearance do so promptly to avoid delay down the road when the issues crystallize.
(Karas Aff.Ex. F, Letter from Patrick J. Fitzgerald, Assistant United States Attorney, to Hon. Leonard B. Sand, at 4-5 (Nov. 5, 1998).)
In February 1999, the Government again notified counsel of the need for clearance prior to receiving classified materials: "[N]ow is a good time to remind defense counsel that it will expedite matters if counsel were to begin the process *120 now of seeking a security clearance if that particular counsel intends to press for access to classified materials." (Karas Aff. Ex. G, Letter from Patrick Fitzgerald, Assistant United States Attorney, to Hon. Leonard B. Sand, at 4 (Feb. 17, 1999).)
We believe that the Government's notifications to counsel were sufficiently prompt to eliminate any inference of purposeful delay. The Moving Defendants assert that their counsel had already invested significant time in the case by the November 3 meeting, (see Young Aff. at 1), but the litigation was plainly in its infancy at that time and we see no reason to believe that the Government's request was aimed to disrupt established relationships between counsel and their clients.
Moreover, the first superseding indictment was filed on October 7 and the Moving Defendants were arraigned the following day. This marked the first expansion of a litigation that had begun in September solely with Defendant El-Hage. At the October 8 arraignment, the Court set the case down for an initial conference on November 10. Given the extremely fluid nature of the litigation in early October, as evidenced most plainly by the changing list of Defendants, as well as the incredibly voluminous materials in the Government's possession, tens of thousands of pages of which required translation from Arabic, it is not surprising that the Government had yet to determine the precise scope of its likely discovery obligations and whether the prosecution would need to produce a significant number of classified documents.
In sum, the magnitude of the Government's investigation, the limited work Defense counsel had yet performed on behalf of their clients, and the fact that the Government advised Defense counsel about the need for clearance at the parties' first face-to-face meeting in early November, all serve to eliminate any inference that the Government purposefully delayed in requesting clearances to force a change of counsel mid-stream or for the purpose of harassment. We are simply not faced with a situation in which an eleventh hour request appears designed to disrupt counsels' preparations or to drive them from this litigation.
Second, we think the Moving Defendants overstate the danger that one of their attorneys might be arbitrarily dismissed at the behest of the prosecution. The CSO will be an officer of the Court, rather than a member of the prosecution, and will be prohibited from sharing any information regarding clearance applications, including their outcomes, with members of the prosecution.[3] The Government has also indicated that it can have outside contractors conduct the requisite background investigations, rather than FBI agents. (See Gov't Ltr. Reply. at 2 n. 1.)
Further, in the unlikely event that DOJ officials recommend that the Court deny any counsel's application for clearance, this result would be appealable both within the DOJ as well as directly to the Court. The Court will of course remain the ultimate arbiter of disputes surrounding the security clearance applications and will be available to insure both proper respect for counsels' confidentiality and that no applications are denied for improper reasons. See, e.g., United States v. Musa, 833 F.Supp. 752, 756-57 (E.D.Mo.1993) (stating that if "the CSO should determine that any person should not obtain a security clearance," the Court will "conduct an ex parte hearing to determine" that person's eligibility to see classified materials, that "[o]nly the CSO and defense counsel will be heard on this issue," and that "the prosecution will not be notified of the hearing *121 or allowed to participate in it"). Although we recognize the Moving Defendants' concern that the Government not be given the unfettered power to disqualify their present counsel, we think the procedures governing the clearance process, when combined with the Court's vigilance in responding to questions of potential abuse in the application process, will be sufficient to protect the Moving Defendants' rights.
(3) The Desirability of Compelling Clearance
The exceptional facts of this case decidedly warrant some inquiry into counsels' backgrounds to minimize the risk of the unauthorized disclosure of classified information. Counsel for the Moving Defendants conceded as much at oral argument. (See Tr. Oral Arg. At 32-36, 42.) We note that the exceptional facts alleged in the indictment also require clearance of Court personnel and members of the Government who will come into contact with classified information. The circumstances precipitating CIPA's enactment make it abundantly clear that it is easier and more effective to prevent the release of classified information in advance than to attempt to undo the damage of unauthorized disclosures after the fact. See Snepp v. United States, 444 U.S. 507, 512-13 & nn. 7-8, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980) (per curiam) (noting that unless the Government has adequate mechanisms to prevent unauthorized disclosures, potential sources of classified information may be unwilling to provide such information to the intelligence-gathering community); id. at 514-15, 100 S.Ct. 763 (stating that unauthorized disclosures might cause irreparable harm to the Government and that it may be practically impossible to seek redress against the disclosing party); S.Rep. 96-823 (1980), reprinted in 1980 U.S.C.C.A.N. 4294 (referring to a study performed by the Subcommittee on Secrecy and Disclosure of the Senate Intelligence Committee and stating that the study's "key finding ... was that prosecution of a defendant for disclosing national security information often requires the disclosure in the course of trial of the very information the laws seek to protect"); see also Exec.Order No. 12968, 60 Fed.Reg. 40,245, at preamble (1995).
The concerns are heightened in this case because the Government's investigation is ongoing, which increases the possibility that unauthorized disclosures might place additional lives in danger. In addition, the Government has alleged that the Defendants are part of a conspiracy whose members have previously gained access to unfiled court documents and forwarded those documents to other members of the conspiracy. (See Def's Mem. at 6 & n. 3.) The case therefore involves special circumstances warranting particular control over the flow of classified information, such as have already prompted the Court to impose restrictive conditions of confinement on the Defendants and which formed the basis of the protective order that the Court entered in December 1998.
Our insistence that every person who comes into contact with classified information in this litigation undergo some objective evaluation is, of course, no commentary on the reputations of the Defense counsel in this case. The fact remains that it is practically impossible to remedy the damage of an unauthorized disclosure ex post and we refuse to await the possibility of repairing what in this case might be a particularly disastrous security breach when reasonable measures could have prevented the disclosure altogether. We believe it is appropriate to require some form of clearance on the facts we have before us.
Having concluded that a clearance requirement is warranted, we must decide whether to utilize the DOJ-initiated clearance procedure or the alternative course discussed previously, by which the United States Attorney's Office would investigate counsel for the Moving Defendants and *122 advise the Court of the results.[4] The issue therefore is not "whether?" but "by whom?" the inquiry will be conducted. The Government suggests that it be done initially by the CSO, without involvement by the prosecution. Counsel for one of the Moving Defendants has suggested that it be conducted by the United States Attorney's Office without counsels' cooperation and with a report to be made in the first instance to the Court.
Aside from the Moving Defendants' philosophical objection to the DOJ-initiated procedure on the ground that it requires their counsel to participate actively in certain phases of the review, we see not a single advantage to any investigation conducted by the United States Attorney's Office. Such an inquiry would certainly be more time-consuming and expensive than the DOJ-initiated procedure and would, in all likelihood, prove more intrusive and fundamentally inconsistent with the adversarial process.
Moreover, given that it presently takes DOJ more than two months to process clearance applications, we can only surmise how long it would take the United States Attorney's Office, which does not have the same expertise in that particular area, to conduct an equally probing investigation without the underlying individual's consent. It is inescapable that such a system would require a far lengthier investigation, during which time counsel for the Moving Defendants would of course be precluded from viewing classified information.
In addition, this approach would force the Court to make clearance determinations in the first instance without the reasoned judgment of the Department of Justice, the agency with the greatest expertise in this area. We find it entirely preferable to allow experts in clearance matters who will be bound by strict rules of confidentiality to consider each counsel's application initially rather than to resort to a system whereby the Court and the United States Attorney's Office are forced to act as amateur sleuths. In the likely event that counsels' clearance applications are unremarkable, the DOJ-initiated procedure offers the very real possibility that the fewest possible individuals will learn anything whatsoever about counsels' backgrounds.
These drawbacks all pale in comparison, however, to what might happen if the United States Attorney's Office proved unable to glean sufficient information from its own investigation to satisfy the Court that counsel could properly be cleared. We would then find ourselves several more months down the road with the need for additional counsel who would themselves need to undergo a lengthy clearance procedure of some type. Regardless of whether the Government or the Moving Defendants should shoulder a larger portion of blame for the fact that the clearance question has not been litigated until this late date, (compare Karas Aff. at ¶ 9, with Young Aff. at 1-4), the fact remains that we are here. The Court will not risk delaying the trial of this matter, especially in light of the restrictive conditions of the Defendants' confinement, to utilize an entirely undesirable method of clearing Defense counsel.
Given the nature of the potential classified information and the special circumstances surrounding this case, we conclude *123 that counsel must submit to the DOJ-initiated security clearance procedure should they wish to have access to classified information. Accordingly, the Moving Defendants' motion is denied.
III. The Motion to Intervene
The request to intervene by counsel for Defendant Odeh is sparsely briefed on both sides. Defendant Odeh's original brief only alluded to counsel's personal rights and counsel made no formal request to intervene until oral argument, after all briefs had been filed. Our research has not revealed any reported case, either from within this Circuit or elsewhere, in which a court entertained a request similar to that proffered by counsel to Defendant Odeh. If there is a "typical" motion for intervention in a criminal proceeding, it would be a First Amendment request, by the news media, for access to trial records or court proceedings. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 598-99, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); United States v. Antar, 38 F.3d 1348, 1352 (3d Cir.1994).
Here, by contrast, counsel has asserted his own privacy rights. The Supreme Court has referred to two analytically distinct privacy interests: "[o]ne is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (footnote omitted). The former right, which the Second Circuit has characterized "as a right to `confidentiality,'" Doe v. City of New York, 15 F.3d 264, 267 (2d Cir.1994), is implicated here because counsel objects to being required to disclose private information. We therefore do not quarrel with counsel's assertion that, if permitted to intervene, he could assert some valid interest in not being forced to reveal certain personal information.
The presence of a valid interest, however, does not terminate our inquiry. See, e.g., Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 458, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). The Second Circuit has explained that claims for violation of a privacy right, such as that asserted by counsel, should be examined using intermediate scrutiny. See Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir. 1983); see also Eisenbud v. Suffolk County, 841 F.2d 42, 45-46 (2d Cir.1988). Under this level of review, the Court balances the competing interests of counsel and the Government and must uphold the policy if it is "substantially related to an important governmental objective," Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), or, in Second Circuit parlance, if the policy "is designed to further a substantial governmental interest and does not land very wide of any reasonable mark in making its classifications," Eisenbud, 841 F.2d at 46.
Here, there is plainly a substantial governmental objective in guarding against the unauthorized disclosure of classified information, this interest manifestly outweighs counsel's desire not to disclose personal information needed to conduct a thorough background check, and the clearance procedure presents a reasonable method for effecting the Government's legitimate goals. Cf. Barry, 712 F.2d at 1560 (stating that mandatory financial disclosure requirement imposed on certain New York City officials, employees, and candidates for office "furthers a substantial, possibly even a compelling, state interest" (emphasis added)). Moreover, and as discussed previously, the procedure contains numerous attendant security features that minimize the possibility of any subsequent disclosures by Government officials. See Nixon, 433 U.S. at 458, 97 S.Ct. 2777; Whalen, 429 U.S. at 600-02, 605-06, 97 S.Ct. 869; Eisenbud, 841 F.2d at 47; Barry, 712 F.2d at 1561.
Counsel has simply provided no authority, and we are aware of none, that would sustain his objections with respect to the clearance procedure. Any faithful balancing *124 of the relevant interests must end with the conclusion that counsel's own privacy rights are outweighed by the Government's right to protect highly classified information, the unauthorized disclosure of which could cause irreparable harm to our national security. Accordingly, counsel's motion to intervene is denied.
CONCLUSION
On the facts of this case, there can be no serious question about the need for some inquiry into counsels' backgrounds and we have no difficulty choosing between the competing methods proposed by the parties. We find unacceptable the contention of counsel for Odeh that it would be preferable for the Court to direct that an investigation of counsel be conducted but that he not be required to cooperate or give answers to specific background questions. The goal should not be to establish how time-consuming and expensive an investigation, conducted without the subjects' cooperation, might prove to be. The DOJ-initiated procedure offers a far more efficient mechanism for resolving clearance questions and it evinces a greater respect for the rights asserted in the Moving Defendants' briefs.
We have considered all of the Moving Defendants' contentions, as well as those offered by counsel for Defendant Odeh, and find them to be without merit. Accordingly, both Motions are denied.
The Court directs that the parties confer regarding possible alterations to the protective order that might more clearly spell out the highly confidential nature of counsels' clearance applications and the methods that will be undertaken to insure that no information regarding these applications is disclosed to anyone in the prosecution team. See, e.g., United States v. Musa, 833 F.Supp. 752, 756 (E.D.Mo. 1993). The Court further directs the Government to inquire about the feasibility of modifying Standard Form 86 in any ways that might minimize needless intrusion into Defense counsels' backgrounds. Although the Department of Justice may believe that every aspect of its review procedure is essential, counsel are not seeking Government employment and it is conceivable that certain portions of the clearance procedure can be modified.
Finally, the parties should confer and contact the Court with a proposed date for a conference during the week of July 12, at which time the Court can consider any outstanding issues with respect to the protective order.
SO ORDERED.
NOTES
[1] We refer to Defendants Odeh, Mohamed, and El Hage collectively as the "Moving Defendants."
[2] Section 1 of CIPA, which is codified at 18 U.S.C. app. 3 § 1, defines classified information to include "any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security."
[3] The Government did not indicate whether it would be appropriate to appoint multiple CSOs to the case: one whose sole obligation would be to process Defense counsels' security clearance applications and another who could handle all other aspects of the case, further insuring a true "fire wall" between the investigative and prosecutorial arms of the Department of Justice. We will await some input from the Government on this and related questions before entering any protective order. See infra at 124.
[4] The parties dispute the significance of the court's actions in another classified information case in the Eastern District of New York, United States v. Pappas, which are apparently unreported save for a Second Circuit decision that does not address the issues that presently concern us. See 94 F.3d 795 (2d Cir.1996). In Pappas, all defense counsel apparently sought clearance but the CSO expressed concern about one application. The Court thereafter entered a modified protective order granting that counsel access to at least some of the materials, albeit on a restricted basis. (See Karas Aff. at 9-10 n. 7; Def's Mem. at 17.) In the event that similar circumstances arise here, the Court will consider entering an amended protective order. Until that time, however, Defense counsel who wish to have access to classified information must seek clearance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2357213/ | 407 F. Supp. 2d 456 (2006)
Jeremiah BRINSON, Petitioner,
v.
Hans WALKER, Respondent.
No. 01-CV-0405.
United States District Court, W.D. New York.
January 5, 2006.
*457 *458 *459 *460 Jeremiah K. Brinson, Auburn, NY, for Petitioner.
Stephen F. Gawlik, Assistant Attorney General, Buffalo, NY, for Respondent.
DECISION AND ORDER
BIANCHINI, United States Magistrate Judge.
INTRODUCTION
Petitioner, Jeremiah Brinson ("Brinson"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court on charges of first degree robbery (N.Y. Penal Law § 160.15(3)) and third degree criminal possession of a weapon (N.Y. Penal Law § 265.02(1)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Brinson's conviction stems from the alleged robbery of Jeremy M. Gavin ("Gavin"). Gavin, the complainant and the sole witness to the crime, testified that at about 1:30 a.m. on May 28, 1997, he was walking down Main Street in the City of Geneva after leaving a local bar, the Rum Runner. T.43.[1] According to Gavin, a black man whom he did not know approached him and asked if he could spare a few dollars. T.44. Gavin stated that as he was attempting to extract a few bills from his wallet, the man grabbed at the wallet. T.45. Gavin testified that he "tried to defensively *461 push him away" but "ended up sprawled on the ground." T.45. Gavin related that the man then pulled out a razor knife, raised it up about shoulder-height, bent down, picked up the money that had fallen out of the wallet (about $60) and started to walk away. T.46-47. Gavin stated that as the man drew the knife from his pocket, a piece of paper fell out; this turned out to be Brinson's Social Security card which Gavin brought to the police station when he reported the crime. Gavin testified that he followed his assailant "for a little while" but "gave it up" because he "figured it was pretty much a lost cause" and he "didn't want to get hurt." T.48. Gavin described the person who robbed him as a black man wearing jeans, a white sweatshirt and a black baseball cap. T.52.
Shortly thereafter, Officer Mark Cirone ("Cirone") observed Brinson about one-tenth of a mile from the alleged robbery scene. Since Brinson matched the description given by Gavin, Cirone transported him to the police station where Gavin identified Brinson at a show-up identification procedure. The police found Brinson to be in possession of a razor knife which Gavin eventually identified as the knife with which he was threatened. However, Brinson did not have any money on him. Brinson's Social Security number was confirmed during the arrest procedure; it was the same number as the one on the card Gavin claimed fell out of the robber's pocket. See T.91-112.
Brinson's version of the events of that evening as told by him and his supporting witness was poles apart from Gavin's version. Defense counsel called Joel Richardson ("Richardson") who testified that on the night of the incident, he was driving around downtown Geneva with Brinson and Shawn Dunson ("Dunson"). T.126. As they passed by the Rum Runner, a "white dude" asked if he could get a ride to Pulteney Street. They agreed, and the man got into the car. According to Richardson, the man never identified himself. T.126. Richardson testified that he asked the passenger for gas money, but the man said that he did not have any. T.127. Richardson then dropped the man off and drove away. Defense counsel did not ask Richardson whether the white man to whom he had given a ride was present in the courtroom. The prosecutor then moved to have the testimony stricken in its entirety, and the court agreed. Defense counsel did not object or attempt to recall the witness. T.128.
Next, Brinson testified that as he was driving around with Richardson and Dunson, they encountered Gavin coming down the street. T.137. According to Brinson, Gavin came up to him and said, "[C]ould you hook me up with a dime bag of weed[?]" T.138. Gavin explained that he and his girlfriend had just broken up, and his "connection" was out of town. T.138. According to Brinson, Gavin got into the back seat of Richardson's car and sat next to Brinson. Brinson explained that he had taken his razor knife out of his back pocket and placed it on the car seat because he could not sit on the knife and was afraid of breaking it. T.141. Brinson testified that he used the knife, which he called a "carpet cutter" at his job at the Ramada Inn. T.141. When they got to Pulteney Street, Brinson got out of the car and put the knife back in his pocket. Gavin said he could only get a "nick" (a nickel bag) because he only had $5. At that point, Brinson became suspicious that Gavin was a "narc" and said, "[G]et away from me, man, I'm going home." T.142. Brinson then started to walk to his sister's house on Pulteney Street. According to Brinson, Gavin started following him saying, "[J]ust go half with me. . . . all I want to do is get high . . . I'm having a bad night." T.143. At that point, Brinson spied a police car *462 and was worried what the police would think if they saw a "black and white guy [sic] walking around" at that late hour. T.144. Brinson testified that Gavin, who was still following him, "made some kind of motion" to the police. Brinson said to Gavin, "[Y]ou are a narc, aren't you" and kept walking hurriedly away. T.144. Gavin then yelled after him, "[Y]ou Nigger, come here, Nigger[.]" T.145. Brinson testified that he was walking home when a police car pulled up and an officer took him into custody because he fit the description of the perpetrator of a robbery that had been reported earlier.
Brinson also testified that he had lost his Social Security card approximately one month prior to the incident, and that he had requested and been re-issued a new one because he needed identification for his job at the Ramada Inn, where he was employed at the time of the incident. T.150. Brinson claimed that he did not have the new card on his person that night. T.150-51. He also testified that the card found at the scene and introduced into evidence was the card that had been missing for a little over a month. T.174. He admitted that the card appeared to be in the same condition as when he had lost it. T.174-75.
The jury convicted Brinson of both counts of the indictment. On the robbery charge, he was sentenced to a determinate term of imprisonment of eighteen years with a five-year concurrent sentence on the criminal possession charge.
On direct appeal, the Appellate Division of New York State Supreme Court unanimously affirmed his conviction on October 1, 1999. People v. Brinson, 265 A.D.2d 879, 697 N.Y.S.2d 221 (App.Div. 4th Dept.1999). The New York Court of Appeals denied leave to appeal on December 3, 1999. People v. Brinson, 94 N.Y.2d 860, 725 N.E.2d 1097, 704 N.Y.S.2d 535 (N.Y.1999).
Represented by counsel, Brinson collaterally attacked his conviction by means of an application pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court. Counsel argued that trial counsel was ineffective in failing to demand a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), to suppress Gavin's identification of Brinson on the basis that the show-up identification procedure conducted at the police station was inherently suggestive. Counsel also argued that trial counsel should have asserted that Brinson's arrest was without probable cause; should have introduced documentation from the Social Security Administration that Brinson had requested a new Social Security Card prior to the date of the alleged robbery; and failed to properly question defense witness Joel Richardson, which led to the striking of Richardson's testimony on motion of the prosecutor. This motion was denied on January 6, 1999 without opinion in a summary order. It appears that counsel filed a notice of appeal, but apparently leave to appeal the denial of the C.P.L. § 440.10 motion was not sought.
In January 2001, represented by counsel, Brinson challenged the effectiveness of his appellate counsel in an application for a writ of error coram nobis and argued that the prosecutor's cross-examination of him was improper. This application was summarily denied by the Appellate Division on May 2, 2001. Brinson's habeas petition followed on June 7, 2001. During the petition's pendency, Brinson filed another coram nobis application on November 9, 2001; it was denied on April 26, 2002.
As grounds for habeas relief, Brinson states that he "relies on the issue's [sic] within his direct appeal dated January 14, 1998. The issue's [sic] within his C.P.L. 440.10 Motion dated December 30, 1998. *463 And the issue's [sic] within his Motion for Writ of Error Coram Nobis dated January 18, 2001. For Federal Habeas corpus review. . . ." Upon review of the foregoing pleadings, the Court concludes that Brinson has raised the following grounds for federal habeas relief: (1) improper limitation of cross-examination; (2) denial of effective assistance of trial counsel; (3) prosecutorial misconduct on summation; (4) harsh and excessive sentence and vindictive sentence; (5) insufficiency of the evidence with regard to the charge of first degree robbery; (6) and ineffective assistance of appellate counsel. Respondent answered the petition and interposed the defenses of untimeliness[2] and non-exhaustion. For the reasons set forth below, the petition is granted.
II. DISCUSSION
A. Exhaustion
Respondent raises the defense of non-exhaustion with regard to a number of Brinson's claims. In particular, respondent argues that the ineffective assistance of counsel claims and the claim of newly discovered evidence[3] brought in support of the C.P.L. § 440.10 motion are not exhausted because Brinson failed to appeal the denial of the motion and therefore did not complete one full round of state court review as to those issues. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436, 131 L. Ed. 2d 316 (1995). Respondent also contends that Brinson's claims of prosecutorial misconduct and evidentiary insufficiency are unexhausted because Brinson failed to fairly present these claims in federal constitutional terms to the state courts for review.
With respect to the C.P.L. § 440.10 claims, I note that Brinson raised the exact same claims, almost verbatim, on his earlier direct appeal. Thus, the claims raised on the C.P.L. § 440.10 motion have been through one full round of appellate review in state court: they were raised before the appellate division on direct appeal, and leave to appeal was sought with respect to them. Therefore, respondent is incorrect in its assertion that the claims are unexhausted. For some reason, in denying the C.P.L. § 440.10 motion, the county court did not rely on C.P.L. § 440.10(2)(a) which provides that a court must deny a § 440 motion when the issues raised therein were previously determined on the merits upon direct appeal. N.Y.Crim. Proc. Law § 440.10(2)(a). Had the county court done so, the claims arguably would have been procedurally defaulted. However, the county court denied them on the merits, so the Court must consider them here.
With respect to Brinson's claims of prosecutorial misconduct and insufficiency of the evidence, it is true, as respondent claims, that counsel did not explicitly cite federal law in support of his arguments. However, a habeas petitioner has a number of ways to fairly present a claim in state court without citing "chapter and verse" of the Constitution, including "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on *464 state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir.1982) (en banc); accord, e.g., Strogov v. Attorney General, 191 F.3d 188, 191 (2d Cir.1999).
Turning first to the insufficiency-of-the-evidence claim, the test for sufficiency of the evidence to support a conviction is the same under both New York and federal law. Compare Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (holding that, when evaluating a federal habeas petitioner's challenge to the sufficiency of the evidence the question for the court is "whether, 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") with People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 763, 508 N.E.2d 672 (N.Y.1987) ("For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged.") (internal citation omitted). As such, the method of analysis to be used in deciding the federal claim was readily available to the state court. Bisaccia v. Attorney Gen'l of the State of New Jersey, 623 F.2d 307, 310 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S. Ct. 622, 66 L. Ed. 2d 504 (1980). Consequently, I conclude that Brinson "fairly presented" his evidentiary insufficiency claim to the state courts. See Strogov, 191 F.3d at 193 (citing Evans v. Court of Common Pleas, 959 F.2d 1227, 1231-33 (3d Cir.1992) (citing Daye with approval and finding exhaustion where petitioner had presented a state claim of insufficient evidence to the state courts and then raised a functionally equivalent federal constitutional claim of insufficient evidence on her habeas petition)).
I likewise agree with Brinson that the prosecutorial misconduct claim is exhausted as well. Appellate counsel cited state court cases which in turn relied upon federal constitutional decisions in order to analyze a defendant's claim that the prosecutor's misconduct denied him a fair trial. See Petitioner's Appellate Brief at 18 (citing, e.g., People v. Tassiello, 300 N.Y. 425, 430, 91 N.E.2d 872 (1950)) ("Knowing, as we do, that statements, such as those now challenged, addressed to a jury by a prosecuting officer in the trial of a criminal case `are apt to carry much weight against the accused when they should properly carry none' . . .") (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935)). Indeed, New York's case law proscribing certain behavior by the prosecution is grounded in Fifth Amendment due process concerns. See, e.g., People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975) (comment of the prosecutor in summation with respect to defendant's failure to testify on her own behalf was improper and constituted constitutional error under the Fifth Amendment of the Federal Constitution and Article 1, § 6 of the New York State Constitution). I note that appellate counsel also cited People v. Crimmins, supra, in his brief. Moreover, the facts alleged by Brinson are "well within the mainstream of constitutional litigation," see Daye, 696 F.2d at 194, as petitioners *465 routinely raise similar claims of prosecutorial misconduct as grounds for habeas relief.
Respondent does not assert the defense of non-exhaustion with respect to the remainder of Brinson's claims, and indeed, they appear to be fully exhausted and properly before the Court on habeas review.
B. Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996 by the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication on the merits of his federal constitutional claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
C. Merits of the Petition
1. Ineffective assistance of trial counsel and appellate counsel
a. Legal Standard
In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a habeas petitioner must satisfy a two-part test. First, a petitioner must demonstrate that counsel's performance was so deficient that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment to the Constitution. Id. at 688, 104 S. Ct. 2052. In other words, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. Second, a petitioner must show that counsel's deficient performance prejudiced him. Id. at 694, 104 S. Ct. 2052. To establish the "prejudice" prong of the Strickland test, a petitioner must show that a "reasonable probability" exists that, but for counsel's error, the outcome of the trial would have been different. Id. at 694, 104 S. Ct. 2052. The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel's performance was inadequate. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S. Ct. 2052.
A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.1992), cert. denied, 508 U.S. 912, 113 S. Ct. 2347, 124 L. Ed. 2d 256 (1993)). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. Mayo, 13 F.3d at 533-34; Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001).
Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S. Ct. 746 (citing Jones v. Barnes, *466 463 U.S. 745, 750-54, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983)); accord, e.g., Sellan v. Kuhlman, 261 F.3d 303, 317 (2d Cir.2001) ("This process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."). The habeas court should not second-guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Jones, 463 U.S. at 754, 103 S. Ct. 3308; see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533.
b. Alleged Grounds of Trial Counsel's Ineffectiveness
Brinson contends that trial counsel was ineffective for (1) failing to demand a Wade hearing to challenge the use of the show-up identification procedure; (2) failing to demand a suppression hearing to controvert the legality of defendant's arrest and the seizure of evidence from his person; (3) failing to obtain and introduce evidence consisting of a Social Security card application; and (4) calling a witness whose testimony ultimately was stricken in its entirety. See Petitioner's Brief on Direct Appeal at 13-16.
i. Failure to demand Wade hearing
At trial, counsel did not pursue a defense of misidentification, so the issue of identification was not pertinent. In fact, Brinson never denied having had an encounter with the complainant. Rather, he took the stand at trial and testified to a different version of events-that the complainant had attempted to buy drugs from him. Brinson positively identified the complainant as the person who had tried to buy a "dime bag of weed" from him on the night of the alleged robbery. Given counsel's chosen defense strategy of disputing what actually occurred, it was reasonable for counsel to decide not to challenge the complainant's identification of Brinson.
ii. Failure to controvert the legality of the arrest
Brinson's claim that counsel was ineffective for failing to request a suppression hearing to contest the legality of his arrest is without merit. "In order to show ineffective assistance for the failure to make a suppression motion, the underlying motion must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed." United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990) (citing Kimmelman v. Morrison, 477 U.S. 365, 375-76, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)). Other than his bare assertion that his arrest was without probable cause, Brinson has never alleged on what basis counsel should have moved to suppress. In this case, it is apparent that probable cause existed to arrest Brinson: his physical appearance and clothing matched the description given by the complainant; he was found in the vicinity of the crime shortly after it had occurred; he admitted to having had an encounter with the complainant, albeit one with a different version; and his identity matched the name on the Social Security card picked by the complainant at the crime scene. Given these facts, a suppression hearing most likely would not have had a favorable outcome for Brinson.
iii. Failure to introduce evidence
Brinson claims that trial counsel was ineffective because he failed to obtain and introduce evidence that Brinson had requested *467 a new Social Security card prior to the alleged robbery. Brinson contends that this "newly discovered evidence" would have bolstered his argument that he had lost his Social Security card before the incident and therefore could not have dropped it at the scene of the crime. At trial, Brinson testified that the last time he saw his Social Security card was "probably a month before" the incident occurred. T.150. He then testified that he "went and got another one, a brand new one, made, in which that was made probably a month before this incident," because he needed new identification for his job at the Ramada Inn, where he was employed at the time of the incident. Id. Brinson denied that the Social Security card introduced into evidence was his replacement card. T.150-51.
The evidence that Brinson claims should have been introduced consists of an application to, and documentation from, the Social Security Administration ("SSA") regarding Brinson's request for a new card. In particular, there is a letter from the SSA which states that "[a] social security replacement card action was done for above [Brinson] on 5/4/97. A new card should have been received within 7-10 days from that date." This evidence could have assisted Brinson's defense, even though it was additional proof that Brinson could have received a new Social Security card by the time of the incident because it would have permitted him to argue that the lost card could have come into possession of the victim during his presence in the vehicle in which Brinson said he was riding. After all, such a theory is no more implausible than the one offered by the victim (whose credibility is subject to serious question as will be later discussed), that the card just happened to fall out of Brinson's pocket on the street-an extraordinarily coincidental piece of luck for the victim. Furthermore, Brinson's failure to produce the replacement card is insufficient to discount this omission by his trial counsel. While this Court cannot say for certain that there would have been a reasonable likelihood this evidence would have changed the outcome of his trial, and while the Court is unwilling to find that the failure to present corroborating proof that Brinson applied for a replacement card amounted to ineffective assistance of counsel, it is one of many troubling defects in Brinson's trial, which cumulatively create a substantial doubt that he received a fair trial in the circumstances.
iv. Mishandling of a witness's testimony
Brinson faults counsel for calling a witness, Joel Richardson, whose testimony was stricken in its entirety. Richardson testified that when he and Brinson were driving around town on the night of the incident, they picked up an unnamed "white dude" in front of a bar who asked for a ride. When the man was unable to contribute any gas money, Richardson dropped him off and drove away. That was the extent of Richardson's testimony, which corroborated Brinson's testimony to the extent that Brinson stated that they picked up Gavin, who is white, and gave him a ride. However, Richardson never identified the "white dude." Upon motion by the prosecutor that the evidence was not relevant, the trial court struck Richardson's testimony. Defense counsel did not object or seek to recall Richardson to the stand, which suggests that Richardson may not have been able to identify Gavin, but that it is immaterial. While the Court agrees with Brinson that defense counsel did not handle the witness in a particularly competent fashion, this Court is unwilling to conclude that it amounted to constitutionally ineffective assistance.
*468 Notwithstanding defense counsel's failure to object, the trial court should not have excluded the evidence even in the weak form introduced by counsel. First of all, "[i]t is well settled that evidence is relevant if it has any `tendency in reason to prove any material fact[.]'" People v. Mateo, 2 N.Y.3d 383, 424-25, 779 N.Y.S.2d 399, 425, 811 N.E.2d 1053 (N.Y.2004) (quoting People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808 (N.Y. 1987)). It does not matter that Richardson did not identify the victim or whether he could or could not identify the victim.[4] Rather, the mere fact that the presence of a white male in the automobile at or about the time of the incident reasonably tended to corroborate Brinson's account of the incident. By excluding such evidence, the trial court eviscerated a substantial portion of Brinson's factual defense by preventing corroboration of Brinson's testimony on this point. Such exclusion made it extremely difficult for Brinson to argue an alternative scenario and prevented his counsel from arguing the complainant's possible motive for testifying falsely. When coupled with the critical evidentiary errors committed by the trial court, the cumulative effect of these errors create a disturbing picture and a substantial doubt that petitioner received a fair trial in the circumstances.
c. Alleged grounds of appellate counsel's ineffectiveness
In his 2001 coram nobis application, Brinson's counsel argued that counsel on direct appeal was ineffective in failing to argue that the prosecutor's cross-examination was a "highly intemperate character assault" and improper. See January 2001 Application for a Writ of Error Coram Nobis at 3 et seq., attached as Exhibit A to Respondent's Reply Declaration (Docket # 20). The Appellate Division summarily rejected Brinson's arguments. I note that although appellate counsel did not raise this issue, he did present a thorough argument concerning the prosecutor's misconduct on summation.
Brinson testified to his lengthy criminal history on direct examination, and the prosecutor was entitled to attempt to impeach Brinson's credibility by inquiring into those matters on cross-examination. As to the prosecutor's cross-examination about the drug paraphernalia found on Brinson's person, Brinson offered on direct examination that the police found a "stem" (crack pipe) in his pocket, tested it and "charged him with that." T.149. When the prosecutor asked whether the stem had been used for using crack cocaine, the court sustained defense counsel's objection. T.168. The prosecutor then questioned Brinson over defense counsel's objection about where he had obtained the stem. However, the court sustained defense counsel's objection when the prosecutor asked Brinson, for the second time the name of the person who had given him the stem. T.170. Upon my review of the record, I find that the prosecutor's questioning of Brinson was overly aggressive and improper, because it appears to have created an inference, although subtle, that Brinson was covering for someone who had engaged in the sale of drugs. Such inferences, created by a prosecutor who should know better, are often slipped in with full knowledge that an objection to them will be sustained, but with the awareness *469 that they will be suggestive to the factfinder and create cumulative damage.
Although appellate counsel could have included this as another ground in support of his prosecutorial misconduct argument, it was not unreasonable for him to omit it. Brinson was not prejudiced since, in all likelihood, that additional ground would not have "tipped the scales" in his favor on direct appeal.
2. Harsh and Excessive Sentence/Vindictive Sentence
a. Vindictive Sentence
With respect to Brinson's vindictive sentencing claim, I note that the difference between the offered sentence (seven years) and the imposed sentence (eighteen years) does not make out a claim of actual vindictiveness because the judge never stated or implied that the sentence was based on Brinson's refusal of the plea offer. See Naranjo v. Filion, 2003 WL 1900867, at *10 (S.D.N.Y. Apr. 16, 2003) (denying habeas claim based on disparity between pre-trial offer of five to ten years and ultimate sentence of twenty-five to fifty years; such difference did not establish claim of actual vindictiveness because judge never suggested that sentence based on refusal of plea offer). The mere fact that the trial court, following conviction, imposed a high sentence does not, in and of itself, establish "actual vindictiveness." See id. (citing, inter alia, Corbitt v. New Jersey, 439 U.S. 212, 219, 223, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978) ("We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea. . . . We discern no element of retaliation or vindictiveness against [appellant] for going to trial. There is no suggestion that he was subjected to unwarranted charges. Nor does this record indicate that he was being punished for exercising a constitutional right. . . . There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed."); Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973); United States ex rel. Williams v. McMann, 436 F.2d 103, 106-07 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S. Ct. 1396, 28 L. Ed. 2d 656 (1971); Bailey v. Artuz, 1995 WL 684057, at *2 (N.D.N.Y. Nov. 15, 1995) ("[A] sentencing judge does not show vindictiveness . . . by sentencing a defendant who, after withdrawing his plea of guilty to a lesser offense carrying a lower penalty, has then been convicted of a more serious offense to the higher penalty authorized . . . [Petitioner] has offered no evidence of vindictive sentencing beyond the fact of the plea bargain offered to him and the actual sentence he received. . . . Therefore, [petitioner] has not made out a claim of constitutionally impermissible vindictive sentencing.")).
b. Harsh and excessive sentence
A petitioner's assertion that a sentencing judge abused his discretion in sentencing is generally not a federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir.1977) (petitioner raised no cognizable federal claim by seeking to prove that state judge abused his sentencing discretion by disregarding psychiatric reports) (citing Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948) ("The [petitioner's] sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction, much less on review of the state court's denial of *470 habeas corpus.")). A challenge to the term of a sentence does not present a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992).
Here, Brinson, a second felony offender, was convicted of one count of first degree robbery (a class B felony), and one count of third degree criminal possession of a weapon (a class D felony). See N.Y. Penal Law §§ 160.15(3), 265.02(1). He was sentenced to eighteen years on the robbery charge with a concurrent term of five years on the weapons possession charge. Under New York law, the maximum sentence for a class B felony is twenty-five years; for a class D felony, it is seven years. See N.Y. Penal Law § 70.00(2)(b), (d). Taking his second felony offender status is taken into consideration, Brinson's determinate sentence of eighteen years did not exceed the maximum sentence authorized for these offenses. See N.Y. Penal Law § 70.06(1)(a), (2), (3)(b) ("For [a second felony offender convicted of] a class B felony, the term must be at least nine years and must not exceed twenty-five years[.]"). Therefore, this claim is not cognizable on habeas review.
3. Insufficiency of the Evidence
On habeas review, a court is not permitted to "`make its own subjective determination of guilt or innocence.'" Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir.1999) (quoting Herrera v. Collins, 506 U.S. 390, 402, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993)). A conviction will be found to be supported by sufficient evidence 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.'" Dixon v. Miller, 293 F.3d 74, 81 (2d Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)) (emphasis in original). Accordingly, a habeas petitioner bears a "heavy burden" in challenging the sufficiency of the evidence supporting his conviction. Id.
Gavin, the complainant, testified that at about 1:30 a.m., he was approached on the street by a black man, who was about five feet, ten inches tall, and was wearing a white sweatshirt, blue jeans, and a black baseball cap. The man asked if Gavin could spare a few dollars. As Gavin was trying to extract a few bills from his wallet, the man attempted to grab the wallet. Gavin tried to push him away, but ended up on the ground, along with his wallet. The man pulled a razor knife out of his right-hand front pocket, raised the knife up to his shoulder, picked up the money, and walked away. At that time, Gavin retrieved a piece of paper that had fallen out of the man's pocket a Social Security card issued to Jeremiah Brinson and brought it to the police. At about 2:30 a.m., the police observed a man matching the description given by Gavin about one-tenth of a mile from the crime scene. The police picked this man up and transported him to the police station, where he identified himself as Brinson and gave his Social Security number, which happened to match the information on the card found by Gavin.
Brinson, on the other hand, testified that Gavin had asked for a ride from him and his friends Richardson and Dunson.[5] Later during the car ride, Gavin asked Brinson about buying a "dime bag of weed." After Brinson's friend dropped them off, Gavin followed Brinson, persistently asking him to buy drugs. Brinson, fearful that Gavin was a "narc," hurried away from him. Brinson explained that he used *471 the razor knife in his employment to cut carpet and that he had taken the knife out and put it on the car seat after Gavin had gotten into the automobile so as not to break the knife by sitting on it.
The jury is exclusively responsible for determining the credibility of a witness, and a habeas court may not revisit the fact-finder's credibility determinations. Marshall v. Lonberger, 459 U.S. 422, 432-35, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983); United States v. Strauss, 999 F.2d 692, 696 (2d Cir.1993). A reviewing court may not "`reassess the fact specific credibility judgments by juries or . . . weigh conflicting testimony.'" Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y.1996) (quoting Anderson v. Senkowski, 1992 WL 225576, at *3 (E.D.N.Y. Sept. 3, 1992)). Here, after hearing Brinson's judicially-truncated version of events, the jury chose to credit the prosecution witnesses' testimony and convict him. While this Court may not second-guess the factfinder by choosing Brinson's version of events over the prosecution's, see, e.g., Marshall v. Lonberger, 459 U.S. at 434, 103 S. Ct. 843 (1983) (holding that "federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"); Jackson v. Virginia, 443 U.S. at 326, 99 S. Ct. 2781 (holding that "a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume . . . that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"), I can examine the trial court's rulings that controlled the manner in which the fact-finder heard the evidence. Ordinarily, pursuant to Jackson v. Virginia, I must defer to the jury's resolution of any questions of witness credibility. Thus, if a jury entirely discredited a petitioner's testimony, and drew all inferences in favor of the prosecution in a case lacking the serious flaws I have found in this one, then I would not be permitted to say that it was irrational for them to find sufficient evidence to support the conviction. However, as will be discussed later in this opinion, while there may be sufficient evidence to convict Brinson on the trial record, insofar as what he was actually permitted to present to the factfinder, Brinson was prevented from developing his theory of the case by erroneous trial court evidentiary rulings.
4. Prosecutorial misconduct
Brinson contends that the prosecutor committed misconduct during his summation by suggesting that the petitioner had a motive to lie; making derogatory remarks about petitioner's "fancy suits"; and commenting on petitioner's failure to call a witness. See Petitioner's Appellate Brief at 10, 18-91, attached as Exhibit A to Respondent's Reply Declaration (Docket # 20). On direct appeal, the Appellate Division held that most of the alleged instances of misconduct had not been preserved for review and declined to review them as a matter of discretion in the interest of justice. People v. Brinson, 265 A.D.2d at 880, 697 N.Y.S.2d at 222 (citing N.Y.Crim. Proc. Law §§ 470.05(2), 470.15(6)(a)).[6] The court further found *472 that those instances that were preserved for review did not warrant reversal. Id.
The Supreme Court has recognized that prosecutorial misconduct may "`so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.'" Greer v. Miller, 483 U.S. 756, 765, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)). To rise to the level of a due process violation, the prosecutor's misconduct must be "`of sufficient significance to result in the denial of the defendant's right to a fair trial.'" Id. (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (in turn quoting United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976))). On habeas review, a federal court is charged with distinguishing between ordinary trial error and the type of "egregious" misconduct that amounts to a denial of constitutional due process. Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir.1990) (citing Donnelly v. DeChristoforo, 416 U.S. at 647-48, 94 S. Ct. 1868; United States v. Modica, 663 F.2d 1173, 1178-81 (2d Cir.1981) (per curiam), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)). Three factors are considered in determining whether a prosecutor's summation created "substantial prejudice": "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements.'" Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir.1998) (quoting Floyd, 907 F.2d at 355 (in turn quoting United States v. Modica, 663 F.2d at 1181)). In order for a prosecutor's comments in summation to warrant habeas relief, the "cumulative effect" of the challenged statements must have been so "inflammatory or egregious" as to "require a finding of substantial prejudice." Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir.1990) (finding that the prosecutor's improper behavior, limited as it was to the summation, did not permeate the trial, and holding that "[t]he clear evidence of guilt demonstrates that [petitioner] was not prejudiced by the prosecutor's improper remarks") (citations omitted).
Near the start of his summation, the prosecutor commented that Brinson was trying "to pull the wool over [the jury's] eyes, just as he was working on May 28th, 1997, to steal some money, to rob some money for whatever use, probably to use it to buy some cocaine in the city of Geneva." T.202. The court sustained defense counsel's objection to this improper remark. After arguing that the complainant did not have a motive to lie, the prosecutor asked, "Who had a motive to lie here? The defendant." The court overruled counsel's objection. The Appellate Division held that the prosecutor's comment that Brinson had a motive to lie was made in response to defense counsel's attack on the complainant's credibility. People v. Brinson, 265 A.D.2d at 880, 697 N.Y.S.2d at 222. The Supreme Court has recognized the so-called "invited response" rule-that in properly assessing a claim of prosecutorial misconduct, "the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." United States v. Young, 470 U.S. 1, 12-13, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985); accord Darden v. Wainwright, 477 U.S. 168, 182, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) (finding no substantial prejudice, in part because "[m]uch of the objectionable *473 content was invited by or was responsive to the opening summation of the defense"). However, the Supreme Court also made clear that the "invited response" rule was not an invitation for prosecutors to go "out of bounds." Id. As the state court noted, defense counsel argued that the complainant fabricated the story about the robbery because he was drunk and angry that Brinson had stymied him in his attempt to buy drugs. Thus, the prosecutor was not "out of bounds" in responding by arguing that Brinson, and not the complainant, had a motive to lie. As one district court has pointed out, "[c]riminal trials often involve irreconcilable testimony, and an argument that a defendant or any other witness, for that matter lied under oath is not something courts should be squeamish about." Smith v. Walsh, No. 00-CV-5672 (JG), 2003 WL 22670885, at *5 (E.D.N.Y. Oct. 20, 2003) ("[T]hat [the prosecutor] called [the petitioner] a liar in summation does not amount to misconduct warranting habeas relief.") (citing Jones v. Keane, 250 F. Supp. 2d 217, 236-37 (W.D.N.Y.2002)); see also United States v. Perez, 144 F.3d 204, 210 (2d Cir.1998) ("Prosecutors have greater leeway in commenting on the credibility of their witnesses when the defense has attacked that credibility.") (citing United States v. Perry, 643 F.2d 38, 51 (2d Cir.1981) ("[I]n light of the fact that the defense lawyers attacked the credibility and honesty of the Government's case in their closings, the Government's statements vouching for witnesses were understandable if not laudable.")).
The prosecutor then questioned whether petitioner was wearing "those nice fancy suits that he's been wearing" at trial when he committed crimes in the past and made several other sarcastic remarks about petitioner's apparel. T.202, 203, 210. The court overruled defense counsel's objections. On direct appeal, the court agreed that these "derogatory references" were "improper," but that they were "not so egregious as to deny defendant due process of law." People v. Brinson, 265 A.D.2d at 880, 697 N.Y.S.2d at 222. The Court agrees that the prosecutor's comments in this regard, taken alone, were ill-advised but not so prejudicial that they denied petitioner a fair trial. The prosecutor then asked, "Can we ever look inside the mind of this defendant, know what's going on in it? I wouldn't want to, but actions speak louder than words." The trial court sustained defense counsel's objections and struck the statement insofar as it referred to what the prosecutor wanted to do. T.213. Likewise, this statement, although improper, does not warrant reversal of petitioner's conviction.
Finally, the prosecutor stated that the defendant was "pushing a version of events in which supposedly he's out driving around with someone, one friend that came in, and his testimony was to be stricken because he couldn't identify anyone or had nothing credible to say." It appears that the prosecutor's remarks were not even true. The testimony of Richardson, about whom the prosecutor was referring, was stricken, in this Court's view improperly, based upon relevance, not on credibility. Moreover, the record is devoid of any suggestion that Richardson could not identify the complainant or even had an opportunity to identify the complainant. The prosecutor next commented, "Does the defendant bother bringing in the other person or persons he's riding around with?" T.214. The court overruled defense counsels' objection. The Appellate Division held that the comment "was merely an effort to persuade the jury to draw inferences that supported the People's position and not an impermissible effort to shift the burden of proof." *474 People v. Brinson, 265 A.D.2d at 880, 697 N.Y.S.2d at 222 (citations and internal quotation marks omitted). Though, in this Court's opinion, the decision to do so is unwise, it is settled law in this Circuit that the state may comment on a defendant's failure to call witnesses or produce evidence to support defense theories. See United States v. Bautista, 23 F.3d 726, 733 (2d Cir.1994) (citing cases). In Bautista, the prosecutor commented that "[t]he defense does not have a burden of proving anything to you but when they do make an argument to you . . . you don't have to accept it. At that point they are obligated to come forward with evidence." The Second Circuit found that although the comment was "inapt," when "considered in context" it "would not have been understood by a reasonable jury as anything more than an argument that the jury need not believe uncorroborated defense theories." Id. Further, the court in Bautista found that whatever ambiguity may have been caused by the remark with respect to the burden of proof was "undoubtedly clarified" by the court's instruction that the government bore the burden of proof as to every element and that the burden never shifted to the defendants, id.; such an instruction was given by the court at Brinson's trial.
Here, although the assistant district attorney certainly did not distinguish himself at Brinson's trial and should have refrained from making the challenged comments, I do not find that the misconduct was so egregious that it amounted to a denial of due process. This Court concedes that some of the prosecutor's remarks in fact were not improper, and the trial court sustained some of defense counsel's objections. Thus, while the prosecutor's comments did not "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process," Darden v. Wainwright, 477 U.S. at 181, 106 S. Ct. 2464 (internal quotation marks and citation omitted), this Court is disturbed by the cumulative effect of the prosecutor's remarks and the trial court errors discussed more particularly below, which this Court believes combined to deny the petitioner a fair trial.
5. Denial of Sixth Amendment Right of Confrontation
a. Analysis of Confrontation Clause Error
i. Limitation of Cross-Examination of Complainant
Brinson asserts that he was denied his Sixth Amendment right of confrontation due to the trial court's erroneous limitation of defense counsel's cross-examination of the complainant, Gavin, regarding racist remarks purportedly made by Gavin during the summer of 1997, shortly after the incident. During cross-examination, defense counsel attempted to cross-examine the complainant about his allegedly having been fired from his food service job at Perkins Restaurant for refusing to serve African-American patrons. Gavin stated that he was "not definite of the date" that he worked at Perkins, but that it was after the alleged robbery on May 28, 1997. The prosecutor objected on the ground that this line of testimony was "not relevant." The trial court agreed and did not allow defense counsel to ask Gavin whether he had been fired from Perkins. Defense counsel then asked to make an offer of proof outside the presence of the jury, and the following colloquy occurred:
The Court: Okay. Mr. Winthrop, your question, the last question of the witness, as the Court recalls, was whether or not the witness was fired from a job at Perkins in Geneva sometime after May 28th, 1997. You didn't phrase it that way, but that's *475 the Court's impression of the time-frame. . . . This Court initially sustained an objection because it had absolutely nothing to do with what happened on May 28th, 1997, to include the state of mind of the victim. Now, you tell me how you are delving into something after that and how it's relevant to the issues in the case.
Mr. Winthrop: Judge, I'm relying on . . . Richardson, Section 491 and 492, that bias, interest or hostility of a witness is not a collateral movement [sic] and may be proved in spite of the witness' denial[.] . . . We are talking about an issue of bias; and the possibility the probability, as far as we are concerned, we can demonstrate that this witness is a racist; that he, in fact, was fired from his job at Perkins at or near the time because I don't have any dates from him as to when he was working for these people, and . . . he was specifically fired because he refused to wait on black people; and as a matter of fact, he told his supervisor he's not serving any fucking Niggers. Now, that is the statement I am going to get from Mr. Gavin.
T.59. The trial court continued to focus on defense counsel's inability to narrow down the date on which Gavin allegedly was working at Perkins; defense counsel admitted that he did not know when exactly Gavin worked there but insisted that it was "sometime near the time of the incident" T.60. The court responded, "You have, to be specific." Id. The prosecutor argued that "[a]nything that happen[ed] after May 28th is not relevant." T.61. The trial judge decided that defense counsel would be allowed to question the complainant "in regards to his employment at Perkins, as to when it occurred first[.]" T.62. The court further stated that it would entertain objections with respect to that line of questioning in the event the complainant testified that he did not begin working there until after the date of the incident (May 28, 1997). T.62.
When defense counsel resumed his cross-examination, Gavin testified that he began working at Perkins in "late July" of 1997 and worked there for about "[a] month and a half[.]" T.65. He could not provide a specific start-date or end-date with regard to his employment at Perkins. Gavin testified that his duties at Perkins included washing dishes and busing tables; he denied that he was supposed to wait on customers. T.67. Gavin testified that he "very seldom" worked with Gary Cornue ("Cornue"), the assistant manager who allegedly fired him. T.67. Defense counsel was not permitted to ask on how many occasions Gavin worked for Cornue since the court sustained the prosecutor's objection on relevancy grounds. T.68.
Thereafter, defense counsel began questioning Gavin about the night of the incident, when Gavin allegedly made several racist comments to Brinson when he saw Brinson in the company of the police. T.68. Counsel asked Gavin if it were true that he yelled at Brinson, "[C]ome here, come here, Nigger." Gavin replied that it was "absolutely a lie." T.68. Gavin likewise denied that he yelled, "Nigger, Nigger" as Brinson was led away by the police. T.69. Notwithstanding his commendable but futile efforts to place this evidence before the jury, faced with those denials and the inability to use any extrinsic evidence of Gavin's alleged racial hostility, defense counsel was forced to move on to another line of questioning.
ii. Exclusion of Extrinsic Evidence of Alleged Racial Bias of Complainant
After the close of the prosecution's case, defense counsel again tried to introduce *476 evidence of the complainant's alleged racial bias and made an offer of proof to have Gary Cornue testify. The court refused to entertain the request unless defense counsel ascertained when exactly Gavin worked with Cornue at Perkins. After conferring with the witness, counsel informed the court that Gavin worked there from July 9, 1997, until August 2, 1997. T.121. The prosecutor objected to calling Cornue on the basis that any racist statements made by Gavin at Perkins were "after the fact" and there was "no showing of any racial bias whatsoever at the time of this incident." T.121. The prosecutor argued that it was "peripheral, collateral" and that if the evidence were admitted, they would have a "minitrial with respect to complainant's employment." T.122. The trial court agreed.
Defense counsel then sought to call June Orbaker ("Orbaker"), a woman who alleged that she lived with Gavin "between late May and early June." (On cross-examination, Gavin had admitted that Orbaker was an acquaintance but denied having lived with her.) According to defense counsel, Orbaker would have testified that about a month prior to trial, Gavin told her that "all the Niggers who came into Rite Aid knew that he's the one that had accused Jeremy [sic] Brinson." T.122-23. The prosecutor objected on the basis that it was "[c]ollateral, irrelevant . . . not material." T.123. The court agreed that it was "[n]ot relevant," stating that there was "no indication or innuendo . . . by defense counsel on cross examination that there [was] any change in any of [Gavin's] testimony based on any for any reason from what he first said on the 28th until the date of trial." T.123.
On direct appeal, the Appellate Division held that the limitation on defense counsel's cross-examination of the complainant was proper, but for different reasons than those on which the trial court relied:
County Court properly limited defendant's cross-examination of complainant regarding his racial bias. The proof sought to be introduced was inadmissible because it concerned the alleged general ill will of complainant and not his specific hostility toward defendant. Thus, under the circumstances of this case, the risk of confusing the jury out-weighed the probative value of the proof.
People v. Brinson, 265 A.D.2d at 880, 697 N.Y.S.2d at 222 (citations omitted).
iii. Applicable Legal Standard for Review of Confrontation Clause Errors
The Confrontation Clause "provides two types of protection for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); see also Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Of particular relevance to this case, the Supreme Court has recognized that "`the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.'" Van Arsdall, 475 U.S. at 678-79, 106 S. Ct. 1431 (quoting Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)). "[T]he right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable." Ritchie, 480 U.S. at 51, 107 S. Ct. 989 (citing United States v. Abel, 469 U.S. 45, 50, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984); Davis, 415 U.S. at 316, 94 S. Ct. 1105).
Generally speaking, the defendant's right to confront his accusers "is *477 satisfied if defense counsel receives wide latitude at trial to question witnesses." Ritchie, 480 U.S. at 51, 107 S. Ct. 989 (citation omitted). In short, the Confrontation Clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Van Arsdall, 475 U.S. at 679, 106 S. Ct. 1431 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985)) (per curiam) (emphasis in original). See also Ohio v. Roberts, 448 U.S., at 73, n. 12, 100 S. Ct. 2531 (noting that except in "extraordinary cases, no inquiry into `effectiveness' [of cross-examination] is required"). "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679, 106 S. Ct. 1431. However, in exercising its discretion in precluding or limiting, cross-examination, a court may not abuse its discretion.
In Davis v. Alaska, the Supreme Court noted that in addition to cross-examining a witness concerning a prior crime, a "more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." The Davis court further observed that "partiality of a witness is subject to exploration at trial, and is `always relevant as discrediting the witness and affecting the weight of his testimony.'" Id. (quoting 3A J. WIGMORE, EVIDENCE § 940, p. 775 (Chadbourn rev.1970)). "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id. (citing Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 1413, 3 L. Ed. 2d 1377 (1959)). Moreover, in most modern jurisdictions, proof of bias is rarely collateral and is almost always relevant. The Supreme Court has explained that
[b]ias is a term used in the "common law of evidence" to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony. The "common law of evidence" allowed the showing of bias by extrinsic evidence, while requiring the cross-examiner to "take the answer of the witness" with respect to less favored forms of impeachment.
United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984) (citing E. CLEARY, MCCORMICK ON EVIDENCE § 40, p. 89 (3d ed.1984); Hale, Bias as Affecting Credibility, 1 HASTINGS L.J. 1 (1949)). In the present case, the trial court precluded cross-examination of the complainant about whether he had been terminated from his employment at Perkins for refusing to serve African-American patrons. The court agreed with the prosecutor that the testimony was not relevant and was collateral since the complainant was not working at Perkins at the time of the alleged robbery, and that anything that happened during his employment there was "after the fact." The trial court seemed fixated on placing on defense counsel an arbitrary and unwarranted burden *478 of coming up with the precise dates of the complainant's employment at Perkins, when the complainant testified that he could not remember the precise dates. Moreover, as previously discussed, the trial court precluded Brinson from calling two extrinsic witnesses to impeach the complainant based on relevance. Then, the Appellate Division held that because the testimony did not concern the complainant's specific hostility toward Brinson, the risk of confusing the jury outweighed the testimony's probative value. Thus, unlike the trial court, the appellate court implicitly held that the evidence was relevant although ultimately inadmissible.
In Delaware v. Van Arsdall, the Supreme Court held that a defendant "states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" 475 U.S. at 680, 106 S. Ct. 1431 (quoting Davis, 415 U.S. at 318, 94 S. Ct. 1105). In Van Arsdall, the trial court "prohibited all inquiry into the possibility that Fleetwood [one of the prosecution's sixteen witnesses] would be biased as a result of the State's dismissal of his pending public drunkenness charge." 475 U.S. at 679, 106 S. Ct. 1431 (emphasis in original). By "cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony," the trial court's ruling violated petitioner's Confrontation Clause rights. Id. at 679, 106 S. Ct. 1431. Furthermore, the petitioner met his burden of proving that "[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had respondent's counsel been permitted to pursue his proposed line of cross-examination." Id. at 680, 106 S. Ct. 1431.
Similarly, in Davis v. Alaska, the petitioner was charged with stealing a safe, which was found abandoned near the home of Richard Green. Green testified at trial that he had seen Davis engaged in suspicious activity near this site on the day of the crime. Defense counsel was prevented from eliciting on cross-examination that Green was on juvenile probation for burglary both at the time of his pre-trial identification of Davis and at the time of trial. The defense sought to imply that Green may have slanted his testimony in the prosecution's favor "either to shift suspicion away from himself or to avoid revocation of probation for failing to `cooperate.'" 415 U.S. at 310-11, 94 S. Ct. 1105.
With these precedents in mind, I turn to the question of whether the Appellate Division unreasonably applied clearly established Supreme Court precedent in holding that defense counsel's cross-examination of the complainant concerning his racial hostility was properly limited because the excluded testimony concerned the complainant's general ill will and was not directed at the petitioner specifically. Although to some it may be a close question, in the end, the Court must conclude that a clear error of constitutional magnitude resulted from the trial court's ruling. Even though the petitioner here was not wholly prohibited from questioning the complainant about his potential racial prejudice, unlike the defendants in Davis and Van Arsdall, the limitations placed on his cross-examination by the trial court completely prohibited petitioner from challenging the complainant's denials during the *479 earlier portions of his cross-examination[7] and rendered defense counsel's effort to show the virulent prejudice allegedly exhibited by the complainant meaningless. Had defense counsel been permitted to pursue his proposed line of cross-examination, a "reasonable jury might have received a significantly different impression of [the complainant's] credibility[.]" Van Arsdall, 475 U.S. at 680, 106 S. Ct. 1431. Had I been presiding over Brinson's trial, I unequivocally would have permitted defense counsel to pursue questioning the complainant about his allegedly having been fired for refusing to serve black patrons. Then, upon the complainant's denial of such a circumstance, I would have permitted defense counsel to call the manager of the restaurant as well as the former girlfriend of the complainant to testify regarding their knowledge of the complainant's alleged racism.
It is true that the issue on habeas review is not whether I, in my independent judgment, conclude that the relevant state-court decision applied clearly established federal law "erroneously or incorrectly." Williams v. Taylor, 529 U.S. at 411, 120 S. Ct. 1495. Rather, to be "unreasonable," the state court's application of federal law must reflect "[s]ome increment of incorrectness beyond error," although that "increment need not be great." Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)). I am compelled to find such incorrectness in this case. In my view, there is an increment of incorrectness "beyond error" and I find that it is significant. First of all, it is without question that the evidence of racial prejudice was admissible. It appears that the Appellate Division conceded its relevance when it shifted ground and justified the exclusion of the evidence on the basis that it would "confuse" the jury because the testimony failed to specify Brinson as the target of the complainant's prejudice. I do not find such a requirement to be efficacious. I fail to see how impeachment of a virulently racist complainant could cause jury confusion-generalized racism toward one race certainly could allow a jury to infer logically and reasonably that such strong prejudice against one race possessed by an individual could motivate that person to act specifically against a member of that race.
Secondly, in addition to prohibiting cross-examination of the complainant about his conduct at the restaurant from which he was allegedly terminated on the basis that it was collateral, the trial court believed that it failed to show racial prejudice at the time of the alleged crime. Common sense would dictate that if a witness denied under oath that he called a defendant a "nigger," impeaching evidence that he suffered a termination of employment rather than agree to serve black people would raise critically serious questions about his credibility. At the same time, it would provide persuasive evidence of a motive to fabricate. This Court knows of no precedent requiring proof of state of mind of motive requiring that such state of mind coincide with a crime or a fabrication. Motive for fabricating a story might not be immediately apparent and might only reveal itself sometime after the fact. The complainant's conduct would logically suggest that he possessed a deep-seated, long-standing racial hatred that surely was not formed only in the approximately two months following the alleged *480 robbery, but existed for some time prior to the alleged robbery. Nevertheless, this was for the jury to evaluate, not the trial court. This was unquestionably relevant evidence, which any trier of fact could have understood without confusion. So persuasive is evidence that an individual would rather suffer an employment termination than surrender his racial hatred or, for that matter, even just conceal it, that its exclusion deprived the defendant of critical evidence that could have allowed the trier of fact to conclude that the complainant fabricated the robbery accusation. When coupled with the striking of the entire testimony of Richardson, the only witness the petitioner had to corroborate his version of the facts surrounding his encounter with the complainant, the trial court erected an unfair wall of such constitutional dimension as to require a grant of Brinson's petition. Moreover, defense counsel's own inconsistent efforts and the numerous instances of prosecutorial misconduct, while not in themselves a basis for overturning Brinson's conviction, cumulatively added to the unfairness of the trial. A new jury might or might not convict Brinson at a new trial; but whatever its findings, it should only do so after viewing and judging this contest on a level playing field.
b. Harmless error analysis
I have found that the trial judge improperly curtailed cross-examination so as to have violated Brinson's confrontation rights. I am obligated to examine whether habeas relief would not be warranted because any error would have been harmless. The Supreme Court has explained that when a reviewing court finds error under the Confrontation Clause, it should not reverse automatically but should instead apply harmless-error analysis. Van Arsdall, 475 U.S. at 683, 106 S. Ct. 1431 (holding that Davis v. Alaska does not support an automatic reversal rule). The Supreme Court has articulated two different tests for determining whether an error may be overlooked by reason of its harmlessness. Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004). In Brecht v. Abrahamson, the Court held that on collateral review of a state conviction, an error will be found to be harmless if it did not have a "`substantial and injurious effect or influence in determining the jury's verdict.'" 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). In Chapman v. California, the Supreme Court held that on direct review of a criminal conviction, an error may be overlooked only if it is "harmless beyond a reasonable doubt." 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Following the passage of AEDPA, the Second Circuit repeatedly has questioned whether the "applicable test on habeas review of a state conviction remains the one set forth in Brecht, or instead should be a determination whether the state court's decision was contrary to, or involved an unreasonable application of Chapman," but has declined to decide the question because it concluded that the result was the same under either test. Brown, 355 F.3d at 91 (internal quotation marks and citations omitted); accord, e.g., Howard v. Walker, 406 F.3d 114, 124 (2d Cir.2005); Benn v. Greiner, 402 F.3d 100, 105 (2d Cir.2005); Cotto v. Herbert, 331 F.3d 217, 253 (2d Cir.2003); Ryan v. Miller, 303 F.3d 231, 254 (2d Cir.2002); Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.), cert. denied, 534 U.S. 886, 122 S. Ct. 197, 151 L. Ed. 2d 139 (2001); Loliscio v. Goord, 263 F.3d 178, 185 n. 1 (2d Cir.2001). The Second Circuit settled at least a part of this question by holding in Gutierrez v. McGinnis that "when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must *481 evaluate whether the state unreasonably applied Chapman." 389 F.3d 300, 306 (2d Cir.2004) (emphasis supplied).
Here, however, the issue of harmless error was never reached in the state courts because the Appellate Division found that no constitutional error had been committed at Brinson's trial. See People v. Brinson, 265 A.D.2d at 880, 697 N.Y.S.2d at 222. The Second Circuit has yet to decide the harmless error standard to apply where, as here, the state courts did not engage in harmless error review. See Gutierrez, 389 F.3d at 306 ("We do not presently reach the issue of whether or how to apply Brecht where the state court has not engaged in harmless error review, as, of course, those facts are not before us.") (footnote omitted); see also Benn, 402 F.3d at 105 (post-Gutierrez case declining to decide the harmless error standard to be applied "in the absence of a state court adjudication of harmlessness"). It therefore remains an "open question" in this Circuit which harmless error standard should be applied under these circumstances. E.g., Benn, 402 F.3d at 105 (citing Rosa v. McCray, 396 F.3d 210, 226 (2d Cir.2005) (Straub, J., concurring in part and dissenting in part)).
As the Supreme Court has recognized, proving that a trial error was harmless under the Brecht standard is "less onerous" than proving that a trial error was harmless under Chapman. See Brecht, 507 U.S. at 637, 113 S. Ct. 1710; accord, e.g., Gutierrez, 389 F.3d at 303; Benn, 402 F.3d at 105 (noting that the Chapman standard is "more defendant-friendly") (citations omitted). As a result, if the state were able to carry its burden of proving that the error committed at trial was harmless under the more stringent Chapman standard, it certainly could carry its burden of proving harmlessness under Brecht's more lenient standard. Benn, 402 F.3d at 105 (citing Gutierrez, 389 F.3d at 305) (noting that "Chapman is considerably more generous to prejudiced defendants than is Brecht" since "Chapman, after all, requires a reviewing court to be convinced beyond a reasonable doubt that the error was harmless, while Brecht requires a reviewing court to identify a substantial and injurious effect on the verdict") (footnote omitted).
When presented with a Confrontation clause error, "[t]he correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless. . . ." Van Arsdall, 475 U.S. at 684, 106 S. Ct. 1431; accord, e.g., Benn, 402 F.3d at 105-06. The principal factors to be considered in assessing the effect of the error are the importance of the witness's testimony; whether that testimony was cumulative; the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; the extent of cross-examination otherwise permitted; and the strength of the evidence against the defendant. Van Arsdall, 475 U.S. at 684, 106 S. Ct. 1431 (citations omitted).
The damage to Brinson's case by the trial court rulings cannot be overemphasized. On the strength of only one witness an alleged virulent racist and the only witness to the alleged crime available to the prosecution Brinson was convicted of robbery and then sentenced to eighteen years in prison. Although, as discussed above, there was some cross-examination concerning the witness' bias in that defense counsel was permitted to question the complainant about racist epithets he allegedly had used on the night of the incident, the cross-examination was rendered meaningless because Brinson was prevented from asking the foundational *482 question as to whether the complainant had ever suffered a termination from employment for refusing to wait on black people. Compounding this error was the trial court's refusal to allow any impeachment witnesses to contradict the complainant's denials of his alleged use of racial epithets and his termination from employment due to his expressions of racial hostility, as counsel was permitted to do under applicable law.
As discussed above, although the evidence introduced at trial may have been sufficient to convince a rational trier of fact of Brinson's guilt-a hurdle that was not terribly difficult to scale given the trial court's evidentiary rulings-the proof against him was not overwhelming. There was physical evidence linking Brinson to the crime-namely, the razor knife and the Social Security card, but the complainant easily could have observed the razor knife consistent with Brinson's version of the facts as Brinson had testified that it was visible while the complainant was inside the automobile. Although we may never know the true story concerning the Social Security card, the jury should have had the opportunity to evaluate Gavin's version of how he found the card in light of the significant issues surrounding his credibility; the jury might very well have rejected his story that he found the card laying on the street. Had the jury been permitted to hear the evidence concerning the complainant's alleged racial hostility, there is a reasonable likelihood that it would have decided that the complainant was not credible and could have accepted Brinson's version of the encounter between the two. Thus, the Van Arsdall factors compellingly support a finding that Brinson's trial was marred by serious errors by the trial court in preventing the petitioner's efforts to effectively cross-examine the allegedly racially hostile complainant and to introduce impeachment evidence to demonstrate that the complainant was untruthful in denying his racial hostility.
In sum, this is a case in which only two people know the truth. There were no witnesses to the alleged crime other than the petitioner and the complainant. The "damaging potential," Van Arsdall, 475 U.S. at 684, 106 S. Ct. 1431, of the most important cross-examination and extrinsic evidence to impeach was not only limited, but precluded entirely. Had the cross-examination been "fully realized," id., it would have had a substantial chance of affecting the trial's outcome. This is because the excluded testimony would have provided additional, compelling proof from which the jury could infer that the complainant was a racist, under the facts of this case. The jury likely would have determined first, that the complainant was lying when he testified that he did not call Brinson a "nigger" as the police were apprehending him, and second, that the complainant had a motive to fabricate the robbery because of his extreme racial hostility. Thus, the prohibited line of questioning could have done "[s]erious damage to the strength of the State's case." Davis v. Alaska, 415 U.S. at 319, 94 S. Ct. 1105. In short, the Confrontation Clause error cannot said to be harmless under either the Chapman or Brecht standard: Not only has Brinson shown that the Confrontation Clause error had a substantial and injurious effect on the verdict, see Brecht, supra, I am convinced beyond a reasonable doubt that the error was not harmless, see Chapman, supra.
CONCLUSION
Jeremiah Brinson's petition for a writ of habeas corpus is granted based on petitioner's claim that his Confrontation Clause rights were violated by the trial court's decision to preclude cross-examination of the complainant concerning his alleged *483 racial hostility. The prisoner shall be released unless within sixty (60) days the state commences prosecution. This decision is stayed until all appellate proceedings are completed and a final mandate is received by this court.
No certificate of appealability is granted with respect to Brinson's remaining claims, petitioner having made no substantial showing of the denial of a constitutional right. Brinson is reminded that he may seek a certificate of appealability on these claims from the Court of Appeals for the Second Circuit.
IT IS SO ORDERED.
NOTES
[1] Citations to "T.__" refer to the trial transcript.
[2] In its memorandum of law, respondent makes no argument regarding the alleged untimeliness of Brinson's habeas petition. The Court has reviewed the relevant documentation and concludes that Brinson timely filed his petition. See also Docket # 6.
[3] Based upon this Court's reading of the papers submitted, it appears that the claim of newly discovered evidence actually was not brought as a stand-alone claim but rather as one of the grounds for petitioner's ineffective assistance of counsel claim, raised both on direct appeal and in support of the C.P.L. § 440.10 motion.
[4] Richardson might not have had an opportunity to identify the complainant at trial, since it is doubtful he was in the courtroom at the time of Richardson's testimony. It would have been better practice for defense counsel to have asked the trial court that a photograph of the complainant be shown to the witness or that an in-court identification take place, but the record is devoid of such effort.
[5] The third passenger, Dunson, did not testify at trial.
[6] Arguably, the state court's reliance a state procedural rule to reject some of Brinson's claims of prosecutorial misconduct creates a procedural default. See Fernandez v. Leonardo, 931 F.2d 214, 215 (2d Cir.1991) (citing N.Y.Crim. Proc. Law § 470.05(2)). However, respondent has failed to raise the affirmative defense of procedural default and thereby has waived it. See Larrea v. Bennett, 2002 WL 1173564, at *12 n. 15 (S.D.N.Y. May 31, 2002) (citing Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir.1999)) ("[S]tate-court procedural default . . . is an affirmative defense, and . . . the state is `obligated to raise procedural default as a defense or lose the right to assert the defense thereafter.'") (quoting Gray v. Netherland, 518 U.S. 152, 165-66, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996)). Accordingly, the Court will consider all of Brinson's claims of prosecutorial misconduct on the merits.
[7] As discussed above, Brinson testified that the complainant on the night of the incident twice called him a "nigger." Defense counsel questioned the complainant about these statements on cross-examination, but the complainant denied making them. As discussed above. Brinson should have been permitted to collaterally attack complainant's denials. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2343014/ | 212 F. Supp. 2d 828 (2002)
In re STARLINK CORN PRODUCTS LIABILITY LITIGATION
Marvin Kramer, et al., Plaintiffs,
v.
Aventis CropScience USA Holding, Inc., et al., Defendants.
MDL No. 1403, No. 01 C 4928.
United States District Court, N.D. Illinois, Eastern Division.
July 11, 2002.
*829 *830 *831 *832 *833 Adam J. Levitt, Wolf, Haldenstein, Adler, Freeman & Herz, LLC, Chicago, IL, David A.P. Brower, Daniel W. Krasner, Katherine B. DuBose, Wolf, Haldenstein, Adler, Freeman & Herz, LLC, New York City, Melvyn I. Weiss, Robert A. Wallner, Milberg, Wiess, Bershad, Hynes & Lerach, LLP, New York City, Herbert E. Milstein, Michael D. Hausfeld, Richard S. Lewis, Cohen, Milstein, Hausfeld & Toll, PLLC, Washington, DC, Stephen A. Weiss, Christopher A. Seeger, Seth A. Katz, Stuart P. Slotnick, Seeger Weiss, LLP, New York City, for Plaintiffs.
Edward M. Crane, Deborah F. Solmor, Skadden, Arps, Slate, Meagher & Flom (Illinois), Chicago, IL, Sheila L. Birnbaum, Katherine Armstrong, Skadden, Arps, Slate, Meagher & Flom, LLP, New york City, Jeffrey E. Stone, Cathy McNeil Stein, McDermott, Will & Emery, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
MORAN, Senior District Judge.
This controversy arises from the discovery of genetically modified corn in various food products. Plaintiffs Marvin Kramer, Mitchell and Claude Corbin, Corbin Farms LLC, Clint Killin, Charles Dupraz, William Furlong, Jemar, Inc., Marvin Luiken, Keith Mudd, Edward Olsen, Gerald Greiger, Verlon Ponto, Jon Untiedt, David Christoffer, Alan Roebke, Mica Schnoebelen, Joseph and Ardene Wirts, Southview Farms, Dennis and Donald Olsen, Gordon Stine, Don Sutter, and Bartt McCormack d/b/a Buford Station Farms allege that defendants Aventis CropScience USA Holdings, Inc. (Aventis) and Garst Seed Company (Garst) disseminated a product that contaminated the entire United States' corn supply, increasing their costs and depressing corn prices. Before us are fifteen separately filed cases, consolidated here for pretrial purposes by the Panel for Multidistrict Litigation. See 28 U.S.C. § 1407. Plaintiffs have filed a 57-count master second amended consolidated class action complaint, alleging common law claims for negligence, strict liability, private nuisance, public nuisance and conversion on behalf of a nationwide class of corn farmers against Garst, and on behalf of ten statewide classes against Aventis, as well as statutory claims against Aventis under the Tennessee Consumer Protection Act of 1997, Tenn.Code Ann. §§ 47-18-101 et seq., and the North Carolina Unfair Trade Practices Act, N.C. Gen.Stat. § 75-1.1 (1999). Defendants filed a motion to dismiss, arguing that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136 et seq., preempts plaintiffs' state law claims, that the economic loss doctrine bars any recovery, and that the complaint fails to state a claim under any of plaintiffs' purported legal theories. For the following reasons, defendants' motion to dismiss is granted in part and denied in part.
BACKGROUND
Aventis[1] genetically engineered a corn seed to produce a protein known as Cry9C *834 that is toxic to certain insects. The seeds are marketed under the brand name StarLink. Garst is a licensee who produced and distributed StarLink seeds. Aventis applied to register StarLink with the EPA, which is responsible for regulating insecticides under FIFRA, 7 U.S.C. §§ 136 et seq. The EPA noted that Cry9C had several attributes similar to known human allergens, and issued only a limited registration, permitting StarLink use for such purposes as animal feed, ethanol production and seed increase, but prohibiting its use for human consumption. Consequently, segregating it from non-StarLink corn, which was fit for human consumption, became of utmost importance. A little background about normal practices for cultivating, harvesting and distributing corn demonstrates the extensive steps necessary to prevent StarLink corn from entering the food supply.
Corn replicates by the transfer of pollen from one corn plant to another, including cross-pollination from one breed to another. Once airborne, corn pollen can drift over considerable distances, meaning that different corn varieties within a farm, and from neighboring farms, regularly cross-breed. With few exceptions, there are not procedures in place to segregate types of corn. Different corn breeds within an individual farm are commingled at the harvesting stage. Corn from hundreds of thousands of farms is then further commingled as it is gathered, stored and shipped through a system of local, regional and terminal grain elevators. Elevators, storage and transportation facilities are generally not equipped to test and segregate corn varieties. The commingled corn is then marketed and traded as a fungible commodity.
In light of these general practices in the corn industry, the EPA required special procedures with respect to StarLink. These included mandatory segregation methods to prevent StarLink from commingling with other corn in cultivation, harvesting, handling, storage and transport, and a 660-foot "buffer zone" around StarLink corn crops to prevent cross-pollination with non-StarLink corn plants. The limited registration also made Aventis responsible for ensuring these restrictions were implemented, obligating it (a) to inform farmers of the EPA's requirements for the planting, cultivation and use of StarLink; (b) to instruct farmers growing StarLink how to store and dispose of the StarLink seeds, seed bags, and plant detritus; and (c) to ensure that all farmers purchasing StarLink seeds signed a contract binding them to these terms before permitting them to grow StarLink corn.
StarLink was distributed throughout the United States from approximately May 1998 through October 2000. The limited registration initially limited StarLink cultivation to 120,000 acres. In January 1999, Aventis petitioned the EPA to raise this limit to 2.5 million acres. The EPA agreed, subject to an amended registration that required Aventis to
(a) inform purchasers (i.e. "Growers") at the time of StarLink seed corn sales, of the need to direct StarLink harvest to domestic feed and industrial non-food uses only;
(b) require all Growers to sign a "Grower Agreement" outlining field management requirements and stating the limits on StarLink corn use;
(c) deliver a Grower Guide, restating the provisions stated in the Grower Agreement, with all seed;
(d) provide all Growers with access to a confidential list of feed outlets and elevators *835 that direct grain to domestic feed and industrial uses;
(e) write to Growers prior to planting, reminding them of the domestic and industrial use requirements for StarLink corn;
(f) write to Growers prior to harvest, reminding them of the domestic and industrial use requirements for StarLink corn;
(g) conduct a statistically sound follow-up survey of Growers following harvest, to monitor compliance with the Grower Agreement.
Over this 29-month period, StarLink cultivation expanded from 10,000 acres to 350,000 acres.
In October 2000, after numerous reports that human food products had tested positive for Cry9C, a wave of manufacturers issued recalls for their corn products. On October 12, 2000, Aventis, at EPA's urging, applied to cancel the limited registration, effective February 20, 2001. Fear of StarLink contamination nonetheless continues to affect corn markets. Many U.S. food producers have stopped using U.S. corn, replacing it with imported corn or corn substitutes. South Korea, Japan and other foreign countries have terminated or substantially limited imports of U.S. corn. Grain elevators and transport providers are now mandating expensive testing on all corn shipments.
Plaintiffs allege that the widespread StarLink contamination of the U.S. corn supply is a result of defendants' failure to comply with the EPA's requirements. Aventis did not include the EPA-mandated label on some StarLink packages, did not notify, instruct and remind StarLink farmers of the restrictions on StarLink use, proper segregation methods and buffer zone requirements, and did not require StarLink farmers to sign the obligatory contracts. Prior to the 2000 growing season Aventis allegedly instructed its seed representatives that it was unnecessary for them to advise StarLink farmers to segregate their StarLink crop or create buffer zones because Aventis believed the EPA would amend the registration to permit StarLink use for human consumption. In July 2001, however, an EPA Scientific Advisory Panel reaffirmed its previous position on StarLink's allergenic qualities. Further, the FDA has declared StarLink to be an adulterant under the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq.
DISCUSSION
Fed.R.Civ.P. 8(a)(2) only requires "a short and plain statement of the claim showing that the pleader is entitled to relief." When deciding a Rule 12(b)(6) motion we must assume the truth of all well-pleaded factual allegations, making all possible inferences in the plaintiff's favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994). We will dismiss a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
I. Preemption
FIFRA, 7 U.S.C. §§ 136 et seq., regulates the use, sale and labeling of pesticides such as the Cry9C protein found in StarLink corn. The EPA approved StarLink's label and issued a limited registration for it to be distributed. Defendants argue that FIFRA preempts plaintiffs' state law claims.
FIFRA does not preempt all state laws respecting pesticides. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 614, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991). The statute expressly authorizes states to regulate pesticide use. 7 U.S.C. § 136v(a). But it also prohibits states from imposing any labeling requirements *836 beyond those imposed by the EPA. 7 U.S.C. § 136v(b).
The Supreme Court has made clear that "requirements" includes both positive law, in the form of statutory and regulatory obligations, and any common law standards which could give rise to civil damages. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992) (interpreting preemption clause in Public Health Cigarette Smoking Act of 1969, 15 U.S.C. §§ 1331-1340). FIFRA uses nearly identical language to the Cigarette Act, and its preemptive effect is equivalent. Shaw v. Dow Brands, Inc., 994 F.2d 364, 370-71 (7th Cir.1993).[2] FIFRA therefore preempts any claims based on the inadequacy of StarLink's label or defendants' failure to warn StarLink farmers.
Moreover, plaintiffs cannot avoid preemption by artful pleading. We must scrutinize their allegations to ensure that they are not disguised failure-to-warn claims. See, e.g., Grenier v. Vermont Log Buildings, 96 F.3d 559, 564 (1st Cir.1996). If a claim amounts to a constructive challenge to the EPA-approved label, FIFRA preempts it. Courts have, however, recognized certain types of claims as falling outside of FIFRA. See, e.g., Worm v. American Cyanamid Co. (Worm I), 970 F.2d 1301, 1308 (4th Cir.1992) (state remedy for failure to comply with EPA requirements); Lowe v. Sporicidin Int'l, 47 F.3d 124, 130 (4th Cir.1995) (off-label representations inconsistent with the label); New York State Pesticide Coalition v. Jorling, 874 F.2d 115, 119 (2d Cir.1989) (failure to warn third parties); National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 609 (8th Cir.1999) (design defects). Portions of the complaint implicate each of these, so we discuss them in turn.
First, plaintiffs allege that defendants sold StarLink seeds without the EPA-required label, and otherwise failed to comply with the limited registration's terms. There is no federal private right of action to redress FIFRA violations. Only the EPA has standing to enforce it. No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.2001). FIFRA does not, however, prevent states from creating civil remedies for violating the federal standard. See, e.g., Lowe, 47 F.3d at 128; MacDonald v. Monsanto, 27 F.3d 1021, 1024 (5th Cir.1994). The statute only prohibits additional requirements, not identical ones. 7 U.S.C. § 136v(b). Although potential civil liability obviously increases the manufacturer's incentive to comply, if the state is merely adopting as its standard of care that which is already required under federal law, no additional obligation is imposed.[3] FIFRA, therefore, does not preempt plaintiffs' negligence per se claims.
Next, plaintiffs assert that defendants made voluntary statements regarding StarLink beyond those on the EPA-approved label that contributed to the contamination. Claims based on off-label representations are preempted if they merely reiterate information contained in the label. Lowe, 47 F.3d at 130. They are not preempted, however, to the extent the representations *837 substantially differ from the label. Id.[4] The complaint alleges that Aventis instructed seed representatives to tell farmers that StarLink was safe for human consumption and that the EPA was going to issue a tolerance for Cry9C in food products. Such statements directly contradict the approved label and therefore fall within Lowe.
Plaintiffs also advance the theory that defendants failed to adequately inform those who handled corn further down the distribution chain, e.g., grain elevator operators and transport providers, of the required warnings. Courts have noted the distinction between failure to warn the initial purchaser and failure to warn third parties.
FIFRA "labeling" is designed to be read and followed by the end user. Generally it is conceived as being attached to the immediate container of the product in such a way that it can be expected to remain affixed during the period of use.... By contrast, the target audience of the [state] notification program is those innocent members of the general public who may unwittingly happen upon an area where strong poisons are present, as well as those who contract to have pesticides applied.
New York State Pesticide Coalition, 874 F.2d at 119; see also Mortier, 501 U.S. at 603, 111 S. Ct. 2476 (upholding regulation requiring placards be posted to notify third parties of pesticide use). Parties who handle StarLink corn down the supply chain will not see the label on the original seed bag and, consequently, will not know that a particular batch of corn is unfit for human consumption and must be segregated and handled differently. States can reasonably require that pesticide manufacturers share the same EPA-approved warnings with parties beyond the immediate purchaser. Similar to permitting state causes of action for directly violating FIFRA, because the state standard here would mirror the federal one in substance, it does not interfere with the EPA's prerogative with respect to labeling and does not constitute an additional requirement.
Finally, plaintiffs allege that StarLink corn is a defective product. They assert that, as currently designed, StarLink cannot be safely used for its intended non-food purposes because it will inevitably commingle and cross-pollinate with the food supply. The EPA's approval of a product's FIFRA label does not constitute a finding or an endorsement that its design is safe. See generally Jeffers v. Wal-Mart Stores, Inc., 171 F. Supp. 2d 617, 623-24 (S.D.W.Va.2001). Here we must be careful to determine whether their allegations are really challenging the product design, which is permissible, or effectively challenging the accompanying warnings, which would be preempted. The test most frequently articulated is, when confronted with a type of harm, would the manufacturer change the design or the label to prevent its recurrence? Worm v. American Cyanamid Co. (Worm II), 5 F.3d 744, 747-48 (4th Cir.1993).
Defendants' failure to prevent commingling has nothing to do with StarLink's design. Plaintiffs acknowledge that, although it is not the general practice, there are means to segregate types of corn such that they maintain their identity.[5] It is a *838 matter of ensuring that everyone who handles the corn adheres to certain procedures. Confronted with commingling, a manufacturer would more likely change the warnings than the design. This constitutes a failure to warn, not a design defect, and therefore FIFRA preempts it.
The allegations regarding StarLink's tendency to cross-pollinate with non-StarLink corn can be read two ways. One is that defendants should have known that the 660-foot buffer zone was insufficient to prevent cross-pollination. The 660-foot requirement was incorporated in the limited registration and would have been communicated to farmers by the EPA-approved label. A state standard of care demanding more than a 660-foot buffer would be an additional requirement in the form of a different warning. FIFRA preempts such a claim.
It is also possible to view plaintiffs' cross-pollination charge as asserting that no buffer zone could prevent it. The theory posits that, given the way corn reproduces, cross-pollination between corn targeted for non-food uses and corn intended for the human food supply is inevitable. Defendants, therefore, had a duty to design insect-resistant corn such that it is fit for human consumption use a protein that is safer than Cry9C. This still attacks the label because it is premised on the idea that the buffer zone warning was not sufficient to prevent cross-pollination. The EPA approved the label with the knowledge that StarLink was unfit for human consumption. It deemed the 660-foot buffer zone an adequate warning to preserve the integrity of the food supply. Plaintiffs' defect claims implicitly challenge this warning and are therefore preempted.
In summary, plaintiffs may proceed on the theory that defendants (1) violated duties imposed by the limited registration; (2) made representations to StarLink growers that contradicted the EPA-approved label; and (3) failed to inform parties handling StarLink corn downstream of the EPA-approved warnings.
II. Economic Loss Doctrine
This rule limits the types of damages plaintiffs may recover in tort. Physical injuries to persons or property are compensable; solely economic injuries are not. The difficult question is defining what constitutes an "economic" injury.
Although there is some variation at the margins among jurisdictions, they all recognize the same basic policy. For example, Illinois defines economic losses as
damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits without any claim of personal injury or damage to other property ... as well as the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.
Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69, 61 Ill. Dec. 746, 435 N.E.2d 443, 449 (1982). Wisconsin, by comparison, states:
Economic loss is generally defined as damages resulting from inadequate value because the product "is inferior and does not work for the general purposes for which it was manufactured and sold." It includes both direct economic loss and consequential economic loss. The former is loss in value of the product itself; the latter is all other economic losses attributable to the product defect.
Daanen & Janssen, 573 N.W.2d at 845 (citations omitted); see also Determan v. Johnson, 613 N.W.2d 259, 262 (Iowa 2000); Northwest Ark., Masonry, Inc. v. Summit Specialty Products, Inc., 29 Kan. App. 735, 31 P.3d 982, 987 (2001); Lloyd F. Smith *839 Co. v. Den-Tal-Ez, Inc., 491 N.W.2d 11, 15 (Minn.1992); Groppel Co. v. United States Gypsum Co., 616 S.W.2d 49, 55 n. 5 (Mo. Ct.App.1981); National Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782, 332 N.W.2d 39, 42 (1983); Steiner v. Ford Motor Co., 606 N.W.2d 881, 883 (N.D. 2000); Diamond Surface, Inc. v. State Cement Plant Comm'n, 583 N.W.2d 155, 161 (S.D.1998); McCrary v. Kelly Technical Coatings, Inc., 1985 WL 75663 at *3 (Tenn.Ct.App.1985). The recurring theme is that economic losses are about disappointed commercial expectations.
The classic case involves the purchase of a defective product.[6] The suit seeks compensation for the cost of repairing or replacing the product, and profits lost due to the product being out of service. See, e.g., Seely v. White Motor Co., 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (1965) (en banc) (lost profits due to defective delivery truck); Rardin v. T & D Machine Handling, Inc., 890 F.2d 24 (7th Cir.1989) (broken printing press). The rule includes a product that is of inferior quality, that fails to work for the general purpose for which it was manufactured, or that does harm to itself if a product breaks down it is really just another form of the product failing to fulfill its expected performance. Purchasers who want to insure against these failures are free to negotiate those terms, or they may choose to forego these protections in exchange for a discounted price. In any event, parties can allocate the risks according to their own preferences. It is only when the product harms a person, or some property other then the product itself, that tort law provides a remedy.
The doctrine derives its origin from Justice Traynor's opinion in Seely, supra. The primary policy concerns are:
(1) to maintain the fundamental distinction between tort law and contract law; (2) to protect commercial parties' freedom to allocate economic risk by contract; and (3) to encourage the party best situated to assess the risk of economic loss, the commercial purchaser, to assume, allocate, or insure against that risk.
Daanen & Janssen, 573 N.W.2d at 846. In describing the distinction between contract and tort, the Wisconsin court observed: "The law of contracts is designed to effectuate exchanges and to protect the expectancy interest of parties to private bargained-for agreements.... Tort law is rooted in the concept of protecting society as a whole from physical harm to person or property." Id. Whenever plaintiff's losses can be characterized as failing to receive the benefit of one's bargain, contract (including any warranty or uniform commercial code protections) is the only remedy.
Although the concept is rooted in freedom-of-contract theory, privity of contract is generally not required. Daanen & Janssen, 573 N.W.2d at 849; Northwest Ark. Masonry, 31 P.3d at 988; Anderson Elec., Inc. v. Ledbetter Erection Corp., 115 Ill. 2d 146, 104 Ill. Dec. 689, 503 N.E.2d 246, 249 (1986).[7] If this were not *840 so, then manufacturers would become liable for economic expectations of secondary purchasers. Daanen & Janssen, 573 N.W.2d at 849. It also extends the rule to litigants who were both involved in a multiparty transaction but did not have any direct contractual relationship. Nigrelli Sys., Inc. v. E.I. DuPont de Nemours and Co., 31 F. Supp. 2d 1134 (E.D.Wis.1999). The fact that plaintiffs had no viable contract remedy did not entitle them to recover in tort. We note, however, that in both scenarios the purchasers had an opportunity to negotiate warranty terms with someone from the secondary seller or through some form of indemnity arrangement.
Another class of cases where courts typically invoke the economic loss doctrine are the so-called "bridge" cases, or, as we will describe them, "access" cases.[8] In an access case plaintiffs seek compensation for profits lost because the alleged tort prevented customers from reaching their businesses. The paradigm case involves a bridge or road closure. See, e.g., Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124 (Iowa 1984) (bridge providing access to plaintiffs' businesses closed due to defective steel); Dundee Cement Co. v. Chemical Labs., Inc., 712 F.2d 1166 (7th Cir.1983) (road accessing plaintiff's plant closed due to chemical spill). But the same principle applies any time a business seeks compensation for potential customers being unable to access their premises. See, e.g., In re Chicago Flood Litigation, 176 Ill. 2d 179, 223 Ill. Dec. 532, 680 N.E.2d 265 (1997) (flooding to neighboring stores forced merchants whose stores were not physically invaded by water to close).
Although they are nominally under the same economic loss rule, there are really some different policy issues driving the doctrine in access cases. The usual concerns about interfering with contract law and the parties' freedom to allocate risks are not present because there is no contractual relationship. The parties are typically strangers and, with no foreknowledge of each other's activities, had no opportunity to assess and allocate risks ex ante. What these cases share in common with traditional economic loss doctrine jurisprudence is the lack of property damage. Moreover, because the only harms alleged were profits lost due to customers' inability to access the premises, these damages fit neatly within the rubric of "disappointed commercial expectations." Courts also emphasize the speculativeness and potential magnitude of damages in access cases. Lost profits are frequently speculative because we cannot predict potential customers' behavior to a sufficient degree of certainty. And the tort's effects on plaintiffs are not qualitatively different from the effects on society at large. In theory, any bridge or road closing affects everyone to some extent by eliminating one potential travel route. Given the unbounded group of potential plaintiffs, damages would be limitless. So, although the original policy bases for the economic loss doctrine are not present, because of the type of injury, these cases seem to fit, at least linguistically, within the economic loss doctrine.
The corollary to the economic loss rule is that it does not bar claims for injuries to other property, or claims alleged in combination with non-economic losses. Daanen & Janssen, 573 N.W.2d at 845. The question then becomes defining "other property." First, plaintiffs cannot rely on harm to property belonging to other people to show a non-economic injury. *841 They must have an ownership interest in the property. Northridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 471 N.W.2d 179, 183 (1991). Second, courts have uniformly held that if a defective part of a product harms the rest of the product, that does not constitute "other property." The product still harmed itself, and nothing else. See Cooperative Power Ass'n v. Westinghouse Electric Corp., 493 N.W.2d 661 (N.D.1992). A majority of courts have gone a step further, holding that if a product is integrated into a single system, other parts of that system do not constitute "other property." See Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 198 (8th Cir.1995) (Missouri law) (no recovery for lost data because defective part integrated into computer system); Transport Corp. of Amer. v. IBM Corp., 30 F.3d 953, 957 (8th Cir.1994) (Minnesota law) (same); Trans States Airlines v. Pratt & Whitney Canada, Inc., 177 Ill. 2d 21, 224 Ill. Dec. 484, 682 N.E.2d 45, 58 (1997) (engine integrated into airplane frame); Northwest Ark. Masonry, 31 P.3d at 987 (cement mix integrated into wall); Midwhey Powder Co. v. Clayton Indus., 157 Wis. 2d 585, 460 N.W.2d 426, 429 (App. 1990) (steam generators integrated into turbines). The modern trend is to focus on ex ante expectations. If the damage is of a type that the buyer could have foreseen resulting from the product failing to perform, it does not constitute harm to other property.
[T]he distinguishing central feature of economic loss is ... its relation to what the product was supposed to accomplish. For example, if a fire alarm fails to work and a building burns down, that is "economic loss" even though the building was physically harmed; but if the fire is caused by a short circuit in the fire alarm itself, that is not economic harm.
Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 106 (Iowa 1995), quoting Fireman's Fund Am. Ins. Cos. v. Burns Elec. Security Serv., 93 Ill.App.3d 298, 48 Ill. Dec. 729, 417 N.E.2d 131, 133 (1st Dist. 1981); see also Dakota Gasification Co. v. Pascoe Bldg. Sys., 91 F.3d 1094, 1099 (8th Cir.1996) (North Dakota law); Trinity Indus., Inc. v. McKinnon Bridge Co., 77 S.W.3d 159, 173 n. 1 (Tenn.Ct.App.2001), appeal denied (Apr. 29, 2002). Minnesota has gone the furthest, holding that merchants cannot recover in tort for any property damage caused by the defective product. Hapka v. Paquin Farms, 458 N.W.2d 683, 688 (Minn.1990).[9]
Non-StarLink corn crops are damaged when they are pollinated by StarLink corn. The pollen causes these corn plants to develop the Cry9C protein and renders what would otherwise be a valuable food crop unfit for human consumption. Non-StarLink corn is also damaged when it is commingled with StarLink corn. Once mixed, there is no way to resegregate the corn into its edible and inedible parts. The entire batch is considered tainted and can only be used for the domestic and industrial purposes for which StarLink is approved. None of that supply can ever be used for human food.
There are at least four different points along the supply chain at which StarLink could have entered the food corn supply, all of which are consistent with the complaint: (1) plaintiffs unknowingly purchased seed containing the Cry9C protein, i.e. their suppliers' inventory had been contaminated; (2) plaintiffs' crops were contaminated by pollen from StarLink corn on a neighboring farm; (3) plaintiffs' *842 harvest was contaminated by commingling with StarLink corn in a transport or storage facility; and (4) food manufacturers commingled the corn within their raw material storage or processing activities.[10] The first situation would fall within the economic loss doctrine. Plaintiffs could have negotiated contractual protection from their suppliers and simply did not get what they had bargained for. In the fourth, plaintiffs would have suffered no harm to their property because the corn was commingled after they had relinquished their ownership interest in it. Scenarios 2 and 3, however, present viable claims for harm to their crops.
The StarLink situation does not fit neatly into traditional economic loss doctrine analysis. Plaintiffs here had no commercial dealings with defendants or defendants' customers. This is more than a lack of direct privity, and not a situation where a party could have negotiated warranty or indemnity protection and chose not to. Plaintiffs had no opportunity to negotiate contractual protection with anyone. Still, as the access cases aptly demonstrate, the economic loss doctrine has grown beyond its original freedom-of-contract based policy justifications. Farmers' expectations of what they will receive for their crops are just that, expectations. Absent a physical injury, plaintiffs cannot recover for drops in market prices. Nor can they recover for any additional costs, such as testing procedures, imposed by the marketplace. But if there was some physical harm to plaintiffs' corn crop,[11] the lack of a transaction with defendants affects what will be considered "other property." Assuming plaintiffs did not buy corn seeds with the Cry9C protein, it cannot be said that a defective part of their crop injured the whole, that a defective product was integrated into a system or that the harm to their crop was a foreseeable consequence of the seeds' failure to perform. These facts are distinguishable from Hapka, 458 N.W.2d at 688 (holding farmer who purchased diseased seeds could not recover for harm to rest of crop). Plaintiffs' seeds, as purchased, were adequate. The StarLink contaminant was wholly external.
Nor does the StarLink controversy present the unlimited or speculative damage concerns common in access cases. There are a finite number of potential plaintiffs only non-StarLink corn farmers who can claim injury. This may be a sizeable group, and the damages may be tremendous, but the fact that defendants are alleged to have directly harmed a large number of plaintiffs is not a defense. StarLink's effects on commercial corn farmers are distinct and qualitatively different from society at large. And damages are easily measured through price changes because corn is a regularly traded commodity with a readily measurable market. Further, as discussed above, the contamination of plaintiffs' corn supply is a physical injury.
To the extent plaintiffs allege that their crops were themselves contaminated, either by cross-pollination in the fields or by commingling later in the distribution chain, they have adequately stated a claim for *843 harm to property. Once plaintiffs have established this harm they may be entitled to compensation for certain economic losses. See, e.g., Schiltz v. Cullen-Schiltz & Assoc., 228 N.W.2d 10, 21 (Iowa 1975) (holding plaintiff who established tangible harm may also recover cleanup costs because they are an integral part of direct property damage); Dundee Cement Co., 712 F.2d at 1170 (noting recovery of lost profits permitted where plaintiff's property was physically injured). But we caution that proving direct harm to their own property is a predicate to any recovery. We leave for another day the question of what, if any, consequential damages they may also collect, and now turn to the substance of plaintiffs' claims.
III. Negligence
Defendants challenge three separate elements: duty, proximate cause and damages. Although cast in terms of a balance between foreseeability, reasonableness and public policy, the essence of their argument is remoteness any effect StarLink may have had on corn markets is too far removed from defendants' conduct. Defendants contend that the causal relationship involved six distinct steps: (1) the EPA approved the registration for Cry9C; (2) seed companies incorporated the StarLink technology into seed corn; (3) growers purchased StarLink seeds; (4) the StarLink seeds/corn was handled in such a way as to allow cross-pollination and commingling; (5) the tainted corn was introduced into the mainstream corn supply, leading to food product recalls; and (6) the discovery of StarLink in the main food supply hurt corn prices.
In presenting their version of the causal chain, however, defendants have imposed their own construction on the complaint. On a motion to dismiss we must not only accept plaintiffs' version, but also any set of facts consistent with it. First, defendants' argument used their own characterization of Aventis' role, or lack thereof, in bringing StarLink to market. Aventis denies any involvement in numerous steps leading to the widespread StarLink contamination. This is a simple factual dispute. The complaint plainly alleges that Aventis (or its predecessors) were involved in developing and licensing StarLink. Moreover, it alleges that pursuant to the limited registration Aventis was responsible for monitoring and enforcing compliance by StarLink farmers. For now we must accept plaintiffs' version of Aventis' involvement in introducing StarLink into the food supply.
We must also collapse defendants' purported chain from the other end. Although they attempt to characterize the complaint as asserting some remote duty to preserve the market price of corn, the duty alleged is to prevent contamination. The effects on corn markets are merely a way to measure the damages. As we discussed above, we read the complaint to allege direct harm to plaintiffs' corn. Defendants are correct that the complaint does not make this charge specifically, but it is a set of facts that is consistent with plaintiffs' allegations about the impact on the corn system as a whole. At this stage of litigation we must construe this ambiguity in plaintiffs' favor.
Presuming Aventis' more active involvement with StarLink, and presuming further that the latter physically harmed plaintiffs' corn, the chain becomes substantially shorter. Aventis had a duty to ensure that StarLink did not enter the human food supply, and their failure to do so caused plaintiffs' corn to be contaminated.
Lastly, Aventis argues that even if plaintiffs suffered direct harm to their corn, its SES program would fully compensate them. Plaintiffs have alleged otherwise, and for now, that is sufficient.
*844 IV. Conversion
Conversion is defined as "an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel." Restatement (Second) of Torts § 222A. Plaintiffs argue that defendants' role in contaminating the corn supply amounts to a conversion of their property. We disagree.
The defining element of conversion, the one that distinguishes it from a trespass to chattels, is the extent of interference with the owner's property rights. If the damage is minor, in duration or severity, plaintiff may only recover for the diminished value. But if the damage is sufficiently severe, plaintiff may recover full value. Conversion is akin to a forced judicial sale. The defendant pays full value for the chattel, and receives title to it. Restatement § 222A comment c. Here, plaintiffs have not alleged that defendants destroyed their crops or deprived them of possession. Plaintiffs retained possession and still had total control over the corn. Most, if not all of it, was ultimately sold to third parties. The only damages were a lower price, for which plaintiffs could be compensated without forcing a sale.
It is possible to convert a chattel by altering it, without completely destroying it. In particular, commingling fungible goods so that their identity is lost can constitute a conversion. Restatement § 226 comment e. To do so, however, the perpetrator must alter the chattel in a way that is "so material as to change the identity of the chattel or its essential character." Restatement § 226 comment d. At worst, StarLink contamination changed plaintiffs' yield from being corn fit for human consumption to corn fit only for domestic or industrial use. Plaintiffs do not claim they were growing the corn to eat themselves, but for sale on the commodity markets. The crops were still viable for the purpose for which plaintiffs would normally use them, for sale on the open market. That the market had become less hospitable does not change the product's essential character. As above, the severity of the alteration is indicated by the decrease in market price. This could arguably constitute a trespass to chattels, but does not rise to the level of conversion.
Lastly, negligence cannot support a conversion claim. It requires intent. Restatement § 224. The complaint alleges that defendants did not take adequate precautions to ensure that StarLink corn was adequately segregated. Nowhere do plaintiffs claim that defendants intentionally commingled StarLink and non-StarLink corn, or deliberately contaminated the food supply. Even if defendants negligently failed to prevent cross-pollination and commingling, they would not be liable for conversion.
V. Nuisance
A. Private
The complaint alleges that defendants created a private nuisance by distributing corn seeds with the Cry9C protein, knowing that they would cross-pollinate with neighboring corn crops.[12] "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment *845 of land." Restatement (Second) of Torts § 821D. We agree that drifting pollen can constitute an invasion, and that contaminating neighbors' crops interferes with their enjoyment of the land. The issue is whether defendants are responsible for contamination caused by their product beyond the point of sale.
Defendants argue that they cannot be liable for any nuisance caused by StarLink because they were no longer in control of the seeds once they were sold to farmers. But one can be liable for nuisance "not only when he carries on the activity but also when he participates to a substantial extent in carrying it on." Restatement § 834. Plaintiffs maintain that defendants' design of the StarLink technology, distribution of the seeds and, most importantly, their failure to fulfill their EPA-mandated duties, constitutes substantial participation.
The paradigm private nuisance case involves a suit between two neighboring landowners, one of whom alleges that the other's activities are somehow interfering with the first's enjoyment of the land. Suing the manufacturer of the product that the neighbor was using appears to be an extension of nuisance law into an area normally regulated by product liability. But there is precedent for such an application under certain circumstances, and it does fit within the definition of a nuisance.
Looking first at state law from the jurisdictions in question, we find that three have stretched nuisance liability particularly broadly. A Wisconsin court has gone so far as holding that a purchaser can state a nuisance claim directly against a manufacturer. Northridge Co. v. W.R. Grace & Co., 205 Wis. 2d 267, 556 N.W.2d 345 (App.1996) (finding asbestos constituted a nuisance). Applying the longstanding rule that "one who has erected a nuisance will be responsible for its continuance, even after he has parted with the title and the possession," Lohmiller v. Indian Ford Water-Power Co., 51 Wis. 683, 8 N.W. 601, 602 (1881), the court held that "manufacturers can be liable for a nuisance long after they relinquish ownership or control over their polluting products." Northridge, 556 N.W.2d at 352.
An Illinois court has also taken a broad view of nuisance, sustaining a public nuisance claim against gun manufacturers. Young v. Bryco Arms, 327 Ill.App.3d 948, 262 Ill. Dec. 175, 765 N.E.2d 1 (1st Dist. 2001). The court relied extensively on language in a gun case from this district, Bubalo v. Navegar, Inc., 1998 WL 142359 (N.D.Ill. Mar.20, 1998).[13] Both cases emphasized that plaintiffs had alleged malfeasance on the part of the manufacturers, in the form of intentionally marketing their products to appeal to criminals. Id. at *4; Young, 262 Ill. Dec. 175, 765 N.E.2d at 14. In doing so, they distinguished a Seventh Circuit case holding a chemical manufacturer not liable for chemicals released from a customer's facility because "[t]he uncontested record shows that when alerted to the risks associated with [the chemicals], [the manufacturer] made every effort to have [the customer] dispose of the chemicals safely." City of Bloomington v. Westinghouse Electric Corp., 891 F.2d 611, 614 (7th Cir.1989) (Indiana law), quoted in Bubalo, 1998 WL 142359 at *4 n. 2. Bubalo posited:
Suppose, however, that [the manufacturer] had not taken steps to alert customers of the risks of the product, or intentionally marketed the product to customers who it knew or should have known would dispose of [it] in a manner *846 that would harm the environment. Nothing in the opinion in City of Bloomington would preclude the imposition of liability on the manufacturer under those facts.
1998 WL 142359 at *4, quoted in Young, 262 Ill. Dec. 175, 765 N.E.2d at 14. In sustaining the nuisance claim the Illinois court found that the allegation of wrongdoing by the manufacturer "suggested a degree of participation not present in City of Bloomington and `within the meaning of [the] phrase [`to a substantial extent'] in the Restatement § 834.'" Young, 262 Ill. Dec. 175, 765 N.E.2d at 14 (edits in original, citations omitted).
Most analogous to the case at bar, in Page County Appliance Center, Inc. v. Honeywell, Inc., 347 N.W.2d 171, 177 (Iowa 1984), the Iowa Supreme Court explicitly rejected an argument identical to the one raised by defendants here. Plaintiff there alleged that radiation emanating from a neighbor's computer, manufactured by defendant, was affecting appliances in its store. Defendant maintained that it could not be liable for the nuisance because it had sold the computer to the neighbor and was no longer in control of the instrument. The court noted that the manufacturer had an ongoing contract to service and maintain the computer and, therefore, arguably had the ability to abate the nuisance. Relying on Restatement § 834, the court rejected defendant's lack-of-control argument, holding that "[the manufacturer's] material participation was a question of fact." Id.
Defendants point to a number of cases rejecting similar nuisance claims, particularly asbestos and gun cases. None is an authoritative state decision from the jurisdictions involved here.[14] There are three federal cases interpreting relevant states' law, but they are all asbestos cases, which we distinguish below, and in jurisdictions where the state courts have not considered the central question of whether a manufacturer can be liable for a nuisance caused by its product beyond the point of sale. See Tioga Public School Dist. No. 15 v. United States Gypsum Co., 984 F.2d 915, 920 (8th Cir.1993); Appletree Square 1 Ltd. v. W.R. Grace & Co., 815 F. Supp. 1266, 1274 n. 13 (D.Minn.1993); County of Johnson v. United States Gypsum Co., 580 F. Supp. 284, 294 (E.D.Tenn.1984).[15]
This brings us to the case at bar, which is much closer to mainstream nuisance doctrine than either the asbestos or gun cases. In the asbestos cases, the plaintiffs had themselves purchased the product, consented to having it installed on their property and then sued the manufacturer when it turned out to be harmful. There was no invasion of a neighboring property and plaintiffs had exclusive access to the nuisance-causing agent. Here, plaintiffs did not purchase StarLink seeds, and have alleged that pollen from neighboring farms did enter their premises.[16]*847 Aside from the presence of an invasion, the fact that the alleged nuisance occurred on another's property means that, unlike asbestos purchasers, plaintiffs had no ability to access or control the nuisance themselves. In the gun cases, manufacturers successfully argued that they should not be held responsible for third parties' intentional misuse of their products. Here, however, plaintiffs have not alleged that StarLink farmers defied the manufacturers' instructions, but rather that the instructions themselves violated the EPA's mandates. Moreover, the gun cases alleged a public nuisance and did not implicate plaintiffs' ability to enjoy land or anyone's unreasonable use of land. Private nuisance jurisprudence has always focused on the use and enjoyment of land. See generally, City of St. Louis v. Varahi, Inc., 39 S.W.3d 531, 536 (Mo.Ct.App.2001). Plaintiffs here have alleged that they are unable to enjoy the profits of their land (selling food corn), because of an unreasonable activity on neighboring land (growing StarLink corn).
Another critical factor here is the impact of the limited registration, which negates many of the concerns courts have expressed about holding manufacturers liable for post-sale nuisances. For example, they emphasized that the manufacturers did not have any control over how the purchasers had used their products, or any access to abate the nuisance. See Detroit Bd. of Ed., supra. Aventis, on the other hand, had an affirmative duty to enforce StarLink farmers' compliance with the Grower Agreements. This arguably gave Aventis some measure of control over StarLink's use, as well as a means to abate any nuisance caused by its misuse. This mirrors Page County Appliance Center, supra, where the court found the manufacturer's ongoing service contract with the purchaser gave defendant enough access and control to create a question of fact as to its contribution to the nuisance. Aventis' duties under the limited registration were, by comparison, even more extensive. Similarly, defendants' failure to give StarLink farmers the warnings mandated by the limited registration, and (ultimately incorrect) representations that StarLink need not be segregated because the EPA was going to approve it for human consumption, are also arguably the type of culpable conduct relied upon in Young, 262 Ill. Dec. 175, 765 N.E.2d at 14.
In summary, of the states involved here Iowa, Wisconsin and Illinois have all held a manufacturer liable for a nuisance related to its product beyond the point of sale. See Page County Appliance Center, supra, Northridge, supra, Young, supra. Federal courts applying Minnesota, North Dakota and Tennessee law have declined to do so without any substantial discussion of the merits. See Tioga Public School Dist., supra; Appletree Square, supra; County of Johnson, supra. We have found no cases on point from Kansas, Missouri, Nebraska or South Dakota. The lack of state precedent matching these precise facts does not preclude us from applying widely accepted Restatement law to new factual situations. Residue from a product drifting across property lines presents a typical nuisance claim. All parties who substantially contribute to the nuisance are liable. The unique obligations imposed by the limited registration arguably put Aventis in a position to control the nuisance. On a motion to dismiss we may not speculate whether the as yet undeveloped facts will constitute substantial contribution. To the extent the allegations comport with our preemption analysis above, they do state a valid claim for private nuisance.
*848 B. Public
Plaintiffs also assert that StarLink's contamination of the general food corn supply constitutes a public nuisance. Beyond defendants' argument that they lacked control over the alleged nuisance, discussed above, they assert that plaintiffs cannot establish special harm. At the outset, we note the limited depth of review courts typically undertake on a motion to dismiss a public nuisance claim. "The pleading requirements are not strenuous because the `concept of common law public nuisance elude[s] precise definition.' ... The unreasonableness of the defendant's actions and the substantialness of the right invasion, which lead to the determination of nuisance, are questions of fact for the jury." Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 199 Ill. Dec. 189, 633 N.E.2d 985, 993 (1st Dist.1994) (citations omitted).
To state a claim, plaintiffs must allege "an unreasonable interference with a right common to the general public." Restatement § 821B(1). The Restatement sweeps broadly in defining a "public right," including "the public health, the public safety, the public peace, the public comfort or the public convenience." Restatement § 821B(2)(a). Contamination of the food supply implicates health, safety, comfort and convenience, and certainly satisfies this permissive standard.
To state a private action for public nuisance, plaintiffs must also demonstrate that they have been harmed differently than the general public. Restatement § 821C. The harm must be of a different type, not merely a difference in severity or imposing a disproportionate share of the burden on plaintiffs. Among the Restatement's specific examples are physical harm to chattels, § 821C comment d, and pecuniary loss to businesses, § 821C comment h. Both are present here.
The closest analogy and most pertinent discussion is in Burgess v. M/V Tamano, 370 F. Supp. 247, 250 (D.Me.1973). There, commercial fisherman alleged that an oil spill harmed local waters and marine life. The court found that although fishing the waters was a right of the general public, it affected commercial fishermen differently because they depended on it for their livelihood. This was consistent with "the general principle that pecuniary loss to the plaintiff will be regarded as different in kind `where the plaintiff has an established business making commercial use of the public right with which the defendant interferes....'" Id., quoting Prosser, Law of Torts, § 88 at 590 (4th ed.1971). Here, plaintiffs are commercial corn farmers. While the general public has a right to safe food, plaintiffs depend on the integrity of the corn supply for their livelihood.
Defendants maintain that because plaintiffs purport to represent a group so numerous as a nationwide class of corn farmers, their damages cannot be considered special or unique. But the special damages requirement does not limit the absolute number of parties affected so much as it restricts the types of harm that are compensable. Class actions and special damages are not mutually exclusive. See, e.g., Burgess, 370 F.Supp. at 251 (sustaining public nuisance claims by two classes and dismissing a third based on the types of harm alleged). Commercial corn farmers, as a group, are affected differently than the general public.
VI. North Carolina Unfair Trade Practices Act
Plaintiffs next allege that Aventis' handling of StarLink violated the NCUTPA, N.C. Gen.Stat. § 75-1.1. Like many other states, the North Carolina legislature left the definition of deceptive trade practices purposefully vague, with the intention that courts construe it broadly. *849 Johnson v. Phoenix, 300 N.C. 247, 266 S.E.2d 610, 620 (1980). The dispute here, however, is not over whether any particular practice is illegal under the statute, but the statute's geographic reach. None of the named plaintiffs is from North Carolina. Nor does the complaint allege that any of them conduct business in North Carolina. Although the proposed nationwide class would certainly include North Carolina residents, it is axiomatic that the named plaintiffs must show personal injuries to state a claim and cannot rely on harm to unnamed class members. Lewis v. Casey, 518 U.S. 343, 357, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).
Defendants argue that the North Carolina statute only applies to instate harms. To apply the statute extra-territorially, they contend, would offend the federal Constitution's due process and full faith and credit clauses. Plaintiffs, on the other hand, characterize this as nothing more than a choice-of-law problem. Because Aventis is headquartered in North Carolina, they reason, the unfair practices are likely centered there. Applying the "most significant relationship" rule, North Carolina's trade practice law should apply.[17] So long as the conduct affects North Carolina commerce at all, plaintiffs maintain, even out-of-state injuries are compensable. These positions oversimplify matters. It is possible for a state to constitutionally regulate in-state conduct that has out-of-state effects. See, e.g., Avery v. State Farm Mutual Automobile Ins. Co., 321 Ill.App.3d 269, 254 Ill. Dec. 194, 746 N.E.2d 1242, 1254-55 (5th Dist.2001). The question is whether the NCUTPA does so. On the other hand, even if conflicts rules would choose North Carolina law, whether plaintiffs have stated a claim under the North Carolina statute is a separate issue. So, before tackling any constitutional or choice-of-law problem, we examine the statute itself.
The NCUTPA states, in relevant part:, "(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful. (b) For purposes of this section, `commerce' includes all business activities, however denominated." N.C. Gen.Stat. § 75-1.1. This language reflects a 1977 amendment that removed the phrase "within this state," leaving the text without any geographic limitations. North Carolina courts have addressed neither the impact of this amendment, nor the NCUTPA's extraterritorial reach in general. Looking to local federal courts' interpretations, we find two distinct characterizations. The amendment extended the statute "to the limits of North Carolina's long-arm statute," Broussard v. Meineke Discount Muffler Shops, Inc., 945 F. Supp. 901, 917 (W.D.N.C.1996), or "to the full extent permissible under conflicts of law principles and the Constitution." Hardee's Food Sys., Inc., v. Beardmore, 1997 U.S. Dist. LEXIS 9671 at *7 (E.D.N.C. June 6, 1997). This disparity has led, in turn, to disagreement about whether the statute requires an instate injury. See, e.g., `In' Porters, S.A. v. *850 Hanes Printables, Inc., 663 F. Supp. 494, 501 (M.D.N.C.1987) (requiring substantial effect on in-state business operations); Hardee's Food Sys., Inc., v. Beardmore, 1997 U.S. Dist. LEXIS 9671 at *8-9 (E.D.N.C. June 6, 1997) (no in-state injury requirement).
Plaintiffs, relying on Hardee's, argue that `In' Porters is no longer good law. In fact, Hardee's is the only opinion we have found that rejects `In' Porters' reasoning, whereas several other decisions have expressly endorsed it. See, e.g., Broussard, 945 F.Supp. at 917; Merck & Co. v. Lyon, 941 F. Supp. 1443, 1463 (M.D.N.C.1996); Dixie Yarns, Inc. v. Plantation Knits, Inc., 1994 WL 910955 at *2-3 (W.D.N.C. July 12, 1994). Because these are co-equal district courts (interpreting state law), we consider them each as persuasive authority. Notably, the only court outside of North Carolina to consider this issue relied on `In' Porters, and it did so after Hardee's. See Lithuanian Commerce Corp. v. Sara Lee Hosiery, 47 F. Supp. 2d 523, 537 (D.N.J.1999).
In construing this statute, the `In' Porters court looked to external sources. First, it sought to harmonize the NCUTPA with North Carolina's long-arm statute, N.C. Gen.Stat. § 1-75.4(4), which allows personal jurisdiction in cases involving foreign acts only if an injury occurs within North Carolina and the party was in, or had products in, North Carolina commerce at the time. 663 F. Supp. at 501. Second, it looked to the standards for applying the federal Sherman Act extraterritorially, which require that the foreign acts have a substantial effect on plaintiff's domestic operations. Id., citing Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973) (Sherman Act decisions instructive in determining the full reach of North Carolina's unfair trade act). Both analogies suggested that plaintiffs must establish a substantial effect on in-state operations an in-state injury to state a NCUTPA claim. Moreover, the court noted, such an interpretation was consistent with constitutional due process and commerce clause concerns.
The Hardee's court found the text's lack of any geographic restraints controlling. It noted other cases sustaining NCUTPA claims, where plaintiffs had minimal North Carolina operations. 1997 U.S. Dist. LEXIS 9671 at *8-9, citing Jacobs, 891 F.Supp. at 1111-12 (allowing suit by out-of-state franchisees against North Carolina franchiser) and Broussard, 945 F.Supp. at 917-18 (sustaining action against North Carolina trucking company by plaintiffs from several different states). And it found the additional profits defendants achieved by engaging in the alleged practices were a sufficient impact on local commerce.
We believe `In' Porters reflects the better interpretation. North Carolina courts have found that "the purpose of G.S. 75-1.1 is to provide a civil means to maintain ethical business standards of dealings between persons engaged in business and the consuming public within this state," United Virginia Bank v. Air-Lift Assoc., 79 N.C.App. 315, 339 S.E.2d 90, 93 (1986), quoted in `In' Porters, 663 F.Supp. at 502 (emphasis in `In' Porters). It was designed to address "primarily local concerns." ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 n. 9 (4th Cir.1983). Plaintiffs point out that Illinois courts have found that the state had an interest in regulating the conduct of local businesses, even as to foreign consumers, and permitted out-of-state consumers to invoke Illinois' consumer protection statute. Avery, 254 Ill. Dec. 194, 746 N.E.2d at 1255. North Carolina courts have not ascribed such an intention to their legislature. Instead of emphasizing defendants' conduct, they have found that the statute focuses on *851 "the impact the practice has on the marketplace." Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397, 403 (1981). The relevant marketplace is North Carolina. Plaintiffs also point out that the NCUTPA does not require contractual privity. Although this is true, courts have frequently cited a direct contractual relationship with an in-state party as the nexus justifying their application of their local statute to that out-of-state plaintiff. See Jacobs, 891 F.Supp. at 1111; Broussard, 945 F.Supp. at 917-18. Plaintiffs here have alleged no such contact with any North Carolinian.
If, as Hardee's found, incremental profits by an in-state defendant alone were sufficient effect on in-state commerce to trigger the statute, that would dramatically extend its reach.
Were that the case, every product manufactured and sold, directly or indirectly, in North Carolina to foreigners which later turn out to be defective would create an unfair competition cause of action whether or not the injured party had ever directed its commercial efforts toward, or even set foot in this state.
Dixie Yarns, 1994 WL 910955 at *2. We also note that the two cases the Hardee's court primarily relied upon both applied the `In' Porters standard, emphasized the continuing contact plaintiffs had with North Carolina, and made express findings of in-state harm. Jacobs, 891 F.Supp. at 1111; Broussard, 945 F.Supp. at 917-18.
Following `In' Porters' use of the longarm analogy, we examine whether plaintiffs' contact with North Carolina would sustain personal jurisdiction there. The answer is decidedly no. Plaintiffs have not pled any contact with North Carolina. They have not alleged that they buy or sell any goods there, have any contact with a North Carolina company, or engage in any North Carolina commerce whatsoever. Because the named plaintiffs have not alleged that they experienced any harm within North Carolina, they cannot state a claim under the NCUTPA.
VII. Tennessee Consumer Protection Act
Plaintiff McCormack adds an additional claim under the TCPA, T.C.A. §§ 47-18-101 et seq., alleging that Aventis engaged in deceptive trade practices. Defendants assert that this claim must be dismissed because McCormack does not allege he had any consumer transaction with Aventis.
The CPA is worded broadly:
Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive practice declared to be unlawful by this part, may bring an action individually to recover actual damages.
T.C.A. § 47-18-109(a)(1). Nothing in its text requires privity or restricts relief solely to direct purchasers.
Aventis' licensing of its StarLink process to seed growers brings it within the statute. It is well settled that the TCPA applies to sales to corporate entities, as well as to consumers. ATS Southeast, Inc. v. Carrier Corp., 18 S.W.3d 626, 626 (Tenn.2000). We see no reason to treat selling (or licensing) intellectual property any differently from selling (or leasing) a tangible item. In defining "consumer," the statute specifically refers to one who acquires "tangible or intangible" property. T.C.A. XX-XX-XXX(2). Moreover, at least one court has sustained a claim where the product in question was an intangible: copyrighted music. See Bridgeport Music, Inc. v. 11C Music, 154 F. Supp. 2d 1330 (M.D.Tenn.2001).
*852 Aventis offers two state court cases as standing for the proposition that a plaintiff must have been party to a consumer transaction with a defendant to bring a TCPA claim. In Messer Griesheim Indus. v. Cryotech of Kingsport, Inc., 45 S.W.3d 588, 610 (Tenn.Ct.App.2001), the court dismissed a claim against a party who was merely the financing lessor and did not offer a product for sale or distribution. And in State ex rel. Pierotti v. Sundquist, 1993 WL 166938 at *5 (Tenn.Ct.App. May 19, 1993), the court held that plaintiffs, who had a contractual relationship with a corporation, did not have standing to bring TCPA claim against the corporation's directors because there was no consumer relationship. But we find these distinguishable because neither relied on the fact the defendant did not sell something directly to the plaintiff. As a financing lessor and a corporate director, respectively, those defendants did not sell anything to anyone.
Bridgeport Music, supra, dispels the idea that the TCPA requires a direct transaction between the litigants. Plaintiff copyright holders alleged that defendants sold music to consumers as original, when in fact it infringed on plaintiffs' works. There was no contractual relationship between the litigating parties, but plaintiffs alleged their property rights were harmed by defendants' sales to third parties. The court found this was sufficient to state a TCPA claim and rejected an argument identical to defendants' here.
[Defendants] insist that Plaintiffs were not themselves purchasing goods and therefore cannot sue under the Act. This gloss on the statute is evidently of the Defendants' own creation. The TCPA was amended precisely to expand the class of potential plaintiffs, making relief available to "the consumer or other person." T.C.A. XX-XX-XXX(a)(4). The disjunctive added in 1989 precludes any reading that imposes a "buying requirement" upon the plaintiff.
Bridgeport Music, 154 F.Supp.2d at 1333 (emphasis in Bridgeport Music). See also Olin Corp. v. Lambda Electronics, Inc., 39 F. Supp. 2d 912, 914 (E.D.Tenn.1998) ("There is no authority that a `consumer transaction' is a sine qua non of TCPA applicability."). We agree with Bridgeport Music that the TCPA permits third parties to bring a claim if they are harmed by defendants' deceptive practices.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted with respect to the claims for conversion and violations of the NCUTPA. The motion is denied with respect to the claims for negligence per se, public nuisance, private nuisance and violations of the TCPA. The negligence and strict liability claims are dismissed to the extent they rely on a failure to warn, but may proceed under the theories outlined above.
NOTES
[1] A sequence of related corporate entitles was involved in the process of developing, registering and distributing StarLink. Aventis is the sole successor-in-interest with respect to StarLink, and the only named party among them. We will not distinguish between Aventis and its predecessors. and will refer simply to "Aventis."
[2] To the extent there is any disagreement among the courts of appeals, we are bound by the Seventh Circuit's interpretations of federal law, regardless of where these individual cases may have originated. Our opinion on certain plaintiffs' motions to remand discussed this choice-of-law issue in some detail. See In re StarLink, 211 F. Supp. 2d 1060 (N.D.Ill.2002).
[3] At this point we express no opinion as to whether the ten jurisdictions in question recognize a civil remedy for the FIFRA violations alleged here. The parties have not fully briefed the issue, so we reserve judgment for a later day.
[4] We note that two other circuits have held that FIFRA more broadly preempts actions based on off-label statements. Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 561 (9th Cir. 1995); Papas v. Upjohn Co., 985 F.2d 516, 519 (11th Cir.1993). The Seventh Circuit explicitly declined to take a position on this split. Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.1997). We choose to follow Lowe for the reasons given there.
[5] At several points the complaint specifically refers to "identity preserved" corn.
[6] The doctrine has expanded to include most contractually acquired services. But there is considerably less uniformity among jurisdictions, particularly with respect to the growing number of exceptions courts have carved out, when applied to services. Because StarLink is a product, however, we need not be concerned with the nuances of applying the rule to services.
[7] There are cases holding that recovery was not barred because plaintiff had no direct relationship with defendant and, therefore, no opportunity to negotiate contractual protections. See Intamin, Inc. v. Figley-Wright Contractors, Inc., 608 F. Supp. 408, 411 (N.D.Ill. 1985). We note that Anderson Elec., supra, and Chicago Flood, supra, both rejected privity as a requirement post-Intamin.
[8] As we discuss below, there are fact patterns involving other means of access, besides bridges, that implicate the same principles. We prefer the more inclusive description, "access" cases, and will use this broader moniker.
[9] Although merchants' only remedy for property damage is the U.C.C., other types of buyers can still recover for harm to other property, and merchants can recover for personal injuries. Id.
[10] We note that defendants continually characterize the complaint as alleging that "the entire corn farming and production chain" was contaminated, not that plaintiffs' corn was directly harmed. Resolving the complaint's ambiguous phraseology in plaintiffs' favor, we find that they have sufficiently alleged that their crops were contaminated at some point within that chain.
[11] This includes corn commingled at grain elevators because plaintiffs retain ownership rights to corn stored there. Each contributing farmer owns a pro rata share of the entire, now tainted, supply. See generally, Missouri v. United States Bankr. Ct. of E.D. Ark., 647 F.2d 768, 775 n. 13 (8th Cir.1981).
[12] The private nuisance claims appear to be premised exclusively on cross-pollination in the fields, not commingling later in the distribution chain. Commingling could not constitute a private nuisance because it does not involve an invasion of any private interests in land. By contrast, the public nuisance claims, discussed below, may be premised on commingling because "[u]nlike a private nuisance, a public nuisance does not necessarily involve interference with use or enjoyment of land." Restatement § 821B comment h.
[13] Bubalo, decided nearly four years before Young, ultimately dismissed the nuisance claim out of reluctance to recognize a new theory of liability without any state decisional precedent. Id. at *5
[14] Other states have rejected nuisance claims against asbestos manufacturers on the merits, reasoning that once the product is sold, the manufacturer has no access to the product to control it or abate the nuisance. See, e.g., Detroit Bd. of Ed. v. Celotex Corp., 196 Mich. App. 694, 493 N.W.2d 513, 522 (1992).
[15] Of these three cases, only Tioga Public School Dist. contains any substantial discussion of this point, and it mostly reflects the federal court's unwillingness to make new state law. 984 F.2d at 920 ("[Plaintiff] has not presented us with any North Dakota cases extending the application of the nuisance statute to situations where one party has sold to the other a product that later is alleged to constitute a nuisance, nor has our research disclosed any such cases."). Appletree Square and County of Johnson both make only cursory reference to this issue.
[16] More analogous to the present posture would be landowners who alleged that asbestos had drifted over property lines from a neighboring building and contaminated their air. We are not aware of any reported cases addressing a nuisance claim under that fact pattern.
[17] It is not entirely clear which choice-of-law rule North Carolina courts would apply. The federal courts that have considered the question have reached different results. See, e.g., Santana, Inc. v. Levi Strauss & Co., 674 F.2d 269, 273-74 (4th Cir.1982) (applying most significant relationship); United Dominion Industries, Inc. v. Overhead Door Corp., 762 F. Supp. 126, 128-29 (W.D.N.C.1991) (collecting cases and applying lex loci dilecti). For that matter, we would not necessarily apply North Carolina's choice-of-law rules to the present case. Rather, we would apply the choice-of-law rules of the ten states in which the transferor courts are situated, which diverge considerably. Because our interpretation of the statute resolves the question before us, however, we will not address the choice-of-law question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2515204/ | 397 F. Supp. 2d 465 (2005)
UNITED STATES OF AMERICA Plaintiff,
v.
Usama BIN LADEN, et al., Defendants.
No. S7R 98 CR. 1023(KTD).
United States District Court, S.D. New York.
November 2, 2005.
*466 *467 *468 *469 *470 *471 *472 *473 Patrick J. Fitzgerald, Lead Attorney, U.S. Attorney's Office, Northern District of Illinois, for United States of America, Plaintiff.
Lloyd Epstein, Epstein & Well, New York City, for Usama Bin Laden, also known as Usamah Bin-Muhammad Bin-Ladin also known as Shaykh Usamah Bin Ladin also known as Mujahid Shaykh also known as Hajj also known as al Qaqa also known as the Director, Defendant.
Allan Paul Haber, Law Office of Allan P. Haber, Irving Cohen, Richard B. Lind, New York City, for Mamdouh Mahmud Salim, also known as Abu Hajer al Iraqi, also known as Abu Hajer, Defendant.
OPINION & ORDER
KEVIN THOMAS DUFFY, District Judge.
Through a mixture of inaction, incompetence and stonewalling to cover up their mistakes, the United States Marshals Service and the Department of Justice's Office of Enforcement Operations have seriously jeopardized the convictions of al Qaeda terrorist Wadih El-Hage. On May 29, 2001, El-Hage (who at times has purportedly acted as Usama bin Laden's personal secretary) was convicted of: (1) conspiracy to kill United States nationals; (2) conspiracy to commit murder; (3) conspiracy to destroy buildings and property of the United States; and (4) eighteen counts of perjury. Because the Marshals Service suppressed evidence during El-Hage's trial, however, there are grave concerns that El-Hage must be retried.
El-Hage was tried jointly with three other al Qaeda terrorists, each of whom were convicted for their roles in the 1998 synchronized bombings of two United States Embassies in Africa. Those attacks killed 224 people and wounded thousands. El-Hage was convicted, not for hands-on *474 participation in these bombings, but rather for participating in al Qaeda's broader conspiracy to kill Americans, and for lying to two grand juries regarding al Qaeda. On October 18, 2001, El-Hage and his codefendants were each sentenced to life imprisonment.
On October 24, 2003, El-Hage filed a motion seeking various relief, including a new trial pursuant to Fed.R.Crim.P. 33. In an Opinion and Order dated February 7, 2005, United States v. Bin Laden, No. S7R 98 CR 1023(KTD), 2005 WL 287404, (S.D.N.Y. Feb. 7, 2005), I denied all but one of El-Hage's requests. That request seeks a new trial based on the Government's failure to make timely disclosure of the videotapes and transcripts of twenty-eight hours of interviews between prosecutors, FBI agents and government witness Jamal al-Fadl.
To determine whether the Government's failure to turn over the transcripts of these interviews until more than fifteen months after El-Hage's sentencing warrants a new trial, I held a series of hearings on February 17, April 26 and June 6-7, 2005. Based on the evidence adduced at those hearings, my review of the video-teleconference videotapes, the trial record and exhibits, the pre-trial discovery and "3500 material" originally produced, and the parties' submissions, I make the following findings.
I. Creation and Disclosure of the Tapes
A. Jamal al-Fadl
The Government's first witness at El-Hage's trial was Jamal al-Fadl, a former al Qaeda member, who testified extensively about the history, structure and operation of al Qaeda. Al-Fadl also testified about some of El-Hage's al Qaeda activities. By the time of his trial testimony, al-Fadl was a longtime cooperator who had provided the Government with significant inside information about al Qaeda and other Islamist terrorist organizations.
Al-Fadl's cooperation with the United States began in 1996 when he approached a United States Embassy and offered to provide information about the terrorist groups and threats of which he was knowledgeable. During December 1996, al-Fadl was brought to the United States in FBI custody and was assigned a protective detail of FBI agents who guarded him around the clock.[1] From the time he approached the Embassy, and throughout his FBI custody in the United States, FBI agents and Assistant United States Attorneys investigating al Qaeda regularly interviewed al-Fadl.
On July 16, 1997, pursuant to a cooperation agreement, al-Fadl pleaded guilty to charges of: (1) conspiracy to injure and destroy national defense material, premises and facilities of the United States; and (2) conspiracy to carry an explosive during the commission of a felony. Each charge involved al-Fadl's activities on behalf of al Qaeda. Following his guilty plea, al-Fadl remained in the protective custody of the FBI, pursuant to a bail agreement, and continued cooperating with FBI agents and AUSAs through late 1998.
In late 1998, al-Fadl was accepted into the Witness Security Program administered by the United States Marshals Service ("WitSec") and his bail conditions were modified to allow WitSec to relocate al-Fadl (along with his family) to an undisclosed location.[2] At the time of his relocation, *475 the Marshals Service designated al-Fadl's case as "Secret" or "Top Secret" because of the national security implications of his information regarding terrorists. In his relocation area, al-Fadl was assigned a WitSec Inspector, John Doe, who was responsible, inter alia, for day-to-day contact with al-Fadl.[3] Following his relocation, and throughout 1999, al-Fadl continued to meet with FBI agents and prosecutors via telephone and in person via "neutral site" visits.
B. Recording of Video-Teleconferences
In late December 1999, the Southern District of New York Assistant United States Attorneys who had been interviewing al-Fadl since 1996 requested that WitSec install videoconferencing equipment in al-Fadl's relocation area to facilitate their contact with al-Fadl. The request was motivated primarily by the AUSAs' desire to be able to contact al-Fadl quickly in the event that they needed to show him photographs of suspected terrorists. WitSec complied with the request and, by the end of 1999, purchased and installed video conferencing equipment including: a camera, television, speakerphone, secure T1 line, and videocassette recorder in WitSec offices in al-Fadl's relocation area and New York. This equipment allowed al-Fadl, accompanied by Inspector Doe, to travel to the WitSec office and engage in two-way video-teleconferences with the Southern District of New York prosecutors.
Around the time Marshals Service employees were installing the videoconference equipment, Inspector Doe spoke with one of his supervisors, Branch Chief Inspector George Walsh (who was stationed at USMS Headquarters in Washington, D.C.), regarding how he should prepare reports regarding the al-Fadl teleconferences.[4] Doe was told that the Marshals Service computer system in the relocation area was unable to handle classified information and that he should therefore videotape the teleconferences rather than preparing detailed written reports. Finding this order odd, Inspector Doe sought confirmation from his direct supervisor, Supervisory Inspector Mike.[5] Supervisory Inspector Mike conferred with the Chief Inspector for the relocation area, William Wagner, who confirmed that USMS Headquarters had ordered the videotaping of the video-teleconferences. Inspector Doe then requested, and received, approval from his supervisor to purchase videotapes on which he recorded the conferences.
Eighteen video-teleconferences were conducted between January 21, 2000 and January 14, 2002. Thirteen of the conferences occurred before the conclusion of El-Hage's trial; twelve of these were videotaped.[6] During the conferences, Inspector Doe would sit in the same room as al-Fadl, though Doe would generally be "off camera." Inspector Doe recorded each session by placing a tape in the VCR (which was located in a cabinet directly underneath the television used for the teleconference) *476 and pressing "Record." If the tape ran out during a session, Inspector Doe would eject it and replace it with a new one. Inspector Doe did not announce these tape changes to the conference participants. In all, Inspector Doe recorded approximately twenty-eight hours of video-teleconference on six videotapes. The only person who explicitly indicates knowledge of the taping during the video-teleconferences is al-Fadl, who tells his wife (in Arabic) during one meeting that the session is being recorded.[7]
After each conference Inspector Doe prepared a USMS Field Report ("USM 210") with the date of the video-teleconference and the statement, "WC [al-Fadl] came to this office for interview on CCTV with AUSA, see tape # ____," indicating the number of the videotape on which he had recorded the session. After preparing the report and printing it, Inspector Doe deleted it from the computer system. Inspector Doe then presented the printed report to Supervisory Inspector Mike who reviewed it, signed it and forwarded it to USMS headquarters in Washington. At headquarters, the report was to be reviewed by the case manager on al-Fadl's case and placed in al-Fadl's file. Throughout the period of the videotaping, al-Fadl's case manager changed frequently, with as many as five Inspectors filling the position over the two-year period. The case managers' supervisor, however, did not change; Chief Inspector Walsh supervised all of the case managers at USMS headquarters throughout substantially all of the period when the videotaping occurred.
After creating the videotapes and reporting them to his superiors, Inspector Doe secured the tapes in his office safe. At no point prior to or during El-Hage's 2001 trial did Inspector Doe, Supervisory Inspector Mike, Chief Inspector Wagner, Chief Inspector Walsh, or any of the five case managers from al-Fadl's case contact the United States Attorney's Office to discuss turning over the tapes to the prosecutors for possible disclosure to the defendants.
C. Marshals Service and OEO Delays in Providing Tapes to Prosecutors
Prosecutors in the Southern District of New York first learned of the tapes' existence in approximately January 2002. In late 2001, George Dapra, the WitSec Inspector in the New York area who had acted as the prosecutors' liaison with Inspector Doe, was preparing to retire and called Inspector Doe to make arrangements for the transition to a new Inspector in the New York area. During that call, Inspector Doe asked Inspector Dapra what he should do with the videotapes of the al-Fadl conferences. Inspector Dapra responded that he had not known of any tapes, and he subsequently called United States Attorney Patrick Fitzgerald to inform him of the tapes' existence.[8] Mr. Fitzgerald was (to put it mildly) shocked and angered to learn of the taping and called Assistant United States Attorney Kenneth M. Karas who was equally surprised and upset to learn of the recordings.[9]
*477 Almost immediately after learning of the taping (approximately January 18, 2002), U.S. Attorney Fitzgerald contacted Laura Henry of the Department of Justice Office of Enforcement Operations ("OEO"), with whom he had dealt previously on some matters related to al-Fadl.[10] U.S. Attorney Fitzgerald informed Ms. Henry of the situation and explained the importance of maintaining the tapes so that they could be delivered to AUSA Karas. By January 22, 2002, AUSA Karas had also contacted OEO and explained that he needed the tapes as soon as possible. He did not, however, receive the tapes forthwith, and never had possession of the original tapes or a complete copy thereof.
Despite AUSA Karas's repeated requests (and later demands), OEO and the Marshals Service failed to deliver the tapes promptly. Instead, the Marshals Service was conducting an investigation of the taping, apparently under the leadership of the Chief of Protective Operations, Frank Skroski. Of course it would have been possible (and preferable) to have a copy of the tapes made and turned over immediately upon learning of their existence. This, however, did not happen. Notably, the "report" of the Skroski investigation, although prepared in February and March 2002, was not turned over to the United States Attorney's Office until February 14, 2005, mere days before the initial hearing in this matter. This withholding of relevant information was part of the stonewalling faced by the prosecutors in this matter. The Marshals Service, however, was not alone in the stonewalling.
At one point an OEO employee suggested that, if the Marshals Service kept the tapes, the AUSAs might avoid any disclosure obligation to the defense because the AUSAs would have never "possessed" the relevant Jencks, Brady or Giglio material. This suggestion was, properly, rejected out of hand. Stephen T'Kach, Director of OEO, suggested that the tapes might constitute an illegal wiretap, and therefore posited that disclosing them to the prosecutors could run afoul of Title III.[11]
By February 21, 2002, almost a full month after his first request that the tapes be delivered as soon as possible, AUSA Karas was justifiably livid at the fact that he had received nothing. In another call to OEO, he explained, with acute prescience, *478 " it will look bad that the government has known about these tapes and hasn't done anything about it yet." This admonition apparently did not prod OEO or the Marshals Service, and by February 25, nothing had changed. AUSA Karas again called OEO, demanding that he receive the tapes by March 8, 2002.
By March 7, 2002 the Marshals Service and OEO had finally begun the process of providing copies of the tapes to AUSA Karas. The tapes were sent to the FBI Field Office in Washington, D.C. where they were duplicated, and portions of the tapes were edited out of the copies for security reasons.[12] AUSA Karas ultimately received these edited copies of the tapes approximately March 21, more than two months after U.S. Attorney Fitzgerald's initial call to OEO.[13]
Upon receiving the tapes, AUSA Karas and other Southern District AUSAs had them transcribed. They reviewed those transcriptions and redacted various portions to protect the identities of certain individuals and to protect operational information that they believed was not subject to discovery. The prosecutors then provided these redacted transcripts to counsel for El-Hage and his codefendants. On October 24, 2003, El-Hage filed the instant motion seeking, inter alia, a new trial based on the government's failure to disclose the tapes earlier in accordance with Brady, Giglio and the Jencks Act.
D. Marshals Service's Withholding of Information Regarding the Creation of the Tapes
Briefing on El-Hage's Rule 33 Motion was complete by April 30, 2004. As discussed in detail, infra, that Motion put at issue the Government's state of mind with respect to its failure to make timely disclosure of the videotapes. Despite the importance of this issue, at no time, until February 2005, when I convened the first evidentiary hearing in this matter, did the Marshals Service disclose to the United States Attorney's Office the facts and circumstances regarding the tapes' creation. Indeed, until these hearings, the Marshals Service held an unyielding monopoly on the only information available regarding the critical issue of the Government's state of mind.
In his undated letter to AUSA Karas accompanying the transmission of the tapes, Witness Security Chief Frank Skroski made only the briefest mention of the circumstances surrounding the tapes' creation.[14] Chief Skroski stated, "these tapes *479 were erroneously made as a result of mis-communication between members of my headquarters and field staff." Despite having gathered statements from many of those involved in the taping in February and March 2002, the Marshals Service chose not to elaborate to prosecutors on this fragmentary explanation.
In the Government's initial Brief in Opposition to El-Hage's Rule 33 Motion, prosecutors aptly summarized the lack of information forthcoming from the Marshals Service, stating, "After repeated inquiries, the Marshals Service produced 28 hours of videotapes to [the U.S. Attorney's Office], without any explanation as to who had ordered the videotapes to be made and preserved, or why their existence had not been disclosed earlier." Prosecutors in good faith also repeated the Marshals Service's representation "that the videotapes were made pursuant to an unauthorized, independent decision by one or two employees of the Marshals Service."[15]
On December 16, 2004, I held an initial conference in this matter to confirm which defendants sought to join in El-Hage's motion, and to inform the parties that I intended to conduct hearings in the near future to resolve those issues requiring evidentiary presentations. On February 7, 2005, I issued an Opinion and Order denying the majority of El-Hage's claims and reserving judgment on the claims related to the videotapes. In that Opinion, I noted:
The as-yet-unexplained circumstances surrounding the creation and discovery of the videotapes must be developed before resolving this motion. Among other things, the legal standard governing whether to grant a new trial when the Government fails to produce Jencks Act material varies depending on the Government's state of mind.
Bin Laden, 2005 WL 287404, at *8. I then identified five "keenly important" questions regarding the tapes:
(1) who ordered the recording of the interviews; (2) who authorized payment and paid for the recordings; (3) who operated the recording equipment; (4) who had custody of the tapes after they were made; and (5) how were the tapes "discovered" after trial.
Id. at *9. In that Opinion, I also set a scheduling conference for February 10, 2005 "to set a hearing on the issue of the al-Fadl videotapes and the question of whether the Marshals Service's conduct should be imputed to the prosecutors." Id. at *14.
Prior to the February 10 conference, I asked the Government when it expected to have answers to the questions in my February 7 Opinion. I was informed that prosecutors were unsure of when they would have answers, as they had been unable to learn from the Marshals Service the identity of all potentially relevant witnesses. At the February 10 scheduling conference, I again asked the Government when I would have answers to the questions I had posed. I was again told that the United States Attorney's Office had, as yet, been unable to identify even the "universe of people who had knowledge of the recordings."
*480 In light of the Government's submissions indicating that prosecutors had been forced to make repeated requests to obtain the videotapes themselves, it seemed unlikely that the Marshals Service was going to promptly respond to the United States Attorney's Office's requests for information. Indeed, it appeared the prosecutors were again encountering a stone wall, like the one they initially ran up against when trying to get the tapes. Prodding the Marshals Service into action, I scheduled a February 17 hearing, to be attended by the Director and General Counsel of the Marshals Service. At that hearing I sought to inform the Director of the importance of the issues outlined in my February 7 Opinion, and to enlist his assistance in obtaining answers to the questions I had posed in that Opinion.[16]
As is generally the case when the bureaucratic tree is shaken from the top, the prod quickly proved effective. In a letter dated February 11, 2005, the United States Attorney's Office informed me that it had "identified individuals who [had] the answers to [the] questions [posed in my February 7 Opinion]." More importantly, on February 14, 2005, the Marshals Service finally disclosed to prosecutors the statements prepared by USMS personnel in 2002 regarding their involvement in the videotaping. Consequently, on February 14, prosecutors were able, for the first time since El-Hage filed this Motion, to give me the names of some individuals believed to have knowledge relevant to the state-of-mind issue.[17] On that date, the USMS also provided prosecutors with other relevant documents, including the invoices reflecting the Marshals Service's purchase of the teleconferencing equipment. Notably, however, the Service did not produce all the relevant documents in its possession. Throughout the evidentiary hearings, important documents continued to trickle in, including Inspector Doe's USM 210 reports reflecting the fact that he had informed numerous other individuals within WitSec of the taping.
II. Failure to Disclose
Having established the factual background surrounding the tapes, I turn to the legal issues relevant to this Motion.[18]
A. Government Disclosure Obligations
As every beginning student of criminal procedure learns, the Constitution requires prosecutors to turn over to a defendant any information in their possession that is both favorable and material to his guilt or sentence. See Brady, 373 U.S. at 87, 83 S. Ct. 1194. This obligation encompasses information useful solely for impeaching the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 153-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). After a witness testifies, the government *481 bears a separate obligation, pursuant to the Jencks Act, 18 U.S.C. § 3500, to provide the defendant with "any statement... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b).
In defining the scope of the Brady disclosure obligation, the Supreme Court has held that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). In fleshing out the scope of the duty, this Circuit has made clear that a prosecutor's disclosure obligations are not based on a monolithic view of government where any information held by any government agency must be disclosed. See United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998). Rather, a prosecutor is only obligated to disclose information of which he has either actual or constructive knowledge. Id. A prosecutor has constructive knowledge of any information held by those whose actions can be fairly imputed to him those variously referred to as an "arm of the prosecutor" or part of the "prosecution team." Id.; see, e.g., United States v. Morell, 524 F.2d 550, 555 (2d Cir.1975); United States v. Gil, 297 F.3d 93, 106 (2d Cir.2002).
B. WitSec as Part of the Prosecution Team
The government implicitly argues that the decision to create the videotapes, and any blame for the subsequent failure to make timely disclosure, lies with the Marshals Service's WitSec division, an entity allegedly wholly independent of the prosecution team. In essence, the Government claims that since the AUSAs involved turned over the transcripts of the tapes as promptly as possible after learning of their existence (given the delays in receiving them from the Marshals Service), there can be no Brady, Giglio or Jencks violation. Although I have no doubt that the blame for withholding the tapes lies squarely at the feet of certain individuals in the Marshals Service, I cannot agree that WitSec personnel responsible for al-Fadl were not part of the prosecution team with respect to their participation in the teleconferences.
"[T]he exact point at which government agents can fairly be categorized as acting on behalf of the prosecution, thus requiring the prosecutor to seek out any exculpatory or impeachment evidence in their possession, is uncertain." Chandras v. McGinnis, No. 01 Civ. 2519(LBS), 2002 WL 31946711, at *7 (E.D.N.Y. Nov. 13, 2002); see also United States v. Zagari, 111 F.3d 307, 320 n. 13 (2d Cir.1997) ("The extent to which knowledge may be imputed from one federal investigative agency to another for Brady purposes is as yet unclear."). At one end of the spectrum, it is clear that the investigating case agents on a particular prosecution are part of the prosecution team; their possession of producible material is imputed to the prosecutor regardless of his actual knowledge. See, e.g., Kyles, 514 U.S. at 438, 115 S. Ct. 1555 (rejecting the argument that a state prosecutor "should not be held accountable ... for evidence known only to police investigators and not to the prosecutor."); Morell, 524 F.2d at 555 (holding government agent to be an arm of the prosecutor where he: (1) actively participated in the investigation; (2) supervised a confidential informant; and (3) sat throughout trial at counsel table with the prosecutors). At the other end of the spectrum, government agents of a separate sovereign who are wholly uninvolved in the investigation being prosecuted are clearly not part of the *482 prosecution team. See, e.g., Shakur v. United States, 32 F. Supp. 2d 651, 665-66 (S.D.N.Y.1999) ("whatever knowledge [the undercover NYPD officer] and his superiors gained ... during [the officer's] undercover activities ... may not be imputed to the federal prosecution team"). The instant case lies in a gray area between the two extremes that is largely unilluminated by relevant precedent.
The parties' citations on this issue underscore the lack of guiding authority. The Government's cases principally involve circumstances so different from the facts presented here that they offer little assistance.[19] El-Hage's citations are similarly wide of the mark, though two cases cited from other circuits are analogous enough to this case to be of some assistance.
Mastracchio v. Vose, 274 F.3d 590 (1st Cir.2001), involved a cooperating government witness who was purportedly serving his sentence in "protective custody" during the time he testified at Mastracchio's trial. This so-called custody included numerous exorbitant perquisites which, though known to the witness's protection team, were unknown to the prosecutors and accordingly not disclosed to Mastracchio's counsel for use in cross-examination. 274 F.3d at 594-97. These perquisites included, inter alia, large cash payments, state-subsidized sky-diving lessons, access to illegal drugs, free passage through the corridors of the police station where he was being held, out-of-state trips to visit family and various unsupervised excursions. Id.
Upon learning of these benefits after trial, Mastracchio filed a habeas petition alleging a Brady violation. In light of the prosecutor's conceded ignorance of the unusual benefits conferred on the witness, the First Circuit addressed the issue of imputation. Relying, inter alia, on Kyles, 514 U.S. at 437, 115 S. Ct. 1555, the court held that "Supreme Court precedents make manifest that the knowledge of other members of the attorney general's department and of the witness protection team *483 must be imputed to the prosecuting attorney." Mastracchio, 274 F.3d at 600. The court reasoned that, by offering the witness's testimony, the prosecutor had assumed a duty to learn of all "inducements and rewards that the state had tendered" and that the prosecutor was, therefore, chargeable with knowledge of the unorthodox benefits conferred on the witness. Id. at 600-01.
United States v. Wilson, 237 F.3d 827 (7th Cir.2001), likewise involved a prosecution witness under the Government's protection. 237 F.3d at 831. Like al-Fadl, the witness had, by the time of trial, entered the USMS WitSec program. Id. At trial, the witness testified that he had not failed any drug tests while in the WitSec program. Id. In fact, the witness had failed three such tests prior to his testimony, a fact known to the Marshals Service but unknown to the prosecutors. Id. Approximately one month after the jury returned a guilty verdict, the Marshals Service notified prosecutors that the witness had been terminated from the WitSec program because of his positive drug tests. Id. Defense counsel sought a new trial based on the Government's failure to disclose the failed tests before or during trial. Id. Without extended analysis, the Seventh Circuit imputed the Marshals Service's knowledge to the prosecutors, holding that, "imputation is proper in these circumstances; it is impossible to say in good conscience that the U.S. Marshal's [sic] Service was not `part of the team' that was participating in the prosecution even if the role of the Marshal's [sic] Service was to keep the defendants in custody rather than to go out on the streets and collect evidence." Id. at 832.
El-Hage argues that the language in Wilson is equally applicable to this case and urges that the situation here is "not any different" than Mastracchio, thus, imputation is appropriate. The Government counters that Wilson' s cursory handling of the imputation issue renders it of little value and further argues that Mastracchio is distinguishable because, in that case, prosecutors had a "reasonable expectation that impeachment material exist[ed]" in the hands of the witness protection team. In the instant case, the Government contends, prosecutors could not have reasonably foreseen that a WitSec Inspector would record the al-Fadl teleconferences because such action was not merely beyond the scope of his WitSec duties, but adverse to the program's goal of protecting enrollees' identities.
While the Government's reasonable foreseeability argument has some persuasive force, I do not believe that it is the single dispositive factor regarding imputation. Indeed, I suspect the prosecutors in Mastracchio were equally incredulous to learn that their witness had been supplied drugs, large sums of cash and state-sponsored skydiving lessons during his "incarceration" as were the prosecutors here to learn of the videotaped teleconferences. Moreover, I believe the Government's "reasonable foreseeability" criterion, in isolation, improperly narrows the scope of the Government's disclosure obligations. Focusing on this single factor constrains the analysis to what a reasonable prosecutor should have foreseen without regard to the obligations borne by the other government agencies comprising the criminal justice system.
Although the Government's disclosure obligations are most frequently discussed in terms of a prosecutor's duty, as the Second Circuit has made clear in United States v. Bufalino, 576 F.2d 446 (2d Cir.1978), other agencies involved in the criminal justice system bear substantial responsibility for mandated disclosures. See 576 F.2d at 448-50 (criticizing FBI for *484 agent's destruction of backup tapes of conversation between witness and defendant, pursuant to agent's understanding of "standard Bureau policy," and holding that "[t]here simply is no longer any excuse for official ignorance regarding the mandate of the law" and that "[i]n educating personnel concerning their responsibilities in this area [i.e., disclosure pursuant to the Jencks act and Fed.R.Crim.P. 16], government agencies must keep in mind the broad definition of discoverable `statements' incorporated in the governing texts."). Thus, based in part on Bufalino, I decline to apply reasonable foreseeability as the single touchstone for imputation because it does not adequately account for the obligations law enforcement agencies bear regarding disclosures to defendants. To hold otherwise would be to shield from disclosure information held by those agencies, as long as they managed to acquire that information in a way prosecutors could not reasonably foresee. I believe such a rule is unjust.
Having decided against assigning talismanic significance to reasonable foreseeability, and lacking a clearly articulated imputation test from the Court of Appeals, the test I discern from the imputation cases cited is whether, under the totality of the circumstances, al-Fadl's WitSec team could be fairly described as part of the prosecution team. Applying this standard, I find imputation appropriate.[20]
In assessing the totality of the circumstances, I first note that the Marshals Service spent approximately $78,000 of its own money to install video-teleconferencing equipment at the prosecutors' request. The stated purpose for equipment's installation was to further the ongoing investigation of al Qaeda by allowing Southern District prosecutors and agents to contact al-Fadl quickly in the event they needed him to identify photographs of possible al Qaeda terrorists.
As the video-teleconferences progressed, though prosecutors sometimes sought permission for the meetings through an intermediary at OEO, meetings also appear to have been scheduled (apparently without OEO involvement) through direct discussions with WitSec Inspector Dapra in New York who then contacted Inspector Doe to arrange logistics.[21] Throughout the teleconferences, which focused largely on the Government's ongoing investigation of al Qaeda, Inspectors Dapra and Doe were continuously present at their respective ends of the connection, acting as necessary intermediaries for the communication.
Even without more, based on the fact that WitSec, in order to further the Government's investigation, installed and continuously operated the video-teleconference equipment at the prosecutors' request, I would find WitSec to be part of the prosecution team in this case (at least with respect to the Inspectors' participation in the video-teleconferences).[22]*485 There are, however, other facts that assure me imputation is proper. Though I find United States Attorney Fitzgerald's testimony entirely credible (including his testimony that he did not consider the WitSec Inspectors to be part of his investigative team), my review of the videotapes indicates that Inspector Doe, at the time of the conferences, on occasion sought to aid the investigative effort by doing more than simply operating the teleconference equipment.
At one point during the conferences, Inspector Doe explains that he plans to bring al-Fadl to the WitSec office to allow al-Fadl to review a consensually recorded phone call he had made to another al Qaeda operative. After doing so, it appears that Inspector Doe contacted Inspector Dapra and asked him to inform the prosecutors of a substantive issue that had arisen during the review of the tape that al-Fadl believed he should discuss with them. This conduct, though clearly short of full-blown investigation, is nevertheless something more than merely protecting al-Fadl. Though this incident standing alone might be of little significance, considering it within the totality of the circumstances, I believe it entirely appropriate to consider the WitSec personnel as part of the prosecution team.
C. State of Mind
Having found that the Government's failure to disclose is attributable to the prosecution team, I turn to the question of the Government's state of mind. Where the Government fails to produce Jencks Act material, the standard for granting a new trial "depends upon whether the suppression was deliberate or inadvertent." United States v. Hilton, 521 F.2d 164, 166 (2d Cir.1975). "[A] new trial is warranted if the evidence is merely material or favorable to the defense" where the government has either: (1) "deliberately suppresse[d] evidence"; or (2) "ignore[d] evidence of such high value that it could not have escaped its attention." Id. On the other hand, "if the government's failure to disclose is inadvertent, a new trial is required only if there is a significant chance that this added item, developed by skilled counsel, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." Id.[23]
I feel compelled to look closely at the question of intent based in part on the initial response of OEO and the Marshals Service to the prosecutors' requests for the tapes. That response (described supra), at first whiff, reeks of an attempt to stonewall and cover up.[24] I see no legitimate *486 purpose for delaying the production of the tapes to the U.S. Attorney's Office by two months. As AUSA Karas predicted, this delay looks very bad indeed. In particular, I find OEO Director Stephen T'Kach's purported Title III concerns, in light of the possible constitutional scope of the prosecutors' demands, at best unfounded and at worst obstructionist.
By the time the prosecutors learned of the tapes and first requested them, however, El-Hage's trial and sentencing were completed. Any Jencks Act damage had been done. By that time, no matter how willful or obstructionist the conduct of OEO and the Marshals Service, it simply could not add to any damage already suffered. Accordingly, I believe the intent relevant to this motion is the Government's intent at the time of El-Hage's trial.
I find great difficulty in determining the Government's intent at this time for one reason. It is clear to me that Inspector Doe then had, and likely still has, no idea that videotapes like the ones he created are extremely likely to contain material discoverable pursuant to Brady, Giglio, Jencks or similar authority.
On the whole, the testimony I heard impressed upon me the rampant ignorance about disclosure obligations within the Marshals Service. The Government seeks refuge in this ignorance, claiming it necessarily renders the failure to produce inadvertent. According to this argument, "The USMS inspectors, who knew about the tapes, were unaware of the prosecutors' Jencks Act obligations; and the prosecutors, who understood their Jencks Act obligations, were unaware of the tapes until after trial. The failure to produce the statements in the videotapes for trial was, therefore, inadvertent." Although the Government's statement aptly describes some of the relevant circumstances, I do not agree that inadvertence may be so glibly decided.
In this regard, I remain mindful of the Court of Appeals' admonition that "[t]here simply is no longer any excuse for official ignorance regarding the mandate of the law" with respect to the Government's disclosure obligations. Bufalino, 576 F.2d at 449. I am also guided by the court's direction to government agencies that, "[i]n educating personnel concerning their responsibilities in this area [i.e. disclosure pursuant to the Jencks Act and Fed.R.Crim.P. 16], government agencies must keep in mind the broad definition of discoverable `statements' incorporated in the governing texts." Id.[25]
Here, eight or nine United States Marshals Service Criminal Investigators were aware (or would have been aware if they were competently performing their jobs) of the videotapes and the fact that they contained debriefings of al-Fadl by prosecutors and agents. Those Criminal Investigators included: Inspector Doe, Supervisory Inspector Mike, Chief Inspector William Wagner, Chief Inspector George Walsh, and four to five Case Managers at USMS headquarters. Additionally two USMS administrative *487 personnel knew of the tapes. Nevertheless, none of these Investigators (including those in senior positions) ever considered, much less acted upon, their obligation to turn the tapes over to prosecutors. Chief Inspector Paonessa (one of the first, and only, USMS personnel to recognize the importance of the tapes and undertake action for their disclosure) summed up the situation succinctly. He testified: "It was shocking to me that a law enforcement officer would not realize" that the tapes might contain 3500 material. I too would be shocked had I not come to learn of the utter dearth of guidance given to Marshals Service Investigators regarding the Government's disclosure obligations.
Inspector Doe and Supervisory Inspector Mike each testified that they did not recall receiving any training within the last nine to ten years regarding government disclosure obligations. Indeed, as the Government notes, "Supervisory Inspector Mike, a USMS employee for nearly twenty-three years, did not recall ever receiving Jencks Act training, even when he received his initial law enforcement training upon entry into the USMS." This testimony, and that of other USMS personnel indicates that continuing legal training and updates for USMS personnel are, at best, sporadic and quixotic. Given this state of "continuing training," I do not believe Chief Inspector Wagner, Chief Inspector Walsh or the four to five Case Managers on al-Fadl's case were any better informed of their obligations. If they were, I find it incredible that none would have raised a question about turning the tapes over to prosecutors.
I have no doubt that responsibility for the Inspectors' ignorance of their legal duties lies squarely with those involved in setting Marshals Service policy, most notably the Office of General Counsel and General Counsel Gerald Auerbach. During the hearings on this matter, I sought testimony from Mr. Auerbach who has been ensconced in the Service's Office of General Counsel since 1974. I had hoped his testimony would illuminate the issue of whether the Marshals Service was "educating [its] personnel concerning their responsibilities in [the] area" of disclosure obligations as discussed in Bufalino, 576 F.2d at 449. Although Mr. Auerbach's testimony was illuminating, the light shone on a pathetic sight.
Mr. Auerbach revealed that the Marshals Service relies upon a trickle-down system to inform Deputies, Inspectors and other USMS personnel of their legal obligations with respect to prisoners, witnesses and defendants. Constitutional and statutory duties are apparently not directly explained to USMS personnel. Rather, these legal duties are purportedly "described" in USMS policies that are "distributed" through posting on some sort of electronic database available only to Marshals Service personnel. Mr. Auerbach and the attorneys in his office typically do not draft these secondhand descriptions; instead, they merely give "advice" to Directors, United States Marshals and other non-lawyer managers who divine the relevant legal precepts and memorialize their understanding of those legal requirements as official Marshals Service policy. Once the policies are drafted, Mr. Auerbach and the lawyers he supervises are responsible for reviewing the policies for "legal sufficiency".[26] In addition to this review responsibility, *488 Mr. Auerbach described his job, and that of his office, as little more than responding to requests from senior Marshals Service Personnel.[27]
The abject failure of this trickle-down system is painfully evident from the current situation. The fact that eight or nine WitSec Inspectors could simultaneously overlook the possibility that twenty-eight hours of videotaped interviews between a witness and prosecutors might constitute discoverable materials illustrates the utter irresponsibility of this system. This laissez-faire approach to "informing" USMS personnel of their legal obligations left the Inspectors entirely ignorant of their duties.
It is, nevertheless, difficult to say that the WitSec Inspectors, who were never adequately informed of their duty to disclose the tapes, intentionally violated that duty. If the hearings had shown that the Marshals Service made any reasonable attempt to keep its personnel apprised of Government disclosure obligations, one *489 could argue that the WitSec Inspectors acted intentionally in failing to turn the tapes over. It simply makes little sense, however, to ask whether the Inspectors tried to hide something they had no idea they were obliged to produce. To this extent I agree with the Government's argument quoted above. I decline, however, the Government's invitation to find the non-disclosure inadvertent simply because there has been no evidence of a conscious intent to deprive the defense of the tapes.
Failure to produce Jencks Act material is also deliberate under Hilton where the Government "ignores evidence of such high value that it could not have escaped its attention." 521 F.2d at 166. Neither party has cited, and I have not otherwise discovered, any cases applying this standard in a similar situation. Fortunately, it appears to be rare that government agents are (through the inexcusable nonfeasance of their superiors) wholly ignorant of their disclosure obligations.[28] Despite this lack of relevant authority, the proper rule to apply in this situation seems readily apparent to me.
If the tapes contain material of "such a high value that it could not have escaped [the prosecutors'] attention" had they been given timely access to the tapes, El-Hage is entitled to the lower Hilton standard. I am confident that this rule strikes the proper balance between: (1) ensuring the Government does not reap an unjust benefit from the Marshals Service's inexcusable failure to train its Inspectors; and (2) ensuring that El-Hage's convictions are not overturned on a trivial Jencks Act "violation" that likely would have occurred even if the Inspectors had been trained by competent counsel.
A reasonably trained WitSec Inspector would have recognized, as the tapes were being made, that they very likely contained numerous producible Jencks Act statements. If it were so recognized, the Inspector would have had a duty to provide the tapes to prosecutors in time for the prosecutors to make timely disclosure of any such statements. Analyzing any Jencks statements in the tapes as if this duty had been fulfilled gives neither the Government nor El-Hage a windfall from the Marshals Service's failure. Further, I believe this standard addresses the aims of Hilton's prophylactic rule and comports with the relevant case law. See, e.g., United States v. Paulino, 299 F. Supp. 2d 332, 344 (S.D.N.Y.2004) ("Even if the suppressed statement of a Government witness is deemed Jencks Act material, that fact alone does not automatically give rise to a new trial.").[29] I turn, therefore, to an analysis of the alleged Jencks Act statements contained in the videotapes.
III. Undisclosed Information
As mentioned, supra, in deciding this Motion, I have thoroughly reviewed and *490 considered (in addition to the parties' submissions and the relevant legal authority), the original videotapes made by Inspector Doe and the redacted copies provided to the prosecutors, along with the transcripts created therefrom. Additionally, I reviewed the record of El-Hage's trial, focusing particular attention on al-Fadl's testimony and a large number of the exhibits that were introduced. Finally, I have reviewed the pre-trial discovery and "3500 material" turned over to the defense at trial.
At the June 7, 2005 hearing in this matter, in an effort to assess properly El-Hage's claims, I ordered counsel for El-Hage to prepare and file (in addition to a post-hearing brief) a list of the information contained in the videotapes to which they believe they were denied timely access. I also directed counsel to identify which government disclosure obligation (e.g., Jencks, Brady, Giglio, Fed.R.Crim.P. 16, etc.) allegedly entitled El-Hage to each piece of information.
In response, El-Hage's counsel identified numerous excerpts of the videotape transcripts which are grouped into fourteen subjects: (1) the alleged "full scope" of al-Fadl's cooperation agreement, (2) immigration and visa issues related to al-Fadl and his family, (3) miscellaneous issues with respect to al-Fadl's family members, (4) al-Fadl's participation on "the government team" and a perceived need to win convictions, (5) al-Fadl's reasons for cooperating with the Government, (6) al-Fadl's alleged lack of insider knowledge of al Qaeda, (7) al-Fadl's alleged lack of involvement in smuggling weapons into Egypt, (8) the timing of al-Fadl's departure from al Qaeda, (9) statements regarding Abu Hajer, (10) purported evidence of "al-Fadl's willingness to mold testimony," (11) statements allegedly suggesting the death of Abu Ubaidah was investigated by someone from "the Tehrana group," (12) statements regarding al Qaeda personnel who traveled to Somalia, (13) the alleged relationship between Egyptian Islamic Jihad and al Qaeda, and (14) the reaction within al Qaeda to the United States' arrest of Omar Abdel Rahman. With one exception, El-Hage claims he was entitled to the cited information not only pursuant to the Jencks Act, but also under Brady and Giglio, 405 U.S. at 153-55, 92 S. Ct. 763.[30] I first examine whether any of the cited excerpts constitute Jencks Act material.
A. Jencks Act
The Jencks Act, 18 U.S.C. § 3500, requires that, following a government witness's direct testimony, the Government produce to defendants "any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b). As used in the statute, the term "statement" means:
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement ... by said witness to a grand jury.
18 U.S.C. § 3500(e). Where the Government contends that portions of an otherwise *491 producible statement do not "relate to the subject matter of the testimony of the witness," the statement is to be delivered to the court for an in camera inspection. 18 U.S.C. § 3500(c). Material disclosed pursuant to the statute is typically referred to as "3500 Material."[31]
Notably, the Jencks Act does not impose a blanket requirement that the government disclose all available impeachment material in its possession. Cf. United States v. Birnbaum, 337 F.2d 490, 498 (2d Cir.1964) ("it is [] clear that not all statements that might in some way be helpful in impeaching the witness are producible.").[32] Rather, the statute focuses on a narrow category of such material, prior statements made by the witness. See United States v. Head, 586 F.2d 508, 512 (5th Cir.1978) (describing a purpose of the Jencks Act as "assur[ing] that the witness had made no secret contrary statements in the past."). The statute thus establishes three essential elements of 3500 Material: (1) a statement by the witness, (2) in the possession of the United States, (3) that relates to the subject matter of the witness's testimony. See 18 U.S.C. § 3500. My conclusion that the WitSec Inspectors were part of the prosecution team resolves the second element with respect to whatever statements are contained in the tapes. I note, however, that a number of El-Hage's purported Jencks claims are, nevertheless, non-starters because they lack one of the other two essential elements.
1. "Statement" by al-Fadl
El-Hage's Category (1) claim, that the tapes reveal the "full scope" of al-Fadl's cooperation agreement with the Government, fails because El-Hage has not identified any statement by al-Fadl in the tapes which might satisfy the first statutory requirement.[33] Indeed, rather than relying upon a statement by al-Fadl, El-Hage points to a statement by one the FBI agents interviewing al-Fadl. In that statement, the agent discusses the possibility of al-Fadl going to jail, and recounts a conversation the agent had with al-Fadl's wife on the subject.
This statement might well qualify as 3500 Material for the agent if the agent had testified about representations made to al-Fadl regarding the jail time al-Fadl *492 faced. El-Hage, however, has not cited any such trial testimony by the agent. Thus, because the Jencks Act's disclosure obligation is witness-specific, the agent's statement simply is not part of al-Fadl's 3500 Material. See 18 U.S.C. § 3500; see also United States v. Lamma, 349 F.2d 338, 340 (2d Cir.1965) (noting that, pursuant to the Jencks Act, "Congress intended to restrict defense access to statements of government witnesses, for purposes of impeachment, to those statements for which the witness and not the government agent is responsible").[34]
2. "Relating To" The Subject Matter of al-Fadl's Testimony
The fact that a government witness's prior statement is in the Government's possession does not, standing alone, make that statement 3500 Material. The statement must still "relate[] to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b) (emphasis added). Neither the Act, nor relevant case law, however, establishes a clear benchmark for determining which statements satisfy this requirement.
The core principles are clear, "[t]he statement must relate generally to the events and activities testified to." United States v. Cardillo, 316 F.2d 606, 615 (2d Cir.1963). Further, statements that are merely "incidental or collateral" do not "relate." Birnbaum, 337 F.2d at 497. "Thus, if [a] statement deals only with the witness's general background and personal history and does not deal with the events and activities testified to on direct examination, it is not producible under the Act." Cardillo, 316 F.2d at 615. Courts applying these core principles, however, have come to widely divergent conclusions regarding what types of statements might be said to "relate to" a witness's direct testimony.
Some courts have held that only a witness's prior factual narrative may "relate to" the subject matter of the witness's direct testimony. See, e.g., United States v. Anderson, Nos. 03-3009-JWL, 98-20030-01-JWL, 2004 WL 624966, *5 (D.Kan. March 25, 2004) ("The type of `statement' contemplated by the Jencks Act is a factual narrative."); Lovern v. United States, 689 F. Supp. 569, 586 (E.D.Va.1988) ("The Court first concludes that the letters are not Jencks Act material. They are not narratives concerning past events"); see also United States v. Gambino, 835 F. Supp. 74, 92 (E.D.N.Y.1993) ("The notes clearly do not reflect the kind of factual narrative contemplated by the Jencks Act"). Such courts have largely based this restrictive interpretation of "related to" on the concurrence of Justice Stevens in Goldberg v. United States, 425 U.S. 94, 114, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976) (Stevens, J., concurring). See, e.g., Anderson, 2004 WL 624966, at *5; Lovern, 689 F.Supp. at 586. In that concurrence Justice Stevens stated that, in order for a writing to qualify as a producible Jencks Act statement, "more than relevance to the testimony and approval by the witness is necessary." Goldberg, 425 U.S. at 114, 96 S. Ct. 1338. The purported statement "must first of all be the kind of factual narrative by the witness that is usable for impeachment." Id.
The Second Circuit has rejected the argument that the term "relate to" is "limited *493 to factual narratives." United States v. Borelli, 336 F.2d 376, 393 (2d Cir.1964). In so doing, the Court relied upon Rosenberg v. United States, 360 U.S. 367, 370, 79 S. Ct. 1231, 3 L. Ed. 2d 1304 (1959), where the Supreme Court held that "A statement by a witness that she fears her memory as to the events at issue was poor certainly `relates to the subject matter as to which the witness has testified.'" 360 U.S. at 370, 79 S. Ct. 1231. Applying Rosenberg, the Second Circuit reasoned, "[w]e can see no reason why a statement that would support impeachment for bias and interest does not `relate' to the witness' testimony as much as a statement permitting impeachment for faulty memory." Borelli, 336 F.2d at 380.
Thus, within this Circuit, "a statement may `relate,' within the meaning of [the Jencks Act], not only to the witness' factual narrative, but also to impeachment of his direct testimony by showing bias and interest." United States v. James, 609 F.2d 36, 48-49 (2d Cir.1979). Though this interpretation of "relate to" is broad, it is not without limits. Although some statements useful for impeachment "may relate" to the witness's testimony, id. at 48, "it is [] clear that not all statements that might in some way be helpful in impeaching the witness are producible" and the "particular facts [of the situation] must control." Birnbaum, 337 F.2d at 498.
With this authority in mind, I turn to the question of which of al-Fadl's videotaped statements cited by El-Hage relate to al-Fadl's direct examination. This inquiry requires that I compare each videotaped statement with any purportedly related testimony from al-Fadl's direct examination. Accordingly, my June 7 Order required El-Hage's counsel to identify any portions of al-Fadl's direct examination to which the videotaped statements allegedly relate.
a. Categories (2), (4) and (5)
For three of his categories of purported Jencks statements El-Hage has not directed my attention toward any allegedly factually-related direct testimony. Instead he argues that the videotaped statements would have impeached al-Fadl by showing his bias or interest and "put[ting] the lie to the notion that Mr. al Fadl's priority was to tell the truth, as opposed to being part of the prosecution team and doing his part to secure convictions."
i. Category (2)
Within Category (2), El-Hage identifies statements by al-Fadl purportedly related to "INS and Visa Issues."[35] In those statements al-Fadl expresses concern over his immigration status and tells agents and prosecutors, "I need you to give me now, for [sic] the citizenship." He later states:
what I understand from this [i.e., the cooperation agreement] is that the one-year visa is renewable subject to the testimony itself. Or, maybe it's a tool the government might use to hold back from getting the visa as a renewal visa.... Something goes wrong, they would say, "Oh, we don't want to renew that visa." But, if I had a ... three- to five-year visa, it would be different, because I'll be more comfortable knowing that they cannot kick me out of the country within the three years after my testimony.
A strict reading of the Jencks Act's "relating to" requirement would not encompass these statements, as El-Hage has not identified any direct testimony by al-Fadl *494 regarding immigration benefits inuring to him from his government cooperation. Likewise, the restrictive "factual narrative" requirement imposed by some courts would hold these statements beyond the scope of Jencks. Under Second Circuit precedent, however, these statements, which arguably reflect al-Fadl's bias or interest, may satisfy the Act's "relating to" requirement.
The cited statements suggest that al-Fadl perceived or feared a quid pro quo between his trial testimony and his immigration status. Indeed, al-Fadl specifically refers to his impending trial testimony within the second statement, apparently voicing a concern that the government might not review his visa if the trial testimony "goes wrong." Under the Second Circuit's test, I find this to be sufficient to render the statements related to al-Fadl's testimony. See Borelli, 336 F.2d at 392-93 (rejecting argument that witness's "offer[] of his assistance to the Government `providing we can come to some sort of an agreement' and that `some thing can be done for me'" was not related to witness's testimony). Accordingly, I find these two statements to be producible 3500 Material.
ii. Category (4)
In Category (4), El-Hage identifies videotaped statements by al-Fadl allegedly indicating that al-Fadl believed he was part of the "prosecution team." In these passages al-Fadl discusses his cooperation and states, "I don't want to prove myself, I prove already. But now I feel like, I love to do this ... I'm like addicted now." Al-Fadl also tells agents and prosecutors, "we work three years. You are my friends, be very honest with me" and "I love to help you, to help the case." El-Hage also cites two similar statements where al-Fadl states, "I love my job. I I love what I do now. It's what I do now is like my prayer," and "any time I ask about money, I feel bad because when I work with you I feel I do this like trial. I feel like this is something great my life, something correct my history." Notably, the four latter statements are snippets of a conversation between al-Fadl, prosecutors and agents regarding medical expenses the Government provided for al-Fadl's father in the Sudan.[36] Indeed, these snippets do not reflect the focus of the conversation and might best be characterized as passing comments.
Plucked from their context and grouped together under the heading, "Mr. al Fadl as part of [the] government team," these statements appear to provide some ammunition for impeaching al-Fadl as biased. They fall short, however, of the implied quid pro quo alluded to in al-Fadl's Category (2) statements. Indeed, when read in context, the Category (4) statements have little of the import El-Hage ascribes to them. Nevertheless, under the Second Circuit's standard, I find these statements to be producible 3500 Material because they relate to al-Fadl's direct testimony in that they might be used to impeach him for bias.
iii. Category (5)
El-Hage cites a statement in Category (5) where al-Fadl discusses his "reasons for [his] cooperation" with the United States. In that statement al-Fadl recounts:
[I]t's simple. Because I went to [REDACTED], I went to [REDACTED] and no one help me. I quit the job with the with the group. And I went to five Muslim countries, and no one would help me. And, I went to the American Embassy, and it's the first time, until now *495 it's everything [sic] good. Nobody hurt me, nobody treat me bad, nobody hurt my feelings, you know?
I see little impeachment value in this statement. It does not suggest a quid pro quo like the Category (2) statements, and I do not read it as suggesting any improper motive for al-Fadl's testimony.
It is not clear to me precisely how El-Hage's counsel believes the statement might have been useful in cross-examination. El-Hage's brief suggests that the statement would have "corroborated the defense claim that Mr. al Fadl was merely an opportunist who was looking for a refuge once he was exiled from Sudan (for stealing far more from Sudanese banks than he ever may have pilfered from Mr. bin Laden), and would sell his services to the highest bidder." I do not believe the statement has such import. Moreover, even if the statement might have some value as impeachment material, "not all statements that might in some way be helpful in impeaching the witness are producible." Birnbaum, 337 F.2d at 498. Any impeachment value of this statement is simply too attenuated to render it "related to" al-Fadl's testimony on direct examination. Accordingly, this statement is not producible 3500 Material.
b. Categories (3), (6), (9), (10), (11) and (13)
El-Hage has cited numerous videotaped statements by al-Fadl in Categories (3), (6), (9), (10), (11) and (13). Pursuant to my June 7 Order, he has identified the portions of al-Fadl's direct examination purportedly addressing subject matter to which each of these statements relate. After analyzing the statements and the cited testimony, I find that El-Hage has identified some 3500 Material. Many of his claims, however, miss the mark.
i. Category (3)
In Category (3), El-Hage cites a statement by al-Fadl, purportedly showing "Issues as to [al-Fadl's] Family Members." In that statement, a government agent asks al-Fadl whether a certain member of his family "was ever involved in anything that would have hurt the United States."[37] Al-Fadl responds, "No .... he he no, never. But, he was in Afghanistan like other people when, you know, just when Afghani people they make war against Russia. A lot of people, thousands of people go over there."
El-Hage argues that this statement relates to al-Fadl's trial testimony regarding arrangements made to bring his family to the United States as part of his cooperation with the government. I cannot agree. On direct Al-Fadl testified:
Q. After you pleaded guilty did the government do anything for your family, your immediate family in Sudan?
A. Yes.
Q. What did the government do?
A. Bring them to the United States.
T.Tr. 401. He further testified:
Q. During the time that you have been living in the United States, first by yourself and then joined by your family, who *496 was it that has paid your housing, living and medical expenses?
A. When I was in New York, it was the FBI.
Q. And after you left FBI custody, who paid for your expenses, housing, food, medical, etc.?
A. The Witness Protection.
T.Tr. 417. Reading the videotaped statement side-by-side with the purportedly related trial testimony, I can only conclude that the statement is, at best, incidental and collateral to al-Fadl's direct testimony. I simply cannot find that two passing mentions of the fact that al-Fadl's immediate family was brought to the United States at government expense opens the door to statements regarding whether any member of al-Fadl's family was in Afghanistan during the Afghanis' war with the Soviet Union. I also reject El Hage's argument that this statement constitutes Jencks material because it might be used to impeach al-Fadl for bias. I am dubious that this statement provides any impeachment material; I am certain it provides none "relating to" al-Fadl's direct testimony. The Category (3) statement is not producible 3500 Material.
ii. Category (6)
In Category (6) El-Hage cites statements by al-Fadl purportedly providing "Impeachment of Mr. al Fadl's Claims That He Was an Al Qaeda `Insider' With Detailed and Intimate Knowledge of Its Operations In the Sudan." These statements fall into three sub-categories: (a) mentions of al-Fadl's work history, (b) statements regarding al Qaeda's purchase of an airplane, and (c) a statement regarding El-Hage's travel to Cyprus.
During one videoconference, al-Fadl laments to agents the difficulty he is having as a WitSec protectee because his situation practically dictates that he is either unemployed or under-employed. Al-Fadl complains that his business skills are atrophying since entering the program, stating:
all my experience about business, I am stupid, now. I forget everything. Because four years I didn't do anything like before. Sometime I say I run the company ... $6 million under myself, 80 cars. More than 100 guys around me.
Al-Fadl also discusses his difficulty with his current job:
GOVERNMENT: ... I thought you had a job, or were working at a job.
AL-FADL: ... I try, but it's hard, you know?
GOVERNMENT: Why is it hard?
AL-FADL: It's not too much money. And also psychology, it's hurt my feeling, you know .... because I never work under someone. You know, always I I do my own business. Or, if I work for Bin Laden, and my father, I run business. A lot people under. And it's just, I don't know.
El-Hage contends that these statements relate to two pages of al-Fadl's testimony where he briefly describes receiving a salary from al Qaeda and later helping to distribute such salaries to other members.[38] I cannot agree. At most these two statements "deal[] only with [al-Fadl]'s general background and personal history and do[] not deal with the events and activities testified to on direct examination." Cardillo, 316 F.2d at 615. More likely, the statements are little more than *497 idle conversation revealing only al-Fadl's frustration with his inability to keep a good job. In either case, the statements are unrelated to the subject matter of the cited testimony, are of no significant impeachment value, and are not producible under the Act. See id.[39]
At trial the Government presented testimony from Essam al-Ridi, who described purchasing, and subsequently piloting, an airplane for al Qaeda. Al-Ridi testified that El-Hage contacted him, at the behest of Usama bin Laden, to purchase an airplane capable of, inter alia, transporting Stinger missiles from Peshawar, Pakistan to Khartoum, Sudan. Although al-Ridi purchased the requested plane, and piloted it on a handful of occasions (including transporting al Qaeda's military commander on one trip), he testified that he did not actually transport the Stinger missiles as discussed. Importantly, al-Fadl offered no testimony on direct examination about al Qaeda's purchase of an airplane.
During the video-teleconferences, al-Fadl is asked by agents whether he ever heard about bin Laden's plans to purchase an airplane:
GOVERNMENT: Okay. Quick question: Did you ever hear about bin Laden trying to buy an airplane?
AL-FADL: Well, what I tell you before, some people they say he buy plane or he rent plane.
* * * * * *
GOVERNMENT: Okay. Who was assigned to get the airplane?
AL-FADL: I don't know.
GOVERNMENT: Who was supposed to get it for Bin Laden?
AL-FADL: I really don't know. I I don't have too much information about the plane.
Al-Fadl then recounted the little information he had; he was shown a plane, which he described as "[l]ike the small plane, Cessna plane," by a bin Laden employee who said, "This is our plane." Al-Fadl further recalled that someone named Jamil, an executive with Toyota, was associated with the plane.
As noted supra, al-Fadl offered no testimony regarding the al Qaeda airplane purchase. Nevertheless, El-Hage claims these statements relate to his direct testimony because al-Fadl testified about a discussion he had with al Qaeda co-conspirator Abu Fadhl al-Makkee. I cannot agree. Al-Fadl testified that al-Makkee told him al Qaeda wanted to transport Stinger missiles from Afghanistan or Pakistan to Sudan and planned to rent a Sudan Airways cargo plane for this purpose. I do not see how the purported Jencks statements, reflecting that al-Fadl knew little of any proposed airplane purchase, and that he was once shown a small plane and told it belonged to bin Laden's people, relate, even generally, to the specific plan recounted by al-Makkee to rent a cargo plane for transporting weapons to the Sudan. Once again, I find that these statements, at most, relate to incidental and collateral matters and accordingly are not producible 3500 Material. See Birnbaum, 337 F.2d at 497.
I am also not persuaded by El-Hage's argument that these statements are 3500 Material because of their alleged impeachment value. El-Hage argues that "it is inconceivable that someone who claimed as close an involvement [with al Qaeda] as Mr. al Fadl did would have been so ignorant *498 of the particulars of [the airplane's] purchase." El-Hage has not cited, however, any authority establishing that the type of ill-defined impeachment value described here renders a statement "related to" a witness's testimony on direct examination. Indeed, the cases appear to be to the contrary. See, e.g., Birnbaum, 337 F.2d at 498 ("it is [] clear that not all statements that might in some way be helpful in impeaching the witness are producible.")
While the Second Circuit has adopted a relatively broad interpretation of which statements may "relate" to a witness's direct testimony, I do not understand it to extend to the statements cited by El-Hage. Although certain statements useful for impeaching a witness may, under Second Circuit authority, relate to the witness's testimony, such statements appear to be limited to those that might impeach a witness for bias, interest, faulty memory, or some similar reason. See James, 609 F.2d at 48-49 ("a statement may `relate,' within the meaning of [the Jencks Act], not only to the witness' factual narrative, but also to impeachment of his direct testimony by showing bias and interest.") (emphasis added); see also Borelli, 336 F.2d at 380 ("[w]e can see no reason why a statement that would support impeachment for bias and interest does not `relate' to the witness' testimony as much as a statement permitting impeachment for faulty memory."). Absent authority extending the Court of Appeals' interpretation of "relate" to encompass the type of "if you know so much, why didn't you know about X" impeachment described by El-Hage, I cannot find al-Fadl's statements regarding al Qaeda's airplane purchase to be 3500 Material.
In the final Category (6) statement cited by El-Hage, al-Fadl responds to government questions regarding which al Qaeda associates had traveled to Cyprus:
GOVERNMENT: Okay. All right. Going back to Cyprus. Um, do you know if Hajer was ever in Cyprus?
AL-FADL: Who? Abu Hajer?
GOVERNMENT: Abu Hajer.
AL-FADL: No, I don't remember.
GOVERNMENT: How about Wadih el Hage?
AL-FADL: No.
During his direct examination, referring to El-Hage by one of his aliases (Abu Abdallah Lubnani), al-Fadl testified to the contrary:
Q. Do you know if anyone else besides Abu Isra al Iraqi ever traveled to Cyprus?
A. I remember Abu Rida al Suri and Abu Abdallah Lubnani.
T.Tr. 367-68. The videotaped statement not only relates generally to the subject matter of the cited testimony, it clearly contradicts it. This statement is producible 3500 Material and appears to be the type of "contrary statement[] in the past" to which the Jencks Act is targeted. See Head, 586 F.2d at 512 (describing a purpose of the Jencks Act as "assur[ing] that the witness had made no secret contrary statements in the past.").
iii. Category (9)
In Category (9), El-Hage cites videotaped statements by al-Fadl discussing Abu Hajer (also known as Salim), a religious authority within al Qaeda who was partly responsible for religious lectures and fatwahs within the organization.[40] In *499 the first statement al-Fadl discusses certain lectures and fatwahs by Abu Hajer:
GOVERNMENT: Did he [Abu Hajer] talk about America in his fatwah, the lecture about jihad?
AL-FADL: I don't remember now particular, butI I remember Abu Hajer, he talk a lot about, yeah, about Westerner, about the United States, about, uh, something in English now I don't know how to say it in English. But we call it [Arabic word], mean like one day, Islamic and the Westerner, one day they going to go against each other. And he say a lot of things now, it's it's being start for that.
In the second statement al-Fadl discusses his wife's frustration with being in the WitSec Program and recounts a prior experience where he and his wife were "stuck in Pakistan":
[W]e were stuck in Pakistan, I think for two months. They don't let her [al-Fadl's wife] go back to Sudan, because I have problem with Abu Hajer.
El-Hage argues that both of these statements relate to al-Fadl's direct testimony regarding various al Qaeda fatwahs, and specifically fatwahs and religious statements by Abu Hajer. I agree that the first statement relates to the referenced testimony. Indeed, I see no rational argument that al-Fadl's videotaped statement describing the content of some of Abu Hajer's lectures and fatwahs does not "relate generally" to his testimony on essentially the same subject. See Cardillo, 316 F.2d at 615. Accordingly, the first statement is producible 3500 Material. It is, however, equally clear to me that the second statement is nothing more than "incidental or collateral" to the cited testimony. Id. at 616. It is, therefore, not producible.[41]
iv. Category (10)
In Category (10) El-Hage cites several statements al-Fadl made in connection with two photographs shown to him by government agents. According to El-Hage, these statements reflect "al-Fadl's willingness to mold [his] testimony." As the agents show al-Fadl the first photograph, they ask if it depicts Abu Naem al Libi.[42] Al-Fadl replies, "It similar, but no. Not him." The agents then show al-Fadl a second photograph and he states, "You know, the face everything look right, but Abu Naem, he don't lose hair." The agents then ask al-Fadl how long it has been since he has seen Abu Naem, to which al-Fadl replies, "I think nine years, maybe, or eight years." The agents then ask whether the picture might be of Abu Naem if he has begun to lose some of hair. Al-Fadl responds, "It could be because I do too." After looking more closely at the photograph, through a back-and-forth with agents, al-Fadl states, "it's very similar like Abu Naem," "It just it's just a few years, you know since I see him. But, I think it's Abu Naem," and, finally, "I think it's Abu Naem."
El-Hage claims that these statements relate to al-Fadl's direct testimony regarding a shipment of weapons and explosives from the Sudan in approximately 1993. Al-Fadl testified that he and several other al Qaeda associates transported four crates of weapons, via a truck driven by Abu Naem, to a ship in the Port of Sudan. The mention of Abu Naem in the testimony is brief. Al-Fadl did not identify Abu Naem while on the stand, and *500 I do not see that his videotaped statements about a photograph looking similar to Abu Naem are anything more than tangentially related to the cited testimony. Accordingly, they are not producible 3500 Material. Nevertheless, the statement where al-Fadl indicates that it has been eight or nine years since he last saw Abu Naem (a statement made on approximately November 1, 2000) does, however, appear to be related generally to al-Fadl's testimony that, approximately seven years prior, he had been involved in a weapons shipment with Abu Naem; the statement is producible 3500 Material.
El-Hage cites a second videotaped statement by al-Fadl that he claims is likewise related to the weapons shipment testimony. In that statement, al-Fadl also discusses Abu Naem:
GOVERNMENT: Yeah, okay. Did you remember anything else about Abu Naem? Since you spoke to Mike, did you remember anything further?
AL-FADL: About what he did, or ?
GOVERNMENT: Yeah. Besides what you told him already.
AL-FADL: I think it's just like what I tell him. You know, it's just he's one of the al Qaeda group, and
GOVERNMENT: Okay, that's fine.
AL-FADL: and he's in Afghanistan, and Sudan and he move weapons. And, uh, he move most of the weapons go to Yemen from Sudan in '94, it's go through him.
GOVERNMENT: Okay.
AL-FADL: From other countries to Port Sudan in Sudan to Yemen, you know, go through his truck, or from Khartoum, because sometimes they bring the the stuff through Hajara Construction.... [I]f they need to send Yemen, or other country something, it's go through his truck to go to Port Sudan, and to the boat or another boat.
I agree that this statement, which gives a general description of Abu Naem's involvement in weapons trafficking in Port Sudan generally relates to al-Fadl's direct testimony about the single episode of such trafficking in which he and Abu Naem participated. Accordingly, this statement is producible 3500 Material.
Finally, I reject El-Hage's argument that al-Fadl's initial statements about the photograph resembling Abu Naem, and his final statement, "I think it's Abu Naem," reflect "Mr. al Fadl's Willingness to Mold Testimony," rendering the statements useful for impeachment. If al-Fadl had testified at trial in any way about identifying Abu Naem, his prior statements reflecting his uncertainty when viewing the photographs would have obvious impeachment value. Absent such testimony, I do not find the statements to be of much use for impeachment. Despite El-Hage's assertion that the statements reflect al-Fadl's susceptibility to coaching by the agents, I do not see that the statements carry such sinister import. Because al-Fadl offered no testimony relating to an identification of Abu Naem, I am skeptical that the statements offer any genuine impeachment material. Moreover, even assuming the statements might support some measure of impeachment, I do not find it sufficient to render them related to al-Fadl's direct testimony. See Birnbaum, 337 F.2d at 498 ("it is [] clear that not all statements that might in some way be helpful in impeaching the witness are producible.").
v. Category (11)
In Category (11), the "Tehrana group" statements, El-Hage cites a number of statements by al-Fadl where he discusses with agents a consensually recorded *501 phone conversation he had with Mohamed Suleiman al-Nalfi.[43] The conversation with al-Nalfi involved the death of Abu Ubaidah al-Banshiri, al Qaeda's military commander.[44] Al-Banshiri's death was relevant to El-Hage's trial because, inter alia, the Government sought to prove that El-Hage had gone to investigate al-Banshiri's death on al Qaeda's behalf, and had lied to the grand jury regarding his knowledge of al-Banshiri's death and his participation in al Qaeda's investigation. Indeed, El-Hage's participation in the al Qaeda investigation of al-Banshiri's death was among the overt acts for the charged conspiracies.
In the first videotaped statement El-Hage cites, al-Fadl recounts that al-Nalfi told him that someone from al-Banshiri's family and someone from al Qaeda went to the site of al-Banshiri's death, "to be sure that he died. And they were sure that he died." When asked by the Government whether al-Nalfi said anything about the al Qaeda associate investigating the death, al-Fadl replied, "I think he mentioned him, butI because the talk is fast, and the phone I think over there is not good.... If I go through the the tape".[45]
In the second videotaped statement El-Hage cites, al-Fadl discusses his impressions after reviewing the audiotape of his call with al-Nalfi. In sum, al-Fadl states that the tape is of very poor quality (worse than the call itself, where "the phone ... over there is not good"), but that he believes al-Nalfi may have told him an al Qaeda person from "the Tehrana group" went to investigate al-Banshiri's death.
Despite conceding that "Mr. al Fadl did not testify about either of these conversations, or the ferry boat accident in which Mr. al-Banshiri perished," El-Hage nevertheless contends that the cited statements relate to al-Fadl's testimony and, accordingly, are producible 3500 Material. I cannot agree. Although the statements relate to the subject matter at issue in the case, as the Jencks Act itself makes clear, a statement's mere relation to the subject matter at issue in a case does not render it producible. See United States v. Butenko, 384 F.2d 554, 568 (3d Cir.1967), vacated on other grounds, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969) ("a defendant is not entitled to statements when they do not relate to the subject matter as to which the witness has testified on direct examination, even though they relate to the subject matter of the indictment, information, or investigation."). Rather, only a statement related to a witness's testimony is producible. Id. El-Hage has cited no testimony to which these statements even generally relate, and his recitation that "Mr. al Fadl certainly did testify about Mr. al Banshiri, about Mr. al Nalfi, and of course, about Mr. El Hage, and their relationship with al Qaeda," is unavailing.
*502 Al-Fadl's testimony regarding al-Banshiri consists only of a general discussion of al-Banshiri's position within al Qaeda and certain specific interactions involving al-Banshiri. Al-Fadl never mentions al-Banshiri's death, or the ensuing al Qaeda investigation thereof, and I do not understand his testimony to have opened the door to prior statements about these subjects. Although I construe broadly the principle that a statement need only relate generally to the subject matter of a witness's testimony in order to fall within the Jencks Act, that principle does not stretch to the extent El-Hage suggests. Al-Fadl's testimony regarding al Qaeda and El-Hage also involve no subject matter to which the statements can reasonably be said to relate. Indeed, if general testimony about an organization (like that given by al-Fadl regarding al Qaeda) related to the type of statements El-Hage cites, the Jencks Act would take on a breadth at odds with its plain language. In short, because the cited statements do not relate to any of al-Fadl's testimony they are not producible 3500 Material.[46]
vi. Category (13)
In Category (13), under the heading, "Egyptian Jihad and al Qaeda," El-Hage refers to two videotaped statements by al-Fadl, alleging they relate to al-Fadl's testimony regarding the loyalty oath, or bayat, taken by al Qaeda members.[47] I cannot agree.
In the first statement, al-Fadl discusses al-Nalfi's background with al Qaeda and Egyptian Islamic Jihad:
GOVERNMENT: How does-how does he [al-Nalfi] get so involved with Jihad, the Jihad group?
Al-FADL: Well, I think Abu Ubaidah [al-Banshiri] and Abu Hafs, they always try Sudanese people to help Jihad Group. Because other nationality, like Jordan, Saudi, it's a little far from Egypt. But, Sudan Port, it's big port, and it's easier, you know, to to do it through Sudanese people. And, I remember Abu Ubaidah, he ask me one time about Abu (inaudible) al Sudani, if he would like to help Jihad group and al Qaeda group. And I ask Abu (inaudible) he say no. So, it's just my analysis. He try all the Sudanese people, and probably he ask Nalfi, and he accept that.
In the second statement cited by El-Hage, al-Fadl responds to a question about two individuals Al-Fadl had identified from a photograph during one of the videoconferences:
GOVERNMENT: ... [D]o you know if any of those two guys were involved in any terrorist activities? I don't I don't mean, you know, Jihad against the Soviets. I'm talking about anything else.
AL-FADL: [A]gainst against the United States, I'm not sure.
According to El-Hage, these statements relate to al-Fadl's direct testimony briefly describing his understanding of bayat, the *503 loyalty oath sworn by al-Fadl and other al Qaeda members.[48] In that testimony, al-Fadl stated that he understood the oath to mean that, "[i]f they [al Qaeda] ask me to go anywhere in the world for a specific mission or target, I have to listen." T.Tr. 199. He further explained that an individual pledging bayat was expected to do whatever was asked of him: "They say when you make bayat, and you agree about the al Qaeda and about the war, anything we can ask you if you are a doctor, maybe we ask you to wash car or anything." Id.
Reading the cited statements side-by-side with the allegedly related testimony, I do not see the relation El-Hage suggests. Indeed, I do not find that the cited statements rise even to the level of incidental relation to the cited testimony. I am also unpersuaded by El-Hage's suggestion that the statements have significant impeachment value. Accordingly, the Category (13) statements are not producible 3500 Material. See Birnbaum, 337 F.2d at 498.
c. Categories (7), (8), (12) and (14)
As he did with the previous group of Categories, for each statement El-Hage cites in Categories (7), (8), (12) and (14), he identifies purportedly related portions of al-Fadl's direct testimony. Unlike the previous group of Categories, however, the testimony citations for Categories (7), (8), (12) and (14) offer substantial support for the conclusion that the videotaped statements relate to al-Fadl's testimony and accordingly are producible 3500 Material.
i. Category (7)
In Category (7), El-Hage cites videotaped statements al-Fadl made regarding his own prior involvement with al-Nalfi in smuggling weapons, via camels, from the Sudan into Egypt. On direct examination the Government elicited testimony from al-Fadl regarding this smuggling. See T.Tr. 320-21. The videotaped statements clearly relate to the actions and events discussed in the testimony and, accordingly, are producible 3500 Material.
ii. Category (8)
In Category (8), El-Hage refers to three videotaped statements by al-Fadl that El-Hage claims relate to the scope of al-Fadl's involvement in al Qaeda's financial operations and the timing of his departure from al Qaeda. In the first statement, al-Fadl responds to Government inquiries regarding the payment of rewards to al Qaeda personnel who had gone to Somalia. Al-Fadl describes a conversation he had with another al Qaeda associate regarding such rewards:
AL-FADL: From my understand, I know they give you reward. And I asked him that, and he just laughed so much.
GOVERNMENT: Do you remember when this was, Jamal?
AL-FADL: Uh for sure I remember that time I left the company. I didn't work like financial like that stuff. But, I I just, I don't know, in particular, what what what year.
*504 GOVERNMENT: You'd already left the company?
AL-FADL: I remember that time I already give Wadih El-Hage the my place in Taba Investments and bin Laden companies.
In the second statement al-Fadl responds to a question about how well al-Nalfi knew El-Hage. Al-Fadl states, "He knew him very well. He know him from Afghanistan when Wadia [El-Hage] I give him my place in Taba Investment on McNimir Street, all the time we see him in guest house. He know him very well."[49] Al-Fadl also discusses al-Nalfi in the third statement El-Hage cites. There al-Fadl discusses his hope that al-Nalfi will cooperate with the United States when confronted by authorities. Al-Fadl states:
I love if he came out and he work with you, because if he work with you, you going to get more information and maybe he going to recruit more people, or he going to tell you about something fresh information, because I left the group like around end of '94. But he still in Sudan, so that mean he could be if he's not in group, at least he know all the people he work before, so he know more information about what's going on.
At trial, al-Fadl testified about his role in paying salaries to al Qaeda members, and about training El-Hage to take over that responsibility. See T.Tr. 259. He also testified about leaving al Qaeda. T.Tr. 391-92. The videotaped statements briefly discussing al-Fadl's lack of involvement in the payment of rewards to al Qaeda members returning from Somalia, and his mention of transferring his salary payment responsibilities to El-Hage, relate generally to the subject matter of the former testimony. Al-Fadl's passing mention of leaving "the group like around end of '94" relates generally to the latter. Accordingly, these Category (8) statements are producible 3500 Material.
iii. Category (12)
In Category (12), El-Hage cites statements made by al-Fadl during discussions about al Qaeda sending personnel to Somalia to attack international relief operations involving members of the United States military. Those statements generally involve information al-Fadl gathered from al-Nalfi and other al Qaeda associates, and the conclusions al-Fadl drew *505 from this information. Al-Fadl testified on direct examination about al Qaeda sending personnel to Somalia to attack American troops. See, e.g., T.Tr. 279-85. The videotaped statements, accordingly, relate to al-Fadl's testimony and are producible 3500 Material.
iv. Category (14)
In Category (14), El-Hage cites a videotaped statement in which al-Fadl describes sentiments voiced within al Qaeda around the time the United States arrested Sheik Omar Abdel Rahman. In that statement Al-Fadl recounted, "[W]hen the people in the United States arrest Omar [Abdel Rahman], some people they say, `Why bin Laden's group they don't do something against the United States.'" On direct examination, al-Fadl gave substantially identical testimony:
Q. What discussion was there within al Qaeda as to what to do in response to the arrest of Sheik Omar Abdel Rahman?
A. They talk about what we have to do against America because they arrest Sheik Omar Abdel Rahman.
Q. Did they end up doing, carrying anything out, as far as you know?
A. No.
Q. Did anyone express any dissatisfaction with the fact that nothing was done?
A. I remember some of the members in al Qaeda, they left the group, and they say no, we not going to stay in group because the group, they don't want to do anything to help Sheikh Omar Abdel Rahman.
T.Tr. 296.[50] The videotaped statement not only relates to the direct testimony, the testimony largely paraphrases the statement. Accordingly, the cited statement is producible 3500 Material.
3. Statements of High Value
As set forth in detail above, the videotapes and transcripts of the teleconferences contain the following producible 3500 Material: the purported impeachment statements (consisting of al-Fadl's statement that he needed citizenship and his statement implying that he feared a quid pro quo existed between his testimony and his immigration status; his statements that he loved his cooperation work with the agents, considered them to be his friends, felt like he was "addicted" to the work, and felt that his cooperation redeemed his past bad deeds); al-Fadl's statement that he did not know whether El-Hage went to Cyprus; al-Fadl's statements describing his involvement in weapons smuggling to Egypt via camel; al-Fadl's three brief statements regarding his lack of involvement in paying rewards to al Qaeda members returning from Somalia, transferring his position at Taba Investments to El-Hage, and leaving "the group like around end of '94"; al-Fadl's description of one of Abu Hajer's lectures; al-Fadl's statement that the last time he saw Abu Naem was eight or nine years ago; al-Fadl's statement that certain al Qaeda members expressed their displeasure at the group's failure to attack the United States in response to the arrest of Sheik Omar Abdel Rahman; and al-Fadl's statements about al Qaeda personnel going to Somalia. I turn now to the question of whether any of these statements constitute material of "such a high value that it could not have escaped [the prosecutors'] attention" if the statements had been provided to them by a competently trained WitSec Inspector. See Hilton, 521 F.2d at 166.
*506 Although I know of no helpful authority elaborating on the phrase, "evidence of such high value that it could not have escaped [the Government's] attention," I find no great difficulty in determining whether al-Fadl's statements satisfy the standard. Hilton's prophylactic rule is plainly targeted at preventing intentional suppression of evidence. The language regarding "evidence of such high value that it could not have escaped [the Government's] attention," sets forth the circumstances where a presumption of intentional suppression is warranted. Such a presumption is appropriate where: (1) the statement obviously constitutes 3500 Material, and (2) is of significant value to the defendant's case.
a. Purported Impeachment Material
I have no doubt that the most valuable 3500 Material contained in the videoconferences is al-Fadl's statement arguably suggesting that he fears a quid pro quo may exist between his testimony and his immigration status in the United States. In my forty-seven years at the bar and on the bench, I have seen few routes to impeachment that are more effective than words from a witness's own mouth suggesting that he understands he must shade his testimony in order to win the favor of one of the parties. Where the witness seeks to curry favor with the Government, the impression made upon the jury is generally quite significant. Nevertheless, I do not find that al-Fadl's statements in this regard were of such a high value that they would warrant drawing an inference of intentional suppression.
As discussed at length, supra, the answer to whether these statements satisfy the Jencks Act's "relat[ing] to" requirement is not immediately apparent. Indeed, courts are divided on the issue of whether statements useful solely for impeaching a witness for bias or interest "relate to" the witness's testimony. Language from Supreme Court cases is quoted by courts applying both the narrow, "factual narrative" test and those applying the broader "relation by impeachment for bias" test. Further, even though this Circuit has adopted a permissive test in which statements useful for impeaching on the basis of bias or interest may relate to a witness's testimony, the contours of that test are ill-defined, and not all such statements "relate" within the meaning of the Act.
In short, it is conceivable to me that a well-intentioned prosecutor could overlook al-Fadl's statements regarding his immigration concerns without recognizing the statements as 3500 Material. Likewise, and for the same reasons, a reasonable prosecutor might innocently overlook al-Fadl's statements arguably expressing his camaraderie with the government agents and expressing his "love" of cooperating with the Government. Further, these, "part of the team" statements are, as the Government notes in its brief, ambiguous. While El-Hage reads the statements as betraying a sinister collusion between al-Fadl and the agents, the statements support, at least equally well, the inference that al-Fadl was "commit[ed] to fulfilling his obligations under his cooperation agreement, which, as was made clear in that document, was al Fadl's only opportunity to help himself potentially stay out of jail and safely in the United States." This ambiguity too belies the statements being so important they could not have been accidentally overlooked. See United States v. Rosner, 516 F.2d 269, 272 (2d Cir.1975) (upholding district court's finding that ambiguous evidence's "dubious value could readily have escaped a prosecutor's attention").
*507 Thus, although they constitute 3500 Material, none of the Category (2) or Category (4) statements cited by El-Hage warrants an inference of intentional suppression. None of those statements are "of such high value that [they] could not have escaped [the Government's] attention." Hilton, 521 F.2d at 166.
b. Statements Regarding El-Hage's Travel to Cyprus
Although al-Fadl's videotaped statement that he did not know whether El-Hage went to Cyprus, and his contradictory direct testimony, would have provided defense counsel an opportunity to show a clear contradiction, that contradiction involves an utterly tangential matter. The trial did not focus on any activity in Cyprus, and I reject El-Hage's argument that al-Fadl's inconsistent statement regarding whether El-Hage ever traveled there would have "cast[] further and grave doubt on Mr. al Fadl's testimony about his knowledge of Mr. El-Hage's affairs while in Sudan." In short, this contradiction involves minutiae.
Further, as the Government notes in its brief, El-Hage's defense primarily consisted of trying to show that, though he associated with terrorists and al Qaeda members, he was ignorant of any conspiracy to attack Americans and did not conspire with them. Rather, the argument goes, El-Hage was a legitimate businessman trying to make money for bin Laden's businesses. El-Hage, in fact, emphasized his travels in an effort to show he was engaged in business, not terrorism. See T.Tr. 5636-39 (summation by El-Hage's counsel emphasizing El-Hage's purported business travel).
c. Statements Regarding Weapons Smuggling via Camel
As he did on direct examination, during the videoconferences al-Fadl described his involvement with al-Nalfi in smuggling weapons from Sudan into Egypt, via camel. El-Hage claims that "the videoconference transcripts present a dramatically different account" than the trial testimony, and accordingly would have been of great value to the defense. I cannot agree. Reading all of al-Fadl's videotaped statements together, in context, they are almost entirely consistent with al-Fadl's direct testimony. Any potential differences between the two accounts are minimal, and appear to arise from ambiguities in the statements, rather than actual contradictions. I am wholly unpersuaded by El-Hage's claim that the videotaped statements somehow show that al-Fadl turned a secondhand account of al-Nalfi's smuggling into a first-person narrative of his own involvement during direct examination. On the whole, the impeachment value of these statements is trifling.
d. Statements Regarding Leaving al Qaeda and Transferring Some Responsibilities to El-Hage
Al-Fadl's three brief statements describing his lack of involvement in paying rewards to al Qaeda personnel returning from Somalia, transferring his position at Taba Investments to El-Hage, and leaving "the group like around end of '94," also amount to little of value. El-Hage argues that these statements seriously undermine al-Fadl's testimony, proving that he left al Qaeda years before he claimed, and further showing that he was never involved in any financial aspects of bin Laden's exploits. I cannot agree. Read in context these statements provide, at most, a minor discrepancy in al-Fadl's timeline, and an admission that he was not involved in a particular al Qaeda financial transaction. The statements are, accordingly, of almost no value.
*508 e. Statement Regarding Abu Hajer's Lecture
Al-Fadl's statement describing the content of some of Abu Hajer's lectures is, likewise, of little value and does not warrant an inference of intentional suppression. El-Hage argues that the statement shows that while al Qaeda believed a conflict with Westerners was brewing in the future, there existed no current intention to attack the United States. The statement, however, is not of such broad import. In fact, al-Fadl states that Abu Hajer described the conflict not only as potentially starting sometime in the future, but as currently beginning (Al-Fadl describes Abu Hajer as saying, "one day, Islamic and the Westerner, one day they going to go against each other. And he say a lot of things now, it's it's being start for that."). Moreover, given the other evidence indicating al Qaeda's intent to attack and kill Americans (including bin Laden's 1996 "Declaration of Holy War Against the Americans Who are Occupying the Land of the Two Holy Places," explicitly calling for the killing of Americans), al-Fadl's brief statement about the content of Abu Hajer's lectures is of minimal value.
f. Statements Regarding Abu Naem
Similarly, al-Fadl's statements about last seeing Abu Naem eight or nine years ago, and describing Abu Naem's role in weapons shipments are of minimal value. Al-Fadl's direct testimony involved Abu Naem only collaterally and was elicited by the Government primarily to impeach its own witness, al-Fadl, for his involvement in weapons shipments that al-Fadl believed might be used against Americans. The minor discrepancy in time, as to when al-Fadl last saw Abu Naem, would have had little effect on the testimony. Further, al-Fadl's statement describing Abu Naem's role in weapons shipments through Port Sudan only bolsters his testimony about the particular weapons shipment in which he participated with Abu Naem.
g. Statement Regarding Omar Abdel Rahman's Arrest
Al-Fadl's statement describing displeasure within al Qaeda at its failure to attack the United States in retaliation for the arrest of Omar Abdel Rahman is notable because it is substantially identical to al-Fadl's direct testimony on the same subject. The prior videotaped statement, thus, would have given El-Hage no information that was not already available to him in al-Fadl's testimony. The statement was, accordingly, of no value. Rosenberg, 360 U.S. at 371, 79 S. Ct. 1231 ("Since the same information that would have been afforded had the [3500 Material] been given to defendant was already in the possession of the defense by way of the witness' admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had the opportunity to inspect the [3500 Material].").
h. Statements Regarding al Qaeda Personnel Traveling to Somalia
Al-Fadl described at some length, both during the videoconferences, and on direct examination, al Qaeda's actions relating to sending its personnel to Somalia to attack United Nations and United States troops there.[51] El-Hage chiefly asserts that the videotaped statements reveal *509 that, in his testimony, al-Fadl "personalized [] event[s] that happened to someone else, thereby making for more dramatic and effective testimony that was insulated from effective cross examination." I cannot agree. Although al-Fadl's statements and testimony are not identical, this seems to be largely a product of ambiguities (rather than genuine inconsistencies) in both the testimony and the recorded statements. On the whole, I do not find that al-Fadl's statements about Somalia are of more than minimal value.
i. Value of 3500 Material
In sum, the most useful 3500 Material contained in the tapes is also the least obvious. A well-intentioned prosecutor could, in good faith, simply overlook it. Further, although the videotapes and transcripts contain a significant amount of obvious 3500 Material, those statements' value (individually, and as a group) is de minimis. Accordingly, the Government's failure to make timely production of the 3500 Material in the videotapes and transcripts does not warrant a presumption of intentional suppression. See Rosner, 516 F.2d at 272 (upholding district court's finding that information whose impeachment value was "de minimis" was not of "high value").
Neither individually, nor as a whole, do the Jencks Act statements rise to the level of "evidence of such high value that it could not have escaped [the prosecutors'] attention." Hilton, 521 F.2d at 166. Accordingly, El-Hage is not entitled to Hilton's relaxed standard applicable to intentional suppression of 3500 Material, but rather, is entitled to a new trial only if "there is a significant chance that this [undisclosed 3500 Material], developed by skilled counsel, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." Id.[52]
Because the overwhelming majority of the 3500 Material is of minimal value, it does not undermine confidence in the verdict and cannot satisfy this standard. Further, the only 3500 Material of significant value, al-Fadl's suggestion of an immigration quid pro quo for his testimony (even when bolstered by his arguable expressions of camaraderie with the prosecution team) is also insufficient to require a new trial. Since, however, the applicable standard under Hilton "closely tracks the materiality test applied under Brady and Giglio," I now turn to the question of whether El-Hage has identified any Brady or Giglio material in the video conferences, and whether any such material, considered in conjunction with the 3500 Material, is sufficient to "undermine confidence in the outcome" of El-Hage's trial. Jackson, 345 F.3d at 77 (citations and quotations omitted); see also Kyles, 514 U.S. at 436, 115 S. Ct. 1555 (noting that materiality of undisclosed evidence must be "considered collectively, not item by item").
*510 B. Brady/Giglio Material
"Under Brady v. Maryland ... the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is material either to guilt or to punishment." Jackson, 345 F.3d at 70 (internal citations and quotation omitted). "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." United States v. Coppa, 267 F.3d 132, 139 (2d Cir.2001).[53]
With a single exception (the so-called "Tehrana Group" information), El-Hage claims he was entitled to each piece of information he identifies in the videoconferences pursuant to Jencks, Brady and Giglio. In analyzing whether any of the information cited constitutes Jencks Act material, supra, I have reached numerous conclusions regarding how useful the information might have been to El-Hage's defense. Although I do not restate those conclusions here, they are equally relevant to the question of whether the cited material is "favorable" and "material" within the meaning of Brady. Thus, those statements I have previously found to have little or no impeachment value, in the context of my Jencks Act analysis, likewise fall short of Brady's requirement that producible information be "favorable" and "material." Accordingly, I do not revisit every statement and piece of information El-Hage cites. Several items do, however, warrant particular attention.
1. "Full Scope" of al-Fadl's Cooperation Agreement
El-Hage claims that the videoconferences reveal the previously undisclosed "full scope" of al-Fadl's cooperation agreement with the Government, thus constituting "quintessential" Brady material to which he was entitled.
a. Statement by FBI Agent
In support of this argument, El-Hage primarily points to an FBI agent's statement to al-Fadl in which the agent discusses the possibility of al-Fadl going to jail, and recounts a conversation the agent had with al-Fadl's wife. The agent states:
No one is going to jail. I said what I told [your wife] was that you may go to jail, okay? Because of, you know, because of what we do in court, and stuff like that. Which we know is not going to happen. But, there's always that chance. But it's not going to happen.
El-Hage argues that this statement is "a representation ... that Mr. al Fadl would not be sentenced to jail." The Government counters that the statement "was not a promise ... [but] was merely a prediction of what the agent believed might happen."[54] Neither of these descriptions, *511 however, fully captures the essence of the agent's words.
The agent's statement is doublespeak. It is utterly self-contradictory, vacillating between, "No one is going to jail" and "you may go to jail," returning to, "which we know is not going to happen," with the caveat, "but there's always that chance," and finally concluding, "[b]ut it's not going to happen." Although the statement was made in the context of reassuring al-Fadl that his wife would not be jailed if she left the WitSec program, it is abundantly clear that the agent also wanted to reassure al-Fadl about the potential prison time he faced. At the same time, the agent sought to leave himself an "out" enough ambiguity in his words so that they could not be interpreted as a promise to al-Fadl that he faced no jail time. I have no doubt that the agent would have never made this statement if he had known it was being recorded.
These reassurances to al-Fadl would have provided fertile grounds for impeachment by defense counsel. While not rising to the level of an undisclosed promise of leniency present in Giglio, the statement is clearly more than the agent's idle musings or prediction of what might happen. As I noted before, in my years on the bench I have found that juries often have strong reactions to witnesses who appear to be trying to curry favor with the Government. Even in light of the other impeachment material disclosed to, and used by, defense counsel, the agent's statement would have added significantly to the picture of al-Fadl as such a witness.
Although I believe this statement would have been strong impeachment evidence, I do not agree with El-Hage that the Government's failure to disclose the statement, and allowing al-Fadl to testify that no promises had been made to him regarding what his sentence would be, amounted to the use of false testimony. On direct al-Fadl replied, "No" when asked, "Have you been promised what your sentence will be." This answer was not false. The agent's statement, convoluted as it is, cannot fairly be construed as a promise. Indeed, though El-Hage implies that al-Fadl's testimony was false, even he does not seriously argue that agent's statement is a "promise," generally referring to it instead as a "representation."[55] Further, the agent's statement does not show al-Fadl's other testimony regarding his possible sentence (almost all of which is phrased in terms of al-Fadl's "understanding" of what sentence he faced) to have been false.
b. Failure to Discuss Impending Prison Sentence
El-Hage also argues that the videotapes constitute Brady material because, during the twenty-eight hours of conferences, "there is not a single expression of concern that any of [al-Fadl's] plans will be interrupted by imprisonment." El-Hage, however, cites no authority extending the Government's Brady obligation to cover such a "failure to discuss," and I do not find it to so extend.
c. Alleged Additional Benefits and Requests for Additional Benefits
Finally, El-Hage claims that Brady and Giglio entitled him to portions of the tapes allegedly revealing that the Government agreed to provide previously undisclosed, and "unauthorized," immigration, (and other) benefits to al-Fadl and his *512 family. Further, El-Hage argues he was entitled to portions of the tapes reflecting al-Fadl's numerous requests for additional benefits. El-Hage complains, "[w]hile al-Fadl's plea and cooperation agreement (and allocution), and the totality of money he received from the U.S. government, were provided as 3500 material, those sterile documents pale before the constant demands and requests Mr. al Fadl made of authorities as reflected in the transcripts."
Apart from the agent's doublespeak reassurances, addressed supra, I reject El-Hage's contention that the tapes somehow reveal that the government provided or promised benefits to al-Fadl that were previously undisclosed to the defense. Having thoroughly reviewed the original "3500 material," the videotapes and the transcripts, I find no such discrepancies and am unconvinced by the examples El-Hage cites. Although I agree that al-Fadl's frequent requests for additional benefits would have helped defense counsel to paint a somewhat more colorful picture of al-Fadl than that outlined by the cooperation agreement, I do not understand Brady or Giglio to have required the disclosure of those requests.
El-Hage has not cited any authority requiring the government to disclose every benefit requested by a witness (despite having already disclosed the actual benefits provided to that witness) and I decline to hold that Brady so extends. As far as these additional requests are concerned, disclosure of the cooperation agreement, money expended on al-Fadl and his family, and other information previously disclosed, provided defense counsel with ample material to cross-examine al-Fadl. In light of the significant benefits actually conferred, disclosure of al-Fadl's additional requests would have only slightly enhanced potential cross-examination on the subject. Accordingly, failure to inform the defense of these requests was not a Brady violation. See United States v. Helmsley, 985 F.2d 1202, 1210 (2d Cir.1993) (finding Brady claim to be "without merit" where undisclosed information would have "no more than a slightly enhanced basis for challenging [the witness's] credibility" and "[a]mple materials concerning [the witness] were turned over to ... trial counsel").
2. "Tehrana Group" Statement
El-Hage also claims that Brady required the Government to disclose al-Fadl's videotaped statement that he thought al-Nalfi told him (in a difficult to hear phone conversation) that someone from "the Tehrana group" went to investigate the death of al Qaeda's military commander, Abu Ubaidah al-Banshiri.[56] He argues that this statement is exculpatory because it allegedly shows that "al Qaeda sent the `Tirana group' (rather than Mr. El-Hage) to Lake Victoria to confirm Mr. Banshiri's drowning." I cannot agree.
After reviewing the consensual recording made of his telephone call with al-Nalfi, al-Fadl described what he thought he had heard al-Nalfi say:
So, but it still is not is not very because I confused when he talk meet with he say Tehrana I say, "Who's tehrana?" He says, "Tehrana group." One of Tehrana group, I think is my understanding. Like one of Tehrana group, he went with Ubaidah al Banshiri *513 family to the, to the lake. And, they make sure he's dead.
Nothing in this statement precludes the possibility that El-Hage went to investigate al-Banshiri's death; it is not exculpatory Brady material requiring a new trial. Cf. United States v. Middlemiss, 217 F.3d 112, 123 (2d Cir.2000) (affirming denial of a new trial motion based on new evidence where the new evidence "did not preclude the possibility" that the defendant committed the crime as charged).
Indeed, as the Government notes, El-Hage's defense to the relevant charges "was not that [El-Hage] did not travel to Lake Victoria to investigate the death of a passenger on a ferry." In fact, in his Grand Jury testimony, El-Hage admitted going to Lake Victoria to investigate the drowning death of a passenger in the ferry accident that killed al-Banshiri. El-Hage claimed, however, that he was investigating the death of "Adel Habib" and further claimed that he did not know that "Adel Habib" was also known as Abu Ubaidah al-Banshiri. Notably, at trial the Government presented the eyewitness testimony of Ashif Juma, al-Banshiri's brother-in-law, who recounted how he saw El-Hage at Lake Victoria investigating al-Banshiri's death. The Government summarizes El-Hage's defense thusly:
Essentially, el Hage contended that he just happened to have been at Lake Victoria investigating the death of somebody who just happened to be on the same ferry as the military commander of al Qaeda, and thus Ashif Juma ... was lying when he testified that el Hage came to Lake Victoria to look for Abu Ubaidah.[57]
In light of El-Hage's Grand Jury testimony, and the defense he offered, I find nothing favorable (much less material) to the defense in al-Fadl's "Tehrana" statement. See, e.g., Jackson, 345 F.3d at 70 (noting that Brady requires disclosure only of information both favorable and material to the defense). It is not Brady material.[58]
3. Al Qaeda Airplane Purchase
Finally, I return briefly to El-Hage's claim that al-Fadl's videotaped statements regarding al Qaeda's purchase of an airplane would somehow impeach al-Fadl's testimony. As discussed, supra, I do not find this statement to have any significant impeachment value. Moreover, the original "3500 material" provided to defense counsel included an FBI "FD-302" report of the videoconference at which al-Fadl discussed what little knowledge he had of the airplane purchase. That report accurately reflects the substance of al-Fadl's statements regarding being shown a small, Cessna-like plane.[59] Thus, at trial El-Hage already had at his disposal ample information to "impeach" al-Fadl regarding his failure to know the specifics of the jet al Qaeda purchased. I do not see that Brady required more. See United States v. LeRoy, 687 F.2d 610, 618-19 (2d Cir.1982) (rejecting Brady claim where the Government had given Defendant notice of *514 "the essential facts permitting him to take advantage of any exculpatory evidence"); Helmsley, 985 F.2d at 1210 (rejecting Brady claim where "[a]mple materials concerning [the witness] were turned over to ... trial counsel").
4. Favorable Brady/Giglio Material
In sum, although almost all of El-Hage's Brady and Giglio claims are without merit, the agent's reassurances to al-Fadl regarding the jail time he faced constitute favorable information that would have been of significant value in cross-examining al-Fadl. Nevertheless, the suppression of even favorable information of significant value is insufficient, standing alone, to establish a Brady violation. "[S]trictly speaking, there is never a real `Brady violation' unless the [Government's] nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Accordingly I turn to the question of whether, under the totality of the circumstances, these reassurances are "material" that is whether, considered together with the 3500 Material contained in the tapes, they are sufficient to "undermine confidence in the outcome" of El-Hage's trial. Jackson, 345 F.3d at 77 (internal citation and quotation omitted); see also Kyles, 514 U.S. at 436, 115 S. Ct. 1555.
C. Materiality
As discussed, supra, "[e]vidence is material only if there is a reasonable probability that had the evidence been disclosed, the result [of the proceeding] would have been different." United States v. Gonzalez, 110 F.3d 936, 943 (2d Cir.1997). Notably, information that is useful only for impeaching a government witness, rather than directly contradicting the Government's case, only rarely meets this standard. See United States v. Spencer, 4 F.3d 115, 119 (2d Cir.1993). Nevertheless, where "the Government's case depend[s] almost entirely on [the impeachable witness's] testimony," the Government's suppression of significant impeachment material warrants a new trial. Giglio, 405 U.S. at 154, 92 S. Ct. 763. "Similarly, impeaching matter may be found material where the witness supplied the only evidence of an essential element of the offense." Avellino, 136 F.3d at 256-57. Finally, impeachment matter is typically not material "when the testimony of the [impeachable] witness is corroborated by other testimony, or when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." United States v. Payne, 63 F.3d 1200, 1210 (2d Cir.1995) (internal citation and quotation omitted).
1. Utility of Undisclosed Information
If the non-trivial 3500 Material and the only viable potential Brady material contained in the tapes had been timely disclosed to El-Hage, counsel could have mounted a significant attack on al-Fadl's credibility that was unavailable without that information.
Defense counsel could have shown that al-Fadl received careful reassurances by the Government (reassurances that intentionally, though rather unartfully, stopped just shy of being promises) about not going to jail. Those reassurances were made by someone al-Fadl considered a friend. They were also made in the context of al-Fadl's feeling of camaraderie with the government agents, and his love for working with them as part of his self-perceived redemption.
Further, counsel could have shown that al-Fadl perceived a potential quid pro quo *515 between his immigration status in the United States and his testimony, and believed or feared his prospects for staying in the country depended on whether something might "go[] wrong" with his trial testimony. It takes no great inferential leap to suggest a similar quid pro quo between al-Fadl's testimony and his potential prison sentence. Thus, the undisclosed material would have given defense counsel a significant opportunity that was previously unavailable to suggest that al-Fadl believed his hopes for avoiding prison, like his hopes for staying in this country, depended on his trial testimony not "go[ing] wrong."
In sum, however, although this material would have fueled a significant attack on al-Fadl's credibility, it would not have directly contradicted the government's case, and appears to fall within the general rule that undisclosed impeachment material generally does not warrant a new trial. See Spencer, 4 F.3d at 119. El-Hage contends, nevertheless, that the Government relied so heavily on al-Fadl's testimony that a successful attack on his credibility would have been "a strike at the heart of the government's case."
2. Alleged Importance of al-Fadl
El-Hage was charged with conspiracies to: (1) kill United States nationals; (2) commit murder; and (3) destroy buildings and property of the United States.[60] Although El-Hage was tried jointly with those accused of bombing the United States Embassies in Kenya and Tanzania during 1998, the Government did not allege any hands-on participation by El-Hage in those specific terrorist plots. Rather, the indictment alleged that El-Hage was part of al Qaeda's broader, overarching conspiracies to attack and kill Americans, and to destroy American property and facilities conspiracies beginning as early as 1991.
El-Hage's association with bin Laden and other al Qaeda figures was largely undeniable (in large part because of El-Hage's Grand Jury testimony on which the perjury charges against him were based). Thus, El-Hage focused his defense at trial on the issue of intent, as his post-hearing brief in support of this Motion explains:
Mr. El-Hage never denied that he was employed by Mr. bin Laden's businesses in Sudan, and/or that he was associated with persons who were members of al Qaeda. Rather, what Mr. El-Hage denied... was that he possessed any intent, whether by conspiratorial agreement or affirmative act, to participate in any violent conduct directed against the United States.
On the issue of intent, El-Hage argues that al-Fadl was "the linchpin of the government's case." He claims that, absent al-Fadl's testimony, "there was simply not any evidence that al Qaeda targeted the U.S. privately before Mr. bin Laden's public pronouncements in 1996," and further argues that, without al-Fadl's testimony, "there would not have been any testimony alleging Mr. El-Hage's knowledge even by inference of any violent or illegal conduct (or intended conduct) by al Qaeda against the U.S." I cannot agree.
As an initial matter, this argument ignores the substantial evidence establishing El-Hage's participation in the charged conspiracies after bin Laden openly declared war on the United States in 1996. Moreover, al-Fadl's testimony regarding al Qaeda's violent intentions toward the United States prior to that declaration was significantly corroborated. Indeed, independent evidence and testimony corroborated *516 al Fadl's testimony on almost all significant subjects relating to El-Hage.
3. bin Laden's Declaration of Holy War on America
Evidence at trial established that, in August 1996, Usama bin Laden openly declared "Holy War Against the Americans Who are Occupying the Land of the Two Holy Places." In a copy of that Declaration, entered into evidence as GX 1600 A-T, bin Laden referred to, "the occupying American enemy," and declared, "all effort must be directed at this enemy, kill it, fight it, destroy it, break it down, plot against it, ambush it, and God the almighty willing, until it is gone." Bin Laden further described "a need for appropriate fighting tactics.... In other words, [] launch[ing] guerilla attacks by the society's sons and not the armed forces."
Substantial evidence at trial showed that, following this public declaration, El-Hage remained involved in the bin Laden organization, and indeed in the charged conspiracies. Notably, as discussed, supra, al-Fadl first approached the American embassy in 1996 and was in the United States, in the FBI's protective custody, by December 1996. Consequently, al-Fadl provided none of the evidence linking El-Hage to the conspiracies after bin Laden's "Declaration of Holy War."
At trial, the Government introduced: (1) transcripts of numerous intercepted phone calls; (2) internal al Qaeda reports; (3) numerous pieces of correspondence; and (4) stamps in El-Hage's passport, all of which established that, in February and August 1997, well after bin Laden's public declaration, El-Hage traveled to Afghanistan to meet with the al Qaeda leadership. One of those documents (introduced as GX 310-74 A-T), an al Qaeda report found on El-Hage's computer and designated by its author as "top secret," describes how El-Hage returned to Kenya from his February visit with a "new policy pertaining to the region" that bin Laden had issued. The report describes the new policy which, in essence, called for the militarization of the al Qaeda cell in Nairobi, the cell later responsible for the 1998 embassy attacks.
A second al Qaeda report ("Security Report") recovered from El-Hage's computer (introduced as GX 300 A-T), likewise indicates El-Hage's continuing participation in the conspiracies. That report, apparently authored by one of El-Hage's subordinates during El-Hage's August 1997 visit with bin Laden, describes fears within the East African al Qaeda cell that America has learned of bin Laden's and al Qaeda's involvement in attacks on American forces in Somalia. It further describes fears that America is seeking to apprehend those in Kenya who might have been involved, and fears that a former al Qaeda member might have become an American informant. The subordinate describes his response to these concerns, most notably his efforts to conceal evidence of the cell's activities by hiding all of El-Hage's incriminating files. The subordinate notes that he would have burned the files but, because they belong to El-Hage, decided to await El-Hage's return from his visit with bin Laden before taking such a drastic step.
Other evidence introduced (including passports and passport photos of al Qaeda members found in El-Hage's files, visa stamps found in El-Hage's files, and immigration stamps found in hidden files on El-Hage's computer) established that El-Hage was involved in providing false passports and other travel documents to al Qaeda associates. Intercepted telephone calls showed that he continued providing such documents following bin Laden's "Declaration of Holy War." Further, the transcript of another intercepted call reflected *517 El-Hage providing bin Laden's satellite telephone number to a co-conspirator in a coded message in April 1997. Indeed, telephone records introduced at trial showed that, following bin Laden's "Declaration of Holy War," there were frequent calls to El-Hage in Kenya from the satellite phone used by the al Qaeda leadership. Further, El-Hage's address books (also in evidence) contained coded entries for the telephone numbers of various al Qaeda members.
Finally, as the Government argues in its brief, El-Hage's repeated perjury to the Grand Juries investigating al Qaeda, including his testimony that he had not seen bin Laden since 1994, despite his two visits with him in 1997 (and the fact that he returned from the first visit with bin Laden's new policy for al Qaeda's East Africa cell), indicate El-Hage's consciousness of guilt, and indeed offers significant evidence of his state of mind with respect to the charged conspiracies. In sum, there was abundant evidence at trial establishing El-Hage's participation in the bin Laden-led conspiracies against America after bin Laden's 1996 public "Declaration of Holy War."
4. al Qaeda's Violent Intentions Toward the United States
In addition to some descriptions of al Qaeda lectures or fatwahs that he had heard, al-Fadl's testimony regarding al Qaeda's violent intentions toward the United States, prior to bin Laden's "Declaration of Holy War," largely consisted of information about al Qaeda's dispatch of personnel to Somalia to attack United States military forces there. El-Hage ascribes particular significance to this testimony, arguing that, "Somalia was of critical importance in the case against Mr. El-Hage, because Mr. al Fadl's claim that al Qaeda had sought to fight the U.S. in Somalia represented the only evidence of any violence al Qaeda contemplated against the U.S. prior to Mr. El-Hage's return to the United States in September 1997." In light of bin Laden's open "Declaration of Holy War" in 1996, I find this argument wholly untenable. Moreover, al-Fadl's testimony regarding al Qaeda's involvement in Somalia was amply corroborated.
At trial the Government presented the testimony of L'Houssaine Kherchtou, another former al Qaeda member and government cooperator. Kherchtou's testimony regarding al Qaeda's involvement in Somalia corroborated al-Fadl's description of al Qaeda's desire, and attempts, to attack American forces in Somalia. Specifically, Kherchtou testified about another al Qaeda co-conspirator's description of the co-conspirator's travel to Somalia (with another al Qaeda member) in an effort to aid the Somalis in attacking American personnel assisting the United Nations effort in that country. Kherchtou specifically discussed the al Qaeda personnel helping the Somalis to build a car bomb, but noted that they were unsuccessful in attacking a United Nations compound with the bomb. The Government also offered documentary evidence of al Qaeda's efforts in Somalia. Notably, the Security Report recovered from El-Hage's computer discusses al Qaeda's responsibility for "[the] operations to hit the Americans in Somalia."
On the whole, El-Hage overstates the importance of Somalia in the Government's case against El-Hage. Moreover, even if this subject were as important as El-Hage claims, al-Fadl did not provide the only testimony illustrating al Qaeda's attempts to attack Americans in Somalia.
5. al-Fadl's Other Testimony
In addition to arguing that al-Fadl was the linchpin of the Government's case on *518 the issue of intent, El-Hage also suggests that al-Fadl's testimony was critical in establishing the structure and history of al Qaeda, and in placing El-Hage within the organization. I note, however, that as with al-Fadl's other testimony, his testimony on these subjects was significantly corroborated (and in many cases, surpassed) by other evidence.
L'Houssaine Kherchtou's description of the structure and hierarchy of al Qaeda largely paralleled al-Fadl's testimony, including his descriptions of al Qaeda's various governing committees. Further, although al-Fadl's most damning testimony regarding El-Hage's ties to al Qaeda was his description of training El-Hage to take over his payroll responsibilities for the group, Kherchtou specifically testified that he believed El-Hage to be a member of al Qaeda, and described how El-Hage had taken over as Kherchtou's al Qaeda "boss" within the Nairobi cell when the cell's former leader left Kenya to establish an al Qaeda front organization in London. Finally, as discussed, supra, Essam al-Ridi, testified about El-Hage seeking his assistance in purchasing a plane in approximately 1993, on bin Laden's behalf, capable of transporting Stinger missiles from Pakistan to Sudan. Al-Fadl's testimony did not provide the only evidence establishing the al Qaeda hierarchy, nor the single stitch tying El-Hage to the al Qaeda conspiracies.
6. Materiality of the Undisclosed Information
Evaluating the undisclosed 3500 Material and the potential Brady/Giglio material in light of all the evidence presented against El-Hage, there is no "reasonable probability that had the evidence been disclosed, the result [of the proceeding] would have been different." Gonzalez, 110 F.3d at 943. The Government's case against El-Hage did not "depend[] almost entirely on [al-Fadl's] testimony," Giglio, 405 U.S. at 154, 92 S. Ct. 763, and al-Fadl did not provide "the only evidence of an essential element" of the charges on which El-Hage was convicted. Avellino, 136 F.3d at 256-57. In sum, none of the undisclosed information in the videotapes (considered individually or collectively) satisfies the relevant materiality requirement.
IV. Conclusion
The Government's failure to turn over the disclosable material in the tapes deprived El-Hage of statements by al-Fadl that he was clearly entitled to under the Jencks Act. Many of those statements were obvious 3500 Material, and others would have significantly aided in cross-examining al-Fadl. It so happens, though, that none of the undisclosed material is powerful enough to displace the Government's other evidence of El-Hage's guilt.[61] Thus, because none of the undisclosed material in the video-teleconferences is sufficient to "undermine confidence in the verdict," the motion for a new trial is denied. Jackson, 345 F.3d at 77 (internal citation and quotation omitted). El-Hage's related discovery requests and other remaining requests for relief are likewise denied.[62]
*519 I finally note that resolving this Motion has required me to decide several issues in areas where the relevant legal boundaries are not well marked. Although I have done my best to determine the just contours of the law in these areas, and to resolve the related issues correctly, I am hopeful that the parties will expeditiously bring this matter to the attention of the Court of Appeals.
SO ORDERED.
NOTES
[1] Although he was "in custody," al-Fadl was apparently not placed in a jail, but rather was kept in an apartment or hotel under the protection of FBI agents.
[2] To my knowledge al-Fadl has yet to be sentenced for his 1997 guilty plea and remains free on bail as a WitSec protectee.
[3] In deference to the security concerns of the WitSec program, I refer to al-Fadl's Inspector by the pseudonym, "John Doe."
[4] At the time, George Walsh was a Chief Inspector in the WitSec program. He has since been appointed to the office of United States Marshal for the District of Columbia. In the body of this Opinion and Order I refer to him by the position he held at the time of the occurrences described.
[5] This too is a pseudonym used out of deference to the Marshals Service's security concerns.
[6] The Government represents that the videotaping equipment malfunctioned during the single pre-trial meeting that was not recorded.
[7] El-Hage has also argued that a jocular comment by one of the FBI agents present in New York indicates that he was aware the sessions were being taped. I cannot agree.
[8] Through August 2001, United States Attorney Patrick J. Fitzgerald was one of the primary Assistant United States Attorneys in this District responsible for al-Fadl and for the prosecution of El-Hage and his codefendants. On September 1, 2001, Mr. Fitzgerald began service as the United States Attorney for the Northern District of Illinois. In the body of this Opinion and Order I refer to Mr. Fitzgerald by the office he held at the time he was informed of the tapes' existence.
[9] At the time, Honorable Kenneth M. Karas, U.S.D.J., was one of the primary AUSAs in this District responsible for al-Fadl and for the prosecution of El-Hage. On September 7, 2004, he was appointed to the bench of this Court. In the body of this Opinion and Order I refer to Judge Karas by the office he held at the time he was informed of the tapes' existence.
[10] OEO acts, in some regards, as a liaison between the various United States Attorneys' Offices and WitSec. To outsiders it appears to be just another bureaucratic layer in the Department of Justice.
[11] Considering that OEO handles all Title III surveillance applications for the Government, this suggestion was particularly ill conceived. As one of Mr. T'Kach's subordinates at OEO noted in an e-mail, because the disclosure in this case was based on the prosecutors' constitutional duties under Brady and Giglio, "Title III restrictions and constraints on disclosure and use of illegal intercepts must yield to the constitutional requirements of due process." Moreover, a rudimentary investigation would have indicated that al-Fadl was aware the video-teleconferences were being recorded. Inspector Doe testified that he openly changed tapes during the conferences, apparently in full view of al-Fadl. Indeed, in an Arabic comment captured on one of the tapes, al-Fadl told his wife that the conferences were being recorded. Although it would have taken some effort on OEO's part to uncover this dispositive comment, a cursory questioning of Inspector Doe would have quickly shown that al-Fadl was likely aware of the taping and thus had implicitly consented.
[12] The portions edited out consisted of: a handful of Inspector Doe's inadvertent appearances on camera and local television programs and commercials from al-Fadl's relocation area which appeared on portions of two of the videotapes where the videoconferences were apparently recorded over previous television recordings.
[13] A copy of this version of the tapes was entered into evidence at the hearing as Court's Ex. V2. With its Brief in Opposition to El-Hage's Motion, the Government initially provided me with a copy of the tapes subsequently entered into evidence as Court's Ex. V1. The V1 tapes were obviously incomplete in that they did not contain all of the conversations reflected in the transcripts also provided with the Brief. When I brought these omissions to the Government's attention, I was provided with what appear to be a copy of the tapes provided to AUSA Karas (Ex. V2). Additionally, the Government represented that the omissions in the V1 tapes were a result of a mistake in the copying of the tapes. Finally, I demanded the original tapes which, after some initial resistance from the Marshals Service, were produced and are now marked as Court's Ex. O.
[14] The letter might be better described as "conspicuously undated." Every other piece of Marshals Service correspondence presented as evidence in this matter is dated in accordance with customary business practice. The fact that the cover letter accompanying the tapes, when they were finally disclosed (after months of the prosecutors' repeated demands), is undated is (to put it mildly) somewhat suspicious.
[15] In light of the testimony establishing that Inspector Doe, Supervisory Inspector Mike, Chief Inspector Wagner and Branch Chief Walsh were all involved to some degree in ordering the creation of the tapes, or confirming such orders, this representation by the Marshals Service is simply false.
[16] With the General Counsel I sought to explore the issues related to United States v. Bufalino, 576 F.2d 446 (2d Cir.1978), discussed at length, infra.
[17] Prosecutors named Inspector Doe, Inspector Dapra and Branch Chief Walsh. Although this list fell far short of including all of the USMS personnel with relevant knowledge, it was a start, and a significant improvement over the utter lack of information that preceded it.
[18] In deciding this Motion and conducting the hearings described herein, I have followed the procedure outlined by Judge Cote in United States v. Ortega, first addressing the issue of the Government's intent, then turning to the question of "whether a new trial is warranted under the appropriate legal standard." See United States v. Ortega, No. 00 CR 432(DLC), 2001 WL 1588930, at *8 (S.D.N.Y. Dec. 13, 2001), aff'd, 82 Fed.Appx. 717 (2d Cir.2003) (summary order), vacated on other grounds, ___ U.S. ___, 125 S. Ct. 1031, 160 L. Ed. 2d 1015.
[19] Illustrative of the Government's cases are: United States v. Merlino, 349 F.3d 144 (3d Cir.2003) (no imputation of tape recordings made by the Bureau of Prisons of immaterial phone calls made by three cooperating witnesses over a two year period); United States v. Locascio, 6 F.3d 924 (2d Cir.1993) (no imputation of information in reports made by FBI agents in the course of investigations apparently unrelated to the defendants' prosecutions); Pina v. Henderson, 752 F.2d 47 (2d Cir.1985) (no imputation of information in a parole officer's possession where the parole officer played no role in defendant's prosecution); United States v. Stofsky, 527 F.2d 237 (2d Cir.1975) (no imputation of witness's tax information held by the IRS); United States v. Canniff, 521 F.2d 565 (2d Cir.1975) (no imputation of information in witness's Pre-Sentence Report); United States v. Quinn, 445 F.2d 940 (2d Cir.1971) (no imputation to S.D.N.Y. prosecutor of information held by Florida prosecutor in separate investigation); Chandras, 2002 WL 31946711 (applying deferential AEDPA standard of review and holding state court's determination that prosecution team did not have constructive knowledge of witness's information in prison records was not an unreasonable application of federal law); and Bell v. Poole, No. 00 CV 5214(ARR), 2003 WL 21244625 (E.D.N.Y. April 10, 2003) (same).
I also find unhelpful the Government's characterization of this case as involving information held by the custodian of a witness. Here the undisclosed information was not held by some prison guard or administrator employed by a state corrections department. Instead, the information was held by a law enforcement officer of the United States Department of Justice. That officer, as denoted by his job designation (GS-1811), was a "Criminal Investigator." This purportedly trained Criminal Investigator sat through twenty-eight hours of meetings between al-Fadl, prosecutors and case agents recording every word spoken. He never, however, made any attempt to turn the tapes over to prosecutors. In short, this case bears little in common with the typical "custodian" case.
[20] In this regard I find it interesting that WitSec, at certain times, appears to represent itself as an integral part of the prosecution team. On its web page, for example, WitSec boasts that, "Since the program's inception, it has obtained an overall conviction rate of 89 as a result of protected witnesses' testimonies." http://www.usmarsh alls.gov/witsec/ index.html (emphasis added). Crowing about conviction rates attained by the WitSec program seems to me inconsistent with a claim that the program is wholly independent of the prosecution team.
[21] On the whole, I find the Government's argument that OEO somehow created an insulating intermediary between WitSec and the prosecution team unpersuasive.
[22] The Government relies heavily on the argument that, because the WitSec Inspectors purportedly had no investigative duties and no involvement in prosecutive decision-making, they could not have been part of the prosecution team. I disagree. I do not believe that either of these criteria establishes the sine qua non for membership on the prosecution team. For example, I have no doubt that a paralegal, translator, or other non-lawyer assistant facilitating the prosecutors' work would be a member of the prosecution team, regardless of the fact that they were not investigating the case or making charging decisions. On a related note, I am quite nonplussed by the argument that, had the WitSec Inspectors actually been "investigating," they would have reported their activities on Form USM 11 instead of USM 210.
[23] The standard for inadvertent Jencks violations closely tracks the materiality standard applicable to alleged Brady or Giglio violations. United States v. Jackson, 345 F.3d 59, 77 (2d Cir.2003). Unlike the standard for Jencks violations, the Brady/Giglio materiality standard does not vary based on the Government's state of mind. United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) ("If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.").
[24] Although significant time passed between the Marshals Service's delivery of the tapes to the United States Attorney's Office and the ultimate disclosure of the transcripts to defense counsel, I see nothing similarly suspicious in this delay. I base this finding, in large measure, on the prosecutors' unequivocal statement, upon learning of the tapes' existence, that they would likely need to be produced to defendants. The evidence presented does not give me the same confidence that OEO and the Marshals Service approached the taping issue with a similar intent to disclose.
[25] The Government urges that "[t]he effectiveness of USMS Jencks Act training is not at issue here" and that "the [WitSec] inspectors' awareness of disclosure obligations is irrelevant." In light of the quoted language from Bufalino, I cannot agree.
[26] The testimony on this point was not entirely clear. In his February 17 appearance before me, Mr. Auerbach testified that his office reviews all policies before they are issued. During his subsequent April 26 appearance, he testified that his office generally only renders advice upon request, though he stated that Directors and Managers "routinely" seek such advice when implementing a "program" or "procedure." He further testified that the Service has a procedure whereby policies "issued formally by the Marshals Service" are reviewed by various offices within the Service, including the Office of General Counsel.
[27] Although the details of this system for obtaining legal advice from the Office of General Counsel are somewhat unclear, it seems to me that the system is a bureaucrat's dream. The system makes it almost impossible to pin down precisely who within the Marshals Service is responsible for ensuring that Marshals Service actions and policies meet all relevant legal requirements. The policy makers rely upon the Office of General Counsel for legal advice, and if a policy is in some way deficient, those policy makers may point their fingers at the Office, claiming it failed to inform them adequately. The General Counsel's obligation to render advice, however, (at least as Mr. Auerbach describes it) appears limited to situations where the policy makers request that advice. Thus, the General Counsel's Office may disclaim responsibility for any legal deficiencies in policy by claiming the policy makers never asked for the requisite advice. In the end, no one is responsible.
In discussing this, "advice upon request" regime, Mr. Auerbach did not significantly elaborate on what, if any, types of requests his office receives. Notably, no one within the Marshals Service ever sought counsel from Mr. Auerbach's office regarding the videotaping at issue. In fact, Mr. Auerbach testified that he did not even learn of the taping until May 2004. He further testified that his office received no requests for any type of legal opinion regarding the taping and that the office played no part in the purported "corrective action" taken in connection with the taping.
I do not know whether this failure to contact the Office of General Counsel was a vote of no confidence in Mr. Auerbach, or merely a reflection of the fact that no one within the Marshals Service recognized the gravity of the situation. It is, however, clear that the Service has never appreciated the seriousness of the situation. The claimed "corrective action" taken was apparently little more than a single conference call where the WitSec Director told Inspectors not to videotape witness interviews, an action hardly sufficient to address the rampant ignorance of government disclosure obligations within the Marshals Service.
In fact, the Service's appreciation of the gravity of this situation, and indeed, the hallmark of the Marshals Service's training and leadership is found in the fact that information about the potential scandal regarding the videotapes was not transmitted to USMS Director, Benigno Reyna, or Deputy Director, Donald Gambatesta, until May 2004, seventeen months after the struggle between the United States Attorney's Office and the Marshals Service for production of the tapes began. Of course Deputy Director Gambatesta could not complain since he apparently learned of the taping issue some days before Director Reyna found out by reading the newspaper.
Finally, the "investigation" by the Service into the circumstances of the taping did little to illuminate what went on. On the whole, the hearings did not paint the Marshals Service as an entity that understood its mistake, let alone an organization working actively to prevent similar debacles in the future.
[28] I am not confident that this apparent rarity paints an accurate picture of how diligently the Marshals Service, in particular, adheres to its disclosure obligations. For my part, I do not believe I have ever seen, during my thirty-three years on the bench, a USM Form 11 or Form 210 disclosed to defense counsel as potential 3500 material, regardless of the extent of the Marshals Service's involvement in a case. I know that during my time as an Assistant United States Attorney I never saw such a report.
[29] To the extent that the language El-Hage cites from United States v. Morell, 524 F.2d 550, 554 (2d Cir.1975), is relevant to this part of his Motion, I likewise find this standard to be fully congruent with it. In light of United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), however, it appears that the cited language is no longer good law. See United States v. Provenzano, 615 F.2d 37, 46 n. 19 (2d Cir.1980); Bohanan v. United States, 821 F. Supp. 902, 904-05 (S.D.N.Y.1993) ("the Supreme Court abandoned the Morell standard in United States v. Agurs").
[30] El-Hage only claims a right to the information in Category 11 pursuant to Jencks and Brady.
[31] In practice both prosecutors and defense attorneys frequently refer to any government disclosure as 3500 material, regardless of the authority under which the disclosure is made. In the body of this Opinion, however, I use the term, "3500 Material," to refer only to disclosures pursuant to the Jencks Act.
[32] Of course the Government bears a constitutional duty to produce certain impeachment material. See Giglio, 405 U.S. at 153-55, 92 S. Ct. 763. Further, as discussed infra, the Second Circuit has held that the Jencks Act also requires the production of certain witness statements useful for impeachment. See United States v. James, 609 F.2d 36, 48-49 (2d Cir.1979) (noting that the Jencks Act may require production of a witness's statement that relates "not only to the witness' factual narrative, but also to impeachment of his direct testimony by showing bias and interest.").
[33] El-Hage's brief suggests that the videotape transcripts reveal that al-Fadl "knew" he faced no genuine possibility of imprisonment because the tapes contain "not a single expression of concern that any of [al-Fadl's] plans will be interrupted by imprisonment." The Jencks Act, however, as discussed supra, is not a general tool for discovery of impeachment material. Jencks applies only to prior statements by a witness. Because El-Hage cites no specific statements by al-Fadl, his claim in this regard fails. El-Hage's assertion that, "an objective observer of the negotiations between Mr. al Fadl and the government during the videoconferences could easily conclude that Mr. al Fadl was engaged in a `continuous hustle' of the U.S. to wrangle financial and other benefits," likewise falls flat.
[34] The other statements by government agents, which El-Hage likewise claims constitute 3500 Material (e.g., alleged promises of immigration benefits to al-Fadl and his family), similarly fail to meet the threshold requirements of Jencks. I analyze, infra, the issue of whether the Government was obliged to disclose any of these statements (or any of the other statements and information cited by El-Hage) pursuant to Brady /Giglio.
[35] El-Hage additionally identifies statements by government agents, however, as discussed supra, such statements are not 3500 Material for al-Fadl.
[36] This payment was disclosed to El-Hage in materials provided at trial.
[37] El-Hage also cites a three-page portion of the transcript containing a discussion between al-Fadl and Government agents. El-Hage claims that this excerpt "reveal[s] that at least a brother of Mr. al-Fadl assisted Mr. bin Laden" and that "[a] brother or brothers appear to be spending time with Mr. al Nalfi and there are discussions of how to keep Mr. al Fadl's brothers from being arrested by the government." Examining this excerpt I have not found the revelation to which El Hage refers. Further, I cannot determine what, if any, statements by al-Fadl allegedly constitute 3500 Material within these broad passages. I decline the opportunity to guess which statements by al-Fadl El-Hage intended to cite.
[38] El-Hage also cites a portion of al-Fadl's cross examination as allegedly related to the statements. The appropriate inquiry, however, is whether the statements relate to the subject matter of al-Fadl's direct testimony. See United States v. Mayersohn, 413 F.2d 641, 643 (2d Cir.1969).
[39] El-Hage has not cited any other excerpts from al-Fadl's testimony (which lasted four days and consumed 548 pages of transcript) to which the videotaped statements might relate. My review of that testimony has likewise revealed no such related passages.
[40] A fatwah is a ruling on some issue of Islamic law. The weight accorded to various fatwahs (i.e., whether they must be obeyed, or instead are simply meant to persuade) was argued at trial.
[41] I also note that this statement is of only trifling impeachment value.
[42] Al-Fadl had previously described Abu Naem al Libi as an al Qaeda associate in the Sudan.
[43] Al-Nalfi was an al Qaeda associate in the Sudan with whom al-Fadl had continuing contact, via telephone, throughout his time in protective custody. The Government encouraged and facilitated this contact, hoping al-Fadl could: (1) obtain current information about al Qaeda; and (2) entice al-Nalfi to visit a country where the Government could approach him and either convince him to cooperate as an informant, or arrest him for his terrorist activities. The FBI, with al-Fadl's consent, recorded the calls between al-Fadl and al-Nalfi.
[44] Al-Banshiri drowned when the ferry boat he was traveling on capsized in May 1996 on Lake Victoria in Kenya.
[45] Referring to the consensual audio recording of al-Fadl's call with al-Nalfi, Inspector Doe then states, "That's what we'll work on on Monday is I'll bring it in, and he can go over the tape."
[46] I address, infra, El-Hage's claim that the cited statements are exculpatory because they allegedly establish that someone from a "Tehrana group," and not El-Hage, went to investigate al-Banshiri's death on al Qaeda's behalf.
[47] El-Hage also refers to a third utterance by al-Fadl where he allegedly stated, "And my understanding, jihad group, they control Bin laden al Qaeda group." El-Hage, however has not offered any citation indicating where, within the twenty-eight hours of videoconferences, this statement was made. Without some such indication, from which I might determine the context of the statement, I cannot find that it relates to any of al-Fadl's direct testimony.
[48] El-Hage also cites an excerpt of testimony by L'Houssein Kherchtou (another al Qaeda member) to which the statements purportedly relate. As discussed supra, however, any such relation is immaterial in determining producibility pursuant to the Jencks Act. Further, I reject El-Hage's additional claim that "These statements demonstrate that Mr. al Fadl was completely incorrect in asserting in his testimony that al Qaeda members were also pledged members of other organizations (i.e., Libyan, Algerian, Moroccan organizations that were also based in Sudan)." El-Hage has not offered a single citation to any such testimony and I have not discovered any during my own review of the transcript. Moreover, any such contradiction would be of minimal value to the defense.
[49] Following the June 7 hearing in this matter, the Government, at the urging of El-Hage's counsel, undertook to produce a second, revised, transcript of the videoconferences. The purpose of this second transcript was to, inter alia: correct numerous misspellings in the original transcript, decipher words and phrases that had been reflected as inaudible or unintelligible in the first transcript, and to ascribe a speaker to each statement (the first transcript generally did not differentiate between government speakers). Additionally, I ordered the Government to provide El-Hage with translations of portions of the videoconferences in Arabic, which had not been translated in the original transcripts. The Government provided these revised transcripts and translations to El-Hage's counsel and to me throughout the time both parties were preparing their briefs on this matter. I afforded El-Hage's counsel an opportunity to file a supplementary brief regarding any material contained in the revised transcript or translations that they believed important. No such supplemental brief was filed.
I note this later transcript because El-Hage refers, in his filing, to the version of al-Fadl's statement rendered in the first transcript. The first transcript reads, "He knew him very well. He know him from Hoor-ahn-stan when Wadia I give him my place in farm equipment in (inaudible) all the time we see him in this house. He know him very well." I refer, however, to the second transcription, which my review of the videotapes indicates is a more accurate reflection of al-Fadl's statement.
[50] El-Hage cites a separate portion of al-Fadl's testimony to which he argues the statement relates. Having noted the substantially identical testimony, however, I do not find it necessary to decide whether the statement relates to this other excerpt.
[51] El-Hage argues that "Mr. al Fadl's claim that al Qaeda sought to fight the U.S. in Somalia represented the only evidence of any violence al Qaeda contemplated against the U.S. prior to Mr. El-Hage's return to the United States in September 1997." As discussed, infra, this argument is entirely without merit.
[52] I note that, although the value of the actual 3500 Material is quite minimal, even this minimal value would likely require a new trial if the Government's failure to produce the statements had been truly intentional, or under circumstances justifying a presumption of intentional suppression. See Hilton, 521 F.2d at 166 (holding that "[a] new trial is warranted if the evidence is merely material or favorable to the defense" where the government has either: (1) "deliberately suppresse[d] evidence"; or (2) "ignore[d] evidence of such high value that it could not have escaped its attention."); United States v. Gil, 297 F.3d 93, 101 (2d Cir.2002) ("Evidence is favorable to the accused if it either shows that the accused is not guilty or if it impeaches a government witness."). Although none of the statements provide for significant impeachment of al-Fadl, the fact that they provide for any impeachment of him, appears sufficient to satisfy the "material or favorable" standard in Hilton.
[53] To support a Brady/Giglio claim, undisclosed information must have been "suppressed" by the Government. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Information is suppressed, in this context, where the Government fails to disclose it either intentionally or inadvertently. Id. Here, because the videotapes were in the possession of a member of the prosecution team before, during, and after trial, any potential Brady or Giglio information contained therein was "suppressed" under this standard.
[54] To the extent the agent was making a prediction, to date it has proved entirely accurate. To my knowledge al-Fadl has yet to be sentenced (and, consequently, to serve any jail time for his crimes). Al-Fadl's case, however, is not assigned to me; thus, I am not privy to any details of his potential sentence. I suppose that to gauge fully the accuracy of the agent's prediction, I must wait to see what sentence is eventually imposed, assuming a sentencing hearing is actually scheduled at some future date.
[55] Throughout his brief and accompanying chart El-Hage repeatedly refers to the agent's words as a, "representation." In only a single instance, one of the entries of the accompanying chart, does he refer to the statement as a "promise."
[56] As discussed, supra, El-Hage's alleged travel to Lake Victoria in order to investigate al-Banshiri's drowning was relevant to the case as it provided one of the overt acts of the charged conspiracies. Further, in the perjury counts against El-Hage, the Government alleged El-Hage lied to the Grand Jury about conducting the investigation, and about knowing of al-Banshiri's death.
[57] The Government has characterized this defense as, "ludicrous," a characterization I find difficult to dispute.
[58] Further, in its submissions, the Government has included excerpts of the actual conversation between al-Fadl and al-Nalfi that al-Fadl describes in the videotaped statement. Those excerpts clearly show that al-Fadl simply misheard al-Nalfi, who never mentioned any "Tehrana group."
[59] El-Hage argues that the transcripts reveal that this FD-302, and other 302s prepared by the FBI and turned over to the defense at trial, are "false and misleading." Based on my review of the relevant material, I find this contention entirely without merit.
[60] He was also charged with eighteen counts of perjury.
[61] This fortuity cannot excuse the rampant ignorance within the Marshals Service regarding the Government's disclosure obligations. Before El-Hage's trial, no one within the Marshals Service could have known with certainty whether al-Fadl would provide "the only evidence of an essential element of the offense[s]" with which El-Hage was charged. Avellino, 136 F.3d at 256-57. Likewise, the Service cannot assume that the next WitSec witness who testifies will benefit from the same level of corroboration supporting al-Fadl.
[62] Most notable among these related requests are El-Hage's requests for production of the consensual recordings of al-Fadl's calls with al-Nalfi, and any notes al-Fadl made of the calls. In light of my findings in this Opinion, and the fact that El-Hage has made no showing that the recordings or notes contain any information to which he is entitled under Section 3500 or Brady/Giglio, I do not order their production. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2615213/ | 668 P.2d 498 (1983)
GENERAL MOTORS ACCEPTANCE CORPORATION, a New York Corporation, Plaintiff and Respondent,
v.
Hector MARTINEZ and Manuel M. Rivera, Defendants and Appellants,
v.
GREAT EQUITY LIFE INSURANCE COMPANY OF CHICAGO, ILLINOIS; Streator Chevrolet Company, Incorporated, Al Barrutia, Brent H. Jensen, and E.C. Roseborough, Third-Party Defendants and Respondents.
No. 18072.
Supreme Court of Utah.
May 24, 1983.
*499 Mark S. Miner, Salt Lake City, for defendants and appellants.
Jay V. Barney, Murray, William J. Hansen, Salt Lake City, for plaintiff and respondent.
STEWART, Justice:
This is an action by General Motors Acceptance Corporation (GMAC) for repossession of an automobile and for damages arising from the defendant's default on his promissory note given for the purchase of *500 the automobile. Defendant, Hector Martinez, and his father, Manuel M. Rivera, filed a third-party complaint against Great Equity Insurance Co. to enforce a credit insurance policy written to insure the amount of the loan after Martinez' default because of illness. The trial court entered judgment in favor of GMAC and against Martinez and Rivera, and against Martinez and Rivera on their third-party complaint against Great Equity. The only issue on this appeal is whether a pre-existing illness clause in the insurance policy excluded Hector Martinez from coverage under the policy.
On September 12, 1978, Hector Martinez purchased an automobile on a conditional sales contract from Streator Chevrolet. Martinez was told that as a condition of obtaining a financing contract he had to purchase a credit life and disability insurance policy from Great Equity. The policy designated Martinez as the insured and Streator as the beneficiary, and provided that if because of death, accident, or illness Martinez was unable to make his car payments, Great Equity would pay the remainder of the debt then owing. The premium for the policy was added to the face of the sales contract for the car, and the contract was later assigned by Streator Chevrolet to GMAC, making GMAC the new beneficiary under the policy.
At the time Martinez purchased the insurance, he did not learn about the exclusion for pre-existing conditions. Streator's agent, Mr. Elton, did not ask him about his past or present health. Martinez was not asked to sign the credit insurance application, which stated the coverage exclusions, nor was he given a copy of the insurance application or the certificate of insurance, although it was Streator's normal business practice to have an insured sign the application and to give him a copy of the insurance certificate. Apparently, Mr. Elton was unable at the time to find the blank credit insurance certificates. Nor were any of the policy exclusions explained to Martinez orally.
The insurance certificate states the policy exclusions. The "pre-existing condition" exclusion provides: "No insurance is provided hereunder ... if disability results from ... injury sustained or sickness contracted for which medical diagnosis or treatment was required ... within six months prior to the effective date [of coverage] of this certificate and which causes a loss within six months after such effective date."
Although it is undisputed that Martinez suffered from high blood pressure prior to his purchase of the insurance policy, Martinez did not misstate or misrepresent his state of health. On the contrary, the agent who filled out the Great Equity insurance application form seemed totally indifferent to Martinez' prior health.
Martinez made two monthly payments on the car prior to suffering a complete kidney failure which resulted in his total disability. He then made a demand on the insurance company to pay the balance owing on the car to GMAC. Pending the outcome of the insurance company's investigation, GMAC deferred collection on its contract. As a result of its investigation, Great Equity denied coverage on the ground that Martinez had suffered high blood pressure prior to his purchase of the car, and the subsequent kidney failure fell within the exclusionary clause of the policy for pre-existing diseases.
GMAC then brought this suit against Martinez. Martinez filed a third-party complaint against Great Equity alleging that it was liable under the insurance contract for the car payments. Great Equity admitted the existence of the insurance contract and denied coverage under the pre-existing sickness exclusion.
The trial court granted judgment against Martinez as a matter of law on the contract for the purchase of the car, and awarded GMAC $4,717.50 plus interest, costs, and attorney's fees. On the issue of Great Equity's liability under the policy, the trial court submitted seven special interrogatories to the jury. Based on the answers to *501 those interrogatories, the trial court entered judgment for Great Equity.
In 1961 the Legislature enacted the Model Act for the Regulation of Credit Life Insurance and Credit Accident and Health Insurance. Laws of Utah 1961, Chap. 67, § 1. That act is now found in Title 31, Chap. 34 of U.C.A., 1953. Section 31-34-6(1) states:
All credit life insurance and credit accident and health insurance shall be evidenced by an individual policy, or in the case of group insurance by a certificate of insurance, which ... shall be delivered to the debtor.
Subsection 2 of that provision specifies what information must be included in the individual policy or group certificate issued to the debtor. Among other things, the policy or group certificate must state the "term and coverage including any exceptions, limitations and restrictions."
Credit life and accident insurance are generally contracts of adhesion which are not negotiated at arms length and which usually contain various provisions for protection of the interests of the insurance company. Because those who purchase such policies rely on the assumption that they are covered by the insurance they buy, the Legislature, in the interest of fair dealing, has deemed it mandatory that an insured be given a copy of the policy so that he can take whatever action is appropriate to protect his interests and be assured that the coverage which he thinks he has contracted for is actually provided. It is not consonant with our statute for an insurance company to accept premiums and then deny liability on the ground of an exclusion of which the insured was not aware because the insurance company had never informed him of the exclusion or given him the means to ascertain its existence.
The purpose of the statutory provision is plain: the insured is entitled to be informed in writing of the essential terms of the insurance contract, especially the exclusionary terms. Because of the reliance that people place on credit insurance policies to mitigate the hardships that often result from inability to pay a debt, the policy of the law is to prevent mistake or misunderstanding as to the terms of the insurance contract, or what in some cases may amount to sharp practice. Frieze v. West American Insurance Co., 188 F.2d 331, 334-335 (8th Cir.1951) (applying California law). See also Colvin v. Louisiana Hospital Service, Inc., La. App., 321 So. 2d 416 (1975); Traders & General Insurance Co. v. Pacific Employers Insurance Co., 130 Cal. App. 2d 158, 278 P.2d 493, 495 (1955).
In view of these reasons and the unequivocal nature of the duty imposed by § 31-34-6, we hold that an insurance company is estopped from relying upon an exclusion in a policy if the company has failed to deliver the policy or certificate of insurance to the insured or any other document stating the exclusion.
Gardner v. League Life Insurance Co., 48 Mich. App. 574, 210 N.W.2d 897 (1973), was decided under facts almost identical to those that exist in the instant case and is wholly consistent with the result we reach. The insurer sought to avoid paying on a credit insurance policy because of an exclusionary clause in the policy which had never been delivered to the insured. At the time Michigan had a credit insurance act similar to Utah's credit life and accident insurance act. The particular provision which imposed the duty to deliver a copy of the policy was identical to § 31-34-6(1). The court construed the Michigan statutory provision to mandate delivery and held that the insurance company was estopped from relying on the policy exclusion because of its failure to comply with the act.
Hayes Truck Lines, Inc. v. Investors Insurance Corp., 257 Or. 602, 525 P.2d 1289 (1974), is also squarely on point. The insurer denied liability on an exclusion in a credit insurance policy for a pre-existing disability. The insurance agent had not inquired as to the status of the insured's health; the insured had not signed or received an application for insurance or a certificate of insurance; and the insured had relied on representations by the insurance company that *502 he was insured. The court held that as a matter of law the insurance company was liable.
The result reached in the instant case is also consistent with the rule laid down by a number of courts that a certificate of insurance or other literature given an insured describing the coverage controls over a master policy not delivered to the insured. E.g., Life Insurance Co. v. Lee, 519 F.2d 475 (6th Cir.1975); Lecker v. General American Life Insurance Co., 55 Haw. 624, 525 P.2d 1114 (1974); Republic National Life Insurance Co. v. Blann, 400 S.W.2d 31 (Tex.Civ. App. 1966). See also 6 A.L.R. 4th 839-842 (1981), and cases discussed therein.
Great Equity in this case concedes that Martinez did not sign the application for insurance, which contained the exclusionary language and was made out by its agent at the time Martinez paid his premium, and that Martinez was not told at that time, or at any time, of the exclusion. It asserts, however, that it sent Martinez a copy of the policy. Great Equity's contention that the policy was sent to Martinez is supported by the testimony of its agent who testified that although he could not recall the transaction with Martinez, a copy of the policy is normally sent two or three days after the paper work of the sale is completed. On the other hand, Martinez and his father testified that no copy was received.
The jury was not requested in so many words to determine specifically whether the policy had been sent. However, a special interrogatory did pose the question whether Martinez either knew or should have known about the exclusion. On this question, the jury did not answer in Great Equity's favor. Since Great Equity had the burden of proof and of persuasion with respect to establishing the exclusion and because Great Equity failed to meet those burdens, the only logical conclusion is that Martinez did not know, nor should he have known of the exclusion.
Finally, Great Equity contends that defendants should have been aware of the exclusion because it is "standard in the industry." That conclusion does not follow. Martinez had not worked in the insurance industry and could hardly have known what was standard in the industry. Further, Great Equity's argument would, for practical purposes, render § 31-34-6 a nullity since the contention that proof of what is standard in the industry is sufficient to bind an insured is fundamentally at odds with § 31-34-6. "[T]he need for notice is beyond peradventure." Gardner v. League Life Insurance Co., supra, 48 Mich. App. at 577, 210 N.W.2d at 898.
Although estoppel is usually a factual defense, it may be established as a matter of law to preclude an insurance company from relying on an exclusion in a credit life and accident policy. Hayes Truck Lines, Inc. v. Investors Ins. Co., 269 Or. 565, 525 P.2d 1289 (1974); Scribner v. Equitable Life & Casualty Insurance Co., 257 Or. 602, 481 P.2d 76 (1971). On the facts of this case, Great Equity is estopped as a matter of law from denying coverage under the policy.
The judgment of the trial court is reversed and the case remanded for entry of judgment against Great Equity and in favor of Hector Martinez and Manuel M. Rivera.
Costs to appellants.
HOWE and DURHAM, JJ., concur.
OAKS, Justice (dissenting):
I cannot agree that the insurance carrier is "estopped as a matter of law" from relying on the exclusions in its policy because a copy of the policy was not delivered to the debtor-insured. Although the Model Act directs that a copy be delivered to the debtor-insured, U.C.A., 1953, § 31-34-6(1), nothing in that section or in the Act as a whole directs or indicates an intent to rescind the policy exclusions if this requirement is not met. That drastic result should not be decreed by this Court without explicit legislative direction.
The majority's decision injects a new provision into insurance contracts, a provision whose effects are almost impossible to *503 gauge but potentially far-reaching. An agent's failure to deliver a policy or certificate would apparently rescind all policy exclusions, since the majority's reasoning offers no basis to distinguish one exclusion from another. On this insurance contract, that would extend the policy coverage to disabilities resulting from intentionally self-inflicted injuries, flight in nonscheduled aircraft, war or military service, and normal pregnancy. As to life insurance, it would impose coverage for deaths caused by suicide.
The potential effects of the majority's decision are even more far-reaching. The rationale that the insured "is entitled to be informed in writing of the essential terms of the insurance contract" apparently applies to terms of limitation, as well as to terms of exclusion. Consequently, the majority's holding suggests that an insured who could convince a jury that he had not received a copy of the policy might enforce this policy without regard to its provisions on maximum age, gainful employment, limitation of one death benefit in the case of cosigners, and even to some unspecified point beyond the dollar limits of $15,000 on death benefits and disability payments. Other policy provisions, such as the critical definition of "total disability," would also seem to come under the majority's interdiction if sought to be applied against the insured.
The uncertainties introduced by the majority's decision will provoke litigation and frustrate the kind of loss predictions that are essential to the stability of the insurance industry.
The district court's judgment in favor of the insurance company on the basis of the policy exclusion should be affirmed.
HALL, C.J., concurs in the dissenting opinion of OAKS, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611949/ | 76 Wash. App. 372 (1994)
884 P.2d 1353
FORREST L. DEXTER, ET AL, Appellants,
v.
SPOKANE COUNTY HEALTH DISTRICT, ET AL, Defendants, ROBERT E. DIXON, ET AL, Respondents.
No. 13058-4-III.
The Court of Appeals of Washington, Division Three.
December 15, 1994.
Forrest Dexter, pro se.
Brad L. Williams, for respondents.
SCHULTHEIS, J.
This action involves a fraud claim brought by Forrest Dexter against Robert Dixon. The trial *374 court granted summary judgment in favor of Mr. Dixon on the basis of issue and claim preclusion and awarded sanctions pursuant to CR 11. Mr. Dexter contends: (1) the subject matter of this suit is distinct from that in controversy in previous litigation; (2) his position was not so unfounded as to warrant sanctions; (3) even if sanctions were appropriate, the award is not supported by findings; and (4) the order awarding sanctions is void because it was entered in the absence of a presentment hearing. The parties each seek an award of fees on appeal. We affirm the summary judgment, reverse the award of sanctions and deny fees on appeal.
In 1982, Forrest Dexter purchased a home from Robert Dixon. Numerous construction defects surfaced and Mr. Dexter sued for fraud in 1983. After arbitration followed by de novo trial in 1989, he won a judgment against Mr. Dixon. One of the matters in controversy was the adequacy of the septic system. The trial court was critical of Mr. Dixon's compliance with the building codes, and even more critical of the Spokane County Health District (SCHD) for its lackluster approach to ensuring compliance. Nonetheless, the court held against Mr. Dexter on this point and found a failure of proof that Mr. Dixon committed fraud with respect to the septic system.
In 1991, Mr. Dexter decided to build an addition on his home. To obtain permits, he was required to upgrade the septic system. When SCHD did an onsite inspection, it discovered part of the drainfield lay under a barn in violation of health codes and the drainfield was only one-half the length required. During the prior litigation, Mr. Dixon testified the drainfield met county standards which it clearly did not. Mr. Dexter again filed suit against Mr. Dixon for fraud in the conduct of the earlier action and joined SCHD and various county officials. Mr. Dixon successfully moved for summary judgment based on res judicata and collateral estoppel.[1] The *375 trial court awarded sanctions against Mr. Dexter in the amount of $1,636.
[1] Although Washington has apparently not reached the precise question, the overwhelming majority rule is that no common law right of action arises out of perjured testimony presented in a prior judicial proceeding. See, e.g., Regal Marble, Inc. v. Drexel Invs., Inc., 568 So. 2d 1281, 1282-83 (Fla. Dist. Ct. App. 1990), review denied, 583 So. 2d 1036 (Fla. 1991); Collier v. South Carolina Ins. Co., 205 Ga. App. 323, 324, 422 S.E.2d 52, 53 (1992); Hokanson v. Lichtor, 5 Kan. App. 2d 802, 810-11, 626 P.2d 214, 222-23 (1981); Meyer v. Hubbell, 117 Mich. App. 699, 704, 324 N.W.2d 139, 141 (1982); Stoll v. Kennedy, 38 Ohio App. 3d 102, 104, 526 N.E.2d 821, 822-23 (1987); Winter v. Northwest Pipeline Corp., 820 P.2d 916, 918 (Utah 1991). There are limited exceptions, such as when perjury is merely a "step in the accomplishment of some larger, actionable conspiracy[.]" Anderton v. Herrington, 113 Idaho 73, 76, 741 P.2d 360, 363 (Ct. App. 1987) and authorities cited therein. This exception cannot apply because the larger actionable wrong in this instance is the alleged fraud committed in 1982 which has already been litigated to a conclusion. At least one jurisdiction recognizes a claim when the fact of perjury has been established in criminal proceedings. Andrews v. Steinberg, 122 Misc. 2d 468, 477-78, 471 N.Y.S.2d 764, 772 (1983). The record discloses no conviction here. Mr. Dexter is left with the general rule that absent an authorizing statute, there is no civil claim for perjury.
There are sound reasons why courts do not recognize a cause of action for perjury. One is based on policy. Were such a theory of recovery available, many cases would be tried at least twice; first on the merits and then to see who lied at trial. If a party could sue another party for perjury, there is no reason why a party (or anyone else aggrieved by the perjury) could not sue a nonparty. There would be no finality to litigation, the costs of suit would expand, and witnesses would be reluctant to testify. The only workable remedy for *376 perjury is reopening the first proceeding under CR 60 or a criminal charge, not an independent private right of action.
[2] A cause of action for perjury is inconsistent with the principle that a witness, lay or expert, party or nonparty, is immune from tort damages arising out of his or her testimony. Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wash. 2d 123, 125-27, 776 P.2d 666 (1989) (plurality) and authorities cited therein. The issue of witness immunity usually arises in the defamation context. Bruce, however, rejected such limitation. All witnesses are immune from all claims arising out of all testimony. Bruce, at 131-34. But see Babcock v. State, 116 Wash. 2d 596, 628-29, 809 P.2d 143 (1991) (Andersen, J., concurring in part, dissenting in part).[2]
Mr. Dexter does not seriously contest that this suit is barred by res judicata if his perjury theory is unsupportable. In his 1983 suit, he alleged "the septic system is inadequate for the residence and is in need of substantial repairs and rework". Mr. Dexter alleged more than a lack of physical capacity. Whether the barn lay over the drainfield was at issue in the 1983 action. During examination in the arbitration proceeding, Mr. Dixon denied it was and Mr. Dexter replied "I believe it is, Mr. Dixon". A septic system consists of a tank, a drainfield, percolable soil and friendly bacteria. Reasonable inquiry would have produced the conclusion that the system did not meet code. Mr. Dexter has no claim based *377 on perjured testimony. His only claim is for fraud in misrepresenting the quality of the septic system at the time of the sale and that has previously been litigated.
Mr. Dexter contends his position was not so unfounded as to warrant CR 11 sanctions because even if a cause of action for perjury does not exist, he advanced reasonable arguments as to why it should. He also urges the award cannot stand because it is unsupported by the record. Because we agree with the second contention, we do not reach the first.
[3, 4] Findings are not generally required in motion practice. CR 52(a)(5)(B). Although formal findings and conclusions are not required, a CR 11 award must be supported by justifying reasons. See, e.g., Biggs v. Vail, 124 Wash. 2d 193, 201-02, 876 P.2d 448 (1994); Harrington v. Pailthorp, 67 Wash. App. 901, 911 n. 6, 841 P.2d 1258 (1992), review denied, 121 Wash. 2d 1018 (1993); John Doe v. Spokane & Inland Empire Blood Bank, 55 Wash. App. 106, 111-12, 780 P.2d 853 (1989). Issues of fact are resolved by findings and tested under the substantial evidence standard. See, e.g., Sylvester v. Imhoff, 81 Wash. 2d 637, 639, 503 P.2d 734 (1972). Reasons justifying discretionary decisions are tested under the abuse of discretion standard. Coggle v. Snow, 56 Wash. App. 499, 504, 784 P.2d 554 (1990). A decision to impose CR 11 sanctions is discretionary. Biggs, at 197. If an appellate panel cannot ascertain what reasons prompted a trial court's ruling, it is impossible to determine whether the ruling is based on tenable grounds or is manifestly unreasonable. See Coggle, at 508; John Doe, at 112. The order imposing sanctions recites only that fees are awarded as a sanction. The order does not even reference CR 11, although the parties agree this is the predicate relied upon. More than one theory might arguably support the award. This court must know which one was relied upon to effectively review the decision.[3]Biggs, at 201; John Doe, at 111-12.
*378 Finally, Mr. Dexter contends he was prejudiced by the court's failure to hold a presentment hearing. CR 54(f)(2). Because of the manner of disposition, the issue is moot.
[5] Both parties seek fees on appeal as a sanction. "An appeal is frivolous only if `no debatable issues are presented upon which reasonable minds might differ ...'". Coville v. Cobarc Servs., Inc., 73 Wash. App. 433, 441, 869 P.2d 1103 (1994) (quoting Harrington, at 913). The question is whether the "appeal presented no debatable issues or possibility of reversal". Daubner v. Mills, 61 Wash. App. 678, 685, 811 P.2d 981 (1991). The summary judgment ruling was not likely to be reversed, but the procedural aspects of the manner in which terms were awarded raised a debatable question which has been resolved in Mr. Dexter's favor. Fees will not be awarded.
Affirmed in part, reversed in part and remanded.
THOMPSON, C.J., and MUNSON, J., concur.
NOTES
[1] The claims against the governmental Defendants were dismissed in a separate proceeding. The parties reached a settlement during the pendency of this appeal.
[2] Babcock is a retreat from Bruce in one respect. In Bruce, landowners commissioned an engineering firm to estimate repair costs occasioned by an adjoining landowner's construction project. The engineer arrived at estimates, testified to them at trial, and the landowners won judgments in the amounts testified to. The estimates later proved too low and the landowners sued the engineer for malpractice. Bruce held the engineer immune from suit both for his testimony and his work product in framing the testimony. Bruce, at 136. In Babcock, claims were allowed against Department of Social and Health Services caseworkers for negligently processing child placements. Babcock distanced the caseworkers' negligence from their participation in judicial proceedings. Babcock, at 603. As observed by the dissent, however, Bruce involved the same issue of whether the basis of courtroom testimony can be differentiated from the giving of the testimony and held it cannot. Babcock, at 630. One court has commented "[w]e therefore do not find it possible to assess the correct holding of the [Bruce] case." Wolfe v. Legg, 60 Wash. App. 245, 249 n. 1, 803 P.2d 804 (1991). In any event, this case is neither Bruce nor Babcock. The basis of Mr. Dixon's testimony, which was previously litigated, is not at issue, only the testimony itself.
[3] The motion for sanctions was heard with oral argument. It is difficult to believe the trial judge did not state his views on the record in some fashion, but neither party has produced a transcript of proceedings. This militates in favor of invoking the settled rule that it is the appellant's responsibility to put the record into a reviewable posture. On the other hand, Biggs is explicit in stating "it is incumbent upon the court to specify the sanctionable conduct in its order." (Italics ours.) 124 Wash. 2d at 201. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611953/ | 884 P.2d 518 (1994)
118 N.M. 627
STATE of New Mexico, ex rel. Tom UDALL, Attorney General, Plaintiff-in-Intervention-Appellee,
v.
James L. WIMBERLY, et al., Defendants-Appellants.
No. 15266.
Court of Appeals of New Mexico.
August 30, 1994.
*519 Tom Udall, Atty. Gen., Roberta D. Joe, Asst. Atty. Gen., Santa Fe, for plaintiff-in-intervention appellee.
S. Thomas Overstreet, Overstreet & Lane, P.C., Alamogordo, for defendants-appellants.
OPINION
MINZNER, Chief Judge.
Defendant James L. Wimberly appeals from a district court order holding him in contempt of court for refusing to comply with a prior judgment. Wimberly raises several issues on appeal: (1) whether the district court erred in finding him in contempt of court because he had done everything within his means to satisfy the judgment; (2) whether the district court's order holding him in contempt exceeded its jurisdiction because the court required him to satisfy the State to purge himself of contempt; and (3) whether the automatic stay applicable in bankruptcy proceedings filed by Alto Land & Cattle Co. (Alto) stayed the proceedings against Wimberly individually. There was substantial evidence that Wimberly was in willful noncompliance with the judgment; the district court did not exceed its jurisdiction; and the automatic stay filed by Alto did not stay the proceedings against Wimberly individually. Therefore, we affirm.
BACKGROUND
In 1985, the Lincoln County Board of Commissioners (County) filed a complaint for injunctive relief and mandamus against Alto and Wimberly for violating the New Mexico *520 Subdivision Act (Act) and the county subdivision regulations. In 1987, the attorney general filed a motion to intervene as a plaintiff-in-intervention against Alto and Wimberly. The attorney general's motion to intervene was granted, and in 1988 the County's complaint was dismissed with prejudice. Following a bench trial, the district court concluded that Alto and Wimberly were in violation of both the Act and the county subdivision regulations. In 1989, the court ordered Alto and Wimberly to comply with the Act and the county subdivision regulations; the court also ordered them to take specific steps to commence compliance with respect to all property they had previously sold or now held.
On appeal, this Court affirmed in part, reversed in part, and remanded with instructions to enter an amended order. See State ex rel. Stratton v. Alto Land & Cattle Co., 113 N.M. 276, 277, 824 P.2d 1078, 1079 (Ct. App.1991). We concluded that several specific requirements of the order were premature and that the order should impose only those requirements which are "necessary to put the board in a position to consider and act upon a proposed plat." Id. at 284, 824 P.2d at 1086. We noted that "[c]ertain portions of the first paragraph of the order are not appropriate subjects of injunctive relief at this time, because no plat has as yet been submitted, and the board has not yet acted." Id. at 287, 824 P.2d at 1089.
On April 21, 1993, the district court entered a judgment on the mandate which Alto and Wimberly appealed. This Court assigned the case to the summary calendar and proposed summary reversal in part and summary affirmance in part. In our second calendar notice, we proposed to rule that the district court could have compelled Alto and Wimberly to prepare a certified plat acknowledged in accordance with the Act and to submit it with the information the Board of County Commissioners required. We also proposed to hold that Alto and Wimberly were required to comply with the regulations in effect at the time the parcels were sold. Neither side responded to the second calendar notice, and the appeal was disposed of in a memorandum opinion noting that fact and relying on the reasoning of the two calendar notices. See SCRA 1986, 12-210(D) (Repl. 1992) (Effective August 1, 1992).
Following the second appeal, the district court again entered a judgment on the mandate from this Court. This order, entered in 1993, compelled Alto and Wimberly to prepare a certified plat in compliance with the state and county regulations in effect when each parcel was sold "to the extent that those laws relate to the submission of the plat." Alto and Wimberly were also ordered to have the plat acknowledged in accordance with the Act and submitted to the Lincoln County Commissioners for board approval no later than sixty days after the entry of judgment. The judgment further stated that failure to comply with its requirements would trigger SCRA 1986, 1-070 (Repl.1992), entitling the State to obtain an entry of a money judgment and/or issuance of a writ of attachment to cover the costs of performance by a person appointed by the court. The language of the judgment on mandate closely follows the language used by this Court in its calendar notices proposing summary disposition of the second appeal.
The Attorney General filed a motion for an order to show cause why Alto and Wimberly should not be held in contempt for failure to comply with the 1993 judgment on mandate, why writs of attachment should not issue against their property, and why judgment should not be entered against them. On September 13, 1993, Alto filed for bankruptcy in federal district court and filed a notice of automatic stay with the state district court on September 17. The state district court held a hearing on September 20 on the order to show cause. At that hearing, the State indicated it was not seeking relief against Alto, but only against Wimberly. The court found that Wimberly and Alto were separate parties, that the former was familiar with the terms of the 1993 judgment on mandate, and that he had "made no effort whatsoever to comply with [it]." At the close of the hearing the court orally held Wimberly in contempt of court. The court provided, however, that execution would not issue until October 20, 1993 "in order to enable James L. Wimberly to purge himself of contempt by complying with or making arrangements satisfactory to *521 the State and Lincoln County to comply with the terms of the Judgment on Mandate." On November 1 the court filed a written order holding Wimberly in contempt of court.
DISCUSSION
Wimberly urges this Court to reverse the contempt charge because (a) he was not in willful noncompliance, and (b) he lacked the financial means to comply. Second, he argues that the district court exceeded its jurisdiction. Third, he argues that the automatic stay, of which Alto notified the court prior to the September 20 hearing, deprived the court of the authority to hold him in contempt. We address his jurisdictional argument first.
1. Jurisdiction
Wimberly contends that the district court exceeded its jurisdiction by ordering him to make arrangements satisfactory to the State and Lincoln County to purge himself of contempt. He argues that since this Court's memorandum opinion disposing of the second appeal required revisions in the prior judgment on mandate, the district court exceeded that mandate by referring to the State's satisfaction with the plat. In support, Wimberly cites cases holding that the district court has authority only over those matters remanded by the mandate. E.g., Vinton Eppsco Inc. v. Showe Homes, Inc., 97 N.M. 225, 638 P.2d 1070 (1981). However, this Court, in reaching its initial decision to remand following the first appeal, noted that "the conduct the state might compel at this stage includes the preparation of a certified plat, its acknowledgement in accordance with the Act, and submission to the board for approval with information required by the board." Alto Land & Cattle Co., 113 N.M. at 285, 824 P.2d at 1087. In remanding after the second appeal, we relied on similar language in the calendar notices. The 1993 judgment on the mandate scrupulously followed that language. The district court's order after the September 20, 1993 hearing is not inconsistent with either mandate. The district court did not exceed the mandate of this Court. See Genuine Parts Co. v. Garcia, 92 N.M. 57, 60, 582 P.2d 1270, 1273 (Ct.App.1978).
2. Automatic Stay
Wimberly argues that the automatic stay applicable to Alto's bankruptcy proceedings "would in effect apply to Wimberly because Wimberly would be in contempt of the bankruptcy court by taking control, possession or exercising control over the property that was before the bankruptcy proceeding...." He asserts that as an individual he would be violating Section 362(a)(3) and (4) "by engaging in surveying, title work and in general exercising control over the property by filing a plat." See 11 U.S.C. § 362(a)(3), (4) (1988); see also Hillis Motors, Inc. v. Hawaii Auto. Dealers' Ass'n, 997 F.2d 581, 586 (9th Cir.1993).
Section 362(a)(3) and (4) provide as follows:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)), operates as a stay, applicable to all entities, of
. . . . .
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate[.]
"A principal purpose of [Section 362(a)(3) ] is to preserve property for use in the reorganization of the debtor and to prevent the dismemberment of the estate." Hillis Motors, Inc., 997 F.2d at 586. Wimberly presented no evidence at the hearing in support of his claim that the actions the district court had ordered him to take would affect the bankruptcy court's control of Alto's property. Absent such evidence, we cannot be certain that the court order required Wimberly to create a lien against or otherwise exercise control over Alto's property. Under these circumstances, we think the State has the right to proceed to enforce its judgment against Wimberly individually.
The State has argued that the automatic stay "does not operate as a stay of the enforcement *522 of a judgment, other than a money judgment, obtained in an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power." See 11 U.S.C. § 362(b)(4), (5); see also In re Timberon Water Co., 114 N.M. 154, 159, 836 P.2d 73, 78 (1992). We recognize there appears to be debate among federal courts regarding the applicability of the statutory provision on which the State relies. Compare Cournoyer v. Town of Lincoln, 790 F.2d 971, 975 (1st Cir.1986) (applying provision) with Hillis Motors, Inc., 997 F.2d at 590-91 (refusing to apply provision) and In re Goodwin, 163 B.R. 825, 828 (Bankr.D.Idaho 1993) (same). That is, courts disagree as to whether Section 362(b)(4) and (5) provide an exception to Section 362(a)(3) or (4). See In re Goodwin, 163 B.R. at 828. We need not resolve that issue here, however.
The automatic stay statute does not control actions brought against non-debtor entities, even where there is a close nexus between those non-debtors and their bankruptcy affiliates. In re Winer, 158 B.R. 736, 743 (Bankr.N.D.Ill.1993). This includes situations where the non-debtor is a corporation wholly owned by the debtor. Id.
[T]he protection of this stay is personal to the debtor and does not extend to those jointly liable with the debtor. As to actions against those entities, this stay is not effective. Also, it does not extend to separate legal entities such as corporate affiliates, partners in debtor partnerships, or to codefendants in pending litigation. [Footnote omitted.]
1 Collier Bankruptcy Manual ¶ 362.03, at 362-15 (Lawrence P. King, Editor-in-Chief, 3d ed. 1994). "It has been a cardinal principle of bankruptcy law from the beginning that its effects do not normally benefit those who have not themselves `come into' the bankruptcy court with their liabilities and all their assets." In re Venture Properties, Inc., 37 B.R. 175, 177 (Bankr.D.N.H.1984).
We conclude that Wimberly failed to show that the automatic stay provisions contained in Sections 362(a)(3) and (4) apply to the present proceeding. He has shown no other basis that would preclude the court's authority. "Courts will examine the substance of an action, and not its form, to determine whether the action is stayed under subsection (a)...." In re Goodwin, 163 B.R. at 827. The State has proceeded against Wimberly individually, and the stay relating to Alto therefore does not apply.
3. Contempt
The elements necessary for a finding of civil contempt are (1) knowledge of the court's order; (2) an ability to comply; and (3) willful noncompliance with the order. Rhinehart v. Nowlin, 111 N.M. 319, 326, 805 P.2d 88, 95 (Ct.App.1990); Dial v. Dial, 103 N.M. 133, 136, 703 P.2d 910, 913 (Ct.App. 1985). When reviewing a charge of civil contempt, the action of the trial court will not be disturbed absent an abuse of discretion. Local 890 of Int'l Union of Mine, Mill & Smelter Workers v. New Jersey Zinc Co., 58 N.M. 416, 422, 272 P.2d 322, 326 (1954). The burden of proof in a civil contempt case is the preponderance of the evidence. Greer v. Johnson, 83 N.M. 334, 335, 491 P.2d 1145, 1146 (1971). "[T]he credibility of the witnesses and the weight to be given the evidence is for the trier of the facts." Id. at 336, 491 P.2d at 1147.
Wimberly challenges the district court's finding that he "made no effort whatsoever to comply with the Judgment on Mandate." Wimberly concedes that he had knowledge of the order, but he argues that he did everything within his means to comply with the judgment on mandate, and any failure to comply was a result of financial inability to do so rather than willful noncompliance. We first address his challenge to the court's finding.
The district court refused to admit into evidence any of Wimberly's actions to comply occurring prior to the issuance of the 1993 judgment on mandate. The actions Wimberly wished to have submitted into evidence included preparation of a list of property owners who would have to sign the plat, acquisition of estimates on the preparation and presentation of a certified plat and cost for road construction, and placement on the agenda of the Planning and Zoning Commission of Lincoln County. All of these actions *523 occurred prior to the Court of Appeals memorandum opinion disposing of the second appeal. In fact, the actions occurred between 1989 and 1992 with no further follow-up after May 1992. The mandates from this Court contemplated subsequent action by Wimberly. In 1993 the district court ordered appropriate subsequent action. Wimberly neither appealed nor sought clarification. In fact, the district court gave Wimberly an option to meet with the County Clerk to set up a plan for compliance with the order in lieu of presenting the completed plat, and Wimberly did not arrange for a meeting. That fact alone defeats Wimberly's claim that he did everything within his means to comply with the order. Under these circumstances, the district court did not err in refusing to find sufficient compliance to quash the order, which is the gist of the challenged finding.
Next, Wimberly argues that he is not in contempt of the judgment on mandate because he is financially unable to comply. See Dial, 103 N.M. at 137, 703 P.2d at 914 (inability to pay is a defense to a contempt proceeding). In Dial, the only evidence that the defendant presented to prove his inability to pay was his affidavit attached to a motion requesting that his testimony be taken by telephone because of "`severe financial and business considerations.'" Id. at 137-38, 703 P.2d at 914-15; see Nelson v. Nelson, 82 N.M. 324, 327, 481 P.2d 403, 406 (1971). Based on this evidence, we held that the defendant failed to prove an inability to pay. In this case, Wimberly was afforded an opportunity to meet his burden at the hearing on the order to show cause. He proffered his uncontroverted testimony that filing a certified plat would cost between $50,000 and $75,000, a $975,000 personal judgment is pending against him, his business interests have a negative net worth, and he could not borrow any money. However, he also testified that he owns four companies, one of which is the parent company and owner of the condominiums where he and his wife live and are salaried managers. He did not present any testimony regarding his personal cash flow, earnings versus liabilities, and the equity of his corporations. Furthermore, the record is void of any suggestion that Wimberly tried to borrow money or that he even tried to get a plat. Based on Wimberly's unsubstantiated testimony, the district court did not abuse its discretion. See Nelson, 82 N.M. at 327, 481 P.2d at 406 ("[i]nasmuch as [the defendant] carried the burden of proof, the court's refusal to find his inability to pay is deemed an adverse finding on that issue.").
CONCLUSION
We hold that the district court did not err in finding Wimberly in contempt of court and did not exceed its jurisdiction. We also hold that the automatic stay applicable to proceedings against Alto does not apply to this contempt proceeding against Wimberly. For the foregoing reasons, we affirm the order of the district court.
IT IS SO ORDERED.
BLACK and BOSSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1296419/ | 227 S.E.2d 593 (1976)
30 N.C. App. 459
STATE of North Carolina ex rel. UTILITIES COMMISSION and Duke Power Company, Applicant,
v.
Rufus L. EDMISTEN, Attorney General.
No. 7610UC209.
Court of Appeals of North Carolina.
August 18, 1976.
*597 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Robert P. Gruber, Raleigh, for appellant.
Com'n Atty. Edward B. Hipp and Asst. Com'n Atty. John R. Molm, Raleigh, for N. C. Utilities Com'n, appellee.
Steve C. Griffith, Jr., George W. Ferguson, Jr., and Kennedy, Covington, Lobdell & Hickmen by Clarence W. Walker and John M. Murchison, Jr., Charlotte, for Duke Power Co., appellee.
BRITT, Judge.
The Attorney General challenges that part of the Commission order allowing Duke to impose a temporary surcharge and states his contentions thusly:
"I. The Commission order approving a temporary surcharge allowing Duke to recover so-called unbilled revenues of $18,503,555 for fuel costs incurred in July and August, 1975 was illegal in that it fixed rates retroactively so as to make them collectible for past service.
"II. The Utilities Commission lacks the statutory authority to approve a temporary surcharge for the recovery of specific cost items experienced by a utility in the rendering of past service."
To understand the questions presented by this appeal, it is necessary to review briefly the history of the fuel adjustment clauses which the Commission has authorized Duke to impose. The problem sought to be solved dates back to 1973 when a worldwide energy crises brought about tremendous increases in the cost of fossil fuels, particularly coal which is used extensively in this country in the generation of electricity.
On 30 November 1973 Duke filed with the Commission an application (Docket E-7, Sub. 161) for authority to adjust its retail electric rates and charges by the addition of a coal adjustment clause to be rendered on monthly bills on and after 1 January 1974. At that time Duke had pending an application (Docket E-7, Sub. 159) for a general rate increase.
On 19 December 1973, in an order based on affidavits and other documentary evidence, the Commission consolidated the two applications and, pending a hearing, authorized the requested coal adjustment clause. The order provided that the clause would not be operative unless and until coal costs increased above the October 1973 level, and included the following:
"1. That effective on bills rendered on and after January 19, 1974 for service rendered on and after December 19, 1973 with respect to coal burned on and after November 1, 1973, the Applicant, Duke Power Company, is authorized and permitted to put into effect the coal cost adjustment clause attached to its application as Exhibit B.
"2. That Duke Power Company will report to the Commission on a monthly basis the amount of the fuel cost adjustment and the factors and computations used in its derivation."
*598 On 17 July 1974 this court dismissed an appeal by the Attorney General from the 19 December 1973 order on the ground that the order was interlocutory. See opinion reported in 22 N.C.App. 497, 206 S.E.2d 507; aff'd, 285 N.C. 759, 209 S.E.2d 282 (1974).
On 10 October 1974, following lengthy hearings, the Commission entered a final order in Docket No. E-7, Sub. 161, in which it made pertinent findings of fact and conclusions of law and ordered (1) that the fossil fuel adjustment clause become effective 1 November 1974, (2) that the coal clause remain in effect until 1 November 1974, and (3) that Duke file with the Commission each month a complete fossil fuel adjustment clause memorandum.
The Attorney General and other intervenors appealed from the order, attacking the validity of the fuel adjustment clause. In an opinion filed 6 August 1975, and reported in 26 N.C.App. 662, 217 S.E.2d 201, this court upheld the validity of the fuel clause. A fuller account of the findings and conclusions of the Commission is set forth in that opinion.
SCOPE OF REVIEW
While our decision in this case does not rest on technical rules of procedure, we feel constrained to call attention to Rule 10 of the New North Carolina Rules of Appellate Procedure, 287 N.C. 671 (1975), which became effective with respect to all appeals taken from orders and judgments of trial tribunals, including the Utilities Commission, in which notice of appeal was given on and after 1 July 1975. Since the orders appealed from in the instant case were entered subsequent to that date, the new rules apply.
Rule 10(a) provides:
"Function in Limiting Scope of Review. Except as otherwise provided in this Rule 10, the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal in accordance with this Rule 10. No exception not so set out may be made the basis of an assignment of error; and no exception so set out which is not made the basis of an assignment of error may be considered on appeal. Provided, that upon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law, notwithstanding the absence of exceptions or assignments of error in the record on appeal."
With respect to exceptions to findings of fact and conclusions of law, the last sentence of Rule 10(b)(2) provides: "A separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error." The drafting committee's commentary regarding this sentence, Ibid, p. 702, states: "The last sentence carries forward an established rule of decision which has prohibited `broadside exceptions' to multiple findings or conclusions. Logan v. Sprinkle, 256 N.C. 41, 123 S.E.2d 209 (1961)."
All of the Attorney General's exceptions and assignments of error are to the signing and entry of the orders appealed from, with reasons given as to why the orders are invalid. In his assignment No. 5 (Ex. No. 3) as set forth in his grouping of exceptions and assignments, he alludes to "certain Findings and Conclusions" including one which he summarizes, and states that the findings and conclusions (presumably referring to all of them) are unsupported by competent, material and substantial evidence in view of the entire record as submitted, "and said Order is therefore arbitrary and capricious". Where the orders are set out in the record on appeal, no exception is noted to any finding of fact or conclusion of law.
We hold that there is no proper exception to the findings of fact and conclusions of law set forth in the orders, therefore, the findings and conclusions are presumed to be *599 correct. Our review is limited to the questions whether the orders are supported by the findings of fact and conclusions of law.
MERITS OF THE CASE
The main thrust of the Attorney General's contention is that the part of the 27 August 1975 order allowing Duke to apply a temporary surcharge to collect its increased fuel costs for July and August of 1975 constitutes retroactive rate fixing which is not authorized by our statutes and has been declared illegal by our Supreme Court.
Specifically, the Attorney General argues that one of the primary statutes giving the Commission the authority to fix rates is G.S. 62-136, and that subsection (a) of that statute authorizes a fixing of rates "to be thereafter observed and in force" (emphasis ours). He further argues that in Utilities Commission v. City of Durham, 282 N.C. 308, 318, 193 S.E.2d 95, 102 (1972), the Supreme Court declared that "the Commission may not fix rates retroactively so as to make them collectible for past service."
The Commission argues that there is a difference between rate fixing and approving a fuel clause designed to recover previously incurred costs. We find this argument persuasive.
Rate fixing contemplates considerably more than altering one component in the rate structure of a public utility. The catchline of G.S. 62-133 is "How rates fixed". The statute then provides that in fixing rates for certain public utilities (including power companies), the Commission, among other things, shall ascertain the fair value of the public utility's property used and useful in providing the service rendered to the public within this State, estimate the utility's revenue under present and proposed rates, ascertain the utility's reasonable operating expenses, and fix a rate of return on the fair value of the property as will enable the utility by sound management to produce a fair profit for its stockholders.
While the cost of fuel for its generating plants in undoubtedly a major expense item for Duke and other power companies, such cost is only one of many factors that G.S. 62-133 requires the Commission to consider in fixing rates. In City of Norfolk v. Virginia Electric and Power Company, 197 Va. 505, 90 S.E.2d 140 (1955), the Virginia Supreme Court of Appeals, in approving a fuel clause (referred to by that court as an escalator clause) for a power company under its jurisdiction, recognized a distinction between rate fixing and approving a fuel clause. We quote from the opinion:
"[T]he escalator clause is, therefore, highly remedial; it confers no benefit on the stockholders of the company except to help the avoidance of unjustified loss, and . . . it likewise deprives them of the possibility of keeping an unjustified gain."
* * * * * *
"In approving the escalator clause the Commission did not fix rates retroactively, but on the contrary, it authorized and prescribed a fixed mathematical formula to be inserted in the schedules of the Company which will serve as a `guide, direction, or rule of action' for determining future rates." 90 S.E.2d at 146-48.
We think G.S. 62-136(a) refers to rate fixing as envisioned by G.S. 62-133. We also think the declaration by our Supreme Court in Utilities Commission v. City of Durham, supra, quoted above, was made in the context of a general rate fixing case and is not controlling in this case.
On 30 November 1973 when Duke applied to the Commission for authority to implement an automatic coal adjustment clause (also referred to herein as a fuel clause), it was operating within a rate structure that had been determined by the Commission pursuant to G.S. 62-133. That structure included an item of .5035 cent per KWH for cost of fossil fuel. The order of the Commission entered 19 December 1973 authorizing Duke to implement a fuel clause, which order is the root of the question presented by this appeal, did not "fix rates" but was only a means to make the .5035 cent per KWH for cost of fuel a workable figure from the standpoint of Duke and its customers.
*600 By the enactment of Section 8 of Chapter 243 of the 1975 Session Laws [G.S. 62-134(e) quoted above], the General Assembly indicated an intent that the cost of fuel used in the generating of electricity by a public utility should be treated as a factor separate from all others in the utility's rate structure. The new statute expressly states that a proceeding under it shall not be considered a general rate case. It streamlines the procedure for considering an application to change the cost of fuel component and requires the Commission to rule on the application within 90 days after it is filed.
The record discloses that after October 1973 Duke could not determine the accurate cost of fuel per KWH for a given month until two months later, therefore, bills rendered in January 1974 included increased fuel costs for November 1973; that this caused a two months' lag in recovering the increased fuel costs, thereby necessitating the surcharge in question to collect for July and August 1975.
While the 19 December 1973 and 10 October 1974 orders might have been clearer in their provisions that Duke's recovery of increased fuel costs would relate back to include November and December of 1973, a liberal construction of the orders leads us to conclude that they were sufficient to accomplish that purpose.
We hold that the Commission did not exceed its authority in entering the orders appealed from.
Affirmed.
HEDRICK, J., concurs.
MARTIN, J., dissents.
MARTIN, Judge (dissenting).
In fixing rates to be charged by a public utility, the Commission is exercising a function of the legislative branch of the government, and has only that power conferred upon it by G.S. Chapter 62. Utilities Commission v. General Telephone Company of Southeast, 281 N.C. 318, 336, 189 S.E.2d 705 (1972).
G.S. 62-130(a) authorizes the Commission to fix rates, and G.S. 62-130(d) authorizes the Commission to revise and change rates from time to time as circumstances may require. G.S. 62-136(a) authorizes the Commission to investigate existing rates on its own motion or upon complaint of anyone directly interested, and if the rates are found to be unjust and unreasonable, the Commission has the authority to determine the rates to be thereafter observed and in force. In investigating rates and setting rates for the future under the broad authority of G.S. 62-136(a), the legislature has given the Commission specific procedural and substantive guidelines to follow in fixing rates. G.S. 62-133 empowers the Commission to conduct a general rate hearing if the utility seeks an increase in rates which affects the entire rate structure of the utility. G.S. 62-73 and 74 allows a proceeding when the utility, a customer, or the Commission wishes to investigate a single rate or small part of the rate structure. Utilities Commission v. Carolina Power and Light Company, 250 N.C. 421, 109 S.E.2d 253 (1959); Utilities Commission v. Tidewater Natural Gas Company, 259 N.C. 558, 131 S.E.2d 303 (1963). G.S. 62-134(e) provides for an investigation of a rate increase application based solely upon the increased cost of fuel. G.S. 62-137 requires the Commission to declare the scope of the hearing.
This Court has recently approved the use of a fuel escalator clause to set rates, stating that G.S. 62-3(24), which defines "rate" is worded in such a broad manner as to encompass the use of a formula. Utilities Commission v. Edmisten, Attorney General, 26 N.C.App. 662, 217 S.E.2d 201 (1975), I dissented in that case, and the question presented has not yet been decided by our Supreme Court. If it is assumed that a formula implemented under G.S. 62-3(24) is a valid rate making device, then G.S. 62-3(24) and the formula are subject to the limitations of G.S. 62-136(a).
When the statutes are viewed in harmony, and each is given its proper effect, it appears that whether rates are fixed under G.S. 62-133, G.S. 62-73, G.S. 62-74, G.S. *601 62-134(e), or G.S. 62-3(24) investigation and ordered change must be made under the umbrella of the authority given by G.S. 62-136(a) and G.S. 62-130.
A rate is fixed or allowed when it becomes effective pursuant to Chapter 62, G.S. 62-130(a). And rates must be fixed prospectively from their effective date. G.S. 62-136(a) provides that the Commission shall determine rates "to be thereafter observed and in force". This statute, which controls all rates set under G.S. Chapter 62, allows the Commission to set for a utility a reasonable rate for service to be rendered in the immediate future. The Commission may not fix rates retroactively so as to make them collectable for past service. Utilities Commission v. City of Durham, 282 N.C. 308, 318, 193 S.E.2d 95 (1972); Utilities Commission v. Morgan, 277 N.C. 255, 267, 177 S.E.2d 405 (1970). See Public Utilities Commission v. United Fuel Gas Co., 317 U.S. 456, 464, 63 S. Ct. 369, 87 L. Ed. 396.
In a general rate case conducted pursuant to G.S. 62-133, a utility's historical costs and earnings during a proscribed test period must be considered. The test period operating experience of the utility must be adjusted pro forma to account for all known changes and conditions affecting revenues and expenses so that the test period will accurately reflect the immediate future. Thus specific expense items which occurred in the past are not calculated so that they may be actually recovered by future rates. They are calculated only to be used as the most reasonable estimate of what the company may anticipate in the future.
The use of historical operating data to set rates for the future is not limited to setting rates under G.S. 62-133 when a test period is used. It applies to setting rates under any other proceeding or rate making device used in North Carolina. These principles apply to the use of an automatic fuel adjustment clause as well as to nonautomatic procedures.
Thus, a fuel clause is a prospective deviceit sets rates for the future. The fuel clause applied in any given month, could not be applied retroactively to collect past fuel costs, incurred in rendering service prior to the effective date of the fuel clause, although billings rendered under the fuel clause were based on actual past costs. Billings under the fuel clause were intended to collect fuel costs in the month billings were rendered and the costs two months prior to the billings were used in the billing month as a proxy for the actual costs in the most current months. This procedure is the same in principle as applied in setting rates under G.S. 62-133.
When the fuel clause or coal clause was initially approved on December 19, 1973, as a result of Duke's application filed on November 30, 1973, legally it had to operate prospectively on and after December 19, 1973. Although burned coal costs on and after November 1, 1973 were used as the best estimate of or cost proxy for billings on and after January 19, 1974, Duke could not be allowed to recover its burned costs prior to that date. To have allowed the coal clause to recover coal costs burned on and after November 1, 1973, would have been the clearest example of retroactive rate making. Utilities Commission v. Morgan, Attorney General, supra. G.S. 62-136(a). The November, 1973 burned costs were simply used as the best estimate of costs to be billed from January 19, 1974 to February 19, 1974. Since the coal clause at its inception was prospective, no legally recoverable two months lag arose.
The critical factor is that the $18,503,555 in fuel costs were costs incurred in rendering service prior to the effective date of the Commission order of August 27, 1975, and the Commission acted in excess of its statutory authority by allowing these costs to be recovered retroactively. The surcharge is an illegal rate or charge for services rendered in the past. The Commission had no authority to go back and set rates for services rendered in July and August, 1975, in order to recover unbilled revenues. G.S. 62-136(a), Utilities Commission v. Morgan, Attorney General, supra.
G.S. 62-134(e) only allows for recovery of increased cost of fuel used in the generation or production of electric power. There is no *602 increased cost of fuel on and after September 1, 1975, involved in the costs being recovered under the temporary surcharge. These are past non-recurring expenses incurred for past service prior to the issuance of the Commission's order in this case. Further, G.S. 62-134(e) plainly prohibits attempts to carry the old fuel clause forward past September 1, 1975, and this is precisely what the Commission has attempted to do through its approval of the temporary surcharge. The Commission totally lacks statutory authority or jurisdiction to approve the temporary surcharge.
I vote to reverse. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1819509/ | 102 B.R. 211 (1989)
In Re Donald W. GATHWRIGHT, Debtor.
Donald W. GATHWRIGHT, Plaintiff,
v.
UNITED STATES of America, Defendant.
Bankruptcy No. 385-02199-P7, Adv. No. 87-0545.
United States Bankruptcy Court, D. Oregon.
April 10, 1989.
*212 Joseph Wetzel, Portland, Or., for plaintiff.
Mark E. Nebergall, Dept. of Justice, Tax Div., Washington, D.C., for United States Internal Revenue Service.
MEMORANDUM OPINION
ELIZABETH L. PERRIS, Bankruptcy Judge.
Debtor seeks a determination that certain taxes and penalties assessed by the Internal Revenue Service ("IRS") were discharged in his Chapter 7 case, and restitution of funds, plus interest,[1] seized by the IRS post-discharge. The IRS contends that the taxes are nondischargeable under Bankruptcy Code section 523(a)(1)(C)[2] because debtor filed fraudulent returns and/or willfully attempted to evade or defeat the tax. Debtor responds that the returns were correct as filed or that any errors on the returns were the result of oversight or negligence. This is a core proceeding. 28 U.S.C. § 157(b)(2)(I).
FACTS
Debtor filed for relief under Chapter 7 of the Bankruptcy Code on June 10, 1985. In his schedules debtor listed a $70,706.39 tax debt owing the IRS. This amount included $62,288.92 previously assessed by the IRS for tax years 1976, 1978, and 1979, including fraud penalties for those tax years. Each tax return in question was due more than three years before debtor filed his bankruptcy petition, and the IRS assessed each tax more than 240 days before the petition.
The IRS audited debtor's tax returns for 1976, 1978, and 1979 and made the following assessments:
Assessment Addition to Tax
1976 $10,532.14 $ 6,872.26
1978 10,425.30 3,410.98
1979 41,331.48 13,468.65
The IRS has seized more than $7,000.00 from debtor and his wholly-owned corporation since the discharge was granted.
From 1960 to 1969, debtor was employed by the IRS as a Revenue Agent, where he worked primarily with excise taxes. After leaving the IRS, debtor worked for accounting firms and became a certified public accountant ("CPA"). During 1976 through 1979, debtor had his own CPA practice in which he employed other CPAs. While in his CPA practice debtor prepared tax returns for his clients. His total billings increased between 1976 and 1979.
Between 1972 and 1980, debtor experienced financial problems, which affected his family and contributed to his wife's mental and physical difficulties. Her mental and physical problems in turn caused additional stress on debtor. Sometime before 1979, debtor was in an automobile accident that affected his vision and consequently his ability to conduct his CPA practice. He resolved his vision problems in 1979 or 1981.
ISSUE
Is debtor's tax liability for 1976, 1978, and 1979 nondischargeable under section 523(a)(1)(C)?
ANALYSIS
A.
A discharge granted under 11 U.S.C. § 727 does not discharge an individual from a debt for a tax "with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax." 11 U.S.C. § 523(a)(1)(C). The parties agree that the IRS has the burden of proving that the tax returns were fraudulent or that debtor willfully *213 attempted to evade or defeat the tax.[3] The IRS contends that the terms "fraudulent" and "willfully attempted to evade or defeat" the tax should be construed consistently with their usage in certain sections of the Internal Revenue Code ("IRC," 26 U.S.C.).
I agree that the term "fraudulent return" in section 523(a)(1)(C) should be construed consistently with section 6653(b)[4] of the IRC. In re Harris, 49 B.R. 223 (Bankr.W.D.Va.1985), mod. on reconsideration 59 B.R. 545 (Bankr.W.D.Va. 1986). The IRS must prove that debtor's actions were deliberate, not accidental, and done with fraudulent intent. Id. Debtor must have engaged in a deliberate act calculated to defraud. Matter of Fox, 609 F.2d 178 (5th Cir.), cert. denied 449 U.S. 821, 101 S. Ct. 78, 66 L. Ed. 2d 23 (1980) (applying section 17a(1) of the Bankruptcy Act, which is substantially the same as section 523(a)(1)(C)).
I also agree to a limited extent with the IRS's assertion that the phrase "willfully attempted in any manner to evade or defeat such tax" in section 523(a)(1)(C) should be interpreted in the same way as section 7201(a) of the IRC. Under section 7201(a), which provides that it is a felony to "willfully attempt[] in any manner to evade or defeat any tax imposed by [Title 26] or the payment thereof," the IRS must prove a willful and positive attempt to evade or defeat tax. Spies v. United States, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418 (1943). Although section 523(a)(1)(C) makes nondischargeable tax liabilities which the debtor has willfully attempted to evade or defeat, it does not include willful attempts to evade or defeat "payment" as a basis for nondischargeability. To the extent that the language of the statutes is identical and in the absence of any indication that Congress intended different meanings for the phrases in the different codes, I will interpret them the same. However, because the Bankruptcy Code exception to discharge lacks the language "or the payment thereof," evidence regarding any willful attempt to evade or defeat payment of the tax is not relevant to a determination of nondischargeability. Consequently, I will disregard evidence presented by the IRS regarding debtor's alleged attempts to frustrate collection of the taxes at issue in this case.
B.
The misconduct on which the government bases its allegation of nondischargeability falls generally into three categories: (1) failure to timely file tax returns; (2) failure to report income; and (3) wrongfully claimed deductions.[5]
1. Failure to timely file tax returns.
Debtor filed his 1976 tax return on November 9, 1978, his 1978 return on March 9, 1981, and his 1979 return on June 9, 1981. None of the tax returns in question was filed within the time allowed by law or within any extensions of time debtor had received from the IRS. Debtor did not file his returns until contacted by the IRS. He testified that he did not file his 1976 return on time because he was experiencing financial difficulties and did not think he owed any tax. He stated that his 1978 and 1979 returns were late because he did not want to file them until the IRS had completed its audit of his 1976 and 1977 returns, and he thought he might be entitled to carryover deductions.
I believe debtor's testimony that he was under financial pressure in 1976 through *214 1979 and that he thought he might not owe taxes for 1976. I also believe that debtor intended to file returns for 1978 and 1979 but that he wanted to await the outcome of the audit of the previous years' returns. He did file his returns before the audit was completed on August 31, 1981 after being contacted by the IRS.
Debtor's failure to file timely tax returns was based on financial stresses he was experiencing, his incorrect belief that he did not owe taxes in 1976 and his desire to await the outcome of an audit. I do not find that his failure to file timely returns contributed to what the IRS asserts was a scheme to defraud the IRS nor that it constitutes a willful attempt to evade or defeat the tax.
2. Failure to report income.
In 1976 debtor failed to report $7,945 in income from a barter/exchange program in which he participated. He also did not take a small deduction related to the barter/exchange to which the IRS concluded he was entitled. He testified that he did not think that the mere receipt of credits in the program was income. He thought there would not be a taxable effect if the exchange credit was kept in the exchange and not used.
In 1976 debtor provided the barter/exchange program with a letter of advice regarding the tax treatment of barter/exchange credits. The letter stated that exchange credits kept within a business and used to acquire goods or services for a business have no tax effect because they are cancelled out by corresponding "expenses," but exchange credits removed from the business to acquire goods or services for personal use are taxable.
Debtor testified that he had received exchange credits by transferring uncollectible receivables to the barter/exchange, and hoped to get assets he could turn into cash and put back into his business. There was no evidence presented as to whether debtor used exchange credits for non-business purposes or whether at the end of the tax year the credits remained in the barter/exchange program.
The IRS disagreed with debtor's tax treatment of the exchange credits. Debtor had a theory about taxation of these items and there is no evidence that his failure to report the exchange credits as income was contrary to his theory. This theory may have been a result of debtor's negligent failure adequately to research the question, but that does not mean that debtor's failure to report this income rose to the level of fraudulent intent or a willful attempt to evade or defeat the tax.
3. Deductions disallowed.
(a) Loss from Valley Farms.
On his 1976 return, debtor claimed $15,350 as an ordinary loss from the operation of the Valley Farms partnership. The IRS concluded that debtor had suffered the loss, but that it was mischaracterized and should have been claimed as a $6,000 nonbusiness bad debt and a capital loss of $9,350. The IRS reached this conclusion because debtor did not provide any evidence of the existence of the partnership, the loss was actually a result of an investment in Valley Farms, Inc., and Valley Farms was not debtor's trade or business.
Debtor testified that he was a partner in a partnership that owned land and buildings on which the corporation Valley Farms, Inc., of which he was a shareholder, operated a business. He guaranteed a loan to the corporation that he was forced to pay. Debtor considered the loss an expense of the partnership.
There is no dispute that the loss was incurred; the dispute is over how the loss should be treated for tax purposes. The IRS contended that the loss should have been partly a capital loss and partly a non-business bad debt rather than an ordinary loss because the partnership did not exist. Debtor's uncontradicted testimony under oath indicated that the partnership existed. The IRS adjustment was not a result of debtor's fraud or willful attempt to evade or defeat tax, but of his failure to substantiate to the IRS's satisfaction his assertion that there was a partnership for which the loss was incurred.
*215 (b) Lost accounts.
On his 1976, 1978, and 1979 returns debtor claimed amortization for accounts he had lost. Debtor purchased the accounts in 1972 from an accounting firm owned by debtor's brother-in-law and his partner, under a contract of sale that listed and priced each account separately. The IRS disallowed each year's deduction on the basis that the client list is a unitary asset the loss of which cannot be deducted until all accounts are lost. Because in 1979 debtor was still servicing at least one of the accounts from the list, none were deductible.
The accounts were separately priced in the contract of sale. Debtor explained that the person who drafted the contract of sale assured him that it was drafted in such a way as to allow him to write off accounts as they were lost. Debtor testified that he relied on this advice and deducted the accounts that were no longer of value to him.
The parties presented testimony that the tax law on purchase of client accounts was not entirely settled at the time debtor filed his returns and that there could be a legitimate difference of opinion as to how loss of accounts should be treated. The IRS does not argue that the accounts were not lost, but that they could not be deducted until all accounts were lost. I believe debtor's testimony that he relied on the contract drafter's assurance that the contract was drafted in such a way as to allow deduction as accounts were lost. There is no indication that his reliance was unreasonable, or that the deductions were fraudulent or taken willfully to evade the tax.
(c) Travel and entertainment.
In 1979 debtor deducted $2,910 for business travel that the IRS disallowed because debtor failed to substantiate the business purpose of the trips. The IRS also disallowed business entertainment expenses because of debtor's failure to substantiate the business purpose of the expenditures and who was entertained.
There is no dispute that the expenditures were made. Because debtor could not substantiate the business purpose of the expenditures to the IRS's satisfaction, however, the IRS disallowed them. I believe debtor's testimony that there was a business purpose for his trips to Nashville, Tennessee and Hawaii. As to the other disallowed items, the IRS did not offer or elicit any testimony, and therefore fails in its burden of proving nondischargeability.
(d) Wages to debtor's wife and children.
In 1978 and 1979 debtor claimed deductions for wages paid to his wife and four daughters. The IRS disallowed $2,355 for Mrs. Gathwright's wages in 1978 and $9,974 in 1979. It disallowed the entire amount claimed as wages paid to debtor's daughters.
Debtor did not maintain time sheets showing the hours worked by family members. His ledgers provided substantiation that the payments had been made, but did not substantiate the purpose of the payments or the number of hours worked. In 1978 debtor reported that Mrs. Gathwright had income of $4,795 but deducted as an expense $7,150 as wages paid to her, and in 1979 reported that she had $7,200 income but deducted $17,174 as her wages.
I believe debtor's testimony that his wife worked at his office and that he paid her from time to time. Debtor did not offer any specific explanation why he deducted more for his wife's salary than he claimed as income. Debtor agreed with the IRS audit adjustment reducing his deduction, thereby admitting his mistake. As discussed more thoroughly below, such an honest mistake does not constitute fraud nor show a willful and positive attempt to evade tax, necessary to deny discharge.
The IRS also disallowed deductions for wages paid to debtor's children. I believe the testimony of the four daughters that they worked at debtor's office despite their young age at the time, and that they were compensated from time to time. I also believe that debtor bought cars for Debra and Dina as compensation for past and future wages, even though neither girl was old enough to drive when the vehicles were purchased. Therefore, I do not find that debtor acted fraudulently or with the intent *216 to evade or defeat tax in deducting those amounts as a wage expense.
(e) Judgment deduction.
In 1979 debtor deducted in full the amount of an $18,750 judgment against him although he had not paid the judgment in full. The IRS disallowed $15,001.50, the amount not paid. Debtor testified that he felt that because the prevailing party had put a judgment lien on his property, debtor had effectively lost control of the assets to which the lien attached and therefore he could deduct the entire amount of the judgment that year. He also testified that he thought the judgment was similar to a mortgage and was therefore deductible.
Debtor deducted the full amount of the judgment either because he failed adequately to consider how the judgment should be treated or because he felt the liens effectively deprived him of his property and therefore he could consider the judgment paid. Debtor's claim of this deduction was not legally proper under either scenario; however, the evidence indicates that debtor took the deduction as a result of an honest mistake and not in an effort to defraud the IRS or to willfully attempt to evade or defeat tax.
C.
Debtor conducted his business affairs in what can at best be characterized as a sloppy manner and at worst a negligent manner. During his testimony debtor demonstrated a lack of understanding of good business and accounting practices and of the tax laws. At the time the tax returns at issue were due and continuing until they were filed, he was under extreme financial pressure, his wife was suffering from medical problems, and he was involved in an automobile accident that adversely affected his eyesight and thus his accounting practice. As a result, he failed to consider carefully the items he reported on his tax returns, or even to file his returns in a timely fashion.
In Spies v. United States, supra, the Supreme Court illustrated the types of conduct from which a willful attempt to defeat or evade the tax may be inferred: keeping a double set of books, making false entries or alterations or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct the likely effect of which would be to mislead or to conceal. 317 U.S. at 499, 63 S.Ct. at 368.
The IRS has not proved that debtor engaged in any willful conduct to evade or defeat the tax. Neither has it proved that he engaged in conduct that would support a finding that he acted with fraudulent intent. Mr. Eldridge, the IRS revenue agent who conducted the audits, testified that debtor's books and records were sufficient to allow a determination of tax. Debtor did not refuse to turn over his books and records, or destroy them. He did not hide income in undisclosed accounts. Debtor agreed with certain adjustments made during the audit. His failure to timely file his returns was a result of financial, family and physical pressures as well as of his belief he did not owe tax or of his desire to await the outcome of previous years' audits. Although debtor's tax returns claimed many deductions that the IRS disallowed, and failed to report some income, they similarly failed to claim all allowable credits and deductions to which debtor was entitled, although on a much lesser scale than the improperly claimed deductions. Even considering debtor's past employment as an IRS agent and his profession as a CPA, I find that his debt to the IRS is a result of sloppy or negligent conduct, not fraudulent or willful conduct.
CONCLUSION
I conclude that debtor's tax liability for 1976, 1978, and 1979 is dischargeable. According to Ms. Duncan of the IRS, the IRS seized $7,647.41 of debtor's assets[6] postdischarge *217 that was applied to what I have determined is a dischargeable debt. Debtor is entitled to a return of that amount plus prejudgment interest at the federal judgment rate.[7]
This Memorandum Opinion shall constitute Findings of Fact and Conclusions of Law under Bankruptcy Rule 7052 and Fed. R.Civ.P. 52, and they shall not be separately stated.
Plaintiff is directed to submit a judgment order in accordance with this opinion.
NOTES
[1] Plaintiff in his complaint and argument seeks attorney fees. He does not explain his theory for recovery of fees in the complaint, his trial memorandum, or the pretrial order. The court will not speculate on the basis for the attorney fee request, therefore plaintiff's prayer for attorney fees is denied.
[2] 11 U.S.C. §§ 101 et seq.
[3] The parties do not agree whether the IRS must prove nondischargeability by a preponderance of the evidence or by clear and convincing evidence. Because I find that the IRS has not proved nondischargeability even by a preponderance of the evidence, I need not resolve the issue.
[4] Section 6653(b) provides for additions to tax "[i]f any part of any underpayment . . . of tax required to be shown on a return is due to fraud. . . ."
[5] There were unreported income and numerous disallowed deductions reported in the audits that were not the subject of testimony at the trial. I will discuss only those items on which testimony was offered because they are the items on which the IRS relies for its claim of nondischargeability.
[6] The IRS levied three times on the bank account held by debtor's solely-owned corporation, which the IRS was able to establish was the debtor's alter ego. In addition, the IRS received $715.00 as the value of office furniture in debtor's accounting office. There is no evidence that Mrs. Gathwright, who is jointly liable for the taxes, had an interest in the account or the furniture.
[7] 28 U.S.C. § 1961. There is no evidence that the equities of the case require a different rate for prejudgment interest. See Western Pacific Fisheries, Inc. v. S.S. President Grant, 730 F.2d 1280, 1289 (9th Cir.1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1461226/ | 276 F. Supp. 163 (1967)
Petition of DEN NORSKE AMERIKALINJE A/S, Owner of the M/S TOPDALSFJORD, for Exoneration From or Limitation of Liability.
Petition of HAMBURG-AMERIKALINIE as Owner of the MOTORSHIP WEISSENBURG.
Petition of UNITED STATES STEEL CORP., as Owner of the STEAMSHIP CEDARVILLE.
Nos. A65-19, C66-655, A65-6.
United States District Court N. D. Ohio, E. D.
October 27, 1967.
*164 *165 Joseph Keig, Jr., Spray, Price, Hough & Cushman, Chicago, Ill., and Thomas O. Murphy, Johnson, Branand & Jaeger, Cleveland, Ohio, for Den Norske Amerikalinje A/S, Owner of M/S Topdalsfjord.
Stuart B. Bradley, Eaton, Jackman & McGover, Chicago, Ill., and Dwight B. Buss, Cleveland, Ohio, for Hamburg-Amerikalinie as Owner of Motorship Weissenburg.
Roman Keenen and Lucian Ray, McCreary, Hinslea & Ray, Cleveland, Ohio, for United States Steel Corp., as Owner of Steamship Cedarville.
Abraham E. Freedman, Freedman, Borowsky & Lorry, Philadelphia, Pa., J. Harold Traverse, Cleveland, Ohio, Ned R. Phillips, Pressman & Scribner, New York City, Victor G. Hanson, Detroit, Mich., Ned L. Mann, Cleveland, Ohio, Louis G. Jarboe, Elmer L. Radka, Rogers City, Mich., Kenneth C. Davies, Detroit, Mich., Jason & Mack, Alpena, Mich., for claimants.
CONNELL, District Judge.
On May 7, 1965 a collision took place in the Straits of Mackinac between the Norwegian Topdalsfjord and the American ore-carrying Steamship Cedarville of the Bradley Fleet of the United States Steel Corporation, as the result of which the Cedarville sank approximately 40 minutes thereafter.
On May 15, 1965 the United States Steel Corporation, as owner of the Cedarville, filed a Petition for exoneration from or limitation of liability against three claimants who were the Administratrices of the estates of three seamen who lost their lives in this collision, and against many of the ship's crew, who were potential claimants.
Such action was filed in the United States District Court for the Northern District of Ohio, Eastern Division.
A similar Petition was filed in the United States District Court for the Northern District of Illinois at Chicago by Den Norske Amerikalinje A/S, Owner of the Topdalsfjord, and another similar Petition was filed by the Hamburg-Amerikalinie, as Owner of the Motor Vessel Weissenburg, a ship which had been in close proximity to the collision, and which had, in fact, picked up all of its survivors.
The United States District Court at Chicago transferred the Petition of the Owners of both such foreign vessels to the United States District Court at Cleveland, Ohio, and the docket of this court discloses some two years' of filings, rulings, proceedings, conferences and pre-trials by counsel with the Court, thereafter.
The Coast Guard conducted a lengthy investigation herein, and in addition thereto, all counsel took depositions of all witnesses herein concerned. This Court did not directly hear any witness, but all counsel had the privilege of reading to the Court whatever evidence it chose, from both the Coast Guard investigation and the depositions taken in these matters; this reading consumed approximately five weeks. Many witnesses testified in both deposition and *166 Coast Guard proceedings. Some testified several times in both such proceedings.
The question here presented to this Court by the reading of such testimony from these two sources is limited to the question whether punitive damages may be or ought to be assessed in this case.
This was so because at the last in a series or pre-trial conferences Counsel for the three petitioning shipowners and the claimants entered into a stipulation whereby judgment was entered against U. S. Steel and Den Norske on the counts of exoneration and limitation and Hamburg-Amerikalinie was relieved of all responsibility subject only to a special agreement between the three petitioning shipowners. The stipulation further provides that the count for punitive damages proceed against U. S. Steel only. The counsel for both foreign ships worked out an arrangement with the United States Steel Corporation whereby they retired from the case, which was then to be defended by United States Steel Corporation alone, and the Court then undertook to decide the question first as to whether punitive damages were herein susceptible of application, the evidence elicited being limited only to what witnesses had theretofore testified in the Coast Guard Hearings and on the depositions previuosly taken. It was further agreed that after the Court so ruled, a Commissioner would then be appointed to determine what compensatory damages should lie.
We then turn to the question whether, as a matter of law, punitive damages may be assessed in a proceeding of this nature. By way of background, however, we offer first this brief summary of the salient facts which give rise to this issue. Since this remaining phase of the case is limited to the issue of punitive damages, we concentrate our discussion upon those facts which bear upon that issue.
The "Cedarville", built in 1927, was a "self-unloader", 604 feet long, with a 60 foot beam; it had 16 hatches with no water-tight bulkheads. Its equipment included a revolving conveyor belt 450 feet long and 4 feet wide contained within a tunnel below the ship's holds along the center line of the vessel. At the bottom of each hold there was an opening through which the cargo passed down into the tunnel and onto the conveyor belt. Any water which might be taken into any one of the holds of the vessel through the shell necessarily passed down into the tunnel, and in the event of the breach of the shell of the vessel, the water, in passing through any compartment, would immediately find its way into the tunnel and thereupon fill all of the holds. The vessel had no water-tight bulkheads to contain the water in any compartment where the shell of the vessel might be opened up. It was admitted by the operating manager of the U. S. Steel fleet that in the event of a collision and the opening of the hull below the water line the vessel would "sink like a brick". U. S. Steel's fear of such a collision prompted it to provide a "collision mat" about 16 feet by 24 feet, which was intended to be lowered down over any opening in the ship's hull to impede the flow of water into the vessel. This was a completely inadequate precaution against the everpresent danger of a collision.[1]
*167 The "Cedarville" departed from the Port of Calcite on May 7, 1965 with a cargo of 14,411 tons of limestone. The "Cedarville's" freeboard (the protrusion of the vessel above the surrounding water to its deck line) was 10 feet and ¼ inch.[2] Fog shrouded the area at the time of departure, and the fog signal was placed on automatic and the vessel proceeded at "full speed".[3] This was in violation of Rule 15 of the Great Lakes Rules of the Road which limits vessels to "moderate speed" in fog. The official navigational charts of the United States Coast Guard show recommended courses through the various waters. The recommended course after leaving Calcite was 320 degrees. Captain Joppich ignored the recommended course and fixed the vessel's course at 317 degrees. He stated that the company Captains fixed their own courses; the Coast Guard course from Forty-Mile Point is 301 degrees, but Captain Joppich steered 305 degrees; at Cordwood Point Buoy the Coast Guard course is 270 degrees, but Captain Joppich steered 261 degrees; at Poe Reef the Coast Guard course is 281 degrees, but Captain Joppich steered 285 degrees; at Cheboygan Traffic Buoy, Captain Joppich steered the recommended course at 302 degrees, but for a very short distance, and he thereafter changed to 305 degrees and later on to 310 degrees. Had Captain Joppich followed the Coast Guard courses, he would have completely avoided the disastrous collision. Approaching from the opposite direction were the Weissenburg and about one mile in front the Topdalsfjord. All vessels were using radar in the fog, but the "Cedarville" was not plotting the oncoming vessels to determine their course and speed. As the "Cedarville" approached the Mackinac Straits, Captain Joppich reached an agreement with the Weissenburg for a port-to-port passing, but he was unable to make contact with the Topdalsfjord, which was one mile closer to him. Captain Joppich then blew one blast for a port-to-port passing, but he got no reply and he was unable to make contact with the Topdalsfjord by radio phone. Under these circumstances, with the vessels being between four and eight miles apart, Captain Joppich was required by Rule 26 of the Great Lakes Rules of the Road[4] to sound the danger signal which he failed to do because he did not consider himself to be in an emergency. In attempting to excuse his violation of the Rule, Captain Joppich further testified that he was following the "prudent" Rule No. 27.[5] Throughout his testimony, Captain Joppich defends by afterthought, but traps himself in contradictions. Thus, while seeking refuge in the "prudent" rule, he contradicted himself by first claiming that there was no emergency at the time he blew his first one-whistle blast for a port-to-port *168 passing, and then claiming the protection of Rule 27 which applies only when the vessel is in immediate danger. He then resorted to another deception in claiming that it was not stated how far the vessels were apart, so that it could not be said that Rule 26 was applicable. This was likewise untrue for the rule specifically holds that the danger signal must be sounded if one vessel fails to understand the course or intention of the other, whether from signals being given or not answered irrespective of distance separating them. The question of distance is critical only when the vessels shall have approached within a half-mile of each other; at this point if either vessel is in doubt of the other's intention, both vessels "shall reduce their speed to bare steerageway, and, if necessary, stop and reverse". His wilful and deliberate failure to blow the danger signal as required when his first signal was unanswered was a substantial factor leading to the collision. Captain Joppich's activities thereafter further reveal an incredible course of conduct ostending a complete indifference to law and to human safety. As the two vessels approached each other closer and closer, he blew the one-blast signal for a port-to-port passing on four successive occasions; the last one came when the "Cedarville" was literally in the maw of the collision itself. All during this time he drove the "Cedarville" at full speed and never once did he blow the danger signal, nor did he reduce speed to bare steerageway and reverse as required by Rule 26. Had he blown the danger signal even once, and had he reduced his speed to bare steerageway or reversed, he would have escaped the collision. If he had followed the Coast Guard course of 302 degrees, there would have been no danger of collision. The "Topdalsfjord" was far to his right, and when he changed to 305 degrees and subsequently even to 310 degrees, he could still have avoided the collision if he had known the course of the Topdalsfjord, which he could have ascertained simply by plotting the blips on the radar. Instead, he turned the "Cedarville" hard right to 325 degrees, which exposed it broadside to and directly in the path of the Topdalsfjord, with the catastrophic events to follow. The full speed in the fog,[6] the refusal to follow the Coast Guard courses, the refusal to blow a danger signal, the refusal to reduce speed to bare steerageway and to reverse when the Topdalsfjord failed to answer his one-blast signals constitute wilful and wanton misconduct directly related to the collision and the subsequent loss of life and personal injury.
The record also supports the conclusion that United States Steel vested sole and exclusive discretion in the Captains of the vessels, and that the foregoing departures from the Rules were routine practices ratified by the highest echelon of the U. S. Steel Corporation.
The wilful and wanton deviations from law and prudence on the part of the petitioner and its Captain which caused the collision are dimmed in importance by the outrageous misconduct following the collision in deliberately and improperly exposing the crew of the "Cedarville" to death and serious personal injury.
*169 The collision occurred at 0945 and the ice-breaker prow of the Topdalsfjord tore open a great gash in the "Cedarville's" port side below the water line, which caused an immediate rush of water into her compartments via the conveyor tunnel. Captain Joppich rang the general alarm immediately and directed Chief Officer Piechan to examine the damage to the vessel. He then telephoned station WLC (owned and operated by U. S. Steel Corporation) and reported the collision, which information was transmitted within one or two minutes from the time of the collision on their private line to Captain Parrilla, Manager of the Bradley Fleet, a division of U. S. Steel Corporation, who was then in conference with Admiral Khoury, a top-ranking officer in the corporation office in Pittsburgh, Pa. Captain Parrilla refused to make contact with Captain Joppich, so he stated, and said he intended to leave the handling of the situation solely to the discretion of Captain Joppich. This was the only way Captain Joppich could communicate with Captain Parrilla.
Immediately after the sounding of the general alarm, those men not on watch reported to their lifeboat stations and lowered the lifeboats part of the way down waiting for the order to abandon ship, but the order never came. He ordered the engineers to put the pumps into operation and pump water into certain of the tanks and to start the pump in the conveyor tunnel. The Weissenburg's Captain May telephoned Captain Joppich that he was standing by and offered to take the crew off the "Cedarville," but Captain Joppich refused the offer and asked that he get the name of the Norwegian ship which had struck him.
About ten minutes after the collision, Chief Officer Piechan, after having examined the damage, reported to Captain Joppich that water was flooding the vessel and that the hole was too large for the 18 by 24 foot collision canvas to fit over it.
At approximately 1002, about seven minutes after the report from the Chief Officer, the decision was made to beach the vessel. Captain Joppich testified that he alone made the decision, but by that time Captain Parrilla had received another call which incorporated Chief Officer Piechan's report and he knew at that point that the vessel was "seriously holed", that "she was taking water", and he was also aware at that time of the decision to beach the "Cedarville". Notwithstanding this knowledge and his own admission that the "Cedarville" would "sink like a brick" if she was holed, Captain Parrilla refused to take any action to instruct Captain Joppich or to discuss the situation with him, or so he claimed, stating further that he had given Captain Joppich absolute control over the vessel, and under no circumstances would he interfere with Captain Joppich's discretion even if he were on the bridge of the vessel at the moment with Captain Joppich. Captain Parrilla's testimony in this regard is so shocking as to merit brief quotation as follows (Tr. 335):
"Q So that even if you knew that she was, in your opinion, going to go down, because of the fracture in the hull, and you knew that the Captain was going to beach her, and that she might go down, and in your opinion would go down during the course of the run to the beach, you still wouldn't take any action but you would leave it to the Captain?
A Absolutely. I think these decisions and these actions are his."
At the time of the decision to beach, the vessel had lost about four feet of her freeboard and was sinking at the rate of about three inches per minute. Notwithstanding this, Captain Joppich refused to give the order to abandon ship.
After the decision to beach the vessel was made, Captain Joppich ordered the anchor pulled up, but it was fouled on *170 the bottom. The anchor was freed but not until the engines were put in reverse, whereupon he ordered the engineers to "give her all she had".
In the meantime, the Weissenburg was standing by all the while waiting to take the men off the "Cedarville". Captain May repeated his offer on two further occasions, stating that the Weissenburg was very close at hand with two of its lifeboats swung out ready to take the Cedarville's crew aboard, but Captain Joppich refused these offers and refused to give the order to abandon ship. As Captain Joppich proceeded to navigate the "Cedarville" around the Weissenburg, Captain May made one last plea for the removal of the Cedarville's crew in a most dramatic fashion, as follows:
"A (Continuing) Yes, because that was the moment where the Cedarville nearly crossed my bow, and I was about, let's say, two or three cable lengths of it, see, so the Cedarville must be somewhere over here in that moment.
That was the moment, you see it shows in my log bookwhen I stopped my ship not to collide with the Cedarville, and that was the moment when I asked him, I contacted the Cedarville again, `Please, Captain, which side do you prefer that I come alongside to take off your crew,' and this was the moment, when he said, `get out of my way, get out of my way, I try to beach her,' so I had to stop my ship. This is the time of 1002."
This Court regards the decision to beach the vessel without evacuating the men as an outrageous, indeed horrendous, act of misconduct on the part of Captain Joppich and United States Steel. Seventeen fateful, precious minutes had elapsed since the collision, giving the Captain the fullest opportunity to survey the damage; it was readily apparent that this ship would reach no beach. She was doomed at that point, and it was clear that she would take with her the crew unless he took immediate action to remove the men. Up to that moment he could have removed the entire crew with complete safety. The vessel had been dead in the water anchored to the bottom; the Weissenburg was immediately at hand with its lifeboats out so that the men could have been removed with virtually no danger, either by descending into the lifeboats or by having the Weissenburg come alongside as Captain May offered. At that point Captain Joppich could see that the vessel had already sunk into the water about three or four feet, and that she was steadily sinking at the rate of about three inches per minute. Said Captain Joppich, "I took a gamble" in trying to beach the vessel. This was a wilful, wanton act of misconduct of the worst order which this Court finds to be indefensible. He could have chosen to jeopardize his own life, but he had no right to jeopardize the lives of others by failing to remove the crew before embarking on the run for the beach. Had he so desired, he could have done so simply by directing the engine to be set at full throttle while he handled the wheel on the bridge. Having made the decision to beach,[7] he turned the sinking vessel in the general direction of the shore, without knowing exactly where he was headed and how long it would take to reach the nearest shoreline.
As the vessel proceeded toward the beach, the men stood by waiting for the *171 order to abandon ship with their life-jackets on, but the order never came. Without such an order, none of the men were authorized to leave the vessel. The men in the engineroom stood by their posts and the men on duty on deck likewise remained at their posts. All the crew showed great courage, obedience to duty and dedication to the service in the highest traditions of the American Merchant Marine. All the crew performed their duties. This, however, their leadership failed to do, at great cost to the crew.
As the mortally wounded vessel labored through the water, sinking steadily at the rate of three inches per minute, her speed was cut down to two or three miles per hour. Captain Joppich was unmoved, however, although he could clearly see the vessel sinking steadily and the momentum of the ship so low as to make the chances of a successful beaching absolutely nil. Yet, he refused to give the order to abandon ship when the lifeboats could still have been placed in the water while she was barely moving and steadily sinking. He sent a man below to get him a lifejacket. Finally, when the decks were awash, he stepped out of the pilothouse, leaving the third mate and the wheelsman on duty inside, and the engineroom crew on duty pursuant to his orders down in the lowest levels of the engineroom. Even at this late moment lives might have been saved if he had uttered the two fateful words. It seemed as though the vessel was struggling valiantly to keep herself afloat and on an even keel until the last instant so that its loyal crew could be rescued, but Captain Joppich was coldly steadfast in his determination that the crew not abandon the ship.
The end came quickly as the decks came awash. The "Cedarville" convulsed and capsized throwing the men, a lifeboat and a raft into the water as she went down taking with her the remainder of the trapped crew. Some of those thrown clear into the water were sucked down but were brought up again by the lifejackets. Captain Joppich, who had stepped out on the bridge from the pilothouse when he saw that the end was near, was thrown clear off the vessel from his high perch. The third mate, Cook, whom he left on duty in the pilothouse, was sucked under and he suffered the same agonizing fate as the others who were trapped in the vessel. Even greater loss of life was averted by the commendable action of the Captain of the Weissenburg. Recognizing that the "Cedarville" was in trouble, Captain May followed her with his lifeboats in a ready position for launching. He detected the sinking on his radar and he heard the cries of the men in the water. His forthright action in putting his lifeboats in the water and directing them to the area where the "Cedarville" went down unquestionably saved the lives of many of the survivors. He saved all who were saved.
Ten men perished in the water; four from the engineroom department, Chief Engineer Lamp, Third Assistant Engineer Radtke, Stokerman Jones and Oiler Wingo; five men in the Deck Department lost their lives, Third Mate Cook, Deck Watchman Fuhrman, Deck Watchman Jungman, Wheelsman Haske and Wheelsman Asam; one man in the Steward's Department, Bredow. The remaining members of the crew suffered the physical ordeal of exposure in icy water and the mental anguish of death staring them in the face. From this background, we address our attention to the principles of law upon which this case hinges.
Our threshold consideration is whether punitive damages may ever be assessed in a maritime proceeding. Preliminarily, however, we deem it appropriate to discuss the peculiar employment relationship between seamen and their employers and between the crew of a vessel and its Master. As stated by the Supreme Court in Southern Steamship Company v. N. L. R. B., 316 U.S. 31, 38, 62 S. Ct. 886, 890, 86 L. Ed. 1246 (1942):
"Ever since men have gone to sea, the relationship of master to seaman has been entirely different from that of employer to employee on land. The *172 lives of passengers and crew as well as the safety of ship and cargo are entrusted to the master's care. Every one and every thing depend on him. He must command and the crew must obey. Authority cannot be divided. These are actualities which the law has always recognized. On the one hand, it has imposed numerous prohibitions against conduct by seamen which destroys or impairs this authority."
In the maritime field, therefore, there must be abject obedience to orders from the moment the seaman enters service until his discharge. It is settled that this condition of the seaman's contract is a singular exception to the Thirteenth Amendment's prohibition against involuntary servitude. Robertson v. Baldwin, 165 U.S. 275, 288, 17 S. Ct. 326, 41 L. Ed. 715 (1897). As a consequence, the relationship between the owner of a vessel and its crew fashions a unique doctrine which places the employer in loco parentis to the seaman (Robertson, supra at 287, 17 S. Ct. 326) and makes the master the legal guardian of the seaman. The Iroquois, 194 U.S. 240, 247, 24 S. Ct. 640, 48 L. Ed. 955 (1904); Murphy v. American Barge Line Company, 169 F.2d 61 (3rd Cir. 1948). Thus emanates the ancient notion that seamen are "emphatically the wards of the admiralty". Harden v. Gordon, 11 Fed.Cas.No.6,047, pp. 480, 485 (D.C.Me.1823) (Story, J.). These considerations necessarily reflect themselves in our decision today.
The cause of action for punitive damages has always been recognized as an actionable right in admiralty. The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 547, 4 L. Ed. 456 (1818). The Supreme Court of the United States, in Lake Shore and Michigan Southern Railway Co. v. Prentice, 147 U.S. 101, 13 S. Ct. 261, 37 L. Ed. 97 (1892), in referring to The Amiable Nancy, pointed out that the cause of action for punitive damages was co-extensive in admiralty and the common law:
"The rule thus laid down is not peculiar to courts of admiralty; for as stated by the same eminent Judge two years later, those courts proceeded in cases of tort upon the same principles as courts of common law, in allowing exemplary damages, as well as damages by way of compensation or remuneration for expenses incurred or injuries or losses sustained by the misconduct of the other party."
In Caldwell v. New Jersey Steamboat Company, 47 N.Y. 282 (1872), the New York Court of Appeals authorized exemplary damages in a maritime tort case when a boiler on a steamboat exploded, severely injuring a passenger; the trial court had instructed the jury that if they found the injury resulted from culpable negligence (defining culpable negligence as either a wilful act or an act exhibiting other recklessness for the lives or safety of the passengers), they could consider that circumstance in awarding the amount of damage. Said the New York Court of Appeals:
"The rule of law laid down by the court was substantially correct. Exemplary damages may be allowed not only in vindictive actions so called, such as assault and battery, false imprisonment, defamation and the like, but also in actions based upon negligence * * * And if the jury could find in this case, that the defendant omitted, either in the construction or management of the boilers the usual and ordinary means of protection, and that such omission caused the accident, it would evince that recklessness of the lives, and safety of the passengers, which would justify such damages."
In Ralston v. The States Rights, 20 Fed.Cas. pages 201, 209-210, Case No. 11,540 (E.D.Pa.1836), in a case arising out of a collision of two vessels, Judge Hopkinson, a noted admiralty authority, ruled that punitive damages could be awarded against a shipowner for injuries suffered through the wilful and malicious acts of the ship's captain performed in the course and scope of his employment, as follows:
"In our case, the management and steering of the State Rights were put *173 into the hands and under the will and discretion of Captain Allen; it was his business, his employment and right, and if he abused his authority by mistake, by negligence, or willfully, to the injury of another, both he and his owners are responsible for it."
See also Day v. Woodworth, 13 How. 363, 14 L. Ed. 181 (1851), where the Supreme Court pointed out that the right of action to recover elements of exemplary damages "seems to have been borrowed from the civil law and the practice of the courts of admiralty".
The petitioner, United States Steel Corporation, has steadfastly challenged the power of a court, sitting in admiralty, to step beyond the assessment of mere compensatory damages, but the cases cited by petitioner in its trial brief lend discredit to its argument. Petitioner cites, with favor, The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 547, 4 L. Ed. 456 (1818) for the proposition that the owners of a vessel may never be accountable for punitive damages. The language of the opinion, however, lends the clear implication that in the proper case, admiralty has power to assess exemplary damages:
Upon the facts disclosed in the evidence, this must be pronounced a case of gross and wanton outrage, without any just provocation or excuse. * * * And if this were a suit against the original wrongdoers, it might be proper to go yet further, and visit upon them, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct.
The court continued, however, and stated that the owners of the privateer which had assaulted the libelants should only be accountable for compensatory damages in that case:
But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion, that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages. (pp. 557-8).
Petitioner has also turned the Court's attention to Ralston v. The State Rights, 20 Fed.Cas. p. 201 (E.D.Pa.1836). That court quite clearly found against the first proposition of the petitioner's argument:
I think, therefore, that it is not legally correct, to say that a court cannot give exemplary damages, in a case like the present, against the owners of a vessel. * * * There is no subject upon which more repeated and solemn complaints have been made to the public, and few of a deeper interest to the community, than the accidents, always attended with frightful alarms, and sometimes by the most fatal and melancholy consequences, from the collision of steamboats. * * * Our river has been particularly exempt from these disasters, and it should be the determination, as it is the duty, not only of the courts when appealed to, but of every good citizen, to keep it so. (p. 210).
The most recent authority on the subject is made by Mr. Justice Stewart in a concurring opinion in Vaughan v. Atkinson, 369 U.S. 527, 540, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962), which has drawn sharp criticism from petitioner and its gratuitous supporters, Den Norske Amerikalinje and Hamburg-Amerika Linie. In that case, the majority of the court awarded counsel fees in connection with a claim for maintenance and cure. In a concurring opinion, Mr. Justice Stewart, joined by Mr. Justice Harlan, pointed out that the right to counsel fees should have been based on the seaman's *174 traditional right to exemplary damages under the maritime law:
"However, if the shipowner's refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages." McCormick, Damages § 79.
The fact that punitive damages have never been visited upon a tortfeasor in an admiralty proceeding is no reason for precluding such a recovery. The petitioner and its supporters have adduced no persuasive authority nor have they articulated any persuasive reasoning which justifies such a preferential treatment to a maritime tortfeasor. In the absence of a specific rule to the contrary, there is no basis in law or reason for proscribing the recovery of punitive damages in admiralty.
Maritime law draws on many sources; when there are no clear precedents in the law of the sea, admiralty judges often look to the law prevailing on the land. (Igneri v. CIE de Transports Oceaniques, 323 F.2d 257, 259 (2nd Cir. 1963)).
Our next consideration is whether the death claimants, suing as they are under favor of the Jones Act, 46 U.S.C. § 688, are entitled to the recovery of punitive damages under that Act. Examination of petitioner's position here indicates either that its legal research was incomplete or that its argument is fallacious.
One of the purposes behind enactment of the Jones Act was to secure rights for seamen against their employers such as Congress had created on behalf of railroad workers through the Federal Employers' Liability Act. 45 U.S.C. §§ 51 through 60. The original Act of 1908 included a wrongful death statute modeled after the celebrated English wrongful death statute, Lord Campbell's Act, 9 & 10 Vict. Ch. 93 (1846), which permitted a certain class of survivors to sue for their pecuniary loss resulting from the wrongful death of their decedent. At common law the death of a human being, though wrongfully caused, affords no basis for the recovery of damages, and a right of action for personal injuries dies with the injured person. (St. Louis, I. M. & S. R. Co. v. Craft, 237 U.S. 648, 35 S. Ct. 704, 59 L. Ed. 1160 (1915); Insurance Co. v. Brame, 95 U.S. 754, 756, 24 L. Ed. 580 (1877); Baker v. Bolton, 1 Campb. 493, 170 Eng.Reprint (1808); Speiser, Recovery for Wrongful Death 2 (1966)). In the absence of statute, the general maritime law of the United States does not authorize any recovery for the death of a seaman, whether caused by negligence or unseaworthiness. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368 (1932). The Harrisburg, 119 U.S. 199, 213, 7 S. Ct. 140, 30 L. Ed. 358 (1886).
In this context, the Federal Employers' Liability Act became law. As originally enacted in 1908, it provided in § 1 (45 U.S.C. § 51) for two rights of action for negligence: (1) an injured employee's right of action for personal loss and suffering, and (2) a right of action for the benefit of certain beneficiaries for any pecuniary damages sustained by them as a result of the employee's death. An injured employee's right of action for personal loss and suffering did not survive; it died with him. Connors v. Gallick, 339 F.2d 381 (6th Cir. 1964). However, by an amendment adopted in 1910 adding § 9 of the Federal Employers' Liability Act (45 U.S.C. § 59) provision was made for the survival of the employee's claim for personal loss and suffering, and also for the benefit of the designated beneficiaries.
In 1920, through the Jones Act (46 U.S.C. § 688), the wrongful death and survival aspects of the Federal Employers' Liability Act were extended to seamen's beneficiaries. Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958); Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S. Ct. 308, 13 L. Ed. 2d 199 (1964); Hutchison v. Pacific-Atlantic S. S. Co., 217 F.2d 384 (9th Cir. 1954). The Supreme *175 Court held in Kernan that the Jones Act supersedes all state death statutes which might be applied to maritime deaths, and this decision has been recently reaffirmed in Gillespie.
It is clear, therefore, that while there can be no recovery for the decedent's personal loss and suffering before death if an action under the Federal Employers' Liability Act or the Jones Act is strictly for the wrongful death of the decedent and predicated upon the provision allowing recovery for the loss sustained by designated beneficiaries as a result of the decedent's death, recovery for the decedent's personal loss and suffering before death may be allowed if the cause of action is based on the decedent's right, which survives under the statutes, to recover for personal loss and suffering before his death. These two causes of action are distinct. Chicago, B. & Q. R. R. Co. v. Wells-Dickey Trust Co., 275 U.S. 161, 48 S. Ct. 73, 72 L. Ed. 216 (1927); Williams v. Louisville & Nashville Railroad Co., 371 F.2d 125 (6th Cir. 1967); Connors v. Gallick, supra.
The importance of the survival statute cannot be overstated here; in law, these men, through their representatives, are raised from their watery graves and stand at the bar to demand all that the law extends to their more fortunate fellows who survived. Pimienta v. Marine Navigation Co., 258 F. Supp. 666 (S.D. N.Y.1966).
The case relied upon by the petitioner, Cain v. Southern Ry., 199 F. 211 (D.Ct. Tenn.1911), was decided under the Act of 1908; even a cursory reading of the syllabus teaches that. In the body of the opinion we find this language:
"It is clear under the Act of 1908, which was in force at the time this accident occurred in 1909, in case of an injury resulting in the death of an employé, no provision was made for the survival of the right of action of the injured employé himself. * * * Such survival of the injured employé's right of action was expressly provided for by section 2 of the later amendatory Act of April 5, 1910 * * *. I also think it clear that under the Act of 1908, before the amendment of 1910, in an action brought for the statutory beneficiaries to recover damages for the death of an employé the recovery is limited to the pecuniary injury or loss sustained by the beneficiaries from the death of the deceased, and that the measure of damages is compensation for the loss of such pecuniary benefit as could have been reasonably expected to the beneficiaries, as of legal right or otherwise, from the continued life of the deceased, excluding all consideration of punitive elements, loss of society, wounded feelings of the survivors and suffering of the deceased." (p. 212). (Emphasis added).
The above quotation, especially where we underscore, clearly shows that the Act of 1910, providing for the survival of the decedent's right of action, includes punitive damages in the case of death.
Claimants have cited Ennis v. Yazoo & M. V. Ry. Co., 118 Miss. 509, 79 So. 73 (1918) for the proposition that exemplary damages may be recovered in a death action instituted under the Federal Employers' Liability Act. In that case a railroader had been electrocuted by an exposed line which had been brought to the attention of the railroad several times. The court, commenting on the wanton negligence of the employer-railroad, stated as follows:
We will first discuss the question as to whether the instruction for punitive damages granted the plaintiff was erroneous. The record discloses abundant proof, in the testimony of Boswell, that the electric appliance was defective, and had been dangerous and defective for at least a week; it had shocked the witness Boswell six or eight different times; that he had reported the dangerous and defective condition of the appliance to Desmond and Detrick, both of whom were superior officers in charge of the work and employés in the shop; and that they had, notwithstanding this notice, continued to negligently and wantonly *176 furnish the dangerous and defective electric apparatus to the employés until the death of Ennis was brought about by its use. So, we do not think the court erred in granting the instruction on punitive damages.
It is perfectly clear that the survival action (45 U.S.C. § 59) permits the estate of a deceased railroader to sue for punitive damages.
Petitioner suggests that the punitive damages may not be assessed under the Jones Act since that statute does not specifically provide for such a recovery. This argument fails of support. Exemplary damages are the product of the common law and are not a creature of legislation. Thus, while certain statutes may specifically authorize the recovery of punitive damages, such specific reference is neither common nor necessary. Recovery of exemplary damages has been permitted under federal statutes which employ general language as in the Civil Rights Act, 42 U.S.C. § 1983. See Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965). Cf. also Nagel v. Prescott & Co., 36 F.R.D. 445 (N.D.Ohio, 1964); (Securities Act of 1933, 15 U.S.C. §§ 77a-77aa). As stated by the Court in Basista v. Weir, supra, "[T]he federal law permits the recovery of exemplary or punitive damages;" and held that punitive damages are recoverable under that Act which "merely states that the offending person `shall be liable to the party injured in an action at law.'"
The Court is constrained, therefore, to find that under the Jones Act the right of a deceased seaman to sue his employer for punitive damages survives the seaman's death and the claim may be pressed by his personal representative.
We proceed to the next argument advanced by the petitioner, i. e., that the corporate owner may not be subjected to exemplary damages arising out of the misconduct of its subordinate agents. The main thrust of the claimants' argument is devoted to a description of the Captain's actions immediately prior to the collision and for those forty fatal minutes after the collision and prior to the sinking of the Cedarville. Claimants have also offered substantial evidence that officers of the highest rank in the petitioner's corporate echelon actually participated in some of the critical misconduct in this case. The evidence stands uncontroverted that those officers were advised of the Captain's intended actions, yet did nothing to avert their disastrous consequences. The claimants, therefore, contend that the petitioner is responsible for the misconduct of its Master.
We are confronted initially with the decision of the United States Supreme Court in Lake Shore & Michigan Southern Ry. Co. v. Prentice, 147 U.S. 101, 13 S. Ct. 261, 37 L. Ed. 97 (1893):
Exemplary or punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has participated in the offence. A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages, merely by reason of wanton, oppressive or malicious intent on the part of the agent.
This decision represents the choice of the Supreme Court then between several competing views of the common law. Pizitz Dry Goods Co., Inc. v. Yeldell, 274 U.S. 112, 115, 47 S. Ct. 509, 71 L. Ed. 952 (1927). The question of the propriety of assessing punitive damages against a corporation-employer, however, is not at all well "settled in the leading case of Lake Shore * * *" (General Motors Acceptance Corp. v. Froelich, 106 U.S. App.D.C. 357, 273 F.2d 92, 93 (1959)); on the contrary, there is a great deal of uncertainty despite the above quoted excerpt from Lake Shore.
In that case the court begins by showing exemplary damages are imposed only upon one who has participated in the wrong. It then points out that this axiom applies to the master-servant relationship so that some form of participationeither *177 authorization or ratificationby the principal is necessary to expose him to liability. The court then states that a corporate principal is liable in the same manner as a natural person for the wrongs done by his agent.
The problems which have arisen, ironically, seem to have their origin in the following dictum from Lake Shore:
The rule has the same application to corporations as to individuals. This court has often * * * affirmed the doctrine that for acts done by the agents of a corporation, in the course of its business and of their employment, the corporation is responsible in the same manner and to the same extent as an individual is responsible under similar circumstances. * * * A corporation is doubtless liable, like an individual, to make compensation for any tort committed by an agent in the course of his employment, although the act is done wantonly and recklessly, or against the express orders of the principal.
From this the argument is made that since a corporation can act only through its agents, and therefore is responsible for the acts of its agents, there need be no ratification of the agent's misconduct to support a finding against the corporate principal. 1 Sutherland, Damages, 2d ed. 1893; Cf. also, Times Publishing Co. v. Carlisle (Journal Co. v. Carlisle), 94 F. 762, 774 (8th Cir. 1899). The divergence of opinion on this question has led treatise writers into a hopeless state of confusion. As stated by the author in Note, Corporations: Liability for Exemplary Damages, 37 Univ.Det.L.J. 751, 753 (1964):
The treatise writers are in a similar state of confusion. Mechem states that for the awarding of exemplary damages the principal must also be guilty of wrongful motives. Thompson gives the reasoning for both sides of the question, stating that there are strong reasons for each position. Sutherland states that there is a split of judicial opinion but he seems to favor the no ratification necessary theory because the corporation had some degree of negligence in hiring the servant, and furthermore can act only through its servants. McCormick, following the federal rule, says that the majority rule requires ratification, but that there is no logical superiority for either side. This has been contradicted by Prosser who finds that the great majority do not require ratification since the corporation can act only through its agents. The Restatement of Torts requires ratification by the corporation or negligence in hiring. (citations and footnotes omitted.)
The most authoritative treatment of the law of corporations, Fletcher, claims that the majority rule and the better reasoned rule, is this:
But the better rule and the one supported by the weight of authority is that a corporation is liable for exemplary damages if the acts of its subordinate agents and servants were committed wantonly, willfully or maliciously, though not authorized or directed by the company or ratified by it after their commission. (10 Fletcher, Cycl., Corporations, p. 669, Rev. ed. 1961.)
This Court is in agreement with that view. Operating as we are, however, under a judicial system which pays homage to stare decisis, we are constrained to follow the Supreme Court's admonition in Lake Shore even though we feel confident that the court would make a different choice were it confronted with the question today. Even if we are required to follow the Supreme Court rule, as enunciated in Lake Shore, we are not precluded from imputing the misconduct of Captain Joppich to the owner of the vessel. The Supreme Court's rule would affix liability upon the owner for punitive damages if the owner expressly or impliedly authorized or ratifies the act. The record undisputably shows that the vessel owner had reposed total authority in the person of Captain Joppich to extricate the Cedarville from the dangers which confronted it after its collision *178 with the Topdalsfjord. We need only refer to the following testimony from Captain Joseph Parrilla, General Manager of the Bradley Fleet:
Q Tell us, Captain, why you made no effort to reach the Cedarville from the time you first received word that she was involved in a collision?
A The Master of a vessel under these conditions has his hands pretty full, and I would never think of calling the Master, initiating a call on my part, when he is in the throes of important maneuvers of this kind.
They know they can always get to us if they need assistance of any kind, and this is the real reason I made no attempt to reach the Master of the Cedarville. (Tr. 322).
* * * * *
Q I am not trying to get you to give any answer, Captain. What I am concerned with is that a whole hour elapsed, you had a ship out there that had been holed in a collision, she was taking water, the the Admiral of your Fleet is standing next to you, and no one makes an attempt to reach the Captain of this vessel.
A I told you the reason why.
Q You knew she was heading for the beach, didn't you, and you knew that
A I knew from what information had reached me indirectly.
Q Captain, didn't you testify yesterday that the primary concern of every Master is for his crew?
A The safety of the crew.
Q When you found out he had gone for the beach, what did you do about that information?
A There was nothing to do at the moment. (Tr. 324)
* * * * *
Q Captain, I find it quite difficult to understand, if there was any question in your mind, and considering your testimony about your great concern for the crew, why you didn't pick up the telephone and call the Cedarville. (Tr. 331)
* * * * *
Q You didn't want to interfere with the Captain?
A He had his hands full. I presumed he did. I am saying that from my own experience, that if I were engaged in serious activities of that kind I would have no time for the telephone. I would be worried first about my crew's safety and the safety of the vessel.
Q Captain, isn't it true that that phone by your side was the same as though you were on the bridge of that ship with the Captain? (Tr. 331-32).
* * * * *
A I don't follow your analogy.
Q If you had been on that ship with the Captain would you have conferred with him about the proper means to be taken under the circumstances?
A In what capacity on board?
Q If you had been on board that ship in your capacity as his superior, you would have wanted to confer with him about the proper means to be taken; isn't that right?
A The Master of the vessel is responsible for the actions he takes on the vessel under the circumstances.
Q You mean that even if you had personally been on board in the pilothouse or on the bridge at the time this occurrence took place you would not have opened your mouth, but let the Captain do everything?
A It is impossible for me to say now on a hypothetical establishment as you have just narrated what I would do, and I don't see how I can venture an opinion.
Circumstances are different in each case, as you know. I don't think I could venture an opinion what I would do unless I was confronted *179 with the situation factually. (Tr. 332-33).
* * * * *
Q Captain, even if you knew that the fracture of the vessel was such that the vessel was taking sufficient water to capsize her, would you still follow the same rule and leave it to the Captain of the ship?
A Even if we knew that she was being listed; is that what you say?
Q Yes.
A I wouldn't undertake to give the Master any instructions. He is out there on the scene.
Q So that even if you knew that she was, in your opinion, going to go down, because of the fracture of the hull, and you knew that the Captain was going to beach her, and that she might go down, and in your opinion would go down during the course of the run to the beach, you still wouldn't take any action but you would leave it to the Captain?
A Absolutely. I think these decisions and these actions are his. (Tr. 334-35).
Thus a member of the highest echelon of the petitioner, clothed with total authority over the affairs of the Bradley Fleet, testified that Captain Joppich was in complete control of the vessel and that his decision was the decision of the corporation. The corporation thus bestowed full and unfettered authority upon the Master of this vessel; in such a case, the corporation must accept the responsibilities for the devolution of such authority. It has been held that a corporate employer may be compelled to pay exemplary damages if its employee who committed a wrongful act was so high in authority as to be fairly considered executive in character. Winkler v. Hartford Accident & Indemnity Co., 66 N.J. Super. 22, 168 A.2d 418 (1961). The record clearly discloses that in the operation of the vessel Captain Joppich had no superior, was subordinate to no higher corporate officer, so that his actions were tantamount to those of the board of directors.
It is equally clear that the Captain's misconduct was ratified by the Petitioner. The record indicates that Captain Parrilla, the General Manager of the Bradley Fleet, and Admiral Khoury, the man in charge of the entire shipping enterprise of the Petitioner, were apprised of the collision within a few minutes of its occurrence. It is clear that they both knew that the ship had been holed, was consequently taking on great quantities of water, and that Captain Joppich was keeping the men on in an attempt to beach the vessel. No action was taken despite Captain Parrilla's testimony that he knew that the Cedarville "would sink like a brick" if her outer shell had been pierced and the hull opened, as was the case here. (Tr. P. 425). Not one word emanated from Pittsburgh to prevent this certain disaster. Under these circumstances we find that the silence of these top corporate officials reflects a ratification of the wrongful acts of Captain Joppich.
We begin with the admonition of the United States Supreme Court in Supervisors v. Schenck, 5 Wall. 772, 782, 18 L. Ed. 556 (1866):
Like an individual, a corporation may ratify the acts of its agents done in excess of authority, and such ratification may, in many cases, be inferred from acquiescence in those acts, as well as from express adoption. Such ratification may be by express consent, or by acts and conduct of the principal inconsistent with any other hypothesis than that he approved, and intended to adopt what had been done in his name; * * *.
It has been further held that
Silence of the principal, after knowledge of the unauthorized act of an agent, may, in connection with other circumstances, be sufficient evidence of ratification * * *. (Buckeye Cotton Oil Co. v. Sloan, 250 F. 712, 725 (6th Cir. 1918)).
Thus, the ratification by the corporation need not be explicit, but may be implied *180 from circumstances consequent to the wrongful act of its agent. Poweroil Mfg. Co. v. Carstensen, 419 P.2d 793 (Wash. Sup.Ct.1966); Almar-York Co. v. Ft. Worth National Bank, 374 S.W.2d 940 (Tex.Civ.App.1964). After the principal becomes aware of the wrongful act of its agent, ratification may be implied by acquiescence or a refusal to repudiate or prevent the full consequences of the wrongful act. See-Tee Mining Corp. v. National Sales Inc., 76 N.M. 677, 417 P.2d 810 (1966): Petroleum Anchor Equipment, Inc. v. Tyra, 410 S.W.2d 238 (Tex.Civ.App.1966).
Thus, in American Photocopy Equipment Co. v. Ampto, Inc., 82 N.J.Super. 531, 198 A.2d 469, 474, where the "[d]efendant, through its president and secretary, remained silent in respect of acquiescence or disaffirmance when it was directly confronted through telephone calls" concerning the unauthorized and unlawful conduct of its agent, the court found that this silence constituted the ratification of its agent's activities. The court relied, in part, upon The Restatement of Agency 2d, § 94 (1958) in finding that silence under these conditions constitutes ratification "when one is directly confronted with the unauthorized act of his agent, [and] according to the ordinary experience and habits of men, one would naturally be expected to speak if he did not consent." (p. 474) Cf. also, 19 Am.Jur.2d, Corporations, § 1254, p. 660 (1965).
While most of these cases concern ratification by a corporation of unauthorized contracts by its agents, these principles are equally applicable to unauthorized tortious conduct of a corporation's agents. As stated by the author in 10 Fletcher Cycl., Corporations, § 4897, p. 605 (1961 ed):
Although a tort may have been committed by an officer or agent of a corporation without authority and not in the course of his employment, the corporation may become liable therefor by reason of a ratification or adoption of the act. In this respect corporations are subject to the same rule as natural persons * * * (at p. 609) and if it ratifies an act, it becomes liable for personal or other injuries caused by negligence in doing the act."
Thus it appears, as a matter of law, that a corporation which ratifies an act of its agent may be exposed to liability for all the consequences of that act. It appears, as a matter of fact, that in the instant case the Petitioner's highest officials were informed of the purported course of the Master and were aware that this course made danger a certainty and disaster a strong probability. Under such circumstances, there arose a duty to communicate with the Captain and take the necessary steps to safeguard the crew. Their silence in the face of this duty was a full and effective ratification of the decision of the Master to jeopardize, unnecessarily, the lives of the crew.
Through their wide experience in lake shipping, both Captain Parrilla and Admiral Khoury should have realized the probable failure of the beaching operation. Unmistakably they knew that the retention of the full crew on board was unnecessary. Had the Chief Engineer, the late Reinhold Radtke, been authorized to leave the throttle open (it could have been notched or tied) and to lead his assistants from their engine room tomb to the relative safety of the deck, much less a lifeboat, their useless sacrifice could have been averted. Parrilla and Khoury knew this, yet they remained silentor so they claim. Joppich did not need an audiencehis 20 odd crew members standing on deckto witness the inexorable decline of the ship's freeboard. Parrilla and Khoury knew this, yet they remained silentor so they claim.
The situation, as it was known to Parrilla and Khoury, cried out for an immediate evacuation of the entire crew. With the Cedarville at anchor for fifteen minutes, and the Weissenburg standing by to rescue the crew (and begging permission to do so), circumstances were most appropriate for disembarking the crew immediately after the collision. *181 What did this crisis evoke from these two experienced men of the sea? Silence. Silence despite the specter of a Captain unnecessarily exposing his crew to death and injury. Silence despite the knowledge that the Captain's efforts to beach the ship were doomed ab initio. It is ironic that this silence undoubtedly motivated by a desire to secure the favor of the limitation statutes and thus reduce or contain the legal ramifications of the collision now operates to expose the petitioner to a far greater liability. Had these officials been motivated by a righteous concern for the lives and safety of their obedient crewmen, rather than a concern for the possibilities of limitation, we would have no cause to speak in this case. But speak we shall for speak we must. It is the finding of this court that the conduct of Captain Martin Joppich is so oppressively contrary to the dictates of good seamanship, so callously in disregard of human safety, so wantonly careless of the rights of his crew as to justify the imposition of punitive damages, and we impute that conduct to his corporate employer. The petitioner countenanced, encouraged, authorized and ratified his actions.
Many Maritime laws were built on the theory that, in time of danger, contact between sea and shore was physically not possible. Shore Officers could easily prove they did not ratify since there could not be knowledge. The Captain of a sailing vessel in the South Pacific couldn't telephone his Owner's Office in London, or his fleet commander in Oslo. But now communication is faster from ship to shore than an ordinary long-distance call. Here there was immediate contact with the shore office, which has immediate contact with the Fleet Office in Pittsburgh. There was a 40 minute opportunity of frequent communication.
The ancient lack of privity[7] was based on impossibility of communication. Today, the Lake Captain's first call is to the ship-owner! A fair question the trial Judge may ask himself in such a case, since he may judge motivations and self-interest of all witnesses, is Do the owners say they could make no suggestions under any possible conditions to their Captain, because Joppich was really too busy to receive them or do they say so to enable themselves to claim there was here no privity? Were not the owners in immediate touch with Joppich? And for what purpose? They could talk of but two things; the ship and the crew. There was no other comparably important thing to discuss. Was there anything said of the men? In no conversation were the men ever mentioned.
Captain Parrilla, on deposition, after the catastrophe, agrees that the safety of the crew is the primary concern of the Master when a ship is endangered; but he admits an utter failure to suggest this primary concern to this Master under these conditions during a half hours busy telephoning, when his Master's primary concern was distinctly not the crew. He so admits by saying he chose to say nothing.
There were really 40 minutes here in which this Master had the opportunity to contemplate, and deliberate, and premeditate, just what he was going to do. Is it proper or not for a Judge to consider that in his thinking, he got all the help the present art of communications could give? He looked down from his bridge on his audience of over 20 of his crew who were in their life-jackets aside of the life boats and in position to leave the ship safely, whenever he could give them sufficient consideration to emit the necessary two words, but somehow for no apparent or proper reason, except his lack of concern for their safety, during *182 this entire 40 minutes of loss of freeboard till the deck was awash, he couldn't bring himself to emit the two words. This was wilful in the sense it was most deliberate with full opportunity for reflection. It was wanton in the sense that ten lives were unnecessarily wasted: it was malicious in the sense it exhibited a total indifference for lives in comparison with property.
If ever the words "wantonly," "wilfully," and "maliciously" in their legal significance, could be properly applied to a Master's utter indifference towards the safety and lives of his crew, this is the case.
While the concise recital of the facts given above is indicative of what our ultimate findings of facts herein should be, the Court deems it advisable at this point to review, summarize, and analyze same in a more connected manner, for the purpose of better elucidating such ultimate findings of facts herein.
Our evidence was not adduced in the usual orderly fashion because with so many counsel, some of whom would leave for short periods of time to go to other courts in other cities, we were constrained to hear the evidence as they wished to offer it, at their convenience. We were required to hear the testimony taken at the Coast Guard investigations, and that taken from various depositions, as the convenience of the lawyers required, so that our record may at times appear disconnected, but nevertheless everything any counsel wished to elicit is in the record, even though there may be an appearance at times of lack of connection. Our summary of the record, disjointed as it may seem, results from our efforts to digest the evidence in the chronological order in which it was adduced.
The Cedarville was what is called a "self-unloader." It was 604 feet long, 60 feet beam: 16 hatches: it had radiotelephone; engineroom telephone; at half speed it went 5 miles per hour, and at full speed 11½ to 12 miles per hour. It carried equipment consisting of a revolving conveyor belt 450 feet long, 4 feet wide, which was contained within a tunnel lying in the ship's center, lengthwise. To load or unload, it could be extended outwards from the ship.
From the opening statements of counsel and the evidence throughout, we learned that the Cedarville had just left Calcite, Michigan, near Rogers City, which was the home of most of its officers and crew, on May 7, 1965. It carried 14,411 tons of limestone. It had 10 feet ¼ inch of freeboard meaning that the protrusion of the ship above the surrounding water was 10 feet ¼ inch at its deck line. The claimants say that the Company wanted to carry maximum speed. All agree that the ship departed in a fog and thereafter operated at the highest possible speed, under the order "Full speed ahead." The claimants say that the ship operated at full speed until she "was in the jaws of the collision," and that this was a violation of Rule 15 of the Great Lakes Rules of the Road:
Rule 15. Every vessel shall, in thick weather, by reason of fog, mist, falling snow, heavy rainstorms, or other causes, go at moderate speed. A steam vessel hearing, apparently not more than four points from right ahead, the fog signal of another vessel shall at once reduce her speed to bare steerageway, and navigate with caution until the vessels shall have passed each other. (33 U.S.C. § 272)
Claimants also assert that, when the Topdalsfjord failed to respond to his passing signal, Captain Joppich was required to reduce speed or stop and reverse, pursuant to Rule 26, which relates as follows:
Rule 26. If the pilot of a steam vessel to which a passing signal is sounded deems it unsafe to accept and assent to said signal, he shall not sound a cross signal; but in that case, and in every case where the pilot of one steamer fails to understand the course or intention of an approaching steamer, whether from signals being given or answered erroneously, or from other causes, the pilot of such steamer so receiving the first passing signal, or the pilot so in doubt, shall sound several short and rapid blasts of the whistle; and if the vessels shall have approached within half a mile of each other *183 both shall reduce their speed to bare steerageway, and, if necessary, stop and reverse. (33 U.S.C. § 291)
The ship's Captain says that he departed from such rules and asserts that he had a right to depart from the rules cited, under Rule 27:
Rule 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger. (33 U.S.C. § 292)
The claimants also say that the ship did not follow recommended courses published by the Coast Guard. The ship's officers testified that they find it better practice to so depart from these recommended courses. The log book recovered from the sunken vessel indicates such changed courses. The ship's Captain says they cut corners but that this is harmless, while the claimants say that the farther a ship goes after it increases or decreases its angle of travel from the recommended course, the more dangerous its operation becomes. The Coast Guard prescribes these courses in order to keep all vessels on parallel courses in these channels and thereby to diminish the possibility of collision. Yet here the petitioner claims that deviation is harmless.
As the Cedarville proceeded northerly and as it was approaching the Straits of Mackinac, its Captain knew that the ships Weissenburg and Topdalsfjord were both approaching him, coming south, and that both had already passed the Mackinac Bridge. There is no question but that the Cedarville's Captain knew of these two vessels, and that he agreed with the Captain of the Weissenburg on passing signals. However, the Cedarville got no response from the Topdalsfjord. The evidence is that the Topdalsfjord preceded the Weissenburg; that it had passed the Weissenburg before passing the Mackinac Bridge; that it had asked the permission of the Captain of the Weissenburg to pass the Weissenburg because "it was a faster ship," and that it did so.
Claimants herein claim that when she moved through fog at full speed, the Cedarville violated Rule 26, in that it should have reduced its speed and that when the Cedarville received no response from the Topdalsfjord she should have stopped and should have reversed her engines, but that she continued ahead at full speed. All the evidence in the case so indicates, till very near the point of collision.
Captain Joppich testified that he tried to follow the course of the Weissenburg and the Topdalsfjord on his radar, and that when the Topdalsfjord came out of the fog, he turned hard right, and then hard left, to avoid collision, but was struck amidships on his port side. Some witnesses on the Cedarville described it as a slight bump at right angles, but the Topdalsfjord had a prow designed and constructed as an ice-breaker, and in this collision it "holed" the Cedarville above and below the water line, giving it what was immediately recognized by the Mate sent to check it as a "mortal wound." The evidence is that the effort to cover the hole with a canvas mat constructed for such purpose was completely unavailing, because it was not large enough to cover the hole, and that the ship took on an uncontrollable flow of water, and from the time its hull was pierced, it began inexorably to sink, and did so in a final convulsive capsizing movement in approximately 40 minutes after it was struck, as a result of which ten men lost their lives and some twenty men here claim damages for injuries and exposure.
The evidence is that the Cedarville did not have water-tight compartments. Witnesses agreed that when a self-unloader ship without water-tight compartments is holed as this one was, "it goes down like a brick." The evidence is that the Topdalsfjord, with its ice-breaker prow, penetrated the Cedarville to its hatches.
The evidence is that on collision, the Captain stopped engines and gave a general alarm; that the crew immediately reported in their life jackets. The Mate was then sent to assess the damage, and *184 quickly reported to the Captain that the hole was too big to put the canvas mat over it. The hole was larger than the 18 × 24 foot mat. The amidships hole was so large the Captain could see it from the bridge. The Captain put an anchor out and got into radio communication with his shore office. This was done within one or two minutes of the collision. The evidence further is that the collision took place at 9:45 A.M. and she sank at 10:20 A.M. The evidence is that the shore office immediately called the Pittsburgh main office. Mr. Smart, Traffic Manager of the Bradley Fleet at Rogers City, was told by Captain Joppich that the ship was hit, "holed," "taking water," and in "serious trouble." Within one or two minutes, Captain Parrilla, Manager of Operations of the U. S. Steel Bradley Fleet at Pittsburgh, got the message from Mr. Beuhrens, Assistant Supervisor, who got it from Mr. Smart. Captain Parrilla testified on deposition that Beuhrens told him the ship was "holed," "taking water," and "in serious shape."
All the evidence indicates that the Cedarville steadily sank. Its freeboard of over 10 feet was, during the 35 to 40 minutes of its sinking, decreased to nothing. Its deck was awash before it convulsed, capsized and went down. At no time was any order ever given by this Captain to his men to abandon this ship. At no time was this Captain ever told by his superiors ashore, with whom he was in direct and immediate communication, to save these men. At no time were any officers or members of this crew ever authorized by this Captain to leave the ship. Lifeboats were at deck level but no one ever was authorized to enter them, or to lower them except to the deck level, or to leave the ship.
We find that the Captain of the German ship stood by at all times offering to take the crew off and that his offer was rebuffed, and that he was told to get out of the way by Captain Joppich when he finally decided to turn his ship around in an effort to beach it. After the catastrophe was complete, the German ship saved all who were saved.
Certain action was taken by the Captain after his ship was holed on the port side amidships. The Captain first ordered the engineers to pump ballast out of the No. 4 port side tank because the water had entered where the port side had been holed; that the Captain had been told that the water so entering was too much for the pumps to handle, under which conditions the Captain thereupon ordered that the pump on tank No. 4 stop and further ordered water taken in on the starboard side. The engineer who did this pumping testified that orders came from the pilothouse to "ballast on the starboard side" and water was taken in to all of the seven tanks on that side except the one water tank for boiler water. The evidence is that such seven pumps were still in operation when she capsized.
The evidence is that the Cedarville, though it was sinking, was nevertheless going down on an even keel until such time as the water taken into all seven tanks on the starboard side caused it to capsize. The Captain testified that he ordered such ballasting to stop, but Wheelsman Gabrysiak, who had the 8:00 A.M. to 12:00 Noon watch and was thus aside of the Captain from 8 A.M. till the vessel capsized, said no such call was ever made. Witness Tulgetske testified none was made between the time he started taking on ballast and the time he left the engine room; when he left the engine room, the deck was already awash. Witness Bey, the last to escape from the engine room, said the ballast pumps on the starboard side were still going when she rolled, but that he heard no such ring. He never got to the main deck, but, as she capsized, he was thrown into a room where his leg was broken and he was able to escape through a porthole. We find that water was so pumped into the seven tanks on the starboard side as to have caused this vessel, which had already lost so much buoyancy, to suddenly lose its balance and capsize to the starboard side.
We find further from this evidence that the Captain never gave any order to stop the intake of water into the seven *185 tanks on the starboard side, and that they were still in operation when she capsized.
The evidence further shows that the men had put on life jackets very early in the general alarm, but that none were ever authorized to leave the ship; that the men in the engine room had theirs on too; it further shows that the Captain signalled the engine room with the chadburn and he had put that signal on "Full speed" in an effort to beach the ship, and the engine men were still obeying his orders when the ship capsized and sank; that as of the time it sank, its speed was down to 2 or 3 miles per hour, due to lack of buoyancy. We further find that, considering the position at which it sank, from the exhibits in the case, and at the diminishing rate of its speed due to its utter lack of freeboard and buoyancy, the chance to have beached it was, for all intents and purposes, practically nil.
Shortly before the sinking, the evidence shows that the Captain had sent a man below to get him a life jacket. The ship's final convulsion and capsize threw both life boats and all men on its deck free. Its sinking hurled loose the rubber life rafts from its upper deck; these rafts were later used by some fortunate survivors to keep themselves afloat. The Captain had stepped out of the doorway of the pilothouse just as the ship capsized and he was thrown clear and escaped, but the Wheelsman just behind him was thrown back into the pilothouse and never got out. Thus, while no one had dared to abandon a ship with no freeboard left and the deck awash, the ship thus abandoned them.
The deck was awash as the Captain stepped off the bridge. The Captain had been using the chadburn to signal the engine room till such a time as he decided to leave the ship. He gave no notice to the men in the engine room that he was about to leave. He had been intermittently busy at the radio telephone since the Cedarville was holed. He had a telephone to the engine room where men in life jackets were busy with the Captain's signals of "full speed ahead" but he failed to use it to tell them he was leaving, or that they could leave. They were faithfully answering his signals, though the ship was necessarily going more slowly as it lost buoyancy and freeboard and took on more water, in addition to its 14,411 ton burden of limestone. While it could attain about 12 miles an hour at full speed, it was down to two or three miles an hour before it sank. Of course the men in the engine room knew nothing of the conditions above.
This Court finds that the Captain saw there was water on his deck and that his ship had lost its buoyancy, and that there was nowhere for the ship to go but down; that had he given any thought at all to his men, and had he sacrificed just two seconds of the telephone time which he used to save his ship, for the purpose of saving his men, and had he emitted just two words into the engine room telephone to save his men, viz., "Abandon Ship," during the last minute before it sank, with five or six ways out of that engine room, some might have had a chance for survival. With any fair, due and proper notice, had they three to five minutes, all could have been at a safe distance in life boats. In fact, all should have abandoned ship when its freeboard was close to disappearance. The German Captain had considered it necessary forty minutes before the capsize.
Again, not once does this record show one word of consideration for anything but the property involved. His claim that it wouldn't have been safe to let them off was an afterthought. The Topdalsfjord had pulled out and away and disappeared. The Weissenburg followed slowly a half mile behind and saved all who were saved, including this Captain. So their danger was not in leaving; it was in staying.
Not once had he said one word about what was to be done for any one man, except the sending below of a man, very close to the sinking, to get a life jacket for the Captain.
Not one word two minutes before the final convulsion and capsize as to whether all were accounted for; whether they were all ready to get off; or to the effect they were finally permitted to leave. In *186 fact, when the ship capsized, they were all literally thrown off of its deck, including the Captain, and to a comparatively safe distance. Of the survivors, only the Captain "went down like a bullet" in the suction of the ship, but his life jacket brought him up. The man aside of him never made it.
Never one word or thought was given to the men below who were about to be drowned, just to keep it full speed ahead, when there was only one place it could go, and that very apparently was not a beach. Theirs was a misplaced loyalty and obedience to him. His was a false sense of duty to protect property regardless of its cost to 30 faithful seamen and their families. Were it not for the Weissenburg many others and this Captain could have lost their lives.
Out of the 35 to 40 minutes he had had in which to do something to save the ship or save the men, this Captain would not give up the necessary two seconds to say the necessary two words to keep the engineroom men from being needlessly and uselessly drowned. One or two more seconds could have saved his Wheelsman besides him, who lost his life because he was a step behind the Captain in leaving the pilothouse as the ship capsized, convulsed and sank. Even there, this Captain put his own interest first, and it paid off.
The Captain asserts throughout the case that his first thought was for his men and not the ship. However, his actions are more demonstrative, more vocal, than his words. Not one of these men was ever authorized to abandon or leave this ship. The ship's convulsion threw over twenty of the men off, it threw the lifeboats and loose rafts off; it threw the Captain off the pilothouse, and it threw the Wheelsman within.
On trial, this was all said by defense to have been done on a "calculated gamble" to save the ship. "Calculated" is a misused word here. If the Captain or anyone knew exactly where they were in this fog, or where the closest beach was, or how to avoid shoals, or how to plot the prospective movement of the vessel, there is no evidence that there was any real "calculation" about it; no one knew whether there was any chance to reach any beach at the attainable rate of speed under the prevailing conditions. The Captain finally, after the loss of the first fifteen minutes, ordered the German vessel out of his way while he tried to turn his ship around and go full speed somewhere else, but it soon capsized and sank so fast that this could hardly be said to have been a "calculated risk." This was "no calculated risk" it was a horrendous gamble.
There was really no opportunity for a "calculated" risk because from the evidence in this case, it is clear that this Captain really did not know his vessel. The petitioner never provided him with, nor did he ever seek to discover, the trim and stability data of his vessel. He had never seen the hydrostatic curves of his ship. He did not know the metacentric height of his vessel. In short, Captain Martin Joppich had ignored the maritime edict that "the Master must know * * * the maneuvering qualities of his own vessel." Griffin Collision 576 (1949).
Yet, before a rational decision could have been reached to beach the vessel rather than abandoning her it would have been necessary to calculate the loss of buoyancy, the trim and stability, the speed attainable, the distance to be traveled, and the time which the vessel could remain afloat, under all the conditions then and there obtaining. Yet not one of any such requisite calculations was ever made. (Tr. 883, 885-886).
Obviously all the consideration and thought of this Captain was for the ship alone, with the expectation that he could finally step off in safety because he had the advantage of looking down at the entire scene from the pilothouse, and no one else could or did move till he said so. Ironically, the capsizing ship made the decision which he was so grudgingly reluctant to make. It literally catapulted everybody and the lifeboats and rafts off its deck and into the surrounding water.
These claimants claim that the engine throttle could have been set at full speed and the engineroom men could have come *187 up on deck and have had a chance for safety. The Captain stated that he did not think so. With so many years on ships, beginning as a porter and working his way up to Captain, he has been in enginerooms often enough to know that a throttle could be set in a notch, or tied, and that the engine would continue to operate for some length of time before need of any other manual operation. That was the testimony of the engineers who survived.
Again, he defends by an afterthought, because if he should say he knew the throttle could be put in a notch, that would be tantamount to admitting that his engineroom men were needlessly held at their post and drowned. Petitioner claims it would have been dangerous to thus have an engineroom unmanned. The engineers dispute this. There certainly was danger here, but it emanated from this Captain's callous disregard for his duty to men chained to this sinking coffin by their own devotion to duty towards him. Joppich was not really concerned with another collision here because he was again operating in fog and the highest speed attainable. Joppich knew that the throttle had notches for some purpose. He forced those men to work in imminent danger of drowning to save a ship already doomed by all the laws of nature and physics, which it was his business to know and understand.
Other witnesses who worked in the engineroom stated the throttle could have been put in any one of its several notches and the engine would have functioned. When the Captain was about to leave, he knew that there would then be no one at the wheel and that he had no further need of engine propulsion; and yet he stepped out of the pilothouse and sent the men below to their doom, for lack of two words.
When informed of the danger to their property, the officers of the ship's company, the owners of this vessel, made no move or gave no order or suggestion to their Captain to give their men any preference over their property. This they could easily have done to the ship or to the near-by-office. No one on either end of that phone says that one word was said, at either end of the line, about these men. As experts (one was once an Admiral in the United States Navy), they knew there was little or no chance to beach this ship under these conditions. But whether there was or not, had one word been said by the owners about saving these men, this Captain might then have given some thought or word to them. Under all these conditions of the immediate danger of sinking, even with the deck awash, this Captain never authorized any one man to leave this ship. The sudden capsizing and convulsion of his ship threw his men and himself off its awash deck, but he never gave them permission to leave. As the Captain stepped off he gave absolutely no word or thought to these men below, whom he now professes to have known so well and to have so highly regarded. Those awaiting on deck stood in his sight through more than one half hour's agonizing anxiety, and he never uttered the two words which would have released them from their obligation to him.
Irrespective of anything which may have been said in the various phone calls between this Captain and his principals, the owners of this ship, there was nevertheless a responsibility on these owners and their representatives, as well as on this Captain, to give some little consideration to all these lives then in such imminent danger. They had 45 minutes in which to talk about it, and did so; they had only two things to talk about, the ship and the men. There is no shred of evidence before us that anything was discussed other than their property. In all his time on the phone the Captain does not say his crew was ever mentioned. Nor does he say in the 45 minutes in which he had to say something though he did give orders to save his sinking ship that he ever said one word relating to the safety of a single person, except to the man whom he sent to get his own life jacket. In concluding his deposition testimony, the Captain admitted that he had a thirty second warning that the ship was going to capsize, and he reiterated that its speed had slackened to *188 about two miles per hour, but he used that 30 seconds for himself alone.
In concluding his testimony the Captain had further stated the ship sank 40 minutes after the collision; that he was thrown off the ship when it finally convulsed; and he went down with the suction "like a bullet;" that he was 45 minutes in the water, and he swam and was rescued by a German lifeboat; that the speed of the ship before it sank was down to two miles per hour; and that he had a 30 second warning that it was going to capsize.
So it is apparent that he knew very well that he couldn't beach this ship because all its freeboard was lost in that last half hour and it would have taken at least another half hour more to reach any beach at the rate he was going of two miles an hour. He had given all his thinking all his activities all his efforts to two things: To salvaging the ship, and to having that finally necessary few seconds to get himself off a ship whose final sinking was as certain as it was imminent.
Wheelsman Gabrysiak testified that it was foggy; the fog was so heavy he couldn't see the pilothouse. He noticed the clock on the pilothouse at time of collision: 9:43: that the ship was put hard left when collision was close, as the other ship came in sight, and then hard right; that after impact the engines were immediately stopped and the anchor dropped. The other vessel made a 45 degree change after collision. The general alarm was immediately sounded. He testified that the Captain was then engaged in talking on the phone: a "May Day" distress call went out; he left the pilothouse when the ship settled to port to get life jackets; then the Captain wanted the anchor up, but it was "hung up." The Cedarville listed heavily to port to a 35 degree angle. The Captain was constantly on the phone making communications; the Captain backed the ship, which freed the anchor; the Captain ordered the engineroom to get her at full speed ahead. Water ballast was taken on to lessen its list, but it necessarily decreased its buoyancy because so much water had filled the ship, since it had no water-tight compartments. The ship was under way for 25 minutes, then it listed 40 degrees to starboard, and sank.
At the end, the ship started to roll for a couple of secondsthen it rolled altogether the Captain shut the telegraph off. A "May Day" call was made just before she rolled. She rolled to starboard; he went out on the port wing; the rolling put him in the water.
He testified that before the collision there had been continuous fog signals and three or four long blasts but no response. We find that it is very obvious that in such a fog that Rule 15 was here violated because in thick weather, and in such fog, the vessel should have been put at "moderate speed" and taken off "full speed." We find it was at full speed in heavy fog long before this ship became aware of the presence of other ships.
We find that here Rule 26 was violated because the pilot who fails to understand the course or intention of an approaching steamer, from erroneous signals or other causes, or the pilot in doubt, shall, under such rule, sound several short and rapid blasts of the whistle, and if the vessels are within one-half mile proximity of each other, both should reduce to steerageway, and, if necessary, stop and reverse. Since Captain Joppich received no answer from the Topdalsfjord, he was surely in doubt of its intentions and he was then within a half mile of its proximity; he should have reduced to steerageway, and if necessary, stopped and reversed. Had he done either there would have been no collision.
We find that had this Captain not operated at full speed through this fog, on this occasion, there would have been no contact. The evidence is that not only did this Captain operate through fog at full speed on this occasion but that he always operated at full speed through fog on all other occasions. In fact, there is evidence here that such is the practice in this fleet. This has to be known by the owners of such vessel and fleet because of the recorded distances this ship and *189 others have covered within specified times, for a long time. Such is known from their log books and from daily specified telephonic reports at particular reporting times. We find from records and reports they know and knew here that their ships generally travel full speed through fog, and have done so for a long time.
Rule 27 allows of departure from other rules when such departure is necessary to avoid immediate danger; Captain Joppich has here testified that his departure from the Great Lakes Rules of the Road was based on what he calls the "prudent rule," and he interprets Rule 27 as giving him the right and power to depart from the Rules regarding dangers of navigation and collision, and to consider special circumstances which may render a departure from the above such rules necessary to avoid immediate danger. Was not much of this danger of his own creation? How did violating Rule 15 avoid immediate danger? How did going full speed ahead in heavy fog avert any danger? How did failure, when the Captain-Pilot was in doubt, under Rule 26, to sound several short, rapid blasts of his whistle, avert any immediate danger? How, under Rule 26, when within half a mile of another ship, did this Captain's failure to reduce to steerageway, or stop and reverse, avert or avoid danger? We are constrained to find that his own failures in these many respects created this particular danger of collision. We find he did not avoid danger; he created it. The fact is that the full speed ahead in fog cannot be excused by the claim that this Captain was so "prudent" that he comes under the protection of departing from rules under Rule 27. There can be no proper legal departure from the rule against full speed ahead in a fog. And this Captain blandly asserts the right to so operate at all times and says he so operated in all fogs. In each case, as he violates rules, his claimed motive is "Prudence." The Rule was intended to prevent full speed ahead in fog. Full speed in fog does not constitute "prudence." Rule 15 requires moderate speed, and sometimes bare steerageway, and navigation with caution under certain conditions. No one has a right to flagrantly violate this rule and then justify his violation by describing his own misconduct as "prudence," which is this Captain's fallacious defense. His habitual full speed ahead in fog has to be known to his company. They ratify it by not ordering him to discontinue such a dangerous practice, year in and out, on all his voyages. Their failure to order him to stop such practice indicates their desire that he continue, and thus they ratify and approve the practice, for it has the advantage of completing each voyage, quickly. Speed may be to their ultimate advantage, but it never justifies such deliberate violations of Rules as happened here.
Rule 27 did not give this Captain the right to violate Rules 15 and 26. Rule 27 protects men who seek to avoid danger caused by the errors of other navigators. It is no shield of protection for navigators whose violations cause collisions, such as happened here.
Third Mate Cook told the Captain they were four miles from the beach when they started. The best they could make was five to six miles per hour, which had gone down to two miles per hour before the sinking. Obviously, at two miles an hour, they needed a half hour to go one mile. From the point of sinking indicated on the Map, Freedman Exhibit 45, it does appear that they could never have made it, nor did the Captain or anyone else ever express any confidence they could. This really means they had no reasonable chance of saving the ship by beaching. The Weissenburg had offered to take off the men immediately. When there was over a half hour left in which to take them off, and since the "mortal wound" had immediately appeared, the offer should have been accepted, had the Captain put the men ahead of the ship, or had he considered them at all.
The First Mate Piechan, 31 years at sea, when questioned by Lt. Commander *190 Gove, related that their course began at 317 degrees, full ahead, in a light fog, visibility 1¼ miles, fog signals blown every minute, automatically. They changed to 305 degrees; changed course at 7:48, radar operating well. He turned in. While still asleep, he heard alarm bells, saw his ship was struck but did not see the Topdalsfjord on the port side; he had felt a little impact. He went back to quarters and dressed. The Captain told him to get the collision tarpaulin. It consisted of a canvas, with two lead pipes at each end, and ½ inch ropes. The ship was already listing. He put it over the hole on the port side. He saw that three or four feet of the spar deck was cut into. The hole "looked awful wide."
He looked down into the cargo hold from the top. There was water in the cargo hold, a tremendous amount of water, and more than the pumps could hold. The vessel listed 10 degrees; the hull was cut to the water line and past the water line. The hole was too big; the tarp stayed out from the ship's side.
Lt. Commander Gove of the Coast Guard questioned Gabrysiak, then represented by counsel Keenen, who is also counsel for U. S. Steel Corporation herein. Gabrysiak stated that he was a Wheelsman on the 8 to 12 watch; he had been 17 years with the Bradley Fleet of the U. S. Steel Corporation. It was the testimony of Gabrysiak that they passed close to Cheboygan Buoy and changed course 268 degrees right to 302 degrees. Steered 302 degrees till a pip showed close on the radar; then 305 degrees full speed; then 310 degrees. The Captain called the ship (the Topdalsfjord) but got no answer. The Steinbrenner told the Captain he also called the ship and got no answer. They gave fog signals. Continuing in 310 degrees, the Cedarville passed the Ford, but the Topdalsfjord was still "coming at us." The Third Mate warned the Captain of the proximity of Major's Shoal; the ship was steadied at 325 degrees. After that the Captain reduced her to half speed, but the Topdalsfjord "was bearing in on us." We gave one long blast and the Captain tried again to reach the Topdalsfjord. The Cedarville could come no further to the right of the channel because of the proximity of the shoal. With the Cedarville still blowing short blasts and a long blast, the Topdalsfjord suddenly appeared out of the fog on a 45 degree angle. The Cedarville held to "slow" when the Topdalsfjord was first sighted, approximately 600 feet away. When it was 100 feet away they were still on 325 degrees. The Captain put the engine full ahead and hard right and hard left on the wheel; the other vessel was "perpendicular to our bow," and on a steady course, and the Cedarville was struck amidships on the port side. Gabrysiak knew it was a mortal wound. He went back to get the boys to the lifeboats and "have no panic." He told the Captain the tarp would not hold. The Captain said he would try to beach her.
The gash was between the 10th and 11th hatches. The cargo was down 8 feet.
The boats were lowered to the bulwarks. She was settling but had straightened up. At the last second, Piechan, on his own, said "Get in the boats, boys." She flipped so fast to the port side and then to the starboard side he had one foot in but didn't make it. When she flipped and sank he found himself in the water he got on a raft and saved Idalske. He saw the German ship coming up. Six men pulled him onto the raft. They had only one oar. He was cold and numb. His watch stopped at 10:25. It was a steady capsize and fast.
Captain Werner Otto May, Master of the Weissenburg, Hamburg-Amerika Line since 1955, on deposition said that he had captained this ship since 1955, that it has radio telephone. He does 14 knots on the ocean; 9½ at half speed on lakes, 6 on Slow.
He let the Topdalsfjord's Captain pass him at the Mackinac Bridge because the Topdalsfjord's Captain said "he was faster." The Topdalsfjord had to slow at the bridge because of "heavy traffic." *191 He passed the bridge at 9:38. At 9:45 he heard the "May Day" call of the Cedarville after its collision with the Topdalsfjord.
At 10:45 he heard calls for help from his bridge. There were men in the water. He put down lifeboats; he saved four men and took in one dead. After the Cedarville sank he saw the bubbles. He had kept one mile behind the Topdalsfjord; he had heard signals from both ships.
The Cedarville was a blip on his four mile range. It was misty and foggy. The Weissenburg sounded its fog signals. The Topdalsfjord was a mile ahead of him.
He had told the Cedarville Captain there was a Norwegian ship ahead of him; the two ships were apparently approaching each other. The Cedarville was on his starboard side. He wanted to keep a mile from the Topdalsfjord. When he passed the Bridge the Topdalsfjord was in front of him, and the Cedarville was one point off on his starboard side. Looking at his radar he could see "They are coming together now." Two minutes later he heard the "May Day" call. The Cedarville had gone North of the normal line, a little north of the course.
The Cedarville's Captain called him and told him "someone hit me, would you like to give me the name?" And then asked him for the "name of the Norwegian Ship."
He stated, "At the moment I am fine," but "He'd like to have the name of that ship."
When Captain May asked Captain Joppich on "what side he should come in to take off the Cedarville's crew" the Cedarville's Captain said, "Get out of my way I will try to beach her." Captain May further related as follows: "He passed my bow, and he turned nearly around me, so he must be on alet's saywesterly to southwesterly courseto go behind meand I heard his voice, and a very fast going enginelike an old steam engineand I saw a shadowand then I stopped my ship by maneuveringyou can see it in my rough log bookto come clear of him." "He was aft of me and he came back to my starboard side and that is the momentfrom this moment onI followed him, really, because I said, "Don't lose him, there must be something wrongbecause I heard the noise,the propellor was very high out of the water." I was worried he didn't know where to go. He went around like this on full speed, his engine running." He also said, "I'd like to ground her."
Captain May testified that on hearing the "May Day" call he went to Slow speed; then to 3 to 6½ knots at 9:45; then dead slow ahead till the Captain told him he didn't want any help.
He stated that the men were not ordered off fast enough; that the Captain should have let the men off sooner since he had no further use for them. Indeed, there was no evidence anywhere in the case that Captain Joppich had any possible need or use for any one of these 20 or more men who stood in life jackets for one half hour waiting to get off. Captain Joppich at no time ever stated there was a need for any one of them to remain.
Captain May testified that the Cedarville Captain seemed slow to understand that his ship was going to sink.
He further stated that when Captain Joppich decided to beach his ship he operated it "astern behind me," and went in a semi-circle. He also said that as the Cedarville moved ahead he went on Slow behind her; that his lookout man saw a white boat on his port bow. The Cedarville was on a southeast course; that he could see the Cedarville going down under the water. The Topdalsfjord was half a mile away and did not follow the Cedarville.
He stated he'd heard men cry in the water; he took the first survivor between 10:46 and 10:49. He picked up seven men on a life raft and fourteen men with one dead in a boat; and later four survivors and one dead body. He arrived at the scene at 10:45. It took *192 nearly an hour to get the last survivor aboard his ship. He put over a derrick as some men could not use the ladder. He said the visibility had been 150 feet, and he heard a "hard going engine and voices. The Cedarville went from there around me like that."
Captain Gilbert testified he'd been 32 years on the Great Lakes; that he was in command of the Steinbrenner, a freighter, and was upbound on May 7, 1965 for Green Bay, in South Channel, 302 degrees, in dense fog; that he talked to the Ford at 8:33; he gave whistle signals to the Topdalsfjord four times and got no answer; this was in dense fog and blowing signals, but no response. The Topdalsfjord passed 200 feet from him moving quite rapidly, going 4 to 6 miles per hour. At 9:50 Captain Gilbert got the Cedarville's "May Day" call that it was hit amidships and "may be sinking."
Walter Tulgetske testified that he was a sailor of 26 years' experience, having joined the fleet in 1940, and that he had put in some 27 months in the U. S. Navy, and that he had been a Chief Engineer since October, 1964.
He related that as a general rule on alarm men get topside, put on their life jackets, and take their stations. He stated a card at each man's bunk tells him where to go on an alarm signal. He related, on examination of Counsel Keig, that there had been no general alarm. Describing the ship, he stated that the ship had three decks, with the engine room and coal bunker aft; that the throttle controls were in the engine room; that the chadburn was behind the throttle; its signals were given by electric power. It had a bell which was noisy. The ballast tanks contained water; there were eight on each side.
There was one oiler, one stoker and one engineer; the engineer makes the necessary changes; the oiler is on his rounds; the stokeman is in the boiler room. The chadburn can be heard everywhere. There were five or six ways to get out of the engine room.
He related they were going full speed in dense fog. That fog whistles tell them that other ships are around. That there was a blast of 30 to 60 seconds and then he "felt and heard a thud." He saw the bow of the other ship. He was not thrown off his feet. The No. 4 tank was the area of damage.
He went down to start the pump to pump out the water on tank No. 4. It took three to five minutes to start it. The main engine stopped and started. It has a 5250 gallon capacity a minute. The oiler went with him. He saw there was water in the tunnel. The ship showed a three foot list, which showed on the gauge board. The ship was coming back to an even keel. They were going to look topside.
He saw that all freeboard was lost. No general alarm was sounded. No order to abandon was given. He got in a lifeboat. He was then one minute out of the engine room. The lifeboat was five feet from the water, bow down first. The ship lurched to starboard; he jumped out of the lifeboat, outboard (meaning away from the ship). The ship was going down, its stern still in momentum. The ship rolled to starboard and down by the bow.
This witness stated that the throttle in the engine room was set by notches and that the throttle would remain set whenever desired.
He also stated the lifeboat never came afloat.
He stated that he never knew what the Master intended.
He further stated that the main engine was operating when the vessel sank.
He was in the water a half hour when picked up by the ship's lifeboat and then by the Weissenburg, whose operation was good.
At the Coast Guard hearings, Tulgetske was examined by Commander Gove, and represented by Mr. Roman Keenen, who also represents Petitioners herein.
He had been the First Assistant Engineer on the Cedarville. Below deck he heard a thud, and a long blast; he could *193 see the bow of the other ship, and he grabbed a life jacket. Water was rushing through the gangway. There was a three foot list to port and he was ordered to ballast on the starboard side, all on orders from the Chief Engineer, who got his orders from the pilothouse. He was ordered to get more help. He worked on the pumps. One handled 3600 gallons a minute; one 5250, each of two, 2000. They could pump 12,850 gallons a minute. Finally, the Chief Engineer said, "There is nothing more we can do." The ship was setting and taking water on deck. It started to roll. He jumped into a lifeboat. He knew they could get swamped in a lifeboat. He could see the rudder and wheel up in the air. He jumped outboard from the lifeboat. Another lifeboat later picked them up. The Weissenburg was good to them.
The last time he saw it there was a six inch list to port on the inclinometer.
Ivan Trafelet was the 8:00 to 12:00 Lookout. His task was to look for danger and to listen for signals. There were three in the pilothouse. At first it was quite foggy; they could see a half mile; the fog thickened; they were giving fog signals.
He stated that there was no general alarm given; that the anchor was dropped four minutes after the collision; there was a port list; he got a life jacket and went back to the bow. The damage was to the port side, and the list was 20 degrees.
The First Mate, Piechan, told him they were trying to beach it. He didn't think he could do anything after he learned they were beaching it. It did not have as much freeboard. The water was coming on deck. He went to the davit. There were two men there. The lifeboat had such a list he couldn't make it. There was then 600 feet of visibility.
Ivan Trafelet, when examined by Commander Gove of the Coast Guard, related that he was a Watchman on the Cedarville and his job was to see and hear. He was on the port wing of the pilothouse. Visibility was fair. The Cedarville was blowing fog blasts.
He saw a ship and reported to the Captain. It was 45 degrees off the port bow. It was 600 feet away. The other vessel was a boat length off, 600 feet. It was 600 feet between vessels.
He saw the Topdalsfjord hit the Cedarville "approximately amidships." He heard the Third Mate say "They've got to drop anchor." The anchor took hold. They had to back up. The anchor came up. The First Mate said they were "going to try to beach it."
The freeboard was getting low. The water was coming on deck. He got a cut in the head, and was in a daze; he was a half hour in the water.
William John Friedhoff, 10 years on the Lakes, was on Watch 4:00 to 8:00 A.M. He was an oiler who worked on the engine oiling system and the water pumps. They were struck by another ship at 9:45 A.M. He saw the bow of the salt water ship backing off. There was fog.
He took the cover off the port lifeboat. He cranked the boat down to the railing; he said there was a little port list; eight or ten men were there waiting for orders, but they never got any ordersthey got no orders between the collision and the sinking. Water was coming down the side amidships so they got in the lifeboat.
She rolled over, in mid-air. The ship was on its side when he hit the water. The boat was free when he came up.
They had been going full speed in fog. It was a slow boat.
When they were first hit she bounced up and down a little bit, "enough to wake me up."
Louella Jane Brege testified that her husband works for the Bradley Transportation Company; that he is 39 years old and has been on the Lakes 19 years. The preceding Sunday evening (before giving her testimony) she talked to Radtke, Parrilla and Lang about her testimony. She lives in Rogers City. Her husband had been First Assistant Engineer; he is *194 now a Chief Engineer. This was not a social call; it was a pre-deposition call.
She has a ham radio set. She listens every day. It's on all the time, morning to 7:00 P.M. Stations 22 and 51. She hears boats on 51. Turned it on at 7:00 A.M., Channel 83, for ships. Listened at 11:00 A.M.; talked to her father about this. Stunned at the news. Heard talk with Coast Guard. The word was around she heard it on radio. She heard on 61, the Michigan line on the Central Radio, asking the position of the Cedarville of the Coast Guard. "Please stand by till the Munson is there." "They said that certain men were on the Weissenburg." "There was a certain number of men on the Weissenburg and bodies, and a certain number on the Coast Guard ship."
The testimony of Harry Beythe last survivor from the engineroompresents a harrowing tale. Bey, on his deposition, said he was born June 18, 1921, at Rogers City, that he was a First Engineer in the Bradley Fleet, and that he had been in the Navy Reserve, World War II. He said also that there were two direct means of communication between engineroom and pilothouse of the Cedarville: a chadburn and a telephone.
They had been going full speed in fog. His watch ended at 8:00 A.M. He had been sleeping and he heard a rumble like running aground; he went back on the deck and helped get the pumps working. The Chief, Third Assistant and oiler were in the engineroom.
When the water was lapping on the main deck, the ship rolled over and a wave caught him; he was washed into a room; his leg hurt (it was broken); he couldn't open the door. The room was full of water when he crawled out of a porthole. There had been no general alarm bell. There had been no order to "abandon ship." All pumps were running full, filling the starboard side of this vessel with enough water to tilt the ship into its final convulsion. He too said that the Cedarville could have run with nobody in the engineroom, that "You could leave with no one there for some time. The throttle would stay in position until it was changed." He stated that he heard no talk of getting the men out. No warning was given to the crewmen in the engineroom that the ship was about to submerge. There was no water in the engineroom to warn them.
He also confirmed that they had gone full speed in fog, and that the fleet always operates full speed in fog.
At the Coast Guard hearing, when questioned by Commander Gove, Bey again said that he was asleep when it happened, that when he was washed around in the room his leg was broken. He reiterated that one lifeboat was capsized to starboard. He was in the water 10 to 15 minutes. He was taken in tow to the German ship and struggled up the gangway onto the ship.
Before Commander Gove of the Coast Guard, Rasmus Hoagland, Master of the Topdalsfjord, stated he started for the North American Lines in 1925, became a Master in 1951, and took the Topdalsfjord in 1959. This was his 18th trip on the Great Lakes, through the Mackinac Straits every time, in and outfour times in fog.
He was on the bridge; the pilot and he claimed to have visibility for five miles. The Second Mate, Wheelsman and wireless operator were with him on the bridge. His ship was 423 feet long; 54 beam; 6200 H./P.; Diesel Motor Vessel and carried general cargo. She had five cargo hatches, 3 forward of the bridge. On May 7, 1965, she was bound for Port Arthur. Visibility was reduced from 4-5 miles to ½ mile. He then cut his speed proceeding on dead slow ahead, 30-40 R.P.M. 3-4 miles through water, at half speed, she could do 8.5 to 8.7 and at full out 15½ miles per hour.
He asked to pass the Weissenburg. He did so. He could hear the Weissenburg's signals. He saw a vessel coming from the East on his radar; he went to slow speed 0903; the other vessel was approximately 4 miles east. He passed a vessel 2 miles West of the Mackinac Bridge.
*195 The ship passed the Bridge north of the center line; and he decided to go by in the South Channel. He heard a whistle, fog signals, and an echo on starboard bow. He changed to 108 degrees under the Bridge; the echo was heard again at 20 degrees off the starboard bow: Range 1½ miles on radar. The Topdalsfjord continued at a reduced speed; at 0935 it was still on dead slow. He heard signals asternfrom the German vessel. Again from the bridge of that ice-breaker he heard the echo and the whistle3 short every minute. At 0943 he could not see the approaching vessel so he stopped the engines. Speed was estimated at 3-4 miles per hour.
Then he heard a screaming long blast, then saw the shadow of a ship; he backed the Topdalsfjord once or twice. Visibility was about 200 yards or more. The Cedarville had a swinging effect to starboard slightly; blowing long, long, long blasts. He claimed that this was the first signal from the Cedarville; a long blast before he saw her; and that she was still blowing when she came out of the fog. He believes he was stopped when the contact was made. His vessel vibrated terribly on contact. It was like a bang; a bump.
The bow of the Topdalsfjordreinforced for icehit the Cedarville about midship, for a fraction of a second imbedded, and then he dragged the ship over and headed down another course. He said the Cedarville was doing about seven miles per hour when contact was made.
He heard the Captain of the Cedarville say "I'm on a hard left wheel and trying to beach her." Then, "We are listing." Then he gave the impression "it was not so bad and he was hoping to beach her." He fixed the time of collision at 9:45. He had blown fog signals. He'd heard the Weissenburg tell the Cedarville that it had another ship ahead. His lifeboats were manned and they searched for survivors till 4:00 P.M.
Then from deposition of Captain Gilbert, Master of the Steinbrenner, we find that he had talked to Captain Joppich. There was a mark on his radar screen. The Cedarville Captain said something to the effect that "if foreign vessels used pilots who knew rules" there would be less trouble.
Captain Joseph J. Parrilla was asked by Counsel Kleig if Captain Joppich had a drinking problem.
Albert R. Millberg, Radio Officer on the Topdalsfjord, said they collided with the Cedarville; the Skipper called the Coast Guard; he told the Weissenburg of the collision and to stand by; the Weissenburg said they could hear shouts and men crying; he heard the Weissenburg had two injured.
They had heard the Weissenburg and Cedarville talking; could hear "good", but the signal had no strength after the collision.
Jan Gonstal, Second Mate of the Topdalsfjord, saw the Cedarville at 50 to 60 meters; it was struck in center, amidships; it was going five to six miles per hour. He heard a "soft impact." Just before the collision he heard his Captain say "hard starboard rudder" and "full reverse of engines." The Captain put his engines in reverse.
Karl Fagerli, Chief Officer on the Topdalsfjord, related before Commander Gove, they hit the ship behind the bow; his ship was high.
He said they never stuck in her side; they "scratched along her side."
At the Mackinac Bridge he said the visibility was sometimes a mile, then fog.
In the Coast Guard Supplement, Captain May of the Weissenburg relates that he gave the Cedarville Captain the name of the ship which hit him.
He stated he did not hear the Cedarville calling the Topdalsfjord.
Captain Joppich, at Coast Guard hearing, on 5/18/65, repeated his history. He had once been in Coast Guard; in 1946 he became Third Mate, in 1952, Second Mate, in 1954, First Mate and finally Captain of the Cedarville.
He'd made 1,000 trips through the Straits.
*196 He related there was an inter-com on the ship; he was bound for Gary and radar was O.K.
He stated that "We should have pilots on those ships."
He said they had no trouble talking to the Weissenburg, but when they called the Topdalsfjord they got no answer. They couldn't "get a line into the Topdalsfjord."
They were going 2 to 3 miles per hour on slow speed.
The Topdalsfjord was at a 45 degree angle from him; 900 feet away when he first saw her, going 6 miles per hour. It was coming toward him at a 45 degree angle. He put the chadburn full ahead, and turned hard to right and then hard left but was hit at right angles. "He listed me to starboard." It did not knock him off his feet. He'd been listed 10 degrees to starboard.
"We had gone hard right on 325 degrees, then hard left, which slowed us down;" he then spun the vessel left to port before impact, and threw the stern away from him. "The Cedarville was doing 5 miles per hour. The port side was damaged; penetrated."
The ship suddenly lurched. Joppich said, "There was no time for signals; no nothing."
Thus endeth our summary of the cogent testimony as chronologically adduced.
The strongest human instinct is self preservation; consequently, in law, men have a right of self-defense. One has an inherent right and duty of preserving his own life. When one gives up such right to the control of the Master of a ship, that Master has correlative duty of becoming his protector; he has a duty of using his superior skill, experience, and knowledge to protect him. He has a duty of considering the lives and safety of his crew as being more necessary of preservation even than that of the owner's property. In this catastrophe, we find that this Captain utterly failed to do so. He gave all his attention, effort, thinking, and activity to saving property and no single thought, express or implied, to his men. He had an aberration for saving property, and an amnesia for saving people. He overlooked the fact that some thirty lives on that ship were as important, in law, as his own; and, that from the viewpoint of the Captain's duty, that each and every one of such thirty lives was more important than his own in the sense that they loyally transferred to him their right to live, while he, by what he did, considered all of them as being entitled to less or no attention from him, than a ship which from the moment of collision, could proverbially not have been saved "by all the King's horses and all the King's men."
Had all the ships on the Great Lakes answered the final May Day call for help made by Captain Joppich, immediately before the sinking, their combined power could not have lifted the Cedarville to another single inch of freeboard. The ship was as doomed as were the more than twenty men he looked at and could not see.
In view of our ruling on the law, and the evidentiary facts as we find them, this Court makes the following findings and comes to the following conclusions, some of which have been heretofore intimated:
FINDINGS OF FACT
1. Prior to collision, and up to a point where collision was inevitable, the Cedarville proceeded at full speed ahead in a dense fog.
2. It was the general practice of the Bradley Fleet to order its ships to proceed at full speed ahead in the fog.
3. Prior to collision, the Cedarville, pursuant to order of its owners, deviated from recommended courses published by United States Coast Guard which regulate the flow of traffic thru the Mackinac Straits and the confusion resulting therefrom contributed to the collision.
4. Prior to collision, when the Cedarville received no signal from the *197 Topdalsfjord, the Cedarville failed to sound a danger signal and/or reduce speed.
5. The internal construction of the Cedarville so permitted the proliferation and distribution of water surging thru a break in the outer shell as to render the swift sinking of the Cedarville a certainty.
6. From the moment of collision, considering the construction of the Cedarville, the damage in flicted by the prow of the Topdalsfjord, and the additional 14,411 tons of cargo, and her position in the water, it was obvious that there was no reasonable chance of successfully beaching this vessel.
7. During the seventeen minute interval between collision and the turn for the beach, while the Cedarville lay at anchor with the Weissenburg nearby begging permission to come alongside, the entire crew could have been evacuated in complete safety.
8. A majority of the members of the crew who were topside were assigned no duties prior to embarking for the beach and performed no duties during the beaching attempt.
9. Prior to executing his plan to beach, Captain Joppich ordered the full engineroom crew to their posts; the presence of all below was unnecessary.
10. From the moment of collision at 9:45 until the decision to beach was announced at 10:02, the Cedarville lost sufficient freeboard as to indicate with certainty that the beach could not be reached.
11. It was the policy of the petitioner, United States Steel Corporation, to repose total authority in its ship Captains for the conduct of each trip; even in the event of collision, the discretion of the Master was unfettered and uninhibited by any order or advice from a superior officer of the corporation despite the ready availability of ship to shore communication for vessels on the Great Lakes.
12. The highest officers of the petitioner in charge of lake shipping were cognizant of the ship's constructional characteristics, were aware immediately that the ship had been in a collision which pierced her hatches, and were informed that Captain Joppich was keeping the full crew on while attempting to beach her.
13. These same corporate officials knew that the Cedarville would sink. According to their own testimony, members of the highest echelon of the petitioner's corporate structure were aware that the wound inflicted by the Topdalsfjord would cause the Cedarville to "sink like a brick."
14. These officials of the corporation, although informed of the seriousness of the collision and aware of the certain failure of the beaching attempt, nevertheless did not intervene to prevent the full consequences of the announced plan of its agent, Captain Joppich.
15. Petitioner failed to provide the ship's Captain with requisite information concerning the buoyancy, stability and trim of the vessel, so that the Captain was not informed of the maneuvering characteristics of the Cedarville.
16. Prior to the execution of Captain Joppich's plan to beach the vessel, he did not calculate:
1. The distance to the shore.
2. The rate at which his freeboard was receding.
3. The probable speed attainable.
4. Whether his speed afloat would be retarded by the continuing influx of water, and if so, at what rate deceleration would occur.
5. The time needed to beach the vessel.
*198 17. Captain Joppich ordered water pumped into tanks on the starboard side; his failure to rescind the order, when the list to port had been corrected, resulted in water entering the starboard side at a greater rate than water entering through the gash on the port side. This order of the Captain thus caused the starboard side of the ship to fill faster and ultimately caused the ship to lurch convulsively and capsize to starboard.
18. It was not necessary to keep a full crew in the engineroom during the beaching operation; the engines could have been set at any speed and held there automatically. So long as one engineman remained on board to reset the engines if a change in speed became necessary, there was no danger in releasing all the other engineroom personnel from the ship. However, no ship going a maximum of two miles an hour at full speed, without any appreciable freeboard remaining, required the constant attention of an engineer. Under the circumstances prevailing, approaching the final capsize of the ship, there was really no necessity for any engineer remaining on board.
19. The men in the engineroom were never released from their posts.
20. Retention of topside personnel aboard the ship served no useful purpose; as the steadily diminishing freeboard ebbed away, and even Captain Joppich knew that the ship was going down, he did not free his men to permit them a safe entry into the water in lifeboats.
21. No order to abandon ship was ever issued by the Captain, even when her decks were awash.
22. Ten lives were lost.
CONCLUSIONS OF LAW
1. Maritime law permits the recovery of punitive damages against a maritime tortfeasor whose misconduct evinces a reckless and wanton disregard for the rights of the claimants.
2. The survival action created in 1910 by Congress for railroad employees and their survivors (45 USC § 59), which was extended to seamen and their survivors through the enactment of the Jones Act (46 USC § 688), perpetuates the wrong inflicted upon the deceased seaman so that the action brought by the designated survivors' is the same action which a seaman so mistreated could bring.
3. Under the Jones Act a seaman may sue his employer for, inter alia, punitive damages if he has been injured as a direct and proximate result of such conduct on the part of his employer as would show a reckless disregard for the legal rights of the seaman.
4. The concept of punitive damages evolved through the common law and has long been recognized in civil and admiralty courts as a potential element of damage in tort cases. Consequently, there was no necessity for Congress to specify that punitive damages may be recovered under the Jones Act; language of general import is sufficient.
5. The seaman is absolutely bound to follow the orders of the Master of the vessel; there is a correlative duty reposed in the Master and the owner of the vessel to secure the safety and welfare of the crew. Both the Master and the owner acted in callous disregard of their duty to the crew.
6. The petitioner reposed such total authority in Captain Joppich in the operation of the Steamship Cedarville as to raise him to the highest level of corporate power; in this case, the Captain was the alter-ego of the petitioner. While in command of that vessel, he had no higher authority; no officer of the corporation *199 directed or controlled his actions.
7. When the corporate officials in charge of the petitioner's shipping enterprise were informed of the proposed actions of its agent, Captain Joppich, and they realized with certainty the catastrophe which would follow, there arose a duty to speak out to prevent the full consequences. The failure to speak evinces a conscious acquiescence to the acts of the agent.
8. Acquiescence to the known tortious acts of its agent by the corporate principal is tantamont to a ratification of those acts, making the corporation particeps criminis in the unlawful or tortious misconduct of its agent.
9. The Acts of Captain Joppich are those of the petitioner, United States Steel Company.
10. Prior to the collision, Captain Joppich exhibited a callous disregard for the safety of all ships and men (including his own) in the following respects:
a. Travel through a dense fog at full speed in violation of Rule 15.
b. Deviation from recommended courses in a narrow channel and a dense fog.
c. Failure to reduce speed and to stop and reverse when he received no signal from the Topdalsfjord, in violation of Rule 26.
d. Failure to know maneuvering characteristics of the vessel.
11. In ordering the beaching of the vessel, Captain Joppich was guilty of wanton and callous disregard for the safety of his crew in the following respects:
a. Directing the beaching without first calculating the navigational possibility of beaching.
b. Resisting the offer of assistance from the Weissenburg.
c. Failing to release to the life-boats those men whose presence was not necessary for the dash to the beach.
12. In executing the plan to beach the vessel, Captain Joppich was guilty of a wanton and almost grotesque indifference to the safety of his crew in the following respects:
a. Failure to clear the engineroom of all personnel and set the engines automatically.
b. Failure to abandon ship when the hopelessness of the beaching operation became apparent.
c. Failure to rescind the order to pump water into the starboard tanks.
d. Failure to release any of his crew when the very decks of the Cedarville were awash.
13. The United States Steel Corporation is liable to the claimants for punitive damages.
The Court hereby expresses its appreciation for the courtesies, cooperation, briefs, etc., of all counsel throughout this case.
The Court will appoint a Commissioner to assess damages herein in the very near future.
(Should any counsel wish to make any suggestions with reference to the mechanics by which such Commissioner should operate, as to time, place, or in any other respect, etc., please advise us not later than two weeks from date of this filing.)
NOTES
[1] There is evidence that the plates in the hull in certain vital areas required replacement by the United States Coast Guard and by the underwriters after inspections; that these replacements had been deferred for a period of almost five years, and that such conditions may have weakened the ship's hull; that there was no plan or program to be followed in the event of a collision; that U. S. Steel failed to provide its Captain with requisite information concerning the buoyancy, stability and trim of the vessel in order to determine its maneuvering characteristics. These and other matters not referred to in our factual discussion show actionable negligence on the part of U. S. Steel, with which the latter was in direct and complete privity. However, these matters will not be considered, and we confine our discussion to those actions showing wilful and wanton misconduct which bear on the issue of punitive damages.
[2] Claimants contend that the vessel was overloaded by 6½ inches beyond the point permitted by the Coast Guard Regulations, but in view of the position which we take, we find it unnecessary to reach this point.
[3] It was routine practice for all company vessels to proceed at full speed in fog.
[4] "Rule 26. If the pilot of a steam vessel to which a passing signal is sounded deems it unsafe to accept and assent to said signal, he shall not sound a cross signal; but in that case, and in every case where the pilot of one steamer fails to understand the course or intention of an approaching steamer, whether from signals being given or answered erroneously, or from other causes, the pilot of such steamer so receiving the first passing signal, or the pilot so in doubt, shall sound several short and rapid blasts of the whistle; and if the vessels shall have approached within half a mile of each other both shall reduce their speed to bare steerageway, and, if necessary, stop and reverse." (33 U.S.C. § 291). The requirement to blow the danger signal is of the greatest importance in these collision cases. Petition of Oskar Tiedemann and Company, D.C., 179 F. Supp. 227, affirmed 289 F.2d 237 (3 Cir., 1961).
[5] "Rule 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger." (33 U.S.C. § 292.)
[6] Captain Joppich testified that he had reduced his speed from Cheboygan Traffic Buoy at 0842 to the point of collision at 0945, but the court rejects this testimony in the face of the indisputable physical facts in the record. The Coast Guard Officers demonstrated that the distance between the Cheboygan Traffic Buoy, which he passed at 0843, and the point of collision, which he reached at 0945, was 12.75 miles. It was proven that he covered this distance in one hour and three minutes. This conclusively established that the vessel was travelling in excess of 12 miles per hour, which was the full speed of the "Cedarville". The Court in this connection also accepts the testimony of Gabrysiak, who testified that the vessel was proceeding at full speed until the hard right turn immediately preceding the collision. Captain Joppich's testimony must be rejected in the light of this evidence.
[7] This Court is convinced that the decision to beach was not that of Captain Joppich alone. The evidence sufficiently establishes that the high principals in the company were fully advised of the developments as they unfolded, and such evidence justifies the inference that they might thus reduce the company's liability if they could demonstrate a lack of privity between Captain Joppich and the company officials, and therefore they remained silent. This conclusion is supported by the testimony of witness Brege, inter alia, whose recollection of what she heard over the air on her "ham" radio suddenly became very faulty after a visit by U. S. Steel officials, including Captain Parrilla, the very night before her deposition was taken, as is hereinafter related.
[7] While the respondent has waived its defense of lack of privity by consenting to judgment against it on its petition for exoneration or limitation, its argument against the imposition of punitive damages has a subtle flavor or privity in it. We wish to emphasize that, in adjudging the respondent's liability for exemplary damages, a corporate ship-owner stands on the same footing that any corporate employer stands in regard to its responsibility for misdeed of an employee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750327/ | 632 S.W.2d 719 (1982)
Elizabeth BLAYLOCK and the Estate of Lloyd Blaylock, Petitioner,
v.
AMERICAN GUARANTEE BANK LIABILITY INSURANCE COMPANY, Respondent.
No. C-992.
Supreme Court of Texas.
May 12, 1982.
Rehearing Denied June 9, 1982.
*720 Reed & Reed, Pat Reed, Dallas, for petitioner.
Vial, Hamilton, Koch, Tubb, Knox & Stradley, Jeffrey S. Lynch, Dallas, for respondent.
SPEARS, Justice.
Petitioner Elizabeth Blaylock, individually and on behalf of the estate of Lloyd Blaylock, deceased, sued American Guarantee and Liability Insurance Company ("American") to collect on her homeowners policy for damage done when swimming pool equipment froze. The issue before us is whether certain exclusions to the policy foreclosed coverage of the damage.
The trial court rendered judgment that Mrs. Blaylock take nothing. The court of appeals affirmed, holding that coverage was excluded under two policy provisions. 626 S.W.2d 541. We reverse the judgment of the court of appeals and render judgment for Mrs. Blaylock.
Mrs. Blaylock owned a house in Dallas, Texas. In 1978, she took out a Texas Standard Homeowners Policy with American. It is stipulated that the policy was in full force and effect at all times pertinent to this suit.
On December 31, 1978, at about 7:30 p.m., Mrs. Blaylock returned to her Dallas home from a trip to Colorado and found that the electrical power was out. There had been an ice storm that day in Dallas. Ice laden tree limbs falling on power lines had caused a power failure. Not wanting to spend the night in her house without electrical power, Mrs. Blaylock spent the night at her son's house. The next morning, Mrs. Blaylock and her son returned to her house to find that the circulation system for her swimming pool had frozen solid and was severely damaged. The power failure had caused the circulating pumps not to function, making the water more likely to freeze.
Mrs. Blaylock sought indemnity under her insurance policy with American for damage to her pool equipment. American refused to compensate Mrs. Blaylock for her loss, claiming the loss was excluded under the following policy provisions:
... This insurance does not cover:
a. Loss to electrical appliances, devices, or wiring caused by electricity, other than lightning;
* * * * * *
e. Loss caused by or resulting from freezing while the building is unoccupied unless the Insured shall have exercised due diligence with respect to maintaining heat in the building or unless plumbing, heating and air-conditioning systems had been drained and the water supply shut off during such unoccupancy;
* * * * * *
*721 i. Loss caused by inherent vice, wear and tear, deterioration; rust, rot, mold or other fungi; dampness of atmosphere, extremes of temperature; contamination; vermin, termites, moths or other insects.
* * * * * *
k. Loss under Coverage A caused by settling, cracking, bulging, shrinkage, or expansion of foundations, wall, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools.
In a non-jury trial before the court, Mrs. Blaylock's damages were stipulated at $2,292.00 plus interest. The only issue before the court was the applicability of the four exclusions set out above. The only witnesses at the trial were those called by Mrs. Blaylock. The trial court rendered judgment that Mrs. Blaylock take nothing. No findings of fact or conclusions of law were requested or filed.
The court of appeals held that exclusions "e" and "k" precluded coverage of Mrs. Blaylock's loss, and affirmed the judgment of the trial court.
The material facts of this case are either stipulated or uncontested. The questions before us involve construction of the exclusions contained in the insurance policy.
In construing the insurance policy, we look to the plain language of the contract, and such language will be given effect when the parties' intent may be discerned from that language. Glover v. National Insurance Underwriters, 545 S.W.2d 755 (Tex.1977). However, when the language used is subject to two or more reasonable interpretations, the construction which affords coverage will be adopted. Glover v. National Insurance Underwriters, supra; United Founders Life Ins. v. Carey, 363 S.W.2d 236 (Tex.1962). The policy of strict construction against the insurer is especially strong when the court is dealing with exceptions and words of limitation. Ramsay v. Maryland American General Ins. Co., 533 S.W.2d 344 (Tex.1976).
We first address the exclusions which the court of appeals expressly found to be applicable. Exclusion "e" applies to loss "caused by or resulting from freezing while the building is unoccupied ...." The word "unoccupied" is not defined in the policy, and the policy states no time period during which the property must be unoccupied in order to defeat coverage; however, the term "occupied" has an established meaning in the law of insurance. A house is "occupied" when human beings habitually live in it as a place of abode; a house is unoccupied when it ceases to be used for living purposes or as a customary place of human habitation. Republic Ins. Co. v. Watson, 70 S.W.2d 441 (Tex.Civ.App. Beaumont 1934, writ dism'd); Transcontinental Ins. Co. of New York v. Frazier, 60 S.W.2d 268 (Tex.Civ.App.Waco 1933, no writ); 4A Appleman, Insurance Law and Practice § 2833; 8 Couch on Insurance 2d § 37:836. A mere temporary absence from the premises will not render the house "unoccupied." Westchester Fire Ins. Co. v. Redditt, 196 S.W. 334 (Tex.Civ.App.Beaumont 1917, writ ref'd); Washington Fire Ins. v. Cobb, 163 S.W. 608 (Tex.Civ.App. San Antonio 1914, no writ); 8 Couch on Insurance 2d § 37:828.
The uncontroverted evidence shows that since 1969, Mrs. Blaylock had occupied the house insured by American as her home. Mrs. Blaylock came home on the evening of December 31, 1978, but left soon to spend the night at her son's house. She returned home again the next morning. Mrs. Blaylock's absence from the house on December 31 was merely temporary and did not render the house unoccupied for purposes of this exclusion.
Exclusion "k" is also inapplicable to the damage suffered by Mrs. Blaylock. That exclusion precludes recovery for loss "caused by settling, cracking, bulging, shrinkage or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools." Mrs. Blaylock does not sue for damage to the pool structure itself, but only for damage to the circulation system connected to the pool. American contends *722 that exclusion "k" applies here because the loss was caused by the expansion due to freezing of pipes which it contends are an integral part of the swimming pool. However, exclusion "k" does not preclude coverage for freezing of pipes. This construction of the policy is supported by an examination of the context in which the swimming pool is mentioned in exclusion "k". The swimming pool is included in the exclusion along with various structural components of the house such as walls, foundations, floors, etc. which tend to be subject to damage from natural settling, cracking and expansion. The pipes, filters and motors involved here are not structural components of the swimming pool or the house.
Significantly, exclusion "e," discussed previously, clearly implies that freezing of pipes is a covered peril if the house is occupied or precautions are taken. Most if not all pipes are contained in or connected with the structural components listed in exclusion "k". If exclusion "k" were read as suggested by American, it would render exclusion "e" nugatory. Coverage for freezing of pipes would always be prevented by exclusion "k" regardless of occupancy. A contract will not be construed so as to render some of its terms meaningless. Chapa v. Reid, 248 S.W.2d 299 (Tex.Civ. App.San Antonio 1952, writ ref'd). Thus, it is clear that this provision was meant to exclude only damage to the structure of the swimming pool resulting from expansion, cracking and bulging and does not exclude freezing of the pipes and various appliances apart from the structure which service the pool.
The court of appeals did not consider the applicability of exclusions "a" and "i" pleaded by American. Because we look to unconsidered grounds presented to the court of appeals for affirmance of the judgment below, we address the applicability of these exclusions. McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964); Tex.R.Civ.Pro. 505.
American contended in the courts below that exclusion "a" applies to the present facts. That exclusion denies coverage for loss "to electrical appliances, devices, or wiring caused by electricity other than lightning." Freezing was the immediate cause of the damage to Mrs. Blaylock's pool equipment. Since Mrs. Blaylock's house was occupied, freezing was a peril covered by the policy from American. The freezing in this case occurred after a power failure rendered the pool system's normal safeguards against such damage ineffective. American contends that damage to the electrical devices in the system was thus caused by electricity. We disagree. We are bound to construe exceptions to the policy narrowly in favor of the insured. Ramsay v. Maryland American General Ins., supra. We cannot extend the exclusion for loss "caused by electricity" to a loss in which a lack of electricity was a contributing factor.
American also argued to the court of appeals that exclusion "i," precluding coverage for "loss caused by ... extremes of temperature," applies to Mrs. Blaylock's damage. American contends that in ordinary and customary usage, an unusual or unexpected temperature is an "extreme of temperature," citing Webster's New Collegiate Dictionary. We agree that a temperature must be unexpected or unusual in order to be extreme.[1] However, the damage to the pool circulation system occurred on December 31, 1978, while the outside temperature was about 23 degrees. A meteorologist testified at trial that 23 degrees was within the "normal recurring range of temperatures" for Dallas, Texas at that time of year. Temperatures as cold or colder than those experienced on December 31, 1978, occurred over ninety times in the eight years preceding the night in question. This testimony was uncontradicted and un-impeached. *723 The testimony as to the regular recurrence of such temperatures was of fact, not opinion; therefore, the trier of fact was not free to disregard this testimony. See Gregory v. Texas Employer's Ins. Ass'n, 530 S.W.2d 105, 107 (Tex.1975). Mrs. Blaylock proved with uncontroverted evidence that the temperatures on the night in question were not unusual or unexpected and exclusion "i" is not applicable.[2]
Mrs. Blaylock established as a matter of law that the policy exclusions pleaded by American were not applicable to her loss. Therefore, we reverse the judgments of the courts below and render judgment for Mrs. Blaylock.
NOTES
[1] One court of civil appeals has indicated in two opinions that any temperature cold enough to cause freezing is an "extreme of temperature." State Farm Fire & Casualty Co. v. Volding, 426 S.W.2d 907 (Tex.Civ.App.Dallas 1968, writ ref'd n.r.e.); McKool v. Reliance Ins. Co., 386 S.W.2d 344 (Tex.Civ.App.Dallas 1965, writ dism'd). We disapprove this language.
[2] Mrs. Blaylock also contends that the exclusions pleaded by American are inapplicable to her loss because the ultimate cause of the loss was the ice storm, not the freezing of the pipes. Because we have held the exclusions are inapplicable to the loss for the reasons already stated, we need not address the causation issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1764964/ | 528 F. Supp. 963 (1981)
Glenna HALL, Administratrix Ad Prosequendum and General Administratrix for the Estate of Velda Hall, deceased, and Glenna Hall, individually, Plaintiff,
v.
The UNITED STATES of America, The State of New Jersey, Dr. James V. Ortman, Dr. John F. Ledlie, Dr. George R. McWhorter, Dr. John Doe One, Dr. John Doe Two, John Doe Three and John Doe Four, jointly, severally and in the alternative, Defendants.
Civ. A. No. 81-2142.
United States District Court, D. New Jersey.
December 22, 1981.
*964 Barry J. Hockfield, Hockfield & Levine, Cherry Hill, N. J., for plaintiff.
U. S. Atty. William W. Robertson by G. Donald Haneke, Asst. U. S. Atty., Trenton, N. J., for Defendants The United States of America, Dr. James V. Ortman, Dr. John F. Ledlie, Dr. George R. McWhorter, Dr. John Doe One, Dr. John Doe Two, John Doe Three and John Doe Four.
OPINION
GERRY, District Judge.
Plaintiff Glenna Hall, individually and as Administratrix Ad Prosequendum of her daughter's estate, seeks monetary damages against the United States and several military physicians and/or other medical personnel for medical malpractice. Plaintiff charges that the physicians' negligence in decedent's pre-induction examination and subsequent treatment of the decedent during basic combat training, resulted in her death. The plaintiff asserts jurisdiction under the Federal Tort Claims Act, 28 U.S.C. § 1346 (FTCA). Plaintiff also names as a party defendant, and seeks monetary damages against, the State of New Jersey, as maintainer and operator of the Army National Guard unit in which the decedent Velda Hall enlisted. In Counts 3, 4, 7 and 8 of the complaint, the plaintiff charges the state with negligence in and a breach of warranty as to provision of medical care to enlistee Hall.
On motion of defendant State of New Jersey on September 18, 1981, this court, in an oral opinion, dismissed the complaint as to the State defendant on the ground that the Eleventh Amendment to the United States Constitution deprives the court of jurisdiction over suits for damages against a state. See Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Now the federal defendants also move for dismissal of the complaint.
On or about June 27, 1980, Velda Hall enlisted in the New Jersey Army National Guard. Three weeks later, Ms. Hall reported to the Armed Forces Examination and Entrance Section in Philadelphia for a medical examination to ascertain her fitness for military training. On the basis of that examination, military physicians, named here as individual defendants, pronounced decedent physically and mentally fit for military service. The Army immediately transported Ms. Hall to Fort McClellan, Alabama, to begin a six month regimen of combat training.
About three weeks into that training, on August 9, 1980, Ms. Hall was admitted to Fort McClellan's Noble Army Hospital, suffering from a high fever. Three days later, Ms. Hall died, apparently of a sort of pneumonia.[1]
Plaintiff alleges that military doctors in Philadelphia negligently examined and certified the decedent as medically fit for active military service. Plaintiff further alleges that military physicians at Fort McClellan failed properly to diagnose and treat Ms. Hall, such negligence proximately causing her death.
Plaintiff seeks monetary damages against both the physicians as individuals and against the United States for decedent's pain and suffering and for the pecuniary loss to her estate. While she claims jurisdiction solely under the FTCA, plaintiff also alleges a breach of warranty to provide decent medical care inherent in the enlistment contract. In that vein, plaintiff urges that as consideration for Velda Hall's enlistment, *965 the United States warranted to provide quality medical care and treatment for the decedent, and that the Government breached the warranty in its provision of negligent treatment to Ms. Hall.
Defendant moves to dismiss the complaint under F.R.C.P. 12(b)(6), for failure to state a cognizable claim. It argues that the individual military doctors enjoy statutory immunity from suit for tortious medical care. 10 U.S.C. § 1089 (1976). (The Gonzalez Bill.) By its terms, in the Government's view, 10 U.S.C. § 1089 provides that the exclusive remedy, if any, for malpractice by a Government physician, is an action against the United States under the FTCA. Moreover, overwhelming authority, according to defendant, precludes an action by a serviceman or woman under the FTCA for negligence against another member of the armed forces, for injuries arising out of or incident to military service. Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). Therefore, defendant argues, plaintiff's only avenue of relief lies within the scheme of legislatively provided veterans benefits and/or service related disability programs established by Congress.[2]
In response to plaintiff's theory of breach of warranty, defendant maintains that mere denomination of the claim as "contractual" does not alter the claim's tortious essence. Such nomenclature cannot, in defendant's view, circumvent the conjuncture of immunities for individual doctors and the Government afforded by statutory and decisional law. Alternatively, assuming that plaintiff's claim does sound in contract, defendant urges that the Court of Claims enjoys exclusive jurisdiction to hear the matter.
I. Claims Against the Individual Military Medical Personnel.
The Gonzalez Bill, 10 U.S.C. § 1089, effectively grants immunity to the individual defendants for negligent medical malpractice. The statute reads in pertinent part:
Defense of certain suits arising out of medical malpractice
(a) The remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of the armed forces, the Department of Defense, or the Central Intelligence Agency in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties or employment therein or therefor shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) whose act or omission gave rise to such action or proceeding.
10 U.S.C. § 1089(a) (1976). Indeed, Congress enacted 10 U.S.C. § 1089 intentionally to eliminate the need for personal malpractice insurance for all government medical personnel. S.Rep.No. 94-1264, 94th Cong., 2d Sess., reprinted in (1976) U.S.Code Cong. & Ad.News 4443. See Hernandez v. Koch, 443 F. Supp. 347, 349 (D.D.C.1977). Thus, plaintiff's sole recourse here lies in an action against the United States under the FTCA, 28 U.S.C. § 1346.
II. Claims Against the United States Under the Federal Tort Claims Act.
In Feres v. United States, the Supreme Court consolidated three claims sounding in tort by servicemen, or their *966 estate executors, under the FTCA. In Feres v. United States,[3] decedent had perished in a fire in a barracks in Camp Pine, New York, while on active duty. In Jefferson v. United States,[4] plaintiff serviceman sued Army doctors for leaving behind an 18" by 30" towel in his stomach during an abdominal operation. In Griggs v. United States,[5] decedent's executrix alleged that the victim died as a consequence of negligent medical care by defendant Army surgeons. In each of the three cases, said the Court, the "common fact" was that claimant, while on active duty, sustained injury due to the negligence of others in the armed forces.[6]
While admitting that the FTCA by its terms did not preclude these suits,[7] the Court interpreted the statute to bar tort claims by a serviceperson against other military personnel for injuries sustained "incident to service."
In the Feres Court's view, three factors counseled against interpreting the Act as it read, and in favor of finding a broad prescription of suits by injured military personnel against other military personnel. First, the FTCA constituted the Government's waiver of sovereign immunity only under circumstances from which would arise private liability. 340 U.S. at 141, 71 S.Ct. at 156; 28 U.S.C. § 2674. The Court, however, could find no liability of a private individual remotely analogous to the liability asserted against the United States in a military context.
We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. ... Nor is there any liability "under like circumstances" (quoting the statute) for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. ... The FTCA's effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.
340 U.S. at 141-42, 71 S.Ct. at 157.
Second, the Court emphasized the irrationality of subjecting the "distinctly federal" relationship between the Government and its soldiers to the varying tort laws of each state, as would be required by the FTCA's rule that the law of the place of the injury governs the claim. 28 U.S.C. § 1346(b). To make the legal recourse of servicepersons depend upon their location over which they exercise no control would violate that "distinctly federal" character of the military relationship. 340 U.S. at 142-43, 71 S.Ct. at 157.
Finally, the Feres Court noted the existence of a comprehensive legislative scheme of benefits for service related injuries as a factor persuasive of eliminating the FTCA as a remedy for injured military personnel. Id. at 145, 71 S.Ct. at 158.
*967 In a later case, United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954), the Court noted still another factor for denying recovery under the FTCA: a concern for the effects of the maintenance of such suits upon military discipline. 348 U.S. at 112, 75 S.Ct. at 145. The rule of preclusion set out in Feres and noted in Brown, barring suits such as the instant proceeding, endures. Peluso v. United States, 474 F.2d 605 (3d Cir. 1973); see also Miller v. United States, 643 F.2d 481, 490-93 (8th Cir. 1981), en banc. As recently as 1977, the Supreme Court in Stencel Aero Eng'r Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977), affirmed the doctrine pioneered in Feres.
By the principle of stare decisis, this Court ultimately is bound to follow the rule. We do so, however, with profound misgivings, some of which courts and judges of undoubted sagacity have expressed before.
As an initial matter, it seems fair to reiterate that the various rationales or factors for denying access to remedies under the FTCA to plaintiffs such as Mrs. Hall have their genesis in the Supreme Court's decision in Feres to expand the plain terms of, and the exclusions stated in, the FTCA.[8] Thus, the factors counseling against liability, dispositive in Feres and its many progeny, run against the grain of the statute and so have invited much criticism and comment.
The Court's recent decision in Stencel Aero Eng'r Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977) affords a point of departure for examining the factors of the Feres doctrine. In Stencel, a malfunction in the ejection mechanism of a fighter aircraft injured an air force pilot. The pilot sued the manufacturer, Stencel, in tort for defective design. Stencel sought indemnification against the United States, alleging that the Government had supplied both the specifications for, and most of the components of, the ejection system. The Court held that Feres barred the indemnification action; such an action, in the Court's view, would circumvent the rule of preclusion originating in Feres.
Stencel places significant reliance[9] upon the deleterious effect on military discipline of the maintenance of suits against military personnel for negligence.
... At issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety. The trial would, in either case, involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other's decisions and actions.
431 U.S. at 673, 97 S.Ct. at 2059.
The Stencel Court derives the importance of this factor from United States v. Brown, 348 U.S. 110, 112, 75 S. Ct. 141, 145, 99 L. Ed. 139. The Court in Brown in turn relied upon Feres to establish the significance of this consideration about military discipline, citing Feres v. United States, 340 U.S. at 141-143, 71 S.Ct. at 156. However, there is no mention in Feres at those pages, nor anywhere in the reported opinion, of the "detriment to discipline" that would arise if servicepersons might hale their superiors or other officers into court.
It is important to recognize that Feres did not explicitly discuss the military discipline factor. For Feres did preclude two suits in medical malpractice and thus compels the conclusion that plaintiff here has no cause of action against the United States under the FTCA. But Feres itself does not stand for the proposition that in a medical malpractice case, the possible deleterious effects of the maintenance of suit on military discipline are an important consideration.
Indeed, Feres itself does nothing to allay one's intuitive suspicion, argued by plaintiff's *968 counsel here, that in a peace-time domestic army hospital, the military chain of command deserves no special deference. One suspects rather that the critical lines of authority are the same as in any hospital, public or private; such as they are, these schemes of authority and "medical discipline" are held accountable without intolerable impairment by the law of medical malpractice.
As for the "distinctly federal" character of the relationship between the soldier and his or her government, again a factor in Feres, we note in passing Justice Marshall's comment:
It is true, of course, that the military performs "a unique nationwide function," ibid., [431 U.S. at 672, 97 S.Ct. at 2059] but so do the Bureau of the Census, the Immigration & Naturalization Service, and many other agencies of the Federal Government. These agencies, like the military, may have personnel and machines in all parts of the country. Nevertheless, Congress has made private rights against the Government depend on "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b).
Stencel Aero Eng'r Corp. v. United States, 431 U.S. at 675, 97 S.Ct. at 2059 (Marshall, J., dissenting).
Another prong of Feres, the lack of an analogous private right of action, would seem to have been undermined by the Court itself. As noted above, the Feres Court found the FTCA limited to allowing only rights of action against the government that had hitherto been allowed between private parties. But in United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963), the Court, citing Rayonier, Inc. v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354 (1947) and Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955), stated that the FTCA now extends to "novel and unprecedented forms of liability." 374 U.S. at 159; see Note, Tort Remedies for Servicemen Injured by Military Equipment: A Case for Federal Common Law, 55 N.Y.U. Law Review 601, 631 n. 172 (1980).
In Indian Towing Co., the Court declined to immunize the Government from FTCA suit for the Coast Guard's negligent operation of a lighthouse. The Government urged that the critical language of the Act, imposing liability "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, precluded liability in the conduct of activities which private persons do not perform such as the operation of a lighthouse, 350 U.S. at 64, 76 S.Ct. at 124, or one might add, the maintenance of an army. The Court rejected that position noting in passing that it was not inconceivable that private persons might be allowed to operate a lighthouse. Id. at 66, 76 S.Ct. at 125.
In any event, it seems plausible to distinguish between certain aspects of the military function that cannot be performed by private armies, e.g., the operation of combat instrumentalities and those which are routinely performed in the civilian world, such as provision of medical care.
Notwithstanding such speculation, this court reiterates its reluctant conclusion that even the most critical scrutiny of the rationale underlying Feres cannot empower the court to ignore Supreme Court precedent. Nor can sympathetic sentiments expressed by our own Court of Appeals, a court critical of Feres and its progeny,[10] justify disobedience to precedent. Therefore, the court must dismiss the instant claim under the FTCA for failure to state a claim upon which relief may be granted. F.R.C.P. 12(b)(6).
*969 III. The Warranty Theory.
The court then finally turns to plaintiff's argument that the Government has breached a warranty express and/or implied springing from the enlistment contract to provide quality medical care.
The gravamen of plaintiff's claim here is tortious: the negligent examination, diagnosis and treatment of the decedent on the part of military doctors.
Under similar circumstances, the Court of Claims has refused to allow a claimant to couch an essentially tort claim in contractual terms. Jackson v. United States, 573 F.2d 1189, 1199 (Ct.Cl.1978).
Plaintiff does allege that the enlistment contract warranted expressly or impliedly as to the provision of quality medical care. But plaintiff provides the court with no language in the enlistment contract or in federal statutes or regulations that might constitute an express warranty. By federal statute the defendant guarantees members of the armed services access to medical care. 10 U.S.C. § 1074. But that statute, presumably incorporated as part of an enlistment contract, contains no express warranty either.
Plaintiff apparently must rely upon a theory of implied warranty. Such an approach has undeniable appeal. When responsible authorities undertake to provide medical assistance, they assume obligations of reasonable care in the performance of that undertaking. But as a general matter, claims predicated upon breach of such an implied warranty sound essentially in tort. In any event, it eludes this court how a claim for breach of such an implied warranty would differ from the medical malpractice, or other negligence, claims precluded by Feres and progeny.[11] Plaintiff's attempt to cast its cause of action in contract terms cannot disguise the fundamental nature of this action: a claim that a duty of care owed by physicians or their superiors to the decedent was breached. Therefore we must hold that plaintiff's claim of breach of warranty fails to state a cognizable claim.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss the complaint is granted. Counsel for the Government shall promptly submit an order consistent with this opinion.
NOTES
[1] Plaintiff's complaint does not set out the precise physiological cause of death. Plaintiff's brief at 1 suggests that Ms. Hall entered the hospital with a 103° temperature; two hours later her fever ran to 105.2°. "Despite an enormously high white blood cell count, together with other indications of a massive infection in Velda's body revealed by blood tests conducted on August 9, and a chest x-ray also taken on August 9, 1980, which showed a left lower lobe pneumonia, she was treated only for heat exhaustion." Plaintiff's brief at 1.
[2] It is not clear from the submissions by the parties what precise compensation or relief plaintiff has sought under such programs. Both parties' papers indicate that the Halls filed some kind of claim with the Department of the Army, and that the Department denied the claim. At oral argument, counsel indicated their understanding that the Army denied the claim on the ground that Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152, barred any relief.
[3] 177 F.2d 535 (2d Cir. 1949), aff'd, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950).
[4] 178 F.2d 518 (4th Cir. 1949), aff'd, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152.
[5] 178 F.2d 1 (10th Cir. 1949), rev'd, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152.
[6] 340 U.S. at 138, 71 S.Ct. at 155.
[7] "We do not overlook considerations persuasive of liability in these cases. The Act does confer district court jurisdiction generally over claims for money damages against the United States founded on negligence. 28 U.S.C. § 1346(b). It does contemplate that the Government will sometimes respond for negligence of military personnel, for it defines "employee of the Government" to include "members of the military or naval forces of the United States," and provides that "`acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty." 28 U.S.C. § 2671. Its exceptions might also imply inclusion of claims such as we have here. 28 U.S.C. § 2680(j) excepts "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war" (emphasis supplied), from which it is said we should infer allowance of claims arising from non-combat activities in peace." 340 U.S. at 138, 71 S.Ct. at 155. See Griggs v. United States, 178 F.2d 1, 3.
[8] See note 7, supra.
[9] See Miller v. United States, 643 F.2d 481, 483 (8th Cir. 1980), rev'd on rehearing en banc, 643 F.2d 481, 490 (1980), (stating that the effect of maintenance of suit upon military discipline has become the "most widely used basis for applying the Feres doctrine").
[10] See, e.g., Peluso v. United States, 474 F.2d 605 (3d Cir. 1973) (wrongful death action by parents of decedent member of the New Hampshire National Guard; decedent perished while on active duty at Fort Dix alleged medical malpractice in treatment of abdominal complaint; "If the matter were open to us we would be receptive to appellants' argument that Feres should be reconsidered, and perhaps restricted to injuries occurring directly in the course of service. But the case is controlling. Only the Supreme Court can reverse it. While we would welcome that result, we are not hopeful .... Certainly the facts pleaded here cry out for a remedy." Id. at 606).
[11] The Congress has provided a comprehensive statutory system of compensation for injuries to servicemen .... The Supreme Court has held that in establishing this system the Congress has limited the liability of the Government for service-connected injuries where the soldier sues in tort for money damages .... (Citations omitted.)
... Since a soldier cannot circumvent the compensation system by suing in tort for additional money damages for injuries there is no logical reason to allow him to circumvent the congressionally mandated limitations in a suit that he characterizes as one for breach of contract. Jackson v. United States, 573 F.2d 1189, 1198-99. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1858922/ | 634 So. 2d 981 (1994)
Thomas R. TURNER, Plaintiff-Appellee,
v.
CITY OF MONROE, Defendant-Appellant.
No. 25554-CA.
Court of Appeal of Louisiana, Second Circuit.
March 30, 1994.
*982 Charles H. Hamaker, City Atty., Thomas V. Gardner, Jr., Asst. City Atty., for defendant-appellant.
Fewell, Rhymes & Lucas by J. Michael Rhymes, Monroe, for plaintiff-appellee.
Before SEXTON, VICTORY and STEWART, JJ.
STEWART, Judge.
The issue before the court is the applicability of the Louisiana Civil Rights Act for Handicapped Persons, LSA-R.S. 46:2251, et seq., to the case of Thomas Turner, a signal technician, who was terminated by the City of Monroe. The trial court granted relief to Turner and the City appeals. For the following reasons, we affirm.
BACKGROUND
Thomas Turner was employed by the City of Monroe ("City") as a signal technician until May 1991. On January 2, 1991, Turner underwent surgery to repair a degenerative lumbar disc. On or about January 31, 1991, Turner attempted to return to work, but the *983 City refused to allow him to return because of his back condition. Eventually, the City decided to terminate Turner's employment.
On April 24, 1991, the Honorable Robert E. Powell, Mayor of the City of Monroe, conducted a review hearing of the decision to terminate Turner. Two days later, Mayor Powell upheld the decision of the City terminating Turner's employment. He was officially terminated from his job on May 18, 1991.
On June 14, 1991, Turner filed suit in district court against the City seeking reinstatement, compensatory damages, and attorney fees for violating the Civil Rights Act for Handicapped Persons and for violating his right to due process during the administrative review hearing.
Trial on the merits was held on October 14-15, 1991. On January 15, 1993, the trial court rendered a judgment against the City for $30,000 in compensatory damages and $8,814.70 in costs and attorney fees. The trial court also ordered the City to reinstate Turner with no loss of seniority. In its written reasons for judgment, the trial court found that the City had violated the Civil Rights Act for Handicapped Persons because it had wrongly perceived that Turner would not be able to perform the duties of a signal technician. The City appeals the judgment of the court.
DISCUSSION
The Civil Rights Act for Handicapped Persons
The City contends that the trial court incorrectly applied the Civil Rights Act for Handicapped Persons ("Handicapped Act"), LSA-R.S. 46:2251-:2256. LSA-R.S. 46:2254(C)(2) of the Handicapped Act states that an employer shall not:
Discharge or otherwise discriminate against an otherwise qualified individual with respect to compensation or the terms, conditions, or privileges of employment, on the basis of a handicap when it is unrelated to the individual's ability to perform the duties of a particular job or position.
Louisiana Revised Statute 46:2253(1) defines a "handicapped person" as "any person who has an impairment which substantially limits one or more life activities or (a) has a record of such an impairment or (b) is regarded as having such an impairment." LSA-R.S. 46:2253(2) defines an impairment as "retardation; any physical or physiological disorder or condition, or prior mental disorder or condition...." Major life activities are defined as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. An otherwise qualified handicapped person is "a handicapped person who, with reasonable accommodation can perform the essential functions of the job in question." LSA-R.S. 46:2253(3). The policy behind the Civil Rights Act for Handicapped Persons is to afford to every individual in the state,
an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice or intolerance not only threatens the rights and proper privileges of its inhabitants but menaces the institutions, the foundations of a free democratic state, and threatens the peace, order, health, safety, and general welfare of the state and its inhabitants.
The opportunity to obtain employment, education, housing, and other real estate and full and equal utilization of public services and programs without discrimination on the basis of a handicap is a civil right.
Coverage Under the Handicapped Act
The City argues that Turner was not a member of the protected class of "handicapped persons" as defined by the Handicapped Act, because he is not actually handicapped. Turner counters by arguing that he is a member of the protected class because the City "perceived" him as having a handicap. This issue is res nova in Louisiana. Cf. Kraemer v. Santa Fe Offshore Construction Co., 579 So. 2d 488 (La.App. 4th Cir.1991) (assuming that the Handicapped Act was applicable to the plaintiff); Casse v. Louisiana General Services Inc., 531 So. 2d 554 (La. App. 5th Cir.1988), writ denied, 533 So. 2d 375 (La.1988) (assuming that the Handicapped Act did not apply); Lege v. N.F. *984 McCall Crews, Inc., 625 So. 2d 185, 188 (La. App. 3d Cir.1993) (deciding whether correct jury instructions on the definition of handicapped were given).
The Rehabilitation Act of 1978, 29 U.S.C. § 701, et seq., is a federal law which forbids discrimination against handicapped persons. The definition for handicapped person in the Handicapped Act mirrors the definition for handicapped person in the federal Rehabilitation Act of 1978. See 29 U.S.C. § 706(8)(B) (defining an "individual with a disability" as any individual who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment). We examine the definition that federal law has given for a handicapped person for any guidance that it may provide for us.
In Cook v. State of R.I., Department of MHRH, 10 F.3d 17 (1st Cir.1993), a woman sued a subdivision of the State of Rhode Island under the Rehabilitation Act of 1978 when it denied her a job as an institutional attendant because of her obesity. A medical examination conducted on the plaintiff found, that despite her weight, she was not physically impinged from doing the job. The plaintiff's case was presented on a perceived disability theory, positing that she was fully capable of doing the job although the employer regarded her as physically impaired. The federal court of appeals sustained the cause of action because the Rehabilitation Act's protection encompasses not only those persons who are in fact disabled, but also those persons who have been the brunt of discrimination because prospective employers view them as disabled. Id. at 22-23. This interpretation of the Rehabilitation Act of 1978 has also been echoed in other federal court cases. See, e.g., Taylor v. U.S. Postal Services, 946 F.2d 1214, 1216 (6th Cir.1991); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986); E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1097 (D.Haw.1980).
We have found examples in other states which also allow recovery if the employer discriminates against an employee because of a perceived handicap. These states have statutory definitions of handicap similar to the Handicapped Act and the Rehabilitation Act of 1978. In Hodgdon v. Mt. Mansfield Company, Inc., 624 A.2d 1122 (Vt.1992), an employer fired a female employee because she would not wear dentures as a condition of employment as a chambermaid. The Vermont Supreme Court found that the plaintiff was handicapped, because "the employer regarded the plaintiff as unfit to be seen by customers" and "this is to regard plaintiff as substantially limited in her ability to work." Id. at 1130. The Vermont Supreme Court relied heavily upon the federal definition of handicapped in making its decision.
In Winnett v. City of Portland, 118 Or. App. 437, 847 P.2d 902 (1993), a female fire fighter sued the City of Portland, Oregon when it discharged her because the city officials believed that she was physically unable to perform the job of a fire fighter. The trial court found in her favor. On appeal, the Oregon Court of Appeal held that the trial court could reasonably believe that the City of Portland regarded her as having a physical impairment and thus she was entitled to recover under the state statute barring discrimination against the handicapped. Id. at 907.
In Sanchez v. Lagoudakis, 440 Mich. 496, 486 N.W.2d 657 (1992), Sanchez was working for the defendant as a waitress. A rumor started to circulate that she had AIDS. The restaurant refused to allow her to continue working until she proved that she did not have AIDS. She underwent a blood test that showed that she did not have AIDS. Humiliated because she was made to take the test in her small town environment, Sanchez quit her job. She filed suit against the restaurant arguing that she was discriminated against because the restaurant perceived that she had AIDS. The trial court and appellate court dismissed the complaint on the grounds that the mere perception that a person has AIDS was not actionable under Michigan's law prohibiting discrimination against the handicapped. The Michigan Supreme Court reversed the lower courts stating that the perception that a person has AIDS constituted a handicap. Id. 486 N.W.2d at 660. The case was remanded to determine whether the plaintiff could prove that the restaurant discriminated *985 against her because of a perceived handicap. Id. 486 N.W.2d at 662.
All of these state courts have found that, if an employer discriminated against an employee because the employer perceived or believed the employee to be handicapped, then the employer could be found liable for its action under their handicap statute. We recognize that some state jurisdictions allow recovery under their handicap anti-discrimination statutes only upon proof of an actual handicap. However, the decisions of these state courts have been based on statutes worded differently from the Louisiana statute. Cf. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tx.1987) (holding that the plaintiff had to have a handicap to be protected under the Texas law which bars discrimination against the handicapped).
Our research reveals that those states whose handicapped statutes are similar to Louisiana's handicapped statute and to the federal Rehabilitation Act of 1978 allow plaintiffs to recover if they prove that their employer discriminated against them based on a perceived handicap. We find persuasive the interpretation of similar statutory language by other jurisdictions. Given the plain wording of the Louisiana statute, the legislature has decreed that a person who "is regarded as having such an impairment" is a handicapped person. We therefore hold that a plaintiff in Louisiana who proves that he or she was discriminated against because of a perceived handicap has proven prima facie that the employer has violated the Handicapped Act. Once the plaintiff has established a prima facie case of discrimination, it is incumbent on the employer to prove that even with reasonable accommodation, the employee cannot perform the essential duties of the job. Kraemer v. Santa Fe Offshore Construction Co., 579 So. 2d 488 (La.App. 4th Cir.1991); see also, Prewitt v. U.S. Postal Service, 662 F.2d 292, 305-07 (5th Cir.1981) (example of a case with the same holding under the Rehabilitation Act of 1978).
Scope of Appellate Review
The trial court's finding of fact will not be disturbed absent manifest error or unless it is clearly wrong. Stobart v. State through DOTD, 617 So. 2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart, supra.
Application of the Handicapped Act
The City contends that the record does not support a finding that it regarded Turner as handicapped. Turner, age 41, worked in the City of Monroe's civil engineering services department as a signal technician for eight years. As a signal technician, Turner was responsible for the repair and maintenance of traffic signals and traffic signs. He was regularly on call to make emergency repairs to any malfunctioning traffic lights or downed traffic signs as the needs arose. At times, he was required to dig holes for traffic signs with a forty-five pound post driver, lift sixty-pound buckets of paint, and other heavy objects. How frequently he needed to lift these heavy objects and whether he had to do these tasks unaided was disputed at trial.
On January 2, 1991, Turner underwent surgery to repair a disc that was causing chronic back pain. Before the surgery, Turner had limited forward flexion and positive straight leg raising. After the surgery, Dr. Craig Clark, his treating physician, found that Turner had made a remarkable recovery. He found that Turner was walking freely with full mobility in his back and was able to do deep knee bends without pain. Dr. Clark, who was familiar with Turner's job description, sent a letter to the City saying that Turner was fully capable of performing his duties as a signal technician. The only advice Dr. Clark gave Turner after he was released for work was to use common sense in undertaking his pre-surgery employment and activities.
The City was aware of Dr. Clark's recommendation, but still refused to allow Turner to return to work. At trial, Murdock Snelling, who holds general supervisor responsibility over all of the City's engineering services departments, stated that he feared that Turner might re-injure his back if he returned to work. He testified that his fear *986 was based on his prior experience with an employee who had back problems. He also stated that he wanted someone working for him who had no physical defects. Edward Cheek, who was head of the traffic engineering section in which Turner worked, testified that he did not want to hire anyone who had back surgery, irrespective of the success of the surgery. He also stated that his belief was based on his experience with an employee who had also had back surgery, although he could not recall the type of surgery the employee had undergone. At the review hearing, Mayor Powell found that Turner's back problems would cause him to be a danger to himself and to the public.
Dr. Faheam Cannon, a neurologist, examined Turner at the City's request. He found some congenital anomalies in his back, but he also found that Turner was not experiencing any symptoms. After the examination, Dr. Cannon released Turner to return to work, albeit with a recommendation that he sign a waiver against future back problems. Snelling generated a new job description of signal technician. This new job description emphasized the amount of weight that Turner might have to lift. Snelling then met with Dr. Cannon to discuss the new job description. Dr. Cannon then wrote a letter in which he said that someone who had had surgery on his back had a significantly greater chance of re-injuring it than someone who had never had surgery on his back. When Snelling was asked why a new job description had been generated, Cheek replied that he thought Dr. Cannon really did not understand the nature of the job.
At trial, Dr. Clark testified, through deposition, that Turner was fully capable of performing the duties of a signal technician. He also testified that Turner had a very low chance of re-injuring his back. Turner himself testified that he has felt good since he had the surgery. Dr. Dianne Herbst, an expert in vocational rehabilitation, testified that after reviewing Turner's medical records, the signal technician job description, and the depositions of Snelling and Cheeks, she believed the City perceived that Turner was handicapped even though he was fully capable of executing the job of a signal technician.
Based on the testimony of Snelling, Powell, Cheek, Mayor Powell, and Dr. Herbst, the trial court found that the City regarded Turner as handicapped. The trial court also found that Turner did not have any physical impairment that would limit his ability to work, nor did any accommodation need to be made for him to perform the essential duties of a signal technician. See LSA-R.S. 46:2253(3). The City apparently believed that Turner posed a continuing workers' compensation risk to it should his employment be maintained. The trial court was not persuaded that such a concern validated the City's termination of Turner in view of the Handicapped Act's purpose and language. We find that there is ample evidence in the record to support the findings of the trial court.
The City argues that the trial court erred in holding it liable under the Handicapped Act because Turner only adduced evidence that the City discriminated against him, but did not adduce evidence about other employment opportunities. In Cook v. State of R.I., Department of MHRH, supra, the defendant similarly argued that a jury could not have found that it had violated the Rehabilitation Act of 1978, because the plaintiff only offered evidence concerning this one particular job. The court rejected this argument thusly:
Appellant urges that, in order to draw such a conclusion, the jury would have had to engage in rank conjecture because plaintiff applied for, and was rejected from, only one job. In effect, appellant's argument on this point reduces to the notion that meeting the statutory test requires, as a preliminary matter, that an individual unsuccessfully seek a myriad of jobs. We cannot accept that notion for several reasons. First, such a requirement is contrary to the plain reading of the statute and regulations. Under the "regarded as" prong of section 504, a plaintiff can make out a cognizable perceived disability claim by demonstrating that she was treated as if she had an impairment that substantially limits a major life activity. See 45 C.F.R. *987 § 84.3(j)(2)(iv)(C). The Rehabilitation Act simply does not condition such claims on either the quantum of a plaintiff's application efforts or on her prospects of finding other employment.
Similarly, in this case, we reject the City's argument that Turner proffered the wrong type or an insufficiency of evidence at trial.
The City also argues that the trial court erred in finding that Turner was an "otherwise qualified individual." See LSA-R.S. 46:2254(C)(2). As stated above, Dr. Clark, Dr. Herbst, and Turner all testified that Turner's back had healed and that nothing was barring his immediate return to his employment duties for the City. Only Dr. Cannon provided any expert testimony that Turner had a good chance of re-injuring his back. Dr. Clark testified that Turner had a low chance of re-injuring his back. Although the testimony of Dr. Cannon and Dr. Clark conflict, the trial court is allowed to give greater weight to the testimony of the treating physician, Dr. Clark, over the testimony of a doctor whose examination was solely for the purpose of giving expert trial testimony regarding a patient's condition. See Streeter v. Sears, Roebuck and Company, Inc., 533 So. 2d 54, 70 (La.App. 3d Cir.1988). We find that the testimony of Dr. Clark, Dr. Herbst, and Turner provided a reasonable basis for the trial court to conclude that Turner was an "otherwise qualified individual" despite the City's perception that he was handicapped.
CONCLUSION
Because there is a reasonable basis to support the finding that the defendant was handicapped and because there is a reasonable basis for the trial court to find that Turner could perform the essential duties of a signal technician, we hold that the trial court was not manifestly erroneous in finding that the City had violated the Handicapped Act. Costs are assessed against the City of Monroe.
AFFIRMED.
VICTORY, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1138437/ | 658 So. 2d 204 (1995)
Pamela HALL, Individually and on Behalf of the Minor, Kristal G. Hill, Plaintiffs-Appellees,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
No. 94-867.
Court of Appeal of Louisiana, Third Circuit.
May 31, 1995.
*205 Gerald Charles deLaunay, Warren A. Perrin, Lafayette, for Pamela Hall Indiv. etc., et al.
Preston D. Cloyd, Lafayette, for State Farm Mutual Auto. Ins. Co., et al.
John William Penny Jr., Lafayette, for John W. Penny Jr.
Before DOUCET, C.J., and THIBODEAUX and PETERS, JJ.
THIBODEAUX, Judge.
Defendant, State Farm Mutual Automobile Insurance Company, appeals a judgment which granted Pamela Hall's motion for judgment notwithstanding the verdict (JNOV). This judgment increased the amount of damages awarded by the jury for past and future medical expenses and additionally ordered State Farm to pay in penalties twice the amount of damages awarded and $15,000.00 in attorney's fees to Ms. Hall, finding that State Farm violated its obligations under La.R.S. 22:1220.
We affirm that portion of the judgment which granted the JNOV on past and future medical expenses, amend and affirm the trial judge's award of penalties on the issue of sanctions for the violation of La.R.S. 22:1220, and reverse the award of attorney's fees.
I.
ISSUES
We must resolve the correctness of the trial court's judgment notwithstanding the verdict for the plaintiff and also determine whether the trial court correctly awarded a penalty of twice the damages awarded plus attorney's fees for a violation of La.R.S. 22:1220.
II.
FACTS
As a result of an automobile accident, Pamela Hall filed a petition for damages and named State Farm Mutual Automobile Insurance Company as defendant. In addition to allegations of negligence, Ms. Hall's petition alleged that State Farm breached its duty of good faith and fair dealing by not fairly and promptly making a reasonable effort to settle the claim. State Farm denied that it violated La.R.S. 22:1220.
Until the morning of the trial, State Farm contended that it was not liable for the accident. However, on the morning of the trial, State Farm conceded that it had no defense as to liability and stipulated its negligence. The jury rendered a unanimous verdict awarding the following damages:
1. Pain and suffering, both physical
and mental; (past, present
and future).........................$25,000.00
2. Physical injury or disability
suffered............................$10,000.00
3. Past medical expenses............$13,000.00
4. Future medical expenses..........$ 2,500.00
5. Loss of past wages...............$ 3,000.00
The jury further found that State Farm did not breach the provisions of La.R.S. 22:1220 and, as such, Ms. Hall was not entitled to damages and penalties for the alleged breach.
After trial, Ms. Hall filed a motion for JNOV. The trial judge granted the motion. In granting the motion, the trial judge increased Ms. Hall's award for past medical expenses to $19,288.00, and future medical expenses to $4,000.00. Additionally, the trial judge awarded Ms. Hall $15,000.00 in attorney's fees in the form of "special damages," *206 and penalties equal to twice the amount of damages suffered by Ms. Hall, finding that State Farm violated La.R.S. 22:1220.
III.
LAW AND DISCUSSION
A. JNOV
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. (Citation omitted).
Anderson v. New Orleans Public Service, Inc., 583 So. 2d 829, 832 (La.1991).
The supreme court also addressed the standard an appellate court must employ in reviewing a JNOV. This court must determine whether the trial court erred by deciding whether the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. If the answer to the above question is yes, then the trial judge was correct in granting the JNOV. If, on the other hand, in the exercise of impartial judgment reasonable persons might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Id.
B. Damages
La.Code Civ.P. art. 1811(F) provides: "The motion for a judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both issues." In reviewing the trial judge's decision to grant Ms. Hall's motion for JNOV on the issue of damages, we conclude that the motion was properly granted.
The jury found that Ms. Hall suffered injuries as a result of the accident. Further, as a result of her injuries, Ms. Hall saw several doctors for treatment of her pain. In connection with those treatments she incurred medical bills which were in evidence as plaintiff's exhibit number 1. The amount of Ms. Hall's past medical expenses totaled $19,288.75. The jury awarded Ms. Hall $13,000.00 for her past medical expenses. The trial judge found that there was no evidence contradicting the amount of Ms. Hall's past medical expenses nor was there any evidence of Ms. Hall's bad faith in incurring those expenses. He further concluded that those expenses were caused by the accident. It is the tortfeasor's responsibility to pay for medical bills unless they were incurred in bad faith. Lair v. Carriker, 574 So. 2d 551 (La.App. 3 Cir.1991). After our careful reading of the record, we agree with the trial judge that there is an absence of evidence of Ms. Hall's bad faith in incurring her medical expenses. For this reason the jury incorrectly awarded Ms. Hall less than the total amount of her past medical expenses.
As to Ms. Hall's future medical expenses, the jury awarded the total amount of $2,500.00. By awarding Ms. Hall an amount for future medical expenses, the jury implicitly concluded that she was entitled to future medical treatment. Dr. James Pearce testified as to Ms. Hall's need for future medical treatment. Dr. Pearce is a dentist whose practice is limited to diagnosing and treating temporomandibular joint (TMJ) disorders. He testified that the temporomandibular is the joint that attaches the lower jaw to the skull and is located on the side of the head. Dr. Pearce also testified that TMJ disorders can be caused by a blow to the face or head as well as hyperflexion or extension of the head or cervical spine. He further explained that it is not necessary for a person to have jaw pain in order to have a TMJ disorder.
*207 Ms. Hall was referred to Dr. Pearce by Dr. DeAlvare, a neurologist. Ms. Hall complained of bilateral temporal and occipital headaches and right side ear pain. She further complained of sensitivity in her teeth, which she claimed to have had since the date of the accident. Dr. Pearce also noted that Ms. Hall had trigger points in her shoulders on her first visit of which she was complaining of discomfort upon palpation. After performing several diagnostic tests, Dr. Pearce found that Ms. Hall's condition was consistent with the symptoms of which she complained and which altogether were consistent with TMJ disorder. Ms. Hall had inflammation of the muscles and connective tissue that connect the muscles together. Dr. Pearce described Ms. Hall's treatment options as use of medication, physical therapy, use of an orthopedic appliance worn over the teeth, and sometimes biofeedback. For Ms. Hall, Dr. Pearce recommended diagnostic splint therapy to allow the muscles to relax. He further recommended that Ms. Hall have bridges made to replace six teeth that were missing prior to the accident. Dr. Pearce estimated the cost to replace the missing teeth to be between $4,000.00 and $6,000.00.
State Farm argues that the jury, by awarding only $2,500.00 for future medical expenses, could have found that Ms. Hall indeed suffered from TMJ disorder and deserved treatment but that the cost of replacing the six teeth which were missing prior to the accident was not the responsibility of State Farm. However, the only evidence as to the type of future medical treatment Ms. Hall would need was correction of her TMJ disorder. Dr. Pearce testified that in order to completely correct the TMJ disorder, Ms. Hall would have to have the missing teeth replaced. He estimated the cost of correcting her TMJ disorder to be between $4,000.00 and $6,000.00. State Farm presented no evidence contradicting Dr. Pearce's estimate.
Regardless of the fact that six of Ms. Hall's teeth were missing prior to the accident, she did not suffer from TMJ disorder until after the accident. In, Petersen v. State Farm Automobile Insurance Co., 543 So. 2d 109 (La.App. 3 Cir.), writ denied, 546 So. 2d 1223 (La.1989), the plaintiff possessed preexisting dental problems, one of which was missing teeth. The defendants in that case, similar to State Farm in the present case, showed that TMJ disorder can be caused by a dental defect; however, neither the defendant in Petersen nor State Farm in the present case proved that this fact, the missing teeth, caused the plaintiff's TMJ disorder. Like the plaintiff in Petersen, Ms. Hall carried her burden of proving the accident probably triggered the TMJ disorder. State Farm has not proven that the future medical treatment is unnecessary and, accordingly, the trial judge was correct when he increased the award for future medical expenses to $4,000.00, the lowest estimate. Furthermore, merely because Ms. Hall has a preexisting condition which predisposed her to have TMJ disorder, State Farm, as the insurer of the tortfeasor, must compensate Ms. Hall to the full extent of aggravation of her preexisting condition even though under the same circumstances a person without six teeth missing would not have suffered TMJ disorder. See Lasha v. Olin Corp., 625 So. 2d 1002 (La.1993).
C. Violation Of La.R.S. 22:1220
State Farm contends that the trial judge erred in awarding penalties under La.R.S. 22:1220.
The statute controlling the insurer's good faith duty and penalties for breach of that duty is La.R.S. 22:1220 which provides, in pertinent part:
A. An insurer, ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
* * * * * *
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand *208 dollars, whichever is greater ... (Emphasis ours).
State Farm argues correctly that the penalty provision of La.R.S. 22:1220(C) is applicable only after a showing of damages actually suffered as a result of the breach of the duties to adjust claims fairly and promptly and to make reasonable efforts to settle claims with the claimant. See Champagne v. Hartford Casualty Insurance Group, 607 So. 2d 752 (La.App. 1 Cir.1992). The amount of penalties to be awarded is not, as Ms. Hall argues, based upon the amount of damages claimed or awarded in damages but the amount of damages sustained by the breach. If there are no damages proven as a result of the breach itself, then the maximum amount that can be awarded is $5,000.00 in penalties. See Robichaux v. Jackson National Life Ins. Co., 821 F. Supp. 429 (E.D.La.1993); See also Midland Risk Insurance Co. v. State Farm Mutual Auto Insurance Co., 93-1611 (La.App. 3 Cir. 9/21/94), 643 So. 2d 242.
A plaintiff seeking penalties under La.R.S. 22:1220 has the burden of proving that the insurer arbitrarily and capriciously breached its duty of good faith and fair dealing. Hayes v. Richard, 92-601 (La.App. 3 Cir. 3/2/94), 634 So. 2d 1384. Section 1220(B) enumerates certain acts which, if knowingly committed or performed by an insurer, constitute a breach of its duty of good faith and fair dealing. The jury found that State Farm did not breach its good faith and fair dealing duty toward Ms. Hall; therefore, Ms. Hall was not awarded any amount for penalties. The trial judge granted the JNOV, concluding:
[T]he adjuster representing State Farm had in his possession all of the medical concerning the injuries sustained by Pamela Hall in the accident; that there was no question as to liability, in fact State Farm admitted liability; that there was a question as to whether or not she sustained TMJ as a result of the accident, but Dr. Pierce [sic], the medical expert, found that she did have TMJ as a result of the accident. State Farm ... requested an IME by a medical specialist of its own choice and the Court granted that, and State Farm chose not to have their medical expert examine Ms. Hall for that injury and simply relied upon the opinion of Dr. McDaniel, who is not a specialist in TMJ, when it was clear that she did sustain this injury as a result of the accident.
The trial judge further concluded that because State Farm ultimately offered $20,000.00 to settle the claim when that amount was less than $1,000.00 over Ms. Hall's past medical expenses, it was arbitrary and capricious; it did not adjust Ms. Hall's claim fairly and promptly. The jury, on the other hand, found that State Farm did not act arbitrarily or capriciously in handling Ms. Hall's claim. State Farm argues that the jury's conclusion was supported by the evidence and testimony introduced at trial and that the trial judge's grant of the JNOV on the penalty issue was a clear error. We disagree with State Farm.
Jeff Temonia, State Farm's claims specialist, testified about State Farm's handling of Ms. Hall's claim. Part of Temonia's duties with State Farm was to assess liability. Shortly after the accident, he determined that liability was clear and that the only issue was the amount of damages owed. Temonia testified that he was aware of the fact that the law required him to make reasonable efforts to settle the claim. He further testified that when State Farm initially received the file, it immediately assessed Ms. Hall's automobile damage and shortly thereafter paid her for the damage to the vehicle. With regard to Ms. Hall's personal injury claims, Temonia testified that by telephone he first offered to settle with Ms. Hall for either $16,500.00 or $17,500.00. Temonia also testified that he made several requests for an offer of settlement to which he received no response from Ms. Hall's first attorney.
Two or three months after State Farm's letter of April 15, 1993, to Ms. Hall's second attorney requesting an offer of settlement, counsel for Ms. Hall offered to settle the claim for $100,000.00 plus interest. Temonia last offered to settle for $20,000.00. He testified that the $20,000.00 offer was made after conducting an examination of Ms. Hall's medical reports, a quantum study, and obtaining the advice of State Farm's legal counsel. *209 Two weeks before trial, Ms. Hall's counsel rejected State Farm's counteroffer.
State Farm contends that all of its settlement efforts were made in light of the facts in its possession. Prior to seeing Dr. Pearce for treatment of her TMJ disorder, Ms. Hall saw two other doctors who reported that she did not suffer from TMJ. However, Dr. Pearce testified that it is not unusual for physicians who are not TMJ specialists to misdiagnose the condition. Ms. Hall was referred to Dr. Pearce on July 30, 1992. State Farm felt that due to the wide discrepancy in the amounts of the settlement offers of the parties and the question of whether the accident caused Ms. Hall's TMJ disorder, it would be best to let the jury decide. We find that there was no question about the cause of Ms. Hall's TMJ disorder. Ms. Hall's past medical expenses totaled $19,288.75. The trial judge felt that State Farm's $20,000.00 settlement offer was unfair because it was only $711.25 over her past medical expenses and it did not fairly include enough to compensate Ms. Hall for her pain and suffering. After a review of the record, we find that there is evidence of such quality and weight that reasonable and fair-minded persons exercising impartial judgment could not reach different conclusions as to whether State Farm acted promptly and fairly in negotiating a settlement. The trial judge was not manifestly erroneous in its determination that, given the evidence in this case, the jury could not reasonably decide that State Farm adjusted Ms. Hall's claim fairly and made a reasonable effort to settle the claim.
The trial judge also awarded attorney's fees in this case against State Farm based on State Farm's violation of La.R.S. 22:1220 when he granted Ms. Hall's motion for JNOV. Attorney's fees are not allowed in Louisiana except where authorized by statute or contract. Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So. 2d 756 (La.1985). In the present case, no contract or statute provides for an award of attorney's fees to the plaintiff.
Consequently, we find that the trial judge was incorrect in its award of double the amount of Ms. Hall's damages in penalties and in awarding attorney's fees in this case.
IV.
CONCLUSION
The judgment of the trial court is amended in part to delete the award of penalties to Ms. Hall in an amount equal to double the amount of damages she sustained as a result of the accident. Instead, judgment is awarded in the sum of $5,000.00 for State Farm's violation of La.R.S. 22:1220. We reverse the judgment of the trial court to the extent that it awarded attorney's fees for State Farm's violation of La.R.S. 22:1220. The judgment is otherwise affirmed. Costs are assessed against State Farm.
AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1228810/ | 385 S.E.2d 898 (1989)
Stephen S. MURRAY, etc., et al.
v.
Mohamed A. HADID, et al.
Record No. 880883.
Supreme Court of Virginia.
November 10, 1989.
*900 Aubrey M. Daniel, III (Carolyn H. Williams, Williams & Connolly, Washington, D.C., on briefs), for appellants.
Mark London, Washington, D.C., (Harvey Cohen, Arlington, Barbara S. Dougherty, Washington, D.C., Cohen, Gettings, Alper & Dunham, Arlington, Laxalt, Washington, Perito & Dubuc, Washington, D.C., on brief), for appellees.
Present: CARRICO, C.J., COMPTON, STEPHENSON, THOMAS,[*] WHITING, and LACY, JJ., and POFF, Senior Justice.
*899 LACY, Justice.
In this appeal we review the trial court's decision to set aside a jury verdict in favor of the appellants, Stephen S. Murray, Mary P. Murray, and McLean Builders and Developers (the Murrays), in an action for fraud against Mohamed A. Hadid and Hadid Investment Group, Inc. (Hadid). The jury found for the Murrays and awarded them $984,000 compensatory damages and $1 million punitive damages.
In setting aside the verdict, the trial court ruled that the Murrays could not recover damages for Hadid's fraud. The trial court issued three alternative findings to support its ruling: (1) the Murrays acted illegally; (2) they did not prove any damages proximately caused by the fraud; and (3) their claimed damages in the form of lost profits were speculative. The Murrays assigned error to each of the trial court's findings and to its denial of the punitive damage award. Additionally, the Murrays assigned error to the trial court's ruling, issued more than twenty-one days after entry of final judgment, that it no longer had jurisdiction over their motion for sanctions against Hadid for discovery abuse.
Under well-established principles, because the Murrays received a favorable jury verdict, we view the evidence in the light most favorable to them.
In the mid-1970s, Mr. and Mrs. Murray became interested in a certain 12.9517 acre tract of undeveloped land located in McLean. The Murrays thought the property "was absolutely the best available" for the purpose of developing a townhouse project. Although they had never built townhouses, the Murrays were experienced in building large custom-designed houses. During the six years following Mr. Murray's retirement from the armed forces, his company, McLean Builders and Developers, had built ten such homes.
In 1978, the Murrays contacted James Roper, the owner of the property, to express interest in the parcel. Roper declined to sell, explaining that the estate from which he had received the property had not been settled. In July of the following year, the Murrays submitted a co-development proposal to Roper. The Murrays would perform all development responsibilities and Roper would be reimbursed for the property in piecemeal fashion, including a *901 percentage of the profits derived from each sale. Again, Roper rejected the proposal. Nevertheless, the parties formed a close relationship and frequently discussed the future of the property.
In 1982, Roper was prepared to sell the land outright for $4.5 million. The Murrays, after deciding that they were interested more in the building and developing aspects of the project, set out to locate investors in order to meet Roper's asking price. They prepared a prospectus to submit to potential investors which included their plan to build 88 townhouses, selling for $300,000 each, with a projected net profit of $8.8 million on the project.
The Murrays were largely unsuccessful in finding investors until October 1983, when Kamal Taki, for whom the Murrays had built a house, introduced them to Mohamed Anwar Hadid. Hadid, the sole shareholder of Hadid Investment Group, Inc., became very interested in the property after he, Taki, and Mr. Murray visited the site. At that time Hadid asked the others what each wanted out of the project. Taki responded that he wanted a 10% interest, and Murray said he wanted to be the builder. The parties never entered a written agreement with regard to the project. On October 13, 1983, Hadid, through the Murrays, offered Roper $3.5 million for the property. Although Roper rejected the offer, the evidence showed the Murrays gained confidence in Hadid because he appeared committed to the project.
Other developers were interested in Roper's property as well. On October 20, 1983, one developer, Rocky Gorge Communities, Inc. (Rocky Gorge), offered Roper $4.1 million for the property. Following negotiations, Roper decided that he would accept the contract offered by Rocky Gorge at noon on November 11, 1983.
As a consequence of their close relationship with Roper, the Murrays kept Hadid informed of Roper's negotiations with Rocky Gorge. On November 2, 1983, Hadid offered Roper $4 million for the property. Five days later, independent of the Murrays, Hadid met with Roper's attorney to discuss the offer. Roper, however, did not accept it.
Hadid then turned to the Murrays in an attempt to arrange a meeting with Roper. On November 10, 1983, the Murrays, accompanied by Roper, met with Hadid at his home to further negotiate the offer. As a preliminary matter, Mrs. Murray asked Hadid for a written contract evidencing their agreement that the Murrays would be the builders and developers of the project. Hadid, however, assured her that a written agreement was not necessary since he had made "much bigger deals like this on just a handshake."
The meeting, nevertheless, ended without a contract on the property. Roper and Hadid could agree on neither the price nor the method of payment. Because the deal with Hadid seemed certain to fall through and the Rocky Gorge deal was to be executed the following day, Mrs. Murray decided she and her husband would match Rocky Gorge's offer without consulting Hadid. Mrs. Murray felt certain Roper would prefer to deal with her and her husband rather than with Rocky Gorge, since they had become friends and had frequently discussed the Murrays' plans for the property.
Unquestionably, the Murrays had the financial ability to meet Roper's requirements. However, on the morning of November 11, before Mrs. Murray communicated her intentions to Roper, Hadid contacted her and said that he was prepared to meet the Rocky Gorge offer. Hadid wanted the Murrays to relay the offer to Roper before noon. When Mrs. Murray again inquired about a written agreement, she was assured that she and her husband would build the townhouses and develop the property. Mrs. Murray communicated Hadid's new offer to Roper. Hadid and Roper met that morning and signed a contract wherein Roper agreed to sell the land to Hadid Investment Group, Inc. for $4.1 million.
Despite the Murrays' pivotal role in the negotiations and Hadid's repeated assurances *902 that they would be the builders and developers of the project, Hadid began negotiations with other builders immediately after the contract was signed. Hadid instructed his employees to ignore the Murrays because "he would try to jerk Mr. Murray around for a while." Hadid purposefully refused to answer the Murrays' inquiries until February 13, 1984, when he wrote Mr. Murray. Hadid explained that if Mr. Murray wanted to develop the Roper property, he should contact Walter M. Cheatle, vice-president of Hadid Investment Group, Inc., and provide Cheatle with his credentials and capabilities.
Mr. Murray met with Cheatle on two occasions, March 2, and April 4, 1984. However, no agreement was reached. Mr. Murray was instructed simply to submit a fixed-price bid. On May 1, 1984, Mr. Murray asked for the documents necessary to comply with Cheatle's request. He received nothing and never was contacted again by Hadid or his company.
During this same time period, Hadid performed engineering on the property, produced site plans, and had the property rezoned. He also negotiated with a number of builders interested in developing the property. On July 27, 1984, Hadid assigned the contract to purchase the Roper property to McLean American Properties Limited Partnership (the Partnership) for $984,000. The Partnership consisted of John G. Georgelas and Sons, Inc. (Georgelas and Sons), Hadid, and Cheatle as limited partners, and Anthony John Georgelas as the general partner. Hadid's and Cheatle's interests in the partnership were 15% and 10%, respectively.
During the summer of 1986, NV Classic Homes, a builder/developer, approached the Partnership and sought to purchase a portion of the Roper property. The Partnership sold NV Classic Homes 67 improved townhouse lots, approximately half of the Roper property, for $100,000 apiece, or $6.7 million total, with profits estimated at $7,000 per lot. Subsequently, Georgelas and Sons, who had been retained by the Partnership to build and develop the project, erected townhouses on the remaining property.
On January 20, 1987, the Murrays filed a motion for judgment against Hadid in the Circuit Court of Fairfax County, seeking $5 million plus 10% of Hadid's profits in compensatory damages, and $10 million in punitive damages. The Murrays proceeded under two theories: (1) quantum meruit, under which they argued that Hadid deprived them of the fruits of their labor and, therefore, he was unjustly enriched at their expense; and (2) fraud, under which they argued, inter alia, that, but for Hadid's fraud, they would have purchased the property from Roper and developed it themselves.
Hadid answered with a motion for summary judgment alleging: (1) the Murrays acted illegally in contravention of the real estate brokers licensing statutes and, therefore, could not recover for their illegal acts; (2) Hadid's alleged fraud did not proximately cause the Murrays any damage; and (3) the Murrays' alleged lost business opportunity was too speculative to allow recovery. On March 1, 1987, the trial court heard argument on the motion for summary judgment and ruled that the Murrays could not recover under the quantum meruit claim because they had acted illegally under Code §§ 54.1-2100 through 54.1-2120. On the fraud claim, however, the trial court denied Hadid summary judgment because the Murrays claimed that, but for Hadid's fraud, they would have purchased the Roper property. Such a claim, the trial court ruled, was not affected by the Murrays' illegal brokerage activity.
The trial on the Murrays' fraud claim commenced on March 14, 1988. During trial, the Murrays based their $5 million claim on lost profits and what they termed reliance damages, which they argued were equal to Hadid's profits. The Murrays claimed that, but for Hadid's fraud, they would have acquired the contract on the Roper property. Therefore, they asserted *903 that their damages could be identified with subsequent transactions involving the property. The trial court, however, only allowed evidence regarding Hadid's profits from such transactions, excluding all evidence of profits derived by others involved with the property.
At the conclusion of the Murrays' evidence, Hadid made a motion to strike, which the trial court implicitly denied when it took the motion under advisement and submitted the case to the jury. The jury was instructed that if it found by clear, cogent, and convincing evidence that the Murrays were damaged, then the Murrays were "entitled to recover as damages all of the [losses] they sustain[ed] including gains prevented which [were] a direct and natural result of the fraud...."
The jury returned a verdict in favor of the Murrays, awarding them $984,000 in compensatory damages and $1 million in punitive damages. Hadid then filed a motion to set aside the jury verdict. The trial court granted Hadid's motion on May 4, 1988.
On May 26, 1988, the trial court heard the Murrays' motion for sanctions against Hadid for discovery abuse. The trial court determined that it no longer had jurisdiction over the case because more than twenty-one days had elapsed since final judgment for Hadid was entered. Thus, on June 9, 1988, the trial court denied the Murrays' motion for sanctions.
I. ILLEGAL ACTIONS
The Murrays contend that the trial court erred in ruling that they could not recover damages under their fraud claim because they acted illegally. In granting Hadid's motion for summary judgment on the quantum meruit claim, the trial court ruled that the Murrays had acted illegally as unlicensed real estate brokers in negotiating the sale of the Roper property for the valuable consideration of becoming the builders of the townhouses. Because neither of the Murrays had a real estate broker's license, the trial court correctly ruled that they had acted illegally and, therefore, could not recover for those illegal services. See Massie v. Dudley, 173 Va. 42, 3 S.E.2d 176 (1939). This ruling was not challenged, nor did the Murrays assign error to it in this appeal. Thus, the ruling became the law of the case and the Murrays cannot now complain that they did not act illegally in negotiating the sale. Rule 5:25.
The trial court, nevertheless, erred in supporting its order to set aside the jury verdict on the fraud claim with its prior ruling regarding illegality. In their quantum meruit claim, the Murrays alleged that Hadid owed them for services they had performed in obtaining the contract for him. However, in their action for fraud, the Murrays did not rely on their illegal activity as a basis for their damage claim. They did not allege, as the trial court's ruling would indicate, that due to Hadid's misrepresentations they were not compensated for their efforts in obtaining the contract for Hadid. They merely alleged that, but for Hadid's fraud, they would have bought the property themselves and they therefore sought reliance damages. While the trial court's first finding is erroneous, we must examine the court's other bases for denying recovery.
II. DAMAGES
The jury found, and the trial court admitted, that the Murrays relied to their detriment on Hadid's material misrepresentations when they surrendered the opportunity to buy the Roper tract based on Hadid's assurances that they would become the builders of the project. But in order to recover under a cause of action for fraud, a plaintiff must prove damages which are caused by his detrimental reliance on a defendant's material misrepresentation. Winn v. Aleda Const. Co., 227 Va. 304, 308, 315 S.E.2d 193, 195 (1984).
A. Proximate Cause
The trial court ruled that the damages awarded by the jury were not proximately *904 caused by Hadid's fraud. At trial, it limited the evidence to Hadid's profits or what it termed "fraud damages." It allowed the Murrays to introduce the following evidence of damages: (1) Hadid assigned the contract to the Partnership for $984,000; (2) he received 15% interest in the Partnership; (3) at the time of trial he had made approximately $917,000 in profits from the property;[1] and (4) the Partnership sold half of the property in 1986 for $6.7 million. The jury awarded the Murrays the exact amount Hadid received when he assigned the contract to the Partnership. The jury was aware of Hadid's assignment price; however, it heard absolutely no evidence with regard to what the Murrays would have done with the contract.
On appeal, the Murrays argued that the jury was entitled to believe that they could have assigned the contract for $984,000, or, alternatively, that they would have made a $917,000 profit from selling their interest in the property. The Murrays, however, introduced no evidence to support these contentions.[2] On the contrary, the Murrays' evidence at trial indicated that they would not have assigned the contract to anyone nor would they have sold their interest in the property; they argued throughout the trial that they would have developed the property themselves.
The usual remedy in an action for fraud is to restore the defrauded party to the position he held prior to the fraud. Jefferson Stand. Ins. Co. v. Hedrick, 181 Va. 824, 833, 27 S.E.2d 198, 202 (1943), citing National Bank, etc., Co. v. Petrie, 189 U.S. 423, 425, 23 S. Ct. 512, 513, 47 L. Ed. 879 (1902). In the present action, the Murrays did not actually lose anything as a result of Hadid's fraud. They are in the same position in which they were prior to the fraud. Because there was no proof that actual damages were proximately caused by Hadid's fraud, the trial court correctly set aside the $984,000 jury award.
B. Lost Profits/Business Opportunity
Finally, the trial court set aside the damage award on the basis that the Murrays' claimed damages were too speculative. At trial and on appeal, the Murrays argued that the jury's award was justified in light of the instruction on damages which stated that the Murrays were entitled to recover any "gains prevented which [were] a direct and natural result of the fraud." The Murrays argued that their "gains prevented" by Hadid's fraud were their lost opportunity to develop the property or sell the contract on the property. Thus, they are arguing that they lost some benefit they would have received if they had acquired the contract on the property.
A plaintiff is not required to prove the exact amount of his damages; however, he is required to show sufficient facts and circumstances to permit a jury to make a reasonable estimate of those damages. Manss-Owens Co. v. Owens & Son, 129 Va. 183, 205, 105 S.E. 543, 550 (1921). "It is well settled that ... prospective profits are not recoverable in any case if it is uncertain that there would have been any profits...." Sinclair v. Hamilton & Dotson, 164 Va. 203, 211, 178 S.E. 777, 780 (1935).
As previously noted, contrary to the Murrays' argument on appeal, evidence at trial indicated that they would not have assigned the contract to anyone. They argued fervently that they would have developed the property themselves and reaped tremendous profits.
The Murrays argued that, had they developed the property, they would have *905 made at least as much as the Partnership: $2.7 million from the sale of townhouses it built on the property. They also claimed they would have made the $666,666 builder's fee which was paid directly to the builder, Georgelas and Sons.
When an established business is interrupted and sustains loss, evidence of its past profits, and estimates of future profits derived therefrom, are admissible to permit an estimate of damages. Krikorian v. Dailey, 171 Va. 16, 30, 197 S.E. 442, 448 (1938).
But where a new business or enterprise is involved, the rule is not applicable for the reason that such a business is a speculative venture, the successful operation of which depends upon future bargains, the status of the market, and too many other contingencies to furnish a safeguard in fixing the measure of damages. (Citations omitted.)
Mullen v. Brantley, 213 Va. 765, 768, 195 S.E.2d 696, 700 (1973).
Prior to their interest in the Roper property, the Murrays had never built a townhouse development. Their experience in building was limited to large custom homes. Thus, the townhouse development would have constituted a new enterprise dependent upon too many contingencies to safeguard an estimate of damages. The fact that the Partnership and Georgelas and Sons profited from their development of the property gives absolutely no indication of how the Murrays would have fared. The trial court, therefore, correctly ruled that the Murrays' evidence regarding the profits made by the Partnership and the builders fees collected by Georgelas and Sons was speculative, because the Murrays did not prove that they would have performed in the same manner.
C. Punitive Damages
As the Murrays recognized in their opening brief, an award of punitive damages must be predicated upon an award of compensatory damages. Gasque v. Mooers Motor Car Co., 227 Va. 154, 159, 313 S.E.2d 384, 388 (1984). Because we have ruled that no compensatory damages were recoverable, we must necessarily deny the punitive damage award.
III. MOTION FOR SANCTIONS
The Murrays argue that their motion for sanctions against Hadid for discovery abuse was a collateral matter not disposed of by final judgment on their motion for judgment. Despite the trial court's stated intention to deal with the motion separately, the motion arose under the same cause of action upon which the trial court entered final judgment on May 4, 1988. The trial court never officially separated the motion for sanctions from the Murrays' case in chief.
"All final judgments ... shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." Rule 1:1. (Emphasis added.) The record fails to indicate that before the judgment became final the Murrays filed a motion to modify, vacate, or suspend the final judgment in order to preserve their motion for sanctions. Thus, after twenty-one days elapsed, the trial court no longer had jurisdiction over the matter.
IV. CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
STEPHENSON, J., with whom CARRICO, C.J., and THOMAS, J., join, dissenting.
STEPHENSON, Justice, with whom CARRICO, Chief Justice and THOMAS, Justice, join, dissenting.
I respectfully dissent.
I concur with the majority's conclusion in Part I of its opinion. I agree, therefore, that the trial court erred in supporting its order to set aside the verdict on the fraud claim with its prior ruling that the Murrays acted illegally.
*906 I do not agree, however, with the majority's conclusion that the jury's damage award is unsupported by the evidence. Without objection, the trial court instructed the jury that if it found its verdict in favor of the Murrays, they were entitled to recover as damages "all of the loss they sustained including gains prevented which [were] a direct and natural result of the fraud." (Emphasis added.) This instruction, therefore, became the law of the case.
The Murrays testified that, but for their reliance upon Hadid's representations, they would have purchased the property. By its verdict, the jury found this to be so. Indeed, as the trial court correctly noted, "[t]he jury has answered ... for the [Murrays] insofar as their claim that they would have purchased the property. And that would stand." Moreover, it is undisputed that Hadid was paid $984,000 to "flip" the contract six months after he had accepted it, and that Hadid's assignee later sold a portion of the property for $6,700,000.
By its verdict, the jury reasonably inferred that, had the Murrays purchased the property, they likewise could have profited. Thus, these were "gains prevented" that proximately resulted from Hadid's fraud. The Murrays' losses, therefore, were real and certain not speculative. Accordingly, I would hold that the evidence supports the jury's award of compensatory damages.
I also would hold that the evidence, viewed in the light most favorable to the Murrays, supports the jury's award of punitive damages. Indeed, there is ample evidence, both direct and circumstantial, that Hadid acted with actual malice toward the Murrays or acted under circumstances amounting to a willful and wanton disregard of the Murrays' rights. See Jordan v. Sauve and Koons, 219 Va. 448, 247 S.E.2d 739 (1978).
Therefore, I would reinstate the jury verdict, allowing both compensatory and punitive damages.
NOTES
[*] Justice Thomas participated in the hearing and decision of this case prior to the effective date of his resignation, November 1, 1989.
[1] This amount was contained in Hadid's answer to one of the Murrays' interrogatories which sought to determine the amount of profits he had made in his dealings with the Roper tract.
[2] Another theory advanced by the Murrays was that the verdict simply represented passive appreciation of the real estate between November 11, 1983, and July 27, 1984, when Hadid assigned the contract. No evidence of appreciation was introduced, and the theory is inapplicable because of Hadid's efforts in rezoning, engineering, and site planning the property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1365024/ | 194 Va. 284 (1952)
LENNA LANDES BAKER
v.
WILLIAM E. BAKER.
Record No. 3988.
Supreme Court of Virginia.
October 13, 1952.
G. H. Branaman, for the appellant.
Present, Eggleston, Spratley, Buchanan, Miller, Smith and Whittle, JJ.
1. Plaintiff filed a bill of complaint against her husband praying for a decree of divorce. A subpoena in chancery and an attached copy of the bill was served on defendant, but he made no appearance either in person or by counsel. Depositions were subsequently taken, but no notice to defendant of the taking of the depositions was attached to and returned with them when they were filed in the clerk's office. However, there was incorporated in the bill of complaint a paragraph alleging that the depositions would be taken at a given time and place. Thereafter plaintiff tendered a decree but the trial court refused to enter it on the ground that the depositions were not admissible in evidence because proper notice had not been given defendant of the time and place of their taking. Plaintiff contended that service on defendant of a copy of the bill in which the notice was incorporated was substantial compliance with section 8-307 of the Code of 1950 and that the court erred in refusing to admit the deposition and enter the decree tendered. That contention was without merit. Although the statute is liberal as to the form of such notice, it does not permit the notice to be incorporated by way of an allegation in the body of the bill of complaint. A notice to the defendant that the plaintiff will take the deposition of a witness at a specified time and place is foreign to such purpose and has no place in the bill.
2. The purpose of the required notice to an adversary of the taking of depositions is to give him the opportunity to appear and cross-examine the witness, if he so desires.
3. To accomplish its purpose, a notice of the taking of depositions should be clear and explicit. A notice which is confusing and misleading is not "reasonable" and does not meet the requirements of section 8-307 of the Code of 1950.
4. The purpose of a bill of complaint is to state the plaintiff's case for the information of the defendant in the preparation of his defense; and for the information of the court in the trial of the cause, and to fix the issues.
5. A notice to take depositions incorporated in the bill is in conflict with the terms of the subpoena, for it notifies the defendant to be present at a time and place and for a purpose different from that stated in the subpoena.
6. Under the facts of headnote 1, when combined with the necessary and proper allegations of the bill of complaint, the notice was not clear and explicit, but on the contrary was confusing and misleading. The writing served on defendant was labeled a "Bill," and the notice incorporated therein might easily have been overlooked, especially since it was not germane to the purpose of the main instrument.
7. If at the time of the commencement of a suit the plaintiff desires to give notice that depositions on his behalf will be taken at a certain time and place, this should be done by a clear and explicit notice embodied in a separate instrument and served on the defendant.
8. Rule 2:21 of the Supreme Court of Appeals, dispensing with the notice of taking proofs to any defendant as to whom a bill stands taken for confessed, is not applicable to a divorce suit, because such a bill is not taken for confessed. Unless lack of notice or an irregularity in a notice to take depositions in a divorce suit is waived by appearance, there must be proof of service or acceptance of service of proper notice.
9. A defendant in a suit may employ counsel to follow the proceeding and advise him with respect thereto without entering an appearance therein.
10. Under the facts of headnote 1, plaintiff argued that defendant did not appear in person or of record by counsel, yet he retained an attorney of the local bar, who represented him, read the evidence and initialed the decree which the lower court declined to enter, and that that constituted a waiver of legal notice of the taking of the depositions. That argument was without merit. Before an attorney may act on behalf of the defendant in a suit and waive legal notice of the taking of depositions, or consent to the entry of a decree therein, he must make known to the court in some manner that he is representing the defendant. Where the attorney fails to make an appearance of record on behalf of the defendant, in the usual way, either in the clerk's office or in court or at the taking of depositions, he is in no position to waive the required notice of the taking of depositions.
11. Under the facts of headnote 1, the trial court dismissed the cause after refusing to enter the tendered decree. That was not correct and the cause should not have been dismissed unless and until the plaintiff had been given an opportunity of taking depositions, to be read in her behalf, after proper notice to the defendant.
Appeal from a decree of the Corporation Court of the city of Waynesboro. Hon. C. G. Quesenbery, judge presiding. The opinion states the case.
Carter R. Allen, for the appellee.
EGGLESTON
EGGLESTON, J., delivered the opinion of the court.
On September 13, 1951, Lenna Landes Baker filed her bill of complaint in the court below against William E. Baker, her husband, praying for a decree of divorce a mensa on the ground of desertion. Pursuant to Rules 2:3 and 2:4, prescribed for Equity Practice and Procedure, a subpoena in chancery and an attached copy of the bill were served on the defendant on September 15, by posting at the front door of his usual place of abode. There was no appearance by the defendant either in person or by counsel.
On October 17 the depositions of certain witnesses were taken before a notary public at the office of counsel for the plaintiff at Waynesboro. While the caption stated that the depositions were taken "pursuant to notice, duly served on the defendant," no notice was attached to and returned with the depositions which were filed in the clerk's office on the day following that on which they were taken. However, there was incorporated in the bill of complaint, which is printed in full in the margin, [1] a paragraph alleging, "by way of notice to the *287 defendant," that the depositions of the plaintiff and others would be taken at the office of her counsel between the hours of nine a.m. and twelve noon on October 17. The defendant was not present either in person or by counsel at the taking of these depositions.
BILL
"Lenna Landes Baker v. "William E. Baker
c/o L. G. Dunsmore
Verona, Virginia "To the Honorable C. G. Quesenbery, Judge of the Corporation Court of the City of Waynesboro, Virginia:"
"Your complainant, Lenna Landes Baker, respectfully represents and says as follows:"
"1. That on the 14th day of April, 1945, at Waynesboro, Virginia, the complainant, whose maiden name was Lenna Mae Landes, was married to the defendant, as doth appear from a certified copy of the marriage license herewith filed;"
"2. That after the aforesaid marriage, the complainant and the defendant lived together at Waynesboro, Virginia, continuously, until the 2nd day of July, 1951, at which time the defendant deserted and abandoned the complainant and has never since lived with the complainant as his wife, and the complainant verily believes he will never live with her again;"
"3. That no childern were born to the marriage;"
"4. That the complainant and the defendant are both actual bona fide residents of the State of Virginia, and have been such residents for more than one year prior to the institution of this suit, and last cohabited at No. 353 Maple Avenue, in the City of Waynesboro, Virginia, from which address the said defendant, without just cause or excuse, deserted and abandoned the complainant; and,"
"5. That the complainant hereby alleges by way of notice to the defendant that on the 17th day of October, 1951, at the offices of G. H. Branaman, Waynesboro, Virginia, between the hours of nine o'clock a.m. and twelve o'clock noon of that date, the complainant will take the depositions of herself and other witnesses to be read in evidence in this cause, and if not begun, or if begun and not completed, the taking of the said depositions will be continued from time to time at the same place and between the same hours."
(Italics supplied.)
"Wherefore, the complainant prays as follows: (1) That a divorce a mensa et thoro be granted the complainant on the grounds of desertion; and (2) that after the lapse of two years the said a mensa divorce be merged into one of absolute divorce. (Affidavit)"
"Respectfully,"
"Lenna Landes Baker"
In the latter part of October counsel for the plaintiff presented to the lower court for entry a decree granting her a divorce a mensa, based upon consideration of the depositions which the proposed decree recited had been taken "pursuant to notice." The lower court filed a written memorandum refusing to enter the tendered decree, on the ground that the depositions were not admissible in evidence because proper notice had not been given the defendant of the time and place of their taking. On the same day on which its memorandum was filed in the clerk's office the court entered a decree denying the entry of the tendered *288 decree and dismissing the cause from the docket. From that decree the present appeal has been taken.
While the appellant concedes that service of a proper notice of the taking of such depositions was essential, she contends that service on the defendant of a copy of the bill in which the notice was incorporated was a substantial compliance with Code, | 8-307, and that the court erred in refusing to admit the depositions in evidence and enter the decree tendered.
Code, | 8-307, provides: "Reasonable notice in writing shall be given to the adverse party of the time and place of taking every deposition. It need not be in any particular form, nor served in any particular manner, but it shall be deemed sufficient in any form or served in any manner if it conveys the needed information, and is actually received a reasonable time before the time fixed for the taking."
No provision for the form of such notice is embodied in the rules governing Equity Practice and Procedure (Rule 2:1 ff. ), and accordingly the sufficiency of the notice with which we are concerned is to be determined by the language of the above statute.
Although the statute is liberal as to the form of such notice, it does not, in our opinion, permit the notice to be incorporated by way of an allegation in the body of the bill of complaint, as was done here.
The purpose of the required notice to an adversary of the taking of depositions is to give him the opportunity to appear and cross-examine the witness, if he so desires. Lile's Equity Pleading and Practice, 3d Ed., | 246, p. 141; Wigmore on Evidence, 3d Ed., Vol. V, | 1377, p. 59.
To accomplish its purpose the notice should be clear and explicit. A notice which is confusing and misleading is not "reasonable" and does not meet the requirements of the statute.
The purpose of a bill of complaint is, "(1) To state the plaintiff's case for the information of the defendant in the preparation of his defense; and (2) for the information of the court in the trial of the cause, and to fix the issues." Lile's Equity Pleading and Practice, 3d Ed., | 100, p. 61. Obviously, a notice to the defendant that the plaintiff will take the deposition of a witness at a specified time and place is foreign to such purpose and has no place in the bill. *289
Rule 2:2 prescribes the essentials of a bill of complaint. Neither in this nor any other rule is any provision made for incorporating in the bill a notice to take depositions.
Rule 2:3 requires that the plaintiff furnish to the clerk a copy of the bill to be served on each defendant.
The form of the subpoena in chancery with the attached bill of complaint is prescribed by Rule 2:4. By the subpoena the defendant is notified that "unless within twenty-one (21) days after such service response is made by filing in the clerk's office of this court a pleading in writing, in proper legal form, the allegations and charges may be taken as admitted and the court may enter a decree against such party, without further notice, either by default or after hearing evidence." According to the language of the subpoena this is all the defendant need do. He is told further that "Appearance in person is not required by this subpoena." Moreover, under the provisions of Rules 2:8 and 2:11 and Code, | 20-99, in a suit for divorce the bill is not taken for confessed, and a decree may not be entered upon the mere default of the defendant. Bailey Bailey, 21 Gratt. (62 Va.) 43, 49, 50.
A notice to take depositions incorporated in the bill is in conflict with the terms of the subpoena, for it notifies the defendant to be present at a time and place and for a purpose different from that stated in the subpoena.
When combined with the necessary and proper allegations of the bill of complaint the notice is not clear and explicit, but on the contrary is confusing and misleading. In the case before us the writing served on the defendant is labeled a "Bill," and the notice incorporated therein might easily be overlooked, especially since it is not germane to the purpose of the main instrument.
If at the time of the commencement of the suit the plaintiff desires to give notice that depositions on his behalf will be taken at a certain time and place, this should be done by a clear and explicit notice embodied in a separate instrument and served on the defendant. In this manner the defendant is given notice of the two separate steps in the suit which has been brought against him. He is told by the subpoena, with the copy of the bill attached, the nature of the cause of action, when, where and how he may make his defense to it. By the notice of the taking *290 of depositions he is told that at a specified time and place the plaintiff will take the testimony of a witness relating to the suit.
Rule 2:21, dispensing with the notice of taking proofs "to any defendant as to whom a bill stands taken for confessed," is not applicable to a divorce suit, because, as has been noted, such a bill is not taken for confessed. Rules 2:8, 2:11; Code, | 20-99. Hence, unless lack of notice or an irregularity in a notice to take depositions in a divorce suit is waived by appearance, there must be proof of service or acceptance of service of proper notice. Scott Scott, 142 Va. 31, 36, 37, 128 S.E. 599; Craddock Craddock, 158 Va. 58, 73, 163 S.E. 387.
In the appellant's brief it is said: "The defendant did not appear in person or of record by counsel, yet he retained Carter R. Allen, Esquire, of the local bar, who represented him, read the evidence and initialed the decree" which the lower court declined to enter. The intimation is that this constituted a waiver of legal notice of the taking of the depositions.
A defendant in a suit may, of course, employ counsel to follow the proceeding and advise him with respect thereto without entering an appearance therein. There is no impropriety in counsel's so representing the defendant in a divorce suit, provided there is no collusion between him and counsel for the plaintiff in the proceeding.
But before an attorney may act on behalf of the defendant in a suit and waive legal notice of the taking of depositions, or consent to the entry of a decree therein, he must make known to the court in some manner that he is representing the defendant. This is usually done by entering an appearance or filing a pleading on behalf of the defendant, signed by himself as counsel, in the clerk's office or in court. Rule 2:20 requires that "All pleadings shall be signed by counsel," if the party has counsel. Rule 2:17 requires copies of pleadings to be furnished "counsel of record." Rule 2:18 requires that drafts of orders and decrees "be endorsed by counsel of record," or that the latter be given notice of the time and place of presentation for entry. Thus, the rules contemplate that only counsel "of record" may participate in a proceeding before the court.
Where, as here, the attorney fails to make an appearance of record on behalf of the defendant, in the usual way, either *291 in the clerk's office or in court or at the taking of depositions, he is in no position to waive the required notice of the taking of depositions. He is a stranger to the proceeding, or, as the trial court expressed it in its opinion, "unknown in the case."
For these reasons we are of opinion that the lower court was correct in holding that the depositions were not admissible in evidence. Accordingly, we affirm the decree appealed from in so far as it denied the entry of the tendered decree of divorce.
But we are of opinion that the cause should not have been dismissed unless and until the plaintiff had been given an opportunity of taking depositions, to be read in her behalf, after proper notice to the defendant. It does not appear from the record that such opportunity was given her. Accordingly, we reverse the decree appealed from in so far as it dismissed the cause, and remand the cause to the lower court with instructions that it be reinstated on the docket and that the plaintiff be given leave to proceed within a reasonable time to take the depositions of her witnesses, after proper notice to the defendant, if she be so advised.
Affirmed in part; reversed in part and remanded.
NOTES
[1] "VIRGINIA: IN THE CORPORATION COURT OF THE CITY OF WAYNESBORO | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1552946/ | 48 B.R. 670 (1985)
In re SOLVATION, INC., Debtor.
Bankruptcy No. 4-84-00498-G.
United States Bankruptcy Court, D. Massachusetts.
April 29, 1985.
*671 Judy O'Neill, Hale & Dorr, Martin M. Wood, Boston, Mass., for debtor/Solvation, Inc.
Herbert Zimmerman, Wayland, Mass., George P. Ritter, Pachter, Gold & Schaffer, Los Angeles, Cal., for creditor/J.M. Rose.
MEMORANDUM AND ORDER IN RESPONSE TO A CREDITOR'S a) MOTION FOR RECONSIDERATION OF AN ORDER DISCHARGING A DEBT AND b) REQUEST TO FILE A PROOF OF CLAIM LATE
PAUL W. GLENNON, Bankruptcy Judge.
This matter comes before the Court on a motion to reconsider this Court's January 30, 1985 order confirming the discharge of any claims against Solvation, Inc. (the "Debtor") by J.M. Rose, Inc. ("Rose"), an accounting corporation. Because the basis for the Court's grant of the discharge of Rose's claim was the absence of a filing of a proof of claim by Rose, Rose included in its memorandum in support of its motion for reconsideration a request to file a late proof of claim.
FACTS
The Debtor filed a voluntary Chapter 11 petition on October 5, 1984. In its schedules and statement of affairs, the Debtor scheduled Rose's claim as contingent. The Debtor had filed a suit in the United States District Court, District of Massachusetts against Rose on November 8, 1983. On December 2, 1983, Rose filed an answer to the Debtor's complaint and a counterclaim against the Debtor asserting misrepresentation. On June 12, 1984 the entire suit was transferred to the United States District Court, District of California.
Counsel of record in the above-mentioned suit was originally Herbert E. Zimmerman ("Zimmerman") of Wayland, Massachusetts. On February 6, 1985, Rose filed a notice of substitution of Pachter, Gold & Schaffer of Los Angeles, California ("Rose's California attorneys") for Zimmerman.
On November 8, 1984, the Debtor mailed to Rose at 23046 Oxnard Street, Wooland Hills, California,[1] a copy of the Order Fixing *672 Bar Dates for Filing of Proofs of Claim. Among the dates listed in that order was the December 17, 1984 bar date for all claims other than those for damages caused by the Debtor's rejection of executory contracts.
On January 2, 1985, the Debtor filed an objection to Rose's claim and noticed a hearing on the objection for January 30, 1985 in Worcester, Massachusetts. Zimmerman was the attorney serviced for Rose, not Rose's California attorneys.
On January 28, 1985, the Debtor withdrew its objection to the claim and filed a request for an order discharging the debt. Again, service was made on Zimmerman and not on Rose's California attorneys, but the withdrawal and the request were forwarded to California.
Rose's California attorneys interpreted the withdrawal to be a withdrawal also of the January 30, 1985 hearing and did not, consequently, make an appearance on that day. The hearing was held, however, and this Court entered an order disallowing Rose's claim because Rose had not timely filed a proof of claim.
In response to the Debtor's request to disallow Rose's claim, Rose filed an objection on February 4, 1985. The objection arrived after the request had already been granted by the January 30, 1985 order, causing the Debtor to file, on February 11, 1985, a response noting that fact.
A copy of the Court's January 30, 1985 order was subsequently received on February 11, 1985 by Rose's California attorneys. On February 14, 1985, Rose filed a Motion for Reconsideration of the January 30, 1985 Order and, on April 4, 1985, filed both a memorandum in support of that motion and a proof of claim.
On April 8, 1985, the Debtor filed its objection both to the motion for reconsideration and the proof of claim. A hearing on the motion was held on April 9, 1985.
DISCUSSION
As a basis for the reconsideration, Rose asserts that its California attorneys had had no notice of the January 30, 1985 hearing or the Debtor's request for an order confirming the discharge of the Debtor's contingent debt to Rose. Rose also asserts that there were facts material to Rose's claim which were not before the Court on January 30 and which the Court could not have considered in entering its order. The main thrust of Rose's motion for reconsideration, as evidenced by its memorandum in support of its motion, is to receive from this Court an extension of time in which to file a late proof of claim.
The enlargement of time with respect to acts required under the bankruptcy rules is generally achieved via Bankruptcy Rule 9006(b).[2] The court's authority to extend a time requirement is not unlimited, however, and the extension made with respect to certain rules is "only to the extent and under the conditions stated" in those rules. Rule 9006(b)(3). The rule which establishes the time in which a proof of claim must be filed, Rule 3002(c), is subject to that limitation. "Excusable neglect", the standard generally applied when using Rule 9006(b), is not, therefore, used by the Court in determining whether or not to allow a claim to be filed after the expiration of time permitted under Rule 3002(c). In re Kennedy, 40 B.R. 558 (Bankr. N.D.Ala.1984). Rather, the Court applies the standard set by the rule itself, which specifically lists only six exceptions under which an extension may be granted. As none of the six is applicable in this case, the Court must look for other authority by which to grant the extension for the late filing of a proof of claim.
As stated in In re Evanston Motor Co., Inc., 26 B.R. 998, 1001 (N.D.Ill. 1983), a claim is "more than merely a debt owed the creditor by the estate, it also *673 denotes the creditor's intention to attempt to pursue the estate's liability on the debt." As a demand made against the estate, a proof of claim must be properly filed within the time limits set by the court so that Congress' objective of finality in bankruptcy cases may be achieved. Hoos & Co. v. Dynamics Corp., 570 F.2d 433, 437-39 (2d Cir.1978). To be properly filed, a claim must appear in the files of the bankruptcy court. In re Evanston Motor Co., Inc., 26 B.R. at 1004. If a formal proof of claim has not been filed prior to the bar date but the bankruptcy record reflects anything to show the existence, nature and amount of a claim, leave can be granted to file an amended proof of claim. In re Pizza of Hawaii, Inc., 40 B.R. 1014, 1016 (D.Hawaii 1984). A creditor cannot rely, however, on the mere listing of the creditor's claim in a debtor's schedule as a basis for a belated amended proof of claim. In re Greene, 33 B.R. 1007, 1009 (D.R.I.1983).
In the case, sub judice, no formal proof of claim was filed by Rose prior to the December 17, 1984 bar date. Nor was anything else filed in the bankruptcy record which could be classified as a claim for amendment purposes. All that was recorded was a contingent debt listed by the Debtor on its schedules. Since Rose cannot qualify for the filing of an amended claim, this Court must consider other avenues by which to grant an extension.
One such avenue is Rose's assertion that Pepper v. Litton, 308 U.S. 295, 305 n. 11, 60 S. Ct. 238, 244, n. 11, 84 L. Ed. 281 (1939), is authority for the granting of an extension for equitable reasons. The court in In re Pigott, 684 F.2d 239 at 243 (3d Cir.1982), found, however, that reliance on the dictum in Pepper was misplaced, and, consequently, reversed a decision which allowed the filing of untimely proofs for equitable reasons. The Pigott court noted that the issue in Pepper was not one of timeliness but of whether the bankruptcy court's equitable powers could be exercised to deny a judgment holder priority when the judgment was fraudulently obtained. Further criticism of the Pepper dictum is found in In re Martin Edsel, Inc., 228 F. Supp. 538, 540 (D.N.H.1963). That court called the dictum "misleading" and "dubious commentary on the state of the law". Id. (citations omitted). Although the court in In re Comac Co., 402 F. Supp. 43 (E.D. Mich.1975), states that "even dictum is entitled to serious consideration by the lower federal courts when it appears in an opinion by the Supreme Court," Id. at 45, the Comac court limited its interpretation of the Pepper dictum to a grant of equitable powers to the bankruptcy court for the purpose of relieving mistakes induced by error of its own officers.
With respect to the claim filed by Rose, there is no showing of inadequate or erroneous notice of the Court's Order Fixing Bar Dates for Filing Proofs of Claim, as was the basis in Comac,[3] for the extension of the period for filing claims. Rose was listed on the list of creditors and schedules filed with the Debtor's petition as being located at "23046 Oxnard Street, Woodland Hills, California 91365." The Debtor, consequently, mailed a copy of the bar date order to that address on November 8, 1984. As no request was made of the Debtor to use a different address and no proof of claim containing a different address was duly filed, this court finds that notice of the bar date was in keeping with Bankruptcy Rule 2002(g)[4] and was, therefore, properly given to Rose.
*674 Rose further asserts that this Court should grant it a filing extension because Rose's California attorneys were never included on the service list in this case. Rose asserts that, when a creditor has received notice but its attorney has not, the bankruptcy court can exercise its equitable power and extend the filing date for claims. In re H. & C. Table Co., 457 F. Supp. 858, 860 (W.D.Tenn.1978). H. & C. Table is not authority for that proposition, however, unless the creditor is a government agency and its attorney is the United States attorney. The court in H. & C. Table applied its equitable powers and allowed late filed claims because the United States attorney had not been noticed. The H. & C. Table court had correctly relied upon Bankruptcy Rule 2002(j)'s requirement that, to be complete, notification of a debt to a government agency must be made not only to the agency but also to the person in the best position to protect the interests of the government, the United States attorney. Rule 2002(j) has no application to Rose's claim, however, leaving Rose without a basis for its request for a filing extension.
Delay in filing this claim may have resulted from the claimant's own confusion as to what was actually proceeding in the bankruptcy court, but that, in and of itself, is not a basis for an extension. Notice of a bar date is clear warning that claims not filed by that date are to be disallowed. Were a claimant uncertain of what constituted the filing of its claim or unclear as to the proceedings of a bankruptcy court, it would be incumbent upon that claimant to take reasonable steps prior to the bar date to insure that all confusion had been clarified and that is rights had been preserved. In the instant case, despite proper notification of the bar date, Rose neglected to file a claim.
The bankruptcy court does not have the discretion to permit one creditor to file a late claim and thereby reduce the possible recovery for all other creditors who met the requirements of the statute and the rules. In re Pigott, 684 F.2d 239, 243 (3d Cir.1982); In re Underground Utility Construction Co., Inc., 35 B.R. 588, 589 (Bankr.S.D.Fla.1983). "The other creditors are entitled to assume that this court will enforce the rules in the distribution of this estate." In re Underground Utility, 35 B.R. at 589.
ORDER
In accordance with the above, Rose's motion for reconsideration of this Court's January 30, 1985 Order disallowing any claim by Rose is DENIED as is Rose's request to file a proof of claim late.
NOTES
[1] This address was listed for Rose on the Debtor's list of creditors and schedules filed with its petition.
[2] Rule 9006(b) permits the court to enlarge the period of time for performing an act after the expiration of the original period of time "where the failure to act was the result of excusable neglect."
[3] Despite the fact that "the law should be strictly observed with regard to time limitations for the filing of claims," In re H. & C. Table Co., Inc., 457 F. Supp. 858, 860 (W.D.Tenn.1978), some courts, in addition to the Comac court, have in rare circumstances allowed late filed claims. Most have involved a known creditor who had had no notice of the bankruptcy proceeding. In re Intaco Puerto Rico, Inc., 494 F.2d 94 (1st Cir.1974); In re Harbor Tank Storage Co., 385 F.2d 111 (3d Cir.1967); In re Sullivan Ford Sales, Inc., 25 B.R. 400 (Bankr.D.Me.1982).
[4] Rule 2002(g), as follows, dictates what address is to be used in noticing a creditor of the "date fixed for the filing of claims . . . as provided in Rule 3002(c)." Bankruptcy Rule 2002(a).
Addresses of Notices. All notices required to be mailed under this rule to a creditor, equity security holder, or indenture trustee shall be addressed as he or his authorized agent may direct in a request filed with the court; otherwise, to the address shown in the list of creditors or the schedule whichever is filed later, but if a different address is stated in a proof of claim duly filed, that address shall be used.
Bankruptcy Rule 2002(g). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584639/ | 815 F.Supp. 1448 (1992)
Jane DOE, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS, PALM BEACH COUNTY, FLORIDA, Defendants.
No. 91-8069-CIV.
United States District Court, S.D. Florida.
June 25, 1992.
*1449 Isidro M. Garcia, Lake Worth, FL, for plaintiff.
Denise J. Bleau, Asst. Co. Atty., West Palm Beach, FL, for defendant.
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS
HIGHSMITH, District Judge.
THIS CAUSE comes before the Court upon Defendant Board of County Commissioners' ("Board") Motion for Judgment on the Pleadings, pursuant to Fed.R.Civ.P. 12(c). For the reasons more fully stated below, the Court denies the Board's motion.
BACKGROUND
On January 2, 1992, Plaintiff Doe, an employee of the Board, filed her Second Amended Complaint in this action, alleging that the Board had violated her rights under various federal and state law provisions. (D.E. # 23.) In Count IV of the Second Amended Complaint, Doe alleges a cause of action for intentional infliction of emotional distress.[1] The Board seeks a judgment on the pleadings, as to Count IV only, on the following two grounds:
(1) Doe fails to state a claim for intentional infliction of emotional distress; and
(2) Doe fails to allege sufficient facts to establish the Board's vicarious liability for Doe's emotional distress.
STANDARD OF REVIEW
Federal district courts have applied a "fairly restrictive standard in ruling on motions for judgment on the pleadings." 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1368 (1990). To obtain a judgment on the pleadings, the moving party must clearly establish that no material issue of fact remains unresolved and that it is entitled to judgment as a matter of law. Greenberg v. General Mills Fun Group, Inc., 478 F.2d 254, 256 (5th Cir.1973).[2] Moreover, the district court must view the facts presented in the pleadings, and all inferences drawn thereof, in the light most favorable to the non-moving party. Wright & Miller, at § 1368 (citing Miami Herald Pub. Co. v. Ferre, 636 F.Supp. 970, 974 (S.D.Fla.1986)). Indeed, allegations in the complaint must be accepted as true. Swerdloff v. Miami Nat'l. Bank., 584 F.2d 54, 57 (5th Cir.1978).
The standard of review for judgment on the pleadings is almost identical to the standard used to decide motions to dismiss. Ferre, 636 F.Supp. at 974. Therefore, the district court may issue a judgment on the pleadings only if it is beyond doubt that the *1450 non-movant can plead no facts that would support the claim for relief. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988) cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).
DISCUSSION
I. Intentional Infliction of Emotional Distress
The Board first argues that Doe has failed to make out a prima facie case for intentional infliction of emotional distress. The Court disagrees.
In Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla.1985), the Florida Supreme Court recognized the tort of intentional infliction of emotional distress as set forth in RESTATEMENT (SECOND) OF TORTS § 46 (1965). Section 46 states that:
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
RESTATEMENT (SECOND) OF TORTS § 46(1) (1965).
In cases like Doe's, where the plaintiff alleges a mental handicap, the Restatement specifically provides that outrageous conduct:
may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.
RESTATEMENT (SECOND) OF TORTS § 46 cmt. f (1965) (emphasis added).
In her Second Amended Complaint, Doe alleges that her supervisor, Sheri Kass:
(1) Knew of the mental handicap;
(2) Harassed Doe for absences caused by the handicap;
(3) Harassed Doe for tardiness that resulted from treatment necessary for the handicap; and
(4) Maliciously pestered Doe with intrusive questions about the nature and extent of the handicap.
(D.E. # 23, at ¶ 11.)
Doe further alleges that Kass' conduct was "outrageous" (D.E. # 23, at ¶ 27.) and that such conduct caused her to suffer severe emotional distress. (D.E. # 23, at ¶ 28.)
Absent Doe's special circumstances, Kass' alleged harassment and pestering of Doe would not qualify as extreme and outrageous conduct in a work environment.[3] However, given Doe's allegation of a mental handicap, the Court finds that Doe has pled sufficient facts to withstand a motion for judgment on the pleadings.
II. Vicarious Liability of the Board
As a fallback argument, the Board contends that even if Doe were entitled to proceed to trial for the tort of intentional infliction of emotional distress, Doe has failed to allege sufficient facts to establish the Board's vicarious liability for Kass' conduct.
An employer is vicariously liable for its employees' conduct when the employee acts within the scope of his employment. Collazo v. John W. Campbell Farms, 213 F.2d 255, 258 (5th Cir.1954); Whetzel v. Metropolitan Life Ins. Co., 266 So.2d 89, 91 (Fla. 4th DCA 1972). Whether an employee has acted within the scope of his employment is a factual issue reserved to the jury. Parsons v. Weinstein Enters., Inc., 387 So.2d 1044, 1046 (Fla. 3rd DCA 1980); McWain v. Greyhound Lines, Inc., 357 So.2d 780, 781 (Fla. 3rd DCA 1978).
Doe alleges that Kass harassed her on account of tardiness and absences. Because monitoring a subordinate's attendance would normally fall within the scope of a supervisor's *1451 employment, the Court finds that Doe's allegations are sufficient to create a factual issue on the question of whether Kass acted within the scope of her employment. Therefore, the Court finds that judgment on the pleadings on the issue of the Board's vicarious liability would be inappropriate.
CONCLUSION
Thus, it is hereby,
ORDERED AND ADJUDGED that
the Board's Motion for Judgment on the Pleadings is DENIED.
DONE AND ORDERED.
NOTES
[1] In their memoranda, the Board and Doe incorrectly refer to this count as Count III.
[2] All cases decided by the former Fifth Circuit Court of Appeals prior to the close of business on September 30, 1981, are binding on the Eleventh Circuit and on all district courts within the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).
[3] Although courts have recognized that emotional distress can be an inherent aspect of the employment relationship whenever there is a reprimand, demotion, or discharge, they have generally been unwilling to find such employment-related conduct outrageous. Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 Stan.L.Rev. 1, 9 (1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2462048/ | 752 S.W.2d 155 (1988)
ALLIED CHEMICAL CORPORATION, et al., Appellants,
v.
Jay DeHAVEN, et al., Appellees.
No. B14-87-038-CV.
Court of Appeals of Texas, Houston (14th Dist.).
May 12, 1988.
Rehearing Denied June 16, 1988.
*156 Carol S. Butner, Roger Townsend, M.S. Ackerman, Houston, Jim Hughes, Rockport, for appellants.
John L. Russell, W. James Kronzer, Linda R. Harvey, Houston, for appellees.
Before PAUL PRESSLER, MURPHY and ELLIS, JJ.
OPINION
ELLIS, Justice.
Allied Chemical Corporation appeals from summary judgment granted Jay DeHaven, R. Foy Phillips, and Charles D. Reams, appellees. Finding that material fact issues exist, we reverse the grant of summary judgment and remand the cause to the trial court for further proceedings consistent with this opinion.
The underlying law suit concerns three contracts, executed in 1974 by Steve Novak and by representatives of Allied Chemical Corporation ("Allied"), defendants in the trial court. All the contracts concerned the exchange and sale of chemicals used in the *157 production of fertilizer. The first two contracts, those appellees seek to enforce, were signed on September 28, 1974. A third contract was executed four days later, on October 2, 1974.
Appellees contend that Novak, in negotiating and in signing the contracts, was representing a partnership of four individuals: Jay DeHaven, Steve Novak, Foy Phillips and Charles Reams. DeHaven, the original plaintiff, alleged that after Allied had entered into two valid, written agreements with the partnership, Allied vice president L.M. Gambrell bribed Novak to execute a new contract with terms much more favorable to Allied, superseding the previous documents. DeHaven prayed that the trial court declare the later agreement to be void and enter judgment against Allied, Novak, and other defendants, jointly and severally, for an amount equal to the difference between that which would have been paid under the earlier contracts and that actually received by the partnership.
In its answer to the suit, Allied specifically denied that any partnership existed or that any payments were made to Novak with an improper motive. It averred that all its dealings were transacted with Novak individually and all payments made by Allied to him were made in good faith. Further, Allied affirmatively pleaded that if any enforceable agreements existed prior to the contract executed on October 2, 1974, those prior agreements were novated and extinguished by the express terms of the October 2 agreement.
During discovery, each of the four alleged partners, as well as the former vice president of Allied, L.M. Gambrell, and an Allied manager, I.W. Swisher, were deposed. Novak and Gambrell refused to testify, invoking their fifth amendment rights in response to every question. In response to an order of the trial court, Allied filed an affidavit stating that it had no corporate knowledge in addition to or different from that given by I.W. Swisher.
DeHaven moved for summary judgment against Allied based upon the pleadings, the affidavits, the deposition testimony, and the exhibits, including the three executed contracts, the written partnership agreement, and cancelled checks which traced the funds paid to Allied and disbursed by Allied. In its response to the motion, Allied asserted that there were issues of material fact precluding the grant of summary judgment on the claims of DeHaven and there were additional material fact issues on its affirmatively pleaded defense of novation. We agree.
The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Appellees have failed to meet this burden. In order to be entitled to judgment appellees had to establish as a matter of law (i) that a partnership existed on September 28, 1974, when the first two contracts were signed, (ii) that Novak signed the first two contracts on behalf of the partnership, not on behalf of himself as an individual, and (iii) that the third contract was not a novation of the first two contracts.
As proof of the existence of the partnership on September 28, appellees rely on a partnership agreement and on the deposition testimony of DeHaven and Phillips. The partnership agreement offered as summary judgment proof is dated October 2, 1974, four days after the contracts appellees seek to enforce were executed. It does not establish as a matter of law that the partnership existed on September 28, 1974. As for the deposition testimony, appellees assert that the statements of DeHaven and Phillips that the partnership was in existence by August 1974 are uncontroverted. They contend that even though the two are interested witnesses, summary judgment may be based on uncontroverted testimonial proof of an interested witness if the proof is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex.R.Civ.P. 166a(c). Without doubt, DeHaven and Phillips are interested witnesses. However, we do not agree with appellee that their testimony as to the oral agreement could have *158 been readily controverted. The only individuals with personal knowledge of their intent to form a partnership are the four partners. Three of the four, DeHaven, Phillips, and Reams, stand to benefit from proof that it existed as early as August. The fourth, Novak, has refused to testify as to the partnership's existence or non-existence, invoking the fifth amendment. Allied cannot compel his testimony. Self-serving statements of interested parties, testifying as to what they knew or intended, do not meet the standards of Texas courts for summary judgment. See Bessent v. Times-Herald Printing Col, 709 S.W.2d 635 (Tex.1986); Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729 (Tex.1985) (dealing with interested party affidavits made to establish the absence of malice). Issues of intent and knowledge are not susceptible to being readily controverted and are inappropriate for summary judgment. Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 231 (Tex.App. Tyler 1982, writ ref'd n.r.e.) We find that the partnership agreement taken with the proof of the interested witnesses gives rise to a question of material fact as to when the four men agreed to become partners.
We next consider the related and more critical question: whether the summary judgment proof establishes as a matter of law that Novak executed the September 28 contracts as a representative of the partnership. In support of their position appellees rely upon the contracts, the deposition testimony of DeHaven and Phillips, and a document prepared by Allied.
Each contract bore the heading:
EXCHANGE AGREEMENT
[number]
STEVE NOVAK
In the body of the agreements, the contracting parties were designated as "Allied" and "Novak."
The contracts dated September 28, 1974, were executed in the following form:
ACCEPTED:
/s/ Steve Novak /s/ I. Swisher
STEVE NOVAK ALLIED CHEMICAL CORPORATION
By: I. Swisher, Director,
Agricultural Sales & Supply
Similarly, the contract dated October 2, 1974, was signed by Novak, without designation of a representative capacity, and by Allied. L.M. Gambrell's name without title was substituted for "I. Swisher, Director."
ACCEPTED:
/s/ Steve Novak /s/ L.M. Gambrell
STEVE NOVAK ALLIED CHEMICAL CORPORATION By: L.M. Gambrell
The four corners of the document make no reference to the partnership or to any of those claiming to be partners. From the face of the document, including its title, its body, and its signature, it appears to be a contract between Steve Novak, an individual, and Allied.
During his deposition, DeHaven was asked why the partnership's name was not mentioned on the contract. He responded, "When I brought up the question as to why, Steve said that Gambrell and Allied wanted to do business with an individual that they knew and not with a partnership that they didn't know. This was a demand made by Allied." The contracts together with this testimony of DeHaven certainly raise an issue as to the actual parties to the contract. Even if appellees' summary judgment proof were to establish the existence of a partnership and Allied's knowledge of that partnership as a matter of law, appellees have not proved as a matter of law that Allied agreed to contract with the partnership. Regardless of the desires of the partnership or the authority given to Novak by the partnership, Allied was free to refuse to enter a contract for hundreds of thousands of dollars with a business entity that could offer no documentary proof of its existence. This testimony of DeHaven does not establish conclusively that Novak signed the contract on behalf of the partnership. To the contrary, it tends to establish that DeHaven knew that Novak had contracted on behalf of himself rather than on behalf of the partnership.
*159 In support of their motion for summary judgment, appellees further relied upon a document prepared by Allied and authenticated by Mr. Swisher at his deposition. It is entitled "Background Information Relative to Allied-Steve Novak Exchange (No. AX-566)." As evidence that Allied was dealing with the partnership, appellees quote the following from the document: "Both the superseded and final agreements were signed on behalf of the other party by Mr. Steve Novak." (Emphasis added.)
We do not find support for appellees argument in this quotation. It begs the seminal question: Who were the parties to the contracts? The first sentence of the document states: "Allied and Steve Novak, an individual, executed an exchange agreement on October 2, 1974." (Emphasis added). Reading the two sentences together we do not find conclusive proof that Allied contracted with Steve Novak in a representative capacity.
Appellees further rely on a second quotation: "Mr. Matthiesen [an Allied employee] states that he has no knowledge of any negotiations between Allied and any of the parties between the time of the above and the signing of the agreements on September 28, 1974." (Emphasis added.) This statement also must be read in the context of the document. The immediately preceding paragraph refers to Gardinier, a company which had also offered to buy anhydrous ammonia from Allied. As used, the term is ambiguous; it is just as probable that "parties" referred to Novak and Gardinier as it is probable that it referred to Novak and other individuals named no-where else in the document.
In reviewing the grant of summary judgment, the appellate court must accept as true the proof in favor of the non-movant, indulge every reasonable inference and resolve all doubts in its favor. El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987). We hold that the depositions and documentary evidence raise issues of material fact as to the existence of a partnership and as to the parties to the contract. Appellees have not met their burden of showing that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Appellant's point of error, complaining of the grant of summary judgment, is sustained.
Although our previous findings are dispositive of this appeal, we further note that Allied pleaded an affirmative defense of novation. If the party opposing a summary judgment relies on an affirmative defense, it must come forward with summary judgment proof sufficient to raise an issue of fact on each element of the defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). Allied pleaded and presented proof that (i) there was a previous valid obligation (the September 28 contracts that appellees attempt to enforce), (ii) all parties agreed to a new contract (the October 2 contract signed by the same parties), and (iii) the old contract was extinguished (an express provision in the October 2 contract). Allied alleged that the October 2 contract was a good faith modification of the earlier agreements. The face of the documents show that Steve Novak was to supply urea from a different source under the September contract than under the October contract. Allied further alleged that the September contracts required Novak to purchase the urea from a higher priced supplier than that to be used in the October contract. Novak was thus enabled to make a larger profit under the October contract. In return, Allied was to receive greater consideration. An agreement modifying a contract needs no consideration to be binding if the modification is performed in good faith. Tex.Bus. & Com. Code Ann. § 2.209(a) and comment 2 (Tex. UCC) (Vernon 1968). Whether there was consideration for the modification or whether the modification was made in good faith are issues for the jury.
The grant of summary judgment was improper. We reverse the judgment and remand the cause to the trial court for further proceedings consistent with this opinion. | 01-03-2023 | 10-30-2013 |
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