url
stringlengths 54
59
| text
stringlengths 0
3.41M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/2896508/
|
NO. 07-07-0392-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 29, 2008
______________________________
EDDIE RIOS A/K/A EDDIE RIOS WHITE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF HUTCHINSON COUNTY;
NO. 35,685; HONORABLE FAYE BLANKS, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Eddie Rios, appeals from an adjudication of guilt entered by the trial court
on April 25, 2007. After hearing evidence on the issue of punishment, the trial court
assessed a term of confinement of 365 days in the Hutchinson County Jail. We dismiss
for want of jurisdiction.
Factual and Procedural Background
Appellant pleaded guilty, pursuant to a negotiated plea agreement, on July 19, 2006,
to the misdemeanor offense of resisting arrest. In accordance with the plea agreement,
the trial court deferred entering an adjudication of guilt and placed appellant on community
supervision for a period of one year. Appellant did not appeal the entry of the deferred
adjudication. Thereafter, the State filed its first amended motion to proceed with
adjudication on February 7, 2007. The State’s amended motion alleged appellant had 1)
failed to report to his supervision officer for the months of November and December 2006
and January 2007, 2) failed to pay his community supervision fee and his administration
fee, and 3) committed the offense of assault. The trial court conducted a hearing on the
issue of adjudication on March 27, 2007. During the hearing, appellant objected to the
receipt of evidence concerning the new offense, alleging that since the prosecuting
authority for the felony offense, the District Attorney for the 316th Judicial District, had not
sought an indictment and the restitution owed the victim had been made part of a plea
agreement on an unrelated felony, the evidence was precluded under the theory of double
jeopardy. The trial court overruled the objection and proceeded to hear the evidence. At
the conclusion of the hearing on the motion to adjudicate, the trial court adjudicated
appellant guilty of the underlying offense of resisting arrest. After a separate hearing on
punishment, held on April 25, 2007, the trial court assessed punishment at confinement
in the county jail for a period of 365 days. This appeal followed.
Through one issue appellant now claims that the trial court abused its discretion by
sentencing appellant to one year in jail because the State should have been barred from
2
litigating the motion to adjudicate guilt based upon the doctrine of collateral estoppel. We
dismiss for want of jurisdiction.1
Analysis
The applicable provision of the Code of Criminal Procedure in force at the time of
appellant’s hearing controls the disposition of this case.2 This provision was amended and
is now codified as article 42.12 section 5(b) to provide that a defendant in an adjudication
proceeding has the same rights to a review of the trial court’s decision to adjudicate as any
other defendant in a revocation of community supervision proceeding. See TEX . CRIM .
PROC . CODE ANN . § 42.12(5)(b) (Vernon Supp. 2007). The new provision is applicable to
cases heard on or after June 15, 2007.
Accordingly, appellant’s rights to appeal the adjudication is governed by the former
statute. The Texas Court of Criminal Appeals has spoken to this issue and has uniformly
held that the trial court’s decision to adjudicate, under the former statute, was absolutely
discretionary and not subject to review. See Davis v. State, 195 S.W.3d 708, 710
1
We note that the alleged ground of error does not comport with the objection made
at trial. See TEX . R. APP. P. 33.1(a)(1). At trial appellant objected to the evidence based
on the theory of double jeopardy. In his brief appellant alleges that the State’s evidence
was barred under the theory of collateral estoppel. The two are not the same.
2
Former article 42.12 section 5(b) provided that a defendant was entitled to a
hearing limited to the issue of whether the court proceeds with adjudication. It further
provided that, “No appeal may be taken from this determination.” See Act of May 27,
1965, 59th Leg., R.S., Ch. 722, § 1, 1965 Tex. Gen. Laws 317, 489, amended by Act of
May 2, 1975, 64th Leg., R.S., Ch. 231, § 1, 1975 Tex. Gen. Laws 572, 572 amended by Act
of May 28, 2007, 80th Leg., R.S., Ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (current
version at Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2007)) (citing
relevant statutory history).
3
(Tex.Crim.App. 2006). Therefore, we have no jurisdiction to review the trial court’s decision
to adjudicate appellant guilty of the offense of resisting arrest.
However, appellant couches his error in terms of abuse of discretion in sentencing
appellant. This would seem to allow us to review the decision to assess appellant’s
punishment to one year in the county jail. See Hogans v. State, 176 S.W.3d 829, 833
(Tex.Crim.App. 2005). However, a closer read of the record reveals, that despite the
wording of appellant’s issue, the alleged error occurred during the adjudication phase of
the trial. As stated by the Hogans opinion, “the asserted error must directly and distinctly
concern the second phase; the claim must, on its face, relate to the sentence imposed, not
to the decision to adjudicate.” Id. at 834. Appellant is complaining of the admission of
evidence that occurred during the adjudication phase. As such, it is not appealable. Davis,
195 S.W.3d at 710. Accordingly, we must dismiss the appeal for want of jurisdiction.
Conclusion
Having determined we do not have jurisdiction to entertain this appeal, the same is
dismissed.
Mackey K. Hancock
Justice
Do not publish.
4
|
01-03-2023
|
09-08-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/1107694/
|
961 So.2d 166 (2007)
Keith SISTRUNK
v.
SIKORSKY SUPPORT SERVICES, INC.
2050622.
Court of Civil Appeals of Alabama.
January 5, 2007.
*167 Steven K. Goozée of Goozée, King & Horsley, LLP, Birmingham, for appellant.
Steadman S. Shealy, Jr., of Cobb, Shealy, Crum & Derrick, P.A., Dothan, for appellee.
BRYAN, Judge.
Keith Sistrunk appeals a workers' compensation judgment insofar as it determined that an injury to Sistrunk's left shoulder was not compensable under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Because we conclude that the trial court misapplied the applicable law, we reverse the judgment insofar as it determined that the injury to Sistrunk's left shoulder was not compensable, and we remand the case.
Sistrunk worked as a mechanic for Sikorsky Support Services, Inc. Sistrunk sued Sikorsky Support, seeking workers' compensation benefits for injuries to his right shoulder. Sistrunk amended his complaint to allege that he also had injured his left shoulder by overcompensating with his left arm for his right-shoulder injuries. Sistrunk and Sikorsky Support later stipulated that Sistrunk had sustained compensable injuries to his right shoulder as a result of accidents at work on September 20, 2000, and September 17, 2002. The case proceeded to trial, in *168 which the only two issues to be determined by the trial court were: (1) the nature and extent of Sistrunk's disability; and (2) whether the injury to Sistrunk's left shoulder was a compensable injury under the Alabama Workers' Compensation Act.
At trial, the trial court received oral testimony from Sistrunk and Dana Davis, an environmental-health-and-safety manager employed by Sikorsky Support. The trial court also received the deposition testimony of Sistrunk and Dr. Dexter Walcott, who had treated Sistrunk after his September 2002 accident. In his deposition testimony, Dr. Walcott testified that he placed Sistrunk on light-duty work restrictions following the accident in September 2002 in which Sistrunk injured his right shoulder. The light-duty work restrictions imposed by Dr. Walcott included no heavy lifting with the right arm and no overhead work with the right arm. Dana Davis testified that Sistrunk's light-duty activities consisted of shredding paper and sorting small parts, such as nuts, bolts, and washers.
Dr. Walcott testified that Sistrunk first complained of an injury to his left shoulder in December 2002. Sistrunk testified that he progressively began to experience pain in his left shoulder following the injuries to his right shoulder. Sistrunk informed Dr. Walcott that he believed that the left shoulder had been injured because of overuse of the left arm while Sistrunk's right arm was injured. Dr. Walcott diagnosed Sistrunk's left-shoulder injury as a torn rotator cuff.
Dr. Walcott opined that Sistrunk's left-shoulder injury was not related to the light-duty work that Sistrunk had been performing after the September 2002 accident. Dr. Walcott stated that Sistrunk's left-shoulder injury "could" be related to "overcompensation" for the right-shoulder injuries and that it was "possible" that the left-shoulder injury was related to this "overcompensation." It appears that Dr. Walcott's use of the word "overcompensation" in this context may have been a reference to "overcompensation" at work only. Dr. Walcott testified that it was "probable" that Sistrunk's left-shoulder injury was due to "overcompensation" if Sistrunk performed no other activities with his left arm other than the light-duty activities that he performed while at work. Dr. Walcott also testified that Sistrunk would not have experienced "overcompensation of his left shoulder" were it not for the injuries to his right shoulder.
On April 6, 2006, the trial court entered a judgment determining that Sistrunk had sustained a permanent partial disability as a result of the injuries to his right shoulder and that Sistrunk's left-shoulder injury was not compensable under the Alabama Workers' Compensation Act. Sistrunk timely appealed the judgment to this court.
Section 25-5-81(e), Ala.Code 1975, provides the applicable standard of review in workers' compensation cases:
"(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
"(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence."
On appeal, Sistrunk argues that the trial court erred by concluding that the torn-rotator-cuff injury to his left shoulder was not compensable. It is undisputed that the injuries to Sistrunk's right shoulder are compensable. Sistrunk argues that the injury to his left shoulder is compensable pursuant to the "successive-compensable-injury test."
*169 "Our supreme court adopted the successive-compensable-injury test in Ex parte Pike County Commission, 740 So.2d 1080 (Ala.1999). The court explained the test as follows:
"`When determining whether a successive injury is compensable, the general rule is that "[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant's own intentional conduct." 1 Larson, [Larson's Workers' Compensation Law], § 13.00 [(1998)]. In applying this rule . . ., the Supreme Court of Appeals of West Virginia held:
"`"[I]f a worker's compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment. If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the claimant's customary activity in light of his condition, then such aggravation is not compensable.
"`". . . . "
"`Wilson v. Workers' Compensation Comm'r, 174 W.Va. 611, 616, 328 S.E.2d 485, 490 (1984); see also Lou Grubb Chevrolet, Inc. v. Industrial Comm'n, 174 Ariz. 23, 26, 846 P.2d 836, 839 (Ariz.App.1992) ("[An] employee's reasonable conduct in causing a later nonindustrial injury does not relieve the employer of liability if the later injury is the `direct and natural result' of the compensable work injury"). Thus, "a subsequent injury, whether an aggravation of an original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury." 1 Larson, supra, § 13.11.'
"740 So.2d at 1084.
". . . The supreme court has also stated, `Under the "successive-compensable injury" test, the issue is not whether the primary injury caused the second [non-work-related] accident.' Ex parte Dunlop Tire Corp., 772 So.2d 1167, 1171 (Ala.2000) (emphasis added [in Kent])."
Landstar Ranger v. Kent, 828 So.2d 322, 324 (Ala.Civ.App.2002).
In concluding that Sistrunk's left-shoulder injury was not compensable, the judgment of the trial court focused on Sistrunk's light-duty work activities following his right-shoulder injuries. The trial court's judgment stated, in pertinent part:
"The Court finds [that Sistrunk's] left shoulder injury is not compensable under the Alabama Worker's Compensation Laws and was not caused by or related to the right shoulder injury. . . .
"The Court further noted [that Sistrunk's] physician[, Dr. Walcott,] admitted that he did not think that [Sistrunk's] left shoulder injury was due to activities at work. Based on the fact that [Sistrunk] was on light duty such as shredding paper for 2 months and then was placed at a desk sorting small parts (nuts & bolts), [Sistrunk's] injury to his left shoulder is not work related.
". . . .
". . . [T]he Court finds that [Sistrunk] did not sustain the burden of proof necessary so as to entitle him to recover under the Worker's Compensation Laws of the State of Alabama nor sustain the burden of proof required so as to substantiate the allegation that he sustained *170 any compensable left shoulder injury under said laws. In sum, it appeared to the Court that from the medical testimony presented by Dr. Walcott, and [from Sistrunk's] work restrictions, the trial court cannot properly find that the left rotator cuff injury is compensable because it is not a natural and direct result of the right shoulder injury."
It appears from the judgment that the trial court concluded that, due to the light-duty nature of Sistrunk's work activities following his right-shoulder injuries, Sistrunk's left-shoulder injury was not a "natural and direct result" of his right-shoulder injuries. However, a determination whether Sistrunk's left-shoulder injury is a "natural and direct result" of his right-shoulder injuries is not limited to an evaluation of Sistrunk's work activities after his earlier injuries. As we have noted, "`"[i]f a worker's compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment."'" Landstar Ranger, 828 So.2d at 324 (quoting Ex parte Pike County Comm'n, 740 So.2d 1080, 1084 (Ala.1999), quoting in turn Wilson v. Workers' Comp. Comm'r, 174 W.Va. 611, 616, 328 S.E.2d 485, 490 (1984)). For example, the employee in Ex parte Pike County Commission
"had a series of work-related back injuries; he filed the action at issue in that opinion after lifting his 12-pound baby at home. 740 So.2d at 1082. The supreme court affirmed the trial court's finding that the employee's injury after lifting the baby was a compensable injury, because `[l]ifting a 12-pound baby is an activity that is "customary in light of [the employee's] condition." Wilson [v. Workers' Comp. Comm'r], 174 W.Va. [611] at 616, 328 S.E.2d [485] at 490 [(1984)].' 740 So.2d at 1084."
Landstar Ranger, 828 So.2d at 324. Moreover, "it is not the situs of the second injury (i.e., either the place where the accident occurred or the physical location of the injury) that is controlling, but rather whether the subsequent injury was a natural consequence of a prior compensable injury." Erwin v. Harris, 474 So.2d 1125, 1128 (Ala.Civ.App.1985).
Sistrunk argued before the trial court that his left-shoulder injury was compensable because, he said, it was a direct result of his overcompensating with his left arm for his right-shoulder injuries. The trial court's conclusion that Sistrunk's left-shoulder injury was not compensable appears to be based on a finding that Sistrunk's alleged overcompensation while working was insufficient to result in a work-related injury. However, it matters not whether Sistrunk's overcompensation with his left arm, allegedly resulting in his left-shoulder injury, occurred while he was actually working for Sikorsky Support. The applicable standard is whether Sistrunk's left-shoulder injury was "the direct and natural result" of his compensable right-shoulder injuries, regardless of whether it was incurred at work or elsewhere. Landstar Ranger, supra; and Erwin, supra. Accordingly, because the trial court misapplied the applicable standard, the judgment of the trial court is due to be reversed insofar as it determined that the injury to Sistrunk's left shoulder was not compensable.
We note also that the rotator-cuff injury to Sistrunk's left shoulder appears to have resulted from gradual deterioration or cumulative physical stress. Sistrunk testified that he did not injure his left shoulder in an accident and that he progressively began to experience pain in his left shoulder after suffering his right-shoulder *171 injuries. In its judgment, the trial court did not specify whether it found Sistrunk's left-shoulder injury to be a result of gradual deterioration or cumulative physical stress. Should the trial court find Sistrunk's left-shoulder injury to be either the result of gradual deterioration or the result of a cumulative-physical-stress disorder, we note that such an injury is "compensable only upon a finding of clear and convincing proof that [that injury] arose out of and in the course of the employee's employment." § 25-5-81(c), Ala.Code 1975. That is, if Sistrunk's left-shoulder injury is a cumulative-physical-stress injury, he would have to establish by clear and convincing evidence that it was the direct and natural result of his compensable right-shoulder injuries. § 25-5-81(c); and Landstar Ranger, supra. See also Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188, 196-97 (Ala.Civ.App.2001) (stating that a successive compensable injury that is also a cumulative-physical-stress injury must be established by clear and convincing evidence).
We reverse the judgment insofar as it determined that the injury to Sistrunk's left shoulder was not compensable under the Alabama Workers' Compensation Act. We remand the case for the trial court to determine whether Sistrunk's injury to his left shoulder is compensable, applying the standards articulated in this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
CRAWLEY, P.J., and THOMPSON, J., concur.
PITTMAN, J., concurs in the result, without writing.
MURDOCK, J., dissents, with writing.
MURDOCK, Judge, dissenting.
I respectfully dissent. The record in this case does not contain substantial evidence indicating that Sistrunk's left-shoulder injury resulted from overcompensation by Sistrunk outside of work for his right-shoulder injury. Indeed, Sistrunk failed to identify to the trial court and fails to identify to this court what nonwork activity might have precipitated his left-shoulder injury. The only evidence of any nonwork activity by Sistrunk is evidence indicating that he lifted weights for exercise outside of work.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1467618/
|
320 Pa. Superior Ct. 342 (1983)
467 A.2d 355
COMMONWEALTH of Pennsylvania, Appellee,
v.
Linn SIMLER, Appellant.
Supreme Court of Pennsylvania.
Submitted May 24, 1983.
Filed October 14, 1983.
*343 Paul David Boas, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
CAVANAUGH, Judge:
Appellant Linn Simler was tried by a jury and convicted of simple assault. Post-verdict motions were denied and sentence was imposed. Appellant, represented by new counsel, took a direct appeal to this court, 280 Pa.Super. 154, 421 A.2d 451, raising the issue of trial counsel's ineffectiveness. Because we were unable to resolve the ineffectiveness issues on the record before us, we vacated the judgment of sentence and remanded the case for an evidentiary hearing. A hearing was held and the lower court found that trial counsel had not been ineffective. The judgment of sentence was reimposed and the instant appeal followed. Appellant now claims, inter alia, that trial counsel was ineffective for failing to call character witnesses on *344 his behalf at trial. We agree and, therefore, reverse the judgment of sentence and remand for a new trial.[1]
The simple assault charge brought against appellant arose out of an incident which occurred on February 7, 1978. On that evening, the appellant became involved in a dispute with the owner of a dining and dancing establishment in suburban Pittsburgh. The manager asked appellant to leave, but he remained at his table. Shortly thereafter, the police arrived and appellant was escorted out. Appellant was licensed to carry a firearm and had one on his person at that time. He willingly relinquished his gun and produced his gun permit as requested by Officer Palonder. An argument ensued, however, when Officer Palonder informed appellant that because appellant appeared intoxicated, his gun and permit were going to be confiscated and could be picked up at the police station the following morning. Appellant was ultimately arrested for disorderly conduct and taken to the police station.
According to the Commonwealth's evidence, the appellant, while in custody at the police station, kneed Officer Palonder in the groin. This was the basis of the simple assault charge. Appellant testified that while at the station, his hair was grabbed and he was punched in the face and that, following the melee, his nose was bleeding and his lip was split. He maintained that he never swung at or kicked the officers. The police agreed that appellant did receive some injuries but claimed that they were sustained when Officer Palonder, having been kneed in the groin, pushed appellant away, causing him to fall and hit his face against the radiator. Since appellant was found guilty of simple assault, the jury obviously believed the Commonwealth's version of the events rather than appellant's.
As we stated in Commonwealth v. Jennings, 285 Pa.Super. 295, 298-99, 427 A.2d 231, 232 (1981):
*345 [W]hen confronted with a claim of ineffectiveness of counsel, this Court utilizes a two-step analysis. The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client's interests. (citations omitted).
Certainly there is arguable merit in appellant's claim that his attorney should have called character witnesses in his behalf. Character evidence is always admissible for the defendant in a criminal case. In fact, "[e]vidence of good character is substantive and positive evidence, not a mere make-weight to be considered in a doubtful case, and . . . is an independent factor which may of itself engender a reasonable doubt or produce a conclusion of innocence." Commonwealth v. Padden, 160 Pa.Super. 269, 275, 50 A.2d 722, 725 (1947). See also, Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Yeager, 314 Pa.Super. 524, 461 A.2d 281 (1983); Commonwealth v. Farrior, 312 Pa.Super. 408, 458 A.2d 1356 (1983); Commonwealth v. Gaines, 167 Pa.Super. 485, 75 A.2d 617 (1950). Character evidence could have been a major factor in the trial of this case since virtually the only issue was the credibility of the police witnesses versus that of appellant. Commonwealth v. William Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983); Commonwealth v. Shapiro, 223 Pa.Super. 15, 297 A.2d 161 (1972).
We must now ascertain whether appellant's counsel had a reasonable basis for not calling any character witnesses. Apparently, appellant did not discuss his case directly with his trial attorney, Mr. Diamond, until the morning of the trial, although he had discussed the case with Mr. Diamond's associate.[2] Appellant testified at the evidentiary hearing that he told Mr. Diamond that he had *346 character witnesses readily available whenever he needed them, and that Mr. Diamond replied, "I don't think we need them at this time. I will worry about that later." (N.T. September 12, 1980, at 50). Appellant said he never got as far as naming the potential witnesses because Mr. Diamond never got back to him about it. At the hearing, appellant did name several people who had been ready to testify; one in particular who had told appellant, "I have a suit ready. When you are ready, call me." (N.T. September 12, 1980 at 52).
Mr. Diamond testified at the evidentiary hearing that there was one potential character witness, a constable named Bonny Burns, who was present in the courtroom at the time of the trial. He considered calling her as a witness but decided not to because she told Mr. Diamond that although appellant was a very honest man as a whole, he had a propensity to be hot headed. (N.T. September 12, 1980 at 29). Mr. Diamond testified that he could not recall whether appellant had asked him to call other character witnesses. It is clear that Mr. Diamond did not pursue the possibility of obtaining other character witnesses despite knowing that there was a substantial issue of credibility involved and that appellant's trait of peacefulness was at issue.
Assuming, arguendo, that Mr. Diamond had a reasonable basis for not calling Bonny Burns as a character witness, that does not explain his failure to pursue the possibility of obtaining other character witnesses who would testify on appellant's behalf. We do not feel that there was a reasonable basis for counsel's failure to pursue the issue and we hold, therefore, that appellant was denied the effective assistance of trial counsel. See Commonwealth v. William Luther, supra, (counsel ineffective for failing to call character witnesses on behalf of defendant in rape prosecution).
Judgment of sentence reversed. Case remanded for new trial. We do not retain jurisdiction.
CIRILLO, J., files dissenting opinion.
*347 CIRILLO, Judge, dissenting:
I respectfully dissent. The majority seems to acknowledge that counsel had a reasonable basis for not calling Bonny Burns as a character witness. See: Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, the majority feels that counsel was ineffective for failing to pursue the possibility of obtaining other character witnesses who would testify on behalf of the appellant. I am compelled to disagree.
There is a presumption in the law that counsel is effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Norris, 305 Pa.Super. 206, 451 A.2d 494 (1982). Thus, the burden is on the petitioner to prove counsel's ineffectiveness. Commonwealth v. Helvy, 278 Pa.Super. 458, 462, 420 A.2d 631, 633 (1980).
At the evidentiary hearing regarding the issue of trial counsel's ineffectiveness, the appellant testified as follows:
MR. ZUNICH: Okay. Now, Mr. Simler, when you did talk with him, or during the course of trial, did you ever have any discussions regarding character witnesses?
APPELLANT: Yes, I did.
MR. ZUNICH: Could you tell us about that?
APPELLANT: I told Mr. Diamond that I had character witnesses that would be readily available whenever he needed them. And he said: I don't think we need them at this time. I will worry about that later.
MR. ZUNICH: And did, in fact, he ever call character witnesses?
APPELLANT: No, sir.
MR. ZUNICH: Did you let him know that you had more than one available?
APPELLANT: Yes.
MR. ZUNICH: Did you let him know who these people were?
APPELLANT: We never got as far as to sit down and write names down. It wasn't material at that time.
*348 MR. ZUNICH: Did he ever come back and say: who are these character witnesses?
APPELLANT: No.
(N.T. September 12, 1980 at 50-51).
The appellant's failure at the time of trial to offer to counsel the names of these other possible character witnesses and the substance of their proposed testimony vindicates counsel from allegations of ineffectiveness. See: Commonwealth v. Blackwell, 312 Pa.Super. 117, 458 A.2d 541 (1983); Commonwealth v. Oliver, 280 Pa.Super. 274, 421 A.2d 719 (1980).
Trial counsel need not ring doorbells in order to procure character witnesses for trial. It is the duty of the appellant to at least furnish counsel with the names of possible witnesses and to give a clue as to the content of their testimony. In this instance, however, the appellant has made only general claims that he had some witnesses available. Without more, the appellant has failed to carry his burden in proving the ineffective assistance of counsel. Accordingly, I would affirm the judgment of sentence of the court below.
NOTES
[1] Due to our disposition of the case based on this claim, we need not address appellant's claims that counsel was ineffective for failing to object to questions asked of appellant by the district attorney regarding his ownership of firearms and prior criminal activity.
[2] It was not until the day of trial that appellant realized Mr. Diamond would be trying the case. Appellant had expected the case to be handled by Mr. Diamond's associate.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3354465/
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION DEFENDANT'S MOTION TO STRIKE
The facts as alleged in the plaintiff's revised complaint are as follows. In January, 1992, the plaintiff, Beverly Ellsley, Inc., entered into negotiations with the defendants Sandra and Arthur Benson ["the Bensons"], for the sale and purchase of real property in Weston, Connecticut. As a result of the negotiations, the parties entered into an agreement whereby the Bensons agreed to purchase the property for the sum of $1,450,000.00 and to pay the plaintiff $145,000.00 as a down payment toward the purchase of the property.
In March 1992, the Bensons gave the plaintiff a check in the amount of $145,000.00. The plaintiff presented the Bensons' check for payment but it was subsequently dishonored for insufficient funds. Thereafter, the Bensons stopped payment on the check and refused to perform their obligations under the agreement.
On May 21, 1992, the plaintiff filed a five-count complaint against the Bensons. On June 23, 1992, the defendants filed a request to revise, and on September 23, 1992, the plaintiff filed a revised complaint. The first count of the revised complaint is a claim for specific performance of the Agreement. The second count is a claim based upon nonpayment of the check. The third count is a cause of action for liquidated damages. The fourth count is a claim for breach of contract, and the fifth count is a cause of action for breach of the covenant of good faith.
On September 29, 1992, the defendants' filed a motion to strike the second count of the plaintiff's revised complaint on the ground that there is no cause of action recognized in Connecticut which allows a civil claim for an alleged nonpayment of a bad check along with a memorandum of law in support of their motion to strike. On October 20, 1992, the plaintiff filed a memorandum of law in opposition to the defendants' motion to strike. CT Page 11788
In support of its motion, the defendants argue that General Statutes 53a-128 which is a criminal statute does not provide a civil cause of action for the recovery of money pursuant to a bad check. The defendants are correct. See General Statutes53a-128(c).
In opposition, however, the plaintiff argues that the second count is not brought pursuant to 53a-128, but rather, is a claim for either: (1) statutory negligence; (2) negligent misrepresentation; or (3) fraudulent misrepresentation. Since the plaintiff alleges neither a violation of 53a-128 nor negligence on the part of the defendants, the second count does not sufficiently allege a claim for either statutory negligence or negligent misrepresentation.
The second count sufficiently alleges a cause of action for fraudulent misrepresentation. The elements of fraudulent misrepresentation are:
(1) a false representation of a statement of fact, (2) such representation was untrue and either known by the defendants to be untrue or made in careless disregard as to whether it was true or false, (3) such representation was made for the purpose of inducing the plaintiff to act upon it, and (4) the plaintiff did in fact rely upon such misrepresentation to [its] detriment.
(Citation omitted.) Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 382, 562 A.2d 570 (1989). The plaintiff alleges that the defendants falsely represented that there were sufficient funds in their account to cover the check; the defendants were informed that the check would be immediately presented for payment and the funds used by the plaintiff; and that in reliance on the fact that the check was good, drew checks on its own account and executed and delivered the Agreement to the defendants all to the plaintiff's detriment.
The court must view the facts "in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly probable under them." Zeller v. Mark, 14 Conn. App. 651, 654, 542 A.2d (1988). Construing the allegations broadly, the court finds that the second count sufficiently alleges a claim for fraudulent misrepresentation. CT Page 11789
Therefore, the defendants' motion to strike should be denied.
LEHENY, JUDGE
|
01-03-2023
|
07-05-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/2614998/
|
847 P.2d 1176 (1993)
123 Idaho 315
STATE of Idaho, Plaintiff-Respondent,
v.
Michael Von JONES, Defendant-Appellant.
No. 19533.
Court of Appeals of Idaho.
February 3, 1993.
Petition for Review Denied March 30, 1993.
*1177 Webb, Pedersen & Webb, Twin Falls, for defendant-appellant. Lloyd J. Webb, argued.
Larry J. EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.
SILAK, Judge.
Michael Von Jones appeals the district court's decision to revoke his probation and withheld judgment, and entering a judgment *1178 of conviction, based upon Jones's failure to file with his probation officer a truthful monthly report pursuant to the terms of his probation. For the reasons discussed below we affirm.
FACTS
Pursuant to a plea bargain, Jones pled guilty to the felony charge of failure to deliver a certificate of title for a motor vehicle that he had sold in November, 1986 (former I.C. § 49-420, now codified as I.C. § 49-518). On July 14, 1989, judgment was withheld, and Jones was placed on twelve months' probation and ordered to pay restitution. Jones signed an "agreement of supervision" listing the conditions of his probation. The order of probation required Jones to subject himself to the rules of probation of the Board of Correction and the district court which included filing "a truthful, written report to [his] supervising officer each and every month."
In May, 1990, Jones was involved in a domestic dispute with his wife which resulted in a battery complaint being filed against him. Jones was subsequently served with the complaint by a law enforcement officer. In mid-June, 1990, the complaint was dismissed. Approximately one week before the complaint was dismissed, Jones filed his monthly written report. The form report included a question which asked whether the probationer had had any "contact" with law enforcement in the prior month. Jones answered the question in the negative.
On June 15, 1990, Jones's probation officer filed a report of probation violation alleging two violations: (1) Jones failed to obey all laws (condition number one) by being charged with a battery, and (2) Jones failed to submit a truthful, written report to his supervising officer (condition number three) by failing to report a contact with law enforcement. The alleged violation of condition number one was withdrawn by the prosecution. At the revocation hearing, the facts surrounding the incident with Jones's wife were stipulated. Jones's attorney made an offer of proof concerning the dates and events surrounding the dismissal of the complaint. There was no testimony presented in this phase of the proceeding.
The district court in its findings took note of Jones's attorney's statement that he had suggested to Jones that, because the battery complaint had been dismissed, Jones would not have to indicate on the report he had had contact with law enforcement. The court made the following oral findings:
The court finds [Jones] did enter into an agreement wherein he agreed to report to or he would submit a truthful report to his supervisor each and every month ... and that in fact, he did on the report filed in June for the month of May indicate that he had no contact with law enforcement officers, when in fact he had had contact. Of course, the Court's view is that is a violation. Certainly it may be a technical violation, but I think that the spirit of the probationer's agreement is such that they are to be quite strictly construed and they do serve the purposes as indicated by the prosecuting attorney in this case.
The court later made the following written findings of fact:
6. On August 1, 1989 the defendant entered into an agreement of supervision which contains a provision requiring him to submit a truthful written report to his supervising officer. Mr. Jones was aware of this provision.
7. The court finds the defendant did have contact with a law enforcement officer as a result of being served with a summons in May, 1990 and therefore did violate the terms of his probation order.
The district court concluded that Jones had knowingly, intelligently and voluntarily violated his probation. The court ordered the withheld judgment revoked, entered a judgment of conviction finding Jones guilty of the crime of failure to deliver a certificate of title and sentenced him to a twelve-month probation under the same terms as the previously granted probation on the withheld judgment. The court ruled that this probation had already been served. The court further concluded that the defendant *1179 had otherwise complied with the terms of his probation, and that no purpose would be served by incarceration, fine or additional probation. Jones later moved to amend the district court's order, which motion was denied.
STANDARD OF REVIEW
In a probation revocation proceeding, the district court confronts two issues:
First, was a condition of probation actually violated? Ordinarily, this is a question of fact. Second, does the violation justify revoking the probation? This is a question addressed to the judge's sound discretion.
State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct.App.1989). We review factual findings under the clearly erroneous standard. I.R.C.P. 52(a). As to the "clearly erroneous" standard, it has been equated to "substantial evidence" by this Court. "[C]lear error, in turn, will not be deemed to exist if the findings are supported by substantial and competent, though conflicting, evidence." Muniz v. Schrader, 115 Idaho 497, 767 P.2d 1272 (1989); Rasmussen v. Martin, 104 Idaho 401, 404, 659 P.2d 155, 158 (1983).
The district court's decision whether to revoke probation based upon a particular violation will not be reversed absent an abuse of discretion. I.C. § 20-222; State v. Corder, 115 Idaho 1137, 1138, 772 P.2d 1231, 1232 (Ct.App.1989). In reviewing the court's discretion, "our inquiry is whether the court acted within the boundaries of such discretion, consistent with any legal standards applicable to its specific choices, and whether the court reached its decision by an exercise of reason." State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct.App.1988). In Hass, we identified two standards governing the decision whether to revoke probation: (1) whether the probation is achieving the goal of rehabilitation, and (2) whether the probation is consistent with the protection of society. Hass, 114 Idaho at 558, 758 P.2d at 717.
The court's discretion to impose a term or condition is bounded by whether the term or condition of probation is reasonably related to the purpose of probation, namely rehabilitation. State v. Mummert, 98 Idaho 452, 454, 566 P.2d 1110, 1112 (1977). The "reasonable relationship" is the legal standard by which the validity of a term or condition must be judged. Therefore, before a court reaches the factual predicate as to whether there was an actual violation, a determination must be made as to whether the term violated is valid. Whether the terms or conditions meet the legal standard is a question of law, see Mummert, 98 Idaho at 454, 566 P.2d at 1112, over which we exercise free review. See, e.g., State v. Joyner, 121 Idaho 376, 378, 825 P.2d 99, 101 (Ct.App. 1992); State v. Ramirez, 121 Idaho 319, 321, 824 P.2d 894, 896 (Ct.App.1991).
ANALYSIS
Jones argues that the question on the monthly report requiring Jones to state whether he had any contact with law enforcement is not a valid rule of probation because it is immaterial. Jones does not argue that a truthful monthly report is an invalid condition. Jones points out that a term or condition must be clearly expressed or implied and must be related to both rehabilitation and the original crime convicted of to be valid. State v. Hancock, 111 Idaho 835, 838, 727 P.2d 1263, 1266 (Ct.App.1986); see also Mummert, 98 Idaho at 454, 566 P.2d at 1112; State v. Sandoval, 92 Idaho 853, 861, 452 P.2d 350, 358 (1969) (a condition must relate in some way to the crime).
The state agrees that a condition of probation must be "reasonably related to the purpose of probation, rehabilitation" and submits that the condition of reporting contact is valid because it serves the purposes of rehabilitation by allowing a probationer out into society "under proper control and supervision." The state points out that knowing whether a probationer has been contacted by law enforcement impacts the ability of the probation officer to supervise the probationer; to determine if the probationer is being rehabilitated from a life of crime and complying with other conditions. *1180 We agree with the state's observations. The truthful reporting of a contact puts the probation officer on notice and gives the officer an opportunity to determine if the probationer's conduct is falling within the bounds expected of a probationer. A probation officer needs to know if a probationer has had any contact with law enforcement to determine if a probationer has engaged in conduct that constitutes criminal activity, for the purpose of determining if rehabilitation from the past crime is taking place. Accordingly, we hold that a question on a monthly report asking if there has been any contact with law enforcement personnel is valid because it is reasonably related to rehabilitation.
Jones also contends that the word "contact" is overbroad; it could mean the slightest contact such as buying a ticket to the Policeman's Ball. We disagree. To leave the determination of what is or is not a contact in Jones's hands would put Jones in the position of supervising himself. The requirement to report every contact puts the determination whether the reported contact is one requiring further investigation in the hands of the probation officer, where it must be. We hold that the condition that required Jones to report any contact is not overbroad.
Jones next argues that the court did not make a finding that he violated a specific condition of probation, namely, the court did not specifically find that Jones violated the condition to submit a truthful report, but rather found that Jones violated probation by having contact with law enforcement. The state claims that Jones failed to raise to the district court the issue of whether the "contact" was the actual violation, thus, he is barred from raising it on appeal. There is sufficient evidence in the record to indicate Jones considered the actual violation to be the contact and raised that point to the district court.
Jones points to the court's written finding number seven, quoted above, and urges a literal reading of the finding; Jones interprets the finding to mean the court found him in violation for having a "contact" with a law enforcement officer and not for an untruthful report. The state argues that the violated condition it was prosecuting Jones for was his failure to provide a truthful report, not that he had a "contact." The record is clear that the state brought the revocation proceedings on a violation of the truthful report condition. Furthermore, Jones recognized this as the violated condition by the fact that his counsel stated "that he didn't give a truthful written report in violation of rule number three of the probation rules."
The court was required to make a predicate finding of fact that Jones did have a "contact" as contemplated by the monthly questionnaire before it could conclude that Jones violated the condition of truthful reporting. The record indicates that the court made the finding of fact that Jones actually had "contact" with law enforcement. The written findings by the court did not clearly state the violation was for non-compliance with condition three. However, after an extensive review of the record and the court's oral findings it is clear the court found Jones had not submitted a truthful report and that probation was revoked for violating that condition. Therefore, we find that there is substantial evidence in the record to support the district court's determination that Jones violated the truthful reporting condition.
Jones argues that a court may not arbitrarily revoke probation. We agree. A court must reasonably conclude from Jones's conduct that probation was not achieving rehabilitation. Adams, 115 Idaho at 1055, 772 P.2d at 263. In revoking Jones's probation the court stated that its "primary concern ... has to do with ... Mr. Jones's awareness of authority, and awareness that he is under supervised authority, and awareness that he is to follow that authority.... and not respecting [that] authority." We conclude from the record that the district court did not abuse its discretion by revoking Jones's probation.
CONCLUSION
In conclusion, the condition that a probationer file a truthful written report, which *1181 includes a question as to whether the probationer had contact with law enforcement, is valid as being reasonably related to rehabilitation. The district court's findings of fact were based upon stipulated facts and are not clearly erroneous. There was no abuse of discretion in the court's decision to revoke Jones's probation and withheld judgment. We affirm.[1]
WALTERS, C.J., and SWANSTROM, J., concur.
NOTES
[1] While we affirm the judgment of conviction entered in this case, we note that the unusual sentence to probation "already served" may enable Jones to apply to the district court for discretionary relief from the record of a felony conviction under I.C. § 19-2604. We express no view as to the merits of such an application, however.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3166950/
|
Order Michigan Supreme Court
Lansing, Michigan
December 30, 2015 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
152876 & (129) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 152876
COA: 314342
Wayne CC: 12-005176-FC
BRANDON LEWIS CAIN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for immediate consideration is GRANTED.
The application for leave to appeal the December 15, 2015 order of the Court of Appeals
is considered, and it is DENIED, because we are not persuaded that the question
presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 30, 2015
s1229
Clerk
|
01-03-2023
|
01-01-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/2237396/
|
592 N.E.2d 1247 (1992)
In re the Marriage of Julie AYLWARD, Appellant-Petitioner,
v.
Robert AYLWARD, Appellee-Respondent.
No. 53A01-9110-CV-306.
Court of Appeals of Indiana, First District.
June 4, 1992.
*1248 Marilyn Hartman, Hartman & Paddock, Bloomfield, for appellant-petitioner.
ROBERTSON, Judge.
Julie Aylward appeals the portion of the decree dissolving her marriage to Robert Aylward which relates to the award of joint legal custody of the parties' four (4) children. Julie raises four (4) issues. But because one issue requires us to reverse, we address it only. It is:
Whether the award of joint legal custody constitutes an abuse of discretion?
FACTS
The facts in the light most favorable to the trial court's judgment indicate that Julie and Robert were married on December 18, 1979 and the petition for dissolution was filed on June 12, 1990. Four (4) children were born of the marriage: B.J.A. and R.E.A., born October 17, 1982 (twins); F.L.A., born December 4, 1984; and S.R.A., born January 21, 1990. Presently, Robert serves in the United States Army and is stationed in Korea. After his tour of duty in Korea is completed, he expects to be stationed in either Kentucky or Georgia.
As noted above, the petition for dissolution was filed on June 12, 1990. On September 26, 1990, the Department of Public Welfare [DPW] initiated proceedings alleging the children to be Children in Need of Services under IND. CODE 31-6-4-3.1 [CHINS proceedings]. At the initial factfinding hearing in the CHINS action, Julie asserted the children had been sexually molested by their father. Robert appeared at this hearing and asserted the children's physical or mental condition were seriously impaired. In that way, the DPW obtained admissions from both parents that the children were CHINS. There appears to be no dispute that the children suffer from emotional and/or psychological disorders.
The CHINS proceedings were transferred and incorporated into the divorce proceedings by court order.[1] The entire family was subjected to intensive psychological evaluation, counseling, etc. A Guardian Ad Litem was appointed who spent 68 hours interviewing the parents, the children, and the therapists involved.
The CHINS review hearing required three (3) days for the presentation of evidence. *1249 Afterwards, the DPW's motion for discharge was granted by the trial court. The trial court, in its decree, ultimately found that the evidence failed to support Julie's accusations that the children had been molested.[2]
Although most of the property disposition was stipulated, the final hearing in the dissolution action required two (2) more days for the presentation of evidence. The record in this appeal consists of 1500 pages contained in six (6) volumes. Julie's motion to file a brief in excess of 50 pages was granted by this court. Julie's statement of the facts in her brief is sixteen (16) pages long.
The trial court awarded the parents joint legal custody. In general, Julie was awarded physical custody of the children during the school year and Robert was awarded physical custody of the children during the summer months. With respect to the award of joint legal custody, the trial court entered the following findings:
9. It is in the best interests of the minor children that the parties should be awarded joint custody of the minor children with physical custody to be divided as set forth below. This finding is based on the following evidence presented at the hearings in this cause:
(a) Robert and Julie are expressing feelings of animosity and distrust toward the other. The children have been exposed, either deliberately or unintentionally, to situations where the absent parent was being discussed in a negative way.
(b) Robert and his parents have had difficulty communicating with the children in person or by telephone due to interference by Julie and some members of her family.
(c) The maternal and paternal grandparents have become embroiled in the conflict between Robert and Julie which has contributed to an ever-widening rift between Robert and Julie. Consequently, the children are deprived of an environment that is healthy for them and one that will support a positive feeling for the absent parent.
(d) Julie's decision to teach [the twins] at home for a two-year period was met with strenuous objection from Robert. Julie did not meet the state requirements for home instruction, and the twins entered school in the 1st grade when they should have been in the 2nd grade.
(e) [The three older children] are now in therapy with Dr. Judith Klein, a psychiatrist. They were initially in therapy with Dr. Susan Rautio-Dietz, a psychologist. Both therapists testified that the children are suffering from psychological and emotional trauma from unknown causes. Dr. Rautio-Dietz testified that she could not explain why the children were traumatized, but she felt that the behaviors of [the two (2) older girls] were consistent with sexual molestation. Dr. Rautio-Dietz then arranged for [these girls] to be examined by a physician who was unable to state conclusively that the children had been sexually molested. Both Dr. Klein and Dr. Rautio-Dietz testified that they were not convinced that either [of these girls] had been sexually molested.
(f) [These two (2) older girls] have stated that they were molested by their father and they have also recanted. At one point, [one of the girls] indicated that she had been molested by her maternal grandfather but later recanted. The Department of Public Welfare investigated the case and determined that there was insufficient evidence to prove that the children had ever been sexually molested. However, both experts felt that the three children were suffering from emotional trauma of unknown cause(s). [The boy] is also suffering from psychological and emotional trauma. There were no allegations of sexual molestation involving [the boy]. However, [the boy] has exhibited violent behavior, especially toward his [twin sister].
*1250 (g) Despite the lack of evidence that the children were sexually molested by their father and considering Julie's agreement and stipulation at the CHINS proceeding involving this family that the children were in need of services for reasons unknown to either party, she has persisted in her belief that [the two (2) older girls] have been molested by their father.
(h) The evidence does not support a finding that the children have been sexually molested by Robert or by any other person. Robert has worked in top security positions in the United States Army and presented security clearance and checks which reveal no instances of moral turpitude before or since he entered military service in 1973.
(i) The animosity and bitterness displayed by the parents is harmful to the children. The children are not divorcing either parent, and they are entitled to the love and companionship of both parents. The joint custodial arrangement is the only feasible arrangement which will permit the children to love and share quality time with each parent.
(j) The Court appointed Judi Chapman as guardian ad litem for the children. Ms. Chapman spent a total of sixty-eight (68) hours interviewing the parents, therapists, and the children. Ms. Chapman said that the children are bonded to both parents. She testified that the constant fighting between the parents is harmful to the children and is not in their best interests.
DECISION
At the outset, we note that Robert has failed to file an appellee's brief. It is well-settled that where no answer brief has been filed, the judgment may be reversed if the appellant's brief presents a prima facie case of error. National Mut. Ins. Co. v. Eward (1987), Ind. App., 517 N.E.2d 95. Prima facie error is error at first sight, on first appearance, or on the face of it. Johnson County Rural Elec. Membership Corp. v. Burnell (1985), Ind. App., 484 N.E.2d 989. The reason for the prima facie error rule is to protect the Court of Appeals and relieve it from the burden of controverting arguments advanced for reversal, a duty which properly rests upon counsel for appellee. National Mut. Ins. Co., 517 N.E.2d 95.
Julie asserts the trial court's imposition of joint legal custody under the present circumstances constitutes an abuse of discretion. We agree.
Child custody determinations fall squarely within the discretion of the divorce court and will not be disturbed except for an abuse of discretion. Walker v. Walker (1989), Ind. App., 539 N.E.2d 509. On review, we will not reweigh the evidence, adjudge the credibility of the witnesses, nor substitute our judgment for that of the trial court. Id. We will not reverse unless we find the trial court's decision is against the logic and effect of the facts and circumstances before the divorce court or the reasonable inferences drawn therefrom. Id.
Indiana Code 31-1-11.5-21 governs the disposition of child custody in dissolution actions. It reads, in pertinent part, as follows:
(a) The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there shall be no presumption favoring either parent. The court shall consider all relevant factors including:
(1) the age and sex of the child;
(2) the wishes of the child's parent or parents;
(3) the wishes of the child;
(4) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(5) the child's adjustment to his home, school, and community; and
(6) the mental and physical health of all individuals involved.
(b) Except as otherwise agreed by the parties in writing at the time of the custody order, the custodian may determine *1251 the child's upbringing, including his education, health care, and religious training, unless the court finds, after motion by a noncustodial parent, that in the absence of a specific limitation of the custodian's authority, the child's physical health would be endangered or his emotional development significantly impaired.
* * * * * *
(f) The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child. As used in this section, `joint legal custody' means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training. An award of joint legal custody does not require an equal division of physical custody of the child.
(g) In determining whether an award of joint legal custody would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;
(3) the wishes of the child and whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(4) whether the persons awarded joint custody live in close proximity to each other and plan to continue to do so; and
(5) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
In Walker, 539 N.E.2d 509, we affirmed an award of joint legal custody imposed over the objections of the mother. We noted that one statutory factor set out above was easily satisfied: the parents lived in close proximity to one another. I.C. 31-1-11.5-21(g)(4). We also noted that the parents demonstrated a willingness and ability to communicate and cooperate in advancing the child's welfare as required by I.C. 31-1-11.5-21(g)(2). We held:
Frankly, we are reluctant to affirm a trial court's order of joint custody when one of the parties objects thereto. [The mother], by appealing this case, makes clear her objections. On the other hand, the statute [I.C. 31-1-11.5-21(f), (g)] gives the trial court the discretion to award joint custody and we are just as reluctant to reverse a trial court's exercise of that discretion when the evidence does not show a clear abuse thereof by attempting to impose an intolerable situation upon two persons whose relationship has become a battleground.
* * * * * *
Certainly, there was ample evidence that [the parents] had disagreements and arguments between themselves. (This is not unusual with divorcing couples.) But, nowhere in the record is evidence of fundamental differences in child rearing philosophies, religious beliefs, or lifestyles. Nowhere is evidence that child rearing became a battleground.
We acknowledge in a sensitive situation such as this that a more careful scrutiny of evidence is necessary. However, no evidence indicates a major obstruction in the willingness or ability of [the parents] to communicate and cooperate in advancing [the child's] welfare. On the contrary, they have demonstrated an ability to put aside their own differences in order to cooperate for [the child's] best interests.
539 N.E.2d at 512, 513 (Emphasis added). Similarly, in Stutz v. Stutz (1990), Ind. App., 556 N.E.2d 1346, we held the imposition of a joint legal custody arrangement over the objections of the the mother to be an appropriate exercise of divorce court discretion as the record contained no evidence *1252 of hostility between the parties (other than on the part of the mother); nor did the record contain evidence of any disagreement between the parents regarding matters relating to the upbringing of the child.
Before joining our court, Judge Barteau cautioned that "a joint custody order may simply provide a framework for the parents to continue the conflict which brought them to divorce in the first place. The conflict would just be focused solely on the children." Barteau and Hopkins, Joint Custody in Indiana, 27 Res Gestae 320, 324 (1984).
In the present case, we interpret the trial court's findings justifying its imposition of joint legal custody (as set out in the FACTS section above) as indicating that the trial court imposed joint legal custody precisely because the parents have made child rearing a battleground. Even a cursory glance of the voluminous record overwhelmingly supports the conclusion that the parents have made child rearing a battleground. We would be surprised if any member of this family can survive the hostilities.
Moreover, we would note that the parents do not (and do not plan to) live in close proximity to one another as would militate toward an award of joint custody under I.C. 31-1-11.5-21(g)(4). See also, Walker, 539 N.E.2d 509. Julie lives in Indiana: Robert lives in Korea and expects to be stationed next in Kentucky or Georgia.
Also, as the trial court's finding, 9(d) set out above, indicates, the parents could not agree with respect to a major decision regarding the twins' education. Over Robert's strenuous objection, Julie insisted on teaching the children at home until it was determined that Julie did not meet state requirements for home instruction.
Our review leaves us with the firm conviction that the trial court's decision constitutes an abuse of discretion as it is against the logic and effect of the facts and circumstances or the reasonable inferences to be drawn therefrom. The evidence overwhelmingly reveals a clear abuse of trial court discretion in that the joint custody award constitutes an imposition of an intolerable situation upon two persons who have made child rearing a battleground. See generally, Walker, 539 N.E.2d 509, 512 (set out above). We believe that the imposition of joint legal custody under the present circumstances is tantamount to the proverbial folly of cutting the baby in half in order to effect a fair distribution of the child to competing parents. See generally, In re Custody of Banning (1989), Ind. App., 541 N.E.2d 283 (dissenting opinion of Miller, J., 541 N.E.2d at 285). We wholeheartedly agree with the following words of wisdom expressed by Judge Hoffman in his dissenting opinion in Lamb v. Wenning (1991), Ind. App., 583 N.E.2d 745:
The pitfall of awarding and maintaining a joint custody arrangement primarily to placate the [parents] should be avoided as not in the best interests of the child.
583 N.E.2d at 753.
As noted above, in sensitive situations such as the one in the case at bar, a more careful scrutiny of evidence is necessary. Walker, 539 N.E.2d 509. We must conclude that Julie has demonstrated, under the prima facie error standard, that the trial court's imposition of joint legal custody under the present circumstances constitutes an abuse of discretion.
Therefore, we must reverse and remand with instructions that the trial court enter an award of sole legal custody in favor of either Julie or Robert pursuant to I.C. 31-1-11.5-21. Just so there is no misunderstanding, our remand instructions do not contemplate that another evidentiary hearing be held.
Judgment reversed.
RATLIFF, C.J., and SHARPNACK, J., concur.
NOTES
[1] All of the proceedings were held before the Circuit Court Magistrate who submitted her proposed findings and dissolution decree to the Circuit Court judge who expressly approved them and adopted them as the judgment in this case.
[2] Julie specifically attacks the trial court's findings in several respects. However, because we find the trial court's award of joint custody constitutes an abuse of discretion, we need not address these matters.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2600578/
|
139 P.3d 590 (2006)
Ralph Kermit WINTERROWD 2nd, Appellant,
v.
MUNICIPALITY OF ANCHORAGE, Appellee.
Nos. A-9233, A-9234.
Court of Appeals of Alaska.
June 23, 2006.
Rehearing Denied July 26, 2006.
Ralph Kermit Winterrowd 2nd, in propria persona, Knik, for the Appellant.
Rachel Plumlee, Assistant Municipal Prosecutor, and Frederick H. Boness, Municipal Attorney, Anchorage, for the Appellee.
*591 Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
OPINION
MANNHEIMER, Judge.
On January 3, 2004, and again on October 11, 2004, Ralph Kermit Winterrowd 2nd was stopped for speeding. On both occasions, the police asked Winterrowd to produce his driver's license, his vehicle registration, and proof of motor vehicle insurance.
During the January 3rd traffic stop, Winterrowd produced his driver's license, but he did not produce his registration or proof of insurance. Instead, Winterrowd invoked his privilege against self-incrimination and his right to the assistance of counsel under the Fifth Amendment to the United States Constitution. Because Winterrowd did not produce proof of motor vehicle insurance, he was cited for violating Section 09.28.030(B)(1) of the Anchorage Municipal Code (failure to carry proof of motor vehicle insurance).
During the October 11th traffic stop, Winterrowd produced his driver's license, but he did not produce his vehicle registration or proof of insurance. Again, Winterrowd invoked his Fifth Amendment privilege against self-incrimination and right to counsel. This time, Winterrowd was cited for failing to produce proof of motor vehicle insurance upon the demand of a police officer, AMC 09.28.030(B)(2), and for failing to carry motor vehicle registration, AMC 09.52.020.
These three charges were jointly adjudicated in a single bench trial in the district court. At his trial, Winterrowd argued that, because he was subjected to a seizure of his person within the meaning of the Fourth Amendment, and because he thereafter invoked his privilege against self-incrimination and his rights to silence and to the assistance of counsel under the Fifth Amendment, he could not be penalized for failing to produce the documentation that the officers asked him for. The district court rejected this argument and found Winterrowd guilty of all three offenses.
Winterrowd now appeals his convictions, renewing the constitutional argument that he presented to the district court.
Winterrowd is correct that a motorist who is subjected to a traffic stop is "seized" for Fourth Amendment purposes. However, not all Fourth Amendment seizures amount to "custody" for purposes of Miranda v. Arizona.[1] That is, not all Fourth Amendment seizures trigger the Fifth Amendment rights to silence and to the assistance of counsel recognized in Miranda.
We addressed this point of law in McNeill v. State, 984 P.2d 5 (Alaska App.1999):
Generally, in determining whether a person is in custody for Miranda purposes, a court must ask whether, "under the circumstances of the police interaction with the suspect, . . . a reasonable person [would] have felt free to break off the interrogation and, depending on the location, either leave or ask the police to leave". [quoting Long v. State, 837 P.2d 737, 740 (Alaska App.1992)] . . . This wording suggests that Miranda warnings will be required whenever a person is "seized" for Fourth Amendment purposes, but that is not the law. The cases applying Miranda recognize that there are some Fourth Amendment seizures of temporary duration most notably, routine traffic stops and other investigative stops in which Miranda warnings are not required, even though the person is temporarily in custody and the police can properly ignore a request that the officers depart and leave the person alone.
McNeill, 984 P.2d at 6-7 (emphasis omitted), citing Berkemer v. McCarty, 468 U.S. 420, 439-440, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984) (holding that Miranda does not apply when a motorist is subjected to roadside questioning during a routine traffic stop); Blake v. State, 763 P.2d 511, 514-15 (Alaska App.1988) (holding that police officers are not required to give Miranda warnings during an investigative stop unless and until the initial stop ripens into "custody" as that term is defined in Miranda jurisprudence). See also Wayne R. LaFave, Search and Seizure: *592 A Treatise on the Fourth Amendment (4th ed.2004), § 9.3(b), Vol. 4, pp. 367-377.
In his reply briefs, Winterrowd asserts that he is not attempting to raise a Miranda issue. Instead, Winterrowd asserts, he is relying on the Fifth Amendment rights to silence and to the assistance of counsel that the law gives him apart from Miranda. But in roadside encounters like the ones in these cases, there is no Fifth Amendment right to silence or to counsel apart from situations of custodial interrogation as defined in Miranda jurisprudence. See State v. Garrison, 128 P.3d 741, 747 (Alaska App.2006) (holding that, because the defendant was not in custody for Miranda purposes, the police could continue to question him despite his arguable request for an attorney).
Because Winterrowd's traffic stops did not constitute "custody" for Miranda purposes, the police could continue to ask Winterrowd to produce his vehicle registration and proof of insurance even after Winterrowd invoked his Fifth Amendment rights to silence and to the assistance of counsel because those rights did not apply in Winterrowd's situation.
The remaining issue is whether Winterrowd, by invoking his privilege against self-incrimination, could lawfully refuse the police officers' demands that he produce his vehicle registration and proof of insurance. The answer is "no": motorists have no Fifth Amendment right to refuse authorized police requests for production of their vehicle registration and proof of insurance.
See Larkin v. Hartigan, 250 Ill.App.3d 969, 189 Ill. Dec. 630, 620 N.E.2d 598, 602 (1993) ("There is nothing unconstitutional about requiring a vehicle owner to verify [that] his insurance sufficiently meets all legal requirements."); People v. Goodin, 257 Mich.App. 425, 668 N.W.2d 392, 395-96 (2003) (motorists have no Fifth Amendment privilege to refuse to produce their driver's license, registration, and name and address).
Accord: State v. Adams, 181 Ariz. 383, 891 P.2d 251, 253-54 (App.1995); State v. Melemai, 64 Haw. 479, 643 P.2d 541, 545-46 (1982); People v. Lucus, 41 Ill. 2d 370, 243 N.E.2d 228, 230-31 (1968); People v. Samuel, 29 N.Y.2d 252, 327 N.Y.S.2d 321, 329-330, 277 N.E.2d 381, 386 (1971); Lamb v. State, 488 P.2d 1295, 1296-97 (Okla.Crim.App.1971); Commonwealth v. Long, 831 A.2d 737, 747-750 (Pa.Super.2003); State v. Smyth, 121 R.I. 188, 397 A.2d 497, 499-500 (1979); Banks v. Commonwealth, 217 Va. 527, 230 S.E.2d 256, 257-59 (1976).
See also California v. Byers, 402 U.S. 424, 427-434, 91 S. Ct. 1535, 1537-1540, 29 L. Ed. 2d 9 (1971) (holding that hit-and-run statutes that require motorists to produce identification do not violate the Fifth Amendment).
For these reasons, the district court's judgments are AFFIRMED.
NOTES
[1] 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1947078/
|
923 F. Supp. 580 (1996)
Denise KATZMAN, et al., Plaintiffs,
v.
VICTORIA'S SECRET CATALOGUE, et al., Defendants.
In re COURTROOM TELEVISION NETWORK, Applicant/Proposed Intervenor.
No. 96 Civ. 0003 (RWS).
United States District Court, S.D. New York.
April 29, 1996.
*581 *582 Howard Gotbetter, New York City, for Plaintiffs.
Parker Chapin Flattau & Klimpl, L.L.P., New York City (Stephen F. Harmon, of counsel), for Defendants.
Fried, Frank, Harris, Shriver & Jacobson, New York City (Gregory P. Joseph, of counsel), for Defendants.
Cahill Gordon & Reindel, New York City (Floyd Abrams, of counsel), for Proposed Intervenor.
SWEET, District Judge.
Courtroom Television Network ("Court TV") has moved to be heard, either pursuant to General Local Rule 7 of this Court ("Rule 7") or through a motion to intervene pursuant to Rule 24, Fed.R.Civ.P., to seek permission to televise an oral argument to be held on May 1, 1996, on the motion of Defendants, Victoria's Secret Catalogue, Leslie H. Wexner, Edward G. Razek, Cynthia Fedus, and Betsy Hendrickson (collectively, "Victoria's Secret" or "Defendants"), to dismiss the Amended Complaint and on the motion of Plaintiff Denise Katzman ("Katzman") to amend the Amended Complaint (the "May 1 Argument"). For the reasons set forth below, Court TV's motions to intervene and to televise the May 1 Argument will be granted.
Background
Prior Proceedings
The Complaint was filed on January 2, 1996, as a class action, and an Amended Complaint was filed on January 4, 1996. The filings were reported in a number of news publications and on television.
The Amended Complaint alleges that Victoria's Secret Catalogue, a manufacturer and distributor of women's apparel, which sells large volumes of merchandise via mail order catalogue, has discriminated in its pricing structures with respect to catalogues mailed to different catalogue recipients. The Amended Complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. ("RICO"). A proposed second amended and supplemental complaint alleges violations of the Lanham Act, adds an additional named plaintiff, and provides additional detail on the alleged discriminatory scheme. Two pretrial motions are pending: Defendants' motion to dismiss the Amended Complaint, which challenges the legal sufficiency of the discriminatory pricing claims, and Katzman's motion to serve and file the second amended and supplemental complaint. The motions are scheduled to be heard on May 1, 1996.
The Nature of the Application
The instant application to be heard and to televise the May 1 Argument was heard on its return date, April 17, 1996, and was opposed by Defendants. It was considered fully submitted on that date.
Court TV is a news television network, which reports on legal and judicial systems within the United States and abroad. Since its creation, Court TV has specialized in extended, complete coverage of civil and criminal trials and has televised over four hundred such trials, as well as numerous oral arguments, both on motions before trial courts and in appellate proceedings. Court TV has televised fifty-one cases in federal court, both before district courts (including this Court) and courts of appeals.
Court TV uses one small, stationary camera, which makes no noise and requires only existing courtroom lighting. The camera is placed away from the proceedings and can be operated by remote control by a Court TV technician. Small microphones record only the public record. The equipment is no more distracting in appearance than reporters with notebooks or artists with sketch pads.
Court TV seeks to televise the May 1 Argument gavel-to-gavel. Court TV will not *583 state whether it will carry the May 1 Argument live or when or if it will be broadcast.
Discussion
The Motion to Intervene Will be Granted
Generally, "representatives of the press and general public `must be given an opportunity to be heard on the question of their exclusion.'" Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 609 n. 24, 102 S. Ct. 2613, 2621 n. 24, 73 L. Ed. 2d 248 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401, 99 S. Ct. 2898, 2916, 61 L. Ed. 2d 608 (1979) (Powell, J., concurring)). Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that intervention shall be granted as of right when an applicant:
claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Court TV has articulated an interest relating to this action: its interest in broadcasting to its viewers an event it deems newsworthy the May 1 Argument.
With respect to the second criterion of Rule 24(a)(2), neither Katzman nor Defendants adequately represent the interest of Court TV. Defendants have vigorously opposed Court TV's motion and, thus, plainly do not represent Court TV's interests. Katzman supports the application but possesses an entirely different interest. Important interests are best championed by those most directly affected by their impairment. See, e.g., In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 351 (S.D.N.Y. 1996) (granting newspaper's motion to intervene to be heard on issue of access to sealed court materials); In re Akron Beacon Journal, 1995 WL 234710, at *2-5 (S.D.N.Y. Apr. 20, 1995) (granting newspaper's motion to intervene to seek modification of protective order); United States v. Yonkers Bd. of Educ., 587 F. Supp. 51, 52 (S.D.N.Y.) (granting reporter's motion to intervene to seek to tape court proceedings), aff'd, 747 F.2d 111 (2d Cir.1984). Accordingly, Court TV meets the second criterion for intervention, and its motion to intervene pursuant to Rule 24 will be granted.
Local Rule 7 is Controlling
Rule 7, entitled "Photographs, Radio, Recordings, Television," reads, in pertinent part, as follows:
No one other than court officials engaged in the conduct of court business shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court.
S.D.N.Y.Gen.R. 7.
This rule was promulgated by the Board of Judges of this District as a result of Congress' determination that "all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business." 28 U.S.C. § 2071(a) (1988). Pursuant to that statute, the Federal Rules of Civil Procedure provide:
Each district court, acting by a majority of its district judges, may, after giving appropriate public notice and an opportunity for comment, make and amend rules governing its practice.... A local rule takes effect on the date specified by the district court and remains in effect unless amended by the court or abrogated by the judicial council of the circuit.
Rule 83(a)(1). Fed.R.Civ.P. Rule 7, which was enacted by a majority of this Court's judges, took effect on June 30, 1988, see Marisol A. v. Giuliani, 95 Civ. 10533 (RJW), 1996 WL 91638 at *1 (S.D.N.Y. Mar. 1, 1996), and is the only local rule at present that addresses the topic of television, cameras, and related matters.[1]
*584 On September 20, 1994, the Judicial Conference of the United States "declined to approve" the recommendation of its Committee on Court Administration and Case Management to permit generally the "photographing, recording, and broadcasting of civil proceedings in federal trial and appellate courts." That decision followed a two-year-long "Pilot Program" on television in federal trial courts, in which this Court participated.
On March 12, 1996, the Judicial Conference resolved that "each Court of Appeals may decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments." At the same time, the Judicial Conference approved a resolution "strongly urging each judicial council to adopt pursuant to 28 U.S.C. § 332(d)(1) an order reflecting the Conference's September 1994 decision not to permit the taking of photographs and radio and television coverage of proceedings in U.S. district courts." In addition, "the Conference also voted to strongly urge circuit judicial councils to abrogate any local rules of court that conflict with this decision, pursuant to 28 U.S.C. § 2071(c)(1)."
However, Section 331 of the Judicial Code, which established the Conference, excludes from its authority the changing or overruling of district court rules. This Court evaluated the authority of the Judicial Conference in its recent decision in Marisol A., 1996 WL 91638, at *1. There, the Honorable Robert J. Ward ruled that "the policy of the Conference does not overrule or supplant the Local Rules adopted by the Board of Judges of this District Court." See 28 U.S.C. §§ 331, 2071(c) (1988). Marisol A., 1996 WL 91638, at *1. Judge Ward held, "the Court should consider the Conference policy only as a persuasive factor in the exercise" of its discretionary powers under Rule 7. Id.; accord United States v. Cacciatore, 487 F.2d 240, 243 n. 2 (2d Cir.1973) (rejecting reliance on Judicial Conference report that provided shorter time period for disposing of criminal cases than did the rules of this Court, noting: "[w]hatever the merits of this recommendation of the Judicial Conference, the fact remains that it has never been implemented by the District Court for the Southern District of New York by rule or otherwise....").
There is, then, no binding authority other than Local General Rule 7 that addresses the topic of television. While the recent action of the Judicial Conference is persuasive, this Court is not required to defer to it. See Marisol A., 1996 WL 91638, at *1.
Rule 7 Provides Discretion to Grant the Relief Requested
Although Rule 7 does not state in the affirmative that court proceedings may be televised, it plainly permits cameras in the courtroom with a judge's written permission. "Television", though not mentioned in the text of the rule, appears in its title. Indeed, the title of a statutory provision can easily resolve "any possible ambiguity" in interpreting the meaning of that provision. Mead Corp. v. Tilley, 490 U.S. 714, 723, 109 S. Ct. 2156, 2162, 104 L. Ed. 2d 796 (1989); accord F.T.C. v. Mandel Bros., Inc., 359 U.S. 385, 388-89, 79 S. Ct. 818, 822, 3 L. Ed. 2d 893 (1959). On its face, then, Rule 7, as Judge Ward found in Marisol A., 1996 WL 91638, at *1, grants a judge of this Court discretion to authorize television of proceedings in his or her courtroom.
In the face of plain language such as that in Rule 7, a venture into a rule or statute's etiology for the purposes of finding another less permissive and discretionary meaning is generally inappropriate. As our Court of Appeals has noted:
[T]he first canon of statutory construction is that "a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, [503 U.S. 249, 253] 112 S. Ct. 1146, 1149 [117 L. Ed. 2d 391] (collecting cases). Indeed, "[w]hen the words of a statute are unambiguous, ... this first canon is also the last: `Judicial inquiry is complete.' Id. (quoting Rubin v. United States, 449 U.S. 424, 430 [101 S. Ct. 698, 701, 66 L. Ed. 2d 633] (1981)). Finally, "unless *585 otherwise defined, [statutory] words will be interpreted as taking their ordinary, contemporary, common meaning."
United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 259, 130 L. Ed. 2d 179 (1994); accord, e.g., Wetzler v. FDIC, 38 F.3d 69, 73 (2d Cir.1994).[2] The same rules of construction apply particularly to rules promulgated by the court itself pursuant to congressional authority, such as Rule 7.
The carefully constructed legislative history argument of Victoria's Secret to bestow another meaning on Rule 7 is, in any event, ultimately no more solid than the plain language interpretation. The former Rule 7, McKinney's New York Rules of Court, S.D.N.Y. Gen.R. 7 (West 1988) ("Former Rule 7") read as follows:
The taking of photographs and the use of recording devices in the courtroom of its environs, except by officials of the court in the conduct of the court's business, or radio or television broadcasting from the courtroom or its environs, during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate, whether or not the court is actually in session, is prohibited.
It is argued that the added reference to a "transmitter, receiver [or] portable telephone" and the omission of any reference to "radio", "television", "broadcasting", or "judicial proceedings" suggest that Rule 7 was adopted to address security concerns about the presence and use of electronic devices in the Courthouse and to bring within the prohibitory ambit of Rule 7 technology not already mentioned.
However, clear wording of a blanket prohibition in Former Rule 7 was abandoned in the formulation of the current rule. In fact, Former Rule 7 was changed to grant judges discretion to permit the use of such technology in their courtrooms.
By order dated May 16, 1991, the Southern District Board of Judges adopted guidelines, stating in relevant part:
At its meeting of May 2, 1991, the Board of Judges of the Southern District of New York adopted guidelines for a pilot program, known as "Cameras in the Courtroom," which would allow the limited use of certain recording and transmitting devices in the Courtroom. This subject is covered by Joint Local General Rule 7 which generally prohibits the use of such equipment.
ORDERED that effective July 1, 1991, the Guidelines for Cameras in the Courtroom adopted May 2, 1991 shall preempt Local General Rule 7 but only to the extent inconsistent therewith.
Defendants argue that this language clearly demonstrates that Rule 7 prohibits televising proceedings. Yet the adoption of court-wide guidelines can instead be seen as nothing more than a measure to ensure consistent and, thus, meaningful results from the Pilot Program, which was, in essence, a study.
In sum, the plain language of Rule 7 vests discretion to permit televised proceedings in each individual judge of this Court, and reference to the context of its revision is thus unnecessary. Even if the history is considered, the questions raised fail to present convincing evidence that Rule 7 was meant to continue the blanket prohibition against televised proceedings contained in Former Rule 7.
Discretion Will Be Exercised to Grant the First Amendment Requested Relief
During the last thirty years, studies conducted by state and federal jurisdictions to evaluate the effect on the judicial process of the presence of cameras in courtrooms have demonstrated that televised coverage of trial court proceedings does not impede the fair administration of justice, does not compromise the dignity of the court, and does not impair the orderly conduct of proceedings. *586 Increased media access to and knowledge of the workings of the judiciary have compelled a sea change from the middle of this century, when nearly every state, as well as the federal criminal courts, barred any in-court audio-visual coverage. Beginning in the 1970's and 1980's, rapid advances in technology and the incorporation of television into America's daily information diet convinced states to begin to experiment with cameras in the courtroom and to study their effects on the proceedings. Led by Florida, and with the subsequent imprimatur of the United States Supreme Court, see Chandler v. Florida, 449 U.S. 560, 101 S. Ct. 802, 66 L. Ed. 2d 740 (1981), forty-seven states, according to Court TV, have permitted television in their courtrooms with proper procedural protections for all participants, first on an experimental basis and then on a permanent one.
The results of studies of these experiments, conducted between 1979 and 1994, establish that a silent, unobtrusive in-court camera can increase public access to the courtroom without interfering with the fair administration of justice. New York, for instance, has conducted three different studies evaluating successive experiments. In each case cameras not only were determined not to have impaired the conduct of fairness of any proceeding, but were determined to have enhanced public education. The most recent of these evaluations reported, among other things, that because "[r]elatively few people ever attend court proceedings ... [t]elevision coverage ... exposes greater numbers of citizens to our justice system," Report of the Committee on Audio-Visual Coverage of Court Proceedings at 86, televised coverage of proceedings "engenders a deeper understanding of legal principles and processes," id., cameras have enabled the public, to greater effect than previously possible, to monitor whether "justice is handed out fairly and impartially," id. at 90, and "reporting on court proceedings, both by newspaper and broadcast reporters, frequently is more accurate and comprehensive when cameras are present." Id. at 91. The New York study was in accord with the many that had preceded it determining that technology made it possible for cameras to enter courtrooms without disturbing proceedings, that witnesses, jurors and attorneys remained unaffected, id. at 93, and that cameras ensured greater fairness toward parties by judges. Id. at 91-93.
As noted above, the Judicial Conference Pilot Program, in effect from January 1, 1993, through December 31, 1994, suggested similar results. The study of the Pilot Program produced by the Federal Judicial Center (the "Federal Study") revealed an overwhelmingly positive impact as a result of the presence of cameras. Electronic Media Coverage of Federal Civil Proceedings, Federal Judicial Center, 1994 ("Federal Report"). Based on a review of numerous prior state studies, judge and attorney evaluations submitted in connection with the Pilot Program, and interviews with participants, the Federal Study concluded, among other things:
1) Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program. Federal Report at 7.
2) Judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice. Id.
3) Judges, media representatives, and court staff found the guidelines governing the program to be generally "workable" and "judges and court staff" report[ed] that members of the media were very cooperative and complied with the program guidelines and any other restrictions imposed. Id.
Based upon these findings, the Case Management Committee charged with overseeing the Pilot Program submitted to the Judicial Conference a report and recommendation that camera coverage of civil proceedings, both trial and appellate, be made permanent and be extended to all federal courts.
The concerns raised by Defendants are countered by these studies and by the circumstances of the matter at bar. No witnesses or jurors will be present at the May 1 *587 Argument, see Marisol A., 1996 WL 91638, at *2, and the proceeding cannot be distinguished from an appellate oral argument, which may now be televised in our Court of Appeals and in the Ninth Circuit.
Fears of attorney grandstanding and that the court's dignity will be compromised in the context of an oral argument are unfounded. A comparison to the recent trial of O.J. Simpson is unwarranted. On this topic, the Supreme Court's admonition in Bridges v. California, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941), is more than instructive:
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.
314 U.S. at 270-71, 62 S. Ct. at 197-98.
Concern has also been expressed arising from editorialization and the selective use of "soundbites" from the footage of courtroom broadcasts. Here, the May 1 Argument will be televised gavel-to-gavel on Court TV. But even if it were not to be, as the Florida Supreme Court has stated, "newsworthy trials are newsworthy trials, and ... they will be extensively covered by the media both within and without the courtroom whether [cameras are permitted] or not." In re Petition of Post-Newsweek Stations, 370 So. 2d 764, 776 (Fla.1979). Even small portions of televised coverage can add to the informational value of a reporter's summary of events. Report of the Committee on Audio-Visual Coverage of Court Proceedings, at 91 ("[R]eporting on court proceedings, both by newspaper and broadcast reporters, frequently is more accurate and comprehensive when cameras are present."). More fundamentally, however, courts cannot control editorial judgments by journalists, whether electronic or print, for to do so would be plainly at odds with the First Amendment. See Craig v. Harney, 331 U.S. 367, 375, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546 (1947) (reporter could not constitutionally be held in contempt of court for his unfair summary of trial proceedings).
Should this action reach a jury, as customary, all potential jurors with any knowledge of the case will be excused, thus disposing of Defendants' concerns in this regard.
Victoria's Secret also claims a risk of prejudice from the accusation of conduct alleged to violate the RICO statute. allegations in the pleadings and in media interviews of Katzman and her attorney. Marisol A. explicitly disposed of this argument, noting that "this Court is unwilling to deny access to information because of the perceived inability of the public to grasp such information." Marisol A., 1996 WL 91638, at *2.
Finally, Victoria's Secret contends that this action lacks the compelling policy concerns that led Judge Ward to permit televising of the proceedings in Marisol A. It contends that in stark contrast to Marisol A., the May 1 Argument involves purely private parties in a commercial dispute. There are no profound social, political, or legal issues to be addressed at the May 1 Argument, they note, and they contend that to the extent that this litigation is "newsworthy," the predominant interest is prurient.
It is worth noting in passing that at least some important issues are raised in this case, regardless of its merits, including consumer fraud. Further, in any class action there are some benefits that arise from widespread public information regarding the suit, particularly where notice will be received by potential class members, enabling them to contact counsel or to opt out of the class.
In Marisol A., Judge Ward stated that he would allow broadcast of the proceedings, because "the public interest would be served" by televising the case. Marisol A., 1996 WL 91638, at *2. However, that ruling did not purport to set a rigid "public interest" test for all cases. Indeed, it is particularly inappropriate for any court to exercise its discretionary powers so as to restrict access to information for the sole reason that the subject matter of a proceeding is deemed *588 by the court not to be newsworthy. As the First Circuit observed in a related context:
A court may not selectively exclude news media from access to information otherwise made available for public dissemination.... [I]t allows the government to influence the type of substantive media coverage that public events will receive. Such a practice is unquestionably at odds with the first amendment. Neither the courts nor any branch of government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.
Anderson v. Cryovac, Inc., 805 F.2d 1, 9 (1st Cir.1986) (declaring unconstitutional order exempting from protective order particular media organization); cf. Police Dept. v. Mosley, 408 U.S. 92, 96, 92 S. Ct. 2286, 2290, 33 L. Ed. 2d 212 (1972) (government "may not select which issues are worth discussing and debating in public facilities").
In addition to the particulars of the present application as set forth above, the concerns, rights, and privileges of the parties, the intervenor, and the public must be assessed, including the possible constitutional impropriety of excluding cameras from civil court proceedings, an issue neither raised nor briefed by the parties.
This Court's persuasion on this issue is another factor compelling the exercise of discretion in favor of Court TV, although not necessary to the decision in light of the considerations already set forth.
The First Amendment requires that court proceedings be open to the public, and by extension the news media, absent the most clearly articulated and compelling reasons for closing them in a particular circumstance. It has long been recognized that "[w]hat transpires in the court room is public property," Craig v. Harney, 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546 (1947), particularly in light of the unquestioned proposition, articulated by Justice Frankfurter, that "[o]ne of the demands of a democratic society is that the public should know what goes on in courts...." Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920, 70 S. Ct. 252, 255, 94 L. Ed. 562 (1950) (denying cert. to 193 Md. 300, 67 A.2d 497 (1949)).
Our Court of Appeals has recognized that "there is an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom." Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d 16, 22 (2d Cir.1985). In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), the Supreme Court for the first time "unequivocally h[e]ld[] that an arbitrary interference with access to [court proceedings] is an abridgement of the freedoms of speech and of the press protected by the first amendment." Id. at 583, 100 S. Ct. at 2830-31 (Stevens, J., concurring). The Supreme Court later held that the guarantee of public proceedings in criminal trials includes the voir dire process, Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) and access to transcripts of proceedings. Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1985). As the Richmond Newspapers Court noted, "throughout its evolution, the trial has been open to all who cared to observe," and such openness is essential to the perception of fairness in the administration of justice. Id. at 564-71, 104 S. Ct. at 2821-24. Openness carries with it the right to speak or print court proceedings or portions of them.
Moreover, in the context of the right of press access to the courtroom, there can no longer be a meaningful distinction between the print press and the electronic media. As Justice Stewart has observed:
That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgement of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively. A person touring [a] jail can grasp its reality with his own eyes and ears. But if a television reporter is to convey the jail's sights and sounds to those who cannot *589 personally visit the place, he must use cameras and sound equipment. In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see.
Houchins v. KQED, Inc., 438 U.S. 1, 17, 98 S. Ct. 2588, 2598, 57 L. Ed. 2d 553 (1978) (Stewart, J., concurring).
The Court of Appeals ruled in Westmoreland that it was "not yet prepared" to recognize a constitutional right to televise court proceedings. Westmoreland confronted a challenge to a denial by this district's Board of Judges of a waiver to the Former Rule 7 sought by the Cable News Network ("CNN"). Both parties to the action had consented to having the proceedings broadcast. The Westmoreland court reaffirmed the public's right to attend trials and the inclusion of the news media within the public. Id. at 22. The Court noted CNN's argument that:
because a courtroom is so small that not every person who wishes to attend can be accommodated or can even arrange to be physically present, the public's rights are wholly diluted. The public may read about the trial from the printed transcript or a newspaper account only after some delay, or it may receive radio or television reports similarly filtered through a reporter, with no opportunity to hear and observe directly the trial in process. The public, CNN argues, is relegated by the operation of the rule to "qualitatively inferior, stale and wooden interpretations of what occurred."
Id. at 23. But, the Court held,
There is a long leap, however, between a public right under the First Amendment to attend trials and a public right under the First Amendment to see a given trial televised. It is a leap that is not supported by history. It is a leap that we are not yet prepared to take. It is a leap that many federal judges and, indeed, apparently the judges of the Southern District of New York ... oppose.
Id. The Court then articulated more specifically the concerns that, aside from history, kept it from making that leap, noting that:
There may indeed come a time when the experimentation with television coverage establishes that the concerns with the expenditure of judicial time on administration and oversight of broadcasting; the necessity of sequestering juries so that they will not look at the television program of the trial itself; the difficulty of empaneling an impartial jury in the case of retrial; the necessity of larger jury panels or increased use of marshalls; the psychological effect on witnesses, jurors, lawyers and judges; and related considerations of "solemnity," and "dignity," and the like are considered secondary or basically irrelevant as impediments to the search for truth when a given case is televised. At such a time the presumption may well be that all trials should be televised, or televisable....
Id.
Westmoreland relied in part on the Supreme Court's holding in Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965), that the press' First Amendment right to access to a criminal trial did not include the right to televise that trial. The Estes Court explicitly recognized that its holding ultimately relied on the then-state of technology, and its statement that "when the advances in [technology] permit reporting by ... television without [the] present hazards to a fair trial, we will have another case." 381 U.S. at 540, 85 S.Ct. at 1631.
Twelve years after the Westmoreland decision and twenty-two years after the Estes holding, the advances in technology and the above-described experiments have demonstrated that the stated objections can readily be addressed and should no longer stand as a bar to a presumptive First Amendment right of the press to televise as well as publish court proceedings, and of the public to view those proceedings on television.
Conclusion
The balance of factors considered above, even excluding the constitutional concerns, weigh heavily in favor of granting the application *590 of Court TV. Permission is therefore granted to film the May 1 Argument and to televise it.
In order to insure an appropriate procedure for the argument, a pre-motion conference will be held in Courtroom 18C at twelve o'clock noon on April 30, 1996, to be attended by counsel for the parties and Court TV.
It is so ordered.
NOTES
[1] Rule 53, Fed.R.Crim.P., bans broadcasts from the courtroom, but the Federal Rules of Civil Procedure are silent on this topic. The fact that Rule 7 cannot apply in criminal cases in the face of Rule 53 does not invalidate its application in civil proceedings.
Canon 3(A)(7) of the Code of Judicial Conduct for the United States Judges, promulgated by the Judicial Conference, formerly provided that a judge should prohibit televising of court proceedings except for the presentation of evidence, for the perpetuation or a record, or in the case of investitive, ceremonial, or naturalization proceedings. That rule was removed from the Canon, however, in 1988.
[2] Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 113 S. Ct. 2549, 125 L. Ed. 2d 128 (1993) did not stand for the proposition, as Victoria's Secret contends, that in determining the meaning of a statute, a court should consider "all available evidence." Id. at 177-78, 113 S. Ct. at 2562. The Court in Sale noted that it had sought its conclusion from "all available evidence" in the course of construing a highly ambiguous statute. Id. It did not reach any holdings regarding statutory construction, and it did not confront an unambiguous statute like the rule at hand.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2601572/
|
228 P.3d 542 (2009)
2009 OK CIV APP 102
Lucindy Ann MOSS, individually and as parent and next friend of Arthur Jackson Adney, a minor, Plaintiff/Appellant,
v.
Michael WITTMER and Thelma Wittmer, Defendants,
v.
Oklahoma Health Care Authority, Appellee.
No. 106,407. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.
Court of Civil Appeals of Oklahoma, Division No. 4.
October 29, 2009.
*543 Tye H. Smith, Charles G. Smart, Carr & Carr, Attorneys, Tulsa, Oklahoma, for Plaintiff/Appellant.
Ashley D. Williams, Lynn Rambo-Jones, Howard J. Pallott, Oklahoma City, Oklahoma, for Appellee.
DOUG GABBARD II, Presiding Judge.
¶ 1 Lucindy Ann Moss (Plaintiff) appeals an order enforcing a statutory lien in favor of the Oklahoma Health Care Authority (OHCA). We reverse and remand with directions.
FACTS
¶ 2 In 1997, Plaintiff's son, Arthur Jackson Adney (AJ), then one year old, was seriously injured when he was attacked by a pet monkey owned by Defendants, Michael and Thelma Wittmer. AJ recovered after extensive medical treatment, but was left with permanent impairment and disfigurement, primarily to one of his hands. Some of his medical bills were paid through Medicaid. OHCA is Oklahoma's Medicaid agency.
¶ 3 Plaintiff did not seek compensation or file a claim against the Wittmers before the expiration of the two-year statute of limitations for negligence, now found at 12 Ohio St. 2001 § 95. However, nine years later, in 2006, Plaintiff spoke to an attorney, learned that the Wittmers had a homeowners' insurance policy that provided coverage, and began efforts to seek compensation for her son's damages.[1]
¶ 4 According to Plaintiff's pleadings, her attorney advised the insurer that AJ had injuries in excess of $500,000, and, after extensive investigation, the Wittmers' insurer agreed to pay its $100,000 policy limits. Ultimately, the parties signed a written settlement agreement, Plaintiff filed a friendly suit, and the parties sought the trial court's approval of the settlement agreement.[2] Prior to the court hearing on this agreement, the insurer advised OHCA of the settlement and OHCA asserted its intent to enforce its statutory lien against $16,737.25 of the settlement proceeds as reimbursement for Medicaid payments on AJ's behalf. Although the trial court approved the settlement agreement, it ordered $16,737.25 of the proceeds be placed in trust, pending resolution of OHCA's claim.
*544 ¶ 5 OHCA's claim was heard by the same judge a few weeks later. OHCA asserted that what is now 63 O.S. Supp.2008 § 5051.1 gave it a statutory lien in the amount of the Medicaid payment, which lien was enforceable against the proceeds recovered from the Wittmers by AJ "up to the amount of the damages for the total medical expenses ... whether by judgment or by settlement or compromise." Plaintiff asserted that OHCA could only enforce its lien against that part of the proceeds which represented payment for medical expenses, and that medical expenses were not recovered as part of the settlement. Alternatively, Plaintiff asserted that even if OHCA could enforce its lien against the entire settlement fund, then it should receive no greater ratio of recovery than the child received based upon the total value of the child's claim.
¶ 6 The trial court ruled in OHCA's favor, holding that the lien was enforceable against the disputed proceeds, stating, in part:
The Court further finds that the Plaintiffs contend that the medical expenses were not part of the recovery as the petition on behalf of the minor sought only damages for the personal injury and that the natural parents of the minor would be responsible for the medical bills as opposed to the minor.
The Court finds that the minor would be considered a recipient of benefits as contemplated under 63 O.S. § 5051.1 and furthermore, that the lien is statutory and therefore not subject to pro rata reduction. Young v. [Columbia] Southwestern Medical Center, 1998 OK CIV APP 124 [964 P.2d 987], American Medical Security v. Josephson, 2000 OK CIV APP 127 [15 P.3d 976], Tomlinson v. Continental Casualty Company, 2003 OK CIV APP 84 [77 P.3d 628].
The Court further finds that the statute creates a debt on behalf of the recipient of benefits and does not distinguish whether the recipient was a minor or an adult. (Emphasis added).
¶ 7 Plaintiff appeals.[3]
STANDARD OF REVIEW
¶ 8 The remedy of enforcing a lien is a matter of equitable cognizance. Mehdipour v. Holland, 2007 OK 69, ¶ 25, 177 P.3d 544, 549. Issues of statutory construction are matters of law, which we review de novo, or without deference to the trial court's determination of statutory language. Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599, 603.
ANALYSIS
¶ 9 Title 63 O.S. Supp.2008 § 5051.1 provides, in part:
A. 1. The payment of medical expenses by the Oklahoma Health Care Authority for or on behalf of or the receipt of medical assistance by a person who has been injured or who has suffered a disease as a result of the negligence or act of another person creates a debt to the Authority, subject to recovery by legal action pursuant to this section. Damages for medical costs are considered a priority over all other damages and should be paid by the tortfeasor prior to other damages being allocated or paid.
...
D. If the injured or diseased person asserts or maintains a claim against another *545 person or tortfeasor on account of the injury or disease, the Authority:
1. Shall have a lien upon payment of the medical assistance to the extent of the amount so paid upon that part going or belonging to the injured or diseased person of any recovery or sum had or collected or to be collected by the injured or diseased person up to the amount of the damages for the total medical expenses... whether by judgment or by settlement or compromise. The lien authorized by this subsection shall:
a. be inferior only to a lien or claim of the attorney or attorneys handling the claim on behalf of the injured or diseased person, the heirs or personal representative,
b. not be applied or considered valid against any temporary or permanent disability award of the claimant due under the Workers' Compensation Act,
c. be applied and considered valid as against any insurer adjudged responsible for medical expenses under the Workers' Compensation Act, and
d. be applied and considered valid as to the entire settlement, after the claim of the attorney or attorneys for fees and costs, unless a more limited allocation of damages to medical expense is shown by clear and convincing evidence[.] (Emphasis added).
¶ 10 In this case, Plaintiff does not dispute that OHCA is generally entitled to the § 5051.1 lien. OHCA paid medical expenses to or on behalf of AJ who was injured as a result of the negligence of another person; AJ asserted a claim against the tortfeasors on account of the injury; and AJ received a payment for damages "by judgment or by settlement or compromise." Instead, Plaintiff asserts that OHCA can only enforce its statutory lien against that part of the settlement proceeds which were for "medical expenses," and, here, the settlement proceeds did not contain payment for any medical expenses. Plaintiff asserts that she did not seek such expenses because her right to assert a claim for them was barred by 12 O.S.2001 § 95(A)(3).
¶ 11 In its order, the trial court does not address this issue. Instead, it ruled in favor of OHCA after concluding that "the minor would be considered a recipient of benefits as contemplated under 63 O.S. § 5051.1 and furthermore, that the lien is statutory and therefore not subject to pro rata reduction." In other words, the trial court found it made no difference whether or not medical expenses were included in the settlement proceeds because OHCA was entitled to enforce its statutory lien against any proceeds recovered by the recipient child. This legal conclusion was in error.
¶ 12 First, the statute restricts the enforcement of the statutory lien to that portion of a settlement which is allocated to medical expenses. This legislative intent is clearly demonstrated by the language of the statutory presumption contained in § 5051.1(D)(1)(d) which provides that the lien shall "be applied and considered valid as to the entire settlement, after the claim of the attorney or attorneys for fees and costs, unless a more limited allocation of damages to medical expenses is shown by clear and convincing evidence." (Emphasis added). Second, enforcement of the lien against the entire settlement fund is contrary to the federal Medicaid statute's anti-lien provision, set forth in 42 U.S.C. § 1396p(a)(1) (OCIS 2009).[4]
¶ 13 This latter principle was explained in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006), a case similar to the one at bar. There, Arkansas' Medicaid authority paid $215,000 of medical bills for a plaintiff injured in a car accident. The plaintiff then sued and settled the case for $550,000, which the parties stipulated was only about one-sixth of the reasonable value of the claim. They also stipulated that $35,000 of the proceeds were for medical expenses. On appeal, a unanimous U.S. Supreme Court held that even if the Arkansas *546 lien law was "consistent with federal [Medicaid anti-lien] law insofar as it encumbers proceeds designated as medical payments, the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement." Id., 547 U.S. at 270, 126 S. Ct. at 1755.
¶ 14 As stated above, OHCA may only enforce its statutory lien "upon that part" of the settlement proceeds paid by the tortfeasor for medical expenses. The trial court erred in finding otherwise.
¶ 15 Ultimately, this case must be resolved by determining whether the negligence settlement includes an amount paid for medical expenses. This presents a question of fact which must be resolved by the trial court. In resolving this factual question, the statute provides a presumption that the lien may be applied against the entire settlement fund unless the presumption is overcome by clear and convincing evidence that "a more limited allocation of damages to medical expense is shown." In this case, Plaintiff asserts that the court had such evidence, although this is disputed by OHCA.[5] Generally, where there is conflicting evidence on an issue of fact, we defer to the judgment of the trial court. Mueggenborg v. Walling, 1992 OK 121, 836 P.2d 112. Here, however, the trial court made no factual findings as to whether the settlement proceeds included an allocation for medical expenses. Because this case is dependent upon the trial court's resolution of this issue, we reverse and remand with directions that it conduct an evidentiary hearing thereon, affording both parties the opportunity to present evidence.
CONCLUSION
¶ 16 Accordingly, the trial court's order is reversed and remanded with directions that an evidentiary hearing be conducted consistent with this Opinion.
¶ 17 REVERSED AND REMANDED WITH DIRECTIONS.
RAPP, and FISCHER, JJ., concur.
NOTES
[1] Title 12 O.S.2001 § 96, allows a minor to bring a legal action within one year of attaining majority. AJ does not turn 18 years of age until 2013.
[2] Because AJ was a minor, court approval was necessary pursuant to 12 O.S. Supp.2008 § 83.
[3] OHCA's motion to dismiss this appeal, which was denied by the Supreme Court and is now reurged by OHCA, is hereby denied. Contrary to OHCA's argument, the facts show that on November 18, 2008, Plaintiff timely responded to a Supreme Court order in a manner that the Court deemed sufficient to allow this appeal to proceed.
OHCA's assertion that Plaintiff was required to notify it "prior to a compromise or settlement against a third party," as provided in 63 O.S. Supp.2008 § 5051.1(H), and that her failure to do so violated OHCA's due process rights and constituted a waiver of her right to oppose enforcement of the lien, is also denied. We are unable to find that OHCA was prejudiced by any deficiency of notice. In fact, OHCA received notice of the settlement prior to the trial court's approval of same, although the notice was given by the insurer instead of Plaintiff. Contrary to its assertion, OHCA was not entitled to be named as a party and the statute does not mandate its appearance and participation at the settlement hearing. Even if it had done so, the amount it claimed was set aside until its claim could be decided, and it is being afforded ample opportunity to fully litigate its claim. Thus, any error would be harmless. See 12 O.S.2001 § 78.
[4] This statute prohibits States from imposing liens "against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan," with certain exceptions not applicable here.
[5] The appellate record consists primarily of the court file and a transcript of the settlement hearing, and contains substantial evidence supporting Plaintiff's claim. For example, the parties stipulated that OHCA made payments on behalf of AJ more than eight years ago and that Plaintiff's right to recover medical expenses in a negligence claim has been barred by the two year statute of limitations set forth in 12 O.S.2001 § 95(A)(3); Plaintiff's lawsuit did not seek to collect medical expenses paid on behalf of her child; OHCA's response contains correspondence supporting Plaintiff's assertion that the settlement proceeds did not include payment for AJ's medical expenses; and the transcript of the settlement hearing contains testimony offered by Defendants' attorney in which Plaintiff states that the settlement did not include payment for any medical expenses. However, OHCA asserts that the file also contains contradictory evidence, such as language in the settlement agreement which refers to medical expenses. OHCA also asserts Plaintiff could have recovered medical expenses in an action brought under the dog bite statute, 4 O.S.2001 § 42.1. We make no conclusions regarding this conflicting evidence and law.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2896525/
|
NO. 07-03-0362-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
OCTOBER 23, 2008
______________________________
MICHAEL LEROY CAMERON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 9TH DISTRICT COURT OF MONTGOMERY COUNTY;
NO. 01-09-05992CR; HONORABLE FRED EDWARDS, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION ON SECOND REMAND
FROM COURT OF CRIMINAL APPEALS
Following a plea of not guilty Appellant, Michael Leroy Cameron, was convicted by
a jury of delivery of a controlled substance. Finding the three enhancement allegations in
the indictment to be true, the trial court assessed sentence at twenty-five years
confinement. By two issues, Appellant asserted: (1) the trial court erred in prohibiting his
prior attorney from testifying unless Appellant waived his attorney-client privilege, and (2)
his trial counsel was ineffective. By opinion dated August 16, 2004, this Court overruled
Appellant’s ineffective assistance of counsel issue. Cameron v. State, No. 07-03-0362-CR,
2004 WL 1839794 (Tex.App.–Amarillo Aug. 16, 2004) (not designated for publication). By
that same opinion, this Court determined that Appellant failed to preserve error as to his
first issue; however, on Appellant’s second petition for discretionary review, the Court of
Criminal Appeals reversed the decision of this Court, holding that Appellant’s contention
had been preserved for review. The Court of Criminal Appeals went on to hold that the trial
court had abused its discretion in failing to admit testimony from Appellant’s former
attorney and remanded the case to this Court with instructions to conduct a harm analysis.
Cameron v. State, 241 S.W.3d 15, 22-23 (Tex.Crim.App. 2007).
Factual Background
Because the background facts have been previously set out in the prior opinions of
this Court and the Court of Criminal Appeals, for purposes of our harm analysis, we restate
only those background facts as are necessary to an understanding of our analysis.
Ron Pickering and Philip Cash were working as undercover narcotics officers at the
Handle Bar Club in Conroe during the evening hours of April 25, 2001, and the early
morning hours of April 26th. During their undercover operation, Pickering made
arrangements with Stacy Warden to purchase some cocaine. After making a cell phone
call to an unidentified number, Warden indicated to Pickering that “it would be there within
15 minutes.” Sometime later, an individual entered the club, made eye-contact with
Warden, and then exited the club. Pickering identified that individual as Appellant.
2
According to Pickering’s testimony, Warden then followed Appellant to a vehicle in the
parking lot of the club. Pickering and Cash exited the club and observed Warden meet
with Appellant at the vehicle. Warden then crossed the parking lot, where she delivered
a plastic bag containing cocaine to Pickering in exchange for $120.00. Warden then
walked back to Appellant and handed him the money. A few moments later, while
Pickering was still standing in the parking lot, Warden introduced Appellant to him as
“Mike.” At that time, Appellant asked Pickering “how he liked the blow,” (the street name
for powder cocaine) and advised him that “if [he] needed anything more that [he] should
contact [Warden].”
No arrests were made at that time. Instead, Pickering described the investigation
as a “buy and walk,” where their status as undercover agents would not be compromised.
Appellant and Warden were identified by subsequent police investigation, the case was
referred to the district attorney’s office, and the grand jury indicted Appellant for the offense
of delivery of a controlled substance on September 25, 2001.
At trial, Appellant attempted to offer the testimony of his former attorney, Guy Jones,
for the purpose of establishing discrepancies in the existence and content of a handwritten
police offense report. Appellant was prevented from offering that testimony when the trial
court ruled that, in order to present that evidence, he would have to waive his attorney-
client privilege. According to Jones’s testimony presented during Appellant’s Bill of
Exceptions, the police offense report in the district attorney’s file was a typewritten report
which identified the suspect vehicle as a dark blue truck. An earlier, handwritten report (no
longer located in the district attorney’s file) identified the vehicle as a white truck.
3
According to Jones, the two reports were otherwise identical. The Court of Criminal
Appeals determined that the trial court abused its discretion in refusing to allow Jones to
testify. Cameron, 241 S.W.3d at 22-23. As directed by the Court, we will now conduct a
harm analysis on the trial court’s refusal to allow Jones to testify.
Harm Analysis
Error in the exclusion of evidence is evaluated under Texas Rule of Appellate
Procedure 44.2, with constitutional error evaluated under the “beyond a reasonable doubt
standard” of subparagraph (a) and nonconstitutional error evaluated under the “substantial
rights” standard of subparagraph (b). Generally, the exclusion of evidence is classified as
nonconstitutional error. Walters v. State, 247 S.W.3d 204, 218 (Tex.Crim.App. 2007).
However, the improper exclusion of evidence can present a constitutional issue if it
effectively prevents the accused from presenting relevant evidence that is a vital portion
of the case or significantly undermines or precludes the presentation of a defense by the
accused. Potier v. State, 68 S.W.3d 657, 659-63, 666 (Tex.Crim.App. 2002).
Because we must apply a different standard of review for purposes of harm analysis
depending upon whether the erroneous exclusion of evidence was of constitutional
dimension, we must first determine whether the trial court’s erroneous exclusion of
evidence in this case constitutes constitutional or nonconstitutional error.
4
Constitutional v. Nonconstitutional Error
Not every erroneous exclusion of a defendant’s evidence amounts to a constitutional
violation. Id. at 659. Here, the error in question was the erroneous exclusion of Guy
Jones’s testimony concerning the existence and content of a handwritten police offense
report that was identical to the existing typewritten report with the sole exception of the
color of the suspect vehicle. Even though the color of the vehicle was never an issue,
Appellant sought to impeach the credibility of the police officers’ testimony by establishing
that they had given conflicting descriptions of Appellant’s vehicle and had possibly even
altered the offense report. Therefore, the existence of a previous handwritten report and
the discrepancy in the color of the vehicle described in the two reports could have been
relevant to the credibility of the police officer witnesses for purposes of impeachment.
If the testimony in question had been presented to the jury, and if the jury chose to
believe that testimony, then the jury could have determined either that the officers were
careless in their investigation at best, or they engaged in the intentional falsification of
evidence at worst. However, as more fully discussed hereinbelow, because Appellant was
able to attack the credibility of the officers’ testimony through the use of other testimony,
we cannot say that the exclusion of Jones’s testimony significantly undermined the
fundamental elements of Appellant’s defense. Accordingly, we find that the error did not
amount to constitutional error, but was instead, nonconstitutional error.
5
Standard of Review
Nonconstitutional error involving the exclusion of evidence requires reversal only if
we determine that an appellant's substantial rights were affected. See Tex. R. App. P.
44.2(b); Walters, 247 S.W.3d at 218. A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury's verdict. Morales v.
State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In other words, a criminal conviction
should not be overturned for nonconstitutional error if the appellate court, after examining
the record as a whole, “has fair assurance that the error did not influence the jury, or had
but a slight effect.” Id.
When the claimed error is the exclusion of a relevant piece of evidence, as is the
case here, conducting a meaningful harm analysis necessarily requires consideration of
all evidence which was admitted at trial. Id. In assessing the likelihood that the jury's
decision was adversely affected by the error, the appellate court should consider
everything in the record, including both testimonial and physical evidence admitted for the
jury's consideration, the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in the case.
Id. The reviewing court must also consider any jury instruction given by the trial judge, the
State's theory, any defensive theories, closing arguments, and even voir dire, if material
to an appellant's claim. Id.
6
Analysis
In this case, Appellant presented two basic defensive theories: (1) Warden was the
sole participant in the offense because she had the narcotics in her possession all along,
and (2) the officers misidentified him as being the person in the vehicle from whom Warden
acquired the narcotics immediately prior to her delivery of the same to Pickering.
While the exclusion of Jones’s testimony came at the conclusion of Appellant’s
case-in-chief, he did not wait until that moment to introduce his potential defenses. In voir
dire, Appellant’s counsel questioned the prospective jurors concerning conflicts in
testimony, their relationship to law enforcement personnel, their opinions concerning the
credibility of police officer witnesses, and the possibility of misidentification of the accused.
Appellant’s counsel touched upon factors contributing to misidentification, including lighting
conditions, distance, personal contact, and prior consumption of alcohol by the person
making the identification - all factors Appellant’s counsel subsequently developed during
cross- examination of the State’s witnesses and through the presentation of defense
witnesses.
During the State’s case-in-chief, Appellant’s counsel vigorously cross-examined
Officers Pickering and Cash concerning their undercover activities and their ability to
positively identify Appellant as the person who delivered narcotics to Warden immediately
prior to her delivery to Officer Pickering. The officers were extensively questioned
concerning their investigation techniques, including the possibility that Warden had the
narcotics hidden in her bra all along. The officers’ ability to positively identify Appellant was
7
also placed into question based upon their consumption of alcohol during the course of
their undercover investigation. They were further questioned concerning the lighting
conditions in the parking lot, their proximity to the transaction between Warden and the
individual in the vehicle, their identification of Appellant and his vehicle, their failure to
investigate the telephone records of the phone used by Warden to call her supplier, their
failure to have the baggie containing the narcotics fingerprinted, and their decision to delay
the arrest of the persons involved.
In his opening statement, Appellant’s counsel admitted that Appellant was at the
Handle Bar Club on the night in question; however, he also called into question the ability
of the officers to positively identify him as the person in the parking lot who might have
delivered the narcotics to Warden. Furthermore, he questioned the ability of the officers
to identify the vehicle due to their proximity to the transaction and the poor lighting
conditions present.
Appellant then offered the testimony of Shelly Cummings and Elliott Brown to
confirm his version of the events of the night in question, including Appellant’s presence
at the bar. Appellant also offered the testimony of Ronald Lehmiller, an investigator, as
well as, Ismail Bhai and Roy Wilkins, adjacent business owners, to place into question the
lighting conditions in the parking lot and the ability of the officers to identify Appellant, or
Appellant’s vehicle, as being involved in the narcotics transaction witnessed by them.
Finally, during closing arguments Appellant’s counsel again questioned the
investigation techniques of Officers Pickering and Cash, calling into question their reliability
8
and credibility. Appellant’s closing arguments could be paraphrased as, no audio tape of
the transaction; no immediate arrest and suspect identification; no fingerprint investigation;
no marked money; no bogus stop, search and seizure; no investigation of the telephone
records, in other words “nothing but questions.” In fact, Appellant’s entire closing
argument can be seen as a criticism of the officers investigation and a plea for the jury to
rely upon the principle of reasonable doubt to acquit Appellant.
Because the State did not offer any evidence that directly contradicted Appellant’s
first defensive theory, the “Warden did it” theory, Appellant’s postulation of that theory did
not turn on the credibility of the officers’ testimony. Therefore, the erroneous exclusion of
Jones’s testimony did not preclude or hinder Appellant in his presentation of that defense.
As to the defensive theory of misidentification, the credibility of the officers was
called into question. The officers testified that Appellant came into the bar, made eye
contact with Warden, and then returned to his vehicle in the parking lot where he
subsequently delivered the narcotics to Warden. Their testimony directly tied Appellant to
the delivery of the narcotics. Their positive identification of Appellant did not, however,
depend solely upon their ability to identify the occupant of a vehicle in a dark parking lot.
Their identification was bolstered by Appellant’s prior appearance in the bar, as well as his
being introduced to the officers as “Mike,” and his direct comment to the officers
concerning their satisfaction with the purchase.
Another relevant factor in a harm analysis is the character of the error and how it
might be considered in connection with other evidence in the case. Motilla v. State, 78
9
S.W.3d 352, 359 (Tex.Crim.App. 2002). In this case, the excluded evidence did not go
directly to the issue of guilt or innocence but was instead relevant to the collateral issue of
credibility of the State’s key witnesses. Though relevant, the exclusion of the evidence did
not prevent Appellant from attacking their credibility. Therefore, in this case, the character
of the error amounted to the exclusion of supporting evidence, not the exclusion of all
evidence relevant to the issue of credibility of the witnesses.
Finally, though not outcome determinative, evidence of Appellant’s guilt is also a
factor to consider in conducting a harm analysis under Rule 44.2(b). Id. Subject to a
determination of their credibility, both of the State’s witnesses provided direct testimony
concerning Appellant’s guilt. The testimony of either witness, taken alone, would have
been sufficient to support a finding of guilt. The jury is the sole judge of the credibility of
the witnesses and the weight to be given their testimony, and it may choose to believe all,
some, or none of the testimony presented. We must, therefore, give great deference to
the jury’s determinations, particularly those concerning the weight of the evidence and the
credibility of the witnesses. Johnson v. State, 23 S.W.3d 1, 14 (Tex.Crim.App. 2000).
Based upon our analysis of the entire record, from voir dire through final closing
arguments, we cannot say that the exclusion of Jones’s testimony had a substantial and
injurious effect or influence in determining the jury’s verdict. In other words, we are able
to say that we have a “fair assurance” that the error did not did not significantly impair the
presentation of Appellant’s misidentification defensive theory, or otherwise influence the
jury, or had but a slight effect. Morales, 32 S.W.3d at 867.
10
Conclusion
Accordingly, we find the error to be harmless. Appellant’s first issue is overruled.
Having previously overruled Appellant’s second issue pertaining to ineffective assistance
of counsel, Cameron v. State, No. 07-03-0362-CR, 2004 WL 1839794 (Tex.App.–Amarillo
Aug. 16, 2004) (not designated for publication), the trial court’s judgment is affirmed.
Per Curiam
Do not publish.
11
|
01-03-2023
|
09-08-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/1874197/
|
586 So. 2d 397 (1991)
FLORIDA LEAGUE OF CITIES, INC., Town of Pembroke Park, and Village of Virginia Gardens, Appellants,
v.
ADMINISTRATION COMMISSION and Department of Community Affairs, Appellees.
TOWN OF PEMBROKE PARK, Appellant,
v.
STATE of Florida, ADMINISTRATION COMMISSION, Appellee.
VILLAGE OF VIRGINIA GARDENS, Appellant,
v.
STATE of Florida, ADMINISTRATION COMMISSION, Appellee.
TOWN OF PEMBROKE PARK, Appellant,
v.
STATE of Florida, ADMINISTRATION COMMISSION, and State of Florida, Department of Community Affairs, Appellees.
Nos. 90-854, 89-3056, 90-52, 89-3187, 90-43 and 90-975.
District Court of Appeal of Florida, First District.
August 27, 1991.
*399 Kraig A. Conn and Jane C. Hayman, Assistant General Counsel, Tallahassee, for appellant Florida League of Cities.
David J. Russ and Karen Brodeen, Asst. Gen. Counsel, Tallahassee, for appellee Dept. of Community Affairs.
Frank E. Matthews and Michael P. Petrovich, Hopping Boyd Green & Sams, Tallahassee, for appellant Town of Pembroke Park.
Jonathan Davidson and David M. Maloney, Executive Office of Governor, and John J. Rimes, II, Office of Atty. Gen., Tallahassee, for appellee Admin. Com'n.
*400 Ross A. McVoy, Barry F. Rose, Vivian F. Garfein and Carter N. McDowell, Fine Jacobson Schwartz Nash Block & England, Tallahassee, for appellant Village of Virginia Gardens.
BARFIELD, Judge.
The appeals in these six cases are brought by Florida League of Cities, Inc. (League), Town of Pembroke Park (Pembroke), and Village of Virginia Gardens (Village). All of the cases arise under the Growth Management Act, passed in 1985, and, in particular, the Local Government Comprehensive Planning and Land Development Regulation Act, sections 163.3161-163.3243, Florida Statutes (1985), which requires every municipality in the state to submit comprehensive plans to the Department of Community Affairs (DCA) by certain specific dates established for each municipality by FAC Rule 9J-11.008. If a plan is submitted late or not in compliance with the statutory requirements, the Administration Commission (Commission), composed of the Governor and Cabinet, imposes sanctions and/or specifies remedial action for the local government. The possible sanctions include a withholding of state funds from revenue sharing, grants, and other programs. With regard to this duty the Commission staff drafted a "Sanctions Policy" for use in cases of late submission and noncompliance, which was adopted by the Commission on October 24, 1989. The sanctions policies were first employed with regard to appellants Pembroke and Village. The appeals involving these two municipalities arise from the imposition of these sanctions, and the municipalities' unsuccessful attempts to receive a section 120.57, Florida Statutes, hearing on the sanctions issue. The League appeal arises from the League's unsuccessful attempt to challenge the sanctions policy of the Commission as an invalid rule. Pembroke, an intervenor in the League's rule challenge, also filed a notice of appeal.
On November 14, 1989, the League filed a petition for a section 120.56 rule challenge in which it challenged the validity of "certain unadopted, illicit rules of the Administration Commission" concerning the sanctions for noncompliance and nonsubmission of local comprehensive plans. The petition also sought a determination that section 163.3184(11), Florida Statutes (1989), constituted an illegal delegation of legislative power. Pembroke and Village, as petitioners, and the DCA, as respondent, successfully sought to intervene.
The petitioners asserted that the sanctions policies constituted rules under the definition of section 120.52(16), and that the policies and section 163.3184(11) were invalid delegations of legislative authority. The Commission denied that the policies were rules which were required to be adopted by section 120.54, or that the statute was unconstitutional. The DCA asserted that the policies were emerging agency action which did not have to be promulgated as rules at that time. The matter proceeded to final hearing on January 24, 1990. On March 2, 1990, the hearing officer issued a final order finding that the sanctions policies were not invalid rules which should have been adopted, that the sanctions policies were not subject to review in a 120.56 proceeding, and dismissing the petition.
Pembroke is a small municipality located in Broward County. Pursuant to FAC Rule 9J-12.006(4) its proposed comprehensive plan was due to be submitted to DCA for its initial compliance review October 1, 1988. The plan was not mailed by Pembroke to DCA until December 28, 1988, and was stamped as received by DCA January 9, 1989. By letter dated January 17, 1989, DCA advised Pembroke that the plan was not complete, and that the planning documents should not be transmitted until a public hearing was held in accordance with FAC Rule 9J-11.008(1)(a). The letter advised that the transmittal requirements should be met, and the omitted items provided. By letter dated January 23, 1989, the Commission advised Pembroke that DCA filed a notice that Pembroke was more than 90 days late in submitting its plan.
The letter also advised that the DCA notice requested the Commission to impose sanctions on Pembroke and set forth the procedure and deadlines which would be *401 employed in the determination of the issue. It directed Pembroke to file a response to DCA's notice within 30 days, and provided for a meeting to be conducted by the Administration Commission within 15 days which "will operate as an informal proceeding under section 120.57(2), F.S., unless the local government files with its response a substantiated allegation that the 90-day period has not yet elapsed." The letter further provided that within 20 days of the meeting DCA would file a recommendation as to the appropriate sanctions to be imposed, and that the Commission staff would then submit a proposed order to the Commission for final action.
On July 27, 1989, Pembroke submitted its four page response detailing the history, beginning in January 1987, of Pembroke's attempts to formulate its comprehensive plan. According to the response, Pembroke knew the plan was due October 1, 1988, but that its attorney spoke with a representative from DCA and concluded that the imposition of sanctions was "remote" due to "the complexity of the situation" and DCA's awareness of the difficulties Pembroke was experiencing completing the plan on time. According to the response, the completed plan was transmitted to DCA "in early March 1989."
On August 3, 1989, DCA sent a memorandum to the Commission detailing the state funding provided to Pembroke since 1987 to assist in its completion of its comprehensive plan, summarizing Pembroke's efforts to compile a plan, and recommending that Pembroke be sanctioned by withholding of annual state revenue sharing in an amount equal to the fraction of the year (5.3 months) that the plan was late. A copy of DCA's recommendation was provided for Pembroke. The DCA's cover letter explained that the DCA's recommendation was predicated on the March 10, 1989 receipt of the plan, five months late. The letter also directed any questions to the chief of the bureau of local planning.
A hearing was held on the matter before the Commission on September 26, 1989, at a regularly scheduled meeting of the Governor and Cabinet. Also before the Commission for possible sanctions for late submission were Indian Creek Village and the Village of Virginia Gardens. The attorney for Pembroke spoke on its behalf and asserted that the plan was submitted late and in an incomplete form, because of a series of errors by the planner hired to prepare it, and because of political turmoil and internal problems, Pembroke's elected officials were unaware of what was occurring. He asserted that since the deficiencies were brought to Pembroke's attention, it had worked diligently to remedy the problems and produce a proper plan which was submitted in March 1989. He also argued that the proposed sanction, amounting to $191,000, would be 10% of Pembroke's annual budget, and was a disproportionate sanction for the nature of the offense. He asked that $5,940 worth of revenue sharing be withheld instead. Also speaking before the Commission was one of Pembroke's commissioners, who reiterated the attorney's comments. Also speaking before the Commission was a representative of the Florida Audubon Society, and the Secretary of DCA, who urged the Commission to impose sanctions on the small communities whose plans were admittedly late and/or not in compliance.
The members of the Commission then undertook a discussion of how the statutory sanctions should be applied. The Governor favored an approach under which the state funding was withheld permanently, but the Treasurer indicated he preferred some method by which some of the funds might be released once the municipality was in compliance. The Commission could not agree how to proceed with regard to the three communities before it at that meeting and, noting that this was the first time it was considering the imposition of sanctions for failure to file a comprehensive plan, moved for staff to formulate a policy for the imposition of sanctions. The three items concerning the municipalities were deferred until the October 24 meeting.
On October 24 the sixth item on the agenda was the presentation of the staff's recommendation of a general policy for imposing sanctions for late submittal, followed *402 by the deferred consideration of the three municipalities' late submission of their plans. As part of the Commission's consideration of the proposed sanctions policy the League, DCA, Pembroke, and Village through their representatives, spoke briefly. The League and the two municipalities all objected to the promulgation of the policy without input from the affected local governments, and to the severity of the sanctions, and the Village of Indian Creek specifically argued that the policy constituted an unpromulgated rule. DCA responded that the policy was incipient and, as emerging policy, was not yet subject to rulemaking requirements. DCA pointed out that the local governments had requested notice of what the sanctions policy would be in the future, and that the policies would be applied to only 2 percent of the local governments required to submit plans. The Commission asked that DCA send notice by certified mail return receipt to the local elected officials, personally, immediately after a plan's deadline for submission passed, and that it further devise a policy by which the government would be advised that the matter was about to be brought before the Commission. It was then moved and passed that the policy be adopted.
The proposed orders imposing sanctions on Indian Creek and Village were adopted unanimously. There was a brief discussion regarding the application of the just-adopted policy to the three local governments who came before the Commission prior to the policy's adoption, but the Commission secretary pointed out the policy contained an express provision for the situation where the local government did not have advance notice of the policy. On behalf of Pembroke, one of its commissioners and its attorney spoke, and advised the Commission that the late submission of the plan resulted from a variety of factors, including the fact that the planner hired by Pembroke misrepresented its degree of completeness, that the mayor denied receiving any notice of the plan's due date, that it was not until January 1989 that Pembroke Commission discovered the plan due date had passed, that extensive political turmoil had ensued, and that once on notice of the requirements, the Pembroke Commission made a diligent effort to promptly submit a proper plan. Pembroke's Commissioner also acknowledged the plan's lateness, but asked that the Commission reconsider the harshness of the penalty. The Attorney General added, on behalf of the Pembroke, that it had undergone tremendous mismanagement in the past decade, and that the current local government should be credited with turning around Pembroke's image. He recommended that instead of calculating sanctions from the March 10, 1989 date when the plan was ultimately submitted in complete form, that they be calculated using the January 31, 1989 date as the date of submission, when an incomplete plan was submitted. By a vote of 3 to 4, the Commission voted to adopt the harsher, staff recommended sanction. Because section 163.3164 requires that the imposition of sanctions requires the affirmative vote of the governor and at least three other members, the 3 to 4 vote, in which the governor was in the minority, was insufficient for any action. After additional discussion two members in the majority agreed to change their vote and the final vote was 5 to 2, with the Governor in the majority, to adopt the proposed final order imposing sanctions.
The final order rendered November 1, 1989, finds that Pembroke submitted its plan 160 days after the due date, and provides that Pembroke will be denied 160/365 of the total state revenue sharing funds for fiscal year 1989-90, in the total amount of $190,299. The order further provides that 90/365 of the funds, $107,043, would be released to the Pembroke if the plan was ultimately found to be in compliance. The order further provided that Pembroke could seek judicial review of the order pursuant to section 120.68 by filing a notice of appeal within 30 days.
On November 14, 1989, Pembroke filed a Petition for Formal Administrative Hearing with the Commission. The petition asserted Pembroke had not been afforded any clear point of entry until the rendition of the final order imposing sanctions. The petition also pointed out that the final order *403 purports to withhold municipal gas tax funds despite the absence of any authority for the withholding of such funds in Chapter 163, Part II. Pembroke asserted its substantial interests were affected as the proposed sanction constituted 10% of its annual budget for fiscal year 1989, and that disputed issues of material fact existed with regard to the proper submittal date, the imposition of sanctions for the first 90 days a plan is late, the uniform application of the sanctions policy and the adequacy of the notice afforded to Pembroke.
On November 17, 1989, Pembroke filed a notice of appeal to this court of the November 1 final order imposing sanctions.
Pembroke's petition for formal administrative hearing was placed on the agenda for the December 5, 1989 meeting of the Commission as item 4. Village had also filed a petition, and was placed on the agenda as item 3. The attorneys representing the municipalities spoke briefly, and the Commission then voted unanimously to adopt the staff's proposed order denying the petitions. A final Order Denying Petition was rendered December 8, 1989. On January 4, 1990, Pembroke filed a notice of appeal to this court.
On March 23, 1990, this court remanded the final order imposing sanctions in order to allow the Commission to omit the previous provision for the withholding of municipal gas tax revenues. The total amount of revenue sharing withheld was reduced from $190,299 to $168,006. An amended final order to this effect was rendered April 13, 1990.
Village is a small municipality located in Dade County. Pursuant to FAC Rule 9J-12.006(1) its proposed comprehensive plan was due to be submitted to DCA for its initial compliance review by July 1, 1988. The plan was not sent to DCA until January 27, 1989, and was stamped received by DCA February 6, 1989. On July 11, 1988, DCA wrote Village advising that the required plans had not been submitted by the July 1 due date. In the letter DCA acknowledged that Village's planner had advised that the plan would be ready in approximately one month, and DCA reminded Village of the requirements for submission. On October 7, 1988 DCA provided "formal notice" by letter that the South Florida Regional Planning Agency was being requested by DCA to prepare and submit Village's plan, which was now more than 90 days late. On December 19, 1988, DCA advised the Commission that the Village plan was over 90 days late and requested that the Commission impose sanctions. By letter dated January 3, 1989, the Commission advised Village that the DCA had filed notice that Village was more than 90 days late submitting its plan. The letter also advised that the DCA notice requested the Commission to impose sanctions on Village, and set forth the procedure and deadlines which would be employed in the determination of the issue. It directed Village to file a response to DCA's notice within 30 days, and provided for a meeting to be conducted by the Commission within 15 days which, "will operate as an informal proceeding under section 120.57(2), F.S., unless the local government files with its response a substantiated allegation that the 90-day period has not yet elapsed." The letter further provided that within 20 days of the meeting DCA would file a recommendation as to the appropriate sanctions to be imposed, and that the Commission staff would then submit a proposed order to the Commission for final action. The Village plan was adopted and transmitted to DCA January 27-February 6, 1989.
On January 30, 1989, Village's chief administrator filed a "Response to the Department of Community Affairs Notice" stating that the plan had not been timely submitted "due to oversight and error on the part of the consulting staff member." By letter dated February 13, 1989, DCA advised Village that its plan, as submitted, omitted numerous elements required by the statutes. The letter asked that the missing items be supplied no later than Feb. 27, 1989. In a memorandum dated June 20, 1989 the secretary of DCA advised the Commission that two municipalities, Indian Creek Village and the Village of Virginia Gardens, had failed to submit their plans by the July 1, 1988, due date. The Village of Virginia Gardens had not supplied the items missing from its plan as of June 20, *404 and further had failed to supply DCA with the minutes of meetings requested by DCA to substantiate Village's explanation that the late submission was solely the fault of Village's chief administrator. The memo detailed the funding provided to Village since 1987 to assist in the completion of the comprehensive plan, and recommended that Village be sanctioned by a withholding of state revenues equivalent to the fraction of the year that the plan was late. In the case of Village, the recommendation was that .6 of the funding (7.2 months) be withheld. On August 7, 1989 the South Florida Regional Planning Council completed and submitted the plan for Village.
By letter dated August 22, 1989 the Commission advised Village that DCA had submitted its proposed sanctions that it requested the Commission impose on Village. The letter stated that the DCA recommendation would be taken up at a regularly scheduled meeting conducted by the Commission on September 14, 1989 "which will serve as the City's opportunity to be heard in accordance with Section 120.57, Florida Statutes." The letter also advised of the time and location of the September 6 Cabinet Aide's meeting, and advised that Village could appear and make presentations at either, or both, meetings.
Apparently the matter was rescheduled for a September 26 Commission meeting, with the Aide's meeting being held September 20. Village did not appear for the Aide's meeting, but the mayor sent a letter to be read which pointed out the small size and limited resources of Village and stated that the late submission was the result of the planner misrepresenting the completeness of the plan, and that Village had diligently attempted to cooperate with the local and state agencies involved and submit a complete plan in compliance with all the requirements.
At the September 26 Commission meeting Village was on the agenda for possible sanctions for late submission as was Pembroke and Indian Creek Village. Appearing on behalf of Village were its city attorney and mayor. Both asserted that the penalty proposed by DCA was too harsh for such a small municipality, and that the late submission had been unintentional and that Village was already in compliance with the intent of the Growth Management Act. The members of the Commission then undertook a discussion of how the statutory sanctions should be applied. The Governor favored an approach under which the state funding was withheld permanently, but the Treasurer indicated he preferred some method by which some of the funds might be released once the municipality was in compliance. The Commission could not agree how to proceed with regard to the three communities before it at that meeting and, noting that this was the first time it was considering the imposition of sanctions for failure to file a comprehensive plan, moved for staff to formulate a policy for the imposition of sanctions as discussed above with respect to Pembroke.
Following discussions and comments by the representatives of the municipalities and the League as discussed above, the proposed orders imposing sanctions on Indian Creek and Village were adopted unanimously without further discussion. The final order rendered November 1, 1989, finds that Village submitted its plan 220 days late, and provides that Village will be denied 220/365 of the total state revenue sharing funds for fiscal year 1989-90, in the total amount of $92,767. The order provides that 90/365 of the funds, $37,950, would be released to Village if the plan was ultimately found to be in compliance. The order further provides that Village could seek judicial review of the order pursuant to section 120.68 by filing a notice of appeal within 30 days.
On November 14, 1989, Village filed a Petition for Formal Administrative Hearing with the Commission. The petition followed the course of the petition of Pembroke and resulted in an amended final order reducing the amount of revenue sharing withheld from $92,767 to $83,089.
Pembroke, an intervenor in the League's rule challenge to the Commission sanctions policy, also filed a notice of appeal of the final order of the Division of Administrative Hearings finding that the sanctions policies were not invalid rules which should have been adopted and that the policies were therefore not subject to 120.56 rule challenge and dismissing the petition. The *405 six cases involving the rule challenges, the appeal of sanctions and the denial of petitions for formal hearings, have all been consolidated for review.
The issues for review under the rule challenges are as follows:
I. The "sanctions policies" adopted by the Administration Commission constitute rules which were required to be adopted in accordance with Sec. 120.54, Fla. Stat.
A. The sanctions policies adopted by the Administration Commission on October 24, 1989, are or were intended to be generally applicable and impose requirements not specifically required by statute or by an existing rule and, therefore, constitute rules as defined in Sec. 120.52(16), Fla. Stat. (1989).
B. The sanctions policies are generally applicable.
C. The "sanctions policies" are intended by their own effect to create rights, to require compliance or otherwise to have a direct and consistent effect of law.
II. The sanctions policies cannot be considered to be incipient or emerging under the authority of McDonald v. Department of Bank and Finance because said policies are solidified and substantially-affected persons are not given a full opportunity to challenge the application of the policies pursuant to Sec. 120.57, Fla. Stat.
III. The "noncompliance policy" constitutes an invalid exercise of delegated legislative authority pursuant to Sec. 120.52(8)(C), Fla. Stat., by impermissibly imposing sanctions beginning with the date that the Department of Community Affairs issues a notice to find a plan not in compliance in contravention of Sec. 163.3184, Fla. Stat., which provisions contemplate that sanctions will not begin until after a local government has failed to complete remedial actions specified by the Administration Commission pursuant to Sec. 163.3184(11), Fla. Stat.
IV. The "noncompliance policy" constitutes an invalid exercise of delegated legislative authority pursuant to Sec. 120.52(8)(C), Fla. Stat., because the provisions relating to when the sanctions begin to run contravene the clear legislative intent of Sec. 163.3184 by infringing upon a municipality's exercise of its statutory rights to a hearing before a hearing officer and the Administration Commission.
V. The "non-submission policy" constitutes an invalid exercise of delegated legislative authority pursuant to Sec. 120.52(8)(C, Fla. Stat., by impermissibly calculating sanctions "from the first day after the due date established by the Department of Community Affairs Rule 9J-12, F.A.C... ." in contravention of Sec. 163.3167(2), Fla. Stat., which states that a municipality or county that fails to submit its plan and is late "... by more than 90 days shall be subject to sanctions."
VI. The "sanctions policies" constitute an invalid exercise of delegated legislative authority pursuant to Sec. 120.52(8)(C), Fla. Stat., by mandating that revenue sharing be withheld in contravention of Sec. 163.3184(11), Fla. Stat., which allows the Commission to exercise discretion in whether to impose sanctions.
VII. Florida Statutes, Sec. 163.3167(2) and 163.3184(11)(a) unlawfully delegate the uniquely legislative power of determining the nature and extent of fines which may be assessed.
The issues in the municipalities appeals from the imposition of sanctions and denial of petition for formal hearing, are as follows:
I) Disputed issues of material fact exist concerning the Commission's action in which the municipalities have not been afforded the opportunity to present evidence and legal argument.
II) The municipalities were never afforded a clear point of entry into the administrative process.
III) Sections 163.3167(2) and 163.3184(11)(a), Florida Statutes, are unlawful delegations of legislative power.
IV) The Commission unlawfully exercised its statutory authority in its policy and its actions toward the municipalities.
In the first point addressed to rule challenge, appellants argue that the "sanctions *406 policy" adopted by the Administration Commission on October 24, 1989 constitutes rules which must be adopted in accordance with section 120.54. We disagree.
Section 120.52(16) provides in pertinent part:
"Rule" means any agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule ...
The seminal case interpreting section 120.52(16), and addressing at what point an agency policy statement constitutes a rule which must be duly promulgated as such by the agency, is McDonald v. Dept. of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977), appeal after remand, 361 So. 2d 199 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1370 (Fla. 1979). McDonald provides:
The APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of section 120.54... .
... .
... [T]he Section 120.54 rulemaking procedures are imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law... .
While the Florida APA thus requires rulemaking for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. There are quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.
(emphasis in original, footnote omitted) 346 So.2d at 580-581. The continuing viability of McDonald is acknowledged by several recent decisions. See e.g.: Rabren v. Dept. of Professional Regulation, 568 So. 2d 1283 (Fla. 1st DCA 1990); Florida Optometric Ass'n v. Dept. of Professional Regulation, Board of Opticianry, 567 So. 2d 928 (Fla. 1st DCA 1990); Florida Public Service Commission v. Central Corp., 551 So. 2d 568 (Fla. 1st DCA 1989).
Agency policy is incipient or evolving (and therefore exempt from rulemaking) when the agency has not yet "solidified" its position on policy in a particular area, and instead seeks to exercise its authority on a case-by-case basis until it has focused on a common scheme of inquiry derived through experience gained from adversary proceedings. City of Tallahassee v. Florida Public Service Commission, 433 So. 2d 505 (Fla. 1983). Rulemaking cannot be forced upon an agency and its policy may be developed, at the agency's choice, through the adjudication of individual cases. Rabren v. Dept. of Professional Regulation; Florida Public Service Commission v. Central Corp.
The sanctions policy fits the definition of incipient or evolving policy, and not the section 120.52(16) definition of a rule. With regard to the provisions of section 120.52(16), the policy isn't one of "general applicability" as it applies only to municipalities who are late or not in compliance in submitting their comprehensive plans. Every municipality in the state subject to the requirements of the Growth Management Act is potentially subject to the policy, but only those which fail to comply with the statutory and rule requirements will actually be considered for application of the policy. The policy has been applied, for the first time, to the first municipalities to ever come before the Administration Commission for "nonsubmission." On the record before this court, the "noncompliance" portion of the policy has never been applied to any one at all. The sanctions policy is also not one of "general applicability" because it is not intended by its own effect to create rights or to require compliance. The rights afforded and compliance required are the product of the statutes.
*407 The sanctions policy arguably "implements" or "interprets" law or policy as it sets forth the starting point for the Commission's consideration of the statutory penalties detailed in section 163.3184(11)(a). But as McDonald points out, such a literal reading of the statutory definition of "rule" would "encompass virtually any utterance by an agency." 346 So.2d at 581, quoting Pacific Gas & Elec. Co. v. Federal Power Commission, 506 F.2d 33, 37 (D.C. Cir.1974). The discussions of the Commission, as well as the manner in which the policy was employed as to each of the municipalities, clearly indicates that the sanctions policy is merely a guideline, or a starting point, for the Commission's consideration of the imposition of sanctions in each particular case. Here, the particular circumstances of the late submission of each municipality were considered individually. The case of the Town of Pembroke Park, in particular, was discussed at length, and the possible imposition of less-stringent sanctions was expressly considered and even voted upon. Ultimately, the basic sanctions set forth under the policy were imposed. The quantum of the sanctions varied depending upon how late the belated submission was found to have been. The fact that policy sanctions were applied to all three municipalities is not surprising given the fact that they all submitted virtually identical reasons for the late submission: mistakes and/or misrepresentations by the hired planner, as well as virtually identical mitigating factors upon which the pleas for mercy were based: the small size of the municipality and the resultant harsh effect of the proposed sanction, and the diligent effort of the municipal officials to comply with the law once the nonsubmission was discovered.[1] Given the similarity of excuses, a similarity of the basic sanctions was within the Commission's discretion.
For the same reasons, the policy is clearly an evolving one, which is intended to be utilized to differing extents on a case-by-case basis as described in City of Tallahassee v. Florida Public Service Commission. The hearing officer's conclusion and dismissal was correct.
In their second point addressed to the rule challenge, appellants argue that the sanctions policy cannot be regarded as incipient or emerging under McDonald because the policies are solidified and the parties are not afforded a full opportunity to challenge the application of the policy. We disagree. The sanctions policy is not "solidified" to the point that it cannot be regarded as evolving as discussed above.
Appellants also argue that the policy does not afford substantially affected parties a clear point of entry to pursue section 120.57 proceedings. This argument has merit with regard to the Administration Commission's actions concerning the particular municipalities before this court in these appeals. However, the sanctions policy itself makes no attempt to speak to the hearing procedures. The fact that the parties stipulated, "The potential loss of revenue for a period of six or more months may act as a substantial disincentive to a municipality's willingness to pursue a hearing and challenge the Department of Community Affairs when the Department has issued a Notice of Noncompliance" does not alter the fact that the policy itself does not address adjudication. Whatever "disincentive" the statutorily created sanctions may pose to pursuit of section 120.57 proceedings, they arguably pose a greater disincentive to the filing of plans late or not in compliance. Any disincentive is of statutory origin, and not from the policy. As noted, whether or not the particular municipalities involved in these appeals were properly afforded a clear point of entry is a separate issue addressed in those particular cases.
In their third point addressed to the rule challenge, appellants argue the noncompliance *408 portion of the sanctions policy constitutes an invalid exercise of delegated legislative authority as it imposes sanctions as of the date the DCA issues its notice of noncompliance, rather than waiting until after the local government has failed to complete remedial actions as specified in section 163.3184(11). We disagree.
Section 163.3184(8) provides for the DCA to make a determination within 45 days of submission whether a plan is or is not in compliance. If the DCA finds the plan is not in compliance, section 163.3184(10) provides that the DCA issues a notice of intent to find the plan not in compliance which is forwarded to the Division of Administrative Hearings for a 120.57 hearing. The hearing officer's recommended order is then submitted to the Administration Commission for final agency action. At this point, if the Commission finds the plan not in compliance, under section 163.3184(11), it must specify remedial actions, and may impose sanctions.
Section 163.3184(11)(a) provides:
(11) ADMINISTRATION COMMISSION
(a) If the Administration Commission, upon a hearing pursuant to subsection (9) or subsection (10), finds that the comprehensive plan or plan amendment is not in compliance with this act, the commission shall specify remedial actions which would bring the comprehensive plan or plan amendment into compliance. The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges, or water and sewer systems within the boundaries of those local governmental entities which have comprehensive plans or plan elements that are determined not to be in compliance. The commission order may also specify that the local government shall not be eligible for grants administered under the following programs:
[Subsections 1. through 3. set forth the specific programs and revenue sharing sources.]
(Emphasis added.) The statute plainly directs that remedial actions are mandatory, and that the Commission's imposition of the authorized sanctions is optional and within the Commission's discretion.
The October 24, 1989 sanctions policy provides that once a plan is determined to be not in compliance, "the Commission policy would be to withhold 1/365 of the annual state/local revenue sharing distribution for every day that the plan is out of compliance beginning with the date DCA issued its Notice of Intent ..." until the amended plan is found to be in compliance by the DCA.
If the DCA initially finds a plan in compliance and issues its notice accordingly but, following 120.57 hearing, the Commission instead determines the plan is not in compliance, the sanctions policy provides that the Commission's final order will specify remedial measures to be incorporated by a specific date. If they are not incorporated by that date, 1/365 of the annual state/local revenue sharing distribution will be withheld for every day the plan is out of compliance, beginning with the date the Commission entered its final order until the plan is found to be in compliance by the DCA.
Appellants apparently challenge only the first part of the policy, concerning the imposition of sanctions when both the DCA and then the Administration Commission find the plan not in compliance. Appellants argue sanctions should not be calculated and imposed as of the date of the DCA notice of intent to find the plan not in compliance. Instead, appellants argue the statute represents a clear legislative intent to not impose any sanctions until the local government has failed to comply with the mandated remedial action set forth in the Administration Commission's final order. We do not find any support for this argument in the statute.
Section 163.3184(10)(a) provides that during the administrative hearing held after the DCA has issued its notice of intent to find the plan not in compliance, "the local government's determination that the [plan] is in compliance is presumed to be correct." Section 163.3167(2) provides that the local government submit a "complete proposed comprehensive plan" by the due date. *409 Nothing in the statutes addresses from which point in time the sanctions imposed should be calculated. The manner of the imposition of sanctions is clearly a matter left to the discretion of the Administration Commission by section 163.3184(11)(a). Assuming appellants have any standing to challenge the Commission's policy which has yet to be applied to any local government, we do not think appellants have shown that the policy constitutes an invalid exercise of delegated legislative authority.
As the hearing officer found, section 163.3184(11)(a) clearly seems to contemplate that once the Commission determines a plan is not in compliance, it will issue one final order addressing remedial actions and sanctions. There is no basis in the statute for concluding that sanctions should not be calculated and applied until a local government has failed to comply with the remedial measures ordered. On the contrary, the statute clearly provides that the plans are to be submitted, in compliance, on their due dates. Any plan which is submitted not in compliance, is not in compliance from that day forward. The Administration Commission would be within its discretion in imposing sanctions for noncompliance as of the submittal date. The fact that the statute refers to the plan being presumed correct is a procedural, not a substantive directive. Section 163.3184(10)(a) merely sets forth the relative burdens of proof in the 120.57 hearing to be conducted upon the DCA's determination of noncompliance. The local government does not have to prove its plan is in compliance; the state must prove it is not. The sanctions policy provision for the imposition of sanctions as of the date of the DCA Notice of Intent is not contrary to any provision in the statute, and is not an invalid exercise of delegated legislative authority.
In their fourth point addressed to the rule challenge, appellants argue the noncompliance policy is an invalid exercise of delegated legislative authority as the Commission acknowledges it poses a disincentive to the local governments to pursue their statutorily afforded right to a 120.57 hearing. We disagree.
Prior to the administrative hearing the parties stipulated, "The potential loss of revenue for a period of six or more months may act as a substantial disincentive to a municipality's willingness to pursue a hearing and challenge the Department of Community Affairs when the Department has issued a Notice of Noncompliance."
Any actual imposition of sanctions will not occur until after a 120.57 hearing has been held, and a final determination of noncompliance has been made by the Administration Commission. Only at this point are sanctions imposed. The policy only poses a "substantial disincentive" to those local governments whose plans are not in compliance for a substantial period of time. Any government whose plan is in compliance, or whose plan is out of compliance for only a brief period of time, would not be subject to extensive sanctions. Therefore, it would be more accurate to regard the policy as a substantial disincentive to noncompliance, particularly extended noncompliance. As such, it is consistent with the intent of the Growth Management Act. The disincentive aspect of the sanctions is analogous to a situation involving a criminal defendant. The possibility that an accused may face incarceration if he exercises his right to a jury trial and is found guilty cannot be viewed as a "substantial disincentive" to the exercise of that constitutional right, unless, of course, he is guilty. The possibility of incarceration is intended as a substantial disincentive to the criminal behavior itself. Similarly, the imposition of sanctions is a disincentive to noncompliance, and not to the pursuit of a 120.57 hearing on the issue of noncompliance.
In their fifth point addressed to the rule challenge, appellants assert that the fact that section 163.3167(2)(b) provides for the imposition of sanctions for late submission only if the plan is more than 90 days late precludes the Commission from calculating sanctions for days 1-90. We disagree. The pertinent portion of section 163.3167(2)(b) provides:
Any county or municipality that fails to meet the schedule set for submission of *410 its proposed comprehensive plan by more than 90 days shall be subject to the sanctions described in s. 163.3184(11)(a) imposed by the Administration Commission.
In the proceedings below the appellants and others consistently and erroneously referred to the statutory provision of a "90-day grace period." The statute does not provide a grace period. It merely sets forth the threshold degree of tardiness which will warrant the imposition of sanctions. Plans submitted beyond their due date, but less than 90 days late are nevertheless late; but the local government escapes sanctions. Plans submitted more than 90 days late were late as of midnight on their due date, not as of day 91. The imposition of sanctions calculated as of the first day is in no way contrary to the statute or its intent.
In their sixth point addressed to the rule challenge, appellants argue that contrary to the statute's use of the permissive "may" in discussing the Administration Commission imposition of sanctions, the sanctions policy mandates the withholding of revenue sharing in every case and improperly precludes the exercise of any discretion. We disagree.
Nothing in the policy itself states that it is mandatory or utilizes commonly accepted mandatory words such as "shall." In fact, in keeping with its nature as a non-mandatory "starting point" type of policy, the provisions are written in a grammatically concise, somewhat abbreviated form. The dialog at the Commission meetings on September 26 and October 24, 1989, clearly establishes that the Commission intends for the policy to serve as a general guideline and starting point to be employed in a case-by-case basis as the local governments appear before it on the grounds of having submitted their plans late and/or not in compliance. There is nothing explicit, either in the policy itself, or in the transcripts of the Commission meetings discussing its adoption, which indicates the policy is to be inflexibly applied. The only indications are to the contrary. To the extent that the policy presupposes that sanctions will be imposed for late submittal or noncompliance, the hearing officer correctly found this posture to be reasonable, particularly given the mandatory nature of the Growth Management Act requirements.
In their final point addressed to the rule challenge, appellants argue that sections 163.3167(2) and 163.3184(11)(a) are unconstitutional delegations of legislative authority as only the legislature can properly determine the nature and extent of the fines to be assessed. We disagree.
The legislature cannot delegate the power or authority to enact or declare law, and cannot delegate unrestricted discretion in the application of law. State v. Cain, 381 So. 2d 1361 (Fla. 1980). The doctrine of nondelegation does not preclude the exercise of all agency discretion. Solimena v. State, Dept. of Business Regulation, Division of Pari-Mutuel Wagering, 402 So. 2d 1240 (Fla. 3d DCA 1981), rev. den., 412 So. 2d 470 (Fla. 1982). To determine whether a delegation is invalid the court examines whether the transfer of authority was possible, and if so, whether it was sufficiently restrictive. State, Dept. of Citrus v. Griffin, 239 So. 2d 577 (Fla. 1970), appeal after remand, 257 So. 2d 116 (Fla. 2d DCA 1972), cert. dismissed, 266 So. 2d 36 (Fla. 1972). These factors must be tempered by due consideration for the practical context of the problems sought to be remedied or the policy sought to be effected. Id. So long as the agency is following the legislative purpose, there is no invalid delegation. Solimena. See also McRae v. Robbins, 151 Fla. 109, 9 So. 2d 284, 290-291 (1942) (Justice Whitfield concurring).
In these cases the delegation of discretionary authority on the issues of sanctions was proper. Section 163.3184(11) specifies the general nature of the sanctions in subsection (a): "The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges or water and sewer systems within the boundaries of those local governmental entities ..." Subsection (a)1. through 3. specifies additional particular grant programs for which eligibility may be terminated as a sanction. If the local government's plan was one of the ones required to contain a *411 coastal management element, subsection (b) provides an additional funding sanction under a particular statute. Section 163.3184(11) therefore sets forth the range of sanctions available with specificity. Section 163.3167(2)(b) further limits the imposition of any sanctions for late filing only to those local governments which fail to file their plans within 90 days of its due date. Section 163.3184(11)(a) mandates the Commission to specify remedial actions for any plan determined by the Commission to be not in compliance; the provision of remedial measures is not a matter of discretion.
Article I, section 18 of the Florida Constitution provides: "No administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law." The Commission's discretionary authority to impose sanctions has been duly conferred by law, and the statute provides appropriate guidelines for the exercise of that authority.
In determining whether the legislature has improperly delegated discretion to the agency, we must consider whether the statute establishes standards and guidelines which direct the agency in implementing the law... . When "neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature", unlawful delegation of legislative power may result.
Solimena v. State, Dept. of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d at 1245 (citations omitted).
The imposition of sanctions for a local government's failure to submit a plan on time or in compliance is a matter which could be addressed only on a case-by-case basis. The human factor in such failures would make it impossible for the legislature to provide a more precise or detailed manner of imposing sanctions which would be equitable in each of the myriad possible circumstances. The practical difficulty of the legislature attempting to address "fluid conditions" has been recognized by the courts. In State, Dept. of Citrus v. Griffin, the supreme court pointed out:
Obviously, the very conditions which may operate to make direct legislative control impractical or ineffective may also, for the same reasons, make the drafting of detailed or specific legislation impractical or undesirable... .
... [I]t should be remembered that our Constitution does not deny to the Legislature necessary resources of flexibility and practicality, and when a general approach is required, judicial scrutiny ought to be accompanied by recognition and appreciation of the need for flexibility.
239 So.2d at 581. See also Brewer v. Insurance Commissioner and Treasurer, 392 So. 2d 593 (Fla. 1st DCA 1981) (the legislature may not delegate the power to say what the law is, but it may enact laws which leave some discretion in the operation and enforcement of the law with an administrative official); and Conner v. Joe Hatton, Inc., 216 So. 2d 209 (Fla. 1968), appeal after remand, Joe Hatton, Inc. v. Conner, 240 So. 2d 145 (Fla. 1970) (the distinction is between the delegation of power to make law and the conferring of authority or discretion in executing the law pursuant to and within the confines of the law itself).
The Commission is executing and enforcing law within the specific parameters placed by the legislature on the exercise of its discretion. The only possible basis for a finding of unconstitutionality is the fact that the statutes do not expressly limit the duration of the sanctions imposed. Absent any such limitation, theoretically a local government which submits a plan late or not in compliance could be subject to state revenue loss indefinitely. However, the wording of the statutes sufficiently limit the duration of any sanctions imposed. With regard to late submissions, section 163.3167(2)(b) provides that sanctions may be imposed as described in section 163.3184(11)(a) if a plan is more than 90 days late. It is inherent in the statute that the sanctions will terminate once a plan is submitted. This is also what the sanctions policy adopted by the Commission provides. However, the statutes do not place any express limitation on the duration of sanctions for nonsubmission. With regard to sanctions for noncompliance, section 163.3184(11)(a) *412 clearly contemplates that such sanctions will be imposed only for the duration of the noncompliance. There is no statutory authority for the imposition of sanctions on a local government whose plan is in compliance. But theoretically the Commission, during the period of noncompliance, could order a permanent forfeiture of all designated state funding by the local government.
Any penalty imposed by an administrative agency cannot be the subject of judicial review so long as its imposition is supported by competent substantial evidence and the penalty itself is within the statutory range as prescribed by law. Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla. 1978); Decola v. Castor, 519 So. 2d 709 (Fla. 2d DCA 1988); Lee v. Division of Florida Land Sales and Condominiums, 474 So. 2d 282 (Fla. 5th DCA 1985). Statutes prescribing penalties typically place a maximum limit on the dollar amount of a fine or the temporal duration of the sanction. See e.g., Florida Real Estate Commission v. Webb, (maximum 2-year real estate license suspension under § 475.25(1), Fla. Stat. (1975)); Decola v. Castor, (maximum 10-year teaching certificate revocation under § 231.28(1), Fla. Stat.); Lee v. Division of Florida Land Sales (maximum $10,000 fine for violations under § 498.049(4), Fla. Stat. (1983)).
The statutes in the instant case do not give the Administration Commission unfettered discretion in the type of sanction to be imposed, but the statutes do fail to place any express limits on the duration or maximum amount of such sanctions. However, the statute does set forth implied limits on the duration of any sanction based on its requirement that, sooner or later, all plans due will be submitted and/or brought into compliance, thereby eliminating the basis for any imposition of sanctions. It is well-established that all statutes are presumed constitutional, and that if there is any reasonable way that a statute can be construed not to conflict with the constitution, it must be so construed. Firestone v. News-Press Pub. Co., Inc., 538 So. 2d 457 (Fla. 1989); Sandlin v. Criminal Justice Standards & Training Commission, 531 So. 2d 1344 (Fla. 1988); Vildibill v. Johnson, 492 So. 2d 1047 (Fla. 1986); Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988), approved, 549 So. 2d 1373 (Fla. 1989); Southeast Volusia Hosp. v. State, Dept. of Ins., 478 So. 2d 820 (Fla. 1st DCA), rev. denied, Tallahassee Memorial Regional Medical Center v. Florida Patients Compensation Fund, 476 So. 2d 676 (Fla. 1985). All reasonable doubt must be resolved in favor of constitutionality. Bunnell v. State, 453 So. 2d 808 (Fla. 1984); Industrial Fire & Cas. Ins. Co. v. Kwechin, 447 So. 2d 1337 (Fla. 1983); Felts v. State. Applying this standard to sections 163.3167 and 163.3184, they are not an unlawful delegation of legislative authority.
Of the four issues addressing the imposition of sanctions and denial of section 120.57 hearing raised by the municipalities the third issue alleging unlawful delegation of legislative authority has been discussed and rejected above.
The municipalities' first issue concerning disputed issues of fact is without merit. While the facts concerning the two municipalities differ somewhat, neither showed the existence of material facts in dispute.
In their fourth point, the municipalities argue that the Administration Commission unlawfully exercised its statutory authority in applying its sanctions policy in several respects. First, they argue the Commission failed to comply with the mandatory provisions of section 163.3184(11)(a) and "specify remedial actions." We disagree. They were before the Commission for submitting their plans late: "nonsubmission." The Commission never made any determination whether the plans were or were not in compliance. The statute clearly requires the Commission to specify remedial actions for plans determined to be "not in compliance with this act," upon the conclusion of a 120.57 hearing as provided in section 163.3184(9) or (10). The municipalities' proceedings before the Commission never progressed to this point. No noncompliance determination was made, and no remedial actions were to be specified. In any event, there is only one remedial *413 action available for nonsubmission, and that is submission.
Second, they argue the Commission applied automatic sanctions in contravention of statutory directive that it "may" direct the withholding of state funds. This argument is clearly refuted by the record. Pembroke's case in particular was the subject of extensive discussion by the Commission, and the amount of sanction was voted upon twice. The transcript of the meetings demonstrate indisputably that the sanctions were imposed pursuant to an exercise of discretion, and not automatically.
Third, they argue the Commission cannot impose sanctions for the first 90 days the plan a late. Nothing in section 163.3167(2)(b) indicates any statutory intent to afford a 90 day grace period.
Last, they argue that Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla. 1978), which precludes judicial review of any administrative penalty which is within the statutory range, does not preclude this court from reviewing the penalties in the instant cases. They argue the penalties are improperly based upon an erroneous finding of fact, and that the absence of legislative guidelines and imposition of sanctions within the 90 day grace period are beyond the Commission's discretion.
If there are no erroneous findings of fact and no 90 day grace period, then Webb precludes review of the extent of the sanctions imposed as they are within the specified statutory range. However, we need not reach this issue in view of our disposition of the parties' second issue discussed below.
In their second point, the municipalities argue they were never afforded a clear point of entry into the administrative process because they were not provided adequate notice of their right to seek an administrative hearing because the notices contained in the January 3 and January 23, 1989 letters were inadequate, and because they never waived their right to a 120.57 hearing. The Commission agrees that substantial interests warranting the application of section 120.57 are involved, and the parties agree that the determination of the issues turns on the provisions of the January 3 and January 23, 1989 letters from Patricia Woodworth, Secretary of the Administration Commission to the mayors of the municipalities.
Any substantially affected person must be provided with a clear point of entry, within a specified time period after some recognizable event in the investigatory or other free form proceedings, to formal or informal proceedings under section 120.57. Capeletti Brothers, Inc. v. State, Department of Transportation, 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert. den., State, Department of Transportation v. Capeletti Bros., Inc., 368 So. 2d 1374 (Fla. 1979). Simply providing a point of entry, however, is not enough if the point of entry is so remote from the agency action as to be ineffectual as a vehicle for affording a party whose substantial interests are or will be affected by agency action a prompt opportunity to challenge disputed issues of material fact in a 120.57 hearing. General Development Utilities, Inc. v. Florida Department of Environmental Regulation, 417 So. 2d 1068, 1070 (Fla. 1st DCA 1982). Notice of agency action which does not inform the affected party of its right to request a hearing and the time limits for doing so is inadequate to trigger the commencement of the administrative process. Henry v. State, Department of Administration, Div. of Retirement, 431 So. 2d 677, 680 (Fla. 1st DCA 1983). Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person.
We agree with appellants that the letters are insufficient to provide the requisite clear points of entry. At the time no rules had been promulgated governing the procedure for the determination of nonsubmission matters, which appellee concedes involved the determination of substantial interests of a party. When an agency has not adopted its own specific rules of procedure, FAC Rule 28-5.101 provides that the procedure set forth in that chapter applies. *414 In particular, Rule 28-5.111, entitled "Point of Entry into Proceedings" provides that a substantially affected party has 21 days to file a petition upon receipt of written notice of the decision, or receipt of written notice of intent to render such decision. The rule specifies that "whenever possible" the agency shall issue a notice of intent prior to the actual decision, to allow the affected person 21 days to request a hearing. The letters call for a "response" to be submitted within 30 days, and provides that an informal 120.57 proceeding will be held within 15 days "unless the local government files with its response a substantiated allegation that the 90-day period has not yet elapsed." Although this procedure was subsequently promulgated as a rule (see FAC Rules 28-39.001 28-39.006), those rules were not effective until August 7, 1989, approximately 7 months after the letter at issue was written.[2]
The letters not only failed to provide 21 days to seek a hearing as required by Rule 28-5.111, they also do not provide any basis for the affected parties to seek formal or informal proceedings. Fortune Life Ins. Co. v. State, Dept. of Ins., 569 So. 2d 1325, 1327 (Fla. 1st DCA 1990) (absent any emergency, the agency should follow nonemergency procedure by announcing its intended action and "giving the adversely affected party a clear point of entry and the opportunity to elect formal or informal proceedings."); Florida Optometric Ass'n v. Department of Professional Regulation, Board of Opticianry, 567 So. 2d 928, 935 (Fla. 1st DCA 1990) (a clear point of entry is "a clear opportunity to file a petition for formal proceedings"). As appellants point out, the letters effectively eliminate any option for the municipalities to elect the type of proceedings they wish to pursue, and instead mandate that a meeting serving as informal proceedings will be held unless the municipalities can file a "substantiated allegation" that 90 days have not elapsed since the due dates established by rule. Since the letters were not composed until more than 90 days after the due date this option is meaningless and a nullity. The letters therefore provide informal proceedings as the only option.
The letters do not set forth the procedure to be followed, as is required by Rule 28-5.111. In order to provide an adequate clear point of entry the notice does not have to track any particular language or recite statutory provisions verbatim, so long as it clearly informs the affected party of its rights and the time limits. Capital Copy Inc. v. University of Florida, 526 So. 2d 988 (Fla. 1st DCA 1988); Lamar Advertising Co. v. Department of Transportation, 523 So. 2d 712 (Fla. 1st DCA 1988). A properly noticed clear point of entry does not have to set forth the Commission's sanctions policy which will be employed. An agency is entitled to apply its evolving, non-rule policy without prior notice so long as the affected party has a clear point of entry to challenge the use of the policy, and any ultimate use by the agency is supported by competent substantial evidence. Health Care and Retirement Corp. of America, Inc. v. Department of Health and Rehabilitative Services, 559 So. 2d 665 (Fla. 1st DCA 1990); St. Francis Hosp., Inc. v. Department of Health and Rehabilitative Services, 553 So. 2d 1351 (Fla. 1st DCA 1989).
The policy behind the requirement of a clear point of entry is to assure that affected parties are not prejudiced by administrative action without being afforded an opportunity to pursue an available and adequate remedy. Lamar Advertising Co. v. Dept. of Transportation; Lewis Oil Co., Inc. v. Alachua County, 496 So. 2d 184 (Fla. 1st DCA 1986). Notice of final agency action is intended to create a clear point of entry, not a trap for the unwary. SWS Partnership v. Florida Dept. of Corrections, 567 So. 2d 1048 (Fla. 5th DCA 1990). Under Capeletti, "Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and *415 waived," the agency is without power to act. Without a clear point of entry the Commission was without authority to proceed to impose sanctions. See City of St. Cloud v. Department of Environmental Regulation, 490 So. 2d 1356, 1358 (Fla. 5th DCA 1986), wherein the court stated (cites omitted):
Notice of agency action which does not inform the affected party of his right to request a hearing, and the time limits for doing so, is inadequate to provide a clear point of entry to the administrative process. An agency seeking to establish waiver based upon the passage of time following actions claimed as final must show that the party affected by such action has received notice sufficient to commence the running of the time period within which review must be sought. The notice must contain a statement concerning a right to a hearing, set forth a time limit for requesting a hearing, and refer to the applicable procedural rules of the agency.
We reverse the denial of Pembroke's and Village's request for section 120.57 hearings. In all other respects we affirm the decisions below.
WIGGINTON and MINER, JJ., concur.
NOTES
[1] With regard to the Village of Virginia Gardens, this assertion of diligent effort is thoroughly belied by the record. Its plan was over 6 months late; its response to the DCA notice of sanctions, due within 30 days, was never filed in complete form; and the items omitted from the plan and requested by the DCA were never provided. The plan was ultimately filed by the regional planning authority.
[2] To the extent that the Sept. 5, 1989 cover letter accompanying Pembroke's copy of the DCA's recommended sanctions could be regarded as notice of proposed agency action, it is entirely inadequate. The letter does not provide any of the requisite information and only gives a name and phone number to contact "If you have any questions ..."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874226/
|
586 So. 2d 1212 (1991)
ENVIRONMENTAL COALITION OF FLORIDA, INC., Appellant,
v.
BROWARD COUNTY and the Department of Community Affairs, Appellees.
No. 90-2565.
District Court of Appeal of Florida, First District.
September 16, 1991.
Stephen King, Fort Lauderdale, and Brion L. Blackwelder of Jacobson and Peterson, Hollywood, for appellant.
G. Steven Pfeiffer, Gen. Counsel, and David L. Jordan, David J. Russ, and Karen Brodeen, Asst. Gen. Counsels, Dept. of Community Affairs, Tallahassee, for appellee Dept. of Community Affairs.
John J. Copelan, Jr., County Atty., and Tracy H. Lautenschlager, Asst. County *1213 Atty., Fort Lauderdale, for appellee Broward County.
Gerald L. Knight of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauderdale, and Robert M. Rhodes of Steel, Hector & Davis, Tallahassee, for appellee Oriole Homes Corp.
ZEHMER, Judge.
Environmental Coalition of Florida, Inc., appeals a final order of the Department of Community Affairs determining the Broward County Comprehensive Plan (the Plan) to be in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act (the Act), Ch. 163, Part II, Florida Statutes (1987).[1] Environmental Coalition argues on appeal that the Department of Community Affairs erred in finding the Plan to be in compliance with the Act because it fails to map certain wetlands in Broward County and because the wetlands map included in the Plan is not based on the best available data. We hold that the Department of Community Affairs acted within its discretion in finding the wetlands map to be in compliance with the Act and affirm the appealed order.
Environmental Coalition did not file any written exceptions to the recommended order entered in this case. The final order adopted the findings of fact contained in the recommended order in toto. Having filed no exceptions to the findings of fact contained in the recommended order, Environmental Coalition has thereby expressed its agreement with, or at least waived any objection to, those findings of fact. The facts relied on by this court are taken directly from the recommended order.
The Act provides that each local government must prepare a comprehensive plan and submit it to the Department of Community Affairs. §§ 163.3164(19), 163.3167(2), Fla. Stat. (1987). In October 1988, Broward County submitted its proposed comprehensive plan to the Department.[2] In January 1989, the Department sent written objections to the proposed plan to Broward County, specifically noting that the plan did not include the identification and analysis of rivers, bays, lakes, and wetlands, and stating that the Department of Environmental Regulation objected to the proposed wetlands map because the U.S. Fish and Wildlife Service Wetland Inventory Map for parts of region 5 of Broward County (S.W. Broward County)[3] indicated more forested and non-forested wetlands than were shown on the Plan's map.
The Broward County Planning Commission proceeded to revise the wetlands map to reflect the wetlands in S.W. Broward County. The Commission found this task "difficult" because of the limited amount of time available to complete the project and the lack of accurate, complete, and up-to-date information concerning the location of wetlands in the area. The U.S. Fish and Wildlife Service Wetland Inventory Map referenced in the Department of Environmental Regulation's objections to the proposed plan was not current or complete; it reflected conditions as they existed in 1979 and the determinations of wetlands for that map were based only on the factor of vegetation. The agencies that have regulatory jurisdiction over wetlands in Broward County, which are the Broward County Environmental Quality Control Board (EQCB), the Department of Environmental Regulation, and the U.S. Army Corps of Engineers, examine dominant vegetation, hydrology, and soils in determining wetlands, but none of these agencies had prepared a *1214 wetlands map of S.W. Broward County. The Planning Council staff asked the EQCB to prepare such a map, but the EQCB responded that there was not sufficient time for it to do so.
The Planning Council staff then sought the assistance of Ann Buckley, a botanist who was already engaged in conducting a vegetative cover study of parts of Broward County, including S.W. Broward. Buckley furnished the Planning Council staff with a wetlands map showing that all except the developed lands of S.W. Broward were wetlands. Buckley developed her own criteria in determining what areas were wetlands. If an area had hydric soil and plants that were wetlands species, Buckley classified the area as a wetland. She did not consider hydrology, nor did she consider the relative dominance of the wetlands vegetation in the area. The Planning Council staff used Buckley's map to prepare a wetlands map of S.W. Broward and submitted it to the Planning Council.
At a public hearing held in February 1989, the Planning Council considered the staff's map. Many people at the hearing were critical of the map and voiced their opinion that Buckley's study was not objective. The Planning Council rejected the staff map based on Buckley's work and recommended that the County Commission adopt a wetlands map that showed the Everglades buffer strip as the only wetlands area in S.W. Broward and insert language in the comprehensive plan requiring further study of the matter so that a more accurate wetlands map could be prepared.
A map was prepared in accordance with this recommendation, and in March 1989, a hearing was held regarding the adoption of the Planning Council's wetlands map. A representative of Environmental Coalition appeared at that hearing and urged the Commission to adopt instead the map the Planning Council's staff had prepared using the Buckley map. The Buckley map then again became the subject of debate, with criticism being voiced that although Buckley had determined that the entire Imagination Farms parcel (a parcel in S.W. Broward proposed for residential development) constituted wetlands, representatives of the EQCB, the Department of Environmental Regulation, and the Army Corps of Engineers had recently concluded the contrary. The County Commission gave Buckley the opportunity to defend her map, but she was unable to effectively do so. The County Commission then determined that the Planning Council staff's map that was based on the Buckley map was unreliable and should not be adopted. The County Commission recognized that there were wetlands (probably thousands of acres) in S.W. Broward that were not depicted on the Planning Council map and that that map needed to be supplemented. The Commission decided that the map should show, in addition to the Everglades buffer strip, existing wetland vegetation as identified on vegetation association maps of approved Developments of Regional Impact, and mitigation areas, natural preserves, littoral zones, and other wetland areas to be created and/or protected per the Master Plans of approved Developments of Regional Impact. The information upon which these additions to the map were to be based was readily available. The Commission then adopted the Planning Council's map, which did not depict any wetlands in S.W. Broward outside the Everglades buffer strip and approved Developments of Regional Impact. In addition, the Commission committed Broward County to conduct a complete study of wetlands in S.W. Broward County. The study is referred to in the following note that appears on the wetlands map adopted by the Commission:
Policy 09.05.06 provides that Broward County shall complete an inventory of all wetland areas in S.W.ern Broward by 1990 and identify those areas on the Wetlands Map (Map III.C.) of the Future Broward County Land Use Map (Series).
The County Commission adopted the comprehensive plan that included this map and submitted it to the Department.
In April 1989, the Department issued a Notice of Intent to find the Plan in compliance *1215 with sections 163.3177, 163.3178, and 163.3191, Florida Statutes (1989); Rule 9J-5, Florida Administrative Code; the State Comprehensive Plan; and the South Florida Regional Policy Plan. In May 1989, Environmental Coalition and the Sunshine Ranches Homeowner's Association filed separate petitions alleging that the Plan was not in compliance. In June 1989, Oriole Homes Corporation filed a petition to intervene. The actions were consolidated and hearings were held before a Division of Administrative Hearings hearing officer in February 1990. In June 1990, the hearing officer entered his recommended order finding the Plan in compliance. Environmental Coalition did not file any exceptions to the recommended order. On July 26, 1990, following a formal administrative hearing held pursuant to section 163.3184, Florida Statutes (1989), the Department entered a final order adopting without modification the hearing officer's recommended order.
The recommended order, as incorporated into the final order, contained a finding of fact that, "There are probably thousands of acres of wetlands in S.W. Broward that were not reflected on the [wetlands] map." Appellant argues on appeal that this finding is inconsistent with the Department's conclusion that the Plan is in compliance with the Act. According to appellant, "the DCA has allowed the County to not map wetlands."
We reject this argument as inaccurate. Broward County did submit a wetlands map as part of the Plan. That map depicts wetlands in the Everglades buffer strip and approved Developments of Regional Impact. While this map concededly does not depict all of the wetlands in S.W. Broward, it does contain Broward County's statement of policy that it will complete an inventory of all wetland areas in S.W. Broward by 1990 and identify all of those areas on the wetlands map. Thus, the Department has not "allowed the County to not map wetlands" as is argued by appellant. Rather, the Department has accepted a map that depicts some of the wetlands in S.W. Broward and the County's pledge that it will supplement that map with a complete inventory of all wetlands in S.W. Broward by 1990. The Department acted within its discretion in accepting this map and policy statement as complying with the Act. The Act simply requires that future land use element of the plan "generally identify and depict" wetlands, § 163.3177(6)(d), and it is fairly debatable that the wetlands map in the Plan at issue along with the policy statement that the map will be supplemented by 1990 to reflect all wetlands complies with this requirement.[4]
Appellant's second argument is that the wetlands map adopted as part of the Plan was not based upon the best available existing data, contrary to rule 9J-5.005(2), Fla. Admin. Code. Appellant does not identify in its brief the best available existing data that Broward County failed to use. Rather, appellant's basic argument is that Broward County did not seek the best available data until it was too late to obtain *1216 such data. The hearing officer, whose findings of fact were not challenged below or on appeal as being unsupported by competent, substantial evidence, addressed each of the potential sources of data upon which the wetlands map could have been based. The hearing officer found that three agencies have regulatory jurisdiction over wetlands in Broward County, which requires that before they exercise such authority, they first must determine whether wetlands are involved and, if so, to what extent they exist. The hearing officer found that none of these agencies had a map depicting those lands that had been determined to be jurisdictional wetlands in S.W. Broward. The hearing officer found that the Army Corps of Engineers did have information concerning a limited number of the properties in the S.W. Broward area, but that some of those determinations were no longer valid because they had been made more than two years prior (the hearing officer noted that Army Corps of Engineers jurisdictional determinations are valid for only two years). With regard to the U.S. Fish and Wildlife Service Wetland Inventory Map referenced in the Department of Environmental Regulation's written comments to the proposed plan, the hearing officer found that map to be of only historic value as it reflected conditions as they existed in 1979 and S.W. Broward had experienced substantial development activity since that time. With regard to the wetlands map prepared by Ann Buckley, the hearing officer found that the County reasonably determined that such map was unreliable and therefore should not be adopted. The hearing officer explained in his findings that Buckley had little or no experience in determining the existence and extent of wetlands based upon all three indicators relied upon by the EQCB, the Department of Environmental Regulation, and the Army Corps of Engineers in making jurisdictional determinations, that she developed her own criteria for determining wetlands, and that she did not take into account hydrology or the relative dominance of the wetlands vegetation in the areas under examination. The hearing officer concluded that the wetlands map adopted by the Commission, along with the policy statement obligating Broward County to conduct a post-adoption study of wetlands in the County and to supplement the map, was reasonable and sensible under the circumstances.
In light of the statutory and rule provisions expressly stating that local governments are not required to collect original data, § 163.3177(10)(e), Fla. Stat.; Rule 9J-5.005(2)(b), Fla. Admin. Code, and providing that support data is not subject to the compliance review process, § 163.3177(10)(e), Fla. Stat.; Rule 9J-5.005(2), Fla. Admin. Code, we hold that the Department acted within its discretion in accepting the wetlands map as being based upon the best available data. The hearing officer's findings of fact contained clear, logical reasons for Broward County's rejection of certain existing data and for Broward County's inability to obtain additional reliable data in a timely manner. Environmental Coalition has not contended that the data relied upon was not based upon a professionally-accepted methodology as required by section 163.3177(10)(e). Furthermore, that section expressly states that the Department of Community Affairs shall not determine whether one accepted methodology is better than another.
AFFIRMED.
BARFIELD and WOLF, JJ., concur.
NOTES
[1] Sections 163.3161 163.3243, Fla. Stat. (1987).
[2] The Act requires local governments to submit their proposed plans so the Department may elicit objections, recommendations, and comments from within the Department and from other state agencies prior to adoption of the proposed plan. § 163.3184(3) and (4), Fla. Stat. (1987).
[3] The area at issue is the southwest quadrant of the eastern third of Broward County. The hearing officer, the Department, and the parties refer to this area as "S.W. Broward County."
[4] The Act itself provides that if the Department issues a notice of intent to find a comprehensive plan in compliance with the Act, and a § 120.57 hearing is held, at that hearing the Department shall determine the plan to be in compliance if the local government's determination of compliance is fairly debatable. § 163.3184(9)(a), Fla. Stat. (1987). This is a deferential standard that requires the local government's action to be upheld if reasonable persons could differ as to its propriety. Norwood-Norland Homeowner's Association, Inc. v. Dade County, 511 So. 2d 1009 (Fla. 3d DCA 1987).
With regard to the standard of review to be applied by this court to final agency action, section 120.68, Florida Statutes (1989), states that the reviewing court shall remand a case to the agency if it finds the agency's exercise of discretion to be:
(a) Outside the range of discretion delegated to the agency by law;
(b) Inconsistent with an agency rule;
(c) Inconsistent with an officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or
(d) Otherwise in violation of a constitutional or statutory provision;
"but the court shall not substitute its judgment for that of the agency on an issue of discretion."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1144447/
|
357 P.2d 243 (1960)
John Junior BLANTON, Plaintiff in Error,
v.
STATE of Oklahoma, Defendant in Error.
No. A-12887.
Court of Criminal Appeals of Oklahoma.
November 23, 1960.
Alvin C. Bruce, Ardmore, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
*244 PER CURIAM.
John Junior Blanton was charged by information filed in the district court of Carter County with rape, first degree, was tried before a jury and found guilty of the included offense of assault with intent to commit rape, but the jury being unable to agree upon the punishment left that to the court, who assessed a penalty of five years confinement in the State Penitentiary.
*245 For reversal counsel in brief argues two propositions:
"First: That the court erred in refusing to sustain plaintiff in error's demurrer to the state's evidence on account of insufficiency of the evidence.
"Second: Errors of law occurring at the trial, which were duly excepted to by plaintiff in error.
The State has not favored the Court with a brief.
We shall treat the issues in the order presented, referring hereinafter to the plaintiff in error as defendant.
Treating the first issue, the question simply is, did the State make out a case.
The prosecuting witness and alleged victim, Faye Knight, testified that at the time of the trial she was eighteen years of age, but was seventeen years old at the time she said she came to Ardmore, on August 27, 1959, because "Mrs. Shantz" had sent her to Judge Legate, the county judge, by reason of her being pregnant. She testified that when she got to Ardmore she went to see Major Kee (of the Salvation Army), who sent her to the Central Rooms, and later gave her a meal ticket to eat at Dessie's Cafe. After the meal she decided to walk down on Caddo Street, shown to be what is known as a "tough" street in Ardmore. She said she wanted to look around at some second-hand clothes and see if perchance her aunt and uncle, June and Clark Clement, of Healdton, were down on that street. She admitted on cross-examination that they usually visited and traded on Caddo Street on Saturdays, but said they sometimes would appear on other days of the week.
Witness went to a domino parlor and made inquiries. She said that she left the domino parlor and crossed the street to a fruit stand to make inquiries. Then she saw the defendant and another boy sitting in a car, and the defendant "hollored" and said, "Well, don't I know you?" She said that the defendant then pushed her into his car, and got her by the arm and pulled her. She said that the other boy in the car was Herbert West, who drove the car. She said that this was after dark, about 9:30 at night; and that the two men drove her to the country to the Sway Back beer joint. She said they stayed there a short time, but did not go in. That her companions were waiting for another car; that when it arrived they talked to the driver, then drove on; that they would not let her get out. Witness denied that she drank any beer. She further testified:
"We went about a half a mile, or a mile, on down that there road, and then he stopped, and Junior Blanton told Herbert West to go get his car, somebody borrowed it or something. Then Junior Blanton started putting his hands on me, and I told him that I wasn't that there kind of a girl. He said he didn't care that he was going to anyway.
"Q. Is that what he said, that he was going to anyway? A. He was going to get some anyway.
"2. What did you say then? A. Well, he got out on that on the other side of the car door, and about time I got my arm on this side, well he was on that side.
"Q. Well, now, we're talking about these sides. What side did you put your arm on? A. On the right, I was sitting on the right and he was and he was over on the he skooted over that way to get out.
"Q. I see. A. By the time he got out, well, he was on that there other side.
"Q. Well, did you get out of the car? A. Well, yes, but he came over there and opened it.
"Q. I'm sorry, I couldn't hear you, he came over there A. He came over there and opened the door.
"Q. Well, did you get out then? A. Yes. And I started running.
"Q. Which way did you run, to the front of the car or the back of the car? A. Run to the back of the car.
*246 "Q. Back of the car. What happened then? A. Well, he caught me and kind of pushed me down, and he skinned my leg, and then I got up and runned again, and he pushed me down again, then he started pulling on my blouse and then he pulled on my pants. Then finally he got them off.
"Q. What did he do when he got your panties off, Faye? Can you tell us?"
Witness, to the last question said that she "could come out and tell" what defendant did. She used the vulgar name for the sexual act, being in meaning that defendant had sexual relations with her. Further she was asked and answered:
"Q. Do you know what a penis is, Faye? A. Yes.
"Q. What did he do with his penis? A. He stuck it in me.
"Q. Are you sure he put it in you? A. Yes. I'm sure.
"Q. Did he do anything to your brassiere at that time? A. Yes. He undone that little old strap thing.
"Q. What did he do then? A. He took it down and then he got to biting me.
"Q. Where did he bite you? A. On the left side of my breast.
"Q. Were you trying to fight him during this time? A. Yes.
"Q. What county were you in at the time this happened, Faye? A. Carter.
"Q. What happened after this was over? A. He went to that there that there fellow, well, he went to that there whiskey joint."
Witness further testified that after defendant got through, that Herbert West got on top of her. She said that the defendant had intercourse with her three or four times. No objection was interposed to the question and answer, and no motion was made to require the prosecution to elect. In fact, this question is not an issue anywhere in the proceedings. The instructions given by the court were not excepted to, and no different or additional instructions were requested.
Witness said that the defendant and West finally got back in the car in the front seat and put her in the back seat, and they then drove to a "whiskey joint" where they stayed for about thirty minutes. She said that both of the men got out of the car, but kept watching her; that she motioned to the man who ran the place and asked him if he could get her away from there, but that he said no, that he owned the place. This was some time after 11:00 o'clock at night.
Witness stated that following this the defendant and West drove to defendant's sister's house and got a baby to take to defendant's mother. It was about two years old. They stopped at a drive-in and defendant gave the child and her each a coke.
Witness further testified:
"Q. What happened after that, Faye? A. Well well, they took the baby home and they went back to that there oh, back to that there whiskey joint and they was talking about gambling or something there, or about some money or something. And they well, they was still in the car when they drove up, and they just got to talking, and they went out there to that there Nob Hill. And Junior Blanton and Herbert West got out of the car, and I was looking to see if it was out in the clear where I could run to that there Nob Hill. Is that the name?
"Q. Un-huh. A. And I went and told that there colored women and I went and stayed in that there rest room.
"Q. Well, now, whereabouts was this rest room and where was the colored lady? A. She was at the front.
"Q. Where, at Nob Hill? A. Unhuh.
"Q. Where did they go, do you know? A. Who?
*247 "Q. Were they in Nob Hill? A. No. They went next door playing gambling in that little old white house.
"Q. All right. A. And I went running in and told them to call a cab, or something. And, so she told me to stay in that there rest room. And so, the cab came, but she told me not to go out there, cause them two boys was out there. And I don't know who called called the police.
"Q. Did the police come out? A. Yes.
"Q. What did the police do then? A. It was some colored police come after me first, that was a colored place. And, so, he I got I ran to his car, and he called back to that there other car. And they took me they brought me back to, I think, over to the jail house then they took me to a hospital, to have a check-up. Then they brought me back to the jail.
"Q. Did you have a check-up at the hospital? A. Well, they went and checked me."
On cross-examination witness said that she was pregnant; that a man in Chickasha promised to marry her but that it turned out that he was already married. She admitted to living in numerous towns with her father and mother; admitted that she had been on Caddo Street many times, coming over from Healdton when her folks lived there, but said that she came with her mother. She denied walking with defendant up Caddo to Main Street. She admitted that the defendant on the drive talked about gambling and that the men got some whiskey some place, and did drink beer and whiskey, but she denied that they gave her any.
Witness admitted that one Shorty Collins tried to rape her prior to the within case, but said that he did not succeed, and she did not cause a charge to be filed against him.
Earl Haun, policeman, testified that on the night of August 28, 1959 he got a call to go to a place called Knob Hill; that when he got there he parked on the north side of the road and officer Sofas brought a girl over, whom he identified as the prosecuting witness, Faye Knight. He said that she was crying. Further:
"And she was her hair was all messed up, her clothes was messed up, and her legs skinned and bruised.
"Q. Now can you tell us how her clothes were messed up? A. Well, her blouse was all pulled out and her skirt was all twisted up.
"Q. What about her legs, now? A. It was black and blue, and skinned. She had skinned places on her knee and ankle."
On cross-examination the officer said that it was about 2:15 in the morning when he saw the prosecutrix.
Dr. Lloyd L. Long next testified, after his qualifications were admitted, as follows:
"Q. Doctor, I want to call your attention to the early morning hours of the 28th of August, 1959. Did you have occasion to examine a Faye Knight on that morning? A. Yes, I did.
"Q. Do you know about what time it was you made that examination? A. I examined her about three-thirty A.M.
"Q. What did you examine her for? A. She was brought in by the sheriff's sheriff's department, and I was asked to examine do a pelvic examination on her to determine whether or not she had had intercourse
"Q. Did you make that examination? A. I did.
"Q. And what did that examination indicate? A. Well, there were definitely sperm present in the vagina. Which indicated that she had had fairly recent sexual relations.
"Q. Did you examine her body for anything else? A. The only other thing that I recall that she had that I checked was, she had a bruise right over her left nipple.
*248 "Q. Can you state to the court and jury whether or not that was an old or recent bruise? A. It looked like a recent bruise.
"Q. Can you tell from your medical experience what that bruise might have resulted from? A. Well, of course, it could have been from any type thing. I think the question at the time was whether it could have been a tooth mark, or bite, and it could have been that."
On cross-examination witness said that while it varied from individual to individual, that sperm live in the vagina from one to three or four hours. He said that Faye Knight was nervous and upset when he examined her.
This concluded the evidence for the State, and counsel here interposed a demurrer to the evidence, which was overruled and is now complained of.
From the above it is apparent that the prosecuting witness, Faye Knight, a seventeen-year old girl at the time, was an under-privileged girl, ignorant and probably flustrated. She could not be classed as a girl of previous chaste and virtuous character, in view of her two or three months pregnancy at the time of the rape here involved, but such is immaterial as the charge is that the defendant succeeded in having sexual relations with Faye Knight by means of force overcoming her resistance.
While the evidence shows that this young girl was visiting on a tough street of Ardmore to see second-hand clothes, and did, of all places for a young girl, visit a domino parlor, and the further happenings might have been predicted, such facts give no license to any male to prey on the ignorant and helpless female, if such was the case.
It might be argued that she could have screamed and jumped out of the car. She testified that she did get out once and ran, but was pursued, pushed down, got up and ran again, and was pushed down to the ground, her panties torn off, and then she was ravished. She had been taken to a Negro gambling place and for the first time when she was left alone in the car she ran to a rest room and there remained while a colored woman got word to the officers. They found her crying and bruised, and her clothing showing the effects of an apparent struggle.
The physician, about an hour or an hour and a half later found her limbs scratched and bruised and her left breast bruised. There were live sperm in her vagina. All this corroborated prosecutrix's claim that she had been ravished. She complained to a beer tavern owner, but he would not help her. At her next opportunity she complained to a colored woman, who succeeded in getting officers to come to the rescue. The evidence of prosecutrix can not be said to be, as to material points, contradictory, inconsistent, or unreasonable, or to bear upon its face evidence of improbability. See Roberts v. State, 31 Okla. Crim. 103, 237 P. 148; Law v. State, 92 Okla. Crim. 444, 224 P.2d 278; Roberts v. State, 87 Okla. Crim. 93, 194 P.2d 219. The trial court therefore did not err in overruling the demurrer to the State's evidence.
The defendant introduced evidence to show that he was in the domino parlor when prosecutrix came in, and that he walked up Caddo Street to Main Street with her. Also one Bill Key claimed that he drove the prosecutrix and one Jack Allen and Junior Blanton to a gambling place known as Knob Hill. Other witnesses saw the prosecutrix with defendant but did not notice any compulsion on defendant's part to compel her to stay in the car.
One Therl Kendricks also known as Therl Jones, testified that he picked the defendant and Faye Knight and Herbert West up on Main and Washington, Ardmore streets, on the night of August 27, 1959 and drove them to Walter North's, known as the Sway Back Inn. There was evidence as to defendant drinking beer and intoxicants. There was no evidence that prosecutrix drank beer or intoxicants.
The defendant John Junior Blanton testified. He said on direct examination that he had been convicted of conjoining robbery. *249 He admitted that Faye Knight was with him from evening until the officers took her early the next morning. He denied that he had sexual intercourse with the girl or was responsible for the scratches and bruises that she testified about. He denied that he kept the prosecutrix from fleeing from the car at the several times they were stopped. He said that he did not molest her in any way.
Herbert West, shown to have been with the defendant and Faye Knight on the rounds the night of August 27 and morning of August 28, 1959, testified and denied that the defendant or he molested Faye Knight in any way.
Thus there was sharp conflict in the evidence.
At the close of all the evidence counsel for the defendant renewed his demurrer to the evidence, which the court overruled.
We have heretofore concluded that the State's evidence was sufficient to make out a case to support the charge of first degree rape. So, while the defendant's evidence was in sharp conflict with that of the State, there was sufficient evidence to go to the jury. It was the jury's problem to resolve the fact questions. Weeden v. State, 73 Okla. Crim. 258, 120 P.2d 379. We have stated the principle this way: This court will not set aside the verdict of a jury where there is a conflict in the evidence. It is only when the evidence is insufficient to sustain the judgment and sentence that such action will be taken. Gordon v. State, 75 Okla. Crim. 356, 131 P.2d 503.
The second assignment of error involves the cross-examination of the defendant by the county attorney. At the onset when questioned by his counsel, the defendant had admitted a previous felony conviction. This admission, of course, could be considered by the jury in the matter of the weight they would give his testimony. And as counsel for the defendant points out, this Court has uniformly held that it is error to permit a county attorney to go into details concerning the crime for which defendant has been formerly convicted, as that would be a collateral matter, not relevant to the crime charged and that the conviction may only be considered for the limited purpose of assessing punishment, if defendant is found guilty of the offense charged. Ervin v. State, Okl.Cr., 251 P.2d 401.
And this Court has also held as contended by counsel, that while a county attorney may interrogate defendant concerning other convictions for crime for the purpose of affecting his credibility, the trial court should not allow examination to be enlarged by asking the details of the crime on which conviction was sustained, as such examination might cause the jury to place undue emphasis on former conviction of accused, and thus cause them to convict mainly because of bad reputation of the accused. Matchen v. State, Okl.Cr., 349 P.2d 28. The Court of Criminal Appeals has time and again reiterated these principles. This is elementary, but young and inexperienced county attorneys in their zeal forget themselves at times and such may cause a reversal of a conviction. We therefore examine the cross-examination complained of to determine whether such must cause a reversal of this case.
By Mr. Mordy, assistant County Attorney:
"Q. Now, you told Mr. Bruce, or rather he told you, that you had been convicted of conjoint robbery, is that correct? A. Yes, sir.
"Q. What did you use to rob at that particular time? A. I didn't use a thing.
"Q. Why were you charged with conjoint robbery then? A. I "
The court overruled the objection interposed. The defendant then denied that there had ever been a robbery. He said that he had a fight and used his fist. He admitted that he was convicted and sentenced to serve five years.
Defendant also admitted that previously he had been convicted of stealing a car, was given a two-years suspended sentence, *250 but said that the suspended sentence was subsequently revoked.
Counsel argues that since the defendant did have a criminal record, the questioning as to the details of the conjoint robbery conviction "did have a great bearing on the jury's minds in their reaching the decision that they did."
Now, then, it was immaterial as to just how the defendant effected the robbery for which he had been previously convicted. Defendant, however, denied that there had actually been a robbery, but said there had been a fight in which he merely used his fists.
We have previously determined that the State in making out its case produced sufficient evidence to have supported the crime charged, which was rape in the first degree, carrying a minimum of 15 years imprisonment, or life or death. 21 Ohio St. 1951 § 1115. But the jury in spite of the proof of penetration refused to find the defendant guilty of rape in the first degree as charged, but found him guilty of the included offense of assault with intent to commit rape, but left the punishment to the court, who assessed a penalty of five years imprisonment. 21 Ohio St. 1951 § 681.
It is common knowledge that juries at times in the face of the overwhelming guilt of persons charged with crime, find them not guilty, and there is nothing the State can do about it, as it is within the province of the jury to determine the facts. In the within case, then, the defendant certainly got a break by the jury finding him guilty simply of assault with intent to commit rape. The cross-examination in question, therefore, could hardly be said to have caused his conviction. The error of judgment, if any, was in his favor. See Benefield v. State, Okl.Cr., 355 P.2d 874.
The thought might arise, as to whether the jury was authorized to find the defendant guilty simply of assault with intent to commit rape, when he was charged with rape in the first degree. Was not the defendant, in view of the statutes, either guilty of rape in the first degree, or not guilty of any crime?
As heretofore indicated, the crime of assault with intent to rape is an included offense of rape in the first degree. See Woolridge v. State, 97 Okla. Crim. 326, 263 P.2d 196 where the defendant was convicted of rape in the first degree, but where this Court found that as a matter of law there was no sufficient evidence of penetration to support rape in the first degree, and the judgment was modified to that of guilt of the included offense of attempt.
Here, as stated, the evidence supported the charge, but this Court, while it has the power where the record justifies to modify a judgment to a lower included offense, may not, irrespective of the evidence, reject a conviction for an included offense and raise it to the greater offense charged.
We find no reversible error, and the judgment complained of is, accordingly, affirmed.
NIX and BRETT, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1339778/
|
275 S.C. 466 (1980)
272 S.E.2d 638
SECURITY MANAGEMENT, INC., Appellant,
v.
SCHOOLFIELD FURNITURE INDUSTRIES, INC., and Hickory Furniture Company, Defendants, of whom Hickory Furniture Company, is Respondent.
21340
Supreme Court of South Carolina.
December 2, 1980.
*467 Richardson, James & Player and Levi & Wittenberg, Sumter, for appellant.
Nash, Chappel & Wilson, Sumter, for respondent.
December 2, 1980.
HARWELL, Justice:
Security Management, Inc., appeals the decision of the trial court denying its motion that Hickory Furniture Company not be allowed to appear specially in this matter. We reverse.
This action was commenced by Security Management, Inc., against Hickory Furuniture Company by service under the Long Arm Statutes, §§ 36-2-803, 36-2-804, 36-2-806, South Carolina Code of 1976, of a summons and complaint on December 28, 1978. On January 3, 1979, counsel for Hickory contacted counsel for Security requesting an "unlimited extension of time within which to answer or otherwise plead *468 to the complaint". This was granted. Thereafter, several days after the otherwise mandatory twenty-day period for answering, counsel for Hicory served upon counsel for Security a notice of special appearance and a motion to dismiss. Security contested the validity of the special appearance, maintaining that Hickory by seeking the general extension had entered a general appearance. The trial court held that the action taken by Hickory was not a voluntary general appearance and that Hickory could therefore enter a special appearance. This was error.
It is generally held that an agreement or stipulation extending time to plead constitutes a general appearance. Annot., 81 A.L.R. 166, 168; 5 Am. Jur. (2d), Appearance, § 25, p. 499. The question to be resolved is whether the party intended by the appearance to submit to the jurisdiction of the court, though it is possible for a party to be deemed to have appeared generally as a matter of law. Petty v. Weyerhaeuser, 272 S.C. 282, 251 S.E. (2d) 735 (1979). This question may be answered by analyzing the type of action the party took and the type of relief sought. If the only action taken by the party was to question the court's jurisdiction over the party then the appearance entered is special only. See, § 15-13-380, Code of Laws of South Carolina (1976); 6 C.J.S. Appearances § 6, p. 10. However, a party may take action antecedent to, concurrent with, or subsequent to an otherwise seemingly correct special appearance which compromises the position taken and waives the jurisdictional objection. South Carolina State Highway Department v. Isthmian S.S. Co., 210 S.C. 408, 43 S.E. (2d) 132 (1947); Connell v. Connell, 249 S.C. 162, 153 S.E. (2d) 396 (1967); Jenkinson v. Murrow Bros. Seed Co., Inc., 272 S.C. 148, 249 S.E. (2d) 780 (1978), Ness, J., concurring opinion. If, prior to determination of the jurisdictional question, the defendant seeks relief which can only be granted on the theory that the court has jurisdiction of his *469 person, then he has made a general appearance. Connell v. Connell, supra.
Hickory obtained an extension for an unlimited time to answer or otherwise plead. No jurisdictional question was raised. Only after the period otherwise allowed for answering did Hickory purport to enter a special appearance. By seeking and obtaining the general extension, Hickory evidenced no intent to appear specially. Any objection to personal jurisdiction was therefore waived.
Reversed and Remanded.
LEWIS, C.J. and LITTLEJOHN, NESS and GREGORY, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874213/
|
694 F. Supp. 1203 (1988)
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO; Allan Stubna, as International Trustee of Local Lodge D31 of the Cement, Lime, Gypsum, and Allied Workers Division of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO.
v.
LOCAL LODGE D31 OF the CEMENT, LIME, GYPSUM AND ALLIED WORKERS DIVISION OF the INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, James E. Harris; William A. Sprague; J. Kenneth Black.
Civ. No. PN-87-3442.
United States District Court, D. Maryland.
August 3, 1988.
*1204 Richard Zeff, Pfiefer and Fabian, Baltimore, Md., Michael J. Stapp, Blake & Uhlig, Kansas City, Kan., for plaintiffs.
Robert Rothstein, Meranze & Katz, Philadelphia, Pa., Victoria Hedian, Abato, Rubenstein & Abato, Lutherville, Md., for defendants.
MEMORANDUM
NIEMEYER, District Judge.
Plaintiffs, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (hereafter the IBB) and Allan Stubna, the IBB appointed trustee for Local Lodge D31, commenced this action against Local Lodge D31 of the IBB, James E. Harris, William A. Sprague, and J. Kenneth Black, its officers, to enforce a trusteeship over Local Lodge D31 pursuant to Article XVIII, Section 1 of the IBB Constitution. An evidentiary hearing was held in open court on June 13, 1988 on plaintiffs' motion for a preliminary injunction to enforce the trusteeship. At the conclusion of the hearing the Court announced it would grant the motion to establish the trusteeship and directed that the defendants provide plaintiffs with copies of books and records of Local Lodge D31. The Court also froze existing bank accounts. After receiving a proposed order from counsel, the Court entered an order on August 1, 1988.
The reasons for that order are given herein.
I
Plaintiff IBB is an international labor organization that represents employees throughout the United States for purposes of collective bargaining with, among others, the Lehigh Portland Cement Company. Plaintiff's headquarters and principal place of business are in Kansas City, Kansas. Plaintiff Allan Stubna is an employee of the IBB who was appointed by the IBB as the Trustee of Local Lodge D31. He joined as a plaintiff in his official capacity.
Defendant Local Lodge D31 is a certified local labor organization at the Lehigh Portland Cement Company facility in Union Bridge, Maryland. The Lehigh cement facility is one of eight Lehigh cement plants in the United States, the locals of which are *1205 combined to form the Lehigh Joint Conference for purposes of bargaining with the Lehigh Portland Cement Company. Defendant James Harris is President of Local Lodge D31; defendant William Sprague is Recording Secretary; and defendant Kenneth Black is Financial Secretary. They have been sued in their official capacity.
Prior to 1984, Local Lodge D31 was affiliated with the Cement, Lime, Gypsum and Allied Workers International Union (hereafter the CWI). On April 1, 1984 the CWI merged with the IBB. Pursuant to the terms of the Merger Agreement and the amendments to the Constitution of the IBB which were agreed to, the Lehigh Joint Conference remained, but with the IBB instead of the CWI as bargaining agent. Under the merger agreement, joint officers were to be selected and the CWI was entitled to elect one international vice president. Each union member would pay a per capita tax in the amount of 1.65 times the base rate (as opposed to 1.0 paid by CWI members prior to the merger). The implementation of the agreements in electing officers was to take place at the bi-annual convention of the IBB in August, 1986.
Problems resulting from the merger first arose in August, 1986, at the IBB bi-annual convention. There was disagreement over who was eligible to vote for one of the vice presidents, and as a result the former president of the CWI was not elected to a vice presidency of the IBB. Following the convention, he and those who had supported him, formed a new union known as Independent Workers of North America (IWNA), which has sought to become the new bargaining agent for IBB local lodges that used to be local unions of the CWI.
After months of mounting dissatisfaction over the election procedures, which defendants characterize as undemocratic, officers and members of Local Lodge D31 resolved to disaffiliate from the IBB and to affiliate with the IWNA at a meeting on May 20, 1987. The 29 members present at the meeting signed a resolution to that effect, and the petition was then circulated to other workers at the plant for an additional 83 signatures, representing almost three-quarters of the membership of Local Lodge D31. There is no evidence that Local Lodge D31 ever advised the IBB of this vote.
Soon after the petition was signed, Local Lodge 31 began calling itself Local 31 IWNA (Local 31). It stopped paying the per capita tax to the IBB and opened a new checking account in the name of "Cement Workers Local 31." Monthly dues collected after May 1987 were deposited in this new account. None of the funds in the preexisting checking and savings accounts of Local Lodge D31 were transferred to the new account. However, monies in the original accounts of Local Lodge D31 were used to pay operating expenses of Local 31 after May 1987 and to pay dues to the AFL-CIO. (The IBB is affiliated with the AFL-CIO, but the IWNA is not.) Some monies from the original account were also spent in sending several members of Local 31 to a meeting with IWNA officials in Las Vegas in August 1987. The two accounts predating the opening of the new account in May 1987 are now exhausted, and all monies are held in the new account in the name of "Cement Workers Local 31." No payments have ever been made to the IWNA from any of the accounts.
Officers of Local 31 who testified at the preliminary injunction hearing said they believed that Local Lodge D31 had become Local 31 of the IWNA after the May 1987 meeting. While the IBB was never advised of this, James E. Harris, President of Local 31, did write Mr. Henry Brechtholdt, International Vice President of the IBB on July 14, 1987, notifying him that Local 31 would not be party to any agreement negotiated between the IBB and Lehigh Portland Cement Company, and any authority given to the IBB to negotiate was withdrawn. Harris sent a copy of the letter to officials of Lehigh Portland Cement Company. This may have been the first indication that the IBB had of the Local's intention to disaffiliate from the IBB and affiliate with the IWNA.
After unsuccessful attempts were made by representatives of the IBB to persuade Local 31 to reconsider its actions, IBB *1206 President Charles Jones placed Local Lodge D31 under trusteeship, effective September 1, 1987, pursuant to Article XVIII of the IBB Constitution giving him authority to place a subordinate body in trusteeship in "emergency (situations) imminently threatening the welfare, funds, or property of the subordinate body." Allan Stubna was appointed trustee with full authority to manage and direct the affairs of Local Lodge D31. He promptly removed defendants Harris, Sprague, and Black from office and asked for the books, records, properties, funds and assets of Local Lodge D31 (which the officers refused to do up to the day of the court hearing). A hearing was scheduled to be held before the Executive Council of the IBB on September 15, 1987 to determine whether or not grounds existed for continuation of the trusteeship. In moving to establish a trusteeship, the IBB charged Local Lodge D31 with (1) promoting dual unionism, (2) pursuing disaffiliation, (3) failing to perform their duties, (4) failing to submit reports and per capita tax payments, and (5) possibly committing financial malpractice. Defendants elected not to attend the hearing on September 15, 1987, and the trusteeship was ratified, mainly on the basis that Local Lodge D31 failed to send in the per capita tax payments and misused treasury monies to finance discussions with the IWNA. IBB officials also assumed (incorrectly, as it turns out) that the Local was paying dues to the IWNA.
Notwithstanding the trusteeship, officers and members of Local 31 met again on October 12, 1987 to ratify their earlier decision of May 20, 1987 to disaffiliate. A secret ballot was taken, with a vote of 94 to 10 (with two votes discounted) in favor of disaffiliation. The IBB was not formally advised of this action.
Despite these moves to disaffiliate from the IBB, Local 31 filed an unfair labor practice charge with the NLRB against Lehigh Portland Cement Company in April 1988, denominating itself as an affiliate of the IBB. President Harris explained that he did this without consulting a lawyer and because the NLRB still recognized Local 31 as an affiliate of the IBB. He insists, however, that he and the other members of Local 31 think of themselves as belonging to the IWNA, even though the Local remains certified as a local of the IBB. He and other members of the Local admit to having engaged in some of the conduct cited by the IBB as justification for imposing a trusteeship, but they insist that the reasons given by the IBB for imposing the trusteeship are basically a pretext for the IBB's real purpose of preventing disaffiliation. Defendants do not challenge the procedures that were followed in imposing the trusteeship as improper procedures.
II
At the outset, defendants argue that this Court is without jurisdiction to enforce the trusteeship since it is a matter that is properly within the jurisdiction of the NLRB. In making this jurisdictional argument, defendants characterize this case as one involving issues of representation (i.e. the choice of representatives to engage in collective bargaining with an employer on behalf of the employees). The National Labor Relations Act vests exclusive authority in the NLRB to pass on issues of representation. NLRB v. Cabot Carbon Co., 360 U.S. 203, 79 S. Ct. 1015, 3 L. Ed. 2d 1175 (1959). If an activity is arguably within the parameters of Section 7 or 8 of the Act, which accords employees the right to organize and bargain collectively through representatives of their own choosing and which makes it an unfair labor practice for a labor organization to restrain employees in the exercise of these rights, then federal courts may defer to the primary and exclusive competence and jurisdiction of the NLRB. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S. Ct. 773, 779-80, 3 L. Ed. 2d 775 (1959); Garner v. Teamsters, 346 U.S. 485, 74 S. Ct. 161, 98 L. Ed. 228 (1953); Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S. Ct. 480, 99 L. Ed. 546 (1955).
There can be no doubt that the will of Local 31 is to become disaffiliated from the IBB and to become affiliated with the IWNA. And on the other side the IBB would like to prevent disaffiliation. These *1207 issues are for the NLRB to decide pursuant to a Board certified election. That election may be in the offing in accordance with established procedures, but it has not yet taken place. The informal votes of members, as occurred here, will not effect a disaffiliation and cause an affiliation with another union.
At this point this is essentially a contractual matter between an international union and its local. See Plumbers and Pipefitters v. Local 334, 452 U.S. 615, 101 S. Ct. 2546, 69 L. Ed. 2d 280 (1981). The dispute surrounds the issues whether the IBB may impose a trusteeship under the governing constitution and bylaws and in circumstances of this case. That such a contractual provision for a trusteeship is permissible is not challenged here. Title III of the Labor Management Reporting and Disclosure Act requires that trusteeships be established only in accordance with a constitution provision and only for certain purposes:
Trusteeship shall be established by a labor organization over a subordinate body only in accordance with the Constitution and By-Laws of the organization which has assumed trusteeship over the subordinate body and for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization. (29 U.S.C. § 462)
* * * * * *
In any proceeding pursuant to this section a trusteeship established by a labor organization in conformity with the procedural requirements of its constitution and bylaws and authorized or ratified after a fair hearing either before the executive board or before such other body as may be provided in accordance with its constitution or bylaws shall be presumed valid for a period of eighteen months from the date of its establishment and shall not be subject to attack during such period except upon clear and convincing proof that the trusteeship was not established or maintained in good faith for a purpose allowable under § 462 of this title. After the expiration of eighteen months the trusteeship shall be presumed invalid in any proceeding and its discontinuance shall be decreed unless the labor organization shall show by clear and convincing proof that the continuation of the trusteeship is necessary for a purpose allowable under § 462 of this title, (29 U.S.C. § 464(c)).
Accordingly, as this is essentially a contractual matter, the Court will retain jurisdiction over the dispute.
III
The circuit courts that have addressed the propriety of preliminary injunctions to enforce a trusteeship have generally not applied the traditional criteria for preliminary injunctions because of 29 U.S.C. § 464(c), which specifies the criteria for trusteeships and court enforcement of them. In keeping with the intent of Congress, a preliminary injunction is presumptively valid to impose a trusteeship so long as it was imposed in accordance with the union constitution, after a fair hearing, and for a proper purpose. National Association of Letter Carriers v. Sombrotto, 449 F.2d 915 (2d Cir.1971); Jolley v. Gorman, 428 F.2d 960 (5th Cir.1970); Cascade Local Lodge 297 v. Machinists, 111 L.R.R.M. (BNA) 3123 (D.Wash.1981), aff'd., 684 F.2d 609 (9th Cir.1982). The Sombrotto court stated:
Ordinarily, a party seeking preliminary relief of this sort must carry the burden of showing a likelihood of success on the merits and a preponderance of harm running against him by denial of the application. But if this burden were rigidly imposed on a parent union seeking to enforce a trusteeship against one of its resisting locals, the local, by failing to comply with its obligation under the union constitution to accept a trusteeship lawfully imposed, could turn the statutory scheme for handling the trusteeship problem on its head.... Congress contemplated that if the parent's constitution had an appropriate provision and *1208 this was complied with, the courts were to enter the picture to invalidate a trusteeship only if the local ... was able to overcome a rather stiff presumption of validity. ...Hence we believe that the parent is entitled to a preliminary injunction imposing a trusteeship on application unless the local comes forward with adequate proof that the trusteeship is not being sought in good faith. 449 F.2d at 920-21.
A similar conclusion was reached in International Brotherhood of Boilermakers v. Local Lodge 714, 663 F. Supp. 1071, 1075 (N.D.Ill.1987). These cases hold that in seeking an injunction the international need not show a likelihood of success on the merits, since 29 U.S.C. § 464 presumes the validity of a trusteeship imposed under a union constitutional provision after hearing unless the local is able to show by clear and convincing evidence that it was imposed for an improper purpose. See 29 U.S.C. § 464(c).
To meet its burden to obtain a preliminary injunction in court enforcing a trusteeship over a local union, the international therefore must show that: (1) the trusteeship was imposed in compliance with the union constitution and bylaws; (2) a fair hearing was held before the executive board of the union or other body specified in its constitution; and (3) the trusteeship was imposed for a proper purpose. See International Brotherhood of Boilermakers v. Local Lodge D461, 663 F. Supp. 1031, 1033 (M.D.Ga.1987); Luggage Workers Union Local 167 v. International Leather Goods, Plastics and Novelties Workers' Union, 316 F. Supp. 500 (D.Del.1970).
Local 31 does not challenge the procedural regularity in establishing the trusteeship in this case. Article XVIII of the IBB Constitution provides for the imposition of trusteeships, subject to a hearing within 15 days. In this case the trusteeship was imposed effective September 1, 1987 and a hearing was held, after proper notice, on September 15, 1987, at which time evidence was introduced to support the imposition of the trusteeship. Defendants were afforded the opportunity to contest that evidence, cross-examine witnesses, and present their own testimony. However, they chose not to attend the hearing.
Since the first two of the three requirements for the injunction leaves open only the third, which carries the statutory presumption of validity, defendants must in this case show by clear and convincing proof that the trusteeship was not established or maintained in good faith for a purpose allowed by 29 U.S.C. § 462, a burden they have not met.
The grounds specified in Article XVIII, Section 1 of the IBB Constitution for imposing a trusteeship are as follows:
Grounds for the imposition of trusteeships shall include: secession or threatened secession; dissolution or threatened dissolution; dissipation or loss of funds or assets or financial malpractice or corruption or threat thereof; violation or threatened violation of collective bargaining agreements; the deprivation of democratic procedures and other activities constituting a violation of this Constitution and threatening the welfare of the subordinate body membership or the International Brotherhood.
These enumerated grounds track the lawful purposes of a trusteeship as outlined in the Title III of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 462. International President Charles Jones advised Local Lodge D31 that the trusteeship was being imposed in this case for specific violations along these same lines. He accused them of (1) dual unionism, (2) promoting disaffiliation, secession and dissolution of Local Lodge D31, (3) failure to perform their duties in accordance with the IBB Constitution, (4) possible financial malpractice, misappropriation, dissipation, and improper use of funds and assets of Local Lodge D31, and (5) failure to submit reports and pay per capita tax payments.
In view of the evidence the Court concludes that the IBB had a proper purpose to impose a trusteeship. It remains unchallenged that the officers of Local Lodge D31 had not sent quarterly reports or per capita tax payments to the IBB since May *1209 1987. Some of the officers and members of Local Lodge D31 were known to have travelled to Las Vegas in early August to meet with IWNA officials who were urging the local to disaffiliate from the IBB and join the IWNA, and Local Lodge D31 treasury funds were expended to finance these trips. Local 31 did offer evidence of a short meeting at that convention in Las Vegas involving the Lehigh Joint Conference, which alone may have been a legitimate purpose for the expenditure of such funds. But that meeting was at best perfunctory, lasting a few hours and involving only three of the eight locals who were members. The primary purpose of the trip was to meet with the IWNA group. Moreover, the Local 31 President had told the Lehigh Portland Cement Company that Local Lodge D31 no longer considered the IBB to be conducting negotiations on its behalf. Since there had been no collective bargaining agreement in effect for several years and the IBB had been the designated agent to negotiate a new agreement with company officials, this had a significant effect on IBB standing in those negotiations. Finally, defendants' admission at the preliminary injunction hearing that the funds in the treasury of Local Lodge D31 were exhausted in the manner described is a significant justification to enforce the imposition of a trusteeship. While IBB did not perhaps know of the status of the various Local's accounts, it correctly suspected financial mismanagement.
Similar actions of other Locals have been sufficient to justify the imposition of a trusteeship in other cases. Sombrotto, supra, at 923; C.A.P.E. Local Union 1983, IBPAT, AFL-CIO, of Cape May County, N.J. v. International Brotherhood of Painters and Allied Trades, 598 F. Supp. 1056, 1075 (D.N.J.1984); International Brotherhood of Electrical Workers Local 1186 v. Eli, 307 F. Supp. 495, 506 (D.Hawaii 1969). Some courts have held that a Local's attempt to disaffiliate is enough, by itself, to justify the imposition of a trusteeship where the disaffiliation would have a detrimental impact upon collective bargaining. Executive Board Local 1302 v. United Brotherhood of Carpenters and Joiners of America, 477 F.2d 612, 613 (2d Cir. 1973); Sombrotto, supra, at 923; McVicker v. International Union of District 50, Allied and Technical Workers of the United States and Canada, 327 F. Supp. 296, 301 (N.D.Ohio 1971). Even those courts that have indicated that attempted disaffiliation alone is not sufficient grounds for a trusteeship have found that the threat of imminent disaffiliation combined with other violations does suffice to justify the imposition of a trusteeship. C.A.P.E. Local Union 1983, supra at 1069.
The defendants claim that the main purpose for the trusteeship was IBB's hope that the imposition of a trusteeship would help to block the disaffiliation of Local 31. Defendants cite a number of cases where the courts have struck down a trusteeship because the local union essentially sought to disaffiliate from the parent union. Benda v. Grand Lodge of the International Association of Machinists and Aerospace Workers, 584 F.2d 308 (9th Cir.1978); Local Union 13410, United Mine Workers of America v. United Mine Workers of America, 475 F.2d 906 (D.C.Cir.1973); United Brotherhood of Carpenters and Joiners of America v. Brown, 343 F.2d 872 (10th Cir.1965). That right is a carefully protected right of every local labor organization, and it is clear that a parent organization's desire to control dissident locals is not a proper excuse for a trusteeship.
Mere assertion of bad faith, however, will not overcome the presumption created by the evidence in this case that the trusteeship was imposed for a permissible purpose under the law. Lucas v. Electrical Workers, 106 L.R.R.M. (BNA) 3035 (D.Ariz.1979). Had Local Lodge D31 simply been meeting to discuss or to make plans to disaffiliate from the IBB, there would be no basis for a trusteeship. However, Local Lodge officers went so far as to notify improperly Lehigh Portland Cement Company that it was withdrawing consent to future negotiations by the IBB on behalf of Local Lodge D31. This could be expected to have the effect of undermining the collective bargaining position of the IBB. Local 31's further actions in spending Local *1210 Lodge D31 treasury funds on trips to Las Vegas for discussions with rival union officials, by opening a new bank account with the ostensible purpose of keeping funds from the IBB, and by withholding per capita tax payments and accounting reports from the International provide sound grounds for a trusteeship.
Accordingly, the Court will enter a preliminary injunction enforcing the trusteeship. During the time of the trusteeship, plaintiff Allan Stubna will act as trustee of the affairs of Local Lodge D31. In order to permit Trustee Stubna to perform his duties, defendants Harris, Sprague, and Black will be directed to turn over the books, papers, records, and assets of Local Lodge D31 to the trustee. However, Trustee Stubna will be ordered not to expend any monies from the accounts of Local Lodge 31 except pursuant to application and Court order.
The Court does not reach at this time the issue of who under the Merger Agreement or the amendments to the Constitution of the IBB controls the ownership of the assets of the Local Lodge D31 or Local 31 in the event of disaffiliation or dissolution of the Local.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2241230/
|
829 N.E.2d 213 (2005)
KEHR MID-WEST IRON, Appellant-Defendant,
v.
Marc BORDNER, Appellee-Plaintiff.
No. 93A02-0501-EX-26.
Court of Appeals of Indiana.
June 15, 2005.
*215 John R. Gastineau, Eberhard & Gastineau, P.C., Fort Wayne, for Appellant.
Kevin L. Likes, Likes & Kraus, LLC, Fort Wayne, for Appellee.
OPINION
MATHIAS, Judge.
Marc Bordner ("Bordner") was granted worker's compensation benefits by the Full Worker's Compensation Board ("Board"). Kehr Mid-West Iron ("Kehr") appeals, raising the following issue: Whether a claimant may receive worker's compensation benefits as a result of an injury caused by a mandatory evaluation of a prior work-related injury. Concluding the act leading to the injury (1) was required of Bordner, (2) arises out of Bordner's employment and claim for benefits, and (3) establishes a right to worker's compensation benefits, we affirm.
Facts and Procedural History
On September 19, 2000, Bordner injured his right wrist and shoulder while working for Kehr. Bordner had surgery on his shoulder in the spring of 2001, was authorized to return to work without restriction on August 2, 2001, and continued to work for Kehr until September 6, 2001.
On November 15, 2001, Bordner went to Cameron Hospital for a mandatory functional evaluation relating to his September 19, 2000 injury. Pursuant to this evaluation, the therapist directed Bordner to pull on a chair. Bordner did as he was instructed and felt a pop in his lower back. This injury to Bordner's back required surgeries on March 27, 2002 and August 8, 2002.
Bordner filed for worker's compensation for his November 15, 2001 injury. A single Board member concluded Bordner was not entitled to worker's compensation benefits. Bordner appealed this finding to the Board, and the Board determined Bordner was entitled to worker's compensation benefits. Kehr now appeals.
Discussion and Decision
An award by the Board is binding to all questions of fact, but either party may appeal for errors of law under the same conditions that govern ordinary appeals. Metro. Sch. Dist. v. Carter, 803 N.E.2d 695, 697 (Ind.Ct.App.2004) (citing Ind.Code § 22-3-4-8(b) (1991)). Our review is bound by the Board's findings, and we may not disturb the Board's determination unless the evidence is undisputed and leads undeniably to a contrary conclusion. Id. Our review may only consider the evidence, and the reasonable inferences therefrom, most favorable to the Board's decision. Id.
The Worker's Compensation Act provides for compensation of employees who are injured by an "accident arising out of and in the course of employment." Milledge v. Oaks, 784 N.E.2d 926, 929 (Ind. 2003). To receive worker's compensation benefits, a claimant must prove both elements. Id.
A. Arises out of employment
An injury "arises out of employment" when a causal nexus exists between the injury sustained and the duties or services performed by the employee. One basis to establish a causal nexus is to show that the injury resulted from a risk specific *216 to employment. Global Constr. Inc., v. March, 813 N.E.2d 1163, 1169 (Ind.2004). A risk incidental to employment is sufficient to bring a claim within worker's compensation. Id. The pivotal question is whether the person's employment increased the hazard that led to the injury.[1] Kehr contends Bordner's claim simply amounts to a "but for causation test," which was rejected by Smith v. Nat'l Liquors, Inc., 158 Ind.App. 160, 301 N.E.2d 783 (1973), and Gayler v. N. Am. Van Lines, 566 N.E.2d 84, 86 (Ind.Ct.App.1991).
In Smith, the claimant exited his truck for treatment when his crutches slipped on ice in the doctor's parking lot and received an injury unrelated to the injury for which he was receiving treatment. Id. This court affirmed the Board's decision to deny benefits because it concluded that the facts did not indisputably contradict the Board's conclusion that the claimant's injury did not arise from his employment. Id. at 786.
However, unlike Smith, there is a nexus between Bordner's second injury and his employment. In Smith, the claimant sought and chose the doctor from which to receive treatment and was able to choose the manner in which he exited his truck. 301 N.E.2d at 784. In the case at bar, Bordner had no discretion as to whether to attend his evaluation and was explicitly directed to perform the act that led to his injury. See Ind.Code § 22-3-3-6 (1991). Unlike the simple "but for" factual scenario of Smith, there is a nexus between Bordner's injury and his work responsibilities because the injury resulted from an act required by the employer and Bordner had no discretion in performing the act that led to his injury.
In Gayler, an employee was driving to pick up a prescription for a work-related injury. 566 N.E.2d at 85. While the employee was en route, she was in a head-on collision and seriously injured. Id. This court affirmed the Board's decision that the employee's injury was caused by the intervening negligence of a third party, which broke the chain of causation necessary for worker's compensation. Id. at 87. The case at bar is distinguishable from Gayler. First, Bordner's injuries involve no intervening third-party negligence. Second, Bordner unlike the claimant in Gayler is not appealing from a negative judgment.[2]
Gayler and Smith are distinguishable from the case at bar. Both cases stand for the proposition that an intervening act unrelated to the employment may preclude an employee's ability to claim worker's compensation benefits ice in Smith and the driver of another vehicle in Gayler. Here, the doctor, who was for the purposes of the Worker's Compensation Act Kehr's agent, required Bordner to perform the act that led to his injury. This goes well beyond the broad "but for causation" addressed in Gayler and Smith.
B. Course of employment
The stronger the causal link between the injury and the employment, the weaker the showing is required to find an injury to have occurred in the course of employment. Global Constr., 813 N.E.2d at 1168; see also Constr. Management & Design, Inc. v. Vanderweele, 660 N.E.2d *217 1046, 1050 (Ind.Ct.App.1996), trans. denied (accidents happening in the performance of acts of a personal nature which are incidental to employment are regarded as in the course of employment).
Because Bordner's former employment and eligibility for worker's compensation benefits removed his discretion and placed him in a position where he was required to perform the act that led to his injury, his injury occurred in the course of employment. See Global Constr., 813 N.E.2d at 1167-68 ("March was required by his employer to cross the picket line at the Foundry."); see also Clemans v. Wishard Mem'l Hosp., 727 N.E.2d 1084, 1087 (Ind. Ct.App.2000), trans. denied (ordinarily an injury on a public street is not compensable, but the employment requirement of crossing the street made it compensable).
Conclusion
Bordner's injury was sustained while performing a mandatory work-related performance evaluation and is compensable under the Worker's Compensation Act.
Affirmed.
CRONE, J., and DARDEN, J., concur.
NOTES
[1] Although "arising from" and "in the course of" are usually discussed as independent factors, in practice, the two are not and should not be applied entirely independently. Global Constr., 813 N.E.2d at 1168.
[2] "The fine line of whether an activity arises out of employment is a question of fact to be determined by the ... Board." Gayler, 566 N.E.2d at 86.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874720/
|
268 B.R. 341 (2001)
In re Beverly A. JOHNSON, Debtor.
No. 00-13479 K.
United States Bankruptcy Court, W.D. New York.
August 17, 2001.
Peter D. Grubea, Buffalo, NY, for debtor.
Lawrence C. Brown, Buffalo, NY, Special Counsel for trustee Thomas J. Gaffney.
MICHAEL J. KAPLAN, Bankruptcy Judge.
Pursuant to this Court's decision of this date in the case of In re Maurer, 268 B.R. 339 (Bankr.W.D.N.Y.2001), and by authority of the remand of this matter from the U.S. District Court of this District for consideration of arguments raised in Maurer, but never raised at the trial level in this case, this Court vacates its earlier Order of October 25, 2000 (In re Johnson, 254 B.R. 786, (Bankr.W.D.N.Y.2000)) and finds that N.Y.S. Employees Deferred Compensation funds are exempt.
SO ORDERED.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1559418/
|
20 So.3d 1023 (2009)
Abelardo ESCARPITA, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-270.
District Court of Appeal of Florida, Fourth District.
November 12, 2009.
Abelardo Escarpita, Bonifay, pro se.
Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Abelardo Escarpita appeals the summary denial of a rule 3.850 motion. He raises only one of his post-conviction claims on appeal. Although not sufficiently pleaded below, Escarpita elaborated on his claim in his initial brief. He essentially alleges that he would have accepted the state's seven-year plea offer if counsel had not misled him into believing that he could be deported to Mexico if he entered the *1024 plea. This advice was incorrect because Escarpita is a naturalized citizen. Escarpita alleges that he has limited understanding of English, and counsel did not use an interpreter when they discussed the plea offer before appearing in court. Contrary to the state's argument, nothing in the record shows that defense counsel used an interpreter when they discussed the plea offer before the hearing, and nothing in the record shows that deportation was not discussed. In addition, the record does not conclusively show that Escarpita would not have accepted the plea offer regardless of the alleged misadvice.
Accordingly, the circuit court's order is reversed. On remand, the court shall provide Escarpita an opportunity to amend this claim pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). Appellant is reminded, that if he makes any false allegations in his amended motion, he could be subject to disciplinary procedures in prison, he could be prosecuted for perjury, or he could be punished for contempt of court. Oquendo v. State, 2 So.3d 1001 (Fla. 4th DCA 2008).
Reversed and Remanded.
POLEN, DAMOORGIAN and CIKLIN, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2059497/
|
124 Ill. App.2d 19 (1970)
259 N.E.2d 867
Great American Insurance Company, a Corporation, Plaintiff-Appellee,
v.
Tinley Park Recreation Commission, a Corporation, Patrick Bullard and Charles Bullard, Defendants-Appellants.
Gen. No. 53,200.
Illinois Appellate Court First District, Second Division.
April 21, 1970.
Rayson & Hutchison, of Tinley Park, Smith & Munson, and Edwin A. Strugala, of Chicago (Lester E. Munson, Leland H. Rayson, and Edwin A. Strugala, of counsel), for appellants.
*20 Pratt & Warvel, of Chicago (Charles J. Pratt, William H. Warvel, and Alvis W. Haney, Jr., of counsel), for appellee.
MR. JUSTICE LYONS delivered the opinion of the court.
The Great American Insurance Company brought an action for declaratory judgment for construction of a certain policy of insurance, which it had issued in relation to an occurrence which resulted in injuries to a minor. The Tinley Park Recreation Commission (hereinafter called the Commission), the insured, Patrick Bullard, the injured minor, Charles Bullard, his father and next friend, and Louis Arnold Maretti, d/b/a Carpentersville Fireworks Company were named as parties defendant. The trial court found the policy in question to have expired by its own terms prior to the occurrence which resulted in the minor's injuries and entered judgment for the plaintiff. All defendants, save Maretti, have appealed.
The Commission purchased the policy to cover the risks to which it was exposed as sponsor of an outdoor carnival and fireworks display. The fireworks display, marking the close of the Commission sponsored activities, was conducted on the evening of September 3, 1962. The employees of Maretti, the contractor engaged to conduct the display, failed, during their cleanup operations, to discover and remove certain unexploded firework bombs.
On the afternoon of September 4, 1962, Patrick Bullard, age 10, and a companion, discovered two such bombs. On the following afternoon, September 5, 1962, Patrick Bullard was injured by the explosion of one of those bombs. It is unnecessary to detail here the circumstances surrounding that injury, as the question of whether the injury to Bullard fell within the risks assumed by the insurer is not before this court.
The sole issue presented for review is whether the determination by the trial court is against the manifest *21 weight of the evidence. The court found that the insurer is not liable to indemnify the Commission for the legal liability to which it has become exposed as a consequence of the expiration of the policy prior to the occurrence which resulted in Bullard's injuries.
The policy in question is a form liability policy, commonly referred to as an Owners', Landlords' and Tenants' Liability Policy, intended to be adaptable to the risks attending a large variety of activities. The type or types of risks for which the policy is issued is indicated in the declarations section, along with limits of liability in terms of dollar amounts, the location of the premises insured and amount of premium charge. This section also names the Commission as the insured and indicates the policy period to commence at 12:01 a.m. on August 30, 1962, and expire at 12:01 a.m. on September 4, 1962.
On page three of the policy are set forth the insuring agreements, seven in number, each of which is designated by a Roman Numeral. Under Agreement I, the insurer agrees "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined." The hazard for which the Commission purchased protection is defined in the same agreement as follows. "Premises-Operations. The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto."
Insuring Agreement VII, which operates as a limitation upon the covenant contained in Agreement I provides: "This policy applies only to those accidents which occur during the policy period within the United States of America, its territories or possessions, or Canada."
The explosion and resultant injury to Bullard on September 5, 1962, clearly occurred subsequent to the expiration of the policy. It is the defendants' contention *22 that under a proper construction of the policy coverage is nevertheless afforded for the Bullard injury. They argue that under Agreement I a cause and effect relationship is established between the terms "accident" and "injury." Thus when Agreement VII is read, the term "accident" contained therein must be given the meaning which attaches to it by reason of its use in Agreement I. They conclude that all that is necessary for coverage to exist under the policy is that the cause of the injury occur during the policy period.
Defendants then attempt to establish that the cause of Bullard's injury did occur within the policy period. They reason as follows. The term "accident" is properly defined to include negligent acts which are the proximate cause of an unintended injury, citing Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 NE2d 761 (1961), a case dealing with the question of where a tort is committed. Further, the term "accident" is generally understood to be an occurrence, which in turn is defined as an event or series of events. Thus, an accident may be said to be an event or series of events, or, in terms of the present factual situation, the accident which resulted in the injuries sustained by Bullard was a continuous process, the component parts of which cannot be separated from the whole, which commenced within the policy period with the negligent act of Maretti's employees and continued until the time of the injury. At this time the entire experience became a "consummated accident."
In essence, the defendants argue that since a cause and effect relationship exists between the terms "accident" and "injury" as they appear in the policy, and since a negligent act which is the proximate cause of an unintended injury is properly contained within the meaning of the term "accident" and further since the component parts of an accident cannot properly be separated, all *23 that is necessary for liability to attach to plaintiff under the limitations of Agreement VII is that some portion of the "consummated accident" occur within the policy period. They further argue that to require that the injury occur within the policy period would result in an inconsistency between the first and seventh agreements with respect to the term "accident" as "accident" in the seventh agreement would then be synonymous with "injury."
[1, 2] Assuming arguendo that defendants are correct in their assertions both with respect to the relationship between the terms "accident" and "injury" as they appear in the policy and with regard to a negligent act being part of an accident, it does not follow therefrom that liability for bodily injury caused by accident arises upon completion of a portion of the accident; i.e., commission of the negligent act. To so hold would be to extend the proposition that a negligent act which is the proximate cause of a later suffered injury is properly deemed a part of an accident to the proposition that the terms "negligent act" and "accident" are synonymous. By their own use of the phrase "consummated accident" defendants indicate their realization that an accident cannot be said to have occurred until all the factors of which it is comprised combine to produce the force which inflicts injury. It is clear that in this sense the accident which caused Bullard's injury did not occur until the afternoon of September 5, 1962. In addition, this concept does not require that the terms "accident" and "injury" be equivalent. On the contrary, it retains the cause and effect relationship between them which defendants have urged exists by reason of their use in the first agreement.
[3] Finally, defendants have argued that liability should be found to exist under the rule of construction that insurance policies should be construed to the end that the reasonable expectations of the insured be given effect. *24 While it may be true that the Commission reasonably expected that the policy which it purchased from plaintiff would cover the type of occurrence which resulted in Bullard's injuries, it could not have reasonably expected that occurrences which post date the policy would be covered thereby.
We find no error in the determination of the Circuit Court that the policy in question expired by its own terms prior to the accident which resulted in Bullard's injuries. Accordingly, the judgment of the Circuit Court is affirmed.
Judgment affirmed.
McCORMICK, P.J. and BURKE, J., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2493021/
|
(2008)
UNITED STATES of America
v.
Oliver O'SULLIVAN.
No. 2:06-cr-33-FtM-33SPC.
United States District Court, M.D. Florida, Fort Myers Division.
April 2, 2008.
ORDER
VIRGINIA M. HERNANDEZ COVINGTON, District Judge.
This matter comes before the Court pursuant to Defendant's Motion to Perpetuate Testimony (Doc. # 171), which was filed on March 25, 2008. The government filed a response in opposition to the motion on March 27, 2008 (Doc. # 172). For the reasons that follow, Defendant's motion is due to be granted.
Defendant's case is set for a retrial on May 21, 2008. Defendant seeks to depose Terrance A. Royes in order to perpetuate testimony under Rule 15 of the Federal Rules of Criminal Procedure. In essence, Defendant asserts that Royes is an essential defense witness whose testimony is material and that Royes is likely to be deported to Jamaica prior to Defendant's retrial, rendering Royes' unavailable to offer live trial testimony. The government, on the other hand, asserts that Royes is unlikely to be deported prior to the retrial and thus, Royes will likely be available to offer live trial testimony. This Court will address these arguments and others in turn.
I. Analysis
The taking of depositions in criminal cases is generally disfavored, and the only authorized purpose of depositions in criminal cases is to preserve evidence, not to afford discovery. United States v. Drogoul, 1 F.3d 1546, 1551 (11th Cir.1993) (citations omitted). The Eleventh Circuit explains, "The primary reasons for the law's normal antipathy toward depositions in criminal cases are the factfinder's usual inability to observe the demeanor of deposition witnesses, and the threat that poses to the defendant's Sixth Amendment rights." Id. at 1552. However, as recognized by the Eleventh Circuit, "the Federal Rules of Criminal Procedure expressly authorize parties to take depositions and use them at trial, when doing so is necessary to achieve justice and may be done consistent with the defendant's constitutional rights." Id. at 1551. The Rule referenced by Drogoul is Rule 15(a) (1) of the Federal Rules of Criminal Procedure, which provides:
A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.
The Eleventh Circuit addressed the specific requirements of Rule 15 of the Federal Rules of Criminal Procedure in United States v. Ramos, 45 F.3d 1519 (11th Cir. 1995), noting, "Rule 15 permits a district court to authorize a deposition in a criminal case when exceptional circumstances exist." Id. at 1522. The Eleventh Circuit determined that district courts should evaluate three factors when deciding a Rule 15 motion as follows: "whether (1) the witness is unavailable to testify at trial; (2) injustice will result because testimony material to the movant's case will be absent; and (3) counterveiling factors render taking the deposition unjust to the nonmoving party." Id. at 1522-1523 (citing Drogoul, 1 F.3d at 1554). The movant bears the burden of showing that extraordinary circumstances exist, and a district court's decision on the matter will be disturbed only for an abuse of discretion. Drogoul, 1 F.3d at 1552.
In this case, Defendant as movant, asserts, among other things:
Royes is a witness in this case, and his testimony is essential to the Defense. At the time of Mr. O'Sullivan's involvement in this case, Mr. Royes was charged with making the arrangements for the transportation of the illegal contraband. It was the government's theory during the last trial that Mr. Royes made those arrangements with Mr. O'Sullivan. Mr. Royes is an essential witness for the defense, as he can establish that he had never met Mr. O'Sullivan prior to the date of this offense, and was not previously involved with him in any way. Mr. Royes's testimony will refute the government's theory.
(Doc. # 171 at 1).
A. Unavailability
This Court must determine whether Royes is "unavailable" to testify at Defendant's retrial. It is not disputed that Royes "is currently scheduled for a removal hearing on April 11, 2008, in Orlando, Florida." (Doc. # 172 at 1). As explained by the government, "the removal hearing is the result of Royes being placed in deportation proceedings by Immigration and Customs Enforcement Agent Kathy Dellane Mangone following the investigation in the instant case." (Doc. # 172 at 1). Defendant contends that "the likely outcome of the hearing on April 11, 2008, will be an order of deportation, making Mr. Royes' live testimony at trial impossible." (Doc. # 171 at 2). The government seems to agree that an order of deportation is likely, however, the government asserts that the order of deportation "does not end the process" and that Royes will likely file an appeal because he fervently desires to stay in the United States "because of his daughter." (Doc. # 172 at 1). Thus, the government argues, "Because Royes would remain on bond pending the ultimate outcome of the removal hearing if an appeal should be taken, Royes would be available as a witness." (Doc. # 172 at 1).
This Court determines that Royes is unavailable to offer live testimony at Defendant's retrial under the present circumstances. Both parties assert that Royes is likely to be ordered deported on or as of April 11, 2008. Though the government posits that Royes will likely file an appeal and be permitted to stay in the United States on bond, there is no certainty that Royes will file the appeal should a deportation order issue. While there is a possibility that Royes will file an appeal should the deportation order issue, it would be improper for this Court to deny Defendant the opportunity to depose Royes, a witness Defendant classifies as "essential," based on the government's speculative arguments concerning Royes' motivations and future conduct. Accordingly, this Court finds that Royes is unavailable to offer live testimony at Defendant's retrial.
B. Materiality
The principal consideration guiding whether the absence of a particular witness's testimony would produce injustice is the materiality of that testimony to the case. Drogoul, 1 F.3d at 1552 (citations omitted). Defendant asserts that Royes' deposition testimony is material because Royes will testify that he had not yet met the Defendant as of the date of the offense in question, which would "refute" the government's theory of the case. It does not appear that the government contests the materiality of Royes' testimony. Accordingly, this Court finds that Royes' testimony is material to Defendant's defense.
C. Injustice to the Government
This Court may deny a Rule 15 motion if the non-moving party is able to demonstrate that the requested deposition will cause injustice. A non-moving party bears a high burden on this issue. As stated in Drogoul, "The ultimate inquiry is whether exceptional circumstances exist and whether it is in the interest of justice to allow the depositions to be taken. When a substantial likelihood exists that the prospective deponents will be unavailable for trial and their testimony is highly relevant to a central issue in the case, justice generally requires preservation of that testimony." Drogoul, 1 F.3d at 1555.[1]
In this case, the government has not presented any arguments tending to show that the requested deposition of Royes would cause it to suffer any prejudice or injustice.
This Court determines that Defendant would suffer extreme prejudice absent the preservation of Royes' testimony via deposition as requested.[2] "Rule 15 was designed to facilitate the preservation of testimony which may be needed to guarantee the deposing party a fair trial." Drogoul, 1 F.3d at 1557. As Defendant has demonstrated Royes' unavailability and the materiality of his testimony, and because there is no indication that Royes' deposition would cause the government an injustice, it is appropriate to grant Defendant's motion to perpetuate Royes' testimony under Rule 15 of the Federal Rules of Criminal Procedure.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Defendant's Motion to Perpetuate Testimony (Doc. # 171) is GRANTED.
DONE and ORDERED.
NOTES
[1] The procedural history in Drogoul is re, markable. The defendant was charged with wire fraud, conspiracy, and making false statements to government agencies in a 347-count indictment. 1 F.3d at 1549. The defendant entered a guilty plea which was later withdrawn with leave of court. Id. at 1550. Thereafter, the government sought to depose 13 Italian nationals under Rule 15 of the Federal Rules of Criminal Procedure. Id. The trial court denied the Rule 15 motion, finding that the government failed to demonstrate that the Italian nationals were unavailable. Id. The government obtained declarations from a number of the Italian nationals asserting that they were unwilling to testify in the United States, among other evidence, and the government filed a motion for reconsideration of the denial of the Rule 15 motion. Id. The trial court denied the motion for reconsideration, and the government appealed. Id. The Eleventh Circuit reversed the trial court. Id. On remand, the trial court once again denied the government's Rule 15 motion, holding that the government failed to show that the deposition testimony would meet constitutional standards and questioning the accuracy of the translation of the Italian testimony and the opportunity for defendant to engage in meaningful cross examination. Id. Further, the trial court determined that the Rule 15 motion would cause injustice due to the delay in the case caused by the depositions. Id. at 1551. The government again appealed the trial court's decision, and the Eleventh Circuit again reversed the trial court. The Eleventh Circuit found that the defendants right to confrontation under the Sixth Amendment would be preserved by defendant and his attorney traveling to Italy at the government's expense. Id. at 1555. Further, the Eleventh Circuit determined that the trial court's misgivings about the translation of the Italian testimony were premature: "until the depositions are taken and translated, and an objection lodged, it is sheer speculation that the translation will pose a problem in this case." Id. at 1554. Last, the Eleventh Circuit ruled that a potential delay in the trial could not, alone, justify the denial of the Rule 15 motion: "Setting forth a per se rule against delay in the face of this crucial testimony is an abuse of discretion." Id. 1556.
[2] This Court is also guided by the Court's admonition in United States v. Valenzuela-Bernal, 458 U.S. 858, 872-875, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), that sanctions may be imposed on the government for deporting a witness if the criminal defendant makes a plausible showing that the testimony of the deported witness would have been material and favorable to his defense in ways not merely cumulative to the testimony of available witnesses, (citations omitted). See also United States v. Schlei, 122 F.3d 944, 983 (11th Cir.1997) (discussing the possibility of sanctions predicated upon deportation of material witnesses in criminal cases).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/8326466/
|
Cosgrove, Robert C., J.
The matter came before the court on the plaintiffs motion for a preliminary injunction.
I briefly sketch the facts. Zona operates two hair salons, one in Hingham, the other in Norwell. In August 2006, Zona hired McKinnon, a recent graduate of a cosmetology program, as a licensed hair stylist. When he was hired, McKinnon signed a confidentiality and non-competition agreement, commonly referred to as a “covenant not to compete.” In pertinent part, it provided that for twelve months following the “termination” of his employment, McKinnon would not compete with Zona, directly or indirectly, within its market area of Norwell, Hingham, Hanover, Cohasset, Scituate, Rockland and Pembroke. He also agreed not to solicit or assist others to solicit any Salon-related business, “directly or indirectly,” from any Salon client, even if participating in a business outside Zona’s market area. He acknowledged that he understood that these provisions were “aimed at protecting the interests of the Salon in preserving the Salon’s relationship with these clients” beyond the period of his employment.
On November 4, 2010, Zona fired McKinnon.
In December 2010, Zona was informed that the Defendant was working in the area at a salon other than Zona, and that he had solicited one of Zona’s customers, Meg Kelleher.1 At least as of February 2011, McKinnon was working as a hair stylist at Rebel II Hair Salon in Hingham, located within two miles of Zona’s Norwell Salon. McKinnon is advertising his services at Rebel II on the internet.
On March 2, 2011, the plaintiff filed a verified complaint seeking injunctive relief and damages.
This court may enter a preliminary injunction if the plaintiff shows: 1) a likelihood of success on the merits; 2) that irreparable harm will result from denial of the injunction; and 3) the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant. See Tri-Nel Mgmt., Inc. v. Bd. of Health of Barnstable, 433 Mass. 217, 219 (2001).
McKinnon acknowledges that he signed the agreement not to compete. Appearing pro se at the hearing on plaintiff s motion for a preliminary injunction, McKnnon suggested that he was not sure that he had read all of the papers he was asked to sign when Zona first employed him, that he very much needed the job and was thus in no position to negotiate terms, and that in any event, he had not quit but was involuntarily terminated, so he did not believe that he should or would be bound by an agreement not to compete. Whatever the ultimate success of these arguments, none of them persuade me that plaintiff is unlikely to prevail on the merits. As to the last argument noted, I observe that the language of the agreement imposes duties on McKinnon “following the termination" of his employment, not simply upon his “voluntary termination.”
The Supreme Judicial Court has articulated the standard for evaluating a covenant not to compete: such a covenant is not invalid “if the interest to be protected is consonant with public policy and if the restraint is limited reasonably in time and space.” What is reasonable depends on the facts. Blackwell v. *234Helides, 368 Mass. 225, 228 (1975), quoting Becker Coll. of Bus. Admin. & Secretarial Sci. v. Gross, 281 Mass. 355, 358 (1933).
The restrictions on McKinnon’s employment are limited to one year, and to the geographic area of the plaintiffs business. Alternatively put, McKinnon is free to work anywhere in Massachusetts so long as it is not in the seven specified towns that Zona serves, and so long as he does not solicit Zona’s clients. Here, as in Blackwell the restrictions implicate “good will [that] had been developed by [the plaintiff] in the careful operation of its business, which it was entitled to protect,” and here, as in Blackwell the restrictions are “not unreasonable.” Id. at 229. Rather, the restrictions are consistent with protecting the plaintiffs good will. All Stainless, Inc. v. Colby, 364 Mass. 773, 779 (1974). Accordingly, I conclude that the plaintiff has shown a likelihood of success on the merits.
The analysis now moves to an identification of the alleged irreparable harm. Ordinarily, economic loss alone does not rise to the level of irreparable harm needed to obtain a preliminary injunction, unless the loss threatens the existence of the business. See Hull Mun. Lighting, 399 Mass. 640, 643 (1987). However, to decline to enforce the covenant while the litigation worked its stately course to eventual conclusion would entirely deprive the plaintiff of the protection of the covenant. Perhaps for this reason, “(c]ourts have been particularly willing to enforce covenants not to compete in order to preserve good will in the sales, marketing, and staffing industries.” Nat’l Eng’g Servs. v. Grogan, (Middlesex no. 071583, January 29, 2008) (Hogan, J.) [23 Mass. L. Rptr. 451], citing All Stainless, Inc. v. Colby, 364 Mass. 773, 779-80 (1974); Darwin Partners, Inc. v. Signature Consultants, LLC, 200 Mass.Super. LEXIS 614; Bowne of Boston, Inc. v. Levine, 7 Mass. L. Rptr. 685 (1997); Oxford Global Res., Inc. v. Consolo et al., 16 Mass. L. Rptr. 415 (2002); Fortune Personnel Consultants of Boston, Inc. v. Hagopian, 8 Mass. L. Rptr. 49 (1997); Modis, Inc. v. The Revolution Group, Ltd., 11 Mass. L. Rptr. 246 (1999); Stone Legal Res. Group, Inc. v. Glebus, 15 Mass. L. Rptr. 738 (2002). “The loss of goodwill has been recognized as being particularly hard to quantify, giving rise to the need for equitable relief.” Bowne, 7 Mass. L. Rptr. at *5. Moreover, as good will, once lost, may never fully be recovered, and as the loss of good will is by nature difficult, if not impossible, to quantify, harm may be said to be irreparable.
As to the balance of harms, as previously noted, the failure to issue injunctive relief will essentially deprive Zona of the benefit of the covenant, damaging good will toward the plaintiff and causing loss of business. As to McKinnon, the “consequence of every covenant not to compete ... is that the covenanter is deprived of a possible means of earning his living, within a defined area and for a limited time. That fact alone does not make such covenants unenforceable.” Marine Contractors Co., Inc. v. Hurley, 365 Mass. 280, 289 (1974).
Accordingly, the court will enter a preliminary injunction.2
Order
A preliminary injunction shall enter enjoining the defendant Daniel McKinnon from competing with the Plaintiff company for a period of one (1) year from the date of issuance of this order, or until further order of this or an appellate court having jurisdiction. McK-innon is barred from soliciting any former or present customer of the Plaintiff for hair styling, coloring or grooming services the same as, or similar to, those that McKinnon previously performed on behalf of the Plaintiff. He is also barred from offering, in the towns of Norwell, Hingham, Hanover, Cohasset, Scituate, Rockland, and Pembroke, Massachusetts, such services to anyone, whether a present or former customer of the Plaintiff or not.
Further, for a period of one (1) year from the date of issuance of this order, or until further order of this or an appellate court having jurisdiction, McKinnon is barred from using or conveying Zona’s confidential information, including customers’ names and addresses and customer contacts learned by him during his employment with the Plaintiff.
McKinnon acknowledges having called Kelleher, but says he did so not to solicit her business, but out of friendship he developed with her over the years she was a client.
Zona’s proposed order suggests that McKinnon be enjoined for a period of one year. I have adopted that time period, although the language of the covenant specifies twelve months following termination, which period would end on November 4, 2011. As the parties had agreed on a year of non-competition, and as McKinnon appears to have been competing with the plaintiff in the months immediately following his firing, a one-year time period comes closest to effectuating the original bargain. I express no view as to the effect Zona’s choice of relief may have on any damages that may subsequently be awarded.
|
01-03-2023
|
10-17-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/1000038/
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7517
MARCUS W. TUNSTALL,
Petitioner - Appellant,
versus
JACK KAVANAGH; ATTORNEY GENERAL OF THE STATE
OF MARYLAND,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
97-4044-DKC)
Submitted: October 8, 1999 Decided: October 22, 1999
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marcus W. Tunstall, Appellant Pro Se. John Joseph Curran, Jr., At-
torney General, Annabelle Louise Lisic, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marcus W. Tunstall seeks to appeal the district court's order
denying relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 1999). We have reviewed the record and the district
court's opinion and find no reversible error. Accordingly, we deny
a certificate of appealability and dismiss the appeal on the
reasoning of the district court. See Tunstall v. Kavanagh No. CA-
97-4044-DKC(D. Md. May 28, 1998). We deny Tunstall's motions for
release on recognizance or surety, to place case in abeyance for
further litigation in the district court, and for a transcript at
Government expense. We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
2
|
01-03-2023
|
07-04-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2601584/
|
228 P.3d 614 (2010)
234 Or. App. 451
In the Matter of the MARRIAGE OF Jeffrey Jay FIELDS, Petitioner-Appellant, and
Nancy Elizabeth Fields, Respondent-Respondent.
0730548; A141040.
Court of Appeals of Oregon.
Argued and Submitted December 10, 2009.
Decided March 24, 2010.
*615 Edward L. Daniels, Albany, argued the cause for appellant. With him on the brief was Law Offices of Daniels & Ivers.
Lauren Saucy, Salem, argued the cause and filed the brief for respondent.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
ROSENBLUM, J.
Husband appeals a dissolution judgment. He assigns error to several aspects of the trial court's property division. On de novo review, ORS 19.415(3) (2007), we conclude that the trial court's property division was not just and proper under the circumstances. We modify the judgment accordingly and remand.
A full discussion of the facts would be of minimal benefit to the bench, bar, and public. It suffices to say that the parties were married for 20 years. Wife's parents gave her a minority interest in Hull Resources Limited Partnership (HRLP) during the marriage. Wife kept her interest in HRLP in her own name only, and the value of her interest in HRLP appreciated.
HRLP owned a substantial amount of timber property. During the marriage, husband and wife worked directly or indirectly for a number of business entities owned by the parties, wife, or wife's family, or jointly held by the parties and wife's family. HRLP was one of those jointly held business entities. Husband assisted wife's family in managing the timber property owned by those business entities by managing logging crews, obtaining permits, replanting logged areas, and servicing vehicles. Husband's stewardship of properties owned by those business entitiesincluding HRLPimproved the production of trees and thereby contributed to the income and appreciation of those entities. Husband was usually compensated for his work for HRLP and the other business entities, although that compensation was not commensurate with the actual value of husband's work.
During the marriage, the parties generally commingled their finances and engaged in joint financial and retirement planning. Wife's HRLP income was commingled with the parties' income from other sources. The parties listed all of their assets in obtaining joint financing, including wife's interest in HRLP. The parties used their joint credit to obtain supplies for HRLP. Husband and wife shared ideas about the potential and actual deals of their various business entities, including *616 HRLP, and wife frequently relied on husband's opinion in those discussions.
At trial, husband argued that he contributed to the appreciation of wife's interest in HRLP. The trial court made credibility findings that primarily addressed a different separately held asset belonging to wife. The court found that husband was credible in his testimony and that wife and wife's father were not credible witnesses in their description of husband's involvement in the management of that separately held asset, because they inaccurately minimized his contributions.[1] Nevertheless, the trial court ultimately concluded that wife had rebutted the presumption of equal contribution with respect to both the initial gift of the interest in HRLP and its appreciation in value during the marriage. Wife retained her entire interest in HRLP, which resulted in a property award with a discounted value of approximately $3 million.[2] Husband was awarded property valued at approximately $2 million and an equalizing judgment of $47,618.
In his fourth assignment of error, husband asserts that the trial court erred in its treatment of wife's interest in HRLP.[3] He contends that wife failed to rebut the presumption of equal contribution with respect to both the initial gift of the interest in HRLP and the appreciation of that interest. We reject without elaboration husband's argument relating to the initial gift from wife's parents, but, as explained below, we agree that he was entitled to share in the appreciation of wife's interest in HRLP.
ORS 107.105(1)(f) requires that the division of marital property be "just and proper" under the circumstances. Kunze and Kunze, 337 Or. 122, 135, 92 P.3d 100 (2004). Marital assets are subject to a rebuttable presumption of equal contribution and ownership, which applies to property acquired by a spouse by gift during the marriage. ORS 107.105(1)(f); Pierson and Pierson, 294 Or. 117, 122-23, 653 P.2d 1258 (1982). The appreciation in value of a separately held asset is a marital asset that is also subject to the rebuttable presumption of equal contribution. Massee and Massee, 328 Or. 195, 207, 970 P.2d 1203 (1999). A spouse rebuts the presumption of equal contribution with respect to the appreciation of a separately held asset if he or she proves that the other spouse did not contribute either directly or indirectly to its appreciation. Olson and Olson, 218 Or.App. 1, 8, 178 P.3d 272 (2008); see also Massee, 328 Or. at 207, 970 P.2d 1203 ("Because the appreciation, during the marriage, of [the] husband's separately held assets is a marital asset, the rebuttable presumption of equal contribution in ORS 107.105(1)(f) applies.").
In Olson, the husband inherited property from his family during the marriage and that property appreciated in value. 218 Or.App. at 9-11, 178 P.3d 272. We first examined whether the husband rebutted the presumption of equal contribution with respect to the actual inheritance of the property before considering whether the wife was entitled to share in the appreciation of that asset. We concluded that the husband adequately proved that the wife did not influence the inheritance and "did not contribute equally to the original acquisition of the property." Id. at 10, 178 P.3d 272. We then analyzed the appreciation of the property after the husband inherited it and before the dissolution. We concluded that the husband failed to rebut the presumption of equal contribution as to the appreciation of the value of the property because the wife made uncompensated contributions to the family as a homemaker, she contributed her earned income to *617 the family, and she made substantial contributions of labor to the property. Id. at 11, 178 P.3d 272.
Here, as in Olson, we are satisfied that wife rebutted the presumption of equal contribution as to the initial gift from her parents, but not as to its appreciation. In so concluding, we examine the totality of the circumstances, noting, in particular, that (1) husband assisted wife and her father in managing HRLP without being fully compensated for that work, (2) husband's stewardship of HRLP's timberland contributed to its increase in value, (3) the parties commingled their finances throughout their long-term marriage, (4) wife integrated her interest in HRLP into the parties' joint finances, and (5) husband relied on wife's separately held assets in his financial planning. That is, while wife obtained her interest in HRLP in a manner that was unrelated to and unaffected by husband, he was involved in the management of and, therefore, the appreciation of, her interest in that entity. Moreover, the parties' commingling of their financial affairsand husband's reasonable reliance on that commingling in his financial planning militate in favor of husband sharing equally in the appreciation of wife's interest in HRLP. See Kunze, 337 Or. at 141-42, 92 P.3d 100 (considering a spouse's degree of reliance on the disputed asset as a joint asset and the integration of that asset into the parties' joint finances in determining whether a separately held asset was intended to remain separately held).
In sum, we conclude that wife failed to rebut the presumption of equal contribution that applies to the appreciation of her interest in HRLP. The trial court erred in failing to give husband an equal share in the appreciation of wife's interest in HRLP, and that error resulted in a property division that was not just and proper under the circumstances. The discounted value of the appreciation of wife's interest in HRLP is $558,335. Because husband was entitled to share equally in that appreciation, his equalizing judgment should be increased by $279,167.50, from $47,618 to $326,785.50. Although a disparity remains in the overall property division, we conclude that the property divisionas herein modifiedis just and proper under the circumstances.
Dissolution judgment modified to award husband an equalizing judgment of $326,785.50; remanded for entry of property division consistent with this opinion; otherwise affirmed.
NOTES
[1] To the extent that our analysis of the property division issue turns on whether husband or wife and her father provided an accurate description of husband's involvement in the management of wife's separately held assets, we defer to the trial court's demeanor-based finding that husband was the more credible witness on that issue. See O'Donnell-Lamont and Lamont, 337 Or. 86, 89, 91 P.3d 721 (2004), cert. den., 543 U.S. 1050, 125 S. Ct. 867, 160 L. Ed. 2d 770 (2005) ("In our de novo review of the record, we give considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony.").
[2] Some of the assets awarded to wife were discounted based on control and marketability issues that negatively affected their value.
[3] We reject husband's other assignments of error without discussion.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874224/
|
694 F. Supp. 362 (1988)
WINZELER EXCAVATING CO., Plaintiff,
v.
William E. BROCK, Secretary of Labor, et al., Defendants.
No. C 86-7742.
United States District Court, N.D. Ohio W.D.
June 8, 1988.
*363 Gregory L. Hammond, Millisor, Belkin & Nobil, Akron, Ohio, for Winzeler Excavating Co.
Verne K. Armstrong, Toledo, Ohio, Jeffrey R. Ingraham, Asst. Pros. Atty., Celina, Ohio, Dennis Muchnicki, Asst. Atty. Gen., Columbus, Ohio, Robert E. Dunlap, Thompson, Dunlap, Heydinger, O'Connor and MacDonald, Bellefontaine, Ohio, Wendy Bader, Office of the Sol., U.S. Dept. of Labor, Washington, D.C., for defendants.
OPINION and ORDER
WALINSKI, Senior District Judge.
This cause is before the Court on plaintiff's motion for preliminary injunction, federal defendants' motion for summary judgment and a motion to dismiss on Eleventh Amendment grounds filed by defendant Ohio Environmental Protection Agency ("Ohio EPA"). This is an action for declaratory and injunctive relief. Plaintiff alleges due process violations because defendants withheld government contract funds prior to affording plaintiff a hearing on alleged prevailing wage rate infractions. Jurisdiction is based on 28 U.S.C. § 1331.
FACTS
Plaintiff Winzeler Excavating Company ("Winzeler") installs sanitary and storm sewer lines. In November, 1983, Winzeler entered into certain construction contracts with the Indian Lake Sanitary Sewer District, Logan County, Ohio. The work was federally funded in part through a grant under the Federal Water Pollution Control Act, 33 U.S.C. § 1372 (1982), which provides for compliance with statutory labor standards. Accordingly, the wage rates paid to plaintiff's workers on the Indian Lake project were governed by the Davis-Bacon Act, 40 U.S.C. § 276a (1982), and related acts.
In late 1985, defendants United States Department of Labor and the Secretary of Labor ("federal defendants"), through the Columbus, Ohio office of the Employment Standards Administration Wage and Hour Division, conducted a compliance review investigation of plaintiff's employment practices on the Indian Lake project. By letter dated December 11, 1985, said defendant notified plaintiff that several statutory violations had occurred. Specifically, plaintiff had allegedly underpaid truckers hauling stone materials from several gravel pits onto the construction sites, and had underpaid power equipment operators and laborers employed at private gravel pits located outside the boundaries of the sewer lines. Plaintiff declined to make restitution and pay back wages, claiming that the workers in question were physically off the site and thus excluded by regulation from coverage under the prevailing wage acts.
By letter dated December 18, 1985, federal defendants requested that Ohio EPA withhold payments accrued to plaintiff on the Indian Lake project, which was almost complete at that time. Contract funds due plaintiff of approximately $112,000.00 were withheld in January, 1986. Plaintiff objected to defendants' actions and requested a hearing on whether prevailing wages were due for such workers.
Federal defendants thereafter attempted to conduct a new investigation of plaintiff's employment practices on a second sewer construction project in Mercer County, Ohio. No hearing had as yet been scheduled regarding the dispute on the Indian Lake project. Thus, in October, 1986, plaintiff filed the instant action.
Initially, plaintiff sought an injunction precluding federal defendants from investigating and withholding funds on plaintiff's similar projects pending a determination of the gravel pit issue on the Indian Lake Project. In addition, plaintiff demanded payment of the approximately $112,000.00 in contract funds being withheld. Plaintiff also requested a declaratory judgment that withholding funds due on a federal construction project prior to a hearing amounted to a taking of plaintiffs property without due process of law. Plaintiff alleged that its ability to continue operations, obtain future contracts and secure bonding were adversely affected. Finally, plaintiff asked for an award of as of yet unascertained damages, attorney fees and costs of the action.
*364 On October 9, 1986, after hearing the parties' evidence and reviewing the exhibits presented, this Court took plaintiff's motion for injunction under advisement but ordered other investigations by defendants of plaintiff's sites stayed pending further rulings of the court.[1]
Thereafter, on November 5, 1986, plaintiff filed a motion for expedited hearing with the Employment Standards Administration Wage and Hour Division. In March, 1987, with further investigations of plaintiff stayed by this Court, federal defendants joined in the request to expedite an administrative hearing.
An Administrative Law Judge ("ALJ") eventually heard the matter in June, 1987. He issued his decision in February, 1988.[2] In a carefully documented and seemingly well-reasoned opinion, the ALJ concluded that Winzeler should have paid the prevailing wage rate to the underpaid truck drivers and other operators and laborers. His determination turned on interpreting the phrase "site of the work" in plaintiff's contract. The ALJ ruled that the contract language included workers involved with the gravel pits. Thus, the accrued contract funds being withheld from plaintiff by Ohio EPA were ordered released for payment to the individual employees.
DISCUSSION
In light of the ALJ's ruling, this Court finds plaintiff's first two claims (that defendants be enjoined from further investigations pending a determination on the Indian Lake wage violations and that the contract funds be paid out to plaintiff) to be moot. Furthermore, for the reasons which follow, this Court finds it appropriate to enter summary judgment for defendants on plaintiff's declaratory and damages claims.
Rule 56, Fed.R.Civ.P., directs the disposition of a motion for summary judgment. In relevant part Rule 56(c) states:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The Court's function in ruling on a motion for summary judgment is to determine if any genuine issue exists for trial, not to resolve any factual issues, and to deny summary judgment if material facts are in dispute. United States v. Articles of Device, 527 F.2d 1008, 1011 (6th Cir.1976); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193, 1195 (6th Cir.1974). Further, "[i]n ruling on a motion for summary judgment, the evidence must be viewed in a light most favorable to the party opposing the motion." Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319, 1324 (6th Cir. 1983). To summarize, summary judgment is only appropriate when no genuine issue of material fact remains to be decided, and when the undisputed facts, viewed in a light most favorable to the non-moving party, entitle the movant to judgment as a matter of law. Smith v. Pan Am World Airways, 706 F.2d 771, 773 (6th Cir.1983).
A principle purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Rule 56(e) places responsibility on the party against whom summary judgment is sought to demonstrate that summary judgment is improper, either by showing the existence of a material question of fact or that the underlying substantive law does not permit such a decision. In relevant part the provision states:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he *365 does not so respond, summary judgment, if appropriate, shall be entered against him.
Rule 56(e), Fed.R.Civ.P. Rule 56(e) requires the non-moving party to go beyond the pleadings, and by affidavits, depositions, answers to interrogatories, or admissions on file, designate specific facts showing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553.
In the case sub judice, no material question of fact remains for trial and the Court finds defendants entitled to judgment as a matter of law. A review of the Davis-Bacon Act, 40 U.S.C. § 276a(a) (1982), reveals that withholding of funds from contractors for wage rate violations serves the goal of protecting laborers on government contracts. In relevant part:
[T]here may be withheld from the contractor so much of the accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract ... and the rates of wages received by such laborers and mechanics....
20 U.S.C. § 276a(a) (1982).
The regulations promulgated to administer the labor standard provisions of the Davis-Bacon and related acts require that a withholding clause be inserted in federally assisted construction contracts. 29 C.F. R. § 5.5(a)(2) (1987).[3] Thus, the parties' contract documents and specifications for the Indian Lake project included the following clause:
(a) The Contracting Officer may withhold or cause to be withheld from the Prime Contractor so much of the accrued payments or advances as may be considered necessary (1) to pay laborers and mechanics, including apprentices, trainees, watchmen, and guards, employed by the Contractor or any subsontractor on the work the full amount of wages required by the contract, and (2) to satisfy any liability of any contractor for liquidated damages under paragraph (b) of the clause entitled "Contract Work Hours and Safety Standards ActOvertime Compensation."
(b) If any Contractor fails to pay any laborer, mechanic, apprentice, trainees, watchman, or guard, employed or working on the site of the work, all or part of the wages required by the contract, the Contracting Officer may, after written notice to the Prime Contractor, take such action as may be necessary to cause suspension of any further payments or advances until such violations have ceased.
(Plaintiff's Exhibit 1).[4]
Essentially, plaintiff was required by statute, regulations and contract to pay workers the rates specified in the contract's wage determination schedule or suffer suspension of payment on the contract. Plaintiff does not complain that stopping payment on the contract was itself unconstitutional. Rather, plaintiff asserts that suspending payments merely upon notice and prior to any hearing constitutes a taking of property without due process of law. This Court's focus, then, turns first to *366 whether plaintiff has any right to continued payment under the contract and second, if Winzeler has such a property right, to what process is due.
One court has had little trouble finding that government contracts do not generate a property interest in an uninterrupted flow of payments to the contractor. In G & H Machinery Co. v. Donovan, 96 Lab. Cas. (CCH) ¶ 34,354 (S.D.Ill.1982), the plaintiff alleged a due process violation caused by prehearing withholding under the Service Contract Act, 41 U.S.C. § 351 et seq. The court in G & H stated:
This argument need not long detain the Court. The Fifth Amendment, obviously applicable to federal agencies, states that no person shall "be deprived of life, liberty or property, without due process of law." Petitioners in this case do not have a property interest in "an uninterrupted transmittal of payments pursuant to the terms of the service contract...." The contracts expressly incorporated the entire SCA, and the withholding provision of section 352(a). Thus, the contracts and surrounding statutes and regulations, which defined property interests and protectible expectations, certainly do not generate a property interest in an uninterrupted flow of payments.
96 Lab.Cas. (CCH) at p. 45,317 (citations omitted).
In the case sub judice, the contract, statutes and regulations require payment of prevailing wages. Such wages admittedly were not paid to certain of plaintiff's workers associated with the gravel pits. Thus, the Court is hard-pressed to find an unequivocal right to the uninterrupted payment of contract funds. Without a property interest, the Court need not determine what process is due. However, assuming arguendo that Winzeler had such a property right, the Court will review the administrative methods surrounding the withholding of accrued contract payments.
The administrative procedures for dealing with disputes over the payment of prevailing wage rates provide for notice to the contractor of investigation findings by registered or certified mail. 29 C.F.R. § 5.11(b)(1) (1987). If the contractor refuses to rectify the alleged violations, future payments or advances of funds are suspended. The contractor may then, within 30 days, make a written request for a hearing. 29 C.F.R. § 5.11(b)(2) (1987). Upon receipt of a contractor's request, the matter is referred to the Chief ALJ for designation of an ALJ to conduct hearings. 29 C.F.R. § 5.11(b)(3) (1987). The hearing is to be conducted according to the rules of practice for administrative proceedings as set forth in 29 C.F.R. Part 6 (1987). Id. During the pendency of these administrative procedures, contract funds are held in a deposit account.
The foregoing provisions do not require a hearing prior to suspending contract payments. The regulations also contain no explicit provisions restricting the amount of time that elapses before a hearing is actually held or a determination order issued. Thus, the determinitive issue for the Court is whether the failure to provide an administrative hearing before withholding contract funds, or within a reasonable time thereafter, is an unconstitutional deprivation of property.[5]
In determining whether due process requires a prior evidentiary hearing, courts have distinguished between final and temporary deprivations of property. In McCasland v. U.S. Postal Service, 82 Lab. Cas. (CCH) ¶ 33,607 (N.D.N.Y.1977), similar withholding procedures in the Service Contract Act, 41 U.S.C. § 351 et seq., were constitutionally challenged. The case involved a mail hauler who had contracted with the United States Postal Service to transport mails between certain cities. As *367 the result of a compliance investigation of the plaintiff in McCasland, back wages were found owed to numerous employees. The mail hauler disputed the purported violations and made no assurances of future compliance. Accordingly, the Department of Labor, Wage and Hour Division, directed the Postal Service to withhold sufficient funds to cover back wages. The mail hauler sought a temporary restraining order and preliminary injunction on grounds that "formal notice and an opportunity for an adversary hearing prior to any withholding of plaintiff's periodic payments [wa]s mandated by the Due Process Clause of the Fifth Amendment." Id. at p. 48,064.
In ruling on the injunction request, the court in McCasland found that withholding of accrued payments prior to a hearing may be the only viable means by which to ensure the availability of funds to employees. Id. at p. 48,066. The court also noted that the monies are held in a deposit fund which may ultimatly be recovered by the contractor following a hearing on the merits. Id. at p. 48,067. Thus, withholding payments prior to hearing was found not to be an unconstitutional denial of due process. Id. at p. 48,068. The Court in McCasland stated:
Procedural due process imposes restraints upon governmental decisions whenever the deprivation of a "liberty" or "property" interest is implicated. The initial determination to be made, therefore, is whether the nature of plaintiff's interest in an uninterrupted transmittal of payments pursuant to the terms of the service contract is protected by the Constitution. And, "[o]nce it is determined that due process applies, the question remains what process is due."
The essence of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." That is, before an individual is finally deprived of a property interest, some type of hearing is required. To this end, the concept of due process must be flexible, thereby permitting such procedural protections as the particular circumstances may require. Accordingly, the procedures which may be required in any given case necessitates an analysis and accommodation between the private and governmental interests affected.
* * * * * *
The government's interest is to ensure that adequate wages are paid to employees of federal service contractors. Significantly, in terms of an examination of the private interest at stake, I am persuaded that plaintiff's interest in an uninterrupted receipt of his income does not begin to approach the compelling sense of the similar interest expressed by the welfare recipient in Goldberg [v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)]....
Finally, summary governmental action pending final administrative determinations have repeatedly been held to comport to the dictates of the Due Process Clause.
Id. at pp. 48,067-068 (citations omitted).
Despite the sound legal basis for the McCasland court's decision, this Court must point out factual dissimilarities with the case at bar. At the time of the McCasland court's ruling, no funds had as yet been withheld from the mail hauler. Id. at p. 48,064. Moreover, in McCasland, the court stressed the fact that plaintiff had been assured of a hearing within three months after issuance of the administrative complaint. Id. at p. 48,067.
Winzeler, on the other hand, was forced to wait over two years for a hearing and determination, with funds being suspended the entire time. It therefore becomes questionable whether the failure to mandate a hearing within a certain period of time makes Winzeler's deprivation more than a temporary loss of income. Upon careful analysis, the Court thinks not. Not only would court ordered timing restrictions have a disruptive effect on the administrative process, provision of a hearing within a reasonable time after suspension of payments can be presumed from the statutes and regulations. Furthermore, the policy reasons behind immediate withholding as enunciated in McCasland weigh in favor of finding a contractor's loss only *368 temporary, in spite of long delays in the administrative process. Thus, the Court finds due process concerns satisfied by an adversary hearing before any final deprivation occurs.
Accordingly, federal defendants' motion for summary judgment is found well taken and defendants are entitled to judgment as a matter of law. It is, therefore
ORDERED that plaintiff's motion for injunctive relief is denied.
FURTHER ORDERED that federal defendants' motion for summary judgment is granted.
FURTHER ORDERED that summary judgment is entered against plaintiff and in favor of all defendants.
FURTHER ORDERED that defendant Ohio EPA's motion to dismiss is deemed moot.
FURTHER ORDERED that this cause is dismissed.
NOTES
[1] The Court's order staying further investigations was vacated on appeal.
[2] Plaintiff has appealed the ALJ's ruling, making it inoperative unless and until affirmed by the Appeals Board. 29 C.F.R. § 6.19(b)(1) (1987).
[3] 29 C.F.R. § 5.5(a)(2) (1987) provides in relevant part:
Withholding. The (write in name of Federal Agency or the loan or grant recipient) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work ... all or part of the wages required by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
[4] References to exhibits are to those submitted at the hearing on plaintiff's motion for preliminary injunction which took place on October 8, 1986.
[5] In the ordinary case, a distinction is drawn between constitutional questions and simple matters of contract. Parties may contractually agree to what would otherwise be a constitutional deprivation. Where a statute peremptorily requires certain clauses to be inserted, however, as is the case here, such clauses are not binding if the statute is found unconstitutional. Thus, the constitutional issue in this instance is not extinguished by plaintiff's voluntary entry into a contractual arrangement.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2907118/
|
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-09-00040-CR
____________________
SCOTT CHARLES HUGHES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 85048
MEMORANDUM OPINION
Pursuant to a plea bargain agreement, appellant Scott Charles Hughes pled guilty to
forgery. The trial court found Hughes guilty and assessed punishment at two years of
confinement in a state jail facility, then suspended imposition of the sentence, placed Hughes
on community supervision for five years, and assessed a $750 fine. On December 9, 2008,
the State filed a motion to revoke Hughes's community supervision. Hughes pled "true" to
three violations of the terms of the community supervision order. The trial court found that
Hughes violated the terms of the community supervision order, revoked Hughes's community
supervision, and imposed a sentence of two years of confinement in a state jail facility.
Hughes's appellate counsel filed a brief that presents counsel's professional
evaluation of the record and concludes the appeal is frivolous. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim.
App. 1978). On April 30, 2009, we granted an extension of time for appellant to file a pro
se brief. We received no response from the appellant.
We reviewed the appellate record, and we agree with counsel's conclusion that no
arguable issues support an appeal. Therefore, we find it unnecessary to order appointment
of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991). We affirm the trial court's judgment. (1)
AFFIRMED.
__________________________________
CHARLES KREGER
Justice
Submitted on August 11, 2009
Opinion Delivered August 26, 2009
Do not publish
Before Gaultney, Kreger, and Horton, JJ.
1. Appellant may challenge our decision in this case by filing a petition for discretionary
review. See Tex. R. App. P. 68.
|
01-03-2023
|
09-10-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/330704/
|
524 F.2d 604
30 A.L.R.Fed. 688, 75-2 USTC P 9760
UNITED STATES and Jeffrey L. Marvin, Special Agent, InternalRevenue Service, Petitioners-Appellees, Cross-Appellants,v.Betty J. CAMPBELL, a/k/a Pam Holliday, Respondent-Appellant,Cross-Appellee.
Nos. 75-1280, 75-1321.
United States Court of Appeals,Eighth Circuit.
Submitted Sept. 11, 1975.Decided Oct. 14, 1975.Rehearing and Rehearing En Banc Nov. 19, 1975.
Charles L. Riter, Rapid City, S. D., for Betty J. Campbell.
Daniel F. Ross, Atty., Tax Div., Dept. of Justice, Washington, D. C., for the United States.
Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
STEPHENSON, Circuit Judge.
1
The principal issue on this appeal is whether section 7602(2) of the Internal Revenue Code of 1954 (26 U.S.C. § 7602(2)) authorizes the Commissioner of Internal Revenue to compel a taxpayer to give exemplars of her handwriting.
2
This is an appeal and cross-appeal from the order of the district court1 enforcing a summons issued by a special agent of the Internal Revenue Service to Betty J. Campbell, a/k/a Pam Holliday, respondent-appellant. The summons required taxpayer to provide handwriting exemplars. The government cross-appeals from that portion of the order limiting the exemplars to one copy of the requested example.
3
The record discloses that Special Agent Marvin was engaged in an investigation to determine the taxpayer's correct income tax liabilities during the years 1968-72, inclusive. Taxpayer advised the special agent that she never kept any books or records with respect to income tax matters. Upon being summoned to produce records of her business, she declined on Fifth Amendment grounds. The Ogden Service Center of IRS, which services South Dakota, advised the special agent that there was no record of income tax returns being filed in taxpayer's name or under her social security account number for the years under investigation.
4
Upon appropriate inquiry by the special agent, taxpayer's bank responded with copies of some 200 money orders purchased in 34 names, including known aliases of the taxpayer, which several bank employees thought had been purchased by or on behalf of taxpayer. The bank employees could not positively identify taxpayer as the purchaser of the money orders.
5
Special Agent Marvin, after consultation with an examiner of questioned documents, then issued and served the summons at issue for handwriting exemplars to be used in making a handwriting analysis for the purpose of determining whether taxpayer was the purchaser or remitter who had signed the numerous money orders. Taxpayer appeared in response to the summons but refused to give the requested exemplars. The government then brought the instant action pursuant to Title 26, U.S.C., § 7604, to enforce the summons.
6
Taxpayer urges that the district court erred in enforcing the summons. She specifically contends that section 7602(2) does not authorize the Commissioner to compel the taxpayer to give exemplars of her handwriting. The statute provides in part as follows:
7
For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax * * *, the Secretary or his delegate is authorized
8
(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
9
(2) To summon the person liable for tax or required to perform the act, * * * to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, * * * as may be relevant or material to such inquiry.
10
It is the government's position that when Congress used the broad general phrase "other data," it intended to empower the taxing authorities to summon any otherwise permissible material required by them to carry out their investigation, and this includes handwriting exemplars.
11
Taxpayer points out that the summons provisions in the Internal Revenue Code of 1939 and predecessor statutes and cases thereunder dealt with the application of the summons only as to documents such as books, papers, records, memoranda, notes, and the like.2 Former statutes did not use the terminology "other data" but rather used the term "memoranda." The latter contemplates matters already in existence. Further, the legislative history of section 7602 of the I.R.C. of 1954, which replaced "memoranda" with "other data," indicates that no change was contemplated. The Committee Reports in both the House and Senate state: "This section contains no material change from existing law." H.R.Rep.No.1337, 83rd Cong., 2d Sess., p. A436 (U.S.Code Cong. & Admin.News (1954), pp. 4017, 4584); S.Rep.No.1622, 83rd Cong., 2d Sess., p. 617 (U.S.Code Cong. & Admin.News (1954), pp. 4621, 5268).
12
Taxpayer thus argues that in order for the summoned data to be produced or delivered it must be an item in existence. See Brownson, supra, 32 F.2d at 847-48; Chapman v. Goodman, 219 F.2d 802, 806 (9th Cir. 1955).
13
We believe taxpayer construes the statute too narrowly. The definition of "data" includes "detailed information of any kind." See Webster's Third New Dictionary Unabridged (1971). It is significant that the Internal Revenue Code of 1954, regardless of the Committee Reports that the "Section (in question) contains no material change from existing law," nevertheless used broader terminology. More important, it must be recognized that "s 7601 (26 U.S.C. 7601) gives the Internal Revenue Service a broad mandate to investigate and audit 'persons who may be liable' for taxes" and section 7602 provides the investigative authority to do so. United States v. Bisceglia, 420 U.S. 141, 145-46, 95 S. Ct. 915, 918, 43 L. Ed. 2d 88 (1975).
14
The authority to investigate is subject to abuse, but the taxpayer is not without protection. The summons can be enforced only by the courts. 26 U.S.C. § 7604(b); Bisceglia, supra, 420 U.S. at 146, 95 S. Ct. 915. The enforcement action is an adversary proceeding which affords a judicial determination of challenges to the summons. The witness may challenge the summons on any appropriate ground. Enforcement orders are appealable, and stay orders pending appeal may be entered to protect the witness while the summons is being tested. Reisman v. Caplin, 375 U.S. 440, 84 S. Ct. 508, 11 L. Ed. 2d 459 (1964). Here the summons was properly issued in aid of an investigation. It was issued in good faith and prior to a recommendation for criminal prosecution. Donaldson v. United States, 400 U.S. 517, 536, 91 S. Ct. 534, 27 L. Ed. 2d 580 (1971). The possibility of criminal consequences does not bar issuance of the summons. Couch v. United States, 409 U.S. 322, 326, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973).
15
We have noted that "(t)he power of the IRS to investigate the records and affairs of taxpayers has long been characterized as an inquisitorial power, analogous to that of a grand jury, and one which should be liberally construed." United States v. Matras, 487 F.2d 1271, 1274 (8th Cir. 1973) (citations omitted). But we have not hesitated to affirm the district court's refusal to enforce a summons seeking information found to be irrelevant. Id.
16
Handwriting is a physical characteristic of a person's script, United States v. Mara, 410 U.S. 19, 21, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973); handwriting exemplars are not testimonial or communicative matters but instead are an "identifying physical characteristic" of the person. Gilbert v. California, 388 U.S. 263, 266-67, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
17
Here the relevance and materiality of the information sought by the summons are not questioned. Obviously, the handwriting exemplars of letters and numerals in script and in print are needed to compare with the writing on the money orders and cashier's checks believed to have been purchased by taxpayer. Identification of the various items with taxpayer can be expected to reveal the existence of funds available to taxpayer and the existence of deductible expenses, both of which should aid in reflecting taxpayer's correct tax liabilities during the years in question.
18
We hold that under the circumstances existing in this case the district court did not err in requiring the taxpayer to furnish handwriting exemplars. The Commissioner's statutory authority to summon "other data" under Title 26, U.S.C., § 7602(2), includes the authority to require the taxpayer to give exemplars of her handwriting.
19
Although not raised in her briefs filed in this court, taxpayer in oral argument apparently challenges for the first time enforcement of the summons as being in violation of the Fourth Amendment proscription against unreasonable searches and seizures.3 F.R.A.P. 28(a) requires that the brief of appellant shall contain: "(2) A statement of issues presented for review." We have held: "Questions not raised, briefed nor argued will ordinarily be given no consideration by an appellate court." Smith v. American Guild of Variety Artists, 368 F.2d 511, 514 (8th Cir. 1966) (citations omitted). "Proper judicial administration requires that error relied upon should be asserted in appellant's opening brief. * * * New issues cannot ordinarily be raised by reply brief." Mississippi River Corp. v. F.T.C., 454 F.2d 1083, 1093 (8th Cir. 1972). However, in Harris v. Smith, 372 F.2d 806, 815 (8th Cir. 1967), we made an exception where substantial rights of the parties were affected.
20
In any event, we find taxpayer's contention with respect to the Fourth Amendment to be without merit. The Supreme Court has specifically ruled that a requirement to produce a handwriting exemplar pursuant to a subpoena "violated no legitimate Fourth Amendment interest." United States v. Mara, supra, 410 U.S. at 22, 93 S. Ct. at 776. Compare United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973), where the Court held that compulsory production of voice exemplars from a grand jury witness was not a violation of the Fourth Amendment. The Court found that neither the summons to appear before the grand jury nor its directive to make a voice recording infringed upon any interest protected by the Fourth Amendment. Cf. United States v. Harris, 453 F.2d 1317 (8th Cir. 1972).
CROSS-APPEAL
21
The government appeals from that part of the order requiring the taxpayer to complete only one copy of the requested handwriting in print and in longhand, once with her left hand and once with her right hand. The government had requested ten copies. Its expert had testified that ten copies were needed for adequate comparison. Taxpayer urges that ten copies are unnecessary and burdensome. In oral argument the government stated that it has since been determined that exemplars with the left hand are not needed. We have examined the exemplars requested and, in view of the nature of the questioned documents and the testimony of the handwriting expert, we have concluded that taxpayer should be required to furnish ten copies of the exemplars with her right hand.
22
Affirmed on taxpayer's appeal and remanded on the government's cross-appeal for action in accordance with this opinion.
23
HEANEY, Circuit Judge (dissenting).
24
I respectfully dissent.
25
In my view, Section 7602(2) of the Internal Revenue Code of 1954 (26 U.S.C. § 7602(2)) should be strictly construed, United States v. Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112 (1964); Jones v. Securities and Exch. Com., 298 U.S. 1, 56 S. Ct. 654, 80 L. Ed. 1015 (1936), and the Internal Revenue Service denied the right to obtain handwriting exemplars by subpoena.
26
It is well established that compelling a person to execute a handwriting exemplar is a search and seizure within the meaning of the Fourth Amendment. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); United States v. Harris, 453 F.2d 1317 (8th Cir. 1972), cert. denied, 412 U.S. 927, 93 S. Ct. 2755, 37 L. Ed. 2d 154 (1973). The investigatory powers of the Internal Revenue Service are clearly subordinate to the Fourth Amendment. See Lord v. Kelley, 334 F.2d 742 (1st Cir. 1964), cert. denied, 379 U.S. 961, 85 S. Ct. 650, 13 L. Ed. 2d 556 (1965).
27
The government's argument that the Internal Revenue Service's investigatory powers under Section 7602 should be interpreted to include the power to compel execution of handwriting exemplars because such power has been granted to grand juries, United States v. Mara, 410 U.S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973); United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973), is unconvincing. The Internal Revenue Service has a different function than a grand jury. There is no direct supervision of an Internal Revenue Service investigation by a judge or other neutral judicial officer as there is of a grand jury. The Internal Revenue Service, upon finding a violation of the law, is the same body which undertakes the prosecution of the taxpayer involved. Those charged with investigative and prosecutorial duties should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. United States v. United States District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948).
28
If the Internal Revenue Service desires the right to require individual taxpayers to give handwriting exemplars, they should go to Congress and ask for this authority. The courts can then determine the circumstances under which the right can be exercised in a constitutional manner.
1
The Honorable Andrew W. Bogue, United States District Judge, District of South Dakota
2
See Int.Rev.Code of 1939, § 3614; Rev.Act of 1928, § 618 (45 Stat. 878). For review of legislative history of the latter, see Brownson v. United States, 32 F.2d 844, 846 (8th Cir. 1929). See also Internal Revenue Act of 1864, § 14 (13 Stat. 226); In re Lippman, 15 Fed.Cas. 572 (No. 8,382) (S.D.N.Y.1868)
3
The designated record indicates that in the district court taxpayer claimed a violation of the Fifth Amendment which was not raised on appeal. This claim is without merit. See Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178
|
01-03-2023
|
08-23-2011
|
https://www.courtlistener.com/api/rest/v3/opinions/2600577/
|
139 P.3d 885 (2006)
2006 OK 46
BRONSON TRAILERS & TRUCKS, Credit General Insurance Company, Petitioners/Counter-Respondents,
v.
Richard D. NEWMAN, Sr., Respondent/Counter-Petitioner and
The Workers' Compensation Court, Respondent.
No. 101,458.
Supreme Court of Oklahoma.
June 27, 2006.
Tracy Pierce Nester, Gary D. Long, Oklahoma City, for Petitioners/Counter-Respondents.
Duke Halley, Woodward, OK, for Respondent/Counter-Petitioner.[2]
*887 OPALA, J.
¶ 1 Today's certiorari presses two questions for our decision: (1) Is a trial judge's initial award of benefits, made in accordance with the provisions of 85 O.S. Supp.1997 § 16(D),[3] a final order that a worker is permanently totally disabled? and (2) Did the trial judge impermissibly terminate that order? We answer both questions in the negative.
I.
ANATOMY OF THE LITIGATION
¶ 2 Claimant (claimant or Newman), a general repairman,[4] sustained an accidental on-the-job *888 injury to his right hand (and consequential injury to his left foot)[5] while he was employed by Bronson Trailers and Trucks (together with General Credit Insurance Company to be known as employer). Employer did not dispute the injury arose out of claimant's employment and paid temporary total disability (TTD) benefits and medical expenses. Claimant returned to work but testified he was unable to continue on a permanent basis because of persistent problems with his affected limbs. Newman, who is illiterate, claimed he could no longer perform manual labor the only work for which he is qualified and sought permanent total disability (PTD) benefits.
¶ 3 On 28 December 2001 the trial judge awarded claimant what here will be referred to as § 16(D) benefits (compensation commensurate with TTD benefits that is to be paid during the period of vocational rehabilitation with a view to evaluating permanent total disability), in accordance with the terms of 85 O.S. Supp.1997 § 16(D).[6] The judge "reserved" (withheld) for a future date determination of claimant's permanent disability status, pending his completion of a court-ordered rehabilitation program. Following a hearing on 27 May 2004 to re-evaluate claimant's status, the trial judge found Newman to be permanently partially disabled.[7] Both parties sought review of this order. COCA, by an unpublished opinion, sustained the trial judge's order.[8] Claimant alone seeks certiorari review.
II.
CLAIMANT'S CERTIORARI ARGUMENTS
¶ 4 Newman's certiorari petition urges the trial judge's 2001 order that awards him benefits in accordance with the provisions of § 16(D) is a final determination that he is permanently totally disabled unless he can be rehabilitated. The 2004 order that finds him to be permanently partially disabled is, hence, an impermissible collateral attack upon the earlier order, which violates the principle of res judicata.[9] Claimant asserts that his status remains that of a permanently totally disabled person unless his vocational rehabilitation is 1) successful or 2) unsuccessful because of acts of claimant.[10]
*889 III.
STANDARD OF REVIEW
¶ 5 The first question presented on certiorari calls for resolution of a legal question. Review of contested law is governed by a de novo standard.[11] In its re-examination of the trial tribunal's legal rulings an appellate court exercises plenary, independent and nondeferential authority.[12] The second issue pressed here deals with a question of fact. A trial judge's non-jurisdictional finding may not be disturbed on review if supported by competent proof.[13] Record proof, on the basis of which the trier could have reached a contrary conclusion, has no legal impact upon the review process by which a WCC's finding is tested.[14] It is only the absence of competent evidence that makes the tribunal's decision erroneous (as a matter of law) and hence amenable to appellate vacation.[15]
IV.
A.
AN INITIAL AWARD OF BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF § 16(D) IS A TEMPORARY ADJUDICATION THAT STANDS SUBJECT TO CLAIMANT'S RE-EVALUATION FOLLOWING REHABILITATION
¶ 6 According to Newman's first assertion, it is implicit in law that the 2001 order was a final adjudication of his permanent total disability.[16] This must be so because the order (1) awarded him § 16(D) benefits and (2) does not adjudicate his status to be that of being permanently partially disabled. Claimant cites language in Mangrum v. Fensco, Inc.[17] for support of his position that an award of § 16(D) benefits "necessitates an initial determination that vocational rehabilitation is practicable and that the worker is at that time permanently and totally disabled."[18] According to claimant, his legal status must hence be recognized as that of permanent total disability.
¶ 7 Newman's reasoning concerning his status is faulty. Simply because one is not adjudicated permanently partially disabled does not ipso facto make a worker permanently totally disabled. Any reliance on Mangrum is likewise misplaced. That case teaches a compensation claimant who was previously adjudicated permanently partially disabled is not entitled to § 16(D) benefits.[19] Claimant was not initially determined here to be permanently partially disabled. Mangrum's holding is inapplicable to the facts presented in today's certiorari.
¶ 8 Neither may some isolated passages of Mangrum's text be read to support claimant's *890 position that a § 16(D) award is a final order determining one to be permanently partially (or totally) disabled. A thorough reading of its text reveals that under the provisions of § 16(D) claimant's status is transitory. According to Mangrum, the initial "award of permanent total disability is essentially `temporary', in that it is subject to review following vocational rehabilitation. . ."[20] The sentence cited by claimant in support of his contrary position that an award of § 16(D) benefits "[n]ecessitates an initial determination that vocational rehabilitation is practicable and that the worker is at the time permanently and totally disabled"[21] (emphasis supplied) is also impertinent to his legal position. Its reference to "at the time" explicitly denotes the temporary nature of a § 16(D) benefits award.
¶ 9 The goal of any inquiry into the meaning of a legislative enactment is to ascertain and follow its legislative intent.[22] It is presumed that legislative intent is expressed in a statute's text and that the law-making body intended that which it expressed.[23] Where the statute is plain and unambiguous, there is no room for judicial construction which would extend its ambit beyond the scope of the plain and unambiguous language.[24] A statute is to be construed as a whole in light of its general purpose and objective.[25]
¶ 10 The terms of § 16(A) plainly contemplate claimant's further evaluation by the trial court will follow to determine his/her permanent disability status. Its text reveals that a claimant is not adjudicated permanently totally disabled until he/she has been evaluated as to "the practicability of restoration to gainful employment through vocational rehabilitation services or training."[26] The terms of § 16(D)[27] do not refer to one's permanent disability status but address the rate of compensation a claimant is to receive during the rehabilitation period. These provisions are free of ambiguity. When read as a whole, all parts of the section clearly express that a claimant who seeks § 16(D) benefits is only initially considered to be permanently totally disabled during the period of rehabilitation, but the final determination of one's permanent disability status is made at the end of that period.[28]
¶ 11 In short, a trial judge's initial award of benefits in accordance with the provisions of § 16(D) is a temporary determination of a claimant's compensation status pending re-evaluation after vocational rehabilitation is completed. It is not a final adjudication of a worker's permanent disability status. This is plainly revealed by the statute's text and supported by the disability benefits scheme contained in the Workers' Compensation Act.[29]
B.
THE TRIAL JUDGE DID NOT ERR WHEN, AFTER CLAIMANT COMPLETED REHABILITATION, HE WAS RE-EVALUATED AND ADJUDICATED PERMANENTLY PARTIALLY DISABLED
¶ 12 Newman next urges that his § 16(D) benefits may be terminated only when the rehabilitation is (1) successful or (2) unsuccessful owing to claimant's own acts. *891 He contends the services provided him were far short of those to be rendered in accordance with the trial judge's order. It was because of this, and not due to any action or inaction on his part, that his rehabilitation was unsuccessful. Because it was unsuccessful there is no basis to change his status from that of one permanently totally disabled to that of permanently partially disabled. The trial judge hence erred when she determined claimant to be permanently partially disabled.
¶ 13 Although COCA agreed that the rehabilitation services were lacking, it noted that the trial tribunal's order made no finding of fact about this matter.[30] It hence concluded this did not serve as an adequate basis on which to predicate trial error. COCA reviewed the record and concluded the trial judge's order is supported by competent evidence.[31]
¶ 14 The record reveals claimant presented evidence that his unsuccessful-rehabilitation outcome was due to the inadequacy of the vocational-rehabilitation services that were provided him.[32] Claimant neither requested a finding of fact on the issue of the adequacy of the rehabilitation services nor did he seek additional services. The sole use of the failure-of-services argument was limited to supporting his status as permanently totally disabled.
¶ 15 We agree with COCA. The trial tribunal found Newman participated in the court-ordered rehabilitation program.[33] Its order did not include a finding of fact dealing with the quality of services provided him. When rehabilitation services prove unsuccessful one may not, as a matter of law, draw the conclusion that a worker is hence permanently totally disabled. The trial tribunal's order found "the claimant is not permanently and totally disabled solely as a result of this accident."[34] Neither do the provisions of § 16(A)[35] or (D)[36] restrict the trial tribunal's authority. After evaluating the proof presented, the trial judge is free to find a claimant is only permanently partially disabled. Because there is here competent evidence to support the trial judge's finding, we must sustain her ruling.
V.
SUMMARY
¶ 16 A WCC's initial award of § 16(D) benefits is not a final order upon claimant's permanent disability status. It is an interim disposition that a worker is at that time temporarily totally disabled and entitled to benefits at the TTD rate during the period a *892 worker actively participates in and undergoes the court-ordered retraining or job placement program. This status is temporary. A claimant's permanent compensation status is subject to re-evaluation following completion of the rehabilitation in accordance with the terms of § 16(D). The trial judge erred here neither in re-evaluating claimant's status nor in finding him to be permanently partially disabled.
¶ 17 ALL JUSTICES CONCUR.
NOTES
[2] Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.
[3] For the terms of § 16(D) see supra note 1.
[4] Although claimant has worked as a mechanic he has no specific training in that area. We, hence, refer to his work as that of a general repairman.
[5] During surgery, Newman's physician noted smashed arteries in his hand, the result of repetitive use of power tools at work. To repair this damage, an additional surgery was performed. Blood vessels from claimant's left foot were transplanted to his right hand, resulting in a consequential injury to his left foot.
[6] The judge's order provided "claimant is awarded 16(D) benefits to . . . continue until claimant succeeds or fails in the program or similar type described . . ."
For the terms of § 16(D) see supra note 1.
[7] An earlier review proceeding was initiated by the employer. The issue before COCA was whether the trial judge correctly determined that claimant may be permanently totally disabled and entitled to § 16(D) benefits. COCA, in an unpublished opinion, sustained the decision of the three-judge review panel that affirmed the trial tribunal's order. These issues are not before the court today.
The trial tribunal's order was issued 21 October 2004 and a nunc pro tunc order followed on 2 November 2004.
[8] Employer presented two issues before COCA; neither is before the court today: (1) the trial judge improperly denied it credit for overpayment of § 16(D) benefits and (2) the trial tribunal erroneously awarded § 16(D) benefits to be paid to a date beyond that set for trial. COCA sustained the trial judge's order on all issues presented for review. Resolution of the latter issue was bottomed on the date the order nunc pro tunc was filed, not on the date the trial tribunal conducted its hearing.
[9] Claimant employs the commonly-used term "res judicata" to denote the binding effect an adjudication will have on all other dispositions. The precise legal term of art here is issue preclusion. Its three essential elements include: (1) an earlier decision on the issue, (2) a final judgment on the merits and (3) a cause dealing with the same parties or those in privity with the original parties.
[10] Although claimant's briefs do not so specify, we understand that portion of his argument dealing with "unsuccessful rehabilitation due to acts of claimant" to be referencing the terms of § 16(A). Its terms provide:
* * * "No person shall be adjudicated to be permanently and totally disabled unless first having been evaluated as to the practicability of restoration to gainful employment through vocational rehabilitation services or training. If an employee claiming permanent total disability status unreasonably refuses to be evaluated or to accept vocational rehabilitation services or training, permanent total disability benefits shall not be awarded during the period of such refusal, and the employee shall be limited to permanent partial disability benefits only." * * *
[11] Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-23; Neil Acquisition L.L.C. v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103; Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321.
[12] Arrow Tool, supra note 11, at ¶ 6 at 1122-23; Neil Acquisition, supra note 11 at ¶ 5 at 1103; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.
[13] Parks v. Norman Munc. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 549-52.
[14] Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, ¶ 6, 958 P.2d 795, 798 (citing Thomas v. Keith Hensel Optical Labs, 1982 OK 120, ¶ 14, 653 P.2d 201, 203).
[15] Lanman, supra note 14 at ¶ 6 at 798 (citing Parks v. Norman Munc. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 549-52).
[16] The trial judge's 2001 order awards § 16(D) benefits. It makes no finding about claimant's compensation status.
[17] Mangrum v. Fensco, Inc., 1999 OK 78, 989 P.2d 461.
[18] Mangrum, supra note 17 at ¶ 6 at 463.
[19] A claimant's permanent partial disability status is evaluated only once by the WCC. Mangrum, supra note 17 at ¶ 8 at 463. There is no re-evaluation of a worker's permanent partial disability status. Mangrum, supra note 17 at ¶ 8 at 463. The provisions of § 16(D) plainly reveal that its terms apply only to those undergoing rehabilitation for the purposes of evaluating permanent total disability status. Mangrum, supra note 17 at ¶ 8 at 463.
[20] Mangrum, supra note 17 at ¶ 11 at 464 (citing City of Norman v. Steves, 1998 OK CIV APP 81, 962 P.2d 655, 657).
[21] Mangrum, supra note 17 at ¶ 6 at 473.
[22] Cooper v. State ex rel. Dep't of Public Safety, 1996 OK 49, ¶ 10, 917 P.2d 466, 468.
[23] Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438, 460.
[24] Ross v. Peters, 1993 OK 8, n. 17, 846 P.2d 1107, 1109, n. 17. TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20. Forston v. Heisler, 1961 OK 198, ¶ 11, 363 P.2d 949, 951.
[25] Villines v. Szczepanski, 2005 OK 63, ¶ 9, 122 P.3d 466, 471 (citing McNeill v. City of Tulsa, 1998 OK 2, ¶ 11, 953 P.2d 329, 332).
[26] For the terms of § 16(A) see supra note 10.
[27] For the terms of § 16(D) see supra note 1.
[28] Mangrum, supra note 17 at ¶ 10 at 464 (citing Steves, supra note 20 at ¶ 9 at 657).
[29] The Workers' Compensation Act, 85 O.S.2001 § 1 et seq.
[30] In his supplemental brief, respondent states, "the Court of Civil Appeals found the Claimant is illiterate and that `no actual retraining or educational benefits were provided. . . .'" (Respondent's supplemental brief, p. 4) COCA, as an intermediate court of appellate review, makes no findings of fact. That is solely the trial tribunal's function. A trial judge's findings of fact are binding and conclusive in review proceedings unless they lack support in competent evidence. Parks, supra note 13 at ¶ 12 at 551.
[31] COCA opinion, p. 10.
[32] The 2001 order required claimant to "participate in the program described as Option 6 or a similar type program, . . ." This program consists of twenty (20) hours of assessment and job development and/or supported employment. The latter is described as four-to-six weeks (estimating forty hours per week) of training, job coaching, and employee support. (Amerihab report, 20 November 2001, record, p. 132). Program counselors travel throughout Oklahoma to achieve "competitive employment by helping to match the client's abilities and interests with the needs of local businesses." (Amerihab report, 20 November 2001, record, p. 132). This program was discontinued before the order of mandate was issued. No similar services were then available. (record, exhibit 2, deposition of Amerihab owner, p. 15). In February 2003, the court ordered Amerihab "to reevaluate claimant and . . . to provide vocational rehabilitation services . . ., in an attempt to return claimant to employment." (record, p. 216)
Claimant argued those services provided by Amerihab were primarily job-search related; retraining and vocational rehabilitation programs were minimal to non-existent.
[33] Trial judge's 21 October 2004 order. (record, p. 243).
[34] Trial judge's 21 October 2004 order (record, p. 242)
[35] For the terms of § 16(A) see supra note 10.
[36] For the terms of § 16(D) see supra note 1.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2227317/
|
617 N.W.2d 416 (2000)
In Re Petition for DISCIPLINARY ACTION AGAINST Kelly P. CALLAHAN, an Attorney at Law of the State of Minnesota.
No. C4-00-1608.
Supreme Court of Minnesota.
October 5, 2000.
ORDER
The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Kelly P. Callahan committed professional misconduct warranting public discipline. Specifically, the petition alleges that respondent neglected a client family's personal injury cases, failed to respond to discovery, failed to appear at a motion hearing, and failed to communicate information about the hearing to his clients; neglected another client's personal injury case, failed to settle or initiate a lawsuit within the statutory limitations period, and failed to communicate with the client; and failed to cooperate with the disciplinary investigation for eight months and misled the Director regarding the second neglected personal injury case. The alleged misconduct violates Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 3.2, 8.1(a)(1), 8.1(a)(3), and 8.4(d).
*417 Respondent admits the facts stated in the petition and admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is an indefinite suspension from the practice of law and payment of $900 in costs pursuant to Rule 24, RLPR.
This court has independently reviewed the file and approves the jointly recommended disposition.
IT IS HEREBY ORDERED that respondent Kelly P. Callahan is immediately indefinitely suspended from the practice of law and must pay $900 in costs pursuant to Rule 24, RLPR. Respondent may petition for reinstatement at any time, but shall comply with the petition and hearing provisions of Rule 18(a) through (d), RLPR. Respondent shall also successfully complete the professional responsibility portion of the bar examination and satisfy the continuing legal education requirements, both pursuant to Rule 18(e), RLPR, before he may be reinstated.
BY THE COURT:
Alan C. Page
Associate Justice
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2983129/
|
Petition for Writ of Habeas Corpus Denied and Memorandum Opinion filed
November 12, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00901-CV
IN RE THOMAS GUTIERREZ, JR., Relator
ORIGINAL PROCEEDING
WRIT OF HABEAS CORPUS
245th District Court
Harris County, Texas
Trial Court Cause No. 2013-18031
MEMORANDUM OPINION
On November 7, 2014, relator Thomas Gutierrez, Jr. filed a petition for writ
of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator claims the underlying contempt order is void
and requests that he be discharged from confinement.
Relator has not provided a sufficient record and, therefore, has not shown
that he is entitled a writ of habeas corpus. See Tex. R. App. P. 52.3(k)(1)(A), (D);
id. 52.7(a)(1). Accordingly, we deny relator’s petition for writ of habeas corpus.
We also deny relator’s motion for emergency relief.
PER CURIAM
Panel consists of Justices McCally, Brown, and Wise.
2
|
01-03-2023
|
09-22-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/4026411/
|
Filed 8/18/16 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2016 ND 165___
In re: 2015 Application for Permit to Enter
Land for Surveys and Examination Associated with a
Proposed North Dakota Diversion and Associated
Structures
Cass County Joint Water Resource District, Plaintiff and Appellee
v.
Steven Brakke; Colleen Brakke; Dorothy V. Brakke,
as trustee of the Dorothy V. Brakke Revocable Living
Trust under agreement dated April 3, 1980, as amended
and as beneficiary and possible successor Trustee of
the H. Donald Brakke Revocable Living Trust under
agreement dated July 28, 1977, as amended;
Paul E. Brakke; and H. Donald Brakke; K-F Farm
Partnership; Christopher Narum; and
Jeanne D. Narum, Defendants
Steven Brakke; Colleen Brakke; Dorothy V. Brakke,
as trustee of the Dorothy V. Brakke Revocable Living
Trust under agreement dated April 3, 1980, as amended
and as beneficiary and possible successor Trustee of
the H. Donald Brakke Revocable Living Trust under
agreement dated July 28, 1977, as amended;
Paul E. Brakke; and H. Donald Brakke, Appellants
No. 20150311
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
In re: 2015 Application for Permit to Enter
Land for Surveys and Examination Associated with a
Proposed North Dakota Diversion and Associated
Structures
Cass County Joint Water Resource District, Plaintiff and Appellee
v.
Glen Libbrecht; Danyeal Barta; Vance Barta;
Laurie Brakke; Michael Brakke; Marilyn G. Libbrecht and
Glen Libbrecht, Co-Trustees of the
Catherine Libbrecht Trust; Annette Delaney; David Delaney;
Derek S. Flaten; Micheal Fosse; Merry Lou Haakson;
Kenneth W. Hatlestad; David Houkom;
Douglas W. Johnson; Jeffrey K. Johnson;
Martin Johnson; Douglas Kummer;
Jacalyn Kummer, Jon Larson, Julie Larson;
Brian T. Leiseth; Timothy J. Leiseth;
Glen Libbrecht; Marilyn G. Libbrecht; Nancy Loberg;
David L. Lotzer, James Martin, Marlys Martin;
Anne Miller; Collin Miller; Roger Miller; Mari Palm and
Robert Helbling, Co-Trustees of the MKRM Trust;
Kelly Pergande; Kristie Sauvageau; Terry Sauvageau;
Alan and Barbara Thurnberg, Co-Trustees of the
Thunberg Living Trust; Kristine Valan; Orlen Valan, Jr.;
Western Trust Company; Kayla M. Woodley, Defendants
Mari Palm and Robert Helbling, Co-Trustees of the
MKRM Trust; Michael Brakke; and Laurie Brakke, Appellants
No. 20150312
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Christopher M. McShane (argued) and Andrew D. Cook (on brief), 901 13th Ave. E., P.O. Box 458, West Fargo, ND 58078-0458, for plaintiff and appellee.
Jonathan T. Garaas, DeMores Office Park, 1314 23rd St. S., Fargo, ND 58103-3796, for defendants and appellants.
2015 Application for Permit to Enter Land
Nos. 20150311 & 20150312
Crothers, Justice.
[¶1]
In this consolidated appeal several landowners appeal from district court orders granting the Cass County Joint Water Resource District (District) permission to enter Landowners’ property.
The Landowners argue that the district courts lacked subject matter jurisdiction over the cases because the District failed to serve a summons and complaint, that soil borings and other tests are outside the scope of permitted examinations and they were entitled to a jury trial to determine just compensation. We affirm the district courts’ orders.
I
[¶2]
The District filed applications with the district court for permission to enter Landowners’ property to conduct surveys, mapping and examinations required for evaluating and designing a proposed flood control project. The District stated the examinations and surveys may include drilling holes on certain properties to obtain subsurface soil samples. The Landowners objected, claiming the court was without jurisdiction to hear the applications. The Landowners claimed the District’s proposed entry onto their property constituted a taking of private property under the North Dakota Constitution and the District should not be allowed the right to enter their property to conduct examinations and surveys until a jury determined appropriate compensation. After hearings the district courts granted the District permission to enter the Landowners’ property and the Landowners appeal.
II
[¶3]
The Landowners argue the district courts erred granting the District permission to enter their property because the courts were without jurisdiction to hear the applications. “To issue a valid order, a district court must have both subject-
matter jurisdiction and personal jurisdiction over the parties.”
Alliance Pipeline L.P. v. Smith
, 2013 ND 117, ¶ 18, 833 N.W.2d 464. “Subject-matter jurisdiction is the court’s power to hear and determine the general subject involved in the action . . . .”
Albrecht v. Metro Area Ambulance
, 1998 ND 132, ¶ 10, 580 N.W.2d 583. “Issues involving subject matter jurisdiction cannot be waived and can be raised sua sponte at any time.”
Earnest v. Garcia
, 1999 ND 196, ¶ 7, 601 N.W.2d 260.
[¶4]
“For subject-matter jurisdiction to attach, ‘the particular issue to be determined must be properly brought before the court in the particular proceeding.’”
Albrecht
, 1998 ND 132, ¶ 11, 580 N.W.2d 583. North Dakota Rules of Civil Procedure 12(h)(3) compels the district court to dismiss an action whenever it appears the court lacks jurisdiction of the subject matter. “When jurisdictional facts are not disputed, the issue of subject matter jurisdiction is a question of law, which we review de novo.”
In re Estate of Vaage
, 2016 ND 32, ¶ 14, 875 N.W.2d 527.
[¶5]
The Landowners allege the North Dakota Rules of Civil Procedure required the District to commence the actions by serving eminent domain summons and complaints before the district courts could obtain jurisdiction. We disagree. The District sought permits to enter land under N.D.C.C. ch. 32-15 relating to eminent domain. “Except as otherwise provided . . . the provisions of the North Dakota Rules of Civil Procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter.” N.D.C.C. § 32-15-33. Rule 81(a), N.D.R.Civ.P., Table A, contains “a nonexclusive list of statutes pertaining to special statutory proceedings.” Chapter 32-15, N.D.C.C., is included in N.D.R.Civ.P. 81(a), Table A. These special statutory proceedings “are excluded from [the] rules to the extent they are inconsistent or in conflict with the procedure and practice provided by these rules.” N.D.R.Civ.P. Rule 81(a).
[¶6] “[A] proceeding for a court order authorizing examinations and surveys under N.D.C.C. § 32-15-06 is ‘preliminary to the condemnation action itself’ and is not a condemnation proceeding.”
Alliance Pipeline L.P. v. Smith
, 2013 ND 117, ¶ 15, 833 N.W.2d 464 (quoting
Square Butte Elec. Co-op. v. Dohn
, 219 N.W.2d 877, 883 (N.D. 1974)). Because a proceeding under N.D.C.C. § 32-15-06 is preliminary to condemnation, an eminent domain summons and complaint are not required. This is consistent with N.D.R.Civ.P. 81(a), Table A, stating N.D.C.C. ch. 32-15 is a special statutory proceeding exempt from the North Dakota Rules of Civil Procedure. Because the District was not required to commence these actions by service of a summons, the district courts did not lack subject matter jurisdiction over the District’s applications for permits to enter the Landowner’s property.
III
[¶7] The Landowners argue soil borings and other tests are beyond the scope of the examinations permitted by N.D.C.C. § 32-15-06.
“Statutory interpretation is a question of law subject to full review upon appeal.
Estate of Kimbrell
, 2005 ND 107, ¶ 9, 697 N.W.2d 315 (internal quotation marks and citation omitted). Under N.D.C.C. § 1-
02-02, “[w]ords used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained. We construe statutes as a whole and harmonize them to give meaning to related provisions.
See
N.D.C.C. §§ 1-02-01 and 1-02-02.”
Mattern v. Frank J. Mattern Estate
, 2015 ND 155, ¶ 10, 864 N.W.2d 458 (internal quotation marks omitted).
[¶8] The District filed applications for permits to enter land under N.D.C.C. § 32-15-06, which provides:
“In all cases when land is required for public use, the person or corporation . . . in charge of such use may survey and locate the same, but it must be located in the manner which will be compatible with the greatest public benefit and the least private injury and subject to the provisions of section 32-15-21. Whoever is in charge of such public use may enter upon the land and make examinations, surveys, and maps thereof, and such entry constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.”
[¶9] The District’s applications stated it “must bore a limited number of holes on certain properties to obtain subsurface soil samples.” At the August 2015 hearings the District’s attorney stated that there may be two borings per quarter section of property and each boring would remove about one or two pints of soil for testing.
The District proposed to pay $250 for each hole bored and the holes would be filled in after removing enough soil for testing. The District described the soil borings in affidavits supporting its applications:
“To obtain the information necessary to complete the geotechnical evaluation report, the geotechnical engineer must obtain soil borings on certain properties. The method for obtaining soil borings is called ‘penetration test borings.’ They are typically drilled with truck or track mounted core auger drills, equipped with hollow-
stem augers. Depending on the type of samples needed and what testing is required, the borings may vary in depth. The hollow-stem augers use a thin-walled tube to take samples at varying depths or intervals, at the discretion of the geotechnical engineer. Bulk samples from the material removed from the borings may also be taken.
“Soil borings will have minimal, if any, impact on existing trees. The bore holes are sited as close as possible to where levees, diversion channels, roads, bridges, or other flood control structures that require structurally-stable soils may be built. Soil boring holes are typically 6-
8 inches in diameter and 60-90 feet deep. Soil removed from the hole will be predominantly returned to the bore hole, with the majority of remaining excess soil removed from the site. The holes will be filled with bentonite clay (expansive clay material) if conditions indicate influence or impact to subsurface aquifers. The soil boring sites will be restored to their existing condition If [sic] necessary, the boring sites at the surface can be restored with new top soil and seeding in the spring.”
[¶10]
In granting the permits the district courts cited
Square Butte Elec. Co-op. v. Dohn
, 219 N.W.2d 877 (N.D. 1974). In
Square Butte
a district court order granted an electric cooperative permission to enter private lands to conduct “soil testing and ground-resisting measurements, pursuant to Section 32-15-06, N.D.C.C.”
Id.
at 879. We held the electric cooperative “made a sufficient showing through its affidavit to secure authorization to traverse [the landowner’s property] for the purposes of survey and limited testing, and that the conditions imposed by the trial court should adequately protect [the landowner] in the event that any damage is done to his property.”
Id.
at 883.
[¶11]
Here, the district court in the
Bakke
matter found the proposed soil borings “are minimally invasive and will result in approximately a pint of soil being removed from each boring site, which can later be replaced after the testing is completed.” Similar to
Square Butte
, here the district courts in both cases restricted the District’s right to enter:
“No buildings are to be entered or damaged, or trees cut, on Respondents’ property without consent of the landowner or further order of the Court;
“Applicant shall pay Respondents the sum of $250 for each soil boring completed on the property for purposes of the geotechnical surveys;
“The Respondents’ property is to be returned, as nearly as practicable, to its original condition, and any damages caused to the Property by Applicant’s entry are to be repaired or fair compensation paid to Respondents.
“Applicant will provide at least 48-hour advance notice of its intention to enter upon the property by giving such notice either in writing or personal contact with Respondents. Such notice will include the name of the entity making such entry and the person in charge of the surveying, examination, mapping, or testing to be completed.
“Applicant shall indemnify and hold Respondents harmless from any and all claims, losses, or damages.”
See
Square Butte
, 219 N.W.2d at 884 (noting the district court placed “other protective conditions” on the electric cooperative’s right to enter).
[¶12]
The statute permitting examinations is construed giving the words their plain, ordinary and commonly understood meaning.
Sanderson v. Walsh Cty.
, 2006 ND 83, ¶ 16, 712 N.W.2d 842. An “examination” is defined as “a means or method of examining;” an “investigation;” an “inspection;” or an “inquiry.”
See
Webster’s New World Dictionary of the American Language
(2d College Ed.1980). “Examine” means “to look at or into critically or methodically in order to find out the facts, condition, etc. of.”
Id.
The definition of “examination” is not strictly limited to a visual examination.
[¶13]
The Landowners’ argument implies the proposed soil borings constitute a taking because they are not within the scope of permitted N.D.C.C. § 32-15-06 examinations. Courts analyze regulatory takings using primary factors including:
“[T]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the governmental action - for instance whether it amounts to a physical invasion or instead merely affects property interests through some public program adjusting the benefits and burdens of economic life to promote the common good.”
Wild Rice River Estates v. City of Fargo
, 2005 ND 193, ¶ 13, 705 N.W.2d 850 (quoting
Lingle v. Chevron U.S.A., Inc.
, 544 U.S. 528, 537, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005)) (internal quotation marks omitted).
“This Court has . . . adopted the parcel-as-a-whole rule, relying upon
Keystone Bituminous Coal Ass’n v. DeBenedictis
, 480 U.S. 470, 497, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987) (quoting
Penn Central
, 438 U.S. at 130-31, 98 S. Ct. 2646), for the proposition that ‘[i]n determining whether a restriction constitutes a taking, courts look to the effect of the restriction on the parcel of land as a whole, rather than to the effect on individual interests in the land.’”
Wild Rice River Estates v. City of Fargo
, 2005 ND 193, ¶ 17, 705 N.W.2d 850 (citing
Grand Forks-Traill Water Users, Inc. v. Hjelle
, 413 N.W.2d 344, 346 (N.D.1987)).
[¶14]
The District’s proposed soil borings test the condition of the soil on the Landowners’ properties for the public purpose of evaluating and designing a flood control project proposal. The soil boring proposed here is an “examination” as described by N.D.C.C. § 32-15-06. Although the proposed soil borings penetrate the ground’s surface, the testing is nevertheless minimally invasive, or “limited.”
Square Butte
, 219 N.W.2d at 883. Removing one to two pints of soil for testing and replacing the soil after testing does not constitute a compensable taking. The proposed soil borings are within the scope of the “examinations” allowed under N.D.C.C. § 32-15-06 and
Square Butte
.
IV
[¶15]
The Landowners argue they are entitled to a jury trial to determine compensation for the District’s activities on their property. Because “a proceeding for a court order authorizing examinations and surveys under N.D.C.C. § 32-15-06 is preliminary to the condemnation action itself and is not a condemnation proceeding,” a jury trial would be premature.
Alliance Pipeline
, 2013 ND 117, ¶ 15, 833 N.W.2d 464 (internal quotation marks omitted). The District’s permit for entry “constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.” N.D.C.C. § 32-15-06. The Landowners are not entitled to a jury trial where no such evidence exists.
V
[¶16] We affirm the district courts’ orders.
[¶17] Daniel J. Crothers
Dale V. Sandstrom
Carol Ronning Kapsner
Benny A. Graff, S.J.
Gerald W. VandeWalle, C.J.
[¶18] The Honorable Benny A. Graff, Surrogate Judge, sitting in place of McEvers, J., disqualified.
|
01-03-2023
|
08-18-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/1902400/
|
12 B.R. 773 (1981)
In re Sofia (NMI) LEYBA, Debtor.
FIDELITY FINANCIAL SERVICES, INC., Plaintiff,
v.
Sofia (NMI) LEYBA, Defendant.
Bankruptcy No. 81 M 1080.
United States Bankruptcy Court, D. Colorado.
July 15, 1981.
*774 Thomas F. Farrell, Englewood, Colo., for plaintiff.
Jimmye S. Warren, Asst. U.S. Atty., Denver, Colo., for United States.
MEMORANDUM OPINION
JOHN P. MOORE, Bankruptcy Judge.
THIS case is before the Court upon a Complaint for Relief from Stay pursuant to 11 U.S.C. § 1302(c)(2), filed by plaintiff Fidelity Financial Services, Inc. (Fidelity). The complaint alleges that Fidelity holds a judgment for the sum of $891.69, against debtor/defendant Sofia Leyba and against Robert F. Leyba, cosigner of the promissory note underlying the judgment. Fidelity seeks relief from the stay of action against a co-debtor imposed by 11 U.S.C. § 1302(a), in order to pursue Robert F. Leyba, who is not at present a debtor in a case under Title 11.
The issue before the Court for resolution, however, is not directed to the merits of the complaint. Fidelity has filed a motion for waiver of the $60.00 filing fee required to initiate this adversary proceeding challenging the fee upon two theories. First, it is argued that a charge of $60.00 is economically prejudicial to creditors seeking proportionately small recoveries; and second, Fidelity maintains the Bankruptcy system, in effect, forces creditors into a defensive posture; therefore, it is unconstitutional to tax them before they may assert their rights. In order to expedite hearing on the merits, the docket fee was paid under protest and, by order of Court, deposited into the registry pending the outcome of the motion.
The $60.00 filing fee challenged in this action was established pursuant to 28 U.S.C. § 1930(b), which authorizes the Judicial Conference of the United States to
. . . prescribe additional fees in cases under title 11 of the same kind as the Judicial Conference prescribes under section 1914(b) of this title [28 U.S.C. § 1914(b)].
The schedules of fees effective March 6, 1980, included a directive that the fee for filing a complaint in Bankruptcy Court was to be $60.00.
The basic thrust of the arguments advanced by the Plaintiff is a postulation that when a debtor files a bankruptcy case, creditors are forced to "defend" against the operation of the Bankruptcy Code, if they wish to preserve their claims against the Code's automatic stay provisions. As the postulation is expanded, it is argued that in order to undertake this "defense", a creditor must initiate an adversary proceeding in Bankruptcy Court, pursuant to 701 F.R.B.P. and must pay the $60.00 filing fee. Then, having established the postulation, Plaintiff contends that the fee obstructs the creditor's "fundamental right to defend", and therefore constitutes a "taking of property from the creditor prior to a hearing" which is "violative of due process".
Plaintiff relies almost entirely upon In re South, 6 B.R. 645 (Bkrtcy. W.D. Okla., 1980) affirmed U.S.D.C.W.D.Okla., Slip Opinion, April 29, 1981. Both courts in South held that it is constitutionally impermissible to charge creditors $60.00 for filing a complaint for relief from stay under § 362. Like Plaintiff, Fidelity, the South courts relied on the premise that a debtor's filing of a case under Title 11 forces creditors to defend their rights in one exclusive forum. I find myself unable to accept this premise because I believe it creates a stricture which is not in accord with the unique scope of bankruptcy proceedings.
The filing of a petition under Title 11 has manifold results: it creates an entity known as an "estate", it vests wide jurisdiction over the estate and the debtor in the Bankruptcy Court, and it suspends or alters creditors' rights of action. The petition also provides a new forum for the assertion of rights against the debtor, the estate, or both. However, the filing of a petition does not commence a legal proceeding against creditors.[1] Indeed, there is such a panoply of proceedings available to and initiated by creditors that it is an oversimplification to *775 cast creditors in "defensive" postures. They may file a proof of claim to preserve a claim at no cost. If they hold a secured claim, and need not move against the debtor personally to obtain satisfaction, they may file a motion seeking abandonment of the collateral pursuant to 11 U.S.C. § 554(b). If the debtor has filed under Chapter 13, creditors may file an objection to confirmation, pursuant to Local Rule 32, again without cost. Alternatively, they may choose to file a complaint objecting to the debtor's discharge, challenging the dischargeability of a specific debt, or seeking relief from the automatic stay imposed under 11 U.S.C. § 362 or § 1301.
These latter actions occur only in the context of bankruptcy. This does not mean, however, that they are defensive in nature. A creditor's decision that the initiation of an independent lawsuit is the most favorable way to assert the creditor's rights does not mean that the creditor is defending. In my view, such a creditor is the aggressor, and while that creditor may feel impelled by the initiation of a bankruptcy petition to seek the avoidance of bankruptcy jurisdiction, that course is not defensive. Creditors who choose to enforce their claims during the pendency of a case under Title 11 and seek relief from stay are thus still in the position of plaintiffs, because, as was discussed above, resort to the complaint for relief from stay is not the only avenue to protection of rights.[2]
Thus, the line of due process decisions that define the rights of those forced to defend in the judicial arena do not apply here. Interestingly, indigence is not pled here, nor is an application made for permission to file forma pauperis. Rational court filing fees, especially those imposed upon non-indigent plaintiffs, are clearly nonviolative of due process rights. See Manes v. Goldin, 400 F.Supp. 23 (E.D.N.Y., 1975) affirmed without opinion, 423 U.S. 1068, 96 S.Ct. 851, 47 L.Ed.2d 80, 1976. See also 16A Am.Jur.2d Constitutional Law § 614.
Additionally, it does not appear that the $60.00 filing fee denies Plaintiff equal protection of the laws. The Bankruptcy Court's opinion in South, supra, draws an analogy between the Bankruptcy Code's automatic stay and a temporary restraining order issued in a nonbankruptcy case pursuant to the Federal Rules of Civil Procedure, Rule 65(b). As that court points out,
No filing fee is required by either 28 U.S.C. § 1914, or the Judicial Conference's additional fee schedule pursuant thereto, to dissolve or modify such temporary restraining order. . . .
However,
where a party moving to lift a temporary restraining order in a pending district court may do so without payment of a fee, incongruously a bankruptcy court creditor must pay a $60.00 filing fee in seeking to lift the automatic stay.
Hence, predicated upon the assumption that the automatic stay is no different from a temporary restraining order, a classification issue is created. Assuming only for the sake of discussion that this assumption is correct, is the resultant classification constitutionally impermissible?
Even though both injunctive remedies are invoked ex parte, those persons enjoined by operation of the Bankruptcy Code are taxed, if they wish to dispute the "injunction", while in non-bankruptcy proceedings an injunction under F.R.C.P. 65(b) may be challenged free of charge. Yet, I do not believe this classification is based on "suspect" criteria, such as race, national origin, religion, alienage,[3] and in some cases, gender[4]*776 and wealth.[5] Nor can it be said that this classification interferes with a fundamental personal right. For purposes of dealing with equal protection questions, the Supreme Court has characterized a fundamental right as being a "basic constitutional freedom . . . which, like free speech, lies at the foundation of a free society." Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The Court's analysis differentiates between rights that are "important" and that more limited group of rights "explicitly or implicitly guaranteed by the Constitution." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). To paraphrase Justice Harlan in his dissent in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), virtually every statute affects important rights.
However,
The [Supreme] Court today does not "pick out particular human activities, characterize them as `fundamental,' and give them added protection. . . ." To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands. . . . social importance is not the critical determinant for subjecting state legislation to strict scrutiny. . . . Rather, the answer lies in assessing whether there is a right . . . explicitly or implicitly guaranteed by the Constitution. San Antonio v. Rodriguez, supra.
Rights held to fall within this narrow definition of fundamentality include the right of marriage,[6] rights to vote[7] and to procreate,[8] the First Amendment rights of free speech, press, and assembly,[9] and the right to interstate travel.[10] The position taken by Fidelity requires the conclusion that the right to sue upon an unsecured debt is an equally fundamental right. If that is so, all rights would be so classified. In my judgment, the "classification" involved here impacts solely upon the economic interests of those affected, and those interests do not rise to the constitutionally protected level of a fundamental right.
The cases regarding denial of equal protection under the law have firmly established that
Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).
Cases specifically dealing with statutes involving economic matters confirm that in order to be upheld, the statute or rule need only meet this test of rational justification. Hughes v. Alexandria Scrap Corporation, 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).[11]
The imposition of a filing fee has been held to be rationally related to the legitimate government objective of offsetting some of the costs of operating the court system. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); Manes v. Goldin, supra; United States v. Kras, *777 supra. Plaintiffs have not challenged the rationality or effectiveness of the filing fee in relation to this legitimate objective. I find that the fee does meet the test of rational justification. Having passed that threshold, it must be upheld.
NOTES
[1] To so suggest creates a fiction of convenience so that credence may be given to what follows.
[2] Compare Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), where the Court held that the indigents seeking dissolution of marriage were in the posture of defendants because resort to the state court was "the only avenue to dissolution of their marriages", and United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), which held that resort to Bankruptcy Court is not a beleaguered debtor's sole path to relief, and so refused to envision him in a defensive posture.
[3] City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); United States v. Kras, supra.
[4] Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979).
[5] Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
[6] Boddie v. Connecticut, supra.
[7] Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).
[8] Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).
[9] Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
[10] Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974).
[11] See also City of New Orleans v. Dukes, supra, which upheld local economic legislation, stating that in the case of laws affecting the economic sphere, "it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment". 96 S.Ct. at 2517.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615050/
|
252 Kan. 646 (1993)
847 P.2d 1273
STATE OF KANSAS, ex rel., COLLEEN HERMESMANN, Appellee,
v.
SHANE SEYER, a minor, and DAN and MARY SEYER, his parents, Appellants.
No. 67,978
Supreme Court of Kansas.
Opinion filed March 5, 1993.
Ronald P. Pope, of Eugene B. Ralston & Associates, of Topeka, argued the cause and was on the brief for appellants.
*647 David N. Sutton, chief of litigation, Department of Social and Rehabilitation Services, of Topeka, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
HOLMES, C.J.:
Shane Seyer et al., appeal from an order of the district court granting the Kansas Department of Social and Rehabilitation Services (SRS) judgment for amounts paid for the birth and support of Seyer's daughter and ordering Seyer to pay monthly child support reimbursement to SRS.
The facts, as best we can determine them from an inadequate record, do not appear to be seriously in dispute.
Colleen Hermesmann routinely provided care for Shane Seyer as a baby sitter or day care provider during 1987 and 1988. The two began a sexual relationship at a time when Colleen was 16 years old and Shane was only 12. The relationship continued over a period of several months and the parties engaged in sexual intercourse on an average of a couple of times a week. As a result, a daughter, Melanie, was born to Colleen on May 30, 1989. At the time of the conception of the child, Shane was 13 years old and Colleen was 17. Colleen applied for and received financial assistance through the Aid to Families with Dependent Children program (ADC) from SRS.
On January 15, 1991, the district attorney's office of Shawnee County filed a petition requesting that Colleen Hermesmann be adjudicated as a juvenile offender for engaging in the act of sexual intercourse with a child under the age of 16, Shanandoah (Shane) Seyer, to whom she was not married, in violation of K.S.A. 1992 Supp. 21-3503. Thereafter, Colleen Hermesmann entered into a plea agreement with the district attorney's office, wherein she agreed to stipulate to the lesser offense of contributing to a child's misconduct, K.S.A. 1992 Supp. 21-3612. On September 11, 1991, the juvenile court accepted the stipulation, and adjudicated Colleen Hermesmann to be a juvenile offender.
On March 8, 1991, SRS filed a petition on behalf of Colleen Hermesmann, alleging that Shane Seyer was the father of Colleen's minor daughter, Melanic. The petition also alleged that SRS had provided benefits through the ADC program to Colleen on behalf of the child and that Colleen had assigned support *648 rights due herself and her child to SRS. The petition requested that the court determine paternity and order Shane to reimburse SRS for all assistance expended by SRS on Melanie's behalf. On December 17, 1991, an administrative hearing officer found Shane was Melanie's biological father. The hearing officer further determined that Shane was not required to pay the birth expenses or any of the child support expenses up to the date of the hearing on December 17, 1991, but that Shane had a duty to support the child from the date of the hearing forward.
Shane requested judicial review of the decision of the hearing officer, contending that the hearing officer "should have found a failure of consent would terminate rights." SRS sought review, asserting that the hearing officer correctly ruled that the issue of consent was irrelevant, but erred in allowing Shane to present evidence pertaining to the defense of consent. SRS also alleged that the hearing officer's denial of reimbursement to the State for funds already paid was arbitrary and capricious and contrary to the mandates of K.S.A. 1992 Supp. 39-718b.
The district judge, upon judicial review of the hearing officer's order, determined that Shane was the father of Melanie Hermesmann and owed a duty to support his child, stating:
"Okay. I'm ready to rule. It's my view in this case that the Hearing Officer's ruling, which essentially is that a minor may be held legally liable to provide reimbursement to the State of Kansas under K.S.A. 39-701 et seq., is a correct ruling of law and that the issues of consent and the criminal case and so forth are not really relevant in a paternity proceeding, which we're talking about, civil liability to support a child.
"Second, I'm going to hold that the State, by proceeding under 39-701 et seq., that there is no discretion in the Court regarding liability. The courts, I believe, are ministerial at that point and are the vehicle for SRS to collect the support and it was error for the Hearing Officer not to assess all of the monies paid jointly and severally liable against both of the parents of this child.
"And so I would enter a judgment for all of the SRS reimbursement against Colleen Hermesmann and Shane Seyer jointly and severally for the six thousand plus."
The court found that the issue of Shane's consent was irrelevant and ordered Shane to pay child support of $50 per month. The court also granted SRS a joint and several judgment against Shane and Colleen in the amount of $7,068, for assistance provided by *649 the ADC program on behalf of Melanie through February 1992. The judgment included medical and other birthing expenses as well as assistance paid after Melanie's birth. Shane appeals the judgment rendered and the order for continuing support but does not contest the trial court's paternity finding. SRS has not cross-appealed from any of the orders or judgment of the district court.
This case was transferred from the Court of Appeals by this court's own motion. K.S.A. 20-3018(c).
Shane has designated three issues on appeal, which he states as follows:
"I. Can a minor, who is a victim of the crime of indecent liberties with a child, be responsible for any children conceived of the criminal union?
"II. Is it sound public policy for a court to order child support when the order creates a clash of one minor's right to protection from being the victim of a crime with another minor's right to parental support?
"III. Can a judgment ordering joint and several liability for child support be an adequate remedy when it fails to account for the wrongdoing of Plaintiff-appellee Hermesmann?"
Shane's argument on appeal is based on three basic premises. (1) Shane Seyer, as a minor under the age of 16, was unable to consent to sexual intercourse. (2) Because he was unable to consent to sexual intercourse, he cannot be held responsible for the birth of his child. (3) Because he cannot be held responsible for the birth, he cannot be held jointly and severally liable for the child's support.
Shane asserts as his first issue that, because he was a minor under the age of 16 at the time of conception, he was legally incapable of consenting to sexual intercourse and therefore cannot be held legally responsible for the birth of his child. Shane cites no case law to directly support this proposition. Instead, he argues that Colleen Hermesmann sexually assaulted him, that he was the victim of the crime of statutory rape, and that the criminal statute of indecent liberties with a child should be applied to hold him incapable of consenting to the act.
What used to be commonly called "statutory rape" is now included in the statutory crime of indecent liberties with a child. The statute, K.S.A. 1992 Supp. 21-3503, reads in pertinent part:
"(1) Indecent liberties with a child is engaging in any of the following acts with a child who is under 16 years of age:
*650 (a) Sexual intercourse."
Both the administrative hearing officer and the district court determined that whether Shane consented to sexual intercourse was not a relevant issue in a civil paternity and child support proceeding.
SRS maintains that Shane was not the victim of the crime of statutory rape. SRS points out that while Colleen was originally charged in juvenile proceedings with a violation of K.S.A. 1992 Supp. 21-3503, she later stipulated to a lesser charge of contributing to a child's misconduct, K.S.A. 1992 Supp. 21-3612. While SRS is technically correct in asserting that Colleen was never found guilty of violating 21-3503, its entire case is based upon the fact that Shane is the father of the child. As it is undisputed that Shane was under the age of 16 when conception occurred, and throughout the entire time the sexual relationship continued, the argument of SRS is specious at best. The admitted facts established, without doubt, all of the elements necessary to prove a crime under K.S.A. 1992 Supp. 21-3503(1)(a), and the fact that Colleen was able to plea bargain for a lesser offense does not preclude Shane from alleging he was a "victim" of statutory rape.
Although the issue of whether an underage alleged "victim" of a sex crime can be held liable for support of a child born as a result of such crime is one of first impression in Kansas, other jurisdictions have addressed the question.
In In re Paternity of J.L.H., 149 Wis. 2d 349, 441 N.W.2d 273 (1989), J.J.G. appealed from a summary judgment in a paternity proceeding determining that he was the father of J.L.H. and ordering him to pay child support equal to 17 percent of his gross income. J.J.G. was 15 years old when the child was conceived. On appeal, he asserted that the child's mother, L.H., sexually assaulted him, contrary to Wis. Stat. § 940.225(2)(e) (1979) (the Wisconsin statutory rape statute in effect at the time), and that, as a minor, he was incapable of consent under the sexual assault law. The court rejected this argument and stated:
"The assumption underlying appellant's opposition to the motion for summary judgment is that a putative father in a paternity action has a defense if the sexual intercourse occurred without his consent. The amended civil complaint which his opposing affidavit incorporates alleges that the child born to L.H. was `the result of nonconsensual sexual assault in violation of *651 sec. 940.225(2)(e), Wis. Stats.' .... That statute provides that it is a felony for a person to have `sexual intercourse with a person who is over the age of 12 years and under the age of 18 years without consent of that person, as consent is defined in sub. (4).' Subsection (4) provides:
`Consent' as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. A person under 15 years of age is incapable of consent as a matter of law. The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11(2):
(a) a person who is 15 to 17 years of age....'
....
"We reject appellant's assertion that because he was fifteen years old when he had intercourse with L.H., he was incapable of consent. The assertion rests on the argument that sec. 940.225(4)(a), Stats. 1979, created a rebuttable presumption to that effect. That statute pertains to the guilt of a criminal defendant, not to the civil rights or duties of the victim. Paternity actions are civil proceedings. State ex rel. Lyons v. DeValk, 47 Wis. 2d 200, 203, 177 N.W.2d 106, 107 (1970). The presumption created by sec. 940.225(4)(a) does not apply in this proceeding." 149 Wis. 2d at 355-57.
The court then goes on to state:
"If voluntary intercourse results in parenthood, then for purposes of child support, the parenthood is voluntary. This is true even if a fifteen-year old boy's parenthood resulted from a sexual assault upon him within the meaning of the criminal law." 149 Wis. 2d at 360.
Although the question of whether the intercourse with Colleen was "voluntary," as the term is usually understood, is not specifically before us, it was brought out in oral argument before this court that the sexual relationship between Shane and his baby sitter, Colleen, started when he was only 12 years old and lasted over a period of several months. At no time did Shane register any complaint to his parents about the sexual liaison with Colleen.
In Schierenbeck v. Minor, 148 Colo. 582, 367 P.2d 333 (1961), Schierenbeck, a 16-year-old boy, appealed the adjudication in a dependency proceeding that he was the father of a child born to a 20-year-old woman. On appeal, Schierenbeck cited a Colorado criminal statute which defined rape in the third degree by a female of a male person under the age of 18 years. In discussing the relevance of the criminal statute, the court stated:
*652 "Certain it is that [Schierenbeck's] his assent to the illicit act does not exclude commission of the statutory crime, but it has nothing to do with assent as relating to progeny. His youth is basic to the crime; it is not a factor in the question of whether he is the father of [the child].
"`The putative father may be liable in bastardy proceedings for the support and maintenance of his child, even though he is a minor....' Bastards, 10 C.J.S. 152, § 53. If Schierenbeck is adjudged to be the father of [the child] after a proper hearing and upon sufficient evidence, he should support [the child] under this fundamental doctrine." 148 Colo. at 586.
The trial court decision was reversed on other grounds not pertinent to the facts of our case and remanded for further proceedings.
The Kansas Parentage Act, K.S.A. 38-1110 et seq., specifically contemplates minors as fathers and makes no exception for minor parents regarding their duty to support and educate their child. K.S.A. 38-1117 provides, in part:
"If a man alleged or presumed to be the father is a minor, the court shall cause notice of the pendency of the proceedings and copies of the pleadings on file to be served upon the parents or guardian of the minor and shall appoint a guardian ad litem who shall be an attorney to represent the minor in the proceedings."
K.S.A. 1992 Supp. 38-1121(c) provides, in part:
"Upon adjudging that a party is the parent of a minor child, the court shall make provision for support and education of the child including the necessary medical expenses incident to the birth of the child. The court may order the support and education expenses to be paid by either or both parents for the minor child."
If the legislature had wanted to exclude minor parents from responsibility for support, it could easily have done so.
As previously stated, Shane does not contest that he is the biological father of the child. As a father, he has a common-law duty, as well as a statutory duty, to support his minor child. Keller v. Guernsey, 227 Kan. 480, 486, 608 P.2d 896 (1980); Strecker v. Wilkinson, 220 Kan. 292, 298, 552 P.2d 979 (1976); Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 (1956). This duty applies equally to parents of children born out of wedlock. Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974); Doughty v. Engler, 112 Kan. 583, 585, 211 P. 619 (1923).
Under the statutory and common law of this state, Shane owes a duty to support his minor child. K.S.A. 1992 Supp. 21-3503 *653 does not apply to a civil proceeding and cannot serve to relieve Shane of his legal responsibilities towards his child. Shane relies upon six cases to support his position: State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988); State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987); State v. Lilley, 231 Kan. 694, 647 P.2d 1323 (1982); State v. Price, 215 Kan. 718, 529 P.2d 85 (1974); State v. Eberline, 47 Kan. 155, 27 P. 839 (1891); State v. Fulcher, 12 Kan. App. 2d 169, 737 P.2d 61 (1987). Each of these cases involves the age of consent issue under the Kansas statutory rape law and its present equivalent. We conclude that the issue of consent to sexual activity under the criminal statutes is irrelevant in a civil action to determine paternity and for support of the minor child of such activity. Consequently, Shane's reliance on the foregoing criminal cases is misplaced.
For Shane's next issue, he asserts that it is not sound public policy for a court to order a youth to pay child support for a child conceived during the crime of indecent liberties with a child when the victim was unable to consent to the sexual intercourse. He claims that while the Kansas Parentage Act creates a State interest in the welfare of dependent relatives, the policy behind the Parentage Act is not to force a minor, who is unable to consent to sexual intercourse, to support a child born from the criminal act.
Shane provides no case law specifically on point, but once again relies upon the Kansas cases involving statutory rape. He also refers the court to K.S.A. 39-718a, which authorized the Secretary of SRS to collect child support from an absent parent. Shane suggests that underlying K.S.A. 39-718a is the presumption that a parent consented to the conception, and argues that the proper remedy for SRS in this case is to seek support exclusively from Colleen Hermesmann, as she was the only parent legally able to consent to the conception of the child. What Shane has failed to recognize, however, is that K.S.A. 39-718a was repealed by the legislature in 1988. L. 1988, ch. 218, § 6. Any argument based upon a statute which was repealed five years ago is obviously without merit.
However, the argument of two allegedly conflicting public policies of this state does merit consideration. Other jurisdictions have recognized the conflict between a State's interest in protecting *654 juveniles and a State's interest in requiring parental support of children. In In re Parentage of J.S., 193 Ill. App. 3d 563, 550 N.E.2d 257 (1990), the trial court ordered a minor father to pay child support for his illegitimate son. The minor father appealed the order, but did not contest the trial court's paternity finding. In affirming the trial court's decision ordering support, the court stated:
"The respondent initially argues that he should not be required to support his child, because he was a 15-year-old minor when the child was conceived. He contends that Illinois public policy protects minors from the consequences of their improvident conduct.
"We note that contrary to the respondent's position, Illinois public policy has never offered blanket protection to reckless minors. [Citations omitted.] At the same time, Illinois public policy has recognized the blanket right of every child to the physical, mental, emotional, and monetary support of his or her parents. (Ill. Rev. Stat. 1987, ch. 40, par. 2501.1.) The public has an interest in protecting children from becoming wards of the State. In re Petition of Sullivan (1985), 134 Ill. App. 3d 455, 480 N.E.2d 1283.
"In the instant case, we find that the public policy mandating parental support of children overrides any policy of protecting a minor from improvident acts. We therefore hold that the trial court properly found that the respondent was financially responsible for his child." (Emphasis added.) 193 Ill. App. 3d at 565.
In Commonwealth v. A Juvenile, 387 Mass. 678, 442 N.E.2d 1155 (1982), a 16-year-old father was ordered to pay child support of $8 a week toward the support of his child born out of wedlock. The minor father admitted his paternity, but appealed the support order. On appeal, the court affirmed the judgment of the lower court and said:
"The defendant's claim rests on an assertion that a support order is inconsistent with the statutory purpose of treating a juvenile defendant as a child `in need of aid, encouragement and guidance.' [Citation omitted.] Although we acknowledge that purpose, we see no basis, and certainly no statutory basis, for concluding that a juvenile should be free from any duty to support his or her illegitimate child. The illegitimate child has interests, as does the Commonwealth." 387 Mass. at 680.
This State's interest in requiring minor parents to support their children overrides the State's competing interest in protecting juveniles from improvident acts, even when such acts may include criminal activity on the part of the other parent. Considering the three persons directly involved, Shane, Colleen, and Melanie, *655 the interests of Melanie are superior, as a matter of public policy, to those of either or both of her parents. This minor child, the only truly innocent party, is entitled to support from both her parents regardless of their ages.
As his third issue, Shane asserts that the district court erred in finding he and Colleen were jointly and severally liable for the child support. He argues that, as Colleen was the perpetrator of the crime of statutory rape, she alone should be held responsible for the consequences of the act, and he requests this court to remand the case to the district court with instructions to order Colleen solely responsible for the support pursuant to K.S.A. 39-718a. He states that K.S.A. 39-701 et seq. does not require a judgment ordering joint and several liability for child support.
Once again, Shane's reliance upon K.S.A. 39-718a is improper. This statute was repealed in 1988. L. 1988, ch. 218, § 6. The controlling statute, as SRS points out, is K.S.A. 1992 Supp. 39-718b, which explicitly requires a court to order joint and several liability, with some exceptions not applicable here, when more than one person is legally obligated to support the child. SRS correctly notes that the mother's conduct has no bearing upon the parties' respective obligations to support their child. Other courts have so held. In Weinberg v. Omar E., 106 App. Div.2d 448, 448, 482 N.Y.S.2d 540 (1984), the court held:
"[T]he mother's alleged fault or wrongful conduct is irrelevant under section 545 of the Family Court Act [citation omitted]. The primary purpose of a paternity proceeding is to protect the welfare of the illegitimate child and, accordingly, the mother's conduct should have no bearing on the father's duty of support nor upon the manner in which the parents' respective obligations are determined [citation omitted]."
SRS also notes that Shane cites no authority in support of his contention. Nowhere does the law in this state suggest that the mother's "wrongdoing" can operate as a setoff or bar to a father's liability for child support. Under the facts as presented to this court, the district court properly held that Shane owes a duty of support to Melanie and properly ordered that Shane and Colleen were jointly and severally liable for the monies previously paid by SRS.
While the foregoing disposes of the issues on appeal, we would be remiss if we did not comment upon various other facets of *656 this appeal. This court was not supplied with any meaningful record in this case. The only record supplied by counsel was a portion of the pleadings in the district court. No transcript or other evidence of the proceedings before the hearing officer was included in the record, and the facts, while apparently not disputed, have been gleaned from the pleadings, briefs, arguments before this court, and a transcript of the arguments before the district judge which this court felt compelled to obtain. The appellants' brief does refer to two exhibits, allegedly attached to their brief, in support of some of their statements of fact. However, such exhibits were not made part of the record on appeal, nor were they attached as exhibits to the brief. Neither parties brief could be considered adequate, let alone a model, for appellate procedure.
Additionally, counsel for SRS joined the parents of Shane as parties defendant, although no relief was sought against those defendants. At oral argument, appellate counsel had no explanation for joining Shane's parents, but it appears trial counsel may have done so under some mistaken idea that it was necessary to obtain valid service on Shane.
Finally, we call attention to the fact that no issue was raised as to the propriety of the judgment against a youngster who was still a full-time student when these proceedings were commenced. When questioned in oral argument about the policy of SRS in seeking a judgment in excess of $7,000, counsel replied with the surprising statement that SRS had no intention of ever attempting to collect its judgment. Under such circumstances, the reason for seeking that portion of the judgment still eludes us.
The judgment of the district court is affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874244/
|
586 So. 2d 533 (1991)
Melville F. BORNE, Jr., Evangeline Health Care, Inc. and Ferncrest Manor, a Partnership In Commendam
v.
NEW ORLEANS HEALTH CARE, INC., Sandia Federal Savings & Loan Association, Middleberg, Riddle & Gianna, a Louisiana Law Partnership, and ARA Health Care Management, Inc.
No. 91-C-1520.
Supreme Court of Louisiana.
October 4, 1991.
Denied.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615051/
|
121 Wash. 2d 80 (1993)
847 P.2d 455
In the Matter of Juveniles A, B, C, D, E.
No. 58364-1.
The Supreme Court of Washington, En Banc.
March 11, 1993.
Suzanne Lee Elliott of Washington Appellate Defender Association, for appellants.
David S. McEachran, Prosecuting Attorney, and Greg Greenan, Deputy, for respondent.
Jacqueline S. Hebert on behalf of the American Civil Liberties Union, amicus curiae for appellants.
DURHAM, J.
Five juveniles were found to have committed various sexual offenses under RCW 9A.44. Relying upon RCW 70.24.340(1)(a), which provides for mandatory AIDS testing of convicted sexual offenders, the Whatcom County *85 commissioner ordered the juveniles to submit to an HIV test. In a direct appeal, the juveniles challenge the applicability and constitutionality of this statute. We affirm the commissioner's ruling.
All of the sexual offenses were committed in Whatcom County. Juvenile "A", a 14-year-old male, was charged with the crime of indecent liberties, RCW 9A.44.100(1). Following a fact-finding hearing, the judge pro tempore found that on or about June 30, 1988, "A" had sexual contact with a younger boy through forcible compulsion. Specifically, "A" held the younger boy down and "used butter" to "sodomize[]" him.
Juvenile "B", a 14-year-old boy, was charged with first degree child molestation, RCW 9A.44.083, which occurred on July 15, 1988. "B" pleaded guilty to this charge, stating that he "kissed [a 4-year-old girl] on her breast and layed [sic] on top of her." The affidavit of probable cause further alleged that "B" "removed her pants and licked and kissed her vaginal area." The young girl originally told her parents that penetration had occurred, but later denied this to the police. The acts of molestation occurred while "B" was alone with the younger child for a period of time in his house.
Juvenile "C", a 15-year-old girl, was charged with three counts of first degree child molestation, RCW 9A.44.083, which occurred on or about July 1, 1988. The last two counts were dropped when "C" pleaded guilty to the first count. In her plea, "C" stated that:
I let [a 5-year-old boy] lay on top of me. We were both clothed. I let him touch my breast and look inside my underwear. He also kissed my mouth.
The affidavit for probable cause contains additional allegations. First, while baby-sitting, "C" touched the young boy's penis on several different occasions. Second, while baby-sitting a 4-year-old girl, "C" removed her clothes, scratched herself in the genitals, and then proceeded to place her hand inside the young girl's underpants, rubbing her to the point of pain. Finally, while baby-sitting, "C" undressed a young boy, showed him to the other children and touched his penis.
*86 Juvenile "D", a 16-year-old male, was charged with indecent liberties, RCW 9A.44.100(1), which occurred on or about June 2, 1988. "D" pleaded guilty and stated the following:
[An 11-year-old girl] and I went to the Lynden Middle School to get some pop. I started tickling her, and then I kissed her. We started playing around and I asked her if she wanted to go to the back of the middle school. She said yes, and we laid down and she was laughing. We played around some more. I took off her shirt and unbuttoned her pants and touched her breasts and crotch area.
The affidavit of probable cause additionally alleged that he removed his clothes, as well as her clothes. Moreover, "[h]e rubbed his genitals and hands against [her] genitals for several minutes."
Juvenile "E", a 15-year-old boy, was charged with first degree child molestation, RCW 9A.44.083, which occurred on October 13, 1988. "E" pleaded guilty, stating that he had "sexual contact" with a 7-year-old boy. According to the probable cause affidavit, the incident occurred while "E" was baby-sitting a 7-year-old boy. On three separate occasions during the evening, "E" entered the boy's room and placed his mouth on the boy's penis.
Pursuant to RCW 70.24.340(1)(a), the State sought orders from the juvenile court allowing HIV testing of all five juvenile offenders. Appellants opposed the HIV testing, alleging numerous constitutional grounds. A hearing was held before Commissioner Morrow on November 15, 1989, to determine the constitutional issues. Commissioner Morrow upheld the statute, finding it consistent with the Fourth Amendment and the right to privacy. He later issued an order directing HIV testing of the juvenile offenders, but then stayed this order pending appellate review. We accepted Division One's certification of this case.
ADJUDICATION/CONVICTION
As part of the public health chapter covering sexually transmitted diseases, RCW 70.24.340(1)(a) mandates HIV testing for all persons "[c]onvicted of a sexual offense under chapter 9A.44 RCW". Testing is to occur soon after sentencing *87 upon an order of the sentencing judge. RCW 70.24.340(2). All tests are to be performed by the local health department and must include both pre- and posttest counseling. RCW 70.24.340. Distribution of the test results is strictly limited to those persons with a genuine interest. RCW 70.24.105(2).
Appellants argue that RCW 70.24.340(1)(a) does not apply to juvenile sexual offenders, because the statute requires a "conviction" prior to mandatory HIV testing. Technically speaking, juveniles are not "convicted" of crimes, but rather "adjudicated" to have committed offenses. As a result, appellants contend, the Legislature's use of the word "convicted" evidences an intent to test only adult sexual offenders.
[1, 2] When statutory language is used in an unambiguous manner we will not look beyond the plain meaning of the words. Everett Concrete Prods., Inc. v. Department of Labor & Indus., 109 Wash. 2d 819, 822, 748 P.2d 1112 (1988). Unfortunately, however, such is not the case with the statute before us. The statute uses both the terms "convicted" and "offense" without differentiation. Subsection (1) of RCW 70.24.340 uses the term "convicted of", while subsection (3) states that the section applies to "offenses" a term inclusive of both adult and juvenile crimes.[1] Furthermore, the Legislature's use of "conviction" in statutes to refer to juveniles appears to be endemic. Numerous other statutes, including sections of the Sentencing Reform Act of 1981, RCW 9.94A, and the Juvenile Justice Act of 1977, RCW 13.40, use "convicted" to reference both adult and juvenile offenders. See, e.g., RCW 9.94A.030(9) ("`Conviction' means an adjudication of guilt".); RCW 9.94A.030(12)(b) ("Criminal history" includes a defendant's prior convictions in juvenile court.); RCW 13.40.280(4) (refers to the "convicted juvenile"); RCW 43.43.830(4) ("Conviction record" includes crimes committed while either an adult or juvenile.); RCW 46.20.342(2) (refers to the "conviction" of a juvenile); RCW 74.13.034(2) (refers to "convicted juveniles"). *88 In fact, several statutes use "convicted" specifically to reference juvenile sexual offenders. RCW 9.94A.360; RCW 9A.44.130(3)(a) ("the term `conviction' refers to adult convictions and juvenile adjudications"). It is readily apparent, therefore, that we cannot rely exclusively on the technical meaning of "convicted" to resolve this issue.[2]
Instead, it is necessary to turn to statutory construction to determine the meaning of this statute. Morris v. Blaker, 118 Wash. 2d 133, 143, 821 P.2d 482 (1992). In accomplishing this task, our primary directive is to adopt that interpretation which best advances the statute's legislative purpose. See, e.g., State v. Elgin, 118 Wash. 2d 551, 555, 825 P.2d 314 (1992).
The purposes of the mandatory HIV testing statute are broad:
The legislature declares that sexually transmitted diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state. The legislature finds that the incidence of sexually transmitted diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death.
RCW 70.24.015. By adopting this statute, the legislative intent was "to provide a program that is sufficiently flexible to meet emerging needs, deal[] efficiently and effectively with reducing the incidence of sexually transmitted diseases, and provide[] patients with a secure knowledge that information they provide will remain private and confidential." RCW 70.24.015.
[3] Interpreting RCW 70.24.340(1)(a) so as to include mandatory HIV testing of juvenile sexual offenders is consistent with the statute's broad public health policies.[3] The *89 statute potentially benefits both juveniles and society by making the offenders aware of their HIV status. Anonymous Fireman v. Willoughby, 779 F. Supp. 402, 417 (N.D. Ohio 1991). If a juvenile sexual offender is infected, the statute provides counseling, and an opportunity to adjust future behavior to avoid infecting others. A juvenile sexual offender who is aware of an infection might also be treated with AZT or other drugs to stall the onslaught of the disease. Government of V.I. v. Roberts, 756 F. Supp. 898, 903-04 (D.V.I. 1991). The victims of the juvenile sexual offender also benefit by learning whether they may have been exposed to the AIDS virus.
Excluding juvenile sexual offenders from the statute's operation would only thwart the testing statute's broad public health policies. There is no evidence that the Legislature intended to limit the effectiveness of the mandatory AIDS testing statute by narrowing its application to adult sexual offenders. Indeed, the legislative mandate to protect the health of victims, offenders, and society is better served when juvenile sexual offenders are included in RCW 70.24.340(1)(a)'s testing provisions.
Appellants rely heavily upon a recent Attorney General opinion, AGO 23 (1991), which concluded that RCW 70.24.340(1)(a) does not apply to juveniles. In reaching this conclusion, the AGO relied primarily upon In re Frederick, 93 Wash. 2d 28, 604 P.2d 953 (1980), which addressed the applicability of a general criminal statute to juvenile offenders. Because the HIV testing statute "impose[d] a disability or mandatory requirement, rather than a benefit, on a juvenile," the AGO concluded that Frederick limits the statute's application to adult offenders. AGO 23, at 4.
[4, 5] This reasoning is not persuasive. AGO 23 fails to recognize that the mandatory HIV testing statute is a public health law, not a criminal one. The testing statute does not define the elements of a crime, nor does anyone suggest that testing is imposed as an additional punitive measure. As such, special protections applicable to criminal statutes, like the rule of lenity, are not relevant. Moreover, the AGO misreads *90 Frederick. That case did not address the meaning of "convicted", but rather the meaning of "felony".[4] It held only that juveniles do not commit "felonies" they commit "offenses". Frederick, at 30. In contrast, the HIV testing statute does not use the word "felony"; it uses the broader term "offense", which does apply to juveniles.
In short, the Attorney General's reliance on Frederick is misplaced because the concerns that motivated the analysis in that case are not present here.[5] We therefore apply our normal rules of statutory construction and construe the testing statute to include juvenile sexual offenders.
FOURTH AMENDMENT
[6-8] Appellants argue that taking a blood sample for an HIV test violates constitutional prohibitions against unreasonable searches and seizures.[6]See U.S. Const. amend. 4; Const. art. 1, § 7. There is no doubt that the nonconsensual removal of blood constitutes a Fourth Amendment search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989); Schmerber v. *91 California, 384 U.S. 757, 767-68, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). Nonetheless, the Fourth Amendment does not prohibit all searches, but only unreasonable ones. Camara v. Municipal Court, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967). Although reasonableness often requires the existence of probable cause or a warrant, a "showing of individualized suspicion is not a constitutional floor". Skinner, 489 U.S. at 624. Instead, what is reasonable "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Skinner, at 619 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 87 L. Ed. 2d 381, 105 S. Ct. 3304 (1985)).
[9, 10] For searches outside the criminal context, the Supreme Court has developed the "special needs" doctrine. This doctrine applies "when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Skinner, at 619 (citations omitted). Such a situation existed in Skinner, where the Court sanctioned the use of urine and blood tests in an effort to prevent train accidents. The Court has also found special needs rendering warrant and probable cause requirements impractical in the supervision of probationers, the operation of schools, searches of highly regulated businesses, and the operation of prisons. Skinner, at 619-20. Numerous courts have found the special needs doctrine to be appropriate when analyzing nonconsensual HIV testing. See, e.g., Leckelt v. Board of Comm'rs of Hosp. Dist. 1, 909 F.2d 820, 832 (5th Cir.1990); Dunn v. White, 880 F.2d 1188, 1193 (10th Cir.1989), cert. denied, 493 U.S. 1059 (1990); Anonymous Fireman v. Willoughby, 779 F. Supp. 402, 417 (N.D. Ohio 1991); Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 1272, 267 Cal. Rptr. 666 (1990).
We agree with this approach. When evaluating nonconsensual HIV testing, this doctrine requires that we determine:
(1) whether the blood testing scheme arises from a "special need" beyond the needs of ordinary law enforcement and (2) if so, whether the intrusion of compulsory blood testing for AIDS, without probable cause or individualized suspicion that the *92 AIDS virus will be found in the tested person's blood, is justified by that need.
Johnetta J., 218 Cal. App.3d at 1274.
[11-14] As to the first question, several factors are relevant. First, the testing statute is not part of the criminal code; it is designed to protect the victim, the public, and the offender from a serious public health problem. Second, unlike the typical Fourth Amendment situation, the appellants are not being tested in an effort to gain evidence for a criminal prosecution. Third, a positive HIV test does not place the appellants at risk for a new conviction or a longer sentence. Finally, traditional standards which require individualized suspicion are impractical because HIV infected sexual offenders often have no outward manifestations of infection. Thus, we conclude that mandatory HIV testing of sexual offenders under RCW 70.24.340(1)(a) presents a special need. Accord Dunn, 880 F.2d at 1196; Love v. Superior Court, 226 Cal. App. 3d 736, 743, 276 Cal. Rptr. 660 (1990); Johnetta J., 218 Cal. App.3d at 1280.
The next step in the Skinner inquiry is to balance the individual's interest in avoiding testing against the government's interest in mandatory testing. In general, for individuals, the impact of a blood test is minimal. State v. Meacham, 93 Wash. 2d 735, 737, 612 P.2d 795 (1980). As the Supreme Court recognized in Winston v. Lee, 470 U.S. 753, 762, 84 L. Ed. 2d 662, 105 S. Ct. 1611 (1985), it is "society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity."[7]
When the State seeks to test a convicted criminal, the intrusion on individual interests is even more limited. Jones v. Murray, 962 F.2d 302, 307 (4th Cir.1992). Although such individuals do not forfeit their rights, their constitutional prerogatives are subject to "substantial limitations and restrictions". See Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990). For sexual offenders in particular, their expectation of privacy in *93 bodily fluids is greatly diminished because they have engaged in a class of criminal behavior which presents the potential of exposing others to the AIDS virus. As one commentator has explained,
Because AIDS can be transmitted through sexual contact, there is a direct nexus between the criminal behavior and the government's action. Therefore, the offender should reasonably expect that his blood will be tested for the virus. The assailant's own actions work to weaken his expectation of privacy.
Bernadette Pratt Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 Wash. L. Rev. 195, 207 (1992).
Despite this minimal expectation of privacy, we are nonetheless sensitive to the special concerns raised by mandatory HIV testing. Such testing presents not only the initial withdrawal of blood, but also the subsequent testing of that blood for a sexually transmitted disease. Government of V.I. v. Roberts, 756 F. Supp. 898, 901 (D.V.I. 1991). If the sexual offender tests positive, then he or she might suffer the well-documented gauntlet of discrimination facing infected persons. See generally Howell v. Spokane & Inland Empire Blood Bank, 117 Wash. 2d 619, 628, 818 P.2d 1056 (1991); Roberts, 756 F. Supp. at 902.
[15] These potential harms, however, are minimized in the case before us. The stigma a person faces as a result of a positive HIV test:
is a function of how widely the results are disseminated. The risk of stigmatic harm therefore speaks not to whether the search should transpire in the first instance, but rather to the extent to which the private medical facts learned from the procedure should be disclosed.
Roberts, 756 F. Supp. at 902. Washington's mandatory AIDS testing statute emphasizes the importance of privacy and confidentiality. RCW 70.24.015. The statute specifically limits the disclosure of HIV test results, RCW 70.24.105(2), and appellants do not allege how this limited disclosure might harm juvenile offenders. Thus, given this limited disclosure, we conclude that the testing presents "a minimal *94 Fourth Amendment intrusion." Johnetta J., 218 Cal. App.3d at 1279.
[16, 17] In contrast, the State's reasons for testing are substantial. Most notably, the State has a compelling interest in combating the spread of AIDS. Anonymous Fireman, 779 F. Supp. at 416. Control of a communicable disease is a valid and compelling exercise of the State's police power. Love, 226 Cal. App.3d at 740. Testing sexual offenders directly addresses this purpose. See People v. C.S., ___ Ill. App.3d ___, 583 N.E.2d 726 (1991), appeal denied, 602 N.E.2d 461 (1992).
[18] The State also has an interest in protecting the rights of victims. As the Johnetta J. court pointed out:
Patients are anxious to know the HIV status of the person with whom they have come into contact. This information is useful for both the treating physician and the patient. A positive test of the person who may have infected the patient would inform the physician that additional and more extensive monitoring of the patient's medical condition is warranted than would be the case were the results of the test negative. If the results of the HIV test of the source is negative, this information may be useful in helping to allay the concerns of the patient.
218 Cal. App.3d at 1266 (quoting Dr. William Drew, M.D.). Where a victim is left to wonder as to an attacker's HIV status, the "mental anguish suffered by the victim ... is real and continuing, and the intrusion upon defendant of a routine drawing of a blood sample is very minimal and commonplace." People v. Thomas, 139 Misc. 2d 1072, 1075, 529 N.Y.S.2d 429, 431 (Cy. Ct. 1988).
[19] A test can also aid in effective prison and probation management by alerting officials to a sexual offender's HIV status. "The outcome of a potential source's test affects the degree to which a person should undertake precautionary measures to ensure the virus is not spread to others." Roberts, 756 F. Supp. at 904. Testing can prepare officials to better protect other inmates. Moreover, when HIV status is known, a prisoner can receive appropriate treatment to possibly stall the onslaught of symptoms. This helps to further the State's constitutional "obligation to provide minimally adequate *95 medical care to those whom they are punishing by incarceration." Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir.1991).
[20] The State has a further interest in aiding a sexual offender who is potentially HIV positive. By providing pre- and posttest counseling, the State can minimize the impact of HIV status on the offender and protect future victims by helping an offender to alter behavior. Although there is no cure for AIDS, this fact does not justify an enforced ignorance of HIV status. The governmental interest supporting mandatory HIV testing "outweighs the psychological impact of the assailant's receipt of a positive test for HIV." Johnetta J., 218 Cal. App.3d at 1278.
[21] Appellants may be correct that only on occasion will testing reveal an HIV infected offender, and that an infected offender will not always pass the virus on to a victim. Nonetheless, the State's interest in testing is still substantial. Although an HIV test is not dispositive of either victim or offender HIV status, it is effective enough to justify its use. Johnetta J., 218 Cal. App.3d at 1280; Roberts, 756 F. Supp. at 903. Lack of perfection does not render a legislative scheme invalid. Although testing may be an ineffective use of state resources, it is not for the court to pass on the fiscal wisdom of this legislation. Johnetta J., 218 Cal. App.3d at 1285.
[22] Appellants also argue that the statute improperly includes behavior which is incapable of passing the virus. For example, some of the cases before us involve no passing of bodily fluids. However, the Legislature has reasonably determined that sexual offenders are a high-risk group for exposing others to the AIDS virus. See People v. C.S., ___ Ill. App.3d ___, 583 N.E.2d 726, 729 (1991), appeal denied, 602 N.E.2d 461 (1992). The fact that the particular act for which an offender was prosecuted involved a minimal risk of exposure to HIV does not remove the State's interest in testing. First, the ambiguous nature of the contacts between offender and victim enforces the legislative judgment to test all offenders. Given the youth of the victims and the trauma imposed by the *96 offender, it is often difficult to learn whether bodily fluids passed during the assault. Second, a legislative desire to protect the victim, offender, and society supports testing. Sexual assaults are seldom isolated events. When an offender is finally caught, it is possible that he or she has already committed numerous other sexual assaults or may commit more assaults in the future. These contacts all potentially involve passing the AIDS virus. Finally, even though the probability of passing the AIDS virus is low, because there is no cure for AIDS, the potential harm from an infection is extremely high. Leckelt, 909 F.2d at 829. With all this in mind, it is within the legislative prerogative to declare mandatory testing for all members of this high-risk group.
We recognize that the constitutional arguments raised here involve highly sensitive and difficult issues. As such, we have attempted to formulate a careful and reasoned approach. Still, the concurrence/dissent claims that there is no limiting principle in the majority opinion. It asks: "what is to prevent the mandatory testing of other groups whose individual members are not charged and convicted of criminal conduct?" Concurrence/dissent, at 103. Fortunately, the question incorporates the answer. The holding in this case applies only to convicted sex offenders who, as discussed above, are subject to decreased expectations of privacy. See supra at 91-94. There are no other "groups" included either explicitly or implicitly in our holding.
[23] In sum, we hold that the mandatory HIV testing of sexual offenders comports with the Fourth Amendment. Under Skinner, this testing constitutes a special need which is "obvious and compelling." Love, 226 Cal. App.3d at 743; accord Dunn, 880 F.2d at 1193-94; Johnetta J., 218 Cal. App.3d at 1280.
RIGHT TO PRIVACY
[24-26] Appellants further argue that mandatory HIV testing violates the constitutional right to privacy. We have recognized two types of privacy: the right to nondisclosure of intimate personal information or confidentiality, and the right to autonomous decisionmaking. O'Hartigan v. Department *97 of Personnel, 118 Wash. 2d 111, 117, 821 P.2d 44 (1991); Bedford v. Sugarman, 112 Wash. 2d 500, 509, 772 P.2d 486 (1989). The former may be compromised when the State has a rational basis for doing so, O'Hartigan, at 117, while the latter may only be infringed when the State acts with a narrowly tailored compelling state interest.[8]State v. Farmer, 116 Wash. 2d 414, 429, 805 P.2d 200, 812 P.2d 858 (1991).
Although the RCW 70.24.340(1)(a) testing scheme implicates the confidentiality branch of privacy, the intrusion is minimal due to the limited disclosure of test results. As discussed above, the intrusion on one's privacy is a direct result of how widely test results are disseminated. Here, a concern for confidentiality is an inextricable part of the testing scheme:
The legislature further finds that sexually transmitted diseases, by their nature, involve sensitive issues of privacy, and it is the intent of the legislature that all programs designed to deal with these diseases afford patients privacy, confidentiality, and dignity.... It is therefore the intent of the legislature to provide a program that ... provides patients with a secure knowledge that information they provide will remain private and confidential.
RCW 70.24.015. Given the strong state interest in testing, we find no conflict with this branch of privacy.
Nor do we find conflict with the autonomy branch of privacy. The nonconsensual taking of blood implicates the personal autonomy branch of privacy. Farmer, at 429. Nonetheless, the various compelling state interests served by RCW 70.24.340(1)(a) legitimate whatever impact it has on personal autonomy rights.[9] As discussed above, mandatory testing of sexual offenders protects society from a communicable disease, safeguards the interests of victims, facilitates *98 the efficient operation of prisons, and provides opportunities to treat and counsel offenders themselves. Moreover, the statute is narrowly tailored to meet these interests because it is aimed at a high-risk group, and it limits disclosure of test results. This limited intrusion on an offender's privacy rights is permissible. Farmer, 116 Wn.2d at 430; Dunn, 880 F.2d at 1196; Government of V.I. v. Roberts, 756 F. Supp. 898, 903 (D.V.I. 1991); see also Anonymous Fireman v. Willoughby, 779 F. Supp. 402, 418 (N.D. Ohio 1991).
[27] Thus, we hold that the testing of sexual offenders under RCW 70.24.340(1)(a) is reasonable under the Fourth Amendment because substantial governmental interests are served by testing and the disclosure of those test results to a limited group of people eclipses the defendants' interests in preventing the search. Testing is also consistent with the right to privacy. We are supported in these conclusions by a majority of other courts which have dealt with the issue.[10] We therefore affirm the commissioner, and remand the case for HIV testing of the juvenile sexual offenders.
ANDERSEN, C.J., and BRACHTENBACH, SMITH, and GUY, JJ., concur. UTTER, J. (concurring in part, dissenting in part)
I disagree with the majority's conclusion that AIDS testing of *99 a sex offender is constitutionally valid even when that individual has not engaged in conduct capable of transmitting the virus. I would hold that AIDS testing of sex offenders is only permissible where there is probable cause to believe that an offense has been committed involving the transfer of blood, semen, or other bodily fluid capable of transmitting the AIDS virus.
In this case, the majority abandons one of the core elements of the Fourth Amendment, significantly diminishing the protection afforded by that amendment, on the grounds that sexual offenders are a "high-risk" group for transmission of the AIDS virus. While the majority's recognition of the grave public threat posed by AIDS is admirable, it is precisely when the public need seems most dire that we must most resolutely defend those freedoms which lie at the core of our society. As Justice Thurgood Marshall so aptly reminded us:
History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.... [W]hen we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.
(Citations omitted.) Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 635, 103 L. Ed. 2d 639, 109 S. Ct. 1402, 1422 (1989) (Marshall, J., dissenting). Posterity will judge us not only in how effectively we as a society respond to crisis posed by the AIDS virus, but also by the extent to which we respect the liberty and dignity of our citizens as we face the challenge posed by AIDS.
I
THE FOURTH AMENDMENT
The majority is correct in concluding AIDS testing of sexual offenders should be analyzed under the "special needs" doctrine described by the United States Supreme Court in Skinner. Nonetheless, I disagree with both the majority's interpretation of the "special needs" inquiry and with its application to the facts of the present case.
*100 A
The Fourth Amendment to the federal constitution protects the citizens of this country against "unreasonable searches and seizures". U.S. Const. amend. 4. The touchstone of this protection is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." California v. Acevedo, ___ U.S. ___, 114 L. Ed. 2d 619, 111 S. Ct. 1982, 1991 (1991) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978)).
One of those limited exceptions is the "special needs" test described in Skinner. Under this test, governmental agencies may dispense with the ordinary warrant and probable cause requirements when those requirements impede the pursuit of an important governmental objective. In Skinner, for example, the United States Supreme Court upheld a mandatory drug testing scheme for railroad employees that did not provide for individualized suspicion prior to testing.
In describing this "special needs" analysis, the Skinner Court stated: "When faced with ... special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements". 489 U.S. at 619.[11]
The "special needs" analysis therefore focuses not only on the need for the government to undertake a particular type of search, but also upon the need for the government to undertake such a search without the ordinary warrant and probable cause requirements. In other words, it is not only the special need to search that is at issue, but also the special need to search without a warrant or probable cause.
*101 The holding of Skinner reflects this understanding of the "special needs" analysis. In Skinner, the Court focused its attention on the need to test without a warrant or probable cause, not simply on the need to test in the first place. The mandatory testing program was not upheld merely because of the grave need to ensure public safety, but rather because warrant and probable cause requirements would have been impractical under the circumstances. After identifying the need for safety, the Court described its inquiry: "The question that remains, then, is whether the Government's need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion." 489 U.S. at 621.
In applying the test to the warrant requirement, the Skinner Court balanced the private interests in a warrant requirement against the impact such a requirement would have on the pursuit of public safety. In particular, the Court directed its inquiry to the extent to which a warrant requirement would "frustrate the governmental purpose behind the search.'" 489 U.S. at 623 (quoting Camara v. Municipal Court, 387 U.S. 523, 533, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967)). See also Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) (warrantless blood test for alcohol permissible because delay would allow alcohol to be physically absorbed, thus destroying evidence). After weighing these interests, the Court concluded the warrant requirement would be impractical under the circumstances.
The Court analyzed the probable cause requirement in similar fashion by asking whether such a requirement would place the government's interest "in jeopardy". 489 U.S. at 624. Ultimately, the Skinner Court dispensed with the probable cause requirement because "[i]t would be unrealistic, and inimical to the Government's goal of ensuring safety in rail transportation, to require a showing of individualized suspicion in these circumstances." 489 U.S. at 631.
This distinction between policy analysis of the testing itself and analysis of the warrant and probable cause requirements is more than a distinction without a difference. Simply *102 because a pressing need for testing exists does not mean that a pressing need for testing without a warrant or probable cause exists. In Barlow v. Ground, 943 F.2d 1132 (9th Cir.1991), for example, the Ninth Circuit held an otherwise reasonable search invalid for failure to obtain a warrant. The plaintiff, Barlow, had bitten two police officers during his arrest. Concerned about the possibility of AIDS, the police administered a nonconsensual blood test without a warrant. Later, the police attempted to justify the search on safety and health grounds. The Ninth Circuit rebuffed their efforts. It noted that "[i]t makes no difference to the officers' health whether Barlow was tested immediately, without a warrant, or a short time later pursuant to a warrant." 943 F.2d at 1139. Therefore, the police could show no reason for an immediate, warrantless search.
The Skinner framework thus appears clear enough. Even after the identification of a "special need", the Fourth Amendment requires a demonstration that a warrant or probable cause requirement is impractical. The "special needs" balancing should therefore compare the effect of such requirements on both an individual's privacy interests and upon the pursuit of the government's "special need".
B
The majority, however, applies a different version of this analysis. According to the majority, the essence of the "special needs" inquiry is "to balance the individual's interest in avoiding testing against the government's interest in mandatory testing." Majority opinion, at 92. In stating the inquiry in this fashion, the Skinner analysis of the practicality of the probable cause requirement is mistaken for a policy evaluation of the need for the testing itself.
The majority's analysis of the competing interests at stake tracks its understanding of the "special needs" analysis. After discussing the "minimal Fourth Amendment intrusion" of blood testing, the majority describes the State's interests in testing. These interests are "a compelling interest in combating the spread of AIDS", majority opinion, at *103 94, "protecting the rights of victims", majority opinion, at 94, "effective prison and probation management", majority opinion, at 94, and providing assistance to HIV-positive sex offenders, majority opinion, at 95.
As I outline in section C below, I do not believe these interests justify the sort of broad-gauged testing authorized by RCW 70.24.340. At this stage, however, the important analytic point is that none of these interests speak to the impracticality of probable cause. Each of these interests may provide justification for a testing program, even a nonconsensual testing program, but they do not explain a testing program without probable cause.
Following its "special needs" analysis, the majority does attempt to defend the statute's disturbing omission of probable cause. Principally, it argues that "the Legislature has reasonably determined that sexual offenders are a high-risk group for exposing others to the AIDS virus." Majority opinion, at 95. In essence, even if there is no reason to believe that a sexual offender transmitted bodily fluids in this particular instance, it is reasonable to assume they did so in the past (or will do so in the future) and therefore we can force them to undergo a test.
I cannot accept the logical implications of such a view. In essence, the majority has concluded that the Legislature need merely make a "reasonable determination" of risk in order to require mandatory testing. In this case, that determination means the mandatory testing of sex offenders. The majority's rationale, however, could be extended much further. If all the Legislature must do is make a "reasonable determination" of risk in order to require testing, what is to prevent the mandatory testing of other groups whose individual members are not charged and convicted of criminal conduct? Because I perceive no limiting principle to the majority's analysis, I cannot accept its reading of the Fourth Amendment. While the majority does specifically limit its holding, the inescapable implications to be drawn from the holding cannot be so limited.
*104 Fourth Amendment "special needs" analysis should be based on the practicality of a probable cause requirement and not our "assumptions" about whether individuals may or may not be dangerous. In Skinner, drug testing without probable cause was allowed because it would have been impractical, not because Congress "reasonably assumed" railway employees to belong to a "high-risk" group.
The majority also attempts to defend the breadth of the statute due to the "ambiguity" of the contacts between offender and victim. Majority opinion, at 95-96. In this respect, it is useful to remember we are not considering proof, but merely probable cause. To require testing, the authorities would not need to prove transmission, but merely establish probable cause. Furthermore, the type of finding required by probable cause would be no different from a multitude of the factual findings we expect our trial courts to make daily.
C
Even if we accept the majority's view of "special needs" analysis, the interests it identifies are insufficient to justify the broad-gauged mandatory testing it seeks to uphold.
First, the majority argues "the State has a compelling interest in combating the spread of AIDS." Majority opinion, at 94. This argument, like the justification for the statute's lack of probable cause, proves too much. If "combating the spread of AIDS" is compelling and blood tests are only minimally intrusive,[12] then conceivably the Legislature can constitutionally choose to require mandatory testing for any individual whether charged and convicted or not.
The majority next argues "[t]he State also has an interest in protecting the rights of victims." Majority opinion, at 94. It points out, appropriately, that victims left to wonder about their attacker's HIV status suffer real mental anguish. This *105 concern is completely misplaced, however, in cases where there is no possibility of HIV infection. When there is no possibility of infection, the State's interest in protecting the victim of a sexual offender from AIDS is no greater than its interest in protecting the victim of a mugger or an automobile thief whose offense poses no possibility of HIV infection. Most importantly, such an interest cannot be said to be generally compelling. Such an interest would be compelling where there was a possibility of infection, as in the case where there was probable cause to believe there was a transmission of bodily fluids.
The majority also argues testing can "aid in effective prison and probation management by alerting officials to a sexual offender's HIV status." Majority opinion, at 94. It may be true that knowledge of the HIV status of prison inmates might serve the compelling state interest in prison management; however, the testing authorized by RCW 70.24.340(1)(a) is not associated in any fashion with incarceration.[13] In fact, RCW 70.24.340 clearly requires testing when there is no possibility of incarceration.
The majority's concern with probation management is also unpersuasive. The majority does not explain how knowledge that a given individual is HIV positive will substantially assist a probation officer in the performance of his or her duties. While it is true that any information about a probationer may be useful to a probation officer, that alone does not indicate the presence of a compelling state interest.
Lastly, the majority contends "[t]he State has a further interest in aiding a sexual offender who is potentially HIV positive." Majority opinion, at 95. Again, this type of argument proves too much. The State's interest in assisting a sexual offender who is potentially HIV positive is no greater than its interest in assisting any other sort of criminal *106 offender. Unless we are prepared to permit the Legislature to demand mandatory testing of all criminal offenders, we cannot accept the state interest put forth by the majority as compelling.
D
I believe an appropriate application of the "special needs" test would require the existence of probable cause to believe that transmission of bodily fluids occurred before nonconsensual HIV testing could take place.
The first step is to evaluate the individual's interest in a probable cause requirement. In doing so, we should be mindful of the invasiveness of an AIDS test. Although the United States Supreme Court has indicated that in some instances extraction of blood is minimally invasive for Fourth Amendment purposes,[14] AIDS testing is different. First, the analysis of an individual's blood compromises the individual's privacy interest in his or her medical condition. This court has repeatedly emphasized that individuals have an important privacy interest in medical information. Howell v. Spokane & Inland Empire Blood Bank, 117 Wash. 2d 619, 628, 818 P.2d 1056 (1991); Bedford v. Sugarman, 112 Wash. 2d 500, 509-10, 772 P.2d 486 (1989).[15]
More importantly, AIDS testing, unlike blood alcohol or drug testing, can have a devastating impact on an individual's life. See Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 Wash. L. Rev. 195, 208-09 (1992). The psychological impact on the individual has been compared *107 to a death sentence. People v. Thomas, 139 Misc. 2d 1072, 1075, 529 N.Y.S.2d 429, 431 (Cy. Ct. 1988); see also Glover v. Eastern Neb. Comm'ty Office of Retardation, 686 F. Supp. 243, 248 (D. Neb. 1988) (describing patients' reactions to a positive AIDS test as "devastation" that may lead to suicide), aff'd, 867 F.2d 461 (8th Cir.), cert. denied, 493 U.S. 932 (1989).
The social consequences can be equally devastating. A positive AIDS test may lead to discrimination in employment, education, housing, and medical treatment. Howell v. Spokane & Inland Empire Blood Bank, 117 Wash. 2d 619, 628, 818 P.2d 1056 (1991); Note, Compulsory AIDS Testing of Individuals Who Assault Public Safety Officers: Protecting the Police or the Fourth Amendment?, 38 Wayne L. Rev. 461, 481 (1991-1992). The impact of a positive AIDS test on all aspects of a person's life is severe. Thus, individuals have a strong interest in restricting mandatory government AIDS testing. The probable cause requirement serves to protect this interest by limiting the opportunity for government imposed testing to those circumstances when transmission of the AIDS virus is possible.
The need for the probable cause requirement is not minimized by the provisions for limited disclosure in RCW 70.24.105. The extent of disclosure does not diminish the psychological shock of a positive AIDS test. The long list of those other than the victim who can obtain the test results state or local public health officers, claims management personnel, social services workers, and anyone who can demonstrate good cause, only to name a few indicates that disclosure may not in fact be so limited. Even with limited disclosure, an inherent difficulty in keeping test results confidential remains. See Note, AIDS, Rape, and the Fourth Amendment: Schemes for Mandatory AIDS Testing of Sex Offenders, 43 Vand. L. Rev. 1607, 1633 (1990) (noting that many believe that there are too many opportunities for disclosure even where disclosure is restricted). One leak can have devastating consequences for an individual's privacy. Jane Doe v. Barrington, 729 F. Supp. 376, 378-79 (D.N.J. *108 1990) (disclosure of Doe's HIV-positive status by police officer to a neighbor culminated in a maelstrom of public hysteria).
With respect to the government's interest, a probable cause requirement would not be impractical under the circumstances. While I agree the State has a powerful interest in protecting the victims of sexual offenders from AIDS,[16] AIDS is transmitted "only by contact of open wounds or body cavities with blood, semen, or vaginal secretions usually in sexual relations, by infusion or innoculation [sic] of blood in transfusions or intravenous needle-sharing activities or prenatally." Harris v. Thigpen, 727 F. Supp. 1564, 1567 (M.D. Ala. 1990), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir.1991); see also Friedland & Klein, Transmission of the Human Immunodeficiency Virus, 317 New Eng. J. Med. 1125, 1132 (Oct. 29, 1987) (noting that "[o]nly blood and semen have been directly implicated in transmission, and transmission by vaginal fluid and breast milk probably occurs"). Thus, the State's interest in protecting the victim of sexual assaults from AIDS is only implicated where there was a transmission of bodily fluids.
The Eighth Circuit has recognized the limited nature of the State's interest in this regard. In Glover v. Eastern Neb. Comm'ty Office of Retardation, 867 F.2d 461 (8th Cir.), cert. denied, 493 U.S. 932 (1989), that court held nonconsensual AIDS testing was unconstitutional where the risk of transmission was negligible or nonexistent. A Nebraska administrative agency had created a personnel policy requiring certain employees who serviced the needs of the retarded to submit to mandatory AIDS testing. The Eighth Circuit held that the risk of transmission to the agency's mentally retarded clients was negligible and therefore did not justify requiring employees to submit to an AIDS test. 867 F.2d at 464. Compare Leckelt v. Board of Comm'rs of Hosp. Dist. 1, 909 F.2d 820 (5th Cir.1990) (mandatory testing permissible where nurse *109 that lived with AIDS patient had repeated opportunities to exchange bodily fluids with patients). See also Note, Compulsory AIDS Testing of Individuals Who Assault Public Safety Officers: Protecting Police or the Fourth Amendment?, 38 Wayne L. Rev. 461, 479 (1991-1992) (arguing that AIDS testing only meets constitutional standards when an individual's conduct creates "a genuine risk of AIDS transmission").
Significantly, all of the cases cited by the majority where AIDS testing of sexual offenders has been approved involved the passage of bodily fluids. See People v. Thomas, 139 Misc. 2d 1072, 529 N.Y.S.2d 429 (Cy. Ct. 1988) (ordering blood test where sexual intercourse and oral sodomy); People v. Cook, 143 A.D.2d 486, 532 N.Y.S.2d 940 (ordering AIDS test of convicted rapist), appeal denied, 73 N.Y.2d 786 (1988); Government of V.I. v. Roberts, 756 F. Supp. 898 (D.V.I. 1991) (ordering testing of rapist). A legitimate concern for the psychological and physical well-being of the victims in these cases led to an approval of the test.
The probable cause requirement also does not impede the government's objectives because trial courts are perfectly capable of making a finding as to whether or not bodily fluids passed. See Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 1280, 267 Cal. Rptr. 666, 681 (1990) (holding that testing of a person who assaults a police officer is valid "if there is probable cause to believe the officer has been exposed to the assailant's bodily fluids"). (Italics mine.) Trial courts can make this determination, allowing testing where there is probable cause to believe the assailant committed an act which poses a risk of exposing a victim to the AIDS virus.
Given the strong individual interest in the probable cause requirement, and the absence of important reasons to dispense with that requirement, I do not find such a requirement impractical under the circumstances. Consequently, I would limit mandatory AIDS testing to cases where there is probable cause to believe transmission of bodily fluids took place.
II
PRIVACY
An analysis of the constitutional privacy issues in this case compels the same result.
*110 The majority correctly notes that there are two types of privacy: the right to nondisclosure of personal information and the right to autonomous decisionmaking. Bedford v. Sugarman, 112 Wash. 2d 500, 509, 772 P.2d 486 (1989). I disagree with the majority's conclusion that rational basis review is appropriate in evaluating the informational privacy claim. See Thorne v. El Segundo, 726 F.2d 459, 470 (9th Cir.1983), cert. denied, 469 U.S. 979 (1984); United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir.1980); O'Hartigan v. Department of Personnel, 118 Wash. 2d 111, 127-28, 821 P.2d 44 (1991) (Utter, J., concurring in part, dissenting in part); see also Note, The Constitutional Protection of Informational Privacy, 71 B.U.L. Rev. 133, 135 (1991) (arguing infringements in informational privacy implicate a fundamental right and should be subjected to intermediate scrutiny). Using rational basis review is particularly inappropriate because an individual's privacy interest in his or her HIV status is great, given the sensitivity of the information. See L. Tribe, American Constitutional Law § 15-16, at 1394-95 (2d ed. 1988) (noting the devastating consequences of disclosure).
Nonetheless, it is unnecessary to inquire at length as to whether AIDS testing of offenders where no bodily fluids have passed violates informational privacy, because it violates the other aspect of privacy, the right to personal autonomy. The nonconsensual taking of blood for AIDS testing implicates the personal autonomy branch of privacy, which is a fundamental right triggering strict scrutiny. State v. Farmer, 116 Wash. 2d 414, 429, 805 P.2d 200 (1991).
Although the majority does acknowledge that strict scrutiny is appropriate for analyzing the autonomy rights of privacy, it fails to apply that test correctly. Therefore, it reaches the erroneous conclusion that AIDS testing is appropriate even where there is no passage of bodily fluids.
The majority correctly notes that where the State invades an individual's privacy, it has the burden of showing a compelling governmental interest that justifies the invasion, that the means used are narrowly tailored to meet that interest. Majority, at 96-97. In addition, the impact on a *111 fundamental right cannot be unduly burdensome, i.e., government must use a less intrusive or restrictive method to achieve its interest where possible. See Winston v. Lee, 470 U.S. 753, 766-67, 84 L. Ed. 2d 662, 105 S. Ct. 1611, 1619-20 (1985) (no need to retrieve bullet from defendant's body where other substantial evidence available to convict him); Zablocki v. Redhail, 434 U.S. 374, 389, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978) (holding restriction on marriage unconstitutional where a state had other, less onerous means to realize its interests); Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 456, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977) (holding the Presidential Recordings and Materials Preservation Act represented the least intrusive manner to promote the government's interest).
The State's interest in notifying the victim is compelling, and the means are narrowly tailored to achieve that end; Although it might be argued that testing the victim would be less intrusive than the offender, I reject that argument because of the long latency period before the virus could be detected in the victim.[17]
If the victims in this case have not suffered a contact that poses a risk of transmitting AIDS, the State's sole residual interest is in limiting the spread of the virus.[18] Though this may be a compelling interest, nonconsensual AIDS testing is *112 neither narrowly tailored nor the least intrusive means for the State to realize this interest.
First, the mechanism the State has chosen to further its interest is not narrowly tailored. There is no evidence that the juveniles here are part of a high-risk group. Certainly their conduct prior to the offenses they committed does not so indicate. The majority simply accepts the Legislature's sweeping judgment that all of those who are convicted of committing sex offenses should be tested. The majority's approach is more consistent with rational basis review, not the strict scrutiny we must apply when a fundamental right, such as privacy, is impacted.
In addition, because AIDS testing infringes on a fundamental right, the State is obliged to use means which are the least destructive of individual liberty to achieve its goal. Other less intrusive means exist for the State to realize its interest in checking the spread of the AIDS virus. For example, the counseling already provided for in RCW 70.24.340(1) is an unintrusive way for the State to achieve its interest. Counseling can teach offenders about the AIDS virus and the risks of contracting or transmitting it.
Therefore, in the absence of a transfer of bodily fluids that poses a risk of transmitting AIDS, the State has failed to demonstrate that AIDS testing is either narrowly tailored or the least intrusive means for realizing its interest.
III
CONCLUSION
I would remand this case to the trial court to determine whether there was probable cause that any of these juvenile offenders passed bodily fluids to their victims that could give rise to the AIDS virus. An AIDS test should only be performed if the trial court determines that such contact did occur.
JOHNSON, J., concurs with UTTER, J.
Reconsideration denied April 29, 1993.
NOTES
[1] Under the Juvenile Justice Act of 1977, an offense is defined as "an act designated a violation or a crime if committed by an adult under the law of this state". RCW 13.40.020(15).
[2] Ironically, appellants' own brief for Commissioner Morrow states that "[t]he Defendants in this action have been convicted of a sex offense under RCW 9A.44." (Italics ours.) Clerk's Papers, at 8.
[3] The broad public health purposes of the testing statute also comport with those of the Juvenile Justice Act of 1977, RCW 13.40. See generally RCW 13.40.010(2) (act seeks to protect public and "[p]rovide [for] necessary treatment, supervision, and custody for juvenile offenders").
[4] At issue was the first degree escape statute which includes the element that a person must be "detained pursuant to a conviction of a felony". RCW 9A.76.110.
[5] Application of the HIV testing statute to juveniles does not result in the type of detriments which were present in Frederick. First, the juvenile sexual offenders will not face additional offenses on their records, nor will they be given further detention or a monetary fine. Second, their liberty interests are only slightly impacted, given the limited intrusion of a blood test. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 625, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989). Because it does not impose a penalty, applying HIV testing to juvenile sexual offenders does not change the nature of the "punishment to be meted out to the juvenile offender after the commission of the offense." State v. Bird, 95 Wash. 2d 83, 91, 622 P.2d 1262 (1980) (Dolliver, J., dissenting); see also State v. Schaaf, 109 Wash. 2d 1, 7-8, 743 P.2d 240 (1987).
[6] To support this proposition, appellants primarily cite federal and state cases interpreting the federal constitution. Because the parties have not briefed nor asked for an independent construction of the state constitutional provision based upon the factors established in State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808, 76 A.L.R. 4th 517 (1986), we will interpret Const. art. 1, § 7 using the federal Fourth Amendment analysis. Clark v. Pacificorp, 118 Wash. 2d 167, 192 n. 13, 822 P.2d 162 (1991).
[7] In fact, one court has observed that Skinner "relegate[s] blood testing to a realm of lesser protection under the Fourth Amendment." Johnetta J., 218 Cal. App.3d at 1277.
[8] The fact that the current case involves juveniles is of no special relevance, because the rights of juveniles are prima facie coextensive with those of adults. State v. Koome, 84 Wash. 2d 901, 904, 530 P.2d 260 (1975).
[9] Unlike the situation where the government attempts to test an innocent party, the individuals to be tested in the current case labor under a decreased expectation of privacy. See supra at 92-94. The right of privacy does not exist in a vacuum distinct from Fourth Amendment expectations of privacy.
[10] See, e.g., Leckelt v. Board of Comm'rs of Hosp. Dist. 1, 909 F.2d 820 (5th Cir.1990); Dunn v. White, 880 F.2d 1188 (10th Cir.1989), cert. denied, 493 U.S. 1059 (1990); Anonymous Fireman v. Willoughby, 779 F. Supp. 402 (N.D. Ohio 1991); Government of V.I. v. Roberts, 756 F. Supp. 898 (D.V.I. 1991); Harris v. Thigpen, 727 F. Supp. 1564 (M.D. Ala. 1990), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir.1991); Love v. Superior Court, 226 Cal. App. 3d 736, 276 Cal. Rptr. 660 (1990); Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 267 Cal. Rptr. 666 (1990); People v. C.S., ___ Ill. App.3d ___, 583 N.E.2d 726 (1991), appeal denied, 602 N.E.2d 461 (1992); People v. Cook, 143 A.D.2d 486, 532 N.Y.S.2d 940, appeal denied, 73 N.Y.2d 786 (1988); People v. Thomas, 139 Misc. 2d 1072, 529 N.Y.S.2d 429 (Cy. Ct. 1988). But see Walker v. Sumner, 917 F.2d 382, 388 (9th Cir.1990) (reversing grant of summary judgment due to existence of disputed material fact); Glover v. Eastern Neb. Comm'ty Office of Retardation, 867 F.2d 461 (8th Cir.) (under facts of case, AIDS testing of social workers was unreasonable search), cert. denied, 493 U.S. 932 (1989).
[11] This focus on the warrant and probable cause requirements was echoed in the companion case to Skinner. In National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989), the Court described the test as follows: "[W]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion". 489 U.S. at 665-66.
[12] "[I]t is `society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity.'" Majority opinion, at 92 (quoting Winston v. Lee, 470 U.S. 753, 762, 84 L. Ed. 2d 662, 105 S. Ct. 1611 (1985)).
[13] Furthermore, the limitation of the statute to sexual offenders suggests that prison management was not in fact the concern motivating the Legislature in enacting RCW 70.24.340(1)(a).
[14] See, e.g., Skinner, 489 U.S. at 625, 109 S. Ct. at 1417 (blood, breath, and urine tests for drugs and alcohol not intrusive).
[15] Even those incarcerated in prison retain a significant privacy interest in their medical information. See Nolley v. County of Erie, 776 F. Supp. 715, 731 (W.D.N.Y. 1991) (holding prison inmates have a constitutional right to privacy that includes protection from unwarranted disclosure of their HIV status). John Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (prison inmate has a right to privacy in his AIDS diagnosis); Woods v. White, 689 F. Supp. 874 (W.D. Wis. 1988) (individual who had been convicted and imprisoned retains constitutional right to privacy), aff'd, 899 F.2d 17 (7th Cir.1990).
[16] As I have discussed above, the court upholds the statute on the broader grounds of limiting the spread of AIDS, as well as the "reasonable assumption" that sexual offenders are "high risk" to spread AIDS. As I have already detailed my dissatisfaction with those grounds, I will not repeat my comments here.
[17] A newly infected victim will not test positive until at least 6 to 12 weeks after the date of exposure, and possibly longer. Blumberg, Transmission of the AIDS Virus Through Criminal Activity, 25 Crim. L. Bull. 454, 460 (1989).
[18] The other reasons listed by the majority, the management of correctional facilities and aiding the offender, are not legitimate, and do not merit consideration.
First, because it is unclear from the record that the juveniles are or will be in a correctional facility, this is not a legitimate reason for allowing the test. In addition, the State has not argued that a correctional facility in the state will actually use this information for any valid purpose.
Second, the State's interest in the offender's well-being is severely limited, given the degree of intrusion into the individual's right of privacy and right to be free from bodily invasion. See In re Colyer, 99 Wash. 2d 114, 120, 660 P.2d 738 (1983) (recognizing a terminally ill patient's constitutional right of privacy that encompasses the right to refuse treatment). In addition, the State can utilize a less intrusive means, through counseling and education, to achieve its interest in assisting the offender.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2896807/
|
NO. 07-07-0481-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 20, 2008
______________________________
MICHELLE SMITH, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;
NO. 4839; HONORABLE DAVID McCOY, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Michelle Smith, appeals the trial court’s order placing her on two years
deferred adjudication for the offense of tampering with governmental record. Appellant
presents one issue contending the trial court erred by refusing to grant her motion to
dismiss the indictment based on her assertion that the indictment failed to allege the
commission of a crime. Disagreeing with Appellant’s contention, we affirm.
Background
On June 29, 2005, Appellant was indicted for tampering with a governmental record
pursuant to § 37.10 of the Texas Penal Code. The indictment charged Appellant, in
pertinent part, as follows:
Michelle Smith . . . did then and there knowingly make a false entry in a
governmental record, to-wit: surety bond, said false entry being that the
defendant has property in this State liable to execution worth forty thousand
dollars.
The indictment was filed in the 100th District Court of Childress County, Texas. On
January 16, 2007, Appellant filed a motion to dismiss the indictment for failure to allege the
commission of a crime. At a hearing held on October 22, 2007, the trial court denied
Appellant’s motion and accepted her plea of no contest. As a condition of her plea,
Appellant reserved her right to appeal the trial court’s denial of her motion to dismiss.
During her plea a Stipulation as to Evidence was filed wherein Appellant admitted that she
presented two surety bonds to the Childress County Sheriff which contained her oath as
surety, that she had non-exempt and unencumbered property in Texas worth forty
thousand dollars, and that said statement was false.1
1
Appellant further stipulated that she was married to the Childress County Sheriff
at the time she presented the surety bonds in question.
2
Discussion
I. Construction of Appellant’s Issue
At the outset, we must attempt to construe the issue presented by Appellant.
Appellant contends the trial court abused its discretion by refusing to grant her motion to
dismiss based on her assertion that the State’s indictment “failed to allege the commission
of a crime.” On the one hand, if we construe that issue as contending the indictment failed
to allege the commission of a felony, then we must address certain jurisdictional issues,
including the waiver of indictment defects. On the other hand, if we construe that issue as
contending the indictment failed to allege the commission of any offense (i.e. a crime), then
we are faced with a different set of considerations, i.e., whether Appellant would have been
entitled to a directed verdict of acquittal under any construction of the indictment. Based
upon a reading of the motion to dismiss, the arguments of counsel, and the relief
requested, it is apparent that Appellant is contending that she is entitled to a dismissal of
the indictment because the allegations contained in the indictment, even if true, failed to
allege the commission of an offense. With this construction in mind, we will first address
the issue of the trial court’s subject-matter jurisdiction before addressing Appellant’s
contention that the indictment failed to allege the commission of an offense.
3
II. Jurisdiction of the Trial Court
Where, as here, the record itself raises a question as to the trial court’s subject-
matter jurisdiction, we must address that issue, sua sponte, before proceeding to any other
issue. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other
grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App. 2002)(threshold issue of
jurisdiction must be disposed of before addressing substantive issues because subject-
matter jurisdiction cannot be conferred by agreement of the parties, but must be vested in
a court by constitution or statute). Where there is no jurisdiction, the power of the court to
act is “as absent as if it did not exist”; Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Crim.App.
1980) (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964)), and any
order or judgment entered by a court lacking jurisdiction is void. Nix v. State, 65 S.W.3d
664, 668 (Tex.Crim.App. 2001); Gallagher v. State, 690 S.W.2d 587, 589 n.1
(Tex.Crim.App. 1985).
Under § 37.10 of the Penal Code, a person commits the offense of tampering with
a governmental record if he or she “knowingly makes a false entry in, or false alteration of,
a governmental record.” Tex. Penal Code Ann. § 37.10(a)(1) (Vernon Supp. 2007).2
Subsection (c)(1) classifies the above-quoted offense as a Class A misdemeanor.
However, the offense becomes a state jail felony if the actor’s intent is to defraud or harm
2
For convenience, remaining citations to the Texas Penal Code will be referred to
as “§ _______.”
4
another, § 37.10(c)(1); and it becomes a third-degree felony if the governmental record
was (1) a public school record, report or assessment instrument, or (2) license, permit,
seal, title, letter of patent, or similar document issued by the government. See §
37.10(c)(2). Therefore, for a defendant to be charged and convicted of felony tampering
with a governmental record, the State must additionally allege and prove that either the
defendant intended to defraud or harm another, or the governmental record was of the type
described.
It is well settled that a constitutionally sufficient indictment is essential to vest a
district court with jurisdiction in a criminal case. See Tex. Const. art. V, § 12(b); State v.
Smith, 957 S.W.2d 163, 165 (Tex.App.–Austin 1997, no pet.). The indictment in this case
alleges that Appellant “knowingly [made] a false entry in a governmental record.” The
indictment does not allege that, when Appellant presented her surety bond and/or oath,
she intended to defraud or harm another. Nor does the indictment allege the governmental
record was of the type necessary to make the offense a third-degree felony. Although the
caption of the indictment describes the punishment grade as “SJF Degree Felony,” the
caption is not a part of the indictment but mere surplusage. Adams v. State, 222 S.W.3d
37, 53 (Tex.App.–Austin 2005, pet. ref’d); Thibodeaux v. State, 628 S.W.2d 485, 487
(Tex.App.–Texarkana 1982, no pet.). See 23 Tex. Jur. 3d Criminal Law § 2650 (2001).
Thus, we conclude the indictment in this case alleged a Class A misdemeanor offense of
tampering with a governmental record. See § 37.10(a)(1).
5
District courts have subject-matter jurisdiction only over felonies, misdemeanors
involving official misconduct, and misdemeanor cases transferred to the district court under
article 4.17 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 4.05
(Vernon 2005). In the instant case, the indictment does not allege a felony or other offense
for which a district court has jurisdiction. Thus, on its face, the indictment fails to satisfy
the constitutional requirement of subject-matter jurisdiction. See Teal v. State, 239 S.W.3d
172, 181 (Tex.Crim.App. 2007). However, our inquiry does not end there.
The presentment of an indictment, signed by the grand jury foreman and presented
to the district court, which alleges that a person committed a misdemeanor offense vests
the district court with jurisdiction if the allegations are clear enough that the accused can
identify the offense alleged. Id. at 179-81. (indictment charging defendant with
misdemeanor was sufficient to vest the district court with subject-matter jurisdiction where
indictment was capable of being construed as intending to charge a felony or a
misdemeanor for which the district court has jurisdiction). In Teal the indictment charged
the defendant with hindering apprehension. The 9th Court of Appeals vacated the
defendant’s felony conviction after concluding that the district court lacked subject-matter
jurisdiction because the indictment failed to allege the additional statutory conditions
necessary to elevate the misdemeanor offense to a felony grade offense. Specifically, the
indictment failed to allege that Teal had knowledge that the person harbored or assisted
was facing arrest, charge, or had been convicted of a felony. After granting the State’s
petition for discretionary review, the Court of Criminal Appeals reversed the Court of
6
Appeals holding that an indictment, although defective for failing to allege the conditions
that would elevate the offense to a felony, vests the district court with subject-matter
jurisdiction if “it accuses someone of a crime with enough clarity and specificity to identify
the penal statute under which the State intends to prosecute, even if the instrument is
otherwise defective.” Id. at 181. The Court reasoned that the failure to allege the
conditions necessary to elevate the offense to a felony were substantive defects, subject
to waiver, that did not render the indictment “void.” Id. at 178.
And that brings us back to our construction of Appellant’s motion to dismiss. Having
construed Appellant’s motion to dismiss as a motion that did not object to a defect in the
indictment (i.e., failure to allege a felony offense), we find that Appellant waived that
objection. Tex. Code Crim. Proc. Ann. art. 1.14(b). Our conclusion is further supported
by Appellant’s representation during oral arguments that it was a conscious decision not
to raise the misdemeanor versus felony argument.
II. Failure to Allege the Commission of an Offense
Appellant contends that even if the entry alleged (the representation that “[Appellant
had] property in this State liable to execution worth forty thousand dollars”) were untrue,
such entry would not constitute a false entry in a governmental record because the
representation was not required by the Code of Criminal Procedure article governing the
making of a surety bond. Alternatively, she argues that the entry could not have defrauded
7
or harmed the person to whom it was given, i.e., the Childress County Sheriff, because the
sheriff knew it was false when made.
Appellant cites no authority supporting her contentions. Without same, the issue
is inadequately briefed and, therefore, waived. See Tex. R. App. P. 38.1(h); Cardenas v.
State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).
Conclusion
Appellant’s issue is overruled and the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
8
|
01-03-2023
|
09-08-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/2331584/
|
262 P.3d 1188 (2011)
2011 UT App 252
HI-COUNTRY ESTATES HOMEOWNERS ASSOCIATION, a Utah corporation, Plaintiff,
v.
BAGLEY & COMPANY, et al., Defendants.
Foothills Water Company, a Utah corporation; J. Rodney Dansie; Dansie Family Trust; Richard P. Dansie; Joyce M. Taylor; and Bonnie R. Parkin, Counterclaimants and Appellants,
v.
Hi-Country Estates Homeowners Association, a Utah corporation, Counterclaim Defendant and Appellee.
No. 20090433-CA.
Court of Appeals of Utah.
July 29, 2011.
J. Thomas Bowen, Midvale, for Appellants.
J. Craig Smith, Matthew E. Jensen, and Jeffry R. Gittins, Salt Lake City, for Appellee.
Before Judges DAVIS, ORME, and VOROS.
AMENDED MEMORANDUM DECISION[1]
VOROS, Judge:
¶ 1 This appeal represents the latest episode in a course of litigation spanning a *1189 quarter of a century. We last ruled in this case in Hi-Country Estates Homeowners Ass'n v. Bagley & Co., 2008 UT App 105, 182 P.3d 417, cert. denied, 199 P.3d 970 (2008). That appeal arose from a counterclaim filed by Foothills Water Company, J. Rodney Dansie, the Dansie Family Trust, Richard P. Dansie, Boyd W. Dansie, Joyce M. Taylor, and Bonnie R. Parkin (collectively, the Dansies) against the Hi-Country Estates Homeowners Association (the Association). See id. ¶ 1. The Dansies sought damages for breach of a 1977 well lease agreement (the Well Lease). See id. ¶ 2.
¶ 2 The trial court entered an omnibus order somewhat optimistically titled Final Judgment. See id. ¶ 6. First, the court ruled that the Well Lease was an enforceable contract, neither void as against public policy nor unconscionable. See id. Second, the trial court denied the Dansies' breach of contract claims. See id. In the context of these claims, the trial court ruled that, pursuant to a 1986 order of the Public Service Commission (PSC), the Dansies were entitled to receive water under the Well Lease only upon payment of their pro rata share of fees and costs and not, as stated in the Well Lease itself, "at no cost." See id. Because the Dansies had refused to pay these fees, the trial court ruled that the Association had not breached its obligation under the Well Lease. See id. In addition, the trial court found no evidentiary basis for the Dansies' claim of damages in the form of an orchard withering, loss of landscaping, and loss of property value. See id. ¶ 17. Third, the trial court awarded the Dansies judgment in the sum of $16,334.99 as reimbursement for improvements to the water system. See id. ¶ 6. Finally, the trial court denied the Dansies' claim for attorney fees. See id.
¶ 3 The Dansies appealed. We affirmed the trial court's order that the Well Lease was not void as against public policy. See id. ¶ 13. In doing so, we stated in a footnote that, because the PSC no longer exercised jurisdiction over the Association, "we now interpret the Dansies' rights and obligations under the Well Lease according to its plain language." Id. ¶ 12 n. 2. We also affirmed the trial court's order that the Well Lease was not unconscionable. See id. ¶ 15. And we affirmed the trial court's denial of the Dansies' breach of contract claims relating to the severing of the water systems. See id. ¶ 16. We did so under the rules of appellate procedure, holding that in challenging on appeal the trial court's factual findings on damages, the Dansies had failed to marshal the evidence as required by rule 24(a)(9) of the Utah Rules of Appellate Procedure. See id. ¶ 20; see also Utah R.App. P. 24(a)(9). We also affirmed the trial court's judgment in favor of the Dansies in the sum of $16,334.99. See Hi-Country Estates, 2008 UT App 105, ¶ 21, 182 P.3d 417. Finally, we affirmed the trial court's denial of attorney fees. See id. ¶ 22. Our opinion concluded, "We therefore affirm the trial court on all issues." Id. ¶ 24. The Utah Supreme Court denied cross-petitions for certiorari.
¶ 4 After remittitur, the Dansies filed a motion with the trial court to modify the Final Judgment to conform to footnote 2 of our opinion as they understood it. The Association resisted the motion, and the trial court denied it. The Dansies appeal. We conclude that our 2008 opinion appropriately resolved the issues before us under relevant principles of appellate review. Furthermore, the trial court properly read our opinion as a complete affirmance.
¶ 5 "The mandate rule dictates that pronouncements of an appellate court on legal issues in a case become the law of the case and must be followed in subsequent proceedings of that case. The mandate rule. . . binds both the district court and the parties to honor the mandate of the appellate court." Utah Dep't of Transp. v. Ivers, 2009 UT 56, ¶ 12, 218 P.3d 583 (omission in original) (citation and internal quotation marks omitted). "The lower court must implement both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces." Id. (internal quotation marks omitted).
¶ 6 For reasons we explain below, we do not believe the language in footnote two of our opinion conflicts with our ultimate *1190 order. Nevertheless, to the extent a real or apparent conflict exists in a judicial opinion, the opinion's "directions" control. See Amax Magnesium Corp. v. Utah State Tax Comm'n, 848 P.2d 715, 718 (Utah Ct.App. 1993) ("Where the language used in the body of an appellate opinion conflicts with directions on remand, the latter controls."), rev'd on other grounds, 874 P.2d 840 (Utah 1994). And the only directions in our 2008 opinion indicate that we are affirming the trial court on all issues. The opening paragraph of that opinion states, "Counterclaim Plaintiffs . . . appeal several of the trial court's determinations. Counterclaim Defendant. . . filed a cross-appeal challenging other determinations. We affirm." Hi-Country Estates Homeowners Ass'n v. Bagley & Co., 2008 UT App 105, ¶ 1, 182 P.3d 417. The final sentence of the opinion states, "We therefore affirm the trial court on all issues." Id. ¶ 24. Nowhere in the opinion do we use the words "reverse," "vacate," "modify," or (except in reciting the history of the litigation) "remand." We therefore agree with the trial court that, "in the face of the unequivocal affirmance by the Court of Appeals, [the trial court] lacks authority to modify the final judgment." The trial court thus properly refused to interpret an opinion that states, "We therefore affirm the trial court on all issues" as having actually affirmed on some issues and reversed on others. A contrary approach would risk eroding the clarity of the mandate rule and the authority of the appellate courts of this state.
¶ 7 Mandate rule aside, we do not read our 2008 opinion as a partial reversal. Footnote two appears in section I of the opinion. We there rejected the Association's claim that the Well Lease's "provisions for free water and water connections" are void as against public policy. We explained in footnote two that, because the 1986 order of the PSC was no longer in effect, we would interpret the Well Lease "according to its plain language." Id. ¶ 12 n. 2. We thus clarified that the precise question we were treating was whether the Well Lease as writtennot as superseded by PSC directiveswas contrary to public policy. We concluded that it was not. See id. ¶¶ 12-13. A contrary ruling that the Well Lease as written was unenforceable because it was unconscionable or against public policywould have barred all the Dansies' past and future breach of contract claims. Our determination that the Well Lease did not offend public policy left unresolved the question of breach of contract.
¶ 8 We resolved the breach of contract claim in section III. See id. ¶ 16. We noted there that the trial court had addressed both breach and damages.[2] We first summarized the trial court's ruling with respect to breach; in so doing, we noted that "[i]n dismissing the claims, the trial court relied on the 1986 PSC order." Id. We then summarized the trial court's ruling with respect to damages, noting that the trial court had "determined that the Dansies had failed to prove damages proximately caused by the alleged breach." Id. We resolved this issue on the element of damages, "affirm[ing] the dismissal of the breach of contract claims based on this failure to prove damages." Id. We properly did so on the ground that the Dansies had not "adequately marshal[ed] the evidence." Id. ¶ 20. Resolving the claim on the element of damages made it unnecessary for us to address whether a breach of the contract had been otherwise established. See id. ¶ 20.
¶ 9 Our 2008 opinion thus resolved all outstanding issues in favor of the trial court's order. It explicitly resolved all issues enumerated in the concluding paragraph. See id. ¶ 24. Any remaining challenges to the trial court's order, whether or not we addressed them on the merits, were also necessarily resolved in favor of the trial court's order. See Piacitelli v. Southern Utah State Coll., 636 P.2d 1063, 1065 (Utah 1981) (noting that a final order, "unless reversed on appeal, is res judicata and binding upon [the] parties"). Finally, any challenges to prior trial court rulings that the parties might have *1191 appealed, but did not, were at that point waived. See DeBry v. Cascade Enters., 935 P.2d 499, 502 (Utah 1997) (failing to raise issues ripe for appeal results in waiver of the right to raise them at a later time).[3]
¶ 10 The opinion made no attempt to resolve future issues that might arise between the parties, including future claims of damages against the Association for future breaches of the Well Lease. The opinion did establish that, so long as the PSC does not exercise jurisdiction over the water system, the rights of the parties are as set forth by the plain language of the Well Lease. The Association contends that this can never happen, because as soon as it delivers a drop of water to the Dansies at no cost as required by the Well Lease, the PSC will exercise jurisdiction and require payment. Perhaps the Association is correct.[4] But none of us can foretell the futurestatutes can be amended; regulations can be repealed; administrative policies and attitudes can change. Thus, our opinion wisely hazarded no guess as to whether the PSC could or would exert jurisdiction in the future, and thus made no effort to adjudicate the rights of the parties or the enforceability of the Well Lease going forward.
¶ 11 In sum, our 2008 opinion properly and consistently resolved all issues before us on appeal. Moreover, we see no error in the trial court's refusal to modify the Final Judgment after remittitur and therefore affirm its disposition.
ON PETITION FOR REHEARING
¶ 12 The Dansies have petitioned for rehearing, claiming that our decision is confusing because it "does not provide guidance concerning the viability of ¶ 3 of the Final Judgment which requires the Dansies to pay the pro rata costs for the delivery of the water." We take this opportunity to resolve any such confusion.
¶ 13 In our 2008 opinion, we took pains in footnote 2 to explain that this payment obligation was a result of PSC regulation and that, with the termination of PSC jurisdiction over the water system, the Dansies' "rights and obligations under the Well Lease" would be determined "according to its plain language." Hi-Country Estates Homeowners Ass'n v. Bagley & Co., 2008 UT App 105, ¶ 12 n. 2, 182 P.3d 417, cert. denied, 199 P.3d 970 (Utah 2008). We then quoted the provision of the Well Lease providing the Dansies with a certain number of free hook-ups and a certain amount of free water. And in the foregoing Amended Memorandum Decision we reiterated that, "so long as the PSC does not exercise jurisdiction over the water system, the rights of the parties are as set forth by the plain language of the Well Lease." See supra ¶ 10. We expressed no opinion on the Association's contention that, in the future, the Dansies could never enjoy free hook-ups and free water under the Well Lease because the PSC would necessarily re-exert jurisdiction and prevent it. Rather, we noted that "statutes can be amended; regulations can be repealed; administrative policies and attitudes can change." Id.
¶ 14 Thus, our affirmance of paragraph 3 of the Final Judgment must be understood as being limited to its historical context and not as "adjudicat[ing] the rights of the parties or the enforceability of the Well Lease going forward." To be clear, the effect of the Final Judgment, as affirmed and explained in our 2008 opinion and in the above Amended Memorandum Decision, is that the Dansies are, going forward, entitled to their *1192 contractual rights to free water and free hook-ups unless the PSC intervenes and determines otherwise. Given these observations, the petition for rehearing is denied.
¶ 15 I CONCUR: GREGORY K. ORME, Judge.
DAVIS, Presiding Judge (dissenting):
¶ 16 The lead opinion recognizes the rule that a trial court is constrained to implement the spirit, and not only the letter, of our prior mandate. See supra ¶ 5 (citing Utah Dep't of Transp. v. Ivers, 2009 UT 56, ¶ 12, 218 P.3d 583). However, in assessing whether the trial court correctly implemented our prior mandate, the lead opinion does exactly the opposite, essentially focusing only on form and not on substance. This elevation of form over substance results in an outcome contrary to that intended in our prior opinion and is manifestly unjust. I therefore do not join the lead opinion and must dissent.
¶ 17 First, the lead opinion takes the "affirm on all issues" language out of context in order to support its argument that we were affirming on all issues that were pending before the trial court. Although the concluding sentence of our prior opinion read, "We therefore affirm the trial court on all issues," Hi-Country Estates Homeowners Ass'n v. Bagley & Co., 2008 UT App 105, ¶ 24, 182 P.3d 417, the lead opinion fails to consider the phrase in context to determine what the "therefore" referenced. See supra ¶¶ 3, 6. When considering our prior opinion as a whole, it is clear that the "affirm on all issues" phrase was more limited than the lead opinion suggests. The paragraph in which the language occurs set forth four issues on which we affirmed the trial court. Then we summed up, quite unnecessarily, "We therefore affirm the trial court on all issues." Hi-Country Estates, 2008 UT App 105, ¶ 24, 182 P.3d 417 (emphasis added). Thus, the "affirm on all issues" language refers only to our affirmance on each of the four issues that we had set forth in the previous sentences.[1]
¶ 18 Second, there seems to be some confusion regarding the breach of contract claims that were the subject of the prior appeal. The breach of contract claims included a cause of action based on the alleged breach caused by the Association separating the water systems, which requested relief in the form of damages, and a cause of action based on the Association's alleged breach resulting from its continuing refusal to provide free water and hook-ups, which requested relief in the form of specific performance. The section of our prior opinion entitled "Breach of the Well Lease" and the corresponding affirmance in our concluding paragraph addressed only the formerthe claims for damages resulting from the 1994 separation of the water systems. See id. ¶ 16 (stating that the Dansies' breach of contract claims "were based on the Association severing the two water systems"); id. ¶ 17 (noting that the trial court had dismissed the contract claims because the Dansies "failed to prove any damages proximately caused by the separation of the two water systems"); id. ¶ 20 (affirming dismissal of breach of contract claims based on "failure to prove damages proximately caused by the alleged breach"); id. ¶ 24 (concluding that we affirmed the breach of contract claims because "the Dansies did not prove damages proximately caused by the separation of the water systems"). And we emphasized that when addressing such breach of contract claims, reliance on the 1986 PSC Order was appropriate because "the PSC did have jurisdiction over the Association at the time the alleged breach occurred," that is, the 1994 severance of the water systems. Id. ¶ 16. However, neither this section of our opinion nor the restated affirmance on this issue in our concluding *1193 paragraph addressed the alleged breach of contract due to the Association's continuing refusal to provide the benefits as set forth in the Well Lease even after PSC jurisdiction had ended. And our affirmance on the breach of contract claims due to separation of the water systems simply cannot be used to infer our affirmance of breach of contract claims that addressed the current obligations of the parties.[2]Cf. Messick v. PHD Trucking Serv., Inc., 678 P.2d 791, 795 (Utah 1984) ("[P]laintiff's reliance upon this Court's former mandate . . . is entirely out of context here. A close examination of our former opinion, and specifically the subject mandate, reveals that the mandate was directed toward the question of what method (pay schedule) rather than rate of compensation was to be used with regard to plaintiff's driving.").
¶ 19 Instead, the only portion of our prior opinion that addressed the breach of contract claims requesting specific performance was footnote 2, which stated as follows:
In addressing the breach of contract claims, the trial court determined that the Association was required to provide the water "only upon payment of [the Dansies'] pro rata share of the Association's cost for power, chlorination, and water testing," and that the Association was required to provide the water connections "only if [the Dansies] pa[id] the Association for those connections at the Association's usual charge for such connection." The court reasoned that such payment by the Dansies was required because "[t]he 1986 PSC Order prohibits the Well Lease from affecting the rates paid by . . . the association members."
On February 5, 1996, the PSC revoked the status of the water system as a public utility. Therefore, from that point forward, the PSC did not have jurisdiction over the water system and the 1986 PSC order was no longer binding. Thus, we now interpret the Dansies' rights and obligations under the Well Lease according to its plain language, which, as amended, states: "Dansie shall have the right to receive up to five (5) residential hook-ups on to the water system on the Dansie property for members of his immediate family without any payment of hook-up fees and shall further have the right to receive up to 12 million (12,000,000) gallons of water per year from the combined water system at no cost for culinary and yard irrigation use. . . ." The Well Lease also provides: "Dansie shall further have the right to receive up to fifty (50) residential hook-ups onto the water system on the Dansie property for which no hook-up fees will be charged."
Hi-Country Estates, 2008 UT App 105, ¶ 12 n. 2, 182 P.3d 417 (alterations and omissions in original) (citation omitted). Thus, we explained in footnote 2 that the trial court had made an unqualified determination that the Dansies were not entitled to free water and we concluded that such a determination was incorrect as far as it concerned alleged breaches occurring after February 5, 1996. The lead opinion is indeed correct that we never used any word such as "modify" or "vacate" that taken alone would indicate a reversal on this issue. However, I see no authority indicating that any particular words must be employed in order to disagree with and reverse a trial court on an issue. Again, the case law is clear that context is important and that we may not simply rely on individual words when interpreting an appellate mandate. See, e.g., Coombs v. Salt Lake & Fort Douglas Ry. Co., 11 Utah 137, 39 P. 503, 506 (1895) ("The mandate and opinion, taken together, although they use the word, "reversed," amount to a reversal only in respect to the accounting, and to a modification of the decree in respect to the accounting, and to an affirmance of it in all other respects.'" (quoting Gaines v. Rugg, 148 U.S. 228, 238, 13 S. Ct. 611, 37 L. Ed. 432 (1893))).
*1194 ¶ 20 The lead opinion states that our language in footnote 2 was not a partial reversal but was simply an explanation that we were not considering PSC directives when assessing the contract for enforceability. See supra ¶ 7. But the footnote language does not simply state that we are not considering the PSC directives, but that we are not considering those directives because the PSC Order is no longer binding and the parties are now to be governed by the unmodified language of the Well Lease. The language employed in footnote 2 gives no hint of being limited to our consideration of the Well Lease's validity but, rather, quite definitively states that "the 1986 PSC order was no longer binding [after February 5, 1996,]" and that "we now interpret the Dansies' rights and obligations under the Well Lease according to its plain language." Hi-Country Estates, 2008 UT App 105, ¶ 12 n. 2, 182 P.3d 417. The footnote also states, "[T]he Association is no longer a public utility, and thus, neither [statutes regulating public utilities] nor the PSC order is currently applicable to the Association." Id. ¶ 12. Thus, the footnote language establishes the current inapplicability of the PSC Order and the resulting current obligations of the parties, and is not merely setting up some hypothetical situation under which we would evaluate the validity of the Well Lease.[3]
¶ 21 Admittedly, we failed to include in the prior opinion's concluding paragraph our determination from footnote 2 regarding the current obligations of the parties under the Well Lease, which resulted in some understandable confusion. This omission may have been either a mere oversight or an erroneous understanding that the issue was not yet squarely before us and that we needed only give guidance to govern issues that were very likely to arise in future proceedings. Nonetheless, I think it sufficient that both parties argue, and I would agree, that the issue was appropriately before us in the prior appeal and, as discussed above, we analyzed the issue and ruled thereon. The incomplete nature of our conclusion should not relieve the parties from being bound by our express decision on a matter appropriately before us.
¶ 22 Although the lead opinion recognizes that the spirit, and not only the letter, of our prior mandate must be implemented, I disagree that the opinion follows such a directive. Instead of considering the substance of our prior language, the lead opinion focuses entirely on form. The lead opinion reasons that the Dansies do not receive the benefits we referenced in footnote 2 only because (1) our prior concluding paragraph used the "affirm on all issues" language in its conclusion; (2) we did not use any words that by themselves indicate a reversal, such as "reverse" or "vacate"; and (3) the determination we made in footnote 2 was not reiterated in the concluding paragraph. See supra ¶¶ 6, 9. Indeed, the lead opinion concedes that our prior opinion "did establish that, so long as the PSC does not exercise jurisdiction over the water system, the rights of the parties are as set forth by the plain language of the Well Lease."[4]Supra ¶ 10. However, the *1195 lead opinion refuses to give such determination any effect because it was not reiterated in the opinion's concluding paragraph. See supra ¶ 9 ("[Our prior opinion] explicitly resolved all issues enumerated in the concluding paragraph. Any remaining challenges to the trial court's order, whether or not we addressed them on the merits, were also necessarily resolved in favor of the trial court's order." (citation omitted)). I think such an approach is in direct violation of the requirement that we consider our whole opinion when assessing whether the trial court implemented our prior mandate, see Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304-05 (Mo.1991) ("On remand, proceedings in the trial court should be in accordance with both the mandate and the result contemplated in the opinion. It is well settled that the mandate is not to be read and applied in a vacuum. The opinion is part of the mandate and must be used to interpret the mandate. . . ." (omission in original) (citations and internal quotation marks omitted)); Warren v. Robison, 21 Utah 429, 61 P. 28, 30 (1900) ("[W]here an appeal is taken from a judgment of an inferior court entered under a mandate of the appellate court, the latter tribunal will construe its own mandate in connection with its opinion, to determine whether the inferior court proceeded in accordance therewith." (emphasis added)). The mandate rule applies to "pronouncements of an appellate court on legal issues in a case," Utah Dep't of Transp. v. Ivers, 2009 UT 56, ¶ 12, 218 P.3d 583 (internal quotation marks omitted), and is not limited to only those pronouncements found within the concluding paragraph of an appellate opinion.[5]
¶ 23 I would reverse the trial court's denial of the Dansies' motion to modify and remand to the trial court for further proceedings.[6]
NOTES
[1] This Amended Memorandum Decision supersedes the Amended Memorandum Decision in Case No. 20090433-CA issued on January 27, 2011.
[2] Proof of damages is an element of a claim for breach of contract. See Bair v. Axiom Design, 2001 UT 20, ¶ 14, 20 P.3d 388 ("The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.").
[3] Notwithstanding our 2008 opinion stating that we affirmed the trial court "on all issues," the Dansies did not file a petition for rehearing. The Association filed a petition for rehearing on a question unrelated to the instant appeal. See Utah R.App. P. 35(a) (permitting the filing of a petition for rehearing within fourteen days after the entry of an appellate decision drawing the court's attention to "points of law or fact which the petitioner claims the court has overlooked or misapprehended"). We denied that petition.
[4] The trial court seems to have accepted this argument. In its Memorandum Decision and Order dated November 5, 2001, the trial court ruled that, "because there was no way for The Association to provide water service to the Dansies without violating the 1986 PSC order, the damages that arose after February 5, 1996 are also not attributable to The Association." We did not, and did not need to, grapple with the vagaries of this argument on appeal. We resolved all issues on other grounds.
[1] The Association essentially argues that looking beyond the conclusion of an appellate opinion would create confusion and would allow a litigant to wait until an appeal was remitted to the trial court and then "scour the appellate decision for any scrap of language that may arguably indicate that the appellate court could not possibly have meant what it said." But ironically, the Association and the lead opinion do precisely this, focusing on only one phrase of the opinion to support their positions. Other than our "affirm on all issues" language taken out of context, there is absolutely nothing in our prior opinion that would support the Association's argument that we intended the PSC order to govern the parties after February 5, 1996, and to leave intact the determination to that effect found in the trial court's Final Judgment.
[2] Of course, the breach of contract claims requesting specific performance could not have been disposed of based upon our affirmance of the trial court's determination that the Dansies had failed to adequately prove damages. See generally South Shores Concession, Inc. v. State, 600 P.2d 550, 552 (Utah 1979) ("`The right to specific performance is essentially an exceptional one, and a decree for such relief is given instead of damages only when by this means a court can do more perfect and complete justice.'" (emphasis added)).
[3] The Dansies are caught, the Association insists, in a Catch-22 that renders the promise of free water a perpetual mirage: because the Dansies are not members of the Association, as soon as the Association delivers a drop of water to them at no cost, it falls under the jurisdiction of the PSC. Once under PSC jurisdiction, the Association can no longer deliver water to them at no cost. In support of their argument, the Association points to language from a trial court memorandum decision issued prior to the Final Judgment. However, this memorandum decision was not brought to our attention by either party during the prior appeal. Furthermore, I am not convinced that the language from the memorandum decision is as unequivocal as the Association believes. The memorandum decision addressed the Association's Motion for Partial Summary Judgment With Regard to Damages Resulting from the Separation of the Two Water Systems, not any claim seeking specific performance of the Well Lease. And the trial court stated, immediately after reiterating the Association's Catch-22 argument, "[B]ecause there was no way for The Association to provide water service to the Dansies without violating the 1986 PSC order, the damages that arose after February 5, 1996 are also not attributable to The Association." (Emphasis added.) Thus, the trial court's memorandum decision addresses damages arising after, not obligations due after, February 5, 1996.
[4] The trial court, too, recognized that we addressed the issue of the current obligations of the parties under the Well Lease, the trial court referring to our footnote 2 language as our "conclusion" on the issue. In the face of the understanding of both the trial court and my colleagues that we definitively addressed the issue, I cannot fault the Dansies for failing to file a petition for rehearing to alert us to the fact that such pronouncement was not included in our concluding paragraph. Indeed, it is quite possible that our oversight was not apparent to the Dansies before the time had passed for filing a petition for rehearing. Furthermore, it is entirely appropriate to challenge a trial court's implementation of an appellate court mandate though a new appeal.
[5] Of course, to the extent that there is an inconsistency between statements made in the appellate court's opinion and its ultimate mandate, the mandate controls. See Amax Magnesium Corp. v. Utah State Tax Comm'n, 848 P.2d 715, 718 (Utah Ct.App.1993) ("Where the language used in the body of an appellate opinion conflicts with directions on remand, the latter controls."), rev'd on other grounds, 874 P.2d 840 (Utah 1994). However, as the Association points out, "[a] court should be hesitant to conclude that there is an inconsistency and should make every effort to reconcile the body of the opinion to the directive." See generally Culbertson v. Board of Cnty. Comm'rs, 2001 UT 108, ¶ 15, 44 P.3d 642 ("We construe an ambiguous order under the rules that apply to other legal documents."); Utah Valley Bank v. Tanner, 636 P.2d 1060, 1061-62 (Utah 1981) ("Each contract provision is to be considered in relation to all of the others, with a view toward giving effect to all and ignoring none."). Here there is no inconsistency between footnote 2 and our concluding paragraph because, as explained above, footnote 2 addressed the claims requesting specific performance and the concluding paragraph addressed the claims requesting damages. Footnote 2 contains two full paragraphs of analysis explicitly setting forth our conclusion that the PSC Order was not applicable after February 5, 1996, in evaluating the rights and obligations of the parties under the Well Lease. And there is no other statement within our decision that would indicate that we took any position to the contrary, that is, that the order was still at all applicable after February 5, 1996.
[6] An appellate court has the authority to reopen issues previously decided "when the court is convinced that its prior decision was clearly erroneous and would work a manifest injustice." Thurston v. Box Elder Cnty., 892 P.2d 1034, 1039 (Utah 1995). Although I do not agree with the lead opinion in its interpretation of our prior mandate, I think that under such an interpretation our prior opinion is clearly erroneous and works a manifest injustice. I would therefore exercise our authority to reopen the issue in order to avoid the unjust result of unintentionally relieving the Association from its obligations under the Well Lease via what was essentially a clerical error of failing to reiterate a determination in our concluding paragraph.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2601596/
|
228 P.3d 1080 (2010)
In the Matter of the Appeal of DILLON REAL ESTATE CO., INC., and Mission Township (City of Topeka).
No. 102,159.
Court of Appeals of Kansas.
April 8, 2010.
*1081 Shelly Starr, chief of litigation of office of city attorney, for appellant City of Topeka.
*1082 Jarrod C. Kieffer and Robert J. O'Connor, of Stinson Morrison Hecker LLP, of Wichita, for appellee Dillon Real Estate Co., Inc.
John R. Hamilton and David E. Watson, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, for appellee Mission Township.
Before RULON, C.J., GREENE, J., and KNUDSON, S.J.
GREENE, J.
The City of Topeka appeals a Court of Tax Appeals' order that asserted jurisdiction over a tax grievance and required the City to refund ad valorem taxes paid by Dillon Real Estate Co. Inc., (Dillon), after our Supreme Court annulled an annexation by the City of the property giving rise to these taxes in Dillon Real Estate v. City of Topeka, 284 Kan. 662, 163 P.3d 298 (2007). The City argues that Dillon's tax grievance was improper because it was not based on a clerical error under K.S.A.2009 Supp. 79-1701, and that Dillon should have paid its taxes for the years in question under protest pursuant to K.S.A.2009 Supp. 79-2005 in order to claim its refunds under these circumstances. Concluding that Dillon's tax grievance was the proper vehicle to seek its tax refunds, we affirm the Court of Tax Appeals.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2003, the City announced its annexation of approximately 10 acres within the Mission Township, which lands contained Dillon's Store #37. In January 2004, Dillon joined with Mission Township and the Sherwood Improvement District to challenge the annexation. The ensuing litigation proceeded through the district court, where the City ultimately prevailed on summary judgment. On appeal of this judgment, our Supreme Court ruled in July 2007 that the annexation was in contravention of applicable statutes and "a nullity." Dillon Real Estate, 284 Kan. at 681, 163 P.3d 298.
Throughout the pendency of the annexation litigation, the City levied ad valorem taxes against Dillon for its property included in the annexation. For tax years 2004, 2005, and 2006, Dillon paid the taxes levied by the City and did not pay them under protest.
In December 2007, Dillon and Mission Township filed tax grievances, see K.S.A. 2009 Supp. 79-1701 and K.S.A.2009 Supp. 79-1702, with the Court of Tax Appeals (COTA) seeking a refund of taxes wrongfully collected by the City on the property that had been subject to the void annexation. (2009 versions of statutes are materially unchanged from 2007 versions.) In January 2009, COTA found that because the annexation was declared a nullity, the tax situs of Dillon had always been Mission Township and the assessment of taxes by the City was a clerical error under K.S.A.2009 Supp. 79-1701. COTA ordered Shawnee County to correct the clerical error in the assignment of the taxing district to reflect that the subject properties were located in Mission Township and ordered refunds to Dillon for taxes paid in 2004, 2005, and 2006, less an offset for taxes owed to Mission Townshipthe correct situs of the property in these tax years.
The City's motion for reconsideration was denied, and a timely petition for judicial review is now before us.
STANDARDS OF REVIEW
Judicial review of COTA's orders is governed by K.S.A.2009 Supp. 77-621. For purposes of this appeal, application of this statute requires the appellate court to grant relief if: (i) The agency has erroneously interpreted or applied the law, K.S.A.2009 Supp. 77-621(c)(4); or (ii) the agency action is otherwise unreasonable, arbitrary, or capricious. K.S.A.2009 Supp. 77-621(c)(8).
This case involves an issue of statutory interpretation. Statutory interpretation is a question of law, but special rules apply when this court reviews an administrative agency's interpretation or application of a statute. See Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007).
"`The doctrine of operative construction of statutes provides that the interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference. *1083 If there is a rational basis for the agency's interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative agency's interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts. [Citation omitted.]' Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 70, 150 P.3d 892 (2007)." Hill v. Kansas Dept. of Labor, 42 Kan. App. 2d 215, 227-28, 210 P.3d 647 (2009).
But see Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007) (the appellate courts have been reluctant to apply the doctrine of operative construction when faced with questions of law on undisputed facts. The Supreme Court has held that the determination of an administrative body on a question of law on undisputed facts in not conclusive and while persuasive, it is not binding on the court. See, e.g., Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 270-71, 130 P.3d 555 [2006]).
DID COTA ERR IN ASSERTING ITS JURISDICTION BASED ON DILLON'S REQUEST FOR REFUNDS IN THE FORM OF A TAX GRIEVANCE UNDER K.S.A.2009 SUPP. 79-1701?
The City initially challenges COTA's jurisdiction, arguing that Dillon's tax grievance was not based on a clerical error delineated by K.S.A.2009 Supp. 79-1701 and therefore barred by K.S.A.2009 Supp. 79-1702 because errors not specifically listed in K.S.A.2009 Supp. 79-1701 are remediable only by payment under protest pursuant to K.S.A.2009 Supp. 79-2005. The City contends that its assessments for each of the tax years in question was pursuant to an annexation of record and valid in every respect until the later decision of the Supreme Court. Accordingly, the City argues that there was no "clerical error" regarding the situs of the subject property, as contemplated and required for a tax grievance under K.S.A.2009 Supp.79-1701.
We begin by examining the operative statutes. K.S.A.2009 Supp. 79-1701 provides:
"The county clerk shall, prior to November 1, correct the following clerical errors in the assessment and tax rolls for the current year, which are discovered prior to such date:
"(a) Errors in the description or quantity of real estate listed;
"(b) errors which have caused improvements to be assessed upon real estate when no such improvements were in existence;
"(c) errors whereby improvements located upon one tract or lot of real estate have been assessed as being upon another tract or lot;
"(d) errors whereby taxes have been charged upon property which the state court of tax appeals has specifically declared to be exempt from taxation under the constitution or laws of the state;
"(e) errors whereby the taxpayer has been assessed twice in the same year for the same property in one or more taxing districts in the county;
"(f) errors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs; and
"(g) errors whereby the values or taxes are understated or overstated as a result of a mathematical miscomputation on the part of the county." (Emphasis added.)
K.S.A.2009 Supp. 79-1702 provides:
"If any taxpayer, municipality or taxing district shall have a grievance described under the provisions of K.S.A. 79-1701 or 79-1701a, and amendments thereto, which is not remediable thereunder solely because not reported within the time prescribed therein, or which was remediable thereunder and reported to the proper official or officials within the time prescribed but which has not been remedied by such official or officials, such grievance may be presented to the state court of tax appeals and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax, if uncollected, together with all penalties *1084 charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected and interest at the rate prescribed by K.S.A. 79-2968, and amendments thereto, minus two percentage points.
....
"Errors committed in the valuation and assessment process that are not specifically described in K.S.A. 79-1701, and amendments thereto, shall be remediable only under the provisions of K.S.A. 79-2005, and amendments thereto."
The precise question framed is whether the basis for Dillon's grievance was a clerical error correctable under K.S.A.2009 Supp. 79-1701(f) or whether Dillon should be barred from refund relief because it failed to pay these taxes under protest for each of these tax years under K.S.A.2009 Supp. 79-2005.
The City argues that a void annexation does not constitute a clerical error within the meaning of K.S.A.2009 Supp. 79-1701 because the clerk did not make a mistake by assigning the annexed property to the City's tax district. COTA rejected this argument as follows:
"K.S.A. 79-1701(f) defines a clerical error subject to correction to include `[e]rrors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs.' The Court finds that the taxable situs of the subject property was Mission Township because the purported annexation was a nullity. The subject property was assigned to taxing districts where the property did not have its taxable situs. The clerk's state of mind is not the determinative factor. As a result, the correct taxing district for the subject property for tax years 2004, 2005, and 2006 was Mission Township."
On appeal, the City essentially argues that COTA erred in suggesting the "clerk's state of mind is not the determinative factor," arguing that the assignment of taxing district here was "not an error at all," citing both In re Tax Relief Application of Hocker, 29 Kan. App. 2d 248, 27 P.3d 914 (2000), rev. denied 271 Kan. 1036 (2001), and In re Application of Kinnet, 26 Kan. App. 2d 250, 984 P.2d 725 (1999). We examine both cases to determine their applicability here.
In Hocker, a panel of our court ruled that a taxpayer could not obtain retroactive grievance relief based upon an appraiser's classification of the property that was later determined to be erroneous. 29 Kan. App. 2d at 252-55, 27 P.3d 914. The court held:
"The appellants are correct that discretion is not the ultimate determining factor of whether an error is a clerical error within the meaning of K.S.A. 79-1701. However, the lack of discretion is a major component of the errors listed in K.S.A. 79-1701.
....
"... The classification of the property in 1991 was assigned as a matter of professional judgment and determination made by an appraiser based upon the facts known to him or her at the time that the vacant property was green space surrounding commercially used land. That classification was recorded correctly in 1991 according to the assessment of the appraiser. The appellants ha[d] a duty to follow the proper statutory provisions for appealing this determination in order to protect their rights." 29 Kan. App. 2d at 254-55, 27 P.3d 914.
We conclude that Hocker is not applicable here because Hocker's classification error was not among the specific errors recognized and listed within K.S.A. 79-1701, thus more properly considered an error "committed in the valuation and assessment process" and remediable only under K.S.A. 79-2005. See K.S.A.2009 Supp. 79-1702. In contrast, the error here was among those specifically listed in K.S.A.2009 Supp. 79-1701, to wit, an error whereby the property was assigned to a taxing district where the property had no taxable situs. Although the panel in Hocker included a definition of "clerical error" in its opinion, the court stopped short of applying that definition as a condition to relief under K.S.A. 79-1701. Indeed, the legislature has itself characterized all of the itemized errors in the statute as "clerical errors," and it is beyond our province to declare that any of *1085 those listed errorswhich are expressly characterized by the legislature as clerical errorsare not, in fact, clerical in nature.
In Kinnet, a panel of our court ruled that a judicial decision holding that one cellular telephone company was not a public utility did not support a tax grievance seeking retroactive refund relief for other cellular companies whose property had been classified and taxed as public utility property in past years. 26 Kan. App. 2d at 256-59, 984 P.2d 725. The court based its decision on the prospective nature of the judicial decision at issue, the failure of the taxpayers to exhaust their administrative remedies, and the absence of any cognizable claim under the uniform and equal provision of Article 11, § 1 of the Kansas Constitution. 26 Kan. App. 2d at 258-59, 984 P.2d 725.
We are not convinced that Hocker and Kinnet 26 Kan.App.2d at 253, 984 P.2d 725 have application here because the error in those cases is not among those specifically listed in K.S.A.2009 Supp. 79-1701. Moreover, the judicial decision at issue in Kinnet, 26 Kan.App.2d at 253, 984 P.2d 725, was held to be for prospective application only, whereas the annexation decision at issue herein clearly and expressly declared that the 2003 annexation was "a nullity." See Dillon Real Estate, 284 Kan. at 681, 163 P.3d 298. As a matter of law, the annexation never occurred, thus rendering the assessments by the City to be errors whereby property was assigned to a district where the property had no taxable situs. See Black's Law Dictionary 1173 (9th ed.2009) (nullity is something that is legally void).
It is obvious from these cases, however, that our appellate courts have struggled with the applicability of 79-1701 where the error was not specifically listed and not particularly clerical in nature. We believe, however, that the City urges us to read the statute erroneously, suggesting that the listed errors should not be subject to tax grievance relief unless they are clerical in nature. In fact, the legislature has listed the errors and specifically characterized them as "clerical errors" in K.S.A.2009 Supp. 79-1701(a)-(g). If the legislature had intended the City's construction, the statute could have given authority for correction of "clerical errors when they arise in the following contexts." Instead, the statute clearly states that the listed errors are "clerical errors" by legislative fiat. Parsing each such error for the reason it occurred, including examination of intention, discretion, or judgment of tax authorities is simply not required by the statute.
Although the City suggests that Dillon should have paid its taxes under protest pursuant to K.S.A.2009 Supp. 79-2005 during the pendency of the litigation, we agree with Dillon that payment under protest would have been disingenuous and futile so long as it had not yet achieved success in the challenge to annexation. Until July 2007, any suggestion that Dillon's property had been assigned to the wrong taxing district was false; the annexation had legal effect in December 2003, and any tax protest filed on the basis of erroneous assignment would have been subject to summary dismissal by county officials and COTA. Perhaps Dillon could have filed such protests and sought a stay of proceedings pending a final decision in the annexation litigation, but we note that the statutory time limitations on all aspects of such a proceeding would likely have dictated denial of stay and summary dismissal. See K.S.A.2009 Supp. 79-2005(a), (g), and (i); K.S.A.2009 Supp. 74-2438.
In the final analysis of the question, the fact that any "error whereby the assessment of either real of personal property has been assigned to a taxing district in which the property did not have its taxable situs" has been deemed a "clerical error" by the legislature in K.S.A.2009 Supp. 79-1701(f). Such errors are clearly remediable by the tax grievance procedure, whether the result of mistake, erroneous reporting, fraud, or a void annexation. Our Supreme Court has stated in rejecting a similar attempt to restrict the application of K.S.A.1987 Supp. 79-1701(g) [now K.S.A.2009 Supp. 79-1701(f)]:
"Appellant argues the county's mistake cannot be deemed a clerical error, because once the error was discovered, the county had to use discretion to determine if the property was assigned to the correct taxing district.
*1086 "Appellees argue the statute allows for corrections in just this situation. It argues a narrower reading would cause chaos, as an investigation would have to be made to discover how each error was made in the hundreds of cases of this type each year. Even if the investigation proved fruitful, a narrow reading would render many errors uncorrectable, resulting in taxpayers being unjustly taxed. Appellees also argue there is no discretion involved in assigning property to a particular taxing unitit is merely a matter of matching the location of the property to the correct geographical district on the taxing map. We agree with the argument of appellees. K.S.A.1987 Supp. 79-1701(g) clearly and unambiguously makes the assigning of property to the wrong taxing district a clerical error correctable by the county clerk." In re Application of U.S.D. No. 437 for Tax Relief, 243 Kan. 555, 558, 757 P.2d 314 (1988).
COTA did not err in asserting its jurisdiction over Dillon's tax grievance under K.S.A. 2009 Supp. 79-1701(f).
Was COTA's Refund Order Overbroad in Extending to Three Tax Years Rather than Two?
The City next argues that COTA erred in ordering refunds for tax year 2004 because K.S.A.2009 Supp. 79-1701a limits the authority of a county board of commissioners to correct errors to "the current year and the immediately preceding two years during the period on and after November 1 of each year." Consequently, the argument is that COTA likewise had authority to correct errors only for 2005 and 2006, but not 2004.
At the outset, we note that this argument was never presented to COTAeither prior to or in the City's motion for reconsideration. K.S.A.2009 Supp. 77-617 limits new issues being raised on judicial review of administrative actions, and the issue now asserted by the City is not among those permitted to be raised absent having been raised before the agency.
Even if we were to reach the merits of the issue, however, we believe the City again misinterprets the statutory scheme. Although the board of county commissioners has time restrictions on the scope of relief, we see no similar restrictions on COTA. COTA's authority is governed by K.S.A.2009 Supp. 79-1702, which provides:
"If a taxpayer, municipality or taxing district shall have a grievance described under K.S.A. 79-1701 or 79-1701a which is not remediable thereunder solely because not reported within the time prescribed therein, ... it may direct that the same be remedied either by cancelling the tax, if uncollected, together with the penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected [with] interest...."
K.S.A.2009 Supp. 79-1702 clearly gives COTA the authority to correct errors that would otherwise be available under K.S.A. 2009 Supp. 79-1701 and K.S.A.2009 Supp. 79-1701a, but are not remediable thereunder because they not reported within the time prescribed therein. Applying the limits of K.S.A.2009 Supp. 79-1701a to K.S.A.2009 Supp. 79-1702 contradicts the language of K.S.A.2009 Supp. 79-1702 authorizing COTA to correct errors not reported within the time limits of K.S.A.2009 Supp. 79-1701a. While K.S.A.2009 Supp. 79-1701a limits the board of county commissioners to correcting errors for the "current year and the immediately preceding two years," no such limitation is found in K.S.A.2009 Supp. 79-1702.
In summary, we perceive no error by COTA in awarding refund relief to Dillon for three tax years pursuant to the tax grievance procedure where the City had collected ad valorem taxes on property that was improperly assigned to the City's taxing district because of an annexation later deemed a nullity.
Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2601604/
|
228 P.3d 1250 (2010)
2010 UT App 49
Sonya Capri BANGERTER, Plaintiff and Appellee,
v.
Ralph PETTY, an individual; Jarmaccc Properties, LLC, a Utah limited liability company; and Jarmaccc, Inc., a Utah corporation; et al., Defendants and Appellants.
No. 20060511-CA.
Court of Appeals of Utah.
February 25, 2010.
*1251 Ralph C. Petty, Salt Lake City, Appellant Pro Se and for Appellants.
James C. Haskins, Ryan M. James, and Thomas N. Thompson, Salt Lake City, for Appellee.
Before Judges ORME, BILLINGS, and GREENWOOD.[1]
OPINION
BILLINGS, Senior Judge:
¶ 1 This case involves a sheriff's sale of Sonya Capri Bangerter's house to cover an outstanding dental bill. We previously addressed this case in Bangerter v. Petty (Bangerter I), 2008 UT App 153, 184 P.3d 1249, in which we held that Bangerter's claims were barred by the statute of limitations. See id. ¶ 21. Concluding that the statute of limitations had not expired, the Utah Supreme Court reversed our decision in Bangerter I and remanded the case so that we could address the remaining issues. See Bangerter v. Petty (Bangerter II), 2009 UT 67, 641 Utah Adv. Rep. 9, ¶ 1, 225 P.3d 874. Although the facts have been recited in both Bangerter I and Bangerter II, we revisit those relevant to this opinion.
¶ 2 Bangerter had an outstanding bill owing to her dentist, which was turned over to the North American Recovery Services collection agency (N.A.R.). On April 25, 1995, a judgment was entered against Bangerter for $307.46. On August 14, 1995, a trial judge signed a writ of execution commanding the sheriff "to collect the judgment, with costs, interest, and fees, and to sell enough of defendant's non-exempt real property to satisfy the same." On December 21, 1995, the sheriff filed a notice of real estate levy against Bangerter's house (the Property). The Property was sold to N.A.R. on March 5, 1996, and three days later, the sheriff signed a Real Estate Certificate of Sale Execution against the Property, which was recorded with the Salt Lake County Recorder's Office on March 28, 1996. That certificate of sale stated that the sheriff had given "due and legal notice," which implies he followed the notice requirements in effect at that time under rule 69(g) of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 69(g) (2004).
¶ 3 On September 16, 1996, more than six months after the sale of the Property, the sheriff signed a sheriff's deed, deeding the Property to N.A.R. and noting that Bangerter had not redeemed the Property in the six-month redemption period. That sheriff's deed contained an error in the legal description of the Property. On January 5, 1998, the sheriff filed an amended sheriff's deed, correcting the legal description. N.A.R. delivered a quitclaim deed in favor of Jarmaccc Properties, LLC, transferring the Property to Jarmaccc. The deed was recorded on January 20, 1998.
¶ 4 On March 10, 1998, Bangerter filed a Chapter 13 bankruptcy petition. On May 14, 1998, Jarmaccc served Bangerter with a notice to quit, instructing her to vacate the Property but the notice could not be pursued because of the bankruptcy petition. On April 23, 1999, Bangerter filed a second petition in bankruptcy, this time listing Jarmaccc as a secured creditor and scheduling $1200 to be paid to Jarmaccc. Jarmaccc received a copy of Bangerter's plan but did not object, and accepted the $1200. On August 26, 2003, the bankruptcy was dismissed. On January 6, 2004, Bangerter filed this action against Jarmaccc, seeking to quiet title to the Property. Both parties filed motions for summary judgment, and the court ruled in Bangerter's favor on May 4, 2006.
¶ 5 On appeal, we determined that Bangerter's action was barred by the statute of limitations because she filed her suit in 2004, nearly nine years after the original judgment was entered against her. Bangerter I, 2008 UT App 153, ¶ 21, 184 P.3d 1249. Although we recognized that actions for quiet title do not have a statute of limitations, we concluded *1252 that Bangerter's action was not a true quiet title action because it was "necessarily predicated on a challenge to the validity of the sheriff's sale and the title deed which was a result of that sale." Id. Our decision was reversed by Bangerter II, when the supreme court determined that "the statute of limitations does not apply to quiet title actions where the claimant is in actual possession of the property in question under a claim of ownership." 2009 UT 67, ¶ 11, 225 P.3d 874. The supreme court remanded the case to us to address the remaining issues. See id. ¶ 18.
ISSUE AND STANDARD OF REVIEW
¶ 6 We now consider whether the trial court erred in granting Bangerter's motion for summary judgment. Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). We "review[] a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness and view[] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted).
ANALYSIS
I. Collateral Attack/Voidable Versus Void Deed
¶ 7 The trial court found that "[t]he original sale of [Bangerter]'s property contained an incorrect legal description and thus created a defective title which failed to convey any title to [Jarmaccc] or any other entity." Jarmaccc contends that the incorrect legal description, later corrected, rendered the title merely voidable, not void. Therefore, Jarmaccc argues that Bangerter's claim is an improper collateral attack on the validity of the sheriff's sale.
¶ 8 It has long been the rule that "[a] voidable sale or a voidable deed cannot be attacked in a collateral proceeding. This must be done in a direct proceeding. Only void deeds or void proceedings are available for collateral attacks." Ammerman v. Linton, 279 Mo. 439, 214 S.W. 170, 173 (1919); see also Cumberland Bank v. Smith, 43 S.W.3d 908, 910 (Tenn.Ct.App.2000) ("A collateral attack on a prior judgment may be successful if the judgment is void because the court rendering the judgment acted in a manner inconsistent with due process of law. But a judgment is not subject to collateral attack for mere errors or irregularities committed by the court in the exercise of its jurisdiction. Errors other than lack of jurisdiction render the judgment merely voidable, and a voidable judgment can only be challenged on direct appeal." (citations and internal quotation marks omitted)).
¶ 9 Utah followed this general principle in Acott v. Union Carbide Nuclear Co. (Acott II), 10 Utah 2d 140, 349 P.2d 620 (1960), when the Utah Supreme Court refused to hear a counterclaim that merely disguised a collateral attack on a sheriff's sale. See id. at 621. Acott II was a "sequel" to Acott v. Tomlinson, 9 Utah 2d 71, 337 P.2d 720 (1959) (Acott I), in which a sheriff's deed was issued to Union Carbide. See id. In Acott II, third party defendant/appellant Tomlinson asked that the sheriff's sale be declared void, arguing that Union Carbide "knew or should have known that the execution sale was wrongful." Id. The Acott II court determined that Tomlinson's claim was improper because it was an attempted collateral attack on the title and therefore not adjudicable. See id.
¶ 10 Thus, as a threshold matter, we must determine whether the trial court erred in concluding the sheriff's sale was void. In the context of fraudulent conveyances, the Utah Supreme Court wrote that "when an act is void as to persons who have an interest in impeaching it, the act is not utterly void, but merely voidable. ... [S]ome action must be taken by the complaining party to render a conveyance void." Baldwin v. Burton, 850 P.2d 1188, 1193 (Utah 1993). More recently, in Ockey v. Lehmer, 2008 UT 37, 189 P.3d 51, the Utah Supreme Court was asked to determine whether a conveyance of an interest in a ranch was void or merely voidable. See id. ¶¶ 15-24. In that case, one of the beneficiaries of a family trust contested a conveyance *1253 of his interests. See id. ¶ 10. The court wrote
A contract or a deed that is void cannot be ratified or accepted, and anyone can attack its validity in court. In contrast, a contract or deed that is voidable may be ratified at the election of the injured party. Once ratified, the voidable contract or deed is deemed valid. A deed that is voidable is valid against the world, including the grantor, because only the injured party has standing to ask the court to set it aside.
In general, the difference between void and voidable contracts is whether they offend public policy. Contracts that offend an individual, such as those arising from fraud, misrepresentation, or mistake, are voidable. Only contracts that offend public policy or harm the public are void ab initio.
. . . .
For a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.
Id. ¶¶ 18-19, 21 (footnotes and internal quotation marks omitted).
¶ 11 Other jurisdictions have addressed this question in the context of sheriff's sales. In Independence One Mortgage Corp. v. Gillespie, 289 N.J.Super. 91, 672 A.2d 1279 (Ct. App.Div.1996), the Superior Court of New Jersey was asked to invalidate a sheriff's sale where the sale took place at 11:00 a.m. despite the statute requiring that such sales take place between noon and 5:00 p.m. See id. at 1280. That court relied on the rule that "a void act results where the public officer has no authority to act at all, whereas a voidable act results from the officer's imperfect execution of an otherwise lawful act" and determined that the sale was voidable, not void, because the sheriff had the appropriate authority to conduct the sale even if "it was imperfectly executed." Id. at 1281.
¶ 12 Similarly, in Lang v. Barrios, 472 N.W.2d 464 (N.D.1991), a property owner challenged the sheriff's sale of his property, arguing that there had been irregularities in the sale process. See id. at 465. The North Dakota Supreme Court stated,
Whether an execution sale has been timely attacked, and can be set aside, depends, in part, on whether the sale is void or voidable. A void sale is a nullity and can, therefore, be attacked anytime. A sale is void if the sheriff lacked jurisdiction over the property, as in the case of inadequate notice, or when an execution is issued on a void judgment. A voidable sale is one where the sheriff has authority to make the sale but exercises that authority in a manner that allows an interested party to challenge the sale, as when the sheriff fails to follow a manner-of-sale statute.
Id. at 466 (citations omitted). The court concluded that the sale was voidable, not void, because the sheriff had the authority to conduct the sale. See id.
¶ 13 The Appellate Court of Illinois took up the issue in Chicago v. Central National Bank, 134 Ill.App.3d 22, 89 Ill. Dec. 34, 479 N.E.2d 1040 (1985). Central National Bank challenged the validity of a sheriff's sale, arguing that the statutory notice requirements had not been met. See id. 89 Ill. Dec. 34, 479 N.E.2d 1040 at 1042. The court held that the sheriff's sale was voidable, not void, because "irregularities with respect to statutory notice and advertising requirements render the sale voidable in the sense that the sale may be set aside upon motion made before the statutory period of redemption has expired." Id. 89 Ill. Dec. 34, 479 N.E.2d at 1044-45.
¶ 14 Based on the foregoing case law, we conclude that the sheriff's sale in this case was voidable, not void. An incorrect property description on the deed especially one that is promptly corrected is a rather minor irregularity in the proceedings. Bangerter has not challenged the sheriff's authority to conduct the sale. Thus we conclude that the sale cannot be attacked collaterally in this proceeding but must be attacked directly in a suit against the sheriff.[2] We therefore reverse *1254 and remand to allow Bangerter to move the court to set aside the sheriff's sale.
II. Equitable Extension of the Redemption Period[3]
¶ 15 "There is a general policy to sustain a sheriff's sale" unless "[it is] manifestly unfair ... especially ... in Utah which has a substantial period of redemption." Beesley v. Hatch, 863 P.2d 1319, 1322 (Utah 1993). In Beesley v. Hatch, 863 P.2d 1319 (Utah 1993), we offered as examples of manifest unfairness, "gross irregularities, mistake, fraud, or collusion." Id.
¶ 16 Furthermore, Utah courts are allowed to extend a redemption period or set aside a sheriff's sale after the period for redemption if "the equities of the case are compelling and `move the conscience of the court.'" Huston v. Lewis, 818 P.2d 531, 535 (Utah 1991) (quoting Mollerup v. Storage Sys. Int'l, 569 P.2d 1122, 1124 (Utah 1977)). We recently addressed a trial court's authority to grant equitable extensions of the redemption period in Pyper v. Bond, 2009 UT App 331, 643 Utah Adv. Rep. 3, 224 P.3d 713, cert. granted, No. 20091025, 225 P.3d 880 (Feb. 18, 2010), where we applied a two-part test for equitable extensions: (1) "gross inadequacy of price" and (2) "irregularities attending the sale." Id. ¶ 11.[4] In Pyper, we relied on "the seminal Utah case" of Young v. Schroeder, 10 Utah 155, 37 P. 252 (1894). In Young, the court set aside a sheriff's sale even after the period for redemption, explaining,
"[I]f the inadequacy of price is so gross as to shock the conscience, or if, in addition to gross inadequacy, the purchaser has been guilty of any unfairness, or has taken any undue advantage, or if the owner of the property or party interested has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void[able[5]], or the party injured will be permitted to redeem the property sold. Great inadequacy requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise the presumption of fraud."
Id. at 254 (quoting Graffam v. Burgess, 117 U.S. 180, 192, 6 S. Ct. 686, 29 L. Ed. 839 (1886)). In Young,
[l]and worth $26,000 was sold to satisfy a judgment of $1,700, the purchasers were the attorneys for the judgment debtor, the purchasers directed the land to be sold in parcels in a manner that prevented the land from being sold at a fair price, and the purchasers assured the debtor that they would not insist on the statutory period for redemption.
Huston, 818 P.2d at 535-36. The Young court addressed both the inadequacy of the price and the irregularity of the proceedings. It remarked, however, that
[i]f the inadequacy [of the price] is so gross as at once to shock the conscience of all fair and impartial minds, if the sacrifice is such that every honest man would hesitate to take advantage of it, it may well be doubted whether every such case would be beyond the power of a court of equity to relieve against.
Young, 37 P. at 254.
¶ 17 Building on this analysis, the Pyper court affirmed the trial court's determination that the sale of Pyper's $75,000 of equity in his property for $329 "shock[ed] the conscience of an impartial mind" and was "[such a] sacrifice of [Pyper's] property ... that an honest man would hesitate to take advantage of it." 2009 UT App 331, ¶ 12 n. 5, 643 Utah Adv. Rep. 3, 224 P.3d 713 (alterations and omission in original).
*1255 ¶ 18 Still, and we think this is important in this case, the Young court's rule was not without constraint:
All the cases unite in the doctrine that on gross inadequacy of price, coupled with irregularities attending the sale, especially where such irregularities are not merely formal and technical, but such as have a direct tendency to prevent the realizing of a fair price for the property sold, and are attributable to the purchaser at the sale, it is the duty of the courts to set aside the sale, unless the complaining party is estopped by his own laches.
37 P. at 254 (emphasis added). The timeliness of the judgment debtor's request to set aside the sheriff's sale was not at issue in either Young or Pyper because both of those cases were brought within days or months of the end of their respective redemption periods. Laches could be a factor here, where the action to set aside the sheriff's sale was initiated approximately nine years after the sale.
¶ 19 The trial court will be required to hold an evidentiary hearing because many of the relevant facts are not in the record. Bangerter's brief contends that she did not have notice of the sale and thus did not have the opportunity to challenge it or protect her rights at the execution sale. However, Bangerter filed no affidavit stating she never received notice of the sale at her home where she was residing, and because the trial court did not hold an evidentiary hearing, there are no facts in the record supporting her contentions.
¶ 20 However, the record makes clear that, at least according to his sworn documents, the sheriff served all the appropriate notices. The trial court on remand will be required to determine whether Bangerter had notice of the sheriff's sale.
¶ 21 It instinctively seems unfair that Bangerter would lose her home for the failure to pay a $307.46 dental bill. However, even this is without factual foundation because the record does not contain any information regarding the value of the house, or Bangerter's equity in it, so it is difficult to know how inadequate the sale price was.
¶ 22 After hearing the relevant evidence, the trial court will also be required to determine if Bangerter's failure to act within a reasonable period of time precludes her from asserting equitable redemption because of her own laches.
CONCLUSION
¶ 23 In sum, we remand to the trial court for a factual hearing on whether the sale should be voided, or if the sale "moves the conscience of the court," such that equitable redemption should apply, which, following Young and Pyper, will involve a balancing of whether the sale price was grossly inadequate, whether there were gross irregularities in the proceedings, and whether Bangerter is barred by her own laches.[6]
¶ 24 WE CONCUR: GREGORY K. ORME, Judge, and PAMELA T. GREENWOOD, Senior Judge.
NOTES
[1] The Honorable Judith M. Billings and the Honorable Pamela T. Greenwood, Senior Judges, sat by special assignment pursuant to Utah Code section 78A-3-103(2) (2008) and rule 11-201(6) of the Utah Rules of Judicial Administration.
[2] Although it appears problematic to allow suit against the sheriff at this point in time, Bangerter II seems to require it.
[3] We include this section as legal guidance for the trial court to use in the evidentiary hearing on remand.
[4] This formulation was crafted by the Respondents in Pyper v. Bond, 2009 UT App 331, 643 Utah Adv. Rep. 3, 224 P.3d 713, and, although "[w]e accept[ed][it] as a general statement of the appropriate method for establishing the district court's authority to grant equitable extensions," we also "express[ed] no opinion on whether [the] two-part test represents the exclusive avenue for a district court to extend the redemption period." Id. ¶ 11 & n. 3.
[5] The court uses the word "void," but for the reasons explained in the previous section, we think it should be understood as meaning "voidable."
[6] The trial court held as a matter of law that Jarmaccc is equitably estopped from claiming title to the property. We reverse and remand on this issue. We think the doctrine of equitable redemption is the more appropriate approach in this case and are dubious whether the facts will support a finding that Jarmaccc is equitably estopped, but since an evidentiary hearing is required, we give the trial court the option to consider equitable estoppel.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2601607/
|
228 P.3d 441 (2010)
STATE
v.
WALL.
No. 101887.
Court of Appeals of Kansas.
April 8, 2010.
Decision Without Published Opinion Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874252/
|
288 Wis. 2d 460 (2005)
706 N.W.2d 702
2005 WI App 254
STATE v. McDADE.[]
No. 2004AP002993 CR.
Court of Appeals of Wisconsin.
October 18, 2005.
Unpublished Opinion. Affirmed.
NOTES
[] Petition to review filed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3347268/
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE SPECIALDEFENSES AND COUNTERCLAIMS
In this foreclosure action, the defendant has filed nine special defenses and a three count counterclaim. The plaintiff claims they are all insufficient as a matter of law.
The plaintiff cites cases holding a narrow construction of the use of special defenses, i.e., payment, discharge, release satisfaction or invalidity of a lien.
Many superior court judges have allowed additional defenses such as fraud, mistake, estoppel laches, CUTPA and breach of good faith and fair dealing as valid defenses.Dime Savings Bank v. Albir et al, CV 93-0132582, Judicial District of Stamford-Norwalk of Norwalk (D'Andrea, J.), 1995. This court has previously held such defenses to be viable in Bank of Boston Connecticut v. Capitol WestCT Page 10573Associates Limited Partnership, et al, Superior Court, Judicial District of Hartford-New Britain at Hartford, CV 91-50028 (Freed, J.), (1992), [citations omitted].
The first special defense deals with the concept of good faith and fair dealing, the second and third with estoppel and the fourth with unclean hands. The motion to strike these defenses is therefore denied.
The fifth through eighth special defenses address a deficiency judgment which has not yet been claimed by the plaintiff and is therefore premature. The motion to strike these defenses is granted.
The ninth special defense denies the default and should be part of the general denial contained in the answer. The motion to strike this defense is granted.
As to the counterclaim, the courts found an intentional tort, negligent breach of the covenant of good faith and fair dealing and violation of CUTPA. All of these counts allege proper and legal causes of action. The motion to strike is denied.
See also Virginia Corp. v. Galanis, 223 Conn. 436, 448
(92).
Freed, J.
|
01-03-2023
|
07-05-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/2215189/
|
785 N.W.2d 688 (2010)
2010 WI App 62
STATE
v.
RICO.[1]
No. 2009AP1370-CR.
Court of Appeals of Wisconsin.
March 3, 2010.
Unpublished Opinion Affirmed.
NOTES
[1] Petition for Review Filed
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2235059/
|
929 N.E.2d 793 (2010)
COMPTON
v.
FIRST NAT. BANK OF MONTEREY.
Supreme Court of Indiana.
May 6, 2010.
Transfer denied. All Justices concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3347185/
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STAY
INTRODUCTION
In this action, the plaintiff seeks damages for personal injuries allegedly caused by the defendant's negligence and recklessness. The defendant has moved that the action be stayed because, as counsel for the defendant has represented, PHICO Insurance Company ("PHICO") is obligated to defend and indemnify the defendant in respect of this action and, pursuant to an order of liquidation ("order") entered by the Commonwealth Court of Pennsylvania in an action titled M. Diane Koken InsuranceCommissioner of the Commonwealth of Pennsylvania v. PHICO InsuranceCompany, No. 427 M.D. 2001, all actions against insureds of PHICO have been stayed. The plaintiff has not contested those representations, and, therefore, the existence and validity of the order are presumed for purposes of this decision.
Paragraph 3 of the order appointed the Pennsylvania insurance commissioner as liquidator of PHICO. Paragraph 24 of the order states:
Unless waived or otherwise agreed by all of the parties thereto and the relevant guaranty association, all actions in which PHICO is or may be obligated to defend a party in any court are stayed to the extent provided by applicable law, subject to further order of the court. The Liquidator may cooperate, upon request of a guaranty association, in seeking a stay of any action, as authorized under applicable law.
Paragraph 25 of the order states:
No verdict, judgment or order against PHICO or its insureds entered after the date of filing of the Petition for Liquidation, and no verdict, judgment or order against PHICO entered at any time by default or by collusion, need be considered as evidence or proof of liability or quantum of damages by the Liquidator.
By its terms, the order clearly stays all actions against PHICO insureds. The question thus posed is whether a Connecticut court must CT Page 8909 honor the order, a command of a Pennsylvania court. That issue requires a review of Connecticut law on this subject.
General Statutes § 38a-903 provides, in excerpted form:
Sections 38a-903 to 38a-961, inclusive, may be cited as the "Insurers Rehabilitation and Liquidation Act". . . . Sections 38a-903 to 38-961, inclusive, shall be construed to effect their purpose which is the protection of the interest of insureds, claimants, creditors and the public generally, with minimum interference with the normal prerogatives of the owners and managers of insurers, through: . . . (5) Reducing the problems of interstate rehabilitation and liquidation by facilitating cooperation between states in delinquency proceedings and by extending the scope of personal jurisdiction over debtors of the insurer outside this state.
General Statutes § 38a-905 (19) provides:
"Reciprocal state" means any state other than this state in which in substance and effect sections 38a-920, 38a-954, 38a-955 and 38a-957 to 38a-959, inclusive, are in force and in which provisions are in force, requiring that the commissioner or equivalent official be the receiver of a delinquent insurer and in which some provision exists for the avoidance of fraudulent conveyances and preferential transfers.
DISCUSSION
Sections 38a-903 and 38a-905 (19) clearly state the legislature's intent that fostering cooperation between Connecticut and reciprocal states relative to insurance insolvencies is a principal purpose of the Insurers Rehabilitation and Liquidation Act (the "act"). Accordingly, the court must decide whether Pennsylvania is a reciprocal state.
Article V of Pennsylvania's Insurance Department Act, 40 P.S. §§ 211-221.63, contains provisions which parallel those of General Statutes §§ 38a-920, 38a-954, 38a-955 and 38a-957 to 38a-959. Having adopted legislation which, in substance and effect, mirrors the insolvency provisions of the act, Pennsylvania is held to be a reciprocal state.
In sum, Connecticut courts are obligated by the act to respect insurance liquidation proceedings conducted by reciprocal states, of CT Page 8910 which Pennsylvania is one, and Pennsylvania has entered a liquidation order which stays all actions against PHICO's insureds. Therefore, the issuance of a stay in this case is appropriate.
CONCLUSION
The defendant's motion to stay is granted, and a stay of this case is entered, effective until further order.
G. Levine, J.
|
01-03-2023
|
07-05-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/2601633/
|
228 P.3d 943 (2010)
Brian and Margaret LOISELLE, husband and wife, Plaintiffs/Appellees,
v.
COSAS MANAGEMENT GROUP, LLC, an Arizona limited liability company; Gene and Suzanne Lines, husband and wife, Defendants/Appellants.
No. 1 CA-CV 09-0251.
Court of Appeals of Arizona, Division 1, Department E.
April 20, 2010.
*944 Carmichael & Powell PC By: David J. Sandoval, Phoenix, Attorneys for Plaintiffs/Appellees.
*945 Evans Dove & Nelson PLC By: Douglas N. Nelson, Trevor J. Fish, Mesa, Attorneys for Defendants/Appellants.
OPINION
GEMMILL, Judge.
¶ 1 Appellants Cosas Management Group, LLC, ("CMG") and Gene and Suzanne Lines appeal the trial court's grant of summary judgment in favor of Appellees Brian and Margaret Loiselle. The trial court ordered CMG and the Lineses to pay restitution in the amount of $25,000 to the Loiselles, and it found that CMG and the Lineses were jointly and severally liable. We agree the Loiselles are entitled to summary judgment for $4,000 in restitution, but we determine there are fact questions whether they are entitled to further restitution and whether the Lineses may be jointly and severally liable with CMG. We therefore affirm in part, vacate in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶ 2 We view the evidence in the light most favorable to the party against whom summary judgment was granted. Estate of Hernandez v. Flavio, 187 Ariz. 506, 509, 930 P.2d 1309, 1312 (1997).
¶ 3 Daniel Verderose was an employee at Brian Loiselle's company. In January 2008, Verderose approached Loiselle with a proposition that Loiselle provide a short-term loan to CMG in the amount of $25,000. He told Loiselle that CMG had agreed to repay the loan, as well as a $10,000 loan fee, within one week. Verderose provided Loiselle with email correspondence, purportedly between Verderose and Gene Lines, the owner of CMG, in which Lines appeared to agree to the terms of the loan. Loiselle decided to make the loan, and on January 28 he issued a check for $25,000 to CMG and authorized its deposit into CMG's bank account.
¶ 4 In fact, CMG and Verderose had not discussed CMG receiving a loan from Loiselle. The purported email correspondence between Verderose and Lines had been fabricated, and the email address from the correspondenceglcosas@yahoo.comdid not belong to Gene Lines or CMG. Verderose owed a large sum of money to CMG, and he had told Lines that any money Loiselle deposited into CMG's account should be used to reduce the amount of his outstanding debt to CMG. The $25,000 deposit was applied by CMG to reduce Verderose's debt. And, allegedly based on this payment, CMG allowed Verderose to borrow an additional $21,000 on February 6, 2008.
¶ 5 Verderose committed suicide later in February 2008. Following Verderose's death, Loiselle sent a letter to CMG demanding repayment of what Loiselle believed was his loan to CMG. CMG responded that the $25,000 Loiselle deposited into its account had been a partial repayment of Verderose's debt, and it asserted that it would not be returning any funds to Loiselle.
¶ 6 In May 2008, the Loiselles filed a complaint in superior court alleging the $25,000 payment to CMG constituted an unjust enrichment and should be repaid. They also asserted Gene Lines was the alter ego of CMG and should be personally liable for CMG's acts. CMG and the Lineses filed a motion to dismiss the complaint, which the trial court treated as a motion for summary judgment, and the Loiselles cross-moved for summary judgment. CMG and the Lineses argued that Verderose, and not they, should be liable for the $25,000; and that, because CMG had loaned Verderose an additional $21,000 based on the $25,000 payment, it would be inequitable to require CMG to pay the entire $25,000 in restitution. They also argued the Loiselles had not shown any legal basis for holding the Lineses individually liable.
¶ 7 After oral argument, the trial court granted summary judgment in favor of the Loiselles and against CMG and the Lineses, explaining:
The court rejects Defendants' contention that Plaintiffs' remedy is against third part[y] Verderose, who, in effect, arranged the financial transaction in question. There is no indication in the record that Plaintiffs, at any time, in placing $25,000 directly into an account of Defendants, believed, should have believed, or had reason to believe that the monies placed in Defendants' account *946 were for the benefit of Verderose in any fashion.
The court also found CMG and the Lineses were jointly and severally liable. CMG and the Lineses timely appeal, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).
ANALYSIS
¶ 8 We review de novo the trial court's grant of summary judgment and the court's application of the law. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). The availability of equitable relief and equitable defenses is also subject to our de novo review. See id. Fashioning an equitable remedy is within the trial court's discretion, and it will not be disturbed on appeal absent an abuse thereof. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 188, ¶ 55, 181 P.3d 219, 235 (App.2008); see also Marco C. v. Sean C., 218 Ariz. 216, 218 ¶ 4, 181 P.3d 1137, 1139 (App.2008) ("To soundly exercise its discretion, the court must also correctly apply the law."). Summary judgment is proper only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990); Ariz. R. Civ. P. 56(c)(1).
Unjust Enrichment
¶ 9 The trial court found CMG and the Lineses (hereinafter collectively "CMG") were unjustly enriched. "Unjust enrichment occurs when one party has and retains money or benefits that in justice and equity belong to another." Trustmark Ins. Co. v. Bank One, Arizona, NA, 202 Ariz. 535, 541, ¶ 31, 48 P.3d 485, 491 (App.2002). To recover on a claim for unjust enrichment, a claimant must show "(1) an enrichment, (2) an impoverishment, (3) a connection between the two, (4) the absence of justification for the enrichment and impoverishment and (5) the absence of any remedy at law." Mousa v. Saba, 222 Ariz. 581, 588, ¶ 29, 218 P.3d 1038, 1045 (App.2009). "A person who has been unjustly enriched at the expense of another is required to make restitution to the other." Harmon v. Harmon, 126 Ariz. 242, 245, 613 P.2d 1298, 1301 (App.1980).
¶ 10 CMG contends the trial court erred in granting summary judgment on the Loiselles' unjust enrichment claim. It first argues that it was not enriched "unjustly" because it committed no tortious or wrongful act in receiving the money and it had no knowledge that Verderose had dealt fraudulently with the Loiselles. We disagree that these facts preclude the Loiselles from recovering on their unjust enrichment claim.
¶ 11 Generally, a person who bestows an unsolicited benefit upon another is not entitled to restitution. Western Coach Corp. v. Roscoe, 133 Ariz. 147, 154, 650 P.2d 449, 456 (1982); see also Restatement (First) of Restitution § 2 (1937) (hereinafter "Restatement").[1] However, a person may be entitled to restitution if the benefit was conferred through mistake or coercion. See Restatement § 2 cmt. a. A person who has conferred a benefit through mistake or coercion is not precluded from maintaining an action for restitution merely because the benefit was conferred due to his lack of care. Restatement § 59.
¶ 12 According to the Restatement, a person is entitled to restitution if he mistakenly believes he is party to a contract with another and makes payment to the other based on this mistake. See Restatement § 15. Similarly, the Restatement provides that a person who has paid money to another "because of a mistake of fact and who does not obtain what he expected in return is entitled to restitution from the other if the mistake was induced... by the fraud or material misrepresentation of a person purporting to act as the payee's agent[.]" Restatement § 28.
¶ 13 Loiselle mistakenly believed he was a party to a contract with CMG, and he made payment to CMG based on this mistake. This mistake was induced by the misrepresentations of Verderose, who was "purporting *947 to act as [CMG's] agent." Id. Under the above-referenced provisions of the Restatement, the Loiselles may be entitled to restitution even though CMG did not act tortiously or wrongfully in receiving the money and was unaware that Verderose had fraudulently induced Loiselle to deposit the money into CMG's account.[2]
¶ 14 CMG also contends the Loiselles' claim must fail because the Loiselles have an adequate remedy at law by way of a suit against Verderose's estate. We agree that, to bring a successful unjust enrichment claim, a party must show "the absence of any remedy at law." Mousa, 222 Ariz. at 588, ¶ 29, 218 P.3d at 1045. The legal remedy, however, must be against the same person from whom relief in equity is sought. See, e.g., Hill v. Hill, 185 Kan. 389, 345 P.2d 1015, 1025 (1959) ("The existence of a remedy at law does not deprive equity of jurisdiction unless such remedy is clear, adequate and complete. Such remedy at law ... must exist against the same person from whom the relief in equity is sought."); Mitchell v. Houstle, 217 Md. 259, 142 A.2d 556, 560 (1958) ("[T]he doctrine that equity will grant no relief when there is an adequate remedy at law is limited to cases in which there is an adequate legal remedy against the defendants that are before the court."); Buttinghausen v. Rappeport, 131 N.J. Eq. 252, 24 A.2d 877, 880 (N.J.Ch.1942) ("[T]he legal remedy which may move equity to deny relief is a remedy against the same person from whom relief in equity is sought."). The Loiselles have no adequate remedy at law against CMG.
¶ 15 CMG next asserts, as a defense to the Loiselles' unjust enrichment claim, that there has been a "change of circumstances" so that it would be inequitable to require it to pay restitution. Specifically, it claims that, after receiving the $25,000 payment, it loaned an additional $21,000 to Verderose and that, "[h]ad [it] not received the $25,000 deposit, Verderose would not have been permitted to enter into another Promissory Note with [CMG]."
¶ 16 This argument is based on § 142 of the Restatement, entitled "Change of Circumstances," which provides:
(1) The right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.
(2) Change of circumstances may be a defense or a partial defense if the conduct of the recipient was not tortious and he was no more at fault for his receipt, retention or dealing with the subject matter than was the claimant.
Under this Restatement section, "[a]ny change of circumstances which would cause or which would be likely thereafter to cause the recipient entire or partial loss if the claimant were to obtain full restitution, is such a change as prevents full restitution." Id. cmt. b.
¶ 17 As the Restatement also points out, when the money received by mistake is used for the expenses of a business, there is generally no change of circumstances sufficient for the defense and restitution is required. Id. The defense may be applicable, however, if the business expenses were incurred "because of the receipt of the money and the amount of such payment was of such size that[,] considering the financial condition of the payee[,] it would be inequitable to require repayment." Id.
¶ 18 Arizona appellate courts have applied Restatement of Restitution § 142 only once.[3] In Capin v. S & H Packing Company, 130 Ariz. 441, 441, 636 P.2d 1223, 1223 (App. 1981), S & H agreed to pay TVD, a trucking company, for each truckload of produce TVD *948 delivered to Arizona from a farm in Mexico. Initially, TVD did not bill S & H for deliveries rejected at U.S. Customs that TVD returned to Mexico but, beginning with the 1978-1979 growing season, it began to do so. Id. When S & H's president learned S & H had been billed for these returned loads, he deducted those amounts from TVD's final invoice. Id. at 442, 636 P.2d at 1224. TVD brought suit seeking payment for the full balance of its final invoice. Id. at 441, 636 P.2d at 1223.
¶ 19 This court affirmed the trial court's ruling in TVD's favor. Citing § 142, we explained:
It is a firmly established general rule that money paid to another under the influence of a mistake in fact may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require a refund. In order that there may be such a change of position as will defeat an action to recover the money paid by mistake, the change must be detrimental to the payee, material and irrevocable.
Capin, 130 Ariz. at 442, 636 P.2d at 1224 (quoting Jonklaas v. Silverman, 117 R.I. 691, 370 A.2d 1277, 1281 (1977)) (citations omitted). The court found TVD had relied in good faith on S & H's payments, it would not have continued to haul the rejected produce if S & H had promptly objected or refused to pay, and S & H was therefore estopped under § 142 from claiming a credit for the payments. Id. These same principles must be considered here.
¶ 20 A Colorado case provides a factual situation more analogous to the facts in this case. In Commercial Factors of Denver v. Roche Constructors, Inc., 802 P.2d 1129, 1130 (Colo.Ct.App.1990), Roche was a general contractor. Roche's subcontractor took a $45,317 loan from Commercial and assigned to Commercial, as security, its right to payment under its contract with Roche. Id. Roche was aware of the assignment and made an initial payment to Commercial of $23,909. Id. Commercial then loaned an additional $10,528 to the subcontractor. Id. Roche paid Commercial another $26,323, but when the subcontractor failed to perform under the contract with Roche, Roche ceased payments to Commercial. Id.
¶ 21 Roche apparently sought restitution from Commercial for the full amount of the payments it had made, $50,232. Id. The Colorado Court of Appeals found that Commercial, by making a further loan to the subcontractor, had changed its position and was not required to pay restitution for the amount of that further loan. Id. In evaluating whether a change of position precludes restitution, the court reasoned as follows:
The decisive factor here in determining whether a change of position precludes a reimbursement of payments received is whether [Commercial] retained the benefit of the payments or was left in a worse position than if payment had been refused originally by Roche. If [Commercial] changed its position because of Roche's payments so that it no longer had possession of the money or was in a worse position than if Roche had refused to make that payment then the payee is exonerated from repayment, to the extent of such payment or payments.
Here, the position of [Commercial] was detrimentally changed by the $10,528 [ ] it paid out on the basis of the payments received from Roche. Thus, we conclude that Roche is entitled to reimbursement of $50,232 [ ], the total sum of the two payments, minus $10,528 [ ], the subsequent loan amount.
Id. at 1130-31 (citation omitted).
¶ 22 Like Commercial in the Colorado case, CMG may have changed its position based on the payment it received from Loiselle when it loaned Verderose an additional $21,000. The Loiselles, like Roche in the Colorado case, are entitled to at least $4,000 of reimbursementthe difference between the $25,000 payment from Loiselle and the $21,000 loan CMG provided Verderose. But there are questions of fact concerning whether the change of circumstances defense in § 142 is available to CMG and, if so, the extent to which the defense protects CMG from paying the remaining $21,000 in restitution.
*949 ¶ 23 Specifically, there are questions whether CMG was more at fault than the Loiselles for its receipt of the money, see supra ¶ 16; whether requiring CMG to pay restitution would cause CMG either entire or partial loss, see supra ¶¶ 16, 21; whether CMG provided Verderose the $21,000 loan because it had received the $25,000 payment, see supra ¶¶ 17, 21; and whether the amount of the additional loan was so large it would be inequitable to require CMG to pay full restitution, see supra ¶¶ 16-17.[4] The trial court therefore erred in granting the Loiselles summary judgment on their entire unjust enrichment claim.
¶ 24 The Loiselles argue that, based on the comments to § 142, this defense should be unavailable to CMG. They cite the following portion of comment b: "Where money has been paid which the payee has used for the payment of debts incurred prior to its receipt, such payment of debts does not constitute a change of circumstances which would prevent restitution." Restatement § 142 cmt. b. In such a situation, requiring the recipient to pay restitution is equitable because it does not cause the recipient any net loss but merely returns him to the status quo. See Federal Ins. Co. v. Smith, 144 F.Supp.2d 507, 524-25 (E.D.Va.2001); cf. Tyler v. Fireman's Fund Ins. Co., 255 Mont. 174, 841 P.2d 538, 541-42 (1992) ("change of circumstances" defense unavailable where recipient used mistakenly-received insurance proceeds to pay business debts).
¶ 25 Without further factual development, however, we cannot determine if this principle is applicable here. CMG asserts that, because it received the $25,000 payment, it loaned an additional $21,000 to Verderose. If its assertion is true and if CMG cannot easily recover against Verderose's estate, then an equitable determination must be made regarding whether CMG should be required to make full restitution to the Loiselles.
¶ 26 The Loiselles next assert the defense is unavailable here based on another portion of comment b to § 142, which provides:
Where because of fraud or a basic mistake of fact, money intended for the principal is paid to an unauthorized agent who does not bind his principal by the receipt of the money, the principal is nevertheless under a duty of restitution if, without his knowledge, he is thereby benefited either by having it deposited to his account or mingled with his money or by its use for the payment of his debts.
Restatement § 142 cmt. b. This portion of comment b does not apply here because the $25, 000 was not "paid to an unauthorized agent"rather, Loiselle deposited the money into CMG's account.
¶ 27 Additionally, that portion of the comment continues: "[T]he principal's duty of restitution is terminated or is diminished pro tanto" if, before he becomes aware of the facts, the agent withdraws all or part of the money or the money is stolen. Restatement § 142 cmt. b. Verderose, by procuring an additional $21,000 loan from CMG, may be in a position analogous to an agent who withdraws or steals part of the money. Therefore, CMG's duty of restitution may be terminated or diminished based on the change of circumstances defense as established in Restatement § 142.
¶ 28 Accordingly, we conclude that there are genuine issues of material fact to be resolved in determining if CMG has an equitable defense to the Loiselles' restitution claim. We agree, however, that the Loiselles are entitled to at least $4,000 in restitution, and we affirm the trial court's judgment in that amount. The Loiselles may be entitled to further restitution to the extent CMG is not protected by the equitable defense under § 142 of the Restatement. Upon making the factual determinations set forth above and any other relevant determinations, the trial *950 court will have broad discretion to fashion a suitable equitable remedy. See City of Tucson v. Whiteco Metrocom, Inc., 194 Ariz. 390, 395, ¶ 19, 983 P.2d 759, 764 (App.1999) ("In actions for equitable relief, we defer to the trial court's discretion in fashioning the remedy."); see also New England Mut. Life Ins. Co. v. Hastings, 733 F.Supp. 516, 519-20 (D.R.I.1990) (stating application of § 142 cannot be "mechanical or technical" but depends on unique facts of each case).
Joint and Several Liability
¶ 29 The trial court found CMG and the Lineses are jointly and severally liable for the $25,000 restitution. CMG and the Lineses challenge this ruling, arguing the Loiselles have not established any legal basis for disregarding CMG's corporate entity and for holding the Lineses, CMG's owners, individually and personally liable. We agree that summary judgment should not have been granted in the Loiselles' favor on this issue.
¶ 30 "A basic axiom of corporate law is that a corporation will be treated as a separate entity unless there is sufficient reason to disregard the corporate form." Standage v. Standage, 147 Ariz. 473, 475, 711 P.2d 612, 614 (App.1985). As a separate entity, the personal assets of a corporate officer may not normally be reached to satisfy corporate liabilities. Id. at 476, 711 P.2d at 615. A corporate entity will be disregarded, and the corporate veil pierced, only if there is sufficient evidence that 1) the corporation is the "alter ego or business conduit of a person," Dietel v. Day, 16 Ariz.App. 206, 208, 492 P.2d 455, 457 (1972); and 2) disregarding the corporation's separate legal status is "necessary to prevent injustice or fraud." State v. Angelo, 166 Ariz. 24, 27, 800 P.2d 11, 14 (App. 1990).
¶ 31 The parties to the transaction in this case were Loiselle and CMG. Loiselle issued a check to CMG, not to the Lineses, and the check was deposited into CMG's account. The Loiselles have presented copies of a number of cancelled checks which may support an inference that CMG and the Lineses were disregarding the corporate entity of CMG. This evidence is insufficient, however, to support summary judgment in favor of the Loiselles to the effect that the Lineses are individually liable for the amount of any restitution that may eventually be awarded to the Loiselles. We therefore vacate this portion of the summary judgment in favor of the Loiselles and remand for further factual determination.
CONCLUSION
¶ 32 For the foregoing reasons, we affirm the trial court's grant of summary judgment in favor of the Loiselles on their unjust enrichment claim for $4,000, but we vacate the order pertaining to the remaining $21,000 and remand for further proceedings. We also vacate the trial court's order granting summary judgment in favor of the Loiselles on the issue of joint and several liability of the Lineses.
¶ 33 CMG and the Lineses have requested an award of attorneys' fees incurred on appeal under A.R.S. § 12-341.01 (Supp.2009). Without deciding whether this statute is applicable, in the exercise of our discretion we decline to award attorneys' fees to CMG and the Lineses. They are, however, entitled to taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCURRING: SHELDON H. WEISBERG, Presiding Judge, and PHILIP HALL, Judge.
NOTES
[1] "In the absence of law to the contrary, Arizona generally follows the Restatement." Hunnicutt Constr., Inc. v. Stewart Title and Trust of Tucson Trust No. 3496, 187 Ariz. 301, 306 n. 6, 928 P.2d 725, 730 n. 6 (App.1996). The parties rely on various sections of the Restatement in their respective appellate briefs, and we rely on the Restatement throughout this opinion.
[2] We note that the Restatement also provides that creditors generally owe no duty to make restitution if another mistakenly pays the creditor for the debts of a third person. See Restatement § 14(1). However, "this is not so if the third person has procured the mistake," Industrial Indem. Co. v. Truax Truck Line, Inc., 45 F.3d 986, 990 (5th Cir.1995), as has occurred here.
[3] Section 142 is mentioned in Maricopa County v. Cities and Towns of Avondale, 12 Ariz.App. 109, 113, 467 P.2d 949, 953 (1970), but is not applied in that case.
[4] For CMG to successfully assert the change of circumstances defense, it must also show it has unsuccessfully attempted to recover this money from Verderose's estate or that it would be futile to attempt recovery. See M.L. Cross, Annotation, What constitutes change of position by payee so as to preclude recovery of payment made under mistake, 40 A.L.R.2d 997 § 3(a) (1955); see also Capin, 130 Ariz. at 442, 636 P.2d at 1224 (stating change of position must be irrevocable). CMG need not necessarily suffer the expense of bringing a suit against Verderose's estate, however. See 40 A.L.R.2d 997 § 3(a).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2983085/
|
Dismissed and Memorandum Opinion filed November 20, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00766-CV
ZAHID IQBAL, Appellant
V.
WILD WEST PLUMBING, Appellee
On Appeal from the County Court at Law No. 3
Fort Bend County, Texas
Trial Court Cause No. 13-CCV-051472
MEMORANDUM OPINION
According to information provided to this court, this is an appeal from a
judgment signed August 19, 2014. The clerk’s record has not been filed. On
October 24, 2014, the Fort Bend County Clerk’s office notified this court that
appellant has not paid for preparation of the record. In addition, our records show
that appellant has not paid the $195.00 appellate filing fee. See Tex. R. App. P. 5
(requiring payment of fees in civil cases unless indigent); see also Order Regarding
Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals and
Before the Judicial Panel on Multidistrict Litigation, Misc. Docket No. 13-9127
(Tex. Aug. 16, 2013) (listing fees in court of appeals); Tex. Gov’t Code ' 51.207
(same). On October 6, 2014, this court notified appellant that the filing fee was
past due and the appeal was subject to dismissal unless appellant paid the fee by
October 16, 2014. No response was filed.
On October 24, 2014, notification was transmitted to all parties of the
court’s intention to dismiss the appeal for want of prosecution unless, within
fifteen days, appellant paid or made arrangements to pay for the record and
provided this court with proof of payment. See Tex. R. App. P. 37.3(b). Appellant
has not provided this court with proof of payment for the record or filed any other
response to the court’s notice.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices McCally, Brown, and Wise.
2
|
01-03-2023
|
09-22-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/2615043/
|
69 Wash. App. 31 (1993)
847 P.2d 25
THE STATE OF WASHINGTON, Respondent,
v.
KENNETH NESTRE LEE, Appellant.
No. 27779-1-I.
The Court of Appeals of Washington, Division One.
March 15, 1993.
Suzanne Lee Elliott of Washington Appellate Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and John L. Belatti, Deputy, for respondent.
KENNEDY, J.
Kenneth Nestre Lee challenges his conviction of first degree robbery contending that the prosecuting attorney's office violated state law by failing to follow its own guidelines in determining the initial charge and that the charge was then amended to a higher degree based on vindictiveness of the prosecuting attorney.[1] Finding that, pursuant to RCW 9.94A.430, the prosecutorial charging decision at issue is not subject to judicial review and that there is no evidence of prosecutorial vindictiveness, we affirm.
FACTS
On August 13, 1990, as Laurie Tsutakawa was exiting her home and proceeding toward her car, her purse was grabbed. She was wearing her purse around her neck and waist. She was knocked down and dragged for approximately 20 feet by her assailant before the purse strap broke. During this incident, *33 Ms. Tsutakawa was screaming, calling for help and yelling for someone to call the police. As Ms. Tsutakawa was dragged along the sidewalk, she suffered abrasions down to the cartilage on her hand and arm. She was treated at the emergency room after the incident. She later developed an infection in the abrasion on her arm and she suffered from nausea, sore ribs and a sore neck for several weeks after the incident.
On August 15, 1990, appellant was charged by information with second degree robbery in connection with the incident. The prosecutor's omnibus application, filed September 6, 1990, stated that the State would move to amend the charge to robbery 1 (injury). In the omnibus order, dated September 7, 1990, it was noted that the matter would be presented for jury trial.
The information was amended to robbery in the first degree on September 27, 1990. Appellant was found guilty by jury trial. This appeal followed.
DISCUSSION
I
Charging Decision
Appellant first contends that his conviction must be overturned because, given the evidence against him, the prosecutor charged him with too severe a crime under King County prosecuting attorney charging standards, in violation of RCW 9.94A.440.
RCW 9.94A.440(2) states in pertinent part that the "prosecutor should file charges which adequately describe the nature of defendant's conduct." Although we recognize the validity of RCW 9.94A.440 in establishing guidelines for prosecutors in making charging decisions, we reject appellant's attempt to secure judicial review of his conviction based on his perception of the prosecutor's noncompliance with this statute.
[1] It is true that the United States Supreme Court has recognized that state statutes may create liberty interests which require constitutional due process protection if the *34 Legislature intended to create such a right. See Vitek v. Jones, 445 U.S. 480, 488, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980).[2] However, no intent to create a substantive right with respect to specific charging standards is apparent in RCW 9.94A.440. Indeed, it is clear that the Legislature did not intend to create such a right. RCW 9.94A.430 specifically states that the prosecution standards "may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party in litigation with the state."
As stated by Professor Boerner in Sentencing in Washington, a work relied on by our Supreme Court in denying judicial review of a prosecutorial charging decision in another context,[3]
[t]he minutes of the Sentencing Guidelines Commission make it clear that this result [judicial review of charging decisions] was not intended....
This provision was taken from the Department of Justice policies, where its intent is stated to be "to foreclose efforts to litigate the validity of prosecutorial actions alleged to be at variance with these principles or not in compliance with internal office procedures....
It is clear the Sentencing Guidelines Commission and the Legislature intended to prevent judicial review of these decisions.
(Footnotes omitted.) D. Boerner, Sentencing in Washington § 12.24, at 12-47 (1985).[4]
*35 We do not foreclose the possibility that charging decisions may be challenged on other grounds,[5] but we reject appellant's attempt to challenge his conviction based on alleged noncompliance of the prosecutor's charging decision with state law when the Legislature has clearly indicated that no substantive or procedural rights were created by this law.
II
Amendment of Charge
Appellant next contends that the judgment must be overturned because he was convicted of a crime which the prosecutor charged out of vindictiveness. Specifically, appellant alleges that the charged crime was amended from robbery in the second degree to robbery in the first degree based on his refusal to plead guilty to the crime with which he was originally charged. He also argues that by failing to follow the applicable charging standards, the prosecutor prima facie acted vindictively. "Prosecutorial vindictiveness is [the] intentional filing of a more serious crime in retaliation for a defendant's lawful exercise of a procedural right." State v. McKenzie, 31 Wash. App. 450, 452, 642 P.2d 760, review denied, 96 Wash. 2d 1024 (1981). Prosecutorial vindictiveness must be distinguished, however, from the rough and tumble of legitimate plea bargaining.
In Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663, reh'g denied, 435 U.S. 918, 55 L. Ed. 2d 511, 98 S. Ct. 1477 (1978), the United States Supreme Court found no violation of a defendant's due process rights when a state prosecutor carried out threats made in the course of plea negotiations to seek a habitual offender indictment if the defendant refused to plead guilty to the initial charge. *36 The prosecutor offered to recommend a 5-year prison term in exchange for a plea of guilty to the initial charge. A habitual offender conviction would subject the defendant to life imprisonment, a fact well known to defendant Hayes. The defendant rejected the plea bargain. The prosecutor obtained the habitual offender indictment. The defendant was convicted and sentenced to life in prison. His due process challenge eventually made its way to the United States Supreme Court.
Because the habitual offender charge was fully supported by the evidence, because the prosecutor disclosed his intentions from the outset of the plea negotiations, because the defendant was represented by counsel and fully informed of his options and because the defendant was free to accept or reject the prosecutor's offer, there was no violation of due process in the plea bargaining process. Hayes, 434 U.S. at 359-65.
[2, 3] Plea bargaining is a legitimate process, so long as it is carried out openly and above the table, between prosecutors and defendants who are represented by counsel and fully informed. That a prosecutor may offer "hardball" choices to a defendant does not make the process constitutionally unfair, so long as the choices are realistically based upon evidence and options known to both sides.
Just as a prosecutor may legitimately reduce an initial charge as the result of a successful plea bargain,[6] he or she may legitimately increase an initial charge which was filed in the expectation that a fully informed and represented defendant would plead guilty to the lesser charge, when that expectation proves to be unfounded. United States v. Goodwin, 457 U.S. 368, 378-80, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982).
Prosecutors have broad discretion with respect to charging decisions. An individual charging decision will depend upon many factors, including the prosecutor's analysis of the *37 strength of the evidence, the possible defenses and the public purpose to be served by the prosecution. State v. Judge, 100 Wash. 2d 706, 713, 675 P.2d 219 (1984); RCW 9.94A.440. Plea bargaining which is conducted openly and fairly between fully informed parties serves a legitimate public purpose. Without such plea bargaining our already congested judicial system would grind to a virtual halt.
An initial charging decision does not freeze prosecutorial discretion. A mere opportunity for vindictiveness is an insufficient reason for limiting prosecutorial discretion. Although a given defendant may be able to prove objectively that there has been actual vindictiveness in a charging decision following unsuccessful plea negotiations, absent such a showing, there is no violation of due process merely because a prosecutor "ups the ante" by amending to a higher charge. Goodwin, 457 U.S. at 382-84.
Our Washington case law is in accord with these federal cases. See McKenzie, 31 Wn. App. at 453; State v. Bockman, 37 Wash. App. 474, 488, 682 P.2d 925, review denied, 102 Wash. 2d 1002 (1984); State v. Lass, 55 Wash. App. 300, 306, 777 P.2d 539 (1989).
Here, Lee has presented no evidence of actual vindictiveness. Although the prosecutor's charging guidelines suggest an initial charge of first degree theft or second degree robbery for purse snatching, these same guidelines state that first degree robbery should be charged in any robbery where substantial injury is inflicted on the victim. Ms. Tsutakawa received a serious although not a life-threatening injury. Her injury could fairly be viewed as substantial. Here there is no evidence whatsoever that the prosecutor's ultimate charging decision had anything to do with Lee's request for a jury trial. In fact, Lee received notice of the prosecutor's intention to amend the charge before he requested a jury trial.[7]
A defendant's ultimate protection against overcharging lies in the requirement that the State prove all elements of *38 the charged crime beyond a reasonable doubt. Lee does not challenge the sufficiency of the evidence to prove the crime of first degree robbery beyond a reasonable doubt. He does not allege any constitutional unfairness in the plea negotiations which preceded the prosecutor's ultimate charging decision.
Were we to accept Lee's premise, a legitimate plea negotiation tool would be removed from the plea bargaining process. Prosecutors would not be likely to exercise their legitimate discretion to charge a lesser offense initially in the reasonable expectation of obtaining a guilty plea, thus saving the State from the necessity of protracted plea negotiations and/or a trial.
Although Lee argues that the prosecutor "overcharged" him, the fact that his otherwise unchallenged conviction is supported by substantial evidence belies that claim. Lee rejected an offer to plead guilty to a lesser included charge. Having rejected that offer and suffered the consequences, he asks this court to reverse and remand "for the filing of the proper charge." Brief of Appellant, at 12. There being no support in fact or in law for this request, we reject it.
We affirm the judgment.
PEKELIS, A.C.J., and SCHOLFIELD, J., concur.
Review denied at 122 Wash. 2d 1003 (1993).
NOTES
[1] In his pro se brief, the appellant also challenges his conviction based on a claimed violation of his right to a speedy trial. A thorough review of the record indicates no evidence of such a violation. Accordingly, we reject this challenge.
[2] But see Smith v. Shettle, 946 F.2d 1250, 1254 (7th Cir.1991) ("Procedural regulations are not a source of constitutional entitlements".).
[3] See State v. Lewis, 115 Wash. 2d 294, 299, 797 P.2d 1141 (1990).
[4] Professor Boerner also recognizes the federal case law which indicates that legislative procedural enactments may create a substantive right, but rejects their application in cases such as this one, due to the clear legislative intent expressed.
This [federal case law] argument assumes, of course, that the prosecuting standards governing the initial charging decisions were intended to and did create rights enforceable by individual defendants or victims. It is clear that what the Legislature intended was to provide "guidance for prosecutors," not to create "a right or benefit." Since under current due process analysis the creation of the right is an essential precondition to the requirement of procedural protections surrounding its exercise, a finding that no individual right was created will be fatal to attempts to assert that the nonenforceability provision violates due process.
(Footnotes omitted.) D. Boerner, Sentencing in Washington § 12.24, at 12-48 (1985).
[5] See, e.g., State v. Judge, 100 Wash. 2d 706, 713, 675 P.2d 219 (1984) (Even with a prosecutor's broad discretion in charging, constitutional rights may be implicated if the charging decision is based on an illegal or unconstitutional motive.).
[6] A prosecutor should not overcharge to obtain a guilty plea, however. Cf. RCW 9.94A.440(2) "ALL OTHER UNCLASSIFIED FELONIES", (2)(a), (b).
[7] Even the reverse would not necessarily raise an evidentiary inference of prosecutorial vindictiveness. See Goodwin, 457 U.S. at 383.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615044/
|
847 P.2d 810 (1993)
Quinn Gail JOHNSON, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-89-1200.
Court of Criminal Appeals of Oklahoma.
February 12, 1993.
As Corrected on Denial of Rehearing February 26, 1993.
ORDER DENYING REHEARING AND DIRECTING ISSUANCE OF MANDATE
Petitioner has filed a Petition for Rehearing which requests this Court to grant a rehearing in Johnson v. State, Case No. F-89-1200, (Okl.Cr. January 11, 1993) (Summary Opinion Not For Publication). Petitioner, and others similarly situated, have alleged due process violations as a result of the use by this Court of the summary opinion format in deciding his case. See 22 Ohio St. 1991, Ch. 18, App. Rule of the Court of Criminal Appeals, Rule 3.14(B)(2).
He claims, essentially, that because the opinion is in summary form, this Court did not give his case the individual consideration it is due. Accordingly, petitioner alleges that the summary opinion format violates *811 his right to Due Process under the Fourteenth Amendment to the United States Constitution [and, presumably the Oklahoma Constitution].
We agree with petitioner that "the procedures used in deciding appeals must comport with the demands of the Due Process Clauses of the Constitution." Evitts v. Lucey, 469 U.S. 387, 393, 105 S. Ct. 830, 834, 83 L. Ed. 2d 821 (1985). We also agree "when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution and, in particular, in accord with the Due Process Clause." Id. at 401, 105 S. Ct. at 839. Petitioner, however, argues when this Court issues a summary opinion, such as it did in his case, he is effectively denied his right to a meaningful rehearing. Pursuant to Rule 3.14(B), a petitioner on rehearing has the right to call to this Court's attention decisive questions and controlling authority not considered by this Court in its original opinion. Petitioner argues that due to the skeletal, summary opinion format, a petitioner on rehearing has no means to evaluate whether such decisive questions or controlling authority have been considered, and thus no basis upon which to plead the requisite omissions. We disagree.
The Legislature has dictated "[a]ll opinions of the Criminal Court of Appeals (now the Court of Criminal Appeals) must be given in writing and recorded in the journal." 22 Ohio St. 1991, § 1071. However, the Legislature also dictated "[t]he decisions of the Court of Criminal Appeals shall be in such form as the Court shall specify. They shall be filed with the papers in the case and shall be treated as part of the record in the case;... ." 20 Ohio St. 1991, § 49.
The requirement that an opinion be "given in writing" is to ensure that this Court give careful and thoughtful consideration to each case. Summary opinions of this Court carefully set out each proposition of error alleged by appellant all of which are thoroughly reviewed. A decision to reject a given proposition is conscious and not inadvertent.
As the state appellate court with exclusive jurisdiction in criminal matters, our primary role is to review the trial record for any alleged errors, as well as to announce and apply principled rules to guide our state's citizens, trial courts and criminal litigators. See United States v. Cruz, 581 F.2d 535, 541 (5th Cir.1978). Implicit in this role is the duty to render judgment on the trial court's actions.
There is no state or federal constitutional right to an opinion which contains a full compendium of legal citations to each issue raised. See Taylor v. McKeithen, 407 U.S. 191, 194 n. 4, 92 S. Ct. 1980, 1982 n. 4, 32 L. Ed. 2d 648 (1972) (in discussing a federal appellate court's decision of an appeal without an opinion, the Court notes "[t]he courts of appeals should have wide latitude in their decisions of whether or how to write opinions. That is especially true with respect to summary affirmance."); see also Lego v. Twomey, 404 U.S. 477, 482 n. 6, 92 S. Ct. 619, 623 n. 6, 30 L. Ed. 2d 618 (1972) (reviewing a court of appeals' summary affirmance without comment on its summary nature); Furman v. United States, 720 F.2d 263, 264-65 (2d Cir.1983); Curci v. United States, 577 F.2d 815, 818 (2d Cir.1978) (scope and length of an opinion rests within the sound discretion of the judicial body issuing the opinion). Further, this is not the first time this Court has adopted an abbreviated opinion format to assist it. See e.g., Tucker v. State, 7 Okla. Crim. 634, 635-36, 125 P. 1089 (1912). Contrary to petitioner's implications, not all such opinions are, or were, summary affirmances. See, e.g., Casteel v. State, 25 Okla. Crim. 51, 52, 218 P. 1111 (1923).
There is currently a major concern that the quality of justice is being diminished by backlog at all levels of appellate criminal work, and that this backlog in turn contributes to a lack of finality of judgment in our law. It therefore is incumbent upon this Court to dispose of cases as expeditiously as possible, while remaining cognizant that no case is as important to an individual as the one which concerns him or her. To that end, we have determined that unnecessary verbiage and redundant literary exercises *812 are counter-productive. As a result, this Court has officially adopted the summary opinion format, for use when appropriate, to ensure a prompt and just disposition of the matters filed before it. In each case that comes before this Court, we thoroughly consider the entire record before us on appeal, including the original record, transcripts and all the authority and arguments contained in the briefs of the parties. This thorough consideration is reflected in language set forth in each summary opinion. A petitioner on rehearing is free to cite authority he or she may not think this Court has reviewed, or point out some question decisive of the case that was submitted by the attorney of record and overlooked by this Court.
We have reviewed Petitioner's allegations in his petition and find that he is not entitled to a rehearing. He has failed to show that our opinion in this case conflicts with current case law or an express statute; and, he has not presented this Court with any question decisive of the case that was submitted by the attorney of record and overlooked by this Court. See 22 Ohio St. 1991, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 3.14(B)(1) & (2).
Based upon the foregoing, this Motion for Rehearing is DENIED. The Clerk of this Court is ordered to issue the mandate forthwith.
IT IS SO ORDERED.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN,
Presiding Judge
/s/ Charles A. Johnson
CHARLES A. JOHNSON,
Vice Presiding Judge
/s/ James F. Lane
JAMES F. LANE,
Judge
/s/ Charles S. Chapel
CHARLES S. CHAPEL,
Judge
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3099399/
|
Order entered August 20, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00328-CR
CHRISTINA MARIE EMMERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F10-00776-Y
ORDER
The Court REINSTATES the appeal.
On July 10, 2013, we ordered the trial court to make findings regarding why the
reporter’s record had not been filed. On August 19, 2013, we received the reporter’s record.
Therefore, in the interest of expediting the appeal, we VACATE the July 10, 2013 order
requiring findings.
We note that none of the exhibits admitted into evidence were filed with the reporter’s
record. Accordingly, we ORDER Sharon Hazlewood, official court reporter of the Criminal
District Court No. 7, to file, within FIFTEEN DAYS of the date of this order, a supplemental
record containing copies of State’s Exhibit nos. 1, 1A, 2, 3, 4, 4A, 5, and 5A.
We ORDER appellant to file his brief within FORTY-FIVE DAYS of the date of this
order.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to Sharon
Hazlewood, official court reporter, Criminal District Court No. 7, and to counsel for all parties.
/s/ DAVID EVANS
JUSTICE
|
01-03-2023
|
10-16-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/3099402/
|
NO. 07-11-00158-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 27, 2012
MARTIN HERNANDEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2009-458,545; HONORABLE LARRY B. "RUSTY" LADD, JUDGE
Before HANCOCK and PIRTLE, JJ. and BOYD, S.J.1
MEMORANDUM OPINION
After the trial court overruled appellant’s, Martin Hernandez, motion to suppress
evidence, appellant entered a plea of guilty to possession of marijuana in an amount of
two ounces or less.2 The trial court assessed appellant’s punishment, pursuant to a
plea bargain, to confinement in the Lubbock County Jail for 20 days and all costs of
court. Appellant appeals his conviction asserting the trial court erred in overruling his
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West 2010).
motion to suppress the evidence. We agree with appellant and reverse the judgment of
conviction.
After appellant filed his brief, the State filed its brief and conceded that the search
in question was unlawful. After reviewing the brief and record, we conclude that the
State’s concession of error is well founded. Therefore, we find that the trial court
committed reversible error in overruling appellant’s motion to suppress the evidence
obtained as a result of the search of appellant. Accordingly, we reverse the judgment of
the trial court and remand this matter to the trial court for further proceedings consistent
with this opinion.
Mackey K. Hancock
Justice
Do not publish.
2
|
01-03-2023
|
10-16-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/4153062/
|
Matter of Lilakos v Lee (2017 NY Slip Op 01859)
Matter of Lilakos v Lee
2017 NY Slip Op 01859
Decided on March 15, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 15, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
BETSY BARROS, JJ.
2015-00841
(Index No. 8827/14)
[*1]In the Matter of Louis Lilakos, appellant,
vDerek Lee, etc., respondent.
Louis Lilakos, Richmond Hill, NY, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, NY (Richard Dearing and Amanda Sue Nichols of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Buildings Queens Commissioner dated June 13, 2014, which directed that the subject premises be vacated, the petitioner appeals from a judgment of the Supreme Court, Queens County (Gavrin, J.), entered November 12, 2014, which denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Buildings Queens Commissioner (hereinafter the Commissioner), which ordered that the petitioner vacate his two-family dwelling (hereafter the property). The Commissioner determined that there was "imminent danger to life or public safety or safety of the occupants or to the property" because the petitioner illegally converted the property into a "transient use hostel without providing required means of egress, sprinkler system, [or] fire alarm," and because the property "exceeds the occupancy requirements." The Commissioner directed that the property remain vacant and unoccupied until the conditions giving rise to the order had been corrected and the order was rescinded. The Supreme Court determined that the petitioner was not entitled to rescission of the vacate order, denied the petition, and, in effect, dismissed the proceeding.
Contrary to the Commissioner's contention, the appeal has not been rendered academic by the fact that the petitioner has sold the property. In light of the petitioner's claim that some of the proceeds from the sale remain in escrow pending resolution of this proceeding, it cannot be said that the petitioner's rights would not be directly affected by rescission or annulment of the vacate order (see generally Matter of AAA Carting & Rubbish Removal, Inc. v Town of Clarkstown, 132 AD3d 857, 858).
However, contrary to the petitioner's contention, he failed to demonstrate that he was entitled to rescission or annulment of the vacate order on the basis that the Commissioner's determination to issue the vacate order was illegal, an abuse of discretion, or arbitrary and capricious (see generally Administrative Code of City of NY § 28-207.4; Matter of El Nazer v Department of [*2]Hous. Preserv. & Dev. [Code Enforcement], 35 AD3d 857, 858; East 13th St. Homesteaders' Coalition v Wright, 217 AD2d 31, 39).
The petitioner's remaining contentions either are without merit or need not be reached in light of our determination.
DILLON, J.P., ROMAN, HINDS-RADIX and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
|
01-03-2023
|
03-15-2017
|
https://www.courtlistener.com/api/rest/v3/opinions/2524188/
|
953 N.E.2d 1281 (2011)
WEST
v.
WEST.
No. 22A01-1102-DR-45.
Court of Appeals of Indiana.
September 20, 2011.
BARNES, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
ROBB, C.J., concurs.
BRADFORD, J., concurs.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615027/
|
847 P.2d 36 (1993)
Linda M. ABELL, Appellant (Plaintiff),
v.
Roger W. DEWEY and the State of Wyoming, Appellee (Defendant).
No. 92-41.
Supreme Court of Wyoming.
February 16, 1993.
Rehearing Granted March 16, 1993.
*37 Nicholas Vassallo and Harold F. Buck of Buck Law Offices, Cheyenne, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Josephine T. Porter, Sr. Asst. Atty. Gen., Cheyenne, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT[*] and GOLDEN, JJ.
GOLDEN, Justice.
Linda Abell appeals the district court's grant of summary judgment for appellee State of Wyoming in a case involving her termination as a probationary employee. We reverse and remand for trial on the question whether reasonable cause existed for termination and whether appellee Roger Dewey's actions violated appellant's rights under 42 U.S.C. § 1983.
ISSUES
Appellant presents the following issues on appeal:
A. Did Linda Abell have an implied contract of employment under the state personnel rules which required "cause" for her termination?
B. Did Linda Abell have a property interest in her employment, protected by 42 U.S.C. Section 1983, which entitled her to due process of law?
C. Were Linda Abell's due process rights violated?
D. Did the State of Wyoming breach its contract of employment with Linda Abell by terminating her without sufficient cause?
The State of Wyoming argues the issues in the following manner:
I. Appellant has no constitutionally protected property interest in continued employment and is thus not entitled to the procedural protection of due process.
II. Appellee Dewey is entitled to qualified immunity for any actions taken in his individual capacity.
III. Appellee Dewey did not violate any rights appellant may have in pre-termination due process.
IV. The district court correctly granted summary judgment on the breach of contract claim as there are no admissible, material facts that dispute the district court's decision that appellant's conviction provided reasonable cause for her termination.
FACTS
Appellant Linda Abell was employed from October 1976 to May 1984 by Natural Gas Processing in Worland as an accountant responsible for all financial records. On October 25, 1984, the district court of Washakie County found Abell guilty of the crime of felony larceny in violation of Wyo. Stat. § 6-3-402(a) (1983) for taking checks worth $193,737.52 from Natural Gas Processing over a five-year period. Abell pled nolo contendere to the charges and was placed on probation for five years.
Abell applied for the position of Natural Resources Production Principal Auditor in the Minerals Audit Division of the Department of Audit for the State of Wyoming on June 20, 1989. The state employment application form specifically asked the applicant to answer yes or no to question # 21: "Have you ever been convicted of an offense in a court of law?" In filling out the *38 application form, appellant consulted with her counsel as to the appropriate response to this question. Abell testified that her attorney said the answer to the question was no; as that did not make sense to her, she left the answer blank.
In an employment interview with John F. McGrath, Audit Manager, appellant stated that she had left her position with Natural Gas Processing because of "two very personal and painful lawsuits with my employer" and that a civil suit had been settled out of court. Abell did not discuss the criminal law suit with McGrath.
Appellant was sent a letter of employment from McGrath on July 10, 1989, and began working for the State of Wyoming on August 1, 1989. Appellant later informed the then Acting Director of Audit, Stan Hunt, that criminal charges had been filed against her by her former employer, and that she was on probation for embezzlement and had pled nolo contendere to the charge. Appellant also stated that she was limited in what she could discuss concerning the criminal charges because of the civil suit that had been filed. Hunt requested that appellant obtain a letter from Probation and Parole about the incident, which Hunt then reviewed and placed in appellant's personnel file. Appellant stated that Hunt requested the letter so if a question ever came up concerning this issue he could say "I [am] aware of it and it is not a problem."
Roger W. Dewey became Director of the Department of Audit on October 15, 1989, a short time after Abell was hired. Dewey stated that by the second week of his employment he was aware of Abell's criminal involvement from her application form containing the unanswered question and a letter in her file from Probation and Parole. Hunt informed Dewey that he did not have a problem with Abell's continuing employment.
On January 8, 1990, at a meeting with Carol Petera, Dewey's personnel manager from the Department of Audit, and Robert Ortega, Director of Probation and Parole, Dewey learned that Abell was a convicted felon. On January 10, Dewey met with Abell, informed her that her situation was becoming a problem and asked for her resignation. Abell did not resign, and Dewey sent her a letter of termination on January 16, 1990, dismissing her as a probationary employee. Dewey noted his reasons for termination as "circumstances involved in your criminal case" and that:
There is reasonable cause to believe that, as a professional person auditing oil and gas companies, your previous record will have an adverse effect on the credibility of the audits performed by this office, and that your continued employment is detrimental to the operation of the agency.
Abell requested a dismissal hearing from the Department of Administration and Information (DAI), formerly known as the Department of Administration and Fiscal Control. On February 6, 1990, DAI denied the hearing request because of her probationary status as an employee at the time of her termination for reasonable cause. In his letter to Abell denying the request, Mike Miller, Personnel Administrator of that department, cited Chapter XI, Section 3(c)(ii) of the State of Wyoming Personnel Rules. Chapter XI, Section 1(a) lists reasons for discipline of an employee.
Dewey admits that Abell's work was good and that "[t]here's never been any question about her ability or the quality of her work." Dewey also stated that "the real issue is whether the person's offense and conviction is going to impair in the State's view or anybody else's view the credibility of the work produced by the person. That's the issue." Dewey stated that even a felony would not be a factor unless it were work related and commented that: "Linda wasn't terminated because of her performance. Linda was terminated because she is a convicted felon."
Abell filed suit on January 14, 1991, claiming breach of contract by the State of Wyoming, violation of due process rights under 42 U.S.C. § 1983 against Roger Dewey for refusing to allow her to present her side of the story prior to termination, and violation of due process rights by the State of Wyoming for failure of the state personnel *39 rules to require a pre-termination hearing for probationary employees. Appellees answered the complaint on February 6, 1991, and filed a motion for summary judgment on July 26, 1991. Abell filed a motion for partial summary judgment on July 29, 1991. Appellant sought to add Mike Miller as a defendant by motion on August 27, 1991, which was not ruled upon by the court. On January 14, 1992, the district court entered an order granting summary judgment for appellees and denying appellant's motion for partial summary judgment. Abell now appeals this order.
STANDARD OF REVIEW
Once again we repeat our standard of review for summary judgment:
When reviewing the propriety of a summary judgment, this court examines the record from the vantage point most favorable to the party opposing summary judgment to determine whether there exists a genuine issue of material fact to preclude disposition of the case as a matter of law. A genuine issue of material fact exists when a disputed fact, if proved, would have the effect of establishing or refuting an essential element to the cause of action or defense asserted by the parties. If upon such review no genuine issue of material fact is found to exist, we will uphold a summary judgment under any legal theory properly supported by the record.
Ulrich v. United Services Auto. Ass'n, 839 P.2d 942, 945 (Wyo.1992) (quoting Equality Bank of Evansville, Wyoming v. Suomi, 836 P.2d 325, 328 (Wyo.1992)).
DISCUSSION
1. Reasonable cause for discharge
In deciding this case, we find a framework to guide our analysis in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, (1985). We must first determine whether appellant had "a property right in continued employment." Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491, 84 L.Ed.2d at 501. If a reasonable expectation of continued employment cannot be shown, then there is no "property interest under state law or otherwise." Leonard v. Converse County Sch. Dist. No. 2, 788 P.2d 1119, 1121 (Wyo.1990) (quoting Roberts v. Lincoln County Sch. Dist. No. 1, 676 P.2d 577, 579 (Wyo.1984)). If a property right is found to exist, appellant may not be deprived of that right without due process of law.[1]Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491, 84 L.Ed.2d at 501; Town of Upton v. Whisler, 824 P.2d 545, 549 (Wyo.1992).
As instructed by Loudermill, we look not to the Constitution to define the existence of a property right, but to "existing rules or understandings that stem from an independent source such as state law" to determine its creation and dimensions. Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491, 84 L.Ed.2d at 501 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)). With this guideline in mind, we examine the rules before us to determine whether appellant was conferred such a right. We begin by noting rules that have been interpreted as providing a property right.
An Indiana state statute that did not permit a commission to change a probationary firefighter's status unless "his `conduct or capacity' was found `not to be satisfactory'" was held to impose a "substantive standard" and confer upon the probationer a reasonable expectation that his status would not be altered. Marvin v. King, 734 F.Supp. 346, 354 (S.D.Ind.1990). That court stated:
In order to give rise to a constitutionally-protected property interest, a statute or ordinance must go beyond mere procedural guarantees to provide some substantive criteria limiting the state's discretionas can be found, for example, in a requirement that employees be fired only "for cause."
Marvin, 734 F.Supp. at 350 (quoting Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir. *40 1989), cert. denied, 493 U.S. 992, 110 S.Ct. 540, 107 L.Ed.2d 537).
In Lewis v. Hayes, 152 Ill.App.3d 1020, 505 N.E.2d 408, 106 Ill.Dec. 102, (1987), the plaintiff brought a § 1983 action against the Village of Bradley for the failure to hire plaintiff, a probationary police officer, as a full-fledged police officer once he qualified for the eligibility hiring list. Under rules enacted by the Village, a probationary employee could be terminated if "he is found incompetent or disqualified for the performance of his duties," following the submission of written reasons for the termination by the police chief. The court viewed these provisions as a "for cause requirement" that once established must be followed. Lewis, 106 Ill.Dec. at 105, 505 N.E.2d at 411. In essence, the Village, by enacting these rules, had created a "protectable property interest" in employment as a probationary police officer. Lewis, 106 Ill.Dec. at 105, 505 N.E.2d at 411.
Our considerations in the instant case affect the interpretation of the state personnel policies and are facilitated by our discussion in Mobil Coal Producing, Inc. v. Parks, 704 P.2d 702 (Wyo.1985). In Mobil Coal, we considered whether an employee handbook outlining infractions which would subject the employee to discipline as well as a procedure for progressive discipline could alter an at-will employment arrangement. In our review, we stated, "Not only does the tenor of the foregoing reflect the necessity for the existence of cause for discharge, but it specifically requires such." Mobil Coal, 704 P.2d at 706. We found that the "handbook's provisions change the appellant's unfettered right to discharge appellee at any time and without cause." Mobil Coal, 704 P.2d at 707.
In another case involving interpretation of an employee handbook, we stated:
The mere existence of a handbook or employer's manual will not
"make employment other than at will in all instances. Each case must be considered on its own merits. Some handbooks or manuals may not contain provisions which negate the employment at will. Some handbooks or manuals may be ambiguous or may not have apparent meaning, making the determination of their effect on at will employment a question of fact. Normally, the construction and interpretation of a contract is for the court as a matter of law."
Leithead v. Am. Colloid Co., 721 P.2d 1059, 1063 (Wyo.1986) (quoting Mobil Coal, 704 P.2d at 707). In that case, we found that a handbook listing such misconduct as absenteeism and lateness in arriving for work to contain terms that were clear and unambiguous and that "[b]y listing misconduct that could result in discharge, the handbooks imply that cause is required." Leithead, 721 P.2d at 1063. "[B]oth the specific terms and the general tenor of the handbooks gave appellant an enforceable right to be discharged only for cause." Leithead, 721 P.2d at 1063.
In the instant case, a specific limitation on the state's discretion to dismiss probationary employees is contained in the state's personnel rules:
(ii) Dismissal of Probationary and Other Non-Permanent Employees. An agency head may dismiss an employee having other than permanent status, without right of appeal, for reasonable cause upon providing written notification to the employee specifying:
(A) The reason(s) for the dismissal; and
(B) The effective date of the dismissal.
State of Wyoming Personnel Rules, Ch. XI, Section 3(c)(ii) (emphasis added). We hold this to be "precisely the type of limit on discretion that provides the basis for a property interest."[2]Marvin, 734 F.Supp. at 354.
*41 We consider the State of Wyoming Personnel Rules to be the equivalent of an employee handbook or manual. As in Leithead, we now ask whether the terms concerning discharge of a probationary employee are clear and unambiguous. We find that the state has specifically declared in Ch. XI, Section 3(c)(ii) that a probationary employee may be discharged only for "reasonable cause." The rules further list types of misconduct that constitute "for cause" reasons. That section states:
(a) An agency head may discipline an employee for cause including, but not limited to, the following reasons:
(i) Absenteeism;
(ii) Incapacity to perform assigned duties;
(iii) Assault;
(iv) Carelessness;
(v) Damaging State property;
(vi) Dishonesty;
(vii) Insubordination;
(viii) Misconduct;
(ix) Refusal to work;
(x) Sexual harassment;
(xi) Theft;
(xii) Unsatisfactory work performance;
(xiii) Violation of agency rules or policy;
and
(xiv) Violation of the State Personnel Rules.
Ch. XI, Section 1(a).
We find the terms given in Sections 1(a) and 3(c)(ii) of Chapter XI to be clear and unambiguous and, as in Leithead, "gave appellant an enforceable right to be discharged only for cause." Leithead, 721 P.2d at 1063.
We now ask, as in Mobil Coal, whether the state complied with the provisions of its personnel rules. Mobil Coal, 704 P.2d at 707. Dewey stated that Abell's work was good and that "[t]here's never been any question about her ability or the quality of her work." Dewey made clear the reason he terminated Abell when he stated: "Linda wasn't terminated because of her performance. Linda was terminated because she is a convicted felon."
We note that a felony conviction is not among the list of non-exclusive reasons for discipline given in the state personnel rules. We conclude that it remains a question for the jury, under the facts of this case, recognizing both the quality of appellant's work and that she was continued in employment after the conviction was made known, whether appellant's prior conviction is reasonable cause for termination.
2. 42 U.S.C. § 1983 action against Dewey.
Appellant claims that Dewey, acting under color of state law, terminated her in violation of state personnel rules and deprived her of property without due process of law by refusing her an opportunity to present her side of the story and meaningfully oppose the evidence against her prior to termination. The trial court granted Dewey summary judgment on this claim.
On appeal, Dewey claims to have qualified immunity from suit under 42 U.S.C. § 1983 for his actions. "Government officials performing discretionary functions may be shielded from liability for civil damages in a § 1983 action by the doctrine of qualified immunity." Breault v. Chairman of Bd. of Fire Comm'rs, 513 N.E.2d 1277, 1283 (1987). "Qualified or `good faith' immunity is an affirmative defense that must be pleaded by a defendant official." Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396, 408 (1982) (citing Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)).
In discussing the parameters of qualified immunity, the Supreme Court has said:
One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.
*42 Siegert v. Gilley, 500 U.S. ___ _ ___, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277, 287 (1991).
Essentially, qualified immunity confers the entitlement to "immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 425 (1985). However, certain considerations may defeat a claim of qualified immunity. The Supreme Court has addressed this issue, stating:
[W]e have held that qualified immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury * * *."
Harlow, 457 U.S. at 815, 102 S.Ct. at 2737, 73 L.Ed.2d at 409 (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214, 225 (1975)).
Immunity generally is available only to officials performing discretionary functions. * * * [T]he judgments surrounding discretionary action almost inevitably are influenced by the decisionmaker's experiences, values, and emotions. These variables explain in part why questions of subjective intent so rarely can be decided by summary judgment.
Harlow, 457 U.S. at 816, 102 S.Ct. at 2737, 73 L.Ed.2d at 409.
In a recent opinion involving qualified immunity, we set out the following:
[T]he right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Park County v. Cooney, 845 P.2d 346, 351-352 (Wyo.1992) (quoting Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523, 530 (1987)) (citations omitted).
We went on to say in Cooney, that an "established right is one recognized by either the highest state court in the state where the case arose, a United States Court of Appeals, or the United States Supreme Court." Cooney, at 352 (citing Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir.1988)). We continued, saying, "the right need not have been previously recognized in the exact circumstances of the given case; a reasonable official is required to `relate established law to analogous factual settings.'" Cooney, at 352, (quoting People of Three Mile Island v. Nuclear Reg. Comm'rs, 747 F.2d 139, 144 (3d Cir. 1984)).
And the United States Supreme Court has said:
A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is "clearly established" at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits.
Siegert, 500 U.S. at ___, 111 S.Ct. at 1793, 114 L.Ed.2d at 287.
We have determined that the state personnel rules give a probationary employee a reasonable expectation of continued employment and thereby create a corresponding property interest. Once a property interest is created, due process rights attach. See Loudermill. We conclude that appellant's property interest in continued employment invokes a concomitant right to due process before deprivation of this interest. This right has been clearly established. We do not decide what process *43 is due, only that appellant is entitled to due process as a matter of law.
We hold that the recognition of due process rights entitles Abell to maintain the 42 U.S.C § 1983 claim against Dewey and that summary judgment was improperly granted. It now becomes a question of fact whether this right was clearly established concerning probationary employees or whether the meeting held between Abell and Dewey prior to her termination was sufficient to satisfy the due process requirement. We remand this issue to the trial court for determination.
DISPOSITION
Linda Abell was terminated from her probationary position as an auditor for the State of Wyoming because of a prior felony conviction. The state personnel rules are clear in requiring "reasonable cause" for the dismissal of a probationary employee and, as such, create a property interest in employment with the concomitant right to due process prior to deprivation. We remand this case to the district court to determine whether a felony conviction constitutes "reasonable cause" under the state's personnel rules. Appellant's 42 U.S.C. § 1983 claim against Dewey survives for resolution by the district court concerning the issue of Dewey's qualified immunity for his actions in appellant's termination.
THOMAS, J., files a concurring and dissenting opinion.
THOMAS, Justice, concurring and dissenting.
I agree with the result of the majority opinion with respect to the claim against the State of Wyoming. That aspect of the summary judgment should be reversed and the case remanded for trial on that claim. I would, however, articulate the rationale for that reversal differently in some respects. With respect to the summary judgment in favor of Roger W. Dewey, I would give him the benefit of the doctrine of qualified immunity and, in disagreement with the majority of the court, I would affirm that aspect of the summary judgment.
I agree with the majority that the State of Wyoming Personnel Rules should be considered as equivalent to an employee handbook or manual. I am reluctant, however, to suggest that the Personnel Rules create a property interest in a probationary employee in the context of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The injustice that I am concerned with in this case is not the deprivation of Linda Abell's property right in her State employment. I am concerned with the possibility that the reasonable cause of which she was notified in the termination letter was a reason that she had been told would not be invoked. I would perceive a felony conviction as a reasonable cause for termination in most instances, even though it is not specifically included in the reasons for discipline found in the personnel manual. The same Personnel Rules specifically disavow any right of review and require nothing more than a statement of reasonable cause in the termination letter. Recognition of a general property right in favor of a probationary employee would mean that those provisions are inconsistent with the due process rights articulated in Loudermill.
The difficulty in this instance, as I perceive the facts, is that a special condition of employment was attached to Abell's contract. That condition, in effect, was that the State would not discharge her for the felony conviction. After the State learned of the conviction, Abell was reassured that it was not a problem, and the conviction would not be invoked for termination. It seems to me that this feature did create a property right by virtue of the contract that would foreclose that ground for discharge. Any letter of termination would have to articulate some other reasonable cause.
I believe that the State recognized this inherent barrier because the termination letter, while it referenced the felony conviction based upon a plea of nolo contendere and asserted that reason for discharge, articulated other reasons. Dewey also stated that Abell could not adjust to the auditor *44 position; her record did not meet State standards; and her criminal record would have an adverse effect on the credibility of audits performed by the State. The record does not support the charge that Abell could not adjust to the auditor position, nor does it support the claim that she failed to meet State standards so far as work performance is concerned. The adverse effect of the criminal record on the credibility of audits, if not simply an evasion of the special condition of employment, is a highly subjective matter about which reasonable persons could disagree. Consequently, if that is the reasonable cause for termination as required by the Personnel Rules, in my judgment, the reasonableness of the termination must be tested in a factual context. These are my reasons for requiring a trial.
With respect to the summary judgment in favor of Dewey, there is nothing in the record that would support a conclusion of malice on Dewey's part. I am not satisfied that the contours of any right of Abell's were sufficiently clear that a reasonable official would recognize a letter of termination like the one delivered in this case as violative of Abell's property interest. This is particularly true because of the very limited contractual property right that I find present in these circumstances. I would hold that Dewey was entitled to the benefit of the doctrine of qualified immunity in the context of Park County v. Cooney, 845 P.2d 346 (Wyo. 1992), and Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
I would reverse the summary judgment granted to the State of Wyoming, remanding the case for trial on the question of whether the impact of Abell's conviction on the integrity of the State auditing process was a reasonable cause for termination. I would affirm the summary judgment in favor of Roger W. Dewey on the ground that he has demonstrated his right to the benefit of the doctrine of qualified immunity.
NOTES
[*] Chief Justice at time of oral argument; retired January 1, 1993.
[1] Because appellant seeks only damages, not reinstatement or a post-termination hearing, we acknowledge only appellant's possible rights in this area and do not fully address this issue.
[2] At this juncture, we note that by acknowledging the existence of a property interest, we acknowledge also the due process rights that attach. As stated by the Loudermill Court:
While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.
Loudermill, 470 U.S. at 541, 105 S.Ct. at 1493, 84 L.Ed.2d at 499 (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15, 40-41 (1974). As previously stated, we do no more than acknowledge these rights.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3347187/
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The parties were at issue and were heard over one and one-half days of trial. Residence requirements have been satisfied and neither party has been the recipient of public assistance. The allegations in the complaint were proven and true. All pertinent criteria outlined in Chapter 815j of the General Statutes were considered by the court in the entry of the following orders.
ORDERSDISSOLUTION OF MARRIAGE
The marriage is dissolved on the grounds of an irretrievable breakdown.
CUSTODY AND VISITATION
The stipulation of the parties dated October 31, 2000, entitled CT Page 13547 STIPULATION RE: CUSTODY VISITATION, was reviewed by the court, found to be in the best interests of the minor child, and is incorporated herein by reference.
CHILD SUPPORT
The Husband shall pay to the Wife child support in the amount of $166.00 per week in accordance with the child support guidelines pursuant to a contingent wage withholding order. Child care expenses, when and if incurred, are to be paid in accordance with the percentages shown in the guidelines, currently 52% by the Husband and 48% by the Wife.
LIFE INSURANCE
The Husband shall name the minor child beneficiary on $100,000.00 of life insurance insuring his life until he no longer has any obligation for child support. He shall furnish the Wife with satisfactory evidence, at least annually and upon reasonable request, that he is insured as ordered. This order shall be subject to modification.
MEDICAL INSURANCE
The Husband shall continue to maintain the medical and dental insurance he now has in force for the benefit of the minor child. All un-reimbursed medical and dental expenses incurred by the child shall be shared in accordance the percentages specified in the child support guidelines. The provisions of this paragraph shall be subject to modification.
The Husband shall cooperate with the Wife in her application for COBRA medical insurance benefits. He shall be solely responsible for the cost of COBRA, represented to be $188.70 per month for medical and $38.76 per month for dental, for a period not exceeding three years, or sooner if the Wife becomes employed at a position in which medical insurance is offered as an incident of employment. The cost to the Husband shall be considered alimony for tax purposes.
ALIMONY
No alimony is awarded to either party.
REAL ESTATE
The Husband shall quitclaim to the Wife all of his right, title and interest in the marital residence located at 38 Basking Brook Lane, Shelton, subject to the outstanding mortgage which she shall assume and save the Husband harmless from any and all claims regarding same. Within CT Page 13548 one year from date, the Wife shall cause the Husband's name to be removed from any legal liability on said mortgage. In the event she does not remove the Husband's name, the court shall retain jurisdiction in order to determine an appropriate remedy which could include a sale of the premises.
PERSONAL PROPERTY
The furniture and personal possessions in the control of the respective parties shall remain their property without claim by the other. Each party shall retain their own bank accounts. The Wife shall retain the camping trailer and Roaring Brook campsite. The Husband shall retain the Rhode Island time share. The Husband shall retain the 2000 Galant automobile and the Wife the 1999 Galant subject to the outstanding loan which she shall assume and save the Husband harmless from any and all claims regarding same. Within one year from date she shall cause the Husband's name to be removed from said obligation. In the event she does not remove the Husbands name, the vehicle is to be sold or returned to the secured party.
RETIREMENT ASSETS
The Husband shall retain his retirement benefits at United Technologies without any claim from the Wife.
LIABILITIES
Each party shall assume the liabilities shown on their respective financial affidavits.
COUNSEL FEES
No counsel fees are awarded to either party.
TAXES
The Husband shall be entitled to claim the dependency exemption for the minor child. This paragraph is subject to modification.
By April 15 of each year, until there is no longer any obligation for child support, the parties shall exchange their complete IRS returns in order to determine that the support payment is appropriate under the circumstances then existing.
MISCELLANEOUS
CT Page 13549
Each party shall sign any necessary documents to effectuate the orders contained herein.
Plaintiff's counsel shall prepare the judgment file, have it certified by defendant's counsel, and file it with the court within 30 days.
The Court
By CUTSUMPAS, J.
|
01-03-2023
|
07-05-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/1963304/
|
375 Pa. 257 (1953)
Commonwealth
v.
Bibalo, Appellant.
Supreme Court of Pennsylvania.
Argued September 28, 1953.
November 9, 1953.
*258 *259 Before STERN, C.J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Patrick J. Sheridan, with him Morton W. Stephens, for appellant.
Robert G. Dean, District Attorney, Susquehanna County, for appellee.
OPINION BY MR. JUSTICE ARNOLD, November 9, 1953:
A jury found the defendant guilty of murder in the first degree and the death penalty was imposed. The only defense presented was legal insanity.
The verdict established the following facts: The defendant, 20 years of age, was making his home with his grandmother at Uniondale, Susquehanna County, and had been visiting his mother at Simpson, Lackawanna County, just previous to December 10, 1951. At about nine o'clock in the morning of that day he left her home and went to Forest City, Susquehanna County, where he arrived at about 10:00 o'clock A.M. *260 He then went to a beer garden and had at least four drinks and began "hitch-hiking" his way to Uniondale. The victim, Anthony Shema, of Forest City, picked up the defendant. While travelling the defendant asked Shema if he were going hunting and upon receiving an affirmative answer, told him he knew of a good place to hunt, and the victim asked him to go along. In his confession the defendant said that at this time ". . . I thought that would be a good time to shoot him, while hunting, and I could get his car." They drove to the home of defendant's grandmother where defendant alighted, went into the house and came out with a 22 caliber rifle. They walked into the woods until they came to a stone wall, where both of them sat down. They were watching for deer and at that time, as stated by defendant in his confession, "I was again thinking about having the car, so I aimed the gun at his head and pulled the trigger. He then fell off the wall and I walked over to him and I saw that he was still living, so I took the gun by the barrel and hit him over the neck, the back of the neck, and I hit him about five times until the gun broke. I guess he was dead then, so I took the parts of the gun and threw them over the wall. I then pulled his gun from under him and reached into his watch pocket and took the keys for his car and took five shells from his hunting coat."
Shortly after the killing the state police were requested to investigate a report of a missing hunter known as Anthony Shema of Forest City. The officers made inquiries at Forest City and later sent out a teletype message describing the missing hunter and his automobile. They learned that a postal clerk had seen a person driving a car similar to Shema's and that the driver had had difficulty with it. Upon receiving a description of the vehicle and the operator, *261 and after further inquiries, the police officers became suspicious of the defendant and went to his grandmother's home. The defendant was not there, but later the officers made the arrest. Defendant then led them to the spot where the body of Anthony Shema was found and showed them where he had thrown the parts of the gun, which he identified. The victim's car, with its license tags removed, was found in New York state near the Pennsylvania state line. The defendant stated that he had abandoned the car and removed the license plates to hide the identity of it. He made an oral confession at the time of his arrest and later signed a written statement before a justice of the peace. He then made a second trip to the scene of the crime with the officers and the coroner. The coroner's examination of the body disclosed that underneath the victim's collar a deep laceration appeared across the back of the neck. The defendant was asked about this and said that he had inflicted the cut with the victim's own knife, and later stated that he "tried to cut the head off so the body could not be identified, so he could hide the head."
We have reviewed both the law and the evidence to determine whether the ingredients necessary to constitute murder in the first degree were proved to exist: Act of 1870, P.L. 15, § 2, 19 PS § 1187. Beyond any doubt these elements were proved to exist.
On the question of whether or not the defendant knew the difference between right and wrong (which is the test of legal insanity), two qualified psychiatrists for the defendant, Dr. Claude R. Young and Dr. Francis M. Ginley, testified that in their opinion the defendant did not know the difference between right and wrong, nor did he know the consequences of his act at the time he committed it. Dr. Young testified that the defendant was a "low grade moron" (being *262 of a mental age of eight to nine years); and according to Dr. Ginley he was a high grade moron of 10 to 11 years. The rest of their testimony had to do with the history of the defendant as related by lay witnesses, which they took into consideration.
The Commonwealth called Dr. John Shovlin who was superintendent of the Farview State Hospital for the Criminal Insane. He expressed the opinion, and he was well qualified, that the defendant did know the difference between right and wrong, that although he was mentally defective, he was not so defective that he did not know what he was doing; and that he knew the nature and quality of his act and the consequences of it. He testified that defendant's I.Q. was determined to be 75, and that the normal ranges being from 90 to 110, the probable average would be 87.[1] He further stated that it would be difficult to express an opinion that the defendant was a low grade moron or a high grade moron. In his opinion the defendant was somewhere between a low grade and a middle grade moron with mental age between 9 and 10 years, was not insane, and could not be placed in the Farview State Hospital.
The fact that the defendant had been committed to the Pennsylvania Institution for Defective Delinquents at Huntingdon; that he had had one leg shorter than the other until he was some eleven years of age; and that he was somewhat of a problem child, are, at the most, matters which may aid the expert in pronouncing his final judgment, that is, whether the defendant knew the difference between right and wrong. The question of whom the jury should believe was exclusively *263 for it, and this question was resolved against the defendant.
On this state of facts unquestionably the court was not required as a matter of law to reduce the sentence from death to life imprisonment merely because the defendant was unstable and either a moron or a mental defective. See Commonwealth v. Elliott, 371 Pa. 70, 89 A.2d 782, where the defendant had a low mental level and had been three times sent to correctional institutions.
We next pass to the additional contentions of the appellant.
(1) The first relates to the court's admitting in evidence a written confession made by the defendant. The written confession was preceded by an oral confession which was already in evidence. They were obtained without threat or inducement that might secure a false confession. The mere fact that the defendant was in custody when he made the confessions did not make them any less voluntary: Commonwealth v. Spardute, 278 Pa. 37, 48, 122 A. 161; Commonwealth v. Smith, 374 Pa. 220, 97 A.2d 25. The case of Turner v. Pennsylvania, 338 U.S. 62, is not in point, for in that case the confession was obtained as a result of interrogation by relays of police officers constituting mental torture or pressure to such an extent as to exclude the voluntary element in the confession, making it rather an eventual yielding to the continuous pressure of questioning and breaking down the resistance of the defendant. In the instant case the defendant was not threatened and no one hovered over him. He was simply asked what he did and why. The fact that he had no counsel does not invalidate the confession: Commonwealth v. Agoston, 364 Pa. 464, 72 A.2d 575; Commonwealth v. Smith, supra. There is no evidence that the defendant was at any time motivated *264 by fear. On the contrary the evidence discloses the fact that he was unafraid. Both confessions were voluntary and were clearly admissible.
(2) The defendant attacks the admission of a photograph of the deceased on the ground that it was especially designed to arouse the jurors' emotions. In the first place, in a homicide case the admission of photographs showing the body of the deceased is largely within the discretion of the trial court, and an error will not be predicated by this Court on the admission of such exhibits unless there is a flagrant abuse of the discretion. Commonwealth's exhibit was not gruesome, was necessary to the Commonwealth's case to explain the size and nature of the cut on the deceased's neck and the violence of defendant's attack upon him, and also as a visual aid to show that the defendant attempted to remove the decedent's head to prevent identification. The court below warned the jury against prejudice because of the photographs. "`All that the law requires is that photographs should not be introduced merely for the purpose of exciting the emotions of the jurors, but only where they are helpful in aiding them in their investigation of the crime and the defendant's guilt, and that purpose should be carefully explained to them. The matter is one for the exercise of the trial judge's discretion.'": Commonwealth v. Davis, 363 Pa. 91, 95, 69 A.2d 123. See also Commonwealth v. Patskin, 372 Pa. 402, 411, 93 A.2d 704.
(3) Defendant complains that the trial court erred in overruling defendant's challenge for cause, which was based upon the relationship of juror No. 11 to the deceased. The juror in question stated on her voir dire that she was related to the deceased but she did not know the degree, nor is it clear that she knew the deceased. She was clearly impartial. The *265 court below held that the matter was too remote and refused the challenge for cause. Defendant did not exhaust his peremptory challenges, and therefore he cannot complain that the court refused his challenge for cause: Commonwealth v. Spahr, 211 Pa. 542, 60 A. 1084. In addition, nothing short of palpable error will justify reversal of a trial judge in passing on a challenge for cause: Commonwealth v. Sushinskie, 242 Pa. 406, 413, 89 A. 564.
(4) We have examined carefully the defendant's position that the trial court erred in his charge to the jury on the burden of proof of insanity. We have read and re-read the charge and we find no error in it. Instead we find the charge to be most fair and accurate.
(5) The defendant contends that the court's charge was improper in regard to expert testimony. But here again the judge was calm and dispassionate. The question was: which set of experts should be disbelieved, the defendant's or the Commonwealth's? It is not how many pages of the charge were occupied with the review of defendant's expert testimony as compared with the number of pages of the transcript of the examination and cross-examination of defendant's experts. The court below stated succinctly what each of the experts testified. Keeping in mind that the question was whether the defendant knew the difference between right and wrong, no fair objection can be raised to the court's charge. We might also add that not even a general exception was taken to the charge, nor did the defendant ask for a more detailed exposition.
(6) The next contention of the defendant has to do with the court's expression of opinion to the jury, both as to the guilt of the defendant and as to the proper penalty. This portion of the charge is in the following words: "And we say to you, members of the *266 jury, at this point, that if you are satisfied beyond a reasonable doubt from all of the evidence in this case, if the Commonwealth has proven to you beyond a reasonable doubt from all of the evidence in this case, that this defendant unlawfully, maliciously, wilfully, premeditatedly and of his malice aforethought did kill and slay Anthony Shema, or unlawfully, feloniously, and maliciously did kill and slay Anthony Shema while in the act of perpetrating the felony of robbery, and there are no extenuating circumstances, it is our opinion that your verdict should be `guilty of murder in the first degree.' And if the defendant was sane and knew the consequences of, and the quality of his act, knew the difference between right and wrong and there are no extenuating circumstances, it is our opinion that he should receive the maximum penalty. However members of the jury, you must determine that at your discretion. You must not permit the opinion of the Court to influence you as it is only my opinion." (Italics supplied). Thus the defendant was fully protected. The court then charged the jury that "if you find this defendant guilty of murder in the first degree, you may consider the proof in insanity, which, even though it may not substantiate the charge of insanity, it may be sufficient to convince you that there are circumstances which would justify you in not administering the death penalty." (Italics supplied). These portions of the court's charge were unimpeachable.
Nobody could deny that the defendant committed a cruel and heartless murder. The trial judge merely said to the jury that if it believed the Commonwealth's expert, the penalty should be death if there were no extenuating circumstances. He then directed the jury to determine that issue at its discretion and stated the opinion of the court was not to influence its verdict *267 as it was only the court's opinion. He may express his opinion as to the guilt or innocence of the defendant provided this is done fairly and not arbitrarily, and provided he does not give a binding direction or interfere with the province of the jury. See Commonwealth v. Sykes, 353 Pa. 392, 398, 45 A.2d 43; Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20; Commonwealth v. Gable, 323 Pa. 449, 187 A. 393; Commonwealth v. Simmons, 361 Pa. 391, 407, 65 A.2d 353.
(7) It is next contended that the court erred in not instructing the jury that the testimony of all the psychiatrists should not be taken as factual, but should go only to testing the mentality and sanity of the defendant. This refers to the statement of Dr. Ginley on cross-examination that the defendant told the witness that he wanted to go to the electric chair. The question asked of Dr. Ginley on cross-examination was not objected to, nor was any motion made to strike out the answer. Furthermore, the defendant did not even call this matter to the attention of the court after the charge. In addition, the alleged omission to charge on this was not prejudicial to the defendant. In fact, it is indicated that defendant's counsel were satisfied that the answer the defendant gave the doctor would indicate insanity (that he wanted to go to the electric chair and not be institutionalized). Under the circumstances this cannot call for reversal. See Commonwealth v. Carelli, 281 Pa. 602, 127 A. 305; Commonwealth v. Winter, 289 Pa. 284, 137 A. 261; Commonwealth v. Mendola, 294 Pa. 353, 144 A. 292.
(8) Before the jury entered into its deliberations, one of the jurors sent a note to the trial judge as follows: ". . . If a verdict of 1st degree is brought in and life imprisonment recommended will the defendant be eligible for parole after any length of time? No one but me knows that I am asking this question. Thank *268 you. [Signed] J. Donlevy." The note was a private communication of this juror requesting information whether the defendant, if given life imprisonment, could ever be paroled. That was none of the jury's affair and it could not be considered by it. Had the note come from the jury, it would have been so informed. See Commonwealth v. Mills, 350 Pa. 478, 39 A.2d 572; Commonwealth v. Patskin, 372 Pa. 402, 93 A.2d 704. The court determined that "it was not proper, either to discuss the matter privately with him, or bring it to the attention of the jury by discussing it with him before them all. We anticipated that the question might arise during the jury's deliberation and that if this proved to be the case, we would in all probability receive a request for further instructions on this point. Apparently it never entered into their deliberations." The defendant was not harmed.
We have carefully examined the record and it is clear beyond the shadow of a doubt that the court below very painstakingly tried this case in a most impartial manner, and carefully safeguarded all the rights of the defendant. The facts were completely against the defendant, and under the court's unbiased charge the verdict of guilty, fixing the penalty at death, should not be disturbed.
Judgment of sentence affirmed.
NOTES
[1] He stated that "the basis of one hundred is actually too high . . . . So a probably just average would be eighty seven, based on one hundred".
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2983086/
|
Order filed November 20, 2014.
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00763-CR
____________
VINCENT JOHN ZAHORIK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Galveston County, Texas
Trial Court Cause No. MD-0322640
ORDER
The Court has granted appellant’s motion to reschedule oral argument. Oral
argument will be heard on January 12, 2015, at 1:30 p.m. Also pending is
appellant’s amended motion to substitute counsel. We ORDER counsel to deliver
a copy of the motion to appellant in person or by both certified and first-class mail,
in compliance with Texas Rule of Appellate Procedure 6.5(b). Counsel is directed
to certify to this Court compliance with the rule within ten days of the date of this
order.
In addition, the Court requests additional briefing to address: (1) whether a
showing of bad faith is required in this case under McGee v. State, 671 S.W.2d
892, 895 (Tex. Crim. App. 1984), and Wood v. State, 577 S.W.2d 477, 480 (Tex.
Crim. App. 1978); and (2) if so, whether there is sufficient evidence of bad faith to
support appellant’s conviction. Additional briefing, which may be in letter form, is
due on or before December 15, 2014.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
|
01-03-2023
|
09-22-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/1329169/
|
594 S.E.2d 107 (2004)
STATE of North Carolina
v.
Tyrone Anthony LANE.
No. COA03-510.
Court of Appeals of North Carolina.
April 6, 2004.
*109 Attorney General Roy Cooper, by Assistant Attorney General Newton Pritchett, for the State.
Robert T. Newman, Sr., Asheboro, for defendant-appellant.
BRYANT, Judge.
Tyrone Anthony Lane (defendant) appeals judgments dated 6 September 2002 entered consistent with a jury verdict finding him guilty of possession of cocaine with intent to sell or deliver, assault on a law enforcement officer, resisting, delaying or obstructing a public officer, driving while license revoked (01 CRS 29254), intentionally keeping or maintaining a vehicle for the purpose of keeping or selling controlled substances (01 CRS 29255), and having attained the status of habitual felon (02 CRS 1919).
At trial, Deputy Michael Howe testified he was in uniform but driving an unmarked patrol car on 5 December 2001. He was on the lookout for two brothers for whom arrest warrants had been issued when he spotted defendant driving a vehicle "at a low rate of speed." Defendant was driving in an area Deputy Howe often frequented when "attempting to locate subjects" with outstanding arrest warrants. Deputy Howe observed that defendant was not wearing a seatbelt. His suspicion aroused, Deputy Howe pulled in behind defendant's vehicle to follow it. Defendant operated his right turn signal but, after making "a few jerky motions with his head," turned left while the right turn signal was still blinking. Deputy Howe thought defendant might have recognized the license plates on his vehicle and become nervous. The officer was about to conduct a stop of defendant's vehicle when defendant made "a sharp, last-minute" turn onto another street. After following defendant to a parking lot, Deputy Howe next saw defendant standing on the driver's side of his vehicle and then observed his walking away. In fear that defendant "was going to take off running," Deputy Howe continued to follow defendant in his patrol car. No other person was in the vicinity.
Deputy Howe finally approached defendant and explained he had observed defendant driving without his seatbelt. Defendant nodded in response and stopped walking. When Deputy Howe asked to see defendant's driver's license, defendant replied he did not have one. After Deputy Howe had written down defendant's name, defendant started to walk away. Deputy Howe requested defendant to "step back towards [him]." Instead of complying, defendant pointed between two buildings, stating his intention to walk toward them, and continued in that direction. Deputy Howe warned defendant that he was conducting an investigation and would detain defendant if he did not stop walking. Deputy Howe spoke in a calm voice because defendant "appeared to be very nervous about something." Deputy Howe asked defendant to step over to his patrol car where he conducted a pat-down search of defendant to check for weapons. During the frisk, Deputy Howe came across an object in defendant's left jeans pocket. When Deputy Howe squeezed the item from the outside of defendant's clothing, defendant "jerked around," almost hitting the officer's face with his elbow. During the struggle that ensued, defendant "was able to throw something [in]to his mouth." Deputy Howe did not get a chance to see what that "something" was but noted that it came from defendant's pocket. As Deputy Howe "attempted to take [defendant] down to the ground" to place him under arrest for resisting an officer, defendant "repeatedly struck [him] in the face." Deputy Howe tried to get to his radio to call for assistance, but defendant struck "the mike" with his hand foiling the officer's attempt. Defendant then started running. Deputy Howe initially gave chase. After a short distance, however, Deputy Howe returned *110 to his vehicle, which was still running, and radioed for assistance in setting up a perimeter to detain defendant. Defendant was eventually found hiding underneath a pickup truck.
Following defendant's arrest, Deputy Howe returned to the parking lot to check on defendant's vehicle. Deputy Howe walked around the vehicle, noting that all the doors were locked and windows closed. Unable to find the keys to the vehicle, Deputy Howe ran its tags to contact the owner but was unsuccessful. A "wrecker service" was called to unlock the vehicle doors. After unlocking the doors, a canine unit conducted an exterior and interior sniff of the vehicle. On the exterior, the police dog alerted to the driver's door handle; and in the interior, it alerted "to the area of the front seat in between the front driver seat and the front passenger seat." When the canine officer checked the area between the front seats, he found a white envelope containing eight small Ziploc bags of cocaine. The parties stipulated that the envelope contained 4.4 grams of cocaine.
The issues are whether the trial court erred in: (I) denying defendant's motion to dismiss the charges of maintaining a vehicle for the purpose of keeping or selling controlled substances and possession of cocaine with intent to sell or deliver; (II) failing to dismiss the habitual felon indictment based on double jeopardy; and (III) overruling defendant's objection to being tried on the habitual felon charge during the same week as his arraignment on that charge.
I
Maintaining a Vehicle
Defendant first argues the trial court committed plain error by failing to dismiss the charge of maintaining a vehicle for the purpose of keeping or selling controlled substances based on our Supreme Court's holding in State v. Best, 292 N.C. 294, 233 S.E.2d 544 (1977). We disagree. In Best, our Supreme Court analyzed the North Carolina Controlled Substances Act and determined that a medical doctor could not be convicted for the sale and delivery of a controlled substance pursuant to N.C. Gen.Stat. § 90-95. Id. Instead, any violation by a medical professional would be governed by N.C. Gen. Stat. § 90-108. Id. at 310, 233 S.E.2d at 554. In this case, defendant appears to be basing his argument on the proposition that the holding in Best extends to laymen and therefore precludes a conviction of maintaining a vehicle for the purpose of keeping or selling controlled substances under N.C. Gen.Stat. § 90-108(a)(7). As the decision in Best focused solely on the role of medical practitioners, there is no indication that it applies to laymen. Accordingly, this assignment of error is overruled.
Alternatively, defendant assigns as error the trial court's denial of his motion to dismiss the charge due to insufficiency of the evidence. Specifically, defendant contends that evidence of drugs found in a vehicle on one occasion, without more, is insufficient to support the conclusion he maintained a vehicle for the purpose of keeping or selling controlled substances.
Upon review of a motion to dismiss, the court determines whether there is substantial evidence, viewed in the light most favorable to the State, of each essential element of the offense charged and of the defendant being the perpetrator of the offense. State v. Stancil, 146 N.C.App. 234, 244, 552 S.E.2d 212, 218 (2001), aff'd as modified, 355 N.C. 266, 559 S.E.2d 788 (2002) (per curiam); State v. Compton, 90 N.C.App. 101, 103, 367 S.E.2d 353, 355 (1988). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
In State v. Dickerson, this Court held that one isolated incident of a defendant having been seated in a motor vehicle while selling a controlled substance is insufficient to warrant a charge to the jury of keeping or maintaining a motor vehicle for the sale and/or delivery of that substance. State v. Dickerson, 152 N.C.App. 714, 716, 568 S.E.2d 281, 282 (2002). This Court reasoned:
Pursuant to N.C. Gen.Stat. § 90-108(a)(7), it is illegal to "knowingly keep or *111 maintain any ... vehicle ... which is used for the keeping or selling of [controlled substances]." The statute thus prohibits the keeping or maintaining of a vehicle only when it is used for "keeping or selling" controlled substances. As stated by our Supreme Court in State v. Mitchell, the word "`[k]eep' ... denotes not just possession, but possession that occurs over a duration of time." Thus, the fact "[t]hat an individual within a vehicle possesses marijuana on one occasion cannot establish... the vehicle is `used for keeping' marijuana; nor can one marijuana cigarette found within the car establish that element." Likewise, the fact that a defendant was in his vehicle on one occasion when he sold a controlled substance does not by itself demonstrate the vehicle was kept or maintained to sell a controlled substance.
Id. (quoting N.C.G.S. § 90-108(a)(7) (2001) and State v. Mitchell, 336 N.C. 22, 32-33, 442 S.E.2d 24, 30 (1994)) (alteration in original). The evidence in the case before us does not indicate possession of cocaine in the vehicle that occurred over a duration of time, nor is there evidence that defendant had used the vehicle on a prior occasion to sell cocaine. We therefore agree with defendant that his motion to dismiss should have been granted.
Possession of Cocaine
Defendant next contends the trial court erred in denying his motion to dismiss the charge of possession of cocaine with intent to sell or deliver because the evidence was insufficient on the element of constructive possession.
An accused has possession of [a controlled substance] within the meaning of the [North Carolina] Controlled Substances Act when he has both the power and intent to control its disposition. The possession may be either actual or constructive. Constructive possession of [a controlled substance] exists when the accused is without actual personal dominion over the material, but has the intent and capability to maintain control and dominion over it.
State v. Wiggins, 33 N.C.App. 291, 292-93, 235 S.E.2d 265, 267 (1977). Naturally, "power and intent to control [a] controlled substance can exist only when one is aware of its presence." State v. Matias, 143 N.C.App. 445, 448, 550 S.E.2d 1, 3, aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001). This Court has previously emphasized that "`constructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury.'" State v. Butler, 147 N.C.App. 1, 11, 556 S.E.2d 304, 311 (2001) (citation omitted) (emphasis omitted), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002). "The State is not required to prove that the defendant... was the only person with access to [the controlled substance]," State v. Rich, 87 N.C.App. 380, 382, 361 S.E.2d 321, 323 (1987); however, if control of the area in which the controlled substance is found is not exclusive, "constructive possession of the contraband materials may not be inferred without other incriminating circumstances." State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984).
Here, defendant contends his control over the vehicle he was driving was not exclusive because he was not the vehicle's owner and he had left it unattended after Deputy Howe approached him. As such, defendant argues the State's evidence of his presence in the vehicle was insufficient to support the charge in the absence of additional incriminating circumstances. Concluding that this case presents sufficient additional incriminating circumstances, we disagree.
The evidence showed Deputy Howe observed defendant driving "at a low rate of speed" in a vehicle containing an envelope with eight small Ziploc bags of cocaine apparently prepackaged for sale. Defendant's driving became evasive after Deputy Howe's patrol car approached defendant's vehicle from behind. When Deputy Howe finally confronted defendant in the parking lot, "[i]t was apparent [to Deputy Howe] that [defendant] was attempting to ... get away from [him]." The subsequent weapon's frisk resulted in forceful resistance by defendant after Deputy Howe began inspecting an object in defendant's jeans pocket. During the struggle that followed, defendant appeared to be destroying evidence by placing an object *112 in his mouth. Ultimately, defendant fled. See, e.g., State v. Neal, 109 N.C.App. 684, 687-88, 428 S.E.2d 287, 290 (1993) (sufficient incriminating circumstances supporting an inference of constructive possession where a large amount of cash was found on the defendant's person at the time of arrest and there was evidence from which a jury might infer an attempt to flee from the area where illegal drugs were found); see also State v. Weems, 31 N.C.App. 569, 571, 230 S.E.2d 193, 194 (1976) ("evidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession"). We further note that during the officer's investigation of defendant, their later struggle, and the subsequent police search for defendant, the vehicle defendant had driven remained locked. Based on these "other incriminating circumstances," defendant's argument notwithstanding, a juror could reasonably infer defendant had the power and intent to control the cocaine found next to the driver's seat in the vehicle and therefore constructively possessed the cocaine. The trial court thus did not err in denying defendant's motion to dismiss the possession charge.
II
Defendant also assigns as error the trial court's failure to dismiss the habitual felon indictment based on double jeopardy. In his brief to this Court, defendant states he was served with the substantive felony warrants, arrested, and later released on bond. Approximately two months later, defendant was served with a warrant for his arrest on the habitual felon indictment, whereupon he spent four days in jail until he could post an additional bond. Defendant now argues the four days he was imprisoned on the habitual felon warrant amounted to multiple punishments for the same offense in violation of double jeopardy. The record, however, reflects that the trial court, in sentencing defendant on the substantive felonies, gave defendant credit for those four days. Defendant's argument is therefore without merit.
III
Finally, defendant asserts the trial court erred in proceeding to trial, over his objection, on the habitual felon indictment in the same week as his arraignment on the charge. Defendant relies on N.C. Gen.Stat. § 15A-943, which provides in subsection (a) that in counties where there are twenty or more weeks per year of trial sessions of superior court at which criminal cases are heard, arraignments must be scheduled "on at least the first day of every other week in which criminal cases are heard," and in subsection (b) that "[w]hen a defendant pleads not guilty at an arraignment required by subsection (a), he may not be tried without his consent in the week in which he is arraigned."[1] N.C.G.S. § 15A-943 (2003). Defendant argues that no arraignment was scheduled according to section 15A-943(a) and, when the trial court did arraign him on 3 September 2002 on the habitual felon charge, he objected to proceeding to trial on the same day he was arraigned but was denied the one-week interval between arraignment and trial to which he was entitled under section 15A-943(b).
Our Supreme Court has held that it is reversible error to proceed with trial on the same day as arraignment without the defendant's consent. State v. Shook, 293 N.C. 315, 319-20, 237 S.E.2d 843, 847 (1977). Where, however, a defendant fails to file "a written request with the clerk of superior court for an arraignment not later than 21 days after service of the bill of indictment... [or, if applicable,] not later than 21 days from the date of the return of the indictment *113 as a true bill,"[2] N.C.G.S. § 15A-941(d) (2003), he has waived his right to arraignment and cannot raise violations of section 15A-943 as grounds for a new trial, see State v. Trull, 153 N.C.App. 630, 633-34, 571 S.E.2d 592, 595 (2002) (rejecting the defendant's claim of section 15A-943 violations in the absence of a written arraignment request in the record), disc. review denied and appeal dismissed, 356 N.C. 691, 578 S.E.2d 597 (2003). As previously held by this Court, "it would be illogical to require the State to schedule an arraignment pursuant to one statute where the right to such has been waived pursuant to another." Id. at 634, 571 S.E.2d at 595. As the record in this case contains no written request by defendant for an arraignment on the habitual felon charge, this assignment of error is overruled.
Defendant's conviction of maintaining a vehicle for the purpose of keeping or selling controlled substances is vacated and this case remanded for resentencing.
Vacated in part and remanded.
Judges TIMMONS-GOODSON and ELMORE concur.
NOTES
[1] The State argues in its brief to this Court that a defendant need not be arraigned on a habitual felon charge. Considering the purpose of an arraignment and this Court's previous application of the law on arraignments in the habitual felon context, we reject this proposition. See N.C.G.S. § 15A-941(a) (2003) ("[a]rraignment consists of bringing a defendant in open court..., advising him of the charges pending against him, and directing him to plead"); e.g., State v. Brunson, 120 N.C.App. 571, 578, 463 S.E.2d 417, 421 (1995) (applying standard arraignment law to habitual felon charge).
[2] The habitual felon indictment in this case was returned as a true bill on 29 January 2002.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2896636/
|
NO. 07-08-0281-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 1, 2008
______________________________
BRANDON LEWIS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 154
TH
DISTRICT COURT OF LAMB COUNTY;
NO. 4270; HON. FELIX KLEIN, PRESIDING
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON ABATEMENT AND REMAND
Following a plea of true on a motion to revoke probation, appellant Brandon Lewis was sentenced to two years confinement. He has filed a notice of appeal from the trial court’s judgment and sentence. The clerk’s record was filed on July 17, 2008, and the reporter’s record on July 7. The clerk’s record does not contain the trial court’s certification of appellant’s right of appeal as required by Rule 25.2(d) of the Texas Rules of Appellate Procedure.
(footnote: 1)
Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. On remand, the trial court shall utilize whatever means necessary to secure a proper Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly completed and executed, the certification shall be included in a supplemental clerk’s record to be filed with the Clerk of this Court by October 31, 2008.
It is so ordered.
Per Curiam
Do not publish.
FOOTNOTES
1:
As of September 1, 2007, a defendant must sign and receive a copy of the certification. Additionally, the new form provides certain admonishments to a defendant not previously required.
The proper form for the Trial Court’s Certification of Defendant’s Right of Appeal is contained in Appendix D to the 2008 Rules of Appellate Procedure.
|
01-03-2023
|
09-08-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/2615026/
|
252 Kan. 541 (1993)
847 P.2d 694
STATE OF KANSAS, Appellee,
v.
SANFORD DOUGLAS CLARDY, Appellant.
Nos. 67,041, 67,644
Supreme Court of Kansas.
Opinion filed March 5, 1993.
Lucille Marino, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Michael Grosko, assistant district attorney, argued the cause, and Michael A. Russell, assistant district attorney, Nick A. Tomasic, district attorney, and Robert T. Stephan, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.:
Sanford Douglas Clardy appeals his conviction of one count of aggravated robbery and his sentence of 15 years to life. Clardy claims the trial court erred in failing to instruct the jury on the offense of battery as a lesser included offense of aggravated robbery.
*542 Between 11:00 and 11:30 p.m. on October 2, 1990, Clardy, Marcus Eugene Coleman, Reginald Jones, and Dwayne Morgan were drinking alcoholic beverages in a Kansas City, Kansas, neighborhood. Walter Wright and Judy Summerville were walking to a grocery store in the same area. Words were exchanged between Jones and Wright. An altercation occurred. Clardy struck Wright, and Wright fell unconscious in the street.
Summerville ran to call the police. After Clardy walked away, Coleman and Jones took a small amount of money from the unconscious victim. After Clardy and his companions left the scene, a car ran over the unconscious Wright and dragged him some distance. Wright subsequently died from the injuries he sustained from being run over. Clardy, Coleman, and Jones were jointly charged, tried, and convicted of aggravated robbery.
After all the evidence had been submitted, the court instructed the jury on aggravated robbery and the lesser included offenses of robbery and theft. The defendant did not request the court to instruct the jury on the lesser offense of battery. On appeal, Clardy contends the trial court erred in failing to instruct the jury on battery as a lesser included offense of aggravated robbery.
Although Clardy failed to request an instruction on battery, the trial court's duty to instruct on lesser included offenses is independent of any such request. See State v. Cummings, 242 Kan. 84, Syl. ¶ 7, 744 P.2d 858 (1987). K.S.A. 21-3107 provides in part:
"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
"(a) A lesser degree of the same crime;
....
"(c) an attempt to commit a lesser degree of the crime charged; or
"(d) a crime necessarily proved if the crime charged were proved.
"(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced."
To determine whether the crime charged may include a lesser crime, a two-prong test has been developed. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required *543 to prove the crime charged. This approach is ordinarily fairly straightforward and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary. State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988).
The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This second step requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document constitute an allegation of a lesser crime than the crime charged and if the evidence which must be adduced at trial to prove the crime charged would also necessarily prove the lesser crime, the lesser crime is an "included crime" under K.S.A. 21-3107(2)(d). State v. Fike, 243 Kan. at 368. See State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987).
The information charged Clardy and the other defendants with a single count of aggravated robbery, alleging that they did "unlawfully, feloniously and willfully take property, to wit: money, from the person of another, to wit: Walter D. Wright, by force to the person of Walter D. Wright, and did inflict bodily harm upon Walter D. Wright, in the course of such robbery, in violation of K.S.A. 21-3427."
Aggravated robbery is "a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery." K.S.A. 21-3427. Robbery is "the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force." K.S.A. 21-3426. Battery is "the unlawful, intentional touching or application of force to the person of another, *544 when done in a rude, insolent or angry manner." K.S.A. 21-3412.
Clardy asserts that, because of the allegations of the information and the evidence which must be adduced at trial, under the second prong of the test for lesser included offenses, battery is a lesser included offense of robbery. He argues that under these circumstances the trial court is required to instruct the jury on the lesser offense of battery.
For authority Clardy relies on State v. Hill, 16 Kan. App.2d 432, 825 P.2d 1141, rev. denied 249 Kan. 777 (1991). Hill was charged with aggravated robbery by taking property by force and by inflicting bodily harm in the course of the robbery. Hill's defense was that, although he hit and kicked the victim, he did not take part in the robbery. (Here, Clardy admits hitting Wright but denies any part in the robbery.) The Hill court first noted that in State v. Warwick, 232 Kan. 232, 654 P.2d 403 (1982), using only a comparison of the statutory elements of the crimes, we held that battery and aggravated battery are not lesser included offenses of robbery or aggravated robbery. It observed that Warwick was decided before Adams and Fike, which set out the second step under 21-3107(2)(d), and determined that the single step used in Warwick was no longer the only step necessary to determine if a lesser crime is an included crime. The court then proceeded under the second prong of the test for lesser included offenses. The Hill court noted that the information filed against Hill did not specifically state the offense was committed "in a rude, insolent, or angry manner," but found that fact was not significant. It observed that at trial there was evidence that Hill hit and kicked the victim an element of the aggravated robbery charge but he denied that he robbed the victim. 16 Kan. App.2d at 436. The Court of Appeals determined the trial court erred in failing to instruct that battery was a lesser offense of aggravated robbery and reversed and remanded for a new trial.
Clardy points out that the State alleged in the information he intended to rob the victim and bodily harm was inflicted on the victim. Clardy admits he struck Wright, but claims he had no intent to rob the victim. Clardy contends, as in Hill, under the information and upon the evidence adduced, the court is required to instruction on the lesser offense of battery. Clardy points out his *545 evidence, the codefendant's testimony, and the State's evidence supported this theory.
The referenced testimony and statements are:
Clardy testified that he struck Wright and knocked him out and that about 15 minutes later Coleman and Jones went through Wright's pockets. He claimed he did not intend to steal money from Wright, did not discuss stealing money from Wright, and did not see Coleman or Jones take any money from Wright. He also stated he saw some money lying in the street and assumed it was from Wright's pockets.
Coleman testified that Clardy ran down the hill and struck Wright and then walked back up the hill. A short while later, according to Coleman, Coleman and Jones ran down the hill and took some money out of Wright's pockets. Coleman said that the taking of the money just happened, that no one knew they were going to do it, and that Clardy had not told him to go through Wright's pockets. He also said Clardy had not asked for any of the money taken from the victim or said anything about it.
Officer Fiscus testified that Coleman gave him a statement to the effect that Clardy had struck Wright with his fist and that Coleman and Jones had gone through the pockets of the unconscious man and had taken some change. He said Jones went through Wright's wallet and found nothing and replaced it inside Wright's pocket. Coleman said Clardy had not taken anything from the victim.
Detective Harris testified that Jones gave him a statement to the effect that Clardy had struck the victim. Nowhere in the interview did Jones say that Clardy took any money from Wright.
Clardy points out there is no evidence of an agreement between him and the others to rob the victim and no evidence that he assisted in the robbery.
There is no doubt that Clardy hit Wright. The dispute is whether Clardy had prior knowledge of or aided and abetted Coleman's and Jones' later act of robbing Wright. The State argues the evidence is that Clardy actually aided and abetted Coleman *546 and Jones in the robbery. The State asserts that because Clardy aided and abetted Coleman and Jones in the aggravated robbery and received part of the proceeds, the court is not required to instruct on the lesser offense of battery.
The problem with this argument is that it does not negate the evidence regarding Clardy's theory of the case. Clardy notes that, as in Hill, he was not charged as an aider and abettor in the information, and, as in Hill, the jury was instructed on that theory of liability. He argues, even if he could have hypothetically been convicted of aggravated robbery without having personally committed any of the acts set forth in the information, i.e., as an aider or abettor, that issue was resolved by Hill. We agree.
The State next argues that even under the second prong of Fike a jury instruction on battery was not warranted because an individual can be convicted of battery only if the touching is done in a rude, insolent, or angry manner. The State contends that, under the evidence adduced, the touching in this case was not done in a rude, insolent, or angry manner. The State points out that Clardy testified Wright said, "Which one of you think is tough enough come on with it." Clardy decided to defend himself and went towards Wright. Wright balled up his fist. Clardy defended himself by striking Wright, knocking him out. The State asserts that because Clardy was defending himself when he struck Wright, the striking was not "done in a rude, insolent, or angry manner," i.e., there was no battery. The State concludes Clardy's testimony, if believed, showed he was not guilty of either aggravated robbery or battery; therefore, there was no need for the court to instruct on the crime of battery.
The State asserts the Court of Appeals, in Hill, glossed over the statutory elements of battery when it stated:
"We do not think it can be seriously argued that the absence [from the complaint/information] of the words `in a rude, insolent or angry manner' is significant. The proof of the use of force to accomplish a taking of property from the person of another necessarily proves the application of the force in a rude, insolent, or angry manner." Hill, 16 Kan. App.2d at 436.
We note in this case that the jury was instructed "the term `bodily harm' is any touching of the victim against the victim's will, with physical force, in an intentional, hostile and aggravated manner." Based upon the information and the instruction, the *547 absence of the words "in a rude, insolent, or angry manner" is not significant.
The State's final argument is that Hill is not controlling. The State points out that the opinion in Hill was filed on July 19, 1991, and that Clardy's jury trial was in February 1991. At the time of the trial, according to the State, Warwick was controlling case law and that case held that battery was not a lesser included offense of aggravated robbery; presumably the trial court, by not affirmatively giving an instruction on battery as a lesser included offense, was adhering to Warwick. This argument is incorrect. Both Adams and Fike had been decided prior to Clardy's trial those cases were controlling case law.
Under K.S.A. 21-3107(3), the defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence. Where there is no substantial testimony applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. State v. Deavers, 252 Kan. 149, 154-55, 843 P.2d 695 (1992).
When an information alleges a robbery was accomplished by force and that bodily harm was inflicted in the course of the robbery, battery will not be a lesser included offense of the aggravated robbery unless there is substantial evidence to prove the lesser offense of battery has been committed. Under the particular circumstances of this case, there is substantial evidence that the lesser degree of the offense charged had been committed, and an instruction on battery as a lesser included offense was required.
Reversed and remanded for a new trial.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2235304/
|
929 N.E.2d 172 (2006)
367 Ill. App.3d 1100
DUFFY
v.
T-RICKS LTD.
No. 2-06-0234.
Appellate Court of Illinois, Second District.
October 6, 2006.
Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3347188/
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The plaintiff, Edna Hand, commenced this medical malpractice action on December 19, 1989, against the defendant, Dr. Morris Clark, M.D. The plaintiff alleged that she was injured by the defendant's failure to regulate and monitor her anticoagulant therapy, beginning on or around September 23, 1987. On August 17, 1991, Ms. Hand died and, on November 4, 1991, James Hand, the Executor of her Estate, was substituted as plaintiff. On October 28, 1991, Mr. Hand filed a request for leave to amend the complaint to include a claim for wrongful death as a result of the aforementioned incidents. On November 12, 1991, the defendant filed an objection to the plaintiff's request to amend the complaint, claiming that the wrongful death claim is time barred. Both parties submitted supporting memoranda.
The defendant contends that the plaintiff failed to state CT Page 1269 a cause of action for wrongful death within the three year statute of limitations contained in the Wrongful Death Act and, consequently, the request for leave to amend should be denied. The plaintiff states that its wrongful death claim relates back to the negligence originally complained of at the initiation of this suit and, therefore he should be permitted to amend the complaint
General Statutes Section 52-555 states that:
In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.
Id.1
A right of action for wrongful death "`belongs, in effect, to the decedent, and to the decedent alone . . . [T]he cause of action . . . [authorized by the statute] is a continuance of that which the decedent could have asserted had [she] lived and to which death may be added as an element of damage.'" (Citations omitted.) Anderson v. Steve Snyder Enter., Inc., 196 Conn. 134,149, 491 A.2d 389 (1985).
Connecticut's Supreme Court has held that General Statutes Section 52-555's three year limitation is a jurisdictional prerequisite which cannot be waived and must be met in order to maintain a wrongful death action. See Ecker v. West Hartford,205 Conn. 219, 226, 530 A.2d 1056 (1987). The defendant states that a plaintiff's failure to institute an action for wrongful death within the three year statute of limitations will result in said claim being time barred. However, the question here is whether a wrongful death claim relates back to a related action instituted within three years of the complained of act or omission. CT Page 1270
In Sharp v. Mitchell, 209 Conn. 59, 71-72 (1988), the court stated that:
A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. It is proper to amplify or expand which has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated. (Citations omitted.)
Id.
Furthermore, it has long been recognized that:
If the amendment essentially corrects or amplifies the claim originally presented it is always treated as relating back to the date the action was commenced . . . [and] no statute of limitations problem is presented. But, if the amendment introduces a substantially new claim, the amendment can be regarded as, in effect, a new lawsuit and therefore barred if the statute of limitations governing that claim has expired.
F. James G. Hazard, Civil Procedure Section 5.7 (2d ed.) See also Stephenson, Connecticut Civil Procedure, Section 993 (2d ed.) (stating that "[a] claim for additional damages for the same CT Page 1271 wrong may be added by amendment after expiration of the period of limitations since no new cause of action is being introduced"); Collens v. New Canaan Water Co., 155 Conn. 477 481, 234 A.2d 825
(1967). See also Giglio v. Connecticut Light Power Co.,180 Conn. 230, 239, 429 A.2d 486 (1980) (stating that amendments "`relate back to the date of the complaint unless they allege a new cause of action"'). (Citations omitted.)
Connecticut has specifically held that when one, "as the result of injuries inflicted, suffers during life, and death later results, there are not two independent rights of action. There is but one liability, and that is for all the consequences of the wrongful act including the death." Kling v. Tovello,87 Conn. 301, 306, 87 A. 987 (1913); Chase v. Fitzgerald, 132 Conn. 461,466, 45 A.2d 789 (1946); Ladd v. Douglas Trucking Co., 203 Conn. 187,195, 523 A.2d 1301 (1987).
In Bunnell v. Thomas A. Edison, Inc., 17 Conn. Sup. 467, ___ A.2d ___ (Super.Ct. 1950) the court was presented with a similar scenario. In Bunnell, supra, the complaint was filed February 8, 1950. The action stemmed from a February 28, 1949 automobile collision, and was initiated within one year of the date when the alleged breach of duty on the defendant's part took place. On March 26, 1950, the plaintiff died, allegedly as the proximate result of the injuries negligently inflicted upon him as set forth in the initial, February 8, 1950 complaint. On October 5, 1950 the complaint was amended to include a claim for wrongful death. The defendant demurred to this amended complaint, claiming that such is insufficient because "the said action was not instituted within the time limited by the statute which creates such causes of action." The then existing statute, General Statutes Section 8296 (Rev. 1949), stated that to "recover for a death under the statute, the action must be commenced within a period of one year next following the occurrence of the neglect or fault complained of which inflicted the injuries that caused the fatal consequences." Bunnell, supra, 469. Thus, the plaintiff in Bunnell would have to have filed a wrongful death claim no later than February 28, 1950. However, the Bunnell court acknowledged that a wrongful death claim "does not `create' a cause of action but merely continues the right to recover damages inhering in the person injured in his personal representative by whom it may be asserted after his death." Id., 468 The court stated:
[W]here the death results more than a year after the infliction of injuries and action to recover for such hurts eventually causing such death is begun within the period of one year following the infliction of the injuries causing CT Page 1272 the death, the complaint may be amended, or substituted complaint filed, as was done in the instant case, setting up the incident of death. In that case recovery will be enlarged by the fact of death so subsequently occurring . . . These principles require that the demurrer to the substituted complaint be overruled. (Citations omitted.)
Id.
In the present matter, the plaintiff alleges that the act or omission which was the subject of the plaintiff's initial negligence action is the same act or omission which resulted in Ms. Hand's death. In applying the standards articulated, supra, to the facts of this case, the plaintiff's wrongful death claim raises a question of fact as to whether the death resulted from the original claim of malpractice. However, for purposes of amending the complaint, the wrongful death action relates back to the filing of the original negligence claim and no statute of limitations problem exists. Additionally, General Statutes Section 52-599 provides that: "(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of . . . the executor or administrator of the deceased person." See Mahoney v. Lensink 213 Conn. 548, 550
n. 2, 567 A.2d 518 (1990). Therefore, the request for leave to amend is granted and the objection is overruled.
PICKETT, J.
|
01-03-2023
|
07-05-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/8326467/
|
Billings, Thomas P., J.
For the reasons that follow, defendant Lee’s Motion for Summary Judgment is ALLOWED; plaintiff North Shore’s cross-motion is DENIED; and final judgment is to enter for Lee, enforcing the December 28, 2009 arbitration award in full. Lee’s oral motion for real estate attachment is also ALLOWED, in the amount of $35,000.
PROCEEDINGS TO DATE
Lee purchased a condominium unit from North Shore, the developer of the condominium. Paragraph 8 of the Rider to the Purchase and Sale Agreement read as follows:
ARBITRATION—The parties agree that if there should be any disputes regarding compliance with specifications in the construction of the premises, the parties shall submit these issues and disputes for decision under the rules of the American Arbitration Association and the parties shall be bound by the decision of said arbitrator (s).
After the closing, claiming that North Shore was responsible for construction defects in his unit, Lee commenced an arbitration proceeding before the AAA.
North Shore thereupon commenced the first of these consolidated court actions (No. 09-2570), asserting that the dispute was non-arbitrable and seeking declaratory and injunctive relief to that effect. The Court (Inge, J.) on October 20, 2009 declined to stay the arbitration, and it went forward, under either the Commercial Arbitration Rules or the Home Construction Arbitration Rules.1 On December 28, 2009 the arbitrator made an award in Lee’s favor, for “Actual Damages” of $7,272.80, “Future Repairs” of $2,700.00, and “Attorneys Fees (Not an award under Chapter 93A but upon Arbitrator’s Award)” of $31,067.10, for agrand total of $41,039.90. There was no further elaboration of the arbitrator’s rationale for awarding attorneys fees. He also ordered that North Shore bear the fees and costs of the arbitration, including reimbursement to Lee of the $3,097.20 he had laid out toward these fees and costs.
North Shore then commenced the 2010 case with a timely complaint under G.L.c. 251, §12 to vacate the award. Lee counterclaimed for enforcement. I allowed Lee’s unopposed motion to consolidate the two actions. After hearing on March 23, 2010 I denied Lee’s motion to confirm the award, noting that North Shore’s complaint to vacate it had not yet been adjudicated, but allowed Lee’s motion for real estate attachment in the amount of $13,100. This was the amount of the award (in round figures) exclusive of attorneys fees, about which I expressed reservations.2 I also ordered that the parties file cross motions for summaiy judgment, which they did. Judge Holtz heard the motions, and (very sensibly) ordered the matter remanded to the arbitrator so that he might “specify what statutory or contractual authority permitted the granting of att(omeys) fees.”
The arbitrator responded with a Supplemental Award dated August 30, 2010, in which he said (as before) that he did not find liability, or award fees, under Chapter 93A, but that fees were awarded instead as a sanction for “bad faith tactics” by North Shore and its counsel. These the arbitrator termed “extreme and egregious,” and felt had “unnecessarily lengthen[ed] the proceedings.” Quoting from the supplemental award;
The “bad faith tactics” referred to [in Lee’s motion for costs and fees] are the repeated disruptive actions by Respondent’s counsel, in an apparent attempt to derail the arbitration process. Among the tactics employed by Respondent’s counsel were repeated motions to reconsider the issue of arbitrability of this matter after the issue was decided; notice to the American Arbitration Association (AAA), two days before the first scheduled hearing, that neither he nor his client would be attending the hearings, which were scheduled to take place in his own offices; repeated motions for the arbitrator to recuse himself due to alleged bias when rulings were issued on the merits but contrary to Respondent’s wishes; repeated threats to file lawsuits against the AAA, the AAA case administrator, the arbitrator and Claimant’s counsel on various bases; repeated arguments based upon cited cases that did not support Respondent’s arguments; repeated misstatements of the facts and statements made by opposing counsel and the arbitrator; repeated arguments that consisted of Respondent’s counsel’s relaying anecdotal stories of other matters that he had addressed during his career that had no bearing on the matter at hand and the unnecessarily aggressive cross examination of witnesses that in one instance necessitated a recess in the proceedings to avoid what appeared to be an imminent physical confrontation between Respondent’s counsel and a witness for Claimant.
Despite my repeated attempts to rein in such behavior and move the proceedings along, they continued throughout the proceedings, in what appeared by an attempt by Respondent’s counsel to goad me into exhibiting bias that would justify my recusal, thereby derailing the arbitration process. It must be stated for the record that on one or more occasions, Claimant’s counsel engaged in retaliatory behavior that was unprofessional and served to further degrade the proceedings. I can state without hesitation that Respondent’s counsel’s behavior during these proceedings went *236far beyond aggressive advocacy of his client, [and] resulted in the most difficult arbitration hearing of the many that I have presided over and served to greatly extend the time of the hearings.
Despite these tactics, I decided the case on the merits of the evidence and testimony before me.
In view of the extreme and egregious behavior exhibited by Respondent’s counsel and the impact that it had in unnecessarily lengthening he proceedings, I determined that it was appropriate to award the Claimant attorneys fees, both to compensate Claimant for the expense of prosecuting this action as the substantially prevailing party and to serve as a deterrent of similar behavior in the future.
Noting that Mass.R.Civ.P. 11 did not appear applicable and that G.L.c. 231, §6F appears to “requir[e] a separate hearing by the Court with regard to the matter of such an award of attorney fees,”3 the arbitrator expressed his view “that the power to issue such an award is contained in the inherent equitable powers of an arbitrator and is particularly needed to control the egregious behavior as was exhibited in this case.” He mentioned as well that the parties’ contract was silent on the question of attorneys fees, and referenced AAA Commercial Rule R-45,4 which authorizes “an award of attorneys fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.” (Emphasis supplied.)
DISCUSSION
1. Arbitrability
Determinations of abitrability are subject to four guiding principles.
First, a party cannot be required to arbitrate any dispute that it has not by contract submitted to arbitration. Second, unless otherwise provided by the parties, the preliminary question whether a dispute is subject to arbitration is an issue for judicial determination. Third, when deciding whether a dispute is arbitrable, a court does not consider the merits of underlying claims. Fourth, when considering a broadly worded arbitration clause, there is a presumption that a contract dispute is encompassed by the clause unless it is clear that the dispute is excluded.
Commonwealth v. Philip Morris, Inc., 448 Mass. 836, 843 (2007).
North Shore’s contention that the above-quoted arbitration clause does not apply to its dispute with Lee focuses on the textual connection between paragraphs 8 (“Arbitration”) and 7 (“Home Inspection”) of the Rider. Paragraph 7 gives the buyer the right to have the unit inspected. If the inspector is of the opinion that the unit does not comply with certain referenced standards of construction, “the parties shall reach agreement on the corrections to be made on the premises prior to the closing date.”
If the parties fail to agree on the necessary corrections, then the parties shall submit the matter for immediate resolution through the arbitration process referred in paragraph 8 of this Rider. In the event the Arbitration process determines there are significant deviations from the aforementioned construction standards and the parties cannot reach agreement on resolution, or in the event the Seller is unable to make agreed upon corrections within the time permitted, then the Buyer may terminate this Agreement by giving the Seller written notice on or before the extended closing date, whereupon all deposits shall be refunded to the Buyers and this Agreement shall become null and void without recourse to the parties hereto. (Emphasis supplied.)
Immediately after this language comes the above-quoted Paragraph 8.
Paragraph 7 provides one route into Paragraph 8 and the arbitration process, but nothing before me says it is the only route. To the contrary, by its terms Paragraph 8 apples to “any disputes regarding compliance with specifications in the construction of the premises” (emphasis supplied), without mentioning Paragraph 7.1 therefore agree with Judge Inge’s initial determination that the present dispute was arbitrable, and so rule.5
2. Procedural Irregularities in the Arbitration
Next, North Shore contends that the arbitrator displayed “evident partiality” (see G.L.c. 251, §12(2), as evidenced by procedural rulings that substantially prejudiced its rights (id., §12(4))). It gives two particulars.
First, North Shore asserts that Lee failed to prove the cause of the problems in his unit, and that the arbitrator refused to decide North Shore’s motion for directed verdict on this ground. This argument, however, “seeks to impose on the arbitrator a kind of sufficiency of the evidence test that is foreign to the concept of arbitration.” Duxbury v. Rossi, 69 Mass.App.Ct. 59, 64 (2007). A court considering a complaint to vacate an arbitration award is
strictly bound by an arbitrator’s findings and legal conclusions, even if they appear erroneous, inconsistent, or unsupported by the record at the arbitration hearing. “A matter submitted to arbitration is subject to a very narrow scope of review. Absent fraud, errors of law or fact are not sufficient grounds to set aside an award.” “Even a grossly erroneous [arbitration] decision is binding in the absence of fraud." “An arbitrator’s result may be wrong; it may appear unsupported; it may appear poorly reasoned; it may appear foolish. Yet, it may not be subject to court interference.”
Lynn v. Thompson, 435 Mass. 54, 61 (2001), cert. denied, 534 U.S. 1131 (2002) (citations omitted).6
Second, North Shore observes that in his pretrial order dated July 10, 2009, the arbitrator indicated *237that he would prepare written findings of fact and rulings of law, yet the Award contains none. North Shore cites no case, however, suggesting that this is a ground for overturning the award, and it makes no plausible showing of prejudice. In fact, the simple one-page award entered in this case is the norm (especially in small cases), and part of the price one pays for the streamlined and cost-effective dispute resolution that arbitration usually provides. “Arbitrators are no more bound to go into particulars, and assign reasons for their award, than a jury is for its verdict. The duty is best discharged by a simple announcement of the result of their investigations.” Fazio v. Employers’ Liab. Assur. Corp., 347 Mass. 254, 258 (1964).
3. Award of Attorneys Fees
North Shore’s more substantial claim is that in awarding Lee his attorneys fees, the arbitrator exceeded his powers. See G.L.c. 251, §12(3). Until recently, the arbitrator had not articulated the basis for the fee award, other than to say it was not made under Chapter 93A. He now has done so, however, and I am persuaded that he acted within his authority.
It is certainly true that legal fees are not, in the absence of a fee-shifting agreement (see Softkey, Inc. v. Useful Software, Inc., 52 Mass.App.Ct. 837 (2001)) or statute (see Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 671-73 (2002)), awarded in the ordinary course. As the arbitrator’s supplemental award makes clear, however, the course of this arbitration was anything but ordinary, and it was precisely the extraordinary conduct of North Shore and its counsel— and the effect of that conduct on the efficiency, duration, and cost of the proceedings—that lay behind the award, which had both a compensatory and a deterrent purpose.
As such, this case is not very different from Superadio L.P. v. Walt “Baby” Love Productions, Inc., 446 Mass. 330 (2006). There, the SJC affirmed an arbitrator’s award of attorneys fees as a discovery sanction, ruling that the Appeals Court (which had ordered the award set aside) had “failed to follow strictly the strong presumption of arbitrability” and
overlooked the essence of the dispute—Superadio’s conduct of withholding materials that established Baby Love’s damages, namely, the amount of money owed because of Superadio’s alleged violation of the agreement. Such a matter, damages owed for breach of the agreement, related to the core of the agreement. As such, the dispute was one encompassed by the terms of the agreement [to arbitrate).
446 Mass. at 337-38.
The court then gave an extended analysis of the AAA’s Commercial Arbitration Rules. It held that the arbitrators’ authority to “grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties” and to “resolve any disputes concerning the exchange of information” (former Rules 45 and 23(a), respectively; reenacted as Rules 43 and 21(a) in the 2007 edition of the Commercial Rules), “supported by the broad arbitration provision in the agreement and the absence of any limiting language prohibiting a monetary sanction for discovery -violations, authorized the panel to resolve discovery dispute by imposing monetary sanctions.” Id. at 338-39.
Finally, the court invoked basic principles and common sense:
“The principle of arbitral finality [and] the practical demands of deciding on an appropriate remedy for breach . . . dictate that arbitrators, unless expressly restricted by the agreement or the submission to arbitration, have substantial discretion to determine the scope of their contractual authority to fashion remedies, and that judicial review of their awards must be correspondingly narrow and deferential.” To give arbitrators control over discovery and discovery disputes without the authority to impose monetary sanctions for discovery violations and noncompliance with appropriate discovery orders, would impede the arbitrators’ ability to adjudicate claims effectively in the manner contemplated by the arbitration process.
Id. at 339, quoting Advanced Micro Devices, Inc. v. Intel Corp., 9 Cal.4th 362, 367, 376, 36 Cal.Rptr.2d 581, 885 P.2d 994 (1994).
Arbitration is supposed to provide a private, prompt, and economical resolution of disputes.7 That is, presumably, the goal of parties who include an arbitration clause in their contract. In exchange, they agree to forego the proverbial “slow, but exceedingly fine” grinding of the wheels of justice in the court system; hence, the narrow scope of judicial review of arbitration awards.
In this consumer dispute, Lee’s compensatory damages were ultimately fixed at just under $10,000. It cost him $31,067.10—as of the time of the Award, now nine months old—to attain a resolution. The arbitrator attributed this evident disproportion in transaction costs to “the repeated disruptive actions by Respondent’s counsel, in an apparent attempt to derail the arbitration process,” a finding of fact not reviewable here absent corruption, fraud, or evident partiality, none of which are shown.
To deny the arbitrator an effective remedy for obstructionist tactics going to the heart of the arbitration process “would impede the arbitrator’s] ability to adjudicate claims effectively in the manner contemplated by the arbitration process.” Superadio at 339. At least as much as the discovery abuse in Superadlo, North Shore’s “extreme and egregious behavior . . . unnecessarily lengthening the proceedings” in this case related to the core of the agreement to arbitrate: *238the parties bargained for a private, prompt and inexpensive dispute resolution process, and North Shore (the arbitrator found) wrongly deprived Lee of the benefit of that bargain. Under the Superadio rule, therefore, the arbitrator’s award of attorneys fees was within his authority to “grant any remedy or relief that [he] deem[ed] just and equitable and within the scope of the agreement of the parties.” Commercial Rule 43(a); Home Construction Rule 43(a).
ORDER
For the foregoing reasons, Lee’s Motion for Summary Judgment is ALLOWED, and North Shore’s is DENIED. Final judgment is to enter for Lee, enforcing the arbitrator’s December 28, 2009 award in full.
Lee’s oral motion for real estate attachment is also ALLOWED. A writ of attachment shall issue against all real property in Middlesex Counly standing in the name of North Shore Construction and Development, Inc., in the amount of $35,000.
Lee has supplied a copy of the Home Construction Rules, which are the more evidently applicable. The arbitrator referenced the Commercial Rules in his Report of Preliminary Hearing and Scheduling Order, and again in his Supplemental Award (see below). I note that the provisions cited in this decision appear, in identical language, in both the Commercial and the Home Construction Rules. Where appropriate, I have given citations to both, using the editions of each (effective June 1, 2007) that were in effect at the time of the arbitration hearing.
See Floors, Inc. v. B.G. Danis of New England, Inc., 380 Mass. 91, 100-01 (1980) (“In the absence of special agreement to the contrary, legal fees artsing out of arbitration have never been awarded in the past, and we shall not depart from this practice in the absence of a legislative determination to do so”); School Comm. of Boston v. United Steelworkers of America, Local 8751, AFL-CIO, CLC, 29 Mass.App.Ct. 53, 59 (1990) (“there is nothing in G.L.c. 251 that suggests the appropriateness of such an award . . . ; the common law of the Commonwealth is to the contrary”).
It does not seem to me that either Rule 11 of section 6F—both of which are applicable to “civil actions,” not to arbitrations—has much to do with the issues before the arbitrator or me.
This was Rule 43 in the 2007 edition.
I note here that the only portion of the Purchase and Sale Agreement supplied in the record before me is the page of the Rider that includes paragraphs 7 and 8. Nothing on this page excludes liability for defects not discovered in the home inspection. Even if it had, this would be an issue going to the merits of the claim, not to arbitrability; the arbitration clause is clear, and broad enough to cover this dispute.
Neither side has submitted a hearing transcript. In fact, there was no requirement that the hearing be stenographi-cally recorded, see AAA Commercial Rule R-26 and Home Construction Rule 27, and there is no suggestion in the record that it was. One wonders how a reviewing court could address the sufficiency of the evidence argument advanced in this case, even if permitted to do so.
See the Introductions to the AAA’s Commercial Rules (“Arbitration has proven to be an effective way to resolve these disputes privately, promptly, and economically”) and its Home Construction Rules (arbitration “is designed to be private, informal, quick, practical and economical”).
|
01-03-2023
|
10-17-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/1329456/
|
116 S.E.2d 350 (1960)
253 N.C. 197
G. B. WESTMORELAND
v.
SOUTHERN RAILWAY COMPANY, a corporation.
No. 28.
Supreme Court of North Carolina.
October 12, 1960.
*351 Wm. D. Lonon, Paul J. Story, Marion, for plaintiff, appellant.
W. T. Joyner, Raleigh, Proctor & Dameron, Marion, for defendant, appellee.
PER CURIAM.
The court sustained the objections to two questions whether a fire will start along a railroad track (1) by reason of defective brakes and (2) by reason of friction between the wheels and the track. The plaintiff assigns the above as error No. 1. Failure to show what the witness would have answered renders the ruling nonprejudicial. Other objections need not be discussed.
The other seven assignments of error relate to the charge. Careful examination fails to show error in any of the particulars assigned.
The critical issue was one of fact which the jury answered against the plaintiff upon whom the law placed the burden of proof.
No error.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3355345/
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
On July 3, 2000, this court conducted an evidentiary hearing concerning a custody action in the above-entitled case. The court determines that this court must stay the exercise of jurisdiction in this matter under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),P.A. 99-185, P.A. 00-49, and P.A. 00-191.
The UCCJEA, effective July 1, 2000, mandates, in § 17 ofP.A. 99-185, chat a court of this state shall not exercise jurisdiction in a matter concerning custody of a minor child if at the time of the commencement of the proceeding in this state a similar proceeding has been commenced in a court of another state with laws similar to § 12, 13, or 14 of P.A. 99-185. The UCCJEA specifically defines "child custody proceeding" to include a paternity proceeding where custody of the child is in issue, P.A. 99-185 § 2(3). Also, the UCCJEA specifically defines "commencement" to mean "the filing of the first pleading in a proceeding," P.A. 99-185, § 2(5)
The court finds that a paternity action, wherein custody of the child who is the subject of the custody action in this court is in issue, was commenced, under this definition, on May 8, 2000, in the Family Court of the First Circuit of Hawaii, Child Support Enforcement Agency v. Notoa, FC-P No. 00-1-0498. The custody action before this court in Connecticut was commenced, under this definition, on June 21, 2000.
This court has communicated with the appropriate Hawaii court and CT Page 8303 determined that Hawaii has also adopted laws substantially similar to our UCCJEA, in particular PA 99-185, § 12. This court, therefore, has decided, pursuant to PA 99-185, § 17(b) to stay the Connecticut proceeding and to decline to exercise jurisdiction unless and until the Hawaii proceeding is terminated or stayed because that court has determined that Connecticut is a more convenient forum.
The present action is stayed pending a determination of appropriate forum by the Hawaii Court.
Sferrazza, J.
|
01-03-2023
|
07-05-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/2615034/
|
847 P.2d 156 (1992)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Calvin L. CHAUSSEE II and Claude Ray Page, Defendants-Appellees.
No. 91CA0686.
Colorado Court of Appeals, Div. IV.
June 25, 1992.
Rehearing Denied August 20, 1992.
Certiorari Granted February 22, 1993.
*157 John W. Suthers, Dist. Atty., Lovice D. Riffe, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.
Phillip A. Vaglica, Colorado Springs, for defendant-appellee Calvin L. Chaussee II.
J. Tyler Makepeace, Colorado Springs, for defendant-appellee Claude R. Page.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Marleen Langfield, Asst. Atty. Gen., Denver, for amicus curiae.
Opinion by Judge JONES.
The People appeal the trial court's order, in a preliminary hearing, dismissing charges brought against defendants, Calvin L. Chaussee II and Claude Ray Page, for violation of the Colorado Organized Crime Control Act (COCCA). In addition, the People appeal the court's reduction of first degree perjury charges against defendant Chaussee to second degree perjury. We affirm in part, reverse in part, and remand with directions.
Over the period from February 1986 to April 1987, defendants, through a corporation named Colorado Springs Future Communications (CSFC), were ostensibly engaged in marketing dealerships for the sale of phased-array satellite television antennas and associated electronics. Hundreds of individuals purchased the dealerships, *158 which required payment of a $1,500 deposit that was to be placed in escrow and refunded at $100 per unit sold. None of the deposit money, however, was actually refunded or placed in escrow, but was instead directed to another enterprise, or was used to fund the sales of additional dealerships.
Defendants claimed a manufacturing capability of 10,000 units per week, and CSFC bank records indicate that, between February 1986 and March 1987, a total of approximately $2,280,000 was paid for dealerships. In reality, the phased-array antenna marketed by defendants did not exist.
In April 1987, the El Paso County District Attorney filed a lawsuit requesting injunctive relief and restitution under COCCA. In response to requests for discovery, defendants submitted documents which the prosecution alleges are forged and other answers alleged to be materially false. These incidents in the discovery process were the basis for the perjury charges in this criminal case.
A preliminary hearing was held wherein the trial court dismissed the COCCA counts on the grounds that the People had failed to establish probable cause for the existence of a pattern of racketeering activity as defined pursuant to § 18-17-103(3), C.R.S. (1986 Repl.Vol. 8B). In addition, the court reduced the first degree perjury charges to second degree perjury on the grounds that the false statements were written, rather than verbal. This appeal followed.
I.
The People contend that the trial court erred when it failed to find probable cause that defendants had violated the provisions of COCCA. They argue that the court incorrectly dismissed their claims based upon its ruling that the evidence failed to establish the "pattern of racketeering activity" needed to establish a COCCA claim. We agree.
In order to state a claim for relief under any provision of COCCA, a plaintiff or prosecutor must prove that a defendant engaged in, or benefitted from, a "pattern of racketeering activity." Section 18-17-104, C.R.S. (1986 Repl.Vol. 8B). A pattern of racketeering activity is defined, under COCCA, in relevant part, as follows:
(3) `Pattern of racketeering activity' means engaging in at least two acts of racketeering activity which are related to the conduct of the enterprise, if at least one of such acts occurred in this state after July 1, 1981, and if the last of such acts occurred within ten years (excluding any period of imprisonment) after a prior act of racketeering activity.
. . . .
(5) `Racketeering activity' means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit:
(a) Any conduct defined as `racketeering activity' under 18 U.S.C. 1961(1)(A), (1)(B), (1)(C), and (1)(D); or
(b) Any violation of the following provisions of the Colorado statutes or any criminal act committed in any jurisdiction of the United States which, if committed in this state, would be a crime under the following provisions of the Colorado statutes:
(II) Offenses against property, as defined in section ... 18-4-401 (theft) ...;
(IV) Offenses involving fraud, as defined in section ... 18-5-103 (second degree forgery) ...;
(VII) Offenses involving governmental operations, as defined in sections ... 18-8-502 (first degree perjury), 18-8-503 (second degree perjury) ... 18-8-610 (tampering with physical evidence)....
Section 18-17-103, C.R.S. (1986 Repl.Vol. 8B).
Defendants were charged with two counts of racketeering activity involving illegal use of an enterprise pursuant to § 18-17-104, C.R.S. (1986 Repl.Vol. 8B); theft pursuant to § 18-4-401, C.R.S. (1986 Repl.Vol. 8B); and conspiracy to commit theft pursuant to § 18-2-201, C.R.S. (1986 Repl.Vol. 8B). They were also charged with first degree perjury, tampering with physical evidence, and second degree forgery. Sections 18-8-502(1), 18-8-610(1)(b), *159 and 18-5-103(1)(a), C.R.S. (1986 Repl.Vol. 8B).
To establish a claim under COCCA, § 18-17-103, C.R.S. (1986 Repl.Vol. 8B), the prosecution was required to establish probable cause that "at least two" of the charged offenses had occurred within a ten-year period and that they were related to the conduct of the enterprise.
We note initially that, for purposes of determining whether a pattern of racketeering activity has occurred, absent a prior interpretation by our state courts, federal case law construing the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (1988) (RICO) is instructive because COCCA was modeled after the federal Act. Benson v. People, 703 P.2d 1274 (Colo.1985) (fn.1).
A.
The People contend that the trial court erred in ruling that the People had failed to establish probable cause for a COCCA claim on the grounds that a single scheme to market dealerships to sell a single product cannot be carved into the predicate acts needed to establish a pattern of racketeering activity under COCCA. The trial court relied on Savastano v. Thompson Medical Co., 640 F. Supp. 1081 (S.D.N.Y.1986) in declining to find that defendants' acts constituted a "pattern" under the provisions of COCCA. In our view, the district court's reliance on Savastano was misplaced.
The Savastano court was guided by the United States Supreme Court's holding in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985), and its progeny. In Sedima, the Court observed that a pattern of racketeering activity which "requires at least two acts of racketeering activity" implies that two isolated acts do not constitute a pattern under the federal RICO statute because a pattern requires continuity plus relationship. The Court undertook to define the "pattern of racketeering" requirement by reference to the RICO statutory language: "`[C]riminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events'. 18 U.S.C. § 3575(e)." Sedima, S.P.R.L. v. Imrex Co., supra (fn. 14).
Courts which have subsequently sought to interpret Sedima's definition of a RICO pattern have generally split on the issue of whether RICO's "pattern" requirement was satisfied by multiple predicate acts or whether it required multiple schemes. See H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). The Court addressed this split in the H.J. Inc. case in which it held that proof of racketeering activity requires at least two related racketeering predicates, either acts or schemes, and that these predicates must either repeat over a "closed" period of time or must threaten, explicitly or implicitly, the likelihood of continued racketeering activity projecting into the future.
The ruling in Savastano v. Thompson Medical Co., supra, on which the trial court, here, relied, in declining to find that the defendant's acts constituted a pattern, is based on what was found to be a single act consisting of numerous misrepresentations regarding a single product. However, these facts, in the Savastano case, do not constitute the individual predicate acts recurring in time as later contemplated in H.J. Inc.
Here, we address what the record reflects to have been, indeed, numerous criminal predicate acts designed to defraud individual investors in a non-existent product with no apparent indication that such activity would have terminated but for the institution of legal proceedings. Thus, the "pattern of racketeering activity" contemplated in H.J. Inc. is satisfied and the trial court was incorrect, as a matter of law, in finding no continuity plus relationship in the defendants' actions.
Furthermore, the Savastano court cited a case analogous to the case at hand, Papagiannis v. Pontikis, 108 F.R.D. 177 (N.D.Ill.1985), wherein the court held that a *160 malefactor's perpetration of fraudulent activities on more than one victim, while following the same modus operandi, is clearly a "pattern" for RICO purposes. A similar "pattern of racketeering activity" consisting of multiple fraudulent acts perpetrated upon multiple victims was envisioned by the Court in H.J. Inc.:
Suppose a hoodlum were to sell `insurance' to a neighborhood's storekeepers to cover them against breakage of their windows, telling his victims he would be reappearing each month to collect the `premium' that would continue their `coverage.' Though the number of related predicates involved may be small and they may occur close together in time, the racketeering acts themselves include a specific threat of repetition extending indefinitely into the future, and thus supply the requisite threat of continuity. In other cases, the threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity's regular way of doing business. Thus, the threat of continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.
For purposes of establishing probable cause, evidence introduced at a preliminary hearing must be sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendant committed the crime. People v. Juvenile Court, 813 P.2d 326 (Colo.1991).
Here, the People have presented evidence of multiple fraudulent acts perpetrated upon multiple individuals which threatened to repeat indefinitely. This evidence is sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendants had committed "a pattern of racketeering activity" as enunciated in H.J. Inc. v. Northwestern Bell Telephone Co., supra. See People v. Juvenile Court, supra. Thus, probable cause for COCCA charges was established and, accordingly, the trial court erred in dismissing the COCCA claims.
B.
The People contend that the trial court erred in ruling that defendants' alleged acts of perjury and forgery in the course of civil discovery did not relate to the conduct of defendants' enterprise for purposes of satisfying the COCCA "pattern of racketeering activity" requirement. We disagree.
To establish probable cause for a COCCA claim here, sufficient evidence must be presented to induce the probable belief that defendants engaged in a pattern of racketeering activity "related to the conduct of the enterprise" within a ten-year period. Section 18-17-103, C.R.S. (1986 Repl.Vol. 8B).
This relationship requirement needed to establish a COCCA claim is also required to establish a claim under RICO, and both the Sedima court and the H.J. Inc. court refer to another provision of RICO for guidance in interpreting the relationship requirement:
Congress defined Title X's pattern requirement solely in terms of the relationship of the defendant's criminal acts one to another: `criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.' 18 U.S.C. § 3575(e).
H.J. Inc. v. Northwestern Bell Telephone Co., supra (emphasis added).
Here, the perjury and forgery which are alleged to have occurred were in response to civil discovery. The People submitted evidence in support of their claim that these acts were related to the "enterprise" in that they were undertaken with the purpose of preventing discovery of the defendants' prior fraudulent activities.
We conclude, based on the record here, that while the forgery and perjury may be "related" to defendants' initial fraudulent undertakings, they, nevertheless, are not related to the initial acts "one to another" as contemplated by the Court in H.J. Inc. *161 The perjury and forgery were neither undertaken with the same purpose as defendants' initial fraudulent dealership activities, nor were they undertaken with the intention of achieving the same results, and they employed different methods of commission.
In addition, these subsequent acts did not involve the victims involved in defendants' earlier acts and, thus, the perjury and forgery did not involve the same participants as the earlier fraudulent acts. Rather than being "interrelated" with the initial pattern of racketeering activity, these subsequent acts are in the nature of "isolated events."
Moreover, were we to consider such predicate acts of perjury and forgery undertaken in the course of discovery to form a COCCA "pattern" when considered together with any other fraudulent activities, any illegalities uncovered in the course of discovery in a civil proceeding could be used to establish a COCCA charge. Such an interpretation would be adverse to the General Assembly's express intent specifically to seek the eradication of "organized crime" under this statutory scheme. Section 18-17-102, C.R.S. (1986 Repl.Vol. 8B).
Accordingly, we perceive no error in the trial court's findings and conclusions that defendants' alleged perjury and forgery in the course of civil discovery did not constitute predicate acts in a pattern of racketeering activity under COCCA. However, in so holding, we do not express the opinion that such alleged acts cannot independently form the basis for criminal charges apart from those acts charged under COCCA.
II.
The People also contend that the trial court erred in ruling that false answers to interrogatories pursuant to civil discovery constitute perjury in the second degree, rather than first degree perjury. They argue that interrogatories are incorporated within the term "official proceeding" because the Colorado Rules of Civil Procedure "govern all proceedings brought after they take effect," and discovery rules are included in the rules of civil procedure. C.R.C.P. 1(a) and (b). They argue, further, that jurisdiction under the rules attaches when a case is filed and, here, the case was filed and the "official proceeding" was still pending before the answers to the interrogatories were submitted. We agree with the People.
First degree perjury occurs in the course of "any official proceeding" in which a person makes a materially false statement, which that person does not believe to be true, under an oath required or authorized by law. Section 18-8-502(1), C.R.S. (1986 Repl.Vol. 8B); People v. Scott, 785 P.2d 931 (Colo.1990).
Perjury in the second degree is committed if, "other than in an official proceeding," to mislead a public servant engaged in official duties, a person makes such a statement, which the person does not believe to be true, under an oath required or authorized by law. Section 18-8-503, C.R.S. (1986 Repl.Vol. 8B); People v. Francois, 198 Colo. 249, 598 P.2d 144 (1979).
Here, after an investigation based upon numerous complaints, the District Attorney, in April 1987, filed a lawsuit requesting injunctive relief and restitution against the defendants and others. In the course of the earlier investigation, a person or persons associated with defendants submitted documents thought to be forged. During the discovery phase of the lawsuit, interrogatories were submitted to defendant Chaussee to which he supplied replies alleged to be materially false. Those replies form the basis of the first degree perjury counts in this matter which the trial court reduced to second degree perjury.
The difference between first and second degree perjury does not turn on whether the statement is written versus oral. Written statements may also be made under "oath" pursuant to § 18-8-501, C.R.S. (1986 Repl.Vol. 8B). The difference between the two degrees of perjury depends, instead, upon whether the false statement made under oath occurs in an "official proceeding."
*162 Section 18-8-501(3), C.R.S. (1986 Repl. Vol. 8B) defines such a proceeding as follows:
`Official proceeding' means a proceeding heard before any legislative, judicial, administrative, or other government agency, or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or depositions in any such proceeding. (emphasis added)
The lawsuit out of which the forgery and perjury counts sprang was governed by the Colorado Rules of Civil Procedure. C.R.C.P. 1(a) and (b). See Moody v. Larsen, 802 P.2d 1169 (Colo.App.1990).
Under C.R.C.P. 31, interrogatories are designated as depositions upon written questions. In the same manner that oral depositions must proceed after the witness has appropriately been put under oath and the officer doing so must swear on his own oath to having done so, so those answering interrogatories must also do so on their oath to tell the truth, and that oath must be averred to by the person having administered the oath. C.R.C.P. 30(c), (e), and (f); 31(a) and (b).
Thus, the definition of official proceeding, § 18-8-501(3), C.R.S. (1986 Repl.Vol. 8B), which includes judicial proceedings in the course of which depositions are given under oath, must be read as including interrogatories.
Furthermore, "testimony" is defined pursuant to § 18-8-601(2), C.R.S. (1986 Repl. Vol. 8B) as including "oral or written statements, documents, or any other evidence that may be offered by or through a witness in an official proceeding." The interrogatories, under the circumstances of this case, are certainly testimony, and possibly evidence, under oath given in an official proceeding.
Thus, we conclude that if perjury was committed in the context of the replies to interrogatories in the COCCA civil action, it is, as a matter of law, perjury in the first degree. Hence, the trial court erred in entering findings of fact and conclusion of law and orders reducing the perjury charges from first degree to second degree perjury.
The order of the trial court regarding the COCCA charges is affirmed as to the predicate acts of perjury, and is, in all other respects, reversed. The order reducing the perjury charges is reversed. The cause is remanded with directions to reinstate the COCCA charges not having perjury as a predicate, to reinstate the perjury in the first degree charges, and for appropriate disposition of the reinstated charges after reconsideration of the existing record.
CRISWELL and DAVIDSON, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615035/
|
847 P.2d 1073 (1993)
Billy M. FLYNN, Appellant,
v.
STATE of Alaska, Appellee.
No. A-4052.
Court of Appeals of Alaska.
March 12, 1993.
*1074 Andrew Haas, Asst. Public Defender, Bethel, and John B. Salemi, Public Defender, Anchorage, for appellant.
Cynthia L. Herren, Asst. Atty. Gen., Office of Spec. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
OPINION
BRYNER, Chief Judge.
Following a trial presided over by Superior Court Judge Dale O. Curda, Billy Flynn was convicted by a jury of one count of sexual abuse of a minor in the first degree, in violation of AS 11.41.434(a)(1). Flynn appeals, alleging, among other things, that the superior court erred in allowing a police officer to express his opinion about the truthfulness of Flynn's confession. We reverse.
Flynn's conviction stemmed from his alleged abuse of C.N., the six-month-old child of E.N. Some time in November of 1989, Flynn babysat at E.N.'s home in Bethel while E.N. played bingo. E.N. claimed that, when she changed C.N.'s diaper the next morning, C.N.'s vagina appeared to be bruised; a drop of blood and some gray, "skin-like" matter were on C.N.'s diaper. E.N. claimed that she told a friend what she had observed, but she took no further action at the time. Approximately one month later, E.N. spoke about the incident to another friend, who advised her to take C.N. to the hospital for examination. The examinations indicated that C.N. may have been sexually penetrated: the child's vaginal *1075 opening was larger than usual and her hymen was absent. The police were contacted and informed that Flynn was suspected of sexually abusing C.N.
Several months later, on March 4, 1989, Bethel Police Sergeant John Bilyeu learned that Flynn was being held at the jail for a twelve-hour period of protective custody due to intoxication. Near the end of the twelve-hour holding period, Bilyeu contacted Flynn and drove him to the police station; in the presence of another officer, Bilyeu advised Flynn of his Miranda[1] rights and questioned him about the alleged abuse. Bilyeu recorded the questioning. During the initial stages of the interrogation, Flynn repeatedly denied abusing C.N. Bilyeu eventually interrupted the questioning, evidently to take a break for coffee. He turned his recorder off during the break. When questioning resumed approximately ten minutes later, Flynn confessed. He told Bilyeu that he had inserted his finger and his penis into C.N.'s vagina. Flynn's prosecution for first-degree sexual assault followed.
Flynn did not testify at trial. His defense counsel, however, adopted a strategy aimed at convincing the jury that Flynn had confessed falsely due to the coercive circumstances surrounding his interrogation. On cross-examination of Bilyeu, Flynn's counsel attempted to further this strategy by pointing out Flynn's initial denial of abuse and by emphasizing that Flynn's change of heart had occurred during the unrecorded break in the interrogation.
In response, on redirect examination, the state sought to establish that nothing coercive or unusual had occurred during Flynn's interrogation. As part of this line of inquiry, the state asked Bilyeu if it was unusual for suspects who initially deny committing a crime to confess eventually. Flynn did not object to the question, and Bilyeu responded that it was not unusual.
The state then sought to follow up by asking Bilyeu whether, in his experience, such confessions were reliable or unreliable. Flynn objected, arguing that the question called for an opinion on the truthfulness of Flynn's confession and was beyond the scope of Bilyeu's expertise. The court overruled Flynn's objection. After calling on the state to lay a foundation as to Bilyeu's expertise in interrogating suspects, the court allowed the state to inquire how reliable such confessions were. Over Flynn's renewed objection, Bilyeu ultimately testified that, "In my experience, as to date, I have yet to have an innocent person confess."
Flynn contends on appeal that the trial court erred in admitting this testimony. Flynn argues that Bilyeu was in effect allowed to tell the jury, as an expert witness, that Flynn's confession was truthful. We agree that the admission of this testimony amounted to error.
In cross-examining Bilyeu about Flynn's interrogation, Flynn's attorney evidently attempted to suggest that Flynn's initial denial of guilt was an unusual occurrence an occurrence that rendered his subsequent confession unreliable. To refute this suggestion, the state was certainly entitled to establish, on redirect examination, that it is not unusual for a confession to follow an initial denial of responsibility. Cf. Shepard v. State, 847 P.2d 75 (Alaska App. 1993); Rodriguez v. State, 741 P.2d 1200, 1203-05 (Alaska App. 1987). Hence, the trial court did not err in allowing the state to ask Bilyeu whether such confessions were unusual and, indeed, Flynn did not object to the state's inquiry in this regard.
The state entered far more dangerous territory, however, when it went on to elicit expert testimony from Bilyeu concerning the truthfulness of the confessions he had heard throughout his career. Bilyeu's testimony that he had "yet to have an innocent person confess" was tantamount to a statement of his professional opinion that Flynn had confessed truthfully and was therefore guilty as charged. Although Bilyeu may not have said in so many words that he believed Flynn guilty, we find it inconceivable that reasonable *1076 jurors listening to Bilyeu's testimony in the context of Flynn's trial would have understood him to mean anything else.
By allowing this testimony to be admitted, the trial court effectively enabled Bilyeu to perform the role of a "human polygraph." This court has consistently noted the inappropriateness of such evidence. See, e.g., Thompson v. State, 769 P.2d 997, 1003-04 (Alaska App. 1989) (citing cases); see also Shepard, 847 P.2d at 80 n. 2 & 80-81; Cox v. State, 805 P.2d 374, 376-78 (Alaska App. 1991); Haakanson v. State, 760 P.2d 1030, 1035-37 (Alaska App. 1988). Having reviewed the record, "we are left with a definite and firm conviction ... that the trial court erred in its ruling." Dura Corp. v. Harned, 703 P.2d 396, 409 (Alaska 1985). The court thus abused its discretion in admitting the disputed testimony. Id.
Flynn's confession was central to the prosecution's case at trial; yet the circumstances surrounding the confession rendered Flynn's claim of coercion at least arguably plausible. Bilyeu's improperly admitted testimony could thus have had a tremendous effect on the jury's verdict. Under the circumstances, we are unable to conclude that the error was harmless. Love v. State, 457 P.2d 622, 629-32 (Alaska 1969). Accordingly, Flynn's conviction must be reversed.
Flynn has also argued that the trial court erred in denying his motion for a judgment of acquittal based on insufficient evidence. Even though we have decided that reversal is necessary on other grounds, we must resolve the claim of insufficient evidence, since a retrial would be barred if Flynn prevailed on this issue.
Flynn's claim of insufficient evidence was based on the contention that the state had failed to present evidence establishing his age. To prove Flynn's guilt of sexual abuse of a minor in the first degree under AS 11.41.434(a)(1), the state was required to establish, among other elements, that Flynn was "16 years of age or older[.]" In its case-in-chief, the state failed to present any specific evidence of Flynn's age. Flynn argued below, and he argues here, that the state's failure should have resulted in a judgment of acquittal.
The Alaska Supreme Court's decision in Torres v. State, 521 P.2d 386, 388 (Alaska 1974), establishes that, when the age of the accused is at issue, the jury need not hear direct evidence of age but may instead rely on the appearance of the accused at trial, in combination with reasonable inferences arising from testimony on other issues. Torres is consistent with rulings from courts of many jurisdictions. Some have found that the jury's ability to observe the accused at trial is in itself a sufficient basis for denial of a motion for a judgment of acquittal. See, e.g., Weaver v. State, 568 So. 2d 309, 311-12 (Ala. Crim. App. 1989) (accused's age may be established by either direct or circumstantial evidence even when accused's age is a material element of the crime charged); Jewell v. Commonwealth, 8 Va. App. 353, 382 S.E.2d 259, 261 (1989) (physical appearance alone may be used to conclude that a defendant is older than the minimum age required to be proven if the trial court determines that the fact finder can make this determination beyond a reasonable doubt).
Others have held that the jury may properly rely on its observation of the accused in combination with other circumstantial indicators of age. See, e.g., State v. Zihlavsky, 505 So. 2d 761, 765 (La. App. 1987) (lack of direct evidence did not preclude conviction when defendant was open to jury view and additional circumstantial proof of defendant's age was present in the record); Commonwealth v. Pittman, 25 Mass. App. Ct. 25, 514 N.E.2d 857, 859 (1987) (when proof of age is necessary to establish the offense and the record does not reflect that the person whose age must be proved falls into a marked extreme, there must be some evidence in addition to physical appearance).
Courts taking this latter approach have found a broad array of circumstantial evidence minimally sufficient to avoid a judgment of acquittal: evidence that the accused purchased beer or cigarettes, was friends with another adult, or participated in adult activities, and testimony referring *1077 to the accused as "a man" or to the accused's advanced age. See, e.g., State v. Thompson, 365 N.W.2d 40, 43 (Iowa App. 1985); Zihlavsky, 505 So.2d at 765; State v. Lauritsen, 199 Neb. 816, 261 N.W.2d 755, 757 (1978); State v. Richey, 171 W. Va. 342, 298 S.E.2d 879, 887 (1982).
In the present case, Flynn argues that his presence at trial should not alone have justified submitting the issue of his age to the jury. In advancing this argument, Flynn implicitly asserts that his presence at trial amounted to the only circumstantial evidence from which the jury could have inferred that he was sixteen years of age or older. However, Flynn's designation of a limited appellate record one that includes only narrowly selected portions of the trial transcript renders it virtually impossible for this court to gauge the full scope of the circumstantial evidence that might have supported the conclusion that Flynn was at least sixteen years of age.
Nevertheless, even the limited portions of the transcript included in the record disclose that the jury heard a substantial amount of evidence implying that Flynn was an adult. For example, Bilyeu testified that the day before the disputed interrogation, Flynn was picked up by the authorities because he was intoxicated; he was thereafter detained for a twelve-hour period of protective custody. Bilyeu further testified that when he questioned Flynn, he assumed Flynn had sobered up during his twelve hours in protective custody, just like any other person would have. Bilyeu also described Flynn as a "short statured man," and he went on to provide details of Flynn's late night interrogation at the police station, referring to Flynn as a criminal suspect, not as a suspected juvenile delinquent.
Because this testimony, in its entirety, unmistakably indicates that Flynn acted like an adult and was treated as such by the authorities who dealt with him, it strongly supports the inference that Flynn was sixteen years of age or older. Even assuming no other circumstantial evidence reflecting on Flynn's age was presented in the course of trial, Bilyeu's testimony, coupled with Flynn's presence during the proceedings, was sufficient to withstand Flynn's motion for a judgment of acquittal and to warrant submission of his case to the jury.
For the foregoing reasons, the conviction is REVERSED.[2]
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[2] Since reversal is necessary, we need not decide Flynn's remaining claims. However, because further prosecution is not barred, we provide the following observations for guidance in the event of a retrial. Flynn has claimed on appeal that the superior court erred in denying his motion to suppress his confession. One of the bases Flynn relied on in seeking suppression was the claim that the police violated Stephan v. State, 711 P.2d 1156 (Alaska 1985), by failing to record the entirety of his interrogation. In its order denying Flynn's suppression motion, however, the superior court did not expressly rule on this issue.
Moreover, although the order denying Flynn's motion to suppress stated the superior court's legal conclusions on Flynn's other suppression arguments, the order made no factual findings. Alaska Rule of Criminal Procedure 12(d) requires, in relevant part, that "[w]here factual issues are involved in determining a motion to suppress evidence, the court shall state its essential findings on the record." Ordinarily, in the absence of express findings, we simply rely on the assumption that the trial court resolved all factual issues in favor of the prevailing party. Beagel v. State, 813 P.2d 699, 704 (Alaska App. 1991). This assumption, however, is problematic here.
The fact that the superior court ruled in Flynn's favor rather than in favor of the state on the threshold issue of whether Flynn's interrogation was custodial renders the accuracy of the normal assumption questionable in the context of this case. Furthermore, Flynn's suppression motion questioned the voluntariness of his confession, an issue ultimately requiring independent review on appeal; a lack of express findings resolving all disputed factual issues relating to the circumstances surrounding a confession substantially impairs this court's ability to render a meaningful, independent decision on the issue of voluntariness. See Johnson v. State, 631 P.2d 508 (Alaska App. 1981).
If the state seeks a retrial and Flynn renews his motion to suppress, the superior court should enter express findings of fact and conclusions of law resolving all disputed issues.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874269/
|
706 N.W.2d 763 (2005)
In re Petition for Transfer to Disability Inactive Status of Nicholas James GEGEN, a Minnesota Attorney, Registration No. 21503X.
No. A05-2331.
Supreme Court of Minnesota.
December 1, 2005.
ORDER
The Director of the Office of Lawyers Professional Responsibility (Director), and respondent Nicholas J. Gegen have entered into a stipulation for transfer of respondent to disability inactive status under Rule 28(a), Rules on Lawyers Professional Responsibility (RLPR), without further proceedings, coupled with a stay of a pending disciplinary investigation concerning respondent. The stipulation and a petition for transfer to disability inactive status have been filed in the above-entitled matter. Respondent is not currently practicing law.
The court has reviewed the petition and stipulation and concludes that transfer to disability inactive status and a stay of the pending disciplinary proceedings are appropriate.
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that effective immediately respondent Nicholas J. Gegen is transferred to disability inactive status under Rule 28, RLPR. Respondent shall arrange to comply with the notice requirements of Rules 26(a)-(c), RLPR. During the period respondent is on disability inactive status, respondent may not render legal advice, discuss legal matters with clients, or otherwise engage in the practice of law.
IT IS FURTHER ORDERED that the pending disciplinary proceedings concerning respondent are stayed until such time as respondent petitions for reinstatement to the practice of law under Rule 28(d) and Rule 18, RLPR. Upon filing of a petition for reinstatement, the stay of the disciplinary proceedings will automatically be lifted, and in addition to the requirements of Rules 28(d) and 18 the reinstatement proceedings will involve a determination whether discipline is warranted. In addition, reinstatement is further subject to *764 the conditions relating to testing for substance abuse and expert evidence concerning respondent's psychological fitness to resume the practice of law contained in the stipulation filed with this court.
BY THE COURT:
/s/ Russell A. Anderson
Associate Justice
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615073/
|
668 P.2d 1224 (1983)
295 Or. 594
In re Complaint As to the CONDUCT OF Richard S. MANNIS, Accused.
SC 29415.
Supreme Court of Oregon.
Argued and Submitted August 1, 1983.
Decided September 7, 1983.
Jack H. Cairns, Portland, argued the cause and filed a brief for accused.
Michael J. Esler, Esler & Schneider, Portland, argued the cause and filed a brief for the Oregon State Bar.
Before LENT, C.J.,[*] and LINDE, CAMPBELL, ROBERTS, CARSON and JONES, JJ.
PER CURIAM.
The issue framed by the briefs and oral argument is what sanction to impose for violations of DR 9-102(A) of the Code of Professional Responsibility, which provides:
"All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable trust accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
"(1) Funds reasonably sufficient to pay account charges may be deposited therein.
"(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved."
Simply stated, the record discloses that the accused's clients' funds, on many occasions, were not deposited in an identifiable trust account; rather, they were deposited in the accused's general account.
We find that it has not been established by clear and convincing evidence that the accused was personally aware of the commingling of his clients' funds with his own. We accept the findings of the Trial Board and the Disciplinary Review Board that the accused's employees were responsible for the comminglings and that the accused had spent considerable funds in attempting to establish his banking, bookkeeping and accounting systems on both a businesslike and ethical basis. We further find, as did the Boards, that the commingling was done with no intent of the accused to enrich himself and that no client was harmed by reason of the comminglings.[1]
*1225 During oral argument, a member of this court raised the question of whether DR 9-102(A) is a "strict liability" provision and, therefore, a lawyer may be held to have violated the rule upon other than a personal participation basis. The parties, through respective counsel, acknowledged that nowhere in the course of these proceedings had that point been addressed. We are loath to do so without adversarial briefing and argument. We shall, accordingly, assume for the purpose of disposition of this case that the lawyer is responsible for his employees' acts in commingling his funds with those of his clients.
The Disciplinary Review Board has recommended that this court publicly reprimand the accused. The record discloses that the accused has now instituted bookkeeping procedures to prevent further commingling. In the circumstances, we do not believe that a more serious sanction is justified. Although we stated in In re Pierson, 280 Or. 513, 571 P.2d 907 (1977), in general terms, that lawyers who converted their client's funds were to be disbarred, we have implicitly recognized that conversions may differ in kind. In re Smith, 292 Or. 84, 636 P.2d 923 (1981). Here, although there was technically a conversion of clients' funds in the tort sense, the accused would be guilty of conversion only under the doctrine of respondeat superior.
This opinion will serve as a public reprimand to the accused. The Oregon State Bar is awarded its actual and necessary costs and disbursements. ORS 9.535(4).
NOTES
[*] Justice Lent was Chief Justice when this case was argued. Justice Peterson was Chief Justice when this decision was rendered.
[1] Of course, the want of financial harm to the clients does not excuse unethical conduct. See, for example, In re Pierson, 280 Or. 513, 571 P.2d 907 (1977).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/8326468/
|
Fishman, Kenneth J., J.
The defendant, Samuel K. Jones, was indicted for stalking in violation of a restraining order under G.L.c. 365, §43(b) (Indictments 001 and 002),1 stalking under G.L.c. 365, §43(a) (Indictment 006), threats under G.L.c. 275, §2 (Indictments 009 and 010), assault with a dangerous weapon under G.L.c. 265, §15B(b) (Indictment 005), intimidation of a witness under G.L.c. 268, §13B (Indictments 0032 and 004), and violation of a protective order (Indictments 007 and 008). The case is now before this Court on the defendant’s Motion to Dismiss the Indictment, based on claims that G.L.c. 365, §43(b) is unconstitutionally vague, that there was insufficient evidence to support the indictments, and that the integrity of the grand juiy proceeding was impaired by the presentation of uncharged conduct. For the reasons below, the defendant’s Motion is DENIED.3
*239BACKGROUND
Viewed in the light most favorable to the Commonwealth, the grand juiy could reasonably have found the following facts. See Commonwealth v. Caracciola, 409 Mass. 648, 649 n.1 (1991).
In or about 1999, the defendant began a romantic relationship with Milette Gilliam. The couple had one child together. Around 2003, the defendant began to use crack cocaine and would become physically abusive when he lacked the means to get high. He was also verbally abusive to Gilliam’s two children. In March 2003, the couple relocated to Alabama. The defendant continued to use drugs and be abusive toward Gilliam. In one incident, he beat and kicked her to an extent that she had to go to the hospital. Gilliam ended the couple’s relationship and returned to Boston after the defendant’s drug dealer appeared at her house and threatened her and her children. The defendant also returned to Massachusetts at that time, but stayed in Springfield with his family.
On or about March 13, 2010, the defendant contacted Gilliam on her cellular phone, and stated, “You should have known I’d get your number. That’s how you want to play it. I will see my daughter. Believe that, even if I have to take matters into my own hands. You think this is a game? Let’s see who’s laughing when I put a bullet in your head.” Approximately 15 to 20 minutes later, Gilliam received a text message from the defendant containing a picture of himself holding a gun. At some point after that, but prior to March 19, 2010, Gilliam spoke with the defendant’s ex-wife who informed her that the defendant was planning on going to Brookline (where Gilliam lived) on or about that date.
On March 19, 2010, Gilliam went to the Brookline Police Department to file a restraining order against the defendant. She spoke with Officer Michael Heavey, and informed him of the phone call and picture message that she had received on March 13, that she had learned of the defendant’s intent to visit her from his ex-wife, and that she had received several letters from the defendant in the past that were threatening in nature. She had discarded all of the letters except one, dated February 2006, which she gave to the Brookline Police. That letter contains statements which declare: that the defendant “will kill anyone that stands in the way of [him] and [his] child”; “please understand that if anyone, anyone was to try to take them from me they will die. I will play no more games with you”; “I’m ready to go to war with anyone over this. Believe me someone will die”; and “If I can’t have a part in her life, no one will.” During the conversation with Officer Heavey, Gilliam was timid and became increasingly upset. She was very upset when asked to discuss the details of the past relationship.
On March 19, 2010, a restraining order was issued against the defendant that included conditions that he not contact Gilliam in person, by phone, or in writing, directly or through a third pariy, and that he stay at least 100 yards away from her. The defendant was served a copy of the restraining order that evening. The expiration date for that restraining order was April 1, 2010.
On March 26, a phone call was made from the Norfolk County House of Corrections to Gilliam’s phone. The call was not answered.
On March 27, 2010, Gilliam received a collect call from the phone number 781-326-2861, a number identified to the grand jury as belonging to the Norfolk County House of Corrections. Upon answering, she heard the normal collect call recorded introduction, “You have a collect call from,” which was followed by/interrupted by a voice stating, “Come on man, don’t do this shit, man.” Gilliam hung up the phone when she recognized the voice as belonging to the defendant.
On April 1, 2010, following a hearing, the restraining order was extended until March 31, 2011. The defendant was present at the hearing and received a copy of the order. Gilliam was also present, and, while waiting for the hearing to begin, she informed the victim witness advocate of the March 27 phone call as well as a voicemail she had received from the defendant’s mother on March 21, 2010, stating, “You need to call me about this.” Records from the Norfolk County House of Corrections indicated that the defendant had been in the custody there as of March 20, 2010. The records further indicate that, during the time relevant here, the defendant did not place any phone calls to Gilliam;4 however, two phone calls to Gilliam’s cell phone were made by an inmate in the same section or block as the defendant. The first of these phone calls took place on March 26, and was not answered. The second took place on March 27, and the records indicate that the party that answered hung up.
On April 29, 2010, Gilliam again spoke with Officer Heavey of the Brookline Police. She shared with him a letter, postmarked April 27, 2010, that she had received from the defendant. In the letter, the defendant, writing as “Peabody,”5 begs Gilliam to drop the charges, telling her that “Sam” did not mean what he had said and that “Sam” would never hurt her. The letter also states, “You know he still got them nasty pictures of you. This can get ugly, Mee-Mee.”
DISCUSSION
The defendant’s Motion to Dismiss is based on three claims. First, he argues that the stalking law is unconstitutionally vague. Second, he contends that there was insufficient evidence for the grand jury to indict him on various counts. Finally, he maintains that the grand jury proceedings were impaired.
1. Constitutional Claim
The defendant alleges that a portion of the Massachusetts anti-stalking statute is unconstitutionally *240vague. That statute reads in relevant part: “(a) Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking.”6 G.L.c. 265, §43(a). Section 43(b) addresses stalking that occurs in violation of a protective order.7 The defendant claims that the phrase “over a period of time” is unconstitutionally vague because it “permits the Commonwealth to rely on an event or events remote in time that when packaged with a third, more recent event may give rise to a charge of stalking.” This, he argues, violates the requirements of due process because it vests too much discretion in the Commonwealth.
a. Void for Vagueness Standard
A penal statute is “void for vagueness” if it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983). “Proscribed conduct need not, however, be set forth by ‘precise legal definition’ or with ‘mathematical precision,’ ” Commonwealth v. Dunn, 43 Mass.App.Ct. 58, 59 (1997), and a “law is not vague if it requires a person to conform his conduct to an imprecise but comprehensive normative standard so that men of common intelligence will know its meaning.” Commonwealth v. Taylor, 413 Mass. 243 (1992). “When examining a criminal statute for possible unconstitutional vagueness, [the court] may go beyond the actual language of the statute to give meaning to the words and phrases according to their common law meaning or statutory history.” Dunn, 43 Mass.App. at 59, citing Commonwealth v. Gallant, 373 Mass. 575, 581 (1977). “If the language of the statute is ‘fairly susceptible [to] a construction that would lead to a logical and sensible result,’ [the court] will construe [it] so as to make [it an] effectual piece of legislation in harmony with common sense and sound reason.” Commonwealth v. Williams, 427 Mass. 59, 62 (1998), quoting Commonwealth v. A Juvenile, 16 Mass.App.Ct. 251, 254 (1983). “[I]n determining whether a statute is unconstitutionally vague, [the court] may consider limiting judicial constructions which have been employed in its interpretation.” Commonwealth v. Frieberg, 405 Mass. 282, 289 (1989), citing Kolender v. Lawson, 461 U.S. 352, 355 (1983).
b. Analysis
While the phrase “over a period of time” may be indefinite, it is not vague. Read in context of the entire statute and given its plain meaning, it simply means that there must be at least some minimal separation between incidents. See Victor V. v. Commonwealth, 423 Mass. 793, 794 (1996) (“Where the statutory language is clear, the courts must give effect to the plain and ordinary meaning of the language”). The defendant’s argument that this language is unconstitutional because it vests too much discretion in the Commonwealth and permits arbitrary enforcement is unavailing because the ability to use incidents separated by lengthy periods of time is strictly limited by other language in the statute, including the natural meaning of the preceding phrase, “pattern of conduct or series of acts.” See Commonwealth v. Welch, 44 Mass. 80, 85 (2005) (applying general rule of statutory construction that, “a statute is to be interpreted according to the intent of the legislature ascertained from all its words construed by the ordinary and approved usage of the language”).
Pursuant to the natural construction of the stalking section, the purpose of the contested language is to modify the phrase “pattern of conduct or series of acts.” In order to determine whether “over a period of time” opens the door to arbitrary enforcement and unfettered discretion, the meaning and purpose of “pattern of conduct or series of acts” within the statute must be considered. In Commonwealth v. Kwiatowski, the Supreme Judicial Court interpreted this phrase as requiring more than two incidents. 418 Mass. 543, 548 (1994). In Welch, the Court examined the “nature and scope” of that same phrase within the closely related, lesser included offense of criminal harassment. 444 Mass. at 84, 89. See also G.L.c. 265, §43A. Specifically, the Court considered the meaning of the words “pattern” and “series,” and determined that the phrase required the Commonwealth to prove at least three incidents. Id. at 89-90. This determination was based in part on Kwiatowskis interpretation of the stalking statute, and, more important with respect to the present challenge, because “the dictionary definition of ‘series’ is ‘a group of usu[alfy] three or more things or events standing or succeeding in order and having a like relationship to each other.’ ” Id., citing Webster’s Third New Int’l Dictionary 2072 (1993) (emphasis added).
Thus, the phrase “pattern of conduct or series of acts” limits the Commonwealth’s discretion in two important ways. First, it requires that there be at least three incidents involved. Second, it requires that the three incidents be related in some way to each other. It is this relationship requirement, and not the timing of the incidents, that ultimately insures that the statute will not be construed or applied arbitrarily because an event remote in time is actionable only to the extent it is sufficiently related to the other two incidents that are used to support the charge. It follows then that the phrase “over a period of time” does not permit arbitrary enforcement; it simply modifies the limiting phrase “pattern of conduct or series of acts” by emphasizing the need for some minimal amount of separation between incidents.
*241This requirement of three incidents for a charge of stalking is also defined and limited by the other elements of the crime, namely that (1) the defendant’s conduct be willful and malicious, (2) the conduct be directed at a specific person, (3) the conduct be of the type that would seriously alarm or annoy that person and would cause a reasonable person to suffer substantial emotional distress, and (4) that the defendant made a threat with the intent to place the person in imminent fear of death or bodily injuiy. Thus, while the phrase “over a period of time” only requires incidents separated in time, those incidents must meet the requirements to establish a pattern, as well as the other elements of the crime.
By its ordinary language, the stalking statute therefore “provides ‘comprehensible standards that limit prosecutorial and judicial discretion’ and thus avoid[s] discriminatory or arbitrary enforcement.” Commonwealth v. Hendricks, 452 Mass. 97, 102 (2008), citing Commonwealth v. Pagan, 445 Mass. 161, 173 (2005). The remaining question is whether the statute “provides a reasonable opportunity for a person of ordinary intelligence” to know that the type of conduct in which the defendant engaged was prohibited. See Hendricks, 452 Mass. at 102, quoting Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986). See also Commonwealth v. Bohmer, 374 Mass. 368, 371-72 (1978). As explained above, the language of the statute is clear in what it prohibits. Here, a person of ordinary intelligence should reasonably understand that repeated death threats directed at a specific person fall “ ‘squarely within the statute,’ [and therefore] there is no merit to the argument that the statute was unconstitutionally vague as applied to him.” Commonwealth v. Marshall, 65 Mass.App.Ct. 710, 717 (2006), quoting Commonwealth v. Poillucci, 46 Mass.App.Ct. 300, 305 (1999).
2. The Indictment
a.Sufficiency of the Evidence
To obtain an indictment, the Commonwealth must present the grand jury with sufficient evidence to establish the identity of the accused and probable cause to arrest him or her. Commonwealth v. McCarthy, 385 Mass. 160, 163 (1993). Probable cause to arrest exists where the facts and circumstances within the police officer’s knowledge at the time of the arrest serve as “reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” Commonwealth v. Stevens, 362 Mass. 24, 26 (1972), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause requires “more than mere suspicion but something less than evidence sufficient to warrant a conviction.” Commonwealth v. Roman, 414 Mass. 642, 647 (1993). To establish probable cause, the Commonwealth must present the grand juiy with evidence of each element of the crime charged. Commonwealth v. Moran, 453 Mass. 880, 884 (2009).
b.Assault with a Dangerous Weapon
“The crime of assault breaks down into two subcategories: an attempted battery (e.g., intentionally swinging at a person with a baseball bat and missing) or a threatened battery (e.g., waving a bat toward a person in an overt and objectively menacing way).” Commonwealth v. Chambers, 57 Mass.App.Ct. 47, 48 (2003). For an attempted battery, the Commonwealth must show that a person took “an overt step toward making intended physical contact (touching) to which the target has not consented and coming pretty near to accomplishing the crime.” Id. at 48. For a threatened battery, the Commonwealth must show that the defendant engaged in objectively menacing conduct with the intent to put the victim in fear of immediate bodily harm. Commonwealth v. Musgrave, 18 Mass.App.Ct. 519, 524 n.7 (1995), S.C., 421 Mass. 610 (1996), quoting Commonwealth v. Marcotte, 18 Mass.App.Ct. 391, 394 (1984). “(A]s a general rule words are not sufficient to constitute an assault.” Commonwealth v. Delgado, 367 Mass. 432, 436 (1975). Assault with a dangerous weapon requires the Commonwealth to show an additional element, namely that the assault was perpetrated by means of a dangerous weapon. Commonwealth v. Melton, 436 Mass. 291, 294 (2002).
Here, the defendant’s threat to “take matters into [his] own hands” and “put a bullet in [Gilliam’s] head,” followed thereafter by the photographic proof of his apparent ability to cany through on his threat, is sufficient to establish probable cause for assault with a dangerous weapon. A threat to a person’s life followed shortly thereafter by images evidencing the defendant’s ability to carry through on those threats would cause a reasonable person apprehension.
c.Stalking
The defendant is charged with both stalking in violation of aprotective order, G.L.c. 265, §43(b) (count 001), and the lesser included offense of stalking under G.L.c. 265, §43(a) (count 006). Both crimes require the Commonwealth to show that the defendant (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury. As noted previously, a pattern or series of conduct requires proof of at least three incidents. See Kwiatkowski, 418 Mass. at 548. The crime of stalking in violation of a protective order requires the additional proof that a defendant who is guilty of stalking has violated a restraining order. G.L.c. 265, §43(b).
With regard to Indictment 001, the grand jury heard evidence that the defendant contacted Gilliam at least three times—by phone on March 26 and 27, and by letter on April 29—after the court had ordered him not *242to contact her. Such contact, occurring so soon after, and in blatant disregard of the no-contact order, would cause a reasonable person to suffer substantial emotional distress. Furthermore, the grand jury heard testimony that Gilliam did feel alarmed by the contact, as she had the phone company block the Norfolk jail number and took the letter to the police station. Finally, there was evidence that, among other things, the defendant wrote in the letter, “This can get ugly, MeeMee.” Given the restraining order and the defendant’s previous threats, this is sufficient to establish the threat element of stalking. See Commonwealth v. Matsos, 421 Mass. 391, 394 (1995) (Commonwealth need only prove that “the defendant made a threat with the intent to place the victim in imminent fear of death or bodily injury”); Commonwealth v. Julien, 59 Mass.App.Ct. 679, 685 (2003).
With regard to Indictment 006, the grand jury heard evidence that the defendant sent Gilliam a letter on February 12, 2006, in which he threatened to kill anyone who interfered with his ability to see his daughter; that he called Gilliam on March 13, 2010, and again threatened to kill her by “putting a bullet in [her] head”; and that he subsequently sent her a picture on her cellular phone showing himself holding a gun. These incidents caused Gilliam to take out a protective order against the defendant. Such repeated, specific threats against a person’s life would cause a reasonable person to suffer substantial emotional distress, and the fact that Gilliam took out a protective order against the defendant shows that she was seriously alarmed or annoyed by his conduct. These facts are sufficient to support the charge for stalking.
d. Threats
The defendant is charged with threats under G.L.c. 275, §2, which states, “If complaint is made to any such court or justice that a person has threatened to commit a crime against the person or properly of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant.” (Emphasis added.) By its terms this section describes the process for issuing a criminal complaint against a person who has threatened to commit a crime. The defendant’s case, however, is before this Court on an indictment issued by a grand juiy. Section 2 of Chapter 275 makes no reference to grand juiy proceedings, and, indeed, no justice or court is involved in the examination of witnesses in the grand juiy process. Nor is there anything in the record before this Court to indicate whether Gilliam appeared and testified in the district court relative to this offense.
Assuming, without deciding, that §2 applies to grand juiy proceedings, dismissal of this indictment would not be an inappropriate remedy here for the failure of the Commonwealth to call Gilliam to testify before that body. See Commonwealth v. Jacobsen, 419 Mass. 269, 275 (1995). Dismissal is a drastic remedy that “turns primarily on the ability of the defendant to obtain a fair trial after, and in light of, the police misconduct.” Id. at 276. Although the grand juiy did not hear from Gilliam directly, it did hear Officer Heavey and Detective Molloy testify regarding statements Gilliam had made to them in their official capacities about the defendant’s threats. Detective Molloy read portions of the written statement Gilliam submitted to support her application for the restraining order, including Gilliam’s description of the phone call and picture message threat on March 13. Officer Heavey read portions of the February 12 letter, including one that stated, “I will kill anyone that stands in the way of me and my child.” Any potential prejudice from not hearing from Gilliam directly was thus mitigated by the fact that the grand juiy heard her accounts from other sources.
3. Impairment of the integrity of the grand juiy process
Finally, the defendant alleges that the integrity of the grand juiy proceeding was impaired because the Commonwealth introduced evidence of uncharged misconduct including the defendant’s prior drug use, and his violence and abuse toward Gilliam and her children. While this evidence related to uncharged conduct, it was nonetheless relevant for establishing context and Gilliam’s state of mind, fear and alarm as elements of the charged offenses. See Commonwealth v. Martinez, 43 Mass.App.Ct. 408, 412 (1997), quoting Commonwealth v. Matsos, 421 Mass. 391, 392 n.3 (1995) (“The defendant’s prior acts of violence against [victim] . . . were relevant to and probative of either or both the stalking and c. 209A charges. The Commonwealth is entitled to present to the juiy, in a case brought under c. 265, §43, ‘evidence of the totality of the defendant’s conduct toward the victim’ ”). The evidence related to uncharged conduct was not deceptive or false, there is no showing that it was offered knowingly and for the purpose of obtaining an indictment, and no showing that it probably influenced the grand juiy’s decisions to hand up the indictments. See Commonwealth v. Pond, 24 Mass.App.Ct. 546, 551 (1987), review denied, 400 Mass. 1106 (1987).
ORDER
Based on the foregoing, defendant’s Motion to Dismiss the Indictment is DENIED.
At a hearing, this Court allowed the Commonwealth’s Motion to Amend the Indictment, combining Indictments 001 and 002 into a single indictment.
The Commonwealth concedes that there was insufficient evidence to support Indictment 003, and, therefore, that Indictment has been dismissed.
The defendant has offered no argument to support the Motion to Dismiss with regard to Indictments 004, 007, and 008.
Phone calls can be tracked via pin numbers.
Gilliam explained that “Peabody” was her old nickname for the defendant.
The statute further provides: ‘The conduct, acts or threats described in this subsection shall include, but not be limited to, conduct, acts or threats conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications."
“(b) Whoever commits the crime of stalking in violation of a temporary or permanent vacate, restraining, or no-contact order or judgment issued pursuant to sections eighteen, thirty-four B, or thirty-four C of chapter two hundred and eight; or section thirty-two of chapter two hundred and nine; or sections three, four, or five of chapter two hundred and nine A; or sections fifteen or twenty of chapter two hundred and nine C or a protection order issued by another jurisdiction; or a temporary restraining order or preliminary or permanent injunction issued by the superior court, shall be punished by imprisonment in a jail or the state prison for not less than one year and not more than five years. No sentence imposed under the provisions of this subsection shall be less than a mandatory minimum term of imprisonment of one year.” G.L.c. 265, §43(b).
|
01-03-2023
|
10-17-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/2601617/
|
228 P.3d 1222 (2010)
234 Or. App. 659
STATE of Oregon, Plaintiff-Respondent,
v.
Ryan Lawrence ANTHONY, Defendant-Appellant.
CR0700610; A136945.
Court of Appeals of Oregon.
Argued and Submitted March 10, 2010.
Decided April 14, 2010.
*1223 Laura Graser, Portland, argued the cause and filed the brief for appellant.
Jennifer S. Lloyd, Attorney-in-Charge, Criminal Appeals, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Janet A. Metcalf, Assistant Attorney General.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.
SCHUMAN, P.J.
Defendant appeals a judgment convicting him of aggravated murder and felony murder based on acts committed in 1980.[1] Although the murders at issue occurred in 1980, defendant was not charged until 2006. On appeal, he contends that the trial court erred in "denying [his] demurrer to the four counts of aggravated murder, as the statute of limitations had run before [he] was charged." In his second assignment of error, defendant asserts that the trial court erred "when it prohibited [him] from offering the hearsay statements of [a third party] confessing" to the murders at issue. Defendant asserts that, although that individual was present and testified during a pretrial hearing, he should have been treated as unavailable and his statements admitted pursuant to OEC 804(3)(c) as statements against penal interest because his testimony was evasive (in defendant's words, "he weaseled"). We affirm.
According to defendant, in 1980, when the murders at issue were committed, the statute of limitations for aggravated murder was three years. The state responds that the statute of limitations for murder, including aggravated murder, is and has always been unlimited.
In 1980, ORS 131.125[2] provided, in part:
"(1) A prosecution for murder or manslaughter may be commenced at any time after the death of the person killed.
"(2) Except as otherwise provided in subsection (3) of this section or as otherwise expressly provided by law, prosecutions for other offenses must be commenced within the following periods of limitations after their commission:
"(a) For any felony, three years.
"(b) For any misdemeanor, two years.
"(c) For a violation, six months."
According to defendant, aggravated murder is not "murder" as that term was used in ORS 131.125(1). Thus, he urges, the three-year statute of limitations for other felonies should have been applied to preclude prosecution in his case. Based on our review of the applicable statutory provisions, the context, and the legislative history, see State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009), we disagree.
As set forth above, a prosecution for "murder or manslaughter" could have been commenced at any time. ORS 163.095 provided that "`aggravated murder' means murder as defined in ORS 163.115 which is committed under, or accompanied by," one or more of the listed circumstances. ORS 163.115, in turn, defined murder. Thus, it is clear that the legislature intended aggravated murder *1224 to be merely a form of murder.[3] To fall within the statutory definition of aggravated murder, the crime had to meet the requirements of ORS 163.115 and be accompanied by any of the aggravating circumstances listed in the aggravated murder statute.
That ORS 131.125(1) listed only the broader term "murder" and did not specifically reference "aggravated murder" at the time defendant's crimes were committed is of no import. Indeed, as the state correctly points out, the unlimited statute of limitations for murder has been in effect, in virtually the same language, since the time of the Deady Code. General Laws of Oregon, Crim. Code, ch. II, § 9, p. 442 (Deady 1845-1864) ("The time for commencement of criminal actions shall be as follows: 1. For murder or manslaughter, at any time after the death of the person killed[.]"). At that time, the code provided for first- and second-degree murder, see id. at ch. XLIII, §§ 502-505, p. 527-28, but, like at the time of defendant's crimes, the statute of limitations referred only generally to "murder."
In short, in light of the text of the relevant statutory provisions in context, as well as their history, we conclude that the legislature clearly intended an unlimited statute of limitations to apply to aggravated murder. The trial court did not err in so concluding.
In his second assignment of error, defendant argues that the court erred in excluding a hearsay statement from a third party allegedly confessing to the crime for which defendant was convicted. Defendant relies on OEC 804(3)(c). That provision allows admission of such statements if (1) the declarant is unavailable, (2) the statement is so inculpatory that a reasonable person in the position of the declarant would not have made the statement unless it was true, and (3) corroborating circumstances clearly establish that the statement is trustworthy. State v. Schutte, 146 Or.App. 97, 101, 932 P.2d 77 (1997). We reject without discussion defendant's argument that, because the witness's testimony was evasive, he was unavailable for purposes of OEC 804(3)(c).
Nonetheless, in a recent case, we held that, where "the corroboration/'trustworthiness' requirement for admission of statements against penal interest" is met, exclusion as hearsay evidence of a confession merely because the confessing witness is not "unavailable" can, in some circumstances, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. Cazares-Mendez, 233 Or.App. 310, 323, 227 P.3d 172 (2010). Satisfaction of the corroboration requirement, then, remains a predicate to considering whether hearsay evidence of a confession must be admitted on due process grounds. In the same case, we observed that, whether the corroboration requirement has been satisfied depends on the individual circumstances of each case. Id. at 324, 227 P.3d 172. Although we held in Cazares-Mendez that the circumstances there were sufficiently clear to establish the trustworthiness of the hearsay confession so *1225 as to justify a due process inquiry, we reach a different conclusion here.
In brief, the corroboration in Cazares-Mendez consisted of multiple witnesses who had heard detailed confessions that "related particulars that were peculiar to" the crime that defendant allegedly committed. Id. at 326, 227 P.3d 172 (emphasis added). Here, the "corroboration" consisted of the following details: an uninvolved witness saw an unidentified man in the doorway of the victims' house on the night after the murder; the same witness saw two motorcycles outside the victims' home, and the witness who confessed owned a motorcycle; and a different witness saw "two ominous-looking men" walking toward the victims' home on the night of the murder. That evidence is a far cry from what the defendant presented in Cazares-Mendez. In light of the circumstances presented, the trial court did not err in excluding the hearsay confession in this case.
Affirmed.
NOTES
[1] Defendant was convicted of four counts of aggravated murder and two counts of felony murder. The felony murder convictions merged with two aggravated murder convictions.
[2] Because defendant's crimes were committed in 1980, we refer to the 1979 version of the statutes unless otherwise noted.
[3] We note that, for some purposes, murder does not include aggravated murder. In State v. Moore, 324 Or. 396, 927 P.2d 1073 (1996), the Supreme Court addressed whether, under a later version of the statutes than that at issue in this case, the affirmative defense of extreme emotional distress provided for in ORS 163.135(1) applies to aggravated murder. According to the text of that statute, "EED is an affirmative defense only to a crime of murder, as that crime is defined by ORS 163.115(1)(a), that is, homicide committed intentionally." Moore, 324 Or. at 412, 927 P.2d 1073 (emphasis in original). In light of the statutory text, the court in Moore concluded:
"EED does not apply to felony murder, defined by ORS 163.115(1)(b), or murder by abuse, defined by ORS 163.115(1)(c). Likewise, under the wording of ORS 163.135(1), it also does not apply to `any other crime.' Consequently, EED is not an affirmative defense to aggravated murder under ORS 163.095(1)(d)."
Id.
The holding in Moore supports our conclusion that "murder," as used in the statute at issue in this case, includes aggravated murder. That is so because the phrase that the legislature employed in ORS 163.135(1), as set forth in Moore, to describe a limited form of murder that does not include aggravated murder was "murder for the purposes of ORS 163.115(1)(a)." That distinction shows that, when the legislature intends to refer to only nonaggravated murder, it knows how to do so. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 614, 859 P.2d 1143 (1993) ("The legislature knows how to include qualifying language in a statute when it wants to do so."). In the relevant version of ORS 131.125 it did not; it instead used the unadorned term, "murder."
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615029/
|
847 P.2d 84 (1993)
John B. MONROE, Appellant,
v.
STATE of Alaska, Appellee.
No. A-3957.
Court of Appeals of Alaska.
February 19, 1993.
*85 Richard Keck, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant.
John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
OPINION
BRYNER, Chief Judge.
John B. Monroe pled no contest to a charge of second-degree murder, in violation of AS 11.41.110(a)(1). Following a sentencing hearing, Superior Court Judge Richard D. Savell found Monroe guilty but mentally ill (GBMI) and sentenced him to serve sixty years in prison. Monroe appeals, arguing that: (1) the superior court violated his privilege against self-incrimination at the GBMI hearing by allowing the state to present testimony from a psychologist who had examined Monroe for the purpose of determining his competency to stand trial; (2) the court violated Monroe's right to have his plea of no contest accepted unconditionally by adjudicating him GBMI; (3) the state presented insufficient evidence to support a finding of GBMI; and (4) the mandatory restriction on parole set forth in the GBMI statute violates Monroe's right to equal protection. Monroe further raises a number of sentencing issues. We affirm.
FACTS
At 2:27 a.m. on June 5, 1990, the Alaska State Troopers' office in Fairbanks received a telephone call from a man who stated, "We have a stiff on our hands," and, "I [or we] need medical attention." The call was traced to John Monroe's residence, and three troopers were sent to investigate. When the troopers arrived, they were met by Monroe, who had blood on his hands and clothing. Monroe stated that he "wanted to make sure ... that he got a decent burial." Monroe then led the troopers to the body of his father, Gilbert Monroe. The body was lying on the ground near the cabin in which Monroe's father had lived. The body was covered in blood; two bloody knives had been placed on its chest.
Inside Gilbert Monroe's cabin, the troopers discovered signs of a struggle. Patterns of blood found in the cabin indicated that the struggle began inside the home and then proceeded outside. An autopsy revealed that Gilbert Monroe died from approximately thirty-three stab wounds to his head and neck. Both the victim's jugular veins and the left carotid artery had been severed. In addition, Gilbert Monroe had defensive stab wounds on his hands.
*86 Monroe was arrested and charged with first-degree murder. At Monroe's arraignment, the state moved to have him undergo a court-ordered competency evaluation. The motion was based on the state's awareness that Monroe had a history of paranoid schizophrenia. Monroe's attorneys informed the court that they wished to seek an independent evaluation of Monroe by Drs. Rothrock and Parker. The trial court agreed to allow Monroe to seek an independent evaluation prior to intervention from the court.
After Drs. Rothrock and Parker had completed their competency evaluations, Monroe's counsel informed the court that they had found Monroe incompetent to proceed. The court then sua sponte ordered an independent competency evaluation, indicating in its order that Monroe's counsel could be present and could record the examination. Pursuant to court order, Monroe was examined by Dr. David Sperbeck on August 3, 1990.
Dr. Sperbeck determined that Monroe was not competent, but suggested that Monroe could attain competency through treatment. After a period of treatment, Monroe was re-examined by Dr. Rothrock, who concluded that Monroe was now able to assist his attorneys and was therefore competent to proceed. The trial court accepted Dr. Rothrock's finding of competency.
Monroe eventually entered into a plea agreement with the state. The agreement, which called upon Monroe to plead no contest to the reduced charge of murder in the second degree, expressly contemplated that, for sentencing purposes, the state would be allowed to attempt to establish that Monroe was GBMI.[1] At the change of plea hearing, counsel for Monroe indicated that Monroe would contest the GBMI issue. Prior to sentencing, the state filed formal notice of its intent to have Monroe found GBMI. The state further filed a motion to allow Dr. Sperbeck to testify telephonically on the GBMI issue at the sentencing hearing. Monroe apparently did not object, and the motion was granted.
On April 12, 1991, Judge Savell conducted a sentencing hearing in Monroe's case. The court first addressed the GBMI issue. Dr. Sperbeck was called by the state and testified without objection from Monroe. Dr. Sperbeck stated that Monroe suffered from "one of the most severe cases of schizophrenia that I've ever seen." He noted that Monroe's illness was "very responsive to treatment," but emphasized that, in the past, Monroe had not been reliable in taking medication: when allowed to take oral medication voluntarily, Monroe would take less than the prescribed dosage, or would manipulate his doctors into prescribing smaller dosages than were necessary to treat his condition.
Dr. Sperbeck also testified that, at the time of the offense, Monroe had not had the proper amount of medication in five weeks; the amount of medication Monroe was taking at the time of the offense was "absolutely subtherapeutic." Dr. Sperbeck concluded that it was more likely than not that on the date of the offense Monroe was suffering from psychotic delusions, and that, as a result of this mental state, he could not appreciate the wrongfulness of his actions nor conform his conduct to the requirements of the law.
Based on this and other evidence, Judge Savell found Monroe GBMI. The court then proceeded to sentence Monroe under the GBMI sentencing provisions. Finding that Monroe posed an extreme danger to the community when off medication, that he had little insight into his disease, and that he could not be relied on to continue with appropriate medication, the court concluded that Monroe needed to be isolated for the safety of the public. The court *87 sentenced Monroe to sixty years' imprisonment.
DISCUSSION
Monroe initially claims that the superior court erred in allowing Dr. Sperbeck to testify on the GBMI issue. Monroe contends that, since Dr. Sperbeck had been appointed by the court to examine him solely on the issue of competency to proceed and since Monroe had not been advised of his Miranda rights, allowing Dr. Sperbeck to testify on the GBMI issue violated Monroe's privilege against self-incrimination. Cf. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); R.H. v. State, 777 P.2d 204 (Alaska App. 1989).
Monroe raises this issue for the first time on appeal. Because Monroe failed to object to Dr. Sperbeck's testimony below, we review only for plain error. We will find plain error only when an obvious mistake causes substantial prejudice to the accused under circumstances establishing that the mistake did not result from a tactical choice by the accused. Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989); Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
In the present case, the record discloses more than a passive failure to object to Dr. Sperbeck's testimony. At the outset of the GBMI hearing, Monroe's trial counsel expressly told the court that he intended to rely on Dr. Sperbeck's cross-examination to defend against the state's attempt to prove him GBMI:
We're going to contest the finding of guilty, but mentally ill, primarily through cross-examination of Dr. Sperbeck, who examined John about two months after John had been incarcerated.
During cross-examination, defense counsel questioned Dr. Sperbeck extensively regarding Dr. Sperbeck's conclusion that Monroe willfully neglected to take his prescribed medication and schemed to have his dosage amount reduced. During this line of questioning, counsel specifically referred Dr. Sperbeck to portions of the medical records that counsel now claims were improperly relied upon.
Based on this record, it appears that Monroe's trial counsel knowingly bypassed an objection to Dr. Sperbeck's testimony for tactical reasons. Assuming arguendo that Dr. Sperbeck should not have been allowed to testify had Monroe objected, we find no plain error under the circumstances of this case.[2]
Monroe next claims that, because he did not affirmatively place his own mental state in issue, the superior court's GBMI finding violated his right to the unconditional acceptance of his no contest plea. In asserting this claim, Monroe relies exclusively on State v. Ruby, 650 P.2d 412 (Alaska App. 1982). That case, however, is inapposite. Ruby, like the cases upon which it was based,[3] stands for the limited proposition *88 that a court cannot reject a knowing and voluntary plea of guilty or no contest and insist that the defendant stand trial simply because the defendant insists on claiming innocence.
Here, the superior court did not purport to reject Monroe's plea; to the contrary, the court accepted the plea, convicted Monroe on the basis of it, and sentenced him. Although the court applied the GBMI statute in imposing Monroe's sentence, this did not alter the fact that Monroe was convicted on his no contest plea. The statutory provisions applicable to findings of GBMI are essentially dispositional in nature: apart from differences in post-sentencing treatment, the consequences of being found GBMI, on the one hand, or merely guilty, on the other, are essentially the same.
Monroe cites no authority for the proposition that a defendant who is convicted on a plea of guilty or no contest is entitled to any particular form of sentence or disposition. Moreover, in this case, Monroe expressly entered into a plea agreement (and thereby secured a dismissal of the original first-degree murder charge) with the express understanding that the state would be entitled to claim that he was GBMI. Under these circumstances, we find that Monroe's claim lacks merit.
Monroe further argues that the evidence was insufficient to support the trial court's finding of GBMI. The adjudication of a person as GBMI is governed by AS 12.47.030(a), which provides, in relevant part:
A defendant is guilty but mentally ill if, when the defendant engaged in the criminal conduct, the defendant lacked, as a result of a mental disease or defect, the substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of law.
In the present case, the state presented overwhelming evidence that Monroe was suffering from schizophrenia at the time he stabbed his father, and Monroe concedes in his brief that "[he] did not contest that he had a `mental disease or defect.'" Dr. Sperbeck, who had access to Monroe's prior medical records, testified that Monroe "has been consistently diagnosed as suffering from a schizophrenic disorder, paranoid type, which is chronic, and frequently becomes acute, either under stress or when the defendant discontinues his medications." Dr. Sperbeck further testified that "[Monroe] has one of the most severe cases of schizophrenia that I've ever seen." The state also presented the testimony of several mental health counselors who had worked with Monroe in the past, who all supported the conclusion that Monroe had been a longtime sufferer of schizophrenia.
Evidence that Monroe's conduct was the result of his schizophrenia, and that he met the remaining two prongs of the GBMI statute, was derived chiefly from Dr. Sperbeck's testimony. Dr. Sperbeck believed that, at the time of the assault, Monroe was suffering from an active psychosis generated by his schizophrenia. This belief stemmed from Dr. Sperbeck's knowledge of the amount of medication that Monroe had been taking in the few weeks prior to the incident, an amount the doctor described as "absolutely subtherapeutic."
Dr. Sperbeck noted that Monroe had been isolated with his father for some time prior to the attack, and that Monroe had a history of delusions encompassing those who were closest to him. Dr. Sperbeck testified that Monroe was probably acting out of fear and rage generated by a delusional conspiracy theory: "I cannot imagine that [Monroe] was capable of understanding and weighing and judging the effects of his behavior... . He must have believed that killing his father was more important than protecting himself." Thus Dr. Sperbeck concluded that Monroe could not appreciate the wrongfulness of his conduct.
Dr. Sperbeck also forcefully concluded that Monroe could not conform his conduct to the requirements of law. [Tr. 31]. In support of this conclusion, Dr. Sperbeck stated:
I believe that he was probably so distracted by his mistaken beliefs about his father and his father's intentions towards *89 him or (indiscernible) and treatment towards him that even if a policeman had been standing at his side, I doubt he would have been able to control his rage.
Dr. Sperbeck added that Monroe's actions after the murder, particularly his placing the telephone call to the state troopers, added credence to the notion that Monroe could not control his conduct.
When viewed in the light most favorable to the state, this evidence is sufficient to support the trial court's conclusion that the state met its burden of proof under AS 12.47.030(a).
Monroe also claims that the statutory parole restriction applicable to persons found GBMI denies him equal protection. Alaska Statute 12.47.050 states, in relevant part:
(a) If the trier of fact finds that a defendant is guilty but mentally ill, the court shall sentence the defendant as provided by law and shall enter the verdict of guilty but mentally ill as part of the judgment.
(b) The Department of Corrections shall provide mental health treatment to a defendant found guilty but mentally ill. The treatment must continue until the defendant no longer suffers from a mental disease or defect that causes the defendant to be dangerous to the public peace or safety... .
(c) When treatment terminates under (b) of this section, the defendant shall be required to serve the remainder of the sentence imposed.
(d) Notwithstanding any contrary provision of law, a defendant receiving treatment under (b) of this section may not be released
(1) on furlough under AS 33.30.101 33.30.131, except for treatment in a secure setting; or
(2) on parole.
Based on testimony indicating that he will always require treatment from schizophrenia, and assuming that no "cure" for chronic paranoid schizophrenia will be discovered in the forthcoming years, Monroe maintains that this statutory provision will deny him any opportunity for release on parole. Building on this premise, Monroe argues that he and other defendants found GBMI have been unfairly singled out for harsher treatment than defendants who are simply found "guilty."
Monroe admits that the parole restriction statute seeks to further a legitimate and substantial state interest: to protect society from offenders who pose a continuing danger to the community. Monroe nevertheless asserts that the statutory scheme infringes on the right to individual liberty. Since this is a fundamental right, argues Monroe, the state must show that the parole restriction serves a compelling interest and is the least restrictive means to further the statute's goal. See Patrick v. Lynden Transport, Inc., 765 P.2d 1375, 1377 (Alaska 1988) (citing Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969)).
However, a person who stands to be sentenced upon conviction of a crime has no fundamental right to liberty. In such cases, "the individual interest affected ... is the relatively narrow interest of a convicted offender in minimizing the punishment for an offense." Maeckle v. State, 792 P.2d 686, 689 (Alaska App. 1990).
In Barrett v. State, 772 P.2d 559, 573-74 (Alaska App. 1989), we rejected an equal protection challenge to the restrictions on furloughs and parole inherent in the GBMI statutory scheme where the GBMI finding resulted from the defendant's having placed his mental state in issue. See AS 12.47.010; AS 12.47.020. We found that, as a practical matter, "[n]o responsible correctional official or parole board member would release a person into the community if he or she felt that that person was dangerous." Barrett, 772 P.2d at 573. We then stated that when a defendant has asserted a relationship between mental illness and criminal behavior, such an assertion justifies treating the defendant differently from the public at large. Id. at 574.
We noted in Barrett that the statutory provision allowing a GBMI finding to be made regardless of whether the defendant *90 placed mental health in issue, AS 12.47.060, did not "figure in this appeal." Id. at 574 n. 16. Monroe's equal protection claim is arguably distinguishable from that defeated in Barrett, since the GBMI finding in Monroe's case was entered pursuant to AS 12.47.060, over Monroe's objection. Indeed, Monroe relies on this distinction.
However, Monroe fails to specify why a finding of GBMI under AS 12.47.060 would make his equal protection claim any more tenable than that rejected in Barrett, and he cites no persuasive authority to support his claim. We note that the finding of GBMI in this case resulted from Monroe's election to enter into a plea agreement whose terms expressly contemplated that the state would argue for this disposition. Under the circumstances, we find no merit to Monroe's equal protection claim.[4]
Monroe lastly challenges his sentence as excessive. Second-degree murder is an unclassified felony, punishable by a term of imprisonment ranging from five to ninety-nine years. AS 11.41.110(b); AS 12.55.125(b). In imposing Monroe's sixty-year sentence, Judge Savell found that Monroe lacked insight into the nature of his illness and into the need for medication. The court found that Monroe had an "on-going resistance to voluntary medication" and that "Monroe is a very dangerous person because of his inclination to refuse medicine." The court then concluded that "[i]t is necessary at the present time to isolate Mr. Monroe from society to prevent repeated instances of conduct consistent with his disease and that which brings him before the court at this time."
In addition to the need to isolate Monroe, the court noted that Monroe apparently could not be deterred from dangerous conduct and that his prospects for rehabilitation were "shak[y]." The court also noted the particular seriousness of Monroe's conduct, which involved the murder of his own father. In summation, the court said:
[A]t the present time, applying the Chaney criteria, as the court has articulated, considering the seriousness of the offense, the danger that Mr. Monroe presents at this time; the fact that a prior felony probation was not adequate to protect him or his family or members of the public; the fact that this kind of offense rears its head against those in close association with Mr. Monroe therefore, to endanger family members or work associates, as Dr. Sperbeck indicated, all cause the court to conclude that the sentence recommended by the court is right on the mark.
In contending that his sentence is excessive, Monroe first argues that the superior court erred in failing to take into account the fact that he would likely be ineligible for parole throughout his entire term.
At sentencing, Monroe urged the court to impose a sentence within the twenty- to thirty-year benchmark range that this court has established for second-degree murder. See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983). Monroe maintained that a term exceeding the benchmark *91 range would be particularly harsh because the statutory restriction on parole eligibility for persons found GBMI made it virtually certain that he would actually serve his entire term.
In response to Monroe's argument on this point, the sentencing judge expressed doubt as to whether Monroe's potential ineligibility for parole was a legitimate sentencing consideration:
Aren't I prohibited ... in imposing a sentence from considering likely and anticipated release dates, either, because of parole or good time? ... I've been disallowed to do what you are inviting me to do.
Relying on this comment, Monroe contends on appeal that the sentencing judge erred in failing to consider Monroe's probable release date in fashioning his sentence. Monroe cites AS 12.55.115, which permits a sentencing judge to "further restrict the eligibility of a prisoner for discretionary parole for a term greater than the required under AS 33.16.090 and 33.16.100." Monroe reasons that, since "[a] sentencing court may restrict a prisoner's eligibility for discretionary parole beyond the time otherwise statutorily mandated[,] ... [t]his clearly means that a sentencing judge can consider actual release dates in fashioning a sentence."
The Alaska Supreme Court has observed, however, that predicting parole eligibility is at best an uncertain process; for this reason, the court has stated that "the correct approach" to sentencing should normally be "to impose an appropriate term of incarceration, considering the Chaney criteria, on the assumption that the entire term may be served." Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980) (footnotes omitted).
In the present case, the sentencing court's inquiry reflects its understanding of this precedent, and the sentencing record reflects that the court properly relied on it in fashioning Monroe's sentence. The court's sentencing remarks establish that its decision to exceed the twenty- to thirty-year benchmark for second-degree murder was based not on any misapprehension about Monroe's eligibility for parole, but rather on Monroe's history of violence (which included a prior felony conviction for a life-threatening assault), the seriousness of Monroe's conduct in the current case, and on the exceptional danger Monroe poses by virtue of his resistance to appropriate treatment.
Nothing in the record indicates that the court decided to impose a term of sixty years on the unfounded assumption that Monroe would actually be released on discretionary parole at some earlier point. Instead, it appears that the court determined that the sixty-year term it imposed would be appropriate "on the assumption that the entire term may be served." Jackson, 616 P.2d at 25 (footnote omitted).
Monroe nevertheless maintains that the evidence fails to support the court's finding that he had continuing problems with treatment and cannot be counted on to take appropriate medication in the future. In advancing this argument, Monroe mistakenly construes the sentencing record in the light most favorable to himself. While there is some evidence indicating that other persons may have contributed to Monroe's ongoing problems with receiving appropriate medication, there is also abundant evidence that Monroe was himself the chief source of the difficulty.
Dr. Sperbeck testified that Monroe was intelligent and adroit at convincing his care providers to reduce his medication until he was actually taking less than was necessary. Dr. Sperbeck testified that when given medication to be taken orally, Monroe would refuse to take it: in February of 1991, Dr. Sperbeck discovered that rather than taking the 20 milligram oral dosage of Prolixin he had prescribed Monroe, Monroe was biting the pills in half, thereby reducing his dosage to five or ten milligrams.
This testimony also finds support in medical records maintained by Dr. Rothrock. In a letter to Monroe's counsel dated October 12, 1990, Dr. Rothrock wrote that when he interviewed Monroe the preceding June, Monroe "refused medication, saying that he had not taken any for a long time and did not want to now because `I have extreme difficulties taking medicine.'" Dr. *92 Rothrock wrote in another letter dated January 16, 1991: "Attempts to treat [Monroe] are not too successful because [he] refuses to accept that he is ill and cooperate with treatment."
Other medical records pertaining to Monroe's past medical treatment indicate an unwillingness to comply voluntarily with treatment regimens, or a tendency to downplay the need for medication. Brian Chappell, a social worker who had worked with Monroe in the past, testified at Monroe's sentencing hearing that in March 1987, Monroe was taking his medications "sporadically." Wanda Krahn-Tuttle, Monroe's case worker at the time of the stabbing, testified that Monroe indicated to her on the day after the stabbing that he had not been taking his medication. Monroe's sister testified that, when searching Monroe's cabin after the stabbing, her step-sister had found Monroe's bottle of pills; the bottle was "full," indicating that Monroe had not been in compliance with his prescription.
Finally, at his change of plea hearing Monroe testified that just prior to his father's death, "I would take the pills ... under stress, but otherwise, I wouldn't need them. I would take them if I had difficulty sleeping or that kind of thing."
We conclude that the totality of this evidence supports the sentencing court's finding with respect to Monroe's resistance to treatment; that finding was not clearly erroneous.
Monroe further contends that the court unjustifiably ignored his prospects for rehabilitation and improperly focused on isolation as a sentencing goal. The sentencing court, however, bears primary responsibility for determining the priority and relationship of the various sentencing goals in each case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). We will not disturb the sentencing court's decision unless it is clearly mistaken. Nicholas v. State, 477 P.2d 447, 448-49 (Alaska 1970).
As we have indicated, the sentencing court's findings with respect to Monroe's resistent attitude toward treatment are well-supported by the record. As we have further noted, Monroe had previously been convicted of a life-threatening, felony assault an offense for which he was still on probation when he committed the murder in this case. In the present case, the court's decision to emphasize isolation was not clearly mistaken.
Monroe also claims that the sentencing court unjustifiably ignored evidence that his conduct was mitigated because he acted on provocation, or in imperfect self-defense. Cf. Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984); Bell v. State, 658 P.2d 787, 791 (Alaska App. 1983).
The record establishes, however, that the court did not ignore this evidence; rather, it rejected the evidence as unpersuasive. The court stated, in relevant part:
The physical evidence at the scene of the murder provide[s] a reasonable basis to reconstruct at least some things. It is reasonable to conclude or infer from the physical evidence that the attack began when Mr. Monroe was seated at his desk or table. It is there chairs overturned, it is there that there is a smear on the left arm of the chair. It is to the left side that the bulk of the stab wounds were administered, and, unlike those to the neck and throat, those in the upper left area of the face and scalp, ear and skull, appear to have been downwardly inflicted. While these indicia of aggressive attack at the commencement of the encounter do not disprove possible verbal confrontation or disagreement, they're consistent with a evidence of ... the anger, the violence, the grossly impaired functioning consistent with an acute psychotic break at that time.
The court went on to conclude that Monroe's conduct, including statements given to the court during the plea colloquy, "demonstrates, because of the paranoid and delusional thinking his continued belief that the conduct was appropriate, as distinct from being justified in the beginning ... but, later becoming excessive in degree." The court found that the evidence showed that the attack continued "and could well have gone [on] in multiple stages," indicating that Monroe "demonstrated an extended inability to control his actions."
*93 The sentencing court's findings concerning the circumstances surrounding the offense, and its consequent rejection of the notion that Monroe's conduct was mitigated, are not clearly erroneous.
Finally, Monroe advances a cursory argument that his sixty-year term is generally excessive. The argument seems largely predicated on the subordinate claims we have already addressed. To the extent that it is not, we find it unpersuasive. Although Monroe's mental illness was certainly a relevant factor for the court's consideration, that factor did not automatically entitle Monroe to a mitigated sentence. Washington v. State, 828 P.2d 172, 175 (Alaska App. 1992). Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment is affirmed.
NOTES
[1] The Memorandum Concerning Change of Plea, signed by Monroe's counsel, contained the following passage:
[T]he defendant is aware, based upon preparation with his attorneys, that either the court or the prosecution may and likely will raise the issue of whether the defendant is guilty of unlawfully killing his father but was mentally ill at the time of the commission of the crime. The defendant has been thoroughly advised by his attorneys of the significance of a finding of "guilty but mentally ill" and that sentencing may likely occur in accordance with AS 12.47.050.
[2] Monroe argues that his failure to object to Sperbeck's testimony resulted not from a tactical decision, but from his mistaken belief that he could not object. Monroe cites AS 12.47.100, which governs competency examinations in criminal cases. The statute provides, in part:
No statement made by the accused in the course of an examination into the mental competency of the accused provided for by this section ... may be admitted in evidence against the accused on the issue of guilt in a criminal proceeding unless the accused later relies on a defense under AS 12.47.010 or 12.47.020.
Monroe posits that trial counsel may have mistakenly believed that this provision's reference to "the issue of guilt" applied only to the determination of guilt proper. Monroe reasons that counsel may thus have foregone an objection to Sperbeck's testimony because counsel assumed that Monroe, having already entered a plea of no contest, had no remaining grounds for objection.
This argument, however, misconstrues the plain error rule. Although the argument raises a possibility that trial counsel's failure to object may not have been tactical, the plain error rule applies only when the record as a whole negates the possibility of tactical choice. If Monroe can establish, through extrinsic evidence, that his trial counsel's failure to object actually resulted from inadvertence or neglect, he is not precluded from filing a post-conviction relief application alleging ineffective assistance of counsel. See, e.g., Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
[3] See Miller v. State, 617 P.2d 516, 518 (Alaska 1980) (citing North Carolina v. Alford, 400 U.S. 25, 35 n. 8, 91 S.Ct. 160, 166 n. 8, 27 L.Ed.2d 162 (1970)).
[4] In his reply brief, Monroe raises a separate issue more akin to due process in connection with his claim of equal protection. Monroe expresses concern that he may simply be deemed under "treatment" within the meaning of AS 12.47.050, and consequently be presumed dangerous and denied eligibility for parole, as long as he continues to receive any form of medication for his schizophrenia, which is a lifelong condition. Monroe notes that the statutory restrictions on parole eligibility for offenders who are found GBMI contain no procedural mechanism for a future determination of dangerousness.
We agree with Monroe that he must be provided some procedural mechanism to seek eligibility for parole or furlough by demonstrating his lack of continued dangerousness. Cf. AS 12.47.090(e) (giving persons who have been committed for treatment following a successful insanity defense the right to petition for review of their need for continued institutionalization). An attempt to determine the precise contours of such a mechanism at this juncture would be premature, however. Regardless of his mental condition, Monroe would be ineligible for discretionary parole for an extended period of time. In the interim, the Parole Board or the Department of Corrections may promulgate regulations addressing the problem. Assuming no regulations are enacted and there has been no intervening change in the law, Monroe will be able to ask the courts at that point to provide him a suitable procedural method to establish that he is no longer dangerous on account of mental disease or defect.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1001436/
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-4645
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES EDWARD COFFEY, a/k/a Squeak,
Defendant - Appellant.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Statesville. Richard L. Voorhees, Dis-
trict Judge. (CR-98-192)
Submitted: March 31, 2000 Decided: April 25, 2000
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North Caro-
lina, for Appellant. Mark T. Calloway, United States Attorney,
Gretchen C.F. Shappert, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Edward Coffey pled guilty to conspiracy to possess
with intent to distribute cocaine and cocaine base. On appeal, he
alleges that the district court erred by failing to inquire into
the Government’s reasons for declining to file a motion under the
U.S. Sentencing Guidelines Manual § 5K1.1 (1998). On the record
before this court, we find no promise by the Government to make a
§ 5K1.1 motion or that the Government declined to do so for an
unconstitutional motive. See Wade v. United States, 504 U.S. 181,
185-86 (1992). Accordingly, we affirm Coffey’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately addressed in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
|
01-03-2023
|
07-04-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1329032/
|
498 S.E.2d 855 (1998)
Sheila E. NEWLAND, Plaintiff,
v.
Ross G. NEWLAND, Jr., Defendant.
No. COA97-850.
Court of Appeals of North Carolina.
May 5, 1998.
*856 Justice, Eve & Edwards, P.A. by David L. Edwards, Charlotte, for plaintiff-appellant.
Edward P. Hausle, P.A. by Edward P. Hausle, Winterville, for defendant-appellee.
MARK D. MARTIN, Judge.
Plaintiff appeals from the trial court's judgment denying plaintiff's claim to invalidate a separation and property settlement agreement and denying plaintiff's claims for post-separation support, alimony, attorney fees, and equitable distribution.
Plaintiff Sheila E. Newland and defendant Ross G. Newland, Jr., were married on 19 February 1972. On 11 December 1995 defendant presented to plaintiff a separation and property settlement agreement which the parties executed on 12 December 1995. On 13 December 1995 the parties signed an amendment to the separation and property settlement agreement. After plaintiff requested additional time to find alternative housing, the parties continued to reside in the marital residence at 10821 Redgrave Lane, Charlotte, North Carolina until 13 January 1996 when plaintiff moved.
During the thirty-one days that both parties continued to reside in the marital home after they signed the separation and property settlement agreement, neither party held themselves out as husband and wife. Moreover, plaintiff and defendant communicated to several people that they had executed a separation and property settlement agreement and admitted there were no attempts at reconciliation. Additionally, plaintiff began packing her belongings.
On 13 June 1996 plaintiff filed the instant action claiming the separation and property settlement agreement was null and void. In addition, plaintiff maintained she was entitled to recover post-separation support, alimony, attorney fees, and equitable distribution. In a judgment filed on 25 February 1997, the trial court denied plaintiff's claims to invalidate the separation and property settlement agreement and denied plaintiff's claims for post-separation support, alimony, attorney fees, and equitable distribution.
On appeal, plaintiff essentially contends the trial court erred by finding the separation *857 and property settlement agreement valid. Specifically, plaintiff maintains the parties' failure to separate until thirty-one days after the execution of the separation and property settlement agreement rendered the post-separation support and alimony provisions null and void. We disagree and affirm the judgment of the trial court.
Generally, separation agreements provide "support for the [dependent spouse] and custody and support for minor children," Stegall v. Stegall, 100 N.C.App. 398, 403, 397 S.E.2d 306, 309 (1990), disc. review denied, 328 N.C. 274, 400 S.E.2d 461 (1991), 2 R. Lee, North Carolina Family Law § 187, at 459-460 (4th ed. 1980), and "are valid ... if executed after the parties are separated or when separation is imminent." Stegall, 100 N.C.App. at 404, 397 S.E.2d at 309 (emphasis added). Additionally, "separation agreements entered into while the parties are still living together but planning to separate may... be valid." Id. at 405, 397 S.E.2d at 309 (emphasis added); see 2 R. Lee, North Carolina Family Law § 188, at 481 (4th Ed. Supp.1997). However, "reconciliation of the parties voids the executory provisions of a separation agreement." Id. at 403, 397 S.E.2d at 309. See In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976) (maintaining the parties' separation agreement is void if they re-establish a marital home).
In contrast, property settlements involve the distribution of marital property between the parties and may be entered into at any time, before, during or after marriage. N.C.Gen.Stat. § 50-20(d) (1995); Lee, supra, § 187, at 460. Resumption of marital relations after the execution of a property settlement agreement may rescind the executory provisions of a property settlement if the agreement was "negotiated in `reciprocal consideration' for the separation agreement." Morrison v. Morrison, 102 N.C.App. 514, 518, 402 S.E.2d 855, 858 (1991). "This is so whether the property settlement and the separation agreement are contained in a single document or separate documents." Id.
The trial court's findings of fact in a bench trial generally "have the weight of a jury verdict and are conclusive on appeal if supported by competent evidence[,] ... even though the evidence might also sustain findings to the contrary." Foster v. Foster Farms, Inc., 112 N.C.App. 700, 706, 436 S.E.2d 843, 847 (1993).
In the present case, the trial court's findings of fact are supported by competent evidence and they, in turn, support the conclusions of law. See Camp v. Camp, 75 N.C.App. 498, 504, 331 S.E.2d 163, 166, disc. review denied, 314 N.C. 663, 335 S.E.2d 493 (1985). Specifically, the trial court found that "the parties agreed in the contract to separate `substantially contemporaneously' with execution of the document." Moreover, the trial court determined "[i]t was the parties' intent at execution of the Contract to separate immediately" but "[w]hen Mrs. Newland requested additional time to locate an alternative residence, Mr. Newland agreed." Based on these findings, the trial court properly concluded the parties "did not reconcile following the execution of the contracts" and determined the separation agreement was valid.
Because the parties did not resume marital relations and the separation agreement provisions are therefore valid under the present facts, we do not consider whether the property settlement provisions of the contract, executed pursuant to N.C.Gen.Stat. § 50-20(d), were affected by the parties' conduct. See Morrison, 102 N.C.App. at 518-519, 402 S.E.2d at 858. As a result, the parties' waiver of post-separation support and alimony is valid. Accordingly, plaintiff's contentions are without merit.
Affirmed.
LEWIS and JOHN C. MARTIN, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2910088/
|
IN THE
TENTH COURT OF APPEALS
No. 10-05-00213-CV
In re Charlotte D. Oliver
Original Proceeding
DISSENTING Opinion
This petition for writ of mandamus was
filed on April 29, 2005, requesting relief from being forced to trial on May 2,
2005. A continuance had been requested, was not opposed, but was denied. It
was the third continuance requested.
There were two reasons given as the
need for a continuance. The focus was primarily on the withdrawal of
petitioner’s expert witness from being willing to testify at trial. The
specific timing of knowledge of the possibility of withdrawal and the ultimate
date of withdrawal, as well as the reason for withdrawal, were not disclosed.
The other reason a continuance was sought was
that:
Respondent has failed to produce the relevant
financial records requested by Petitioner pursuant to her Request for
Production. Additionally, Respondent has failed to supplement these records
despite a clear requirement to do so. Petitioner has forwarded written correspondence
to Respondent in this regard but Respondent has still failed and refused to
produce the requested documents. As such, it will be necessary to file and
hear a motion to compel in order that Petitioner shall have the relevant
financial records for the trial of this matter.
Petitioner’s
Motion for Continuance.
“Discovery in this suit is governed by
a Level 2 discovery control plan. The discovery period has ended.” Id.
On the merits – the trial court did
not abuse its discretion in denying the third motion for continuance when, even
if the expert had not become unavailable for testimony, the expert would not
have had the relevant information necessary to testify because discovery was
not completed timely. The trial court is entitled to control its docket,
particularly if there is any indication of unnecessary delay.
If I decided the merits, I would deny
the mandamus.
But why are we reviewing the merits at
all? Once the majority granted the temporary relief by staying the impending
trial, for all practical purposes they granted all the relief requested, thus
making moot the issue on the merits.
For the foregoing reasons, I
respectfully dissent.
TOM
GRAY
Chief
Justice
Dissenting
opinion delivered and filed June 29, 2005
eption requirement of Rule 701. Solomon v. State,
49 S.W.3d 356, 364 (Tex. Crim. App. 2001); Roberson, 100 S.W.3d at 39.
The record reveals that January looked
at the video of the offense, still footage of the video, and blown up photos of
the video, and interviewed the victim and Swinnie to support his opinion that
he was convinced Swinnie was the person in the video. Thus, his testimony
satisfies the perception prong. As to the second prong, identity was an issue
in the case and January’s testimony was helpful for a determination of that
issue. Further, it clarified earlier testimony on cross examination that
sometimes false confessions are made and gave an explanation as to why January
was convinced Swinnie was the person in the video. The trial court did not
abuse its discretion in overruling the objection. Swinnie’s first issue is
overruled.
In his second issue, Swinnie complains
that the trial court erred in refusing his request to conduct a presentence
report and in refusing to order an evaluation for drug abuse rehabilitation.
Swinnie argues that pursuant to art. 42.12, section 9(h) of the Code of
Criminal Procedure, he was entitled to a drug abuse rehabilitation evaluation.
Tex. Code Crim. Proc. Ann. art
42.12, sec. 9(h) (Vernon Supp. 2007). Subsection (h) provides in pertinent
part: “On a determination by the judge that alcohol or drug abuse may have
contributed to the commission of the offense…, the judge shall direct a
supervision officer…to conduct an evaluation to determine the appropriateness
of, and a course of conduct necessary for, alcohol or drug rehabilitation for a
defendant and to report that evaluation to the judge.” Id.
But Swinnie was not entitled to the
presentence report or the evaluation. Section 9 of article 42.12 is devoted to
“Presentence Investigations.” A trial judge must direct that a presentence
report be prepared “[e]xcept as provided by Subsection (g) of this section….” Tex. Code Crim. Proc. Ann. art. 42.12,
sec. 9(a) (Vernon Supp. 2007). Subsection (g) provides that “[a] judge is not
required to direct an officer to prepare a presentence report in a felony case
under this section if: (3) the only available punishment is imprisonment[.]” Id. sec. 9(g). The only punishment available to Swinnie was imprisonment. A
jury found Swinnie guilty of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon 2003).
Swinnie then elected to have the trial court determine his punishment. The
trial court could not place Swinnie on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, sec.
3g(a)(f) (Vernon Supp. 2007). Therefore, the only punishment available to
Swinnie was imprisonment and a presentence report was not required.[1]
Swinnie further argues, however, that
the right to the drug evaluation is not limited to probation eligible cases.
We disagree. Subsection (h) is an additional requirement to be added to a
presentence report as generally described in subsection (a). And because in
Swinnie’s case the court is not required to order a presentence report, a drug
rehabilitation evaluation is also not required. Any other reading of
subsection (h) would lead to an absurd result that the legislature could not
have intended. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Because the trial court was not
required to order a presentence report or drug rehabilitation evaluation, it
did not err in denying Swinnie’s request for the report and evaluation.
Swinnie’s second issue is overruled.
Having overruled each issue on appeal,
we affirm the trial court’s judgment.
TOM
GRAY
Chief
Justice
Before
Chief Justice Gray,
Justice
Vance, and
Justice
Reyna
(Justice
Vance concurs in the judgment)
Affirmed
Opinion
delivered and filed February 20, 2008
Do
not publish
[CRPM]
[1] We
note that after the Court of Criminal Appeals’ decision in Whitelaw v. State,
29 S.W.3d 129, 132 (Tex. Crim. App. 2000), the legislature amended section 9(g)
to delete the requirement of a presentence report if requested by the
defendant. See Acts 2005 79th Leg., ch. 500, § 1, eff. Sept. 1, 2005.
|
01-03-2023
|
09-10-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/2601618/
|
228 P.3d 1285 (2010)
STATE of Washington, Respondent,
v.
Joseph H. STEEN, Appellant.
No. 38679-8-II.
Court of Appeals of Washington, Division 2.
February 4, 2010.
Publication Ordered April 14, 2010.
*1286 Gerald R. Fuller, Grays Harbor Co. Pros. Office, Montesano, WA, for Respondent.
Susan F. Wilk, Washington Appellate Project, Seattle, WA, for Appellant.
HOUGHTON, J.
¶ 1 Joseph Steen appeals his conviction and sentence for indecent exposure with sexual motivation, claiming trial court instructional and sentencing error. We affirm the conviction but vacate the sentence and remand for resentencing.
FACTS
¶ 2 On June 28, 2008, Katrina Berge and Teresa Jones, a receptionist and a guest at an Aberdeen hotel observed Steen across the river in a local park with his pants pulled down to mid-thigh, fully exposing himself. He appeared to be masturbating and rubbing himself all over his body. Berge reported the incident to the police and Aberdeen Police Department Officer John Snodgrass responded to the scene. Before making contact with Steen, Snodgrass saw Steen rubbing himself through his shorts and believed Steen to be masturbating. Police arrested Steen later that evening.
¶ 3 The State charged Steen with two counts of indecent exposure with sexual motivation, in violation of RCW 9A.88.010.[1] The State further alleged that he had been convicted of a prior sex offense. Before trial, he stipulated that he had two prior sex offenses, thus elevating his crime to a class C felony. RCW 9A.88.010(2)(c).
¶ 4 At trial, Steen testified that he was at the park that day fishing. He further testified that Snodgrass approached him about a report of lewd behavior. He denied exposing *1287 himself and denied masturbating. Rather, he testified that there were mosquitoes out that day and that he was rubbing himself and lifting up his shirt to get the mosquitoes off him. Berge, Jones, and Snodgrass each testified that they saw Steen masturbating.
¶ 5 The trial court instructed the jury that "obscene exposure" was the "exposure of the sexual or intimate parts of one's body for a sexual purpose." Clerks Paper (CP) at 65. A jury found him guilty of indecent exposure with a special verdict that he committed the crime for the purpose of sexual gratification.
¶ 6 At sentencing, the trial court found that Steen's current conviction was a sex offense because the jury found sexual motivation and because he had prior sex offense convictions. The trial court sentenced him to 60 months' incarceration and to community custody for the period of earned early release and he appeals.
ANALYSIS
Jury Instruction 7
¶ 7 Steen first contends that jury instruction 7 contained a judicial comment on the evidence requiring reversal and a new trial. We disagree.
¶ 8 To convict Steen of indecent exposure, the State had to prove that he made an open and obscene exposure of his person. The trial court gave jury instruction 7, which states,
"Defendant's person" means the sexual or other intimate parts of the human body.
"Obscene exposure" means the exposure of the sexual or intimate parts of one's body for a sexual purpose.
CP at 65.
¶ 9 We review jury instructions de novo as questions of law. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). Article IV, section 16 of the Washington Constitution prohibits a judge from conveying his or her personal perception of the merits of the case or giving an instruction that implies matters of fact have been established as a matter of law. State v. Levy, 156 Wash.2d 709, 721, 132 P.3d 1076 (2006). Any remark that has the possible effect of suggesting that the jury need not consider an element of an offense may be a judicial comment. Levy, 156 Wash.2d at 721, 132 P.3d 1076.
¶ 10 Here, the trial court's instruction was based on RCW 9A.44.010(2) and RCW 9.94A.030(43) (formerly (47)). The instruction comprised a neutral and accurate statement of the law, it contained neither facts nor did it convey the trial court's belief or disbelief in any testimony. State v. Lampley, 136 Wash.App. 836, 843, 151 P.3d 1001 (2006). The trial court properly instructed the jury. Steen's argument fails and we affirm his conviction.
Sentencing
¶ 11 Steen further contends that, for sentencing purposes, the trial court erred in categorizing his felony indecent exposure offense as a seriousness level of IV. He further contends that because the trial court should have classified his offense as an unranked felony, the proper sentencing range is 0-12 months. We agree.
¶ 12 A trial court exceeds its authority when it imposes a sentence beyond what the legislature expressly confers. See In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 866, 50 P.3d 618 (2002). A party may challenge illegal or erroneous sentences for the first time on appeal. State v. Bahl, 164 Wash.2d 739, 744, 193 P.3d 678 (2008).
¶ 13 Indecent exposure is generally a misdemeanor. RCW 9A.88.010(2)(a). The crime is elevated to a gross misdemeanor if the victim is under 14 years of age.[2] RCW 9A.88.010(2)(b). The crime is further elevated to a class C felony if a court has previously convicted the defendant under RCW 9A.88.010 or convicted the defendant of a sex offense as defined in RCW 9.94A.030. RCW 9A.88.010(2)(c).[3] Steen does not dispute the *1288 class C felony determination based on his prior criminal history.[4]
¶ 14 In RCW 9.94A.515, the table indicates the seriousness level for specific crimes and states that "Indecent Exposure to Person Under Age Fourteen (subsequent sex offense)" is a level IV offense. No other indecent exposure crimes are included. The corresponding sentence ranges based on the seriousness levels are outlined in RCW 9.94A.510. Under former RCW 9.94A.505(2)(b) (2006), "[i]f a standard sentence range has not been established for the offender's crime, the court shall impose a determinate sentence which may include not more than one year of confinement."
¶ 15 We review statutory construction questions de novo. State v. Wentz, 149 Wash.2d 342, 346, 68 P.3d 282 (2003). We look to the statute's plain language in order to give effect to legislative intent. Wentz, 149 Wash.2d at 346, 68 P.3d 282. We will not engage in judicial interpretation of an unambiguous statute. State v. Thorne, 129 Wash.2d 736, 762-63, 921 P.2d 514 (1996). A statute is ambiguous when the language is susceptible to more than one interpretation. State v. Jacobs, 154 Wash.2d 596, 600-01, 115 P.3d 281 (2005). In addition, the rule of lenity requires us to strictly construe an ambiguous criminal statute favorably to the accused. State v. Lively, 130 Wash.2d 1, 14, 921 P.2d 1035 (1996).
¶ 16 The State asks us to apply "Indecent Exposure to Person Under Age Fourteen (subsequent sex offense)" under RCW 9.94A.515, when the present crime is a class C felony and the victim is under 14 years of age or when the present crime is a class C felony because the defendant has a prior sex offense, regardless of the victim's age. But this interpretation would require us to read "Indecent Exposure to Person Under Age Fourteen" and "(subsequent sex offense)" independently.
¶ 17 The statute is unambiguous and its plain language clearly provides that when someone with a prior sex offense commits indecent exposure to a person under age 14, a seriousness level of IV applies. Because Steen's criminal conduct did not include exposure to a person under 14 years of age, the trial court erred and should have sentenced him based on the 0-12 month range for unranked crimes under former RCW 9.94A.505(2)(b).[5] Thus, we vacate the sentence and remand for resentencing.[6]
¶ 18 We affirm the conviction, vacate the sentence, and remand for resentencing.
¶ 19 A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: VAN DEREN, C.J., and PENOYAR, J.
NOTES
[1] The trial court dismissed the first count before trial.
[2] No one disputes that any victim was more than 14 years old.
[3] RCW 9A.88.010(2) states:
(a) Except as provided in (b) and (c) of this subsection, indecent exposure is a misdemeanor.
(b) Indecent exposure is a gross misdemeanor on the first offense if the person exposes himself or herself to a person under the age of fourteen years.
(c) Indecent exposure is a class C felony if the person has previously been convicted under this section or of a sex offense as defined in RCW 9.94A.030.
[4] Steen has an extensive criminal history, including indecent exposure to someone more than 14 years of age. His criminal history, however, does not include indecent exposure to someone less than 14 years of age.
[5] The rule of lenity could also support our decision, if the statute were ambiguous.
[6] Because we remand for resentencing on this basis, we do not reach Steen's argument that the trial court imposed an indeterminate sentence. We do note, however, Steen misplaces his reliance on State v. Linerud, 147 Wash.App. 944, 197 P.3d 1224 (2008), to advance his argument because our Supreme Court granted review and remanded Linerud in light of In re Pers. Restraint of Brooks, 166 Wash.2d 664, 668, 211 P.3d 1023 (2009).
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2896697/
|
BRIAN MILLSAP V. SHOW TRUCKS USA, INC.
NO. 07-08-0207-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
SEPTEMBER 22, 2008
______________________________
YOHAWNN DANTE BYNES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 31st DISTRICT COURT OF WHEELER COUNTY;
NO. 4062; HON. STEVEN RAY EMMERT, PRESIDING
_______________________________
ON ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Yohawnn Dante Bynes (appellant) appeals from his conviction for possession of a controlled substance with intent to deliver. He filed his notice of appeal on May 15, 2008. The clerk’s record was filed on June 23, 2008, and the reporter’s record July 15, 2008. Appellant’s brief was due on August 14, 2008. No brief or extension was filed by that date with the Court. On August 22, 2008, a letter was sent to appellant notifying him the brief was overdue and that the brief or response was due on September 2, 2008. On September 12, 2008, we received a motion to extend the time to file his brief.
Consequently, since appellant has no attorney and a determination must be made on his indigency and whether he desires an attorney to represent him, we abate the appeal and remand the cause to the 31st District Court (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
whether appellant desires to prosecute the appeal
2. whether appellant is indigent and entitled to appointed counsel.
We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue the appeal, is indigent and without counsel, we direct the trial court to appoint him same unless appellant knowingly waives his right to counsel. In either situation, the name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court’s findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk’s record containing the findings of fact and conclusions of law and 2) a reporter’s record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk’s record to be filed with the clerk of this court on or before October 22, 2008. Should additional time be needed to perform these tasks, the trial court may request same on or before October 22, 2008.
It is so ordered.
Per Curiam
Do not publish.
|
01-03-2023
|
09-08-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/1874811/
|
288 Wis. 2d 461 (2005)
706 N.W.2d 702
2005 WI App 254
KUHNMUENCH v. ENNIS.
No. 2004AP003060.
Court of Appeals of Wisconsin.
October 18, 2005.
Unpublished Opinion. Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/408417/
|
688 F.2d 822
McKeev.Cuyler
81-2554
UNITED STATES COURT OF APPEALS Third Circuit
6/18/82
1
E.D.Pa.
AFFIRMED
|
01-03-2023
|
08-23-2011
|
https://www.courtlistener.com/api/rest/v3/opinions/1329027/
|
498 S.E.2d 300 (1998)
230 Ga. App. 795
GLOVER
v.
The STATE.
No. A98A0013.
Court of Appeals of Georgia.
February 26, 1998.
*302 Cynthia A. Price, for appellant.
J. Tom Morgan, District Attorney, Sheila A. Connors, Melissa L. Himes, Assistant District Attorneys, for appellee.
*301 ELDRIDGE, Judge.
In this appeal, defendant Rodney Glover challenges his convictions for homicide by vehicle, fleeing or attempting to elude a police officer, reckless driving, driving under the influence of marijuana and alcohol, and driving with a suspended license. The charges stemmed from a traffic incident during which Glover's automobile struck a highway median and was propelled into the air. Both Glover and his passenger, Darryle Woodruff, were ejected from the car and thrown to the pavement. Woodruff died as a result of his injuries, and Glover was seriously injured. For the reasons set forth below, we affirm Glover's conviction.
The facts of this case, viewed in the light most favorable to the verdict, Grant v. State, 195 Ga.App. 463, 464, 393 S.E.2d 737 (1990), are as follows: at approximately 2:00 a.m. on January 26,1996, Clayton County police officers were conducting a routine roadblock on Highway 42, approximately 150-200 feet from the DeKalb County line. Officer David Moats of the Clayton County Police Department was working at the roadblock and observed a red Mustang automobile approaching; he noticed that the driver appeared to be drinking out of a container. When the Mustang stopped at the roadblock, Officer Moats observed a can of beer between the driver's legs and smelled a very strong odor of alcohol coming from the driver; the officer also noticed that the driver's eyes were extremely red and glassy, and that the driver's speech was slurred. Officer Moats requested a driver's license from the driver, who produced a temporary paper license bearing the name of "Rodney Keith Glover"; the license had expired over a year before. When Officer Moats directed Glover to pull to the edge of the road, Glover fled north on Highway 42 into DeKalb County. Officer Moats and two other Clayton County officers, Sergeant Bayne and Officer Summers, pursued Glover in marked police cars, with emergency lights and sirens activated. During the chase, Glover jumped a curb, ran a red light, and repeatedly attempted to strike pursuing police cars; the entire chase was videotaped from Officer Moats' vehicle, and the tape was played for the jury.
After Glover's car entered Interstate 285, police officers attempted to "box" the car against the center median in order to slow it down and bring Glover safely to a stop. However, Glover suddenly struck the center median on the left, bounced into a pursuing police car on the right, and again struck the median; the car propelled into the air, repeatedly overturned, and landed right side up on the highway. Both Glover and Woodruff were ejected; the videotape showed Glover flying through the air and striking the median wall before landing on the highway. Immediately following the collision, Officer Moats approached Glover and identified him to other officers as the driver of the vehicle. However, Woodruff's wallet, which contained his habitual violator driver's license, was found on the highway and was mistakenly placed with Glover. Glover, unconscious and seriously injured, was handcuffed and transported to DeKalb Medical Center under Woodruff's name. At the same time, Woodruff was transported to Grady Hospital under Glover's name. Glover's sister was contacted mistakenly by police and hospital officials regarding Woodruff's condition, and she realized that a mistake had been made regarding the identities of the men. She then contacted DeKalb Medical Center, and confirmed that the man being treated there was, in fact, her brother, Rodney Glover.
Following his 30-day hospital stay, Glover was arrested and indicted. He was tried by a jury in DeKalb County Superior Court on March 11 through 14, 1997, and was convicted on all counts. He filed a motion for new trial, which was later amended; following a hearing, the motion was denied. Glover appeals.
1. Glover first asserts that the trial court erred in allowing testimony concerning alcohol and drug levels in his blood and urine without requiring the State to establish a chain of custody. However, during the trial, *303 Glover failed to object to testimony of a hospital employee regarding the blood and urine tests. Upon cross-examination, defense counsel extensively questioned the witness on testing procedures, specifically on who determined the threshold level at which patients would be tested for THC, an active ingredient in marijuana. During this questioning, defense counsel referred directly to the written hospital laboratory report which established that Glover had THC in his system at the time of the collision. After the witness repeatedly testified that he did not know the answer to Glover's questions, the State objected. Defense counsel responded to the objection by saying "I object to [the witness'] testimony in total"; he gave no basis for the objection and did not invoke a ruling from the trial court. The trial court overruled the State's objection and allowed Glover to pursue his cross-examination; no further objection was made to the witness' testimony.
In his amended motion for a new trial, Glover asserted for the first time the State's alleged failure to present chain of custody evidence regarding his blood and urine tests. Following the hearing on Glover's motion, the trial court found that Glover had waived his objection to the witness' testimony by failing to raise the issue at trial. We agree.
"In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Norman v. State, 197 Ga.App. 333, 334(3), 398 S.E.2d 395 (1990)." Smith v. State, 222 Ga.App. 366, 368(3)(a), 474 S.E.2d 272 (1996); McGee v. State, 205 Ga.App. 722, 726, 423 S.E.2d 666 (1992). "`Where [the defendant] asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal.'" Jones v. State, 190 Ga.App. 416, 418(3), 379 S.E.2d 189 (1989). Glover's failure to object to the evidence at trial on the ground asserted on appeal waived this objection.
Further, defense counsel utilized the challenged evidence during cross-examination of the hospital employee. A "`defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. (Cits.)' Jackson v. State, 234 Ga. 549, 553, 216 S.E.2d 834 (1975)." Roulain v. Martin, 266 Ga. 353, 354, 466 S.E.2d 837 (1996); Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221 (1951); Jones v. State, supra; Keno v. Alside, Inc., 148 Ga.App. 549, 251 S.E.2d 793 (1978). A defendant "`cannot complain of a result his own procedure or conduct aided in causing. (Cits.)'" Holtapp v. City of Fayetteville, 208 Ga.App. 606, 607, 431 S.E.2d 403 (1993); Rider v. State, 207 Ga.App. 519, 428 S.E.2d 423 (1993). There was no error.
2. In his second enumeration, Glover asserts that the trial court erred in allowing the State to elicit testimony regarding the blood and urine evidence even though the State failed to comply with the provisions of OCGA § 40-6-392. However, Glover failed to raise this objection at the time the evidence was offered, and therefore, it was waived. Carr v. State, 222 Ga.App. 776, 778, 476 S.E.2d 75 (1996); see also Division 1, supra.
Further, although Glover subsequently asserted this error in his motion for a directed verdict at the close of evidence, "[i]t is well settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. Although a party may move to strike illegal evidence any time before the case goes to the jury, even where no objection was made when it was admitted, the result[s] of the blood [and urine tests] admitted in this case, without objection, despite the State's failure to satisfy the foundational requirement that the blood [and urine were] withdrawn by a person qualified under OCGA § 40-6-392(a)(2), w[ere] not illegal evidence subject to a subsequent motion to strike." (Citations omitted; emphasis in original.) Carr v. State, supra at 778, 476 S.E.2d 75; see also Corley v. State, 192 Ga. App. 35, 36, 383 S.E.2d 586 (1989). The trial court did not err in denying Glover's motion for a new trial on this basis.
3. In his third enumeration, Glover asserts that the evidence was insufficient to support the verdicts. In arguing this *304 enumeration at the hearing on the motion for new trial, Glover specifically claimed that there was insufficient evidence to support a finding by the jury that he was the driver of the vehicle. We disagree.
"On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]" Grant v. State, supra at 464(1), 393 S.E.2d 737; see also Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
The evidence in this case included the testimony of Officer Moats, who originally questioned Glover at the police roadblock. Officer Moats testified that he observed Glover driving the red Mustang to the roadblock; that Glover appeared to be drinking from a container; that Glover had a beer can between his legs; that Glover had red, glassy eyes, a strong odor of alcohol, and slurred speech; that Glover produced an expired driver's license that belonged to "Rodney Keith Glover"; and that Glover fled when directed to pull to the side of the road. Officer Moats also testified that he pursued Glover in his patrol car with his lights and siren activated; that he observed Glover jump a curb, run a stop light, and attempt to collide with pursuing police vehicles; and that he witnessed the collision of Glover's car with the highway median. Officer Moats stated that he approached Glover, who was lying unconscious near the median, immediately following the collision; that he was certain that Glover was the driver of the Mustang whom he had questioned at the roadblock a few minutes earlier; and that he went to DeKalb Medical Center because he wanted to obtain additional evidence from Glover for his DUI investigation.
In addition, both Sergeant Bayne and Officer Summers, the Clayton County police officers who had participated in the pursuit of Glover, testified that there was no confusion at the scene as to which of the injured men was the driver; the only confusion was related to the driver's actual name. Officer Summers further testified that he had a direct view of the Mustang during the collision and witnessed as Glover was ejected from the driver's side of the vehicle and thrown into the median wall. Sergeant Smith of the Georgia State Patrol also testified that there was no confusion at the scene as to which man was the driver of the vehicle.
This evidence was sufficient to support the jury's finding beyond a reasonable doubt that Glover was the driver of the vehicle.
Judgment affirmed.
BLACKBURN, J., and HAROLD R. BANKE, Senior Appellate Judge, concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1711421/
|
890 So. 2d 1115 (2004)
MULLINS v. STATE
No. SC03-1450
Supreme Court of Florida
November 24, 2004.
Decision without published opinion. Dismissed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874305/
|
288 Wis. 2d 460 (2005)
706 N.W.2d 702
2005 WI App 254
WALTERS v. SORIANO.[]
No. 2004AP002100.
Court of Appeals of Wisconsin.
October 20, 2005.
Unpublished Opinion. Affirmed.
NOTES
[] Petition to review filed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2601622/
|
228 P.3d 198 (2009)
SINCLAIR TRANSPORTATION COMPANY, d/b/a Sinclair Pipeline Company, a Wyoming corporation, Petitioner-Appellee,
v.
Lauren SANDBERG, Kay F. Sandberg, Ivar E. Larson, and Donna M. Larson, Respondents-Appellants.
No. 08CA1249.
Colorado Court of Appeals, Div. VI.
September 17, 2009.
Rehearing Denied October 22, 2009.
*202 Faegre & Benson, LLP, John R. Sperber, Brandee L. Caswell, Denver, Colorado, for Petitioner-Appellee.
Dean & Reid, LLC, Daniel W. Dean, Fort Collins, Colorado, for Respondents-Appellants.
Opinion by Judge HAWTHORNE.
In this condemnation action, respondents, Lauren and Kay F. Sandberg and Ivar E. and Donna M. Larson (collectively, landowners), appeal the trial court's order granting petitioner, Sinclair Transportation Company (STC), immediate possession of landowners' properties and its judgment determining the properties' values. We affirm.
I. Facts and Procedural Background
In January 2006, STC, a Wyoming corporation, requested landowners to amend a 1963 easement over landowners' properties in Weld County to allow STC to install within the easement a ten-inch pipeline adjacent to a previously installed six-inch petroleum pipeline. The 1963 easement is fifty feet wide and encumbers approximately 1.04 acres of the Sandbergs' property and 1.75 acres of the Larsons' property.
STC requested the amendment to allow it to supplement the amount of refined petroleum motor fuels it transports by the six-inch pipeline from Sinclair, Wyoming to a distribution terminal in Henderson, Colorado. At the distribution terminal, STC receives, stores, and loads the fuel onto trucks for distribution to wholesalers and customers in the Denver metropolitan area, Nebraska, Wyoming, New Mexico, and Utah.
After negotiations, STC and landowners failed to reach an agreement, and STC initiated condemnation proceedings. At the immediate possession hearing, the trial court found that STC proved by a preponderance of the evidence that it was entitled to immediate possession of landowners' properties. Following a subsequent valuation hearing, the court awarded landowners compensation for their properties in the amounts estimated by STC's appraiser. Landowners now appeal the court's order granting immediate possession and its judgment based on the evidentiary and valuation rulings.
II. Power of Eminent Domain
Landowners contend that the trial court erred by finding that STC has legal authority to condemn landowners' properties because STC does not qualify as an entity granted the power of eminent domain under either section 38-4-102 or section 38-5-105, C.R.S. 2009. We disagree.
A. Standard of Review
In cases involving condemnation proceedings, we review the trial court's factual findings for clear error and review its legal conclusions de novo. E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo.2000).
B. Analysis
Private property may not be condemned by a private entity unless there exists express, or necessarily implied, statutory authority to condemn. Colo. Const. art. II, § 15; Buck v. Dist. Court, 199 Colo. 344, 347, 608 P.2d 350, 352 (1980); Dep't of Health v. Hecla Mining Co., 781 P.2d 122, 125 (Colo. App.1989).
Here, STC's condemnation petition asserts that both section 38-4-102 and section 38-5-105 grant it the power of eminent domain as a foreign pipeline company. Following the immediate possession hearing, the court entered a written order reiterating its ruling made during the hearing that "STC has the legal authority to condemn [landowners' properties]." Even though the court did not cite the legal authority on which it relied, we infer that it relied on section 38-5-105 because *203 it announced its ruling during the hearing shortly after STC argued that it is granted the power of eminent domain under section 38-5-105. Therefore, we begin our analysis with that section.
1. Section 38-5-105
When construing a statute, our primary duty is to ascertain and give effect to the legislature's intent, looking first to the statute's plain language. McIntire v. Trammell Crow, Inc., 172 P.3d 977, 979 (Colo.App. 2007). If the statute's plain language is clear and unambiguous, we apply the statute as written. Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 591 (Colo. 2004).
As pertinent here, section 38-5-105 provides:
Such . . . pipeline company . . . is vested with the power of eminent domain, and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems for such purposes by means thereof. Whenever such company . . . is unable to secure by deed, contract, or agreement such rights-of-way, or easements of persons or corporations, it shall be lawful for such . . . pipeline company . . . to acquire such title in the manner now provided by law for the exercise of the right of eminent domain and in the manner as set forth in this article.
The phrase "[s]uch . . . pipeline company" in this section necessarily means, as relevant here, by reference back to section 38-5-101, C.R.S.2009, "[a]ny domestic or foreign . . . pipeline company . . . authorized to do business under the laws of this state." See Reg'l Transp. Dist. v. Aurora Pub. Schs., 45 P.3d 781, 783 (Colo.App.2001) (use of "the" as article introducing "vehicle designed to transport seven or more passengers" in repealed Colorado statute referred back to the previously specified entity, "a public school vehicle designed to transport seven or more passengers" in that same statute).
Here, STC claims that section 38-5-105 grants it the power of eminent domain because it is a foreign pipeline company authorized to do business in Colorado. However, landowners correctly observe that neither section 38-5-105 nor any other section in Article 5 defines "pipeline company." Therefore, we address whether STC is a pipeline company as that term is contemplated by section 38-5-105.
Because no Colorado statute or case law defines "pipeline company" as it is used in section 38-5-105, we look to the words' plain and ordinary meanings and other jurisdictions' instructive decisions. See People v. Swain, 959 P.2d 426, 432 (Colo.1998) (where statute does not define "driving," court looks to plain and ordinary meaning); see also In re Marriage of Ciesluk, 113 P.3d 135, 142 (Colo.2005) (when case presents issue of law of first impression, we may look to other jurisdictions' instructive decisions).
Webster's Third New International Dictionary 1722 (2002) defines "pipeline" as "a line of pipe connected to pumps, valves, and control devices for conveying liquids, gases, or finely divided solids." "Company" is defined as "an association of persons for carrying on a commercial or industrial enterprise or business." Id. at 461.
The following statutory provisions and case law also inform our analysis as to a pipeline company's functions and the substances one commonly conveys:
1. Section 7-43-102, C.R.S.2009, contemplates that pipeline companies are corporations formed "for the purpose of constructing a pipeline for the conveyance of gas, water, or oil." (Emphasis added.)
2. In the context of "Rights-of-Way: Designated Common Carriers," section 38-4-102 provides that a pipeline company is "[a]ny foreign or domestic corporation organized or chartered for the purpose, among other things, of conducting or maintaining a pipeline for the transmission of power, water, air, or gas." (Emphasis added.)
3. In Larson v. Chase Pipe Line Co., 183 Colo. 76, 79, 514 P.2d 1316, 1317 (1973), our supreme court, without identifying the substance(s) conveyed, determined that a Kansas corporation, authorized to do business in Colorado, that financed and would operate a proposed pipeline in Colorado was a proper *204 entity under the precursor statute to 38-5-105 to bring a condemnation action to obtain a right-of-way across private property.
4. Other jurisdictions define a pipeline company as one conveying, in addition to power, air, gas, water, and oil, other products, including steam, natural gas, processed gas, manufactured gas, crude oil, refined petroleum products, coal, and related products. See Watergate Improvement Assocs. v. Pub. Serv. Comm'n, 326 A.2d 778, 785 (D.C.1974) ("pipeline company" "includes every corporation. . . owning, operating, managing, or controlling the supply of liquid, steam, or air through pipes or tubing to consumers for use or for lighting, heating, or cooling purposes, or for power" (quoting D.C.Code § 43-121)); see also 49 U.S.C. § 60101(a)(4)(a), (a)(7) (defining "hazardous liquid" as "petroleum or a petroleum product" and "interstate hazardous liquid pipeline facility" as "hazardous liquid pipeline facility used to transport hazardous liquid in interstate or foreign commerce"); ANR Pipeline Co. v. Louisiana Tax Comm'n, 997 So. 2d 92, 95 n. 2 (La.Ct. App.2008) ("`Pipeline company' means any company that is engaged primarily in the business of transporting oil, natural gas, petroleum products, or other products within, through, into, or from this state. . . ." (quoting La.Rev.Stat. Ann. § 47:1851)); Phillips Natural Gas Co. v. State, 402 N.W.2d 906, 908 (N.D.1987) ("`[p]ipeline company' means a company owning, holding, or operating under a lease or otherwise, any property in this state for the purpose of transporting crude oil, natural gas, processed gas, manufactured gas, refined petroleum products, or coal and related products for public use" (quoting N.D. Cent.Code § 57-06-02(3))); Columbia Gas Transmission Corp. v. Levin, 117 Ohio St. 3d 122, 882 N.E.2d 400, 406 (2008) (a person includes a pipeline company "transporting natural gas, oil, or coal or its derivatives through pipes or tubing, either wholly or partially within this state" (quoting Ohio Rev.Code Ann. § 5727.01(D)(5))); Columbia Gas Transmission Corp. v. State Corp. Comm'n, 243 Va. 301, 414 S.E.2d 827, 829 (1992) ("pipeline distribution company" is "a corporation . . . which transmits, by means of a pipeline, natural gas, manufactured gas or crude petroleum and the products or by-products thereof to a purchaser for the purposes of furnishing heat" and "pipeline transmission company" is "a corporation authorized to transmit natural gas, manufactured gas or crude petroleum and the products or by-products thereof in the public service by means of a pipeline or pipelines from one point to another" (quoting Va.Code Ann. § 58.1-2660)).
Here, because it is undisputed that STC (1) is a foreign corporation, in good standing and authorized to do business in Colorado; (2) operates and maintains the six-inch pipeline on landowners' properties; (3) conveys petroleum products through its pipelines; and (4) would be responsible for the construction, cost, operation, and maintenance of the ten-inch pipeline, we conclude that STC is a pipeline company for the purposes of section 38-5-105.
Therefore, the trial court did not err in determining that STC is a pipeline company under section 38-5-105 with the power of eminent domain and the authority to condemn landowners' properties. See Larson, 183 Colo. at 79, 514 P.2d at 1317.
Landowners' argument that section 38-5-105 "is meaningless" if the term pipeline company is not defined by reference to section 7-43-102 does not dissuade us from this conclusion.
2. Section 7-43-102
Section 7-43-102 provides that pipeline companies formed pursuant to its requirements may acquire, in the manner provided by law, title to any real estate required for the purpose of such company
[w]henever any three or more persons associate under the provisions of law to form a corporation for the purpose of constructing a pipeline for the conveyance of gas, water, or oil, they, in the articles of incorporation. . . shall state the places from and to which it is intended to construct the proposed line.
(Emphasis added.)
Here, the trial court found "that section 7-43-102 is not the basis upon which to deny the authority [to condemn] because . . . [STC *205 is] a foreign corporation that has been authorized to do business in the State of Colorado, and that it is in good standing."
Although landowners concede that "foreign corporations are given authority [to condemn] by section 38-5-105," they argue on appeal that STC cannot exercise that authority because it is not a pipeline company as defined in section 7-43-102. Specifically, they argue that STC (1) was not formed for the purpose of constructing a pipeline, (2) did not file a map of the intended route for the pipeline, (3) is not a domestic company, and (4) did not produce evidence it was formed by three or more individuals. We are not persuaded by these arguments and instead agree with the trial court.
Landowners do not provide any authority to support their proposition that a foreign corporation is not a pipeline company as contemplated by section 38-5-105 unless it complies with the domestic pipeline company formation requirements of section 7-43-102. See Biel v. Alcott, 876 P.2d 60, 64 (Colo.App. 1993) (appealing party bears burden to provide supporting authority for contentions on appeal, and failure to do so will result in affirmation of judgment). We also note that section 7-43-102 does not require that a pipeline company file a map of the intended route for its proposed pipeline. See § 7-43-102.
Moreover, we do not construe section 7-43-102 to define a pipeline company. Rather, the plain language of section 7-43-102 indicates that the legislature intended to describe the process by which "[a]ny [domestic] pipeline corporation [shall be] formed under the provisions of [Colorado] law." If we were to construe section 7-43-102 as exclusively defining a pipeline company in Colorado, such a company would be able to engage only in constructing pipelines. However, at least one other Colorado statute contemplates other functions of pipeline companies. See § 38-4-102 (provides that pipeline companies may also conduct or maintain pipelines for transmitting specified products through pipelines); see also People v. Thoro Products Co., 45 P.3d 737, 741 (Colo.App. 2001) ("[i]n interpreting statutes, we must construe each statutory provision in harmony with the overall statutory scheme," and "we must also avoid statutory constructions that lead to absurd results"), aff'd, 70 P.3d 1188 (Colo.2003).
Further, at the immediate possession hearing, landowners offered and the trial court admitted STC's articles of incorporation and its Colorado statement of foreign entity authority, which demonstrate that STC is lawfully incorporated in Wyoming under the Wyoming Business Corporation Act and authorized to do business in Colorado as a foreign entity. In addition, STC presented a certificate from Colorado's secretary of state assigning it an entity identification number and declaring in part that "[STC] is an entity formed or registered under the law of Wyoming [and] has complied with all applicable requirements of this office, and is in good standing with this office." (Emphasis added.)
With regard to foreign entities such as STC that are authorized to transact business or conduct activities in Colorado, section 7-90-805(3), C.R.S.2009, provides in part: "Nothing in this part 8 authorizes [Colorado] to regulate the . . . formation . . . of a foreign entity authorized to transact business or conduct activities in [Colorado]." (Emphasis added.)
Because Colorado cannot dictate or regulate how a foreign entity is formed, STC is not subject to the pipeline company formation requirements in section 7-43-102. See also Cooper Mfg. Co. v. Ferguson, 113 U.S. 727, 734, 5 S. Ct. 739, 28 L. Ed. 1137 (1885) (state act providing for formation of corporations cannot be construed to impose upon foreign corporation limitations of right to carry on commerce between the states; to do so would invade Congress's exclusive right to regulate commerce between states). Thus, landowners' reliance on section 7-43-102 is misplaced.
Section 7-43-102 is but one of multiple Colorado statutes authorizing oil and gas pipeline companies to acquire rights-of-way, and such authority granted under this section does not eliminate the grants of authority to acquire rights-of-way provided by other statutes. See §§ 38-1-101.5, 38-2-101, 38-4-102, *206 38-5-104, 38-5-105, C.R.S.2009; see also Akin v. Four Corners Encampment, 179 P.3d 139, 145 (Colo.App.2007) ("[s]everal Colorado statutes permit oil and gas pipeline companies to condemn private property for a variety of uses"); see generally § 38-1-201(2)(c), C.R.S.2009 (legislative declaration acknowledging that current laws authorizing exercise of the power of eminent domain make it difficult to determine what entities possess the power of eminent domain in a given situation); Town of Parker v. Norton, 939 P.2d 535 (Colo.App.1997).
Therefore, we are not persuaded by landowners' argument that "section 38-5-105 is meaningless if the term pipeline company is not defined by reference to section 7-43-102."
Because section 38-5-105 grants STC the power of eminent domain, we need not address landowners' argument that STC is not granted the power of eminent domain under section 38-4-102. See Akin, 179 P.3d at 145; see also Town of Parker v. Norton, 939 P.2d at 537 (statute prohibiting right of eminent domain had no effect on right of eminent domain granted under independent legal authority).
III. Public Purpose
Landowners argue that the court erred when it determined that STC's transmission of refined petroleum motor fuels through the proposed ten-inch pipeline would serve a public purpose because (1) STC's refined petroleum product is not necessary to develop a resource in Colorado, (2) STC is not a common carrier, and (3) public purpose considerations include safety issues, and the court specifically excluded consideration of safety issues.
Condemnation is only permitted if the reason for which condemnation is sought is judicially determined to be for a public use. Colo. Const. art. II, § 15; Sheridan Redev. Agency v. Knightsbridge Land Co., 166 P.3d 259, 265 (Colo.App.2007). In examining the stated public purpose, appellate courts look to whether it is supported by the record, and if so, our inquiry ends. See Sheridan Redev. Agency, 166 P.3d at 265.
Initially, we note the difference between the terms "public purpose" and "public use." In their briefs, landowners refer to "public purpose" and "public use" interchangeably. These are two distinct terms that require different legal tests, and in a condemnation action, we apply the public purpose test. See Bd. of County Comm'rs v. Kobobel, 176 P.3d 860, 863 (Colo.App.2007) (U.S. Supreme Court rejected public use and adopted public purpose test at end of nineteenth century, and Colorado adopted public purpose for condemnation cases in middle of twentieth century); Rabinoff v. Dist. Court, 145 Colo. 225, 232-37, 360 P.2d 114, 118-21 (1961). Therefore, we do not address landowners' arguments that refer to public use.
The public purpose test requires that the overall objective of the project serve a public benefit. Kelo v. City of New London, 545 U.S. 469, 480, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005); Kobobel, 176 P.3d at 863. A public purpose must be determined on a case-by-case basis because a precise definition does not exist. Kobobel, 176 P.3d at 863. Colorado courts consider (1) the land's physical conditions, (2) the community's needs, (3) the character of the benefit conferred on the community, and (4) the improvement's necessity in developing the state's resources. Id. Standing alone, the fact that a private interest may benefit from the condemnation does not defeat a public purpose. Id. A court must determine whether the condemnation's essential purpose is to obtain a public benefit. Id. The condemning authority must demonstrate public purpose by a preponderance of the evidence. See § 38-1-101(2)(b), C.R.S. 2009.
Here, the trial court's finding that "acquisition of [landowners'] properties serves a public purpose" was based on STC's general counsel's testimony that "the [ten-inch] pipeline was necessary to provide an adequate supply of oil products to meet the increased demand of the customers in the greater Denver metropolitan area." The court further concluded that "the fact that [STC] distributes its products to approximately 203 customers in the Denver area does not defeat a public purpose or necessity."
*207 In addition, STC's general counsel also testified that the ten-inch pipeline would "create a redundancy . . . so that when the existing pipeline goes out of service for inspections or repairs, [STC will] still have the ability to transport product to the Denver market." STC also presented evidence that its existing six-inch pipeline provides fuel to Nebraska, Wyoming, New Mexico, and Utah. Thus, evidence in the record indicates that the ten-inch pipeline would permit continuous service to STC's existing Colorado customers as well as out-of-state customers.
Landowners argue that no evidence showed a benefit conferred on the local Weld County community. However, they do not cite authority, and we are not aware of any, that requires a condemnation to serve a public purpose for the benefit of one community over another.
We conclude that the trial court's finding that STC's ten-inch pipeline would serve a public purpose is supported by evidence in the record.
We need not address landowners' argument that STC is not a common carrier because it is not relevant to our resolution of this issue. In addition, we do not address landowners' arguments concerning STC's proposed amendment to the existing easement or consideration of safety issues as either argument relates to public purpose, because landowners do not cite to any authority supporting those arguments. See Biel, 876 P.2d at 64.
IV. Good Faith Negotiations
Landowners contend that, although STC communicated that it would compensate landowners in exchange for an amendment to its 1963 easement, STC did not engage in good faith negotiations. We disagree.
Condemnation is only appropriate if "the compensation to be paid for, in respect of property sought to be appropriated. . . cannot be agreed upon by the parties interested." § 38-1-102(1), C.R.S.2009. This good faith negotiation requirement is satisfied where the condemning authority makes a reasonable good faith offer to reach an agreement with the property owner and allows the owner sufficient time to respond. Sheridan Redev. Agency, 166 P.3d at 266. Lengthy or face-to-face negotiations are not required. Id. Thus, a condemnation action may commence where "the property owner remains silent or rejects the offer without making an acceptable counteroffer," id., and the condemning authority establishes that negotiations with the landowners would have been futile. Bd. of County of Comm'rs v. Blosser, 844 P.2d 1237, 1239 (Colo.App.1992).
Here, beginning with a letter sent in January 2006, STC initiated communication with landowners offering them compensation in exchange for an amendment to the existing easement. STC subsequently sent eight more letters to landowners, with the last letter dated April 6, 2007 and entitled, "Final Offer to Purchase."
Several of these letters offered to pay landowners compensation amounts above the appraised value of landowners' properties as "an inducement to the parties to reach an agreement." However, landowners did not accept STC's offers, and before receiving STC's final letter, countered its last offer.
Landowners countered that (1) it was mandatory that the six-inch pipeline be relocated and the ten-inch pipeline be installed on the properties' west boundary line, adjacent to an existing Xcel Energy easement, (2) they would pay up to one-half of the costs for relocating the six-inch pipeline, (3) safety and setback issues had to be resolved, and (4) they required compensation exceeding $600,000, a figure significantly above the compensation amount STC had offered.
The trial court found,
Based on the exhibits received into evidence and the testimony of [an STC witness], [STC] made reasonable and good faith offers to the [landowners]. . . . Good faith negotiations were conducted for the acquisition of [landowners' properties] and further negotiations would have been futile.
We conclude that the record supports the trial court's determination because (1) STC made several offers, some of which exceeded the properties' appraised values, (2) landowners did not accept the offers, although they *208 had a reasonable time to do so, and (3) landowners' counteroffer demanded substantially more than STC's offers and the properties' appraised values. See generally Sheridan Redev. Agency, 166 P.3d at 266-67 (good faith negotiation requirement under section 38-1-102(1) was satisfied because (1) petitioner made two separate offers, both of which exceeded appraisal, (2) landowners were afforded reasonable time to accept petitioner's offers, but declined to do so, and (3) landowners' only counteroffer was substantially greater than either of petitioner's offers and the only appraisal).
V. Route Selection and Evidence of Safety
Landowners appear to argue that the trial court erred in finding that the most direct and practicable route for the new pipeline was through the existing 1963 easement because the court failed to consider evidence relating to safety issues. We disagree.
A trial court has considerable discretion in deciding the admissibility of evidence, and abuse of that discretion occurs only when its ruling is manifestly arbitrary, unreasonable, or unfair. See Martin v. Union Pacific R.R. Co., 186 P.3d 61, 68 (Colo.App.2007), rev'd on other grounds, 209 P.3d 185 (Colo. 2009); see also City of Aurora ex rel. Utility Enterprise v. Colorado State Eng'r, 105 P.3d 595, 610 (Colo.2005) (trial courts have wide latitude to accept or refuse evidence).
Landowners rely on section 38-1-101.5, C.R.S.2009, entitled "Necessity of taking land for pipelines," which provides, in part:
(1) When a court is determining the necessity of taking private land or nonfederal public land for the installation of a pipeline, the court shall require the pipeline company;
(a) To show that the particular land lies within a route which is the most direct route practicable;
. . .
(c) To consider existing utility rights-of-way before any new routes are taken if the land to be condemned is adjacent to existing utility rights-of-way.
Landowners repeatedly urged the trial court, and argue on appeal, that safety should be considered in determining the ten-inch pipeline's location, their properties' values, and other issues. However, landowners did not cite to the trial court, and do not cite on appeal, any authority that supports the proposition that a court must consider safety issues in pipeline condemnation cases. See Biel, 876 P.2d at 64 (appealing party bears burden to provide supporting authority for contentions on appeal, and failure to do so will result in affirmation of judgment). Therefore, we conclude that the court did not abuse its discretion in excluding such evidence, and we do not address landowners' remaining arguments concerning "safety [as] a factor" in these proceedings. See id.
VI. Valuation Methodology
Landowners contend that the court abused its discretion when it excluded their proffered testimony at the valuation hearing concerning their valuation methodologies. We disagree.
A. Standard of Review
We review a trial court's ruling regarding evidence admissibility under an abuse of discretion standard, and we will not disturb its ruling unless it is manifestly arbitrary, unreasonable, or unfair. Hall v. Frankel, 190 P.3d 852, 858 (Colo.App.2008).
B. Analysis
Where a dispute concerning the right to condemn is no longer present, the remaining issue to be resolved is the property's fair market value at the date of trial. Dillinger v. North Sterling Irrigation Dist., 135 Colo. 95, 98, 308 P.2d 606, 608 (1957). At the valuation stage of a condemnation case, the landowner may testify to his or her own opinion estimating his or her land's value. Baker Metro. Water & Sanitation Dist. v. Baca, 138 Colo. 239, 241, 331 P.2d 511, 512 (1958). However, the landowner's opinion is not admissible if it is based upon improper considerations. Denver Urban Renewal Auth. v. Hayutin, 40 Colo. App. 559, 563, 583 P.2d 296, 299-300 (1978).
Here, the trial court excluded landowners' intended testimony that was to be *209 based on an income capitalization approach focused on future residential development and estimating the number of lots created, the estimated profits to the developer and contractor for construction and home sales, minus the lots that would be lost due to alleged safety concerns and need for setbacks. While the valuation evidence may include a probable future change in land use restrictions, a totally speculative or conjectural prediction of the property's future use may not be used in determining the property's present value. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797, 803 (Colo.2001). Here, the trial court determined that landowners' income capitalization approach was speculative conjecture or an estimate of future use that was not reflected in the properties' present value, and we agree.
In addition, the trial court excluded landowners' evidence concerning an alleged comparable property sale to AIMS Community College. A party may present comparable sale evidence so long as the sale is similar in locality and character to the land being taken and the sale and condemnation are in close temporal proximity. Bd. of County Comm'rs. v. Vail Assocs., Ltd., 171 Colo. 381, 389-90, 468 P.2d 842, 846 (1970). Here, the court determined that the property sold to AIMS was not similar in locality and character to landowners' properties because of (1) discrepancy in size, (2) dissimilar proximity to a major highway, and (3) dissimilar future property uses. These findings are supported by the record.
Therefore, we perceive no abuse of the court's discretion in excluding this testimony.
VII. Unconstitutional Taking
Landowners contend that the trial court's ruling excluding "all meaningful evidence available to landowners" from the valuation hearing required the court to enter a directed verdict that would logically "result in an unconstitutional taking without just compensation." We disagree.
In a condemnation proceeding, the just compensation to be paid for the private property taken by the condemnor "shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property." Colo. Const. art. II, § 15; see City of Westminster v. Hart, 928 P.2d 758, 760 (Colo. App.1996). The burden rests on the landowner to show by a preponderance of the evidence the property's present actual cash value. Bd. of Comm'rs v. Noble, 117 Colo. 77, 79-80, 184 P.2d 142, 143 (1947).
A. Compensation Determined by Jury
Landowners argue that they were denied their constitutional right to have just compensation determined by a jury of freeholders. However, the record shows landowners waived that right. See Fifth Church of Christ, Scientist v. W.F. Pigg & Son, Inc., 109 Colo. 103, 106, 122 P.2d 887, 888 (1942) (persons may effectively waive by act or omission a constitutional right to which they would otherwise be entitled).
Here, STC presented testimony from a qualified expert appraiser at the immediate possession hearing. STC's expert appraiser testified that landowners' properties' highest and best use would be for future residential development, and both parties stipulated to his conclusion that the properties' value was $37,000 per acre. Based on these factors, STC's expert appraiser testified that the estimated fair market value of the properties that STC would encumber to install its ten-inch pipeline was $9,620 for the Sandbergs' parcel and $16,197 for the Larsons' parcel.
The court granted STC's unopposed motion to set its deposits at $14,620 and $26,197 for the Sandbergs' and Larsons' properties, respectively, which comprised STC's expert appraiser's fair market valuations and the court's estimated property restoration costs. See Swift v. Smith, 119 Colo. 126, 138, 201 P.2d 609, 615 (1948) ("[t]he sum fixed by the court on entering an order for immediate possession should be equal to an amount which . . . will reimburse [landowners] for all damages and pay the compensation which is to be allowed to the [landowners] when ascertained by a board of commissioners or jury").
Prior to the valuation hearing, the court granted STC's motions in limine requesting *210 that it exclude landowners' opinions of their properties' values based on the improper valuation methodology and evidence landowners intended to use. Despite the court's in limine orders, landowners offered the same valuation evidence at the valuation hearing. Again, the court excluded it. Landowners conceded they had no evidence to present that was based on legally accepted valuation methods.
Because landowners did not submit any admissible evidence at the valuation hearing, and therefore, could not carry their burden of proving the just compensation amount to which they were entitled, STC moved for a directed verdict. Landowners stated that "based on the rulings on the admissibility of the evidence offered, [the court had] no choice but to direct a verdict in favor of petitioners, but that's zero dollars."
After the court directed a verdict in STC's favor, and before the just compensation to which landowners were entitled was determined, the court asked if the parties agreed to sending the jury home. Landowners replied that they had "[n]o disagreement."
Having agreed to entry of the directed verdict and to dismiss the jury before any valuation evidence could be considered by it, landowners waived their constitutional right to have a jury determine just compensation for their properties. Johnson v. Neel, 123 Colo. 377, 388, 229 P.2d 939, 944 (1951) (under doctrine of equitable estoppel, constitutional rights may be effectively waived by conduct consisting of action or failure to act); see Fifth Church of Christ, 109 Colo. at 106, 122 P.2d at 888 (party's effective waiver of constitutional right, by act or omission, "is nothing more than the equitable doctrine of estoppel applied in the realm of constitutional law and is uniformly upheld in cases where the constitutional provision is solely protective of property rights") (quoting Wilson v. Sch. Dist, 328 Pa. 225, 244, 195 A. 90, 100 (1937)).
Despite having waived their right to a jury trial, landowners are entitled to just compensation for their properties. See Colo. Const. art. II, § 15; Hart, 928 P.2d at 760. Relying on STC's offer of proof at the valuation hearing, the court determined the just compensation amounts for the Sandbergs' and Larsons' properties to be $9,620 and $16,197, respectively.[1] Landowners do not dispute that if STC's methodology were adopted, these amounts would be proper.
B. Right to Confront Evidence
Landowners also argue that they "were denied their constitutional right[] to confront the evidence." We do not address this argument because landowners do not cite any authority supporting their assertion that they have a constitutional right to confront the evidence in an eminent domain proceeding, nor do they develop their argument by explaining how an opportunity to confront evidence would have led to a different amount of just compensation. See Biel, 876 P.2d at 64 (appealing party bears burden to provide supporting authority); People in Interest of D.B-J., 89 P.3d 530, 531 (Colo. App.2004) (declining to address issue lacking reference to supporting legal authorities); People v. Simpson, 93 P.3d 551, 555 (Colo. App.2003) (appellate court declined to consider presented legal proposition because party failed to develop argument); Westrac, Inc. v. Walker Field, 812 P.2d 714, 718 (Colo.App. 1991) ("[i]t is the duty of counsel to inform the court both as to specific errors relied upon and as to the grounds, supporting facts, and authorities therefor").
Therefore, we conclude that landowners' properties were not unconstitutionally taken without just compensation because the trial court awarded the Sandbergs $9,620 and the Larsons $16,197, as just compensation for their properties, and the record supports compensation in these amounts.
VIII. Project Influence Rule
Landowners contend that the trial court erred in determining the just compensation due them because the court relied on STC's appraisal, which violated the project *211 influence rule. We do not address this contention.
Although landowners objected, in prevaluation hearing proceedings, to STC's proposed jury instruction regarding the method of calculating just compensation because it allegedly violated the project influence rule, they subsequently requested that the court enter directed verdicts in the amount of zero dollars. In addition, landowners did not alternatively argue that if the court relied on STC's offer of proof in determining just compensation, its property value calculations violated the project influence rule. Thus, because landowners did not seek or obtain a ruling from the trial court on this issue, we need not address it. See People v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo.App.2005) (issue not preserved for appeal where party fails to seek or obtain trial court's ruling on the issue).
IX. Conclusion
The trial court's immediate possession order and its judgment awarding just compensation are affirmed.
Judge CARPARELLI and Judge TERRY concur.
NOTES
[1] STC's offer of proof indicated that the properties had already been restored to their original condition. Therefore, the only issue remaining to be decided was the amount of just compensation for the properties.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2983369/
|
August 5, 2014
JUDGMENT
The Fourteenth Court of Appeals
EX PARTE CALVIN T. POWELL
NO. 14-14-00325-CR
________________________________
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 and this decision be certified
below for observance.
|
01-03-2023
|
09-22-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/2402217/
|
721 S.W.2d 401 (1986)
Jerome Alexander MARKS aka Winiford Jerome Marks, Appellant,
v.
The STATE of Texas, Appellee.
No. 09 86 067 CR.
Court of Appeals of Texas, Beaumont.
October 29, 1986.
*402 Deborah Stanton Burke, Beaumont, for appellant.
John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
OPINION
BURGESS, Justice.
Appellant was convicted by a jury of delivery of pentazocine, a controlled substance. At the punishment stage, the jury found that appellant had previously been convicted of a felony and assessed his punishment at ten years confinement in the Texas Department of Corrections. Appellant urges four grounds of error.
The first ground of error alleges that the state's exercise of its peremptory challenges violated his rights to a jury drawn from a cross-section of the community and equal protection of the laws under the Sixth and Fourteenth Amendments of the U.S. Constitution, respectively. After voir dire of the panel and the exercise of peremptory challenges by the parties, appellant's counsel objected to the use of the state's peremptory challenges alleging that they were made on the basis of race and were not trial related. The prosecutor maintained that the challenges were made on the basis of age and occupation. It is undisputed that the state's ten challenges were used against ten black venire persons. Even so, two blacks remained on the jury.
Appellant's argument is primarily based upon Batson v. Kentucky, 476 U.S. ___, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We initially confront whether to apply Batson retroactively since this case was tried the 15th and 16th of January, 1986 and Batson not delivered until April 30, 1986. We decide it should not be so applied. We reach this conclusion based partially upon Mr. Justice Powell's following statement:
We decline, however, to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges.24
24In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, see Booker v. Jabe, 775 F2d, [762] at 773, or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire, see United States v. Robinson, 421 FSupp 467, 474 (Conn 1976), mandamus granted subnom. United States v. Newman, 549 F2d 240 (CA2 1977). Id., 476 U.S. at ___, 106 S.Ct. at 1724, 90 L. Ed. 2d at 89-90.
*403 This statement, with the footnote, seems to indicate that the holding will be applied prospectively.
Further, Justices White and O'Conner, in separate concurring opinions, explicitly state that the decision does not apply retroactively. In addition, Chief Justice Burger, in a dissent joined by Justice Rehnquist, holds that it should not apply retroactively. Because some higher court might disagree with our conclusion, we, nevertheless, consider the merits of the ground of error.
The initial consideration is whether or not appellant established a prima facie case under Batson:
[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, [430 U.S. 482] at 494, 51 L. Ed. 2d 498, 97 S. Ct. 1272 [at 1280], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.' Avery v. Georgia, supra, [345 U.S. 559] at 562, 97 L. Ed. 1244, 73 S. Ct. 891 [at 892]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a `pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.
Id., 476 U.S. at ___ _ ___, 106 S. Ct. at 1722-23, 90 L.Ed. at 87-88.
Under the facts of this case, we hold that appellant made such a showing. Batson explains the consequence:
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. See McCray v. Abrams, 750 F2d, [1113] at 1132; Booker v. Jabe, 775 F2d 762, 773 (CA6 1985), cert pending 85-1028. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumptionor his intuitive judgment that they would be partial to the defendant because of their shared race. Cf. Norris v. Alabama, 294 US, [587] at *404 598-599, 79 L. Ed. 1074, 55 S. Ct. 579 [at 583-584]; see Thompson v. United States, 469 U.S. 2024, 83 L. Ed. 2d 369, 105 S. Ct. 443 (Brennan, J., dissenting from denial of certiorari). Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, supra, at___, 90 L. Ed. 2d 80 [106 S.Ct. at 1716], so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' race. Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or `affirming his good faith in individual selections.' Alexander v. Louisiana, 405 US [625], at 632, 31 L. Ed. 2d 536, 92 S. Ct. 1221 [at 1226]. If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause `would be but a vain and illusory requirement.' Norris v. Alabama, supra [294 U.S. 587] at 598, 79 L. Ed. 1074, 55 S. Ct. 579 [at 583]. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.
Id., at ___ _ ___, 106 S. Ct. 1723-1724, 90 L.Ed.2d at 88-89.
Unfortunately, the participants did not fully anticipate Batson. As a result, the record is inconclusive as to whether the state sufficiently explained its challenges on `neutral' grounds. It stated that it struck the following venire persons due to age and occupation:
Challenge Number Age Occupation
One 36 Teacher
Two 50 Employment Commission
Supervisor
Three 22 Bank Secretary
Challenge Number Age Occupation
Four 47 Unemployed nurse
Five 37 Billing Clerk
Six 52 Maintenance Foreman
Seven 61 Housewife/Former
Nurse
Eight unknown
Nine 38 Maintenance Supervisor
Ten 61 Retired Sales Engineer
Upon review, this explanation needs further development to show a discernible pattern as to age or occupation. This is especially so in light of the jury's profile:
Juror Number Age Occupation
One 51 Pipefitter
Two 35 Boilermaker
Three 67 Pipefitter
Four 55 Lawyer
Five 32 Jewelry Sales Person
Six 37 Dockman
Seven 60 Housewife
Eight 50 Secretary
Nine 43 Sales Person
Ten 72 Pipefitter
Eleven 57 Wastewater Supervisor
Twelve 30 Meatwrapper
Once again, without further explanation, there is no perceptible criterion for exclusion based upon age and/or occupation, therefore, we cannot hold that any error occurred. At most, we could only remand, as was done in Batson, for a determination by the trial court of whether the prosecutor could more adequately explain his action. Because we hold Batson applies prospectively, however, we overrule ground of error number one.
Ground of error number two alleges the trial court erred in overruling the motion to quash the indictment. Appellant's motion to quash averred that the indictment was defective because it was neither signed by the grand jury foreman nor reflected having been appropriately filed in the office of the District Clerk of Jefferson County, Texas. By contrast, on appeal appellant argues he was deprived of constitutional protections because his copy of the indictment did not reflect such signing and filing. Two short answers dispose of this ground.
First, since the claim advanced on appeal is not the same as the one urged at trial, it *405 is not entitled to review. Cravens v. State, 687 S.W.2d 748 (Tex.Crim.App.1985). Second, even if the original had been unsigned, this would not invalidate the indictment. McCullough v. State, 425 S.W.2d 359 (Tex.Crim.App.1986). However, the original was properly signed and filed. The second ground of error is overruled.
The next ground of error complains of improper jury argument during the punishment phase of the trial. The complained of argument:
[PROSECUTOR]: You can consider just as well the fact that when Jerome Marks was rejected by his natural parents and taken in by Frank and Earline Wiley, Mrs. Porter's statement that Earline Wiley was very happy to have a child in her home. But is Earline Wiley happy with that child today? Was Earline Wiley here to testify for her son?
[DEFENSE COUNSEL]: Objection, your Honor, this is inflaming the minds of the jury.
THE COURT: Overruled. A comment on people he did not call.
It is questionable whether the objection was specific enough to preserve the error. See Smith v. State, 437 S.W.2d 835 (Tex.Crim.App.1986). In any event, a party may comment on the failure of the opposing party to call a witness and infer that the absent testimony would be both material and damaging so long as he does not relate his version of the missing witness' testimony. Fisher v. State, 511 S.W.2d 506 (Tex.Crim.App.1974), Kerns v. State, 550 S.W.2d 91 (Tex.Crim.App.1977). The argument was proper. The ground of error is overruled.
Appellant's final ground of error alleges the evidence is insufficient to support a conviction in that the state did not prove the identity and weight of the controlled substance. The state alleged that appellant delivered less than 200 grams of pentazocine. Under this indictment, the state was not required to prove any specific amount, not even a usable amount. Johnson v. State, 658 S.W.2d 623 (Tex. Crim.App.1983). The chemist testified, unequivocally, that the substance was pentazocine. He further testified that he estimated the weight of the tablet to be 4/10 gram. There was absolutely no objection to this testimony, thus nothing was preserved for review. Griffin v. State, 665 S.W.2d 762 (Tex.Crim.App.1983). This final ground of error is overruled.
The judgment of the trial court is affirmed.
AFFIRMED.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/3352543/
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT
The plaintiff, U.B. Vehicle Leasing, Inc., (UBVL) commenced suit against the defendants, Scott Davis and Jelena Lektorova, asserting a cause of action for contractual and common law indemnification.
According to the complaint, in March, 1999, a van driven by Lektorova, leased by Davis, and owned by UBVL was involved in an automobile accident wherein two other parties, Jeffrey Eakley and George Green were injured. In an action to recover damages for their injuries, Eakley and Green filed suit in the United States District Court for the Southern District of New York naming Davis, Lektorova and UBVL among the defendants. Davis's insurance carrier, Atlantic Mutual Insurance Company, (AMIC) defended the matter. Following a stipulation in which Eakley and Green agreed to withdraw their claims as to Davis and Lektorova, a jury returned a verdict against UBVL. The court issued judgment in favor of Eakley and Green for $1,570,000, of which AMIC paid $1,300,000, thereby exhausting its policy limit, and UBVL paid the remaining $270,000.
In the present action, UBVL seeks contractual indemnification from the defendants for the expenses it incurred in defense of the federal court action pursuant to a 1998 lease agreement, which Davis entered into with Central Avenue Chrysler of New York, and which was then assigned to UBVL. The lease agreement provides that Davis agrees to indemnify UBVL for all liability, loss and expense arising from the use, condition or ownership of the vehicle. As against Lektorova, UBVL claims it is entitled to common law indemnification, because Eakley and Green's injuries were the direct and immediate result of Lektorova's negligence and/or recklessness, Lektorova had exclusive control of the situation giving rise to the accident, and UBVL did not know, nor could have anticipated Lektorova's negligence and/or recklessness.
As to UBVL's contractual indemnification claim, Davis and Lektorova maintain by way of a special defense that the provision UBVL relies upon CT Page 13054 in asserting this claim is unenforceable because it violates public policy, is vague and ambiguous, and is procedurally and substantively unconscionable.
UBVL now moves for summary judgment on the ground that it is entitled to indemnification pursuant to the lease agreement. The defendants filed an objection to the motion and a cross-motion for summary judgment in which they contend that the lease agreement is unenforceable.
"Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § [17-46]." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590, 591 ___ A.2d ___ (2002).
"A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins.Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist."Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
At the outset, the court finds that New York law governs the interpretation of the lease agreement. Generally, "Connecticut's choice of law approach for contracts is the `most significant relationship' test of the Restatement (Second)," unless the contract contains a choice of law provision. Reichold Chemicals, Inc. v. Hartford Accident Indemnity Co., 252 Conn. 774, 781, 750 A.2d 1051 (2000). Here, the lease agreement contains a choice of law provision1 which establishes that New York law will govern the interpretation of the lease. UBVL does not dispute that New York law governs, indeed it argues that it is entitled to indemnification under both New York and Connecticut law.
The paragraph in contention for purposes of this motion is paragraph 48 of the lease agreement titled, "Indemnity, Fines and Tickets." This paragraph provides in relevant part: "[Y]ou [lessee] will indemnify and CT Page 13055 hold harmless Lessor, UBVL . . . from any loss or damage to the Vehicle and its contents. You [lessee] also will indemnify and hold harmless Lessor, UBVL . . . from all claims, losses, injuries, expenses and costs related to the use, maintenance, or condition of the Vehicle. . . ." Pursuant to this paragraph, UBVL claims it is entitled to indemnification for the costs associated with its defense in the federal court action.
"Under the [New York] statutory scheme, an owner is required to maintain a minimum liability coverage for bodily injury and for death, but nothing in the statute's scheme, language, or legislative history suggests that a lessor/owner [like UBVL] cannot by contract secure indemnification from a lessee/driver for liability stemming from the latter's negligence which exceeds the amounts for which owners are required to be insured." (Emphasis added; internal quotation marks omitted.) Morris v. Snappy Car Rental, Inc., 84 N.Y.2d 21, 28,637 N.E. 253, 614 N.Y.S.2d 362 (1994). In their special defense, and in their objection to UBVL's motion for summary judgment, the defendants argue that the contractual provision at issue is unenforceable because, among other things, it is procedurally and substantively unconscionable.
"[A] lease agreement, like any other contract, essentially involves a bargained-for exchange between the parties. Absent some violation of law or transgression of a strong public policy, the parties to a contract are free to make whatever agreement they wish, no matter how unwise it might appear to a third party. . . . The doctrine of unconscionability, with its emphasis on the contract-making process, is really an expression of, rather than an exception to, this principle." (Citation omitted; internal quotation marks omitted.) Master Lease v. Manhattan Limousine, Ltd.,177 App.Div.2d 85, 89, 580 N.Y.S.2d 952 (1992). "[W]hether a contract or a clause thereof is unconscionable or not is for the court to decide. . . ." (Citation omitted; internal quotation marks omitted.) Id., 89. "A determination of unconscionability requires a showing that the contract was both procedurally and substantively unconscionable when made — i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. . . ." (Citation omitted; internal quotation marks omitted.) Gillman v. Chase ManhattanBank, N.A., 73 N.Y.2d 1, 10, 534 N.E. 824,537 N.Y.S.2d 787 (1988).
"[P]rocedural unconscionability concerns the contract formation process, while substantive unconscionability looks to the content of the contract . . . Examples of the former include, but are not limited to, high pressure commercial tactics, inequality of bargaining power, deceptive practices and language in the contract, and an imbalance in the CT Page 13056 understanding and acumen of the parties. Examples of unreasonably favorable contractual provisions are virtually limitless but include inflated prices, unfair termination clauses, unfair limitations on consequential damages and improper disclaimers of warranty. . . ." (Citations omitted; emphasis added; internal quotation marks omitted.)Universal Leasing Services, Inc. v. Flushing Hae Kwan Restaurant,169 A.D. 2d 829, 831, 565 N.Y.S.2d 199 (1991).
Davis filed an affidavit in which he attests that the location of the sentence which UBVL relies upon in asserting its right to indemnification made it difficult for him to appreciate its significance. Indeed, the sentence at issue is located between other sentences pertaining to his liability for the loss or property damage of the vehicle, and his liability for fines and tickets imposed upon the vehicle or its driver. Moreover, he states in his objection to UBVL's motion that he understood that by maintaining insurance coverage exceeding what was required by the lease agreement, he was protecting himself from possible claims made by UBVL, and protecting UBVL from claims made by others as a result of his use of the vehicle.
This court finds that the Davis has raised genuine issues of material fact as to whether his misunderstanding of the lease agreement results from procedural unconscionability, such as an imbalance in the understanding of the parties; and substantive unconscionability, such as the location of the sentence relating to indemnification for personal injury claims. "A question of fact exists as to how a reasonable customer would have interpreted the provision, thereby precluding summary judgment. . . ." (Citations omitted.) Super Glue Corp. v. Avis Rent A CarSystem, Inc., 159 App.Div.2d 68, 72, 557 N.Y.S.2d 959 (1990).
For the foregoing reasons, the court hereby denies UBVL's motion for summary judgment and denies the defendants' cross-motion for summary judgment.
So Ordered.
___________________ D'ANDREA, J.T.R.
|
01-03-2023
|
07-05-2016
|
https://www.courtlistener.com/api/rest/v3/opinions/2431706/
|
575 S.W.2d 529 (1978)
Robert GORDON, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 57414, 57415.
Court of Criminal Appeals of Texas, Panel No. 3.
September 27, 1978.
Opinion On Motion For Rehearing January 10, 1979.
*530 Jeffrey A. Kearney, Fort Worth, for appellant.
Tim Curry, Dist. Atty., Marvin Collins, Joseph Drago, III, Stephen R. Chaney and Candyce W. Howell, Asst. Dist. Attys., Fort Worth, for the State.
Before ROBERTS, PHILLIPS and VOLLERS, JJ.
Opinion On State's Motion For Rehearing January 10, 1979.
OPINION
ROBERTS, Judge.
These are appeals from orders of the court revoking the appellant's probation in two cases. [Cause No. 10085 (our Cause No. 57,414) and Cause No. 10238 (our Cause No. 57,415) in Criminal District Court No. 3 of Tarrant County.] The trial judge found that the appellant had violated a condition of each of his probations, and sentenced the appellant in each case to four years' confinement in the Texas Department of Corrections. However, the sentence in Cause No. 10238 (our Cause No. 57,415) reflects that the trial judge ordered that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate.[1]
The appellant contends that the allegations in the State's motion to revoke were fundamentally defective and that the trial judge could not cumulate the sentences.
On May 12, 1977, the appellant pleaded guilty to the offense of unauthorized use of a motor vehicle in Cause No. 10085 (our Cause No. 57,414) and to the offense of theft of property over $200 and under $10,000 in Cause No. 10238W (our Cause No. 57,415). The appellant was assessed a four-year probationary term in each case. One of the conditions of each of the appellant's probations was that he "a. [c]ommit no offense against the laws of this State or any other State or the United States."
On June 13, 1977, the State filed a motion to revoke in both of the cases. Each motion alleged, in part, that the appellant had violated a condition of his probation in that:
"[T]he said ROBERT GORDON, in the County of Tarrant and State aforesaid, on or about the 8th day of June, 1977, did then and there unlawfully, intentionally and knowingly operate, without the effective consent of the owner, Leroy Rogers, one motor-propelled vehicle, to-wit: automobile, against the peace and dignity of the State."
On July 26 and 27, 1977, a hearing was held on the State's motions. At the close of that hearing, the trial judge found that the appellant had violated a condition of each of his probations by unlawfully, intentionally and knowingly operating an automobile without the effective consent of Leroy Rogers, the owner, as alleged in the motion to revoke. The trial judge sentenced the appellant to four years' confinement in each case, but further ordered that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate.
The evidence adduced at the hearing reveals that on the evening of June 8, 1977, at approximately 9:30 p. m., Gary Utley, a manager at Bill McDavid Pontiac in Fort Worth, heard what sounded like a vehicle running into a chain at the east end of the car lot. At the same time, he heard a customer yell, "The guy's stealing the car." Utley saw a 1975 Chevrolet El Camino being driven over a chain blocking the exit from the car lot. Utley ran to his car and pursued the El Camino for approximately six blocks. At that time, he saw the driver. Utley then stopped pursuing the El Camino and returned to the car lot. When he returned to the car lot, Officer Dan Miller of the Fort Worth Police Department had arrived to investigate the incident. Utley explained what happened and Miller broadcast a description of the El Camino and the license plate number over his police radio.
*531 Shortly thereafter, Officers Chesshire and Owen, each in a marked police car, and Officer Thompson, on a police motorcycle, located the El Camino and a high speed chase ensued. Additional police units, including a police helicopter, assisted Chesshire, Owen and Thompson. During the chase, Owen saw the appellant driving the El Camino.
Eventually, the El Camino was driven to 314 Templeton. The appellant and the passenger got out and started to run around the house located at 314 Templeton. Thompson continued to pursue the two men, first on his motorcycle and later on foot, and he eventually caught both men. However, the appellant broke away from Thompson and attempted to gain entry into the house at 314 Templeton. At that time, Chesshire apprehended the appellant.
The appellant's first contention is that the State's allegations in the motions to revoke were fundamentally defective for failing to allege what condition of his probations the appellant allegedly violated.
In each case, the State's motions for revocation alleged:
"the Defendant, ROBERT GORDON, was ordered by the Court to commit no offense against the laws of this State or any other State or the United States. The Defendant, ROBERT GORDON, in the County of Tarrant and State of Texas, on or about the 8th day of June, 1977 did then and there knowingly and intentionally appropriate property, other than real property, to-wit: one automobile of the value of $200, or more, but less than $10,000. from the owner, Leroy Rogers, without the effective consent of the owner and with intent to deprive the owner of the property;
"COUNT TWO: and it is further presented in and to said Court that the said ROBERT GORDON, in the County of Tarrant and State aforesaid, on or about the 8th day of June, 1977, did then and there unlawfully, intentionally and knowingly operate, without the effective consent of the owner, Leroy Rogers, one motor-propelled vehicle, to-wit: automobile, against the peace and dignity of the State."
In each case, the trial judge's order revoking probation relied on the second paragraph of the State's allegations. In neither case did the appellant file a motion to quash on the basis of the ground relied upon on appeal.
In Garner v. State, 545 S.W.2d 178, 179 (Tex.Cr.App.1977), we stated:
"[W]hile the allegations in a motion to revoke probation do not require the same particularity of an indictment or information, in all fairness the allegations as to violation of probation should be fully and clearly set forth in the revocation motion, so that the defendant and his counsel might be informed as to that upon which he will be called to defend." (Citations omitted)
We hold that the appellant was given fair notice that the State was going to attempt to prove that the appellant had violated condition "a" of his probationary terms.
Furthermore, in the absence of a motion to quash, any error was waived. Johnson v. State, 498 S.W.2d 198 (Tex.Cr. App.1973). Cf. Barrow v. State, 505 S.W.2d 808 (Tex.Cr.App.1974). Appellant's first contention is without merit.
The appellant's second contention is apparently one of first impression for this Court: Does a trial judge have the power to order a cumulation of sentences when he revokes felony probation and neither the original judgment suspending the imposition of sentence and placing the defendant on probation nor the order placing the defendant on probation provides for a cumulation of the sentences?[2]
*532 Our inquiry begins with Article 42.08, Vernon's Ann.C.C.P., which states:
"When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly."
It is well established that where a trial judge does not order that two sentences in two different prosecutions shall be cumulative, the terms of imprisonment automatically run concurrently. Ex Parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1970). Thus, the appellant argues that since the judgments placing him on probation did not indicate that the sentences were to be cumulative, the attempted cumulation after revocation was ineffective.
In Ex Parte Crawford, 36 Tex. Crim. 180, 36 S.W. 92 (1896), this Court held that where a cumulation order was attached to and made a part of the sentence rather than the judgment proper, the cumulation order was not void; that the sentence is in fact the final judgment in a case; and that while a cumulation order could be placed in both the judgment and the sentence, there is no necessity that the order be placed in both the judgment and the sentence. Therefore, this Court held that a cumulation order in a sentence is proper.
In cases where felony probation is granted, there is no sentence until after probation is revoked, if at all, because the imposition of sentence is suspended. Article 42.12, Vernon's Ann.C.C.P.; Teel v. State, 432 S.W.2d 911 (Tex.Cr.App.1968). Therefore, the trial judge in the present case could not have placed the cumulation order into the sentence until the appellant's probations were revoked. However, this does not mean that the trial judge could not have properly placed the cumulation order into the judgment granting probation and the order granting probation.[3]
Thus, the underlying issue that must be resolved is when does a trial judge have to order the cumulation of punishment where he has suspended the imposition of sentence and placed the defendant on felony probation. In other words, must the trial judge *533 order cumulation when he grants felony probation and include such order in the judgment granting probation (and in the order placing the appellant on probation), or can he wait until he revokes probation and formally sentences a defendant?
This issue is rendered more complicated by what we noted earlier; under our holding in Ex Parte Crawford, supra, a cumulation order will be effective if it is in either the judgment or the sentence. Thus, the obvious extension of Ex Parte Crawford would be to hold that the trial judge's action in the present case was proper.
However, two additional factors distinguish the situation where felony probation is granted from the situation where felony probation is not granted. First, Article 42.12, Vernon's Ann.C.C.P., is violated by a trial judge if a cumulation order is entered when he revokes probation. Article 42.12, Section 8(a), Vernon's Ann.C.C.P. states, in part, that:
"If probation is revoked, the court may proceed to dispose of the case is if there had been no probation, or if it determines that the best interests of society and the probationer would be served by a shorter term of imprisonment, reduce the term of imprisonment originally assessed to any term of imprisonment not less than the minimum prescribed for the offense of which the probationer was convicted."
Thus, Article 42.12, Section 8(a), Vernon's Ann.C.C.P., empowers a trial judge to reduce the punishment originally assessed a probationer upon revocation of probation if the best interests of society and the probationer would be served thereby. However, Article 42.12, Section 8(a), Vernon's Ann.C. C.P., does not specifically empower a trial judge to increase the punishment originally assessed a probationer. Nor do we construe the language of Article 42.12, Section 8(a), Vernon's Ann.C.C.P."[i]f probation is revoked, the court may proceed to dispose of the case as if there had been no probation" as language empowering the trial judge to increase a probationer's punishment upon revocation of his probation.
However, if a trial judge enters a cumulation order when he revokes a probationer's probation, the punishment in the probated case would be effectively increased due to the cumulation order. For example, in the present case, the judgments placing the appellant on probation reflect that the appellant was assessed two four-year probationary terms. In the absence of a cumulation order, those two four-year probationary terms were to be served concurrently. Article 42.08, Vernon's Ann.C. C.P.; Ex Parte Reynolds, supra. However, when the trial judge revoked the probationary terms, he ordered that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate. Thus, the appellant's punishment, upon revocation of his probation, was in fact increased to eight years. As such, the trial judge's action in entering a cumulation order violated Article 42.12, Section 8(a), Vernon's Ann.C.C.P.[4]
Second, we believe that a probationer should be entitled to know the extent of his punishment at the time he is placed on probation. Cf. Article 37.06, Vernon's Ann. C.C.P. Unless a cumulation order is pronounced *534 at the time probation is granted and included in the judgment granting probation, a probationer could have no notice that his punishment will be cumulated if and when his probation is revoked, and thus he could not be aware of the full extent of the punishment assessed him. Knowledge that his punishment will be cumulated upon revocation may constitute, at least for some probationers, an additional positive incentive to live within the conditions of probation. Moreover, we hold that it is undesirable, as a matter of policy, to "surprise" a probationer upon revocation with the knowledge that his punishment was being increased above that which was assessed by the jury or trial judge months or even years earlier.[5]
These additional factors persuade us that the general rule of Ex Parte Caldwell that a cumulation order is effective regardless of whether it is contained in the judgment or sentenceis inapplicable where a trial judge grants felony probation. We hold that the proper time for a trial judge to order cumulation in a case where he grants felony probation is when probation is granted and that unless the cumulation order is reflected in at least the judgment granting probation, the cumulation order is ineffective.
In the present case, the cumulation order is contained only in the sentence in Cause No. 10238W (our Cause No. 57,415). Therefore, the cumulation recitals in the sentence in Cause No. 10238W (our Cause No. 57,415) are ineffective and are therefore ordered deleted therefrom.[6]
Finally, we have reviewed the appellant's pro se allegations and we find them to be without merit.
The sentence in Cause No. 10238W (our Cause No. 57,415) is reformed and the judgment therein is affirmed. The judgment in Cause No. 10085 (our Cause No. 57,414) is affirmed.
VOLLERS, Judge, concurring and dissenting.
The majority in this case confuses the distinction between "punishment" and "sentence" under Texas law. The "punishment" assessed by the trial court in this case was confinement for a term of four years in each case, to be served upon probation. The "sentence" was the court's order determining when this punishment was to be served. The sentence pronounced in this case which required that one term be served after the other is completed does not increase the probationer's punishment upon revocation of his punishment any more than it increases his punishment to sentence him to the penitentiary after he had been placed upon probation.
I certainly cannot agree to that Article 42.12 Section 8(a) V.A.C.C.P. is violated by the trial judge when a cumulation order is entered after he revokes probation and sentences the appellant. That section merely grants to the trial judge the authority to reduce the term in the penitentiary upon revocation of probation, and has nothing to do with the pronouncement of sentence. This case is properly controlled by Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974) where this Court held that where the sentence is imposed for the first time following revocation of probation the court was free to cumulate the sentence with prior outstanding sentences. The cumulation order in this cause is valid and the sentence in Cause number 10238W (our cause number 57,415) should not be reformed. I concur in the affirmance of both of these cases, but dissent to the action of the majority in reforming the sentence in Cause number 54,415.
Before the Court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
DOUGLAS, Judge.
After the Court, under its rules, ordered a rehearing, the State filed a motion *535 for rehearing. The rehearing is granted, and that part of the original opinion declaring the cumulation order invalid and reforming the sentence is set aside and the judgments including the cumulation orders are now affirmed.
The issue is: Does a trial judge have power to cumulate sentences after revoking probation in a felony case?
The question was answered in Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974), where this Court wrote: "Since as in the instant case the sentence was imposed for the first time following appellant's revocation, the court was free to cumulate the sentence with prior outstanding sentences." In the present case the sentence was imposed after the revocation of probation.
It makes no difference that Article 42.12, V.A.C.C.P., does not provide for the cumulation of sentences because Article 42.08, V.A.C.C.P., provides for their cumulation.
The cumulation of sentences has been approved by this Court for eighty-two years. See Ex parte Crawford, 36 Tex. Cr.R. 180, 36 S.W. 92 (1896); Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968); and Ex parte Davis, 542 S.W.2d 117 (Tex. Cr.App.1976). The opinion on original submission does not give sufficient reasons to change the rule and nullify Article 42.12, supra.
For the above reasons, both sentences as originally pronounced are affirmed.
ROBERTS and PHILLIPS, JJ., dissent.
CLINTON, J., not participating.
NOTES
[1] Article 42.08, Vernon's Ann.C.C.P.
[2] In Spencer v. State, 503 S.W.2d 557 (Tex.Cr. App.1974), the defendant was convicted of burglary with intent to commit theft. The trial judge suspended the imposition of sentence and placed the defendant on probation. During the defendant's probationary term, the appellant was convicted of the offense of possession of marihuana. The State filed a motion to revoke and the trial judge revoked the defendant's probation on the basis of the marihuana conviction. However, the trial judge ordered the sentence for burglary to run cumulatively with appellant's sentence for possession of marihuana.
This Court, speaking through Presiding Judge Onion, stated:
"Since as in the instant case the sentence was imposed for the first time following appellant's revocation, the court was free to cumulate the sentence with prior outstanding sentences. See Article 42.08, Vernon's Ann. C.C.P.; Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968). Therefore, Appellant's last contention is without merit." Spencer v. State, supra at 562.
In Ex Parte March, 423 S.W.2d 916 (Tex.Cr. App.1968), this Court held that where the imposition of sentence is suspended and the sentence imposed for the first time upon revocation of probation, the trial judge is free to cumulate the sentence with prior outstanding sentences.
However, neither Spencer nor Ex Parte March expressly considered whether the judgment suspending the imposition of sentence and placing the defendant on probation (and the order placing the defendant on probation) had to reflect the cumulation order. That is, neither case directly addressed when a trial judge has to order the cumulation of punishment where he has suspended the imposition of sentence and place the defendant on felony probation. Moreover, the Court did not consider the effect of Article 42.12, Section 8(a), Vernon's Ann.C.C.P., in either case. In light of our disposition of the present case, our holdings in Spencer and Ex Parte March are overruled to the extent that they are in conflict with the present decision.
[3] In Ex Parte Davis, 542 S.W.2d 117 (Tex.Cr. App.1976), we held that where a cumulation order is found only in an order granting probation and not also in the judgment granting probation, the cumulation order was not effective.
[4] We realize, of course, that there are situations where a cumulation order could be entered when probation was revoked which would not involve an increase in punishment. For example, in the present case, if the trial judge had reduced the appellant's punishment in each case to two years and then entered an order that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate, no increase in the punishment in Cause No. 10238W (our Cause No. 57,415) would have resulted.
In situations where a cumulation order does not increase the factual term of incarceration, the above argument is not applicable.
Of course, where a trial judge's cumulation order does increase punishment after revocation, an additional issue is presented: whether an increase in punishment after revocation of punishment violates due process under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Cf. Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978); Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1975).
[5] Cf. McNew v. State (Tex.Cr.App.1978); No. 56,669 (delivered February 15, 1978). Walker v. State, 557 S.W.2d 785 (Tex.Cr.App.1977).
[6] Under our decision in Ex Parte Reynolds, supra, the sentences will run concurrently.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2235294/
|
929 N.E.2d 269 (2010)
WILSON
v.
STATE.
No. 79A05-1003-CR-158.
Court of Appeals of Indiana.
July 6, 2010.
BRADFORD, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed and Remanded.
RILEY, J., concurs.
MATHIAS, J., concurs.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1602978/
|
786 N.W.2d 520 (2010)
IN RE L.A.S.
No. 09-1548.
Court of Appeals of Iowa.
May 26, 2010.
Decision Without Published Opinion Affirmed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874308/
|
288 Wis. 2d 459 (2005)
706 N.W.2d 702
2005 WI App 254
STATE EX REL. COWICK v. SCHWARZ.[]
No. 2003AP002520.
Court of Appeals of Wisconsin.
October 26, 2005.
Unpublished Opinion. Affirmed.
NOTES
[] Petition to review filed.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1902770/
|
748 So.2d 1042 (1999)
Roosevelt RICHARDSON, Appellant,
v.
STATE of Florida, Appellee.
No. 99-179.
District Court of Appeal of Florida, Fifth District.
August 13, 1999.
Opinion Granting Certification October 8, 1999.
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Maximillian J. Changus, Assistant Attorney General, Daytona Beach, for Appellee.
THOMPSON, J.
Roosevelt Richardson appeals from sentence which was enhanced pursuant to the Prison Releasee Reoffender Act, section 775.082(8)(a), Florida Statutes. He contends that the statute is invalid because it violates the constitutional principle of separation of powers. We affirm. See Speed v. State, 732 So.2d 17 (Fla. 5th DCA 1999).
AFFIRMED.
DAUKSCH and GOSHORN, JJ., concur.
ON MOTION FOR CERTIFICATION
THOMPSON, J.
We grant appellant's motion for certification pursuant to Florida Rule of Appellate Procedure 9.330(a), and certify the following question as one of great public importance:
DOES THE PRISON RELEASEE REOFFENDER PUNISHMENT ACT, CODIFIED AS SECTION 775.082(8), FLORIDA STATUTES (1997), VIOLATE THE SEPARATION OF POWERS CLAUSE OF THE FLORIDA CONSTITUTION?
Motion for Certification GRANTED.
DAUKSCH and GOSHORN, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874307/
|
586 So. 2d 1269 (1991)
Leshawn TILLMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 90-2859.
District Court of Appeal of Florida, First District.
September 30, 1991.
Rehearing Denied November 1, 1991.
Nancy A. Daniels, Public Defender, and Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Sara D. Baggett, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
Leshawn Tillman has appealed his classification and sentence as an habitual violent felony offender pursuant to section 775.084(1)(b), Florida Statutes. Tillman received this sentence for selling cocaine (a non-violent felony), based on a previous conviction of armed robbery (a violent felony). We affirm, but certify two questions as being of great public importance.
Tillman's argument on appeal is that section 775.084(1)(b) is unconstitutional. He contends that it: 1) denies equal protection in that not all who are eligible for habitual violent felony offender status are so sentenced, 2) offends the requirements of due process by its failure to require that the current offense be violent, and 3) violates the constitutional protection against double jeopardy by increasing punishment due to the nature of a prior offense. This court has ruled adversely to Tillman on each of these issues. See Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA), review denied 576 So. 2d 284 (Fla. 1990), Ross v. State, 579 So. 2d 877 (Fla. 1st DCA 1991), and Perkins v. State, 583 So. 2d 1103 (Fla. 1st DCA 1991), respectively. We therefore affirm.
However, pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, we certify the following questions to be of great public importance:
1. DOES IT VIOLATE A DEFENDANT'S SUBSTANTIVE DUE PROCESS RIGHTS WHEN HE IS CLASSIFIED AS A VIOLENT FELONY OFFENDER PURSUANT TO SECTION 775.084, AND THEREBY SUBJECTED TO AN EXTENDED TERM OF IMPRISONMENT, IF HE HAS BEEN CONVICTED OF AN ENUMERATED VIOLENT FELONY WITHIN THE PREVIOUS FIVE YEARS, EVEN THOUGH HIS PRESENT OFFENSE IS A NON-VIOLENT FELONY?
2. DOES SECTION 775.084(1)(b) VIOLATE THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY BY INCREASING A DEFENDANT'S PUNISHMENT DUE TO THE NATURE OF A PRIOR OFFENSE?
Affirmed.
JOANOS, C.J., and SMITH and ZEHMER, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1874323/
|
586 So. 2d 564 (1991)
Rose B. PARMELEE, Individually and as Administratrix of the Estate of Richard C. Parmelee
v.
David G. KLINE, M.D. and Oschner Foundation Hospital
consolidated with
Rose B. PARMELEE, Wife of/and as Administratrix of the Estate of Her Husband, Jill E. Parmelee, Daughter of/and Chris A. Parmelee, Daughter of the Deceased, Individually and of the Deceased, Richard C. Parmelee
v.
PATIENT'S COMPENSATION FUND.
No. 91-C-1678.
Supreme Court of Louisiana.
October 11, 1991.
Denied.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2615038/
|
847 P.2d 761 (1993)
115 N.M.App. 116
JOHNSON CONTROLS WORLD SERVICES, INC., Defendant-Appellant,
v.
Doug BARNES, Plaintiff-Appellee.
No. 13604.
Court of Appeals of New Mexico.
January 5, 1993.
Certiorari Denied February 15, 1993.
*762 Bradford V. Coryell, Compton, Coryell, Hickey & Ives, P.A., Santa Fe, for defendant-appellant.
Richard Rosenstock, Santa Fe, Jeffrey J. Buckels, Albuquerque, for plaintiff-appellee.
William H. Carpenter, Chairman, Amicus Committee, Michael B. Browde, Albuquerque, amicus curiae, New Mexico Trial Lawyers Ass'n.
OPINION
DONNELLY, Judge.
Defendant Johnson Controls World Services, Inc. (Johnson) pursues this interlocutory appeal from an order of the district court denying its motion to dismiss Plaintiff's claims for personal injuries which arose out of and in the course of his employment with Johnson. The central issue presented on appeal is whether the district court erred in holding that Count I of Plaintiff's complaint sets forth a valid claim for damages for personal injuries outside the exclusivity provision of our workers' compensation statute, NMSA 1978, Section 52-1-9 (Repl.Pamp. 1991). For the reasons discussed herein, we reverse.
Plaintiff was employed by Johnson as a heavy equipment operator. On June 2, 1988, Plaintiff was directed to operate a trackhoe machine and assist in removing several underground storage tanks which had previously been used to store petroleum products or other hazardous substances at the Los Alamos National Laboratory. Johnson had been hired by the University of California (the University), the operator of the Los Alamos National Laboratory (Laboratory), to excavate and remove underground tanks.
Plaintiff's amended complaint contained three counts. Counts I and II referred to Johnson and other defendants. Count II alleged intentional commission of a wrongful act and/or reckless infliction of injury. Count III applied only to the defendant University. Neither Count II nor Count III is the subject of this appeal.
Count I alleged, among other things, that Johnson intentionally engaged in unsafe work practices and ordered Plaintiff to perform work even though it was aware that physical contact with toxic wastes contained in the tanks would cause injury to him; that Plaintiff was injured when he was splashed with toxic liquid while operating a machine during removal of the tanks; that because the work of removing the tanks involved potential danger to workers, the University had issued detailed safety precautions and written procedures for removal of the structures, but that Johnson and other named defendants "deliberately and intentionally failed to adequately warn [him] of the known dangers involved." Count I also alleged that Johnson failed to provide Plaintiff "with appropriate protective clothing and eye wear"; "falsely informed [him] that the tanks he was to excavate that day had been properly and completely drained of hazardous liquid"; and that because of these acts and omissions Johnson knew that "injuries such as those suffered by Plaintiff were substantially certain to result."
Johnson's answer to Plaintiff's complaint denied liability on its part and raised an affirmative defense asserting that the claims raised against it were barred because Plaintiff had received benefits under the Workers' Compensation Act, and that the Act provided Plaintiff's exclusive remedy. Subsequent to filing its answer, Johnson also filed a motion to dismiss or in the alternative for summary judgment. The motion was accompanied by an affidavit of an insurance claims representative which recited that Plaintiff was receiving workers' compensation and medical benefits. Plaintiff filed a response to the motion, together with an affidavit which stated that he felt his injuries were caused by the "intentional" or "reckless" conduct of Johnson; that Johnson intentionally withheld information from him; that Johnson falsely told him the tanks had been properly drained; and that Johnson "knew that injuries were substantially certain" to result from the work he was assigned to perform. Johnson moved to strike the affidavit and materials submitted by Plaintiff in his response to Johnson's motion to dismiss.
Following a hearing, the district court denied Johnson's motion to dismiss Count I of the amended complaint and granted its motion to dismiss Count II. The court declined to consider any of the material *763 submitted by the parties and limited its ruling to the motion to dismiss. Johnson pursues this appeal from the order denying its motion to dismiss Count I.
SUFFICIENCY OF THE COMPLAINT
Johnson argues that because Count I of Plaintiff's amended complaint did not allege that it possessed an actual intent to harm Plaintiff but, instead, alleged that the acts and omissions of Johnson "were substantially certain" to result in injury to Plaintiff, these allegations fail to set forth matters bringing this cause within an exception to the exclusivity provision (§ 52-1-9) of the Workers' Compensation Act. We agree.
A motion to dismiss for failure to state a claim under SCRA 1986, 1-012(B)(6) (Repl. 1992) tests the formal sufficiency of the complaint, not the facts that support the allegations contained in the pleading. Shea v. H.S. Pickrell Co., 106 N.M. 683, 685, 748 P.2d 980, 982 (Ct.App. 1987). In considering a motion to dismiss, both the district court and the reviewing court accepts as true all facts well pleaded and determines whether the plaintiff could prevail under any state of facts provable under the claim. California First Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990); Environmental Improvement Div. v. Aguayo, 99 N.M. 497, 660 P.2d 587 (1983).
Section 52-1-9 of the Workers' Compensation Act provides that the "right to the compensation provided [herein is] in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury [or death] accidentally sustained" where at the time of the accident, the employer has complied with the insurance provisions of the Act; "the employee is performing service arising out of and in the course of his employment"; and "the injury or death is proximately caused by accident arising out of and in the course of his employment and is not intentionally self-inflicted." Section 52-1-9(B), (C) (emphasis added).
A common feature of workers' compensation statutes is a provision specifying that the rights and remedies provided under the Act are exclusive of all other remedies of the employee for injury or death resulting from an accident which occurred in the scope and course of his or her employment. See 2A Arthur Larson, The Law of Workmen's Compensation §§ 68.00 to 69.10 (1992) (hereinafter Larson); see generally 82 Am.Jur. Workers' Compensation § 62 (1992).
Our Supreme Court in Dickson v. Mountain States Mutual Casualty Co., 98 N.M. 479, 480, 650 P.2d 1, 2 (1982), noted that "[t]he exclusivity provided for by the New Mexico Workmen's Compensation Act is the product of a legislative balancing of the employer's assumption of liability without fault with the compensation benefits to the employee." The Court in Dickson also quoted with approval from its decision in Mountain States Telephone & Telegraph Co. v. Montoya, 91 N.M. 788, 791, 581 P.2d 1283, 1286 (1978), observing that "`[o]nce a workman's compensation act has become applicable either through compulsion or election, it affords the exclusive remedy for the injury by the employee or his dependents against the employer and insurance carrier.'" Dickson, 98 N.M. at 481, 650 P.2d at 3.
The exclusivity provision of our statute, Section 52-1-9, does not bar a common-law action for damages, however, where the injury in question is not accidentally sustained but, instead, stems from an actual intent of the employer to injure the worker. See Sanford v. Presto Mfg. Co., 92 N.M. 746, 594 P.2d 1202 (Ct.App. 1979) (common-law liability of employer outside Workers' Compensation Act is limited to injuries deliberately inflicted); see also Gallegos v. Chastain, 95 N.M. 551, 624 P.2d 60 (Ct.App. 1981) (basis for employer's liability outside the Act is "an actual intent" to injure on the part of the employer); Maestas v. El Paso Natural Gas Co., 110 N.M. 609, 798 P.2d 210 (Ct.App. 1990) (common-law claims against employer by employee for injury sustained during scope and course of employment are restricted to injuries deliberately or intentionally inflicted).
*764 In Sanford this Court upheld the dismissal of the worker's complaint which alleged that the employer's tolerance of toxic fumes emanating from an oven constituted battery. In reviewing the sufficiency of the complaint, the Court examined out-of-state authority and quoted with approval Larson, supra, Section 68.13 (1976), concluding that in order to allege matters which will render an employer liable in tort outside the Workers' Compensation Act, the plaintiff must allege matters indicating that the employer intended to injure the plaintiff. In such context, the intent required to be alleged and proven is a "deliberate infliction of harm." Sanford, 92 N.M. at 748, 594 P.2d at 1204.
In Gallegos this Court noted Sanford's discussion of Larson, supra, regarding the requirement of an allegation and proof of an intent on the part of an employer to injure an employee, and concluded that "the basis for the employer's liability outside the Act is an actual intent to injure on the part of the employer." Gallegos, 95 N.M. at 553, 624 P.2d at 62 (emphasis added). The Gallegos Court upheld an order granting summary judgment in favor of the employer on the basis that the worker's claims, which alleged negligent supervision and vicarious liability, were controlled by the exclusivity provision of the Workers' Compensation Act.
This Court, in Maestas, followed the path laid out by our Supreme Court in Williams v. Amax Chemical Corp., 104 N.M. 293, 720 P.2d 1234 (1986), which declined to recognize a claim in tort for retaliatory discharge, and held that if an employer and employee are covered by the Act, their rights and remedies are governed by the Act. In Maestas the worker sought damages for physical, emotional, and psychological injuries alleged to have been sustained by him. The worker alleged his injuries resulted from the employer's negligence, and that the employer had engaged in intentional, willful, and wanton misconduct by ordering that a highly explosive mixture be combined in a pipe on which the defendant was welding. On appeal, this Court affirmed the trial court's order dismissing one count of the plaintiff's complaint for failure to state a claim upon which relief can be granted under Rule 1-012(B)(6), and reversed the trial court's order denying the defendant's motion to dismiss the remaining counts. Maestas noted that Sanford distinguished between intentionally ordered acts and intentional injuries, and that an "employer must intend to injure an employee before he can be held liable outside the Act." Maestas, 110 N.M. at 612, 798 P.2d at 213. Maestas also held that the employer's knowledge that an employee was engaged in performing work that was inherently dangerous does not, in itself, constitute a basis for the initiation of a tort action outside of the Workers' Compensation Act. Id.
Professor Larson, a leading authority in this area of the law, in discussing the requisite showing which must be made in order to permit an injured worker to overcome the exclusivity provision of a worker's compensation statute, notes that "the almost unanimous rule" followed by courts which have addressed this issue is that the intent required to be shown involves a conscious and deliberate intent to injure. Larson, supra, § 68.13. Professor Larson observes:
Since the legal justification for the common-law action is the nonaccidental character of the injury * * *, the common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury.
Id. (footnotes omitted).
Both Plaintiff and Amicus argue that this Court should adopt a different interpretation of Section 52-1-9 than the "almost unanimous rule" discussed by Professor Larson. They also contend that this Court's decisions in Maestas, Gallegos, and Sanford are distinguishable from the facts of the present case because, among other things, Plaintiff here alleged that Johnson *765 misrepresented the nature of the danger to him. Both Plaintiff and Amicus also argue that Johnson's reliance upon the exclusivity provision of Section 52-1-9 contravenes public policies that underlie legislative and judicial decisions distinguishing between workers' compensation coverage and common-law causes of action for intentional torts.
To support their argument for a different interpretation of Section 52-1-9, Plaintiff and Amicus rely on language contained in California First Bank. They argue that our Supreme Court recognized that commission of an intentional wrong under our tort law does not require proof of a malicious intent to cause harm, and that "the term `intent' also denotes `[situations where] the actor believes that the consequences are substantially certain to result from [the action taken].'" Id., 111 N.M. at 73 n. 6, 801 P.2d at 655 n. 6.
California First Bank did not involve the exclusivity provision of the Workers' Compensation Act, and did not purport to construe the statute or legislative intent leading to the enactment of Section 52-1-9. Instead, our Supreme Court focused on the issue of whether the plaintiff's complaint stated a cause of action for wrongful death and personal injury against a county based on vicarious liability for negligence of deputy sheriffs in failing to enforce liquor control laws and drunk driving statutes. In view of our Supreme Court's prior statements interpreting the exclusivity provision of our Workers' Compensation Act, we do not think the Court in California First Bank intended to modify its prior decisions which substantially limit exceptions to the exclusivity provision contained in Section 52-1-9. See also Pedrazza v. Sid Fleming Contractor, Inc., 94 N.M. 59, 607 P.2d 597 (1980); Dickson, 98 N.M. at 481, 650 P.2d at 3; Mountain States Tel. & Tel. Co., 91 N.M. at 791, 581 P.2d at 1286; Briggs v. Pymm Thermometer Corp., 147 A.D.2d 433, 537 N.Y.S.2d 553, 556 (1989); see generally Wanda Ellen Wakefield, Annotation, Employer's Tort Liability to Worker for Concealing Workplace Hazard or Nature or Extent of Injury, 9 A.L.R. 4th 778, § 3 (1981).
Plaintiff and Amicus also urge this Court to follow the rationale adopted by the Michigan Supreme Court in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986), when it approved the substantial certainty test. See also Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985). We find these arguments inconsistent with the plain language of Section 52-1-9, and the prior interpretation of the statute in Pedrazza and Williams. In Pedrazza our Supreme Court observed:
It is important to note the exclusive nature and operation of workmen's compensation. If an employer and employee are covered by the Act, all their rights and remedies are defined exclusively by the Act. § 52-1-9, N.M.S.A. 1978. As between the employer and the employee, all other common law and statutory actions are barred by the Act.
Id., 94 N.M. at 61, 607 P.2d at 599.
The reasoning of the Michigan Court in Beauchamp is inconsistent with the language of Section 52-1-9 and prior decisions of both our Supreme Court and this Court. Moreover, following the decision in Beauchamp, the Michigan Legislature amended its statute so as to legislatively reject the "substantial-certainty standard" recognized by the Illinois Court. See Copass v. Illinois Power Co., 211 Ill. App. 3d 205, 155 Ill. Dec. 600, 604-05, 569 N.E.2d 1211, 1215-16 (1991) (holding that the modern view respecting actionable intentional misconduct by the employer is that it must be alleged and proved that the employer acted deliberately with the specific intent to injure the employee).
Plaintiff also argues that since the allegations of his complaint alleged that Johnson engaged in fraudulent conduct, these acts rendered its conduct so egregious that it knew the injury that resulted was substantially certain to occur. Plaintiff reasons that his allegations of fraud distinguish this case from factual situations existing in earlier decisions of both our Supreme Court and this Court, and necessitate an expanded interpretation of the common-law exception to our exclusivity *766 statute. We think the answer to this argument is governed by the plain language of Section 52-1-9. The words "accidentally sustained," as used in Section 52-1-9, refer to injury or death arising from an unintended or unexpected event. Cf. Aranbula v. Banner Min. Co., 49 N.M. 253, 161 P.2d 867 (1945); Bufalino v. Safeway Stores, Inc., 98 N.M. 560, 650 P.2d 844 (Ct.App. 1982).
Additionally, the inquiry is not whether the employer had an intent to deceive or misrepresent facts, see § 52-1-9 (all injuries "accidentally" sustained are subject to the exclusivity provision of the Act), but rather whether the employer had an intent to injure the worker. An injury may unintentionally result even though an employer set the stage for the injury by deceiving or misrepresenting facts to the worker.
The majority of jurisdictions that have considered the question appear to agree that a mere showing of misrepresentation or deceit is insufficient to defeat the exclusivity provisions of their respective worker's compensation statutes. See generally Larson, supra, § 68.32(a). Instead, the intent issue should involve two steps. First, did the employer intend to commit the alleged act? Second, do the circumstances support a reasonable inference that the employer directly intended to harm the worker? The latter question involves the "true intent" requirement discussed above. Under this analysis, fraudulent misrepresentation, like any other act by the employer, may or may not remove an action from the exclusivity provision of the Act.
Applying this two-step analysis to the complaint, we accept as true Plaintiff's allegation that Johnson falsely informed him on the day of the injury that the tank had been drained and that he was ordered to jerk the pipes out before they had been disconnected in order to speed up the removal operation.
Accepting these allegations as true, Plaintiff has satisfied the first prong of the test. We therefore look to Plaintiff's description of the incident to see whether it was an "accident" or whether it may be characterized as a deliberate consequence of Johnson's behavior. The complaint states that Plaintiff picked up a pipe with the trackhoe and the pipe "flew up, hit the trackhoe and sprayed a gasoline-benzene liquid all over [Plaintiff]." Based on this description of how Plaintiff was injured, we do not believe that it is reasonable to infer that Johnson truly intended this series of events to occur. Therefore, even if we assume as true Plaintiff's allegation that Johnson's conduct fraudulently misrepresented the hazard to Plaintiff, the facts do not show that Johnson's conduct was equivalent to a "left jab to the chin." See Sanford, 92 N.M. at 748, 594 P.2d at 1204; Larson, supra, §§ 68.13 to 68.15, at 13-10 to 13-68.
Plaintiff and Amicus argue that public policy demands a broader interpretation of Section 52-1-9 than adopted by the trilogy of New Mexico cases discussed earlier in this opinion. They urge that interpreting the exclusivity provision to allow tort actions only where the employer intended to injure the worker discourages safety, one of the basic objectives of the modern workers' compensation program. Plaintiff and Amicus claim that subjecting an employer to tort actions where a worker is sent to perform work that involves almost certain injury or even death would encourage safer work practices.
We do not doubt that exposure to tort actions does in some instances provide a deterrent to unsafe practices. That argument, however, does not, in our view, require abandonment of the long-established goals of exclusiveness: to maintain the balance of sacrifices between employer and worker in the substitution of no-fault liability for tort liability, Dickson, 98 N.M. at 480, 650 P.2d at 2, and, second, to minimize litigation, even litigation of undoubted merit. Larson, supra, § 68.15, at 13-65.
As Professor Larson notes, there is a fallacy in importing tort concepts into workers' compensation law. "Exclusiveness is a compensation law question, not a tort law question. It is based on compensation policy indeed, on one of the most fundamental components of that policy." Id.
*767 Opening the doors to the infusion of tort concepts may undermine the very goals prescribed by our legislature for workers' compensation proceedings. Moreover, we cannot ignore the efforts of the legislature in the last six years to find ways to preserve the compensation system. In the face of that effort, we think Plaintiff's arguments that this Court should authorize the introduction of tort law concepts is at odds with legislative policy underlying our Act, and is contrary to clear Supreme Court precedent.
Any modification or departure from the language of the exclusivity statute rests with the legislature and not the courts. See Williams, 104 N.M. at 294, 720 P.2d at 1235 (wisdom of making changes in workers' compensation statutes, or rights thereunder, rests with legislature); Irvine v. St. Joseph Hosp., Inc., 102 N.M. 572, 576, 698 P.2d 442, 446 (Ct.App. 1984) (legislative policy is a matter for the legislature, not the courts); Varos v. Union Oil Co., 101 N.M. 713, 715, 688 P.2d 31, 33 (Ct.App. 1984) (modification of Workers' Compensation Act requires legislative therapy, not judicial surgery); Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615, 617 (1985) (allegation of fraud, failure to provide safe work place, and violation of safety statutes does not constitute intentional tort for purposes of exclusivity provision).
Absent an allegation in the complaint asserting that the injury sustained by Plaintiff was intentionally inflicted by Johnson, we think the language of Section 52-1-9, and the exclusivity provision of our Workers' Compensation Act, is determinative of this issue.
An employee seeking to impose liability upon an employer outside the ambit of Section 52-1-9 must plead and prove an actual intent to injure the employee on the part of the employer. See Gallegos, 95 N.M. at 554, 624 P.2d at 63; see also Phifer v. Union Carbide Corp., 492 F. Supp. 483, 485 (E.D.Ark. 1980) (to avoid exclusivity provision of statute, plaintiff required to allege and prove a deliberate intent to injure); Copass, 155 Ill.Dec. at 604-06, 569 N.E.2d at 1215-17 (in order to state a claim of employer complicity in a co-employee's intentional tort, the allegations must indicate that the employer "`committed, commanded or expressly authorized' the intentional tort.") Quoting Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 151 Ill. Dec. 560, 565, 564 N.E.2d 1222, 1227 (1990)).
CONCLUSION
The order of the district court is reversed and the cause is remanded for entry of an amended order dismissing Count I of the amended complaint.
IT IS SO ORDERED.
BIVINS and CHAVEZ, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1329081/
|
498 S.E.2d 836 (1998)
In the Matter of Casey MALONE, Juvenile.
No. COA97-1003.
Court of Appeals of North Carolina.
April 30, 1998.
*837 Daniel Shatz, Durham, for respondent-appellant.
Durham County Attorney by Deputy County Attorney Thomas W. Jordan, Jr., Durham, for petitioner-appellees Durham County Department of Social Services, Guardian Ad Litem Meredith Shuford, and Judy Malone.
McGEE, Judge.
Casey Malone was born 22 November 1991 to Judy and Raymond Malone. On 17 March 1995, Judy and Raymond were divorced in Florida where the family had been living. Judy Malone had custody of Casey as set forth in the Malones' separation agreement which was incorporated into their Florida divorce judgment. On or about 1 April 1996, Judy Malone relocated to Durham, North Carolina and established a residence there with Casey.
On 1 May 1996, a report was made to the Durham County Department of Social Services (DSS) alleging that Casey had been sexually abused by her father while in Florida. Pamelia Pinchback, an investigator with Child Protective Services, was assigned to the case. After contacting the Florida Department of Human Rehabilitative Services (HRS) for assistance in Casey's case, Pinchback filed a juvenile petition on 14 May 1996 alleging Casey had been sexually abused. The petition requested that the trial court conduct a hearing and issue a nonsecure custody order granting immediate temporary custody of the child to (DSS). The court granted custody of Casey to DSS on 14 May 1996 and placed her in the care of her mother, Judy Malone. The trial court issued additional orders for continued custody on 16 May, 31 May, 5 June, 11 June, and 24 June 1996. DSS continued to have custody of Casey pending the adjudication and disposition of the petition.
In an order entered 6 December 1996, the trial court made findings of fact that respondent filed a motion to dismiss on 19 July 1996 asserting that there existed an outstanding action in Collier County, Florida concerning the custody and visitation of Casey Malone. The motion requested that in the alternative, the trial court transfer the matter to the Florida court. In a hearing held 31 July 1996 and in an order entered 13 September 1996, the trial court found that Raymond Malone had made a general appearance. The trial court also concluded it had jurisdiction to hear the matter under the North Carolina Juvenile Code, that under N.C.Gen. Stat. § 50A-3(a)(3) the court had emergency jurisdiction, and that the court retained subject matter jurisdiction.
On 1 October 1996, respondent filed a renewed motion to dismiss for lack of jurisdiction. On 10 October 1996, a second hearing was held in which the court reasserted the jurisdiction of the North Carolina court and found that
[t]here is no provision in the Parental Kidnapping Prevention Act [PKPA] which precludes a child protection agency from filing a juvenile petition to protect a child from neglect or abuse. There being no provision precluding a child protection agency from filing a petition alleging neglect and abuse, there is no conflict between the federal legislation and the North Carolina Juvenile Code.
A hearing on the merits of the juvenile petition was held on 23 October and 24 October 1996. In an order entered 6 December 1996, the trial court found, based upon the evidence, that Casey had shown to her mother, *838 other family members, and a day care operator, behaviors which included nightmares, twisting her hands and shaking her head in a ticking fashion, taking her clothes off and masturbating, trying to French kiss her dolls, and grabbing her mother's breasts.
The trial court found that Dr. Mary Baker Sinclair, an expert in clinical psychology, conducted a mental health evaluation of Casey. Through a series of meetings with Casey, Dr. Sinclair diagnosed that she suffered from post traumatic stress disorder. Dr. Sinclair testified that Casey identified her father, Raymond Malone, as the person who touched her private parts. The trial court also found that Dr. Laura Gutman conducted a medical examination of Casey which revealed an abnormal anal exam showing wide anal gaping as a result of penetrative anal trauma. Dr. Gutman confirmed anal sexual abuse of the child.
The trial court made findings of fact and conclusions of law that Casey Malone was a sexually abused child and that Raymond Malone sexually abused her. The trial court ordered that all visitation and contact between Raymond Malone and Casey be suspended pending recommendation by the child's treating therapist that contact be resumed. It is from this order that Raymond Malone appeals. Respondent has not appealed from the trial court's earlier nonsecure custody orders.
Respondent Raymond Malone argues that the trial court erred by: (1) exercising subject matter jurisdiction over the custody and visitation of Casey Malone by adjudicating the petition in this case; (2) failing to contact the Florida court exercising jurisdiction over custody of the child to determine the appropriate forum to litigate the merits of the petition; and (3) in exercising personal jurisdiction over respondent.
I.
Respondent first argues that the trial court erred in exercising subject matter jurisdiction over the custody and visitation of Casey Malone. At the time of the filing of the petition in Durham, North Carolina respondent alleges an action had previously been filed in Collier County, Florida concerning the custody and visitation of Casey Malone. In orders resulting from hearings held on 31 July 1996 and 10 October 1996, the North Carolina trial court stated it exercised jurisdiction over the custody and visitation of Casey through the emergency provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), as set forth in Chapter 50A of the North Carolina General Statutes, and the North Carolina Juvenile Code, N.C.Gen.Stat. § 7A-516-744 (Cum.Supp.1997). In the 10 October 1996 order, the trial court also found that the PKPA did not preclude DSS from filing a juvenile petition to protect the child from abuse.
The UCCJA was designed to reduce interstate jurisdictional disputes in custody determinations and to prevent forum shopping by parents and other litigants dissatisfied with the results of custody cases. N.C.Gen.Stat. § 50A-1 (1989). "The UCCJA expressly includes within its jurisdictional parameters proceedings in abuse, dependency, and/or neglect." In re Van Kooten, 126 N.C.App. 764, 768, 487 S.E.2d 160, 162-63 (1997), appeal dismissed, 347 N.C. 576, ___ S.E.2d ___ (1998). Thus, the courts of this state must meet the requirements of the UCCJA in order to have jurisdiction to adjudicate abuse petitions. Van Kooten, 126 N.C. at 768, 487 S.E.2d at 163. This is true even in light of N.C.Gen.Stat. § 7A-523(a) (1995) which states that the district courts of North Carolina have "exclusive, original jurisdiction over any case involving a juvenile who is alleged to be ... abused, neglected, or dependent." We recognize, as petitioner argues, that In Matter of Arends, 88 N.C.App. 550, 556, 364 S.E.2d 169, 172 (1988) appears to suggest that the UCCJA does not apply in relation to Chapter 7A of the N.C. General Statutes, being the North Carolina Juvenile Code. Arends, however, addresses a different factual and procedural situation. In accordance with our Court in Van Kooten, we also do not read Arends "as holding that the UCCJA does not apply in the context of the Juvenile Code." Van Kooten, 126 N.C.App. at 768, 487 S.E.2d at 163 (footnote 1).
The PKPA, 28 U.S.C.A. § 1738A (1994) was designed to remedy inconsistent interpretation *839 of the UCCJA by different state courts and to create a uniform standard. Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir.1987). Our Court has held:
Although the PKPA does not include within its definition section any reference to neglect, abuse, or dependency proceedings, 28 U.S.C.A. § 1738A(b), "there is nothing to indicate that it was intended to be limited solely to custody disputes between parents." In re Appeal in Pima County Juvenile Action No. J-78632, [147 Ariz. 527] 711 P.2d 1200, 1206 (Ariz.[App. ]1985), approved in part, vacated in part, [147 Ariz. 584]712 P.2d 431 (Ariz.1986). Furthermore, "[t]he PKPA's coverage of custody proceedings is exclusive [in providing that] `every State shall enforce ... and shall not modify ... any child custody determination made ... by a court of another State.'" State in Interest of D.S.K., 792 P.2d 118, 129 (Utah Ct.App. 1990). Accordingly, "the PKPA is applicable to all interstate custody proceedings affecting a prior custody award by a different State, including [abuse,] neglect and dependency proceedings." See id. at 130[.]
Van Kooten, 126 N.C.App. at 769, 487 S.E.2d at 163 (emphasis added).
The trial court has jurisdiction to hear child custody issues if one of the four factors outlined in N.C.Gen.Stat. § 50A-3(a) (1989) is met:
(1) This State (i) is the home state of the child at the time of commencement of the proceeding ...
(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child's parents ... have a significant connection with this State, and (ii) there is available in this State substantial evidence relevant to the child's present or future care ...
(3) The child is physically present in this State and ... (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse ...
(4)(i) It appears that no other state would have jurisdiction ... or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
The trial court in this case asserted jurisdiction under N.C.G.S. § 50A-3(a)(3)(ii), the emergency jurisdiction provision. We therefore need not address whether any of the other factors are met.
Our Court has held that "[t]he exercise of emergency jurisdiction ... confers authority to enter temporary protective orders only ... pending application to a state having previously rendered a child custody decree ... and continuing to have jurisdiction[.]" Van Kooten, 126 N.C.App. at 769, 487 S.E.2d at 163 (citations omitted) (emphasis added). In this case, Casey Malone was present in Durham County at the time the petition was filed alleging that she had been sexually abused.
Within the context of Chapter 7A, the trial court thus had subject matter jurisdiction to adjudicate the [child] as abused ... and to enter an appropriate disposition.
Whether the trial court had subject matter jurisdiction to adjudicate the [child] as abused ... within the meaning of the UCCJA and the PKPA is a separate question.
Id. at 770, 487 S.E.2d at 164. The record supports the trial court's determination that North Carolina had emergency jurisdiction. Both the physical and psychological evidence showed that Casey was sexually abused. In addition, Casey herself named respondent as the person who abused her. The trial court, therefore, had authority under the emergency jurisdiction provision of the UCCJA and N.C.G.S. § 50A-3(a)(3)(ii) to enter a temporary nonsecure custody order. See Van Kooten, 126 N.C.App. at 770-71, 487 S.E.2d at 164. The trial court had subject matter jurisdiction only to enter a temporary custody order.
II.
Respondent's second argument is related to his first argument. Respondent argues the trial court erred by failing to contact the Florida court that had previously exercised *840 jurisdiction over the custody of the child. We agree.
As discussed above, at the time the petition was filed in Durham County there was already a custody action filed in a Florida court. In addition, the Florida court had original jurisdiction over the custody of the child since it had issued the divorce decree, which incorporated the Malones' separation agreement giving custody of Casey to her mother. While the trial court in this state did have emergency jurisdiction to enter the temporary nonsecure custody order, at the point in which the order was entered "the trial court was required to defer any further proceedings in the matter pending a response from [Florida] as to whether that state was willing to assume jurisdiction to resolve the issues of abuse[.]" Id. at 771, 487 S.E.2d at 164.
N.C.Gen.Stat. § 50A-6(b) (1989) states that before hearing a petition for child custody, the court shall check the pleadings and other available resources to determine if any such proceedings are pending in another state. "If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state." Id.
Furthermore, N.C.Gen.Stat. § 50A-6(c) (1989) mandates that when a trial court hearing a child custody matter is informed that a proceeding concerning custody of the child was pending in another state before the trial court assumed jurisdiction, it "shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum...." Id. This statute directs that at the earliest stage possible, the trial court should make efforts to determine if a custody action is already pending in another state. Once a determination is made that a custody action is pending, the court must then contact the court of the other state as to details surrounding the case and whether or not that state will accept jurisdiction as to this most recent matter.
In this case, there is no evidence in the record that the trial court communicated with the Florida court. DSS argues that it contacted the Florida HRS as well as the Sheriff's Department in Collier County, Florida and received little, if any, assistance. In fact, DSS stated HRS even indicated that it had no jurisdiction over the child since she no longer lived in Florida. However, this is not sufficient contact under the mandate of our state statute that requires the trial court to directly contact the Florida court to determine if Florida is willing to exercise jurisdiction in this case. See N.C.G.S. § 50A-6(b) and (c). The fact that DSS made efforts to contact various Florida agencies does not meet the requirement of the statute. The trial court must make the contact with the Florida court.
If the [Florida court] is willing to exercise jurisdiction, the trial court must defer to the exercise of that jurisdiction and transfer this case to [Florida] for hearing. If [Florida] declines to exercise jurisdiction, the trial court may proceed with the exercise of jurisdiction and conduct a hearing on the merits of the petition and enter appropriate dispositional orders.
Van Kooten, 126 N.C.App. at 771, 487 S.E.2d at 164; see N.C.Gen.Stat. § 50A-3(a)(4) (1989).
We reverse and remand to the trial court for the trial court to directly contact the appropriate Florida court to determine if Florida is willing to assume jurisdiction to resolve the issue of the sexual abuse of Casey Malone. As a result of this decision we need not address respondent's remaining issue on appeal.
Reversed and remanded.
MARK D. MARTIN and SMITH, JJ., concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2600605/
|
186 P.3d 133 (2008)
Brenda SPERRY, Plaintiff-Appellant,
v.
Sherry FIELD, Defendant-Appellee.
No. 07CA0282.
Colorado Court of Appeals, Div. III.
May 1, 2008.
*134 Gradisar, Trechter, Ripperger, Roth & Croshal, Nicholas Gradisar, Pueblo, Colorado, for Plaintiff-Appellant.
Cain & Hayter, LLP, Craig W. Cain, Debra P. DeRee, Colorado Springs, Colorado, for Defendant-Appellee.
*135 Opinion by Judge LOEB.
In this action to recover damages for personal injuries, plaintiff, Brenda Sperry, appeals from the judgment against defendant, Sherry Field, in the amount of the jury verdict, costs, and postjudgment interest and from the order denying her motion for a modified judgment and for an award of postjudgment interest. We affirm.
I. Background
Sperry was injured in an automobile accident caused by Field on December 24, 1997. Sperry brought an action in October 1999 to recover damages for personal injuries resulting from Field's negligence. It is undisputed that her action accrued on the date of the accident. In her complaint, Sperry failed to request prejudgment interest. A jury returned a verdict in favor of Sperry and awarded her damages of approximately $390,000. Judgment was first entered upon the jury verdict on July 19, 2004, which included an award of prejudgment interest.
Field timely appealed the judgment on August 30, 2004, asserting several contentions concerning the admissibility of evidence, jury instructions, and prejudgment interest. A division of this court rejected Field's contentions and affirmed on all issues except the issue of prejudgment interest. Sperry v. Field, 2006 WL 1702530 (Colo.App. No. 04CA 1764, June 22, 2006) (not published pursuant to C.A.R. 35(f))(Sperry I). The division concluded the trial court erred by awarding Sperry prejudgment interest from the date of her offer of settlement. Id. Citing Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067 (1953), and Clark v. Buhring, 761 P.2d 266 (Colo.App.1988), the division further held that Sperry waived her right to any prejudgment interest because she failed to claim interest in her complaint. The division reversed only as to the prejudgment interest portion of the judgment.
Both parties petitioned the supreme court for a writ of certiorari. On November 13, 2006, the supreme court denied both petitions, and a mandate issued on November 20, 2006. The mandate stated, "This proceeding was presented to this Court on the record on appeal. In accordance with its announced opinion, the Court of Appeals hereby ORDERS: JUDGMENT AFFIRMED IN PART AND REVERSED IN PART."
Sperry then filed a motion with the trial court requesting entry of a modified judgment and an award of postjudgment interest. Sperry contended she was entitled to postjudgment interest calculated at the market-determined rate from the date of the accident to the date of satisfaction, compounded annually from the date the suit was filed. In her response, Field agreed that Sperry was entitled to postjudgment interest, but contended the interest should be calculated from the day the original judgment was entered, rather than the day of the accident.
The parties entered into an agreement under which Field and her insurer paid Sperry the undisputed sum of $435,363. The parties agreed this sum constituted the amount of the jury verdict, costs, and the undisputed interest from the date judgment was entered through December 15, 2006, the date of payment.
The trial court then denied Sperry's motion for postjudgment interest calculated from the date of the accident. Consistent with the parties' agreement, the court awarded Sperry postjudgment interest, calculated from the date judgment was entered, July 19, 2004, to the date of satisfaction, December 15, 2006. This appeal followed.
On appeal, the parties agree that, pursuant to the division's holding in Sperry I, Sperry was not entitled to prejudgment interest, because she waived her right to prejudgment interest when she failed to request it in her complaint. The parties also agree that, pursuant to section 13-21-101, C.R.S. 2007, Sperry was entitled to postjudgment interest calculated from the date the judgment was entered to the date of satisfaction at the market-determined rate. However, the parties disagree as to whether Sperry is also entitled to postjudgment interest calculated from the date her action accrued.
The sole issue on appeal is thus whether Sperry is entitled to postjudgment interest calculated from the date her action accrued to the date judgment was entered. We conclude she is not entitled to such interest.
*136 II. Postjudgment Interest
Section 13-21-101 provides, in pertinent part:
(1) In all actions brought to recover damages for personal injuries sustained by any person resulting from or occasioned by the tort of any other person . . . it is lawful for the plaintiff in the complaint to claim interest on the damages claimed from the date the action accrued. When such interest is so claimed, it is the duty of the court in entering judgment for the plaintiff in such action to add to the amount of damages assessed by the verdict of the jury . . . interest on such amount calculated at the rate of nine percent per annum on actions filed on or after July 1, 1975 . . . and calculated from the date such suit was filed to the date of satisfying the judgment and to include the same in said judgment as a part thereof. On actions filed on or after July 1, 1979, the calculation shall include compounding of interest annually from the date such suit was filed. On and after January 1, 1983, if a judgment for money in an action brought to recover damages for personal injuries is appealed by the judgment debtor, interest, whether prejudgment or postjudgment, shall be calculated on such sum at the rate set forth in subsections (3) and (4) of this section from the date the action accrued and shall include compounding of interest annually from the date such suit was filed. . . .
[(2)](b) If a judgment for money in an action to recover damages for personal injuries is appealed by a judgment debtor and the judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, interest, as set out in subsections (3) and (4) of this section, shall be payable from the date the action accrued until the judgment is satisfied. This interest shall be payable on the amount of the final judgment.
(Emphasis added.)
In Rodriguez v. Schutt, 914 P.2d 921, 930 (Colo.1996), the supreme court held that "the provision in section 13-21-101 relating to prejudgment interest on personal injury money judgments which the judgment debtor appeals violates equal protection." The court concluded that, at the time prejudgment interest is awarded, the distinction in section 13-21-101 made between classes of judgment creditors and judgment debtors has no rational basis in fact, and thus violates equal protection. See id. at 927. The court also concluded section 13-21-101, as applied to postjudgment interest, does not violate equal protection. Id. at 929.
To cure the unconstitutional infirmity with respect to prejudgment interest in section 13-21-101, the supreme court concluded that the final sentence of section 13-21-101(1) must be read and applied as follows:
On and after January 1, 1983, if a judgment for money in an action brought to recover damages for personal injuries is appealed by the judgment debtor, POSTJUDGMENT interest shall be calculated on such sum at the rate set forth in subsections (3) and (4) of this section from the date the action accrued and shall include compounding of interest annually from the date such suit was filed.
Id. Thus, as read and applied by the court in Rodriguez, in cases where interest is properly claimed by a plaintiff, section 13-21-101 provides for prejudgment interest on personal injury claims accruing at nine percent, regardless of whether the judgment debtor appeals. The court's ruling did not affect postjudgment interest in such cases, which continues to accrue at nine percent on judgments which the judgment debtor does not appeal, and at the market-determined rate on judgments which the judgment debtor does appeal. See id.
Sperry contends the trial court here erred by denying her claim for postjudgment interest calculated from the date of the accident to the date of entry of judgment. Specifically, she contends that, under the plain language of section 13-21-101(1), as read and applied by the court in Rodriguez, and section 13-21-101(2)(b), she is entitled to postjudgment interest calculated from the date her action accrued to the date of satisfaction. Field, by contrast, contends that Sperry's contention is merely a backhanded way of *137 claiming prejudgment interest to which she is not entitled, and that, under a proper interpretation of section 13-21-101, Sperry is only entitled to postjudgment interest calculated from the date judgment was entered in July 2004. We agree with Field.
A. Standard of Review
Statutory interpretation is a question of law subject to de novo review. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006).
The right to interest on personal injury money judgments in Colorado is in derogation of the common law, and we, therefore, strictly construe section 13-21-101. Rodriguez, 914 P.2d at 925; Clark, 127 Colo. at 31-32, 252 P.2d at 1070. When construing a statute, a court's primary purpose is to effectuate the intent of the General Assembly. Francis ex rel. Goodridge v. Dahl, 107 P.3d 1171, 1176 (Colo.App.2005); see Rodriguez, 914 P.2d at 925. "To do so, we must read and consider the statute `as a whole in order to give consistent, harmonious, and sensible effect to all of its parts.'" Rodriguez, 914 P.2d at 925 (quoting Thurman v. Tafoya, 895 P.2d 1050, 1055 (Colo.1995)). "We will give effect to the plain meaning of the statute's words and phrases, unless the result is absurd or unconstitutional." Id.
If the statutory language unambiguously sets forth the legislative purpose, we need not apply additional rules of statutory construction to determine the statute's meaning. People v. Cooper, 27 P.3d 348, 354 (Colo.2001); Rodriguez, 914 P.2d at 925. If, however, the statutory language lends itself to alternative constructions and its intended scope is ambiguous or unclear, we then look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme. Suncor Energy (USA), Inc. v. Aspen Petroleum Prods., Inc., 178 P.3d 1263, 1266 (Colo.App.2007); see Rodriguez, 914 P.2d at 925.
B. Ambiguity in Section 13-21-101
The issue we must resolve is when postjudgment interest begins to accrue on a personal injury judgment for money damages pursuant to section 13-21-101, in a case where the plaintiff is not entitled to prejudgment interest because it was not requested in the complaint. In our view, the plain language of section 13-21-101 is ambiguous and contradictory with respect to the date postjudgment interest begins to accrue.
The primary source of ambiguity, as applied to the facts of this case, is the assumption in the language of section 13-21-101 concerning postjudgment interest that a plaintiff properly requested interest in the complaint. Indeed, section 13-21-101 is silent as to the applicability of postjudgment interest where, as here, the plaintiff failed to request prejudgment interest in the complaint. Thus, it is not clear from the statute when postjudgment interest on a personal injury judgment for money begins to accrue where the plaintiff waives the right to prejudgment interest.
Adding further to the ambiguity of section 13-21-101 with respect to the date from which postjudgment interest accrues is the supreme court's revision in Rodriguez of the final sentence in section 13-21-101(1). Although the General Assembly has not modified or amended section 13-21-101 since Rodriguez was decided in 1996, as read and applied by the supreme court, section 13-21-101(1) now reads as follows:
[I]f a judgment for money in an action brought to recover damages for personal injuries is appealed by the judgment debtor, POSTJUDGMENT interest shall be calculated . . . from the date the action accrued. . . .
See § 13-21-101 ed. note, C.R.S.2007.
In addition, section 13-21-101(2), which addresses interest in personal injury cases where the judgment debtor appeals, provides the "date the action accrued" as the accrual date for "interest" where a judgment debtor appeals. In contrast to the general statutory interest provision governing appeals by judgment debtors, section 13-21-101 does not expressly use the date judgment was entered for the accrual date under any situation. Compare § 5-12-106(1)(a), C.R.S.2007 ("interest . . . shall be payable from the date of entry of judgment"), and § 5-12-106(1)(b) *138 ("interest . . . shall be payable from the date a judgment was first entered"), with § 13-21-101(2)(b) ("interest . . . shall be payable from the date the action accrued").
However, Black's Law Dictionary 1204 (8th ed.2004) defines the prefix "post-" as meaning "after." Thus, under the plain meaning of the term "postjudgment interest," postjudgment interest cannot begin accruing prior to the date of judgment, such as the date the action accrued. We have found no authority, Colorado or otherwise, and Sperry cites to none, where the term "postjudgment interest" has been interpreted to mean something other than interest accruing after a judgment is entered.
Accordingly, in reading section 13-21-101(1) as applied in Rodriguez, we perceive a contradiction between the plain meaning of the term "postjudgment interest" and language in that section which seems to provide that the date of accrual for "postjudgment interest" is the date the action accrued. The final sentence of section 13-21-101(1), as read and applied by Rodriguez, thus lends itself to two alternative meanings: (1) the term "postjudgment interest" carries its ordinary and plain meaning, and relates specifically to the language providing for a market-determined rate of interest, but not to the date of accrual as set forth in that sentence; or (2) the term "postjudgment interest" does not carry its ordinary meaning, and is defined by both the market-determined rate and the date of accrual language.
C. Interpretation of "Postjudgment Interest"
Because the final sentence of section 13-21-101(1) is susceptible of two alternative meanings, we look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme to determine the legislative purpose behind the sentence. See Rodriguez, 914 P.2d at 925; Suncor, 178 P.3d at 1266.
The General Assembly added the final sentence of section 13-21-101(1) by amendment in 1982. Ch. 39, sec. 3, 1982 Colo. Sess. Laws 227. Based on the title of the amendment, its legislative history, and its plain language, the court in Rodriguez determined the purposes of the amendment were to "eliminate the financial incentive (or disincentive) to appeal and to ensure that the judgment creditor whose satisfaction is delayed due to an unsuccessful appeal receives the time value of his or her money judgment." Rodriguez, 914 P.2d at 929.
Under Sperry's construction of section 13-21-101, a personal injury plaintiff is entitled to postjudgment interest calculated from the date the action accrued once a judgment debtor appeals, whether or not the plaintiff is entitled to prejudgment interest. We conclude this construction leads to illogical and absurd results which are inconsistent with the purposes of the statute and the plain meaning of "postjudgment interest." In cases where a plaintiff requests prejudgment interest and there is no appeal, it is undisputed that the plaintiff receives interest calculated at nine percent from the date the action accrued until satisfaction. Further, where the plaintiff is entitled to prejudgment interest, such interest is capitalized into the judgment and actually becomes part of the judgment itself. See Francis, 107 P.3d at 1176.
However, under the logical extension of Sperry's construction of the statute, when appealed, the judgment would then begin to earn an additional layer of "postjudgment" interest as of the date the action accrued. A judgment would thus earn "postjudgment interest" which, in essence, would be "postjudgment interest" upon prejudgment interest, yet earned simultaneously to prejudgment interest prior to judgment. As a consequence, for each day prior to the date judgment is entered, a plaintiff would earn a double award of interest, one at the prejudgment rate of nine percent, and another at the "postjudgment" market-determined rate. In our view, this result conflicts with the statutory purposes of the 1982 amendment because it amounts to a disincentive to appeal, and awards a judgment creditor more than the time value of his or her money judgment. See id. Further, in cases where the plaintiff is not entitled to prejudgment interest, as here, Sperry's construction would allow "postjudgment interest" to be calculated from a *139 date prior to the time that any judgment existed, again contrary to the purposes of the 1982 amendment. In either case, we conclude Sperry's construction of section 13-21-101 leads to an absurd result. See Frazier v. People, 90 P.3d 807, 811 (Colo. 2004) ("A statutory construction leading to an illogical or absurd result will not be followed."); AviComm, Inc. v. Colo. Pub. Utils. Comm'n, 955 P.2d 1023, 1031 (Colo. 1998)(the intention of the legislature will prevail over a literal interpretation of the statute that leads to an absurd result).
Rather, we perceive that the purposes of the 1982 amendment, as articulated by the court in Rodriguez, support the alternative construction of the amendment, which gives the term "postjudgment interest" its plain and ordinary meaning. Under this construction, the amendment only affects the rate at which interest is calculated when a judgment debtor appeals. Thus, a judgment creditor who requested prejudgment interest will receive the time value of his or her money judgment as if it were withheld from the day the action accrued, but nothing more. A judgment creditor who waived prejudgment interest would receive the time value of the judgment from the day judgment was entered. This construction is consistent with the amendment's purpose to eliminate a financial incentive or disincentive to appeal.
A construction of section 13-21-101 that calculates postjudgment interest according to the term's ordinary meaning is also supported by the history of Colorado's interest statutes and various amendments to those statutes. Before the predecessor to section 13-21-101 was enacted in 1911, see Ch. 114, sec. 1, § 6306, 1911 Colo. Sess. Laws 296, all judgment creditors, including personal injury judgment creditors, were entitled to postjudgment interest "on any judgment . . . from the day of entering up said judgment until satisfaction." See R.S. '08, sec. 2, § 3162, 1889 Colo. Sess. Laws 206 (now codified with amendments at § 5-12-102, C.R.S. 2007).
Beginning in 1911, and continuing until 1975, the prior versions of section 13-21-101 provided for prejudgment interest on personal injury damages at the legal rate from the date suit was filed to the date judgment was entered. In 1975, the General Assembly amended the statute to provide for interest at nine percent rather than the legal rate, calculated from the date the suit was filed to the date of satisfaction, rather than to the date of judgment. See Ch. 151, sec. 1, 1975 Colo. Sess. Laws 569. The 1975 amendment thus extended the applicability of the statute's interest provisions to include what is generally known as postjudgment interest.
In 1979, section 5-12-102 was amended to explicitly exclude cases where section 13-21-101 applied. Ch. 55, sec. 2, 1979 Colo. Sess. Laws 315. In the same act, section 13-21-101 was amended to allow plaintiffs in personal injury actions to claim prejudgment interest from the time the action accrued, and to have prejudgment interest compounded annually from the date the suit was filed. Id.
Thus, prior to the 1982 amendment to section 13-21-101, the statute was the exclusive authority for any type of interest on a personal injury judgment and, assuming a plaintiff claimed interest in the complaint, contemplated one continuum of interest on personal injury money judgments, calculated from the date the action accrued to the date of satisfaction, compounded annually from the date the suit was filed. The language of the statute made no distinction between prejudgment interest and postjudgment interest, nor between cases that were appealed or were not, and all interest was calculated at nine percent.
In 1982, the General Assembly amended section 13-21-101 with the purposes of eliminating financial incentives or disincentives to appeal and compensating judgment creditors for the time value of their judgments. See Rodriguez, 914 P.2d at 929. In the same act that amended section 13-21-101, the General Assembly also enacted section 5-12-106. Ch. 39, sec. 1, 1982 Colo. Sess. Laws 227. Sections 5-12-106 and 13-21-101, as amended, both require the recalculation of interest at a market-determined interest rate where the judgment debtor appeals. See id.
However, the 1982 amendment to section 13-21-101 differed from section 5-12-106 in *140 several respects. Significant here, interest is calculated at the market-determined rate under section 5-12-106 from the date of judgment until the date of satisfaction. § 5-12-106(1)(a)-(b), C.R.S.2007. By contrast, interest is calculated at the market-determined rate under the 1982 amendment to section 13-21-101 from the date the action accrued. § 13-21-101(1)-(2). The 1982 amendment introduced the terms "prejudgment" and "postjudgment" into section 13-21-101(1) for the first time, using those terms to make clear the General Assembly's intent that all interest, "whether prejudgment or postjudgment," should be calculated at a market-determined rate when a judgment debtor appeals. It was the "prejudgment interest" aspect of this provision that the supreme court found unconstitutional in Rodriguez.
Because the General Assembly intended that the market-determined rate should apply to all interest, "whether prejudgment or postjudgment," in our view, its use of the date the action accrued as the date on which all interest is calculated does not suggest the General Assembly intended to create a new type of postjudgment interest that, in essence, would award personal injury plaintiffs double interest for the time period between the date the action accrued and the date judgment is entered. Nor does it suggest that, in cases where the plaintiff is not entitled to prejudgment interest, the plaintiff should recover postjudgment interest from the date the action accrued. Rather, we conclude the use of the date the action accrued as the first date on which interest is calculated merely reflects the General Assembly's intention that section 13-21-101(1) should apply to all interest, "whether prejudgment or postjudgment," in those cases where the plaintiff properly claims interest in the complaint.
Moreover, when the supreme court in Rodriguez revised the 1982 amendment to section 13-21-101(1) to cure a constitutional defect as to prejudgment interest only, it was concerned merely with the issue of the applicable interest rate when a judgment debtor appeals, rather than the language "from the date the action accrued." Further, contrary to the situation here, Rodriguez involved a plaintiff who had requested and was entitled to prejudgment interest. Accordingly, contrary to Sperry's contention, we do not perceive that the court's revision of section 13-21-101(1) can be properly read to create a new type of postjudgment interest. See Rodriguez, 914 P.2d at 925 (section 13-21-101 to be strictly construed). In our view, the supreme court's revision of the last sentence in section 13-21-101(1), in cases where a plaintiff claims interest in the complaint, was not intended to apply to the language "from the date the action accrued," so as to authorize a new type of postjudgment interest that would reach back to the date an action accrues, thus awarding a judgment creditor double interest from that time until the entry of judgment. Similarly, in cases where, as here, prejudgment interest is not claimed and is thus waived, we discern no intent by the supreme court in Rodriguez to allow postjudgment interest from the date the action accrued (a date when no judgment even existed) rather than from the date the judgment itself was actually entered.
For the same reasons, we also reject Sperry's contention that section 13-21-101(2)(b) authorizes an award of postjudgment interest here from the date the action accrued. As with section 13-21-101(1), the language in section 13-21-101(2)(b) relating to date of accrual assumes that the plaintiff requested prejudgment interest in the complaint. Moreover, reading the two sections together, the clear purpose of section 13-21-101(2)(b) was simply to clarify that, where there is an appeal by the judgment debtor and the judgment is reversed or modified with a direction by the appellate court for the trial court to enter a new money judgment, it is the amount of that new and final money judgment on which interest is to be calculated.
Our resolution here is also consistent with C.A.R. 37, which provides:
If a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the trial court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, the mandate shall contain instructions with respect to allowance of interest.
*141 The mandate from Sperry I did not expressly direct the trial court to calculate interest from a date prior to the entry of judgment. The trial court, therefore, had no jurisdiction to award interest accruing before the date judgment was first entered in July 2004. See Pet Inc. v. Goldberg, 37 Colo. App. 257, 259, 547 P.2d 943, 944-45 (1975).
D. Conclusion
Strictly construing section 13-21-101, and looking to the legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme, see Rodriguez, 914 P.2d at 925; Suncor, 178 P.3d at 1266, we conclude that, under the circumstances here, where the plaintiff is not entitled to prejudgment interest and the judgment debtor appeals the judgment, the plaintiff is entitled to an award of postjudgment interest calculated from the date judgment was entered to the date of satisfaction. We thus reject Sperry's contention that she is entitled to postjudgment interest calculated from the date of her accident.
Accordingly, we conclude the trial court did not err in awarding Sperry postjudgment interest calculated from the date the judgment was entered to the date of satisfaction.
The order and judgment are affirmed.
Judge TAUBMAN and Judge HAWTHORNE concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1329614/
|
216 Ga. 390 (1960)
116 S.E.2d 207
BALDWIN
v.
GRIMES, SHERIFF.
20970.
Supreme Court of Georgia.
Submitted July 12, 1960.
Decided September 8, 1960.
Rehearing Denied September 21, 1960.
Chester E. Wallace, James R. Venable, for plaintiff in error.
Paul Webb, Solicitor-General, Eugene L. Tiller, Assistant Solicitor-General, contra.
DUCKWORTH, Chief Justice.
Where, in the trial of a habeas corpus case, it appears that the respondent is holding the petitioner in custody under an executive warrant based on an extradition proceeding, and the warrant is regular on its face, the burden is cast upon the petitioner to show some valid and sufficient reason why the warrant should not be executed, since there is a presumption that the Governor complied with the Constitution and law, and this presumption continues until the contrary appears. Blackwell v. Jennings, 128 Ga. 264 (57 S.E. 484); Broyles v. Mount, 197 Ga. 659 (30 S.E.2d 48); Mathews v. Foster, 209 Ga. 699(4) (75 S.E.2d 427). No evidence other than the warrant was introduced; hence the court did not err in remanding the custody of the petitioner to the respondent.
Judgment affirmed. All the Justices concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/4561282/
|
J-S39040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANCE SIMPSON :
:
Appellant : No. 2846 EDA 2019
Appeal from the Judgment of Sentence Entered September 4, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004545-2017
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 28, 2020
Lance Simpson (Simpson) appeals from the September 4, 2019
judgment of sentence imposed by the Court of Common Pleas of Delaware
County (trial court) following his convictions for Driving Under the Influence
(DUI) and Accidental Damage to Unattended Vehicle.1 Simpson challenges
the sufficiency of the evidence to support his conviction. After careful review,
we affirm.
I.
The trial court summarized the facts of this case as follows:
On April 14, 2017, Officer Begany was on patrol in the Drexel Hill
section of Upper Darby Township, Delaware County, Pennsylvania.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(c), 3745(a).
J-S39040-20
He was dispatched to the intersection of Burmont Road and
Woodland Avenue to address a traffic hazard caused by a stray
tire in the road way. Once on scene, Officer Begany learned from
a passerby a vehicle missing a wheel was operating in the vicinity.
...
Sergeant Kenny was also on patrol the night of April 14, 2017 and
he too was dispatched to 3614 Highland Avenue, Upper Darby to
investigate a hit and run accident. After meeting with the
homeowner at 3614 Highland, Sergeant Kenny followed what he
described as gouge marks in the roadway. The gouge marks lead
to the intersection of Woodland Avenue and Burmont Road. This
is the same intersection where Officer Begany located the castoff
tire.
Sergeant Kenny continued to follow the gouge marks from the
intersection of Woodland Avenue and Burmont Road to 2228
Steele Road. 2228 Steele Road is the home of Defendant
Simpson. At the time of his arrest, Defendant Simpson was a
uniformed police officer with the Upper Darby Township Police
Department, Delaware County, Pennsylvania. Sergeant Kenny
observed Defendant Simpson’s truck parked in the driveway of
2228 Steele with a missing tire. Sergeant Kenny confirmed there
was a clear path of gouge marks from 3614 Highland Avenue to
the intersection of Woodland Avenue and Burmont Road. The
gouge marks persisted on Burmont Road, crossed Township Line
Road, and continued on Dermond Road to Steele Road.
Officer William H. Sides is a twenty three (23) year veteran of the
Upper Darby Township Police Department and was also patrolling
the Drexel Hill section of the township on April 14, 2017. On that
night, Officer Sides responded to a radio call and reported to the
intersection of Burmont Road and Woodland Avenue. Officer
Begany was the first to respond and he located a tire in the
roadway by the time Officer Sides arrived. While on scene, Officer
Sides received at least two reports of a gray pickup truck missing
a tire but still traveling northbound on Burmont Road. Officer
Sides observed gouge marks and fluids on Burmont Road; he
followed these gouge marks on Burmont Road, to Dermond
Avenue, across Township Line Road, to 2228 Steele Road.
Officer Sides was aware that 2228 Steele was the home of his co-
worker, Defendant Simpson. When he approached 2228 Steele,
Officer Sides observed Defendant Simpson’s pickup truck in the
-2-
J-S39040-20
driveway with only three wheels and significant front end damage.
Officer Sides radioed Captain Panagoplos[] and requested they
meet at a nearby location. Officer Sides then met with Captain
Panagoplos, advised Captain Panagoplos of what he discovered
and turned the investigation over to Captain Panagoplos. . . .
Captain Panagoplos drove to 2228 Steele and was met by a
gentlemen who suggested Captain Panagoplos “make sure Lance
is okay.” Captain Panagoplos approached 2228 Steele and
observed the gray pickup truck in the driveway with heavy front
end damage on the driver’s side and a missing front tire.
At this point in the investigation, Captain Panagoplos was joined
by Officer Sides. Only the first floor lights of 2228 Steele were lit
and there were no other vehicles in the driveway. Captain
Panagoplos knocked loudly on the door of 2228 Steele Road for
several minutes and Defendant Simpson eventually appeared
from the rear of the property. Captain Panagoplos noticed
Defendant Simpson was staggering and unsteady on his feet.
When Captain Panagoplos approached Defendant Simpson,
Captain Panagoplos noticed an odor of alcohol on Defendant
Simpson’s breath. Captain Panagoplos also observed Defendant
Simpson to be lethargic and slurring his speech. . . .[]
At this juncture, Captain Panagoplos placed Defendant Simpson
under arrest as Captain Panagoplos determined Defendant
Simpson was intoxicated to such a degree that he was incapable
of safely operating a vehicle on the highways of the
Commonwealth. This decision to arrest was based on Captain
Panagoplos’s observations of Defendant Simpson as well as[,]
Defendant Simpson’s singular presence near the truck, the
proximity of the accident scene to 2228 Steele, the gouge marks
evidencing the likely route of the three wheeled vehicle, the
limited timeframe and the comments from Defendant Simpson’s
neighbor. . . .
On the morning of April 15, 2017, Captain Johnson was contacted
by the Upper Darby Township Superintendent of Police and
assigned the investigation focusing on his fellow officer, Defendant
Simpson. Among other things, Captain Johnson secured all
pertinent 911 calls from the evening of April 14, 2017, interviewed
the 911 operators, the Upper Darby Police officers involved and
witness Adam Stevenson. As the result of his investigation,
Captain Johnson determined on the night of April 14, 2017,
-3-
J-S39040-20
Defendant Simpson was drinking alcohol while attending a
retirement party held at a tavern in nearby Haverford Township,
Delaware County, Pennsylvania. Captain Johnson calculated there
was an approximate one (1) hour gap in time from when
Defendant Simpson left the tavern and the first documented 911
call.
The Commonwealth also presented two (2) private citizen
witnesses. Robert B. Elderton resides at 3614 Highland Avenue
which is located in the Drexel Hill section of Upper Darby
Township, Delaware County, Pennsylvania. On the night of April
14, 2017, Mr. Elderton parked his black Toyota Avalon along the
curb on the street in front of his home. Close to midnight, Mr.
Elderton heard a loud “bang” which roused him from his sleep.
Mr. Elderton went to a window facing onto Highland Avenue and
saw a gray pickup truck moving in the opposite direction of his
parked car. The front driver’s side wheel and/or rim assembly of
the gray pickup truck was actually “grinding a little bit of smoke”
but still capable of fleeing the scene. Mr. Elderton went outside,
inspected the damage to his vehicle and called 911. Upper Darby
Township police officers arrived on scene within ten (10) minutes.
The damage to the Toyota Avalon totaled in excess of $5,000.00.
Finally, the Commonwealth presented to the testimony of Adam
P. Stevenson. Mr. Stevenson resides at a corner property located
at 1224 Dermond Road, Haverford Township, Delaware County,
Pennsylvania. Mr. Stevenson and Defendant Simpson are
neighbors as Dermond Road and Steele Road intersect. On April
14, 2017, as Mr. Stevenson was lying in bed just before midnight,
he heard what he described as a “disabled vehicle . . . dragging
something” outside the bedroom window. As the vehicle
approached his house the noise grew louder, stopped and then
migrated towards the side of his home.
Mr. Stevenson arose from his bed and peered out the bedroom
window. He observed a pickup truck backing into the driveway of
the Simpson residence. Mr. Stevenson recognized the pickup
truck as the vehicle driven by Defendant Simpson. The vehicle
was screeching as it backed into the driveway and was missing a
tire. Mr. Stevenson eventually observed Defendant Simpson exit
the vehicle.
Mr. Stevenson approached Defendant Simpson in Defendant
Simpson’s driveway and inquired if he was injured. Defendant
-4-
J-S39040-20
Simpson appeared intoxicated to Mr. Stevenson as Defendant
Simpson was unsteady on his feet and there was a mild odor of
alcohol present. Mr. Stevenson advised Defendant Simpson the
pickup was likely a total loss. Mr. Stevenson offered to take
Defendant Simpson back to the scene of the accident, but
Defendant Simpson denied being involved in any automobile
accident.
Mr. Stevenson then accompanied Defendant Simpson to the
doorway of the Simpson home and Defendant Simpson entered.
While Mr. Stevenson was returning to his home, a police cruiser
advanced. The officer inquired who owned the damaged vehicle
and Mr. Stevenson advised it belonged to Defendant Simpson.
This first officer drove off. Mr. Stevenson began retrieving car
parts that were strewn in front of his home. Sometime later that
early morning, Mr. Stevenson was approached by a second
uniformed officer, and following questioning similar to that posed
by the first officer, he told the second officer the truck belonged
to Defendant Simpson. A few days after the incident, Mr.
Stevenson agreed to report to the Upper Darby Township Police
Headquarters, speak with Captain Thomas A. Johnson, Jr., and
provide a written statement.
Trial Court Opinion, 12/12/19, at 2-13 (citations omitted). Following a non-
jury trial, the trial court convicted Simpson of the above-mentioned charges
and sentenced him to 72 hours to 6 months’ incarceration for the count of DUI
and a consecutive 90 days’ probation for the count of Accidental Damage to
Unattended Vehicle. Simpson timely filed a notice of appeal and he and the
trial court have complied with Pa.R.A.P. 1925.
II.
Simpson raises one issue on appeal: whether the evidence was
sufficient to establish beyond a reasonable doubt that he was the driver of the
-5-
J-S39040-20
gray truck on the night in question.2 He contends that the Commonwealth did
not present any direct evidence that he was the only individual in the gray
truck during the accident or that he was the person who drove the truck into
Mr. Elderton’s vehicle and to his own home thereafter. Thus, he argues that
the evidence was insufficient to establish that he committed DUI and
Accidental Damage to Unattended Vehicle.3
____________________________________________
2 The Commonwealth argues that Simpson’s challenge goes to the weight of
the evidence, not the sufficiency of the evidence, and that he has waived his
weight claim by failing to raise it in the trial court at sentencing or through a
post-sentence motion. A challenge to the weight of the evidence must be
addressed in the first instance by the trial court, and the trial court may grant
a new trial if it determines that “notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.” Commonwealth v. Widmer, 744 A.2d
745, 752 (Pa. 2000) (quotations omitted). This court reviews the trial court’s
decision for an abuse of discretion. Id. In contrast, a challenge to the
sufficiency of the evidence is a question of law that we review de novo. Id.
at 751. “Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.” Id. (citation omitted,
emphasis added). A claim that the Commonwealth failed to establish the
identity of the perpetrator of a crime is a challenge to the sufficiency of the
evidence. See, e.g., Commonwealth v. Jones, 954 A.2d 1194 (Pa. Super.
2008). Thus, we decline to find waiver.
3 Our standard of review is well-settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [this] test, we may not weigh the
evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
-6-
J-S39040-20
To sustain a conviction for DUI, the Commonwealth must establish
beyond a reasonable doubt that the accused drove or was in actual physical
control of a motor vehicle while intoxicated; it is not sufficient to establish that
the accused was merely sitting inside a vehicle while intoxicated. 75 Pa.C.S.
§ 3802(c); see Commonwealth v. Brotherson, 888 A.2d 901, 904-05 (Pa.
Super. 2005) (holding that actual physical control of vehicle can be established
by circumstantial evidence even when there are no eyewitnesses to the
defendant’s driving). Similarly, to sustain a conviction for Accidental Damage
to Unattended Vehicle, the Commonwealth must establish that the “driver” of
the vehicle involved in the accident failed to immediately stop and provide his
or her name, address and insurance information to the driver or operator of
the other vehicle. 75 Pa.C.S. § 3745(a). Here, the Commonwealth bore the
____________________________________________
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012) (citation
omitted).
-7-
J-S39040-20
burden of establishing that Simpson was intoxicated and driving the gray truck
at the time it hit Mr. Elderton’s vehicle.
While “[e]vidence of identification need not be positive and certain to
sustain a conviction,” there must nonetheless be sufficient evidence to
establish beyond a reasonable doubt that the defendant was the perpetrator
of the crime. Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011)
(en banc). In evaluating the sufficiency of the evidence to support an
identification,
the court should consider the opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of [his or her] prior description of the
criminal, the level of certainty demonstrated at the confrontation,
and the time between the crime and the confrontation. The
opportunity of the witness to view the actor at the time of the
crime is the key factor in the totality of the circumstances analysis.
Com. v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014) (citation omitted).
When evaluating the credibility of a witness’s identification of the perpetrator,
the fact-finder is entitled to believe all, part or none of the evidence presented.
Lopez, supra. As with any other element of a crime, circumstantial evidence
may be sufficient to establish the identity of a perpetrator. Id.
Here, the Commonwealth presented sufficient circumstantial evidence
that Simpson was the driver of the gray truck even though none of the
eyewitnesses observed Simpson driving while the truck was in motion. There
is no dispute that Simpson was the registered owner of the vehicle. Through
his investigation, Captain Johnson discovered that Simpson had been drinking
-8-
J-S39040-20
alcohol at a retirement party on the night in question, and that he left the
party approximately one hour before the first 911 call reporting the accident.
Elderton, the owner of the damaged Toyota Avalon, heard a loud bang at the
time of the accident and went to his window in time to see Simpson’s truck
driving away from the scene of the accident. Elderton saw that the gray truck
was damaged and emitting smoke but was still able to leave the scene of the
accident. He left his house to inspect his vehicle and discovered that it had
sustained a significant amount of damage from the gray truck.
Shortly thereafter, Stevenson heard a loud dragging sound outside of
his house, which was located across the street from Simpson’s home. He
looked out of his window and saw the gray truck backing into Simpson’s
driveway, and he could see that the truck was missing a front tire. Stevenson
recognized the gray truck as belonging to Simpson. While Stevenson could
not see directly through the windshield to observe the driver of the truck, he
did see Simpson struggling to exit the vehicle. He immediately went outside
to speak with Simpson and he did not see anyone else in the truck or with
Simpson. As Stevenson and Simpson were neighbors, Stevenson did not
express any hesitation regarding his identification of Simpson and he testified
that they had spoken to each other on prior occasions. Valentine, supra.
Moreover, even though the events took place around midnight, Stevenson
testified that a streetlight illuminated Simpson’s driveway and that he could
see Simpson trying to exit the truck from his bedroom window.
-9-
J-S39040-20
The Commonwealth also presented testimony from Officer Begany, who
located the gray truck’s missing tire laying in the middle of a road near the
accident scene, and Sergeant Kenny, who observed fluid and gouge marks in
the road leading from the accident scene to Simpson’s home. Multiple
individuals called 911 to report that a heavily damaged gray truck with a
missing wheel was driving on the nearby streets. Officers were dispatched to
investigate the scene of the accident minutes after it occurred and
immediately began tracking the fluid gouge marks in the road.
Officer Sides and Captain Panagoplos were the first officers to approach
Simpson’s home, and they knocked on the door for several minutes without
any response. Eventually, Simpson approached them from the back of the
home and they placed him under arrest. Based on their observations of
Simpson on the night in question and their prior experiences with him, Officer
Sides and Captain Panagoplos believed that Simpson was intoxicated.4 While
at Simpson’s home, officers spoke briefly with Stevenson but none of the
officers testified to seeing any other person at the Simpson residence or near
the gray truck. Under the totality of the circumstances, this evidence is
sufficient to establish that Simpson was the driver of the gray truck when it
collided with the Toyota Avalon, that he drove the gray truck, despite losing a
tire, back to his home, and that he was intoxicated while doing so. Viewing
____________________________________________
4 A blood test confirmed that Simpson’s BAC was .239.
- 10 -
J-S39040-20
the evidence in the light most favorable to the Commonwealth, the evidence
established beyond a reasonable doubt that Simpson committed the crimes of
DUI and Accidental Damage to Unattended Vehicles.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/20
- 11 -
|
01-03-2023
|
08-28-2020
|
https://www.courtlistener.com/api/rest/v3/opinions/1874335/
|
586 So. 2d 34 (1991)
Israel O'CAIN
v.
STATE.
CR-89-774.
Court of Criminal Appeals of Alabama.
May 17, 1991.
Rehearing Denied June 28, 1991.
Certiorari Denied August 30, 1991.
*35 Domingo Soto and Peter J. Madden, Mobile, for appellant.
Don Siegelman, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for the State.
Alabama Supreme Court 1901571.
PATTERSON, Judge.
The appellant, Israel O'Cain, was convicted of murder after a jury trial and was sentenced to 30 years' imprisonment and, inter alia, was ordered to pay $35,357.40 restitution. He appeals, raising one issue. He contends that the trial court committed reversible error by admitting into evidence *36 the hearsay statements of the victim implicating him in her murder as spontaneous exclamations and dying declarations.
Shortly before 9:00 a.m., Karen Dale, a niece of the victim, Linda Daughtry, heard a loud knock on her second floor apartment door. She peeped through the observation hole in the door and saw her aunt, Linda, outside. Linda lived in the apartment on the first floor just below hers. She observed Linda lie down and get up. She opened the door and let her in, and immediately Linda told Karen to lock the door and call the police. Linda lay on a couch, and Karen observed blood on Linda's back and what appeared to be gunshot wounds in her back. Karen asked Linda who shot her, and Linda replied, "Israel shot me." Karen observed that Linda looked scared, that her voice was weak, and that she kept her eyes closed most of the time. She appeared alert, conscious, and wanted ice water because her stomach was burning. Karen testified that Linda said that she had been in bed asleep when Israel came in threatening to kill himself; that she asked him if he was planning on taking her life; that he began fighting with her; that she got away; that he shot her; and that he then turned the gun on himself.
Karen called the police and they, along with ambulance personnel, arrived at Karen's apartment around 9:15 a.m. Yvonne McBride Baldwin, an investigator with the Prichard Police Department, immediately upon arriving at the apartment asked the victim, "What is the problem?" The victim said she had been shot in the back and made the following statements: "Get me some help. I need some help. I feel like I am dying." Officers Charles Kennedy and M.C. Durden, Jr., also testified that they asked the victim who had shot her and that she said, "Israel O'Cain." Durden further testified that he asked the victim where Israel was and that she said that he was downstairs. He also testified that the victim said, "Please get me some medical attention." He told her, "Ma'am, they are on their way. Please hold on."
While the officers were examining the victim, they heard what sounded like two muffled gunshots from the victim's apartment below. They rushed to the victim's apartment and found Israel O'Cain, the appellant, lying face-down on the floor, apparently in serious condition from three gunshot wounds to the chest. A .22 caliber pistol and six empty shell hulls lay on the floor nearby. According to the officers, O'Cain told them that he did not want to live. The appellant and the victim had been intimately involved and had lived together in the past, but were not living together at the time of the shooting.
The appellant and the victim were transported to the hospital. The victim arrived at the hospital about 9:30 a.m. in extremely serious condition, and in spite of the efforts of a medical trauma team which performed extensive surgery she died around 7:00 p.m. that evening. A medical examination of the victim disclosed that she had been shot three times in the back with a .22 caliber pistol. When the shots were fired, the pistol had been pressed hard against the victim's back, making what is called a "contact" wound. Two bullets passed through the victim's right kidney and liver. One passed through her spleen. The bullets damaged major veins and arteries. She died as a result of the loss of blood from the injuries caused by the gunshots. Three .22 caliber bullets were removed from the victim's body. Ballistic examination disclosed that they were fired from the pistol found near the appellant. All six of the empty shell casings were also fired from the same pistol. The three bullets which entered the appellant's body were not recovered because they fragmented when they struck bones.
The appellant testified that he was visiting the victim in her apartment; that they were on friendly terms; that suddenly she pointed the .22 caliber pistol at him and told him to leave; that he grabbed her by the shoulders and asked for an explanation; that she shot him in the chest; that he grabbed her and they fell on the bed; and that he did not remember anything else until the officers were questioning him. He testified that he did not remember anything after he was shot the first time; that *37 he was in "shock"; and that he had no intention of committing suicide.
When the appellant objected to the admission of the statements of the victim during the trial on the ground that they were hearsay, the trial judge overruled the objection on the belief that they were spontaneous exclamations. When the issue was raised again during the hearing on the motion for a new trial, the trial court, again holding that the statements were admissible, stated that they were also admissible as dying declarations.
"A dying declaration is a statement made by the victim of a homicide, at a time when the victim believes that death is impending, describing the cause of, and the circumstances attending, the homicide. Such a statement is admissible, as an exception to the hearsay rule, on the ground of necessity, and on the theory that a person expecting imminent death, just as a person testifying under the obligation of an oath, will speak nothing but the truth.
"It must be shown that the declarant was facing death, with no hope of recovery, and that he was aware thereof. If these requirements are satisfied, the declaration is admissible to the same extent that the testimony of the declarant would have been, had he been called as a witness."
C. Torcia, Wharton's Criminal Evidence § 301 (14th ed. 1986). See also, C. Gamble, McElroy's Alabama Evidence § 248.01(1) (3d ed. 1977).
It is not indispensable that the declarant should have said that he believed that he must or would die soon, as such belief may in the circumstances be inferred from his condition and his conduct. C. Gamble, supra, at § 248.01(1). In determining whether the declarant believed that death was imminent, the trial court may look to statements of the deceased, the nature of his wounds, his weakness, and all the circumstances tending to show the deceased's state of mind at the time. Ragland v. State, 238 Ala. 587, 192 So. 498 (1939); Bell v. State, 402 So. 2d 1 (Ala.Cr. App.1981); Voudrie v. State, 387 So. 2d 248 (Ala.Cr.App.), cert. denied, 387 So. 2d 256 (Ala.1980). Statements by the declarant are admissible to show his belief that death was impending, and such statements alone may constitute a sufficient foundation. Carson v. State, 439 So. 2d 1350 (Ala.Cr. App.1983); Voudrie v. State; C. Torcia, supra, at § 309. A dying person need not expressly state that he is going to die. The use of words which are the equivalent of such a statement is sufficient. Marshall v. State, 219 Ala. 83, 121 So. 72 (1929). It has been held that the use of the expression, "I think I am going to die," was a sufficient predicate for the admission of a statement as a dying declaration. Evans v. State, 209 Ala. 563, 96 So. 923 (1923).
Whether the declarant believed that death was certain to occur soon is for the determination of the trial court, reversible upon appeal only if the evidence did not warrant such a finding. Marshall v. State; Carson v. State; Shikles v. State, 31 Ala. App. 423, 18 So. 2d 412 (1944), cert. denied, 245 Ala. 641, 18 So. 2d 417 (1944). "`The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.'" Evans v. State, 209 Ala. at 564, 96 So. at 924 (quoting 2 Wigmore on Evidence § 1442, p. 1809).
We conclude, from our review of the instant case, that the evidence presented by the state was sufficient to show that the victim was conscious that her death was impending, so as to render admissible her statements against the appellant in the murder prosecution as a dying declaration. The seriousness of her wounds, her weakened condition as exhibited by her lying or falling on the floor while waiting for her niece to open the apartment door, the obvious loss of blood from the massive injuries, her lying on the couch with her eyes closed asking for ice water because "her stomach was burning," her concern about her son, and her statements"Get me some help. I need some help. I feel like I am dying." are sufficient to warrant a finding that she was aware that she was facing imminent death, with no hope of recovering. We *38 conclude that there was ample evidence to support the ruling of the trial court in admitting the hearsay statements of the victim as dying declarations.
In reviewing the trial court's finding that these statements were also admissible as spontaneous exclamations, we are guided by the following:
"Generally, a person's statement concerning a startling occurrence made while he is perceiving the occurrence, or soon after his perception thereof, and while he is under the stress of a nervous excitement created by such perception, is admissible as tending to prove the truth of the matter asserted. A statement of this kind is frequently referred to as a spontaneous exclamation or excited utterance and is an exception to the hearsay evidence rule.
". . . .
"The declaration must be instinctive rather than deliberate."
C. Gamble, supra, at § 265.01(1). See also C. Torcia, supra, at § 289.
The question of whether the statement is spontaneous in a given case is to be decided upon the facts and circumstances of that case, and such determination is a question for the trial court. Jones v. State, 53 Ala.App. 690, 304 So. 2d 34, cert. denied, 293 Ala. 761, 304 So. 2d 38 (1974); C. Gamble, supra, at § 265.01(2).
"The trial court, in determining whether the statement was made spontaneously, ought to consider: the degree of startlingness of the occurrence; how much time passed after the occurrence but before the statement was made; the effect of intervening events; the nearness of the place where the statement was made to the place of occurrence; the condition of the declarant; the content of the statement itself; and all other facts relating to whether the declarant was under the stress of a nervous excitement at the time he made the statement."
C. Gamble, supra, at § 265.01(2).
An issue which frequently arises is whether a statement made in answer to a question can be spontaneous and therefore admissible as an exception to the hearsay rule. While we have decisions which hold that such statements are not within the exception because the question requires reflection and deprives the response of spontaneity, we think the better rule is that a statement made in response to a question is admissible as a spontaneous exclamation if the person answering was still under the influence of the excitement or shock of the crime. We have decisions which appear to follow what we consider to be the better rule. See Williams v. State, 291 Ala. 213, 279 So. 2d 478 (1973) (where victim of shooting, who lay mortally wounded in his driveway, responded to question by neighbor of who did it by saying that victim's wife "done it," such statement was admissible as part of the res gestae); Guntharp v. State, 54 Ala.App. 363, 308 So. 2d 722 (1974), writ quashed, 293 Ala. 756, 308 So. 2d 728 (1975) (holding that the issue is whether the answer was part of the res gestae, and if it is within the res gestae, the issue is whether the answer required reflection); C. Gamble, supra, at § 265.01(3); C. Torcia, supra, at § 289.
In reviewing the evidence to determine whether the statements of the victim were made spontaneously, we consider the following: The victim was shot three times in the back by a .22 caliber pistol. The bullets caused major internal injuries and massive bleeding. The pistol barrel was pressed against her body when the shots were fired. It is reasonable to infer from the circumstances that she immediately fled the apartment and went upstairs to her niece's apartment for protection and assistance. It is hard to imagine an occurrence more startling. She arrived at her niece's apartment shortly before 9:00 a.m. The police arrived by 9:15 a.m., and the victim was at the hospital by 9:30 a.m., and "in extremis." The statements she made implicating the appellant in the crime in response to the questions asked by her niece and the police officers were made within a few minutes of the shooting. The distance between the place where the statements were made and the place where the shooting occurred was only a few feet. There were no intervening events. When *39 she arrived at her niece's apartment, she was in serious condition, in pain, and she thought she was going to die. There can be no doubt that, under the circumstances, the victim was under the stress of nervous excitement when she made the statements.
We recognize that the statements were made in answer to questionssuch as "Who shot you?" and "What is the problem?"asked by the victim's niece and law enforcement officers; however, we believe that the circumstances surrounding the statements reasonably justify the conclusion that they had been uttered while the victim remained in shock and excited by the shooting and the resulting injuries, and were a part of the res gestae, even though they were made in response to questions. The surrounding circumstances clearly justify the conclusion that the statements were not made upon reflection.
In our opinion, the questions asked of the victim were insufficient to destroy the spontaneity of the responses. Thus, we conclude that there was sufficient evidence to support the trial court's ruling admitting the statements of the victim as spontaneous exclamations. This case is due to be, and it is hereby, affirmed.
AFFIRMED.
All Judges concur.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/2907176/
|
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-09-00167-CV
____________________
IN THE INTEREST OF A.J.R.
On Appeal from the County Court
Polk County, Texas
Trial Cause No. PC04090A
MEMORANDUM OPINION
On May 11, 2009, we notified the parties that the appeal would be dismissed for want
of prosecution unless arrangements were made for filing the record or the appellant explained
why additional time was needed to file the record. We also notified the parties that the
appeal would be dismissed unless the appellant remitted the filing fee for the appeal.
Appellant presented a motion, without the filing fee, requesting sixty additional days to file
the reporter's record. That time has lapsed without the filing of the record or payment of the
fees due. The appellant did not file an affidavit of indigence and is not entitled to proceed
without payment of costs. See Tex. R. App. P. 20.1. There being no satisfactory explanation
for the failure to file the record, and there being no reasonable explanation for the failure to
pay the filing fee for the appeal, the appeal is dismissed for want of prosecution. Tex. R.
App. P. 37.3(b), 42.3. Costs are assessed against the appellant.
APPEAL DISMISSED.
__________________________________
CHARLES KREGER
Justice
Opinion Delivered July 16, 2009
Before Gaultney, Kreger, and Horton, JJ.
|
01-03-2023
|
09-10-2015
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.