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https://www.courtlistener.com/api/rest/v3/opinions/105069/ | 344 U.S. 386 (1953)
DE LA RAMA STEAMSHIP CO., INC.
v.
UNITED STATES.
No. 368.
Supreme Court of United States.
Argued January 15, 1953.
Decided February 2, 1953.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Harold M. Kennedy argued the cause for petitioner. With him on the brief were Roscoe H. Hupper, Norman M. Barron and Hervey C. Allen.
Benjamin Forman argued the cause for the United States. With him on the brief were Solicitor General Cummings, Assistant Attorney General Baldridge, Samuel D. Slade, Hubert H. Margolies and Cornelius J. Peck.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is a suit in admiralty against the United States, in which the libellant, petitioner here, sought to recover for its loss of the M. V. Dona Aurora, which was sunk *387 by enemy action on December 25, 1942. The basis of the libel was a war risk policy issued by the War Shipping Administration under the War Risk Insurance Act of June 29, 1940, 54 Stat. 689, 690, as amended, 46 U.S. C. § 1128d. The libel was filed on December 22, 1944. On July 25, 1947, Congress passed a Joint Resolution putting an end to a large body of war powers. Among the hundred-odd statutory provisions thus repealed was the War Risk Insurance Act. 61 Stat. 449, 450. On October 4, 1948, determination of damages in advance of trial was referred to a Commissioner; his report was filed on March 23, 1950; it was confirmed (subject to some exceptions) on July 27, 1950, 92 F. Supp. 243; the case was reached for trial on March 6, 1951. The Government for the first time then raised the jurisdictional issue on which this case turns here, namely, whether the District Court had, as of July 25, 1947, been deprived of jurisdiction to retain this suit by the Joint Resolution.
The District Court rejected the Government's contention, holding that § 13 of the Revised Statutes, as amended,[*] saved the libellant's cause of action from being extinguished by the Joint Resolution of July 25, 1947. The court properly called attention to the fact that § 13, originally § 4 of the Act of February 25, 1871, 16 Stat. *388 431, 432, was reenacted, as amended, 58 Stat. 118, as 1 U.S. C. (Supp. I) § 109, 61 Stat. 633, 635, after passage of the Joint Resolution, to wit, on July 30, 1947. 98 F. Supp. 514. However, the Government's view prevailed in the Court of Appeals. That court held that "the district court on July 25, 1947 lost its power to deal further with the litigation." 198 F.2d 182, 186. The Government recognized the importance of this ruling, and we brought the case here, limiting our grant of certiorari to the question of the jurisdiction of the District Court. 344 U.S. 883.
The precise contention which the Government made in the Court of Appeals, and which prevailed there, goes a long way toward disposing of itself. The Government did not contend that its liability to the petitioner came to an end with the Joint Resolution's repeal of the War Risk Insurance Act. Apart from R. S. § 13, the Constitution precludes extinction of the Government's liability. Lynch v. United States, 292 U.S. 571. The Government realized that its liability under the War Risk Insurance Act survived the Joint Resolution, but claimed that the mode provided by the Act for its enforcement did not. In this Court, the Government receded even from that position. It here took the academic position of giving the arguments pro and con, of stating the reasons why R. S. § 13, the General Savings Statute, now 1 U.S. C. (Supp. I) § 109, should be held to govern this situation, and also the reasons why it should be held inapplicable. We find the latter considerations more subtle than persuasive, and conclude that the arguments urged in support of the continuing jurisdiction of district courts to hear causes of action which arose under the War Risk Insurance Act prior to its repeal must prevail.
In dealing with the present problem it is idle to thresh over the old disputation as to when the Government is, and when the Government is not, bound by a statute unrestricted *389 in its terms. R. S. § 13, as reenacted, lays down a general rule regarding the implications for existing rights of the repeal of the law which created them. It embodies a principle of fair dealing. When the Government has entered upon a conventional commercial endeavor, such as the insurance business, it as much offends standards of fairness for it to violate the principle of R. S. § 13 as for private enterprise to do so.
This brings us to the crux of the contention which prevailed below, namely, that while the Government's obligation as an insurer, which came into being with the sinking of the Dona Aurora on December 25, 1942, survived the repeal of the War Risk Insurance Act by the Joint Resolution of 1947, the "liability" could be enforced only in the Court of Claims, not in the District Court. This conclusion is no more substantial than the tenuous bits of legal reasoning of which it is compounded.
By the General Savings Statute Congress did not merely save from extinction a liability incurred under the repealed statute; it saved the statute itself:
"and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action . . . for the enforcement of such . . . liability."
We see no reason why a careful provision of Congress, keeping a repealed statute alive for a precise purpose, should not be respected when doing so will attain exactly that purpose.
This case demonstrates the concrete, dollars-and-cents importance of saving the statute and not merely the liability. Indeed, in this case the liability under the statute is not wholly saved unless that portion of the statute which gives the District Court jurisdiction also survives. As the Government fairly points out, to deny petitioner the opportunity to enforce its right in admiralty and *390 to send it to the Court of Claims instead is to diminish substantially the recoverable amount, since in a district court sitting in admiralty interest accrues from the time of filing suit, 46 U.S. C. § 745, while in the Court of Claims interest does not begin to run until the entry of judgment. 28 U.S. C. (Supp. IV) § 2516.
For the Government to acknowledge the liability but to deny the full extent of its enforceability recalls what was said in The Western Maid, 257 U.S. 419, 433: "Legal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp."
The Government rightly points to the difference between the repeal of statutes solely jurisdictional in their scope and the repeal of statutes which create rights and also prescribe how the rights are to be vindicated. In the latter statutes, "substantive" and "procedural" are not disparate categories; they are fused components of the expression of a policy. When the very purpose of Congress is to take away jurisdiction, of course it does not survive, even as to pending suits, unless expressly reserved. Ex parte McCardle, 7 Wall. 506, is the historic illustration of such a withdrawal of jurisdiction, of which less famous but equally clear examples are Hallowell v. Commons, 239 U.S. 506, and Bruner v. United States, 343 U.S. 112. If the aim is to destroy a tribunal or to take away cases from it, there is no basis for finding saving exceptions unless they are made explicit. But where the object of Congress was to destroy rights in the future while saving those which have accrued, to strike down enforcing provisions that have special relation to the accrued right and as such are part and parcel of it, is to mutilate that right and hence to defeat rather than further the legislative purpose. The Government acknowledges that there were special considerations, apart from the matter of interest, for giving the insured under *391 the War Risk Insurance Act access to the district courts rather than relegating him to the Court of Claims. In repealing the War Risk Insurance Act among numerous other statutes, Congress was concerned not with jurisdiction, not with the undesirability of the district courts and the suitability of the Court of Claims as a forum for suits under that Act. It was concerned with terminating war powers after the "shooting war" had terminated.
While the Government took a neutral position in this Court on the survival of the District Court's jurisdiction under the War Risk Insurance Act, it emphatically urged us to hold that, in any event, the repeal of that Act did not extinguish the District Court's jurisdiction to hear this case, sitting in admiralty pursuant to the Suits in Admiralty Act of March 9, 1920, 41 Stat. 525, 46 U.S. C. § 741 et seq. Since we have concluded that the District Court was correct in holding that this libel was properly before it under the War Risk Insurance Act, it would be superfluous to consider the applicability of the other statute.
Reversed.
MR. JUSTICE DOUGLAS concurs in the result.
NOTES
[*] The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/706237/ | 68 F.3d 461
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.In Re: Vernon Ray ROBERTSON, Petitioner.
No. 95-8048.
United States Court of Appeals, Fourth Circuit.
Submitted: September 21, 1995.Decided: October 13, 1995.
Vernon Ray Robertson, Petitioner Pro Se.
Before RUSSELL, MURNAGHAN, and HAMILTON, Circuit Judges.
PER CURIAM:
1
Vernon Ray Robertson petitions this court for mandamus relief ordering the district court to act on his 28 U.S.C. Sec. 2255 (1988) motion and other related motions. The district court denied Petitioner's Sec. 2255 motion in an order entered July 27, 1995. Therefore, his petition is moot; he has received the relief requested from this court. Accordingly, we deny leave to proceed in forma pauperis in this court and dismiss the petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/109596/ | 429 U.S. 648 (1977)
DONOVAN
v.
PENN SHIPPING CO., INC., ET AL.
No. 76-613.
Supreme Court of United States.
Decided February 22, 1977.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
PER CURIAM.
The petitioner, while employed by the respondents as a seaman on the SS Penn Sailor, slipped on wet paint, injuring his right wrist and elbow. He sued the respondents under the Jones Act, 46 U.S. C. § 688, and obtained a $90,000 verdict at his jury trial. The respondents moved to set aside the verdict as excessive. Fed. Rules Civ. Proc. 50, 59. The District Court granted the motion, and ordered a new trial on damages unless the petitioner agreed to remit $25,000 of the $90,000 award.
After some time the petitioner submitted to the District Court a proposed order stating that he accepted "under protest" the reduced verdict of $65,000, but reserving nonetheless "his right to appeal therefrom." This language was adopted by the District Court in entering a judgment for the petitioner in the amount of $65,000.
The petitioner sought appellate review of the District Court's decision to order a conditional new trial. In so doing he asked the Court of Appeals for the Second Circuit to *649 discard the settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict. The Court of Appeals refused the petitioner's invitation, and dismissed the appeal. 536 F.2d 536.
The Court of Appeals properly followed our precedents in holding that a plaintiff cannot "protest" a remittitur he has accepted in an attempt to open it to challenge on appeal. A line of decisions stretching back to 1889 has firmly established that a plaintiff cannot appeal the propriety of a remittitur order to which he has agreed. Kennon v. Gilmer, 131 U.S. 22, 29-30 (1889); Lewis v. Wilson, 151 U.S. 551, 554-555 (1894); Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 52 (1895); Woodworth v. Chesbrough, 244 U.S. 79, 82 (1917).
There are decisions in the Federal Courts of Appeals that depart from these unbroken precedents. Those decisions held or intimated that a plaintiff who accepts a remittitur "under protest" may challenge on appeal the correctness of the remittitur order. See, e. g., Bonn v. Puerto Rico Int'l Airlines, Inc., 518 F.2d 89, 94 (CA1 1975); United States v. 1160.96 Acres of Land, 432 F.2d 910 (CA5 1970); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (CA5 1970); Steinberg v. Indemnity Ins. Co. of North America, 364 F.2d 266 (CA5 1966); Delta Engineering Corp. v. Scott, 322 F.2d 11, 15 (CA5 1963). Other decisions have suggested that when entertaining cases pursuant to its diversity jurisdiction, a federal court should look to state practice to determine whether such an appeal is permitted. See Burnett v. Coleman Co., 507 F.2d 726 (CA6 1974); Manning v. Altec, Inc., 488 F.2d 127 (CA6 1973); Mooney v. Henderson Portion Pack Co., 334 F.2d 7 (CA6 1964).
The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is, however, a matter of federal law, see Hanna v. Plumer, 380 U.S. 460, 466-469 (1965); Byrd v. Blue Ridge Rural Electric Coop., *650 356 U.S. 525 (1958), and that law has always prohibited appeals in the situation at bar. The Court of Appeals for the Second Circuit correctly adhered to the consistent rule established by this Court's decisions. In order to clarify whatever uncertainty might exist, we now reaffirm the longstanding rule that a plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted.
The petition for a writ of certiorari is granted, and the judgment is affirmed.
So ordered.
THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN would grant the petition for certiorari but would have the case argued and given plenary consideration rather than disposed of summarily. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/8569590/ | TEXTO COMPLETO DE LA RESOLUCIÓN
Comparece ante nos el Centro Unido de Detallistas (en adelante la parte peticionaria) y nos solicita la revisión de una resolución emitida por la Junta de Planificación de Puerto Rico (JP), el 5 de diciembre de 2003, notificada y archivada en autos el 15 de enero de 2004. En dicha resolución, la Junta de Planificación de Puerto Rico autorizó una enmienda a la consulta de ubicación número 98-67-0717-JPU para la ubicación de un proyecto comercial en el Barrio Jauca II del Municipio de Santa Isabel.
Una vez evaluado el presente recurso, se acoge como certiorari al amparo de los Artículos 4.0006 (C) y 9.004 de la Ley Núm. 201 de 22 de agosto de 2003, mejor conocida como la "Ley de la Judicatura del Estado Libre Asociado de Puerto Rico de 2003".
Examinado el expediente ante nuestra consideración así como el derecho aplicable, se DENIEGA la expedición del auto de certiorari, así como la"Moción en Auxilio de Jurisdicción".
I
El 24 de julio de 1998, D'Allessio Construction, Inc., por conducto del Ingeniero Germán Torres (en adelante proponente), sometió ante la consideración de la Junta de Planificación de Puerto Rico, la consulta de ubicación número 98-67-0717-JPU para la construcción de un proyecto comercial en una finca con cabida de 21.08 cuerdas que radica al Norte de la carretera estatal 153, k.m. 7.3 en el Barrio Jauca II del Municipio de Santa Isabel. En el predio se propuso la construcción de un edificio comercial de 60,000 pies cuadrados para establecer un supermercado *256de 31,500 pies cuadrados y una farmacia de 8,500 p/c; un edificio independiente de 20,000 p/c para ocho salas de teatro; cuatro estructuras adicionales independientes de 5,000 p/c para restaurantes de comida rápida con servicarro y banco.
El 28 de diciembre de 1998, Mil, Inc. y Ponce Cash & Carry radicaron ante la JP una solicitud de intervención y de denegatoria de la consulta de ubicación por falta de estudio de viabilidad económica y por falta de endosos del Departamento de Agricultura, del Departamento de Transportación y Obras Públicas y la Autoridad de Carreteras y Transportación.
El 10 de febrero de 1999, la JP aprobó la consulta de ubicación de referencia y autorizó la construcción de un proyecto comercial con un área total de 100,000 p/c los cuales serían distribuidos de la siguiente manera; 60,000 p/c para establecer un supermercado de 31,500 p/c, una mueblería de 20,000 p/c, otras cuatro estructuras independientes de 5,000 p/c para restaurantes de comida rápida y un banco. La resolución fue notificada y archivada en autos, el 18 de febrero de 1999.
Posteriormente, el 7 de mayo de 1999, la JP autorizó un primera enmienda a la consulta que consistió en reducir el área del supermercado de 31,500 p/c a 25,000 p/c y para solicitar que la farmacia fuera construida en una estructura independiente de 12,000 p/c y se dejara un área de 23,000 p/c en la estructura pegada al supermercado para alquiler de otros pequeños negocios.
Luego, mediante resolución de 30 de noviembre de 2000, la JP autorizó una segunda enmienda para añadir otro edificio comercial de 60,000 p/c.
Así las cosas, el 8 de marzo de 2001, la JP autorizó una tercera enmienda que consistía en cambiar el uso de los 20,000 p/c originalmente autorizados para uso de oficinas para ser utilizados para negocio de venta de piezas de autos y mecánica liviana a ser ubicado en una estructura independiente.
D'Allessio Construction, Inc., proponente, solicitó el 7 de noviembre de 2003, un cuarta enmienda al proyecto a los fines de redistribuir las áreas de las estructuras aún sin construir. Dicha solicitud fue autorizada por la JP mediante resolución de 5 de diciembre de 2003, notificada y archivada en autos el 15 de enero de 2004.
El 26 de enero de 2004, la farmacia Highway Pharmacy, ubicada a unos trescientos metros del proyecto propuesto, radicó escrito en oposición a la consulta de epígrafe.
El 4 de febrero de 2004, Todo a Peso, Inc. y P.D.C.M. Associates, S.E. solicitaron intervención y radicaron también una reconsideración. Ese mismo día, el Centro Unido de Detallistas, aquí peticionario, radicó ante la JP un moción de reconsideración, intervención, oposición y desestimación. Así también, A. Cordero Badillo, Inc.; Mil, Inc. y Ponce Cash & Cany radicaron moción de reconsideración, intervención, oposición, revocación y desestimación de la consulta de ubicación.
En su reunión de 13 y 18 de febrero de 2004, la JP, en resolución notificada y archivada en autos el 24 de marzo de 2004, declaró no ha lugar los argumentos de los interventores y se reafirmó en su acuerdo de 5 de diciembre de 2003.
Lnconforme con la determinación, la parte peticionaria, Centro Unido de Detallistas, acude ante nos mediante recurso de revisión judicial, imputándole a la Junta de Planificación de Puerto Rico la comisión de los siguientes errores:
“(1) Erró la Junta de Planificación al aprobar la consulta da ubicación en violación a la Ley Núm. 91 de 24 de junio de 1998.
*257
(2) Erró la Junta de Planificación al aprobar la consulta de ubicación a base de un expediente incompleto y en violación al Reglamento de Procedimientos Adjudicativos de la Junta de Planificación.
(3) Erró la Junta de Planificación al aprobar la consulta de ubicación en incumplimiento con la Regla 252 del Reglamento de la Junta de Calidad Ambiental para el Proceso de Presentación, Evaluación y Trámite de Documentos Ambientales. ”
El 12 de mayo de 2004, la parte interventora-recurrente, Centro Unido de Detallistas de Puerto Rico, presentó ante nos "Moción en Auxilio de Jurisdicción".
Luego de estudiar el expediente y el derecho aplicable, se deniega el auto de certiorari.
II
A
La Sección 4.1 de la Ley de Procedimiento Administrativo Uniforme (L.P.A.U.), 3 L.P.R.A. see. 2171, permite que se solicite al Tribunal de Apelaciones la revisión de decisiones administrativas. Al respecto, es norma de derecho claramente establecida que los tribunales apelativos han de conceder gran consideración y deferencia a las decisiones administrativas en vista de la vasta experiencia y conocimiento especializado de la agencia. Socorro Rebollo v. Yiyi Motors, Opinión de 13 de enero de 2004, 2004 J.T.S. 4, a la pág. 501; Pacheco Torres v. Estancias de Yauco, S.E., Opinión de 30 de septiembre de 2003, 2003 J.T.S. 150, a la pág. 210; T. Jac, Inc. v. Caguas Centrum Limited, 148 D.P.R. 70 (1999); Agosto v. Fondo del Seguro del Estado, 132 D.P.R. 866, 879 (1993). Por lo tanto, la persona que alegue lo contrario tendrá que presentar evidencia suficiente para derrotar tal presunción, no pudiendo descansar únicamente en meras alegaciones. Pacheco Torres v. Estancias de Yauco, S.E., supra, a las págs. 210-211.
La revisión judicial es limitada. Sólo determina si la actuación administrativa fue una razonable y cónsona con el propósito legislativo o si por el contrario fue irrazonable, ilegal o medió abuso de discreción. Mun. de San Juan v. J.C.A, 149 D.P.R. 263 (1999); Com. Vec. Pro-Mej., Inc. v. J. P., 147 D.P.R. 750 (1999); Fuertes y otros v. A.R.P.E., 134 D.P.R. 947, 953 (1993).
Es norma reiterada que los procedimientos y decisiones administrativas tienen una presunción de regularidad y corrección que debe refutar quien las impugna, sin descansar en meras alegaciones. Socorro Rebollo v. Yiyi Motors, supra; Pacheco Torres v. Estancias de Yauco, S.E., supra, a las págs. 210-211; Com. Vec. Pro-Mej. Inc. v. J.P., supra. Sin embargo, las cuestiones de derecho, contrario a las de hechos, que no involucren interpretaciones efectuadas dentro del ámbito de especialización de la agencia, son revisables en toda su extensión. Véanse: Pacheco Torres v. Estancias de Yauco, S.E., supra, a la pág. 211; San Antonio Maritime v. Puerto Rican Cement, Opinión de 19 de febrero de 2001, 2001 J.T.S. 20, pág. 860. Si las conclusiones de derecho de un foro administrativo están sujetas al mandato de la ley, los tribunales debemos sostenerlas. Misión Ind P.R. v. J.P., 146 D.P.R. 64 (1998), a la pág. 133. Es por esta razón que los tribunales debemos ser cautelosos al intervenir con dichas determinaciones. Viajes Gallardo v. Homero Clavell, 131 D.P.R. 275, 290 (1992). Aun en los casos dudosos, cuando la interpretación de la agencia no sea la única razonable, la actuación del organismo administrativo merece deferencia sustancial. Véase: De Jesús v. Departamento de Servicios Sociales, 123 D.P.R. 407, 418 (1989); Asociación Médica de Puerto Rico v. Cruz Azul, 118 D.P.R. 669, 678 (1987).
Con respecto a este particular, el Tribunal Supremo ha expresado que "[n]o empece esta deferencia, la interpretación de la agencia no merece deferencia si la misma afecta derechos fundamentales, resultare irrazonable, o conduce a la comisión de una injusticia". Costa, Piovanetti v. Caguas Expressway, Opinión de 29 de diciembre de 1999, 2000 J.T.S. 11, pág. 489. Por otro lado, la interpretación de una agencia *258administrativa tampoco podrá prevalecer y sostenerse cuando la misma produce resultados inconsistentes con o contrarios al propósito del estatuto interpretado. Id.; Calderón v. Adm. Sistemas de Retiro, 129 D.P.R. 1020, 1042 (1992). Además, se ha sostenido que los tribunales revisores podrán intervenir con una determinación administrativa, si la misma fue "irrazonable, ilegal o si medió abuso de discreción". T. Jac, Inc. v. Caguas Centrum Limited, Opinión de 12 de abril de 1999, 99 J.T.S. 60, pág. 886. Véase además: Agosto v. Fondo del Seguro del Estado, supra.
El criterio rector para los tribunales será la razonabilidad en la actuación de la agencia recurrida. Así pues, al realizar su función revisora, el tribunal está compelido a considerar la especialización y experiencia de la agencia sobre las cuestiones que tuviera ante sí. Por tanto, en el descargo de su función deberá caracterizar entre asuntos de discernimiento estatuario o cuestiones de especialización administrativa. La deferencia reconocida no equivale a una renuncia de la función revisora del Tribunal en instancias apropiadas y meritorias, como resulta ser cuando el organismo administrativo ha errado en la aplicación de la ley.
Socorro Rebollo v. Yiyi Motors, supra, a las págs. 501-502; Reyes Salcedo v. Policía de P.R., 143 D.P.R. 85 (1987).
B
La Sección 4.5 de la Ley de Procedimiento Administrativo Uniforme (L.P.A.U.), 3 L.P.R.A. 2175, establece que "[l]as determinaciones de hechos de las decisiones de las agencias serán sostenidas por el tribunal, si se basan en evidencia sustancial que obra en el expediente administrativo". Véase: Misión Ind. P.R. v. J.P., supra, a la pág. 131; Metropolitana S.E. v. A.R.P.E., 138 D.P.R. 200, 213 (1995). Las decisiones administrativas tienen a su favor la presunción de legalidad y corrección. Murphy Bernabe v. Tribunal Superior, 103 D.P.R. 692 (1975), a la pág. 699. Esta presunción de regularidad y corrección "debe ser respetada mientras la parte que la impugne no produzca suficiente evidencia para derrotarla". Henríquez v. Consejo de Educación Superior, 120 D.P.R. 194, 210 (1987). Esta disposición recoge estatutariamente la norma jurisprudencial que establece que, de ordinario, los tribunales no deben intervenir con las determinaciones de hechos de un organismo administrativo si éstas se apoyan en pmeba suficiente que surja del expediente considerado en su totalidad. Misión Ind. P.R. v. J.P., supra; Metropolitana S.E. v. A.R.P.E., supra; Fac. C. Soc. Aplicadas Inc. v. C.E.S., 133 D.P.R. 521, 532-533 (1993).
La evidencia sustancial, según ha sido definida "es aquella evidencia relevante que una mente razonable podría aceptar como adecuada para sostener una conclusión". Misión Ind. P.R. v. J.P., supra; Hilton Hotels v. Junta de Salario Mínimo, 74 D.P.R. 670, 687 (1953). Por ello, la parte afectada por una determinación de hecho de una agencia debe, en primer lugar, "demostrar que existe otra prueba en el récord que reduzca o menoscabe el valor probatorio de la evidencia impugnada, hasta el punto de que no se pueda concluir que la determinación de la agencia fue razonable de acuerdo con la totalidad de la prueba que tuvo ante su consideración". Ramírez v. Depto. de Salud, 147 D.P.R. 901, 905 (1999); Misión Ind. P.R. v. J.P., supra. Si la parte afectada no demuestra la existencia de otra prueba, las determinaciones de hechos de una agencia deben ser sostenidas por el tribunal revisor. Ramírez Rivera v. Depto. de Salud, supra. Esto persigue evitar que los tribunales sustituyan el criterio de la agencia por el suyo propio.
Se debe mantener presente que las determinaciones de hechos de los organismos y agencias públicas tienen a su favor una presunción de regularidad y corrección, que debe ser respetada mientras la parte que las impugne no produzca suficiente evidencia para derrotarlas. Rivera Concepción v. ARPE, Opinión de 29 de septiembre de 2000, 2000 J.T.S. 155, a la pág. 160; Henríquez v. Consejo Educación Superior, 120 D.P.R. 194, 210 (1987).
C
La Ley Núm. 91 de 24 de junio de 1998, según enmendada, 23 LPRA. sec. 62c, mejor conocida como la Ley Orgánica de la Junta de Planificación de Puerto Rico, creó dicha Junta con el propósito de guiar el *259desarrollo integral de Puerto Rico de modo coordinado y con el fin de fomentar la salud, seguridad, orden, convivencia y el bienestar de los actuales y futuros habitantes de nuestro país. Así, faculta a la Junta para controlar el uso y desarrollo de los terrenos en Puerto Rico tanto en áreas urbanas como rurales.
La consulta de ubicación es el instrumento mediante el cual la Junta autoriza el uso particular de un terreno. Este procedimiento está gobernado específicamente por la Ley Orgánica de la Junta de Planificación, Ley Núm. 75 de 24 de junio de 1975, arts. 1-39, según enmendada, 23 L.P.R.A. sec. 62-63j, y el Reglamento para Procedimientos Adjudicativos de la Junta de Planificación, Reglamento Núm. 5244 de 31 de mayo de 1995, 23 R.P.R. see. 650.221-650.243 (1997) (en lo sucesivo, el "Reglamento para Procedimientos Adjudicativos"). El inciso (6) de la sección 2.00 del Reglamento para Procedimientos Adjudicativos define genéricamente "consulta de ubicación" como el "[tjrámite mediante el cual la Junta de Planificación evalúa y decidef,] según estime pertinente, sobre propuestos usos de terrenos que no son permitidos ministerialmente por la reglamentación aplicable en áreas zonificadasf,] pero que por las disposiciones reglamentarias proveen para que se consideren". 23 R.P.R. § 650.225(6) (1997). En áreas no zonificadas, la consulta incluye "propuestos usos de terrenos que por su naturaleza, complejidad, magnitud, impacto físico, económico, ambiental y social pudiesen afectar significativamente el desarrollo de un sector". Id. Una consulta se identifica como pública o privada, dependiendo de quién la origine, véase id., o como especial o de transacción, dependiendo de las implicaciones particulares del uso propuesto. Véase id., §§ 650.225(7), 650.227, 650.232.
En el Artículo 16 (l)(a) de la Ley de la Junta de Planificación se establece que:
‘‘En los casos en que se apruebe la consulta de ubicación para la construcción de un centro comercial de cien mil o más pies cuadrados de área neta de venta por la Junta de Planificación, dicha aprobación tendrá una vigencia de treinta meses, a partir de la notificación de la aprobación de la consulta de ubicación por la Junta de Planificación, dentro de cuyo término el centro comercial deberá estar en real y efectiva construcción. Se entenderá por real y efectiva construcción el inicio de las obras de urbanización y construcción permanentes de una estructura sobre el terreno, es decir, cualquier obra que vaya más allá de la etapa de excavación, conforme definido en el Reglamento de Procedimientos Adjudicativos de la Junta de Planificación. Una vez transcurrido el término de treinta meses antes mencionado, sin que el centro comercial se encuentre en real y efectiva construcción, la aprobación correspondiente perderá vigencia. La Junta no aprobará prórroga o reapertura alguna que se presente a los fines de solicitar una extensión al término de vigencia de la consulta de ubicación aprobada. La caducidad del término de vigencia de la aprobación de una consulta de ubicación para la construcción de un centro comercial, no será obstáculo para que posteriormente se pueda presentar ante la Junta una solicitud como un caso nuevo. ”
La sección 7.01 del Reglamento para Procedimientos Adjudicativos establece, en la parte pertinente, que:
“La Junta de Planificación estudiará, tramitará y resolverá las consultas de ubicación tomando en consideración, entre otros, los siguientes documentos y elementos de juicio: Ley Orgánica de la Junta de Planificación..., Ley de Municipios Autónomos..., Plan de Desarrollo Integral..., Objetivos y Políticas del Plan de Usos de Terrenos de Puerto Rico..., Planes de Usos de Terrenos de Puerto Rico..., Mapas de Zonificación..., Mapas de Zonas Susceptibles a Inundaciones..., Planes de Ordenación Territorial..., Planes Regionales adoptados por la Junta, Reglamentos de Planificación y otra reglamentación aplicable, Programa de Inversiones de Cuatro Años, localización específica del proyecto, usos existentes en el sector, situación de la infraestructura física y social en el lugar..., rasgos topográficos, condición de inundabilidad, condición del subsuelo, densidad poblacional, grado de contaminación del ambiente, distancia entre los terrenos y las áreas construidas, importancia agrícola, ambiental o turística de los terrenos, y otras condiciones sociales, económicas y físicas análogas.
Además de lo anterior, en las consultas públicas se tomará en consideración, entre otros, el costo del
*260
proyecto, la disponibilidad y procedencia de fondos, programación de la obra, posibles conflictos con obras de otros organismos gubernamentales. Si se tratare de una transacción, también considerará la necesidad de la misma, si la propiedad fue ofrecida a otros organismos gubernamentales, conveniencia de que la propiedad pase de pública a privada, y otras leyes aplicables al tipo de transacción.
La aprobación de una consulta pública no implica en forma alguna la aprobación del proyecto de transacción o de construcción en sí, el cual deberá regirse por lo establecido en este... [Reglamento] y por cualquier resolución eximiendo de la presentación a tal proyecto de transacción o de construcción.
La Junta de Planificación consultará, cuando lo considere necesario, a cualesquiera de los organismos gubernamentales, comisiones locales de planificación y otras entidades públicas y privadas que de alguna manera tengan relación con los proyectos bajo estudio....
Cuando la Junta lo estime necesario para el análisis de una consulta, se requerirá del proponente la información adicional o aclaratoria pertinente.... Esta información podrá incluir, entre otras, estudios técnicos más abarcadores, tales como, pero sin limitarse a, estudios hidrológicos-hidráulicos, estudios de nivel de ruido, análisis de tránsito, Evaluaciones Ambientales (EA) y Declaraciones de Impacto Ambiental (DIA)....
La Junta podrá ordenar la celebración de vistas administrativas a iniciativa propia o a petición de partes, o vistas públicas en cualquier caso en que entienda que merecen seguir ese procedimiento cuando así lo establezca la reglamentación o legislación vigente. 23 R.P.R. see. 650.234 (1997).
Si fuera necesario hacer cambios al proyecto que alteren la consulta según fue aprobada, la parte proponente debe presentar una solicitud de enmienda debidamente fundamentada y documentada. La Junta podrá exigir la radicación de una nueva consulta dependiendo de la naturaleza y magnitud de los cambios propuestos en relación con la consulta original. La radicación de una solicitud de enmienda antes de que la Junta resuelva la consulta original pudiera tener el efecto de reiniciar cualquier trámite interagencial. Reglamento para Procedimientos Adjudicativos, sec. 7.02, 23 R.P.R. see. 650.235 (1997). ”
III
La parte aquí peticionaria, Centro Unido de Detallistas, alega que erró la Junta de Planificación de Puerto Rico al aprobar la consulta de ubicación en violación a la Ley Orgánica de Junta de Planificación, al Reglamento para Procedimientos Adjudicativos de la Junta, al Reglamento de la Junta de Calidad Ambiental para el Proceso de Presentación, Evaluación y Trámite de Documentos Ambientales y basado en un expediente incompleto.
No le asiste la razón. Veamos porqué.
El aquí peticionario, Centro Unido de Detallistas, señala que erró la JP al aprobar la consulta de ubicación núm. 1998-67-0717-JPU por la misma violar la Ley Orgánica de dicha agencia. Del texto de la Ley surge claramente que la prohibición establecida recae sobre la prórroga o reapertura presentada a los fines de solicitar la extensión al término de vigencia de la consulta de ubicación. Las enmiendas solicitadas por la parte proponente, DAllessio Construction, Inc., fueron sobre la distribución o utilización de las facilidades aprobadas mediante dicha consulta, por lo cual, en ninguna de las solicitudes de enmienda se requirió prórroga o reapertura con el fin de solicitar la extensión del término de vigencia de la consulta. En ninguna disposición de la Ley de Planificación o del Reglamento para Procedimientos Adjudicativos se dice que el término comenzará a contar o será de aplicación a la consulta original, por lo cual es perfectamente válido considerar que cada vez que la JP autoriza mediante una resolución un cambio o variación a la consulta originalmente sometida, el término de treinta meses para que esa nueva obra se encuentre en real y efectiva construcción comienza a decursar a partir de dicho dictamen. Consta en la resolución de la JP que para noviembre de 2000, el proyecto *261original se encontraba en construcción, por lo que resulta incorrecta la apreciación de la parte peticionaria al señalar que el término de vigencia de la consulta venció en agosto de 2001 y que ha esa fecha no había comenzado la real y efectiva construcción.
Además, de la propia solicitud para la cuarta enmienda surge que al 7 de noviembre de 2003, ya el proyecto estaba en real y efectiva construcción, porque contaba con 60,000 p/c construidos. Resulta forzoso concluir que las enmiendas solicitadas no fueron interpuestas con el fin de extender términos de vigencia, por lo cual no se cometió el error alegado y la JP tenía jurisdicción para entender en la enmienda propuesta. No coincidimos en la interpretación de la normativa que hace el interventor-peticionario en su alegato al señalar que la aplicación correcta de la disposición exige que, para cualquier enmienda a la consulta de ubicación, se utilice el mecanismo de una nueva consulta, ello en contravención con la sección 7.02- del Reglamento para Procedimientos Adjudicativos de la Junta de Planificación, la cual concede la facultad discrecional a la JP para determinar si la enmienda propuesta debe ser considerada como una nueva consulta o no.
Respecto al segundo error señalado por la parte peticionaria, Centro Unido de Detallistas, el mismo no fue cometido por la JP. Surge de las resoluciones anejadas al escrito de revisión, todas las certificaciones expedidas por las agencias pertinentes, en las cuales se reconoce que la consulta de ubicación núm. 1998-67-0717-JPU cumple con los requisitos legales para recibir la permisología y los endosos necesarios para comenzar la construcción. Entre los endosos obtenidos por el proponente, está el de la Junta de Calidad Ambiental, Autoridad de Acueductos y Alcantarillados, el Municipio de Santa Isabel, Autoridad de Carreteras, Autoridad de Energía Eléctrica, Departamento de Recursos Naturales entre otros.
Es principio rector de nuestra facultad de revisión el respetar las determinaciones de las agencias administrativas. No estamos en posición de sustituir el conocimiento especializado de la Junta de Planificación, que al amparo de la sección 7.02 del Reglamento Adjudicativo consideró que la magnitud y naturaleza de los cambios propuestos en la cuarta enmienda (redistribuir las áreas de las estructuras), no requerían la radicación de una nueva consulta. La parte aquí peticionaria no ha demostrado la existencia de otra prueba que obre en el expediente administrativo que resulte evidencia sustancial para llegar a una conclusión distinta a la que llegó la JP. Por tanto, no podemos concluir que la JP basó su determinación en un expediente incompleto o en violación a alguna disposición del Reglamento de Adjudicación.
Con relación al tercer error señalado por la parte peticionaria, Centro Unido de Detallistas, el mismo no fue cometido por la JP. Entendemos que si al analizar cada una de las enmiendas propuestas y la documentación presentada la JP certificó que se cumplió con todos los requisitos exigidos por ley, dicha determinación merece toda nuestra deferencia, por lo que estamos impedidos de sustituir su criterio.
De conformidad con lo anteriormente expuesto, entendemos que no incidió el foro administrativo en los errores sobre la ejecución y cumplimiento de las leyes y reglamentos que ellos administran, así como también con lo prescrito por el Reglamento de la Junta de Calidad Ambiental. Es por ello que su determinación merece toda nuestra deferencia.
La parte aquí peticionaria, Centro Unido de Detallistas, no nos ha demostrado que exista prueba en el récord que reduzca o menoscabe el valor probatorio de la evidencia impugnada, que nos permita concluir que la actuación de la agencia no fue una razonable. Por ello, entendemos que la enmienda a la consulta de ubicación aprobada por la JP debe ser sostenida por este Tribunal de Apelaciones, pues la misma no fue irrazonable, ilegal, ni medió abuso de discreción.
IV
Por los fundamentos anteriormente expuestos, se deniega la expedición del auto de certiorari y la "Moción en Auxilio de Jurisdicción", por ser conforme a derecho la consulta de ubicación aprobada por la Junta de *262Planificación de Puerto Rico.
Notificar inmediatamente por vía facsímil y correo ordinario.
Lo acordó y ordena el Tribunal y lo certifica la Secretaria General.
Aida Ileana Oquendo Graulau
Secretaria General | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2033487/ | 859 N.E.2d 321 (2003)
344 Ill. App.3d 1224
307 Ill.Dec. 312
NIKITENKO
v.
NIKITENKO.
No. 2-02-1400.
Appellate Court of Illinois, Second District.
December 31, 2003.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2033515/ | 859 N.E.2d 318 (2003)
344 Ill. App.3d 1217
307 Ill.Dec. 312
PEOPLE
v.
TUCKER.
No. 1-02-3705.
Appellate Court of Illinois, First District.
December 4, 2003.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2047221/ | 691 N.W.2d 454 (2005)
PEOPLE
v.
SHAMMAS.
No. 124339.
Supreme Court of Michigan.
January 13, 2005.
SC: 124339, COA: 248946.
By order of January 29, 2004, the application for leave to appeal was held in abeyance pending the decision in People v. Morson (Docket No. 124083). On order of the Court, the opinion having been issued on July 30, 2004, 471 Mich. 248, 685 N.W.2d 203 (2004), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2047232/ | 105 Ill. App. 3d 430 (1982)
434 N.E.2d 465
JOAN HARNER, a/k/a Joan Kirchberg, Plaintiff-Appellant,
v.
WILLIAM H. HARNER, Defendant-Appellee.
No. 81-2514.
Illinois Appellate Court First District (2nd Division).
Opinion filed March 30, 1982.
*431 Charles R. Kirchberg, of Park Ridge, for appellant.
No brief filed for appellee.
Affirmed in part, reversed in part, and modified in part.
JUSTICE DOWNING delivered the opinion of the court:
This appeal arises from post-divorce decree proceedings instituted by former spouses Joan Harner (Joan) and William Harner (William), whose marriage was dissolved by order of the circuit court of Cook County on July 22, 1974. William has failed to file an appearance in this court or an appellee's brief. Nevertheless, the merits of the appeal will be considered under the rule of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131, 345 N.E.2d 493.
Joan claims the circuit court erred (1) in using earlier child-support overpayments made by William to cancel his obligation for amounts due to Joan for their children's extraordinary medical expenses; (2) in its determination concerning requested modification of child support for their *432 two youngest children (Mark and Laura); (3) in refusing to enter its child support modification order nunc pro tunc to the date of the filing of Joan's petition; and (4) in failing to conduct an impartial hearing.
Under the judgment of divorce entered July 22, 1974, the circuit court ordered William to pay Joan $900 per month unallocated child support for the parties' four minor children. This amount was to be abated by a fixed percentage as each child reached majority. William was also to pay extraordinary medical care costs required for the children. Joan was to claim the child support as income on her Federal tax returns.
On December 8, 1980, William filed a petition with the circuit court requesting that Joan be ordered to comply with the tax provisions of the divorce judgment. Joan counterpetitioned, requesting among other things that William be ordered to reimburse her for medical expenditures she had made for the children and for an increase in child support for the parties' "three" minor children. (In fact, their older son (Joseph) was 19 when the counterpetition was filed; their second son (Mark) became 18 in the month following the court order appealed here; the youngest child (Laura) was 15 when the counterpetition was filed.) Joan requested that the monthly level of child support be increased from $710 to $1,850. William later petitioned the court for an order that Joan reimburse him for $3,360 of child support he had overpaid her on behalf of Joseph after that child had reached his majority.
At the hearing, William related that his salary at the time of the divorce in 1974 was $34,000 per year, and that his gross income was about $42,000. In 1980, William had a salary of $43,000 and a gross income of $78,300. He worked as a salesman throughout the period. Much of his nonsalary income came from bonuses he received. He drove a company car, and the company paid much of his business expenses. William bought a home in 1979 for $105,000, with a $30,000 mortgage.
The parties' oldest child (Terry), a daughter, had lived with William for nearly six years. She was 24 at the time of the hearing. William had ceased paying child support for her at the time she moved in with him. He continued to pay the remaining amount of support due, $710 per month, even after Joseph reached 18 on September 19, 1979. Before reducing the child support for this son as he was entitled under the decree, William had made an overpayment of $3,360. He demanded a refund from Joan, but she refused. William stated he had been unaware of his right to reduce child support for Joseph upon the latter reaching his majority. He had reduced support payments from $900 to $710 per month only because his daughter Terry was living with him, and not due to her age.
Joan testified in detail as to expenses for the youngest child, Laura, including Laura's share of the family housing and utility costs. The total *433 amount was $505 per month. Joan testified that the monthly expenses for Mark were $560. Joan admitted these figures were largely guesses on her part.
At the time of the hearing, Joan had remarried. She was not working. She owned the home in which the family lived. It was worth $100,000 and was subject to an $8,000 mortgage.
Joan had spent approximately $2,150 of her own money for medical expenses which William was obligated to pay under the terms of the divorce decree. Up to the time of the hearing, he had provided only $350 of that amount.
The circuit court ruled that the amount of the overpayment of child support made by William ($3,660) should cancel out the amount of medical costs he owed Joan (approximately $1,800). The court refused to increase child support for Mark. It did order William to continue to make support payments for Mark in the amount required under the divorce decree until he graduated from high school (anticipated in June 1982), even though he would be 18 years old during that time. Finally, the court increased the child support for Laura from $315 to $400 per month.
I
Joan contends that the circuit court erred in allowing William to offset the amount he owed to Joan for the children's medical expenses with the amount of child support he had overpaid.
1 The question of whether a parent may use overpayments of child support to offset other amounts actually due and owing has apparently not been answered in Illinois. The general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree. (Whitman v. Whitman (1980), ___ Ind. App. ___, 405 N.E.2d 608; Webb v. Webb (Mo. App. 1971), 475 S.W.2d 134; Horne v. Horne (1968), 22 N.Y.2d 219, 292 N.Y.S.2d 411, 239 N.E.2d 348.) This is true even where, as here, the payments are made under the mistaken belief that they are legally required. (Crowder v. Crowder (La. App. 1974), 296 So. 2d 842; see Annot., 47 A.L.R. 3d 1031, 1058-61 (1973).) The policy underlying this rule is to prevent the supporting parent from, in effect, unilaterally modifying the support decree and thereby affecting the expectations of the custodial parent as to support payments. We find merit to this rule and therefore adopt it.
2 Here, the circuit court offset William's indisputable debt of nearly $1,800 to Joan with the $3,660 he had overpaid her for child support of the older son. This ruling violated the general rule noted above. There being no evident reason in this case to disregard the general rule, we find the *434 circuit court's order to be erroneous and reverse it. William must reimburse Joan for the nearly $1,800 amount due her for the children's medical costs. He is not to be reimbursed for any of the overpayment.
II
Joan argues the circuit court erred in confirming the amount of child support payable on behalf of the younger son (Mark) and in raising the youngest child's (Laura) support only from $315 to $400 per month.
Under section 510 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1979, ch. 40, par. 510), an award of child support may be modified only upon a showing of a substantial change in circumstances. The evidence must establish that both the needs of the child and the supporting parent's ability to pay have increased. (Scott v. Scott (1979), 72 Ill. App. 3d 117, 124, 389 N.E.2d 1271.) The circuit court's decision on this issue is one which rests in its sound discretion. It will not be reversed absent a showing of an abuse of that discretion. In re Marriage of Schmerold (1980), 88 Ill. App. 3d 348, 350, 410 N.E.2d 629.
Joan cites Addington v. Addington (1977), 48 Ill. App. 3d 859, 863, 363 N.E.2d 151, in support of her argument. Therein, the Fifth Division of this court stated that a proper basis for showing the requisite increased need of a child is evidence that, since entry of the original support order, the child has grown older and the cost of living has risen. The court went on to state that, if the evidence also shows an increase in the supporting parent's ability to pay, an increase in child support would be warranted. (48 Ill. App. 3d 859, 863.) The Addington rule has been relied upon in several cases, including the Schmerold and Scott cases cited above. These latter cases were respectively cited in In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 682, 426 N.E.2d 246, and In re Marriage of Helfrich (1981), 101 Ill. App. 3d 1070, 1072, 428 N.E.2d 1149.
3 We believe the Addington rule should not be mechanically applied by the courts when making support-increase determinations. Simple logic dictates that the first element of the test, the child having grown older, will always be met. Further, given the economic climate of this country over the last two decades, it is obvious the second element, an increase in the cost of living, can generally be shown. As a result, the test is reduced to the question of whether the supporting parent's ability to pay has increased. We posit that application of the Addington rule in such circumstances fails to comply with the requirements of section 510 of the Act. Rote application of that rule simply fails to determine that the required showing of a substantial change in circumstances has been made.
Instead, we believe the proper test can be found in the cases cited by the Addington court in formulating the rule, Smith v. Smith (1971), 132 Ill. App. 2d 722, *435 270 N.E.2d 206, and Kelleher v. Kelleher (1966), 67 Ill. App. 2d 410, 214 N.E.2d 139. In Smith, the court noted that the cost of living had increased but focused upon the fact that two of the parties' three children had begun school since entry of the initial support order, resulting in new expenses. The court also found the husband's income had increased significantly without the addition of extra expenses to him. In Kelleher as well, the court noted the parties' three children had begun school since entry of the original support order, entailing new costs. Further, after entry of the original order, one of the children was diagnosed as mentally retarded, which involved expenses unanticipated at the time of the first decree. The court also noted the husband's income had more than doubled, allowing him to expend sums for what it considered "luxury" activities. In sum, these cases contained specific evidence of significant unforeseen or otherwise additional increases in the custodial parent's cost of living which constituted the requisite substantial change in circumstances.
4 Applying such reasoning to the present case, it is clear the circuit court correctly denied an increase in support for the second son, Mark. The record is devoid of evidence of Joan's expenses for Mark at the time of the original decree in 1974. Also, in contrast to the evidence she presented about her youngest child, Laura, Joan did not even attempt to itemize the individual factors underlying her determination of the amount she spent per month on Mark. By her own admission, the figure was a guess. The circuit court committed no error in modifying the earlier decree solely to the extent of requiring William to pay support only until Mark's graduation from high school, expected eight months after his 18th birthday.
5 As for Laura, the court's order increasing support by $85 per month was not an abuse of discretion. As Joan's brief notes, "the record is devoid of any evidence of the lifestyle of the child." Joan's testimony concerning the 1980 expenses for this daughter admittedly involved only guesses. In making her argument that the support payments should be greater, Joan relies upon "guidelines" established by the Domestic Relations Division of the Circuit Court of Cook County, which set support amounts as a percentage of income. Joan asserts the circuit court ignored these guidelines here. We find this argument without merit. This court has previously noted that an order setting child support solely on the basis of such arbitrary percentage rates does not comply with the requirements of section 505 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 505). (See In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1114, 421 N.E.2d 1308.) No support order will be reversed simply for failing to adhere to these guidelines. Here, the circuit court committed no error in modifying the support order to the extent which it did.
*436 III
Joan contends the circuit court abused its discretion in failing to enter the order increasing child support nunc pro tunc to the date of the filing of the modification petition.
A nunc pro tunc order is an entry made now to make the record speak for something done previously. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1055, 399 N.E.2d 216, appeal denied (1980), 81 Ill. 2d 584.) One of the uses of such an order is to correct a record which lacks an order actually made earlier but omitted therefrom for some reason. If there was no earlier order to which a nunc pro tunc order can relate back, use of such an order is improper. Furth v. Furth (1972), 5 Ill. App. 3d 73, 76, 283 N.E.2d 102.
6 Here, a nunc pro tunc order would be inappropriate since no earlier order modifying the initial support decree was made but omitted from the record. However, the circuit court could have retroactively modified the support obligation to the date of filing of the modification petition. (See In re Marriage of Junge (1979), 73 Ill. App. 3d 767, 771, 392 N.E.2d 313; Dixon v. Dixon (1977), 45 Ill. App. 3d 934, 938, 360 N.E.2d 486.) The record does not indicate the circuit court considered this option. We find no basis in the record why the modification order should not have been made retroactive. We therefore modify the judgment to provide for such retroactive modification to December 1980.
IV
Joan asserts she did not receive a fair hearing, and the case should be remanded for rehearing for that reason.
We have reviewed the record of proceedings in this case. In our opinion, neither Joan nor her children were prejudiced by the manner in which the hearing proceeded below. Consequently, we decline to accept her argument.
For the foregoing reasons, we affirm that portion of the circuit court's decision concerning child support for Mark; we modify the circuit court's decision concerning child support for Laura by making the increase thereof retroactive to the filing of Joan's petition; and we reverse that part of the circuit court's order allowing William to offset amounts he owed to Joan with support overpayments he had made.
Affirmed in part; reversed in part; modified in part.
STAMOS, P.J., and PERLIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4555633/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:08 AM CDT
- 179 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ARNOLD v. WALZ
Cite as 306 Neb. 179
Joy Arnold, Personal Representative of the
Estate of Beverly Freiden, deceased, appellee, v.
Michael J. Walz, an individual, appellant,
and John Doe et al., appellees.
___ N.W.2d ___
Filed June 19, 2020. No. S-19-619.
1. Jurisdiction. A question of jurisdiction is a question of law.
2. Summary Judgment. Summary judgment is proper when the plead-
ings and the evidence admitted at the hearing disclose that there is no
genuine issue as to any material fact or as to the ultimate inferences that
may be drawn from those facts and that the moving party is entitled to
judgment as a matter of law.
3. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
4. Equity: Quiet Title. A quiet title action sounds in equity.
5. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion indepen-
dent of the conclusion reached by the trial court, provided that where
credible evidence is in conflict on a material issue of fact, the appellate
court considers and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the facts rather
than another.
6. Jurisdiction: Time: Notice: Appeal and Error. Under Neb. Rev. Stat.
§ 25-1912 (Cum. Supp. 2018), to vest an appellate court with jurisdic-
tion, a party must timely file a notice of appeal.
7. Judgments: Time: Notice: Appeal and Error. Under Neb. Rev. Stat.
§ 25-1912(3) (Cum. Supp. 2018), filing a timely motion for a new trial
or a timely motion to alter or amend a judgment terminates the time in
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which a notice of appeal must be filed; instead, the 30-day period to
appeal starts anew upon the entry of the order ruling upon the motion
for a new trial or the motion to alter or amend a judgment.
8. Pleadings: Judgments. In some circumstances, an appellate court may
treat a postjudgment motion under a different title as a motion to alter
or amend a judgment, based on the actual relief it seeks, rather than the
way it was titled by the movant.
9. Pleadings: Judgments: Time. A motion to reconsider may be treated
as a motion to alter or amend under Neb. Rev. Stat. § 25-1329 (Reissue
2016) if it was filed no later than 10 days after the entry of judgment,
and must seek substantive alteration of the judgment.
10. Options to Buy or Sell: Real Estate: Words and Phrases. An option
to purchase real estate is a unilateral contract by which the owner of
the property agrees with the holder of the option that he or she has
the right to buy the property according to the terms and conditions of
the option.
11. Options to Buy or Sell: Real Estate. Under an option to purchase
real estate, the owner does not sell the land; nor does the owner at the
time contract to sell. The owner does, however, agree that the person to
whom the option is given shall have the right, at his or her election or
option, to demand the conveyance in the manner specified.
12. Options to Buy or Sell: Real Estate: Time. An option to purchase real
estate compels performance within the time limit specified or, if none is
mentioned, then within a reasonable time.
13. Options to Buy or Sell: Real Estate. Options to buy or sell real estate
should be strictly construed and not extended beyond their express
provisions.
14. ____: ____. The exercise of an option to buy or sell real estate must be
absolute, unambiguous, without condition or reservation, and in accord
ance with the offer made.
15. ____: ____. Where a real estate option contract specifies the required
manner of acceptance, the holder must conform.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
James R. Place, of Place Law Office, for appellant.
Edward F. Pohren, of Smith, Slusky, Pohren & Rogers,
L.L.P., for appellee Joy Arnold.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Miller-Lerman, J.
NATURE OF CASE
Michael J. Walz, the appellant, leased real property from
Beverly Freiden, and the lease included an option to purchase
the property at any time before the end date of the lease. During
Walz’ tenancy, Beverly Freiden died. Joy Arnold (Arnold), an
appellee, and Jon Freiden were appointed copersonal represent
atives of her estate. Beverly Freiden’s will provided that the
property would remain in the estate, or if sold, the proceeds
would be divided variously as indicated later in this opinion.
After the term of Walz’ initial option ended, Jon Freiden and
Walz executed several lease modifications which purportedly
extended Walz’ option to buy the real property. Walz eventu-
ally claimed he owned the property. Arnold was reappointed
personal representative of the estate and petitioned the district
court for Douglas County seeking a declaratory judgment and
to quiet title to the property in the estate. Arnold claimed that
the property had not been distributed and remained in the
estate, and she alleged that the purported lease modification
contracts between Jon Freiden and Walz were improper and
unenforceable. The district court granted Arnold’s motion for
summary judgment and quieted titled in favor of the estate.
Walz appealed. We affirm.
STATEMENT OF FACTS
Beverly Freiden died on December 8, 2012. In the sub-
sequent related probate proceedings in the county court for
Douglas County, Arnold and Jon Freiden were appointed coper
sonal representatives of the estate. Beverly Freiden’s last will
and testament stated, inter alia, that her real property, an unim-
proved lot located at the southwest corner of 18th and Jackson
Streets in Omaha, Nebraska,
may either be sold or retained by my personal represent
atives as they shall determine, and upon sale, whenever
it occurs, my son, Jon Freiden, shall receive the first
$25,000 from the sale and the remainder of the net sale
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proceeds shall be paid over to my grandson, Bart Arnold
for his care; provided however, if I am not the owner of
said real estate at the time of my death, then I give, devise
and bequeath from my estate to my son, Jon Freiden,
the sum of $25,000.00 and I give, devise and bequeath
the reminder of the net sale proceeds received when
the property was sold to my grandson, Bart Arnold for
his care.
Arnold and Jon Freiden, as copersonal representatives, did not
sell the property. They filed an informal closing by verified
statement on December 31, 2013, which stated, consistent with
Neb. Rev. Stat. § 30-24,117(b) (Reissue 2016), that Arnold
and Jon Freiden’s appointments as copersonal representatives
“shall terminate one year after the filing hereof.” The schedule
of distribution regarding Beverly Freiden’s assets provided that
“[c]ash and real estate” would be distributed to Jon Freiden.
The parties agree that this reference to “real estate” was
undoubtedly describing the real property at issue in this case. It
is undisputed that there is no evidence of recording (such as a
deed), and the will did not designate the real estate as an asset
to be given wholly to Jon Freiden.
The appellant, Walz, had leased the real property from
Beverly Freiden since at least 2012 and was interested in
eventually buying the real property. The dispute before this
court arises from an option-to-purchase provision originally
included in a February 1, 2012, lease between Beverly Freiden
and Walz. The lease/purchase agreement was for a period of
tenancy to terminate on July 31, 2014. The 2012 option to pur-
chase (2012 Option) provided as follows:
6. OPTION TO PURCHASE: The Tenant shall,
simultaneously with the execution hereof, have an option
to purchase the leased premises under the following
terms and conditions:
a. The option price at the end of the lease term to
be $20,000.00, which option price shall be available to
the Tenant only if all of the lease payments as set forth
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herein have been paid. The Tenant may exercise his
option at any time before July 31, 2014, however, the
option price shall then be $20,000.00, and in addition, an
amount equal to the number of unpaid rental installments
(as set forth above) multiplied by $250.00.
b. Tenant must exercise this option in writing at the
address of the Landlord or her agent or representative at
any time during the term of the lease as set forth herein.
c. Upon exercise of this option, the Tenant shall close
on the purchase not later than August 15, 2014.
Walz did not exercise the 2012 Option during the origi-
nal tenancy.
In July 2014, Walz presented Jon Freiden with a docu-
ment titled “MODIFICATION TO LEASE/PURCHASE
AGREEMENT” (2014 Agreement). Jon Freiden signed the
document as a “[r]epresentative for Beverly Freiden” on
August 4; Walz and Arnold did not sign the document. The
2014 Agreement stated that “both parties had entered into a
prior agreement regarding the parking lot” and provided:
Both parties wish to make the following modifications
to the original agreement.
1. . . . Walz is to be responsible for the payment of the
real estate taxes for this property.
2. The balance owed as of August 1, 2014 for the pur-
chase of this property is $15,000.
3. . . . Walz will continue to make montly payments
in the amount of $250 each month due on the first of
the month and late after the 15th of each month. If the
payment is received late, a $25 late fee will be due
and payable.
4. This agreement is for one year, ending on July 31,
2015. At the end of this agreement the balance of $12,000
will be paid off or this agreement will be renegotiated at
that time.
5. Jon Freiden will provide to . . . Walz, legal documents
showing that as son for Beverly Freiden, he has author-
ity to sell this property on behalf of Beverly Freiden.
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Walz did not exercise the option to purchase the real property
by July 31, 2015. After the terms of the 2014 Agreement ended,
Jon Freiden and Walz executed another “MODIFICATION TO
LEASE/PURCHASE AGREEMENT” (2015 Agreement) on
August 28, 2015. It stated, inter alia:
2. The balance owed as of August 1, 2015 for the pur-
chase of this property is $11,750.
3. . . . Walz will continue to make monthly payments
in the amount of $250 each month due on the first of
the month and late after the 15th of each month. If the
payment is received late, a $25 late fee will be due
and payable.
4. This agreement is for one year, ending on July 31,
2016. At the end of this agreement the balance will be
paid off or this agreement will automatically renew at the
same terms and conditions as the previous year.
Based on the 2015 Agreement, Walz began to exercise control
of the property and claims that he had purchased the property
from Jon Freiden.
In January 2017, Arnold petitioned the county court for
Douglas County to reopen the estate of Beverly Freiden,
alleging that assets of the estate were not fully distributed
and needed to be distributed. On January 24, that court reap-
pointed Arnold as personal representative of the estate. Jon
Freiden, whose appointment as personal representative had
expired, was not involved in the second appointment. See
§ 30-24,117(b).
Arnold, as sole personal representative of the estate, filed
a complaint in the district court for Douglas County seek-
ing declaratory judgment and quiet title to the property. The
complaint alleged that Walz had not timely exercised the 2012
Option, and it indicated that there was no enforceable modifi-
cation. Walz filed an answer denying the allegations.
Arnold moved for summary judgment. Arnold claimed that
the real property had never been distributed and remained
in the estate, and Walz claimed that either he had purchased
the property from Beverly Freiden according to a modified
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option agreement or the property was distributed to Jon
Freiden, who sold it to Walz.
The district court held a hearing on the motion for summary
judgment and received evidence but agreed not to hear oral
arguments until after the parties could review the evidence
and submit briefs. The parties submitted briefs but did not
provide notice of a hearing. The court took the matter under
advisement. In its written order, filed December 6, 2018, the
district court granted Arnold’s motion for summary judgment
and quieted title in favor of the estate. The court found that
Walz had not exercised the 2012 Option, because he had not
attempted to exercise it before July 31, 2014, and had not
“‘close[d] on the purchase not later than August 15, 2014,’” as
required by the contract. The district court also found that the
subsequent 2014 Agreement and 2015 Agreement were unen-
forceable with respect to the option to purchase, because the
option had ended on its own terms and there was no longer a
valid option to exercise by Walz as a holdover tenant.
On December 13, 2018, Walz filed a “Motion for New
Hearing and/or Motion to Reconsider and Set Aside Order
Granting Summary Judgment on December 6, 2018.” Walz
sought reconsideration of the summary judgment order,
because the court had not held oral arguments on the motion
and had made “[e]rrors in [l]aw . . . contrary to the [e]vidence.”
At the hearing on Walz’ motion, in addition to identifying
the aforementioned claimed procedural irregularities with the
motion for summary judgment, Walz claimed that the court
had failed to consider several of his arguments related to
the validity of the 2014 Agreement and 2015 Agreement and
attacked the judgment on the basis of errors of substantive
law. The district court denied Walz’ motion to reconsider, and
Walz appeals.
ASSIGNMENTS OF ERROR
Walz assigns, summarized and restated, that the district
court erred when it found there were no disputed material facts,
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concluded that the property remained in the estate, granted
summary judgment in favor of Arnold, and quieted title in
the estate.
STANDARDS OF REVIEW
[1] A question of jurisdiction is a question of law. Clarke
v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d
284 (2017).
[2,3] Summary judgment is proper when the pleadings and
the evidence admitted at the hearing disclose that there is no
genuine issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law. Meyer
Natural Foods v. Greater Omaha Packing Co., 302 Neb.
509, 925 N.W.2d 39 (2019). An appellate court will affirm a
lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Id.
[4,5] A quiet title action sounds in equity. Adair Holdings
v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020). On appeal
from an equity action, an appellate court tries factual questions
de novo on the record and, as to questions of both fact and law,
is obligated to reach a conclusion independent of the conclu-
sion reached by the trial court, provided that where credible
evidence is in conflict on a material issue of fact, the appellate
court considers and may give weight to the fact that the trial
judge heard and observed the witnesses and accepted one ver-
sion of the facts rather than another. Id.
ANALYSIS
Walz’ Notice of Appeal Was Timely.
Arnold claims that Walz’ postjudgment motion did not ter-
minate the 30-day period during which a party may file a
notice of appeal. See Neb. Rev. Stat. § 25-1912 (Cum. Supp.
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2018). Therefore, we initially address Arnold’s contention that
Walz failed to timely appeal the district court’s May 30, 2019,
dispositive order.
[6,7] Under § 25-1912, to vest an appellate court with juris-
diction, a party must timely file a notice of appeal. Clarke v.
First Nat. Bank of Omaha, supra. A party must file a notice of
appeal within 30 days of the judgment, decree, or final order
from which the party is appealing. Id. However, filing a timely
motion for a new trial or a timely motion to alter or amend a
judgment terminates the time in which a notice of appeal must
be filed. Id. Instead, the 30-day period to appeal starts anew
upon the entry of the order ruling upon the motion for a new
trial or the motion to alter or amend a judgment. Id.
[8,9] In some circumstances, an appellate court may treat
a postjudgment motion under a different title as a motion to
alter or amend a judgment, based on the actual relief it seeks,
rather than the way it was titled by the movant. See, id.; State
v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002). A motion to
reconsider may be treated as a motion to alter or amend under
Neb. Rev. Stat. § 25-1329 (Reissue 2016) if it was filed no
later than 10 days after the entry of judgment, and must seek
substantive alteration of the judgment. See, Clarke v. First Nat.
Bank of Omaha, supra; State v. Bellamy, supra.
Arnold asserts that we should not treat Walz’ “Motion to
Reconsider and Set Aside Order Granting Summary Judgment”
as a motion to alter or amend, because it sought relief based
on procedural irregularities in the summary judgment hearing
and did not request a substantive alteration of the judgment.
We disagree.
The motion on its face as well as the transcripts of the
hearing on Walz’ postjudgment motion show that Walz sought
relief based on both procedural and substantive reasons. Walz
asserted several errors of law, including a claim that the
district court had failed to consider when a personal rep-
resentative was barred from seeking a “clawback” of real
property. We consider Walz’ motion to be a motion to alter
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or amend, and accordingly, Walz’ notice of appeal was timely
filed following consideration of his postjudgment motion. See
§§ 25-1329 and 25-1912. See, also, Clarke v. First Nat. Bank
of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).
Walz Did Not Exercise the Option in Lease.
We begin by examining Walz’ claim to the property based
on the 2012 Option. The trial court found that Arnold’s evi-
dence showed that the option was not executed. Walz did not
refute this finding, and we therefore agree with the ruling by
the trial court.
[10-12] An option to purchase real estate is a unilateral
contract by which the owner of the property agrees with the
holder of the option that he or she has the right to buy the
property according to the terms and conditions of the option.
Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017). By
such an agreement, the owner does not sell the land; nor does
the owner at the time contract to sell. Id. The owner does,
however, agree that the person to whom the option is given
shall have the right, at his or her election or option, to demand
the conveyance in the manner specified. Id. An option compels
performance within the time limit specified or, if none is men-
tioned, then within a reasonable time. Id.
[13-15] Options should be strictly construed and not
extended beyond their express provisions. State Securities Co.
v. Daringer, 206 Neb. 427, 293 N.W.2d 102 (1980); Wright v.
Barclay, 151 Neb. 94, 36 N.W.2d 645 (1949). The exercise of
an option to buy or sell real estate must be absolute, unam-
biguous, without condition or reservation, and in accordance
with the offer made. State Securities Co. v. Daringer, supra;
Master Laboratories, Inc. v. Chesnut, 154 Neb. 749, 49 N.W.2d
693 (1951). Where the contract specifies the required manner
of acceptance, the holder must conform. Gleeson v. Frahm, 211
Neb. 677, 320 N.W.2d 95 (1982).
Among its other requirements to exercise the right to pur-
chase the property, the 2012 Option was timebound and pro-
vided, “The Tenant may exercise his option at any time before
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July 31, 2014 . . . .” Here, the district court found that Walz’
actions were insufficient to exercise the option prior to the
expiration of this term. Walz’ evidence did not refute this
finding. Therefore, the option expired under the terms of the
original lease/purchase agreement, strictly construed. It appears
from the record that Walz continued his tenancy and proceeded
as though the option had not been extinguished. However, after
July 31, 2014, Walz became a holdover tenant and his tenancy
rights no longer included the right to elect or opt to buy the
leased real property according to the terms of the 2012 Option.
See Wright v. Barclay, supra. Because the option contained in
the lease is not one of the terms of the tenancy itself, Nebraska
law does not recognize that an option would be incorporated
into a subsequent lease of a holdover tenant. See id. In this
case, the original lease/purchase agreement and 2012 Option
did not contain any provision for renewal of the lease or of the
option, which might alter these general rules.
With respect to the effect of the 2014 Agreement and
2015 Agreement, which purportedly modified the 2012
lease/purchase agreement to empower Walz to treat his rent
payments as installment payments to buy the real property,
these contracts, if analyzed on their face, do not provide
continuity with the original lease/purchase agreement and
did not revive the original but extinguished option to buy the
property. Although they are framed as a contract modifica-
tion, they cannot modify a terminated contract. The district
court did not err when it found that the effect of the 2014
Agreement and 2015 Agreement was “moot” with regard to
the 2012 Option, because there was no longer a valid option
to exercise or modify.
Walz suggests that the effect of the 2014 Agreement and
2015 Agreement was to retroactively apply Walz’ rent pay-
ments to a “balance owed” on the property. Contrary to Walz’
suggestion, the terms of the modifications regarding a balance
owed are more in the nature of a land contract or install-
ment contract and not consistent with the original lease/pur-
chase agreement, which had provided for a purchase price of
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$20,000. The 2012 Option did not suggest an intent that the
original option should continue after July 31, 2014, in such
a manner, and the 2014 Agreement and 2015 Agreement did
not expressly create a new option to buy the property. It is
well settled that “[t]he terms of an option should be precisely
regarded and enforced without addition or alteration.” Master
Laboratories, Inc. v. Chesnut, 154 Neb. at 752, 49 N.W.2d at
696. The 2012 Option was limited in express terms and dura-
tion and could not be exercised or modified beyond its expira-
tion. The district court did not err when it concluded that by
application of the law to the unrefuted evidence, Walz had not
exercised a valid option.
The District Court Did Not Err When
It Quieted Title in the Estate.
Walz next claims that the district court erred when it quieted
title to the real property in the estate. Walz contends that the
property was distributed to Jon Freiden at the conclusion of the
original informal probate and that Jon Freiden later sold the
property to him. We reject this claim of error.
A deed of real estate, signed by the grantor, lawfully
acknowledged, and recorded as directed by statute, is gener-
ally required to transfer title to real estate. Neb. Rev. Stat.
§ 76-211 (Reissue 2018). But real property may be distrib-
uted in kind in accordance with the will; the absence of a
recorded deed does not invalidate the instruments in the
probate proceedings between the parties. See Neb. Rev. Stat.
§§ 30-24,104 (Reissue 2016) and 76-238(1) (Reissue 2018).
Section 30-24,104(a) provides, in relevant part, that “[u]nless
a contrary intention is indicated by the will, the distributable
assets of a decedent’s estate shall be distributed in kind to the
extent possible . . . .”
Had the will of Beverly Freiden designated the real prop-
erty to Jon Freiden without caveat, the property would have
devolved upon her death without a deed. However, the will
demonstrates a contrary intention. Beverly Freiden directed
that the property
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may either be sold or retained by my personal represen-
tatives as they shall determine, and upon sale, whenever
it occurs, my son, Jon Freiden, shall receive the first
$25,000.00 from the sale and the remainder of the net
sale proceeds shall be paid over to my grandson, Bart
Arnold for his care.
The real property remained in the estate, and Jon Freiden
was entitled to only the first $25,000 of the proceeds upon a
sale of the real property. Pursuant to the will, the real prop-
erty was not required to be distributed in kind to Jon Freiden
because it was also meant to support Bart Arnold to the extent
there would be additional sale proceeds.
Although the distribution sheet mentions that Jon Freiden
was to receive real property from the estate, there is no evi-
dence, such as the personal representative’s deed, demonstrat-
ing that a conveyance from the estate to Jon Freiden took
place. To the contrary, the evidence included a continuity of
registered ownership with no reference to Jon Freiden. In light
of the intent of the will, the distribution sheet was not a con-
veyance of the property to Jon Freiden. Because Jon Freiden
did not own the real property, he did not possess the authority
to unilaterally convey the property to Walz. There is no genu-
ine issue of material fact with respect to the fact that the real
property remained in the estate. The district court did not err
when it quieted title in the estate.
CONCLUSION
Walz, a tenant of the real property of the decedent, Beverly
Freiden, did not exercise the option associated with the lease,
and subsequent purported options were not valid or enforceable.
The real property remained in the estate. Accordingly, we
affirm the order of the district court that granted Arnold’s
motion for summary judgment and quieted title in the estate.
Affirmed. | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2516284/ | 31 F. Supp. 2d 1298 (1998)
SAC AND FOX NATION OF MISSOURI, Iowa Tribe of Kansas and Nebraska, Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas, Plaintiffs,
v.
John D. LAFAVER, Secretary Kansas Department of Revenue, Defendant.
No. Civ.A. 95-4152-DES.
United States District Court, D. Kansas.
December 17, 1998.
*1299 *1300 Mark S. Gunnison, Stephen D. McGiffert, Payne & Jones, Chtd., Overland Park, KS, John R Shordike, Patricia Prochaska, Berkeley, CA, Paul Alexander, Alexander & Karshmer, Washington, DC, for Sac and Fox Nation of Missouri, Iowa Tribe of Kansas & Nebraska, plaintiffs.
Pedro L. Irigonegaray, Robert V. Eye, Irigonegaray & Associates, Topeka, KS, Mario Gonzalez, Horton, KS, for Kickapoo Tribe of Indians, plaintiff.
Amy Weller Liebau, Hinkle, Eberhart & Elkouri, L.L.C., Wichita, KS, John Michael Hale, Jason L. Reed, Kansas Department of Revenue, Bureau of Legal Services, Topeka, KS, for John D. Lafaver, defendant.
MEMORANDUM AND ORDER
SAFFELS, District Judge.
This matter is before the court on defendant's Motion for Summary Judgment (Doc. 93) and plaintiffs' Motion for Summary Judgment (Doc. 94).
I. BACKGROUND
The basic facts in this case are not in dispute. The plaintiffs are three federally-recognized Indian Tribes: the Sac and Fox Nation of Missouri ("Sac and Fox"); the Iowa Tribe of Kansas and Nebraska ("Iowa"); and the Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas ("Kickapoo") (collectively the "Tribes"). Sac and Fox is the beneficial owner of and exercises jurisdiction over the Sac and Fox Indian Reservation, as well as land located at Reserve, Kansas, which land is held in trust for Sac and Fox by the United States of America. Iowa is the beneficial owner of and exercises jurisdiction over the Iowa Tribe of Kansas and Nebraska Indian Reservation. A part of the Iowa land is held in trust for Iowa by the United States of America. Kickapoo is the beneficial owner of and exercises jurisdiction over land within the Kickapoo Nation's federally recognized boundaries, which land is held in trust for Kickapoo by the United States of America. All three plaintiffs operate retail gasoline stations on their reservations, and assess tribal taxes on their motor-vehicle fuel sales.
On May 7, 1995, the Kansas Legislature passed Senate Bill 88 ("SB 88"), which is codified at Kan.Stat.Ann. § 79-3408g(d)(2).[1] Section 79-3408g(d)(2) provides as follows:
No tax is hereby imposed upon or with respect to the following transactions: ... (2) The sale or delivery of motor-vehicle fuel or special fuel to the United States of America and such of its agencies as are now or hereafter exempt by law from liability to state taxation, except that this exemption shall not be allowed if the sale or delivery of motor-vehicle fuel or special fuel is to a retail dealer located on an Indian reservation in the state and such motor-vehicle fuel or special fuel is sold or delivered to a nonmember of such reservation.
*1301 On May 17, 1995, the legislature passed House Bill 2161 ("HB 2161"), which is codified at Kan.Stat.Ann. § 79-3408(d)(2). Section 79-3408(d)(2) contains the exemption language of section 79-3408g(d)(2), but does not contain the exception for deliveries to nonmembers of Indian reservations. Section 79-3408(d)(2) reads as follows: "No tax is hereby imposed upon or with respect to the following transactions: ... (2) The sale or delivery of motor-vehicle fuel or special fuel to the United States of America and such of its agencies as are now or hereafter exempt by law from liability to state taxation."
On September 6, 1995, the Kansas Department of Revenue ("DOR") announced its intention to begin collecting tax on motor-vehicle fuel sales from distributors to plaintiffs. Plaintiffs challenged the imposition of this tax and alleged that the Kansas statutes purporting to subject the Tribes to the state's motor-vehicle fuel tax are unconstitutional and preempted by federal law. On October 5, 1995, this court entered a temporary restraining order enjoining and restraining DOR from applying and enforcing the collection of any motor-vehicle fuel tax on tribal retail motor-vehicle fuel sales on Indian lands, including sales from distributors to plaintiffs, as outlined in Senate Bill No. 88, signed on May 7, 1995, and House Bill No. 2161, signed on May 17, 1995, and implemented on September 6, 1995. The court further ordered that the temporary restraining order would be effective until such time as the court had ruled on plaintiffs' motion for preliminary injunction. The court ordered a preliminary injunction on October 30, 1996.
II. SUMMARY JUDGEMENT STANDARD
A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S. Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden "by `showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) The movant need not negate the nonmovant's claim. Id. at 323, 106 S. Ct. 2548.
Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S. Ct. 2548 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S. Ct. 2548. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S. Ct. 2548.
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., U.S. v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) (stating that "[t]he court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues"). The *1302 court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S. Ct. 2505. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S. Ct. 2505.
III. ANALYSIS
A. Standing
Under the United States Constitution, federal courts only have jurisdiction to hear a matter if there is a "case or controversy." U.S. Const. art. III, § 2. One element of the case or controversy requirement is that the plaintiff must establish that they have standing to sue. Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312, 2317, 138 L. Ed. 2d 849 (1997). The standing inquiry focuses on whether the plaintiffs are the proper parties to bring this suit. Id. In order to meet the standing requirements of Article III, "`[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'" Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984)).
The defendant claims that the plaintiffs cannot meet the threshold requirement of standing to maintain this suit. In support of this contention, the defendant states that the distributors of the motor-vehicle fuel are the proper party because they are responsible for the payment of the taxes to the state.
Standing contains three requirements. First, there must be an "injury in fact" a harm suffered by the plaintiffs that is "concrete" and "actual or imminent." The second requirement is causation a traceable connection between the plaintiffs' injuries and the defendant's actions. Finally, there must be redressability, or a likelihood that the requested relief will redress the alleged injury. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S. Ct. 1003, 1016-17, 140 L. Ed. 2d 210 (1998).
The court finds that the plaintiffs in this action meet the constitutional requirements for standing. The court has no doubt that the tax in question will be passed along to the tribal retailers if it is paid by the distributors. As discussed below, this is specifically allowed by the laws in question. The plaintiffs would then be left with two choices. First, the tribe could pass the tax along to the consumer, which would raise the price of fuel and undoubtedly lower sales. The other option would be to absorb the tax themselves in an effort to keep sales up. In either case, the plaintiffs would suffer a real economic loss if the tax is charged to the distributor. This satisfies the first requirement of "injury in fact." There is no causation concern in this case. Clearly it is the tax in question that would cause the plaintiffs' injuries. Finally, the court finds that by granting a permanent injunction and finding the tax in question unenforceable, the court can adequately redress the plaintiffs' injuries. Having met the three requisite showings for standing, the court finds that this case is properly brought by the plaintiffs and should proceed on its merits.
B. Tax Compacts
The plaintiffs claim that the tax in question is barred by tax compacts entered into by the respective tribes and the state of Kansas. In 1991 and 1992, the respective tribal counsel, the governor of the state of Kansas, and the secretary of the Kansas Department of Revenue entered into these compacts. According to the terms of the compacts, the state agreed not to tax certain transactions which involved the tribes, provided that the tribes placed a tax on the consumers. The plaintiffs allege that these compacts prohibit the state from taxing the fuel purchased by the tribes for resale. The defendant claims that, because these compacts were never approved or ratified by the Kansas Legislature, they have no legal effect.
As an initial note, these compacts, by their own language, were effective only until 1996, if at all. No compacts have been entered into by the tribes and the state since 1996. Therefore, this argument only pertains to the portion of the taxes in question which relate to dates prior to 1996.
The leading case in Kansas concerning the governor's ability to bind the state under a compact is State ex rel. Stephan v. *1303 Finney, 251 Kan. 559, 836 P.2d 1169 (1992). In Finney, the Kansas Supreme Court invalidated gaming compacts entered into by then Governor Finney and certain Indian tribes located in Kansas. The court held that the compacts in question would have created substantive changes in the state's government by creating a new agency and substantively changing the state law. This, held the court, was the function of the state legislature, not the governor.
The plaintiffs claim that the Finney case is not controlling because it is distinguishable. One of the major concerns the Kansas Supreme Court had with the compacts at issue in Finney was that the compacts would create a new set of duties and responsibilities on a state agency. Clearly the Finney case is distinguishable on this point. The compacts in this case would have no impact on the duties or functions of any existing state agency and would not have the effect of creating a new state agency. Therefore, the court's holding that creating such additional duties on a state agency is beyond the authority of the governor does not provide any guidance when the governor does not undertake such a task, as is the case presently before the court. Another problem discussed by the court in Finney was that the compacts would have made substantive changes to the state laws. While the plaintiffs claim that the compacts in this case would not alter state law, the court disagrees.
Although the current compacts would not have created any new government agencies in the state of Kansas, the compacts would have made a substantive change to state law. If the compacts were to be applied as is requested by the plaintiffs in this case, the compacts would have created an exemption to the existing state tax laws. The creation of tax exemptions is function for the state legislature, not the governor. The legislature clearly considered whether certain transactions involving motor-vehicle fuel should be given a tax exemption, as evidenced by the fact that many are included in the tax statutes. To allow the governor to create new tax exemptions without the approval of the state legislature would be a violation of the Kansas Constitution. As the Kansas Supreme Court held in Finney, this court holds that although the governor of Kansas had the authority to negotiate the compacts in question with the Indian tribes, only the legislature has the authority to make those compacts binding. Therefore, the tax compacts at issue in this case are of no legal effect.
C. Statutory Exemptions
The plaintiffs discuss at length in their briefs that the statutes, upon which the state of Kansas is relying upon to collect the tax, exempt transactions involving Indian tribes. According to the plaintiffs, the two different provisions of Kan.Stat.Ann. § 79-3408 justify an exemption to transactions involving Indian tribes. First, the plaintiffs claim that the provision found in subsection (d)(2) of § 79-3408 allows such an exemption. According to the plaintiffs, subsection (d)(2) should be read as it appears in § 79-3408 and not as it appears in § 79-3408g. The court agrees.
This issue has become extremely confusing because the Kansas Statutes contain two versions of the same statute. Section 79-3408 was amended twice in 1995. Rather than containing only the controlling version of the statute, which the court finds is clearly the version created by House Bill 2161 as it was the latter bill to be passed into law, the bound volume of the Kansas Statutes Annotated contains both versions. The controlling version of the statute provides an exemption from the fuel tax laws on any transactions involving "[t]he sale or delivery of motor-vehicle fuel or special fuel to the United States of America and such of its agencies as are now or hereafter exempt by law from liability to state taxation." Kan.Stat.Ann. § 79-3408(d)(2) (1997) What is not contained in this version is the following language, "except that this exemption shall not be allowed if the sale or delivery of motor-vehicle fuel or special fuel is to a retail dealer located on an Indian reservation in the state and such motor-vehicle fuel or special fuel is sold or delivered to a nonmember of such reservation." Kan.Stat.Ann. § 79-3408g(d)(2) (1997).
The court finds that this language is immaterial to the plaintiffs' case. The exemption at issue in § 79-3408(d)(2) applies to the United States of America and its agencies. *1304 The court is unaware of any legal authority which indicates that federally recognized Indian tribes are agencies of the United States. Plaintiffs have indicated that it was this exemption that was relied upon by the state of Kansas to exempt transactions involving tribal retailers in the past. However, the fact that the state of Kansas had erroneously interpreted the statute to provide an exemption in the past is not sufficient to require them to do so now. Kan.Stat.Ann. § 79-3408(d)(2) does not exempt from the motor-vehicle fuel tax those transactions involving retailers located on Indian reservations.
The plaintiffs also claim that Kan. Stat.Ann. § 79-3408(d)(1) provides an exemption to the motor-vehicle fuel taxes in transactions involving tribal retailers. The section states that no tax is imposed upon transactions involving "[t]he sale or delivery of motor-vehicle fuel or special fuel for export from the state of Kansas to any other state or territory or to any foreign country." Kan.Stat.Ann. § 79-3408(d)(1) (1997).
The question which has been debated at length by both parties is whether the Indian reservations located within the borders of the state of Kansas should be considered another "state or territory" as is provided for in § 79-3408(d)(1). The plaintiffs base their argument in the Act for Admission of Kansas Into the Union and the Organic Act. Both of these acts make it very clear to the court that the Indian reservations are not to be considered part of the state of Kansas in any way. The plain language of both acts states that "all such territory shall be excepted out of the boundaries, and constitute no part of the territory [state] of Kansas."
The defendant claims that the language contained in § 79-3408(d)(1) was not meant to exclude transactions involving Indian tribes. The statute exempts any fuel transactions where the fuel is exported "to any other state or territory or to any foreign country." From this reading, the court can only conclude that the intent of the Kansas Legislature was to exempt any transaction where fuel was to be sold outside the boundaries of the state of Kansas. As the Act for Admission of Kansas into the Union and the Organic Act both clearly exclude the Indian reservations from the boundaries of the state of Kansas, it is only reasonable that § 79-3408(d)(1) provides for an exemption to the transactions involved in this case where fuel is sold to tribal retailers on the recognized reservations.
Based on this ruling, the court finds that the plaintiff's request for a permanent injunction prohibiting the state of Kansas from taxing any and all transactions involving the sale of motor-vehicle fuel to retailers located on reservations must be granted. Although the court finds that the injunction should be granted based upon the exemptions contained in the Kansas statutes, the court will also discuss whether federal law permits the application of the tax, as well.
D. Legal Incidence of the Tax
The first step in determining whether federal law prohibits Kansas from imposing the tax in question is to determine where the legal incidence of the tax falls. Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 458, 115 S. Ct. 2214, 132 L. Ed. 2d 400 (1995). If the legal incidence of the tax falls on the tribal retailers, the state will be prohibited from assessing the taxes. Id. at 459, 115 S. Ct. 2214. However, if the legal incidence of a tax falls on non-tribal members, then there is no categorical bar to the tax. Id.
In Chickasaw Nation, the Court found that the legal incidence of the fuel tax in question fell on the tribes, and thus held that Oklahoma could not enforce the tax. The defendant argues that the tax in question in this case is substantially different from that imposed in the Chickasaw Nation case and that the legal incidence of the tax is on the distributors of motor-vehicle fuels, not on the tribal retailers. The plaintiff contends that, although the two tax statutes are different in some ways, certain key elements remain in the Kansas tax which have the effect of placing the legal incidence of the tax on the tribes. The court agrees with the defendant and holds that the tax in question is legally imposed on the distributors, not on the retailers.
1. Status Prior to 1998 Amendments
In order to determine who the legal incidence of the tax is imposed upon, the court *1305 will compare some of the key provisions discussed by both the United States Supreme Court and the Tenth Circuit Court of Appeals in reaching their determination that Oklahoma's tax was legally imposed on the tribes with the Kansas law in question. In Chickasaw Nation, the Oklahoma tax concerned motor-vehicle fuel taxes "remitted by a distributor on behalf of a licensed retailer." Chickasaw Nation v. State of Oklahoma, 31 F.3d 964, 971 (1994) (emphasis added). The Kansas law contains no provision which states that the distributor is remitting the tax "on behalf of a licensed retailer." In Chickasaw Nation, the Tenth Circuit also notes that the distributor is allowed a credit for any taxes that are uncollectible from the retailer. Id. Although the Kansas law does allow distributors to deduct a 2.5 percent allowance from the amount of motor-vehicle fuel subject to taxes, it is apparent from the statute that this allowance is for losses incurred in actually handling the fuel, such as spillage, and not losses as a result of not collecting taxes from retailers as was the case in Chickasaw Nation.
The tribes argue that the provision in the Kansas legislation which allows distributors to pass the amount of the tax along to the tribes as part of the purchase price has the effect of imposing the legal incidence of the tax on the retailers. Initially, the court wishes to point out that this provision is not mandatory on the distributors. No distributor is required to pass the amount of tax along to the retailer. The fact that the language appears unnecessary due to the fact that the distributors would be able to pass the cost along to retailers even without the statutory authorization in no way affects the plain language of the statute. Distributors have the option of passing the tax along if they wish, but are in no way required to do so by the statute. Contrary to plaintiff's claims, this provision cannot reasonably be read to require distributors to "collect and remit" the taxes in question on behalf of the retailer.
The fact that the amount of the tax may ultimately be funneled down to the tribal retailers has no effect on the legal incidence of the tax. In the Tenth Circuit's opinion in Chickasaw Nation, the legal incidence of the tax did not fall on the tribal retailer because the amount of the tax would ultimately be passed along to the consumer. In response to this argument, the court stated:
While it may well be that the tax is ultimately passed on to the consumer at the pump, the question is whether the statutes in question legally impose the taxes on the Tribe. The question of who bears the ultimate economic burden of the tax is distinct from the question of on whom the tax has been imposed.
Id. at 972.
Plaintiffs claim that several other provisions of the Kansas tax statutes impose the legal incidence of the taxes on the retailer. Plaintiffs claim that the provision of Kan.Stat.Ann. § 79-3408(a) which states that the tax is imposed on all fuel which is "used, sold, or delivered in this state for any purpose whatsoever" is similar to a provision in the Oklahoma tax which was relied upon by the Court to invalidate the Oklahoma tax. The court disagrees. The discussion about the similar provision in the Oklahoma tax by the Court in Chickasaw Nation was centered around the issue of whether the retailer could be considered a mere collection agent for the consumer just as the distributor was a collection agent for the retailer. That analysis is irrelevant here because the court has already determined that, under the Kansas law, the distributor is not acting as a collection agent of the retailer, thus making a determination of whether the retailer was, in turn, simply a collection agent for the consumer unnecessary.
Another provision of the Kansas law which Plaintiff claims is an indication that the legal incidence of the tax falls on the Tribal retailers is the exemption from taxes on sales between distributors, Kan.Stat.Ann. § 79-3408(d)(5). In Chickasaw Nation, the Court construed a similar provision of the Oklahoma tax to indicate that the legal incidence fell on the retailer not the distributor. However, after reading § 79-3408 as a whole, the court comes to a different conclusion in regard to the Kansas exemption. Section 79-3408(c) states "[s]uch tax shall be paid but once." If sales between distributors were not given an exemption from the fuel tax, each transfer of the fuel between distributors *1306 would result in a tax assessment for the amount of fuel transferred. This would clearly lead to multiple taxes on the same fuel as it is passed from distributor to distributor and eventually to a retailer. The court finds that the provision of the Kansas tax which exempts sales between distributors serves the purpose of preventing multiple taxation, and not imposing the legal incidence of the tax on the retailer.
The plaintiffs further point to several provisions of the Kansas Session Laws which they claim places the legal incidence of the tax on the retailer. For example, in Plaintiffs' Reply to Defendant's Response to Plaintiffs' Motion for Summary Judgment, the plaintiffs quote the following passage from the Kansas Session Laws:
It shall be unlawful for any ... retailer to: (3) fail, neglect or refuse to pay the director within the time required by the act, any tax, taxes, interest or penalties for which such person is liable under the provisions of this act.
1995 Kan.Sess.Laws Ch. 262, § 11. The eliminated portion of this bill states that it applies to any "distributor, importer, exporter, manufacturer, retailer, user, carrier, transporter or any other person." Id. The full text of the section also lists seventeen other actions which are made illegal by the bill. Clearly, some of these eighteen illegal acts pertain to only certain groups enumerated in the bill. The language of subsection (3), on which the plaintiffs rely, does not, in any way, impose a tax liability on the retailer. The section states that it is unlawful for any person to "fail, neglect or refuse to pay the director, within the time required by this act, any tax, taxes, interest or penalties for which such person is liable under the provisions of this act." Id. (Emphasis added). This provision does not create or impose any tax liability on any person or entity. Rather, it makes it a criminal offense not to pay taxes that are required under the act. Therefore, unless some other provision in the act places a direct tax burden on the retailer, this section does not apply to retailers.
The next section of the Kansas law which the plaintiffs claim imposes the fuel tax on the retailer is quoted by the plaintiffs as follows:
If any ... retailer ... shall fail, neglect, or refuse to render any report required by the provisions of this act within the period specified, or if the director is not satisfied of the correctness of any report or tax payment made by any ... retailer ... the director is hereby authorized and empowered to determine ... the true amount of taxes, penalties, and interest due the state from such ... retailer.... Promptly after making such determination the director shall send ... a statement to such ... retailer and shall proceed to collect the amount so determined.
1995 Kan.Sess.Laws Ch. 262, § 33. When read in context, this provision does not impose any tax liability on the retailers. The section applies to any "distributor, manufacturer, importer, exporter or retailer." Id. This provision does not impose a tax liability on anyone. It simply gives the director the ability to use any information in the director's possession to determine the correct amount of tax that is owing on the sale of motor-vehicle fuels when an improper amount has been paid. Because no other provision in the act requires the retailer to pay these taxes, the portion pertaining to taxes in this section of the bill does not apply to retailers. However, retailers are required to file reports on the amount of fuel received, thus explaining the inclusion of retailers in this section.
Plaintiffs quote a third section of the Kansas Session Laws which, they claim, imposes the Kansas fuel taxes on the retailer. This section is quoted by the plaintiffs as follows:
Whenever any ... retailer ... is 10 days delinquent in the making of any such report or the payment of any such tax, penalty, or interest ... the director upon conducting a hearing as provided in this section and upon finding to the director's satisfaction upon such hearing, that such retailer ... has been delinquent, or has violated provisions of this act, may revoke any or all licenses issued to such ... retailer.
1995 Kan.Sess.Laws Ch. 262, § 29. As with the other sections of this bill cited by the plaintiffs, the court finds that, despite the *1307 plaintiffs' artful method of selectively quoting the law so as to take the quote completely out of context, this section does not impose the tax in question on retailers. The section states that when any "distributor, manufacturer, importer, exporter or retailer" fails to either pay taxes that are required to be paid, or to file required reports, the director can repeal their licenses. It does not require anyone to pay taxes. Instead, it gives the director power to enforce the tax scheme. As has been stated above, and clearly provided in the Kansas laws, the retailers are required to make reports concerning the amount of fuel they receive, but not to pay or remit any taxes. Therefore, this section of the law is only applicable to retailers insomuch as it relates to the failure to make the required reports. It clearly does not impose the legal incidence of any taxes on the retailer.
2. After 1998 Amendments
In 1998, the Kansas Legislature amended the Kansas tax laws in an effort to clarify where the legal incidence of the motor-vehicle fuel tax fell. These amendments remove most of the language concerning retailers complained of by the plaintiffs in the above section. In addition, the new version of Kan.Stat.Ann. § 79-3408 states:
Unless otherwise specified in K.S.A. 79-3408c, and amendments thereto, the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel....
1997 Kan.Sess.Laws Ch. 421, § 2.
The court has found nothing in the Kansas tax laws, either prior to or after the 1998 amendments, which places the legal incidence of this tax on the retailer. Rather, the statutes are extremely clear in providing that the tax in question is imposed upon the distributor. This, however, does not end the analysis of whether the tax in question should be upheld. Even if the legal incidence of the tax does not fall on the tribal retailers, the court can still invalidate the tax upon a finding that federal and tribal interests in not having the tax enforced outweighs the interests of the state of Kansas in collecting such taxes. See Chickasaw Nation, 515 U.S. at 459, 115 S. Ct. 2214 (holding that a balancing test is used to determine the validity of the tax when the legal incidence of the tax does not fall on the tribe).
F. Balancing of Federal, Tribal and State Interests
The first step in analyzing the balancing test is determining what impact would be sustained by the state of Kansas if the tax in question is invalidated. As an initial point, the court wishes to stress that Kansas has never in the past taxed motor-vehicle fuel transactions involving the Indian tribes. A ruling invalidating the tax would not take money out of the state coffers that had been relied upon in the past. Instead, it would only result in a prohibition on collecting new taxes. In addition, although no evidence is currently before the court concerning what percentage of motor-vehicle fuel sales involve tribal retailers, it is obvious to the court that such transactions make up a very small part of the transactions which would fall under the taxing statute. Invalidating the tax as it applies to transactions involving tribal retailers would not undermine the taxing scheme set up by the tax laws. The state of Kansas would clearly not suffer a great deal of harm if it were enjoined from collecting the tax in question.
The second step in the balancing test would be to determine the impact of the tax on the tribal retailers. It is clear to the court that the each of the plaintiffs in this case rely heavily on the sale of motor-vehicle fuel on their reservations for income. The court has no doubt that the distributors who provide the fuel to the tribal retailers will pass the price of the tax on as a portion of the price. In fact, this practice is specifically authorized in the legislation. See, Kan.Stat. Ann. § 79-3409 (1997). This will leave the tribal retailers with two options: continue to sell the motor-vehicle fuel at the same cost and absorb the cost of the tax that is passed on to them, or pass the tax on to the consumer by increasing prices, which will in all likelihood reduce sales. In either case, the tax will have a real and direct impact on the tribes' incomes. The court finds that the balancing test discussed in Chickasaw Nation shows that the tax must be invalidated. The impact the loss of revenue would have on *1308 tribal functions would be much greater than the impact on the state of Kansas. Tribal autonomy is an important concern not only for the tribes, but for the federal government as well. Without sufficient revenue, tribal autonomy would clearly be compromised. For this reason, the court finds that the tax in question must be invalidated as it relates to transactions involving tribal retailers.
IV. CONCLUSION
Having examined the motions and briefs filed in this case, the court makes the following findings and conclusions. The court finds that the plaintiffs have met the constitutional requirement of standing to bring this lawsuit. The court also finds that the tax compacts entered into between the governor of the state of Kansas and the plaintiffs are of no legal effect. However, Kan. Stat. Ann. § 79-3408(d)(1) provides an exemption from taxation for transactions where motor-vehicle fuel is sold to retailers located on Indian reservations.
As a separate basis for granting the injunction, the court finds that although the legal incidence of the tax in question falls upon the distributors of the motor-vehicle fuel, and not on the tribal retailers, the interests of the plaintiffs in not having the taxes collected far outweighs the interests of the state of Kansas in collecting the tax on transactions involving Indian tribes.
IT IS THEREFORE BY THIS COURT DECLARED that Kan.Stat.Ann. § 79-3408 is invalid insomuch as it applies to the collection of taxes on any and all transactions involving the sale of motor-vehicle fuels to all federally recognized Indian tribes which in turn sell the fuel as a retailer on reservations and trust land located within the state of Kansas.
IT IS THEREFORE BY THIS COURT ORDERED that plaintiffs' Motion for Summary Judgment (Doc. 94) is granted and defendant's Motion for Summary Judgment (Doc. 93) is denied.
IT IS FURTHER ORDERED that the State of Kansas is permanently enjoined from enforcing Kan.Stat.Ann. § 79-3408 and collecting taxes from distributors on the sale of motor-vehicle fuel in all transactions involving the federally recognized Indian tribes who are plaintiffs to this action.
NOTES
[1] Senate Bill 421, which was passed by the Kansas Legislature in 1998, repealed Kan.Stat.Ann. § 79-3408g. However, as this statute was applicable during a portion of the time relevant to this case, it will still be discussed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2043543/ | 758 N.W.2d 928 (2008)
STATE
v.
WALKER.
No. 2008AP0719-CR.
Supreme Court of Wisconsin.
September 11, 2008.
Petition to bypass court of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2718374/ | Third District Court of Appeal
State of Florida
Opinion filed August 15, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-1879
Lower Tribunal No. 14-005658
________________
Ronald Jerome Lee,
Petitioner,
vs.
Marydell Guevara, Director of Miami-Dade County Department of
Corrections,
Respondent.
A Case of Original Jurisdiction - Habeas Corpus
Herbert Erving Walker III, Esq., for petitioner.
Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for respondent.
Before SUAREZ, SALTER and EMAS, JJ.
ON PETITION FOR WRIT OF HABEAS CORPUS
SUAREZ, J.
Ronald Lee filed his petition for writ of Habeas Corpus after the trial court
granted the State’s Motion to Revoke Defendant’s Bond. Mr. Lee requests this
Court to instruct the lower court to either release him or to reduce his bond. The
State has filed a limited concession noting that the trial court failed to comply with
Florida Rule of Criminal Procedure 3.131 by failing to issue the required findings
of fact and conclusions of law in support of the court’s order revoking bond. See
State v Blair, 39 So. 3d 1190 (Fla. 2010); Rigby v. State, 29 So. 3d 390 (Fla. 5th
DCA 2010); Dupree v. Cochran, 698 So. 2d 945 (Fla. 4th DCA 1997).
We grant the petition only insofar as to remand the case to the trial court for
the purpose of holding an immediate evidentiary hearing on the State’s motion to
revoke bond and to make the required findings of fact and conclusions of law. §
704.041(4)(c), Florida Statutes (2013); Fla. R. Crim. P. 3.132(c)(2). Mr. Lee shall
not be released pending the outcome of the evidentiary hearing, or of any appeals
by right. This opinion shall become effective immediately, notwithstanding the
filing of any motion for rehearing.
Petition granted and remanded with instructions.
2 | 01-03-2023 | 08-15-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/108731/ | 410 U.S. 512 (1973)
BRENNAN, SECRETARY OF LABOR
v.
ARNHEIM & NEELY, INC., ET AL.
No. 71-1598.
Supreme Court of United States.
Argued January 16, 1973.
Decided February 28, 1973.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
Andrew L. Frey argued the cause for petitioner. With him on the briefs were Solicitor General Griswold and Richard F. Schubert.
Eugene B. Strassburger, Jr., argued the cause for respondent Arnheim & Neely, Inc. Frank L. Seamans argued the cause for respondent Institute of Real Estate Management. With them on the brief were Eugene B. Strassburger III and Robert P. Lawry.[*]
*513 MR. JUSTICE STEWART delivered the opinion of the Court.
This case began when the Secretary of Labor sued the respondent real estate management company for alleged violations of the Fair Labor Standards Act of 1938, as amended, 52 Stat. 1060, 29 U.S. C. § 201 et seq. The Secretary sought an injunction against future violations of the minimum wage, overtime, and recordkeeping provisions of the Act, as well as back wages for the affected employees. An employee is entitled to the benefits of the minimum wage and maximum hours provisions of the Act if he is, inter alia, "employed in an enterprise engaged in commerce or in the production of goods for commerce. . . ." 29 U.S. C. §§ 206 (a), 207 (a).
As stipulated in the District Court, the respondent company manages eight commercial office buildings and one apartment complex in the Pittsburgh area. With the exception of a minor ownership interest in one of the buildings, the respondent does not own these properties. Its services are provided according to management contracts entered into with the owners. Under these contracts, the respondent obtains tenants for the buildings, negotiates and signs leases, institutes whatever legal actions are necessary with respect to these leases, and generally manages and maintains the properties. The respondent collects rental payments on behalf of the owners, and deposits them in separate bank accounts for each building. These accounts, net of management expenses and the respondent's fees, belong to the owners of the properties. Payments are periodically made from the accounts to these owners.
The respondent's services with respect to the supervisory, maintenance, and janitorial staffs of the buildings are similarly extensive. The respondent conducts the hiring, firing, payroll operations, and job supervision of *514 those employed in the buildings. It also fixes hours of work, and negotiates rates of pay and fringe benefits subject to the approval of the owners. The respondent engages in collective bargaining on behalf of the owners where the building employees are unionized. 324 F. Supp. 987, 990-991.
The District Court held that the maintenance, custodial, and operational workers at the buildings managed by the respondent were "employees," and that the respondent was an "employer," within the meaning of §§ 3 (d) and 3 (e) of the Act, 29 U.S. C. §§ 203 (d), (e). 324 F. Supp., at 990-993. The District Court also held that gross rentals, rather than commissions obtained, were the proper measure of "annual gross volume of sales made or business done" for purposes of the dollar volume portion of the statutory definition of an "enterprise engaged in commerce." Id., at 993-994.[1] Though it rejected the claim that the respondent was sufficiently engaged in commerce for its employees to be covered for *515 the time before the 1966 amendments to the Act went into effect,[2] the District Court determined that the aggregate activities of the respondent at all nine locations were "related," performed under "common control," and for "a common business purpose," thereby constituting an "enterprise" within the meaning of § 3 (r), 29 U.S. C. § 203 (r). 324 F. Supp., at 994-995.
On cross appeals, the Court of Appeals for the Third Circuit affirmed the District Court's determination that the respondent is an "employer" of the building "employees," and also affirmed the use of gross rentals of the buildings as the proper measure of "gross sales." 444 F.2d 609, 611-612. The Court of Appeals held that the District Court erred, however, in aggregating the gross rentals of the nine properties to determine the "gross sales" of the respondent's "enterprise." Recognizing that its decision conflicted with a substantially identical case in the Fourth Circuit, Shultz v. Falk, 439 F.2d 340, the Court of Appeals held that before separate establishments could be deemed part of a single enterprise, *516 a showing of common business purpose was required. 444 F.2d, at 613.
"If the record in this case revealed that the retention of the Company, as agent, were accompanied by a change in the independent business purposes of the ownersfor example facts such as the pooling of profits from the various buildings demonstrating a common business purposethe result might be different. Here, however, the record reveals that the owners share no common purpose except the decision to hire the Company as their rental or management agent. . . . Without more than here presented, we think the `enterprise' requirement of the Act has not been satisfied." Id., at 614.
Without reaching the issues regarding the respondent's engagement in commerce prior to 1967, the Court of Appeals reversed and remanded for proof of the individual gross rentals of the buildings. Ibid. In order to resolve the intercircuit conflict, we granted the Secretary's petition for certiorari, 409 U.S. 840, which raises the question whether the management activities of the respondent at all of the buildings served should be aggregated as part of a single "enterprise" within the meaning of § 3 (r) of the Act. Since no cross-petition for certiorari was filed by the respondent, the important issues of whether the respondent is in fact an "employer" of the building workers within the meaning of the Act, and whether gross rentals rather than gross commissions should serve as the measure of "gross sales," are not before us.[3]
The concept of "enterprise" under the Fair Labor Standards Act came into being with the 1961 amendments, which substantially broadened the coverage of *517 the Act. Rather than confining the protections of the Act to employees who were themselves "engaged in commerce or in the production of goods for commerce," 29 U.S. C. §§ 206 (a), 207 (a), the new amendments brought those "employed in an enterprise engaged in commerce" within the ambit of the minimum wage and maximum hours provisions.[4] The Congress defined "enterprise engaged in commerce" to include a dollar volume limitation. The standard in the original amendments included "any such enterprise which has one or more retail or service establishments if the annual gross volume of sales of such enterprise is not less than $1,000,000 . . . ," 75 Stat. 66, and has since been changed to include enterprises "whose annual gross volume of sales made or business done is not less than $500,000" for the period from February 1, 1967, to January 31, 1969, and those with annual gross sales of not less than $250,000 thereafter. 29 U.S. C. § 203 (s) (1). The presence of this dollar-volume cutoff for coverage under the Act, in turn, places importance on the Act's definition of "enterprise."
The term "enterprise" is defined by the statute as follows:
" `Enterprise' means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units . . . ." 29 U.S. C. § 203 (r) (emphasis added).
Specific exemptions are noted, making clear that exclusive-dealership arrangements, collective-purchasing pools, franchises, and leases of business premises from large *518 commercial landlords do not create "enterprises" within the meaning of the Act. Ibid.
The District Court correctly identified the three main elements of the statutory definition of "enterprise": related activities, unified operation or common control, and common business purpose. We believe the Court of Appeals erred in holding that the aggregate management activities of the respondent failed to meet these statutory criteria. Once the respondent is recognized to be the employer of all of the building employees, it follows quite simply that it is a single enterprise under the Act. The respondent is, after all, but one company. Its activities in all of the buildings are virtually identical, and are plainly "related" in the sense that Congress intended. As the Senate report accompanying the 1961 amendments indicated: "Within the meaning of this term, activities are `related' when they are the same or similar . . . ." S. Rep. No. 145, 87th Cong., 1st Sess., 41. The respondent's activities, similarly, are performed "either through unified operation or common control." The respondent is a fully integrated management company directing operations at all nine buildings from its central office. For purposes of determining whether it is an "enterprise" under the Act, it is irrelevant that the relationship between the respondent and the owners is one of agency; that separate bank accounts are maintained for each building; and that the risk of loss and the chance of gain on capital investment belong to the owners, not the respondent. All that is required under the statutory definition is that the respondent's own activities be related and under common control or unified operation, as they plainly are.
In its analysis of this problem, the Court of Appeals placed great weight on the fact that the building owners have no relationship with one another, and have no common business purpose. This is true, but beside the point, *519 for the owners are not defendants in this action and it is not their activities that are under examination. As Judge Winter wrote in the conflicting case from the Fourth Circuit, "It is defendants' activities at each building which must be held together by a common business purpose, not all the activities of all owners of apartment projects." Shultz v. Falk, 439 F. 2d, at 346. In the present case, the respondent's activities at the several locations are tied together by the common business purpose of managing commercial properties for profit. The fact that the buildings are separate establishments is specifically made irrelevant by § 3 (r).
The Court of Appeals also cited the portion of the Senate report explaining the exemptions to § 3 (r), noted above, for exclusive-dealing contracts, franchises, leasing space in shopping centers, and the like:
"The bill also contains provisions which should insure that a small local independent business, not in itself large enough to come within the new coverage, will not become subject to the act by being considered a part of a large enterprise with which it has business dealings.
"The definition of `enterprise' expressly makes it clear that a local retail or service establishment which is under independent ownership shall not be considered to be so operated and controlled as to be other than a separate enterprise because of a franchise, or group purchasing, or group advertising arrangement with other establishments or because the establishment leases premises from a person who also happens to lease premises to other retail or service establishments." S. Rep. No. 145, 87th Cong., 1st Sess., 41.
The Court of Appeals went on to stress that the building owners should not be brought under the Act simply because *520 they dealt with a large real estate management company. This is true, but also beside the point, since we deal here with that large management company as a party and, for purposes of this case, as an employer of the employees in question. We do not hold, nor could we in this case, that the individual building owners in their capacity as employers[5] are to be aggregated to create some abstract "enterprise" for purposes of the Fair Labor Standards Act.[6]
It is argued that such a straightforward application of the statutory criteria to the respondent's business ignores the significance of the dollar volume limitation included in the § 3 (s) definition of "[e]nterprise engaged in commerce or in the production of goods for commerce." The Court of Appeals cited evidence in the legislative history of the 1961 amendments that indicates a purpose to exempt small businesses from the obligations of the Act. 444 F.2d, at 613; S. Rep. No. 145, 87th Cong., 1st Sess., 5. If the individual building owners are engaged in enterprises too small to come within the reach of the Fair Labor Standards Act, reasoned the Court of Appeals, it would be "anomalous" to treat them as a single enterprise subject to the Act "merely because they hire a rental agent who manages other buildings." 444 *521 F. 2d, at 614. Once again, however, the response to this argument is that it is the respondent management company, not the individual building owners, that has been held in this case to be an "employer" of all the affected "employees." Furthermore, the proper measure of the respondent's size has been held to be the gross rentals produced by properties under its management. It is true that one purpose of the dollar-volume limitation in the statutory definition of "enterprise" is the exemption of small businesses, but this respondent is not such a business under these holdings of the Court of Appeals.[7] The argument to the contrary amounts to a collateral attack on the "employer" and "gross sales" determinations made below, and the respondent cannot make such an attack in the absence of a cross-petition for certiorari.[8]
We hold that the District Court was correct in aggregating all of the respondent's management activities as a single "enterprise." Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE WHITE, dissenting.
It is undisputed that for the minimum wage and maximum hour requirements of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S. C. § 201 et seq., to apply to all the employees involved in this case, they must be employed in an "enterprise engaged in commerce *522 or in the production of goods for commerce."[1] 29 U.S. C. §§ 203 (s), 206, and 207. An "enterprise" for the purpose of the Act "means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose . . . ." Id., § 203 (r). An enterprise, however, does not include the related activities performed for the enterprise by an independent contractor or other specified arrangements, including otherwise independent establishments occupying premises leased to them by the same person. Ibid.
But, for an "enterprise" to be "engaged in commerce or in the production of goods for commerce," the enterprise must have an "annual gross volume of sales made or business done" in an amount not less than the specified statutory minimum. Id., § 203 (s) (1). Congress did not intend to cover all establishments by expanding the coverage of the Act through the enterprise approach. Instead, it drew an economic line. "It is the line which the Congress must draw in determining who shall and who shall not be covered by a minimum wage." S. Rep. No. 145, 87th Cong., 1st Sess., 5. Nor was the definition of enterprise intended to swallow up the exclusion of small businesses. Related activities conducted by separate businesses would be considered a part of an enterprise only "where they are joined either through unified operation *523 or common control into a unified business system or economic unit to serve a common business purpose." Id., at 41. And the express exemptions provided in § 203 (r) from the enterprise concept, the Senate Report said, would "insure that a small local independent business, not in itself large enough to come within the new coverage, will not become subject to the act by being considered a part of a large enterprise with which it has business dealings." Ibid.
In the case before us, nine separately and independently owned buildings leasing space to tenants employed the same management company as agent to recommend tenants, collect rents, hire, fire, and supervise employees, and maintain and operate the buildings. The Court holds that even if none of the individual building owners would itself generate gross rentals in sufficient amount to be covered by the Act, the buildings and the management company collectively are an enterprise with collective gross rentals in excess of the statutory minimums and hence covered by the Act.[2] Because it appears to me that the Court is applying the concept of enterprise in a way which ignores the economic limitations in the Act and the congressional intention they represent, I respectfully dissent.
There is no connection between these separately owned buildings other than the fact that they employ the same management company to represent them. They have a common managing agent, but that agent is separately accountable to, and must follow the perhaps diverse directions of, each of its principals. They have no unified operation, do not constitute a unified business system or an economic unit, and surely do not serve a common *524 business purpose. Hence there is no "enterprise" within the meaning of the Act which covers only those "related activities" performed through unified operation or common control "for a common business purpose."
As I have indicated, Congress was not unaware of the possibility of stretching the concept "enterprise" beyond its proper bounds and sought to guard against it. The Senate Committee said: "Thus the mere fact that a group of independently owned and operated stores join together to combine their purchasing activities or to run combined advertising will not for these reasons mean that their activities are performed through unified operation or common control and they will not for these reasons be considered a part of the same `enterprise.' " S. Rep. No. 145, 87th Cong., 1st Sess., 42. Common agents, therefore, are not sufficient to convert otherwise independent entities into an enterprise.
The Committee also said: "There may be a number of different types of arrangements established in such cases. The key in each case may be found in the answer to the question, `Who receives the profits, suffers the losses, sets the wages and working conditions of employees, or otherwise manages the business in those respects which are the common attributes of an independent businessman operating a business for profit?' " Ibid.
Under this standard, there can be no question that the buildings are separate economic units and should be treated as such. The manager receives merely a commission for his services. The managing agent manages, but is subject to direction by his principal. The income and expenses for each building are accounted for separately. The owner of each building receives the profits and suffers the losses, if any. Each owner sets the wages and working conditions for each building in the sense that, although the manager negotiates such matters, he negotiates under instructions, and it is each owner who *525 must approve them. Each building carries a separate employer identification number. Employees are hired with respect to each building, and supplies and other items necessary for the operation of the buildings are purchased separately for each building. Should a particular building terminate its relationship with the manager, the building employees remain with the building.
The Arnheim & Neely agency unquestionably was an "employer" insofar as its relationship to each of the buildings was concerned, for 29 U.S. C. § 203 (d) defines the term employer as including "any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." But this is a far cry from concluding that the separate buildings and their common agent constitute an enterprise engaged in commerce.[3]
Unquestionably, it is the individual owner who bears the burden of the Act and if any one of them, or each of them, individually has gross sales less than the jurisdictional minimums mentioned in the Act, construing the work "enterprise" concept as the majority does distorts clear congressional intent.
NOTES
[*] Howard Lichtenstein and Marvin Dicker filed a brief for the Realty Advisory Board on Labor Relations, Inc., as amicus curiae urging affirmance.
[1] In pertinent part, the statute provides that:
"(s) `Enterprise engaged in commerce or in the production of goods for commerce' means an enterprise which has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person, and which
"(1) during the period February 1, 1967, through January 31, 1969, is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated) or is a gasoline service establishment whose annual gross volume of sales is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated), and beginning February 1, 1969, is an enterprise whose annual gross volume of sales made or business done is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated) . . . ." 29 U.S. C. § 203 (s).
[2] Section 3 (s) (3) of the Act, as enacted in 1961, referred in its definition of "[e]nterprise engaged in commerce or in the production of goods for commerce," inter alia, to: "any establishment of any such enterprise . . . which has employees engaged in commerce or in the production of goods for commerce if the annual gross volume of sales of such enterprise is not less than $1,000,000 . . . ." Pub. L. 87-30, 75 Stat. 65, 66 (emphasis added). The District Court construed the statute to require that two or more employees in each building be engaged in commerce in order for that building to be covered under the Act. It found that in no building were there two such employees, and therefore held that there was no coverage under the Act prior to the 1966 amendments. 324 F. Supp. 987, 995-997. The 1966 amendments, see n. 1, supra, required only that the "enterprise" have "employees" engaged in commerce, and under this standard the District Court found that the respondent qualified. Id., at 997. Though the Government appealed on this issue, the Court of Appeals did not reach it, 444 F.2d 609, 614.
[3] NLRB v. International Van Lines, 409 U.S. 48, 52 n. 4, and cases there cited. But see n. 8, infra.
[4] Pub. L. 87-30, 75 Stat. 65, 67, 69.
[5] As both the District Court and the Court of Appeals noted, the statutory concept of "employer" is "any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." 29 U.S. C. § 203 (d). This definition was held to be broad enough that there might be "several simultaneous `employers.' " 444 F.2d, at 611-612. See also 324 F. Supp. 987, 992; Wirtz v. Hebert, 368 F.2d 139; Mid-Continent Pipe Line Co. v. Hargrave, 129 F.2d 655.
[6] Contrary to the view taken by the dissent, we specifically do not hold that "the buildings and the management company collectively are an enterprise . . . ." We deal solely with the management company and its "related activities performed . . . for a common business purpose."
[7] It is stipulated that in all relevant years, the annual gross rental income collected by the respondent exceeded $1,000,000. 324 F. Supp., at 993.
[8] We have granted certiorari in No. 72-844, Falk v. Brennan, sub nom. Falk v. Shultz, post, p. 954, to consider whether the proper measure of "gross sales" in this context is gross rentals collected or gross commissions, and whether maintenance employees are "employees" of the management company within the meaning of the Act.
[1] As discussed in the majority opinion, the Act as passed in 1938, 52 Stat. 1060, covered only employees "engaged in commerce or in the production of goods for commerce." The 1961 amendments, 75 Stat. 65-67, 69, greatly broadened the scope of the Act by adding the "enterprise" concept to cover those employees not directly engaged in commerce or in the production of goods for commerce but employed by an "enterprise" that was. Therefore, those employees in this case not engaged in commerce or in the production of goods for commerce, must belong to an "enterprise" so engaged, if they are to be covered.
[2] If I agreed that the building owners and their common agent were an "enterprise," I would also agree that the cumulative gross rentals would be the proper measure of coverage.
[3] This is demonstrated by 29 CFR § 779.203, which provides that the "terms [`employer,' `establishment,' and `enterprise'] are not synonymous." | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/110528/ | 452 U.S. 549 (1981)
MONROE
v.
STANDARD OIL CO.
No. 80-298.
Supreme Court of United States.
Argued March 4, 1981.
Decided June 17, 1981.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
*550 Alan I. Horowitz argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Daniel, Robert E. Kopp, Beate Bloch, Lois G. Williams, Kerry L. Adams, and William Taylor.
*551 Paul S. McAuliffe argued the cause and filed a brief for respondent.[*]
JUSTICE STEWART delivered the opinion of the Court.
The Court of Appeals for the Sixth Circuit concluded that 38 U.S. C. § 2021 (b) (3), a provision of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, does not require an employer to provide preferential scheduling of work hours for an employee who must be absent from work to fulfill his military reserve obligations. 613 F.2d 641. We granted certiorari to consider the petitioner's contention that an employer has a statutory duty to make work-scheduling accommodations for reservist-employees not made for other employees, whenever such accommodations reasonably can be accomplished. 449 U.S. 949.[1]
I
In 1975 and 1976, the years pertinent to this litigation, the petitioner was a full-time employee in the respondent's continuous process refinery in Lima, Ohio. The refinery was operated 24 hours a day, 7 days a week, 365 days a year. To insure that the burdens of weekend and shift work would be equitably divided among its employees over the course of a year, the respondent scheduled its employees to work five 8-hour days in a row weekly, but in a different 5-day sequence each week. Under the respondent's collective agreement with its union, however, an employee could, with the acquiescence of his foreman and if the change did not require the payment of overtime, exchange shifts with another employee.
During the same period, the petitioner was a military reservist,[2]*552 and had to attend training with his unit one weekend a month and for two weeks each summer. On a number of weekends, the petitioner was required to attend training on days when he was scheduled to work at the refinery. Although the petitioner was able on four of these occasions to exchange shifts with other employees, he was unable to make such an exchange in most instances. The respondent provided him with leaves of absence to attend training, as 38 U.S. C. § 2024 (d)[3] required it to do, but it did not pay him for the hours he did not work, nor did it take steps to permit him to make up those hours by working outside his normal schedule. When the petitioner was on a leave of absence and could not arrange a switch with another employee, the respondent would make arrangements to fill the vacancy created by the petitioner's absence, arrangements often requiring the payment of overtime wages to the substitute.
In 1976, the petitioner[4] brought this action against the respondent alleging that it had violated the provisions of 38 U.S. C. §§ 2021 (b) (3)[5] and 2024 (d). Noting that the *553 first of these sections provides that an employer may not deny a military reservist in his employ any "incident or advantage of employment" because of the employee's obligations to the Reserves, and finding that "being scheduled for a full forty hour week at the [respondent's] refinery constitutes an incident or advantage of employment," the District Court for the Northern District of Ohio granted summary judgment to the petitioner. 446 F. Supp. 616, 618, 619. The court awarded petitioner $1,086.72 for wages lost on those "work dates when an accommodation should have been made." Id., at 619.[6]
The Court of Appeals for the Sixth Circuit reversed. 613 F.2d 641. First, it determined that the respondent had met the requirements of § 2024 (d).[7] It noted that this section "guarantees terms and conditions of reemployment to reservists returning from inactive duty training," but found that "[i]t does not, however, protect reservists from discrimination by their employers between training assignments." Id., at 643-644.
Next, the Court of Appeals rejected the District Court's *554 interpretation of § 2021 (b) (3). It held that this section "merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations." Id., at 646. The appellate court then concluded that the respondent had taken no discriminatory action that is proscribed by § 2021 (b) (3):
"The requirement of equal treatment was met in the present case. The parties agreed that appellee was regularly scheduled for forty-hour workweeks, as were his fellow employees. Further, Monroe was scheduled for weekend work in accordance with Sohio's established practice of rotating shifts to insure that all employees would work approximately an equal number of weekend days. Finally, he was treated the same as his coworkers with regard to the right to exchange shifts with other employees." Id., at 646.
II
This case presents the first occasion this Court has had to address issues arising from the statutory provisions, codified at 38 U.S. C. § 2021 et seq., specifically dealing with military reservists.[8] We have, however, frequently interpreted the somewhat analogous statutory provisions entitling the returning regular veteran to reinstatement with his "seniority, status and pay" intact, 38 U.S. C. § 2021 (a), most recently in Coffy v. Republic Steel Corp., 447 U.S. 191, and Alabama Power Co. v. Davis, 431 U.S. 581.
A
Statutory re-employment rights for veterans date from the Nation's first peacetime draft law, passed in 1940, which provided that a veteran returning to civilian employment *555 from active duty was entitled to reinstatement to the position that he had left or one of "like seniority, status, and pay." 38 U.S. C. § 2021 (a). In 1951, in order to strengthen the Nation's Reserve Forces, Congress extended reinstatement rights to employees returning from training duty. See Pub. L. 51, ch. 144, § 1 (s), 65 Stat. 75, 86-87. Thereafter, the Reserve Forces Act of 1955, Pub. L. 305, ch. 665, § 262 (f), 69 Stat. 598, 602, provided that employees returning from active duty of more than three months in the Ready Reserve were entitled to the same employment rights as inductees, with limited exceptions. In 1960, these re-employment rights were extended to National Guardsmen, Pub. L. 86-632, 74 Stat. 467. See 38 U.S. C. § 2024 (c). In addition, a new section, now codified at 38 U.S. C. § 2024 (d), was enacted in 1960 to deal with problems faced by employees who had military training obligations lasting less than three months. This section provides that employees must be granted a leave of absence for training and, upon their return, be restored to their position "with such seniority, status, pay, and vacation" as they would have had if they had not been absent for training.
Section 2024 (d) closely paralleled 38 U.S. C. § 2021 (a), the latter section ensuring the reinstatement of regular veterans returning from active duty.[9] But § 2024 (d) did not *556 provide reservists with protection against discharges, demotions, or other discriminatory conduct once reinstated. Section 2021 (b) (2), on the other hand, provided regular veterans returning from active duty one year's "protection . . . against certain types of discharges or demotions that might rob the veteran's reemployment of its substance." Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 285. The legislative history of § 2021 (b) (3) indicates that it was designed to provide similar protection to employee-reservists.[10]
*557 B
Section 2021 (b) (3) provides in pertinent part:
"Any person who [is employed by a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces."
The Senate Report on the bill that became § 2021 (b) (3), stated that the purpose of the enactment was "to prevent reservists and National Guardsmen not on active duty who must attend weekend drills or summer training from being discriminated against in employment because of their Reserve membership . . . ." S. Rep. No. 1477, 90th Cong., 2d Sess., 1-2 (1968). The Report explained that "[e]mployment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training *558 and others have been discharged because of these obligations. . . . [T]he bill is intended to protect members of the Reserve components of the Armed Forces from such practices." Id., at 2. The protection was to be accomplished by entitling reservists "to the same treatment afforded their coworkers not having such military obligations . . . ." Ibid.
The House Report announced the same motivation. The bill was described as providing "job protection for employees with obligations as members of a reserve component." H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3 (1968). The House Report elaborated as follows:
"Section (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation.
"It assures that these reservists will be entitled to the same treatment afforded their coworkers without such military obligation.
"The law does not now protect these reservists against discharge without cause, as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection." Ibid. (emphasis added).
The legislation was originally proposed by the Department of Labor. Accordingly, the testimony of Hugh W. Bradley, Director of the Office of Veterans' Reemployment Rights of the Labor Department, who was the chief administration spokesman for the provision, is instructive. He described the relevant portions of the legislation to the House Committee on Armed Services:
"The first provision of the bill deals with a problem that has been increasingly difficult in the past few years. It is designed to enable reservists and guardsmen who leave *559 their jobs to perform training in the Armed Forces, to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not have military training obligations. The law does not now protect them against discharge without cause as it does inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection." 1966 House Hearings, at 5312 (emphasis added).
See also 1968 House Hearings, at 7471.
Testimony by Rear Admiral Burton H. Shupper, U. S. N., appearing on behalf of the Department of Defense, also reflected the purposes behind the enactment:
"The other aspect of H. R. 11509 is the provision that employees shall not be denied retention in employment or advantages of employment because of any obligation as a member of a Reserve component of the Armed Forces. After the Berlin and Cuba callups, we received information from our Reserve community that a significant number of reservists were receiving indications that opportunities for advancement and retention in civilian employment would favor those who appear to offer their employers more continuity of services, namely those in the Standby Reserve or those with no Reserve status. In fairness, we must emphasize that this reaction on the part of employers appears to be the exception not the rule and, we believe, is generally not based upon unpatriotic motives but rather on the competitive spirit of business." 1966 House Hearings, at 5315.
The legislative history thus indicates that § 2021 (b) (3) was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status. Congress wished to provide protection to reservists comparable *560 to that already protecting the regular veteran from "discharge without cause"to insure that employers would not penalize or rid themselves of returning reservists after a mere pro forma compliance with § 2024 (d).[11] And the consistent focus of the administration that proposed the statute, and of the Congresses that considered it, was on the need to protect reservists from the temptation of employers to deny them the same treatment afforded their co-workers without military obligations. The petitioner's contention that his employer was obliged to provide work-schedule preferences not available to other employees must be considered against this legislative background.
C
The petitioner's argument is that the respondent corporation was obligated to make special efforts to schedule his work hours so he would avoid any lost time by reason of his reserve obligations. He does not allege that the respondent singled him out unfairly, or in any other way discriminated *561 against him vis-a-vis other employees in the scheduling of work. Indeed, the petitioner's argument would require work-assignment preferences not available to any nonreservist employee at the respondent's refinery.
The problem with the petitioner's position is that there is nothing in § 2021 (b) (3) or its legislative history to indicate that Congress ever even considered imposing an obligation on employers to provide a special work-scheduling preference. Indeed, the legislative history, set out above, strongly suggests that Congress did not intend employers to provide special benefits to employee-reservists not generally made available to other employees.[12] Congress, and the administration spokesman for the legislation, stated explicitly that reservists were to be entitled "to the same treatment afforded their co-workers not having such military obligations . . . ." S. Rep. No. 1477, 90th Cong., 2d Sess., 2 (1968); see also H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966); 1968 House Hearings, at 7471 (testimony of Hugh W. Bradley).
The strongest language culled by the petitioner from the legislative history to support his argument is a single passage in the 1966 House Report on H. R. 11509: "If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic well being is disrupted to the minimum extent possible." H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966).[13] But this generalized statement appears *562 only in the 1966 House Report; it is not contained in either the House or the Senate Report that accompanied the bill as finally enacted in the 90th Congress. Compare ibid. with H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3, 8 (1968), and S. Rep. No. 1477, 90th Cong., 2d Sess., 3 (1968). Moreover, language in the same 1966 House Report specifically indicated that only a nondiscrimination measure was intended: "It should be noted that the only substantive changes in existing law relate to . . . the prohibition against employer discrimination against reservists who participate in the Reserve or National Guard programs." H. R. Rep. No. 1303, 89th Cong., 2d Sess., 4 (1966).
It appears that the origin of the passage the petitioner relies on is a statement by Hugh W. Bradley before the House Committee in 1966. See 1966 House Hearings, at 5313. Yet this passage disappeared from Bradley's presentation to both the House and Senate Committees in the subsequent Congress. See 1968 House Hearings, at 7471, 7472; 1968 Senate Hearings, at 2, 3. And in all three of his congressional appearances, Bradley made it abundantly clear that the purpose of the legislation was to protect employee reservists from discharge, denial of promotional opportunities, or other comparable adverse treatment solely by reason of their military obligations; there was never any suggestion of employer responsibility to provide preferential treatment. In any case, the language relied on by the petitioner hardly supports a finding that Congress intended § 2021 (b) (3) to convert a generalized moral obligation into a specific legal duty.
D
Aside from a lack of support in legislative history, the petitioner's argument suffers other flaws. While the present case *563 involves absences for weekend duty, the statutory language is not so limited; it refers to "any obligation as a member of a Reserve component . . . ." Section 2021 (b) (3) has been applied, for example, to 2-week summer camps, Carney v. Cummins Engine Co., 602 F.2d 763 (CA7); 6-week training sessions, Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1025 (CA1); and 2-month training sessions, Peel v. Florida Dept. of Transportation, 443 F. Supp. 451 (ND Fla.), aff'd, 600 F.2d 1070 (CA5). Accordingly, there is no principled way of distinguishing between an employer's obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty. And certainly there is nothing in the legislative history that would indicate Congress intended that reservists were to be entitled to all "incidents and advantages of employment" accorded during their absence to working employees, including regular time and overtime pay.[14]
The petitioner concedes that it might be impossible, or at least unduly burdensome, to accommodate a reservist's absences for periods as long as the mandatory 2-week summer training session. Perhaps for this reason, he attempts to limit the obvious implications of his theory by arguing that *564 "the statute only requires an employer to take reasonable steps to accommodate the reservists." But, as is true of the petitioner's more general affirmative obligation theory, there is nothing in the statute or its history to support such a notion.
Indeed, a "reasonable accommodation" to employee-reservists because of missed worktime has already been made by Congress in § 2024 (d). There, Congress decided what allowance employers should make to reservists whose duties force them to miss time at work: provide them a leave of absence. If Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee-reservists have the opportunity to work the same number of hours, or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly.[15] By contrast, there is no evidence that the Congress that enacted § 2021 (b) (3) showed any concern with the problem of missed work hours, let alone imposed any duty to "take reasonable steps to accommodate the reservists" in this or any other respect.
The petitioner makes no suggestion why his theory of "reasonable accommodation" should apply only to "incidents or advantages of employment," and not to the other provisions of § 2021 (b) (3): retention and promotion. Presumably, if it applies to one provision of the section, it should apply to them all. But if an employer could, for example, defend a *565 denial of promotion to an employee-reservist because the promotion could not be "reasonably accommodated," the protection afforded by § 2021 (b) (3) would clearly be reduced, if not altogether eliminated.
Finally, the petitioner suggests that § 2021 (b) (3) must have the meaning he attributes to it, because the section would otherwise be of little significance. But the nondiscrimination requirements of the section impose substantial obligations upon employers. The frequent absences from work of an employee-reservist may affect productivity and cause considerable inconvenience to an employer who must find alternative means to get necessary work done. Yet Congress has provided in § 2021 (b) (3) that employers may not rid themselves of such inconveniences and productivity losses by discharging or otherwise disadvantaging employee-reservists solely because of their military obligations.
III
This Court does not sit to draw the most appropriate balance between benefits to employee-reservists and costs to employers. That is the responsibility of Congress. If Congress desires to amend § 2021 (b) (3) to require special work-hour scheduling for military reservists where it is reasonably possible, it is free to do so. But we must deal with the law as it is.
The respondent did not deny the petitioner anything that he would have received had he not been a reservist. He was scheduled for 40 hours work a week, as all other employees in the refinery were.[16] He was assigned the same burden of weekend and shift work as were his fellow employees. And he was allowed to exchange shifts in the manner *566 accepted by his union and the respondent, just as all other employees were.[17] Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
CHIEF JUSTICE BURGER, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE POWELL join, dissenting.
The Court today unduly restricts the employment protections accorded Ready Reservists and National Guardsmen by Congress. In my view, the Court's decision is based upon an erroneous interpretation of 38 U.S. C. § 2021 (b) (3) and, in effect, allows employees to be penalized for their service in the military contrary to congressional intent.
I
A
As in any case involving statutory construction, "our starting point must be the language employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). Title 38 U.S. C. § 2021 (a) requires that a veteran returning to civilian employment after military duty be restored to the position he previously held or to "a position of like seniority, status, and pay." In addition, 38 U.S. C. § 2021 (b) (1) provides that the veteran's reinstatement must be "without loss of seniority" and that he "shall not be discharged from such position without cause within one year after such restoration or reemployment." See Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 284-285 (1949). Similar safeguards are granted in 38 U.S. C. § 2024 (c) to members of "a Reserve component of the Armed Forces" who have military obligations lasting more than three months. As to reservists whose *567 commitments are less than three months, 38 U.S. C. § 2024 (d) provides in pertinent part:
"Any employee . . . shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty training, or upon such employee's discharge from hospitalization incident to that training, such employee shall be permitted to return to such employee's position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes."
Additional guarantees for reservists are contained in 38 U.S. C. § 2021 (b) (3), on which petitioner bases his claim for nonconflicting work hours. Section 2021 (b) (3) states:
"Any person who [is employed by the Federal Government, a state government, or a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces." (Emphasis added.)
The Court concludes that "§ 2021 (b) (3) was enacted for the . . . limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status." Ante, at 559. Yet the plain language of the statute belies such a narrow interpretation. Although § 2021 (b) (3) proscribes the termination of a reservist because of his military obligations, it also expressly prohibits the denial of "any promotion or other incident or advantage of employment." Such protection is clearly broader than that enjoyed by returning veterans under § 2021 (b) (1), but is understandable because the reservist has continuing *568 military commitments requiring his absence that may disadvantage him in his employment.
B
Just as the language of § 2021 (b) (3) does not demonstrate a congressional intent to confine the statute's application to "discriminations like discharge and demotion," neither does the legislative history. When the bill, H. R. 11509, 89th Cong., 1st Sess. (1965), that included what eventually became 38 U.S. C. § 2021 (b) (3) was first introduced, Subcommittee No. 3 of the House Committee on Armed Services held hearings and the full Committee thereafter reported favorably on the bill. The Committee's Report, which reflected the hearing testimony of Hugh W. Bradley, Director of the Office of Veterans' Reemployment Rights of the Department of Labor, stated:
"Employment practices which disadvantage employees with Reserve obligations have become an increasing problem in recent years. Paragraph 1 of the bill will protect members of the Reserve components of the Armed Forces, including the National Guard, from such practices. It is designed to enable reservists and guardsmen who leave their jobs to perform training in the Armed Forces to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not . . . have a Reserve obligation.
"It assures that these reservists will be entitled to the same treatment afforded their coworkers without such military obligations . . . .
"The law does not now protect these reservists against discharge without cause as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection.
"To give the reservist a specific period of protection after each tour of training duty would be to perpetuate *569 him in his position indefinitely. The new section . . . would not follow this approach but instead provides that an employee shall not be denied retention in his employment or any promotion or other incident or advantage of employment solely because of any obligation as a member of a Reserve component of the Armed Forces.
.....
"If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic well being is disrupted to the minimum extent possible." H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966) (emphasis added).
Although the bill was passed by the House, 112 Cong. Rec. 5017 (1966), the Senate took no action on the measure during the 89th Congress.
The bill was reintroduced in the 90th Congress. H. R. 1093, 90th Cong., 1st Sess. (1967); S. 2561, 90th Cong., 1st Sess. (1967). Hearings again were held before Subcommittee No. 3 of the House Committee on Armed Services, at which a statement expressing the view of the American Legion was entered on the record:
"The American Legion feels very strongly that employees with reserve obligations who are members of the National Guard and the Reserves . . . should be afforded all the employment opportunities and benefits as those who do not have training obligations. . . .
"[The new section] would prevent discharge from employment without cause because of membership in the National Guard or Reserves, and would also prevent discrimination in such areas as promotion, training opportunities and pay increases." Hearings on H. R. 1093 before Subcommittee No. 3 of the House Committee on Armed Services, 90th Cong., 1st Sess., 7477 (1968) (emphasis added).
*570 Noting that protection of "reservists and guardsmen from being disadvantaged in employment because of their military obligations" was one of the purposes of the bill, the full Committee's favorable Report explained that "[s]ection (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation." H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3 (1968) (emphasis added).
Following passage of the bill by the House, 114 Cong. Rec. 11779 (1968), the Senate Committee on Armed Services held hearings and issued a Report recommending enactment. The Report repeated the themes which run through every congressional expression on the statutory proposal:
"This bill is intended . . . to prevent reservists and National Guardsmen not on active duty who must attend weekly drills or summer training from being discriminated against in employment because of their Reserve membership . . . .
.....
"Employment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training and others have been discharged because of these obligations. Section 1 of the bill is intended to protect members of the Reserve components of the Armed Forces from such practices. It provides that these reservists will be entitled to the same treatment afforded their coworkers not having such military obligations by requiring that employees with Reserve obligations `shall not be denied retention in employment or other incident or advantage of employment because of any obligation as a member of a Reserve *571 component of the Armed Forces of the United States.'" S. Rep. No. 1477, 90th Cong., 2d Sess., 1-2 (1968).
The bill passed the Senate, 114 Cong. Rec. 24017 (1968), and became law on August 17, 1968. Pub. L. 90-491, 82 Stat. 790.
The legislative history of § 2021 (b) (3) admittedly reveals an intent to protect reservists from discharge because of their short-term absences, just as §§ 2021 (b) (1) and 2024 (c) safeguard returning veterans and reservists who are absent for more than three months. Yet the legislative history also indicates a more expansive congressional purpose of ensuring that reservists are not deprived of any employment benefit solely because of their willingness to serve their country.
II
The benefit at issue here is the opportunity to work a full 40-hour week. Both the District Court and the Court of Appeals concluded that being scheduled to work 40 hours per week is an "incident or advantage" of employment established by the custom and practice at respondent's refinery. 446 F. Supp. 616, 619 (ND Ohio 1978); 613 F.2d 641, 645 (CA6 1980). Petitioner was treated no different from other employees in terms of work scheduling, and he was given the right to exchange shifts with willing fellow employees pursuant to the collective-bargaining agreement. Nevertheless, during those weeks when his scheduled work hours conflicted with his military commitments and he was unable to arrange an exchange of shifts, the opportunity granted him to work a full 40 hours was illusory since respondent "took no steps to provide [him] with substituted hours." App. 26. Thus, petitioner asserts that respondent violated 38 U.S. C. § 2021 (b) (3) by refusing to rearrange his work schedule to allow him to work 40 hours during those weeks when his military obligations otherwise precluded him from doing so. I agree.
The Court inaccurately characterizes petitioner's claim as seeking "work-schedule preferences not available to other employees." *572 Ante, at 560. Respondent's policy is not to readjust the work schedule to accommodate absences for personal reasons, and petitioner alleges no right to special consideration regarding absences unrelated to military service. But if petitioner is to be placed on an equal footing with his co-workers, his military absences cannot be treated simply as personal leaves of absence. See Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024, 1027 (CA1 1979), cert. denied, 446 U.S. 913 (1980); Lott v. Goodyear Aerospace Corp., 395 F. Supp. 866, 869-870 (ND Ohio 1975). A reservist's absences for training result from obligations vital to our national defense that other employees have not assumed, and the primary purpose of the re-employment rights statutes is to protect reservists against disadvantages in employment caused by these obligations. Indeed, the essence of the statutory guarantees provided by Congress is that employers must give special treatment to the military absences of veterans and reservists.
The Court emphasizes that "respondent did not deny the petitioner anything that he would have received had he not been a reservist" since he was scheduled for 40 hours of work per week, was assigned the same burden of weekend and shift work as other employees, and was allowed to exchange shifts. Ante, at 565. In substance, the Court embraces the Court of Appeals' holding that § 2021 (b) (3) "merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations." 613 F.2d, at 646. However, unless the statute is read as safeguarding reservists from the adverse effects of facially neutral rules, much of its practical significance is lost. As the United States Court of Appeals for the Fifth Circuit observed in West v. Safeway Stores, Inc., 609 F.2d 147, 149 (1980): "The essence of reserve duty in this context is absence from work. If employers could . . . require that workers be present in order to receive certain benefits, then reservists could never secure the benefits or advantages of employment which the Act was *573 designed to protect." See also Carney v. Cummins Engine Co., 602 F.2d 763 (CA7 1979), cert. denied, 444 U.S. 1073 (1980).
Petitioner is not attempting to gain an advantage over his co-workers as a result of his reserve membership. He does not assert a right to be paid for hours he does not work, but asks only that he be given the same meaningful chance as other employees without military commitments to work full time in order to earn a living wage. Moreover, the record contains no evidence that it would be unduly burdensome for respondent, if given adequate notice, to accommodate petitioner's weekend military commitments in scheduling his work hours. In fact, counsel for respondent acknowledged at oral argument that petitioner "could be scheduled with the number of . . . Saturdays and Sundays off to accommodate his reserve obligation, without requiring any other employee in the plant to work any more Saturdays and Sundays than they now have to work under the regular routine." Tr. of Oral Arg. 27. See also App. 41-43 (proposed revision of work schedule).
The Court states that one of the flaws in petitioner's argument is that "there is no principled way of distinguishing between an employer's obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty." Ante, at 563. However, petitioner does not claim a right to make up hours, only to work full time during those weeks when he is available to work 40 hours apart from his reserve duties. Far from asking respondent to do the impossible, petitioner contends only that "reasonable steps" must be taken to accommodate him. Brief for Petitioner 24. Yet it is undisputed that respondent made no effort to do so. See App. 26. Cf. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). I cannot accept the Court's conclusion that such total indifference is in keeping with the underlying purposes and express guarantees of § 2021 (b) (3).
*574 The Court's suggestion that respondent need go no further than the requirements of 38 U.S. C. § 2024 (d) in accommodating petitioneri. e., he must simply be provided "a leave of absence," ante, at 564ignores the separate, broader protections of § 2021 (b) (3), which was enacted because § 2024 (d) was found to be inadequate. In the Court's view, "[i]f Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee-reservists have the opportunity to work the same number of hours, or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly." Ante, at 564. But it was respondent that conferred on its employees the benefit of 40 hours of work per week, and Congress has provided unequivocally that such a benefit cannot be refused a reservist, as it was here, solely because of his military commitments. The plain language of § 2021 (b) (3) does not differentiate among employment benefits, but "makes it . . . explicit that a reservist or guardsman cannot be . . . denied any promotion or other employment benefit or advantage, because of any obligation arising out of his membership in the reserves [or Guard], or because of his absences from work that result from such obligation." U. S. Dept. of Labor, Office of Veterans' Reemployment Rights, Veterans' Reemployment Rights Handbook 114-115 (1970) (emphasis added).
III
We have held that the re-employment rights statutes are "to be liberally construed for the benefit of those who . . . serve their country." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946). Accord, Coffy v. Republic Steel Corp., 447 U.S. 191, 196 (1980); Alabama Power Co. v. Davis, 431 U.S. 581, 584 (1977). It is unfortunate, I think, that the Court's decision today undermines that sound principle. The clear purpose of Congress in enacting § 2021 (b) (3) was to expand employment safeguards for reservists and thereby encourage *575 participation in the Ready Reserves and the National Guard so as to strengthen our national defense effort without increased reliance on active duty personnel through mandatory military service. Yet that aim is severely frustrated if employers can deprive reservists of "an incident or advantage of employment" as important as the opportunity for fulltime work undiminished by weekend absences for military training. Congress surely did not intend that petitioner be put to the choice of quitting the Reserves or forgoing the chance to earn the same wages as other employees who do not have military obligations. Section 2021 (b) (3) was enacted to prevent the very type of disadvantage that petitioner has suffered. Accordingly, I would reverse the judgment of the Court of Appeals.
NOTES
[*] Martin J. Klaper and David L. Gray filed a brief for Cummins Engine Co., Inc., as amicus curiae urging affirmance.
[1] There is an apparent intercircuit conflict on this issue. Compare the case under review with West v. Safeway Stores, Inc., 609 F.2d 147 (CA5).
[2] In oral argument, counsel for the respondent indicated that the petitioner was a member of the Ohio National Guard. This is not apparent in the record, but both Ready Reservists and National Guardsmen are equally entitled to the protection of 38 U.S. C. § 2021 (b) (3). See S. Rep. No. 1477, 90th Cong., 2d Sess., 1, 5 (1968); H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3, 6 (1968).
[3] Title 38 U.S. C. § 2024 (d) provides in pertinent part:
"Any employee . . . shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty for training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty for training, . . . such employee shall be permitted to return to such employee's position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes. . . ."
[4] The Department of Justice represents the petitioner pursuant to 38 U.S. C. § 2022.
[5] Section 2021 (b) (3) provides:
"Any person who holds a position described in clause (A) or (B) of subsection (a) of this section shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces."
[6] The petitioner does not urge here that he had to be paid for hours not worked.
[7] There is no dispute that the respondent has complied with all relevant requirements of § 2024 (d). See n. 3, supra. This section compels employers to grant leaves of absence to employees who must attend reserve training, and entitles a reservist who has been absent for inactive reserve training to benefits upon his return, such as wage rates and seniority, which automatically would have accrued if he had remained in the continuous service of his employer. See Aiello v. Detroit Free Press, Inc., 570 F.2d 145, 148 (CA6). It does not entitle a reservist to benefits that are conditioned upon work requirements demanding actual performance on the job. See ibid. See also Foster v. Dravo Corp., 420 U.S. 92. Thus, it is not contended that § 2024 (d) requires employers to pay absent reservists for hours not worked.
[8] Before their recodification in 1974, the veterans' re-employment rights provisions were codified at 50 U.S. C. App. § 459 (1970 ed.) (§ 9 of the Military Selective Service Act of 1967). See Coffy v. Republic Steel Corp., 447 U.S. 191, 194, n. 2.
[9] Section 2021 (a) provides as follows:
"In the case of any person who is inducted into the Armed Forces of the United States under the Military Selective Service Act [50 U.S. C. App. §§ 451-473] (or under any prior or subsequent corresponding law) for training and service and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service; and (1) receives a certificate described in section 9 (a) of the Military Selective Service Act [50 U.S. C. App. § 459 (a)] (relating to the satisfactory completion of military service), and (2) makes application for reemployment within ninety days after such person is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year
"(A) if such position was in the employ of the United States Government, its territories, or possessions, or political subdivisions thereof, or the District of Columbia, such person shall
"(i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay; or
"(ii) if not qualified to perform the duties of such position, by reason of disability sustained during such service, but qualified to perform the duties of any other position in the employ of the employer, be offered employment and, if such person so requests, be employed in such other position the duties of which such person is qualified to perform as will provide such person like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in such person's case;
"(B) if such position was in the employ of a State, or political subdivision thereof, or a private employer, such employee shall
"(i) if still qualified to perform the duties of such position, be restored by such employer or the employer's successor in interest to such position or to a position of like seniority, status, and pay; or
"(ii) [as in (A) (ii), supra, except for references to the `employer's successor in interest']."
[10] The bill that included what became 38 U.S. C. § 2021 (b) (3) was introduced in the 89th Congress. H. R. 11509, 89th Cong., 1st Sess. (1965). Hearings were held before Subcommittee No. 3 of the House Committee on Armed Services in February 1966. Hearings on H. R. 11509 before Subcommittee No. 3 of the House Committee on Armed Services, 89th Cong., 1st Sess. (1966) (hereafter 1966 House Hearings). The bill was favorably reported by the full Committee, H. R. Rep. No. 1303, 89th Cong., 2d Sess. (1966), and was passed by the House on March 7, 1966, 112 Cong. Rec. 5016 (1966). No action, however, was taken on the measure by the Senate in the 89th Congress.
The bill was reintroduced in the 90th Congress. H. R. 1093, 90th Cong., 1st Sess. (1967); S. 2561, 90th Cong., 1st Sess. (1967). Hearings were again held before Subcommittee No. 3 of the House Committee, on March 20, 1968. Hearings on H. R. 1093 before Subcommittee No. 3 of the House Committee on Armed Services, 90th Cong., 1st Sess. (1968) (hereafter 1968 House Hearings). The bill was favorably reported by the full Committee on April 24, 1968, H. R. Rep. No. 1303, 90th Cong., 2d Sess. (1968), and initially passed by the House on May 6, 1968, 114 Cong. Rec. 11779 (1968). Hearings were held by the Senate Committee on Armed Services on July 25, 1968. Hearings on H. R. 1093 before Senate Committee on Armed Services, 90th Cong., 2d Sess. (1968) (hereafter 1968 Senate Hearings). The bill was favorably reported by the Committee, S. Rep. No. 1477, 90th Cong., 2d Sess. (1968), on July 26, 1968, and passed the Senate on July 29, 1968, 114 Cong. Rec. 24017 (1968). The Senate concurred in the House amendment. Id., at 24999. The bill was signed into law on August 17, 1968. Pub. L. 90-491, 82 Stat. 790.
The language of that portion of the bill which became § 2021 (b) (3) was unchanged throughout its legislative consideration. There was no substantive discussion of the measure on the floor of either chamber. Accordingly, the key portions of the legislative history are the three hearings held on the proposed measure and the three Committee Reports.
[11] This same purpose was reflected in a statement in support of the legislation by Austin E. Kerby, the Director of the National Economic Commission of the American Legion:
"The American Legion feels very strongly that employees with reserve obligations who are members of the National Guard and the Reserves should not be denied retention in employment or promotional opportunities solely because of their participation in the Reserve Training Program. They should be afforded all the employment opportunities and benefits as those who do not have training obligations. The Reemployment Rights Statutes do not now protect National Guard members and Reservists as it does inductees and enlistees, who have one-year protection, and initial active duty for training reservists who have six-months protection.
"H. R. 1093 [H. R. 11509 as reintroduced in the 90th Congress, see n. 10, supra] would add a new section, 9 (c) (3), under the reemployment provisions of the Universal Military Training and Service Act which would prevent discharge from employment without cause because of membership in the National Guard or Reserves, and would also prevent discrimination in such areas as promotion, training opportunities and pay increases." 1968 Hearings, at 7477 (emphasis added).
[12] One could argue, of course, that "protection . . . against certain types of discharges or demotions that might rob the veteran's reemployment of its substance," Oakley v. Louisville & Nashville R. Co., 338 U.S. 278, 285 (in reference to § 2021 (b) (2) but equally relevant here) amounts to preferential treatment. But this sort of treatment, clearly intended by the statute and its legislative history, is better understood as protection against discrimination that would not have occurred were it not for reserve obligations, than as preferential treatment accorded solely because of reserve status.
[13] The legislative history is barren of any indication that Congress intended employers to compensate employees for work hours missed while fulfilling military reserve obligations, which would of course amount to employee receipt of double compensation for such periods.
[14] The Veterans' Reemployment Rights Handbook, published by the Office of Veterans' Reemployment Rights in 1970 and still in use today, notes that "[t]he law does not require the employer to pay the employee for the time he is absent for military training duty, or even to make up the difference between his military pay and his regular earnings for that period. In this respect, of course, many employers have adopted voluntary policies or contractual obligations, or are subject to State statutes, which give reservists and guardsmen more than the statute [38 U.S. C. § 2021 et seq.] requires." Id., at 113. And in the many examples in the Handbook addressed to typical problems an employer may confront because of employee military obligations, there is not so much as a hint that an employer has an obligation to adjust an employee's work schedule to make up for time lost because of military obligations.
[15] Section 403 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, Pub. L. 93-508, 88 Stat. 1594, for example, made specific revisions to the existing provisions of the veterans' re-employment rights laws that impose explicit obligations upon employers with respect to certain disabled veterans of the Vietnam era. 38 U.S. C. § 2012. See S. Conf. Rep. No. 93-1107, p. 34 (1974). See also S. Conf. Rep. No. 93-1240, p. 34 (1974); H. R. Conf. Rep. No. 93-1303, p. 34 (1974); H. R. Conf. Rep. No. 93-1435, p. 35 (1974). Cf. Southeastern Community College v. Davis, 442 U.S. 397, 410-411.
[16] We note that the collective agreement between the respondent and the petitioner's union stated that it "defines the normal hours of work and shall not be construed as a guarantee of hours of work per day or per week or of days of work per week."
[17] Of course, nothing in this opinion prevents an employer from providing special scheduling accommodation to employee-reservists. See n. 14, supra. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/108745/ | 410 U.S. 719 (1973)
SALYER LAND CO. ET AL.
v.
TULARE LAKE BASIN WATER STORAGE DISTRICT.
No. 71-1456.
Supreme Court of United States.
Argued January 8, 1973.
Decided March 20, 1973.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA.
*720 Thomas Keister Greer argued the cause for appellants. With him on the briefs was C. Ray Robinson.
Robert M. Newell argued the cause for appellee. With him on the brief was Ernest M. Clark, Jr.[*]
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
This is another in the line of cases in which the Court has had occasion to consider the limits imposed by the Equal Protection Clause of the Fourteenth Amendment on legislation apportioning representation in state and local governing bodies and establishing qualifications for voters in the election of such representatives. Reynolds v. Sims, 377 U.S. 533 (1964), enunciated the constitutional standard for apportionment of state legislatures. Later cases such as Avery v. Midland County, 390 U.S. 474 (1968), and Hadley v. Junior College District, 397 U.S. 50 (1970), extended the Reynolds rule to the governing bodies of a county and of a junior college district, respectively. We are here presented with the issue expressly reserved in Avery, supra:
"Were the [county's governing body] a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents *721 more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions." 390 U.S., at 483-484.
The particular type of local government unit whose organization is challenged on constitutional grounds in this case is a water storage district, organized pursuant to the California Water Storage District Act, Calif. Water Code § 39000 et seq. The peculiar problems of adequate water supplies faced by most of the western third of the Nation have been described by Mr. Justice Sutherland, who was himself intimately familiar with them, in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 156-157 (1935):
"These states and territories comprised the western third of the United Statesa vast empire in extent, but still sparsely settled. From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the boundary of Mexico an area greater than that of the original thirteen statesthe lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation.
"In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed *722 dry and desolate lands into green fields and leafy orchards. . . ."
Californians, in common with other residents of the West, found the State's rivers and streams in their natural state to present the familiar paradox of feast or famine. With melting snow in the high mountains in the spring, small streams became roaring freshets, and the rivers they fed carried the potential for destructive floods. But with the end of the rainy season in the early spring, farmers depended entirely upon water from such streams and rivers until the rainy season again began in the fall. Long before that time, however, rivers which ran bank full in the spring had been reduced to a bare trickle of water.
It was not enough therefore, for individual farmers or groups of farmers to build irrigation canals and ditches which depended for their operation on the natural flow of these streams. Storage dams had to be constructed to impound in their reservoirs the flow of the rivers at flood stage for later release during the dry season regimen of these streams. For the construction of major dams to facilitate the storage of water for irrigation of large areas, the full resources of the State and frequently of the Federal Government were necessary.[1]
But for less costly projects which would benefit a more restricted geographic area, the State was frequently either unable or unwilling to pledge its credit or its resources. The California Legislature, therefore, has authorized a number of instrumentalities, including water storage districts such as the appellee here, to provide a local response to water problems.
Some history of the experience of California and the other Western States with the problems of water distribution *723 is contained in Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 151-154 (1896), in which the constitutionality of California's Wright Act was sustained against claims of denial of due process under the Fourteenth Amendment to the United States Constitution. While the irrigation district was apparently the first local governmental unit authorized to deal with water distribution, it is by no means the only one. General legislation in California authorizes the creation, not only of irrigation districts, but of water conservation districts, water storage and conservation districts, flood control districts, and water storage districts such as appellee.[2]
Appellee district consists of 193,000 acres of intensively cultivated, highly fertile farm land located in the Tulare Lake Basin. Its population consists of 77 persons, including 18 children, most of whom are employees of one or another of the four corporations that farm 85% of the land in the district.
Such districts are authorized to plan projects and execute approved projects "for the acquisition, appropriation, diversion, storage, conservation, and distribution of water . . . ." Calif. Water Code § 42200 et seq.[3] Incidental to this general power, districts may "acquire, improve, and operate" any necessary works for the storage *724 and distribution of water as well as any drainage or reclamation works connected therewith, and the generation and distribution of hydroelectric power may be provided for.[4]Id., §§ 43000, 43025. They may fix tolls and charges for the use of water and collect them from all persons receiving the benefit of the water or other services in proportion to the services rendered. Id., § 43006. The costs of the projects are assessed against district land in accordance with the benefits accruing to each tract held in separate ownership. Id., §§ 46175, 46176. And land that is not benefited may be withdrawn from the district on petition. Id., § 48029.
Governance of the districts is undertaken by a board of directors. Id., § 40658. Each director is elected from one of the divisions within the district, id., § 39929, and each must take an official oath and execute a bond. Id., § 40301. General elections for the directors are to be held in odd-numbered years. Id., §§ 39027, 41300 et seq.
It is the voter qualification for such elections that appellants claim invidiously discriminates against them and persons similarly situated. Appellants are landowners, a landowner-lessee, and residents within the area included in the appellee's water storage district. They brought this action under 42 U.S. C. § 1983, seeking declaratory and injunctive relief in an effort to prevent appellee from giving effect to certain provisions of the California Water Code. They allege that §§ 41000[5] and 41001[6] unconstitutionally deny to them the equal protection *725 of the laws guaranteed by the Fourteenth Amendment, in that only landowners are permitted to vote in water storage district general elections, and votes in those elections are apportioned according to the assessed valuation of the land. A three-judge court was convened pursuant to 28 U.S. C. § 2284, and the case was submitted on factual statements of the parties and briefs, without testimony or oral argument. A majority of the District Court held that both statutes comported with the dictates of the Equal Protection Clause, and appellants have appealed that judgment directly to this Court under 28 U.S. C. § 1253.
In Williams v. Rhodes, 393 U.S. 23 (1968), a case in which the Ohio legislative scheme for regulating the electoral franchise was challenged, the Court said:
"[T]his Court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that `invidious' distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Id., at 30.
We therefore turn now to the determination of whether the California statutory scheme establishing water storage districts violates the Equal Protection Clause of the Fourteenth Amendment.
*726 I
It is first argued that § 41000, limiting the vote to district landowners, is unconstitutional since nonlandowning residents have as much interest in the operations of a district as landowners who may or may not be residents. Particularly, it is pointed out that the homes of residents may be damaged by floods within the district's boundaries, and that floods may, as with appellant Ellison, cause them to lose their jobs. Support for this position is said to come from the recent decisions of this Court striking down various state laws that limited voting to landowners, Phoenix v. Kolodziejski, 399 U.S. 204 (1970), Cipriano v. City of Houma, 395 U.S. 701 (1969), and Kramer v. Union School District, 395 U.S. 621 (1969).
In Kramer, the Court was confronted with a voter qualification statute for school district elections that limited the vote to otherwise qualified district residents who were either (1) the owners or lessees of taxable real property located within the district, (2) spouses of persons owning qualifying property, or (3) parents or guardians of children enrolled for a specified time during the preceding year in a local district school. Without reaching the issue of whether or not a State may in some circumstances limit the exercise of the franchise to those primarily interested or primarily affected by a given governmental unit, it was held that the above classifications did not meet that state-articulated goal since they excluded many persons who had distinct and direct interests in school meeting decisions and included many persons who had, at best, remote and indirect interests. Id., at 632-633.
Similarly, in Cipriano v. City of Houma, supra, decided the same day, provisions of Louisiana law which gave only property taxpayers the right to vote in elections *727 called to approve the issuance of revenue bonds by a municipal utility were declared violative of the Equal Protection Clause since the operation of the utility systems affected virtually every resident of the city, not just the 40% of the registered voters who were also property taxpayers, and since the bonds were not in any And the rationale of Cipriano was expanded to include general obligation bonds of municipalities in Phoenix v. Kolodziejski, supra. It was there noted that not only did those persons excluded from voting have a great interest in approving or disapproving municipal improvements, but they also contributed both directly through local taxes and indirectly through increased rents and costs to the servicing of the bonds. 399 U.S., at 210-211.
Cipriano and Phoenix involved application of the "one person, one vote" principle to residents of units of local governments exercising general governmental power, as that term was defined in Avery v. Midland County, 390 U.S. 474 (1968). Kramer and Hadley v. Junior College District, 397 U.S. 50 (1970), extended the "one person, one vote" principle to school districts exercising powers which.
"while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here." 397 U.S., at 53-54.
But the Court was also careful to state that:
"It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental *728 activities and so disproportionately affect different groups that a popular election in compliance with Reynolds, supra, might not be required, but certainly we see nothing in the present case that indicates that the activities of these trustees fit in that category. Education has traditionally been a vital governmental function, and these trustees, whose election the State has opened to all qualified voters, are governmental officials in every relevant sense of that term." Id., at 56.
We conclude that the appellee water storage district, by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a group, is the sort of exception to the rule laid down in Reynolds which the quoted language from Hadley, supra, and the decision in Avery, supra, contemplated.
The appellee district in this case, although vested with some typical governmental powers,[7] has relatively limited authority. Its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin.[8] It provides no other general public *729 services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body. App. 86. There are no towns, shops, hospitals or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains. Ibid.
Not only does the district not exercise what might be thought of as "normal governmental" authority, but its actions disproportionately affect landowners. All of the costs of district projects are assessed against land by assessors in proportion to the benefits received. Likewise, charges for services rendered are collectible from persons receiving their benefit in proportion to the services. When such persons are delinquent in payment, just as in the case of delinquency in payments of assessments, such charges become a lien on the land. Calif. Water Code §§ 47183, 46280. In short, there is no way that the economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries.[9]
Under these circumstances, it is quite understandable that the statutory framework for election of directors *730 of the appellee focuses on the land benefited, rather than on people as such. California has not opened the franchise to all residents, as Missouri had in Hadley, supra, nor to all residents with some exceptions, as New York had in Kramer, supra. The franchise is extended to landowners, whether they reside in the district or out of it, and indeed whether or not they are natural persons who would be entitled to vote in a more traditional political election. Appellants do not challenge the enfranchisement of nonresident landowners or of corporate landowners for purposes of election of the directors of appellee. Thus, to sustain their contention that all residents of the district must be accorded a vote would not result merely in the striking down of an exclusion from what was otherwise a delineated class, but would instead engraft onto the statutory scheme a wholly new class of voters in addition to those enfranchised by the statute.
We hold, therefore, that the popular election requirements enunciated by Reynolds, supra, and succeeding cases are inapplicable to elections such as the general election of appellee Water Storage District.
II
Even though appellants derive no benefit from the Reynolds and Kramer lines of cases, they are, of course, entitled to have their equal protection claim assessed to determine whether the State's decision to deny the franchise to residents of the district while granting it to landowners was "wholly irrelevant to achievement of the regulation's objectives," Kotch v. River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947). No doubt residents within the district may be affected by its activities. But this argument proves too much. Since assessments imposed by the district become a cost of doing business for those who farm within it, and that *731 cost must ultimately be passed along to the consumers of the produce, food shoppers in far away metropolitan areas are to some extent likewise "affected" by the activities of the district. Constitutional adjudication cannot rest on any such "house that Jack built" foundation, however. The California Legislature could quite reasonably have concluded that the number of landowners and owners of sufficient amounts of acreage whose consent was necessary to organize the district would not have subjected their land to the lien of its possibly very substantial assessments unless they had a dominant voice in its control. Since the subjection of the owners' lands to such liens was the basis by which the district was to obtain financing, the proposed district had as a practical matter to attract landowner support. Nor, since assessments against landowners were to be the sole means by which the expenses of the district were to be paid, could it be said to be unfair or inequitable to repose the franchise in landowners but not residents. Landowners as a class were to bear the entire burden of the district's costs, and the State could rationally conclude that they, to the exclusion of residents, should be charged with responsibility for its operation. We conclude, therefore, that nothing in the Equal Protection Clause precluded California from limiting the voting for directors of appellee district by totally excluding those who merely reside within the district.
III
Appellants assert that even if residents may be excluded from the vote, lessees who farm the land have interests that are indistinguishable from those of the landowners. Like landowners, they take an interest in increasing the available water for farming and, because the costs of district projects may be passed on to them *732 either by express agreement or by increased rentals, they have an equal interest in the costs.
Lessees undoubtedly do have an interest in the activities of appellee district analogous to that of landowners in many respects. But in the type of special district we now have before us, the question for our determination is not whether or not we would have lumped them together had we been enacting the statute in question, but instead whether "if any state of facts reasonably may be conceived to justify" California's decision to deny the franchise to lessees while granting it to landowners. McGowan v. Maryland, 366 U.S. 420, 426 (1961).
The term "lessees" may embrace the holders of a wide spectrum of leasehold interests in land, from the month-to-month tenant holding under an oral lease, on the one hand, to the long-term lessee holding under a carefully negotiated written lease, on the other. The system which permitted a lessee for a very short term to vote might easily lend itself to manipulation on the part of large landowners because of the ease with which such landowners could create short-term interests on the part of loyal employees. And, even apart from the fear of such manipulation, California may well have felt that landowners would be unwilling to join in the forming of a water storage district if short-term lessees whose fortunes were not in the long run tied to the land were to have a major vote in the affairs of the district.
The administration of a voting system which allowed short-term lessees to vote could also pose significant difficulties. Apparently, assessment rolls as well as state and federal land lists are used by election boards in determining the qualifications of the voters. Calif. Water Code § 41016. Such lists, obviously, would not ordinarily disclose either long- or short-term leaseholds. *733 While reference could be made to appropriate conveyancing records to determine the existence of leases which had been recorded, leases for terms less than one year need not be recorded under California law in order to preserve the right of the lessee. Calif. Civil Code § 1214.
Finally, we note that California has not left the lessee without remedy for his disenfranchised state. Sections 41002 and 41005 of the California Water Code provide for voting in the general election by proxy. To the extent that a lessee entering into a lease of substantial duration, thereby likening his status more to that of a landowner, feels that the right to vote in the election of directors of the district is of sufficient import to him, he may bargain for that right at the time he negotiates his lease. And the longer the term of the lease, and the more the interest of the lessee becomes akin to that of the landowner, presumably the more willing the lessor will be to assign his right. Just as the lessee may by contract be required to reimburse the lessor for the district assessments so he may be contract acquire the right to vote for district directors.
Under these circumstances, the exclusion of lessees from voting in general elections for the directors of the district does not violate the Equal Protection Clause.
IV
The last claim by appellants is that § 41001, which weights the vote according to assessed valuation of the land, is unconstitutional. They point to the fact that several of the smaller landowners have only one vote per person whereas the J. G. Boswell Company has 37,825 votes, and they place reliance on the various decisions of this Court holding that wealth has no relation to resident-voter qualifications and that equality of voting power may not be evaded. See, e. g., Gray v. Sanders, *734 372 U.S. 368 (1963); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).
Appellants' argument ignores the realities of water storage district operation. Since its formation in 1926, appellee district has put into operation four multi-million-dollar projects. The last project involved the construction of two laterals from the Basin to the California State Aqueduct at a capital cost of about $2,500,000. Three small landowners having land aggregating somewhat under four acres with an assessed valuation of under $100 were given one vote each in the special election held for the approval of the project. The J. G. Boswell Company, which owns 61,665.54 acres with an assessed valuation of $3,782,220 was entitled to cast 37.825 votes in the election. By the same token, however, the assessment commissioners determined that the benefits of the project would be uniform as to all of the acres affected, and assessed the project equally as to all acreage. Each acre has to bear $13.26 of cost and the three small landowners, therefore, must pay a total of $46, whereas the company must pay $817,685 for its part.[10] Thus, as the District Court found, "the benefits and burdens to each landowner . . . are in proportion to the assessed value of the land." 342 F. Supp. 144, 146. We cannot say that the California legislative decision to permit voting in the same proportion is not rationally based.
Accordingly, we affirm the judgment of the three-judge District Court and hold that the voter qualification statutes for California water storage district elections *735 are rationally based, and therefore do not violate the Equal Protection Clause.
Affirmed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.
The vices of this case are fourfold.
First. Lessees of farmlands, though residents of the district, are not given the franchise.
Second. Residents who own no agricultural lands but live in the district and face all the perils of flood which the district is supposed to control are disfranchised.
Third. Only agricultural landowners are entitled to vote and their vote is weighted, one vote for each one hundred dollars of assessed valuation as provided in § 41001 of the California Water Code.
Fourth. The corporate voter is put in the saddle.
There are 189 landowners who own up to 80 acres each. These 189 represent 2.34% of the agricultural acreage of the district. There are 193,000 acres in the district. Petitioner Salyer Land Co. is one large operator, West Lake Farms and South Lake Farms are also large operators. The largest is J. G. Boswell Co. These four farm almost 85% of all the land in the district. Of these, J. G. Boswell Co. commands the greatest number of votes, 37,825, which are enough to give it a majority of the board of directors. As a result, it is permanently in the saddle. Almost all of the 77 residents of the district are disfranchised. The hold of J. G. Boswell Co. is so strong that there has been no election since 1947, making little point of the provision in § 41300 of the California Water Code for an election every other year.
The result has been calamitous to some who, though landless, have even more to fear from floods than the ephemeral corporation.
*736 I
In Phoenix v. Kolodziejski, 399 U.S. 204, 209, we set out the following test for state election schemes which selectively distribute the franchise:
"Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise."
Provisions authorizing a selective franchise are disfavored, because they "always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives." Kramer v. Union School District, 395 U.S. 621, 627. In order to overcome this strong presumption, it had to be shown up to now (1) that there is a compelling state interest for the exclusion, and (2) that the exclusions are necessary to promote the State's articulated goal. Phoenix v. Kolodziejski, supra; Cipriano v. City of Houma, 395 U.S. 701; Kramer v. Union School District, supra. See also Police Jury of Vermillion Parish v. Hebert, 404 U.S. 807; Stewart v. Parish School Board of St. Charles, 310 F. Supp. 1172, aff'd 400 U.S. 884. In my view, appellants in this case have made a sufficient showing to invoke the above principles, and the presumption thus established has not been overcome.
Assuming, arguendo, that a State may, in some circumstances, limit the franchise to that portion of the electorate "primarily affected" by the outcome of an election, Kramer v. Union School District, supra, at 632, the limitation may only be upheld if it is demonstrated that "all those excluded are in fact substantially less interested or affected than those the [franchise] includes." Ibid. The majority concludes that "there is no way that the *737 economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries."
But, with all respect, that is a great distortion. In these arid areas of our Nation a water district seeks water in time of drought and fights it in time of flood. One of the functions of water districts in California is to manage flood control. That is general California statutory policy.[1] It is expressly stated in the Water Code that governs water districts.[2] The California Supreme Court ruled some years back that flood control and irrigation are different but complementary aspects of one problem.[3]
From its inception in 1926, this district has had repeated flood control problems. Four rivers, Kings, Kern, Tule, and Kaweah, enter Tulare Lake Basin. South of Tulare Lake Basin is Buena Vista Lake. In the past, Buena Vista has been used to protect Tulare Lake Basin by storing Kern River water in the former. That is how Tulare Lake Basin was protected from menacing floods in 1952. But that was not done in the great 1969 flood, the result being that 88,000 of the 193,000 acres in respondent district were flooded. The board of the respondent districtdominated by the big landowner J. G. Boswell Co.voted 6-4 to table the motion that would put into operation the machinery to divert the flood waters to the Buena Vista Lake. The reason is that J. G. Boswell Co. had a long-term agricultural lease in the Buena Vista Lake Basin and flooding it would have interfered with the planting, growing, and harvesting of crops the next season.
The result was that water in the Tulare Lake Basin rose to 192.5 USGS datum. Ellison, one of the appellants *738 who lives in the district, is not an agricultural landowner. But his residence was 15 1/2 feet below the water level of the crest of the flood in 1969.
The appellee district has large levees; and if they are broken, damage to houses and loss of life are imminent.
Landownerslarge or small, resident or nonresident lessees or landlords, sharecroppers[4] or ownersall should have a say. But irrigation, water storage, the building of levees, and flood control, implicate the entire community. All residents of the district must be granted the franchise.
This case, as I will discuss below, involves the performance of vital and important governmental functions by water districts clothed with much of the paraphernalia of government. The weighting of votes according to one's wealth is hostile to our system of government. See *739 Stewart v. Parish School Board of St. Charles, 310 F. Supp. 1172, aff'd, 400 U.S. 884. As a nonlandowning bachelor was held to be entitled to vote on matters affecting education, Kramer v. Union School District, supra, so all the prospective victims of mismanaged flood control projects should be entitled to vote in water district elections, whether they be resident nonlandowners, resident or nonresident lessees, and whether they own 10 acres or 10,000 acres. Moreover, their votes should be equal regardless of the value of their holdings, for when it comes to performance of governmental functions all enter the polls on an equal basis.
The majority, however, would distinguish the water storage district from "units of local government having general governmental powers over the entire geographic area served by the body," Avery v. Midland County, 390 U.S. 474, 485, and fit this case within the exception contemplated for "a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents." Id., at 483-484. The Avery test was significantly liberalized in Hadley v. Junior College District, 397 U.S. 50. At issue was an election for trustees of a special-purpose district which ran a junior college. We said.
"[S]ince the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. . . . [T]hese powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions . . . and have sufficient *740 impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here." Id., at 53-54. (Emphasis added; footnote omitted.)
Measured by the Hadley test, the Tulare Lake Basin Water Storage District surely performs "important governmental functions" which "have sufficient impact throughout the district" to justify the application of the Avery principle.
Water storage districts in California are classified as irrigation, reclamation, or drainage districts.[5] Such state agencies "are considered exclusively governmental," and their property is "held only for governmental purpose," not in the "proprietary sense."[6] They are a "public entity," just as "any other political subdivision."[7] That is made explicit in various ways. The Water Code of California states that "[a]ll waters and water rights" of the State "within the district are given, dedicated, and set apart for the uses and purposes of the district."[8] Directors of the district are "public officers of the state."[9] The district possesses the power of eminent domain.[10] Its works may not be taxed.[11] It carries a governmental immunity against suit.[12] A district has powers that relate to irrigation, storage of water, drainage, flood control, and generation of hydroelectric energy.[13]
Whatever may be the parameters of the exception alluded to in Avery and Hadley, I cannot conclude that *741 this water storage district escapes the constitutional restraints relative to a franchise within a governmental unit.
II
When we decided Reynolds v. Sims, 377 U.S. 533, and discussed the problems of malapportionment we thought and talked about peopleof population, of the constitutional right of "qualified citizens to vote," (id., at 554) of "the right of suffrage," (id., at 555) of the comparison of "one man's vote" to that of another man's vote. Id., at 559. We said:
"Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." Id., at 562.
It is indeed grotesque to think of corporations voting within the framework of political representation of people. Corporations were held to be "persons" for purposes both of the Due Process Clause of the Fourteenth Amendment[14] and of the Equal Protection Clause.[15] Yet, it is unthinkable in terms of the American tradition that corporations should be admitted to the franchise. Could a State allot voting rights to its corporations, weighting each vote according to the wealth of the corporation? Or could it follow the rule of one corporation, one vote?
*742 It would be a radical and revolutionary step to take, as it would change our whole concept of the franchise. California takes part of that step here by allowing corporations to vote in these water district matters[16] that entail performance of vital governmental functions. One corporation can outvote 77 individuals in this district. Four corporations can exercise these governmental powers as they choose, leaving every individual inhabitant with a weak, ineffective voice. The result is a corporate political kingdom undreamed of by those who wrote our Constitution.
NOTES
[*] Melvin L. Wulf, Sanford Jay Rosen, Joel M. Gora, and David Hall filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Denslow Green for Irrigation Districts Association of California, and by George Basye for California Central Valleys Flood Control Association.
[1] The history of the vast Central Valley Project in California is recounted in United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950).
[2] 4 Waters and Water Rights § 345.3 (R. Clark ed. 1970).
[3] The actual adoption of district projects is long and involved. After a district undertakes a project, it must be approved by the California Department of Water Resources. Calif. Water Code § 42200 et seq. A report and the estimated cost of the project must be submitted to the California State Treasurer, who undertakes an independent investigation before declaring the project abandoned or approving the report. Id., § 42275 et seq. If the report is approved, a "special election" is called. Id., § 42325 et seq. In order for the project to be finally adopted, a majority of the votes and a majority of the voters must approve it. Id., §§ 42355-42550.
[4] There is no evidence that the appellee district engages in the generation, sale, or distribution of hydroelectric power.
[5] Calif. Water Code § 41000 provides:
"Only the holders of title to land are entitled to vote at a general election."
[6] Calif. Water Code § 41001 provides:
"Each voter may vote in each precinct in which any of the land owned by him is situated and may cast one vote for each one hundred dollars ($100), or fraction thereof, worth of his land, exclusive of improvements, minerals, and mineral rights therein, in the precinet."
[7] The board has the power to employ and discharge persons on a regular staff and to contract for the construction of district projects. Calif. Water Code § 43152. It can condemn private property for use in such projects, id., §§ 43530-43533, and may cooperate (including contract) with other agencies, state and federal. Id., § 43151. Both general obligation bonds and interest-bearing warrants may be authorized. Id., §§ 44900-45900.
[8] Appellants strongly urge that districts have the power to, and do, engage in flood control activities. The interest of such activities to residents is said to be obvious since houses may be destroyed and, as in the case of appellant Ellison, jobs may disappear. But Calif. Water Code § 43151 provides that any agreement entered into with the State or the United States must be "for a purpose appertaining to or beneficial to the project of the district. . . ." And the statute which assertedly gives support to the flood control activities, id., § 44000, simply states that a district "may cooperate and contract with the state . . . or the United States" for the purpose of "flood control." Id., § 44001. Thus, any flood control activities are incident to the exercise of the district's primary functions of water storage and distribution.
[9] Appellants point out that since the flood of 1969, the district has received about $250,000 in flood relief funds from the Federal Government and that the residents, like other American citizens, have paid their share of that money and are therefore entitled to vote. Cf. Phoenix v. Kolodziejski, 399 U.S. 204 (1970). But their status as district residents bears no more relation to the flood relief money than that of any other United States citizen and would seem to provide no more compelling reason for granting such residents the right to vote than the citizenry at large.
[10] As was pointed out in n. 3, small landowners are protected from erippling assessments resulting from district projects by the dual vote which must be taken in order to approve a project. Not only must a majority of the votes be cast for approval, but also a majority of the voters must approve. In this case, about 189 landowners constitute a majority and 189 of the smallest landowners in the district have only 2.34% of the land.
[1] Calif. Stat. 1921, c. 914, § 58.
[2] Calif. Water Code § 44001.
[3] Tarpey v. McClure, 190 Cal. 593, 213 P. 983.
[4] Since 1938, sharecroppers have been included in federal regulations defining "farmers" who are entitled to vote on referenda concerning marketing quotas under the Agricultural Adjustment Act.
"Farmers engaged in the production of a commodity. For purposes of referenda with respect to marketing quotas for tobacco, extra long staple cotton, rice and peanuts the phrase `farmers engaged in the production of a commodity' includes any person who is entitled to share in a crop of the commodity, or the proceeds thereof because he shares in the risks of production of the crop as an owner, landlord, tenant, or sharecropper (landlord whose return from the crop is fixed regardless of the amount of the crop produced is excluded) on a farm on which such crop is planted in a workmanlike manner for harvest: Provided, That any failure to harvest the crop because of conditions beyond the control of such person shall not affect his status as a farmer engaged in the production of the crop. In addition, the phrase `farmers engaged in the production of a commodity' also includes each person who it is determined would have had an interest as a producer in the commodity on a farm for which a farm allotment for the crop of the commodity was established and no acreage of the crop was planted but an acreage of the crop was regarded as planted for history acreage purposes under the applicable commodity regulations." 7 CFR § 717.3 (b).
[5] Calif. Water Code § 39060.
[6] Glenn-Colusa Irrigation District v. Ohrt, 31 Cal. App. 2d 619, 623, 88 P.2d 763, 765.
[7] Calif. Govt. Code § 811.2.
[8] Section 43158. See also id., § 39061.
[9] In re Madera Irrigation District, 92 Cal. 296, 322, 28 P. 272, 278.
[10] Calif. Water Code § 43530.
[11] Id., § 43508.
[12] Calif. Govt. Code §§ 811.2, 815.
[13] Calif. Water Code §§ 42200, 43000, 43025, 44001.
[14] Minneapolis & St. Louis R. Co. v. Beckwith, 129 U.S. 26, 28.
[15] Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 188-189; Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 397.
[16] Calif. Water Code § 41004. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2700714/ | [Cite as Gephart v. Miller, 2013-Ohio-3988.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ROBERT C. GEPHART ) CASE NO. 12 BE 30
)
PETITIONER )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
MICHELLE MILLER, WARDEN )
)
RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: Robert C. Gephart, Pro se
#A611-193
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
For Respondent: Atty. Mike DeWine
Attorney General of Ohio
Atty. Maura O’Neill Jaite
Senior Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 13, 2013
[Cite as Gephart v. Miller, 2013-Ohio-3988.]
PER CURIAM.
{¶1} Petitioner Robert C. Gephart seeks a writ of habeas corpus for
immediate release from imprisonment at the Belmont Correctional Institution in St.
Clairsville, Belmont County, Ohio. He asserts that his conviction was obtained
through a faulty indictment. He contends that his trial counsel was ineffective. Part
of the petition is devoted to statute of limitations defenses. Finally, he argues that his
guilty plea was not made knowingly and voluntarily. Respondent Michele Miller,
Warden of the Belmont Correctional Institution, has filed a motion to dismiss.
{¶2} Petitioner’s claims fail for a number of reasons. First, he failed to pay
the required filing fees or to alternatively properly file a fee waiver request. Second,
he failed to attach the required commitment papers. Third, he did not attach an
affidavit of prior civil actions filed by him within the past five years. All of these are
mandatory requirements when petitioning for habeas relief, and the omission of any
one is grounds for dismissal. We must add that Petitioner’s claims are not
cognizable in a habeas corpus action because there were other adequate legal
alternatives available to pursue those claims. Accordingly, we hereby grant
Respondent’s motion and dismiss this petition with prejudice pursuant to Civ.R.
12(B)(6).
Background
{¶3} On June 20, 2011, Petitioner was sentenced in Clermont County Court
of Common Pleas Case No. 2010 CR 732 to ten and one-half years in prison after
pleading guilty to seven counts of gross sexual imposition. He will apparently have
-2-
served his sentence by 2018. Respondent is the warden at the Belmont Correctional
Institution and currently maintains custody over Petitioner.
{¶4} Petitioner did not file a timely appeal of his conviction and sentence.
He later filed a motion for leave to file a delayed appeal on February 1, 2012. The
Twelfth District Court of Appeals dismissed the motion for delayed appeal on March
26, 2012. Petitioner then filed a motion for delayed appeal with the Ohio Supreme
Court, which was also denied.
{¶5} On May 14, 2012, Petitioner filed a motion with the trial court to
withdraw his guilty plea. The motion was denied on July 10, 2012.
{¶6} Petitioner filed the instant petition for writ of habeas corpus on August
1, 2012. Respondent filed its motion to dismiss on September 1, 2012. Petitioner
filed a further memorandum on November 15, 2012.
Procedural Errors
{¶7} Respondent argues that the petition must be dismissed for failure to
meet the statutory filing requirements of a proper petition for writ of habeas corpus.
R.C. 2725.01, et seq., governs habeas filings, and failure to satisfy these statutory
requirements is generally fatal to the petition. One of the requirements is that the
petitioner must file all pertinent commitment papers relevant to the arguments being
raised in the petition. R.C. 2725.04(D). The commitment papers are necessary for a
complete understanding of the petition. Bloss v. Rogers, 65 Ohio St.3d 145, 146,
602 N.E.2d 602 (1992). Failure to file the necessary commitment papers requires
dismissal of the petition. Id.
-3-
{¶8} When an inmate initiates any civil action against a government
employee or entity, R.C. 2969.25(A) requires an affidavit of the inmate’s prior civil
actions to be filed at the same time. R.C. 2969.25(A) applies to habeas filings.
Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶6-9.
Belated attempts to file this affidavit cannot correct noncompliance with the statute.
Id. at ¶9. Failure to timely file the required affidavit of prior civil actions mandates
dismissal of the petition. State ex rel. Washington v. Ohio Adult Parole Auth., 87
Ohio St.3d 258, 259, 719 N.E.2d 544 (1999).
{¶9} R.C. 2969.25(C) requires an inmate seeking waiver of the filing fees to
file an affidavit of indigency. Along with that affidavit, the inmate must also file a
certified statement of the inmate’s account balance for the previous six months, and a
statement of all cash and items of value owned by the inmate. “The requirements of
R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate’s
action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-
2262, 788 N.E.2d 634, ¶5. Failure to file any one of these documents at the time of
the initial filing of the petition results in dismissal of the petition. Hazel v. Knab, 130
Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶1. Although we have previously
held that this error may be corrected after the initial filing of the petition, the
subsequent Hazel v. Knab decision of the Ohio Supreme Court has clarified that the
error cannot be corrected after the initial filing and is fatal to the petition. See
Thomas v. Eberlin, 7th Dist. No. 08 BE 14, 2008-Ohio-4663, ¶11.
-4-
{¶10} Petitioner has violated all of these statutory provisions. Petitioner failed
to file any commitment papers with his petition. Petitioner failed to file an affidavit of
prior civil actions. Petitioner failed to file his inmate account statement. For any one
of these three reasons, the petition must be dismissed.
Substantive Arguments
{¶11} Respondent requests that the petition also be dismissed under Civ.R.
12(B)(6). A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim may be
granted when it appears beyond doubt from the face of the petition, presuming the
allegations contained therein are true, that the petitioner can prove no facts which
would warrant the relief sought. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80,
537 N.E.2d 641 (1989). To withstand a motion to dismiss, a complaint must contain,
with sufficient particularity, a statement of the clear legal duty of the respondent to
perform the act requested. State ex rel. Boggs v. Springfield Local School Dist. Bd.
of Ed., 72 Ohio St.3d 94, 95, 647 N.E.2d 788 (1995). The purpose of a Civ.R.
12(B)(6) motion is to test the sufficiency of the complaint. Id. In order for a case to
be dismissed for failure to state a claim, it must appear beyond doubt that, even
assuming all factual allegations in the complaint are true, the nonmoving party can
prove no set of facts that would entitle that party to the relief requested. State ex rel.
Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994).
{¶12} If the petition does not meet the requirements of a properly filed petition
for writ of habeas corpus, or fails to state a facially viable claim, it may be dismissed
-5-
on motion of the respondent or sua sponte by the court. Flora v. State, 7th Dist. No.
04 BE 51, 2005-Ohio-2382, ¶5.
{¶13} R.C. 2725.01 provides: “Whoever is unlawfully restrained of his liberty,
or entitled to the custody of another, of which custody such person is unlawfully
deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment, restraint, or deprivation.” The writ of habeas corpus is an
extraordinary writ and will only be issued in certain circumstances of unlawful
restraint of a person’s liberty where there is no adequate legal remedy at law, such
as a direct appeal or postconviction relief. In re Pianowski, 7th Dist. No. 03 MA 16,
2003-Ohio-3881, ¶3; see also, State ex rel. Pirman v. Money, 69 Ohio St.3d 591,
593, 635 N.E.2d 26 (1994). If a person is in custody by virtue of a judgment of a
court of record and the court had jurisdiction to render the judgment, the writ of
habeas corpus will not be allowed. Tucker v. Collins, 64 Ohio St.3d 77, 78, 591
N.E.2d 1241 (1992). “Absent a patent and unambiguous lack of jurisdiction, a party
challenging a court’s jurisdiction has an adequate remedy at law by appeal.” Smith v.
Bradshaw, 109 Ohio St.3d 50, 2006-Ohio-1829, 845 N.E.2d 516, ¶10.
{¶14} Habeas corpus relief is only available when there is no other adequate
legal remedy available. State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 186, 652
N.E.2d 746, 748 (1995). Habeas relief is also not a substitute for direct appeal or
other forms of legal postconviction relief. Cornell v. Schotten, 69 Ohio St.3d 466, 633
N.E.2d 1111 (1994).
-6-
{¶15} The burden is on the petitioner to establish an immediate right to
release. Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough
v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963).
{¶16} In the instant case, Petitioner alleges that he is being unlawfully
detained because: (1) his indictment was deficient; (2) his legal counsel was
ineffective; (3) he was not prosecuted within the criminal statute of limitations; and (4)
his guilty pleas were not knowingly and voluntarily entered. None of these issues are
appropriately raised in habeas proceedings. “Habeas corpus is not available to
challenge either the validity or sufficiency of an indictment.” State ex rel. Simpson v.
Lazaroff, 75 Ohio St.3d 571, 571, 664 N.E.2d 937 (1996). “[Petitioner’s] claim that
his trial counsel was ineffective is not cognizable in habeas corpus.” Davis v. Wilson,
100 Ohio St.3d 269, 2003-Ohio-5898, 798 N.E.2d 379, ¶9. A statute of limitations
violation does not divest a court of its jurisdiction and is not cognizable in habeas
corpus. Daniel v. State, 98 Ohio St.3d 467, 2003-Ohio-1916, 786 N.E.2d 891 at ¶7.
“[T]he validity of a guilty plea cannot be contested in a habeas corpus action because
that issue does not relate to the jurisdiction of a trial court to hear the matter.” State
ex rel. Fitzpatrick v. Trumbull Correctional Inst. Warden, 11th Dist. No. 2003-T-0080,
2003-Ohio-5005, ¶10.
{¶17} Petitioner has raised no arguments that are cognizable in a habeas
action. The arguments raised do not challenge the jurisdiction of the court. The
proper forum for all of Petitioner’s current claims was through direct appeal, post-trial
-7-
motions, or postconviction relief proceedings. Therefore, we sustain Respondent’s
motion to dismiss.
Conclusion
{¶18} We hereby dismiss the petition for writ of habeas corpus with prejudice.
Petitioner committed a number of filing errors that mandate dismissal of the petition.
He failed to file the pertinent commitment papers; failed to file an affidavit of prior civil
actions; and failed to file his inmate account statement with his affidavit of indigency.
In addition, Petitioner’s claims are not cognizable in habeas corpus, as he had other
adequate forms of legal relief available that preclude granting extraordinary relief in
habeas.
{¶19} For all the aforementioned reasons, we dismiss the petition for habeas
corpus.
{¶20} Costs taxed against Petitioner. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, J., concurs.
Donofrio, J., concurs.
Vukovich, J., concurs. | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/729559/ | 99 F.3d 1157
Marvin Morrisv.Florida Department of Corrections, Harry K. Singletary,State, Robert Butterworth, Attorney General
NO. 95-4208
United States Court of Appeals,
Eleventh Circuit.
Oct 02, 1996
S.D.Fla., 89 F.3d 854
1
DENIALS OF REHEARING EN BANC. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/4555587/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-173V
(Unpublished)
************************* *
*
TARRO DUSSAULT, *
* Special Master Katherine E. Oler
*
Petitioner, *
* Filed: June 17, 2020
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Petitioner’s Motion for a Decision;
* Dismissal of Petition; Vaccine Act.
*
Respondent. *
*
************************* *
Michael Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for Petitioner.
Mallori Openchowski, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING PETITION1
I. Procedural History
On February 4, 2016, Tarro Dussault (“Petitioner”) filed a petition2 for compensation under
the National Vaccine Injury Compensation Program,3 alleging that he suffered from a tetany
inflammatory response and back pain as a result of the tetanus, diphtheria, and acellular pertussis
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided
by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days
within which to request redaction “of any information furnished by that party: (1) that is a trade secret or
commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise, the Decision in its present form will be available. Id.
2
This case was initial assigned to now-retired Special Master Hastings (ECF No. 4), reassigned to Special
Master Corcoran on October 4, 2017 (ECF No. 33), and then reassigned to my docket on December 4,
2017 (ECF No. 35).
3
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
(“Tdap”) vaccination he received on March 24, 2014. Pet. at 1, 9, ECF No. 1. Petitioner filed a
statement of completion on February 10, 2016. ECF No. 8.
On May 26, 2016, Respondent filed a Rule 4(c) Report stating this case should be dismissed
for failure to demonstrate entitlement to compensation. ECF No. 14. On January 25, 2017,
Petitioner submitted two letters from his attending physician, Dr. Paul Davis, DO. Exs. 10, 11,
ECF No. 24. On August 11, 2017, Respondent filed an expert report from Dr. Jeffrey Cohen, MD.
Ex. A, ECF No. 31. Dr. Cohen notes that there are discrepancies between Dr. Davis’ letters and
the medical records, namely “[n]one of the contemporaneous clinical notes after TD’s tetanus
vaccination document any severe untoward reaction of the tetanus vaccine, in contradistinction to
Dr. Davis’ letters.” Ex. A at 2. Dr. Cohen concludes his report by stating,
TD did not have a tetany or any significant tetanus reaction. There is no
documentation of such an occurrence in the clinical notes by his providers.
TD had a chronic low back problem L5 S1 disc (of at least 10 years duration) which
was helped by surgery. This was unrelated to the tetanus vaccination.
Id. I held a status conference with the parties on November 19, 2019 informing Mr. Firestone that
I believed a more detailed expert report would be needed to support Petitioner’s theory of
causation. See Minute Entry on 11/19/19; see also Scheduling Order on 11/19/19, ECF No. 39. I
granted Petitioner 90 days to file an expert report. See Scheduling Order on 11/19/19, ECF No.
39. Petitioner filed two motions for an extension of time and I granted those motions. ECF Nos.
41, 42; see non-PDF Orders granting Motion for Extension on 2/18/2020 and 4/17/2020.
On June 16, 2020, Petitioner filed the instant motion to dismiss his petition, stating “An
investigation of the facts and science supporting his case has demonstrated to Petitioner that he
will be unable to prove that he is entitled to compensation in the Vaccine Program.” Pet’r’s Mot.
at 1, ECF No. 43.
II. Conclusion
To receive compensation in the Vaccine Program, a petitioner must prove either (1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or (2) that he suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner may not receive a Vaccine
Program award based solely on his claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent medical expert. § 13(a)(1). In this case, however,
there is insufficient evidence in the record for Petitioner to meet his burden of proof. Petitioner’s
claim therefore cannot succeed and, in accordance with his motion, must be dismissed. §
11(c)(1)(A).
As such, IT IS ORDERED THAT,
Petitioner’s Motion for A Decision Dismissing His Petition is GRANTED and the petition
is hereby DISMISSED. The Clerk shall enter judgment accordingly.
2
Any questions regarding this Order may be directed to my law clerk, Sydney Lee, by
telephone at 202-357-6347, or by email at Sydney_Lee@cfc.uscourts.gov.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3 | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4555574/ | Case: 19-12707 Date Filed: 08/14/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12707
Non-Argument Calendar
________________________
D.C. Docket No. 9:07-cr-80041-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWYNE BYRON DERUISE,
a.k.a. Duke,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 14, 2020)
Before JILL PRYOR, GRANT and LUCK, Circuit Judges.
PER CURIAM:
Case: 19-12707 Date Filed: 08/14/2020 Page: 2 of 7
Dwyne Deruise appeals the district court’s determination that it had no
authority under § 404 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat.
5194 (the “First Step Act”) to conduct a plenary sentencing hearing to consider
whether Deruise still qualified as a career offender when granting him a reduction
in his sentence under the First Step Act. Deruise argues that the First Step Act
authorized district courts to conduct a full resentencing because nothing in the act
limits what the court may consider in imposing a reduced sentence. After careful
consideration, we affirm the district court’s determination.
In 2007, a grand jury indicted Deruise on three counts of distributing cocaine
and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), (B), (C)
(Counts 1-3); two counts of manufacturing and possessing with intent to distribute
at least 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A),
and 18 U.S.C. § 2 (Counts 4-5); and one count of carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count 6). Deruise pled guilty to Counts 5 and 6.
In calculating Deruise’s guideline range using the 2006 Sentencing
Guidelines, the Presentence Investigation Report (“PSR”) calculated Deruise’s
total offense level as 34 and his criminal history category as VI. With a total
offense level of 34 and a criminal history category of VI, the guideline range was
262 to 327 months’ imprisonment. Because Deruise had two prior felony
2
Case: 19-12707 Date Filed: 08/14/2020 Page: 3 of 7
convictions for battery on a law enforcement officer—predicate offenses that
qualified as “crimes of violence”—he was eligible for the career-offender
enhancement under § 4B1.1, which increased the guideline range to 322 to 387
months’ imprisonment. Both Count 5 and 6 carried statutory minimum terms of
imprisonment, 10 years for Count 5 and five years to run consecutively for Count
6.
At Deruise’s sentencing, the district court adopted the findings of fact and
guideline calculations in the PSR. The district court sentenced him to 204 months’
imprisonment on Count 5, and a consecutive term of 60 months’ imprisonment on
Count 6, for a total term of 264 months’ imprisonment, which represented a 58-
month downward variance from the low end of the guideline range. The district
court also sentenced him to five years’ supervised release on each count, to run
concurrently.
In 2019, Deruise filed a motion for reduction of sentence under the First
Step Act, arguing that he was eligible for a sentence reduction because his drug
conviction in Count 5 was a covered offense. In seeking a reduction of his
sentence on Count 5, Deruise argued that the district court should conduct a full
resentencing hearing, apply the law and guidelines in effect now, and, in light of
Johnson v. United States, 559 U.S. 133 (2010), resentence him as if he were not a
career offender.
3
Case: 19-12707 Date Filed: 08/14/2020 Page: 4 of 7
The district court granted Deruise’s motion for a reduction of his sentence
under the First Step Act and, considering all of the facts of the case and the §
3353(a) factors, reduced his sentence on Count 5 to 168 months’ imprisonment, to
be followed by a consecutive 60-month sentence on Count 6, for a total sentence of
228 months’ imprisonment.
After the district court’s order granting the motion, Deruise filed an
unopposed motion asking the district court to clarify whether in granting his
motion to reduce his sentence the court continued to classify Deruise as a career
offender. In response, the district court issued an order stating that a motion to
reduce sentence under the First Step Act does not authorize a full resentencing or a
sentencing de novo, and, therefore, in granting Deruise’s motion to reduce his
sentence, the court continued to treat him as a career offender. This appeal
followed.
We review for abuse of discretion a district court’s ruling on an eligible
movant’s request for a reduced sentence under the First Step Act. United States v.
Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). Where the request poses a legal
question, however, our review is de novo. United States v. Pringle, 350 F.3d 1172,
1178-79 (11th Cir. 2003). We review de novo the district court’s statutory
interpretation, a legal issue. United States v. Segarra, 582 F.3d 1269, 1271 (11th
Cir. 2009).
4
Case: 19-12707 Date Filed: 08/14/2020 Page: 5 of 7
On appeal, Deruise argues that the district court erred in concluding that it
had no authority under the First Step Act to conduct a de novo resentencing and
therefore could not consider whether Deruise still qualified as a career offender.
Deruise argues that the First Step Act authorized district courts to conduct a full
resentencing because nothing in the act limits what the court may consider in
imposing a reduced sentence, and where a statute places no restrictions on the
factors a court may consider in imposing a reduced sentence, the court may
consider all relevant § 3553(a) factors. Deruise further argues that because
Johnson called into question whether Florida battery on a law enforcement officer,
which was one of his predicate offenses, was a crime of violence, the court should
consider that change in law when reducing a sentence under the First Step Act.
The Fair Sentencing Act, enacted on August 3, 2010, amended 21 U.S.C.
§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between offenses
involving crack and powder cocaine. Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (the “Fair Sentencing Act”); see Dorsey v. United States,
567 U.S. 260, 268-69 (2012) (detailing the history that led to enactment of the Fair
Sentencing Act, including the Sentencing Commission’s criticisms that the
disparity between crack cocaine and powder cocaine offenses was disproportional
and reflected race-based differences). Section 2 of the Fair Sentencing Act
changed the quantity of crack cocaine necessary to trigger a 10-year mandatory
5
Case: 19-12707 Date Filed: 08/14/2020 Page: 6 of 7
minimum from 50 grams to 280 grams and the quantity necessary to trigger a five-
year mandatory minimum from five grams to 28 grams. Fair Sentencing Act
§ 2(a)(1)-(2); see also 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). These amendments
were not made retroactive to defendants who were sentenced before the enactment
of the Fair Sentencing Act. United States v. Berry, 701 F.3d 374, 377 (11th Cir.
2012).
In 2018, Congress enacted the First Step Act, which made retroactive the
Fair Sentencing Act’s statutory penalties for covered offenses. See First Step Act
§ 404. Under § 404(b) of the First Step Act, a court “that imposed a sentence for a
covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the
Fair Sentencing Act . . . were in effect at the time the covered offense was
committed.” Id. § 404(b). The statute defines “covered offense” as “a violation of
a Federal criminal statute, the statutory penalties for which were modified by
section 2 or 3 of the Fair Sentencing Act . . . , that was committed before August 3,
2010.” Id. § 404(a).
In United States v. Denson, we held that “the First Step Act does not
authorize the district court to conduct a plenary or de novo resentencing.” 963
F.3d 1080, 1089 (11th Cir. 2020). When ruling on a defendant’s First Step Act
motion, a district court is permitted to reduce a defendant’s sentence “only on a
‘covered offense,’ and only ‘as if’ sections 2 and 3 of the Fair Sentencing Act were
6
Case: 19-12707 Date Filed: 08/14/2020 Page: 7 of 7
in effect when he committed the covered offense.” Id. The district court “is not
free to change the defendant’s original guidelines calculations that are unaffected
by sections 2 and 3 [or] to reduce the defendant’s sentence on the covered offense
based on changes in the law beyond those mandated by sections 2 and 3.” Id.
Accordingly, the district court did not err in concluding that it lacked the authority
to conduct a de novo resentencing under the First Step Act to consider Deruise’s
career-offender status under current law.
AFFIRMED.
7 | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4555612/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:07 AM CDT
- 484 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
Cheryl V. Anderson, appellee, v. A & R
Ag Spraying and Trucking, Inc., and
Michael Rafert, appellants.
___ N.W.2d ___
Filed July 17, 2020. No. S-19-541.
1. Equity: Stock: Valuation. A proceeding under the provisions of Neb.
Rev. Stat. § 21-2,201 (Cum. Supp. 2016) to determine the fair value of
a petitioning shareholder’s shares of stock is equitable in nature.
2. Equity: Appeal and Error. An appellate court reviews an equitable
action de novo on the record and reaches a conclusion independent of
the factual findings of the trial court; however, where credible evidence
is in conflict on a material issue of fact, the appellate court considers
and may give weight to the circumstance that the trial court heard and
observed the witnesses and accepted one version of the facts rather
than another.
3. Statutes: Appeal and Error. Statutory interpretation is a matter of law,
in connection with which an appellate court has an obligation to reach
an independent, correct conclusion irrespective of the determination
made by the court below.
4. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
5. Expert Witnesses. The determination of the weight that should be given
expert testimony is uniquely the province of the fact finder.
6. Corporations: Stock: Valuation. The trial court is not required to
accept any one method of stock valuation as more accurate than another
accounting procedure.
7. Corporations: Valuation. A trial court’s valuation of a closely held cor-
poration is reasonable if it has an acceptable basis in fact and principle.
8. Equity: Stock: Valuation. A proceeding to determine the “fair value” of
corporate shares is equitable in nature.
- 485 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
Appeal from the District Court for Pierce County: James G.
Kube, Judge. Affirmed in part, and in part vacated.
George H. Moyer, of Moyer & Moyer, for appellants.
Kathleen K. Rockey, David E. Copple, and Allison Rockey
Mason, of Copple, Rockey & Schlecht, P.C., L.L.O., for
appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Funke, J.
A purchasing shareholder appeals from the district court’s
valuation of the shares of a closely held corporation. We
determine that the district court erred in entering judgment
against both the shareholder and the corporation, rather than
the shareholder alone, and in awarding corporate property
rather than solely the value of the shares to be purchased. We
otherwise affirm.
BACKGROUND
Randy Anderson and Michael Rafert started a trucking and
crop-spraying business in Plainview, Nebraska, in 1999. In
2000, articles of incorporation were filed with the Nebraska
Secretary of State for A & R Ag Spraying and Trucking,
Inc. (A & R). A & R is a subchapter C corporation under the
Internal Revenue Code presently in good standing with the
Nebraska Secretary of State. Randy and Rafert each owned 50
percent of A & R’s shares. In practice, A & R functioned more
like a partnership than a corporation. No corporate bylaws
were prepared or executed, no formal meetings were held, no
minutes were recorded to show A & R’s general operations,
and there was no agreement covering the rights of the share-
holders in the event of a buyout.
Randy passed away in 2015, and his interest in A & R was
transferred to his wife, Cheryl V. Anderson, through probate.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
In February 2017, Cheryl and Rafert attended a corporate
meeting to organize the corporation and elect officers and
directors, but they could not agree on anything and the corpo-
ration became deadlocked.
Shortly thereafter, Cheryl petitioned the district court for
Pierce County for judicial dissolution of the corporation pur-
suant to Neb. Rev. Stat. § 21-2,197(a)(2) (Cum. Supp. 2016).
The petition named A & R and Rafert as defendants and sought
relief against both defendants individually. A & R filed an
answer which requested that the petition be dismissed. Rafert,
represented by the same counsel as A & R, separately filed his
own answer, which alleged that he is “ready, willing and able
to purchase [Cheryl’s] interest but has been unable to agree
with her on a fair price,” and asked that the court determine a
fair price and direct the purchase on such terms and conditions
as may be just. Rafert then filed an election to purchase the
corporation in lieu of dissolution, pursuant to Neb. Rev. Stat.
§ 21-2,201(a) (Cum. Supp. 2016), claiming that he would pur-
chase Cheryl’s shares for $40,000. Pursuant to § 21-2,201(d),
Rafert filed an application for a stay of the dissolution and a
determination of the fair value of Cheryl’s corporate shares as
of the day before the date on which the petition for dissolution
was filed.
At a bench trial held in the matter, the court heard oppos-
ing expert testimony from two experienced certified public
accountants who opined on the value of Cheryl’s shares. Each
expert performed a valuation engagement in accordance with
professional standards for business valuation. Both experts dis-
cussed the three methods of appraisal: the asset approach, the
income approach, and the market approach.
Janet Labenz, who testified on behalf of Rafert, performed a
valuation using the income approach, which measures a com-
pany’s historical cashflow to determine a value based on pro-
jected future cashflows. A report authored by Labenz indicated
that the asset approach would likely be realized only if the
company’s assets were sold and the liabilities retired. Lynette
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306 Nebraska Reports
ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
Pofahl, who testified on behalf of Cheryl, issued two reports,
and she ultimately used the asset approach, which Pofahl
agreed measures a company’s assets and debts to determine
a value if the company were to be sold and liquidated. Both
experts agreed that the market approach, which estimates a
value utilizing comparable sales of similar businesses, does not
apply in this case, because there are no publicly traded compa-
nies sufficiently similar to A & R.
Labenz has over 40 years of experience as a certified public
accountant and holds the designations of being accredited in
business valuation and certified in financial forensics. In per-
forming her valuation, she reviewed the corporation’s income
tax returns from 2013 to 2016, internal depreciation sched-
ules, and a financial statement prepared by A & R’s account-
ing firm on March 31, 2017. She reviewed an appraisal of
A & R’s trucks, trailers, spraying equipment, vehicles, and
tools, which appraisal produced a valuation of $1,275,175 as
of April 7, 2017.
The evidence showed that A & R uses a cash-based account-
ing system. To calculate the normalized cashflow that the
company generates, Labenz analyzed the income tax returns
and made adjustments for depreciation of A & R’s equipment
and interest payments. Based on the income tax returns, the
company made approximately $1,000 in 2013, lost $3,000
in 2014, lost $30,000 in 2015, and lost $185,000 in 2016.
But in 2016, for example, A & R bought $285,000 worth of
equipment and was permitted to deduct that amount on its
tax return. After adding depreciation amounts for each year,
and money paid on interest owed to its bank and equipment
dealers, Labenz found that the company generated $220,000
in 2013, $240,000 in 2014, $305,000 in 2015, and $138,000
in 2016.
Labenz then used a discounted cashflow method in order to
determine how much cash one would have upon purchasing the
company. In her calculation, she deducted income taxes and
the average cost of purchasing equipment, which she placed
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
at $70,000 per year. After making these deductions, Labenz
found that on average, the company generated $113,578 of
after-tax income per year. Labenz then assumed a sustainable
2-percent growth rate, capitalized the income using a rate of 20
percent, and arrived at a business valuation of $677,781. This
amount represents A & R’s free cashflow, or money available
to pay off debt or invest.
Labenz’ final step was to subtract all of the corporation’s
debt. She testified that the corporation owed approximately
$1,152,000 and that an interest payment of approximately
$23,000 was due. Based on her testimony, after payment of
the debt, she valued the company shares at negative $498,000.
Labenz’ report also contained a valuation using the asset
approach of $142,000, to which she added a 15-percent dis-
count for lack of marketability.
Pofahl has over 30 years’ experience as a certified public
accountant and 20 years’ experience as a certified valuation
analyst. In performing her valuation, Pofahl reviewed A & R’s
tax returns from 2010 to 2017, as well as depreciation sched-
ules, the inventory from Randy’s estate, and the same financial
statement and equipment appraisals reviewed by Labenz.
In her first report, Pofahl valued the corporation using a
hybrid of the income and asset methods. Pofahl found A & R’s
weighted cashflow to be $122,564 per year. Utilizing the
“capitalization of benefits” method, Pofahl valued the com-
pany at $753,138. This value included a note receivable from
Rafert, which Pofahl stated was $128,176. Pofahl issued a
revised report prior to the second day of trial, after Labenz
testified, which replaced the valuation approach shown in the
first report. Pofahl stated in her revised report that because
A & R is an asset-heavy business, the asset method is the most
appropriate way to value A & R. She determined the adjusted
book value of A & R to be $573,215 and then accounted for
back wages payable, interest, and the April 7, 2017, appraisal.
Pofahl ultimately concluded that A & R should be valued
between $720,000 and $1 million.
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306 Nebraska Reports
ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
In its posttrial decree, the court adopted the income approach
for valuing A & R and concluded that the asset approach was
not appropriate, because the corporation would not be liqui-
dated. The court disagreed with Labenz’ decision to subtract
100 percent of the debt from the valuation, because “a busi-
ness, as an on-going concern, is not required to pay back all
of its debt on a lump sum basis.” However, the court agreed
with Labenz’ decision to subtract $23,000 for an interest pay-
ment. The court adjusted Labenz’ valuation to $654,865. The
court rejected Pofahl’s use of the asset approach and consid-
ered her findings based on the income approach discussed in
her first report. The court disagreed with Pofahl’s decision to
include $128,176 for the note receivable. The court referenced
the fact that the amount of the note receivable was actually
$98,176 due to a payment made by Rafert, but then concluded
that the note receivable should not be included under the
income approach, because there is no reason to assume the
note will be collected in one lump sum. The court subtracted
the $128,176 note receivable from Pofahl’s original valua-
tion of $753,138 to arrive at a value of $624,962. The court
averaged the adjusted valuations of the two experts under the
income approach and determined the value of A & R to be
$639,914, as of March 31, 2017, with Cheryl’s share valued
at $319,957.
The court established a payment plan and entered judgment
against both A & R and Rafert. The court found that “in the
interest of equity, and in consideration of the circumstances
surrounding the history of this litigation between the parties,
[Cheryl] shall also be allowed to keep the Chevrolet Avalanche
and the Ford pickup truck, which she currently has in her pos-
session.” The court dismissed Cheryl’s petition to dissolve the
corporation and ruled that she “shall no longer have any rights
or status as a shareholder of the corporation, except the right
to receive the amounts awarded by the Order of the Court.”
A & R and Rafert timely appealed, and we granted their peti-
tion to bypass.
- 490 -
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306 Nebraska Reports
ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
ASSIGNMENTS OF ERROR
A & R and Rafert assign, restated, that the district court
erred in (1) rendering judgment against A & R when it did not
elect to purchase any shares, (2) valuing the corporation, and
(3) awarding Cheryl two corporate vehicles without authoriza-
tion under § 21-2,201(e).
STANDARD OF REVIEW
[1,2] A proceeding under the provisions of § 21-2,201 to
determine the fair value of a petitioning shareholder’s shares
of stock is equitable in nature. 1 An appellate court reviews
an equitable action de novo on the record and reaches a con-
clusion independent of the factual findings of the trial court;
however, where credible evidence is in conflict on a material
issue of fact, the appellate court considers and may give weight
to the circumstance that the trial court heard and observed
the witnesses and accepted one version of the facts rather
than another. 2
[3] Statutory interpretation is a matter of law, in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the court below. 3
ANALYSIS
No Election to Purchase
by A & R
[4] In their first assignment of error, A & R and Rafert con-
tend that the court erred by entering judgment against A & R,
because the corporation did not elect to purchase any shares
from Cheryl. To resolve this issue, we must interpret provi-
sions of the Nebraska Model Business Corporation Act, Neb.
Rev. Stat. §§ 21-201 through 21-2,232 (Cum. Supp. 2016). In
1
See Rigel Corp. v. Cutchall, 245 Neb. 118, 511 N.W.2d 519 (1994).
2
Id.
3
Id.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
construing a statute, a court must determine and give effect to
the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordi-
nary, and popular sense. 4
Cheryl initiated this matter by petitioning the district court
to dissolve A & R pursuant to § 21-2,197(a)(2). Section
21-2,201(a) states in part, “In a proceeding under subdivision
(a)(2) of section 21-2,197 to dissolve a corporation, the corpo-
ration may elect or, if it fails to elect, one or more sharehold-
ers may elect to purchase all shares owned by the petitioning
shareholder at the fair value of the shares.” Section 21-2,201(b)
states that an election may be filed by “the corporation or one
or more shareholders,” and it further states that “[a]ll share-
holders who have filed an election or notice of their intention
to participate in the election to purchase thereby become par-
ties to the proceeding . . . .”
Section 21-2,201(c) provides the parties 60 days from the
filing of the first election to reach an agreement. If no agree-
ment is reached, under § 21-2,201(d), any party may file an
application for stay of the dissolution proceedings and for a
determination by the court of the fair value of the petitioning
shareholder’s shares as of the day before the date on which the
petition was filed or as of such other date as the court deems
appropriate under the circumstances. Section 21-2,201(e) pro-
vides that upon determining the fair value of the shares, the
court shall enter an order directing the purchase upon such
terms and conditions as the court deems appropriate.
The record shows that Cheryl filed a petition under
§ 21-2,197(a)(2) and is the petitioning shareholder as described
under § 21-2,201. A & R and Rafert separately filed answers
to the petition. A & R’s answer requested that the petition be
dismissed. Rafert’s answer requested that the court determine
a fair price of Cheryl’s interest and direct purchase on such
4
State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231
(2020).
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
terms and conditions as may be just. Rafert timely filed an
election to purchase pursuant to § 21-2,201(b), which was
not resisted. A & R did not file an election to purchase. The
record indicates that the corporation was declared deadlocked
2 months prior to Rafert’s election to purchase.
Based on the language of § 21-2,201 understood in its plain,
ordinary, and popular sense, we determine that A & R was not a
party to the election-to-purchase proceedings. A & R remained
a party in the dissolution proceedings, but the court stayed
and ultimately dismissed the dissolution proceedings, due to
Rafert’s application under § 21-2,201(d). Because we deter-
mine that A & R was not a party to the election-to-purchase
proceedings under § 21-2,201, we conclude that the court
lacked statutory authority to enter judgment against A & R
once it determined the value of Cheryl’s shares. An appellate
court has the duty to determine whether the lower court had the
power, that is, the subject matter jurisdiction, to enter the judg-
ment or other final order sought to be reviewed, and to vacate
an order of the lower court entered without jurisdiction. 5 We
vacate the judgment entered against A & R.
Fair Value
In Rafert’s next assignment of error, he contends that in its
valuation of A & R, the court failed to consider debt and specu-
lated as to the corporation’s value.
In its order, the district court found Pofahl’s asset approach
valuation to be “not helpful” and “hard to understand.”
Additionally, the district court agreed with Rafert’s expert,
Labenz, that because A & R uses a cash-based accounting sys-
tem and was considered an ongoing concern, A & R should be
valued according to the income approach rather than the asset
approach. The court ultimately applied its modified income
valuations of the two experts and split the difference. Rafert
does not contend that the court erred in using the income
5
In re Estate of Tizzard, 14 Neb. Ct. App. 326, 708 N.W.2d 277 (2005).
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
approach, nor does Cheryl contend that the court erred in
not using Pofahl’s asset approach. As a result, the sole issue
presented is whether the district court’s valuation is unrea-
sonably high when considering Labenz’ and Pofahl’s reports
and supporting testimony regarding the income approach.
[5-7] The determination of the weight that should be given
expert testimony is uniquely the province of the fact finder. 6
The trial court is not required to accept any one method of
stock valuation as more accurate than another accounting
procedure. 7 A trial court’s valuation of a closely held corpo-
ration is reasonable if it has an acceptable basis in fact and
principle. 8
[8] Section 21-2,201(d) states that upon application of any
party, the court shall “determine the fair value of the peti-
tioner’s shares.” This court has previously recognized that a
proceeding to determine the “fair value” of corporate shares
is equitable in nature. 9 While the Nebraska Model Business
Corporation Act’s election-to-purchase provisions do not
explicitly define “fair value,” the act’s provisions governing
appraisal rights state that “fair value” means the value of the
corporation’s shares determined “[u]sing customary and cur-
rent valuation concepts and techniques generally employed
for similar businesses in the context of the transaction requir-
ing appraisal[.]” 10
In the context of valuing a dissenting shareholder’s stock,
this court has observed that the “‘real objective is to ascertain
6
Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).
7
Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986).
8
Detter v. Miracle Hills Animal Hosp., 269 Neb. 164, 691 N.W.2d 107
(2005).
9
See, Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271
(1998); Rigel Corp., supra note 1; Becker v. Natl. American Ins. Co., 202
Neb. 545, 276 N.W.2d 202 (1979).
10
§ 21-2,171(4)(ii).
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
the actual worth of that which the dissenter loses because of
his unwillingness to go along with the controlling stockhold-
ers, that is, to indemnify him.’” 11 Such a determination is to
be based on all material factors and elements that affect value,
given to each the weight indicated by the circumstances. 12
As most relevant here, such factors include, among others,
the nature of the business and its operations, its assets and
liabilities, its earning capacity, and the future prospects of the
company. 13 Moreover, the stock is valued by assuming that the
corporation will continue as a going concern and is not being
liquidated. 14
Rafert argues that the district court was required to consider
the $1,152,000 of corporate debt in valuing A & R, but failed
to do so, and that the court’s decision not to depress the value
of A & R was based on speculation.
The record is clear that the district court’s valuation is based
on the testimony of the experts and the supporting exhibits.
Both experts agreed that under the income approach, the busi-
ness must be valued as an ongoing concern, and that under
the asset approach, the business is valued based on its assets
and liabilities as if the business were to be sold and liqui-
dated. The court considered Labenz’ decision to subtract the
whole $1,152,000 of debt and stated that “subtracting 100%
of the debt from the valuation estimate of the business does
not comport with the overall theory of the Income Approach
because a business, as an on-going concern, is not required
to pay back all of its debt on a lump sum basis.” The court
stated, “Of course, debt will have to be serviced on an ongo-
ing basis, but on a much smaller scale than the total amount
owed.” The court agreed with Labenz’ decision to subtract
11
Rigel Corp., supra note 1, 245 Neb. at 127, 511 N.W.2d at 524 (quoting
Warren v. Balto. Transit Co., 220 Md. 478, 154 A.2d 796 (1959)).
12
See id.
13
Id.
14
Id.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
a $23,000 interest payment that was due, and it noted that
Labenz accounted for ongoing interest payments when she cal-
culated A & R’s normalized cashflow. Therefore, Rafert’s claim
that the court failed to consider debt is not correct.
Additionally, Rafert failed to prove that a lower valuation
would be more accurate. The court noted that both experts
“generously included” assumptions and limiting conditions in
their opinions, which made arriving at an objective valuation
of the corporation difficult. Labenz contradicted her own testi-
mony when she strayed from the income approach by subtract-
ing all of the corporation’s debt. The court was not engaging
in speculation when it rejected Labenz’ blending of the income
and asset methods as unpersuasive.
The evidence indicates that the trucking and spraying opera-
tions of the business have continued after Randy’s death
and that there have been no efforts to liquidate. The experts
agreed that A & R consistently generates significant cash
each year. A & R’s personal banker testified that the company
pays loans on an annual basis and that payments are made
when they become due. He also stated that the company’s
accounts receivable are collectable, which Rafert confirmed
in his testimony. The court carefully considered the opinions
of both experts, identified aspects of the opinions which are
inconsistent with the income approach, adjusted each opinion
accordingly, and determined a value based on the average of
the two opinions.
Upon our de novo review, just as the trial court did, we
find that there is evidence in conflict on material issues of fact
concerning the appropriate considerations in valuing Cheryl’s
shares in A & R. As a result, we consider and give weight to
the fact that the trial court observed the witnesses and accepted
one version of the facts over another. 15 The trial court’s val
uation of A & R is reasonable and has an acceptable basis in
15
Fredericks Peebles, supra note 6.
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ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
fact and principle. The court did not err in valuing Cheryl’s
shares to be purchased by Rafert. This assignment of error is
without merit.
Vehicles
Rafert’s final assignment of error is that the court improp-
erly awarded Cheryl two corporate vehicles pursuant to
§ 21-2,201(e). Rafert contends that the award of the vehicles
constituted equitable division of corporate property rather than
a determination of fair value under § 21-2,201(d). Cheryl coun-
ters that the award of the vehicles was proper, because under
§ 21-2,201(e), the court may award expenses to the petition-
ing shareholder.
The court heard testimony that prior to Randy’s death,
Cheryl had in her possession two vehicles which were owned
by the company. After Randy’s death, Cheryl retained pos-
session of the vehicles despite Rafert’s request that these
vehicles be returned. The vehicles were included in the equip-
ment appraisal, which both experts utilized in valuing Cheryl’s
shares in A & R. In its decree, the trial court found that “in
the interest of equity, and in consideration of the circum-
stances surrounding the history of this litigation between the
parties, [Cheryl] shall also be allowed to keep the Chevrolet
Avalanche and the Ford pickup truck, which she currently has in
her possession.”
Under § 21-2,201(e), when a corporation or shareholder
makes an election to purchase a petitioning shareholder’s
shares, the court is authorized to award expenses to the peti-
tioning shareholder “[i]f the court finds that the petitioning
shareholder had probable grounds for relief under subdivi-
sion (a)(2)(i)(B) [illegal, oppressive, or fraudulent conduct]
or (D) [misapplication or waste of corporate assets] of sec-
tion 21-2,197 . . . .” The foregoing provision delineates
two of the four situations in which a shareholder may seek
corporate dissolution. We agree with Rafert that the court
could not have awarded Cheryl expenses under § 21-2,201(e),
- 497 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ANDERSON v. A & R AG SPRAYING & TRUCKING
Cite as 306 Neb. 484
because the court did not make the necessary findings under
§ 21-2,201(e) of probable grounds for relief. Cheryl’s peti-
tion asserted causes of action for an accounting and breach
of fiduciary duty, but the court dismissed Cheryl’s petition
and made no findings that she established probable grounds
for relief concerning dissolution. We further note that Cheryl
failed to prove any claim for expenses, because her statement
of expenses provided to the trial court was not received into
evidence and does not appear in our record.
Moreover, it is clear the court awarded Cheryl vehicles
owned by the corporation, not litigation expenses. A court may
have subject matter jurisdiction in a matter over a certain class
of case, but it may nonetheless lack the authority to address
a particular question or grant the particular relief requested. 16
Under the statutory procedure established by the Legislature
for election-to-purchase proceedings under § 21-2,201, dis-
cussed above, a corporation does not become a party to the
proceedings until it files an election to purchase. A & R
did not file an election to purchase and was not a party to
the election-to-purchase proceedings. Consequently, the court
lacked the authority to award corporate assets to Cheryl. The
award of the corporate vehicles is therefore vacated.
CONCLUSION
For the foregoing reasons, we vacate the judgment entered
against A & R and the award of vehicles to Cheryl. We other-
wise affirm the judgment entered against Rafert.
Affirmed in part, and in part vacated.
Heavican, C.J., not participating.
16
See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73,
894 N.W.2d 221 (2017). | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/111670/ | 476 U.S. 321 (1986)
HENDERSON ET AL.
v.
UNITED STATES
No. 84-1744.
Supreme Court of United States.
Argued April 1, 1986
Decided May 19, 1986
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
*322 Denise Anton argued the cause for petitioners. With her on the briefs were Alex Reisman and Paul G. Sloan.
Roger Clegg argued the cause for the United States. On the brief were Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, Charles A. Rothfeld, and Patty Merkamp Stemler.
JUSTICE POWELL delivered the opinion of the Court.
The Speedy Trial Act, 18 U. S. C. § 3161 et seq. (1982 ed. and Supp. II), as amended in 1979 and in 1984, commands that a defendant be tried within 70 days of the latest of either the filing of an indictment or information, or the first appearance before a judge or magistrate. Section 3161(h)(1)(F) excludes from this time "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." This case requires us to decide the narrow questions whether that exclusion is limited to reasonably necessary delays, and whether it applies to delays occasioned by the filing of posthearing briefs on motions.
I
A jury convicted petitioners of charges arising out of manufacture, possession, and distribution of controlled substances.[1]*323 The evidence at trial showed that in February and April 1980 petitioner Henderson, under the alias "Richard Martin," placed orders with a scientific supply company in Ohio for chemicals that could be used in the manufacture of illegal drugs. The orders attracted the attention of the Drug Enforcement Agency. Agents obtained a warrant from a United States Magistrate, authorizing installation of an electronic transmitter in one of the chemical containers. Henderson drove from California to Ohio, picked up the second order of chemicals on June 24, and headed west. Agents lost the tracking signal despite their following by both car and plane, only to receive it later in July from petitioner Freedman's house near Watsonville, California. A search pursuant to warrant on July 17 revealed an illicit drug factory. The last of the codefendants, Peter Bell, was arraigned on September 3, 1980.[2]
The Speedy Trial Act requires that trial begin within 70 days of the latest indictment, information, or appearance in this case, September 3. 18 U. S. C. § 3161(c)(1). A timely trial would have commenced on November 12, 1980, barring periods of excludable delay. Overlapping filings by petitioners and the Government, however, kept a suppression motion pending from its filing on November 3, 1980, through a hearing *324 on that motion on March 25, 1981.[3] The court deferred decision on the motion pending receipt of posthearing submissions from the parties, the last of which was filed on December 15, 1981. See App. 29-31. The District Court finally denied the motion to suppress on January 19, 1982.
From January 25 to May 10, 1982, both parties filed additional motions before the District Court on January 25 the Government moved to set the case for trial, and on March 23 petitioners moved to reconsider the motion to suppress. On February 3, the court held a hearing on the Government's motion and granted a continuance through April 21 to allow defense counsel to file a motion for reconsideration of the order denying the suppression motion.[4] After a hearing on May 10, the court denied petitioners' motion to reconsider the motion to suppress, and set a trial date of September 13, 1982. The court also entered an order excluding, for purposes of the Act, the time from May 10 to September 13 based on a provision of the Act that allows such exclusion by the Court to satisfy the "ends of justice." Id., at 32-33; see 18 U. S. C. § 3161(h)(8)(A).[5]
*325 On July 23, 1982, Thornton filed a motion to dismiss the superseding indictment for violation of the Speedy Trial Act. The other two petitioners subsequently joined this motion. The District Judge held a hearing almost two months later, on September 8, and denied the motion from the bench on that date. He filed a memorandum and order outlining his reasons exactly 30 days later. At that time, the judge also entered an order excluding the time from October 8 to November 1, again based on the "interests of justice." 3 Record, Doc. Nos. 98-99. Trial commenced on November 1, 1982.
Petitioners appealed their convictions, arguing, inter alia, that the District Court could exclude from their Speedy Trial Act computation only delays that were "reasonably necessary." 746 F. 2d 619, 622 (CA9 1984). The Court of Appeals held that the statute "excludes delays resulting from pretrial motions without qualification." Ibid. The court noted that Congress had explicitly provided that the excludability of certain other delays depended on their reasonableness, but had not done so for delays from pretrial motions. Ibid. Judge Ferguson dissented, relying on the Act's legislative history and the interpretations of other Circuits. Id., at 625-626. We granted certiorari to resolve a conflict among the Circuits.[6] 474 U. S. 900 (1985). We now affirm.
*326 II
The Speedy Trial Act requires that a criminal trial must commence within 70 days of the latest of a defendant's indictment, information, or appearance, barring periods of excludable delay. United States v. Rojas-Contreras, 474 U. S. 231 (1985); see 18 U. S. C. § 3161(c)(1). Section 3161(h) (1)(F) (subsection (F)) excludes from these 70 days certain delays occasioned by the filing of pretrial motions:
"(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
"(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to
.....
"(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion" (emphasis added).
A
On its face, subsection (F) excludes "[a]ny period of delay" caused by "any pretrial motion," "from the filing of the motion through the conclusion of the hearing." The plain terms of the statute appear to exclude all time between the filing of and the hearing on a motion whether that hearing was prompt or not. Moreover, subsection (F) does not require *327 that a period of delay be "reasonable" to be excluded, although Congress clearly knew how to limit an exclusion: in § 3161(h)(7), Congress provided for exclusion of a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Apart from this single instance, every other provision in § 3161(h) provides for exclusion of "any period of delay."[7] The provision excludes, for example, all of the time consumed by an interlocutory appeal, § 3161(h)(1)(E), by a competency examination, § 3161(h)(1)(A), and by the defendant's unavailability, § 3161(h)(3)(A). As the Court of Appeals concluded: "The difference between (7) and (1) through (6) is a strong indication that exclusion of the periods defined in (1)-(6) was intended to be automatic." 746 F. 2d, at 622.
The legislative history of the 1979 Amendments to the Act supports this reading of subsection (F).[8] That history shows that Congress was aware of the breadth of the exclusion it was enacting in subsection (F). The Senate Judiciary Committee *328 acknowledged that "if basic standards for prompt consideration of pretrial motions are not developed," the liberalized 1979 Amendments to subsection (F) "could become a loophole which could undermine the whole Act." S. Rep. No. 96-212, p. 34 (1979). In its subsequent consideration of subsection (F), the House of Representatives did not qualify the exclusion in any way or limit such potential abuse by statute. Instead the House adopted the Senate's version "with the intention that potentially excessive and abusive use of this exclusion be precluded by district or circuit guidelines, rules, or procedures relating to motions practice." H. R. Rep. No. 96-390, p. 10 (1979). Congress clearly envisioned that any limitations should be imposed by circuit or district court rules rather than by the statute itself.[9] Such rules, developed pursuant to § 3166(f), should provide the assurance of a speedy disposition of pretrial motions.
Petitioners largely concede these arguments and advance two other contentions for limiting subsection (F)'s exclusion to time that is "reasonably necessary" for the disposition of pretrial motions. First, they contend that the phrase "other prompt disposition" within subsection (F) implies that a district court may not unreasonably delay a criminal trial by deferring a hearing on a pretrial motion. Two of the Courts of Appeals that have limited the exclusion in subsection (F) to delays that are "reasonably necessary" have relied on this argument. United States v. Janik, 723 F. 2d 537, 543 (CA7 1983); United States v. Cobb, 697 F. 2d 38, 41-42 (CA2 1982). But a reading of subsection (F) in connection with § 3161 (h)(1)(J) (subsection (J)), which allows exclusion of up to 30 *329 days while the district court has a motion "under advisement," i. e., 30 days from the time the court receives all the papers it reasonably expects, undermines this conclusion. The phrase "prompt disposition" was intended to prevent a district court from using subsection (F) to exclude time after a motion is taken under advisement when that time fails to qualify for exclusion under subsection (J).
Subsection (F), written in the disjunctive, excludes time in two situations. The first arises when a pretrial motion requires a hearing: subsection (F) on its face excludes the entire period between the filing of the motion and the conclusion of the hearing. The second situation concerns motions that require no hearing and that result in a "prompt disposition." There, the promptness requirement was "intended to provide a point at which time will cease to be excluded, where motions are decided on the papers filed without hearing." S. Rep. No. 96-212, at 34. The "point at which time will cease to be excluded" is identified by subsection (J), which permits an exclusion of 30 days from the time a motion is actually "under advisement" by the court. Without the promptness requirement in subsection (F), a court could exclude time beyond subsection (J)'s 30-day "under advisement" provision simply by designating the additional period as time "from the filing of the motion" through its "disposition" under subsection (F). As the Senate Committee on the Judiciary explained:
"In using the words `prompt disposition', the committee intends to make it clear that, in excluding time between filing and disposition on the papers, the Committee does not intend to permit circumvention of the 30-days, `under advisement' provision contained in Subsection (h)(1)(J). Indeed, if motions are so simple or routine that they do not require a hearing, necessary advisement time should be considerably less than 30 days." Ibid.
We therefore conclude that for pretrial motions that require a hearing, the phrase "or other prompt disposition" in subsection *330 (F) does not imply that only "reasonably necessary" delays may be excluded between the time of filing of a motion and the conclusion of the hearing thereon.
Petitioners' second argument rests on the sentence that immediately follows the extract quoted above: "Nor does the Committee intend that additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary." Ibid. (emphasis added). Four Courts of Appeals have relied on this legislative history to support their "reasonably necessary" qualification in subsection (F). United States v. Ray, 768 F. 2d 991, 998 (CA8 1985); United States v. Mitchell, 723 F. 2d 1040, 1047 (CA1 1983); United States v. Novak, 715 F. 2d 810, 819 (CA3 1983), cert. denied sub nom. Ware v. United States, 465 U. S. 1030 (1984); United States v. Cobb, 697 F. 2d 38, 44 (CA2 1982).
Any qualification of subsection (F)'s exclusion based on this sentence, which appears in the paragraph discussing motions decided without a hearing, would be at odds with the plain language of the statute. It also would be contrary to other passages contained in both the House and Senate Reports that specifically concern the "hearings" provision of subsection (F). See supra, at 327-328. We therefore decline to read into subsection (F) a "reasonably necessary" qualification based on this single sentence from the Senate Report. We instead hold that Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is "reasonably necessary."
B
The remaining issue is whether subsection (F) excludes time after a hearing on a motion but before the district court receives all the submissions by counsel it needs to decide that motion. Cf. § 3161(h)(1) (excluding "[a]ny period of delay resulting *331 from other proceedings concerning the defendant"). Although the language of subsection (F) is not clear on this point, we are convinced that its structure, as well as reason, requires that such time be excluded.
The provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion. See, e. g., S. Rep. No. 96-212, at 9-10. District courts often find it impossible to resolve motions on which hearings have been held until the parties have submitted posthearing briefs or additional factual materials, especially where the motion presents complicated issues. It would not have been sensible for Congress to exclude automatically all the time prior to the hearing on a motion and 30 days after the motion is taken under advisement, but not the time during which the court remains unable to rule because it is awaiting the submission by counsel of additional materials. Moreover, for motions decided solely on the papers, Congress has allowed exclusion of time during which the parties are filing their briefs. 18 U. S. C. §§ 3161(h)(1)(F), (J); see supra, at 328-329. It is consistent with this exclusion to exclude time when the court awaits the briefs and materials needed to resolve a motion on which a hearing has been held motions that the Senate Judiciary Committee recognized as typically more difficult than motions decided on the papers. See S. Rep. No. 96-212, at 34. We therefore hold that subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion.
III
We now calculate the number of nonexcludable days before petitioners' trial. The Act began to run on September 3, 1980, the date of arraignment of codefendant Bell. On October 22, 1980, the District Court entered with the consent of the parties a continuance through November 12. The District Court excluded that continuance from the Speedy Trial *332 Act's 70-day limit under § 3161(h)(8)(A) in "the interest of justice." App. 26-27; see 746 F. 2d, at 623-624. That exclusion is not challenged in this Court.
The motion to suppress was filed during this continuance, on November 3, 1980. App. 27. The hearing on this and subsequent motions was held on March 25, 1981. Id., at 28. This time is automatically excludable under § 3161(h)(1)(F). The court declined to reach a final decision on the suppression motion at that hearing because it needed further information. Id., at 28-29. The court did not receive all filings in connection with the motion until December 15, 1981, when the Government submitted its response to petitioners' memorandum and request for an evidentiary hearing. Id., at 31. That time is also excludable, plus 30 days for the District Court to take the matter under advisement. We therefore exclude the period from March 25, 1981, through January 14, 1982.
On January 25, 1982, the Government filed a motion to set the case for trial, noticed for February 3. We need not decide whether this time is excludable under subsection (F) as it does not affect the disposition of this case. On February 3, the court continued the case until April 21, to afford defense counsel the opportunity to file a motion to reconsider the suppression ruling. Ibid. The District Court subsequently found that this time was excludable under § 3161(h)(8)(A) as a continuance necessary for the "interests of justice." Id., at 34.[10] On March 23, petitioners filed their motion for reconsideration. Under subsection (F), an exclusion for this pending motion ran from March 23 until the disposition by hearing on May 10. See App. 33. At that time, the court stated that it would exclude under § 3161(h)(8)(A) the time from May 10 to September 13, the new trial date, because of the difficulty of coordinating the schedules of five defense attorneys. The court entered a similar order on September 13 *333 that extended through the ultimate trial date of November 1, 1982. Neither of those orders is properly before us. As the case stands here, it presents 69 nonexcludable days of delay, and therefore the Speedy Trial Act was not violated.[11]
IV
The judgment of the Court of Appeals for the Ninth Circuit is affirmed.
It is so ordered.
JUSTICE WHITE, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting.
The purpose of the Speedy Trial Act of 1974, as amended in 1979 and in 1984, 18 U. S. C. § 3161 et seq. (1982 ed. and Supp. II), is to quantify and make effective the Sixth Amendment right to a a speedy trial. S. Rep. No. 96-212, p. 6 (1979); S. Rep. No. 93-1021, p. 1 (1974). To this end, the Act entitles a criminal defendant to dismissal of the charges pending against him if he is not brought to trial within 70 days of his initial appearance or indictment. 18 U. S. C. §§ 3161(c), 3162. In computing the running of this 70-day period, the Act permits certain periods of time to be excluded. These exclusions are designed to take account of specific and recurring periods of delay which often occur in criminal cases; they are not to be used either to undermine the time limits established by the Act, or to subvert the very purpose the Act was designed to fulfill. Nonetheless, this is precisely the result achieved by the majority's reasoning, as it allows trial judges indefinitely to delay disposing of pretrial motions. For this reason, I dissent.
As interpreted by the majority, § 3161(h)(1)(F) (subsection (F)) excludes the entire period between the filing of the pretrial motion and the date on which the motion is finally taken under advisement. For motions requiring a hearing, all time *334 is excluded from the date the motion is filed through the conclusion of the hearing. Ante, at 329-330. There is no requirement that the hearing be held promptly, and the reason for the delay is irrelevant. Regardless of whether a hearing is postponed due to a stipulated continuance, the sudden illness of counsel, or the trial judge's decision to play golf, until the hearing is concluded, the 70-day clock remains at a standstill. Moreover, if at the conclusion of the hearing the trial judge determines that more information would be helpful to his resolution of the motion, or if the prosecutor simply announces his intention to file supplemental papers, the period of excludable delay continues indefinitely until the court receives all of the papers it reasonably expects. Only at that point is the motion considered to be "actually under advisement," and even then, § 3161(h)(1)(J) (subsection (J)) provides for an additional 30 days before the clock begins running again.
For pretrial motions that do not require a hearing, the majority reads subsection (F) to exclude the entire period of time from the filing of the motion through its "prompt disposition." Ante, at 329. As construed by the Court, however, the word "prompt" does not refer to the speed at which the trial court is required to handle the motion; instead, it merely serves to designate the "point at which time will cease to be excluded." Ibid. That is to say, Congress inserted the word "prompt" simply to distinguish the time at which the motion is taken under advisement from the "final" disposition, or resolution, of the pretrial motion by the court, and thus prevent trial courts from avoiding the 30-day limitation imposed by subsection (J) by claiming that the unlimited delay sanctioned by subsection (F) applies until the court finally disposes of (i. e., decides) the pretrial motion. Ante, at 329.
As I see it, the majority has misread both subsection (F) and the Act as a whole. I read subsection (F) to require all pretrial motions, regardless of whether they require a hearing, to be disposed of promptly. There is no reason to believe *335 that Congress did not intend the word "prompt" to mean exactly what it normally means, "performed readily or immediately"; "given without delay or hesitation." Webster's Third New International Dictionary, Unabridged, p. 1816 (1976). Reading the word "prompt" in subsection (F) as a synonym for "quick" rather than as an antonym for the word "final" is a far more logical reading of the statute, and is more in keeping with the overall purpose of the Speedy Trial Act. I also find no merit to the contention that the phrase "other prompt disposition" only applies to pretrial motions to be decided without a hearing. After all, there cannot be an "other prompt disposition" of a motion unless there was a prompt disposition in the first place, and the plain language of subsection (F) shows that Congress intended hearings on pretrial motions to be conducted just as promptly as any other disposition of such motions.
This reading of subsection (F) is consistent with the structure of the Speedy Trial Act taken as a whole. Subsection (F) allows for the exclusion of the period of delay occurring between the making of the pretrial motion and its submission to the trial court for decision. It is this portion of the pretrial proceedings that the Act commands must be "prompt," and the reason for such a requirement is clear: it forces the parties to submit all necessary papers, and the court to hold any necessary hearings and decide what information it needs, in a timely and orderly manner. As shown above, the use of the word "prompt" in this context does more than simply distinguish this point in time from the time when the motion is finally decided (i. e., the "final" disposition of the motion); instead, it describes the pace at which both the parties and the court are to act in ensuring that the trial judge can rule on the pretrial motion as quickly as possible. The promptness requirement, in other words, expressly is designed to prevent endless and needless delays in the assembly of the relevant material necessary for the trial court to make a reasoned decision on the submitted pretrial motion.
*336 Subsection (F) thus requires prompt submission of material to the court and efficient scheduling of pretrial hearings, and once the court receives all of the papers and arguments it reasonably expects, the motion is considered to be "actually under advisement by the court." Consistent with the purpose of the Act and the promptness requirement imposed by subsection (F), subsection (J) then gives the trial court no more than 30 days in which to consider the parties' contentions and finally to decide the motion. The period during which the court has the motion "under advisement" is governed by subsection (J), and contrary to the majority's holding, ante, at 328-329, its 30-day limitation period has no bearing on the speed with which the motion is submitted to the court for decision.
Construing subsection (F) as mandating the prompt scheduling of hearings and submission of material in order for the trial court to take the matter under advisement is supported not only by the language of the statute and the structure of the Act, but also by the legislative history. In explaining the 1979 Amendments to the Act which established subsection (F) in its present form, the Senate Judiciary Committee noted that this portion of the Act "must be read together with the proposed change in clause (ii) of subsection (h)(8)(B) involving `preparation' for `pretrial proceedings'." S. Rep. No. 96-212, p. 33 (1979).[1] The Committee expressly rejected *337 as "unreasonable" the suggestion that "all time consumed by motions practice, from preparation through their disposition, should be excluded," finding instead that "in routine cases, preparation time should not be excluded where the questions of law are not novel and the issues of fact simple." Id., at 33-34. Even in cases involving "novel questions of law or complex facts," the Committee concluded that only "reasonable preparation time for pretrial motions" would be necessary. Id., at 34. Despite the narrow reading of the legislative history by the majority, therefore, the Senate Committee clearly meant exactly what it said when it declared that it did not intend that "additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary." Ibid.[2]
*338 Adhering to both the plain language of the statute and its legislative history, the majority of courts considering this question have held that subsection (F) permits the exclusion of only a reasonable amount of time for the trial court to take a pretrial motion under advisement, and that any other result would defeat the purposes of the Act. See United States v. Ray, 768 F. 2d 991, 997-999 (CA8 1985); United States v. Mitchell, 723 F. 2d 1040, 1046-1047 (CA1 1983); United States v. Janik, 723 F. 2d 537, 543-544 (CA7 1983); United States v. Novak, 715 F. 2d 810, 819-820 (CA3 1983), cert. denied sub nom. Ware v. United States, 465 U. S. 1030 (1984); United States v. Cobb, 697 F. 2d 38, 43-45 (CA2 1982); United States v. Smith, 563 F. Supp. 217, 219-220 (Md. 1983), aff'd, 750 F. 2d 1233 (CA4 1984), cert. denied, 471 U. S. 1057 (1985); United States v. Hawker, 552 F. Supp. 117, 124-125 (Mass. 1982). Similarly, the Judicial Conference of the United States recognizes that "[i]n some circumstances, the duration of this exclusion may be subject to a reasonableness requirement." Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended (Dec. 1979 rev., with amendments through Oct. 1984), 106 F. R. D. 271, 289 *339 (1984). Finally, commentators have also noted the necessity for this construction, finding that without it, there would be no need for trial courts to process motions in a timely fashion, thus undermining the purposes of the Act. See Misner, The 1979 Amendments to the Speedy Trial Act: Death of the Planning Process, 32 Hastings L. J. 635, 654-655 (1981); Note, Speedy Trial: A Constitutional Right in Search of Definition, 61 Geo. L. J. 657, 679, and n. 136 (1973), reprinted in Hearings on S. 754 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 61, 83, and n. 136 (1973).
I agree with this wealth of statutory, judicial, and scholarly authority, and would hold that the Speedy Trial Act requires a trial court to take all pretrial motions under advisement in a prompt manner, and as a result, that only that period of delay found to be reasonably necessary to such a prompt handling of the motion is properly excludable under subsection (F). By holding that the entire period of delay from the filing of a pretrial motion until that motion is taken under advisement is excludable from the 70-day speedy trial computation, the majority allows this exception to swallow the rule and in so doing, undermines the entire Act. As Judge Ferguson concluded in his dissent below, "[w]hile I sympathize with the majority's search for a per se rule . . . I cannot agree that the desire for an `easy' rule can justify the abrogation of the major purpose of the Speedy Trial Act to insure the defendant a speedy trial." 746 F. 2d 619, 627 (1984). I would reverse the judgment of the Ninth Circuit, and remand for a determination of whether the delay in this case was reasonable.
NOTES
[1] The jury convicted all three petitioners of conspiracy to manufacture and possess with intent to distribute methamphetamine and phenyl-2-propanone, see 21 U. S. C. § 846; petitioners Thornton and Freedman of manufacture and possession with intent to distribute of methamphetamine, see § 842(a)(1); and petitioner Henderson of traveling interstate with intent to promote the manufacture and possession of methamphetamine, see 18 U. S. C. § 1952(a)(3).
[2] Codefendant Bell was severed from petitioners' trial on November 1, 1982. All defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant. See 18 U. S. C. § 3161(h)(7). Once Bell was joined with petitioners in the September 3 superseding indictment, their 70-day period was measured with respect to his.
[3] On November 3, 1980, petitioners filed a motion to suppress evidence. 2 Record, Doc. Nos. 24-26. On November 24, petitioners filed a supplemental memorandum concerning alleged misrepresentations in the affidavit supporting the search warrant. On its own motion, the District Court rescheduled the hearing from November 26, 1980, to January 14, 1981, and again to January 28, 1981. A third continuance, at petitioner Freedman's request, moved the hearing date to February 18, 1981. Meanwhile, on January 13, petitioners filed a motion to reveal the identity of a confidential informant. At the February 18 hearing, petitioners requested and received a continuance to March 2 to reply to the Government's responses, filed only the day before. The hearing was held instead on March 25 after a 21-day continuance from the court on March 4.
[4] Petitioners filed the motion on March 23; the Government filed its response on April 14, 1982. 3 Record, Doc. Nos. 74-75.
[5] Section 3161(h)(8)(A) provides for the exclusion of
"[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial."
[6] Several Courts of Appeals have read into 18 U. S. C. § 3161(h)(1)(F) a requirement that only delays that are "reasonably necessary" may be excluded from the computation of the 70-day period. United States v. Ray, 768 F. 2d 991, 998-999 (CA8 1985); United States v. Mitchell, 723 F. 2d 1040, 1047 (CA1 1983); United States v. Janik, 723 F. 2d 537, 543 (CA7 1983); United States v. Novak, 715 F. 2d 810, 819-820 (CA3 1983), cert. denied sub nom. Ware v. United States, 465 U. S. 1030 (1984); United States v. Cobb, 697 F. 2d 38, 44 (CA2 1982). Other Circuits have held that § 3161(h)(1)(F) excludes without qualification the entire period between the filing of the motion and the conclusion of the hearing. 746 F. 2d 619 (CA9 1984) (case below); United States v. Stafford, 697 F. 2d 1368, 1373 (CA11 1983). Cf. United States v. Horton, 705 F. 2d 1414, 1416 (CA5), cert. denied, 464 U. S. 997 (1983).
[7] Section 3161(h)(1)(H), which provides for the exclusion of delay from transporting a defendant "from another district, or to and from places of examination or hospitalization," presumes that any such delay over 10 days is unreasonable.
[8] The discussion in S. Rep. No. 96-212, p. 34 (1979), see post, at 336-337, concerns time spent preparing pretrial motions. The pertinent language from the Report reads:
"Although some witnesses contended that all time consumed by motions practice, from preparation through their disposition, should be excluded, the Committee finds that approach unreasonable. This is primarily because, in routine cases, preparation time should not be excluded where the questions of law are not novel and the issues of fact simple. However, the Committee would permit through its amendments to subsection (h)(8)(B) reasonable preparation time for pretrial motions in cases presenting novel questions of law or complex facts." S. Rep. No. 96-212, at 33-34.
Our holding concerns time after the submission of pretrial motions. We note in such situations that the trial court is in a position to determine what, if any, additional submissions that it needs from the parties, and when those submissions are due.
[9] The dissent relies on district court rules as a basis for invoking petitioners' standard. Post, at 337-338, n. 2. The interpretation of the local rule, however, is a matter on which we should defer to the Court of Appeals for the Ninth Circuit. It found no violation of the rule.
It would be useful in the future for circuit and district court rules to include specific timetables, thereby giving substance to the obligations of prosecutors and defense counsel under the Speedy Trial Act.
[10] The unexplained failure of the District Court to find the delay from any continuance to be excludable until October 1982 has not been argued by either party before this Court, and therefore is also not before us.
[11] The count is 49 days from September 3, 1980, to November 22, 1980, and 20 days from January 14, 1982, to February 3, 1982.
[1] Title 18 U. S. C. § 3161(h)(8)(B) governs the factors a judge is to consider in determining whether to grant an "ends of justice" continuance authorized by § 3161(h)(8)(A). Subsection (h)(8)(B)(ii) provides:
"Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section."
The majority characterizes this subsection as dealing only with "time spent preparing pretrial motions." Ante, at 327, n. 8 (emphasis in original). This description ignores the plain language of the subsection, which states that it applies to "preparation for pretrial proceedings or for the trial itself." Furthermore, the majority's statement that its "holding concerns time after the submission of pretrial motions" shows how far removed from the purposes of the Speedy Trial Act its opinion lies. By treating the interval between the time when pretrial motions are submitted to the court and the time when the court takes the motion "under advisement" as a time not governed either by the promptness requirement of subsection (F) or the 30-day limitation imposed by subsection (J), the Court carves out a period in which the 70-day limit imposed by the Act does not apply. This construction permits potentially excessive and abusive use of the Act's exclusions, and results in the denial of a speedy trial to a criminal defendant the precise result which the Act was designed to avoid.
[2] The majority is correct that Congress placed a great deal of reliance on the development of local guidelines relating to motions practice to establish the specific periods of allowable delay under subsection (F). Ante, at 328. I disagree, however, that Congress left this potentially unlimited period of time to be governed solely by such rules. Although Congress might have intended for the district courts and circuits to quantify the precise limits acceptable under this portion of the Act, Congress made sure that, even without the development of such standards, no more time than what is "reasonably necessary" for the prompt submission of the motion to the trial court for decision would be excluded from the running of the 70-day clock established by the Act.
Moreover, even if the majority is correct that "Congress clearly envisioned that any limitations should be imposed by circuit or district court rules rather than by the statute itself," ante, at 328, the majority fails to consider the applicable local rules relevant to this case. These provide that "[a]ll pre-trial hearings shall be conducted as soon after the arraignment as possible, consistent with the priorities of other matters on the court's criminal docket." U. S. District Court, Northern District of California, Plan for Prompt Disposition of Criminal Cases, Sec. II(4)(F)(4) (revised, Apr. 7, 1980), California Rules of Court 822-824 (West 1986). Although this rule does not offer any specific guidance, it is sufficient to invoke the "reasonably necessary" standard intended by Congress.
Finally, the majority states that it is deferring to the Ninth Circuit's determination that the local rules were not violated in this case. Ante, at 328, n. 9. This finding is not supported by the record, for although the lower court cited to the local rules, 746 F. 2d 619, 623 (1984), there is no indication that the panel ever applied the rules to the facts of this case, let alone that it found that the rules had not been violated. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/112463/ | 496 U.S. 543 (1990)
TEXACO INC.
v.
HASBROUCK, DBA RICK'S TEXACO, ET AL.
No. 87-2048.
Supreme Court of United States.
Argued December 5, 1989
Decided June 14, 1990
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
*545 Peter M. Fishbein argued the cause for petitioner. On the briefs were Milton J. Schubin, Joshua F. Greenberg, Michael Malina, Joseph P. Foley, and Wm. Fremming Nielsen.
Michael R. Dreeben argued the cause for the United States et al. as amici curiae urging reversal. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Whalley, Deputy Solicitor General Merrill, Catherine G. O'Sullivan, and Kevin J. Arquit.
Robert H. Whaley argued the cause for respondents. With him on the brief were John S. Ebel and Lucinda S. Whaley.[*]
Briefs of amici curiae urging affirmance were filed for the State of Connecticut et al. by Clarine Nardi Riddle, Acting Attorney General of Connecticut, and Robert M. Langer and William M. Rubenstein, Assistant Attorneys General, Don Siegelman, Attorney General of Alabama, Douglas B. Baily, Attorney General of Alaska, and Richard D. Monkman, Assistant Attorney General, John Steven Clark, Attorney General of Arkansas, John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, Sanford N. Gruskin, Assistant Attorney General, and Lawrence R. Tapper, Deputy Attorney General, Robert A. Butterworth, Attorney General of Florida, Warren Price III, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, and Catherine K. Broad, Deputy Attorney General, Neil F. Hartigan, Attorney General of Illinois, Robert Ruiz, Solicitor General, and John W. McCaffrey, Senior Assistant Attorney General, Linley E. Pearson, Attorney General of Indiana, and Frank A. Baldwin, Deputy Attorney General, Thomas J. Miller, Attorney General of Iowa, and John R. Perkins, Deputy Attorney General, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, and James M. Ringo, Assistant Attorney General, William J. Guste, Jr., Attorney General of Louisiana, and Anne F. Benoit, Assistant Attorney General. James E. Tierney, Attorney General of Maine, and Stephen L. Wessler, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Michael F. Brockmeyer and R. Hartman Roemer, Assistant Attorneys General, James M. Shannon, Attorney General of Massachusetts, and George K. Weber, Malcolm L. Russell-Einhorn, and Thomas M. Alpert, Assistant Attorneys General, Frank J. Kelley, Attorney General of Michigan, William L. Webster, Attorney General of Missouri, and Clayton S. Friedman, Assistant Attorney General, Marc Racicot, Attorney General of Montana, Brian McKay, Attorney General of Nevada, and J. Kenneth Creighton, Deputy Attorney General, John P. Arnold, Attorney General of New Hampshire, and Terry Robertson, Senior Assistant Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, and K. D. Sturgis, Assistant Attorney General, Nicholas J. Spaeth, Attorney General of North Dakota, and David W. Huey, Assistant Attorney General, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Eugene F. Waye, Chief Deputy Attorney General, and Carl S. Hisiro, Senior Deputy Attorney General, James E. O'Neil, Attorney General of Rhode Island, and Robyn Y. Davis, Assistant Attorney General, Roger A. Tellinghuisen, Attorney General of South Dakota, and Jeffrey P. Hallem, Assistant Attorney General, Charles W. Burson, Attorney General of Tennessee, and Perry Allan Craft, Deputy Attorney General, Jim Mattox, Attorney General of Texas, Mary F. Keller, First Assistant Attorney General, Lou McCreary, Executive Assistant Attorney General, and Allene D. Evans and Donna L. Nelson, Assistant Attorneys General, Paul Van Dam, Attorney General of Utah, and Arthur M. Strong, Assistant Attorney General. Jeffrey L. Amestoy, Attorney General of Vermont, Kenneth O. Eikenberry, Attorney General of Washington, and James M. Beaulaurier, Assistant Attorney General, and Joseph B. Meyer, Attorney General of Wyoming, and Hugh Kenny, Assistant Attorney General; for the National Coalition of Petroleum Retailers by Jerry S. Cohen; and for the Service Station Dealers of America by Dimitri G. Daskalopoulos.
Briefs of amici curiae were filed for Boise Cascade Corp. by Victor E. Grimm and Scott M. Mendel; and for the Society of Independent Gasoline Marketers of America et al. by William W. Scott and Christopher J. MacAvoy.
*546 JUSTICE STEVENS delivered the opinion of the Court.
Petitioner (Texaco) sold gasoline directly to respondents and several other retailers in Spokane, Washington, at its retail *547 tank wagon (RTW) prices while it granted substantial discounts to two distributors. During the period between 1972 and 1981, the stations supplied by the two distributors increased their sales volume dramatically, while respondents' sales suffered a corresponding decline. Respondents filed an action against Texaco under the Robinson-Patman Act amendment to the Clayton Act (Act), 38 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. § 13, alleging that the distributor discounts violated § 2(a) of the Act, 15 U. S. C. § 13(a). Respondents recovered treble damages, and the Court of Appeals for the Ninth Circuit affirmed the judgment. 842 F. 2d 1034 (1988). We granted certiorari, 490 U. S. 1105 (1989), to consider Texaco's contention that legitimate functional discounts do not violate the Act because a seller is not responsible for its customers' independent resale pricing decisions. While we agree with the basic thrust of Texaco's argument, we conclude that in this case it is foreclosed by the facts of record.
I
Given the jury's general verdict in favor of respondents, disputed questions of fact have been resolved in their favor. There seems, moreover, to be no serious doubt about the character of the market, Texaco's pricing practices, or the relative importance of Texaco's direct sales to retailers *548 ("throughput" business) and its sales to distributors. The principal disputes at trial related to questions of causation and damages.
Respondents are 12 independent Texaco retailers. They displayed the Texaco trademark, accepted Texaco credit cards, and bought their gasoline products directly from Texaco. Texaco delivered the gasoline to respondents' stations.
The retail gasoline market in Spokane was highly competitive throughout the damages period, which ran from 1972 to 1981. Stations marketing the nationally advertised Texaco gasoline competed with other major brands as well as with stations featuring independent brands. Moreover, although discounted prices at a nearby Texaco station would have the most obvious impact on a respondent's trade, the cross-city traffic patterns and relatively small size of Spokane produced a city wide competitive market. See, e. g., App. 244, 283-291. Texaco's throughput sales in the Spokane market declined from a monthly volume of 569, 269 gallons in 1970 to 389, 557 gallons in 1975. Id., at 487-488. Texaco's independent retailers' share of the market for Texaco gas declined from 76% to 49%.[1]Ibid. Seven of the respondents' stations were out of business by the end of 1978. Id., at 22-23, Record 501.
Respondents tried unsuccessfully to increase their ability to compete with lower priced stations. Some tried converting from full service to self-service stations. See, e. g., App. 55-56. Two of the respondents sought to buy their own tank trucks and haul their gasoline from Texaco's supply point, but Texaco vetoed that proposal. Id., at 38-41, 59.
*549 While the independent retailers struggled, two Spokane gasoline distributors supplied by Texaco prospered. Gull Oil Company (Gull) had its headquarters in Seattle and distributed petroleum products in four Western States under its own name. Id., at 94-95. In Spokane it purchased its gas from Texaco at prices that ranged from 6¢ to 4¢ below Texaco's RTW price. Id., at 31-32. Gull resold that product under its own name; the fact that it was being supplied by Texaco was not known by either the public or the respondents. See, e. g., id., at 256. In Spokane, Gull supplied about 15 stations; some were "consignment stations" and some were "commission stations." In both situations Gull retained title to the gasoline until it was pumped into a motorist's tank. In the consignment stations, the station operator set the retail prices, but in the commission stations Gull set the prices and paid the operator a commission. Its policy was to price its gasoline at a penny less than the prevailing price for major brands. Gull employed two truck drivers in Spokane who picked up product at Texaco's bulk plant and delivered it to the Gull stations. It also employed one supervisor in Spokane. Apart from its trucks and investment in retail facilities, Gull apparently owned no assets in that market. Id., at 96-109, 504-512. At least with respect to the commission stations, Gull is fairly characterized as a retailer of gasoline throughout the relevant period.
The Dompier Oil Company (Dompier) started business in 1954 selling Quaker State Motor Oil. In 1960 it became a full line distributor of Texaco products, and by the mid-1970's its sales of gasoline represented over three-quarters of its business. Id., at 114-115. Dompier purchased Texaco gasoline at prices of 3.95¢ to 3.65¢ below the RTW price. Dompier thus paid a higher price than Gull, but Dompier, unlike Gull, resold its gas under the Texaco brand names. Id., at 24, 29-30. It supplied about 8 to 10 Spokane retail stations. In the period prior to October 1974, two of those stations were owned by the president of Dompier but the others were independently *550 operated. See, e. g., id., at 119-121, 147-148. In the early 1970's, Texaco representatives encouraged Dompier to enter the retail business directly, and in 1974 and 1975 it acquired four stations.[2]Id., at 114-135, 483-503. Dompier's president estimated at trial that the share of its total gasoline sales made at retail during the middle 1970's was "[p]robably 84 to 90 percent." Id., at 115.
Like Gull, Dompier picked up Texaco's product at the Texaco bulk plant and delivered directly to retail outlets. Unlike Gull, Dompier owned a bulk storage facility, but it was seldom used because its capacity was less than that of many retail stations. Again unlike Gull, Dompier received from Texaco the equivalent of the common carrier rate for delivering the gasoline product to the retail outlets. Thus, in addition to its discount from the RTW price, Dompier made a profit on its hauling function.[3]Id., at 123-131, 186-192, 411-413.
The stations supplied by Dompier regularly sold at retail at lower prices than respondents'. Even before Dompier directly entered the retail business in 1974, its customers were *551 selling to consumers at prices barely above the RTW price. Id., at 329-338; Record 315, 1250-1251. Dompier's sales volume increased continuously and substantially throughout the relevant period. Between 1970 and 1975 its monthly sales volume increased from 155, 152 gallons to 462,956 gallons; this represented an increase from 20.7% to almost 50% of Texaco's sales in Spokane. App. 487-488.
There was ample evidence that Texaco executives were well aware of Dompier's dramatic growth and believed that it was attributable to "the magnitude of the distributor discount and the hauling allowance."[4] See also, e. g., id., at 213-223, 407-413. In response to complaints from individual respondents about Dompier's aggressive pricing, however, Texaco representatives professed that they "couldn't understand it." Record 401-404.
II
Respondents filed suit against Texaco in July 1976. After a 4-week trial, the jury awarded damages measured by the difference between the RTW price and the price paid by Dompier. As we subsequently decided in J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S. 557 (1981), this measure of damages was improper. Accordingly, although it rejected Texaco's defenses on the issue of liability,[5] the Court of Appeals for the Ninth Circuit remanded the case for *552 a new trial. Hasbrouck v. Texaco, Inc., 663 F. 2d 930 (1981), cert. denied, 459 U. S. 828 (1982).
At the second trial, Texaco contended that the special prices to Gull and Dompier were justified by cost savings,[6] were the product of a good-faith attempt to meet competition,[7] and were lawful "functional discounts." The District Court withheld the cost justification defense from the jury because it was not supported by the evidence and the jury rejected the other defenses. It awarded respondents actual damages of $449,900.[8] The jury apparently credited the testimony of respondents' expert witness who had estimated what the respondents' profits would have been if they had paid the same prices as the four stations owned by Dompier. See 634 F. Supp. 34, 43 (ED Wash. 1985); 842 F. 2d, at 1043-1044.
In Texaco's motion for judgment notwithstanding the verdict, it claimed as a matter of law that its functional discounts did not adversely affect competition within the meaning of the Act because any injury to respondents was attributable to decisions made independently by Dompier. The District Court denied the motion. In an opinion supplementing its oral ruling denying Texaco's motion for a directed verdict, the Court assumed, arguendo, that Dompier was entitled to a *553 functional discount, even on the gas that was sold at retail,[9] but nevertheless concluded that the "presumed legality of functional discounts" had been rebutted by evidence that the amount of the discounts to Gull and Dompier was not reasonably related to the cost of any function that they performed.[10] 634 F. Supp., at 37-38, and n. 4.
The Court of Appeals affirmed. It reasoned:
*554 "As the Supreme Court long ago made clear, and recently reaffirmed, there may be a Robinson-Patman violation even if the favored and disfavored buyers do not compete, so long as the customers of the favored buyer compete with the disfavored buyer or its customers. Morton Salt, 334 U. S. at 43-44. . . .; Perkins v. Standard Oil Co., 395 U. S. 642, 646-47 . . . (1969); Falls City Indus., Inc. v. Vanco Beverages, Inc., 460 U. S. 428, 434-35. . . (1983). Despite the fact that Dompier and Gull, at least in their capacities as wholesalers, did not compete directly with Hasbrouck, a section 2(a) violation may occur if (1) the discount they received was not cost-based and (2) all or a portion of it was passed on by them to customers of theirs who competed with Hasbrouck. Morton Salt, 334 U. S. at 43-44 . . . ; Perkins v. Standard Oil, 395 U. S. at 648-49 . . . ; see 3 E. Kintner & J. Bauer, supra, § 22.14.
"Hasbrouck presented ample evidence to demonstrate that . . . the services performed by Gull and Dompier were insubstantial and did not justify the functional discount." 842 F. 2d, at 1039.
The Court of Appeals concluded its analysis by observing:
"To hold that price discrimination between a wholesaler and a retailer could never violate the Robinson-Patman Act would leave immune from antitrust scrutiny a discriminatory pricing procedure that can effectively serve to harm competition. We think such a result would be contrary to the objectives of the Robinson-Patman Act." Id., at 1040 (emphasis in original).
III
It is appropriate to begin our consideration of the legal status of functional discounts[11] by examining the language of the Act. Section 2(a) provides in part:
*555 "It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . ." 15 U. S. C. § 13(a).
The Act contains no express reference to functional discounts.[12] It does contain two affirmative defenses that provide protection for two categories of discounts those that *556 are justified by savings in the seller's cost of manufacture, delivery, or sale,[13] and those that represent a good-faith response to the equally low prices of a competitor. Standard Oil Co. v. FTC, 340 U. S. 231, 250 (1951). As the case comes to us, neither of those defenses is available to Texaco.
In order to establish a violation of the Act, respondents had the burden of proving four facts: (1) that Texaco's sales to Gull and Dompier were made in interstate commerce; (2) that the gasoline sold to them was of the same grade and quality as that sold to respondents; (3) that Texaco discriminated in price as between Gull and Dompier on the one hand and respondents on the other; and (4) that the discrimination had a prohibited effect on competition. 15 U. S. C. § 13(a). Moreover, for each respondent to recover damages, he had the burden of proving the extent of his actual injuries. J. Truett Payne, 451 U. S., at 562.
The first two elements of respondents' case are not disputed in this Court,[14] and we do not understand Texaco to be challenging the sufficiency of respondents' proof of damages. Texaco does argue, however, that although it charged different prices, it did not "discriminate in price" within the meaning of the Act, and that, at least to the extent that Gull and Dompier acted as wholesalers, the price differentials did not injure competition. We consider the two arguments separately.
IV
Texaco's first argument would create a blanket exemption for all functional discounts. Indeed, carried to its logical conclusion, it would exempt all price differentials except those given to competing purchasers. The primary basis for *557 Texaco's argument is the following comment by Congressman Utterback, an active sponsor of the Act:
"In its meaning as simple English, a discrimination is more than a mere difference. Underlying the meaning of the word is the idea that some relationship exists between the parties to the discrimination which entitles them to equal treatment, whereby the difference granted to one casts some burden or disadvantage upon the other. If the two are competing in the resale of the goods concerned, that relationship exists. Where, also, the price to one is so low as to involve a sacrifice of some part of the seller's necessary costs and profit as applied to that business, it leaves that deficit inevitably to be made up in higher prices to his other customers; and there, too, a relationship may exist upon which to base the charge of discrimination. But where no such relationship exists, where the goods are sold in different markets and the conditions affecting those markets set different price levels for them, the sale to different customers at those different prices would not constitute a discrimination within the meaning of this bill." 80 Cong. Rec. 9416 (1936).
We have previously considered this excerpt from the legislative history and have refused to draw from it the conclusion which Texaco proposes. FTC v. Anheuser-Busch, Inc., 363 U. S. 536, 547-551 (1960). Although the excerpt does support Texaco's argument, we remain persuaded that the argument is foreclosed by the text of the Act itself. In the context of a statute that plainly reveals a concern with competitive consequences at different levels of distribution, and carefully defines specific affirmative defenses, it would be anomalous to assume that the Congress intended the term "discriminate" to have such a limited meaning. In Anheuser-Busch we rejected an argument identical to Texaco's in the context of a claim that a seller's price differential had injured *558 its own competitors a so-called "primary line" claim.[15] The reasons we gave for our decision in Anheuser-Busch apply here as well. After quoting Congressman Utterback's statement in full, we wrote:
"The trouble with respondent's arguments is not that they are necessarily irrelevant in a § 2(a) proceeding, but that they are misdirected when the issue under consideration is solely whether there has been a price discrimination. We are convinced that, whatever may be said with respect to the rest of §§ 2(a) and 2(b) and we say nothing here there are no overtones of business buccaneering in the § 2(a) phrase `discriminate in price.' Rather, a price discrimination within the meaning of that provision is merely a price difference." Id., at 549.
After noting that this view was consistent with our precedents, we added:
"[T]he statute itself spells out the conditions which make a price difference illegal or legal, and we would derange this integrated statutory scheme were we to read other conditions into the law by means of the nondirective phrase, `discriminate in price.' Not only would such action be contrary to what we conceive to be the meaning of the statute, but, perhaps because of this, it would be thoroughly undesirable. As one commentator has succinctly put it, `Inevitably every legal controversy over any price difference would shift from the detailed governing provisions "injury," cost justification, "meeting competition," etc. over into the "discrimination" concept for ad hoc resolution divorced from specifically pertinent statutory text.' Rowe, Price Differentials *559 and Product Differentiation: The Issues Under the Robinson-Patman Act, 66 Yale L. J. 1, 38." Id., at 550-551.
Since we have already decided that a price discrimination within the meaning of § 2(a) "is merely a price difference," we must reject Texaco's first argument.
V
In FTC v. Morton Salt Co., 334 U. S. 37, 46-47 (1948), we held that an injury to competition may be inferred from evidence that some purchasers had to pay their supplier "substantially more for their goods than their competitors had to pay." See also Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U. S. 428, 435-436 (1983). Texaco, supported by the United States and the Federal Trade Commission as amici curiae (the Government), argues that this presumption should not apply to differences between prices charged to wholesalers and those charged to retailers. Moreover, they argue that it would be inconsistent with fundamental antitrust policies to construe the Act as requiring a seller to control his customers' resale prices. The seller should not be held liable for the independent pricing decisions of his customers. As the Government correctly notes, Brief for United States et. al. as Amici Curiae 21-22 (filed Aug. 3, 1989), this argument endorses the position advocated 35 years ago in the Report of the Attorney General's National Committee to Study the Antitrust Laws (1955).
After observing that suppliers ought not to be held liable for the independent pricing decisions of their buyers,[16] and *560 that without functional discounts distributors might go uncompensated for services they performed,[17] the Committee wrote:
"The Committee recommends, therefore, that suppliers granting functional discounts either to single-function or to integrated buyers should not be held responsible for any consequences of their customers' pricing tactics. Price cutting at the resale level is not in fact, and should not be held in law, `the effect of' a differential that merely accords due recognition and reimbursement for actual marketing functions. The price cutting of a customer who receives this type of differential results from his own independent decision to lower price and operate at a lower profit margin per unit. The legality or illegality of this price cutting must be judged by the usual legal tests. In any event, consequent injury or lack of injury should not be the supplier's legal concern.
"On the other hand, the law should tolerate no subterfuge. For instance, where a wholesaler-retailer buys only part of his goods as a wholesaler, he must not claim a functional discount on all. Only to the extent that a buyer actually performs certain functions, assuming all the risk, investment, and costs involved, should he legally *561 qualify for a functional discount. Hence a distributor should be eligible for a discount corresponding to any part of the function he actually performs on that part of the goods for which he performs it." Id., at 208.
We generally agree with this description of the legal status of functional discounts. A supplier need not satisfy the rigorous requirements of the cost justification defense in order to prove that a particular functional discount is reasonable and accordingly did not cause any substantial lessening of competition between a wholesaler's customers and the supplier's direct customers.[18] The record in this case, however, adequately supports the finding that Texaco violated the Act.
*562 The hypothetical predicate for the Committee's entire discussion of functional discounts is a price differential "that merely accords due recognition and reimbursement for actual marketing functions." Such a discount is not illegal. In this case, however, both the District Court and the Court of Appeals concluded that even without viewing the evidence in the light most favorable to respondents, there was no substantial evidence indicating that the discounts to Gull and Dompier constituted a reasonable reimbursement for the value to Texaco of their actual marketing functions. 842 F. 2d, at 1039; 634 F. Supp., at 37, 38. Indeed, Dompier was separately compensated for its hauling function, and neither Gull nor Dompier maintained any significant storage facilities.
Despite this extraordinary absence of evidence to connect the discount to any savings enjoyed by Texaco, Texaco contends that the decision of the Court of Appeals cannot be affirmed without departing "from established precedent, from practicality, and from Congressional intent." Brief for Petitioner 14.[19] This argument assumes that holding suppliers liable for a gratuitous functional discount is somehow a novel practice. That assumption is flawed.
As we have already observed, the "due recognition and reimbursement" concept endorsed in the Attorney General's *563 Committee's study would not countenance a functional discount completely untethered to either the supplier's savings or the wholesaler's costs. The longstanding principle that functional discounts provide no safe harbor from the Act is likewise evident from the practice of the Federal Trade Commission, which has, while permitting legitimate functional discounts, proceeded against those discounts which appeared to be subterfuges to avoid the Act's restrictions. See, e. g., In re Sherwin Williams Co., 36 F. T. C. 25, 70-71 (1943) (finding a violation of the Act by paint manufacturers who granted "functional or special discounts to some of their dealer-distributors on the purchases of such dealer-distributors which are resold by such dealer-distributors directly to the consumer through their retail departments or branch stores wholly owned by them"); In re Ruberoid Co., 46 F. T. C. 379, 386, ¶ 5 (1950) (liability appropriate when functional designations do not always indicate accurately "the functions actually performed by such purchasers"), aff'd, 189 F. 2d 893 (CA2 1951), rev'd on rehearing, 191 F. 2d 294, aff'd, 343 U. S. 470 (1952).[20] See also, e. g., In re Doubleday & *564 Co., 52 F. T. C. 169, 209 (1955) ("[T]he Commission should tolerate no subterfuge. Only to the extent that a buyer actually performs certain functions, assuming all the risks and costs involved, should he qualify for a compensating discount. The amount of the discount should be reasonably related to the expenses assumed by the buyer"); In re General Foods Corp., 52 F. T. C. 798, 824-825 (1956) ("A seller is not forbidden to sell at different prices to buyers in different functional classes and orders have been issued permitting lower prices to one functional class as against another, provided that injury to commerce as contemplated in the law does not result," but "[t]o hold that the rendering of special services ipso facto [creates] a separate functional classification would be to read Section 2(d) out of the Act"); In re Boise Cascade Corp., 107 F. T. C. 76, 212, 214-215 (1986) (regardless of whether the FTC has judged functional discounts by reference to the supplier's savings or the buyer's costs, the FTC has recognized that "functional discounts may usually be granted to customers who operate at different levels of trade, and thus do not compete with each other, without risk of secondary line competitive injury under the Act"), rev'd on other grounds, 267 U. S. App. D. C. 124, 837 F. 2d 1127 (1988).[21]*565 Cf. FLM Collision Parts, Inc. v. Ford Motor Co., 543 F. 2d 1019, 1027 (CA2 1976) ("We do not suggest or imply that, if a manufacturer grants a price discount or allowance to its wholesalers (whether or not labelled `incentive'), which has the purpose or effect of defeating the objectives of the Act, § 2(a)'s language may not be construed to defeat it"); C. Edwards, Price Discrimination Law 286-348 (1959) (analyzing cases).[22]
Most of these cases involved discounts made questionable because offered to "complex types of distributors" whose "functions became scrambled." Doubleday & Co., 52 F. T. C., at 208. This fact is predictable: Manufacturers will more likely be able to effectuate tertiary line price discrimination through functional discounts to a secondary line buyer when *566 the favored distributor is vertically integrated. Nevertheless, this general tendency does not preclude the possibility that a seller may pursue a price discrimination strategy despite the absence of any discrete mechanism for allocating the favorable price discrepancy between secondary and tertiary line recipients.[23]
Indeed, far from constituting a novel basis for liability under the Act, the fact pattern here reflects conduct similar to that which gave rise to Perkins v. Standard Oil Co. of Cal., 395 U. S. 642 (1969). Perkins purchased gas from Standard, and was both a distributor and a retailer. He asserted that his retail business had been damaged through two violations of the Act by Standard: First, Standard had sold directly to its own retailers at a price below that charged to Perkins; and, second, Standard had sold to another distributor, Signal, which sold gas to Western Hyway, which in turn *567 sold gas to Regal, a retailer in competition with Perkins.[24] The question presented was whether the Act which refers to discriminators, purchasers, and their customers covered injuries to competition between purchasers and the customers of customers of purchasers. Id., at 646-647. We held that a limitation excluding such "fourth level" competition would be "wholly an artificial one". Id., at 647. We reasoned that from "Perkins' point of view, the competitive harm done him by Standard is certainly no less because of the presence of an additional link in this particular distribution chain from the producer to the retailer."[25] The same may justly be said in this case. The additional link in the distribution chain does not insulate Texaco from liability if Texaco's excessive discount otherwise violated the Act.[26]
*568 Nor should any reader of the commentary on functional discounts be much surprised by today's result. Commentators have disagreed about the extent to which functional discounts are generally or presumptively allowable under the Robinson-Patman Act. They nevertheless tend to agree that in exceptional cases what is nominally a functional discount may be an unjustifiable price discrimination entirely within the coverage of the Act.[27] Others, like Frederick *569 Rowe, have asserted the legitimacy of functional discounts in more sweeping terms,[28] but even Rowe concedes the existence of an "exception to the general rule." Rowe 174, n. 7; id., at 195-205.[29]
We conclude that the commentators' analysis, like the reasoning in Perkins and like the Federal Trade Commission's practice, renders implausible Texaco's contention that holding it liable here involves some departure from established understandings. Perhaps respondents' case against Texaco *570 rests more squarely than do most functional discount cases upon direct evidence of the seller's intent to pass a price advantage through an intermediary. This difference, however, hardly cuts in Texaco's favor. In any event, the evidence produced by respondents also shows the scrambled functions which have more frequently signaled the illegitimacy under the Act of what is alleged to be a permissible functional discount. Both Gull and Dompier received the full discount on all their purchases even though most of their volume was resold directly to consumers. The extra margin on those sales obviously enabled them to price aggressively in both their retail and their wholesale marketing. To the extent that Dompier and Gull competed with respondents in the retail market, the presumption of adverse effect on competition recognized in the Morton Salt case becomes all the more appropriate. Their competitive advantage in that market also constitutes evidence tending to rebut any presumption of legality that would otherwise apply to their wholesale sales.
The evidence indicates, moreover, that Texaco affirmatively encouraged Dompier to expand its retail business and that Texaco was fully informed about the persistent and marketwide consequences of its own pricing policies. Indeed, its own executives recognized that the dramatic impact on the market was almost entirely attributable to the magnitude of the distributor discount and the hauling allowance. Yet at the same time that Texaco was encouraging Dompier to integrate downward, and supplying Dompier with a generous discount useful to such integration, Texaco was inhibiting upward integration by the respondents: Two of the respondents sought permission from Texaco to haul their own fuel using their own tank wagons, but Texaco refused. The special facts of this case thus make it peculiarly difficult for Texaco to claim that it is being held liable for the independent pricing decisions of Gull or Dompier.
*571 As we recognized in Falls City Industries, "the competitive injury component of a Robinson-Patman Act violation is not limited to the injury to competition between the favored and the disfavored purchaser; it also encompasses the injury to competition between their customers." 460 U. S., at 436. This conclusion is compelled by the statutory language, which specifically encompasses not only the adverse effect of price discrimination on persons who either grant or knowingly receive the benefit of such discrimination, but also on "customers of either of them." Such indirect competitive effects surely may not be presumed automatically in every functional discount setting, and, indeed, one would expect that most functional discounts will be legitimate discounts which do not cause harm to competition. At the least, a functional discount that constitutes a reasonable reimbursement for the purchasers' actual marketing functions will not violate the Act. When a functional discount is legitimate, the inference of injury to competition recognized in the Morton Salt case will simply not arise. Yet it is also true that not every functional discount is entitled to a judgment of legitimacy, and that it will sometimes be possible to produce evidence showing that a particular functional discount caused a price discrimination of the sort the Act prohibits. When such anti-competitive effects are proved as we believe they were in this case they are covered by the Act.[30]
VI
At the trial respondents introduced evidence describing the diversion of their customers to specific stations supplied by Dompier. Respondents' expert testimony on damages also focused on the diversion of trade to specific Dompier-supplied stations. The expert testimony analyzed the entire *572 damages period, which ran from 1972 and 1981 and included a period prior to 1974 when Dompier did not own any retail stations (although the jury might reasonably have found that Dompier controlled the Red Carpet stations owned by its president from the outset of the damages period). Moreover, respondents offered no direct testimony of any diversion to Gull and testified that they did not even know that Gull was being supplied by Texaco. Texaco contends that by basing the damages award upon an extrapolation from data applicable to Dompier-supplied stations, respondents necessarily based the award upon the consequences of pricing decisions made by independent customers of Dompier. Texaco argues that the damages award must therefore be judged excessive as a matter of law.
Even if we were to agree with Texaco that Dompier was not a retailer throughout the damages period, we could not accept Texaco's argument. Texaco's theory improperly blurs the distinction between the liability and the damages issues. The proof established that Texaco's lower prices to Gull and Dompier were discriminatory throughout the entire 9-year period; that at least Gull, and apparently Dompier as well, was selling at retail during that entire period; that the discounts substantially affected competition throughout the entire market; and that they injured each of the respondents. There is no doubt that respondents' proof of a continuing violation of the Act throughout the 9-year period was sufficient. Proof of the specific amount of their damages was necessarily less precise. Even if some portion of some of respondents' injuries may be attributable to the conduct of independent retailers, the expert testimony nevertheless provided a sufficient basis for an acceptable estimate of the amount of damages. We have held that a plaintiff may not recover damages merely by showing a violation of the Act; rather, the plaintiff must also "make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Perkins v. Standard Oil Co., 395 U. S. *573A 642, 648 (1969) (plaintiff `must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered')." J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S., at 562. At the same time, however, we reaffirmed our "traditional rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury." Id., at 565. See also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123-124 (1969); Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 264-265 (1946).[31] Moreover, as we have noted, Texaco did not object to the instructions to the jury on the damages issue. A possible flaw in the jury's calculation of the amount of damages would not be an appropriate basis for granting Texaco's motion for a judgment notwithstanding the verdict.
The judgment is affirmed.
It is so ordered.
*573B JUSTICE WHITE, concurring in the result.
Texaco's first submission urging a blanket exemption for all functional discounts is rejected by the Court on the ground stated in FTC v. Anheuser-Busch, Inc., 363 U. S. 536, 550 (1960), that the "statute itself spells out the conditions which make a price difference illegal or legal, and we would derange *574 this integrated statutory scheme" by providing a defense not contained in the statute. In the next section of its opinion, however, the Court not only declares that a price differential that merely accords due recognition and reimbursement for actual marketing functions does not trigger the presumption of an injury to competition, see FTC v. Morton Salt Co., 334 U. S. 37, 46-47 (1948), but also announces that "[s]uch a discount is not illegal." Ante, at 562. There is nothing in the Act to suggest such a defense to a charge of price discrimination that "may . . . substantially . . . lessen competition . . . in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them." 15 U. S. C. § 13(a). Nor is there any indication in prior cases that the Act should be so construed. The Court relies heavily on the Report of the Attorney General's National Committee to Study the Antitrust Laws (1955) and also suggests that the Federal Trade Commission permits "legitimate functional discounts" but will not countenance subterfuges. Ante, at 563.
Thus, a Texaco retailer charged a higher price than a distributor who is given what the Court would call a legitimate discount is entirely foreclosed, even though he offers to prove, and could prove, that the distributor sells to his customers at a price lower than the plaintiff retailer pays Texaco and that those customers of the distributor undersell the plaintiff and have caused plaintiff's business to fail. This kind of injury to the Texaco retailer's ability to compete is squarely covered by the language of § 13(a), which reaches not only injury to competition but injury to Texaco retail customers' ability to compete with the distributor's customers. The Court neither explains why this is not the case nor justifies its departure from the provisions of the Act other than by suggesting that when there is a legitimate discount, it is the distributor's decision, not the discount given by Texaco, that causes the injury, even though the latter makes possible the *575 distributor's discount. Perhaps this is the case if the concept of a legitimate price discrimination other than those legitimated by the Act's provisions is to be implied. But that poses the question whether the Act is open to such a construction.
The Attorney General's Committee noted the difficulty. Under the construction of the Act that the Federal Trade Commission (FTC or Commission) was then espousing and applying, see Standard Oil Co. v. FTC, 173 F. 2d 210 (CA7 1949), rev'd on other grounds, 340 U. S. 231 (1951), the Committee said, "[a] supplier according functional discounts to a wholesaler and other middleman while at the same time marketing directly to retailers encounters serious legal risks." Report of Attorney General's National Committee, at 206. The Committee clearly differed with the FTC and called for an authoritative construction of the Act that would accommodate "functional discounts to the broader purposes of the Act and of antitrust policy." Id., at 208. At a later stage in the Standard Oil case, the FTC disavowed any purpose to eliminate legitimate functional pricing or to make sellers responsible for the pricing practices of its wholesalers. The reversal of its position, which the Court of Appeals for the Seventh Circuit had affirmed, was explained on the ground of "broader antitrust policies." Reply Brief for Petitioner in FTC v. Standard Oil Co., O. T. 1957, No. 24, p. 32. The FTC also appears as an amicus in this case urging us to recognize and define legitimate functional discounts. Its brief, however, does not spell out the types of functional discounts that the Commission considers defensible. Nor does the FTC cite any case since the filing of its reply brief in 1957 in which it has purported to describe the contours of legitimate functional pricing. Furthermore, the FTC's argument apparently does not persuade the Court, for the Commission recommends reversal and remand, while the Court affirms the judgment.
*576 In the absence of congressional attention to this long-standing issue involving antitrust policy, I doubt that at this late date we should attempt to set the matter right, at least not in a case that does not require us to define what a legitimate functional discount is. If the FTC now recognizes that functional discounts given by a producer who sells both to distributors and retailers are legitimate if they reflect only proper factors and are not subterfuges, I would await a case challenging such a ruling by the FTC. We would then be reviewing a construction of the Act by the FTC and its explanation of legitimate functional discount pricing.
This is obviously not such a case. This is a private action for treble damages, and the Court rules against the seller-discounter since under no definition of a legitimate functional discount do the discounts extended here qualify as a defense to a charge of price discrimination. We need do no more than the Court did in Perkins v. Standard Oil Co. of Cal., 395 U. S. 642 (1969). This the Court plainly recognizes, and it should stop there. Hence, I concur in the result.
JUSTICE SCALIA, with whom JUSTICE KENNEDY joins, concurring in the judgment.
I agree with the Court that none of the arguments pressed by petitioner for removing its conduct from the coverage of the Robinson-Patman Act is persuasive. I cannot, however, adopt the Court's reasoning, which seems to create an exemption for functional discounts that are "reasonable" even though prohibited by the text of the Act.
The Act provides:
"It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent *577 competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." 15 U. S. C. § 13(a).
As the Court notes, ante, at 556, sales of like goods in interstate commerce violate this provision if three conditions are met: (1) the seller discriminates in price between purchasers, (2) the effect of such discrimination may be to injure competition between the victim and beneficiaries of the discrimination or their customers, and (3) the discrimination is not cost based. Petitioner makes three arguments, one related to each of these conditions. First, petitioner argues that a price differential between purchasers at different levels of distribution is not discrimination in price. As the Court correctly concludes, that cannot be so. As long ago as FTC v. Morton Salt Co., 334 U. S. 37 (1948), we held that the Act prohibits differentials in the prices offered to wholesalers and retailers. True, in Morton Salt the retailers were being favored over the wholesalers, the reverse of the situation here. But if that factor could make any difference, it would bear not upon whether price discrimination occurred, but upon whether it affected competition, the point I address next.
Second, petitioner argues that its practice of giving wholesalers Gull and Dompier discounts unavailable to retailer Hasbrouck could not have injured Hasbrouck's competition with retailers who purchased from Gull and Dompier. Any competitive advantage enjoyed by the competing retailers, petitioner asserts, was the product of independent decisions by Gull and Dompier to pass on the discounts to those retailers. This also is unpersuasive. The Act forbids price discrimination whose effect may be "to injure, destroy, or *578 prevent competition with any person who . . . knowingly receives the benefit of such discrimination, or with customers of [that person]." 15 U. S. C. § 13(a) (emphasis added). Obviously, that effect upon "competition with customers" occurs whether or not the beneficiary's choice to pass on the discount is his own. The existence of an implied "proximate cause" requirement that would cut off liability by reason of the voluntary act of passing on is simply implausible. This field is laden with "voluntary acts" of third persons that do not relieve the violator of liability beginning with the act of the ultimate purchaser, who in the last analysis causes the injury to competition by "voluntarily" choosing to buy from the seller who offers the lower price that the price discrimination has made possible. The Act focuses not upon free will, but upon predictable commercial motivation; and it is just as predictable that a wholesaler will ordinarily increase sales (and thus profits) by passing on at least some of a price advantage, as it is that a retailer will ordinarily buy at the lower price. To say that when the Act refers to injury of competition "with customers" of the beneficiary it has in mind only those customers to whom the beneficiary is compelled to sell at the lower price is to assume that Congress focused upon the damage caused by the rare exception rather than the damage caused by the almost universal rule. The Court rightly rejects that interpretation. The independence of the pass-on decision is beside the point.
Petitioner's third point relates to the third condition of liability (i. e., lack of a cost justification for the discrimination), but does not assert that such a justification is present here. Rather, joined by the United States as amicus curiae, petitioner argues at length that even if petitioner's discounts to Gull and Dompier cannot be shown to be cost based they should be exempted, because the "functional discount" is an efficient and legitimate commercial practice that is ordinarily cost based, though it is all but impossible to establish *579 cost justification in a particular case. The short answer to this argument is that it should be addressed to Congress.
The Court does not, however, provide that response, but accepts this last argument in somewhat modified form. Petitioner has violated the Act, it says, only because the discount it gave to Gull and Dompier was not a "reasonable reimbursement for the value to [petitioner] of their actual marketing functions." Ante, at 562; see also ante, at 570. Relying on a mass of extratextual materials, the Court concludes that the Act permits such "reasonable" functional discounts even if the supplier cannot satisfy the "rigorous requirements of the cost justification defense." Ante, at 561. I find this conclusion quite puzzling. The language of the Act is straightforward: Any price discrimination whose effect "may be substantially. . . to injure, destroy, or prevent competition" is prohibited, unless it is immunized by the "cost justification" defense, i. e., unless it "make[s] only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which [the] commodities are . . . sold or delivered." 15 U. S. C. § 13(a). There is no exception for "reasonable" functional discounts that do not meet this requirement. Indeed, I am at a loss to understand what makes a functional discount "reasonable" unless it meets this requirement. It does not have to meet it penny for penny, of course: The "rigorous requirements of the cost justification defense" to which the Court refers, ante, at 561, are not the rigors of mathematical precision, but the rigors of proof that the amount of the discount and the amount of the cost saving are close enough that the difference cannot produce any substantial lessening of competition. See ante, at 561-562, n. 18. How is one to determine that a functional discount is "reasonable" except by proving (through the normally, alas, "rigorous" means) that it meets this test? Shall we use a nationwide average?
I suppose a functional discount can be "reasonable" (in the relevant sense of being unlikely to subvert the purposes of *580 the Act) if it is not commensurate with the supplier's costs saved (as the cost justification defense requires), but is commensurate with the wholesaler's costs incurred in performing services for the supplier. Such a discount would not produce the proscribed effect upon competition, since if it constitutes only reimbursement for the wholesaler one would not expect him to pass it on. The relevant measure of the discount in order to determine "reasonableness" on that basis, however, is not the measure the Court applies to Texaco ("value to [the supplier] of [the distributor's] actual marketing functions," ante, at 562), but rather "cost to the distributor of the distributor's actual marketing functions" which is of course not necessarily the same thing. I am therefore quite unable to understand what the Court has in mind by its "reasonable" functional discount that is not cost justified.
To my mind, there is one plausible argument for the proposition that a functional basis for differential pricing ipso facto cost justification or not negates the probability of competitive injury, thus destroying an element of the plaintiff's prima facie case, see Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U. S. 428, 434 (1983): In a market that is really functionally divided, retailers are in competition with one another, not with wholesalers. That competition among retailers cannot be injured by the supplier's giving lower prices to wholesalers because if the price differential is passed on, all retailers will simply purchase from wholesalers instead of from the supplier. Or, to put it differently, when the market is functionally divided all competing retailers have the opportunity of obtaining the same price from wholesalers, and the supplier's functional price discrimination alone does not cause any injury to competition. Therefore (the argument goes), if functional division of the market is established, it should be up to the complaining retailer to show that some special factor (e. g., an agreement between the supplier and the wholesaler that the latter will not sell to the former's retailer-customers) prevents this normal market *581 mechanism from operating. As the Court notes, ante, at 571, n. 30, this argument was not raised by the parties here or below, and it calls forth a number of issues that would benefit from briefing and factual development. I agree that we should not decide the merit of this argument in the first instance.
For the foregoing reasons, I concur in the judgment.
NOTES
[*] Briefs of amici curiae urging reversal were filed for the American Petroleum Institute et al. by Edwin M. Zimmerman, G. William Frick, Jan S. Amundson, and Quentin Riegel; for the Motor and Equipment Manufacturers Association by Lawrence F. Henneberger and Marc L. Fleischaker; for the Motor Vehicle Manufacturers Association of the United States, Inc., by Irving Scher and William H. Crabtree; for the National Association of Texaco Wholesalers by Gregg R. Potvin and William L. Taylor; for the National Association of Wholesaler-Distributors by Louis R. Marchese and Neil J. Kuenn; and for the Petroleum Marketers Association of America by Robert S. Bassman, Douglas B. Mitchell, and Alphonse M. Alfano.
[1] The independent retailers' share includes not only the market share for the 12 respondents, who operated a total of 13 stations, but also the share of some independent Texaco retailers who are not parties to this action. Texaco had 27 independent dealers in the Spokane market in 1970, and 19 in 1975. App. 22, 487-488.
[2] "Q. Did you have any conversations with Texaco during this period of time encouraging you to Dompier Oil Company to change its emphasis and to move into the retail business? A. Yes, we did.
"Q. Would you tell the jury about that? [A.] Well, at various times Texaco encouraged us to begin supplying retail service stations. In the early Seventies they did that, and then as time went on, they encouraged us to own the stations that we were supplying; in other words, to try to control our own retail business. And beginning about 1974 we did purchase a station in '74 and some more in '75 and we began operating those as company operations with salaried company employees." Id., at 116-117.
[3] "Q. That would have been a rate that if you had hired a common carrier to haul the product for you, you would have paid them to haul it?
A. That's right.
"Q. And do you understand to your understanding does that common carrier rate have a built-in-profit? A. I am sure that it does.
"Q. Did you find it to be an advantage to you to be hauling your own product? A. Yes." Id., at 126.
[4] At trial one of Texaco's defenses was based on its obligation to comply with certain federal regulations during periods of shortage. In one of its communications to the Federal Government, a Texaco vice president wrote, in part:
"We believe that the dramatic shift in gasoline sales from the independent retailer classes of purchaser to the independent distributor classes of purchaser can be explained almost entirely by the magnitude of the distributor discount and the hauling allowance." Id., at 413.
[5] Texaco had argued that its pricing practices were mandated by federal regulations and that its sales in the Spokane market were not "in commerce" within the meaning of the Act.
[6] Section 2(a) of the Act provides in part:
"That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." 15 U. S. C. § 13(a).
[7] Section 2(b) of the Act provides in part:
"Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor." 15 U. S. C. § 13(b).
[8] The award to each particular respondent of course differed. The awards represented an average of $5,486.59 per year for each of the respondents.
[9] "While there is a serious question as to whether Dompier was entitled to a `functional discount' on the gas it resold at retail, compare Mueller Co., 60 F. T. C. 120 (1962), aff'd, 323 F. 2d 44 (7th Cir. 1963), cert. denied, 377 U. S. 923 . . . (1964) (entitlement to functional discount based on resale level) with Doubleday and Co., 52 F. T. C. 169 (1955) (entitlement to functional discount based on level of purchase), the court assumes, arguendo, that the mere fact that Dompier retailed the gas does not preclude a `functional discount.' " 634 F. Supp. 34, 37, n. 4 (ED Wash. 1985) (emphasis in original).
[10] "Secondly, the functional discounts negatively affected competition because they were, in part, reflected in the favored purchasers' (or their customers') retail prices. In other words, the discount was not consumed or absorbed at the level of the favored buyers; rather, the amount of the discount (or a significant portion) appeared in the favored purchasers' retail price, or in the favored purchasers' price to their customers and in their customers' retail prices. Under such circumstances, the otherwise innocuous nature and presumed legality of functional discounts is rebutted, for it is universally recognized that a functional discount remains legal only to the extent it acts as compensation for the functions performed by the favored buyer. See 3 Kintner & Bauer, Federal Antitrust Law 309-10 (1983); Rill, Availability and Functional Discounts Justifying Discriminatory Pricing, 53 Antitrust L. J. 929, 939-41 (1985). The discount must `be reasonably related to the expenses assumed by the [favored] buyer' and the discount `should not exceed the cost of . . . the function [the favored buyer] actually performs . . .' Doubleday and Company, 52 F. T. C. at 209, cited in Boise Cascade Corp., Docket No. 9133, slip op. at 117 (Feb. 14, 1984) (initial decision). If the discount exceeds such costs, it cannot be justified as a functional discount, particularly where, as here, the excess has a negative effect on competition.
"In this case Texaco made no serious attempt to quantitatively justify its functional discounts. While a precise accounting of the value of the performed functions is not mandated, merely identifying some of the functions is not sufficient. There is no substantial evidence to support Texaco's position that the discounts were justified." Id., at 38 (footnote omitted).
[11] In their brief filed as amici curiae, the United States and the Federal Trade Commission suggest the following definition of "functional discount," which is adequate for our discussion: "A functional discount is one given to a purchaser based on its role in the supplier's distributive system, reflecting, at least in a generalized sense, the services performed by the purchaser for the supplier." Brief for United States et al. as Amici Curiae 10 (filed Aug. 3, 1989).
[12] The legislative history indicates that earlier drafts of the Act did include such a proviso. See, e. g., Shniderman, "The Tyranny of Labels" A Study of Functional Discounts Under the Robinson-Patman Act, 60 Harv. L. Rev. 571, 583-586, and nn. 40-57 (1947). The deletion of this exception for functional discounts has ambiguous significance. It may be, as one commentator has suggested, that the circumstances of the Act's passage "must have conveyed to the congressional mind the realization that the judiciary and the FTC would view what had occurred as a narrowing of the gates through which the functional classification plan of a seller had to pass to come within the law." Id., at 588. In any event, the deletion in no way detracts from the blunt direction of the statutory text, which indicates that any price discrimination substantially lessening competition will expose the discriminator to liability, regardless of whether the discriminator attempts to characterize the pricing scheme as a functional discount.
[13] See n. 6, supra.
[14] Texaco has not contested here the proposition that branded gas and unbranded gas are of like grade and quality. See FTC v. Borden Co., 383 U. S. 637, 645-646 (1966) (" `[T]he economic factors inherent in brand names and national advertising should not be considered in the jurisdictional inquiry under the statutory "like grade and quality" test' ").
[15] It has proved useful in Robinson-Patman Act cases to distinguish among "the probable impact of the [price] discrimination on competitors of the seller (primary-line injury), on the favored and disfavored buyers (second-line injury), or on the customers of either of them (third-line injury)." See 3 E. Kintner & J. Bauer, Federal Antitrust Law § 20.9, p. 127 (1983).
[16] "In the Committee's view, imposing on any dual supplier a legal responsibility for the resale policies and prices of his independent distributors contradicts basic antitrust policies. Resale-price fixing is incompatible with the tenets of a free and competitive economy. What is more, the arrangements necessary for policing, detecting, and reporting price cutters may be illegal even apart from the resale-price agreement itself. And even short of such arrangements, a conscious adherence in a supplier's sales to retail customers to the price quotations by independent competing distributors is hardly feasible as a matter of business operation, or safe as a matter of law." Report of the Attorney General's National Committee to Study the Antitrust Laws 206-207 (1955) (footnotes omitted).
[17] In our view, to relate discounts or prices solely to the purchaser's resale activities without recognition of his buying functions thwarts competition and efficiency in marketing. It compels affirmative discrimination against a substantial class of distributors, and hence serves as a penalty on integration. If a businessman actually fulfills the wholesale function by relieving his suppliers of risk, storage, transportation, administration, etc., his performance, his capital investment, and the saving to his suppliers, are unaffected by whether he also performs the retailing function, or any number of other functions. A legal rule disqualifying him from discounts recognizing wholesaling functions actually performed compels him to render these functions free of charge." Id., at 207.
[18] In theory, a supplier could try to defend a functional discount by invoking the Act's cost justification defense, but the burden of proof with respect to the defense is upon the supplier, and interposing the defense "has proven difficult, expensive, and often unsuccessful." 3 E. Kintner & J. Bauer, Federal Antitrust Law § 23.19, pp. 366-367 (1983). Moreover, to establish the defense a "seller must show that the price reductions given did not exceed the actual cost savings," id., § 23.10, p. 345, and this requirement of exactitude is ill suited to the defense of discounts set by reference to legitimate, but less precisely measured, market factors. Cf. Calvani, Functional Discounts Under the Robinson-Patman Act, 17 B. C. Ind. & Com. L. Rev. 543, 546, n. 16 (1976) (distinguishing functional discounts from cost justified price differences); Report of the Attorney General's National Committee on the Antitrust Laws, at 171 ("[T]he cost defense has proved largely illusory in practice").
Discounters will therefore likely find it more useful to defend against claims under the Act by negating the causation element in the case against them: A legitimate functional discount will not cause any substantial lessening of competition. The concept of substantiality permits the causation inquiry to accommodate a notion of economic reasonableness with respect to the pass-through effects of functional discounts, and so provides a latitude denied by the cost justification defense. Cf. Shniderman, 60 Harv. L. Rev., at 603-604 (substantiality defense in functional discount cases). We thus find ourselves in substantial agreement with the view that:
"Conceived as a vehicle for allowing differential pricing to reward distributive efficiencies among customers operating at the same level, the cost justification defense focuses on narrowly defined savings to the seller derived from the different method or quantities in which goods are sold or delivered to different buyers . . . . Moreover, the burden of proof as to the cost justification defense is on the seller charged with violating the Act, whereas the burden of proof remains with the enforcement agency or plaintiff in circumstances involving functional discounts since functional pricing negates the probability of competitive injury, an element of a prima facie case of violation." Rill, Availability and Functional Discounts Justifying Discriminatory Pricing, 53 Antitrust L. J. 929, 935 (1985) (footnotes omitted).
[19] Texaco continues the argument by summoning a parade of horribles whose march Texaco believes is at issue in this case: According to Texaco, the Court of Appeals' rule "would multiply distribution costs, rigidify and increase consumer prices, encourage resale price maintenance in violation of the Sherman Act . . . , and jeopardize the businesses of wholesalers." Brief for Petitioner 14.
[20] See also, e. g., In re Whiting, 26 F. T. C. 312, 316, ¶ 3 (1938) (functional classification of customers involved unlawful price discrimination because of functional overlap); In re Standard Oil Co., 41 F. T. C. 263 (1945), modified and aff'd, 173 F. 2d 210, 217 (CA7 1949) ("The petitioner should be liable if it sells to a wholesaler it knows or ought to have known . . . is using or intends to use [the wholesaler's] price advantage to undersell the petitioner in its prices made to its retailers"), rev'd and remanded on other grounds, 340 U. S. 231 (1951).
In the Standard Oil case, the FTC itself on remand dropped the part of its order prohibiting Standard Oil from giving functional discounts. See C. Edwards, Price Discrimination Law 309 (1959). The FTC's preremand theory in the Standard Oil case has of course been the subject of harsh criticism. See, e. g., Report of the Attorney General's National Committee to Study the Antitrust Laws, at 206. Much, if not all, of this criticism rests upon the view that, under the FTC's Standard Oil ruling, a "supplier is charged with legal responsibility for the middlemen's pricing tactics, and hence must control their resale prices lest they undercut him to the unlawful detriment of his directly purchasing retailers. Alternatively, the seller may forego his operational freedom by matching his quotations to retailers with theirs." Ibid. Nothing in our opinion today should be read to condone or approve such a result.
[21] See also In re Mueller Co., 60 F. T. C. 120, 127-128 (1962) (refusing to make allowance for functional discounts in any way that would "add a defense to a prima facie violation of Section 2(a) which is not included in either Section 2(a) or Section 2(b)"), aff'd, 323 F. 2d 44 (CA7 1963), cert. denied, 377 U. S. 923 (1964). The FTC in Mueller expressly disavowed dicta from Doubleday suggesting that functional discounts are per se legal if justified by the buyer's costs. Mueller held that the discounts were controlled instead by the reasoning propounded in General Foods, which refers to the value of the services to the supplier giving the discount. 60 F. T. C., at 127-128.
We need not address the relative merits of Mueller and Doubleday in order to resolve the case before us. We do, however, reject the requirement of exactitude which might be inferred from Doubleday's dictum that a functional discount offered to a buyer "should not exceed the cost of that part of the function he actually performs on that part of the goods for which he performs it." 52 F. T. C., at 209. As already noted, a causation defense in a functional discount case does not demand the rigorous accounting associated with a cost justification defense.
[22] The Government's position in this case does not contradict this course of decision. The Government's amicus brief on Texaco's behalf criticizes the Court of Appeals opinion on the theory that it "would require a supplier to show that a functional discount is justified by the wholesaler's costs," and that it imposed "liability for downstream competitive effects of legitimate functional discounts." Brief for United States et al. as Amici Curiae 6 (filed Aug. 3, 1989). Cf. Boise Cascade Corp. v. FTC, 267 U. S. App. D. C. 124, 138-140, 837 F. 2d 1127, 1141-1143 (1988) (summarizing debate about relevance of buyer's costs to defense of functional discounts). If the Court of Appeals were indeed to have endorsed either of these rules, it would have departed perceptibly from the mainstream of the FTC's reading of the Act. We need not decide whether the Government's interpretation of the Court of Appeals opinion is correct, for we affirm its judgment for reasons that do not entail the principles criticized by the Government. Indeed, the Government itself opposed the petition for certiorari in this case on the ground that "we do not think that this case on its facts presents the broad issue that petitioner discusses (whether a supplier must show that its discounts to wholesalers relative to retailers are cost based)." Brief for United States as Amicus Curiae 12 (filed May 16, 1989).
[23] The seller may be willing to accept any division of the price difference so long as some significant part is passed on to the distributor's customers. Although respondents here did not need to show any benefit to Texaco from the price discrimination scheme in order to establish a violation of the Act, one possibility is indicated by the brief filed amicus curiae by the Service Station Dealers of America (SSDA), an organization representing both stations supplied by independent jobbers and stations supplied directly by sellers. See Brief for SSDA as Amicus Curiae 1-2. SSDA suggests that an indirect price discount to competitors may be used to force directly supplied franchisees out of the market, and so to circumvent federal restrictions upon the termination of franchise agreements. See 92 Stat. 324-332, 15 U. S. C. §§ 2801-2806.
One would expect that absent a safe harbor rule making functional discounts a useful means to engage in otherwise unlawful price discrimination excessive functional discounts of the sort in evidence here would be rare. As the Government correctly observes, "[t]his case appears to reflect rather anomalous behavior on the part of the supplier." Brief for United States et al. as Amici Curiae 17, n. 15 (filed Aug. 3, 1989). See also Brief for United States as Amicus Curiae 15 (filed May 16, 1989) ("[M]arket forces should tend to discourage a supplier from offering independent wholesalers discounts that would allow them to undercut the supplier's own retail customers").
[24] Much of Perkins' case parallels that of respondents. "There was evidence that Signal received a lower price from Standard than did Perkins, that this price advantage was passed on, at least in part, to Regal, and that Regal was thereby able to undercut Perkins' price on gasoline. Furthermore there was evidence that Perkins repeatedly complained to Standard officials that the discriminatory price advantage given Signal was being passed down to Regal and evidence that Standard officials were aware that Perkins' business was in danger of being destroyed by Standard's discriminatory practices. This evidence is sufficient to sustain the jury's award of damages under the Robinson-Patman Act." 395 U. S., at 649.
[25] We added: "Here Standard discriminated in price between Perkins and Signal, and there was evidence from which the jury could conclude that Perkins was harmed competitively when Signal's price advantage was passed on to Perkins' retail competitor Regal. These facts are sufficient to give rise to recoverable damages under the Robinson-Patman Act." Id., at 648.
[26] In fact, the principle applied in Perkins that we will not construe the Robinson-Patman Act in a way that "would allow price discriminators to avoid the sanctions of the Act by the simple expedient of adding an additional link to the distribution chain," id., at 647 seems capable of governing this case as well. It might be possible to view Perkins as standing for a narrower proposition, either because Signal apparently exercised majority control over the intermediary, Western Hyway, and its retailer, Regal, see id., at 651 (MARSHALL, J., concurring in part and dissenting in part), or because Standard did not assert that its price to Signal reflected a "functional discount." However, as the Perkins dissent pointed out, ibid., the Perkins majority did not put any such limits on the principle it declared.
[27] See, e. g., Celnicker & Seaman, Functional Discounts, Trade Discounts, Economic Price Discrimination and the Robinson-Patman Act, 1989 Utah L. Rev. 813, 857 (1989) (concluding that "[t]rade discounts often are manifestations of economic price discrimination. . . If a trade discount violates the normal competitive disadvantage criteria used under the Act, no special devices should be employed to protect it"); Rill, 53 Antitrust L. J., at 940-941 ("Although it is entirely appropriate for the FTC and the courts to insist that some substantial services be performed in order for a buyer to earn a functional discount, a requirement of precise mathematical equivalency makes no sense"); 3 E. Kintner & J. Bauer, Federal Antitrust Law 318-320, and n. 305 (1983) ("Functional discounts . . . are usually deemed lawful," but this usual rule is subject to exception in cases, "arising in unusual circumstances," when the seller's "discrimination caused" the tertiary line injury); Calvani, 17 B. C. Ind. & Com. L. Rev., at 549, and n. 26 (discounts to wholesalers are generally held not to injure competition, but this rule is subject to qualifications, and "[p]erhaps the most important caveat focuses on the situation where the seller sells to both resellers and consumers and the resellers pass on to their consumers all or part of the wholesaling functional discount"); C. Edwards, Price Discrimination Law 312-313 (1959) ("It is not surprising that from time to time the Commission has been unable to avoid finding injurious discrimination between direct and indirect customers nor to avoid corrective orders that sought to define the gap between prices at successive levels of distribution"); Kelly, Functional Discounts Under the Robinson-Patman Act, 40 Calif. L. Rev. 526, 556 (1952) (concluding that the "characterization of a price differential between two purchasers as a functional or trade discount accords it no cloak of immunity from the prohibitions of the Robinson-Patman Act"); Shniderman, 60 Harv. L. Rev., at 599-600 (Commission's approach to functional discounts "may have been influenced by the possibility of subtle price discriminating techniques through the employment of wholesalers receiving more than ample discount differentials").
Professor Edwards, among others, describes the status of functional discounts under the Robinson-Patman Act with clear dissatisfaction. He complains that "[t]he failure of the Congress to cope with the problem . . . has left the Commission an impossible job in this type of case." Price Discrimination Law, at 313. He adds that the Commission's "occasional proceedings" have been attributed to the "Commission's wrong-headedness." Id., at 312. Professor Edwards' observations about the merits of the statute and about prosecutorial discretion are obviously irrelevant to our own inquiry. Unlike scholarly commentators, we have a duty to be faithful to congressional intent when interpreting statutes and are not free to consider whether, or how, the statute should be rewritten.
[28] "In practice, the competitive effects requirement permits a supplier to quote different prices between different distributor classes so long as those who are higher up (nearer the supplier) on the distribution ladder pay less than those who are further down (nearer the consumer)." F. Rowe, Price Discrimination Under the Robinson-Patman Act 174 (1962) (footnote omitted) (hereinafter Rowe); see also id., at 178.
[29] Rowe, writing prior to this Court's Perkins decision, describes the exception, which he identifies with the Standard Oil cases, as "of dubious validity today." Rowe 196. Rowe's analysis is flawed because he assumes that seller liability for tertiary line implications of wholesaler discounts must follow the logic of the Standard Oil complaint, and likewise assumes that this logic exposes to liability any seller who fails to monitor the resale prices of its wholesaler. Rowe 204. Indeed, Rowe's own discussion suggests one defect in his argument: Legitimate wholesaler discounts will usually be insulated from liability by an absence of evidence on the causation issue. Id., at 203-204. In any event, nothing in our opinion today endorses a theory of liability under the Robinson-Patman Act for functional discounts so broad as the theory Rowe draws from Standard Oil.
[30] The parties do not raise, and we therefore need not address, the question whether the inference of injury to competition might also be negated by evidence that disfavored buyers could make purchases at a reasonable discount from favored buyers.
[31] In J. Truett Payne, 451 U. S., at 565-566, we quoted with approval the following passage:
"[D]amage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the factfinder may `conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs.' Bigelow v. RKO Pictures, Inc., [327 U. S.], at 264. See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 377-379 (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 561-566 (1931)." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S., at 123-124. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/706242/ | 68 F.3d 461
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Thomas Creighton SHRADER, Petitioner-Appellant,v.George TRENT, Respondent-Appellee.
No. 95-6579.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 3, 1995.Decided Oct. 19, 1995.
Thomas Creighton Shrader, Appellant Pro Se.
Jacquelyn Irwin Custer, Office of the Attorney general of West Virginia, Charleston, WV, for Appellee.
Before MURNAGHAN, WILKINS, and NIEMEYER, Circuit Judges.
PER CURIAM:
1
Thomas Shrader seeks to appeal the district court's dismissal of his 28 U.S.C. Sec. 2254 (1988) petition on the recommendation of the magistrate judge. Shrader raised numerous claims in this petition, challenging his 1976 guilty pleas to two counts of murder and one count of unlawful wounding. This is Shrader's fifth federal habeas corpus petition. We conclude that the following claims must be dismissed as successive because they were determined on their merits in prior petitions: (1) denial of due process from state post-conviction proceedings; (2) ineffective assistance of counsel; (3) voluntariness of the 1976 guilty plea; and (4) improper sentencing to hard labor. See Rule 9(b), Rules Governing Sec. 2254; Sanders v. United States, 373 U.S. 1, 18 (1963).
2
The remaining claims must be dismissed as an abuse of the writ, as set forth in Rule 9(b). Shrader has failed to allege adequate cause for his failure to raise these claims in a prior petition, nor does he claim to be actually innocent of the crimes. McCleskey v. Zant, 499 U.S. 467, 493 (1991). Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
3
DISMISSED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2042606/ | 468 N.W.2d 80 (1991)
Patricia A. MARKGRAF, Appellant,
v.
DOUGLAS CORPORATION, Wausau Insurance Company, Respondents,
Parkview Treatment Center, Defendant.
No. CO-90-2011.
Court of Appeals of Minnesota.
April 9, 1991.
Thomas M. Brudvig, Roseville, for Patricia A. Markgraf.
John French, Andrea M. Fike, Faegre & Benson, Minneapolis, for Doulgas Corp.
Dale B. Lindman, Victor E. Lund, Mahoney, Dougherty & Mahoney, Minneapolis, for Wausau Ins. Co.
Considered and decided by LANSING, P.J., and HUSPENI and DAVIES, JJ.
*81 OPINION
DAVIES, Judge.
Appellant argues that her termination and the five-month delay in receipt of her workers' compensation benefits constitute egregiously cruel and venal conduct under Minn.Stat. § 176.82 (1984) and that the trial court erred in dismissing her claims for negligent infliction of emotional distress and tortious invasion of privacy. We affirm.
FACTS
In July 1982 appellant injured her back. She reinjured her back in September 1983 and missed three months' work. While appellant received medical and disability benefits for this period, she did not receive wage loss benefits, as appellant's employer, Douglas Corporation, and its worker's compensation insurer, Wausau Insurance Company (respondents), did not believe that her injury was work related. In June and July 1985, orthopedic and neurological opinions were obtained linking appellant's injury with her employment. In late November 1985, appellant and respondents settled all claims appellant had against respondents at that time.
Appellant was unable to continue full-time work and left work on December 16, 1985. Respondents thereafter refused to pay workers' compensation benefits until April 1986 when appellant underwent back surgery. Two months later, appellant started her recovery program, which included six to eight weeks of physical therapy. On June 23, 1986, Douglas terminated appellant's employment because she had been on "medical leave" for six months. Douglas' employee handbook provided for discharge after six months' absence. Appellant claims that she did not know about the employee handbook or the discharge provision until after she was terminated. Appellant had not obtained medical permission to return to work prior to the termination and underwent additional surgery in December 1987.
In April 1989, appellant sued respondents, alleging that she was terminated in violation of Minn.Stat. § 176.82, discrimination, intentional and negligent infliction of emotional distress. She also sued Parkview Treatment Center, alleging it tortiously invaded her privacy by releasing her medical records to respondents. The release of appellant's medical records was apparently pursuant to a medical release appellant had signed earlier but which had not been used. The trial court granted respondents' subsequent motion for summary judgment and dismissed appellant's invasion of privacy claim.
ISSUES
1. Did the trial court err by granting summary judgment on appellant's claim that respondents' conduct was egregiously cruel and venal in violation of Minn.Stat. § 176.82?
2. Did the trial court err in granting summary judgment on appellant's claim of negligent infliction of emotional distress?
ANALYSIS
Under the rules, summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.
Minn.R.Civ.P. 56.03. Additionally:
On appeal from a summary judgment it is the function of [an appellate court] only to determine (1) whether there are any genuine issues of material fact and (2) whether the trial court erred in its application of the law.
Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). Further,
the party opposing the [summary judgment] motion cannot rely upon the naked allegations of his pleadings and must present specific facts showing genuine issues for trial unless the facts adduced by the moving party fail to negate facts sufficiently alleged in the pleadings.
Morgan v. McLaughlin, 290 Minn. 389, 393, 188 N.W.2d 829, 832 (1971). Finally, *82 "the nonmoving party has the benefit of that view of the evidence which is most favorable to him." Sauter v. Sauter, 244 Minn. 482, 484-85, 70 N.W.2d 351, 353 (1955), quoted in Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981).
I.
Generally, the exclusive remedy of an injured worker is the Workers' Compensation Act. Bergeson v. United States Fidelity and Guar. Co., 414 N.W.2d 724, 726 (Minn.1987). However:
Any person discharging or threatening to discharge an employee for seeking workers' compensation benefits or in any manner intentionally obstructing an employee seeking worker's compensation benefits is liable in a civil action for damages incurred by the employee including any diminution in worker's compensation benefits caused by a violation of this section including costs and reasonable attorney fees, and for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled. Damages awarded under this section shall not be offset by any worker's compensation benefits to which the employee is entitled.
Minn.Stat. § 176.82 (1984). The supreme court has stated:
We think this civil action is intended to cover those situations where the insurer's delay or denial of benefits goes beyond unreasonableness, neglect, or obstinance. This view, we believe, keeps the remedies provided by sections 176.82 and 176.221 separate and distinguishable, and gives due deference to the exclusivity scheme of the Workers' Compensation Act. The statute's explicit allowance of treble punitive damages in the civil action, a kind of damages reserved traditionally for conduct which is outrageous, also supports this view.
Bergeson, 414 N.W.2d at 727 (emphasis added). Bergeson continues:
[A] cause of action under section 176.82 lies where a person, such as an insurer, obstructs or hinders, whether by deliberate action or inaction, the receipt of benefits due the injured worker and does so in a manner that is outrageous and extreme, or, to put it another way, in a manner which is egregiously cruel or venal.
Id. (emphasis added).
Initially, appellant argues that it is for a jury to decide whether the alleged conduct is sufficiently cruel and venal to justify recovery under section 176.82. We disagree. Here, as in Bergeson, the essential facts are undisputed. See id., 414 N.W.2d at 725-26. On appropriate facts, summary judgment may be issued by the trial court. See id. at 728 ("We must * * * affirm the granting of summary judgment by the trial judge.").
Regarding the facts of this case, appellant left work in December 1985 and did not receive benefits until retaining an attorney in April 1986. This delay is significantly shorter than the six-year delay in Bergeson. Further, regarding the cruelty or venality necessary for recovery under section 176.82, both the supreme court and this court have cited Unruh v. Truck Ins. Exch., 7 Cal. 3d 616, 102 Cal. Rptr. 815, 498 P.2d 1063 (1972); see Bergeson, 414 N.W.2d at 727; Denisen v. Milwaukee Mut. Ins. Co., 360 N.W.2d 448, 450 (Minn. App.1985). Denisen, 360 N.W.2d at 450, summarizes Unruh:
Plaintiff in Unruh alleged that the insurer's investigator had made romantic overtures to her for the sole purpose of arranging dates during which his colleague could surreptitiously film the plaintiff performing physical activity inconsistent with her claimed injuries.
Courts applying this exception have consistently refused to entertain suits alleging less extreme conduct, such as wrongful refusal to pay claims.
(Emphasis added.) (Citation omitted.) If an insurer's wrongful refusal to pay a claim without more, is not sufficiently cruel or venal to justify recovery under Minn. Stat. § 176.82, we cannot say in the instant circumstances that the five-month delay appellant suffered in receiving benefits justifies recovery under this statute.
*83 Furthermore, if an employer or insurer vexatiously delays, refuses to pay, or underpays compensation, the offender is subject to a penalty of up to 25 percent of the amount the injured party is to recover. See Minn.Stat. § 176.225, subd. 1 (1984). The availability of the 25 percent penalty against late payment demonstrates that section 176.82 applies to more egregious conduct.
Appellant also alleges that she was terminated in retaliation for seeking unemployment benefits. Douglas' employee handbook addresses medical leaves, stating:
The employee may remain on leave until capable of returning to work on a full-time basis or is terminated following the maximum extension of leave. All leaves will normally be limited to six months. A request for extension of leave will be reviewed on an individual basis.
An affidavit of Douglas' business manager indicates that the six-month medical leave has never been extended and that respondent did not request an extension. Appellant alleges she was unaware of this policy until she was terminated. Even assuming that appellant was not aware of the six-month medical leave policy until she was terminated, termination does not constitute evidence of egregiously cruel and venal conduct by respondents, especially when termination is in accordance with an existing provision of the employee handbook, the reasonableness of which remains unchallenged.
II.
Respondents argue that appellant's claim for negligent infliction of emotional distress is precluded by the exclusive nature of workers' compensation recovery. See Minn.Stat. § 176.031 (1984). The supreme court has stated:
Tort claims against an employer or its insurer are not barred by exclusivity provisions [of the Workers' Compensation Act] if the injuries claimed or the damages sought did not arise out of and in the course of employment.
Kaluza v. Home Ins. Co., 403 N.W.2d 230, 236 (Minn.1987) (emphasis added). As appellant's claim for negligent infliction of emotional distress did not arise in the course of appellant's employment, it is not barred by the exclusivity of the Workers' Compensation Act. See id. We note, however, that
[t]he failure to pay an insurance claim in itself, no matter how malicious, does not constitute a tort; it constitutes a breach of an insurance contract.
Saltou v. Dependable Ins. Co., 394 N.W.2d 629, 633 (Minn.App.1986) (emphasis added). Here, even assuming that Wausau failed to promptly pay benefits to which appellant was entitled, and assuming that Wausau's failure to pay benefits was malicious, appellant does not allege any "exceptional circumstances" which might transform Wausau's assumed breach of contract into the independent tort of negligent infliction of emotional distress. See Pillsbury Co. v. National Union Fire Ins. Co., 425 N.W.2d 244, 248-49 (Minn.App.1988), pet. for rev. granted (Minn. July 28, 1988), appeal dismissed (Minn. Mar. 13,1989).
Alternatively, even if exceptional circumstances did exist, appellant still would be unable to recover. The supreme court has stated:
We have consistently held that no cause of action exists for the negligent infliction of emotional distress absent either physical injury or physical danger to the plaintiff.
Langeland v. Farmer's State Bank of Trimont, 319 N.W.2d 26, 32 (Minn.1982). The exact physical impact or danger appellant feared is unspecified. Lack of impact or danger is fatal to a claim of negligent infliction of emotional distress. See Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn.App.1987) ("Appellant presented no facts showing he was in a zone of danger of physical impact and reasonably feared for his own safety. He thus cannot recover under this theory [of negligent infliction of emotional distress]."), pet. for rev. denied (Nov. 13, 1987); see also Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn.1986) (The wife of person in *84 "zone of danger" could not recover because the wife herself was not in "zone of danger.").
Finally, we note that the trial court did not err in dismissing appellant's claim for tortious invasion of privacy; Minnesota does not recognize that cause of action. See Hendry v. Conner, 303 Minn. 317, 319, 226 N.W.2d 921, 923 (1975).
DECISION
The facts of this case do not involve either conduct sufficiently cruel and venal to justify recovery under section 176.82 or circumstances which would sustain a claim for negligent infliction of emotional distress. The trial court did not err in granting summary judgment on appellant's claims.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2042620/ | 890 N.E.2d 802 (2008)
NELSON
v.
NELSON.
No. 29A02-0801-CV-35.
Court of Appeals of Indiana.
July 15, 2008.
BAILEY, J.
Disposition of case by unpublished memorandum decision. Reversed and Remanded.
FRIEDLANDER, J. Concurs.
KIRSCH, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4161017/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
ERICK LITTLE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 14-1289 (RMC)
)
WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY, et al., )
)
Defendants. )
_________________________________ )
OPINION
Plaintiffs complain that a criminal background check, used by the Washington
Metropolitan Area Transit Authority (WMATA) to screen candidates and employees, is facially
neutral but has a disparate impact on African Americans. WMATA’s Policy 7.2.3 governs how
and when individuals with criminal convictions can obtain or continue employment with
WMATA and its contractors and subcontractors. Plaintiffs seek to represent one or more classes
of African-American candidates and employees who were disqualified or removed from
employment by Policy 7.2.3 in alleged violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. and the District of Columbia Human Rights Act (DCHRA), D.C. Code
§ 2.1404.01 et seq. After class discovery, Plaintiffs now seek leave to file an amended
complaint, class certification of the amended classes, and appointment of Plaintiffs’ counsel as
class counsel.
The motion to amend the complaint will be denied without prejudice. The motion
for class certification will be granted in part and denied in part. The Court will certify three
classes, separating candidates and employees based on the Appendix of Policy 7.2.3 that applied
to them.
1
The parties also filed motions to exclude the other’s experts. The motion to
exclude Dr. Farber will be granted in part and denied in part. The motion to exclude Dr. Bendick
will be granted. The motions to exclude Dr. Stixrud’s initial report and declaration will be
granted in part and denied in part. The motion to exclude Dr. Siskin will be denied.
I. BACKGROUND
WMATA was created by an Interstate Compact among Washington, D.C.,
Virginia and Maryland, and approved by Congress, to be the primary public transit agency for
the D.C. metropolitan region. Cert. Opp., Ex. 20 [Dkt. 137-2] at WMATA0002330. WMATA
operates the region’s Metrorail system (86 stations and 105 miles of track); Metrobus system
(135 lines and 12,216 stops); and MetroAccess paratransit service for the disabled. See id.; see
also Cert. Opp. [Dkt. 137] at 10. “The Compact confers broad powers on WMATA to ‘[c]reate
and abolish offices, employments and positions . . . provide for the qualification, appointment,
[and] removal . . . of its . . . employees, [and] [e]stablish, in its discretion, a personnel system
based on merit and fitness.’” Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997) (quoting
D.C. Code Ann. §§ 1-2431(12)(g) and (h)). WMATA argues that it is, thus, generally “immune
from attacks upon its discretionary decisions related to its establishment of qualifications for
employees,” although it recognizes that it is also subject to Title VII. Cert. Opp. at 10 n.6.
Plaintiffs allege that the screening criteria in Policy 7.2.3 are “overly broad,
unjustifiably rigid and unduly harsh.” First Amended Complaint [Dkt. 84] ¶¶ 1-3, 8-15, 48-102,
103-04, 126-28 (FAC). Plaintiffs complain that:
[Policy 7.2.3] disqualifies many job applicants and employees based
on criminal history that is not related to the job at issue or occurred
so long ago—in some cases, 20 or 30 years in the past—that it is
irrelevant to any fair determination of employee honesty, reliability,
or safety.
2
Id. ¶ 1. To clarify Plaintiffs’ intentions, their pending Motion for Leave to File a Second
Amended Complaint acknowledges that Plaintiffs’ expert found no statistical basis to include
“WMATA employees who may have been deterred from applying for internal job openings
and/or employees who may have been deterred from taking medical or personal leave” or
“persons directly employed and subsequently terminated by WMATA.” Mot. for Leave to File
Second Amended Complaint [Dkt. 117] ¶ 7 (SAC Mot.).
WMATA argues that it adopted Policy 7.2.3 as a business necessity. Cert. Opp.
at 11-13. The argument goes to the merits of Plaintiffs’ Complaint, not to their motion for class
certification. Additionally, WMATA argues that the actual makeup of its employee pool
demonstrates that no discrimination occurs. See id. at 10-11. Specifically, African Americans
constitute seventy-five percent (75%) of WMATA’s (employee and contractor) workforce of
more than 12,000 individuals. See id., Exs. 21-22 [Dkt. 137-2]. African Americans hold 96% of
WMATA’s bus and rail operator positions. And these numbers exceed the proportion of African
Americans in the metropolitan area: 52% of D.C. residents identify as African American; 65%
of residents in Prince George’s County identify as African American; and the percentages of
persons who identify as African American in Montgomery County, Maryland, and the
metropolitan counties in Virginia range from between 5 and 22%. See id., Ex. 24 [Dkt. 137-3] at
WMATA0002370-2390. While these employment figures are not contested by Plaintiffs, they
contend that Policy 7.2.3 bars employment of African Americans more than other races. See
Connecticut v. Teal, 457 U.S. 440, 453-54, 455 (1982) (“Congress never intended to give an
employer license to discriminate against some employees on the basis of race or sex merely
because he favorably treats other members of the employees’ group.”); Furnco Constr. Corp. v.
3
Waters, 438 U.S. 567, 579 (1978) (“A racially balanced work force cannot immunize an
employer from liability for specific acts of discrimination.”).
From 2009 to 2012, WMATA followed an inconsistently-applied criminal
background check policy, which was promulgated through a Staff Notice. See Mot. for Cert, Ex.
7, . The
2009 policy divided positions into public-facing and non-public-facing. For all positions, an
individual was disqualified if s/he had a felony or misdemeanor conviction of a crime against
persons, a sex crime, or a crime against society. For crimes against property or controlled
substances offenses, individuals were either disqualified or permitted to have up to two
convictions depending on whether the crime was a misdemeanor or a felony or if it was
committed more than five or more than ten years ago. See Mot. for Cert., Ex. 6 [Dkt. 124-2]
.
Starting in late 2009, WMATA’s Director of Human Resources, Dr. Amy
Celeste-Quillen, began
to develop a policy that used criminal background checks to screen applicants for
employment. Cert. Opp. at 12-13.
Policy 7.2.3 was adopted in December 2011 and took effect on February 23,
2012. Mot. for Cert., Ex. 2, Policy 7.2.3 [Dkt. 124-2] at WMATA0002227. Policy 7.2.3 first
applied only to WMATA candidates for employment (those to whom a conditional offer of
employment had been extended, pending screening) and WMATA badge contractor candidates
4
access to the general public”; (2) they are “under consideration for return to duty” after a “non-
work status for a period of 90 calendar days or longer”; or (3) “reasonable suspicion exists”
about information which “could impact the employee from performing the duties of the current
position held.” Id. at WMATA0002227-28, WMATA0002232-33.
Section 5.03 of Policy 7.2.3 further outlines “[c]ircumstances that can result in the
initiation of a reasonable suspicion screening,” including but not limited to:
(1) Sources of information that can be corroborated that an
employee has engaged in conduct that is inconsistent with Metro
regulations and/or has been arrested and/or convicted of a crime, i.e.,
information received from two or more independent sources,
testimony, eyewitness statements (oral/written), videotape
evidence, and/or protected disclosures;
(2) Information that has been independently discovered during the
course of an internal or external investigation that suggests an
employee has engaged in misconduct that is inconsistent with Metro
regulations and/or has been arrested or convicted of a crime;
(3) Disclosure and disposition of an arrest and/or conviction by an
employee to management to verify/validate the information
supplied by the employee; and/or
(4) For positions that require a valid commercial or operator’s
driving license, information that can be corroborated that an
employee has been charged with driving infractions that can result
or has resulted in revocation or suspension of licensure.
Id. at WMATA0002232-33.
The background screening includes information on an individual’s arrests, credit
report, criminal convictions, driving record, education, employment, and professional licenses
and certificates. Id. at WMATA0002228. From the beginning, Policy 7.2.3 has included three
appendices tied to different categories of jobs: (1) jobs requiring unrestricted access to the
general public; (2) fiduciary positions; and (3) all other positions. Id. at WMATA0002229.
Each appendix lists a number of criminal offenses and whether a felony or misdemeanor
6
conviction on a particular offense is permanently disqualifying or, in some instances, one
conviction in that category is permissible in the last five or ten years. See, e.g., id. at
WMATA0002235.
Appendix A covers positions requiring access to the general public and lists
disqualifying offenses as those crimes against persons and property, sex crimes, controlled
substances offenses, societal offenses, and traffic offenses, including “Criminal Mischief.” Id.
The traffic offenses are only “[a]pplicable to positions that require [a] valid . . . [l]icense.” Id. A
felony or misdemeanor conviction of “Kidnapping/Abduction/Unlawful Restraint” will
permanently disqualify an applicant. However, while a felony conviction of “Possession of
Controlled/Illegal Substances” is permanently disqualifying, one misdemeanor conviction in the
last five years is permitted. Id. A majority of the listed offenses are permanently disqualifying.
Id.
Appendix B covers fiduciary positions and includes all the offenses listed in
Appendix A except “Criminal Mischief”; it also adds financial crimes. Id. at WMATA0002236.
A larger number of offenses are permanently disqualifying in Appendix B and a single
conviction most often must be older than in Appendix A to permit hire. Id. For example, an
applicant can only have one misdemeanor conviction of “Possession of Controlled/Illegal
Substances” in the last ten years to be eligible for a fiduciary position, rather than five years for
public access positions. Id.
Appendix C covers all other positions, except MetroAccess, which could include
landscapers as well as metro-track repair persons. Id. at WMATA0002238. Appendix C
includes all the offenses listed in Appendix A, except “Criminal Mischief.” Id. at
WMATA0002238. Fewer offenses in Appendix C are permanently disqualifying than in
7
Appendix A or B, and where a single conviction is permitted, the time period being reviewed is
often shorter than in Appendix A. Id. For example, neither a felony nor a misdemeanor
conviction for “Possession of Controlled/Illegal Substances” is permanently disqualifying in
Appendix C; and it is not disqualifying to have one felony conviction in the last ten years and
one misdemeanor conviction in the last five years. Id.
Policy 7.2.3 was extended to MetroAccess on January 1, 2013 with the addition of
Appendix F. See Cert. Opp., Ex. 2, Revised Policy 7.2.3 [Dkt. 137-2] at WMATA0002429.
Appendix F includes all of the same offenses listed in Appendix B, but adds “Criminal
Mischief.” Id. Generally, Appendix F has fewer permanently disqualifying offenses and the
time period for which a single conviction is permitted is often shorter than in the other
Appendices.
Applicants for positions with WMATA and badge contractors undergo initial
screening and interviews. Applicants become “candidates” after completing the pre-employment
phase, including the “pre-employment assessment and testing, interview and [] receiv[ing] a
contingent offer of employment.” Candidates’ names are forwarded to
First Choice Background Screening (First Choice), an outside contractor, to conduct the
background check as required by Policy 7.2.3. If First Choice locates a disqualifying
conviction, it mails a letter to the candidate explaining the results and stating that s/he has ten
days to dispute the results. After ten days without a response from the candidate, First Choice
sends a letter rescinding the contingent offer of employment. If a candidate
responds to First Choice in a timely manner, s/he may only contest the accuracy of the
background check. A candidate may not ask WMATA to make an exception to Policy 7.2.3.
8
MetroAccess candidates follow the same process as WMATA and badge
contractors, except for two unique characteristics. First, MetroAccess candidates undergo a
criminal background check and a driving record
check if applicable, prior to having their names sent to First Choice. Mot. for Cert., Ex. 17,
. Second, MetroAccess candidates have a more
formal process to appeal the First Choice results directly to a board of WMATA officials.
However the
appeal is still limited to whether the conviction is disqualifying, not whether Policy 7.2.3 should
be applied.
Plaintiffs claim that Policy 7.2.3 is “overly broad and unnecessarily restrictive
because it excludes workers on the basis of convictions that are irrelevant to any fair
determination of employee honesty, reliability, or safety.” Second Amended Complaint [Dkt.
117-1] ¶ 108 (SAC). Specifically, Plaintiffs criticize the portions of Policy 7.2.3 that treat a
single conviction from particular categories of crimes as disqualifying, no matter how old.
Plaintiffs argue that WMATA’s failure to connect Policy 7.2.3 to the
requirements of its positions has caused a discriminatory impact. Plaintiffs point to a Guidance
from the EEOC on the Consideration of Arrest and Conviction Records in Employment
Decisions, as amended on April 25, 2012. See Mot. for Cert, Ex. 37, EEOC Guidance [Dkt. 124-
4]. The Guidance recommends that employers using a criminal background check policy should
consider three factors: (1) the nature and gravity of the offense; (2) the time since the conviction
and/or completion of a sentence; and (3) the nature of the job sought. Id. at 11. The Guidance
also recommends an individualized assessment that allows an applicant to explain the
9
circumstances of a prior offense and to argue that it should not result in a refusal to hire. Id. at
18. Plaintiffs argue that Policy 7.2.3 does not permit individualized assessment and prohibits
any explanation or argument from the candidate about the circumstances of an offense. First
Choice has no discretion in applying Policy 7.2.3 and candidates have no opportunity to appeal
other than to argue that the background check contains inaccurate information.
As a result of these features, Plaintiffs argue that Policy 7.2.3 has a disparate
impact on African-American candidates. 2 Drs. Farber and Siskin, two of Plaintiffs’ experts,
have opined that for each category of candidates (WMATA, badge contractors, and
MetroAccess), African Americans failed the criminal background check of Policy 7.2.3 at a
higher rate than whites and non-African Americans. Plaintiffs argue that the impact is a product
of the racial disparities in criminal charges and convictions between African Americans and
individuals of other races in the criminal justice system.
Plaintiffs’ proposed class definition would include “all African-American persons
(excluding persons directly employed and subsequently terminated by WMATA) who, since
February 23, 2012, have been terminated or otherwise permanently separated from their
positions, suspended with or without pay, and/or denied employment with WMATA or any third
party contractor or subcontractor as a result of WMATA’s Criminal Background Check Policy.”
SAC ¶ 40. The proposed class is also divided into three “subclasses” as follows:
WMATA Candidate Subclass: All African-American persons
who, since February 23, 2012, have been suspended with or without
2
For the sake of clarity the Court will refer to all members of the proposed class as candidates,
although the Court recognizes that proposed class members include African-American
candidates of WMATA, its contractors and subcontractors, and current employees of WMATA’s
contractors and subcontractors.
10
pay, and/or denied employment with WMATA as a result of
WMATA’s Criminal Background Check Policy.
MetroAccess Contractor Applicant Subclass: All African-
American persons who, since January 1, 2013, have been terminated
or otherwise permanently separated from their positions, suspended
with or without pay, denied the ability to work under a WMATA
contract, and/or denied employment with any MetroAccess
contractor as a result of WMATA’s Criminal Background Check
Policy.
Badge Contractor Subclass: All African-American persons who,
since February 23, 2012, have been terminated or otherwise
permanently separated from their positions, suspended with or
without pay, denied a contractor badge necessary to access
WMATA property, denied the ability to work under a WMATA
contract, denied the ability to work at or on WMATA property,
and/or denied employment with a Badge Contractor as a result of
WMATA’s Criminal Background Check Policy.
Id. ¶ 41.
Plaintiffs identify ten potential named Plaintiffs to represent the proposed classes,
see id. ¶¶ 20, 53-107, but do not indicate which proposed subclass each named Plaintiff would
represent. Plaintiffs make the following allegations regarding the named Plaintiffs:
Sidney Davis “is a 69-year-old African-American man who is
currently employed as a bus operator by WMATA.” Id ¶ 93. Mr.
Davis fears termination if he “takes leave for more than ninety (90)
days” because WMATA may use that leave to subject him to Policy
7.2.3, which would disqualify him for the bus operator position due
to a 1972 conviction, which was disclosed to WMATA when he was
initially hired in 2003. Id. ¶¶ 94-95, 97, 99.
Erick Little “is a 47-year-old African-American man” who
“received a contingent offer of employment for a position as a Bus
Operator with WMATA,” which “was rescinded three weeks later
due to the results of his criminal background check.” Id. ¶¶ 53-54.
Timothy McClough “is a 57-year-old African-American man” who
was terminated from his badge contractor position with a WMATA
landscaper “based on a 22-year-old drug-related conviction, despite
11
his successful work as a landscaper and custodian for WMATA for
over six years prior to his firing.” Id. ¶ 63.
Leon McKenzie “is a 52-year-old African-American man” who was
“disqualified for a job as a bus driver at WMATA based on a drug-
related conviction from 1995.” Id. ¶ 80.
Louia McKenzie “is a 47-year-old African-American man” who was
“denied a position as a MetroAccess operator at First Transit . . .
based on convictions more than 20 years old.” Id. ¶ 87. Mr.
McKenzie had previously been employed by MV Transportation, an
earlier WMATA contractor, but was released when that contractor
lost its contract with WMATA. Id. ¶ 88.
Leroy Quarles “is a 53-year-old African-American man” who was
“fired from his job at Diamond[, a MetroAccess contractor,] as a
WMATA MetroAccess driver/operator based on a 25-year-old
conviction for assault and robbery . . . , despite his successful work
at MetroAccess for over three years prior to his firing.” Id. ¶ 70.
Diamond attempted to appeal the application of Policy 7.2.3 to Mr.
Quarles, but was ultimately unsuccessful and Mr. Quarles was
terminated. Id. ¶ 73.
Fitzgerald Stoney “is a 62-year-old African-American man” who
was “denied a job as a mechanic technician for a WMATA
contractor based on convictions that are decades old.” Id. ¶ 75.
Gerald Tucker “is a 35-year-old African-American man” who was
“denied reinstatement by WMATA for his job as a train operator
based on a nine-year-old misdemeanor weapons charge . . . , despite
his successful work as a WMATA bus and train operator for over
five years prior to the denial of reinstatement.” Id. ¶ 66.
Marcello Virgil “is a 45-year-old African-American man” who was
“fired from his job as a custodian with a WMATA contractor based
on a drug-related conviction that was 15 years old, even though he
disclosed the conviction before he started work.” Id. ¶ 100.
Lawrence Whitted “is a 58-year-old African-American man” who
was terminated from his position with “Diamond as a WMATA
MetroAccess driver/operator based on a 24-year-old drug-related
12
conviction, despite his successful work at MetroAccess for over five
years prior to his firing.” Id. ¶ 59.3
Based on these allegations, the Court notes which Appendix likely applied to each
proposed class representative, to the extent it is evident. Messrs. Little, Tucker, Leon McKenzie,
Davis, and Virgil allege they applied for and were not hired for positions covered by Appendix
A, that is, positions with access to the general public. Messrs. Stoney and McClough appear to
have either applied and not been hired for, or fired from, a position covered by Appendix C, that
is, a position without access to the general public or involving fiduciary/financial responsibilities.
Messrs.Whitted, Leroy Quarles, and McKenzie allege they applied and were not hired for
positions with MetroAccess contractors covered by Appendix F.
II. LEGAL STANDARD
A. Admissibility of Experts
Federal Rule of Evidence 701 governs opinion testimony by lay witnesses, who
may testify only as to opinions that are “(a) rationally based on the witness’s perception; (b)
helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701. However, expert witnesses testify based on specialized knowledge and can
express opinions. As Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue;
3
The Court notes Plaintiffs’ Second Amended Complaint removed Messrs. Davis and Whitted as
class representatives, but due to the redefinition of the classes as certified Messrs. Davis and
Whitted will remain pending a revised motion to amend.
13
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
The Court serves as a gatekeeper for expert testimony. Rule 702 imposes a
“special obligation upon a trial judge” to ensure that expert testimony is not only relevant, but
reliable. Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The presumption is that
expert testimony is admissible, so that once a proponent has made the requisite threshold
showing, further disputes go to weight, not admissibility. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 588 (1993). “Under Daubert, the district court is required to address two
questions, first whether the expert’s testimony is based on ‘scientific knowledge,’ and second,
whether the testimony ‘will assist the trier of fact to understand or determine a fact in issue.’”
Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1126 (D.C. Cir. 2001) (citing Daubert, 509 U.S. at
592). The first inquiry “demands a grounding in the methods and procedures of science, rather
than subjective belief or unsupported speculation.” Id. at 1127; see also Daubert, 509 U.S. at
592-93 (requiring a “preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue”). The second inquiry “goes primarily to relevance.”
Daubert, 509 U.S. at 591.
There are four factors that a court may consider in evaluating scientific validity
under Daubert:
(1) whether the theory or technique can be and has been tested;
14
(2) whether the theory or technique has been subjected to peer
review and publication;
(3) the method’s known or potential rate of error; and
(4) whether the theory or technique finds general acceptance in the
relevant scientific community.
Ambrosini v. Labarraque, 101 F.3d 129, 133-34 (D.C. Cir. 1996) (citing Daubert, 509 U.S. at
593-94). Ultimately, “the inquiry is a ‘flexible one’”; no one factor is dispositive, and the four-
factor list is not exhaustive. Id. (quoting Daubert, 509 U.S. at 593-95).
The Court has “latitude . . . to decide whether or when special briefing or other
proceedings are needed to investigate reliability.” Kumho Tire, 526 U.S. at 152. “District courts
are not required to hold a Daubert hearing before ruling on the admissibility of scientific
evidence.” In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1138-39 (9th Cir. 2002)
(citing United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000); accord Oddi v. Ford
Motor Co., 234 F.3d 136, 154 (3d Cir. 2000) (“[T]he district court already had before it the
depositions and affidavits of the plaintiff’s experts. Nothing more was required.”). “Thus, a trial
court properly may exercise its discretion to forego a formal pretrial hearing outside the presence
of the jury. . . . [W]here the dispute is easily resolved, no hearing, in limine or otherwise, should
be necessary.” 29 Wright & Miller, Federal Practice & Procedure: Evidence § 6266 (1st ed. &
Supp.). “However, one aspect of the necessary procedure is clear: the trial court should identify
for the record the factors bearing on reliability that it relied upon in reaching a determination.”
Id.
B. Class Certification
Federal Rule of Civil Procedure 23 governs class certification. A party seeking
class certification must first demonstrate that the class satisfies the requirements of Rule 23(a),
that:
15
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a). In addition to meeting the above requirements, a class must satisfy at least
one of the three subsections of Rule 23(b). Plaintiffs in this case seek certification under
subsections (b)(2) and (b)(3). Rule 23(b)(2) applies to cases where “the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.
Civ. P. 23(b)(2). Rule 23(b)(3) is satisfied when the proposed class demonstrates that “questions
of law or fact common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). When evaluating a proposed
class under (b)(3) a court must consider:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
To the extent individual determinations are necessary in a Title VII class action to
allow a defendant to present individual defenses or calculate individual damages, the court can
16
conduct individual Teamsters hearings after general liability has been established. See Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324 (1977). “When the plaintiff seeks individual relief
such as reinstatement or backpay after establishing . . . discrimination, ‘a district court must
usually conduct additional proceedings . . . to determine the scope of individual relief.’” Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 366 (2013) (quoting Teamsters, 431 U.S. at 361). The
Court may also “exercise its discretion under Rule 23(c)(4) to isolate the liability and injunctive
relief questions, certify a single class under Rule 23(b)(2) to address those issues, and leave
damages calculations for individualized hearings.” Houser v. Pritzker, 28 F. Supp. 3d 222, 241
(S.D.N.Y. 2014). Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or
maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4).
When evaluating a motion for class certification, a court should not consider the
underlying merits of the plaintiffs’ claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-
78 (1974) (when “determining the propriety of a class action, the question is not whether the
plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather
whether the requirements of Rule 23 are met”).
C. Leave to Amend a Complaint
Rule 15 of the Federal Rules of Civil Procedure governs the filing of amended
pleadings, such as a complaint, after a responsive pleading has been filed. See Answer [Dkt. 89].
As relevant here, it specifies that “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). The grant or denial of leave lies in the sound discretion of
the district court. See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). A court may
deny leave to amend with sufficient reason, such as futility of amendment, undue delay, bad
17
faith, dilatory motive, undue prejudice, or repeated failure to cure deficiencies by previous
amendments. See Foman v. Davis, 371 U.S. 178, 182 (1962).
III. ANALYSIS4
A. Admissibility of Expert Opinions
As is almost customary these days, all parties move to exclude the proposed
expert witnesses of the opponent. The Court will grant in part and deny in part WMATA’s
motion to exclude Dr. Farber; grant WMATA’s motion to exclude Dr. Bendick; grant in part and
deny in part Plaintiffs’ motions to exclude Dr. Stixrud’s initial report and declaration; and deny
WMATA’s motion to exclude Dr. Siskin’s report.
1. Dr. Henry Farber
“Disparate impact claims . . . ‘involve employment practices that are facially
neutral in their treatment of different groups but that in fact fall more harshly on one group than
another and cannot be justified by business necessity.’” Anderson v. Zubieta, 180 F.3d 329, 338
(D.C. Cir. 1999) (quoting Teamsters, 431 U.S. at 336). A plaintiff can establish disparate
treatment by offering “statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion of applicants for jobs or promotions because of
their membership in a protected group.” Watson v. Fort Worth Bank and Trust, 487 U.S. 977,
994 (1988). At this juncture, the Court analyzes Plaintiffs’ allegations and not WMATA’s
defenses or business justifications.
4
The Court has jurisdiction over Plaintiffs’ Title VII claims under 28 U.S.C. §§ 1331 and 1342
and 42 U.S.C. § 2000e-16(c) and supplemental jurisdiction over the DCHRA claims under 28
U.S.C. § 1367(a). Title VII is a law of the United States, which gives original jurisdiction to the
federal district courts. Venue is proper in this Court because the events took place in
Washington, D.C. and the WMATA Compact specifies the United States District Court for the
District of Columbia as the proper venue for litigation of disputes against WMATA. See
WMATA Compact, D.C. Code § 9-1107.01 (81).
18
Dr. Farber has been a Professor of Economics at Princeton University since 1991.
He received his Ph.D. in economics from Princeton University in 1977. His scholarship and
teaching focus on labor economics and econometrics. Dr. Farber has provided expert reports and
testified as an expert in a number of previous cases, including Title VII cases. See Mot. to
Exclude Farber, Ex. 1, Farber Rep. [Dkt. 138-1] ¶ 1.
Dr. Farber’s reports address his analysis of whether African Americans have been
disparately impacted by Policy 7.2.3. Dr. Farber conducted three separate analyses, using
overlapping data sets. First, Dr. Farber determined the difference in passage rates under Policy
7.2.3 between African Americans and other individuals,
See Mot. for Cert., Ex.1, [Dkt. 124-
1] ; Farber Rep. ¶¶ 17, 35-50. Secondly, Dr. Farber conducted the same
analysis using the data provided by WMATA
.5 See Farber Rep. ¶¶ 51-59. Finally, Dr. Farber used “a standard statistical procedure
known as a ‘probit analysis’ to predict the probabilities of each individual’s race based on
geographic location of residence and last name and then use[d] this information to estimate the
rates at which African Americans and members of the comparison groups failed the criminal
background check.” Id. ¶ 60.
5
Dr. Farber updated this analysis on two subsequent occasions as more data became available
from WMATA and its contractors. See Mot. to Exclude Farber, Ex. 2, Farber Rebuttal [Dkt.
138-1]; id., Ex. 3, Farber Supp. [Dkt. 138-1]. The Court notes that WMATA had and provided
race data on its candidates and employees and MetroAccess’s candidates and employees, but
does not have complete race data of badge contractors who are employed by
WMATA contractors.
19
WMATA moves to exclude Dr. Farber’s expert report, rebuttal report,
supplemental report, and testimony for the following reasons: (1) the report will not aid the trier
of fact as required by Rule 702(a); and (2) Dr. Farber’s opinions are not based on sufficient data
or accepted methods of determining the relevant issue as required by Rule 702(b), (c), and (d).6
See Mot. to Exclude Farber [Dkt. 138]. As support for its arguments, WMATA repeats points
, discussed below, which
challenges the validity of Dr. Farber’s analyses and reports.
Relevance. WMATA argues that Plaintiffs must challenge the usefulness or
impact of each individual conviction type evaluated by Policy 7.2.3. See Mot. to Exclude Farber
at 15-21. On this basis, it contends that Dr. Farber fails to satisfy the requirements of Rule
702(a) that the expert information be useful to the trier of fact. WMATA takes issue with
Plaintiffs’ attempt to construct classes based on the individual’s employer or by whom s/he
sought to be employed, arguing that the analysis should pertain to the disqualifying effect of each
type of conviction, and that each type of evaluated conviction comprises a separate class.7
Plaintiffs argue that Dr. Farber’s report is relevant and useful to the trier of fact’s determination
of disparate impact. Farber Opp. [Dkt. 161] at 29-30.
6
The Court notes that WMATA makes a number of other arguments, but they all go to the
weight that should be given Dr. Farber’s analysis and whether his opinions are ultimately
sufficient to prove a disparate impact. While these arguments may be useful on summary
judgment or at trial, they are not relevant to the relevance or reliability of Dr. Farber’s expert
testimony.
7
WMATA argues both that each conviction evaluated by Policy 7.2.3 should be considered
separately as to its impact and that a disparate impact study must also pertain separately to each
“position in question.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Mot. to Exclude Farber at 19-
20. However, the latter argument challenges the merits of Plaintiffs’ disparate impact claim and
the relative weight Dr. Farber’s analysis should be given by a fact finder, not whether it is
admissible.
20
The dispute is a question of relevance. Evidence is relevant if it has any tendency
to make the existence of a fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Fed. R. Evid. 401. Rule 702
specifies that if scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion
or otherwise. See Fed. R. Evid. 702. WMATA makes no argument about Dr. Farber’s expertise
or qualifications, but instead focuses on the relevance of his report, alleging that it interpreted an
incorrect aspect of the data, namely the employer—WMATA, MetroAccess, or badge
contractor—rather than the type of position and conviction considered.
The Court finds that whether Policy 7.2.3 had a disparate impact is a relevant
issue to the trier of fact but that Dr. Farber’s current analysis in its entirety lacks sufficient basis
to be admissible in determining that issue. Much of Dr. Farber’s analysis is focused on class
distinctions that will not be certified and is therefore irrelevant. However, Dr. Farber’s analysis
of MetroAccess is consistent with the classes defined and certified below and will be admitted.
The remainder of Dr. Farber’s analysis will be excluded as irrelevant to the classes as they are
certified by this Court.
Reliability. WMATA argues that Dr. Farber’s reports and testimony fail to satisfy
Rule 702(b), (c), and (d) because (1) Dr. Farber’s methodology of determining race has never
been used before in a Title VII case, even by Dr. Farber himself; and (2) Dr. Farber did not have
sufficient race data upon which to base his opinions, especially from badge contractors, and as a
result used improper aggregated data. Because the Court has already excluded all but Dr.
Farber’s analysis of MetroAccess candidates and employees, it need not address the issue of
21
reliability. WMATA’s challenges of reliability go only to Dr. Farber’s analysis of the badge
contractor proposed class, which will not be admitted.
The Court will admit Dr. Farber’s analysis of the MetroAccess class and exclude
all other analyses as irrelevant.
2. Dr. Marc Bendick, Jr.
WMATA moves to exclude the expert report of Dr. Marc Bendick, Jr. on the
grounds that it was not based on reliable principles or methods and required no scientific or
specialized knowledge to produce. Mot. to Exclude Bendick [Dkt. 132]. WMATA argues that
Dr. Bendick simply created an excel spreadsheet into which individual information from each
class member could be placed to determine individual damages and overall class-wide damages
could be determined by summing all individual determinations. Id. at 8-11. Because Dr.
Bendick’s expert report provides no method to calculate class-wide damages without first
making individual determinations, WMATA argues the report does not resolve a necessary issue
for class certification and should be excluded. Id. at 15-17.
Plaintiffs respond that Dr. Bendick’s report developed a proposed damages
methodology based on reliable labor economic principles, see Bendick Opp. [Dkt. 153] at 6-11,
and was focused on the feasibility of computing damages for the class, rather than the per person
computation, because, per Court order, damages discovery is scheduled to begin after a decision
on class certification. Id. at 11-12. Due to the Court’s order, Dr. Bendick focused his report on
determining the best way to calculate backpay and the potential sources which could be utilized
to determine damages for individuals where evidentiary support is lacking. See id.
As discussed below, the Court will not certify a Rule 23(b)(3) class for monetary
damages, but will instead conduct individual Teamsters hearings if the action proceeds past the
22
liability phase. Dr. Bendick’s report is, therefore, unnecessary at this stage in the litigation and
WMATA’s motion to exclude will be granted.
In addition, Dr. Bendick’s report fails to propose a method by which the Court or
a fact finder could determine class-wide damages without first computing the individual damages
of each class member and then engaging in basic math to add them up. In order to certify a class
under Rule 23(b)(3), Plaintiffs must present a reasonable theory for computing class-wide
damages. Plaintiffs disagree, citing Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045
(2016), and Coleman v. District of Columbia, 306 F.R.D. 68, 86-87 (D.D.C. 2015). Neither case
is helpful to Plaintiffs’ argument that a plan to merely add up individual damages to determine
class-wide damages is acceptable under Rule 23(b)(3). The Bouaphakeo Plaintiffs used
statistical sampling to extrapolate class-wide damages, rather than conducting individualized
damages calculations. See 136 S. Ct. at 1044-49. Plaintiffs here do not propose sampling.
The Coleman Plaintiffs used a common formula provided by D.C. law for use in
calculating class damages and the data existed in a common pool, making individual damages
determinations relatively simple. See 306 F.R.D. at 86-87. That would not be the case here.
Each successful class member would need to be evaluated independently to determine at a
minimum the position applied for, the date applied, the date denied the position, whether the
hiring entity had a reason (separate from Policy 7.2.3) for failing to hire the individual, the salary
for the position, the benefits, the retention rate, and whether the individual mitigated damages by
finding another job. Because WMATA required that all contractors and subcontractors also use
Policy 7.2.3, the data that may be necessary to calculate individual damages is not housed solely
with WMATA and individual class members. Each contractor and subcontractor may need to
23
provide information about its hiring process for class members and data to compute each
individual’s potential damages.
Because the Court will not certify a Rule 23(b)(3) class, Dr. Bendick’s
computation of damages is not relevant and will be excluded.
3. Dr. Jora Stixrud
Plaintiffs argue that the report and declaration of Dr. Jora Stixrud should be
excluded because she failed to present expert opinions that are supported by methods or
principles that can be tested. Rather, Plaintiffs argue, Dr. Stixrud merely critiqued Dr. Farber’s
report and reached blanket conclusions that his findings are inaccurate. Plaintiffs contend that
Dr. Stixrud cannot merely rely on her expertise and experience to opine that Dr. Farber’s
opinions are unreliable. See Mot. to Exclude Stixrud Rep. [Dkt. 135]. WMATA emphasizes that
Dr. Stixrud will be presented as a pure rebuttal expert and not a merits expert. Thus, Dr.
Stixrud’s role is to “poke holes,” not provide an alternative method to assess Policy 7.2.3. See
Stixrud Opp. [Dkt. 157]. WMATA contends that Dr. Stixrud properly relies on her expertise and
experience in her anticipated role, as she has explained in a declaration attached to WMATA’s
opposition. Plaintiffs also move to exclude Dr.
Stixrud’s declaration, citing the same deficiencies in support and evidence to justify her opinions
and lack of timely notice.8 Mot. to Exclude Stixrud Decl. [Dkt. 162]. WMATA responds that
8
Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert testimony and
requires disclosure either 90 days before trial or, if intended as rebuttal, 30 days after the other
party’s submission. Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2)(E) permits supplemental
disclosures when required under Rule 26(e). Fed. R. Civ. P. 26(a)(2)(E). Under Rule 26(e)
parties must supplement disclosures “in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect,” and specifically with respect to
experts, the duty to disclose extends to the expert’s report and deposition and must be made “by
the time the party’s pretrial disclosures” are due. Fed. R. Civ. P. Rule 26(e). Finally, Rule
37(c)(1) governs the remedy if an improper disclosure occurs, mandating the exclusion of the
24
Dr. Stixrud’s declaration offers no new conclusions, but instead reaffirms previously disclosed
opinions and offers additional support. Stixrud Decl. Opp. [Dkt. 175]. The Court will address
both motions together.
While it is not always necessary that an expert rely on scientific or technical
knowledge to be admissible and provide reliable and useful evidence to a trier of fact, a federal
court serves a “gatekeeping” function when reviewing reports and proposed testimony of non-
scientific experts. Kumho Tire, 526 U.S. at 141; see also Daubert, 509 U.S. 579. An expert
witness with experience relevant to a pertinent issue in a case may opine and testify about the
reliability of another expert’s report or testimony. See Kumho Tire, 526 U.S. at 156 (stating that
“no one denies that an expert might draw a conclusion from a set of observations based on
extensive and specialized experience”). However, the Advisory Committee Notes accompanying
the 2000 amendments of Federal Rule of Evidence 702, which deals with the admission of expert
testimony, explain that
If the witness is relying solely or primarily on experience, then the
witness must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion,
and how that experience is reliably applied to the facts. The trial
court’s gatekeeping function requires more than simply “taking the
expert’s word for it.” . . . The more subjective and controversial the
expert’s inquiry, the more likely the testimony should be excluded
as unreliable.
Advisory Committee Notes, 2000 Amendments, Fed. R. Evid. 702; see also Twin Cities Bakery
Workers Health & Welfare Fund v. Biovail Corp., No. 01-2197, 2005 WL 3675999, at *4
(D.D.C. Mar. 31, 2005), aff’d sub nom. Meijer, Inc. v. Biovail Corp., 533 F.3d 857 (D.C. Cir.
2008). The Ninth Circuit also recognized that a court must do more than “take the expert’s word
supplemental information “unless the failure was substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1).
25
for it.” See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995) (“We’ve
been presented with only the experts’ qualifications, their conclusions and their assurances of
reliability. Under Daubert, that’s not enough.”).
Taking both Dr. Stixrud’s initial report and declaration together, the Court finds
that Dr. Stixrud has the experience and qualifications necessary to critique Dr. Farber and
adequately explains the reasons behind her criticisms of Dr. Farber’s report. The Court also
finds that the delay in disclosing of Dr. Stixrud’s declaration was harmless. Plaintiffs will have
the opportunity during the merits phase to delve further into Dr. Stixrud’s critiques and evaluate
any additional support offered by the supplemental declaration.
Plaintiffs also specifically move to exclude all portions of Dr. Stixrud’s report
which render legal conclusions. Plaintiffs note two allegedly legal opinions in Dr. Stixrud’s
report: (1) the relevance of Dr. Farber’s report; and (2) the lack of foundation for Dr. Farber’s
opinions. Mot. to Exclude Stixrud at 2-3. WMATA argues that the “legal conclusions”
identified by Plaintiffs are not legal conclusions, but instead “opinions on the technical and
methodological flaws in Dr. Farber’s studies.” Stixrud Opp. at 13. It is well established that
experts may not express legal opinions or opinions about whether a legal standard has been
satisfied. See, e.g., Burkhart v. WMATA, 112 F.3d 1207, 1212 (D.C. Cir. 1997) (“Expert
testimony that consists of legal conclusions cannot properly assist the trier of fact in either
respect, and thus it is not otherwise admissible.”); United States ex rel. Mossey v. Pal–Tech, Inc.,
231 F. Supp. 2d 94, 98 (D.D.C. 2002) (“[E]xpert testimony consisting of legal conclusions will
not be permitted because such testimony merely states what result should be reached, thereby
improperly influencing the decisions of the trier of fact and impinging upon the responsibilities
of the court.”). An expert may, however, “give h[er] opinion as to facts that, if found, would
26
support a conclusion that the legal standard at issue” was or was not satisfied. Rothe Dev., Inc. v.
Dep’t of Def., 107 F. Supp. 3d 183, 200 (D.D.C. 2015).
The Court finds that Dr. Stixrud’s statements about the relevance of or foundation
for Dr. Farber’s opinions are not permissible expert opinions. Contrary to WMATA’s
arguments, those statements do not discuss the technical or methodological aspects of Dr.
Farber’s opinion, or give Dr. Stixrud’s opinion as to facts, but instead state her conclusions that a
legal standard is not met. Dr. Stixrud will not be permitted to advance legal conclusions or
opinions on the law at issue in this case. Any opinions or portions of Dr. Stixrud’s report or
declaration rendering a legal opinion will be stricken. The Court will grant in part and deny in
part Plaintiffs’ motions to exclude Dr. Stixrud’s initial report and declaration.
4. Dr. Bernard R. Siskin
WMATA moves to strike the report and testimony of Dr. Bernard R. Siskin as
untimely and improper rebuttal to WMATA’s expert, Dr. Jora Stixrud. WMATA argues that Dr.
Siskin presents “a new and alternative statistical methodology” and was only disclosed as an
expert on May 3, 2016, the same day Plaintiffs filed their Motion for Class Certification. Mot. to
Exclude Siskin [Dkt. 139] at 1. Dr. Siskin critiques Dr. Stixrud’s report and uses Bayesian
Improved Surname Geocoding (BISG) to estimate the number of African Americans in the
various data sets. He concludes that Policy 7.2.3 has a statistically significant disparate impact
on African-American candidates. See id., Ex. 1, Siskin Rep. [Dkt. 139-1] ¶¶ 5, 11-19. WMATA
argues that Dr. Siskin is not a rebuttal expert, but rather an expert in support of class certification
and should, therefore, have been disclosed much sooner. See Mot. to Exclude Siskin at 3-6.
Because Dr. Stixrud, WMATA’s expert, did not propose her own statistical model, WMATA
argues that Dr. Siskin’s new statistical model is not rebuttal to Dr. Stixrud but, rather, a rebuttal
27
to Plaintiffs’ own expert, Dr. Farber. Id. at 3-4. WMATA stresses that Dr. Stixrud is not a
merits expert. Therefore, a rebuttal expert focused on the merits is not proper rebuttal.9
Plaintiffs respond that Dr. Siskin’s report was timely and is proper rebuttal to Dr.
Stixrud because it refutes her statement that it is “impossible to draw meaningful conclusions,”
Stixrud Rep. at 7, on disparate impact from the data provided by WMATA and its contractors
and subcontractors. Siskin Opp. [Dkt. 160] at 7-11. Specifically, Plaintiffs argue that any
additional methodology which calculates disparate impact using the aforementioned data refutes
Dr. Stixrud’s conclusion that such activity is impossible. Id. at 8. Dr. Siskin uses an alternative
method to determine disparate impact and demonstrate the “possibility” of that type of analysis.
At the parties’ joint request, the Court extended the deadline for Motions for Class
Certification and replies to expert disclosures to May 3, 2016. See 4/28/2016 Minute Order.
Plaintiffs disclosed Dr. Siskin’s report on May 3, 2016. Expert rebuttal testimony “is intended
solely to contradict or rebut evidence on the same subject matter identified by another party.”
Fed. R. Civ. P. 26(a)(2)(D)(ii). Dr. Stixrud’s expert report contained no evidence or
methodology on the issue of disparate impact. Instead, as discussed above, Dr. Stixrud focused
on statements aimed at undermining Dr. Farber’s conclusions. Her expert report contained no
independent assessment of disparate impact and presented no alternative theory. Under a strict
construction of Rule 26(a)(2)(D)(ii) where an expert report contains no affirmative evidence, no
rebuttal may be permitted.
However, the D.C. Circuit has found that a district court has “broad discretion in
determining whether to admit or exclude expert testimony” and no per se rule exists that new
9
WMATA also requests the opportunity to depose and test Dr. Siskin’s theory and file a
supplemental motion to exclude based on Rule 702 and Daubert. Id. at 7-8.
28
expert testimony is inappropriate rebuttal testimony. United States v. Gatling, 96 F.3d 1511,
1523 (D.C. Cir. 1996). District courts routinely permit new experts for rebuttal purposes and
permit rebuttal experts to use new methodologies to rebut the opinions of the opposing expert.
See, e.g., South Carolina v. United States, No. 12-203, 2012 WL 11922224, at *2 (D.D.C. Aug.
15, 2012) (permitting the use of a new expert on rebuttal); Scott v. Chipotle Mexican Grill, Inc.,
315 F.R.D. 33 (S.D.N.Y. 2016) (permitting the use of a new expert and new methodology on
rebuttal); see also Siskin Opp. at 8 (collecting cases).
Although Dr. Siskin’s report does not meet the definition of rebuttal testimony,
the Court finds no harm or prejudice to its introduction at this stage in the litigation. WMATA
indicates that it would like the opportunity to depose Dr. Siskin and consider challenging the
admissibility of Dr. Siskin’s report under Rule 702 and Daubert. The Court agrees that if
Plaintiffs wish to rely on Dr. Siskin’s report in the merits phase of the case, they must identify
Dr. Siskin as a merits expert and allow for a deposition. The Court will, therefore, deny
WMATA’s motion to exclude Dr. Siskin’s report.
B. Class Certification
Rule 23 of the Federal Rules of Civil Procedure controls class certification.
Plaintiffs move for certification under Rule 23(a), (b)(2), and (b)(3) (or alternatively (c)(4)), and
request appointment of Plaintiffs’ counsel as class counsel under Rule 23(g).
Rule 23 provides that a class seeking certification must meet the four
requirements of subsection (a), as well as at least one of the requirements of subsection (b). Rule
23(a) requires a class to show sufficient numerosity, commonality, typicality, and adequacy of
the proposed class, as well as adequacy of the proposed class counsel. Fed. R. Civ. P. 23(a).
Plaintiffs move for a hybrid class under Rule 23(b)(2) and (b)(3). Rule 23(b)(2) requires
29
plaintiffs to show that “the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) requires a
showing that “questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). A
party satisfies (b)(3) by demonstrating that issues common to the class predominate over
individual issues and proceeding as a class will be both efficient and fair.
Plaintiffs contend that Policy 7.2.3 has been enforced by WMATA through a
centralized process that is uniformly and consistently applied to job candidates applying to
WMATA, its contractors, and MetroAccess. Plaintiffs further allege that Policy 7.2.3 “has an
unjustified discriminatory effect on African Americans . . . [that] raises a common, class-wide
question.” Mem. in Supp. of Mot. for Cert. [Dkt. 124-1] at 1. Plaintiffs seek a declaration that
Policy 7.2.3 has a disparate impact and an injunction preventing WMATA and its contractors
and subcontractors from applying Policy 7.2.3 further. Finally, Plaintiffs assert that individual
damages can be efficiently resolved on a class-wide basis as a hybrid class, see Eubanks v.
Billington, 110 F.3d 87, 96 (D.C. Cir. 1997), or through Teamsters hearings. See 431 U.S. at
360.
WMATA responds that the First Amended Complaint targets only criteria that:
(1) permanently disqualify for felony drug convictions for certain positions; (2) permanently
disqualify for misdemeanor or felony convictions for possession a weapon during the
commission of a crime for all job positions; (3) permanently disqualify for felony convictions for
certain violent crimes for all job positions; and (4) permanently disqualify for two misdemeanor
30
convictions in the last five years or two felony convictions in the last ten years for certain
property crimes for all positions. Cert. Opp. at 4 (citing FAC ¶ 11). WMATA argues that Policy
7.2.3 distinguishes among crimes and time periods to establish more than 150 criteria for
evaluation of criminal background, type of crime, and position sought.
Plaintiffs retort that Policy 7.2.3 is a single, uniform hiring policy or set of criteria
that WMATA and its badge contractors have applied to all candidates since February 23, 2012;
and MetroAccess has applied to all candidates since January 1, 2013.
Plaintiffs move for certification under a hybrid Rule 23(b)(2) and (b)(3) class,
seeking both injunctive and individual monetary damages for the alleged discriminatory policy.
Alternatively, if the Court determines monetary damages are not suitable for class-wide
determination, Plaintiffs propose certification under (b)(2) for liability and injunctive relief
determinations and the application of (c)(4) to allow the question of liability to be answered on a
class-wide basis, but individual Teamsters hearings on the damages owed to each specific class
member. The Court finds that certification is proper under Rule 23(b)(2) and (c)(4) and will
certify the three classes defined below for a determination of liability and injunctive relief under
(b)(2), but will withhold any individual damages determinations until Teamsters hearings.
1. Fed. R. Civ. P. 23(a)
a. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members
is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity does not “impose[] [an] absolute
limitation[],” but rather “requires examination of the specific facts of each case.” Gen. Tel. Co.
of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). It is generally accepted by courts in this
District that numerosity is satisfied and that joinder is impracticable where a proposed class has
at least forty members. See Cohen v. Chilcott, 522 F. Supp. 2d 105, 114 (D.D.C. 2007); Bynum
31
v. District of Columbia, 214 F.R.D. 27, 32-33 (D.D.C. 2003). Plaintiffs also need not provide the
exact number of potential class members to satisfy the requirement, but can provide an estimate
supported by a reasonable basis to believe it is accurate. Bynum, 214 F.R.D. at 32-33; Pigford v.
Glickman, 182 F.R.D. 341, 347-48 (D.D.C. 1998).
Plaintiffs state that the overall class includes over 1000 individuals; the WMATA
direct candidates subclass includes approximately 310 individuals; the badge contractor subclass
includes approximately 210 individuals; and the MetroAccess contractor subclass includes
approximately 535 individuals. WMATA does not dispute the numbers and makes no arguments
against numerosity in its opposition to class certification. The proposed class and subclasses
clearly contain sufficient numbers to make joinder impracticable and satisfy the numerosity
requirement of Rule 23(a)(1).10
b. Commonality
Rule 23(a)(2) requires that there be questions of law or fact common to the class.
Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff[s] to demonstrate that the class
members ‘have suffered the same injury.’” Wal-Mart, 564 U.S. at 349-50 (quoting Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Plaintiffs’ “claims must depend up on a common
contention . . . capable of classwide resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Id. at 350. “A plaintiff’s burden is to ‘bridge the gap’ between her individual claim and ‘the
existence of a class of persons who have suffered the same injury as that individual.’” Moore v.
Napolitano, 926 F. Supp. 2d 8, 29 (D.D.C. 2013) (quoting Falcon, 457 U.S. at 157).
10
Even as redefined, the Court finds numerosity of the three distinct classes.
32
In a Title VII case, a proposed class may have sufficient commonality if they
posit a systematic act or overarching process or procedure that is the cause of their harm, even if
the specific harm to each class member might be different, such as the specific position lost or
the amount of backpay owed. See Bynum, 214 F.R.D. at 33-34; see also Wal-Mart, 564 U.S. at
353 (finding “significant proof that an employer operated under a general policy of
discrimination conceivably could justify a class of both applicants and employees if the
discrimination manifested itself in hiring and promotion practices in the same general fashion”).
Commonality is established when “harm alleged by each class member was the result of the
same corporate-wide policies,” because a question common to all members will be whether that
policy was unlawful. DL v. District of Columbia, 713 F.3d 120, 127 (D.C. Cir. 2013).
Plaintiffs argue the proposed class meets the commonality standard because it
challenges a single, non-discretionary employment policy that was applied to all members of the
class. Despite the fact that Plaintiffs applied to work for WMATA directly or to work for
different MetroAccess and badge contractors that provide services to WMATA, they argue the
common question of discriminatory impact can be answered as to all class members because
Policy 7.2.3 was applied universally to all candidates. Specifically, WMATA mandated its use
for all WMATA employees and badge contractors when the Policy originally came into effect in
February 2012, and expanded it to MetroAccess on January 1, 2013. WMATA does not dispute
commonality.
As discussed above, Policy 7.2.3 contains separate Appendices indicating the
types and ages of convictions that prohibit an individual from gaining employment in a particular
job category. The Appendices cover positions that are public facing, involve financial work,
MetroAccess positions, and all other positions. All positions within WMATA and its contractors
33
and subcontractors are covered by Policy 7.2.3. Policy 7.2.3 is applied with no method to appeal
except for the inaccuracy of a report. There is no space for individual candidates to explain or
mitigate the findings in the Policy 7.2.3 background check; and contractors or subcontractors
may not override the results to hire a candidate to work on WMATA property.
The Court finds that the question of whether an Appendix from Policy 7.2.3 has
an unjustified disparate impact on African-American candidates for employment with WMATA
or its contractors is a common question, the answer to which will resolve a significant question
as to the entire class. The fact that candidates applied for positions with different contractors,
subcontractors, or WMATA directly does not affect the commonality of the question because
Policy 7.2.3 was mandated by WMATA for non-discretionary application to all hiring decisions.
The commonality requirement of Rule 23(a)(2) is, therefore, satisfied.
c. Typicality
Rule 23(a)(3) requires a finding that “the claims or defenses of the representative
parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The
typicality requirement aims at ensuring “‘that the class representatives have suffered injuries in
the same general fashion as absent class members.’” In re Vitamins Antitrust Litig., 209 F.R.D.
251, 260 (D.D.C. 2002) (quoting Thomas v. Albright, 139 F.3d 227, 228 (D.C. Cir. 1998)). The
typicality requirement is satisfied “‘if each class member’s claim arises from the same course of
events that led to the claims of the representative parties and each class member makes similar
legal arguments to prove the defendant’s liability.’” In re Lorazepam & Clorazepate Antitrust
Litig., 202 F.R.D. 12, 27 (D.D.C. 2001) (quoting Pigford, 182 F.R.D. at 349). “A plaintiff’s
claim is typical if it arises from the same event or practice or course of conduct that gives rise to
34
a claim of another class member’s where his or her claims are based on the same legal theory.”
Stewart v. Rubin, 948 F. Supp. 1077, 1088 (D.D.C. 1996), aff’d, 124 F.3d 1309 (D.C. Cir. 1997).
In employment discrimination class actions, typicality and commonality “tend to
merge.” Falcon, 457 U.S. at 157 n.13. “Both serve as guideposts for determining whether under
the particular circumstances maintenance of a class action is economical and whether the named
plaintiff’s claim and the class claims are so interrelated that the interests of the class members
will be fairly and adequately protected in their absence.” Id. Factual variations between the
claims of class representatives and the claims of other class members do not negate typicality.
See Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987) (noting that “typicality is not
destroyed merely by factual variations”).
Plaintiffs argue that typicality is satisfied because each class member’s claim
arises from the application of Policy 7.2.3 to his or her candidacy and subsequent denial of
employment. Additionally, each class member claims Policy 7.2.3 had a disparate impact due to
his/her race. WMATA argues typicality cannot be met because (1) some named plaintiffs were
disqualified from employment for legitimate, non-discriminatory reasons and (2) each named
plaintiff’s disqualification arose under a different screening criteria in Policy 7.2.3 and will
require individual evaluation to determine if the particular screening criteria at issue for each
plaintiff has a discriminatory impact.
Although WMATA argues it has person-specific legitimate non-discriminatory
defenses for its decisions not to hire, limited factual distinctions between class members does not
destroy typicality. Plaintiffs’ claims are typical if they arise from the same course of events—the
application of Policy 7.2.3—and class members make similar legal arguments—Policy 7.2.3 has
a disparate impact on African-American candidates. Clearly, Plaintiffs have done just that.
35
Defenses specific to individual plaintiffs will have “little if any relevance to the outcome” of the
overall, but not specific, “liability and injunctive relief phases” of this litigation. Houser, 28 F.
Supp. 3d at 248; see also Johnson v. District of Columbia, 248 F.R.D. 46, 53 (D.D.C. 2008)
(finding that typicality was satisfied because all class members were subject to blanket searches
prior to presentment, even though the “circumstances of the strip searches may have varied by
some degree”); Bynum, 214 F.R.D. at 35 (finding typicality was satisfied because all injuries of
all named plaintiffs arose from the same conduct, despite the fact that the injuries themselves
were not identical as the lengths of each individuals’ detention varied).
WMATA also argues that each prior conviction that First Choice screens for
constitutes a separate aspect of Policy 7.2.3 and must be assessed individually. Plaintiffs,
however, perceive Policy 7.2.3 as a single construct that applies to each class member,
suggesting that each class representative is “typical” of the rest of the class. Alternatively,
Plaintiffs suggest dividing the proposed class by the part of WMATA for which the individual
worked or applied: WMATA, badge contractors, or MetroAccess. While the Court does not
agree with WMATA that each conviction must be evaluated separately, it also does not agree
with Plaintiffs that Policy 7.2.3 applies in its entirety to each potential class member. Each
candidate or employee is subject to only one of the four Appendices included in Policy 7.2.3,
which are targeted at specific job categories.
Policy 7.2.3 is similar to the policies discussed in Frazier v. Consol. Rail Corp.,
No. 85-845, 1986 WL 11237 (D.D.C. July 31, 1986), and Houser v. Pritzker, 28 F. Supp. 3d 222
(S.D.N.Y. 2014), but not to the extreme argued by WMATA. Each applicant or employee of
WMATA is affected by the Appendix that pertains to the position they apply for, but not the
remaining Appendices. Also, as discussed above, while similar, the Appendices may cover
36
slightly different types of criminal convictions and be more or less accepting of the existence of
prior convictions in those categories. In order to represent a class containing all African-
American candidates under Policy 7.2.3 the class representatives must cover all the Appendices.
See Houser, 28 F. Supp. 3d at 247 (finding typicality because the class representatives included
at least one individual who was harmed by each aspect of the employment practice); Frazier,
1986 WL 11237 (finding lack of typicality because class representatives only challenged
particular aspects of the training program and approved of other aspects of the program that
would impact other putative class members but not themselves).
Class representatives’ claims are typical of the rest of the class if they address
each part of Policy 7.2.3. The Court finds, as alleged, Plaintiffs have identified class
representatives covering Appendices A, C, and F, but have failed to present a class representative
to cover Appendix B, related to financial positions. Therefore, the class representatives are
typical of other class members who were candidates for positions covered by Appendices A, C,
and F of Policy 7.2.3.
d. Adequacy
Rule 23(a)(4) requires a finding that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Two criteria for
determining the adequacy of representation are generally recognized: 1) the named
representative must not have antagonistic or conflicting interests with the unnamed members of
the class, and 2) the representative must appear able to vigorously prosecute the interests of the
class through qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575
(D.C. Cir. 1997).
Plaintiffs argue that the named plaintiffs are adequate because the named
plaintiffs are not antagonistic to the unnamed class members and are able to vigorously represent
37
the interests of the class. In fact, Plaintiffs note that named plaintiffs have been actively involved
in the litigation since the very beginning, answering discovery and appearing for depositions as
required. WMATA’s challenge to adequacy parallels its initial challenge to typicality, that some
named class members are “clear losers” because of legitimate, non-discriminatory defenses to
the failure to hire or because the named plaintiff failed to disclose prior convictions in the
Complaint itself. Cert. Opp. at 19-22.
In determining if a named representative is adequate, a court does not assess the
ultimate strength or weakness of an individual claim. “A plaintiff is not disqualified as class
representative simply because ‘he may fail to prove his case or [because] the defendant may have
good defenses.’” Houser, 28 F. Supp. 3d at 248 (quoting Robinson v. Sheriff of Cook Cnty., 167
F.3d 1155, 1158 (7th Cir. 1999)). The ultimate inability to maintain an individual claim for
damages due to a legitimate defense to that named plaintiff’s claim of discrimination does not
create a conflict of interest that destroys the adequacy of class representatives. The merits of an
individual’s claims will not cause the court to determine an individual is an inadequate
representative, as the merits are not at issue at the class certification stage. However, if it is clear
at the class certification stage that an individual has not suffered injury as a result of the alleged
discriminatory practice, that individual may be excluded as a named class representative. An
individual who did not suffer injury is “simply not eligible to represent a class of persons who
did allegedly suffer injury.” East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 404
(1977).
WMATA argues that Louia McKenzie and Leroy Quarles are inadequate named
plaintiffs because they lack standing, as they were not injured by the allegedly discriminatory
Policy 7.2.3, but rather were not hired due to false statements or failures to disclose convictions
38
on their applications, not the existence of the convictions themselves. Cert. Opp. at 19-21. The
injury-in-fact requirement of standing is met in a Title VII case when there is an adverse
employment action. See Douglas v. Donovan, 559 F.3d 549, 551-52 (D.C. Cir. 2009) (holding
that “[i]n order to present a viable claim of employment discrimination under Title VII, a
plaintiff must show he suffered an adverse employment action”); see also Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). Both Louia McKenzie and Leroy Quarles allege they were
not hired due to Policy 7.2.3, which is alleged to have a disparate impact on African-American
candidates. The merits of their allegations are not part of the analysis at the time of class
certification.
WMATA also argues that Mr. McClough and Mr. Little are inadequate class
representatives because the Second Amended Complaint does not accurately represent the
entirety of their criminal histories, therefore signifying that these class representatives lack the
necessary credibility to represent the class. Cert. Opp. at 21-22. WMATA offers no legal
support for its theory that failure to include all facts regarding the criminal history of proposed
class representatives harms the credibility of the individual representatives. Although it may
implicate a defense, these Plaintiffs’ alleged failures to list all past convictions in the Second
Amended Complaint does not immediately bear on the application of Policy 7.2.3 to them in this
context or render them unfit to represent the class. The named plaintiffs satisfy the adequacy
requirement of Rule 23.
Additionally, even if some class members cannot overcome WMATA’s defenses,
WMATA has not argued that it has a legitimate, non-discriminatory reason for failing to hire all
the named plaintiffs. Thus, even if some named plaintiffs are eventually excluded from relief,
others will remain. The Court also finds class counsel satisfies the adequacy requirement. As
39
noted by Plaintiff, Mem. in Supp. of Mot. for Cert. at 36, class counsel are experienced in class
actions and other complex litigation. WMATA does not question the adequacy of class counsel.
2. Fed. R. Civ. P. 23(b)(2)
In addition to satisfying the requirements of Rule 23(a), Plaintiffs must move for
certification under at least one subsection of Rule 23(b). Plaintiffs move for a hybrid Rule
23(b)(2) and (b)(3) class. A class action under Rule 23(b)(2) may be maintained if “the party
opposing the class has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the
injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be
enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-
Mart, 564 U.S. at 360. “‘[C]ivil rights cases against parties charged with unlawful, class-based
discrimination are prime examples’ of what (b)(2) is meant to capture.” Id. at 361 (quoting
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)).
First, Plaintiffs argue Policy 7.2.3 is generally applicable to the class because it
“applies to all candidates and employees,” of WMATA, badge contractors, and MetroAccess and
because it was designed to be comprehensive and non-discretionary in its application. Policy
7.2.3. at WMATA0002227. Plaintiffs also argue that “a single injunction or declaratory
judgment would provide relief to each member of the class” because the requested injunction
would prohibit WMATA from taking any further action under Policy 7.2.3, which would apply
equally to all members of the proposed class. Wal-Mart, 560 U.S. at 360.
WMATA again argues that Plaintiffs’ failure to identify which parts of Policy
7.2.3 produce a disparate impact, or failure to identify the “particular challenged employment
practice,” prohibits certification of the class under (b)(2). As the Court addressed above in the
40
discussion on typicality, Policy 7.2.3 can be understood as four separate practices, due to the four
Appendices. Because only one Appendix will apply to each putative class member, each
Appendix must be considered a separate employment practice. The Court, therefore, interprets
Plaintiffs’ challenge to Policy 7.2.3 in its entirety to be a challenge to each of the Appendices, as
to one of which it has no representative plaintiff.
WMATA also argues that Plaintiffs conceded in depositions that some criminal
convictions should be considered or are relevant to determinations of whether an individual is
suited for a position as a bus driver or a MetroAccess driver. Therefore, WMATA argues,
Plaintiffs have conceded that Policy 7.2.3 is, in some ways, properly tailored to exclude
individuals with specific, relevant convictions. Plaintiffs’ concessions do not concede the
justification of Policy 7.2.3 as a whole, but rather concede that it is not unreasonable to have
some criminal convictions used as disqualifying offenses for specific positions. Plaintiffs’
argument here, however, is that Policy 7.2.3 is a blanket-prohibition or restriction on numerous
types of convictions and is applied to all positions within WMATA and its contractors and
subcontractors.
The Court finds that Plaintiffs have identified three of the Appendices of Policy
7.2.3 as the “particular challenged employment practice” and have adequately demonstrated that
every putative class member will be affected by one of the three. Because no class
representative has been identified that was harmed by Appendix B, the Court will not certify a
class that falls under that Appendix. The Court also finds that an injunction applicable to the
entire class could be fashioned upon a finding of liability.
3. Fed. R. Civ. P. 23(b)(3)
To certify a class under Rule 23(b)(3) class, the Court must find that “the
questions of law or fact common to class members predominate over any questions affecting
41
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Among the factors the
Court should examine in making its determination are:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id. The requirements of (b)(3) are often divided into two categories, superiority and
predominance. The Court will examine these two requirements separately.
a. Superiority
The first requirement of Rule 23(b)(3) is superiority. Superiority is met when a
court determines that a class action is superior to other available means of adjudication. See Fed.
R. Civ. P. 23(b)(3). The superiority requirement ensures that resolution by class action will
“achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to
persons similarly situated, without sacrificing procedural fairness or bringing about other
undesirable results.” Amchem, 521 U.S. at 615.
Plaintiffs argue a class action is superior to individual actions due to the cost of
litigating a disparate impact case and the relatively low damages available to a single successful
litigant. Individual litigants often do not have the incentive to shoulder the burden of a complex
case, but when combined into a class, the risks can be shared. WMATA makes no challenge to
the question of superiority and this Court agrees. Title VII disparate impact cases often require
complicated and costly expert evidence and involve voluminous discovery. When a group of
42
individuals may be disparately affected by a single policy, resolving the question of liability on a
class-wide basis is the most efficient use of limited judicial resources and allows for consistent
findings for all similarly-situated individuals.
b. Predominance
The second requirement of Rule 23(b)(3) is that common issues predominate over
issues that only affect individual class members. Although common issues must predominate,
they need not be the dispositive issues of the litigation. See Vitamins, 209 F.R.D. at 262. In
order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the
issues in the class action that are subject to generalized proof, thus applicable to the class as a
whole, predominate over those issues that are subject only to individualized proof. See Amchem,
521 U.S. at 623. “There is no definitive test for determining whether common issues
predominate, however, in general, predominance is met ‘when there exists generalized evidence
which proves or disproves an element on a simultaneous, class-wide basis, since such proof
obviates the need to examine each class members’ individual position.’” Vitamins, 209 F.R.D. at
262 (citing In re Potash Antitrust Litig., 159 F.R.D. 682, 693 (D. Minn. 1995)). Rule 23(b)(3)’s
predominance requirement is “even more demanding than Rule 23(a).” Comcast Corp. v.
Behrend, 133 S. Ct. 1426, 1432 (2013).
Plaintiffs argue the common question of Policy 7.2.3’s disparate impact
predominates over any individual issues and present Dr. Marc Bendick’s methodology for
determining damages as a class-wide system for damages. WMATA argues that individual
damages questions will overwhelm the common issues, citing Comcast for the proposition that a
class must establish that “damages are capable of measurement on a classwide basis” in order to
satisfy the predominance requirement of Rule 23(b)(3). 131 S. Ct. at 1433. WMATA clarifies
that individual questions will include whether the hiring entity had a reason, separate from Policy
43
7.2.3, for failing to hire the individual class member, whether any additional steps were required
before the official offer of employment was extended, and whether the individual obtained
another position thereby mitigating the potential backpay damages, etc.
Dr. Bendick’s model, discussed above, does not provide a formulaic approach for
determining class-wide damages or provide a universal system of damages. Instead, Dr. Bendick
provides a formula to be used to calculate each individual class member’s damages and to sum
these findings for class damages. Plaintiffs have offered no way to avoid the need to evaluate
individual defenses for the failure to hire a candidate or calculate individual damages; nor can
they.
Although the D.C. Circuit has held that the necessity to determine individual
damages awards does not itself preclude certification under Rule 23(b)(3), this case involves
more than just the individual determination of damages. See McCarthy v. Kleindienst, 741 F.2d
1406, 1415 (D.C. Cir. 1984); Coleman, 306 F.R.D. at 85. After determining whether Policy
7.2.3 disparately impacted African-American candidates and evaluating WMATA’s business
justification for the use of Policy 7.2.3, the trier of fact must also determine, for each individual
class member, whether that class member was not hired or fired due to the Policy 7.2.3, or for
some other reason. WMATA has provided some facts to demonstrate that class representatives
may have lied on their applications, which could provide a legitimate, non-discriminatory reason
for failing to hire the individual. Therefore, it is not the individual calculation of damages that
destroys predominance, but the individual determinations of why a class member was not hired
by WMATA or a contractor that causes the Court to deny certification under (b)(3). Having
already found that a class is a superior method to resolve the issue of liability under (b)(2), the
Court will go no further.
44
While Plaintiffs fail to meet the predominance requirement of (b)(3) and,
therefore, will not be certified as a class for monetary damages, the question of liability can be
efficiently litigated on a class-wide basis under (b)(2).
There are many ways of dealing with possible individual damages
issues, if necessary, such as “(1) bifurcating liability and damage
trials with the same or different juries; (2) appointing a magistrate
judge or special master to preside over individual damages
proceedings; (3) decertifying the class after the liability trial and
providing notice to class members concerning how they may
proceed to prove damages; (4) creating subclasses; or (5) altering or
amending the class.”
Johnson, 248 F.R.D. at 57 (quoting Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th
Cir. 2004)).
Rule 23(c)(4) gives the Court discretion to certify a class as to particular issues
and resolve others on an individual basis, “so long [as] the proposed class satisfies the
requirements of Rule 23(a) and (b) with respect to liability.” Houser, 28 F. Supp. 3d at 253-54.
As discussed above, the proposed classes satisfy the requirements of 23(a) and (b) as to liability
and the availability of injunctive or other declaratory relief.
4. Fed. R. Civ. P. 23(g)
The Court finds Plaintiffs’ counsel have demonstrated experience in handling
class action claims, knowledge of the law at issue in this case, and diligence in pursuing the class
claims to this point. The Court found above that Plaintiffs’ counsel will fairly and adequately
represent the interests of the class and, therefore, the Court appoints Arnold & Porter LLP, the
NAACP Legal Defense & Education Fund, Inc., and the Washington Lawyers’ Committee for
Civil Rights as class counsel under Rule 23(g).
45
C. Leave to File Second Amended Complaint
Due to the Court’s decision to redefine and certify classes based on the
Appendices (and, therefore, the type of position applied for), rather than based on whether the
class member applied to WMATA, MetroAccess, or a badge contractor, Plaintiffs’ Motion for
Leave to File a Second Amended Complaint is moot. The Court will deny the motion without
prejudice and permit Plaintiffs to file a revised amended complaint, if they so choose, based on
the classes certified by the Court.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Leave to File a Second Amended
Complaint will be denied without prejudice as moot; WMATA’s Motion to Exclude Dr. Farber
will be granted in part and denied in part; WMATA’s Motion to Exclude Dr. Bendick will be
granted; Plaintiffs’ Motions to Exclude Dr. Stixrud’s Initial Report and Declaration will be
granted in part and denied in part; and WMATA’s Motion to Exclude Dr. Siskin will be denied.
Plaintiffs’ Motion for Class Certification will be granted in part and denied in
part. The Court will not certify a single, combined class at this time because the class
representatives do not appear to include individuals covered by each Appendix in Policy 7.2.3.
The Court will, however, certify the following three class specific to each Appendix with an
existing class representative:
Appendix A Class: All African-American persons who, since
February 23, 2012, have been denied employment with WMATA,
or terminated or otherwise permanently separated from their
positions, suspended with or without pay, and/or denied
employment with any third-party contractor or subcontractor as a
result of Appendix A.
Appendix C Class: All African-American persons who, since
February 23, 2012, have been denied employment with WMATA,
or terminated or otherwise permanently separated from their
positions, suspended with or without pay, and/or denied
46
employment with any third-party contractor or subcontractor as a
result of Appendix C.
Appendix F Class/MetroAccess Class: All African-American
persons who, since January 1, 2013, have been denied employment
with WMATA, or terminated or otherwise permanently separated
from their positions, suspended with or without pay, and/or denied
employment with any third-party contractor or subcontractor as a
result of Appendix F.
A memorializing Order accompanies this Opinion.
Date: March 31, 2017 /s/
ROSEMARY M. COLLYER
United States District Judge
47 | 01-03-2023 | 04-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/729575/ | 99 F.3d 1158
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Eugene REPCHAK, Petitioner,v.DEPARTMENT OF the ARMY, Respondent.
No. 96-3048.
United States Court of Appeals, Federal Circuit.
June 07, 1996.
VACATED.
ON MOTION
ORDER
1
Eugene Repchak moves for reconsideration of the court's March 29, 1996 order dismissing his petition for review for failure to file a brief. The Department of the Army does not oppose.
2
Repchak has now filed a corrected informal brief and the Department of the Army has filed a response brief.
3
Upon consideration thereof,
IT IS ORDERED THAT:
4
Repchak's motion is granted, the court's March 29, 1996 order is vacated, and the mandate is recalled. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2689932/ | [Cite as Scanlon v. Brunsman, 112 Ohio St. 3d 151, 2006-Ohio-6522.]
SCANLON, APPELLANT, v. BRUNSMAN, WARDEN, APPELLEE.
[Cite as Scanlon v. Brunsman, 112 Ohio St. 3d 151, 2006-Ohio-6522.]
Habeas corpus — Habeas corpus relief not proper when petitioner is not entitled
to immediate release from custody — Court of appeals’ denial of writ
affirmed.
(No. 2006-1482 ─ Submitted November 15, 2006 ─ Decided
December 27, 2006.)
APPEAL from the Court of Appeals for Ross County,
No. 06CA2902.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment dismissing a habeas corpus
petition.
{¶ 2} On May 30, 2006, appellant, Neil P. Scanlon, filed a petition in the
Court of Appeals for Ross County for a writ of habeas corpus to compel appellee,
Chillicothe Correctional Institution Warden Timothy Brunsman, to release him
from prison. Scanlon claimed that he was entitled to be released on August 23,
2006, instead of his scheduled release date of December 23, 2006. On June 29,
2006, which was before the release date that Scanlon claimed, the court of appeals
dismissed the petition.
{¶ 3} In this appeal as of right, Scanlon contends that the court of
appeals erred in dismissing his petition.
{¶ 4} In general, habeas corpus is proper in the criminal context only if
the petitioner is entitled to immediate release from prison or some other physical
confinement. Crase v. Bradshaw, 108 Ohio St. 3d 212, 2006-Ohio-663, 842
N.E.2d 513, ¶ 5; State ex rel. Smirnoff v. Greene (1998), 84 Ohio St. 3d 165, 167,
SUPREME COURT OF OHIO
702 N.E.2d 423. Because Scanlon claimed he was entitled to an earlier release
date but not to immediate release from prison, he did not state a viable habeas
corpus claim. See, e.g., Hanes v. Haviland (2001), 93 Ohio St. 3d 465, 466, 755
N.E.2d 898 (“At best, even if Hanes is entitled to good-time credit, he would have
been entitled to earlier consideration of release on parole rather than outright
release from prison. Because extraordinary relief in habeas corpus is restricted to
immediate release from confinement, the court of appeals properly dismissed the
petition”); State ex rel. Johnson v. Ohio Dept. of Rehab. and Corr. (2002), 95
Ohio St. 3d 70, 71, 765 N.E.2d 356. The contentions that Scanlon raises on appeal
do not alter this dispositive fact.
{¶ 5} Therefore, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL and LANZINGER, JJ., concur.
__________________
Neil P. Scanlon, pro se.
Jim Petro, Attorney General, and Jerri L. Fosnaught, Assistant Attorney
General, for appellee.
_____________________
2 | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/96280/ | 198 U.S. 100 (1905)
COVINGTON
v.
FIRST NATIONAL BANK OF COVINGTON.
FIRST NATIONAL BANK OF COVINGTON
v.
COVINGTON.
Nos. 113, 114.
Supreme Court of United States.
Argued January 5, 1905.
Decided April 17, 1905.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY.
*104 Mr. J.H. Hazelrigg, with whom Mr. F.J. Hanlon and Mr. Ira Julian were on the brief, for the City of Covington.
Mr. Shelley D. Rouse and Mr. Edmund F. Trabue, with whom Mr. James S. Pirtle, Mr. John C. Doolan and Mr. Attila Cox, Jr., were on the brief, for First National Bank.
*107 MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.
That the acceptance of the provisions of the so-called Hewitt law did not constitute an irrevocable contract, releasing the bank from taxes upon compliance with its terms, has been settled. Bank Tax Cases, 102 Kentucky, 174; Citizens' Savings Bank v. Owensboro, 173 U.S. 636. Reference is made to the various cases leading up to this result in Deposit Bank v. Frankfort, 191 U.S. 499, 508. We are, therefore, left upon this branch of the case to consider the effect of the judgment of the state court of Kentucky, set up in the complainant's bill as an adjudication of the rights of the parties and a final determination that the acceptance of the Hewitt law had the effect of a valid contract. When this case was before the Circuit Court for the second time, 129 Fed. Rep. 792, Judge Cochran, after an elaborate review of the Kentucky cases, reached the conclusion that as the taxes involved in the case in which the adjudication was had were for a different year than those involved in this suit, the former judgment did not have the effect of an estoppel between the parties, being only conclusive, under the Kentucky decisions, as to taxes in the years involved in the suit in which the judgment was rendered. We do not doubt that this is the settled law of the Supreme Court of Kentucky. Nor does it make any difference, in the view which that court takes of the matter, that the adjudication as to the right to collect the taxes involved the finding of an exemption by contract, which included not only the taxes for the years in suit, but all taxes which might be levied under the authority of the contract. The ground upon which the court based its decision with reference to the effect of such adjudication is stated in the case of City of Newport v. Commonwealth, 106 Kentucky, 434, 444, as follows:
"The only question remaining for decision is upon the plea of res judicata.
"The plea in this case avers that the subject matter of the *108 former suit was identical with that involved in this action, and that the facts were the same in both actions, except that the former action attempted to collect a tax for the year 1893, and the present action was attempting to collect a tax for the year 1894. . . .
"The authorities seem to hold that when a court of competent jurisdiction has, upon a proper issue, decided that a contract, out of which several distinct promises to pay money arose, has been adjudged invalid in a suit upon one of those promises, the judgment is an estoppel to a suit upon another promise founded on the same contract. But taxes do not arise out of contract. They are imposed in invitum. The taxpayer does not agree to pay, but is forced to pay; and the right to litigate the legality of a tax upon all grounds must, of necessity exist, regardless of former adjudications as to the validity of a different tax."
It is unnecessary to cite the cases; they will be found in Judge Cochran's opinion. It is sufficient to say that if this case had been decided in the state court in Kentucky the adjudication pleaded herein, not involving taxes for the same years as those now in controversy, would not avail as an estoppel between the parties. It is true that a different rule prevails in the courts of the United States. The reasons therefor were stated in an opinion by Mr. Justice White, speaking for the court, in the case of New Orleans v. Citizens' Bank, 167 U.S. 371, and in cases arising in a Federal jurisdiction the doctrine therein announced will doubtless be adhered to. The learned counsel for the plaintiff in error refer to the decision of this court in Deposit Bank v. Frankfort, 191 U.S. supra, as authority for the doctrine that where a contract right has been adjudicated which involves an exemption from all taxation such adjudication will conclude the parties as to the right to legally tax for other years, although the particular year was not directly involved in the suit in which the adjudication was made. But in that case the court was dealing with the effect to be given to a judgment of a Federal court in which such *109 contract right had been adjudicated, when the Federal judgment was set up in a state court; and in that case it was recognized, in the opinion of the court as well as in the dissenting opinion, that the courts of Kentucky, in giving effect to the judgments of their own courts, were guided by a different rule, and in that State an adjudication involving taxes for one year cannot be pleaded as an estoppel in suits involving taxes for other years. 191 U.S. 514, 524.
The case of Deposit Bank v. Frankfort was only concerned with the effect to be given to a Federal judgment adjudicating a contract right, when pleaded in a state court. We are now dealing with the weight to be attached to a state judgment when pleaded as res judicata in a Federal court. That was the very question decided by this court in the case of Union & Planters' Bank v. Memphis, 189 U.S. 71, wherein it was held that the Federal courts were not required to give to such judgments any greater force or effect than was awarded to them by the courts of the State where they were rendered. Upon this branch of the case the question then is, What effect is given in the courts of Kentucky to such pleas of estoppel? As we have seen, it is there settled that the judgment would not be effectual to protect the alleged contract rights of the complainant as to the taxes involved for years other than the one directly involved in the adjudication set up. We, therefore, find no error in the judgment of the Circuit Court refusing an injunction upon the ground of an estoppel by judgment.
As to the taxes for the years prior to the passage of the act of March 21, 1900, it is argued by the bank that to give this retroactive effect to the law will be to deprive it and its stockholders of their property without due process of law, and will be in violation of section 5219 of the Revised Statutes, prohibiting discrimination against national banks and their stockholders. The act of March 21, 1900, as stated in the preamble, was passed because of a decision of this court holding prior legislation of the State undertaking to tax the property of national banks unconstitutional. Owensboro National Bank v. *110 Owensboro, 173 U.S. 664. In the Owensboro case it was held that section 5219, Rev. Stat., was the measure of the power of the State to tax national banks, their property or franchises, which power was confined to the taxing of the stock in the name of the shareholders and the assessment of the real estate of the banks, and that taxation under the laws of the State of Kentucky upon the franchise of the bank was not within the purview of the authority conferred by the act of Congress, and was therefore illegal. Section 5219 of the Revised Statutes of the United States is as follows:
"SEC. 5219. Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within which the association is located; but the legislature of each State may determine and direct the manner and place of taxing all the shares of national banking associations located within the State, subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, and that the shares of any national banking association owned by non-residents of any State shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county, or municipal taxes, to the same extent, according to its value, as other real property is taxed."
Under the new taxing law, act of March 21, 1900, it is declared to be the purpose to require the bank to return the shares of stock for the years prior to 1900, and since the adoption of the revenue law of 1892, with the privileges and deductions stated in section 3 of the act. Notwithstanding the prior revenue law had been held invalid, and there was no statute specifically taxing these shares of national bank stock on the statute books of Kentucky, prior to the passage of the act of March 21, 1900, the Supreme Court of Kentucky, in the case of *111 Scobee v. Bean, 109 Kentucky, 526, has held that there was ample statute law in that State for the taxing of shares in national banks under the laws of that State providing for the taxation of real and personal property of every kind, and that the provision that the individual shareholder in a corporation shall not be required to list his property therein so long as the corporation pays the taxes on its property of every kind, impliedly requires the individual to list his shares and pay the tax in the absence of the return required by law of the corporation. In that case the court held that there was nothing in its decisions running counter to section 5219. These views were further enforced in Commonwealth v. Citizens' National Bank, 80 S.W. Rep. 158; Town of London v. Hope, 80 S.W. Rep. 817; Citizens' National Bank of Lebanon v. Commonwealth, 25 Ky. L.R. 2254. Following the state court in the interpretation of its own statutes, it may be said that, as to shareholders residing in Kentucky and over whom the State has jurisdiction, the Supreme Court of that State has construed its statutes as requiring shareholders in national banks for the years 1893 to 1900, inclusive, to return their shares for taxation; and if they did not make the return the duty was required of the corporation. In this view of the law it may be that, as to local shareholders, the act of March 21, 1900, as held by the Supreme Court of Kentucky, created no new right of taxation, but gave simply a new remedy, which by the law, is operative to enforce preexisting obligations. It may be admitted that section 5219 permits the State to require the bank to pay the tax for the shareholders. National Bank v. Commonwealth, 9 Wall. 353; Van Slyke v. Wisconsin, 154 U.S. 581; Aberdeen Bank v. Chehalis County, 166 U.S. 440.
But there is nothing in the general statutes of Kentucky before the act of March 21, 1900, specifically requiring national banks to return shares of stock in the corporation when such shares are held by persons domiciled beyond the State. The situs of shares of foreign-held stock in an incorporated company, in the absence of legislation imposing a duty upon the *112 company to return the stock within the State as the agent of the owner, is at the domicile of the owner. Cooley on Taxation, 16. It is true that the State may require its own corporations to return the foreign-held shares for the owner for the purposes of taxation. Corry v. The Mayor and Council of Baltimore, 196 U.S. 466. Section 5219, Rev. Stat., authorizes the State to tax all the shares of a national banking association, including those owned by non-residents, as well as those owned in the State, in the city or town where the bank is located, but this section does not itself impose the tax; it is authority for state legislation to thus tax national bank shareholders. And this statute is express authority to the State by appropriate legislation to make the bank the agent of the shareholders for the purpose of returning the shares and paying the taxes thereon.
In Commonwealth v. Citizens' National Bank, 80 S.W. Rep. 158, the Kentucky Court of Appeals seems to have held that a national bank might be required, under § 4241, Kentucky Statutes of 1903, to return the shares held in it for the years 1893 to 1900, inclusive, as omitted property. In that case it is said: "It was held under the previous statute that the shares of stock in national banks might be assessed to the shareholder by the assessor, and should be given in by the shareholder in the list of his personal property. Scobee v. Bean, 109 Kentucky, 526; S.C., 59 S.W. Rep. 860. The act of March 21, 1900, did not, therefore, make that taxable which was not taxable before, but simply provided another mode for the assessment of the shares of stock and the payment of the taxes. It was the duty of the assessor to make the assessment. It was also the duty of the president and cashier of the bank to list the shares of stock with the assessor; but when the assessment was not made the property was simply omitted from the tax list, and the sheriff is authorized by section 4241, Ky. Stat., 1903, to institute the proceeding to have any omitted property assessed." And the court further held the bank liable for the penalty imposed for not listing taxable property. The ground *113 upon which this judgment rests is that shareholders were bound to return the shares in the years from 1893 to 1900 under the then existing state law, and the act of 1900 made the bank the agent of the shareholders and did not require a new duty, but only imposed the duty upon the agent as a means of making effectual the former obligation of the shareholders. None of the Kentucky cases deals with the effect of the requirement under the act of 1900, that the bank return the shares of stock held by foreign stockholders, who clearly were not required under the previous laws of that State to return shares of stock when neither the shares nor the owners were within the State.
Section 5219 requires that a State in taxing national banks shall be subject to the restriction that the taxation shall not be at a greater rate than is assessed upon other capital in the hands of the individual citizen. Neither this section nor section 5210 of the Revised Statutes, requiring a list of the shareholders to be kept by the bank, has the effect to levy taxes. It is a limitation upon the right of the State, and the State must not discriminate against national banks by the use of methods of taxation differing from those in use in taxing other moneyed capital in the hands of individual citizens.
It is averred in the amended bill, and the answer having been stricken from the files and the case submitted upon the plea to the jurisdiction and general demurrer, it must be taken as true "that during said years [1893 to 1900] many of its shareholders were non-residents of the State of Kentucky, who, in many instances, have sold and transferred their shares of stock during said time."
The statutes of the State of Kentucky, which have been construed by the Supreme Court of that State in the cases cited, to require the payment of taxes by the shareholders or by the bank for its shareholders, can have reference only to shareholders within the jurisdiction of the State. Whether the system operates as a discrimination against national banks within the prohibition of section 5219, involving, as it does, a *114 right of Federal creation must be ultimately determined in this court. The act of March 21, 1900, imposes upon the bank a liability for taxes assessed upon its shareholders, whether within or without the State. This liability did not exist before the passage of the act, and in Commonwealth v. Citizens' National Bank, supra, the Court of Appeals of Kentucky held that the statutes of the State made the bank liable for a penalty of twenty per cent for the years 1893 to 1900, inclusive. It seems to us that to permit the statute to require the bank to return the shares of such foreign-held stock, and be subjected to a penalty in addition, is imposing upon national banks a burden not borne by other moneyed capital within the State. In support of the equivalency of taxation, which it is the purpose of section 5219 to require, this court said, in Owensboro National Bank v. Owensboro, 173 U.S. 664, 676: "The alleged equivalency, in order to be of any cogency, must of necessity contain two distinct and essential elements equivalency in law and equivalency in fact."
Without considering the question of constitutional power to tax non-resident shareholders by means of this retroactive law, it seems to us that in imposing upon the bank the liability for the past years, for taxes and penalty, upon stock held without the State, and which before the taking effect of the act under consideration it was not required to return, there has been imposed upon national banks in this retroactive feature of the law a burden not borne by other moneyed capital in the State. This law makes a bank liable for taxes upon property beyond the jurisdiction of the State, not required to be returned by the bank as agent for the shareholders, by a statute passed in pursuance of the authority delegated in § 5219, thus imposing a burden not borne by other moneyed capital within the State.
We think the Circuit Court was right in that part of the decree which enjoined the collection of taxes against the bank for the years 1893 to 1900, inclusive.
As to the alleged discrimination against shareholders in *115 national banks because the assessment of the property of state banks is upon the franchise and not upon the shares of stock. there is nothing in the bill to show that this difference in method operates to discriminate against national bank shareholders by assessing their property at higher rates than are imposed upon capital invested in state banks. And as to the deduction of the value of real estate and other deductions allowed to state banks, the Supreme Court of Kentucky has held that all deductions allowed to state banks must be allowed in like manner in assessing the property of shareholders in national banks. Commonwealth v. Citizens' Bank, 80 S.W. Rep. 158. Nor does the allegation that in cities of the first, second and third class state banks are assessed upon their shares for city taxation, but upon their franchises and property for state and county taxation, in the absence of averments of fact showing that thereby a heavier burden of taxation is imposed upon national than state banks in such cities, warrant judicial interference for the protection of shareholders in national banks. Davenport Bank v. Davenport Board of Equalization, 123 U.S. 83.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/108777/ | 411 U.S. 618 (1973)
GACA
v.
UNITED STATES.
No. 72-6011.
Supreme Court of United States.
Decided May 7, 1973.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
PER CURIAM.
Petitioner was convicted in United States District Court of illegal wiretapping under 18 U.S. C. § 2511. His appeal was dismissed for want of timely prosecution when he failed to pay a $25 filing fee. Petitioner contends that he thought payment of the fee unnecessary because he had been granted leave to appeal in forma pauperis by the District Judge.
In his memorandum before this Court, the Solicitor General states that the United States does not oppose a remand to reinstate the appeal in the exercise of this Court's supervisory powers in order to avoid possible injustice and the possibility of collateral attack upon the conviction. In light of this representation, and upon our independent examination of the record, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted and the case is vacated and remanded with instructions that the appeal be reinstated.
It is so ordered.
MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST dissent. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2043540/ | 758 N.W.2d 926 (2008)
STATE
v.
LEE.
No. 2007AP1636-CR.
Supreme Court of Wisconsin.
October 15, 2008.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2346018/ | 207 F. Supp. 2d 459 (2002)
AMERICA ONLINE, INC., Plaintiff,
v.
ST. PAUL MERCURY INSURANCE CO., Defendant.
No. Civ.A. 01-1636-A.
United States District Court, E.D. Virginia, Alexandria Division.
June 20, 2002.
*460 *461 John F. Anderson, Richards McGettingan Reilly & West, Alexandria, Virginia, for plaintiff.
Mark A. Miller, Baker Botts, Washington, D.C., for defendant.
MEMORANDUM OPINION AND ORDER
LEE, District Judge.
This matter is before the Court on Plaintiff America Online Inc.'s ("AOL") Motion for Partial Summary Judgment on Count One of its First Amended Complaint against Defendant St. Paul Mercury Insurance Company ("St.Paul"). AOL is an Internet Service Provider who provides Internet access to its customers through access software. AOL was sued by various customers alleging that Version 5.0 of AOL's Internet access software ("AOL 5.0") damaged their computers. AOL now seeks St. Paul to defend AOL against these claims under the commercial general liability policy between the two parties. The issue presented is whether St. Paul has a duty to defend AOL under the parties' insurance policy against complaints alleging AOL 5.0 caused physical damage to, and loss of use of, customers' tangible property in the form of computers, computer data, software and systems.
For the reasons stated below, the Court holds that St. Paul does not have an obligation to defend AOL against the legal claims arising from AOL 5.0. An insurance policy is a contract, and like any *462 other contract the Court is bound by the plain terms of the agreement and cannot rewrite the policy to bind the parties to obligations they did not consent to. If there is any ambiguity in the terms to be interpreted, Virginia law instructs that ambiguity to be construed against the insurer. An insurer's duty to defend attaches whenever a complaint alleges claims that if proven would fall within the risk covered by the policy.
Applying these standards, the allegations in the underlying complaint are not covered by the policy between AOL and St. Paul. First, the Court holds that computer data, software and systems are not "tangible" property in the common sense understanding of the word. The plain and ordinary meaning of the term "tangible" is property that can be touched. Computer data, software and systems are incapable of perception by any of the senses and are therefore intangible. Accordingly, St. Paul has no duty to defend AOL against allegations in the underlying complaint alleging harm to consumers' computer data, software and systems. By the same token, the Court finds that the computer itself is tangible property because it is obviously a tactile, corporeal item. Because the claims in the underlying complaint allege the loss of use of consumers' computers, such claims are potentially covered by the parties' insurance policy.
However, the Court holds that the loss of use of consumers' computers is nonetheless excluded from coverage by the impaired policy exemption. The underlying complaint alleges that AOL 5.0 is a defective product that caused the loss of computer use by causing consumers' computers to "crash," rendering them inoperable. These claims are clearly barred by the impaired policy exclusion, which states that harm to property that is not physically damaged is excluded from coverage where it is caused by a faulty or dangerous product. Finally, the allegations of harm to consumers' computers run squarely into the common law economic loss rule. At bottom, the underlying complaint alleges that AOL 5.0 is a defective component incorporated into a larger product, the consumers' computers. Any damages stemming from the loss of computer use are purely economic, do not constitute harm to property other than the integrated product, and are thus not recoverable under any tort theory. Accordingly, St. Paul does not have a duty to defend under the parties' insurance policy and partial summary judgment in favor of AOL is DENIED.
I. BACKGROUND
Plaintiff AOL, a Virginia based corporation, produces and distributes software to be used by its members to access the Internet and other on-line services. In October 1998, AOL entered into an insurance contract with Defendant St. Paul. (Pl.'s Ex. 1, Excerpts from Technology Commercial General Liability Protection Policy ("Policy") at 2.) The Policy provides coverage to AOL for the period from April 1, 1999 through June 1, 2000.
A. The Terms of the Policy.
The Policy states in pertinent part that St. Paul will "pay amounts [AOL] is legally required to pay as damages for covered bodily injury, property damage, or premises damage that: happens while this agreement is in effect and is caused by an event." (Policy at 2.) Property damage is defined as "physical damage to tangible property of others, including all resulting loss of use of that property; or loss of use of tangible property of others that isn't physically damaged." (Id.) The Policy defines an "event" as "an accident, including continuous or repeated exposure to substantially *463 the same generic harmful conditions." (Id.) The Policy also states that "[St. Paul has a] duty to defend [AOL] against a claim or suit for injury or damage covered by this agreement. [St. Paul has such] duty even if all of the allegations of that claim or suit are groundless, false, or fraudulent." (Id. at 3.)
The Policy sets forth certain events that are excluded from coverage. For instance, the Policy will not "cover bodily injury or property damage that's expected or intended by [AOL]." (Id. at 16.) St. Paul is also not obligated under the Policy to "cover property damage to impaired property, or to property which isn't physically damaged, that results from: [1] [AOL's] faulty or dangerous products or completed work; or [2] a delay or failure in fulfilling the terms of a contract or agreement." (Id.) "Impaired property" is defined as "tangible property, other than [AOL's] products or completed work, that can be restored to use by nothing more than: [1] an adjustment, repair, replacement, or removal of [AOL's] products or completed work which forms a part of it; or [2] [AOL] fulfilling the terms of a contract or agreement." (Id.)
B. The AOL 5.0 Lawsuits.
AOL released AOL 5.0 in October 1999. AOL 5.0 is essentially a software program consumers install on their computer to access the Internet through AOL's proprietary network. In January 2000, various class action lawsuits were filed against AOL alleging that installation and operation of AOL 5.0 was causing substantial damage to users' computer systems. Ten class action complaints were filed in various state courts and one in Canada. Approximately forty three complaints were consolidated in a multidistrict litigation ("MDL") proceeding in the United States District Court for the Southern District of Florida in June 2000. The MDL plaintiffs subsequently filed a consolidated complaint ("MDL Complaint") in that proceeding which lies at the heart of this action. (Pl.'s Ex. 2, In Re America Online, Inc., Version 5.0 Software Litigation, No. 00-1341-MD-GOLD, First Cons.& Am.Compl. (S.D.Fl. April 20, 2001) ("MDL Compl."))
The MDL Complaint generally alleges that "AOL 5.0 was deceptively marketed in that it was not `risk free,' `easy to use' and did not provide `superior benefits,' but could actually harm computers" by, inter alia, disrupting Internet and local area network connections, causing "material instability" and crashing computers, and corrupting computer systems and files. (MDL Compl. ¶¶ 3-4.) Specifically, the MDL Complaint alleges that AOL 5.0 caused:
(1) interference to users' host systems communications configurations and settings such as non-AOL communications software and online services the plaintiffs are using or might want to use in the future; (2) the inability of users to connect to other ISPs, competitors of AOL; (3) the inability to run non-AOL email programs, or connect to local networks; (4) the addition or alteration of hundreds of files on the users' system, including many essential components of the Windows operating system, which may cause the system to become unstable; and (5) the inability of users to remove the AOL 5.0 software, so as to restore their computer's communications configuration, so that other competitor online services could be used.
(Id. ¶ 61.) The MDL Complaint alleges that the installation of AOL 5.0 "is so large or invasive that thousands of Class members have publicly complained of resulting system application instability, loss of data, loss of work and resulting loss of use, time and money." (Id. ¶¶ 65, 101.) Further, *464 removal of AOL 5.0 "would be virtually impossible . . . without jeopardizing the operating system itself." (Id. ¶ 101.) As a result of AOL's conduct, the plaintiffs allege that their computers have suffered damage and an impairment to the integrity or availability of data, software programs, operating systems, and information contained in their computers. (Id. ¶¶ 101-102.) In addition, the MDL Complaint alleges that the plaintiffs lost the use of their computers and computer functionality after installing AOL Version 5.0. (See id. ¶¶ 11, 65, 67-70, 76, 99, 101, 102, 106.)
According to the MDL Complaint, AOL 5.0 was designed to change or reconfigure a users' computer systems. (Id. ¶¶ 43-48, 92, 98.) The MDL Complaint alleges that faced with increasing competition "AOL looked to a new software release5.0as a tool to unlawfully maintain and/or increase its market share." (Id. ¶ 42.) Part of the overall strategy, plaintiffs allege, was to "lock in" AOL subscribers by designing 5.0 with certain exit barriers. (Id. ¶ 43.) To further that purpose, the MDL Complaint alleges that AOL supplied consumers with "software which, unknown to the consumer is designed to modify the user's computer's operating system in such a manner as to make it difficult thereafter to connect to the networks of competing ISPs." (Id. ¶ 48.)
The MDL Complaint asserts seven claims for relief: (1) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq.; (2) violation of various State Consumer Protection Acts; (3) injunctive relief to protect against Unfair Deceptive Acts and Practices and Consumer Fraud; (4) Product Liability for Defective Design; (5) Product Liability Failure to Warn; (6) Negligence; and (7) Negligent Misrepresentation. The plaintiffs sought compensatory damages, disgorgement of AOL's profits realized as a result of AOL 5.0, treble and punitive damages, and injunctive relief.
AOL requested St. Paul to provide defense coverage under the Policy. St. Paul refused, finding that the underlying action did not fall under the Policy. Consequently, AOL retained legal counsel to defend itself against the AOL 5.0 claims. AOL then filed a four count Complaint in this Court on October 26, 2001 against St. Paul. Count One alleges breach of contract, seeking a declaration that St. Paul is obligated to defend AOL and therefore pay defense costs with respect to all the underlying AOL Version 5.0 complaints, including the MDL Complaint. Count Two seeks compensatory damages for the same alleged breach. Count Three seeks a declaration that St. Paul is obligated to indemnify AOL, i.e., pay settlements and judgments arising from the underlying actions. Finally, Count Four seeks compensatory damages, including attorney's fees, for St. Paul's alleged bad faith breach of contract. Count Four was subsequently dismissed and AOL filed a First Amended Complaint limiting the claims to the first three Counts on March 15, 2002. AOL had previously filed a motion for partial summary judgment on Count One that is now before the Court.
II. DISCUSSION
A. Standard of Review.
When reviewing the evidence on summary judgment, the court must view the facts and inferences to be drawn in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Id. at 588, 106 S. Ct. 1348. Under Rule 56(c) of the Federal Rules of Civil *465 Procedure, a court should grant a motion for summary judgment when "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
B. Virginia Law and the Duty to Defend.
Virginia law treats an insurance policy as a contract that should be construed to give effect to the intent of the parties. See Salzi v. Virginia Farm Bureau Mutual Ins. Co., 263 Va. 52, 556 S.E.2d 758, 760 (2002) (citations omitted); Town Crier, Inc. v. Hume, 721 F. Supp. 99, 101 (E.D.Va.1989). "[A]s in the case of any other contract, the words are given their ordinary and customary meaning when they are susceptible of such construction." Salzi, 556 S.E.2d at 760; Combs v. Equitable Life Ins. Co. of Iowa, 120 F.2d 432, 436 (4th Cir.1941) ("Policies of insurance, as other contracts, should be construed according to the ordinary sense and meaning of the terms employed, and, if they are clear and unambiguous, their terms are to be taken in the plain, ordinary and popular sense.") (citations and internal quotes omitted).
When the terms are ambiguous, courts construe the language in favor of the insured and against the drafterthe insurer. Fuisz v. Selective Ins. Co. of Am., 61 F.3d 238, 242 (4th Cir.1995); Joseph Bornstein, Ltd. v. Nat'l Union Fire Ins. Co., 828 F.2d 242, 245 (4th Cir.1987) (same). Similarly, "exclusions from coverage are enforceable only when the exclusions `unambiguously bring the particular act or omission within its scope.'" Fuisz, 61 F.3d at 242 (quoting Floyd v. Northern Neck Ins. Co., 245 Va. 153, 427 S.E.2d 193, 196 (1993)). "Exclusionary language in an insurance policy is to be construed most strongly against the insurer, and the burden is upon the insurer to prove that an exclusion applies." Virginia Elec. and Power Co. v. Northbrook Prop. and Cas. Ins. Co., 475 S.E.2d 264 (1996) (citing Johnson v. Ins. Co. of N. Am., 232 Va. 340, 350 S.E.2d 616, 618 (1986)); Fuisz, 61 F.3d at 242 (citations omitted) (same).
Under Virginia law, the "obligation [of an insurer] to defend is broader than [the] obligation to pay, and arises whenever the complaint alleges facts and circumstances, some of which would, if proved, fall within the risk covered by the policy." Virginia Elec., 475 S.E.2d at 265 (quoting Lerner v. Gen. Ins. Co. of Am., 219 Va. 101, 245 S.E.2d 249, 251 (1978)). The duty to defend is broader than the obligation to indemnify in the sense that the insurer may have a duty to defend against a lawsuit notwithstanding that at the end of the day the insurer is not liable for indemnification. See Lerner, 245 S.E.2d at 252.
To determine whether an insurer has a duty to defend, the "eight corners rule" requires review of "(1) the policy language to ascertain the terms of the coverage and (2) the underlying complaint to determine whether any claims alleged therein are covered by the policy." Fuisz, 61 F.3d at 242 (citing Town Crier, 721 F. Supp. 99 at 103). The "eight corners rule" for determining the duty to defend is a combination of the Exclusive Pleading and Potentiality Rules. Town Crier, 721 F.Supp. at 102. Under the Exclusive Pleading Rule, "an insurer's duty to defend is determined solely by the allegations in the pleading." Id. The Potentiality Rule extends the Exclusive Pleading Rule to require the insurer to defend if there is the potential that the "claim, as stated in the pleadings, could be *466 covered by the policy." Id.[1] An insurer can avoid its obligation to defend the insured "[o]nly when it appears clearly [that the insurer] would not be liable under its contract for any judgment based upon the allegations." Parker v. Hartford Fire Ins. Co., 222 Va. 33, 278 S.E.2d 803, 805 (1981). Applying these standards, the Court holds that St. Paul does not have a duty to defend AOL under the Policy against the allegations in the underlying MDL Complaint.
C. Property Damage under the Policy and the MDL Complaint.
The Court initially turns to the question of whether the MDL Complaint alleges "physical damage" to "tangible property" as understood by the Policy. The Policy defines property damage as "physical damage to tangible property of others, including all resulting loss of use of that property; or loss of use of tangible property of others that isn't physically damaged." (Policy at 2.) The MDL Complaint alleges that AOL 5.0 damaged consumers' computers, damaged their software, damaged their data, damaged their computers' operating systems, and caused the loss of data and the loss of use of the computers. (See MDL Compl. ¶¶ 3, 4, 17, 61, 65, 68, 76, 96.)
1. Computer data is not tangible property.
The first issue presented is whether computer data, software and systems are tangible property. AOL contends that these items are tangible property because they are "capable of being realized." AOL points to several court rulings from various contexts where it claims courts have found such items to be tangible.[2] On the other hand, St. Paul argues that computer data and the like are not tangible property because they constitute property that one cannot touch. St. Paul represents that various courts have come to that conclusion.[3]
Because the Policy does not define tangible, the Court turns to the plain meaning of the word tangible. See Solers, Inc. v. Hartford Cas. Ins. Co., 146 *467 F.Supp.2d 785, 792 (E.D.Va.2001) (when a word is not defined in policy "[g]eneral rules of contract interpretation, and specifically insurance contractual interpretation, require that [word] be given its plain and ordinary meaning . . .") (citations omitted). Black's Law Dictionary defines "tangible" as:
Having or possessing physical form. Capable of being touched and seen; perceptible to the touch; tactile; palpable; capable of being possessed or realized; readily apprehensible by the mind; real; substantial.
BLACK'S LAW DICTIONARY 1014 (6th ed. abridged 1990). Webster's Third New International Dictionary of the English Language defines the term as
1a: capable of being touched: able to be perceived as materially existent esp. by the sense of touch: palpable, tactile . . . b. substantially real: material . . . 2: capable of being realized by the mind: conceived or thought of as definable or measurable . . . 3: constituting or consisting of a corporeal item capable of being appraised at an actual or approximate value.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 2337 (1993).
As these definitions make clear, the plain and ordinary meaning of the word tangible is something that is capable of being touched or perceptible to the senses. See Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 818 (3rd Cir.1994) ("Tangible property is property that can be felt or touched, or property capable of being possessed or realized."). See also Paul M. Yost, et al., In Search of Coverage in Cyberspace: Why the Commercial General Liability Policy Fails to Insure Lost or Corrupted Data, 54 SMU L.REV. 2055, 2066-68 (2001) (discussing in detail various dictionary definitions of the term tangible and the word's etymology to conclude that "tangible property" is limited to corporeal items). Computer data, software, and systems do not have or possess physical form and are therefore not tangible property as understood by the Policy. Cf. Lucker Mfg., 23 F.3d at 820-821 (noting that "by making `tangibility' the touchstone of coverage, the [insurance policy] excludes significant class of property for which liability insurance could be providedproperty like system designs or computer software.").
Computer data can be transmitted and stored in a variety of ways, but none of them renders the data capable of being touched. A "bit" on a computer disk or hard drive is not palpable. Electrical impulses that carry computer data may be observable with the aid of a computer, but they are invisible to the human eye. See Advanced Computer Servs. v. MAI Sys. Corp., 845 F. Supp. 356, 363 (E.D.Va.1994) ("electrical impulses of a program in a [Random Access Memory] are material objects, which although themselves imperceptible to the ordinary observer, can be perceived by persons with the aid of a computer."). An ordinary person understands the term "tangible" to include something she can touch, such as a chair or a book, not an imperceptible piece of data or software that can only be perceived with the help of a computer.
Excluding computer data and software from the meaning of the term tangible is consistent with the only reported case that directly addresses whether such property is tangible for insurance coverage purposes. In reviewing policy language substantially similar to the case at bar, the court in State Auto Property and Casualty Insurance Co. v. Midwest Computers & More tackled the issue of whether an insurer owed a duty to defend a policyholder against claims alleging negligent performance of service work on a computer system *468 causing computer data loss. 147 F. Supp. 2d 1113 (W.D.Okl.2001). Relying on the ordinary meaning of the term "tangible," the court succinctly found that "computer data cannot be touched, held, or sensed by the human mind; it has no physical substance. It is not tangible property." Id. at 1116. Accordingly, the court found that the insurer did not have a duty to defend against claims of data loss. Id.
Finding that computer data and software is intangible is also consistent with the long line of precedent holding that ideas, information, and designs are not tangible property. See generally Yost, et al., 54 SMU L.REV. at 2068-70 (discussing cases holding that injury to, or loss of, ideas and concepts, without damage to the medium in which they are stored, does not qualify as harm to tangible property). For instance, in St. Paul Fire & Marine Insurance Co. v. National Computer Systems, the court held that misappropriated proprietary data was not "tangible" property for the purposes of liability coverage because although the data was stored in the tangible form of a notepad, "the information itself was not tangible." 490 N.W.2d 626, 631 (Minn.Ct.App.1992). In so holding, the court explicitly distinguished Retail Systems Inc. v. CNA Insurance Co., 469 N.W.2d 735 (Minn.Ct.App.1991). The St. Paul court clarified that Retail Systems held that computer tapes and data are tangible property and Retail Systems was therefore controlled by the fact that in that case "both the information and the medium on which the information was stored were lost." St. Paul, 490 N.W.2d at 631. Similarly in Lucker Manufacturing v. Home Insurance Co., the Third Circuit held that a system design did not constitute tangible property because the value lay in the idea, not the plans memorializing the design: the idea itself was intangible. 23 F.3d at 819-821. The Lucker Manufacturing court explained that "it would require too great a departure from the meaning of `tangible' to hold that a system design is tangible property covered under the policy." Id. at 821.
In this case, the Court will "not strain to create an ambiguity in the term where none exists" and hold that computer data, software and systems are tangible property. See Solers, 146 F.Supp.2d at 792. The Policy only covers property damage to tangible property, the language could not be more clear. If the property is not tangible, then it is not coveredperiod. Similar to the information written on a notepad, or the ideas recorded on a tape, or the design memorialized in a blueprint, computer data, software and systems are intangible items stored on a tangible vessel the computer or a disk. AOL's reliance on caselaw drawn from outside the insurance context,[4] and conflicting holdings from various state courts addressing the tangibility of computer software and data for tax purposes,[5] is misplaced and unpersuasive. *469 AOL has not provided, nor has this Court uncovered, any case holding that computer data is tangible property for the purposes of insurance coverage. In light of the plain meaning of the term tangible and established case-law, the Court holds that the Policy does not cover damage to computer data, software and systems because such items are not tangible property.
However, the Court holds that a computer is tangible property. A computer is the "medium that holds" the data, the software and the systems; unlike its cargo, the computer can be "perceived, identified or valued." Midwest Computers, 147 F.Supp.2d at 1116. The MDL Complaint alleges that AOL 5.0 injured consumers' computers. It states that AOL 5.0 "harmed consumers' computers," (MDL Compl. ¶ 3), and "caused damage to plaintiffs' computers." (Id. ¶ 101). A computer is obviously property "having or possessing physical form" and therefore qualifies as tangible property under the Policy. See Midwest Computers, 147 F.Supp.2d at 1116.
2. Physical damage v. loss of use of tangible property.
The second half of the Policy definition of "property damage" requires the Court to determine whether the MDL Complaint alleges "physical damage" to the plaintiffs' computers. (Policy at 2.) The Court holds that it does not. The common use of the term "physical" means "relating or pertaining to the body, as distinguished from the mind, soul or the emotions. . . ." BLACK'S LAW DICTIONARY 794 (6th ed. abridged 1991). Similarly, the definition of "physical injury" means "bodily harm or hurt, excluding mental distress, fright, or emotional disturbance." Id. The MDL Complaint is rife with allegations that AOL 5.0 physically damaged consumers' computer data and systems. But these claims go to the "brains" of the computer, not its physical make-up and as discussed above, damage claims regarding intangible property such as computer data are not covered by the Policy.
The allegations of injury to the computer itself are more properly characterized as a loss of use of the computer. (See, e.g., MDL Compl. ¶ 76 ("The resulting problems include . . . loss of use of the computer."); See also id. ¶¶ 65, 99, 101, 106b-c). Viewed in this light, there is no "physical" damage alleged to the plaintiffs' computers in the common understanding of the word. There is nothing physical about the loss of use or access to a computer. The MDL Complaint does not allege physical injury to the body or substance of the computer.
AOL urges the Court to apply the holding in American Guarantee & Liability Insurance Co. v. Ingram Micro Inc., to find that loss of computer use constitutes physical damage to the computer. No. 99-185, 2000 WL 726789 (D.Ariz. April 18, 2000). In that case, the court found that computers suffered "physical damage" as required by the insurance policy where information stored in the computers' memory was destroyed and the computers' utility was hampered. Id. at *3. The Court declines to adopt the reasoning in Ingram Micro. The court in Ingram Micro did not apply the plain meaning of the word "physical." Rather, the court relied on the increased importance of computers in our lives and the reflection of this level of importance in various state and federal statutes qualifying loss of computer data as physical damage. Id. Although the importance *470 of computers in our personal and professional lives cannot be overstated, this Court is bound by the terms of the insurance policy. Applying the plain meaning of the word "physical," the Court holds that the MDL's allegations of loss of computer use do not constitute "physical damage" to the plaintiffs' computers.
Notwithstanding that the MDL Complaint does not allege "physical damage" to plaintiffs' computers, the Court finds that it alleges "the loss of use" of such tangible property. The Complaint alleges throughout that AOL 5.0 caused the loss of use of plaintiffs' computers and computer functionality. (See MDL Compl. ¶¶ 11, 65, 67-70, 76, 99, 101, 102, 106.) For instance, the MDL Complaint alleges that AOL 5.0 caused consumers' computers to freeze preventing consumers from accessing and using their computers. (Id. ¶¶ 3, 62, 106(c).) Similar to a computer virus that causes a computer to crash, the MDL Complaint alleges that AOL Version 5.0 rendered plaintiffs' computers completely inoperable. Thus, "[b]ecause a computer clearly is tangible property, an alleged loss of use of computers constitutes property damage within the meaning of [the Policy]." Midwest Computers, 147 F.Supp.2d at 1116.
D. Impaired Property Exemption.
The Court finally turns to whether the impaired property exclusion of the Policy bars coverage of the plaintiffs' loss of computer claims. The Policy excludes "property damage to impaired property, or to property which isn't physically damaged, that results from: [1] [AOL's] faulty or dangerous products or completed work; or [2] a delay or failure in fulfilling the terms of a contract or agreement." (MDL Compl. at 16.) "Impaired property" is defined as "tangible property, other than [AOL's] products or completed work, that can be restored to use by nothing more than: [1] an adjustment, repair, replacement, or removal of [AOL's] products or completed work which forms a part of it; or [2] [AOL] fulfilling the terms of a contract or agreement." (Id.)
Here, the MDL Complaint alleges the loss of use of consumer's computers, not that the computer itself has been physically damaged. See discussion Part II.C.2, supra. The injury at issue thus squarely falls within the label of "property which isn't physically damaged" under the impaired property exclusion. The crux of the MDL Complaint is that the loss of computer use was caused by AOL 5.0, which the Complaint consistently alleges is a "faulty or dangerous" product. (See MDL Compl. ¶ 60) ("AOL 5.0 had been rushed to the market . . . while it still included substantial bugs and incompatibility with numerous applications and operating systems."); id. ("AOL followed its Chairman Steve Case's command strategy that market share was more important than safe software."); id. ¶ 62 ("By installing AOL 5.0, consumers unknowingly exposed their computer systems and software to a defectively designed and/or unreasonably dangerous software installation process that causes serious injury . . ."); id. ¶ 120 ("The product was defective in its design."); id. ¶ 124 ("defective condition of the product.") The plain language of the Policy clearly states that the allegations in the MDL Complaint are barred from coverage under the impaired property exclusion because AOL's defective product caused the loss of computer use.
Holding otherwise would eviscerate the common law "economic loss" rule. The economic loss rule generally bars claims in tort for economic losses, limiting recovery for such losses to the law of contract. See, e.g., Beard Plumbing and Heating, Inc. v. Thompson Plastics, *471 Inc. NIBCO, 152 F.3d 313, 316 (4th Cir.1998) (applying "economic loss" doctrine under Virginia law); Pulte Home Corp. v. Osmose Wood Preserving Inc., 60 F.3d 734, 739-41 (11th Cir.1995) (discussing various applications of Florida variant of "economic loss rule"). In East River S.S. Corp. v. Transamerica Delaval, the Supreme Court explained that when a product "injures itself" because one of its component parts is defective, a purely economic loss results to the owner for which no action in tort lies. 476 U.S. 858, 870, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986) (cited by Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55, 57 (1988)).
The Eighth Circuit applied Minnesota's version of the "economic loss" doctrine in Transport Corp. of America v. IBM to claims of negligence and strict liability where a disk drive incorporated into a computer system contained defective data causing the system to shut down. 30 F.3d 953, 956-57 (8th Cir.1994). The court found that "where a defect in a component part damages the product into which that component was incorporated, economic losses to the product as a whole, [are] not losses to other property under the economic loss rule." Id. The data are in effect a component of the entire system and thus not separate property whose damage triggers tort liability. Id. See also Rockport Pharmacy Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 198 (8th Cir.1995) (applying Missouri variant of economic loss rule to hold that pharmacy was not entitled to an award of damages for loss of data caused by faulty computer system because loss amounted to solely economic damages not recoverable under tort).
In this case, all the claims alleged in the MDL Complaint sound in tort yet allege nothing more than economic losses. The MDL Complaint alleges that the installation of AOL 5.0 "is so large or invasive that thousands of Class members have publicly complained of resulting system application instability, loss of data, loss of work and resulting loss of use, time and money." (Id. ¶¶ 65, 101.) The MDL Complaint alleges that "[a]s a result of the injurious changes AOL 5.0 makes to Plaintiffs and Class members' operating systems . . . Plaintiffs' and Class members have had to expend time and labor repairing machines." (Id. ¶ 99.) Similar to the defective data in Transport Corp., once incorporated into plaintiffs' computer systems, AOL 5.0 was a defective component part that caused plaintiffs' computers to malfunction in the form of crashing or freezing. The only losses flowing from plaintiffs' computer crashes were purely economic and did not constitute losses to other property. Such damages are not recognized under any tort theory pursuant to the economic loss rule and therefore St. Paul did not have a duty to defend against such claims.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Plaintiff's Motion for Partial Summary Judgment is DENIED on Count One of Plaintiff's First Amended Complaint.
The Clerk is directed to forward a copy of this Order to counsel.
NOTES
[1] To the extent that St. Paul argues that the Court should look outside the "eight corners" of the Policy and the MDL Complaint to determine the duty to defend, it is incorrect. For this reason, the Court also declines to consider St. Paul's expert testimony on the issue of physical damage. The issues presented herein are ones of contract. It is typically improper for a court to rely on expert testimony for purposes of interpreting the terms and clauses of a contract. See Forest Creek Assoc. v. McLean Savs. and Loan Ass'n, 831 F.2d 1238, 1242 (4th Cir.1987) (affirming district court's decision to exclude expert testimony proffered by plaintiffs for the purpose of interpreting contract clause because the matter was a question of law for the court). This general rule is especially applicable here where the Court's inquiry is limited to the "eight corners" of the documents.
[2] AOL cites America Online Inc. v. LCGM, 46 F. Supp. 2d 444 (E.D.Va.1998); MW Mfrs., Inc. v. Friedman Corp., No. 97C8319, 1998 WL 417501 (N.D.Ill. July 21, 1998); Wal-Mart Stores, Inc. v. City of Mobile, 696 So. 2d 290 (Ala.1996); South Central Bell Tel. Co. v. Barthelemy, 643 So. 2d 1240 (La.1994); MAI Basic Four, Inc. v. Generic Bus. Solutions, Inc., No. 9908, 1990 WL 3665 (Del.Ch. Jan. 16, 1990); Retail Sys. Inc. v. CNA Ins. Co., 469 N.W.2d 735 (Minn.Ct.App.1991); Communications Groups, Inc. v. Warner Communications, Inc., 138 Misc. 2d 80, 527 N.Y.S.2d 341 (N.Y.Civ.Ct.1988); MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir.1993); Advanced Computer Servs. v. MAI Sys. Corp., 845 F. Supp. 356 (E.D.Va.1994).
[3] St. Paul relies on, among other cases, St. Paul Fire & Mutual Marine Ins. Co. v. Nat'l Computer Sys., 490 N.W.2d 626, 631 (Minn. Ct.App.1992); Lucker Mfg. v. Home Ins. Co., 23 F.3d 808 (3rd Cir.1994); United States v. Thomson Corp., 01-1419, 2001 WL 1689712 (D.D.C. Oct.30, 2001); In Re Maida, No. 98-B-40900, 2000 WL 1025115 (Bankr.N.D.Ill. July 25, 2000).
[4] LCGM, 46 F.Supp.2d at 451-52 (discussing tangibility of computer systems in the context of a trespass to chattel claim); MW Mfrs., Inc., 1998 WL 417501, at * 4 (discussing Illinois common law tort requiring determination of whether end product of business relationship was a tangible object); MAI Basic Four, Inc., 556 So. 2d 1259, 1990 WL 3665, at * 2 (finding that computer disks or tapes containing software are tangible); Communications Groups, Inc., 527 N.Y.S.2d at 341 (addressing issue of whether computer software was a service or good under the Uniform Commercial Code); MAI Sys. Corp., 991 F.2d at 518 (discussing whether Random Access Memory is a "material object" under the Copyright Act); Advanced Computer Servs., 845 F.Supp. at 363 (same).
[5] Compare, e.g., Wal-Mart Stores, Inc., 696 So.2d at 291 (software is tangible for tax purposes); South Central Bell Tel. Co., 643 So.2d at 1240 (same), with Northeast Datacom, Inc. v. City of Wallingford, 212 Conn. 639, 644, 563 A.2d 688 (1989) (computer software is intangible property); Gilreath v. Gen. Elec. Co., 751 So. 2d 705, 708 (Fla.Dist.Ct. App.2000) (same). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4555592/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
George Clift Enterprises, Inc., a Texas corporation,
doing business as Eslabon Properties, appellant and
cross-appellee, v. Oshkosh Feedyard Corporation,
a Nebraska corporation, and Terry Jessen,
appellees and cross-appellants, and
Jeff Betley et al., appellees.
___ N.W.2d ___
Filed August 14, 2020. No. S-19-700.
1. Motions for Continuance: Appeal and Error. A trial court’s grant
or denial of a continuance is within the discretion of the trial court,
whose ruling will not be disturbed on appeal in the absence of an abuse
of discretion.
2. Attorney Fees: Appeal and Error. On appeal, an appellate court
will uphold a lower court’s decision allowing or disallowing attorney
fees for frivolous or bad faith litigation in the absence of an abuse
of discretion.
3. Moot Question: Justiciable Issues: Appeal and Error. Mootness is a
justiciability question that an appellate court determines as a matter of
law when it does not involve a factual dispute.
4. Pretrial Procedure. Generally, the control of discovery is a matter for
judicial discretion.
5. Summary Judgment: Motions for Continuance: Affidavits. Neb. Rev.
Stat. § 25-1335 (Reissue 2016) provides a safeguard against an improvi-
dent or premature grant of summary judgment.
6. ____: ____: ____. As a prerequisite for a continuance, additional time,
or other relief, a party is required to submit an affidavit stating a reason-
able excuse or good cause for the party’s inability to oppose a summary
judgment motion.
7. Summary Judgment: Motions for Continuance: Pretrial Procedure.
In ruling on a request for a continuance or additional time in which
to respond to a motion for summary judgment, a court may consider
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306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
whether the party has been dilatory in completing discovery and prepar-
ing for trial.
8. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
9. Brokers: Property: Contracts: Sales. A broker employed for a definite
time to effect a sale of property must perform whatever obligations the
contract imposes upon the broker within the time limited.
10. Brokers: Real Estate: Contracts: Sales. Ordinarily, a real estate bro-
ker who, for a commission, undertakes to sell land on certain terms and
within a specified period is not entitled to compensation for his or her
services unless he or she produces a purchaser within the time limit who
is ready, willing, and able to buy upon the terms prescribed.
11. Brokers: Contracts: Sales. The right to compensation based on the
broker’s production of a purchaser ready, willing, and able to buy upon
terms specified by the principal or satisfactory to him or her is not
impaired by the subsequent inability or unwillingness of the owner to
consummate the sale on the terms prescribed.
12. ____: ____: ____. In a listing agreement contemplating the negotiation
of terms, a commission is not earned by the broker until an agreement
upon the terms is reached between the buyer and seller.
13. Brokers: Property: Contracts: Sales. When the broker has failed to
perform the condition upon which he or she was to be paid, there is an
end to the contract; all contractual obligations of the owner toward the
broker are terminated and the parties stand as if a contract had never
been made; the market for the sale of the owner’s property is not cir-
cumscribed by the fact that some or all available purchasers have there-
tofore been approached by the broker.
14. Brokers: Contracts: Sales. Clauses in exclusive listing agreements set-
ting forth a protection, extension, or safety period after the listing period
are strictly construed as setting the limits of the time period in which a
sale must take place for a commission to be recoverable.
15. ____: ____: ____. Protection clauses are meant to protect a broker from
losing a commission earned during a listing period due to evasive con-
duct of the buyer and seller.
16. Contracts: Waiver: Proof. A written contract may be waived in whole
or in part, either directly or inferentially, and the waiver may be proved
by express declarations manifesting the intent not to claim the advan-
tage, or by so neglecting and failing to act as to induce the belief that it
was the intention to waive.
17. Breach of Contract: Damages: Proximate Cause: Proof. In any
damage action for breach of contract, the claimant must prove that
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
the breach of contract complained of was the proximate cause of the
alleged damages.
18. Breach of Contract: Damages. There must be a causal relationship
between the damages asserted and the breach of contract relied upon.
19. Judgments: Breach of Contract: Damages: Proof. Proof which leaves
the causal relationship between the damages asserted and the breach of
contract relied upon in the realm of speculation and conjecture is insuf-
ficient to support a judgment.
20. Conspiracy: Words and Phrases. A civil conspiracy is a combination
of two or more persons to accomplish by concerted action an unlaw-
ful or oppressive object, or a lawful object by unlawful or oppres-
sive means.
21. Conspiracy: Torts: Proof. A claim of civil conspiracy requires the
plaintiff to establish that the defendants had an expressed or implied
agreement to commit an unlawful or oppressive act that constitutes a tort
against the plaintiff.
22. Conspiracy: Damages. The gist of a civil conspiracy action is not the
conspiracy charged, but the damages the plaintiff claims to have suf-
fered due to the wrongful acts of the defendants.
23. Actions: Conspiracy. A civil conspiracy is actionable only if the alleged
conspirators actually committed some underlying misconduct.
24. Actions: Conspiracy: Torts. Without an underlying tort, there can be
no cause of action for a conspiracy to commit the tort.
25. Torts: Intent: Proof. To succeed on a claim for tortious interference
with a business relationship or expectancy, a plaintiff must prove (1) the
existence of a valid business relationship or expectancy, (2) knowledge
by the interferer of the relationship or expectancy, (3) an unjustified
intentional act of interference on the part of the interferer, (4) proof that
the interference caused the harm sustained, and (5) damage to the party
whose relationship or expectancy was disrupted.
26. ____: ____: ____. One of the basic elements of tortious interference
with a business relationship requires an intentional act that induces or
causes a breach or termination of the relationship or expectancy.
27. Brokers: Real Estate: Contracts: Sales. Real estate broker agreements,
like other contracts, contain an implied covenant of good faith pursuant
to which the seller impliedly covenants he or she will do nothing that
will have the effect of destroying or injuring the right of the broker to
earn a commission.
28. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
29. Actions: Attorney Fees: Words and Phrases. Frivolous for the pur-
poses of Neb. Rev. Stat. § 25-824 (Reissue 2016) is defined as being
a legal position wholly without merit, that is, without rational argu-
ment based on law and evidence to support a litigant’s position in
the lawsuit.
30. Words and Phrases. Frivolous connotes an improper motive or legal
position so wholly without merit as to be ridiculous.
31. Judgments: Claims: Words and Phrases. The determination of
whether a particular claim or defense is frivolous must depend upon the
facts of the particular case.
32. Moot Question. Mootness refers to events occurring after the filing of
a suit, which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
33. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
34. Attorney Fees: Appeal and Error. Allocation of amounts due between
offending parties and attorneys is “part and parcel” of the determination
of the amount of an award and is reviewed for an abuse of discretion.
Appeal from the District Court for Garden County: Derek
C. Weimer, Judge. Affirmed in part, and in part reversed and
remanded with directions.
James R. Korth, of Reynolds, Korth & Samuelson, P.C.,
L.L.O., for appellant.
Sterling T. Huff, P.C., L.L.O., for appellees Oshkosh
Feedyard Corporation and Terry Jessen.
David W. Pederson, of Pederson Law Office, for appellees
Jeff Betley et al.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
A real estate agency appeals from an order of summary
judgment against it in an action brought against the seller
and buyers for the alleged breach of an exclusive listing
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
agreement and tortious interference with a contract, business
relationship, or expectation. The sale at issue occurred both
after the listing period and after the protection period of the
agreement, and no commission was paid. All negotiations for
the sale were conducted directly between the seller and buyers
with the real estate agent’s knowledge, and the defendants all
denied any bad faith attempt to delay reaching an agreement or
consummating the sale until after expiration of the exclusive
listing agreement. On appeal, the real estate agency argues
that the summary judgment hearing, held approximately 18
months after the action was filed, was premature because the
agency had not yet conducted depositions. It also contests the
court’s determination that attorney fees were appropriate on
the ground that the action was frivolous.
II. BACKGROUND
This action involves the sale of a feedyard formerly owned by
Oshkosh Feedyard Corporation (Oshkosh Feedyard). Oshkosh
Feedyard is owned 100 percent by the Jessen Family Limited
Partnership. The Jessen Family Limited Partnership has three
general partners, Terry Jessen (Jessen), Gwen Jessen, and
Joni Cowan. Summer Parker and Mariah Preistle are limited
partners. Jessen is the president of Oshkosh Feedyard and the
managing partner of the Jessen Family Limited Partnership.
On July 15, 2013, Jessen, on behalf of Oshkosh Feedyard,
entered into an exclusive listing agreement with George Clift
Enterprises (GCE), through GCE’s agent, Richard Bretz, for
the sale of Oshkosh Feedyard.
1. Exclusive Listing Agreement
Under the agreement, the listing price was $4.5 million. The
agreement was to be in effect for a period of time beginning on
the effective date of the contract and continuing uninterrupted
for 12 months. The agreement provided for both a “listing fee”
and a “[b]rokerage [f]ee.”
The listing fee was $4,000 payable immediately upon execu-
tion of the agreement, and there is no dispute that it was paid.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
The brokerage fee was 4.5 percent of the sales price to
be earned and was payable when the following conditions
were met:
1. The sale of the property closes.
2. Owner defaults after Broker produces a ready, will-
ing and able buyer agreeable to Owner’s price and terms
as stated herein or after signing by Owner and Buyer any
letter, memorandum, or contract that contains agreements
to convey the Property. The sale price under this clause
shall be the lesser of the listing price or the sale price
stated in any signed documents.
3. Buyer defaults and Owner retains any earnest money.
The commission fee shall be calculated on the amount of
earnest money received by the Owner.
The agreement also contained a protection period clause
as follows:
PROTECTION PERIOD: Owner agrees to pay the
Brokerage Fee under the same terms and conditions spec-
ified above if, within two months after termination of this
agreement, the Property should be under contract, sold,
transferred, exchanged or conveyed to: (1) any person(s)
or entity to whom Broker submitted the Property and
of whom Owner had actual knowledge and/or (2) any
person(s) or entity to whom Broker submitted the Property
and whose name shall be included on a list delivered to
Owner by Broker within thirty (30) days after termina-
tion hereof or (3) any person(s) or entity who contacted
Owner concerning the sale of the Property or to whom
Owner submitted the Property for sale during the term
hereof and whose name Owner either refused or failed
to refer to Broker. Owner agrees to refer all prospective
buyers to Broker and agrees not to negotiate with such
prospective buyers.
A confidentiality provision stated, “Broker will perform its
consulting role in a non-confidential manner, but will enter
into a valid Confidentiality Agreement with interested parties
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
prior to distributing financial or other proprietary information
provided by Owner.” The agreement was “the entire agreement
of the Parties regarding the Property and may not be changed
except by written agreement signed by the Parties.”
2. Purchasers
In early 2014, Jeff Betley, Marc Braun, and Bill Matzke, all
Wisconsin residents, discussed their mutual interest in purchas-
ing a feedyard in the Kansas, Nebraska, or Colorado region. In
April 2014, Betley contacted Bretz, informing him that Betley,
Braun, and Matzke were looking for a feedyard for their
dairy heifers.
Meanwhile, Jessen had become discontented with Bretz’
efforts at selling Oshkosh Feedyard. Bretz suggested to Betley
several different feedyards that were for sale. Bretz mentioned
Oshkosh Feedyard, but did not recommend it.
At the same time, a friend of Matzke’s recommended
Oshkosh Feedyard and told him to contact Jessen if he was
interested. Matzke did so, and Jessen gave Betley, Braun, and
Matzke a tour of the feedyard in May 2014. But Betley, Braun,
and Matzke were clear that they were just getting started look-
ing at different feedyards and were not yet in a position to
make an offer. According to Jessen’s uncontested averment,
Jessen advised Bretz that he was communicating with Betley,
Braun, and Matzke regarding a possible sale, and Bretz raised
no objection.
In June 2014, Bretz was in contact with Braun by email,
recommending a Kansas feedyard for them. In the email, Bretz
also stated:
Regarding the Oshkosh yard, there is nothing that
would help more in resolving the owner’s and my chal-
lenge over the exclusive listing than getting the yard sold.
Please continue forward on that project as long as it is
viable to you. The owner and I will deal with the list-
ing agreement.
Braun averred, “Bretz went on to tell me that Betley,
Matzke and I should continue our discussions about the sale
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of . . . Oshkosh Feedyard with Jessen, and that Bretz and
Jessen would work things out.” No evidence was submitted
disputing this statement.
Sometime in the summer of 2014, Betley, Braun, and
Matzke decided to try to purchase Oshkosh Feedyard. They
negotiated with Jessen and eventually formed Oshkosh Heifer
Development LLC, with Jessen as a member, on August 12
for that purpose. After further negotiations, Oshkosh Heifer
Development finalized a purchase agreement with Oshkosh
Feedyard in December. It was not until December 12 that
Oshkosh Heifer Development had adopted a corporate reso-
lution authorizing Braun to execute the purchase agreement,
promissory note, and deed of trust on its behalf for the pur-
chase of Oshkosh Feedyard.
The listing period of the exclusive listing agreement had
expired on July 15, 2014, and the protection period had expired
on September 15.
3. 2014 Action
On August 18, 2014, GCE filed a complaint against Oshkosh
Feedyard alleging that Oshkosh Feedyard had breached the
listing agreement by not referring to GCE “one or more
prospective buyer(s)” with whom Oshkosh Feedyard or its
agents had contact and by “engaging in negotiation with any
prospective buyer(s).” As damages for GCE’s lost opportunity
to contact such prospective buyers and negotiate with such
prospective buyers, GCE sought the amount of a $202,500
commission, based on the list price, plus $20,000 allegedly
expended by GCE in efforts to market the property. On July
17, 2017, the court dismissed the action without prejudice for
lack of prosecution. The court noted that nothing had been
filed with the court since December 2014 to indicate the matter
was being actively pursued and that responses to discovery had
been delayed for an extended period of time. The court elabo-
rated that although GCE had engaged new counsel in the 2014
action, it still had not moved appreciably forward.
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
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4. September 2017 Complaint
On September 7, 2017, GCE filed a new complaint against
Oshkosh Feedyard, Jessen, Betley, Braun, Matzke, and Oshkosh
Heifer Development, alleging that pursuant to the terms of the
exclusive listing agreement with Oshkosh Feedyard, it was
entitled to a reasonable brokerage fee on the sale of the prop-
erty. GCE alleged it had made a reasonable effort to market
and procure a buyer for Oshkosh Feedyard. GCE alleged that
Betley, Braun, and Matzke had sought information from GCE
about Oshkosh Feedyard on or around April 29, 2014.
In its first cause of action, GCE alleged that Jessen, on
behalf of Oshkosh Feedyard, breached the exclusive listing
agreement by negotiating with and failing to refer to GCE
prospective buyers during the period of the agreement, thereby
causing GCE to lose the opportunity to contact and negotiate
with prospective buyers. As in the prior 2014 action that was
dismissed for lack of prosecution, GCE sought damages in
the amount of $202,500, representing 4.5 percent of the list
price of $4.5 million, plus $20,000 in expenses in advertising
the listing.
In its second cause of action, GCE alleged a claim of
tortious interference with a contract, business relationship, or
expectation. In this regard, GCE alleged that all the defendants
were aware of the exclusive listing agreement; that despite
such knowledge, Betley, Braun, and Matzke contacted Jessen
directly about purchasing Oshkosh Feedyard; and that Jessen
failed to refer them to GCE. GCE alleged that Jessen, Betley,
Braun, and Matzke improperly and unjustly colluded to arrange
terms of a sale that deprived GCE of the brokerage fee owed to
it under the exclusive listing agreement. GCE claimed the same
amount of damages.
5. February 2018 Amended Complaint
On February 9, 2018, the court granted a motion by GCE’s
attorney to withdraw on the grounds that GCE had terminated
representation by him and that GCE had found new counsel.
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On February 28, 2018, GCE filed an amended complaint,
setting forth in essence the same two causes of action. In the
first cause of action, GCE alleged that Jessen and Oshkosh
Feedyard breached the provisions of the exclusive listing
agreement by (1) negotiating with prospective buyers and (2)
failing to submit Betley, Braun, and Matzke to GCE as pro-
spective buyers.
In the second cause of action, GCE alleged that the
defendants all engaged in a conspiracy to tortiously inter-
fere with GCE’s contract, business relationship, or expecta-
tion. Specifically, GCE alleged Betley, Braun, and Matzke
conspired with Jessen to “arrange terms of a sale which
deprived Plaintiff of the Brokerage Fee owed to Plaintiff
under the Exclusive Listing Agreement.” The factual allega-
tions of the amended complaint were similar to those of the
original complaint, but GCE added the allegation that there
was an in-person meeting between Jessen and Betley, Braun,
and Matzke in March 2014, within the 12-month exclusivity
period, to discuss the sale of Oshkosh Feedyard. GCE further
alleged that Betley, Braun, and Matzke had begun placing
their heifers in and operating Oshkosh Feedyard as early
as August 2014, during the protection period. GCE sought
$198,500 as damages, calculated as 4.5 percent of the alleged
sale price of $4.5 million, less the $4,000 listing fee paid by
Oshkosh Feedyard.
In their answers, the defendants denied the operative alle-
gations of the amended complaint. They alleged that during
the listing period, GCE knew of Betley, Braun, and Matzke’s
interest in the property and had discussions with them, and that
thus, GCE could not be damaged by any lack of referral. The
defendants alleged that at no time did GCE produce a buyer
who was ready, able, and willing to consummate the purchase
based on the terms of the listing agreement. Further, the
property was not sold within the 2-month protection period.
Betley, Braun, and Matzke alleged that Bretz, on behalf of
GCE, had consented to and encouraged their discussions
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with Jessen. All the defendants affirmatively alleged that the
causes of action were frivolous and brought in bad faith.
6. Discovery
Discovery disputes arose between the parties. Jessen and
Oshkosh Feedyard had answered, partially answered, or agreed
to provide at a later date answers to the majority of the first set
of interrogatories and had provided or promised to supplement
answers for the majority of the first requests for production of
documents. But in March 2018, GCE moved to compel Jessen
and Oshkosh Feedyard to supplement their answers to GCE’s
requests for admissions and interrogatories and its first set of
requests for production of documents. Jessen and Oshkosh
Feedyard had objected to all of the requests for admissions
as vague, ambiguous, and irrelevant, noting that they could
not answer any requests based upon the exclusive listing
agreement when that agreement was not attached. The court
sustained Jessen and Oshkosh Feedyard’s objections to the
requests for admissions but sustained in part GCE’s motion
to compel.
On May 14, 2018, GCE was still unable to identify in
response to Jessen and Oshkosh Feedyard’s requests for pro-
duction of documents any document GCE intended to offer
as evidence at trial or summary judgment. GCE stated it had
“made no determination of what evidence will be offered” and
would “supplement in accordance with the applicable state and
local rules of discovery.”
Certain supplemental answers were served on GCE in May
2018, but, on that same date, Jessen and Oshkosh Feedyard
moved for a protection order in relation to one of the inter-
rogatories, in order to protect proprietary information related
to Oshkosh Feedyard’s business practices, fees, and custom-
ers. GCE filed a motion to compel. The court resolved this
dispute after approving a joint stipulation for a protective order
in August 2018, and GCE eventually withdrew its motion
to compel.
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In September 2018, Jessen and Oshkosh Feedyard moved
the court to compel GCE to answer discovery, which motion
the court later denied on the ground that it referred to the first
complaint that was no longer operative. In October 2018, GCE
moved for an order compelling Jessen and Oshkosh Feedyard
to fully answer its second sets of written interrogatories and
requests for production of documents and its third sets of
requests for admissions and written interrogatories. GCE also
requested sanctions. The court overruled Jessen and Oshkosh
Feedyard’s objections and required Jessen and Oshkosh
Feedyard to answer GCE’s second, third, and fourth sets of
interrogatories, but it denied GCE’s request for sanctions.
In December 2018, GCE asked for leave to issue a sub-
poena on a third party, Settje Agri Services & Engineering,
Inc., seeking any and all documents pertaining to services
rendered during 2014 to Oshkosh Feedyard, Jessen, Betley,
Braun, Matzke, or Oshkosh Heifer Development. Jessen and
Oshkosh Feedyard objected on the grounds that the infor-
mation that would include feedyard design would furnish
information to a competitor and was irrelevant to the alleged
breach of the listing agreement. The court granted Jessen and
Oshkosh Feedyard’s motion for a protective order to the extent
the communications requested were proprietary or protected
by privilege.
On January 4, 2019, and again on February 27, GCE moved
for an order to compel Betley, Braun, Matzke, and Oshkosh
Heifer Development to fully answer its second sets of interrog-
atories and requests for production of documents, which had
been sent in October 2018. While answers and responses had
been served on GCE in January 2019, GCE asserted that two of
the answers and responses were only partially responsive. The
February 2019 motion was overruled in March.
7. Motion to Disqualify
Jessen and Oshkosh Feedyard had moved to disqualify
GCE’s attorneys in April 2018. The motion was based on the
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
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fact that attorneys from the same law firm were represent-
ing Parker, Preistle, Gwen Jessen, the Jessen Family Limited
Partnership, and Oshkosh Feedyard in a separate action against
Jessen for self-dealing and other alleged breaches of his fidu-
ciary duties. Oshkosh Feedyard, represented by Jessen and the
attorneys in the action brought by GCE, alleged that GCE’s
attorneys had a conflict of interest. GCE alleged that Oshkosh
Feedyard, through Jessen, lacked standing to raise any such
conflict of interest.
Following an evidentiary hearing, the court denied the
motion to disqualify. The court concluded that Jessen, as a
general partner in the Jessen Family Limited Partnership, had
standing to raise a concern on behalf of Oshkosh Feedyard per-
taining to counsel’s conflict of interest in representing Oshkosh
Feedyard as a plaintiff in one action while suing Oshkosh
Feedyard as a defendant in another action. But the court found
there was no apparent conflict of interest, because if the plain-
tiffs are unsuccessful in either action, then Oshkosh Feedyard
would suffer no loss.
8. Motion for Summary Judgment
and Motion for Continuance of
Summary Judgment Hearing
In two separate motions, the defendants moved, on January
15, 2019, for summary judgment. Thereafter, on January 28,
2019, GCE filed, for the first time, notices of depositions of
Jessen, Betley, Braun, and two other individuals, to take place
the end of May.
On March 1, 2019, GCE filed an opposition to the motions
for summary judgment by the defendants or, in the alterna-
tive, a motion for a continuance of the summary judgment
hearing. In its motion, GCE noted that “while written discov-
ery in this case is substantially completed, there are still mat-
ters of written discovery which are incomplete,” such as the
documents GCE expected to receive from Settje Agri Services
& Engineering. GCE also pointed out that depositions had
not yet been conducted, asserting that the depositions were
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“absolutely essential, especially those of the Defendants.”
GCE asserted that depositions would afford GCE the best
mechanism for exploring communications between the
defendants pertaining to their plans and activities to purchase
Oshkosh Feedyard during the listing or protection period of
the exclusive agency agreement. GCE indicated that the delay
in discovery had been due to disputes between the parties
through which GCE had “been forced to file five motions
to compel.”
On March 19, 2019, the court heard the defendants’ motions
for summary judgment and took the matter under advisement.
Following the hearing, the defendants moved for a protec-
tive order against the pending depositions for several reasons,
including that the depositions would become moot if the court
ruled in their favor on their motions for summary judgment.
At the summary judgment hearing, the defendants submitted
affidavits as well as documentary evidence that they believed
demonstrated a lack of any material issue of fact.
(a) Correspondence
Correspondence admitted at the summary judgment hearing
demonstrated that Betley reached out to Bretz sometime before
April 29, 2014, expressing an interest in purchasing a feed-
yard somewhere in the United States for heifers coming from
Wisconsin and Michigan. Betley described that “[w]e should
be in the 15,000 to 20,000 head range based on dairy heifer
bunk space requirements” and that “If yard is smaller expan-
sion should be a possibility.”
Later that day, Betley requested from Bretz more informa-
tion on a feedyard in Texas. In the evening of April 29, 2019,
Bretz sent to Betley the book for the feedyard in Texas. Bretz
asked Betley for more information in order to “put together a
list of properties that might fit.” According to Bretz, if heifers
were coming from Wisconsin, “a Kansas or Nebraska yard may
make more sense.”
Around the same time, on April 22, 2014, there was cor-
respondence between Dallas Kime and Matzke in which Kime
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
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sent Matzke information about Oshkosh Feedyard as a pros-
pect and told Matzke to contact Jessen if he was interested.
An email on April 23 reflects that Matzke contacted Jessen by
telephone that day and that Matzke was interested in seeing
the property.
On April 29, 2014, Jessen emailed Matzke telling him he
had a verbal purchase offer on Oshkosh Feedyard, explaining,
“Obviously I want to wait for you IF that might lead to a better
offer to me, but likewise I don’t want this offer to go away and
no offer to be made by your group.”
On May 1, 2014, Matzke responded to Jessen, thanking him
for letting him know about the status of Oshkosh Feedyard but
explaining, “We are just starting to explore our options after
spending 2 years discussing this project.” Matzke stated, “We
are not in any position at this time to make any offers,” as well
as that Jessen should not hold off on accepting other offers he
might receive.
However, Matzke offered to come look at Oshkosh Feedyard
on May 3, 2014, since he was going to be in western Kansas
that week looking at cattle. Subsequent correspondence reflects
that Matzke and Jessen arranged for Jessen to show Oshkosh
Feedyard to Matzke on May 10.
On May 10, 2014, Bretz wrote an email to Betley, apologiz-
ing for a “slow response.” The email then proceeded to refer
to several feedyards, other than Oshkosh Feedyard, which
Bretz proposed would be “a fit.” Bretz also attached the book
on Oshkosh Feedyard, but “more to provoke thought than an
outright suggestion.” Bretz described Oshkosh Feedyard as “an
older yard with a small feedmill [that] would be at the small
end to handle the number of heifers you will grow.”
In an email from Jessen to Betley and Braun on May 12,
2014, Jessen expressed that he enjoyed their visit and thanked
Betley and Braun for “taking the time to look and consider.”
Jessen stated further:
Please contact me with your questions as they come
up. I was at the lot tonight for another showing. I feel that
the time is right & a buyer will come forward. If the lot
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is right for you, please let me know your thoughts. I feel
that your group would be good for Oshkosh Nebraska !
On June 20, 2014, Bretz emailed Braun. Bretz thanked
Braun for signing a confidentiality agreement. Most of the
email discussed a particular feedyard in Kansas, Pawnee Valley
Feeders, as a good option for Betley, Braun, and Matzke’s
needs, as well as two other feedyards in Kansas that might
be a good fit but which Bretz would not be able to look at
personally until July 7. Bretz closed the email with a note on
Oshkosh Feedyard:
Regarding the Oshkosh yard, there is nothing that
would help more in resolving the owner’s and my chal-
lenge over the exclusive listing than getting the yard sold.
Please continue forward on that project as long as it is
viable to you. The owner and I will deal with the list-
ing agreement.
Correspondence from Braun to Betley and Matzke on that
same date appears to indicate that Braun was interested in
the Pawnee Valley Feeders yard. Braun attached the book
for Pawnee Valley Feeders in an email that said, “I signed a
confi[dentiality] agreement and he stressed the importance of
not discussing with anyone. Bill can you do some homework
on the feed availability in this area? The lot looks awesome.”
(b) Matzke’s Affidavit
Matzke in his affidavit averred that he had never heard of
Jessen or Oshkosh Feedyard until sometime around April 22,
2014, when a friend, Kime, advised him that Oshkosh Feedyard
was for sale and he contacted Jessen. On April 29, Jessen
advised that he had another offer on the property. Betley,
Braun, and Matzke visited the property on May 10. Matzke
was aware that Betley was in contact with Bretz on their behalf
regarding feedyards for sale as early as April 29.
In June 2014, Betley, Braun, and Matzke were still look-
ing at various feedyards. Matzke averred that while they
had signed confidentiality agreements related to several feed-
yards that they were considering, they had not signed any
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such agreement with Bretz, Jessen, or anyone else regarding
Oshkosh Feedyard.
Matzke received a forwarded email on June 20, 2014,
that Braun had received from Bretz. Matzke understood that
GCE and Bretz had given him, Betley, and Braun consent to
visit directly with Jessen in an attempt to purchase Oshkosh
Feedyard. Matzke averred that he was unaware of any listing
agreement between Bretz and Oshkosh Feedyard until June 20.
He did not see a copy of the agreement until the lawsuit was
filed 3 years later.
Matzke averred that sometime in the summer of 2014,
Betley, Braun, and Matzke decided to try to purchase Oshkosh
Feedyard and, in the course of discussions, came to an agree-
ment to form a limited liability company that would include
Jessen “to share the potential financial obligations and provide
us with a local contact through Jessen for operational pur-
poses.” Thus, Oshkosh Heifer Development was formed on
August 12. Matzke averred that Oshkosh Heifer Development
did not finalize an agreement to purchase Oshkosh Feedyard
until December.
Matzke averred that he had never spoken with Jessen about
delaying the purchase or trying to deprive GCE of a commission
and that he lacked any intent to damage GCE. Matzke averred
that he, Betley, Braun, and Oshkosh Heifer Development had
incurred legal fees and expenses of $14,877.50 in defending
the lawsuit against them.
(c) Braun’s Affidavit
Braun’s affidavit mirrored Matzke’s. He averred that he
had never heard of Jessen or Oshkosh Feedyard until Matzke
advised him in early 2014 that Oshkosh Feedyard was for sale.
He was aware that Betley was in contact with Bretz on his,
Betley’s, and Matzke’s behalf regarding feedyards for sale as
early as April 29. In June, he, Betley, and Matzke were still
looking at various feedyards.
On or about June 20, 2014, Bretz called Braun, “advising
[him] that [Bretz] had a listing agreement on . . . Oshkosh
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Feedyard, and that he had experienced numerous problems
dealing with Jessen on the sale of that feedyard.” Braun
averred, “Bretz went on to tell me that Betley, Matzke and I
should continue our discussions about the sale of . . . Oshkosh
Feedyard with Jessen, and that Bretz and Jessen would work
things out.”
Braun averred that he, Betley, and Matzke did not decide to
try to purchase Oshkosh Feedyard until the summer of 2014
and that they came to an agreement with Jessen to form a lim-
ited liability company also in the summer of 2014. Oshkosh
Heifer Development did not finalize an agreement to purchase
Oshkosh Feedyard until December 2014. Braun was not aware
of a listing agreement between GCE and Oshkosh Feedyard
until June 20, 2014, and he did not see the agreement until the
lawsuit was filed 3 years later.
Braun understood that GCE and Bretz had given him, Betley,
and Matzke consent to visit directly with Jessen in an attempt
to purchase Oshkosh Feedyard. The first time Braun became
aware that GCE had an objection of any kind to Jessen’s sell-
ing Oshkosh Feedyard to Oshkosh Heifer Development was
in October 2017. Braun averred that he never engaged in any
discussion with Jessen about delaying the purchase or trying to
deprive GCE or Bretz of a commission and that he never had
such intent.
(d) Betley’s Affidavit
Betley’s affidavit is nearly identical to the others. Betley
averred that from May 7 to 13, 2014, he exchanged emails
with Bretz wherein Bretz provided him with information on
Oshkosh Feedyard. Betley averred that he had never spoken
with Jessen about delaying the purchase or depriving GCE
or Bretz of a commission and had never intended to damage
either of them.
(e) Jessen’s Affidavit
Jessen averred that he had no contact with Betley, Braun,
or Matzke about their purchasing Oshkosh Feedyard until
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April 2014, when Matzke contacted him. Before that con-
tact, his “relationship with Bretz had deteriorated primarily
because [he] felt that Bretz was doing a poor job of trying to
sell [Oshkosh Feedyard].”
In April or May 2014, Jessen “advised Bretz that I was com-
municating with the other Defendants about a possible sale of
[Oshkosh Feedyard] to them, and Bretz raised no objection
or complaint about the communication at that time.” Jessen
also saw the email communication between Bretz and Braun.
Jessen averred that Bretz “never complained to me about my
direct contact with the other Defendants in an attempt to sell
[Oshkosh Feedyard].”
Jessen averred that Bretz was “fully aware of the other
defendants,” noting that on August 14, 2014, Bretz provided
Jessen with “at least two of the defendant[s’] names . . . on
a list captioned ‘Oshkosh Prospective Buyers.’” A document
entitled “Oshkosh Prospective Buyers,” dated July 15, 2013,
through July 14, 2014, lists Betley and Braun.
Jessen averred that at no time did he discuss a delay in
closing on Oshkosh Feedyard with Betley, Braun, or Matzke;
attempt to persuade them regarding one; or take any other
action that would have damaged GCE.
According to Jessen, at some point before the end of the
listing agreement, he retained counsel on behalf of Oshkosh
Feedyard. With about 3 weeks left of the agreement, Oshkosh
Feedyard’s counsel informed GCE’s counsel that GCE should
continue its pursuit of any buyers who would be ready, willing,
and able to sign a purchase agreement for the full listing price
before the end of the listing agreement on July 15, 2014.
The letter from Oshkosh Feedyard’s counsel was received
by GCE’s counsel on the same date when Bretz sent the email
that Betley, Braun, and Matzke understood to be encouraging
them to negotiate directly with Jessen if they were interested
in Oshkosh Feedyard. Jessen averred that GCE was never
able to find a buyer ready, willing, and able to pay the full
listing price or able to obtain any written or verbal offer from
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a potential purchaser during either the listing period or the
protection period.
Jessen described that he became a member of Oshkosh Heifer
Development “after the other Defendants and I determined that
if they were going to purchase and operate [Oshkosh Feedyard],
it would be beneficial to them to have a local contact since all
of them lived in other states.” Further, “[t]he closing on the
sale of [Oshkosh Feedyard] did not occur until December of
2014; because not all of the details of the purchase or ongoing
operations had been finalized until then.” Jessen averred that
the limited liability corporation was formed in August 2014
“so that the investors/members would have an entity to use
to purchase [Oshkosh Feedyard] and conduct business in the
event the numerous investors/members reached an agreement
to proceed.” Jessen explained that “[i]t took extensive time for
many months after the termination of the listing agreement to
determine investors/members and reach an agreement on the
sale of [Oshkosh Feedyard].”
Jessen averred that this is the second time Oshkosh
Feedyard has been sued by GCE on similar claims. The prior
lawsuit was filed just 4 days after Bretz furnished Jessen with
the prospective buyers list, and before the protection period
had lapsed.
(f) Sterling Huff’s Affidavit
Sterling Huff, attorney for Jessen and Oshkosh Feedyard,
began representing Jessen and Oshkosh Feedyard before the
expiration of the listing agreement. According to the pleadings,
Jessen, on behalf of Oshkosh Feedyard, sought legal counsel in
early May 2014. Attached to Huff’s affidavit was correspond
ence between Huff and GCE’s counsel at that time in which
Huff explained that Jessen was unhappy with the amount of
effort Bretz had put into advertising the $4.5 million listing,
for which Oshkosh Feedyard had already paid a $4,000 upfront
listing fee.
In correspondence in June 2014 between Huff and counsel at
the time for GCE, Huff communicated:
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[I]t appears your client has 23 days left in its contract to
make good on its hallowed promises and sell [Oshkosh]
Feedyard. Since the contract states that “Owner . . .
agrees to not negotiate with prospective buyers”, I assume
that your client’s confidence is high that a buyer for the
full listing price will be found within that time. I am
certain a sale of that nature would make all sides of this
equation quite happy.
Huff averred that to the best of his knowledge, this was the
last communication between the parties before the lawsuit was
filed in August 2014. GCE’s counsel never communicated to
Huff that there were any prospective buyers willing to pay the
full listing price or less than the full listing price and never
communicated there were any tentative purchase agreements,
verbal offers, or “any offers on the property whatsoever.”
(g) Oshkosh Heifer Development Documents
and Purchase Agreement
The certificate of organization for Oshkosh Heifer
Development reflects that it was formed on August 7, 2014.
And it was not until December 12 that Oshkosh Heifer
Development adopted a corporate resolution authorizing Braun
to execute the purchase agreement, promissory note, and deed
of trust on its behalf for the purchase of Oshkosh Feedyard.
The purchase agreement was entered into on December 15,
2014, between Oshkosh Heifer Development as the buyer and
Oshkosh Feedyard as the seller. The selling price was $2.5 mil-
lion. The purchase agreement arranged a $600,000 downpay
ment and the remaining balance to be paid in monthly pay-
ments at an interest rate of 6 percent per annum, with a balloon
payment due on August 2, 2024, if not previously paid off.
In their answers to interrogatories, the defendants stated that
they did not know what the phrase “early occupancy” referred
to in a risk of loss provision of the purchase agreement. The
provision in question provided in full:
Risk of loss is on the Seller until the date and time
of early occupancy by BUYER. SELLER shall keep the
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property adequately insured until said time. In the event
of damage to the property from any source, including
but not limited to theft, vandalism, hail, wind, fire, rain,
flood, snow, weather or other Act of God etc that results
in a 5% or more diminution in value, then the BUYER
can vacate this contract in its entirety in Buyer’s sole and
exclusive discretion by providing written notice to Seller.
SELLER shall have no causes of action nor further rem-
edies against BUYER. BUYER shall keep insurance on
the property from the date of early occupancy forward
and assume all risk of loss.
The promissory note was signed on December 15, 2014.
A six-page trust deed was signed on December 12, 2014,
with Oshkosh Heifer Development as the borrower, Oshkosh
Feedyard as the beneficiary, and Huff as the trustee. In answers
to interrogatories by GCE, the defendants stated that they
did not know why there was language in the trust deed refer-
ring to a “deferred purchase money note,” explaining that the
trust deed was given to secure the promissory note and sums
described therein. That provision states in full:
PURCHASE MONEY SECURITY: This Trust Deed is
given to secure payment of a deferred purchase money
note, by BORROWER to BENEFICIARY to pay the bal-
ance of the purchase price of all or a part of the Trust
Property, and is a continuation of the original lien of the
seller of said Trust Property. This Deed of Trust shall
also apply to any future advances made by Beneficiary
to Borrower.
In their answers to interrogatories, the defendants stated that
no cattle owned by Oshkosh Heifer Development were placed
in Oshkosh Feedyard in 2014.
(h) James Korth’s Affidavit
The only evidence submitted by GCE in opposition to
summary judgment was an affidavit by James Korth, GCE’s
attorney. Korth averred that while the written discovery in
the case was largely complete, there were still some matters
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of written discovery to be completed, which he listed as
(1) the receipt of documents from Settje Agri Services &
Engineering and (2) a recently arisen dispute between the
parties subject to a motion to compel by GCE set for hearing
on March 4, 2019.
Korth averred, further, that the depositions noticed for May
28 and 29, 2019, were “absolutely essential, especially those
of the Defendants.” Korth elaborated that through deposi-
tions, GCE could explore the activities of and communica-
tions between the defendants during the listing contract period
pertaining to their plans to purchase Oshkosh Feedyard, which
may reveal material issues pertaining to whether they colluded
to purchase Oshkosh Feedyard after the listing period had
elapsed. Korth noted the defendants stated in written inter-
rogatories that they had no knowledge of what the references
in their purchase agreement to an “early occupancy” date
were and that they did not know why there was language in
the trust deed with power of sale referring to a deferred pur-
chase money note—both provisions apparently being suspi-
cious to GCE.
With regard to the delay in taking the depositions, Korth
averred the matter had been “discussed between counsel in
August 2017 . . . and then held in abeyance as a result of then
pending issues regarding written discovery.” Korth attached
a copy of communication in which, on August 1, 2018, the
defendants’ counsel wrote to Korth that if review of discovery
responses did not change GCE’s position, then the defendants
“would like to get depositions schedule[d] right away,” as
the defendants “are going to run into some time constraints
due to the nature of agriculture starting the first and middle
part of September, and if you want their depositions, it will
either need to be sometime during August or late October or
November.” Korth responded on August 17, asking about the
defendants’ availability during the week of August 27 through
31, September 4, or the morning of September 5. The defend
ants’ counsel responded on August 20 that the defendants
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would be available on September 4 and that counsel would
like to take the depositions of Bretz and George Clift at that
time if possible. Korth responded on August 21, “We are now
looking at the late October or November timeframe for depo-
sitions.” Korth explained, “It appears there are some loose
ends re: pending written discovery requests which make it
impracticable to take depositions at this point; that, and the
fact that my wife is due September 6th, which complicates
matters for me on a personal level.” No further correspondence
was submitted.
9. Order Denying Continuance and
Granting Summary Judgment
On April 23, 2019, the court granted the defendants’ motions
for summary judgment. The court overruled GCE’s objection
to the motion for summary judgment as premature, noting that
the case had been pending for over 18 months and had previ-
ously been brought in 2014.
The court found no issue of fact that GCE failed to produce a
ready, willing, and able buyer within the listing period. Further,
there was no issue of fact that Bretz was aware of the existence
of Betley and Braun as prospective buyers during the listing
period. There was no issue of fact that there were no discus-
sions between Jessen and Betley, Braun, and Matzke during
the listing period regarding an offer to purchase. Discussions
of such a nature began during the protection period, but the
property was not “under contract, sold, transferred, exchanged
or conveyed” before September 15, 2014, as would be required
to be covered by the protection period. As such, there was no
genuine issue of material fact under the first cause of action in
that Jessen and Oshkosh Feedyard did not breach the exclusive
listing agreement.
Concerning the second cause of action for tortious interfer-
ence as against Betley, Braun, and Matzke, the court found
no material issue of fact that Betley, Braun, and Matzke
lacked any knowledge of the exclusive listing agreement and,
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furthermore, that GCE, through Bretz, affirmatively encour-
aged Betley, Braun, and Matzke to engage in negotiations
directly with Jessen for the sale of Oshkosh Feedyard. And the
court found no material issue of fact that Jessen and Oshkosh
Feedyard had not committed an unjustified intentional act of
interference. It was undisputed that no efforts were made by
Jessen and Oshkosh Feedyard to “drag the sale out until after
the expiration of the protection period.”
10. Attorney Fees
The defendants had moved for attorney fees on the ground
that the claims against them were frivolous. The court found that
the action was frivolous. The court reasoned that “after years
of litigation and numerous discovery disputes and resolutions,
the Plaintiff cannot demonstrate sufficient evidence to survive
summary judgment.” Further, “it is apparent in the record that
the Plaintiff’s own agent was aware of the activities it then
complained of and that he, as the Plaintiff’s agent, consented to
such activities.” Finally, the court reasoned, “Discovery dem-
onstrated that the contractual and tortious claims being made
by the Plaintiff were not supported in the evidence and yet the
Plaintiff persisted in its recovery efforts.”
The court ordered GCE to pay attorney fees to Betley,
Braun, and Matzke in the amount of $21,774.78 and to Jessen
and Oshkosh Feedyard in the amount of $25,657.67.
GCE appeals.
III. ASSIGNMENTS OF ERROR
GCE assigns that the district court erred (1) in sustaining the
motions for summary judgment or, alternatively, in failing to
sustain GCE’s motion for a continuance of the hearing on sum-
mary judgment and (2) in sustaining the defendants’ motions
for attorney fees.
Jessen and Oshkosh Feedyard cross-appeal, assigning that
the district court erred by (1) not sustaining their motion to
disqualify and (2) failing to make the award of attorney fees
joint and several against GCE’s attorneys.
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IV. STANDARD OF REVIEW
[1] A trial court’s grant or denial of a continuance is within
the discretion of the trial court, whose ruling will not be dis-
turbed on appeal in the absence of an abuse of discretion. 1
[2] On appeal, an appellate court will uphold a lower
court’s decision allowing or disallowing attorney fees for
frivolous or bad faith litigation in the absence of an abuse of
discretion. 2
[3] Mootness is a justiciability question that an appellate
court determines as a matter of law when it does not involve a
factual dispute. 3
V. ANALYSIS
GCE argues that we should reverse the order of summary
judgment because the district court held the summary judgment
hearing before GCE had conducted depositions. Alternatively,
GCE asserts that the district court abused its discretion in find-
ing GCE’s action frivolous and awarding attorney fees and
costs against it. Jessen and Oshkosh Feedyard cross-appeal,
asserting that the district court erred by denying their motion
to disqualify GCE’s counsel and by failing to order GCE’s
counsel jointly and severally liable for the attorney fees and
costs awarded.
1. Failure to Order Continuance
to Take Depositions
[4] Generally, the control of discovery is a matter for judi-
cial discretion. 4 A trial court’s grant or denial of a continu-
ance is likewise within the discretion of the trial court, whose
1
See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018). See,
also, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014); Fo Ge
Investments v. First American Title, 27 Neb. Ct. App. 671, 935 N.W.2d 245
(2019).
2
Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
3
See State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009).
4
Lombardo v. Sedlacek, supra note 1.
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ruling will not be disturbed on appeal in the absence of an
abuse of discretion. 5
[5] Neb. Rev. Stat. § 25-1335 (Reissue 2016) provides a
safeguard against an improvident or premature grant of sum-
mary judgment. 6 It provides:
Should it appear from the affidavits of a party opposing
the motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or deposi-
tions to be taken or discovery to be had or may make such
other order as is just.
[6] As a prerequisite for a continuance, additional time, or
other relief, a party is required to submit an affidavit stating
a reasonable excuse or good cause for the party’s inability to
oppose a summary judgment motion. 7 The affidavit of good
cause should specifically identify the relevant information
that will be obtained with additional time and indicate some
basis for the conclusion that the sought information actu-
ally exists. 8
[7] In ruling on a request for a continuance or additional
time in which to respond to a motion for summary judgment,
a court may consider the complexity of the lawsuit, the com-
plications encountered in litigation, and the availability of
evidence justifying opposition to the motion. 9 The court may
also consider whether the party has been dilatory in completing
discovery and preparing for trial. 10
5
Lombardo v. Sedlacek, supra note 1. See, also, Gaytan v. Wal-Mart, supra
note 1; Fo Ge Investments v. First American Title, supra note 1.
6
Ronald J. Palagi, P.C. v. Prospect Funding Holdings, 302 Neb. 769, 925
N.W.2d 344 (2019); Lombardo v. Sedlacek, supra note 1.
7
See Ronald J. Palagi, P.C. v. Prospect Funding Holdings, supra note 6.
8
See, id.; Lombardo v. Sedlacek, supra note 1.
9
Gaytan v. Wal-Mart, supra note 1; Fo Ge Investments v. First American
Title, supra note 1.
10
Gaytan v. Wal-Mart, supra note 1.
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The district court did not abuse its discretion in implicitly
determining that GCE had been dilatory in failing to conduct
depositions sooner. Despite the fact that this was the sec-
ond action making the same allegations against Jessen and
Oshkosh Feedyard as to an alleged breach of the exclusive
listing agreement, January 28, 2019, was apparently the first
time GCE took decisive steps to depose Jessen in either action.
GCE took steps to depose the other defendants and nonparty
Settje Agri Services & Engineering for the first time on that
same date.
At that point, it had been approximately 18 months since
the inception of this second lawsuit. Eight months after fil-
ing this action, GCE had been unable to identify in response
to Jessen and Oshkosh Feedyard’s requests for production of
documents any document whatsoever that GCE intended to
offer as evidence in support of its causes of action at trial or
in a summary judgment hearing. This was after the first action
had continued for almost 3 years before the court dismissed it
for lack of prosecution. We have held that the time that a simi-
lar, prior case was pending without a request for depositions is
relevant to a district court’s determination of whether the party
opposing summary judgment has had an adequate opportunity
for discovery. 11
The only explanation for good cause stated in GCE’s motion
was to blame the delay on the defendants’ failure to respond to
all written discovery requests, for which GCE had “been forced
to file five motions to compel.” In the affidavit submitted by
Korth on GCE’s behalf, he outlined correspondence which
showed the defendants made themselves available for deposi-
tions in August, October, or November 2018. But that cor-
respondence also demonstrated that GCE put the depositions
off until October or November due in part to “pending written
discovery requests” that GCE thought made “it impracticable
to take depositions” earlier. And the depositions never took
place in October or November.
11
See id.
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While it is clear that written discovery was not completed
to GCE’s satisfaction before the defendants’ motions for sum-
mary judgment, GCE did not explain why it could not effec-
tively conduct its depositions without every piece of written
discovery it wished to have. Further, not every motion by GCE
to compel was granted. The district court was in the best posi-
tion to determine to what extent the defendants were being
unreasonable in their discovery responses and to what extent
the lack of any written discovery interfered with GCE’s ability
to conduct depositions. We find no abuse of discretion in the
district court’s judgment.
Having determined that the district court did not prematurely
address the defendants’ motions for summary judgment, we
turn to the merits of GCE’s case and whether GCE’s action
was frivolous.
2. GCE’s Causes of Action
[8] GCE’s argument relating to the court’s alleged error in
ordering summary judgment rests entirely on its claim that
the court held the summary judgment hearing prematurely
before GCE had conducted depositions, a claim which we
have already explained lacks merit. The only statement in the
argument section in GCE’s brief asserting that there was a
material issue of fact presented at the summary judgment hear-
ing was GCE’s conclusory statement that “it is fairly evident
that material factual issues remained at the time the Appellees
filed their respective motions for summary judgment.” 12 To be
considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. 13 The conclusory statement that it is
“fairly evident” there were material issues of fact was insuf-
ficient to present a specific argument. 14 GCE did not support
12
Brief for appellant at 20.
13
Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264
(2014).
14
Brief for appellant at 20.
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this conclusion by directing this court in the argument sec-
tion of its brief to any material fact in the record in dispute. 15
Nevertheless, in order to address GCE’s assignment of error
regarding the court’s award of attorney fees for maintaining a
frivolous action, we must examine the evidence in light of the
law governing GCE’s claims.
(a) Procuring Ready, Willing, and Able
Buyer During Listing Period
[9] As the district court noted, there was never any dispute
that GCE was not entitled to a commission under the exclusive
listing agreement for performing the condition of producing
a ready, willing, and able buyer during the listing period. A
broker employed for a definite time to effect a sale of property
must perform whatever obligations the contract imposes upon
the broker within the time limited. 16 If the broker does thus
perform such obligations, the broker is entitled to the commis-
sion. 17 If the broker fails to perform within the time, the broker
cannot recover the commission. 18
[10] The exclusive listing agreement between GCE and
Oshkosh Feedyard referred to the commission’s being earned
and payable either after a sale within the periods specified;
after GCE produced a ready, willing, and able buyer agreeable
to Oshkosh Feedyard’s price and terms as stated in the listing
agreement; or after signing by Oshkosh Feedyard and a buyer
of a letter, memorandum, or contract that contained agreements
to convey the property. Ordinarily, a real estate broker who,
for a commission, undertakes to sell land on certain terms and
within a specified period is not entitled to compensation for his
or her services unless he or she produces a purchaser within
15
See Hauptman, O’Brien v. Turco, 277 Neb. 604, 764 N.W.2d 393 (2009).
16
Annot., 26 A.L.R. 784 (1923).
17
Id.
18
Id.
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the time limit who is ready, willing, and able to buy upon
the terms prescribed. 19 When a broker is engaged by an owner
of property to find a purchaser, the broker earns the commis-
sion when (1) the broker produces a purchaser ready, willing,
and able to buy on the terms fixed by the owner; (2) the pur-
chaser enters into a binding contract with the owner to do so;
and (3) the purchaser completes the transaction by closing the
title in accordance with the provisions of the contract. 20
[11,12] However, so long as the contract does not otherwise
provide, generally the final act of closing a sale within the list-
ing period is not a condition precedent to a broker’s right to a
commission—if the broker has secured a binding contract of
sale and is not at fault for the fact that the contract is never
carried out. 21 The right to compensation based on the broker’s
production of a purchaser ready, willing, and able to buy upon
terms specified by the principal or satisfactory to him or her
is not impaired by the subsequent inability or unwillingness of
the owner to consummate the sale on the terms prescribed. 22
On the other hand, in a listing agreement contemplating the
negotiation of terms, a commission is not earned by the bro-
ker until an agreement upon the terms is reached between the
buyer and seller. 23
Thus, we have held that where a real estate broker obtains
a purchaser for real estate while his brokerage contract is
in full force and effect and no sale is made during the exis-
tence of the agreement, but the sale is made thereafter by the
owner to the person produced by the agent and on “substan-
tially the same terms” previously offered through the agent’s
efforts, the broker is entitled to a commission for making the
19
McCully, Inc. v. Baccaro Ranch, 284 Neb. 160, 816 N.W.2d 728 (2012).
20
Dworak v. Michals, 211 Neb. 716, 320 N.W.2d 485 (1982).
21
See 12 C.J.S. Brokers § 225 (2004).
22
See Wisnieski v. Coufal, 188 Neb. 200, 195 N.W.2d 750 (1972).
23
See 12 C.J.S., supra note 21.
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sale. 24 Conversely, we have held that a broker is not entitled
to a commission where the broker obtains a purchaser for real
estate but no sale is made during the existence of the agree-
ment and the sale is later made by the owner to the same pur-
chaser but on terms that are not substantially the same offered
through the agent’s efforts. 25
In McCully, Inc. v. Baccaro Ranch, 26 we accordingly held
that the commission was due despite the fact that the actual
closing took place after both the listing period and protection
period, because the agent had found a buyer who had satisfied
the condition of the listing agreement as being ready, willing,
and able to purchase the property at terms acceptable to the
seller within the listing period. The negotiations had been com-
pleted within the listing period, and the buyer testified he was
ready to exchange based on the proposal signed during that
listing period. The purchase agreement signed after the listing
and protection periods was the exact same proposal signed by
the buyer within the listing period, but with the proposal date
altered to a date closer to the actual closing. 27
In contrast, in Coldwell Banker Town & Country Realty v.
Johnson, 28 we held that the agent was not entitled to a com-
mission when the buyers and sellers entered into direct nego-
tiations mere days after the expiration of the listing agreement
and eventually executed the purchase. We explained that
it did not matter that the buyers, within the listing period,
had negotiated with the agent for the purchase of the same
property and had made an offer on the property, because the
sellers did not accept the offer then made. The purchase was
24
See Byron Reed Co., Inc. v. Majers Market Research Co., Inc., 201 Neb.
67, 71, 266 N.W.2d 213, 215 (1978).
25
Huston Co. v. Mooney, 190 Neb. 242, 207 N.W.2d 525 (1973).
26
McCully, Inc., v. Baccaro Ranch, supra note 19.
27
See id. See, also, Huston Co. v. Mooney, supra note 25.
28
Coldwell Banker Town & Country Realty v. Johnson, 249 Neb. 523, 544
N.W.2d 360 (1996).
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later effectuated under terms different from the terms of the
buyers’ first offer, during the listing period. In other words,
we explained, the terms under which the sale took place were
reached through the sellers’, not the agent’s, efforts. 29
GCE did not allege it had obtained within the listing period
a buyer who was ready, willing, and able to purchase Oshkosh
Feedyard either at the listing price or at a price and on terms
agreeable at that time to its owner. The 12-month listing period
expired on July 15, 2014. There was no issue of fact that in
May 2014, Betley, Braun, and Matzke were just starting to
explore numerous feedyard options and stated to Jessen that
they were in no position to make any offers. They were still
considering several different feedyards in June 2014. Unlike
the buyers in Coldwell Banker Town & Country Realty, Betley,
Braun, and Matzke never even made an offer during the listing
period—let alone an offer at the listing price or at a different
price and on terms Oshkosh Feedyard was willing to accept.
Thus, this case does not present a question of whether the
agreement eventually reached was substantially the same as
that procured by the broker.
[13] When the broker has failed to perform the condition
upon which he or she was to be paid, there is an end to the con-
tract; all contractual obligations of the owner toward the broker
are terminated and the parties stand as if a contract had never
been made. 30 The market for the sale of the owner’s property
is not circumscribed by the fact that some or all available pur-
chasers have theretofore been approached by the broker. 31
(b) Protection, Extension, or Safety Periods
While the exclusive listing agreement, like many listing
agreements, had a protection period clause, GCE also never
asserted that it was owed a commission because, pursuant to
29
See id. See, also, Huston Co. v. Mooney, supra note 25.
30
Loxley v. Studebacker, 75 N.J.L. 599, 68 A. 98 (1907).
31
See id.
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the terms of the protection period clause of the agreement,
Oshkosh Feedyard was under contract, sold, transferred,
exchanged, or conveyed during the protection period to any
person to whom GCE submitted the property.
[14,15] Clauses in exclusive listing agreements setting forth
a protection, extension, or safety period after the listing period
are strictly construed as setting the limits of the time period
in which a sale must take place for a commission to be recov-
erable. 32 These clauses are meant to protect the broker from
losing a commission earned during the listing period due to
evasive conduct of the buyer and seller. 33
The purpose of the protection period clause is to protect
the broker even though the broker is not technically the
procuring cause for the sale, but whose activities alerted the
prospective buyer to the availability of the property for sale
and the seller was able to conclude the sale to the buyer that
he or she would not have been able to do if the broker’s
efforts had not alerted the buyer. 34 They are intended to pro-
tect the broker from a defrauding vendor who waits until just
after the expiration of the initial listing period before selling
to a purchaser with whom the broker has previously con-
ducted negotiations. 35
Thus, a claim that a seller in bad faith during the protec-
tion period delayed a sale until after expiration of the protec-
tion period is somewhat different from a claim that a seller in
bad faith during a listing period purposefully delayed a sale
until after the listing period. The protection period is precisely
32
See Kenney v. Clark, 120 Ga. App. 16, 169 S.E.2d 357 (1969); Thayer v.
Damiano, 9 Wash. App. 207, 511 P.2d 84 (1973).
33
See 2 Harry D. Miller & Marvin B. Starr, California Real Estate § 5:51
(4th ed. 2015). See, also, e.g., Harkey v. Gahagan, 338 So. 2d 133 (La.
App. 1976).
34
See Miller & Starr, supra note 33. See, also, e.g., Mellos v. Silverman, 367
So. 2d 1369 (Ala. 1979).
35
D. Barlow Burke, Jr., Law of Real Estate Brokers § 4.03 (4th ed. 2020).
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that—a protection from bad faith during the listing period
without having to prove such tortious intent. And the seller’s
obligations during such protection period are accordingly more
limited than those present during the listing period. As one
court noted, if a broker wishes to retain the right to earn a
commission on sales for which it was the procuring cause even
though completed after the expiration of the extension period,
the broker, as drafter of the agreement, can use the appropriate
language to effectuate that intent in the agreement. 36
It was undisputed that no contract, sale, transfer, exchange,
or conveyance of Oshkosh Feedyard occurred during the pro-
tection period to anyone.
(c) Duty to Refer and Refrain
From Negotiating
Nevertheless, GCE asserts that a sale would have occurred
during the protection period but for the defendants’ allegedly
tortious conduct. In its first cause of action, GCE claimed
Jessen and Oshkosh Feedyard breached the provision of the
last sentence of the protection period clause, which states:
“Owner agrees to refer all prospective buyers to Broker and
agrees not to negotiate with such prospective buyers.” In
its operative complaint, GCE asserted that it was owed the
4.5-percent commission because Jessen and Oshkosh Feedyard
breached this promise of the exclusive listing agreement,
thereby depriving GCE of its “opportunity to contact and nego-
tiate with prospective buyer(s), known to Defendants JESSEN
and [Oshkosh Feedyard].”
But, as the district court pointed out, it was undisputed that
GCE knew of Betley and Braun and in fact encouraged them
to negotiate directly with Jessen. And GCE, through its agent
Bretz, was obviously aware of this fact before the present
36
See Leadership Real Estate, Inc. v. Harper, 271 N.J. Super. 152, 638 A.2d
173 (1993).
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and the previous legal actions were commenced. Bretz had
communicated to Braun, during the 12-month listing period,
“Please continue forward on that project as long as it is viable
to you. The owner and I will deal with the listing agreement.”
In a telephone conversation with Braun around the same
time, Bretz told Braun that he, Betley, and Matzke “should
continue [their] discussions about the sale of . . . Oshkosh
Feedyard with Jessen, and that Bretz and Jessen would work
things out.”
[16] A written contract may be waived in whole or in part,
either directly or inferentially, and the waiver may be proved
by express declarations manifesting the intent not to claim the
advantage, or by so neglecting and failing to act as to induce the
belief that it was the intention to waive. 37 It is clear that GCE
waived the obligation upon which it based its first cause of
action against Jessen and Oshkosh Feedyard. Bretz, on behalf
of GCE, apparently did so in the hope that direct communica-
tions with Jessen would lead to Betley’s and Braun’s becoming
ready, willing, and able buyers on terms agreeable to Jessen
before expiration of the protection period, thereby allowing
GCE to claim a commission even though Jessen, rather than
Bretz, would have been the procuring cause. When Jessen
failed to reach an agreement within the protection period with
Betley, Braun, and Matzke as to the price and terms of a sale
of Oshkosh Feedyard, GCE sued Jessen and Oshkosh Feedyard
for breaching the very provision it had waived in hopes of
gaining an advantage.
[17-19] We also note that even if not waived, any claim of a
breach of Oshkosh Feedyard’s obligations under the protection
period clause is subject to the general requirement that a plain-
tiff in a breach of contract action must prove that the breach
was the proximate cause of the damages claimed. It is a basic
concept that in any damage action for breach of contract, the
claimant must prove that the breach of contract complained of
37
Pearce v. ELIC Corp., 213 Neb. 193, 329 N.W.2d 74 (1982).
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was the proximate cause of the alleged damages. 38 There must
be a causal relationship between the damages asserted and
the breach relied upon. 39 Proof which leaves this issue in the
realm of speculation and conjecture is insufficient to support
a judgment. 40
The failure to refer buyers to GCE could not be the proxi-
mate cause of any damages if GCE was actually aware of the
buyers during the listing period and had direct contact with
at least two of them. Moreover, after approximately 41⁄2 years
of litigation in two actions, GCE still failed to produce any
evidence supporting a reasonable inference that Jessen’s direct
negotiations with Betley, Braun, and Matzke were the proxi-
mate cause of GCE’s failure to produce a buyer who was ready,
willing, and able to purchase Oshkosh Feedyard within the
listing period for the listing price or at another price and upon
terms agreeable to Oshkosh Feedyard or the proximate cause of
Oshkosh Feedyard’s failure within 2 months of the expiration
of the listing agreement to be under contract, sold, transferred,
or conveyed to a person submitted by GCE per the terms of the
protection period clause.
All the defendants averred that they did not reach an agree-
ment as to the terms of the purchase of Oshkosh Feedyard
until December 2014. In fact, even viewing the evidence in
the light most favorable to GCE, it appears that at no point
during the 12-month listing period or the 2-month protection
period following did the parties come close to reaching an
accord as to the price and terms of a purchase. Only in August
2014 did Jessen, in his individual capacity, reach an agreement
with Betley, Braun, and Matzke to join together in forming a
38
Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465 (1993).
See, also, e.g., Sack Bros. v. Tri-Valley Co-op, 260 Neb. 312, 616 N.W.2d
786 (2000).
39
Id.
40
Id. See, also, e.g., Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68
(2011).
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limited liability corporation, Oshkosh Heifer Development,
for purposes of negotiating an offer. All evidence presented
at the summary judgment hearing was that the formation of
Oshkosh Heifer Development was merely the first step in
reaching an accord as to the terms of the conveyance that did
not occur until December.
While it is true that Jessen was both a party to Oshkosh
Heifer Development and the president of Oshkosh Feedyard, it
would be mere speculation to infer that because of Jessen’s dual
roles, he had already reached an accord on behalf of Oshkosh
Feedyard with Oshkosh Heifer Development and fabricated an
arbitrary 3-month delay in selling Oshkosh Feedyard. As we
said in The Nebraskans, Inc. v. Homan, 41 an agent’s specula-
tion that something between the buyers and sellers took place
within the protection period does not create a material issue
of fact. 42
(d) Conspiracy to Tortiously Interfere
With Business Relationship
In its second cause of action, GCE alleged the defendants
engaged in a conspiracy to tortiously interfere with GCE’s
contract, business relationship, or expectation. Specifically,
GCE alleged that Betley, Braun, and Matzke “conspired with
[Jessen] to arrange terms of a sale which deprived [it] of
the Brokerage Fee owed . . . under the Exclusive Listing
Agreement.” Under this theory, GCE again alleged that while
it did not earn a commission under the exclusive listing agree-
ment by producing a ready, willing, and able buyer within the
listing period (or a sale within the protection period), this fail-
ure was proximately caused by the alleged conspiracy between
the defendants.
41
The Nebraskans, Inc. v. Homan, 206 Neb. 749, 294 N.W.2d 879 (1980).
42
See, Lange Indus. v. Hallam Grain Co., supra note 38; Sack Bros. v. Tri-
Valley Co-op, supra note 38; Bedore v. Ranch Oil Co., supra note 40.
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[20-24] A civil conspiracy is a combination of two or
more persons to accomplish by concerted action an unlaw-
ful or oppressive object, or a lawful object by unlawful or
oppressive means. 43 A claim of civil conspiracy requires the
plaintiff to establish that the defendants had an expressed or
implied agreement to commit an unlawful or oppressive act
that constitutes a tort against the plaintiff. 44 The gist of a civil
conspiracy action is not the conspiracy charged, but the dam-
ages the plaintiff claims to have suffered due to the wrongful
acts of the defendants. 45 Furthermore, a civil conspiracy is
actionable only if the alleged conspirators actually committed
some underlying misconduct. 46 That is, a conspiracy is not a
separate and independent tort in itself; rather, it depends upon
the existence of an underlying tort. 47 So without such underly-
ing tort, there can be no cause of action for a conspiracy to
commit the tort. 48
[25,26] To succeed on a claim for tortious interference with
a business relationship or expectancy, a plaintiff must prove
(1) the existence of a valid business relationship or expectancy,
(2) knowledge by the interferer of the relationship or expect
ancy, (3) an unjustified intentional act of interference on the
part of the interferer, (4) proof that the interference caused the
harm sustained, and (5) damage to the party whose relationship
or expectancy was disrupted. 49 One of the basic elements of
tortious interference with a business relationship requires an
43
deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).
44
Id.
45
Id.
46
See id.
47
Id.
48
Id.
49
Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d
610 (2019).
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intentional act that induces or causes a breach or termination
of the relationship or expectancy. 50
[27] Though never explicitly pled or argued, the appar-
ent underlying breach at issue (besides the provision of the
protection period already discussed) is that of the implied
covenant of good faith. Real estate broker agreements, like
other contracts, contain an implied covenant of good faith
pursuant to which the seller impliedly covenants he or she will
do nothing that will have the effect of destroying or injuring
the right of the broker to earn a commission. 51 In Dworak v.
Michals, 52 for example, we held that the real estate agent was
entitled to a commission for having procured buyers ready,
able, and willing to buy on the seller’s terms but who backed
out of the agreement when they learned of misrepresentations
by the seller. Similarly, in Dunn v. Snell, 53 we held that while
the principal had a right under the agreement to revoke the
agency at any time before a sale, where the revocation was in
bad faith, it did not defeat a broker’s right to compensation
for the postrevocation completion of a sale on the same terms
originally proposed by the agent before revocation but rejected
by the buyer.
All the defendants averred that they never had any con-
versations with Jessen about delaying the purchase or trying
to deprive GCE of a commission. They further averred that
they lacked any intent to delay reaching an agreement. Betley,
Braun, and Matzke were not even aware of the exclusive
listing agreement until late June 2014, and, as discussed, it
was undisputed that they negotiated with Jessen with Bretz’
encouragement. There was simply no evidence that could sup-
port a reasonable inference that the defendants all agreed to
50
Id.
51
Kislak Co., Inc. v. Geldzahler, 210 N.J. Super. 255, 509 A.2d 320 (1985).
52
Dworak v. Michals, supra note 20.
53
Dunn v. Snell, 124 Neb. 560, 247 N.W. 428 (1933). See, also, Maddox v.
Harding, 91 Neb. 292, 135 N.W. 1019 (1912).
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intentionally interfere with GCE’s business relationship with
Oshkosh Feedyard or otherwise assist in any bad faith act.
Nor, as discussed with regard to the first cause of action,
was there any evidence from which GCE could establish
proximate causation of any damages deriving from the alleged
conspiracy. In other words, there was no evidence from which
it could reasonably be inferred that but for the alleged con-
spiracy to deprive GCE of a commission, Betley, Braun, and
Matzke would have either made an offer at the listing price or
reached an agreement acceptable to Oshkosh Feedyard on the
price and terms of a purchase, within either the listing period
or the protection period.
(e) Conclusion as to Frivolous
Nature of Suit
[28] On appeal, we will uphold a lower court’s decision
allowing or disallowing attorney fees for frivolous or bad faith
litigation in the absence of an abuse of discretion. 54 A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. 55
Neb. Rev. Stat. § 25-824(2) (Reissue 2016) provides that the
court shall award reasonable attorney fees and costs against
any attorney or party who has brought or defended a civil
action that alleged a claim or defense which a court determines
is frivolous or made in bad faith. Section 25-824(4) provides
that the court shall assess attorney fees and costs if, upon the
motion of any party or the court itself, the court finds that an
attorney or party brought or defended an action or any part
of an action that was frivolous or that the action or any part
of the action was interposed solely for delay or harassment.
Section 25-824(5) clarifies that no attorney fees or costs shall
54
Korth v. Luther, supra note 2.
55
Id.
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be assessed if a claim or defense was asserted by an attorney
or party in a good faith attempt to establish a new theory of
law in this state or if, after filing suit, a voluntary dismissal is
filed as to any claim or action within a reasonable time after
the attorney or party filing the dismissal knew or reasonably
should have known that he or she would not prevail on such
claim or action.
[29-31] Frivolous for the purposes of § 25-824 is defined
as being a legal position wholly without merit, that is, with-
out rational argument based on law and evidence to support
a litigant’s position in the lawsuit. 56 It connotes an improper
motive or legal position so wholly without merit as to be
ridiculous. 57 The determination of whether a particular claim
or defense is frivolous must depend upon the facts of the par-
ticular case. 58
It was not clearly untenable for the district court to deter-
mine that GCE’s pursuit of the first cause of action stated
in its amended complaint was frivolous. As the court noted,
GCE knew it had waived the provision of the protection
period prohibiting direct negotiations with Oshkosh Feedyard
before bringing this action and the 2014 action against Jessen
and Oshkosh Feedyard. GCE’s legal position that Jessen and
Oshkosh Feedyard had breached the contract by failing to
refer purchasers whom Bretz had actual knowledge of and
by negotiating directly with those purchasers, when Bretz
encouraged them to do so, was so wholly without merit as to
be ridiculous.
But GCE’s second cause of action, for conspiracy to inter-
fere with business expectations, was not frivolous, and the
district court abused its discretion in concluding otherwise.
Unlike GCE’s claim for breach of contract, for which it was
56
Id.
57
Id.
58
See Shanks v. Johnson Abstract & Title, 225 Neb. 649, 407 N.W.2d 743
(1987).
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aware of facts making the claim wholly without merit from its
inception, GCE’s claim for conspiracy to interfere with busi-
ness expectations was cognizable and brought with a reason-
able belief that discovery would support its allegations.
We recognize that § 25-824(5) contemplates that attorney
fees may be assessed when a party persists in asserting a
claim after it knows or reasonably should know it would not
prevail on the claim. But while we find that the district court
did not abuse its discretion in denying GCE’s motion for a
continuance in order to take depositions, it does not follow
that GCE’s continuing pursuit of its second cause of action
was unreasonable. Any doubt about whether a legal position
is frivolous or taken in bad faith should be resolved in favor
of the one whose legal position is in question. 59 The record
supports GCE’s contention that it persisted in asserting the
conspiracy claim reasonably believing it was entitled to a
continuance of the summary judgment hearing in order to take
depositions that it reasonably believed could reveal evidence
to support its second cause of action. Accordingly, the district
court abused its discretion by concluding that GCE pursued
its second cause of action after it reasonably should have
known it would not prevail and in awarding attorney fees to
Betley, Braun, Matzke, and Oshkosh Heifer Development on
that basis.
To the extent that the district court awarded attorney fees
to all the defendants based on their defense of both causes of
action since the inception of this lawsuit in 2017, it abused
its discretion. Attorney fees for Jessen and Oshkosh Feedyard
related to the first cause of action should be limited to the fees
incurred in defending that cause of action. No attorney fees
should be awarded in relation to the second cause of action.
Thus, the court erred in awarding any attorney fees to Betley,
Braun, Matzke, and Oshkosh Heifer Development—defendants
solely to the second cause of action. We reverse the order of
59
TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
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attorney fees and remand the cause with directions for the court
to redetermine the amount of attorney fees to be awarded to
Jessen and Oshkosh Feedyard in relation to their defense of the
first cause of action.
3. Cross-Appeal
On cross-appeal, Jessen and Oshkosh Feedyard assign
and argue that the district court erred by not sustaining
their motion to disqualify GCE’s counsel and by failing to
make the award of attorney fees joint and several against
GCE’s attorneys.
[32,33] We find that Jessen and Oshkosh Feedyard’s assign-
ment of error regarding the denial of their motion to disqualify
GCE’s counsel is moot. Mootness refers to events occurring
after the filing of a suit, which eradicate the requisite personal
interest in the resolution of the dispute that existed at the
beginning of the litigation. 60 An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 61 Jessen and Oshkosh Feedyard
prevailed in their summary judgment motion against GCE
despite the alleged conflict of interest of GCE’s counsel. They
take pains to point out in appealing the denial of their motion
to disqualify GCE’s counsel that they do not wish to relitigate
this underlying result. They simply argue that the same counsel
should be disqualified for similar reasons in the action against
Jessen for self-dealing. Jessen, sued in his individual capacity
in the self-dealing action, is free to move to disqualify plain-
tiffs’ counsel in that case if he believes he has standing and
grounds for such a motion.
[34] We find no merit to Jessen and Oshkosh Feedyard’s
assertion that the district court abused its discretion by failing
to order that GCE’s attorneys have joint and several liability
with GCE for the award of attorney fees pursuant to § 25-824.
60
Bramble v. Bramble, 303 Neb. 380, 929 N.W.2d 484 (2019).
61
Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).
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Under § 25-824, “[w]hen a court determines reasonable attor-
ney’s fees or costs should be assessed, it shall allocate the
payment of such fees or costs among the offending attorneys
and parties as it determines most just and may charge such
amount or portion thereof to any offending attorney or party.”
Allocation of amounts due between offending parties and
attorneys is “‘part and parcel’” of the determination of the
amount of the award and is reviewed for an abuse of discre-
tion. 62 GCE was clearly the driving force of its 5-year fruitless
pursuit of a commission for the sale of Oshkosh Feedyard.
Further, the defendants never presented an argument to the
district court as to why GCE’s attorneys should be held jointly
and severally responsible for GCE’s continuing pursuit of the
frivolous action. Under these facts, the district court’s judg-
ment assessing costs and fees solely against GCE was not
clearly untenable.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the dis-
trict court granting summary judgment. We reverse the district
court’s award of attorney fees and remand the cause with direc-
tions to reassess the amount of the award of attorney fees to
Jessen and Oshkosh Feedyard in accordance with this opinion.
Affirmed in part, and in part reversed
and remanded with directions.
62
See Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 1006, 573 N.W.2d
467, 472 (1998). | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2686392/ | Central Mtge. Co. v McClelland (2014 NY Slip Op 05503)
Central Mtge. Co. v McClelland
2014 NY Slip Op 05503
Decided on July 30, 2014
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 July 30, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentTHOMAS A. DICKERSON, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.
2013-03898
(Index No. 131062/10)
[*1]Central Mortgage Company, respondent,
vVincent McClelland, et al., appellants, et al., defendants.
Hanna & Vlahakis, Brooklyn, N.Y. (Derrick Hanna of counsel), for appellants.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Nicole L. Milone and Alan J. Waintraub of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Vincent McClelland and Denise McClelland appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated February 11, 2013, as granted the plaintiff's motion for leave to renew and reargue and, upon renewal and reargument, in effect, vacated so much of an order of the same court dated September 6, 2012, as denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them, and granted that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against them, and thereupon, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them and denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order dated February 11, 2013, is affirmed insofar as appealed from, with costs.
This action to foreclose a mortgage was commenced in June 2010 against, among others, the defendants Vincent McClelland and Denise McClelland (hereinafter together the appellants). In January 2012 the plaintiff moved, inter alia, for summary judgment on the complaint, and the appellants cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them for lack of standing. In an order dated September 6, 2012, the Supreme Court denied the plaintiff's motion and granted that branch of the appellants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them for lack of standing.
In October 2012, the plaintiff moved for leave to renew and reargue its motion and its opposition to the appellants' cross motion. In the order appealed from, the Supreme Court granted the plaintiff's motion for leave to renew and reargue and, upon renewal and reargument, in effect, vacated so much of the order dated September 6, 2012, as denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellants, and granted that branch of the appellants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them, and thereupon, granted that branch of the plaintiff's motion and denied that branch of the appellants' cross motion.
A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court (see Biscone v JetBlue Airways Corp., 103 AD3d 158, 180; HSBC Bank USA, N.A. v Halls, 98 AD3d 718, 720; Matter of Swingearn, 59 AD3d 556). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]). A motion for leave to reargue must be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to renew and reargue and, upon renewal and reargument, properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellants, and properly denied that branch of the appellants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them for lack of standing. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the underlying note, and evidence of the appellants' default, and by demonstrating that the appellants' affirmative defense of lack of standing was without merit (see Bank of N.Y. Mellon Trust Co. v McCall, 116 AD3d 993). The plaintiff established its standing to maintain this foreclosure action by demonstrating that the note was physically delivered to it prior to the commencement of this action (see Aurora Loan Servs., LLC v Taylor, 114 AD3d 627, 628). In opposition, the appellants failed to raise a triable issue of fact.
DICKERSON, J.P., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 07-30-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2043512/ | 758 N.W.2d 91 (2008)
STATE
v.
CROSS.
No. 2007AP0720-CR.
Supreme Court of Wisconsin.
July 28, 2008.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2043526/ | 758 N.W.2d 841 (2008)
IN RE MARRIAGE OF FRICK
No. 06-1243.
Court of Appeals of Iowa.
September 17, 2008.
Decision without published opinion. Reversed and Remanded with Instructions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2043529/ | 758 N.W.2d 924 (2008)
ESTATE OF GENRICH
v.
OHIC INS. CO.
No. 2007AP0541.
Supreme Court of Wisconsin.
September 12, 2008.
Petition for review granted.
(BRADLEY, J., did not participate). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4166730/ | 05/05/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 3, 2017
IN RE TRAVIS H.
Appeal from the Juvenile Court for Jefferson County
No. 16-00424 Dennis Roach, II, Judge
___________________________________
No. E2016-02250-COA-R3-PT
___________________________________
Father appeals the termination of his parental rights on grounds of: (1) failure to
substantially comply with permanency plans; (2) abandonment by failure to establish a
suitable home; (3) persistence of conditions, (4) abandonment by an incarcerated parent
for wanton disregard; and (5) abandonment by an incarcerated parent for willful failure to
support. We vacate the trial court’s determination regarding the ground of abandonment
by an incarcerated parent for willful failure to support, but otherwise affirm the trial
court’s determinations regarding the remaining grounds for termination. We likewise
affirm the trial court’s determination that termination of Father’s parental rights is in the
child’s best interest. Accordingly, we affirm the termination of Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in
Part and Affirmed in Part
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
Daniel Hellman, Knoxville, Tennessee, for the appellant, Travis H.
Herbert H. Slatery, III, Attorney General and Reporter; Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
James D. Hutchins, Dandridge, Tennessee, Guardian ad Litem.
OPINION
Background
The child at issue in this appeal was born in October 2013 to unmarried parents
Travis H. (“Father”) and Bobbie S.S (“Mother”).1 On May 16, 2015, the child and his
half-sister (“half-sister”)2 were removed from parents’ home due to allegations of
nutritional neglect, drug exposure, and environmental neglect. On July 1, 2015, Father
signed the Criteria and Procedures for Termination of Parental Rights. On August 19,
2015, the juvenile court adjudicated the children dependent and neglected and they were
placed in the custody of the Tennessee Department of Children’s Services (“DCS”).
DCS developed three permanency plans for the child, all of which were ratified by
the trial court. The first plan, developed in June 2015, required that Father obtain and
maintain appropriate drug-free housing for a period of three to four months, have stable
income and pay child support, have a means of transportation or a plan for transportation,
complete parenting classes, obtain mental health and alcohol and drug assessments and
follow all recommendations, and submit to random drug screens and pill counts. In
addition, with regard to many of the requirements above, Father was required to submit
proof that he had met these requirements to DCS. In the six months following the
development of the plan, Father completed a mental health assessment and an alcohol and
drug assessment. DCS alleges, however, that Father failed to follow the recommendations
that resulted from the assessments or otherwise complete any of the plan’s additional
requirements. The second plan, developed in September 2015, added only one additional
requirement—that Father follow the recommendations of his mental health assessment. A
final plan was developed in March 2016. This plan changed the goal from reunification to
adoption, but did not alter Father’s responsibilities.
In January 2016, Father was arrested on three counts of theft and thirteen counts of
fraudulent use of a credit card. Father was eventually sentenced to eleven months,
twenty-nine days, of which he served forty-five days in confinement. After Father’s
release from confinement in February 2016, he was soon arrested on additional charges.
First, Father was arrested in April 2016 for failure to pay child support. Father posted a
$100.00 bond on this charge to secure his release. On or about May 3, 2016, Father was
again arrested, this time for violating his probation. It appears from the record that Father
was sentenced to thirty days with “two for ones.” Father was again arrested in June 2016
for violating his probation and was sentenced to serve the remainder of his sentence.
While incarcerated, Father was charged with an additional crime after he walked away
from a work detail. It appears that Father was sentenced to serve sixty days consecutive
for the crime of escape. Father also pleaded guilty to driving on a suspended license in
July 2016. It appears Father was sentenced to six months incarceration for this crime,
again consecutive to the violation of probation Father was serving at the time of the plea.
1
In termination of parental rights cases, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.
2
The child and half-sister share the same mother but have different fathers.
-2-
In the meantime, on May 20, 2016, while Father was incarcerated, DCS filed a
petition to terminate Father’s parental rights on the grounds of: (1) failure to substantially
comply with permanency plans; (2) abandonment by failure to establish a suitable home;
(3) persistence of conditions, (4) abandonment by an incarcerated parent for wanton
disregard; (5) abandonment by an incarcerated parent for willful failure to support; and
(6) abandonment by an incarcerated parent for willful failure to visit.3 DCS later
withdrew its allegations concerning willful failure to visit. A trial occurred on September
14, 2016. At the time of trial, Father remained incarcerated and was expected to be
released in March 2017.
Mother, Father, the half-sister’s father, a DCS case worker, and the children’s
Foster Mother testified at trial. Because this appeal only involves Father, we will only
discuss the testimony that is relevant to his appeal. Father testified that DCS had been
previously involved with the family due to marijuana use. The family at that time had
participated in DCS Services, but, soon after DCS ceased involvement with the family,
drug use again became an issue. Father admitted that the children had been removed from
his home in May 2015 but denied that their removal was the result of his drug use. There
is no dispute that Mother and two other persons living in the home at the time of the
removal tested positive for illegal drugs. A drug screen performed on May 12, 2015, also
showed that Father was positive for “BUP.”4 Father testified, however, that he was
prescribed Suboxone, a form of BUP, by a physician and that he only began taking the
drug shortly after the removal of the children. According to Father, when he could no
longer afford physician’s visits, he purchased his Suboxone from “the street.” Father also
admitted that he tested positive for methamphetamine in August 2015 but claimed that he
only used that drug once. Father likewise admitted to using marijuana when he was not
incarcerated and that he had previously attended drug rehabilitation. A drug screen
performed on Father in October 2015 showed that Father tested positive for marijuana.
Father testified without dispute, however, that he had taken a drug screen the day of trial,
which had come back “clean.”
Father testified that he was currently incarcerated with an anticipated release date
of March 2017. Father stated, however, that he hoped to be released earlier if he is
approved for drug court. According to Father, he was arrested in January 2016 on three
theft charges, as well as thirteen fraudulent use of a credit card charges. Father had no
criminal history prior to January 2016. Father also admitted that the credit card belonged
to his sister. Eventually, Father pleaded guilty to these charges and was sentenced to
3
The petition also sought the termination of Mother’s parental rights to the children, as
well as the termination of parental rights of half-sister’s father. The trial court terminated
Mother’s and the half-sister’s father’s parental rights, but they have not appealed.
4
By “BUP” we assume that Father tested positive for buprenorphine, “a synthetic opioid
agonist-antagonist . . . administered . . . for the relief of moderate to severe pain and . . . used . . .
to treat opioid dependency.” Mosby’s Dictionary of Medicine, Nursing, & Health Professions
258 (9th ed. 2013).
-3-
eleven months, twenty-nine days incarceration, suspended to forty-five days. Father
testified that he was released from jail in late February, only to return to jail in April for
failure to pay child support. Father testified, however, that he was immediately released
from incarceration after making a purge payment of $100.00, which Father testified
represented ten $10.00 monthly payments based upon a previous child support order. In
April, Father returned to jail for approximately fifteen days for a violation of probation.
Father again returned to jail in June 2016, where he remained at the time of trial.
Father next testified regarding his efforts to pay support, establish a home, and
meet his obligations under the permanency plans. Father acknowledged that he was
aware of his requirements under the permanency plans. According to Father, he
attempted to meet those requirements when he was not incarcerated. Father testified that
prior to January 2016, he was employed at several different locations, but that he never
had difficulty finding a job. According to Father, he used his income for rent, food, gas,
and hygiene; the little money that was left over went toward attempting to find suitable
housing and sometimes cigarettes. Father testified that prior to his current incarceration,
he was attempting to get a job in roofing to maintain a more stable income for the child.
Father testified that he put in two applications for housing but that he never heard back.
As such, Father testified that he moved around considerably following the removal of the
children. Father admitted that DCS was unable to perform a home study on at least one of
the residences because he “never followed up with that.” The instability of Father’s
housing had been ameliorated, however, according to Father, as he testified that he and
the child would live in a home provided by his father upon his release from incarceration.
Father also testified that, although he did complete both a mental health and an
alcohol and drug assessment, he had been unable to complete the recommendations of
either. Specifically, Father testified that he could not complete the requirements of the
alcohol and drug assessment because he was incarcerated. With regard to the mental
health assessment, Father testified that he refused the recommendation to be placed on
medication management because he had witnessed others go through withdrawal after
taking similar drugs. Father testified, however, that he would participate in counseling
regarding his pain management.
Katharyn Way, the child’s DCS caseworker, testified regarding her involvement in
the case. Ms. Way had been involved with the case since the summer of 2015. According
to Ms. Way, the children were removed from the home due to drug use by several adults
in the home, the lack of utilities in the home, and questions regarding malnourishment of
the child’s half-sister. Ms. Way testified regarding Father’s visits with the child. In
general, Father made an effort to visit with the child prior to becoming incarcerated in
January 2016.
-4-
Ms. Way testified that she attempted to help Father obtain stable housing by
giving Father a brochure of possible housing options and providing a letter for Father to
attach to his housing applications. In addition, Ms. Way testified that she informed Father
that DCS would help with rental payments once housing was secured. Because Father
never provided proof to DCS that he had secured housing, however, this service was
never used. Instead, Ms. Way testified that Mother and Father often informed her that
they were moving or had recently moved. Often, the addresses provided to Ms. Way were
inaccurate. As a result, Ms. Way was unable to perform a home study on any home that
Father allegedly resided in. Ms. Way also testified that she had difficulty contacting
Father, who had given her as many as eight different telephone numbers during her
tenure on the case.
Ms. Way testified that DCS developed three permanency plans for Father. After
giving Father six months on each plan with Father making little to no progress, DCS
decided to go forward with termination. Indeed, Ms. Way testified that Father’s living
situation was worse at the time of trial than when the children were originally taken, as
Father was now incarcerated.
Foster Mother testified that the child and half-sister have been residing in the
home since July 28, 2015.5 According to Foster Mother, the child is doing well in the
home. Although the child suffers from anxiety in large groups, Foster Mother testified
that the child has bonded with the church family where her husband is a pastor. The child
refers to Foster Mother and her husband as mommy and daddy. According to Foster
Mother, the child has never asked about Father. Foster Mother further testified that it is
her and her husband’s desire to have the children become permanent members of their
home, either as legal guardians or by becoming approved to adopt the children.
The trial court entered an order terminating Father’s parental rights to the child.
The trial court first noted that DCS conceded that they could not prove willful failure to
visit at trial. The trial court concluded, however, that clear and convincing evidence of
abandonment by an incarcerated parent through wanton disregard was established, as
Father had engaged in drug use and criminal activity throughout the child’s life, leading
him to be incarcerated. Next, the trial court concluded that DCS had shown that Father
failed to establish a suitable home for the child, given DCS’s evidence about the efforts
its agents expended in helping Father to find a home and Father’s admissions that rather
than find a home, he engaged in further criminal activity and failed to keep in touch with
DCS concerning his living arrangements. The trial court also concluded that the ground
of substantial non-compliance with a permanency plan had been met, as Father failed to
obtain stable housing or employment and failed to follow the recommendations resulting
from his mental health and alcohol and drug assessments. In addition, the trial court
5
Foster Mother testified that she also provided temporary care for the child and half-sister for
five days at the end of June 2015, but that the children did not begin to continuously reside in her home
until late July.
-5-
concluded that DCS had proven the ground of persistent conditions, in that Father had
failed to remedy the lack of suitable home that led to the child’s removal and appears to
have made little progress toward achieving the stability necessary to return the child to
him. The trial court also found that Father failed to pay any support in the period of time
from September 6, 2015, to January 6, 2016. Although the trial court noted that Father
made a $100.00 payment in April 2016, the trial court determined that this payment was
token. Finally, the trial court ruled that the termination of Father’s parental rights was in
the child’s best interest. Father now appeals.
Issues Presented
Father presents five issues for our review, which are taken from his brief and
reordered:
1. Was the evidence presented at trial sufficient to meet the clear and
convincing standard that the termination was appropriate based upon the
ground of abandonment by failure to provide a suitable home.
2. Was the evidence presented at trial sufficient to meet the clear and
convincing standard that the termination was appropriate based upon the
ground of abandonment by incarcerated parent by wanton disregard.
3. Was the evidence presented at trial sufficient to meet the clear and
convincing standard that the termination was appropriate based upon the
ground of abandonment by incarcerated parent for failure to support.
4. Was the evidence presented at trial sufficient to meet the clear and
convincing standard that the termination was appropriate based upon the
ground of substantial noncompliance with the permanency plan.
5. Was the evidence presented at trial sufficient to meet the clear and
convincing standard that the termination was appropriate based upon the
ground of persistent conditions.
6. Was the evidence presented at trial sufficient to meet the clear and
convincing standard that the termination was in the best interest of the
child.
Analysis
According to the Tennessee Supreme Court:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state constitutions. Troxel v.
Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re
Adoption of Female child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v.
Hawk, 855 S.W.2d 573, 578–79 (Tenn. 1993). But parental rights, although
-6-
fundamental and constitutionally protected, are not absolute. In re Angela
E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
as parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).
Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434
S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-
R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29,
2005)). A person seeking to terminate parental rights must prove both the existence of
one of the statutory grounds for termination and that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the
grounds for termination and the best interest inquiry must be established by clear and
convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at
546. Clear and convincing evidence “establishes that the truth of the facts asserted is
highly probable . . . and eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn.
Ct. App. 2004). Such evidence “produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established.” Id. at 653.
As our supreme court opined:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. In re M.L.P., 281 S.W.3d [387,]
393 [(Tenn. Ct. App. 2009)] (quoting In re Adoption of A.M.H., 215
S.W.3d [793], 810 [(Tenn. 2007)]). Additionally, all other questions of law
in parental termination appeals, as in other appeals, are reviewed de novo
with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
Carrington H., 2016 WL 819593, at *12.
-7-
When the resolution of an issue in a case depends upon the truthfulness of
witnesses, the trial judge, who has had the opportunity to observe the witnesses and their
manner and demeanor while testifying, is in a far better position than this Court to decide
those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith,
and credit to be given to any witness’s testimony lies in the first instance with the trier of
fact, and the credibility accorded will be given great weight by the appellate court.
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
Accordingly, we must determine whether clear and convincing evidence in the
record supports the grounds for termination found by the trial court. We begin first with
abandonment.
Grounds for Termination
Abandonment Generally
Tennessee Code Annotated section 36-1-113(g)(1) provides that abandonment
may constitute a ground for termination. In turn, Tennessee Code Annotated section 36-
1-102(1)(A) provides various situations wherein abandonment may be found. Here, DCS
pursued three types of abandonment against Father: (1) abandonment by failure to
establish a suitable home; (2) abandonment by an incarcerated parent for wanton
disregard; and (3) abandonment by an incarcerated parent for willful failure to pay
support. We will first consider whether the ground of abandonment by failure to establish
a suitable home was proven by clear and convincing evidence.
I.
According to section 36-1-102(1)(A):
For purposes of terminating the parental or guardian rights of a parent or
parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
* * *
(ii) The child has been removed from the home of the parent or parents or
the guardian or guardians as the result of a petition filed in the juvenile
court in which the child was found to be a dependent and neglected child,
as defined in § 37-1-102, and the child was placed in the custody of the
department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition is filed
finds, that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the circumstances
-8-
of the child's situation prevented reasonable efforts from being made prior
to the child's removal; and for a period of four (4) months following the
removal, the department or agency has made reasonable efforts to assist the
parent or parents or the guardian or guardians to establish a suitable home
for the child, but that the parent or parents or the guardian or guardians
have made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that they will be able to provide a suitable home for the child at an
early date. The efforts of the department or agency to assist a parent or
guardian in establishing a suitable home for the child may be found to be
reasonable if such efforts exceed the efforts of the parent or guardian
toward the same goal, when the parent or guardian is aware that the child is
in the custody of the department; . . . .
A suitable home “requires more than a proper physical living location.” In re Hannah
H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10,
2014) (quoting State v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3
(Tenn. Ct. App. Nov. 29, 2007)). “It requires that the home be free of drugs and domestic
violence.” Id.
Here, the trial court found that the child was removed from Father’s home in May
2015 due to malnutrition, lack of utilities, and drug use. Thereafter, the children were
adjudicated dependent and neglected. The trial court further noted that DCS had
attempted to assist Father in providing a suitable home in the four months following the
child’s removal. Despite this help, the trial court found that Father had made little effort
to establish a suitable home for himself and his child. Rather, he moved several times,
providing inaccurate addresses to DCS on a number of occasions, all the while “living the
lifestyle of a criminal” by using illegal drugs and engaging in criminal activity. Given
that Father remained incarcerated at the time of trial, the trial court concluded that DCS
established that Father failed to establish a suitable home.
Nothing in the record preponderates against the trial court’s findings of fact with
regard to this ground. The record shows that the children were removed from Father’s
home and adjudicated dependent and neglected as required by section 36-1-102(1)(A)(ii).
Additionally, Father’s DCS caseworker, Ms. Way, testified that in the four months
following the removal of the child, she drafted a letter for Father to use in applying for
housing, as well as provided Father a resource guide for finding appropriate housing.
According to the Ms. Way, Father would often state that he had stable housing but failed
to disclose an accurate address where he was living, so no home study was ever able to be
accomplished. Additionally, Ms. Way informed Father that DCS could help with rental
payments once housing was secured. Because Father never provided any proof to DCS
that he had secured housing beyond his multiple unsubstantiated claims, however, this
assistance was never utilized. The evidence therefore does not preponderate against the
-9-
trial court’s finding that DCS expended reasonable efforts in the four months following
the child’s removal. Despite these efforts, the record is clear that Father has not
established a home for the child; instead, he continued to engage in criminal behavior and
drug use, leading him to be incarcerated at the time of trial. Even prior to Father’s current
incarceration, he made little effort to establish a suitable home; instead, as Ms. Way’s
testimony shows, Father moved frequently and failed to provide DCS with accurate
addresses so that home studies could be conducted.
In his brief, however, Father asserts that he undertook various efforts to establish a
suitable home, including seeking better employment and putting applications in to
various housing locations. Even taking this evidence as true, however, Father cannot
deny that he continued to engage in criminal activity and drug use that prevented him and
continues to prevent him from establishing a home for the child. Indeed, this Court has
previously held that “[i]n parental rights matters, the court does not look to the
protestations of affections and expressed intentions of the parent, but rather the parent’s
course of conduct.” State, Dep’t of Children’s Servs. v. J.M.F., No. E2003-03081-
COA-R3-PT, 2005 WL 94465, at *7 (Tenn. Ct. App. Jan. 11, 2005). Here, the evidence
concerning Father’s intentions therefore does not outweigh the evidence concerning
Father’s conduct after the removal of the children, which illustrates that he made no
reasonable effort toward establishing a suitable home for his child. The record therefore
contains clear and convincing evidence to support this ground for termination.
Consequently, the trial court’s determination with regard to this ground is affirmed.
II.
Tennessee Code Annotated section 36-1-102(a)(iv) provides additional
mechanisms by which abandonment may be proven when the parent is incarcerated at or
shortly before the filing of the termination petition. Section 36-1-102(a)(iv) provides that
abandonment may be shown by proving that:
A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or has willfully failed to support or
has willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent's
or guardian's incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child. . . .
As stated by this Court in In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005):
The General Assembly’s decision to provide two additional tests for
abandonment for incarcerated or recently incarcerated parents reflects, in
- 10 -
part, the difficulties inherent in proving that a parent has willfully failed to
visit or support a child for four consecutive months when the parent was
incarcerated during all or part of that time. Incarceration necessarily
restricts a prisoner’s freedom of movement, and many prisoners have no
resources with which to continue paying child support once their crimes
and resulting imprisonment have forced them to forfeit their regular jobs.
Thus, the parent’s incarceration provides a ready-made excuse for his or her
failure to visit or support the child during the four-month period made
relevant by the first statutory definition of abandonment. However, the
strong public interest in providing procedures for terminating the parental
rights of unfit parents does not dissipate simply because a parent’s
irresponsible conduct has reached the level of criminal behavior and
incarceration.
* * *
Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the
commonsense notion that parental incarceration is a strong indicator that
there may be problems in the home that threaten the welfare of the child.
Incarceration severely compromises a parent's ability to perform his or her
parental duties. A parent’s decision to engage in conduct that carries with it
the risk of incarceration is itself indicative that the parent may not be fit to
care for the child. [James G. Dwyer,] Taxonomy of Children’s Rights, 11
Wm. & Mary Bill Rts. J. [845,] at 958 [(2003)]. However, parental
incarceration is not an infallible predictor of parental unfitness.
Id. at 865–66 (footnotes omitted).
Here, Father does not dispute that he was incarcerated at or in the four months
preceding the filing of the termination petition. Rather, Father argues that clear and
convincing evidence has not been shown to support either wanton disregard or willful
failure to support under this definition. We begin with wanton disregard.
A.
With regard to the ground of abandonment by an incarcerated parent through
wanton disregard, this Court has explained:
Incarceration alone is not conclusive evidence of wanton conduct
prior to incarceration. In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct.
App. 2005). Rather, “incarceration serves only as a triggering mechanism
that allows the court to take a closer look at the child’s situation to
determine whether the parental behavior that resulted in incarceration is
part of a broader pattern of conduct that renders the parent unfit or poses a
risk of substantial harm to the welfare of the child.” Id. The statutory
- 11 -
language governing abandonment due to a parent’s wanton disregard for
the welfare of a child “reflects the commonsense notion that parental
incarceration is a strong indicator that there may be problems in the home
that threaten the welfare of the child” and recognizes that a “parent’s
decision to engage in conduct that carries with it the risk of incarceration is
itself indicative that the parent may not be fit to care for the child.” Id.
Numerous cases have held that a parent’s previous criminal conduct,
coupled with a history of drug abuse, constitutes a wanton disregard for the
welfare of the child. See, e.g., State v. J.M.F., No. E2003-03081-COA-R3-
PT, 2005 WL 94465, at *8 (Tenn. Ct. App. Jan. 11, 2005); In re C. LaC.,
No. M2003-02164-COA-R3-PT, 2004 WL 533937, at *7 (Tenn. Ct. App.
Mar. 17, 2004); State v. Wiley, No. 03A01-9903-JV-00091, 1999 WL
1068726, at *7 (Tenn. Ct. App. Nov. 24, 1999); In the Matter of Shipley,
No. 03A01-9611-JV-00369, 1997 WL 596281, at *5 (Tenn. Ct. App. Sept.
29, 1997).
In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *5 (Tenn. Ct. App.
Dec. 22, 2009).
Here, the trial court found that Father had engaged in illegal drug use as a late as
August 2015. In addition, the trial court noted that Father had been arrested multiple
times in 2016, for crimes ranging from theft, driving violations, escape from
incarceration, and thirteen counts of fraudulent use of a credit card. The trial court
therefore concluded that the ground of wanton disregard had been shown by clear and
convincing evidence. Father argues, however, that his criminal record does not extend to
years prior to the children’s removal and his clean drug screen at trial illustrate that he did
not exhibit wanton disregard for the child sufficient to support this ground for
termination.
Respectfully, we cannot agree. “[P]robation violations, repeated incarceration,
criminal behavior, substance abuse, and the failure to provide adequate support or
supervision for a child can, alone or in combination, constitute conduct that exhibits a
wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at 867–68.
Here, Father admitted to multiple arrests since the children were removed. Indeed, at the
time of trial, Father was currently incarcerated due to a violation of his probation, driving
on a suspended license, and escape. Although Father’s criminal history is not lengthy, he
appears to have engaged in a multitude of criminal activity in just a short period of time.
Moreover, all of Father’s charges occurred after the child was removed, when Father was
supposed to be working toward reunification. Rather than making effort in this regard,
Father chose to engage in theft and then could not abide by the conditions of his release,
leading to his current incarceration. Father was well aware of what was required of him to
reunify with the child; instead, he chose to engage in criminal conduct that pushed that
reunification date even further into the future with little regard for what that separation
meant for the child.
- 12 -
Additionally, Father’s clean drug screen at trial is of little relevance, as he was
incarcerated at the time the drug screen was performed and admitted to using illegal
drugs well after the removal of the children. Indeed, the record shows that DCS had
previously been involved with the family due to drug use, but that Father and those living
in the home soon returned to using drugs after DCS was no longer involved with the
family. Father’s decision to use drugs when it was the very reason for DCS’s repeated
involvement in the case shows that he had little regard to whether the drug use was likely
to impact his child. Under these circumstances, we conclude that clear and convincing
evidence in the record supports the ground of abandonment by wanton disregard.
B.
DCS also alleged that Father willfully failed to support the child under section 36-
1-102(1)(A)(iv). As previously discussed, section 36-1-102(1)(A)(iv) provides that
abandonment may be proven by showing that the parent “has willfully failed to support
or has willfully failed to make reasonable payments toward the support of the child for
four (4) consecutive months immediately preceding such parent’s or guardian’s
incarceration.” Accordingly, this Court must first determine the appropriate four-month
period in which we must judge Father’s efforts to support the child.
As is evident in this case, the determination of the proper four-month period is
complicated by the fact that Father was in and out of jail in the months prior to the filing
of the termination petition. The trial court in this case therefore utilized the first
consecutive four month period prior to Father’s initial incarceration or September 6, 2015
to January 6, 2016. In 2016, however, the Tennessee General Assembly amended
Tennessee Code Annotated section 36-1-102 to provide a different method of calculating
the four-month period for purposes of determining willful failure to visit or support for an
incarcerated parent. As Tennessee Code Annotated section 36-1-102(a)(iv) now explains:
If the four-month period immediately preceding the institution of the action
or the four-month period immediately preceding such parent’s incarceration
is interrupted by a period or periods of incarceration, and there are not four
(4) consecutive months without incarceration immediately preceding either
event, a four-month period shall be created by aggregating the shorter
periods of nonincarceration beginning with the most recent period of
nonincarceration prior to commencement of the action and moving back in
time. Periods of incarceration of less than seven (7) days duration shall be
counted as periods of nonincarceration. Periods of incarceration not
discovered by the petitioner and concealed, denied, or forgotten by the
parent shall also be counted as periods of nonincarceration. A finding that
the parent has abandoned the child for a defined period in excess of four (4)
months that would necessarily include the four (4) months of
- 13 -
nonincarceration immediately prior to the institution of the action, but
which does not precisely define the relevant four-month period, shall be
sufficient to establish abandonment; . . . .
Tenn. Code Ann. § 36-1-102(a)(iv), effective July 1, 2016. Because this amendment was
applicable at the time of the final hearing on this cause, we believe it should have been
applied in this case. Accordingly, rather than look to the first consecutive four-month
period in which Father was not incarcerated, the trial court was required to determine the
four-month period by piecing together Father’s periods of non-incarceration prior to the
filing of the termination petition. In failing to utilize this calculation, it therefore appears
that the trial court utilized an inappropriate four-month period.
This Court has indicated that where the grounds of abandonment by an
incarcerated parent for willful failure to support is properly alleged in the termination
petition, but the trial court relied on the wrong four-month period, the “omission . . .
require[s] us to [vacate and] remand for findings on that issue.” In re Abbigail C., No.
E2015-00964-COA-R3-PT, 2015 WL 6164956, at *14 (Tenn. Ct. App. Oct. 21, 2015).
Accordingly, we must vacate the trial court’s determination with regard to these grounds.
State v. McBee, No. M2003-01326-COA-R3-PT, 2004 WL 239759, at *6 (Tenn. Ct.
App. 2004) (noting that when a trial court fails to make findings of fact on an issue “we
cannot simply review the record de novo and determine for ourselves where the
preponderance of the evidence lies”). As discussed throughout this Opinion, however,
other grounds exist to terminate Father’s parental rights. In addition, as discussed, infra,
we have affirmed the trial court’s determination that termination is in the child’s best
interest. Thus, a determination that clear and convincing evidence exists to support the
grounds of abandonment by an incarcerated parent through failure to visit and support is
not necessary to uphold the termination of Father’s parental rights. Under these
circumstances, remanding for reconsideration of these grounds would only further
prolong these proceedings without altering the outcome. Accordingly, we decline to
remand this issue to the trial court for reconsideration. See In re Abbigail C., No. E2015-
00964-COA-R3-PT, 2015 WL 6164956, at *10 (Tenn. Ct. App. Oct. 21, 2015) (vacating
but not remanding under similar circumstances).
Substantial Non-Compliance with Permanency Plans
DCS also alleged that a ground for termination existed under Tennessee Code
Annotated section 36-1-113(g)(2), which provides a ground for termination where
“[t]here has been substantial noncompliance by the parent or guardian with the statement
of responsibilities in a permanency plan pursuant to the provisions of title 37, chapter 2,
part 4[.]” Further, Tennessee Code Annotated section 37-2-403 provides, in relevant part:
Substantial noncompliance by the parent with the statement of
responsibilities provides grounds for the termination of parental rights,
notwithstanding other statutory provisions for termination of parental
- 14 -
rights, and notwithstanding the failure of the parent to sign or to agree to
such statement if the court finds the parent was informed of its contents,
and that the requirements of the statement are reasonable and are related to
remedying the conditions that necessitate foster care placement.
The determination of whether there has been substantial noncompliance with a
permanency plan is a question of law, to be reviewed on appeal de novo with no
presumption of correctness. In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002).
Termination of parental rights under Tennessee Code Annotated section 36-1-113(g)(2)
“requires more proof than that a parent has not complied with every jot and tittle of the
permanency plan.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). To
succeed under section 36-1-113(g)(2), DCS “must demonstrate first that the requirements
of the permanency plan are reasonable and related to remedying the conditions that
caused the child to be removed from the parent’s custody in the first place.” In re M.J.B.,
140 S.W.3d at 656–57 (citing In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124
S.W.3d 609, 621 (Tenn. Ct. App. 2003)). Second, DCS must show that “the parent’s
noncompliance is substantial in light of the degree of noncompliance and the importance
of the particular requirement that has not been met.” In re M.J.B., 140 S.W.3d at 657
(citing In re Valentine, 79 S.W.3d at 548–49; In re Z.J.S., No. M2002-02235-COA-R3-
JV, 2003 WL 21266854, at * 12 (Tenn. Ct. App. June 3, 2003)).
The record on appeal contains three permanency plans ratified by the trial court.
Each plan contains a statement of responsibilities applicable to Father, which are largely
identical across all three plans. Specifically, Father was required to participate in an
alcohol and drug assessment and follow recommendations, maintain safe, stable, drug-
free housing and provide proof to DCS thereof, to attend parenting classes and provide
proof to DCS of completion, to submit to random drug screens and pill counts, have a
means of transportation or a plan for transportation, obtain and maintain stable
employment and provide proof to DCS, and to participate in a mental health assessment
and follow recommendations.
Here, Father does not dispute that he was informed of his requirements under the
various permanency plans. Father also does not argue that the requirements of the
permanency plans were unreasonable or unrelated to the conditions that caused the child
to be removed from the home. Rather, Father argues that he substantially complied with
the applicable permanency plans by completing alcohol and drug and mental health
assessments, participating in parenting classes, and establishing that he had “ready access
to housing.” Father also cites the fact that he tested negative for illegal substances on the
date of trial.
The trial court agreed that Father had completed drug/alcohol and mental health
assessments, as well as parenting classes. The trial court disagreed, however, that these
actions constituted compliance with the permanency plans, as Father failed to follow the
- 15 -
recommendations from the assessments, failed to establish a suitable home, and was
incarcerated due to criminal activity at the time of trial.
Based on the record before us, the evidence does not preponderate against the trial
court’s findings of fact with regard to this ground. As previously discussed, Father had
not established a suitable home at the time of trial, much less provided DCS with proof of
such. Indeed, even taking Father’s unsubstantiated testimony that he could secure
appropriate housing upon his release from incarceration, there is simply no evidence that
Father ever provided documentation to DCS to support his claims. Instead, the record
shows that Father often provided inaccurate addresses to DCS, which prevented DCS
from performing a home study on Father’s various homes throughout the proceedings.
Additionally, Father admitted that he abused illegal drugs even after the removal of the
child and points to only a single clean drug screen as evidence that he no longer abuses
drugs. This drug screen, however, was performed while Father had been incarcerated for
several months. Because of Father’s incarceration, he was also unable to obtain and
maintain stable employment.
While we agree with Father that he did complete parenting classes and
assessments, evidence also shows that Father failed to follow the recommendations from
the assessments. For example, Father testified that as a result of his mental health
assessment, it was recommended that Father be placed on medication. Father flatly
refused this advice, in clear violation of his responsibilities under the permanency plans.
In addition, Father admitted that he was unable to complete the recommendations from
the mental health assessment because he was soon sent back to jail. Under these
circumstances, we cannot conclude that the trial court erred in concluding that Father’s
noncompliance with the permanency plans was substantial.
Persistence of Conditions
Finally, DCS alleged that Father’s parental rights should be terminated based upon
persistence of conditions. Persistence of conditions requires the trial court to find, by
clear and convincing evidence, that:
The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions
that in all reasonable probability would cause the child to be
subjected to further abuse or neglect and that, therefore, prevent the
child’s safe return to the care of the parent(s) or guardian(s), still
persist;
(B) There is little likelihood that these conditions will be remedied at
any early date so that the child can be safely returned to the parent(s)
or guardian(s) in the near future; and
- 16 -
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a
safe, stable and permanent home.
Tenn. Code Ann. § 36-1-113(g)(3).
“A parent’s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the
parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20
(Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-
CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the
conditions which led to the removal need not be willful. In re T.S. & M.S., 2000 WL
964775, at *6 (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.
1990)). “Where . . . efforts to provide help to improve the parenting ability, offered over a
long period of time, have proved ineffective, the conclusion is that there is little
likelihood of such improvement as would allow the safe return of the child to the parent
in the near future is justified.” Id. The purpose behind the “persistence of conditions”
ground for terminating parental rights is “to prevent the child’s lingering in the uncertain
status of foster child if a parent cannot within a reasonable time demonstrate an ability to
provide a safe and caring environment for the child.” In re A.R., No. W2008-00558-
COA-R3-PT, 2008 WL 461675, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re
D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3,
2008)).
In this case, it is undisputed that the child was removed from Father’s care by an
order of dependency and neglect for over six months. See Tenn. Code Ann. § 36-1-
113(g)(3). As such, the trial court concluded that clear and convincing evidence
supported the ground of persistent conditions, noting that Father remained incarcerated
due to engaging “in a series of crimes in 2016,” did not have stable living arrangements
prior to his incarceration, has not paid significant child support for the child, and had not
followed the recommendations of his mental health assessment and alcohol drug
assessment. Because the trial court concluded that these factors were unlikely to be
remedied at an early date and continuing a relationship with Father prevented the child
from integrating into a suitable and permanent home, the trial court concluded that the
ground of persistence of conditions had been shown by clear and convincing evidence.
Father argues on appeal, however, that the trial court erred in concluding that
clear and convincing evidence supports this ground. Specifically, Father again points to
his clean drug screen at the time of trial as evidence that there are no longer “drug and
alcohol concerns.” Father also cites his testimony concerning the stable home he
anticipates once he is released from incarceration and his completion of parenting classes.
- 17 -
Again, however, we conclude that clear and convincing evidence supports this
ground for termination. First, we cannot agree that Father’s single clean drug screen at
the time of trial is sufficient to show that he is likely to stop using drugs in the future, as
Father was incarcerated at the time of trial and therefore unable to use drugs. Indeed, this
Court has previously recognized that the cessation of drug use while a parent is
incarcerated is insufficient to show that the parent’s drug issues have been put behind him
or her. See In re Navada N., 498 S.W.3d 579, 606 (Tenn. Ct. App. 2016) (“Although
Mother testified that she has not used cocaine since February 26, 2015, this cessation was
unquestionably aided by the fact that she became incarcerated the following day and was
incarcerated through trial.”). Additionally, Father admitted at trial that he had previously
attended drug rehabilitation, only to again engage in illegal drugs during the events at
issue in this case. Indeed, despite the fact that Father was aware that drug use was a
reason that his child was removed from his home, he continued to use illegal drugs even
after the removal. Under these circumstances, we cannot say that the concerns regarding
Father’s drug use have been remedied so as to allow the child to return to the home at this
time.
Furthermore, regardless of Father’s testimony concerning his anticipated housing
upon his release from incarceration, there can be no dispute that Father was unable to
provide a home for the child at the time of trial because he remained incarcerated. Indeed,
as Ms. Way testified at trial, rather than remedy the conditions that led to the removal of
the child, Father’s own decision to engage in criminal behavior resulting in his
incarceration has made Father’s situation even less hospitable for the child. Because of
Father’s incarceration and ongoing concerns regarding his ability to find a suitable home
for the child and to refrain from engaging in further criminal activity or drug use, we
cannot conclude that the trial court erred in concluding that the child could not be
successfully reintegrated into Father’s life at an early date. The trial court’s determination
regarding persistence of conditions is therefore affirmed.
Best Interest
When at least one ground for termination of parental rights has been established,
the petitioner must then prove by clear and convincing evidence that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child’s best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at
194.
- 18 -
The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to affect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol or controlled substances as may render the
parent or guardian consistently unable to care for the child in a safe and
stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
- 19 -
interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a single factor
or other facts outside the enumerated, statutory factors may dictate the outcome of the
best interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.
In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
Here, the trial court found that Father had not made an adjustment of
circumstances despite efforts by DCS to assist him and that it was unreasonable to
conclude that Father would be able to make such an adjustment in the near future. In
addition, the trial court found that the child is well-adapted to his stable, pre-adoptive
home. Finally, the trial court found that changing caretakers at this stage would likely
have a negative impact on the child.
Father argues, however, that clear and convincing evidence does not illustrate that
termination is in the child’s best interest, citing again his single negative drug screen
taken on the day of trial, his testimony regarding his anticipated housing, and his ability
to obtain employment. Respectfully, however, we conclude that clear and convincing
evidence supports a determination that termination is in the child’s best interest. Based
upon the foregoing discussion, it is clear that Father has struggled to make an adjustment
of circumstances, conduct, or conditions so as to make it safe and in the child’s best
interest to be in his care. First, as previously discussed, Father’s single negative drug
screen while incarcerated is insufficient to show that he has made an adjustment of
circumstances that would allow the child to be returned to him. See Tenn. Code Ann. §
36-1-113(i)(1). Indeed, Father admitted that DCS had previously been involved with the
family due to drug use in the past and that he had previously attended drug rehabilitation,
all to no avail, as the children were thereafter removed, in part, due to drug use in the
home. Instead of remedying the conditions that led to the child’s removal by working to
complete his requirements under the permanency plan, Father thereafter chose to engage
in criminal conduct that made reunification even less likely. See Tenn. Code Ann. § 36-1-
113(i)(7).
Father’s incarceration provides another barrier to reunification, as it prevents him
from providing a safe and stable home for the child, despite DCS’s efforts. See Tenn.
Code Ann. § 36-1-113(i)(2). Indeed, Father’s testimony that he will have stable housing
upon his release from incarceration is not persuasive, as Father repeatedly made similar
- 20 -
claims to Ms. Way throughout this case, all the while failing to provide any proof that
those claims were substantiated. See Tenn. Code Ann. § 36-1-113(i)(7).
Although Father does appear to have maintained visitation with the child during
the brief periods that he was not incarcerated, see Tenn. Code Ann. § 36-1-113(i)(3), we
note that the evidence in the record supports a finding that no meaningful relationship
exists between Father and the child. See Tenn. Code Ann. § 36-1-113(i)(4). Here, the
child was removed from Father’s custody when he was not yet two years old. According
to Foster Mother, the child has never inquired about Father and refers to herself and her
husband as his parents. Given that the child is bonded to Foster Mother and her husband
and appears to be thriving in their care, we agree with the trial court that a change in
caretakers at this point would have a detrimental effect on the child. See Tenn. Code Ann.
§ 36-1-113(i)(5). Consequently, we agree with the trial court that clear and convincing
proof establishes that termination of Father’s parental rights is in the child’s best interest.
Conclusion
The judgment of the Jefferson County Juvenile Court is vacated in part and
affirmed in part. The termination of Father’s parental rights is affirmed. This cause is
therefore remanded to the trial court for further proceedings as may be necessary and are
consistent with this Opinion. Costs of this appeal are taxed to Appellant, Travis H., for
which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
- 21 - | 01-03-2023 | 05-05-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4555652/ | People ex rel. Williams v Brann (2020 NY Slip Op 04527)
People ex rel. Williams v Brann
2020 NY Slip Op 04527
Decided on August 13, 2020
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 August 13, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
ROBERT J. MILLER
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.
2020-05841 DECISION, ORDER & JUDGMENT
[*1]The People of the State of New York, ex rel. Ronald Williams, petitioner,
vCynthia Brann, etc., et al., respondents.
Richard Cary Spivack, Forest Hills, NY, for petitioner.
James E. Johnson, New York, NY (Janet L. Zaleon of counsel), for respondent Cynthia Brann.
Melinda Katz, District Attorney, Kew Gardens, NY (Michael J. Curtis, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), respondent pro se.
Writ of habeas corpus in the nature of an application to release Ronald Williams on his own recognizance or, in the alternative, to set reasonable bail upon Queens County Indictment No. 30/2020.
ADJUDGED that the writ is sustained, without costs or disbursements, to the extent that bail on Queens County Indictment No. 30/2020 is reduced such that bail may be posted in the form of an insurance company bail bond in the sum of $50,000, in the form of a partially secured bond in the sum of $100,000, with the requirement of 10% down, or in the sum of $25,000 as a cash bail alternative; and it is further,
ORDERED that upon receipt of a copy of this decision, order and judgment together with proof that the defendant has given an insurance company bail bond in the sum of $50,000, or a partially secured bond in the sum of $100,000, with the requirement of 10% down, or has deposited the sum of $25,000 as a cash bail alternative, the Warden of the facility at which the defendant is incarcerated, or his or her agent, is directed to immediately release the defendant.
AUSTIN, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2620707/ | 290 U.S. 158 (1933)
JOHNSON OIL REFINING CO.
v.
OKLAHOMA EX REL. MITCHELL, COUNTY ATTORNEY OF PAWNEE COUNTY, ET AL.
Nos. 22, 23, and 24.
Supreme Court of United States.
Argued October 17, 1933.
Decided December 4, 1933.
APPEALS FROM THE SUPREME COURT OF OKLAHOMA.
Mr. A.A. Davidson, with whom Messrs. Charles Y. Freeman, J.F. Dammann, and Preston C. West were on the brief, for appellant.
*159 Mr. Ed Waite Clark, with whom Mr. J. Berry King, Attorney General of Oklahoma, was on the brief, for appellees.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
These cases present the question of the validity of property taxes laid in Pawnee County, Oklahoma, under the state statute, upon the entire fleet of appellant's tank cars. The challenge in each case was under the due process clause of the Fourteenth Amendment of the Federal Constitution upon the ground that the cars did not have their situs within the State and hence that the State had no jurisdiction to tax them. The taxes in Nos. 22 and 23 were on 380 cars for the years 1925 to 1928; in No. 24, on 381 cars for the year 1931. The assessments in Nos. 22 and 23 were made by the county treasurer and upheld by the County Court. In No. 24 the assessment was made by the local board of equalization and was reduced by the District Court of the County to an assessment on 64 cars, which that Court held to be the average number present in the County on any one day during the year. The three cases (with a fourth, which is not before us, from another County) were consolidated for hearing on appeal in the Supreme Court of Oklahoma. That Court sustained the assessments on the entire fleet of cars, thus affirming the judgment of the County Court and reversing the judgment of the District Court. 162 Okla. 185; 19 P. (2d) 168. The cases come here on appeal.
Appellant, Johnson Oil Refining Company, is an Illinois corporation having its principal office in Chicago, and its refinery at Cleveland in Pawnee County, Oklahoma. The Supreme Court of the State reached the conclusion that all the cars had their "taxable situs" at the latter place. As the asserted federal right turns upon the determination of the question of situs, it is our province to analyze *160 the facts in order to apply the law, and thus to ascertain whether the conclusion of the state court has adequate support in the evidence. Beidler v. South Carolina Tax Comm'n, 282 U.S. 1, 8.[1]
The essential facts are not in dispute. The tank cars are operated in transporting refined products from appellant's factory at Cleveland, Oklahoma, to various points of delivery throughout a large part of the United States. They are almost exclusively engaged in interstate commerce. They are very infrequently used in connection with an oil plant appellant owns in Illinois. They are sometimes loaded at refineries located in States other than Oklahoma. The cars are stenciled "When empty return to Johnson Oil Refining Company, Cleveland, Oklahoma," or "Johnson Refining Company, Cleveland, Oklahoma," and with each shipment go instructions to return the car to Cleveland. The cars are thus billed back to Cleveland unless ordered to another point. At that place appellant has repair trackage, which can accommodate from 12 to 15 cars for minor repairs, and maintains such a stock of materials as can be utilized for repairs outside of a railroad shop. Besides the above-mentioned repair trackage, appellant has trackage at Cleveland with a capacity for about 67 cars.
The cars are almost continuously in movement. Returning to Cleveland to be reloaded, the cars remain on the tracks from twenty-four hours to ten days, depending on the season of the year and the volume of products handled. They are on the tracks for reloading purposes twenty-four hours. Each of the cars makes about one *161 and one-half trips every thirty days, that is, "each car is loaded at the Cleveland refinery, sent to the point of delivery, returns to the Cleveland plant, is reloaded and sent out again to a point of delivery each thirty days." Each car is outside of Pawnee County and the State of Oklahoma from twenty to twenty-nine days out of each month. It was variously estimated at the trial in No. 22 that the daily average number of cars in Pawnee County during the years 1925 to 1928 was between 37 and 66. The agreed statement of facts in No. 24 states that that daily average during the years 1929 and 1930 was 64; that is, about 16 per cent of the cars owned by appellant were in Pawnee County and about 84 per cent., on a daily average, were "somewhere in transit outside" of that County.
Although rolling stock, such as these cars, is employed in interstate commerce, that fact does not make it immune from a nondiscriminatory property tax in a State which can be deemed to have jurisdiction. Marye v. Baltimore & Ohio R. Co., 127 U.S. 117, 123; Pullman's Car Co. v. Pennsylvania, 141 U.S. 18, 23; American Refrigerator Transit Co. v. Hall, 174 U.S. 70, 82; Union Refrigerator Transit Co. v. Lynch, 177 U.S. 149, 152; Union Tank Line Co. v. Wright, 249 U.S. 275, 282. Appellant had its domicile in Illinois, and that State had jurisdiction to tax appellant's personal property which had not acquired an actual situs elsewhere. "The State of origin remains the permanent situs of the property notwithstanding its occasional excursions to foreign parts." See New York Central & H.R.R. Co. v. Miller, 202 U.S. 584, 597; Southern Pacific Co. v. Kentucky, 222 U.S. 63, 69. But the State of the domicile has no jurisdiction to tax personal property where its actual situs is in another State. Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 209, 211; Western Union v. Kansas, 216 U.S. 1, 38; Frick v. Pennsylvania, 268 U.S. 473, 489. While, in this instance, *162 it cannot be doubted that the cars in question had acquired an actual situs outside the State of Illinois, the mere fact that appellant had its refinery in Oklahoma would not necessarily fix the situs of the entire flect of cars in that State. The jurisdiction of Oklahoma to tax property of this description must be determined on a basis which is consistent with the like jurisdiction of other States.
The basis of the jurisdiction is the habitual employment of the property within the State. By virtue of that employment the property should bear its fair share of the burdens of taxation to which other property within the State is subject. When a flect of cars is habitually employed in several States the individual cars constantly running in and out of each State it cannot be said that any one of the States is entitled to tax the entire number of cars regardless of their use in the other States. When individual items of rolling stock are not continuously the same but are constantly changing, as the nature of their use requires, this Court has held that a State may fix the tax by reference to the average number of cars found to be habitually within its limits. Marye v. Baltimore & Ohio R. Co., supra. This principle has had frequent illustration. It was thus stated in A American Refrigerator Transit Co. v. Hall, supra [p. 82]: "It having been settled, as we have seen, that where a corporation of one State brings into another, to use and employ, a portion of its movable personal property, it is legitimate for the latter to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon similar property used in like way by its own citizens, we think that such a tax may be properly assessed and collected in cases like the present, where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, according to the exigencies of the business, and that the tax may be fixed by an appraisement and valuation of the average amount of the property thus habitually *163 used and employed." See, also, Union Refrigerator Transit Co. v. Lynch, supra; Union Refrigerator Transit Co. v. Kentucky, supra; Germania Refining Co. v. Auditor General, 184 Mich., 618; 151 N.W. 605; affirmed 245 U.S. 632; Union Tank Line Co. v. Wright, supra.
Applying these principles, no ground appears for the taxation of all the cars of the appellant in Oklahoma. It is true that the cars went out from and returned to Oklahoma, being loaded and reloaded at the refinery, but they also entered and were employed in other States where the oil was delivered. Oklahoma was entitled to tax its proper share of the property employed in the course of business which these records disclose, and this amount could be determined by taking the number of cars which on the average were found to be physically present within the State.
The judgments of the Supreme Court of Oklahoma are reversed and the causes are remanded for further proceedings not inconsistent with this opinion.
Reversed.
NOTES
[1] Kansas City Southern Ry. Co. v. Albers Commission Co., 223 U.S. 573, 591-593; Creswill v. Knights of Pythias, 225 U.S. 246, 261; Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 585, 593; First National Bank v. Hartford, 273 U.S. 548, 552, 553; Fiske v. Kansas, 274 U.S. 380, 385, 386; Ancient Egyptian Order v. Michaux, 279 U.S. 737, 745; Sterling v. Constantin, 287 U.S. 378, 398. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2987393/ | Abatement Order filed March 21, 2013
In The
Fourteenth Court of Appeals
____________
NO. 14-12-00794-CV
____________
ZACHARY COLEMAN, Appellant
V.
CHRISTOPHER DEWAYNE REICH, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 978,234-002
ABATEMENT ORDER
This is an appeal of a summary judgment granted in favor of Christopher
DeWayne Reich. Appellant has filed a notice of stay.
On March 15, 2013, appellant informed the court that Santa Fe Auto
Insurance Company, which insures appellee, has been placed into receivership by
the State of Texas. On February 28, 2013, the State of Texas asked the
Commissioner of Insurance for the State of Texas to place Santa Fe Auto Insurance
Company into rehabilitation pursuant to chapter 443 of the Texas Insurance Code.
The State also requested a permanent injunction and automatic stay of litigation
pursuant to section 443.008 of the Texas Insurance Code.
On March 8, 2013, the 419th District Court of Travis County, Texas entered
a rehabilitation order in State of Texas v. Santa Fe Auto Insurance Company,
Cause No. D-1-GV-13-000204. The 419th District Court appointed the Texas
Commissioner of Insurance as the rehabilitator for Santa Fe Auto Insurance
Company. The rehabilitation order also issued automatic stays with respect to
actions against insureds of Santa Fe Auto Insurance Company as specified in
section 443.008(d) of the Texas Insurance Code. Accordingly, we stay this appeal.
This appeal is abated until June 6, 2013, which is ninety days from the entry of the
rehabilitation order.
For administrative purposes only, and without surrendering jurisdiction, the
appeal is abated and treated as a closed case until June 6, 2013, or further order of
this court.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2686360/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 10, 2014 Session
EDNA LEE WEAVER v. DIVERSICARE LEASING CORP. ET AL.
Appeal from the Circuit Court for Anderson County
No. BILA0350 Donald R. Elledge, Judge
No. E2013-01560-COA-R3-CV-FILED-JULY 28, 2014
Edna Lee Weaver (“plaintiff”) was employed as a bookkeeper for the Briarcliff Health Care
Center, a nursing home facility in Oak Ridge. After plaintiff’s employment was terminated,
she brought this action against her former employer alleging (1) common law retaliatory
discharge; (2) violation of the Tennessee Public Protection Act, (“TPPA”), Tenn. Code Ann.
§ 50-1-304 (2008 & Supp. 2013); and (3) violation of the Tennessee Human Rights Act
(“THRA”), Tenn. Code Ann. § 4-21-301 (2011). The trial court granted the employer
summary judgment on the ground that plaintiff failed to show a causal link between the
conduct alleged to be protected, i.e., speaking out against alleged harassment and
discrimination against other Briarcliff employees, and her termination. The court further
held that the employer established legitimate, non-discriminatory reasons for plaintiff’s
termination, and that plaintiff failed to present any evidence tending to show that there were
genuine issues of material fact as to whether these reasons were pretextual. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and T HOMAS R. F RIERSON, II, JJ., joined.
James H. Price, W. Allen McDonald, and Michael R. Franz, Knoxville, Tennessee, for the
appellant, Edna Lee Weaver.
Alexandra Coulter Cross, Nashville, Tennessee, for the appellees, Diversicare Leasing Corp.,
Diversicare Management Services Co., and Advocat, Inc.
OPINION
I.
Plaintiff was hired as an assistant bookkeeper in 2005. She was quickly promoted to
the position of bookkeeper, and held that position until she was fired in October 2010.
Plaintiff was an “at-will” employee throughout her employment at Briarcliff. Briarcliff had
several administrators from 2005 until 2009, and plaintiff testified that she generally had a
good working relationship with each of them. Plaintiff consistently received positive
employee reviews prior to August 2009, when defendant employer Diversicare Management
Services Co., the corporate operator of Briarcliff, hired Elizabeth Carroll as the new
administrator of its facility.
Problems arose when the position of Briarcliff’s admissions coordinator came open
in October 2009. Administrator Carroll hired Kristi Hall for the position. Several Briarcliff
employees, including plaintiff, thought that Hall was unqualified for the job and that Carroll
had unfairly passed over several Briarcliff employees that were more qualified, particularly
a male, Kris Rhea, who worked in the social services department and had been serving as
interim admissions coordinator. Plaintiff testified that she and other Briarcliff employees
were “shocked” that Carroll hired Hall instead of Rhea for the job. It later came to light at
the nursing home that Hall was the half-sister of Carroll’s domestic partner, Julie Hall. This
revelation generally did not sit well with some of the other employees.
Briarcliff had a “backup admissions team” in place to help process admissions to the
facility when the admissions coordinator was unavailable, and to otherwise assist in the
admissions process. The members of the backup admissions team were plaintiff (a white
female); Kris Rhea (a white male); Chaunda Graham (an African-American female) and
Kamika Mize (an African-American female). Friction developed between the backup
admissions team and Administrator Carroll. Plaintiff testified by deposition that she and the
other team members felt like Carroll was blaming them for Kristi Hall’s shortcomings as
coordinator and for not backing Hall up in the admissions process. Plaintiff further stated:
Q: I’m trying to get you to tell me how Liz Carroll targeted the
backup team. What actions did she take to target the backup
team in your mind?
A: Before verifying the facts basically jumping to conclusions
that it was, you know, that we were at fault. That, you know, we
were made out to be like we were pushing back on the – on
Kristi Hall. Kristi had made comments to Liz [Carroll], and Liz,
-2-
you know, shared those comments that Kristi felt like she was
being – that she wasn’t liked by, you know, myself, Chaunda
[Graham], and Kris [Rhea] because Kris didn’t get the position.
* * *
Q: Was it always Kris or Chaunda or did she ever say that you
or Kamika [Mize] failed to do something?
A: It was always Kris or Chaunda.
* * *
Q: Do you have any understanding or belief as to why Liz
targeted Kris and Chaunda?
A: No.
Q: Do you believe it had anything to do with Liz’s relationship
with Kristi?
A: Yes.
Q: And explain that to me. Why do you believe it was related
to Liz’s relationship with Kristi?
A: My own personal opinion is that I feel like that [Carroll] felt
she wanted to open up an opportunity for Kristi to give her a
chance in a position that Kristi had no experience in, and by that
maybe she was trying to cover up her own mistake by protecting
Kristi.
Q: So she protected Kristi by blaming mistakes on Kris and
Chaunda? Is that a fair understanding of what you just told me?
A: Yeah. I mean, that’s what I feel. Kris and Chaunda basically
did the majority of the admission backup and stuff . . . Chaunda
had a separate part with the backup process, but Kris was the
main one. He was the main one who was Kristi’s backup.
-3-
Q: And he was the main one who Liz Carroll targeted? Is that
fair to say?
A: Yes.
Plaintiff was also a member of the Briarcliff morale committee, a group of employees
who met monthly to, in plaintiff’s words, “try to figure out ways to boost the morale within
the facility.” Plaintiff named eight people who were members of the morale committee, and
said there were other members whose names she couldn’t remember. Also on the morale
committee were Ms. Graham and Nicole Cain, another African-American female employee.
On February 10, 2010, the day of a scheduled morale committee meeting, regional vice
president Barry Bell was visiting the Briarcliff facility. Bell was invited to sit in on the
meeting. The morale committee members aired their grievances about Carroll and her
management of them and the facility at the meeting. Plaintiff testified that there were
“numerous things” brought up, but the primary issue revolved around Hall, the admissions
process, and the backup team:
A: [T]here was one thing that was brought up in particular, I
mean, with Kris Rhea and, you know, the issue with the backup
team. Details honestly I’m having a hard time, I really can’t
recall.
Q: You brought up the issue with the backup team being blamed
for issues?
A: Yeah. And that Kris, you know, was overlooked for the
position and that, you know, my personal opinion felt like he
was qualified. And he’s used as the backup for Kristi, you
know, and again he wasn’t good enough for the position but he
was . . . good enough to back her up.
Q: Okay. So the issues that you raised in that meeting were the
issues with the backup team being targeted and Kris being
overlooked for the position of admissions?
A: Right. And the fact that any time we had an issue in the
backup team and we had a group meeting we were always told
[by Carroll that] “Barry and Robin [Jones, another regional vice
president] back me up 100 percent.”
-4-
* * *
Q: Okay. Anything else that you remember telling Barry Bell
during this meeting?
A: No.
Ms. Graham similarly testified that “the main issue at the time was people were recognizing
the unfair hiring process of the Admissions Coordinator, and then the backup team to
admissions was picking up a lot of slack, working a lot of outside of our own department to
get work done for the admissions process, and that was not typical from prior
administrators.” Graham further stated that at the time of the meeting with Bell, she did not
suspect that Carroll was a racist or that her actions were racially motivated. Graham testified
that “no one claimed to Barry Bell that Ms. Carroll gave people preferential treatment based
on their race or their sex during that meeting.”
Six and a half months after plaintiff gave her deposition, she filed her affidavit in
opposition to summary judgment, wherein she stated that,
In February 2010, a group of employees, including myself,
complained to Barry Bell about Liz Carroll’s harassment and
preferential treatment, which was harming the morale of the
facility. The complaints were not merely about Ms. Carroll’s
management style, but also included complaints that Ms. Carroll
had unfairly overlooked Kris Rhea (a white male) for a
promotion and had given the job to a white female. In addition,
we told Mr. Bell that Ms. Carroll had stated that she had fired
black employees at another facility and that those employees had
unsuccessfully pursued EEOC charges.
At the end of the meeting, Bell said that he would address the committee’s concerns
with Carroll, that there would be no retaliation for airing these grievances, and that they
could contact him directly if they had further concerns. According to plaintiff, the next day,
at the morning meeting of the department heads of Briarcliff’s staff, Carroll announced “that
she wasn’t in trouble and nothing came out of the meeting with her and Barry. And then she
went on to say that there would no longer be a morale committee.”
The defendant employer fired Nicole Cain on April 15, 2010. There is little
information in the record about the circumstances surrounding Cain’s termination. There is
no testimony from Cain herself – only the first page of her charge of discrimination, filed
-5-
with the Equal Employment Opportunity Commission and the Tennessee Human Rights
Commission, dated June 18, 2010. The substance of Cain’s claim states as follows in its
entirety:
I have always been in good standing with the above company.
However, when I told Elizabeth Carroll, Nursing Administrator,
that I filed a complaint of discrimination against her for some
harassment, write-ups and a suspension, Ms. Carroll said I was
discharged.
I believe I have been discriminated against because of my race
(Black), and retaliation, [sic] all in violation of Title VII of the
Civil Rights Act of 1964, as amended.
Plaintiff testified that it was her understanding that the reason given for Cain’s termination
was her alleged failure to complete paperwork, and that “after Ms. Cain was fired, paperwork
that Ms. Cain was accused of not completing was found in Liz Carroll’s office.”
Graham testified that after the February morale committee meeting, she felt that
Carroll began retaliating against her, stating:
A: I felt like I was – I had started to become retaliated against.
Q: Retaliated against for doing what?
A: For speaking out. I was a very vocal part of speaking out
when we were – the morale committee was talking to Mr. Bell,
and immediately after that, things started to change. I had just
gotten Employee of the Month in December, and this was in . . .
February. And immediately after that, the very next week – I
had been given permission to work a special schedule where I
worked four days a week, [and] about a week or two after that,
Liz sent me an e-mail saying that I could no longer work that
schedule[.]
* * *
And then also in regards to retaliation, I started getting [a]
constant overflow of e-mails to everything I did that was wrong,
and especially as it related specifically to the Admissions
-6-
Coordinator and the admissions process. Ms. Hall was
constantly going to Ms. Carroll complaining about either myself
or the department, my department. There [was] constant
questioning as to whether or not – how we were handling certain
family situations. There was a period of time where I was
getting constant e-mails about what Kris Rhea did – or was or
was not doing.
It was just something every single day, there was something that
I did or did not do, and . . . honestly, I felt like it was an effort
to get me to just go ahead and leave.
On April 30, 2010, Carroll gave Graham a written reprimand stating the following:
Employee counseled for insubordination. Employee was present
when room number was decided during morning meeting but
took it upon herself to change the room number without
discussing with Administrator. Employee has also resumed
behavior of rolling her eyes and acting scorned if disagreed
with.
Graham testified that she felt the reprimand was unwarranted and unfair. She refused to sign
it and presented a one-page handwritten rebuttal. Plaintiff, along with director of nursing
Don Hutson, signed the notice of reprimand. Graham testified that at the meeting with
Carroll discussing the grounds for her discipline, she “felt the need to have a witness on [her]
behalf, so she asked [plaintiff] to come, and she came and sat in” and signed the reprimand.
On or about May 30, 2010, Carroll tendered her resignation. Graham followed suit
a couple of weeks later, tendering her resignation in mid-June. Each gave 30 days notice and
continued to work at Briarcliff for roughly a month. June 25, 2010 was Carroll’s last day as
administrator of Briarcliff. That same day, Graham sent a three-page email to Diversicare
CEO, Will Council, that stated as follows in pertinent part:
I have been harassed, discriminated against, belittled, and
terrorized during my employment with Diversicare and most
recently in the last eight months. . . . I am the current Social
Services Director at Briarcliff Healthcare Center and have been
since 2006. . . . I have recently put my notice in to end my
employment at Briarcliff and . . . I have nothing else to lose nor
gain from sending you this email. . . . I have always lived by the
-7-
rule that one can not fix a problem if they don’t know that the
problem exists and I am therefore voicing my concerns.
* * *
Since Ms. Carroll’s time at Briarcliff she has not only terrorized
myself but several other employees as well. During her time at
Briarcliff Ms. Carroll unfairly passed up several applicants for
many different positions in order to hire her friends and family.
I do not have a problem with hiring of friends or family if they
meet the qualifications; however, it is a problem when other
qualified individuals are passed up in order to make that happen.
An example of this would be the hire of the current Admissions
Coordinator. . . . During [the hiring] process an applicant by the
name of Kristi Hall applied. . . . [A]nother current employee
who has a Master[’s] degree in marketing and was currently
improving the census was passed up. . . . In Ms. Carroll’s effort
to conceal the connection between herself and Ms. Hall, many
lies were told and many other employees were “thrown under
the bus” in an effort to make Ms. Hall look qualified. Though
discovered, the relationship was not confirmed until Ms. Carroll
hired another employee by the name of Julie Hall who
accidentally disclosed the fact that she was Kristi’s sister and
Ms. Carroll’s girlfriend/partner. That does not matter, what
does matter is that same employee who was passed over for the
position is constantly doing the duties of that position and
constantly being harassed at the same time.
* * *
A couple of months ago, several employees asked Mr. Barry
Bell during a visit to speak with him to bring forth our concerns.
. . . Mr. Bell assured us that our concerns had and [sic] would be
taken seriously and that we would not be retaliated against. That
statement was false. The next day . . . Ms. Carroll advised us
that she was not in trouble and that nothing would change. . . .
From that point on Ms. Carroll did retaliate against all who she
felt was involved including myself.
* * *
-8-
You may ask why we did not bring forth these concerns. The
obvious reason is that if we were being retaliated against for our
initial concerns then it would only continue. . . .Though other
attempts were made to seek assistance, they were ignored and
we were constantly reminded by Ms. Carroll that [regional vice
presidents] Robin and Barry were behind her 100%. At this
point we felt like there was no one to go to and AND we had
watched one of our other fellow employees get fired unfairly.
* * *
These are just some of the examples of why I feel that I have
been retaliated against and treated unfairly . . . Out of respect
for you and your company I would like to inform you that I am
considering but [have] not yet filed an EEOC claim. I don’t
understand how one individual can get away with so much. I
don’t understand how you can allow someone to make several
individuals work in fear. I don’t know what all Ms. Carroll has
told upper management about me and at this point, I guess it is
a m[oot] point as she was allowed to terrorize me up until she
walked out the door. . . . Though Ms. Carroll was the physical
presence that has caused these issues, it has been the lack of
support by upper management that has given her the power to do
this.
Diversicare hired Jodie Jones as Carroll’s successor and the new administrator at
Briarcliff. Her first day at work was July 1, 2010. Jones testified that she met Carroll during
her job interview, and that Carroll gave her a tour of the facility, but they did not otherwise
ever discuss Briarcliff or any of its employees. Jones testified that plaintiff and others came
forward and voiced concerns about Hall and the admissions process, stating:
I had numerous individual employees that had made, you know,
complaints or concerns voiced. [Plaintiff] was probably one of
the most vocal at first. She had concerns about Kristi Hall, who
was the admissions coordinator. . . . [Plaintiff’s] concern was
that [Hall] frequently was out of the building either marketing
or under the pretense of marketing. With her being out of the
building that was causing [plaintiff] and other people to have to
pick up, you know, her job duties.
-9-
Jones investigated the complaints and subsequently asked Hall to resign, which she did.
On July 9, 2010, Diversicare sent in-house corporate counsel, Kyle Smith, to interview
Briarcliff employees about Graham’s allegations in her email to CEO Will Council. At that
point, Graham had not filed a charge with the Equal Opportunity Employment Commission.
She filed her EEOC charge on August 18, 2010. Jones testified that when Smith arrived for
employee interviews, she “had no idea what it pertained to, who he was meeting with, et
cetera.” Smith and Jones did not discuss the purpose of the interviews, either before or after
Smith conducted them. At that time, Jones was unaware of the complaints that had been
voiced by Cain and Graham.
Plaintiff testified that in her interview with Smith, he asked her questions that “were
targeted around Liz Carroll, and basically information [in Graham’s] email to Will Council.”
Plaintiff stated that she told Smith generally about the situation with Carroll and Hall;
plaintiff’s perception that the admissions backup team, and particularly Kris Rhea, had been
harassed and targeted; the fact that Carroll had repeatedly mentioned that unsuccessful EEOC
claims had been made against her at the facility she had formerly supervised; the morale
committee meeting with Bell; and the subsequent retaliation against committee members,
including Cain and Graham. Plaintiff further testified as follows:
Q: Did Liz Carroll make any comments that could be perceived
in any way as racist to you or that you overheard her making to
someone else?
A: To me, no. I did hear the EEOC myself come up on different
occasions.
* * *
Q: Did you tell Kyle Smith when you were interviewed by him
that you believed that Ms. Carroll acted – that her actions were
racially motivated at all?
A: That was never a question that he presented. I mean, I
answered his questions and he never brought up a racial
question. I believe the EEOC was brought – was mentioned, as
far as my comment telling him about the EEOC, but he never
extended his questions out as far as there were any – he never
elaborated.
-10-
Q: Mr. Smith didn’t ask you anything about the EEOC, did he?
A: No, he didn’t. No. I gave him the information that Liz had
made the comments about the EEOC on numerous occasions.
He didn’t ask questions.
Q: Did you tell Barry Bell or anybody else tell Barry Bell during
the meeting with him in February of 2010 that anyone in there
believed that Liz Carroll’s actions were racially motivated?
A: Not that I recall.
Q: Did anyone tell Barry Bell that they believed that they
believed that Liz treated Kris Rhea badly because he was male?
A: No. At that meeting it was kind of at the beginning of things.
It was after that that things seemed to escalate and it was an
ongoing thing.
Q: What about in . . . July of 2010, . . . did you tell Kyle Smith
that you believed that Liz Carroll’s mistreatment of Kris Rhea
was because he was male?
A: I don’t think so, no.
According to plaintiff, Smith interviewed seven employees, including herself and
Chaunda Graham, who had given notice of her resignation and was training her replacement
at that point. Janet Bryant was present for each of the interviews. She testified as follows
in pertinent part about the interviews:
Q: Well, tell me what basically happened in the meeting. Did
the employees simply tell their story, or did Kyle Smith ask
specific questions that he thought was relevant to the
investigation?
A: I remember he let the employees talk. He may have asked a
few questions, but mainly he let them talk and tell theirs, and he
took some notes, I’m thinking, on a legal pad. I’m not sure.
And then if there was a question or he needed something
-11-
explained, like who are you talking about or what are you doing,
he would ask a question, but pretty much he let them speak.
Q: He wasn’t then, as far as you knew, directing specific
questions on specific topics? He was just letting them speak
openly about what their concerns were?
A: He might bring them in and ask something specific if he
didn’t understand, but pretty much he let them speak.
Q: Were they told that . . . they were investigating a complaint
by Chaunda Graham?
A: I don’t think he told them specifically that he was
investigating anything by Chaunda. Even Chaunda, I don’t
think he said anything specific like that to her.
* * *
Q: Do you remember that [plaintiff] brought up that Liz seemed
to pick on Kris [Rhea], Nicole [Cain], and Shaunda?
A: I remember something to the effect about Kris. Nicole, I
don’t remember anything, but mainly Kris is the one I remember
[plaintiff] talking about, because if I’m not mistaken, [plaintiff]
had left and then came back and mentioned something about
Kris.
Q: You say that you don’t remember anything about Nicole?
A: No.
In his affidavit, Smith testified as follows regarding the investigation, interviews, and
his conclusions:
On or about May 31, 2010, Ms. Carroll had given Diversicare
notice that she was resigning her employment at Briarcliff and
that she was moving to Florida to be near her elderly mother.
June 25, 2010, the date of Ms. Graham’s email, was also the last
day of Ms. Carroll’s employment with Diversicare.
-12-
Following Mr. Council’s receipt of the email from Ms. Graham,
David Hickman, Diversicare’s Vice President of Human
Resources, asked me to go to Briarcliff and investigate Ms.
Graham’s allegations.
On or about July 9, 2010, I visited Briarcliff and interviewed
several department heads, including Plaintiff Lee Weaver, about
the allegations in Ms. Graham’s email.
In the interviews, I asked open-ended questions about each
employee’s experiences with Liz Carroll at Briarcliff.
All of the department heads I interviewed expressed the opinion
that Liz Carroll created an uncomfortable work environment at
Briarcliff. Several said that Ms. Carroll was “mean” to them
and that they felt mistreated during her tenure.
While it was clear from these interviews that most of the
department heads did not like Ms. Carroll’s management style,
no one claimed that Liz Carroll (or anyone else at Briarcliff) had
treated any employee differently based on race or sex or for any
other unlawful reason.
Because the employee complaints were generally directed at Ms.
Carroll, who was no longer Briarcliff’s administrator, and
because no one had made any allegations of any unlawful
conduct, I determined that no further action was required.
I did not discuss Ms. Graham’s allegations or my investigation
of those allegations with Jodie Jones, Briarcliff’s new
administrator.
(Numbering in original omitted.)
Jodie Jones testified that she became dissatisfied with plaintiff’s performance in
processing admissions. She stated in her deposition testimony,
Q: What kind of issues did you continue to have with [plaintiff]?
A: Timeliness.
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Q: When you say “timeliness,” what do you mean timeliness?
A: Timeliness of the financial verification, especially when we
started looking at the referrals we were getting from managed
care companies, which is a different type of insurance.
* * *
Q: When you addressed the issue of timeliness and the
importance of participating in the admissions process did you
continue to have issues with [plaintiff’s] participation in the
admissions process?
A: Yes.
Q: What continued issues or problems did you have?
A: [Plaintiff] voiced loudly her concerns with private managed
care insurance. She did not want to take those patients for
various reasons . . . So she was not happy about having to
process this at all.
Q: She voiced her concerns with accepting managed care
patients. Did she ever refuse to process managed care patient
admissions?
A: Not blatantly refused, but by allowing them to sit on her desk
and not process the preauthorization, in essence that’s what she
was doing because someone else from another facility would
process it and get that patient.
Jones further stated that the new admissions coordinator, Amy Cox, came to her and reported
complaints from family members of residents that plaintiff had been rude to them during the
admissions process. Jones testified that Cox reported complaints that,
[plaintiff] started making phone calls to the families of these
people that had the managed care insurance. You know, prior
to their arrival at our facility the resident themselves or their
family members would receive a call from [plaintiff] demanding
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money up front, which, you know, doesn’t set the tone for
someone wanting to come to that facility if the first call they’re
getting from someone is, you know, demanding money in a very
blunt, uncaring tone. I felt she was trying to sabotage the
admission so that she wouldn’t have to deal with those managed
care claims.
On September 30, 2010, Jones disciplined plaintiff by providing a written
“performance improvement action” form that states as follows:
(1) Performance – All referrals, including managed care, will be
presented in a timely [manner]. (2) Chain of Command – all
internal issues are to be discussed with Administrator. (3)
Customer Service – Bookkeeper will maintain a professional to
[sic] residents, famil[ies] & staff at all times.
The “action to be taken to improve employee’s performance” listed was “suspension”;
plaintiff was suspended for the rest of the workday on September 30. Plaintiff was very
upset and felt that the discipline was unwarranted and unfair. Jones testified that she and
plaintiff spent about an hour talking about the issues addressed by the performance
improvement action form, which plaintiff refused to sign. Plaintiff requested to know who
had complained about her being rude or unprofessional. According to plaintiff, Jones gave
her several names, including that of Doris Webber, a Briarcliff resident. Jones stated in her
affidavit that “I refused to give her names and told her that she needed to move on and treat
everyone professionally going forward.” Kaye Robinson, Briarcliff’s human resources
director, was also present during this meeting.
Jones testified that after the meeting, the following took place:
[Plaintiff] left my office and went to clock out, which the time
clock is located in Kaye Robinson’s office and she’s over
personnel, and [plaintiff] made the comment at the time that she
was going to contact Kathy Moore. And it was almost a – Kaye
expressed it to me as a threat. She was going to file a complaint
and contact Kathy Moore.
Kathy Moore was a close friend of Briarcliff resident Webber and was involved in getting
Webber placed at Briarcliff. Moore also held power of attorney on Webber’s behalf. Jones
did not know it then, but Moore is also a former mayor of Oak Ridge. Moore is
characterized by defendants as an “influential” community member. Plaintiff testified that
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she told Jones “that I would be glad to contact the family members and apologize if they felt
like I had said something or done something that had offended them.” Plaintiff denied telling
Robinson that she was going to contact Moore, but it is clear that plaintiff communicated her
intent at the meeting with Jones to contact certain family members and/or residents.
Plaintiff, who is a personal friend of Moore, did call her that day after she left work.
She testified as follows regarding the reasons for her call, and what was said:
A: Kathy Moore and I had a friendship. And, obviously, if I’m
going to be accused of offending somebody, you know, I wanted
to make sure that, you know, one, I had not offended anybody
and that if they felt like I did I wanted to clear the air because,
like I said, Kathy and I were friends outside the facility.
* * *
Q: Go ahead and tell me what you told Ms. Moore during that
conversation.
A: That I was informed by Jodie Jones that I had offended Ms.
Webber. And I stopped by [Webber’s] room on my way out to
apologize, she was not there. So I was calling her to see if Ms.
Webber had said anything to her in regards to me offending her.
She said she had no knowledge of me offending Ms. Webber
and that she would speak to Ms. Webber. And basically that
was the gist of the conversation. And the fact, you know, I said,
well, you know, when she asked me what was wrong, because
I was crying, I informed her, you know, well, I was suspended
for one day. I’m off tomorrow and I will go back to work on
Monday.
In plaintiff’s later-filed affidavit, she stated as follows:
Upon reflection, I do not believe that I told Kathy Moore on
September 30, 2010, that I had been suspended. During our
conversation that day, I only told her that I was calling to
apologize if I had done anything to offend her or Doris Webber.
When I testified in my deposition that I had told Ms. Moore that
I was suspended, I now believe that I was confusing our
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conversation on that day with a subsequent conversation on
October 4, 2010, when I told Ms. Moore that I had been
terminated.
Moore testified that plaintiff did not tell her that she had been suspended, and that she found
out about the suspension from an unnamed nursing assistant when she went to Briarcliff the
next day. Moore stated in her deposition:
I kept asking [plaintiff] what was wrong and she would not tell
me. . . . I found out she was suspended when I went over there
with Doris Ann [Webber]. And Doris mentioned it to me and
then a NA mentioned it to me that she had been suspended.
Q: Are you sure about that now?
A: I’m almost sure. I’m almost sure that [plaintiff] did not say
it to me, because I got off the telephone and I said, there is
something bad happening with [plaintiff], and I said, I can’t
understand it.
Plaintiff was scheduled to be off work the next day, Friday, October 1, 2010. Jones
stated in her affidavit what happened that morning:
Late Friday morning, I returned from the bank to find Kathy
Moore and Doris Webber . . . waiting for me. Ms. Moore
confronted me when I entered the building and started
demanding answers about [plaintiff’s] employment status.
I was taken aback by being confronted by Ms. Moore about
[plaintiff]. I told her I could not talk to her about [plaintiff’s]
employment. Ms. Moore stated that she felt that [plaintiff] was
a good person and that she would hate to see anything bad
happen to her. I agreed with Ms. Moore that [plaintiff] was a
good person and said that she should be back at work on
Monday.
I was very upset by this meeting with Ms. Moore and Ms.
Webber. I felt that instead of being accountable for her actions,
[plaintiff] was trying to make Briarcliff look bad to a resident
and to an influential member in the community.
-17-
(Numbering in original omitted.)
Moore testified about the meeting with Jones as follows in pertinent part:
Q: Ms. Cross [Diversicare’s counsel] asked you a question about
whether you thought that Ms. Jones might have been upset when
you came to confront her about [plaintiff’s] discipline. Did you
go into the room in order to confront her?
A: Oh, yes. We went and closed the door. It was just Doris and
she and I.
Q: Yes. I mean –
A: That’s all that was in the room. That was the only people in
the room.
Q: Well, but –
A: I wouldn’t have talked outside the room. I mean –
Q: No, no, no. no. What I was really focusing on is the word
confront her about [plaintiff’s] suspension, slash, discipline.
Was that the purpose of going into the room, was to have it out
with Jodie Jones about [plaintiff]?
A: No. What happened was . . . Doris was upset due to the fact
that she had been accused of saying something that didn’t
happen.
After this meeting, Jones decided to terminate plaintiff’s employment. She called
Diversicare’s Vice President of Human Resources and Kyle Smith to discuss the
circumstances and her decision, and they determined that plaintiff could be terminated for
cause because she “violated Diversicare’s requirement that employees maintain
confidentiality with respect to the operations, activities, and business affairs of Diversicare.”
On Monday, October 4, 2010, plaintiff was given the opportunity to resign, which she
declined. Jones then told her that her employment was terminated.
-18-
Plaintiff filed this action on September 28, 2011, alleging retaliatory discharge in
violation of Tennessee common law; the TPPA, commonly known as the “Whistleblower
Act,” Tenn. Code Ann. § 50-1-304; and the THRA, Tenn. Code Ann. § 4-21-301. Plaintiff
does not allege that she was directly discriminated against, but rather that her employer
unlawfully retaliated against her for her involvement in allegedly protected activity, i.e.,
speaking out against alleged harassment and discrimination against Rhea, Cain, and Graham.
After extensive discovery, Diversicare moved for summary judgment. The trial court granted
summary judgment on all claims, holding as follows in pertinent part:
Each of the causes of retaliation asserted by Plaintiff requires a
showing of a causal link between the protected activity and the
termination. Plaintiff has not shown a causal link between the
conduct she claims was protected and her termination.
. . . Diversicare presented evidence that legitimate,
nondiscriminatory reasons existed for Plaintiff’s termination.
Plaintiff has failed to demonstrate that the stated reasons for her
termination were pretextual.
(Numbering in original omitted.) Plaintiff timely filed a notice of appeal.
II.
The issue presented is whether the trial court erred in granting summary judgment.
In her brief, plaintiff breaks this primary issue into four sub-issues, reflecting the various
arguments in support of her assertion that the court erred in granting summary judgment.
Specifically, plaintiff argues that the trial court erred in (1) not recognizing and finding
genuine issues of material fact; (2) stating in its oral ruling from the bench that “I can’t make
inferences” in ruling on the summary judgment motion; (3) erroneously stating certain facts;
and (4) applying the wrong legal standard for determining whether plaintiff established that
the nondiscriminatory reasons given by the employer were pretextual. We will address these
arguments in turn.
III.
Because the complaint was filed after July 1, 2011, Tenn. Code Ann. § 20-16-101
(Supp. 2013) applies to our analysis of summary judgment in this case. That statute provides:
In motions for summary judgment in any civil action in
Tennessee, the moving party who does not bear the burden of
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proof at trial shall prevail on its motion for summary judgment
if it:
(1) Submits affirmative evidence that negates an essential
element of the nonmoving party’s claim; or
(2) Demonstrates to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the
nonmoving party’s claim.
See also Harris v. Metro. Dev. & Housing Agency, No. M2013-01771-COA-R3-CV, 2014
WL 1713329 at *3 (Tenn. Ct. App. M.S., filed Apr. 28, 2014); Wells Fargo Bank, N.A. v.
Lockett, No. E2013-02186-COA-R3-CV, 2014 WL 1673745 at *2 (Tenn. Ct. App. E.S., filed
Apr. 24, 2014). As we observed in Harris,
Summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04.
Summary judgments do not enjoy a presumption of correctness
on appeal. BellSouth Adver. & Publ’g Co. v. Johnson, 100
S.W.3d 202, 205 (Tenn. 2003). The resolution of a motion for
summary judgment is a matter of law, thus, we review the trial
court’s judgment de novo with no presumption of correctness.
Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76, 84 (Tenn.
2008). The appellate court makes a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter
v. Brown, 955 S .W.2d 49, 50-51 (Tenn. 1977).
2014 WL 1713329 at *4. In making this determination,
We must view all of the evidence in the light most favorable to
the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635,
639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd of Educ., 2
S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support
only one conclusion, then the court’s summary judgment will be
-20-
upheld because the moving party was entitled to judgment as a
matter of law. See White v. Lawrence, 975 S.W.2d 525, 529
(Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
1995).
Wells Fargo Bank, 2014 WL 1673745 at *2.
In Sykes v. Chattanooga Housing Authority, 343 S.W.3d 18, 26 (Tenn. 2011), the
Supreme Court stated as follows regarding the summary judgment standard as applied to
retaliatory discharge cases:
In the recent cases of Kinsler [v. Berkline, LLC, 320 S.W.3d
796 (Tenn. 2010)] and Gossett v. Tractor Supply Co., 320
S.W.3d 777 (Tenn. 2010), this Court held that the Hannan
summary judgment analysis is to be applied in retaliatory
discharge actions in the same way as in other cases, and rejected
the federal McDonnell Douglas framework of allocation of
burdens and order of presentation of proof of each party in favor
of the ordinary Tennessee summary judgment standard. Gossett,
320 S.W.3d at 785–86; Kinsler, 320 S.W.3d at 801.
(Footnotes omitted.) The Sykes Court, in footnote 4 of the opinion, cited 2011 Tenn. Pub.
Acts 461, an amendment to Tenn. Code Ann. §§ 4-21-311, 50-1-304, and 50-1-701, that
functionally overrules the retaliatory discharge summary judgment analysis in Kinsler and
Gossett, and observed that the amendment is “applicable to causes of action accruing on or
after June 10, 2011.” See 2011 Tenn. Pub. Acts 461; Coleman v. Humane Society of
Memphis, No. W2012-02687-COA-R9-CV, 2014 WL 587010 at *8, n.7 (Tenn. Ct. App.
W.S., filed Feb. 14, 2014). In this case, plaintiff’s causes of action accrued no later than
October 4, 2010, the date her employment was terminated. Weber v. Moses, 938 S.W.2d
387, 392-93 (Tenn. 1996). Thus, the law prior to the amendment applies.
IV.
A.
In Tennessee, the general rule governing employment relationships that do not involve
a contract for a definite term is the long-established employment-at-will doctrine. Guy v.
Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534-35 (Tenn. 2002); Sykes, 343 S.W.3d at 26.
This doctrine “recognizes the concomitant right of either the employer or the employee to
terminate the employment relationship at any time, for good cause, bad cause, or no cause
-21-
at all, without being guilty of a legal wrong.” Coleman, 2014 WL 587010 at *17. “The
employment-at-will doctrine is a bedrock of Tennessee common law.” Franklin v. Swift
Transp. Co., 210 S.W.3d 521, 527 (Tenn. Ct. App. 2006). The rule is not absolute, however;
the Supreme Court and the General Assembly have recognized certain restrictions on the
right of an employer to discharge an employee. In Chism v. Mid-South Milling Co., 762
S.W.2d 552 (Tenn. 1988), the Court, discussing the tort of retaliatory discharge, stated the
following:
Both by statute and case law in this and other states some
restrictions have been imposed upon the right of an employer to
terminate an employee, usually for reasons of well-defined
public policy. For example, . . . [t]here are restrictions upon
employment or termination of persons for discriminatory
reasons involving race, creed, color, sex, age, religion or
national origin. See T.C.A. § 4-21-401(a).
* * *
It is obvious that the exception cannot be permitted to consume
or eliminate the general rule. Corporate management, in cases
such as this, must be allowed a great deal of discretion in the
employing or discharging of corporate officers, where the latter
are not employed for a definite term and have no formal contract
of employment. Whittaker v. Care-More, Inc., 621 S.W.2d
395, 397 (Tenn. App. 1981). To be liable for retaliatory
discharge in cases such as this, the employer must violate a clear
public policy. Usually this policy will be evidenced by an
unambiguous constitutional, statutory or regulatory provision.
762 S.W.2d at 555, 556.
The legislature has also created a statutory retaliatory discharge action, the
Whistleblower Act, codified at Tenn. Code Ann. § 50-1-304, that is cumulative to a common
law action.1 Guy, 79 S.W.3d at 539. The statute provides in pertinent part as follows:
1
See 2014 Tenn. Laws Pub. Ch. 995, enacted May 22, 2014, amending Tenn. Code Ann. § 50-1-
304(g) to delete the phrase “under Tennessee common law” and enacting subsection (h) to provide: “This
section abrogates and supersedes the common law with respect to any claim that could have been brought
under this section.” This amendment takes effect and “shall apply to all actions accruing on or after” July
1, 2014.
-22-
(b) No employee shall be discharged or terminated solely for
refusing to participate in, or for refusing to remain silent about,
illegal activities.
* * *
(d)(1) Any employee terminated in violation of subsection (b)
shall have a cause of action against the employer for retaliatory
discharge and any other damages to which the employee may be
entitled.
Tennessee courts have emphasized that the retaliatory discharge “exception to the
employment-at-will doctrine must be narrowly applied.” Stein v. Davidson Hotel Co., 945
S.W.2d 714, 717 n.3 (Tenn. 1997); Chism, 762 S.W.2d at 556; Sykes, 343 S.W.3d at 26
(describing the Whistleblower Act as a “narrowly crafted exception”); Franklin, 210 S.W.3d
at 530 ( “the earliest Tennessee cases recognizing retaliatory discharge have emphasized that
it is an important, but narrow, exception to the employment-at-will doctrine”).
A plaintiff asserting a common law retaliatory discharge claim has the burden of
proving the following four elements:
(1) that an employment-at-will relationship existed;
(2) that the employee was discharged;
(3) that the reason for the discharge was that the employee
attempted to exercise a statutory or constitutional right, or for
any other reason which violates a clear public policy evidenced
by an unambiguous constitutional, statutory, or regulatory
provision; and
(4) that a substantial factor in the employer’s decision to
discharge the employee was the employee’s exercise of
protected rights or compliance with clear public policy.
Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422, 437 (Tenn. 2011).
The elements of a claimant’s action for statutory retaliatory discharge – violation of
the Whistleblower Act – are similar; a plaintiff must prove the following four elements:
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(1) the plaintiff was an employee of the defendant;
(2) the plaintiff refused to participate in or remain silent about
illegal activity;
(3) the defendant employer discharged or terminated the
plaintiff’s employment; and
(4) the defendant terminated the plaintiff’s employment solely
for the plaintiff’s refusal to participate in or remain silent about
the illegal activity.
Id. at 437; Sykes, 343 S.W.3d at 27. Although there are several distinctions between the two
causes of action, a primary difference between the common law and statutory claims is that
to demonstrate a violation of the Whistleblower Act, a plaintiff must prove “the essential
element of an exclusive causal relationship between the plaintiff[’s] whistleblowing activity
and [his or her] discharge.” Sykes, 343 S.W.3d at 21 (emphasis added). To prevail on a
common law action, a plaintiff need only demonstrate that his or her exercise of protected
rights or compliance with clear public policy was a substantial factor in the employer’s
decision to discharge the employee. Guy, 79 S.W.3d at 535.
Our review of the record persuades us that the evidence before us is not sufficient to
create a genuine issue of material fact as to an essential element of plaintiff’s claim – that her
alleged exercise of protected activity was either the sole factor or a substantial factor in the
employer’s decision to terminate her employment. In short, it is undisputed that Jodie Jones,
who made the decision to fire plaintiff, was unaware of plaintiff’s prior complaints about
former administrator Carroll and was not apprised of the fact that former employees Cain and
Graham had filed EEOC claims; nor was Jones aware of any connection, to the extent there
was a connection, between the EEOC claims of the other employees and plaintiff’s
complaints about Carroll. When Smith arrived at Briarcliff to conduct interviews in an
investigation of the complaints in Graham’s email, Jones had been on the job as new
administrator for less than two weeks. At that point, Carroll, the subject of all complaints
by Briarcliff employees, including those of plaintiff, was gone. Chaunda Graham had given
her notice and was working her last couple of weeks. Jones’ uncontradicted testimony on
what she knew about earlier happenings at Briarcliff, and when she knew it, is as follows:
Q: So I take it you didn’t discuss any of the employees of
Briarcliff with Liz [Carroll] at all.
A: No.
-24-
Q: What about after you became administrator? Did you have
any occasion to discuss any of the employees with Liz Carroll?
A: No. I had no conversations with her.
Q: You’ve had no conversations with Liz Carroll since your
meeting with her on the day of your interview?
A: Correct.
* * *
Q: Did anyone, either prior to or after you became administrator,
ever have occasion to discuss with you any of the issues
surrounding Liz Carroll and her leaving her employment at the
Briarcliff facility?
A: No.
* * *
Q: Did anyone advise you that Chaunda Graham had made a
complaint about Liz Carroll?
A: No. Actually, when I got there I found out that Chaunda had
worked there for a long time, was moving, and was working out
her notice. And so I only got to work with her for a brief period
of time. But, you know, they had a going away party for her.
There was nothing noted or said that there was any other reason
for her leaving other than her husband got another job out of
state. . . . I had no, you know, no idea that she had any issues or
concerns with work.
* * *
Q: Were you ever asked to participate in any investigation by
any governmental agencies of any claims of harassment or
discrimination related to employees at Briarcliff after you
became administrator?
-25-
A: No.
Q: No one ever discussed an EEOC claim by Ms. Graham with
you at any point?
A: Not that I can recall, no.
* * *
Q: When Kyle Smith came to the facility, you said in early July,
did he tell you who the employees were that he was going to be
meeting with?
A: No.
Q: Did you observe the employees that Kyle Smith met with
while he was there?
A: No.
Q: After he left was there any conversation that you observed or
heard about that discussed who the folks were that Kyle Smith
had met with and talked to?
A: No. Nobody at the facility mentioned anything.
As already noted, Smith confirmed in his affidavit that “I did not discuss Ms. Graham’s
allegations or my investigation of those allegations with Jodie Jones, Briarcliff’s new
administrator.”
Furthermore, Jones testified as follows in her affidavit:
I was not aware at the time of [plaintiff’s] termination that
[plaintiff] had previously complained about the prior
administrator. I met the prior administrator only once and did
not know her. Neither Mr. Hickman [vice president of human
resources] nor Mr. Smith discussed any complaints about Ms.
Carroll with me until after [plaintiff’s] termination. [Plaintiff’s]
prior complaints, which I understand now had been made
-26-
months before her termination, did not factor into my decision
to terminate her.
Because Jones was unaware, when she fired plaintiff, of her prior complaints about unfair
treatment and retaliation by Carroll, those complaints cannot have been a factor in the
decision to terminate her employment.
There is another reason that summary judgment must be affirmed on plaintiff’s
statutory retaliatory discharge claim. When a plaintiff’s Whistleblower Act claim is based
on an allegation that he or she was discharged solely for refusing to remain silent about – as
opposed to refusing to participate in – illegal activities, as in this case, there is a “reporting
requirement.” Such a claimant “must establish that he [or she] made ‘a report to some entity
other than the person or persons who are engaging in the allegedly illegal activities.’ ”
Lawson v. Adams, 338 S.W.3d 486, 497 n.3 (Tenn. Ct. App. 2010) (quoting Collins v.
AmSouth Bank, 241 S.W.3d 879, 885 (Tenn. Ct. App. 2007)); Gossett, 320 S.W.3d at 788;
Bright v. MMS Knoxville, Inc., No. M2005-02668-COA-R3-CV, 2007 WL 2262018 at *5
(Tenn. Ct. App. M.S., filed Aug. 7, 2007) (applying reporting requirement to affirm directed
verdict against plaintiff where he “has simply not demonstrated that he was ‘blowing a
whistle’ on illegal activity.”). In this case, plaintiff presented no evidence that she reported
any allegedly illegal activity to an entity other than her superiors at Briarcliff.
B.
Plaintiff also brought a claim under the THRA, which provides in pertinent part as
follows:
It is a discriminatory practice for a person or for two (2) or more
persons to:
(1) Retaliate or discriminate in any manner against a person
because such person has opposed a practice declared
discriminatory by this chapter or because such person has made
a charge, filed a complaint, testified, assisted or participated in
any manner in any investigation, proceeding or hearing under
this chapter[.]
Tenn. Code Ann. § 4-21-301. As the Supreme Court has observed:
[A] claimant must prove the following four elements to prevail
on a retaliation claim under the THRA:
-27-
(1) that [the plaintiff] engaged in activity protected by the
THRA;
(2) that the exercise of [the plaintiff’s] protected rights was
known to the defendant;
(3) that the defendant thereafter took a materially adverse action
against [the plaintiff]; and
(4) there was a causal connection between the protected activity
and the materially adverse action.
Sykes, 343 S.W.3d at 29 (brackets in original) (quoting Allen v. McPhee, 240 S.W.3d 803,
820 (Tenn. 2007) (abrogated on other grounds by Gossett, 320 S.W.3d at 783-84)).
Diversicare argues that plaintiff did not engage in an activity protected by THRA,
correctly pointing out that any link between allegations of improper retaliation based on race
by Cain and Graham – to the extent that there were any – and plaintiff’s involvement in
reporting them, is missing. In this regard, Diversicare notes that there is no proof that
allegations of racially-motivated discrimination were raised by any Briarcliff employee at
the February morale committee meeting with Barry Bell, or in the July interviews with Kyle
Smith, or in any other forum. There is undisputed evidence that before the Briarcliff
employees complained about Carroll’s relationship with Hall and her treatment of the
admissions backup team, Carroll promoted Cain, and gave Graham highly positive employee
reviews. There is an abundance of evidence from which a trier of fact could conclude that
Carroll retaliated against anyone who spoke out against her or her management decisions,
but that Carroll was an “equal opportunity retaliator” who mistreated employees without
regard to race or gender. In this regard, both plaintiff and Graham testified that Carroll’s
worst treatment was inflicted on Kris Rhea, a white male. There is also evidence that neither
EEOC claims nor allegations of racially-motivated conduct arose during the Smith
interviews, although Smith gave the interviewees the opportunity to vent any concerns they
might have had.
Nevertheless, viewing all of the evidence in the light most favorable to plaintiff’s
claims and resolving all reasonable factual inferences in her favor, we note that there is some
scant evidence in the record from which a trier of fact might reasonably conclude that
plaintiff engaged in conduct protected by the THRA, i.e.., speaking out against allegedly
discriminatory behavior. Plaintiff did testify that she told Smith that Carroll had inexplicably
and repeatedly mentioned earlier unsuccessful EEOC claims filed against her when she was
administrator of another nursing home facility. Thus, we do not base our decision on a
-28-
determination that plaintiff did not engage in protected activity, because even assuming
arguendo that she did, her THRA claim must fail for another reason – the lack of a causal
connection between the protected activity and the materially adverse action. For the same
reasons discussed above, Jones’ undisputed lack of knowledge of plaintiff’s earlier
complaints precludes any rational inference that Jones’ decision to fire plaintiff was causally
connected to any protected activity. Thus, Diversicare has demonstrated that the nonmoving
party’s evidence is insufficient to establish an essential element of her claim, and summary
judgment was therefore appropriate.
In its oral ruling from the bench, the trial court stated:
I’ve read and reread these documents . . . I can’t make
inferences. I cannot make – I have to look at the facts. And I
don’t find any disputed facts.
Plaintiff correctly asserts that in ruling on a motion for summary judgment, a trial court not
only may make inferences, but is required to draw any reasonable inferences in favor of the
non-movant. See, e.g., Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); Wells
Fargo Bank, 2014 WL 1673745 at *2. Defendants argue that by the comment “I can’t make
inferences,” the trial court meant, not that it wasn’t allowed to draw inferences, but that it
wasn’t able to draw any reasonable inferences in plaintiff’s favor, given the state of the proof
in the record, because the evidence didn’t reasonably support such inferences. Perhaps this
is true. Regardless of the reasons for the trial court’s facial misstatement, we have conducted
our own independent de novo review of the record to “make[] a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied,” as we must. Harris, 2014 WL
1713329 at *4. We have also drawn any reasonable allowable inferences in favor of
plaintiff, the non-movant. Any error by the trial court in making the statement “I can’t make
inferences” was harmless in light of our review and holding that summary judgment was
warranted under the legal and factual analysis stated herein.
The trial court also stated in its oral ruling that it found as an undisputed fact “that
even after [plaintiff] participated in the interviews involving the EEOC problems with the
individuals that had been brought out she was, in fact, given a glowing review and given a
raise.” This was not what happened. Although the record establishes that plaintiff was given
a number of “glowing” employee reviews, some of which were written by Liz Carroll, and
that she was given the highest allowable raise during Carroll’s tenure as administrator
because of her excellent employee record and review, this happened before the Smith
interviews, not after. To plaintiff’s credit, her employee evaluations in the record paint a
picture of an excellent and conscientious employee. But plaintiff was not “given a raise and
given a higher evaluation” after the Smith interviews, as the trial court erroneously found.
-29-
This error is not material and does not affect the analysis in our opinion, however. It does
not bear upon what we have determined is the critical issue in this case – the absence of proof
to establish the required element of a causal link between plaintiff’s alleged protected
conduct and her discharge, and, similarly, the absence of proof that a substantial factor in the
employer’s decision to discharge the employee was plaintiff’s exercise of protected rights.
Our holding on this point is determinative and renders moot the issue of whether the trial
court correctly applied its pretext analysis.
V.
The summary judgment of the trial court is affirmed. Costs on appeal are assessed to
the appellant, Edna Lee Weaver. This case is remanded to the trial court, pursuant to
applicable law, for collection of costs assessed below.
_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE
-30- | 01-03-2023 | 07-30-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3517615/ | Harold Cox, Receiver of the Merchants Bank Trust Company, being authorized by the Chancery Court, which was administering the affairs of the Merchants Bank Trust Company in liquidation, filed a petition in the Circuit Court for a writ of mandamus against the Jackson Opera House Company, its president and secretary, alleging that said Company, on the first of April, 1901, *Page 247
issued two shares of stock to W.E. Hayne, evidenced by its certificate number 38, of the par value of $100.00 each; that in due course of business and for value, without notice of any person claiming said certificate, the Merchants Bank Trust Company became the owner thereof, the said certificate being endorsed by its owner, W.E. Hayne; that the said receiver, being by operation of law the owner and holder of the said certificate, was entitled to have the same transferred from the books of the Company, and cancelled, and a new certificate issued therefor to the plaintiff in his capacity as receiver; that he has made demand upon the Jackson Opera House Company, and its president and secretary, for transfer of the certificate, but they failed and refused to do so, and refused to issue a new certificate to the plaintiff. And that the plaintiff is entitled to a writ of mandamus, directing and compelling the said secretary and president to permit the transfer of the certificate upon the books of the Company, and to issue a new certificate to the plaintiff; and asks for process, and for order commanding the transfer to be made, etc.
The certificate of stock, No. 38, was made an exhibit to the petition for writ of mandamus; it shows that it was duly issued to W.E. Hayne, and recites that it is "Transferable only on the books of the said Company in person or by attorney, or legal represenative, on surrender of this certificate properly endorsed." On the reverse side the certificate was endorsed in blank by W.E. Hayne, and witnessed by W.G. Plummer.
The defendants pleaded the general issue, and gave notice thereunder that it would offer to prove that certificate No. 38 for two shares of stock of the Jackson Opera House Company was issued to W.E. Hayne on April 1, 1901, and that between that date and June 18, 1920, the said W.E. Hayne departed this life, being at the time, as defendants are advised, the legal owner of said shares of stock in the corporation; that the Hibernia Bank
Trust Company, of New Orleans, Louisiana, *Page 248
was the duly appointed administrator of the estate of W.E. Hayne, and that the said administrator called on the defendant, the Jackson Opera House Company, to transfer the two shares of stock to Thos. S. Bratton, to whom sale of said stock had been made, and the administrator represented to the said corporation that the original stock certificate No. 38 had been lost or destroyed; pursuant to this advice the defendant corporation, on June 18, 1929 issued to Thomas S. Bratton its certificate No. 187 of its capital stock, shown on its records to have been issued in lieu of certificate No. 38, and that said certificate was transferred from W.E. Hayne. It further set forth subsequent transfers of said certificate of stock to other persons, and finally to R.D. Sanders.
To this notice the plaintiff replied that R.D. Sanders is not the lawful owner of certificate No. 38 for two shares of stock in the Jackson Opera Company, issued to W.E. Hayne on April 1, 1901, endorsed by him, duly witnessed, and transferred in the course of business to the Merchants Bank Trust Company, without notice of existence of any claim thereto; and that the Merchants Bank
Trust Company thereby became the owner of the stock certificate, free from any claim of any person whatsoever. That the plaintiff is not advised as to when W.E. Hayne departed this life, but denies that at the time of his death he was the legal owner of said stock in the Jackson Opera Company.
The plaintiff further said it was not advised whether the Hibernia Bank Trust Company of New Orleans was appointed administrator of the estate of W.E. Hayne, deceased, or whether the said bank, acting in that capacity, called upon the defendant Jackson Opera Company to transfer the two shares of stock to Thos. S. Bratton; and, further, even should this be true, the Hibernia Bank Trust Company acquired and had no interest in the stock certificate as the representative of the decedent for the reason that the two shares of stock were held and owned by the Merchants Bank Trust Company; that the *Page 249
original stock certificate No. 38 had not been lost or destroyed, but had been transferred and assigned to the Merchants Bank and Trust Company, which became, and is, the holder and owner thereof, and entitled to have it transferred upon the books of the Company. The plaintiff denied that the certificate was lawfully issued to Thos. S. Bratton and the other parties named in the notice under the general issue; and alleged that at no time had the certificate been surrendered to the defendant corporation, and if the corporation attempted to transfer the certificate on its books without its being surrendered for cancellation, that it acted at its peril; and denies the validity of the certificate of stock issued in lieu of No. 38, set forth in the notice under the general issue, alleging that throughout this period of time certificate No. 38 was held and owned by the Merchants Bank Trust Company, and is now held and owned by the plaintiff as its receiver. The plaintiff denied that R.D. Sanders acquired the two shares of stock originally owned by W.E. Hayne, claiming that the plaintiff is the lawful owner thereof, and is entitled to have the same transferred upon the books of the Company, and to have a new certificate issued in lieu thereof.
Trial of the cause was had in the Circuit Court, evidence was taken, and the court rendered a judgment in favor of the plaintiff, directing a mandamus to issue, and the president and secretary to transfer the stock to Harold Cox, as receiver of the Merchants Bank Trust Company; from which judgment this appeal was taken.
The notes of the evidence taken by the stenographer was heretofore stricken out, and we cannot refer to them in order to determine what the evidence before the Circuit Judge was. He tried the cause as both judge and jury, by agreement of the parties.
It is insisted by the appellant that mandamus will not lie, as prayed in the petition, and the pleadings show that the stock was claimed by other persons than the plaintiff, and the court could not have jurisdiction to award the mandamus on the pleadings, irrespective of the evidence. *Page 250
Under section 2348, Code of 1930, among other things it is provided that: "On the petition of the state, by its attorney-general or a district attorney, in any matter affecting the public interest, or on the petition of any private person who is interested, the writ of mandamus shall be issued by the circuit court, commanding any . . . corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law."
It is shown in the above statement that a certificate contained a provision that it was only transferable upon the books of the company by the owner in person or by his attorney or local representative, on surrender of this certificate, properly endorsed. There is nothing to show, at the time of the attempted transfer of the stock from W.E. Hayne to Thos. S. Bratton, that the certificate was produced; on the contrary, it appears by the recitals of the notice of the general issue by the defendant that it was not produced. But it is claimed that it was lost or destroyed.
The certificate of stock was presented with the petition for mandamus, properly endorsed — or endorsed in blank.
Section 4153, Code of 1930, provides that the stockholder shall be liable for debts, etc., for any unpaid balance remaining for the stock subscribed for by him; and that he may be sued, etc., by the corporation or its creditors; and that said liability shall continue for one year after the sale or transfer of the stock. It then provides, "The stock in all corporations shall be transferable by the indorsement and delivery of the stock certificate and the registry of such transfer in the books of the corporation."
In Scherck v. Montgomery, 81 Miss. 426, 33 So. 507, 508, it was held that any person entitled to a certificate of stock in a corporation may assign his right, and the assignment is good between the parties, although not *Page 251
evidenced by a transfer on the books of the company. It is also held in that case that an assignee of a right to have a certificate of stock in a corporation issued may sue in equity, and is entitled to a mandatory injunction. In the course of its opinion the Court said: "It is plain that, if Mr. Scherck had never transferred, and if he had, after the payment of his whole stock subscription, demanded his certificates of stock, and been refused, he could have sustained mandamus at law for their issuance. Granted this, it is equally plain that his immediate, or remote, transferee would have the same right, unless there was some counterclaim in the chain of transfer in the way." Further on in the opinion the Court said: "We cannot support the contention that a sale of the stock, as between the parties, cannot be made except by actual transfer on the books of the company. This is for the convenience of the corporation, and it has, in this suit, full opportunity to give any valid reason why it should not make the actual transfer."
We think the circuit judge had a right to hear the facts set forth in the petition; and we must presume, in the absence of evidence before him, that the evidence warranted his decision. We cannot look to the notes which were stricken out to determine what this evidence was. Every presumption is indulged in favor of the validity of a judgment of the Circuit Court. Any evidence that could have been introduced on the issues made may be presumed to have been done as necessary to support the judgment of the Circuit Court. It may be that the proof wholly failed to show any right in any other person than the bank. We must presume that it did. We must presume that the matter set up in the notice of the general issue was shown on the proof to be against the defendant. The only parties to this suit are those named, the plaintiff, the Jackson Opera House Company, its president and secretary.
It may be that other parties could have claimed the subject matter of the litigation under section 605, Code of 1930. As to this we are not called on to decide, for the *Page 252
reason that no other person was brought into court, or appeared therein as a claimant. Claims by a third person of the subject of the action and proceeding thereunder are provided in sections 564, 565 of the Code. We do not decide whether claimants could or should have been brought in under these sections.
It follows that the judgment of the court below must be affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4555631/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
City of Wahoo, Nebraska,
appellant, v. NIFCO Mechanical
Systems, Inc., appellee.
___ N.W.2d ___
Filed June 19, 2020. No. S-19-622.
1. Jury Instructions: Appeal and Error. Whether a jury instruction
is correct is a question of law, which an appellate court indepen-
dently decides.
2. ____: ____. Failure to object to a jury instruction after it has been sub-
mitted to counsel for review precludes raising an objection on appeal
absent plain error.
3. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
4. Jury Instructions: Appeal and Error. If the jury instructions given,
taken as a whole, correctly state the law, are not misleading, and
adequately cover the issues submissible to a jury, there is no prejudicial
error concerning the instructions and necessitating a reversal.
5. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
Appeal from the District Court for Saunders County:
Christina M. Marroquin, Judge. Reversed and remanded for
a new trial.
John P. Weis, of Wolfe, Snowden, Hurd, Ahl, Sitzmann,
Tannehill & Hahn, L.L.P., for appellant.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
Daniel B. Shuck, of Shuck Law Firm, P.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
In this negligence action, the district court gave the jury two
comparative negligence instructions. One instructed the jury
that if it found that the plaintiff’s negligence was more than
slight or that the remaining defendant’s negligence was less
than gross, then its verdict must be for the remaining defend
ant. Another stated that if the jury found that the negligence
of the plaintiff was equal to or greater than the negligence of
the remaining defendant and a defendant that had been dis-
missed from the case by stipulation, then the plaintiff was not
entitled to recover, but if the plaintiff’s negligence was less
than the negligence of those defendants, it would be allowed
to recover. Following a verdict for the remaining defendant,
NIFCO Mechanical Systems, Inc. (NIFCO), the plaintiff, the
City of Wahoo, Nebraska (Wahoo), appeals. We find that the
comparative negligence instructions constituted plain error and
thus reverse, and remand for a new trial.
BACKGROUND
Parties and Claims.
On January 7, 2014, a pipe in the sprinkler system of
Wahoo’s public library burst. This caused the sprinkler sys-
tem to activate and resulted in water damage to books, other
items, and the building itself. Wahoo subsequently brought
suit against Cheever Construction Company (Cheever) and
NIFCO. Among other theories of recovery, Wahoo alleged that
Cheever negligently installed the sprinkler system and that
NIFCO negligently failed to inspect and maintain it. Cheever
joined Midwest Automatic Fire Sprinkler Co. (Midwest) as a
third-party defendant. Among the affirmative defenses asserted
by NIFCO was a claim that Wahoo’s negligence was a proxi-
mate cause of any damages and that, as a result, either Wahoo
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306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
was completely barred from recovering or its recovery was
subject to reduction by the percentage of its fault.
Because the details of the trial proceedings are not central
to the issues on appeal, we will not recount them in great
specificity here. For our purposes, it is sufficient to note
that all claims asserted by or against Cheever and Midwest
were dismissed by stipulation during the course of trial and
that the case was submitted to the jury with NIFCO as the
sole defendant.
Jury Instructions and Verdict Forms.
Among the instructions adopted by the court and submitted
to the jury were instructions Nos. 2 and 5, both of which dealt
with comparative negligence. Instruction No. 2 included lan-
guage of “slight” and “gross” in the course of instructing the
jury on comparative negligence. After explaining that Wahoo
bore the burden of proving NIFCO was negligent and that
NIFCO bore the burden of proving Wahoo was negligent, a
section of that instruction directed the jury as to what it should
do if it found that both parties met their burden to show the
other was negligent. This section provided as follows:
C. EFFECT OF FINDINGS
If the plaintiff has met its burden of proof and the
defendant has not met its burden of proof, then your ver-
dict must be for the plaintiff.
If both the plaintiff and the defendant have met their
burden of proof, then you must compare the negligence
of each with that of the other.
1. If upon comparison you decide that the plaintiff’s
negligence was more than slight, or that the defendant’s
was less than gross, then your verdict must be for the
defendant.
2. If, however, upon comparison, you decide that the
plaintiff’s negligence was slight and that the defendant’s
was gross, then your verdict must be for the plain-
tiff. . . . You must then decide what percent of the total
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
negligence was attributable to the plaintiff and reduce the
amount of its total damages by that same percent, return-
ing a verdict for the balance only.
The words “slight” and “gross” as used here are com-
parative words. The negligence of a party is not to be
evaluated as slight or gross standing alone but only when
compared with that of the other party.
(Emphasis in original.)
Instruction No. 5 also addressed comparative fault. It pro-
vided as follows:
COMPARATIVE NEGLIGENCE
If you find Plaintiff, [Wahoo], was damaged and that
the damages were proximately caused by the negligence
of [NIFCO] and [Midwest], then you must determine to
what extent the negligent conduct of each contributed to
the damages of the plaintiff, expressed as a percentage of
100 percent.
If you find that both Plaintiff and one or more of the
Defendants were negligent and that the negligence of
the plaintiff was equal to or greater than the negligence
of the defendants, then Plaintiff will not be allowed to
recover.
If you find that [Wahoo] and one or more of the
Defendants were negligent and that the negligence of
one or more of the Defendants was greater than the neg-
ligence of [Wahoo], then the Plaintiff will be allowed to
recover.
If Plaintiff is allowed to recover, you will first deter-
mine the Plaintiff’s total damages without regard to the
percentage or degree of negligence.
If Plaintiff is allowed to recover, then the court will
then reduce the total damages by the percentage of the
plaintiff’s negligence.
In this regard please refer to the Verdict Form No. 3.
Neither party objected to instruction No. 2 or instruction
No. 5 or proposed any alternative instructions regarding com-
parative negligence.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
The district court supplied the jury with several verdict
forms. Verdict form No. 1 provided that Wahoo had not met
its burden of proof and that the jury’s verdict was for NIFCO.
Verdict form No. 2 provided that Wahoo had met its burden of
proof, that NIFCO had not met its burden of proof, and that the
jury’s verdict was for Wahoo. Verdict form No. 2 included a
line upon which the jury could enter Wahoo’s damages.
Verdict form No. 3 allowed for a finding that Wahoo
proved NIFCO was negligent and that NIFCO proved Wahoo
was negligent. The form included blank lines upon which the
jury could enter NIFCO’s and Midwest’s respective percent-
ages of negligence. Just below those blank lines, the form
stated that “[t]he total negligence must add up to 100%.” A
space was not provided for Wahoo’s percentage of negligence,
nor was there one for Cheever’s. Verdict form No. 3 then
stated that if Wahoo’s negligence equaled 50 percent or more,
a verdict should be returned for NIFCO using verdict form
No. 1 and verdict form No. 3 should not be completed further.
Verdict form No. 3 next stated that if Wahoo’s negligence
was less than 50 percent, the jury must return a verdict for
Wahoo and calculate Wahoo’s total damages; the court would
then determine the award by reducing the total damages
by the percentage of negligence apportioned to Wahoo and
to Midwest.
Jury Verdict and Wahoo’s
Motion for New Trial.
The jury completed verdict form No. 1 and rendered a ver-
dict in favor of NIFCO. The district court accepted the verdict.
Wahoo filed a timely motion for a new trial. Wahoo asserted
that instruction No. 2 contained an incorrect statement of the
law. Following a hearing, the district court denied the motion
in a written order.
In its order, the district court acknowledged that instruc-
tion No. 2 and its use of “slight” and “gross” was not a
proper comparative negligence instruction. The district court
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306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
nonetheless concluded that Wahoo was not entitled to a new
trial. It recited two reasons for that conclusion: First, the
district court asserted that if instructions Nos. 2 and 5 were
read together, they correctly stated the law and were not
confusing or misleading. In this regard, the district court sug-
gested that instructions Nos. 2 and 5 were not contradictory,
but that instruction No. 2’s use of “slight” and “gross” was
merely a “more general comparison” than the comparison
called for in instruction No. 5. The district court reasoned
that taken together, the instructions directed the jury to first
make a determination as to whether the parties’ negligence
was slight or gross, but then, in conjunction with verdict form
No. 3, directed it to express negligence in percentage terms.
Alternatively, the district court concluded that the jury did not
reach the issue of comparative negligence and that, thus, any
error in instruction on the issue was harmless.
Wahoo appeals.
ASSIGNMENTS OF ERROR
Wahoo asserts multiple assignments of error, but each rests
on the contention that the district court erred by instructing the
jury with the “slight” and “gross” formulation in instruction
No. 2.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of
law, which an appellate court independently decides. Kuhnel
v. BNSF Railway Co., 287 Neb. 541, 844 N.W.2d 251 (2014).
ANALYSIS
Propriety of Instruction No. 2.
[2] Wahoo contends that the verdict against it must be
reversed because of the inclusion of the “slight” and “gross”
comparative negligence formulation in instruction No. 2.
Wahoo, however, did not object to instruction No. 2 at trial.
We have stated that failure to object to a jury instruction after
it has been submitted to counsel for review precludes raising
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
an objection on appeal absent plain error. Id. Our review is
thus limited to plain error here.
As for instruction No. 2, no one involved in this case
believes that the “slight” and “gross” comparative negligence
formulation should have been included in the jury instructions.
The district court acknowledged it should not have been given
in its order on Wahoo’s motion for a new trial. And although
NIFCO maintains that reversal is not appropriate, it too con-
cedes that the “slight” and “gross” formulation should not have
been included in the instructions to the jury.
We agree that instruction No. 2 should not have been given,
but before turning to the disputed issue on which this appeal
turns—whether the jury instructions rise to the level of plain
error—we pause to clarify a misunderstanding regarding the
“slight” and “gross” comparative negligence formulation held
by the district court and the parties to this case, a misunder-
standing that appears to have arisen as a result of comments to
the Nebraska Jury Instructions.
The district court explained in its order denying Wahoo’s
motion for a new trial that instruction No. 2 was taken from
NJI2d Civ. 2.02A. A “Special Note” in the comments to that
instruction states that it applies to “causes of action that accrue
before February 8, 1992.” The Special Note goes on to say that
“[i]t seems” that the NJI2d Civ. 2.02A pattern instruction con-
taining the “slight” and “gross” formulation
also applies to causes of action that accrue on or after
February 8, 1992, when there is only one defendant in
the case when it goes to the jury (and, presumably, no
defendant who has been discharged from a lawsuit by
a release, a covenant not to sue, or a similar agreement
entered into by a claimant and a person liable).
In its order denying Wahoo’s motion for a new trial, the dis-
trict court, with a citation to the Special Note, concluded that
the instruction patterned after NJI2d Civ. 2.02A should not
have been given, because Cheever and Midwest had been
discharged from the lawsuit. Wahoo and NIFCO also appear
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
to take the position that the instruction should not have been
given for that reason.
We agree that the jury should not have been instructed with
the “slight” and “gross” language, but we do not believe the
propriety of that instruction turns on the discharge of Cheever
and Midwest from the suit. As we will explain, under the gov-
erning statutes, the “slight” and “gross” formulation applies
only to what must be an ever-shrinking category of cases that
accrued before February 8, 1992.
At common law, if any negligence of the plaintiff con-
tributed to his or her injury, the doctrine of contributory
negligence barred recovery completely. See, e.g., Niemeyer
v. Tichota, 190 Neb. 775, 212 N.W.2d 557 (1973). Nebraska
adopted a statutory version of comparative negligence that
departed from the common law rule in 1913. See id. The stat-
ute allowed for the possibility of some recovery for a plaintiff
even if his or her negligence contributed to the injury, so long
as the plaintiff’s negligence was “slight” and the defendant’s
negligence was “gross.” If that was the case, the damages
awarded to the plaintiff would be reduced in proportion to the
amount of negligence attributable to the plaintiff. See id.
In 1992, the comparative negligence statute was amended
again. See 1992 Neb. Laws, L.B. 262. Under the 1992 amend-
ments, the “slight” and “gross” formulation was left in place
for actions accruing before February 8, 1992. See Neb. Rev.
Stat. § 25-21,185 (Reissue 2016). But a new comparative neg-
ligence regime was put in place for actions accruing on or after
February 8, 1992. See Neb. Rev. Stat. § 25-21,185.07 (Reissue
2016). For those actions, the “slight” and “gross” language was
removed and then replaced with the following:
Any contributory negligence chargeable to the claim-
ant shall diminish proportionately the amount awarded as
damages for an injury attributable to the claimant’s con-
tributory negligence but shall not bar recovery, except
that if the contributory negligence of the claimant is
equal to or greater than the total negligence of all persons
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CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
against whom recovery is sought, the claimant shall be
totally barred from recovery. The jury shall be instructed
on the effects of the allocation of negligence.
Neb. Rev. Stat. § 25-21,185.09 (Reissue 2016).
Other sections of the 1992 statutory amendments address
how liability is to be allocated among multiple defendants. See
Neb. Rev. Stat. §§ 25-21,185.10 and 25-21,185.11 (Reissue
2016). We have previously held that § 25-21,185.10 applies
only where there are multiple defendants in a lawsuit at the
time the case is submitted to the finder of fact. See Maxwell
v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001). Section
25-21,185.11 applies when a claimant enters into a release,
covenant not to sue, or similar agreement with a person liable
for negligence. See, e.g., Tadros v. City of Omaha, 273 Neb.
935, 735 N.W.2d 377 (2007). But there is nothing in those
statutes or any of the other comparative negligence statutes
suggesting that the “slight” and “gross” formulation is to be
used in any cases accruing on or after February 8, 1992. We
disapprove of the Special Note following NJI2d Civ. 2.02A to
the extent it suggests otherwise.
Because the “slight” and “gross” formulation applies only in
cases accruing before February 8, 1992, it does not apply here
and the jury should not have been instructed as if it did.
Plain Error Analysis.
[3] Because Wahoo did not object to the jury instructions
at issue, we may reverse on that basis only if there was plain
error. Plain error exists where there is an error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. Kuhnel v. BNSF Railway Co.,
287 Neb. 541, 844 N.W.2d 251 (2014).
NIFCO argues that the inclusion of instruction No. 2 did
not amount to plain error for two reasons: First, it argues that
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CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
there was no plain error, because instruction No. 5 correctly
set forth the governing comparative negligence standards.
Second, it argues that any error was harmless, because the jury
did not reach the question of comparative negligence. The dis-
trict court identified essentially the same reasons for denying
Wahoo’s motion for a new trial. As we will explain below, we
find plain error.
[4] Starting with NIFCO’s argument that the jury was prop-
erly instructed on the subject of comparative negligence, it
is true that if the jury instructions given, taken as a whole,
correctly state the law, are not misleading, and adequately
cover the issues submissible to a jury, there is no prejudicial
error concerning the instructions and necessitating a reversal.
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917
N.W.2d 435 (2018). In our view, however, that proposition has
no application here, because the instructions, taken as a whole,
did not correctly state the law.
Instruction No. 5 may have correctly stated the governing
comparative negligence law, but instruction No. 2 did not.
And it is not difficult to see how the jury could have been
led astray by instruction No. 2. Consider a case in which
the jury believed that Wahoo’s damages were caused by the
negligence of both Wahoo and NIFCO, with Wahoo’s share
of responsibility approaching but not reaching 50 percent. A
jury likely would not deem that level of negligence on the
part of Wahoo “slight” or that level of negligence on the part
of NIFCO “gross,” and if the jury so found, instruction No. 2
would direct it to enter a verdict in favor of NIFCO. But this
would, of course, run directly counter to the current com-
parative negligence law, which allows Wahoo some recovery
under those same circumstances. See § 25-21,185.09. As
this example illustrates, instruction No. 2 was not, as the
district court suggested, a general statement of comparative
negligence law, which was ultimately clarified by instruction
No. 5. Rather, instruction No. 2 “misstate[d] the law upon
a vital issue” and was not “cured by another which state[d]
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CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
the law correctly.” Kaspar v. Schack, 195 Neb. 215, 220, 237
N.W.2d 414, 417 (1976).
This leaves NIFCO’s argument that any error in the com-
parative negligence instructions was harmless. Here, NIFCO
relies on several cases in which Nebraska appellate courts
have held that any error in instructing the jury on comparative
negligence was harmless, because the jury’s return of a special
verdict form stating the jury found no negligence on the part
of the defendant showed that it did not reach the question of
comparative negligence. See, e.g., Corcoran v. Lovercheck,
256 Neb. 936, 594 N.W.2d 615 (1999); Hoover v. Burlington
Northern RR. Co., 251 Neb. 689, 559 N.W.2d 729 (1997);
Ammon v. Nagengast, 24 Neb. App. 632, 895 N.W.2d 729
(2017). NIFCO argues that the jury did not reach the issue of
comparative negligence in this case, because it returned its
verdict on verdict form No. 1, which stated that Wahoo had not
met its burden of proof.
Unlike the cases cited by NIFCO, however, we cannot
be certain in this case that the jury did not reach the issue
of comparative negligence. As we have noted, the jury was
directed via instruction No. 2 that if it found that both par-
ties were negligent and that Wahoo’s negligence was more
than slight and NIFCO’s negligence was less than gross, its
verdict must be for NIFCO. The only verdict form given to
the jury which allowed it to return a verdict for NIFCO was
verdict form No. 1. Accordingly, while it is possible that the
jury did not reach the issue of comparative negligence, it is
equally possible that the jury did reach the issue of compara-
tive negligence and understood its instructions to require it to
use verdict form No. 1.
Not only do we believe that the district court erred by giving
instruction No. 2 and that this error was not harmless, it also
bears all of the attributes of plain error. The error was plainly
evident from the record and affected Wahoo’s substantial right
to have the jury decide the case under the governing law. We
also believe that if we were to leave this error uncorrected, it
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CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
would result in damage to the integrity, reputation, and fairness
of the judicial process. The Legislature decided nearly three
decades ago that, moving forward, comparative negligence
would no longer be decided through the “slight” and “gross”
formulation. The district court’s use of that formulation in this
case failed to give effect to the Legislature’s policy choice.
Because the district court’s comparative negligence jury
instructions were plainly erroneous, we reverse, and remand
for a new trial.
Issue Likely to Recur on Remand.
[5] An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings. Bohling v.
Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020). Prior to con-
cluding, we exercise that discretion here to note one additional
problem with the district court’s directions to the jury concern-
ing comparative negligence.
According to instruction No. 5, verdict form No. 3 was to be
used if the jury found that the negligence of both Wahoo and
one or more of the defendants proximately caused Wahoo’s
damages. Verdict form No. 3 included spaces for the jury to
list the respective percentages of negligence of certain par-
ties. But the only blank lines provided were for NIFCO and
Midwest. No blank line was provided for Wahoo or Cheever.
Just below those lines, the jury was told that “[t]he total negli-
gence must add up to 100%.”
At the jury instructions conference, NIFCO objected to the
fact that a line was not included for Cheever on verdict form
No. 3. The district court overruled that objection, finding
that there was no evidence of Cheever’s negligence presented
at trial.
Although neither party objected to the fact that a line
was not provided for Wahoo’s percentage of negligence, that
appears to have been erroneous. For the jury to properly con-
sider the issue of Wahoo’s comparative negligence as directed
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CITY OF WAHOO v. NIFCO MECH. SYSTEMS
Cite as 306 Neb. 203
by instruction No. 5, it would have to assess, in percentage
terms, the extent to which Wahoo’s negligence proximately
caused its damages. But verdict form No. 3 not only did not
provide a space for the jury to list a percentage of negligence
for Wahoo, by directing that the negligence of NIFCO and
Midwest must total 100 percent, it seemed to suggest that the
jury was not to consider the issue at all. If, when this matter
is retried, the district court finds that the evidence warrants
instruction on the issue of Wahoo’s comparative negligence,
the relevant verdict form should make clear the jury is to con-
sider and list a percentage of negligence for Wahoo.
CONCLUSION
For the reasons explained above, we reverse, and remand for
a new trial.
Reversed and remanded for a new trial. | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2987395/ | March 21, 2013
JUDGMENT
The Fourteenth Court of Appeals
TIAN JIA, Appellant
NO. 14-12-01165-CV V.
HUA XU, Appellee
________________________________
Today the Court heard its own motion to dismiss the appeal from the order
signed by the court below on December 14, 2012. Having considered the motion
and found it meritorious, we order the appeal DISMISSED.
We further order that all costs incurred by reason of this appeal be paid by
appellant, Tian Jia.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3279887/ | Appellants were convicted of maintaining a common nuisance, in that between January 10, 1928, and January 30, 1928, they continually maintained a place where intoxicating liquor was kept, sold, and bartered, unlawfully. Appellants urge the appeal from the judgment and order denying a motion for a new trial on the sole ground that the evidence is insufficient to sustain the conviction because, they assert, there is no proof that they operated or maintained the place known as the Bradford Cafe, where it is conceded the liquor was sold during the period alleged in the information.
[1] One Hatzke, a witness called by the prosecution, testified that during the month of January, 1928, the defendants were "running the Bradford cafe at Hemet." No objection was made to this evidence, and the witness was not cross-examined as to the subject matter of his answer. The defendants did not take the stand. Hatzke's testimony was uncontradicted, and was sufficient to establish the defendant's connection with the place where other evidence showed intoxicating liquor was sold in the defendants' presence, so as to clearly show the creation of a nuisance within the meaning of the statute.
The judgment and order appealed from are affirmed.
Works, P.J., and Thompson, J., concurred. *Page 393 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/102701/ | 299 U.S. 99 (1936)
CHISHOLM ET AL.
v.
GILMER, RECEIVER.
No. 11.
Supreme Court of United States.
Argued October 13, 1936.
Decided November 9, 1936.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
Mr. Minitree J. Fulton, with whom Messrs. Homan W. Walsh and Lyttelton Waddell were on the brief, for petitioners.
*100 Mr. George Gilmer, with whom Messrs. John S. Eggleston and George P. Barse were on the brief, for respondent.
MR. JUSTICE CARDOZO delivered the opinion of the Court.
The controversy is one as to the jurisdiction of a United States District Court in Virginia to apply the Virginia practice whereby a notice of motion for judgment is accepted as a substitute for a writ or other process issued from a court.
Petitioners, shareholders in a national bank, have been charged by the Comptroller of the Currency with an assessment in the amount of the par value of their shares. To enforce that assessment, respondent, the receiver of the bank, gave notice of motion that he would apply for judgment at a given time, incorporating in the notice a statement of the facts making up the claim. There is no question that the practice was in conformity with the statutes of Virginia. The notice, which was signed by the receiver, was served upon the shareholders by the marshal, though it would have been equally efficacious if served by someone else. It did not issue out of the court, did not bear the court seal, and was not signed by the clerk. Upon the return day of the motion the objection was made in behalf of the petitioners that the "process" was unavailing to bring them into court. The objection was overruled and later, after trial, a judgment on the merits went in favor of the receiver. Upon appeal to the Court of Appeals for the Fourth Circuit, the judgment was affirmed. 81 F. (2d) 120. To set at rest a controversy as to an important question of procedure, this Court granted certiorari "limited to the question of the jurisdiction of the District Court."
*101 The remedy by notice of motion in Virginia is governed by § 6046 of the Virginia Code. "Any person entitled to maintain an action at law may, in lieu of such action at law, proceed by motion." The remedy is an ancient one. It goes back to 1732, though at first it was limited to claims for public moneys payable by sheriffs. Acts of May, 1732, c. 10, § 8, 4 Va. Stat. (Hening) 352. Gradually it was extended to other situations. As early as 1849 it was made applicable to claims on contract generally. Virginia Code (1849), c. 167, § 5. From contracts it spread to torts (Virginia Acts [1912] 15), and to statutory penalties. Ibid. 651. A revision of the Code in 1919 made the remedy even broader. Virginia Code, 1919, § 6046. The history of the development has been traced with painstaking precision by students of procedure.[1]
There is trustworthy evidence that in the practice of the Virginia courts the remedy by motion has almost superseded the common law forms of action.[2] Even in the federal courts held in the same territory the new procedure has succeeded to a large extent in crowding out the old. An opinion of a federal District Judge (McDowell, J.), announced in 1904, shows the remedy by motion then accepted by the bar. Leas & McVitty v. Merriman, 132 Fed. 510. About thirty years later (January, 1935), the Court of Appeals for the fourth circuit with supervisory powers over courts in the same area made a study of the *102 intermediate growth. By that time it appeared that the procedure by notice of motion was followed in ninety-five per cent. of the common law actions begun in a federal court at Richmond, thirty-three-and-a-third per cent. of those begun at Norfolk, and fourteen per cent. of those begun at Alexandria. Eley v. Gamble, 75 F. (2d) 171, 173.
Under the Conformity Act (R.S. § 914; 28 U.S.C. § 724), "The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such district courts are held, any rule of court to the contrary notwithstanding." How a suit shall be begun, whether by writ or by informal notice, is a question of the practice of the state or of its forms and modes of proceeding. Amy v. Watertown, No. 1, 130 U.S. 301, 304. The Constitution of the United States does not attempt to make a choice between one method and another, provided only that the method employed "gives reasonable notice and affords fair opportunity to be heard before the issues are determined." Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393. The remedy by notice of motion has had repeated approval by the highest court of Virginia. Virginia Hot Springs Co. v. Schreck, 131 Va. 581; 109 S.E. 595; Security Loan & Trust Co. v. Fields, 110 Va. 827; 67 S.E. 342; Drew v. Anderson, (1797) 1 Call 51, 53. It is here sought to be applied, not in equity or admiralty (Coffey v. United States, 117 U.S. 233), but in a common law cause, a quasi-contractual obligation being the source of liability. Shriver v. Woodbine Bank, 285 U.S. 467, 477; Coffin Brothers & Co. v. Bennett, 277 U.S. 29, 31; Bernheimer v. Converse, 206 U.S. 516, 529; Christopher v. Norvell, 201 U.S. 216, 225, 226. A federal *103 court, adhering to the Conformity Act, must follow the local practice, unless some other act of Congress, creating an exception to the general duty of conformity, has declared a special rule. Ex parte Fisk, 113 U.S. 713; Whitford v. Clark County, 119 U.S. 522; Southern Pacific Co. v. Denton, 146 U.S. 202, 209.
Petitioners profess to find the necessary exception in § 911 of the Revised Statutes (28 U.S.C. § 721), which provides: "All writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. Those issuing from the Supreme Court shall bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a district court shall bear teste of the judge, or, when that office is vacant, of the clerk thereof." We do not essay a definition of the word process in every context. It may take on varying shades of meaning in varying surroundings. For present purposes it is enough to say that a notice of motion, if process at all, is not process issuing from a court, and assuredly is not a writ.[3] Only writs or processes so issuing are governed by the statute. This is the view expressed more than thirty years ago by Judge McDowell in two cases (Leas & McVitty v. Merriman, supra, and Schofield v. Palmer, 134 Fed. 753), which did much, we may be confident, to guide the conduct of the federal bar in adhering to the Virginia practice. It is the view expressed by Judge (later Mr. Justice) Sanford in the District Court of Tennessee. "In any proceeding which may be properly instituted and proceeded with upon mere notice to the parties in interest, *104 without process from the court itself, the requirements of section 911 have no application." In re Condemnation Suits by United States, 234 Fed. 443, 445. It is the view accepted by the Court of Appeals for the Fourth Circuit in Eley v. Gamble, supra, and again in the case at hand. Cf. Wile v. Cohn, 63 Fed. 759.
There is instruction also in many state decisions dealing with cognate questions. The Constitution of Virginia prescribes (§ 106) that "writs shall run in the name of the `Commonwealth of Virginia,' and be attested by the clerks of the several courts." The Virginia courts have perceived nothing in that mandate at war with the validity of a summary notice of motion signed and issued by the parties. Whitley v. Booker Brick Co., 113 Va. 434, 436; 74 S.E. 160; Kain v. Ashworth, 119 Va. 605; 89 S.E. 857; Mankin v. Aldridge, 127 Va. 761, 767; 105 S.E. 459; Wood v. Kane, 143 Va. 281; 129 S.E. 327. In many other states constitutional or statutory provisions as to the form of writs and other "process" have received a like construction. People v. Lee, 72 Colo. 598; 213 P. 583; Gilmer v. Bird, 15 Fla. 410; Curry v. Hinman, 11 Ill. 420, 424; McKenna v. Cooper, 79 Kan. 847; 101 P. 662; Herndon v. Wakefield-Moore Realty Co., 143 La. 724; 79 So. 318; Hanna v. Russell, 12 Minn. 80; Dunlap v. Bull Head Oil Co., 167 Okla. 277; 29 P. (2d) 108; Bailey v. Williams, 6 Ore. 71; Whitney v. Blackburn, 17 Ore. 564, 571; 21 P. 874; State v. Superior Court, 142 Wash. 270; 253 P. 115; Porter v. Vandercook, 11 Wis. 70. The analogy is apt and the reasoning persuasive.
Petitioners lean heavily upon early decisions in the District and Circuit Courts for New York wherein the requirements of R.S. § 911 were held to be applicable to the New York form of summons. Peaslee v. Haberstro, (1879) Fed. Cas. No. 10,884, 15 Blatchf. 472; *105 Dwight v. Merritt, (1880) 4 Fed. 614. In so far as these decisions and others following them (United States v. Mitchell, 223 Fed. 805) extend the rule of the statute to notices or forms of process not issuing from a court, they do not have our approval.
Petitioners suggest that the use of a notice of motion as a substitute for a summons is forbidden by Rule 14 adopted by the District Court for the Eastern District of Virginia. The same objection was adequately answered in Eley v. Gamble, supra, pp. 173, 174. If the rule has such a meaning it is inconsistent with the Conformity Act which governs practice in the district courts, "any rule of court to the contrary notwithstanding."
The judgment is
Affirmed.
MR. JUSTICE STONE took no part in the consideration or decision of this case.
NOTES
[1] Burks, Pleading and Practice in Actions at Common Law (1st ed., 1913) 164; Millar, Three American Ventures in Summary Civil Procedure, (1928) 38 Yale Law Journal 193; Clark and Samenow, The Summary Judgment, (1929) 38 Yale Law Journal 423; Report of the College of Law of West Virginia to the Bar Association, (1929) 36 West Virginia Law Quarterly 5, 70.
[2] E.C. Burks, Note to Hanks v. Lyons, (1895) 1 Va. Law Register 441; Millar, The Summary Judgment, supra, at p. 221; Report of the College of Law of West Virginia, supra, at p. 70.
[3] Pollock & Maitland, History of English Law, 2nd ed., vol. I, p. 150; Radin, Anglo-American Legal History, p. 179; Holdsworth, History of English Law, vol. II, p. 193. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4555643/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
State of Nebraska, appellee, v.
Preston Pope, appellant.
___ N.W.2d ___
Filed May 29, 2020. No. S-18-1151.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, regarding which an appellate court is obli-
gated to reach a conclusion independent of the determination reached by
the trial court.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
3. Identification Procedures: Due Process: Appeal and Error. A dis-
trict court’s conclusion whether an identification is consistent with due
process is reviewed de novo, but the court’s findings of historical fact
are reviewed for clear error.
4. Jury Instructions: Proof: Appeal and Error. In reviewing a claim of
prejudice from jury instructions given or refused, the appellant has the
burden to show that the allegedly improper instruction or the refusal to
give the requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
5. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
6. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appellant
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
7. Homicide: Juries: Verdicts. The jury need only be unanimous as to its
verdict that defendant committed first degree murder, and not as to the
theory which brought it to that verdict.
8. Homicide: Jury Instructions: Proximate Cause. A defendant in a
felony murder case is not entitled to a proximate cause instruction when
there is no dispute as to the victim’s cause of death.
9. ____: ____: ____. In the context of felony murder, an instruction on
proximate cause is appropriate where the evidence presents a jury ques-
tion as to whether the death of the victim was proximately caused by an
act of the defendant or the defendant’s accomplice.
10. Jury Instructions. A trial court is not obligated to instruct the jury on
matters which are not supported by evidence in the record.
11. Trial: Witnesses: Testimony. Neb. Rev. Stat. § 25-1141 (Reissue 2016)
does not apply to testimony given by a different witness when no objec-
tion is made to that witness’ testimony.
12. Constitutional Law: Identification Procedures: Due Process. The
Due Process Clause does not require a preliminary judicial inquiry
into the reliability of an eyewitness identification when the identifica-
tion was not procured under unnecessarily suggestive circumstances
arranged by law enforcement.
13. Identification Procedures: Police Officers and Sheriffs: Motions
to Suppress. Suppression of identification evidence on the basis of
undue suggestion is appropriate only where the witness’ ability to make
an accurate identification is outweighed by the corrupting effect of
improper police conduct.
14. Trial: Identification Procedures. When no improper law enforcement
activity is involved, it suffices to test the reliability of identification tes-
timony at trial, through the rights and opportunities generally designed
for that purpose, such as the rights to counsel, compulsory process, and
confrontation and cross-examination of witnesses.
15. Evidence: Appeal and Error. An appellate court does not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or reweigh the
evidence presented; such matters are for the finder of fact.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
A jury convicted Preston Pope of two counts of first degree
murder for the killing of Deprecia Neelon and Garion Johnson,
two counts of use of a deadly weapon to commit a felony, and
one count of possession of a deadly weapon by a prohibited
person. On appeal, Pope challenges two of the district court’s
jury instructions, the affidavit relied upon by law enforce-
ment to obtain a warrant to collect a sample of Pope’s DNA,
and the identification of Pope by one of the State’s witnesses.
We affirm.
BACKGROUND
This case involves three shootings which occurred in Omaha,
Nebraska, on August 5, 6, and 8, 2015. Neelon lived in a
house on Pinkney Street with other family members, includ-
ing her mother, stepfather, and stepsister, Marcella Mitchell
(Marcella). On August 5, 2015, Johnson’s vehicle was parked
in the street outside Neelon’s home. While Johnson was sitting
in the driver’s seat with the door open, an individual walked
up and fired a gun at him. Johnson pushed the shooter and ran
away as the shooter chased him.
Marcella and her sister had been standing by the street and
were able to see the shooter. Marcella reported that a man
dressed in black had walked past her toward Johnson. After
hearing the gunshot, Marcella heard a clip drop. She then
saw the shooter bend down and pick up the clip before chas-
ing after Johnson. Marcella described the individual as being
a light-skinned African-American male, approximately 5 feet
5 inches tall, and wearing a black jacket with a hood, black
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305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
pants, and frizzy braids in his hair. She estimated that she had
been approximately three to four steps away from the shooter
and was able to see his face for at least 3 seconds.
The next day, someone splashed an accelerant onto the sid-
ing of Neelon’s house on Pinkney Street and lit the house on
fire. Upon discovering that the house was on fire, Neelon had
gone outside to investigate and was shot seven times. Neelon’s
stepfather was home at the time and attempted to pull Neelon
back into the house after she had been shot. As Neelon’s step-
father was attempting to pull her inside, someone fired three
to five additional shots. When Neelon’s stepfather saw the
shooter point the gun in his direction, he was forced to let go
of Neelon and close the door. Neelon died as a result of her
gunshot wounds.
After Neelon was shot, several suspects had been observed
leaving the area of her house on Pinkney Street in two separate
vehicles: a blue/green minivan with a distinctive rust pattern
and a white four-door sedan. Evidence recovered at the scene
included a watch, a black knit glove, and three .45-caliber
spent shell casings. A manufacturer’s tag from a pair of knit
gloves was located in an alley approximately one block away
where the minivan had been parked. A fingerprint on the tag
was found to match the left thumb of Marcus Short. DNA test-
ing on the watch indicated that Short and another man could
not be excluded as partial DNA contributors to a DNA mixture
found on the inside of the device.
Johnson lived in a house on Fontenelle Boulevard. On
August 8, 2015, law enforcement was dispatched to Johnson’s
address for a report of a shooting and a vehicle that crashed
into a garage. Upon their arrival, officers found Johnson in a
white Chevy Impala that had crashed into a garage located at
a nearby address on Fontenelle Boulevard. Johnson had been
shot seven times and died as a result of his gunshot wounds.
Because the area was muddy from a city sewer project, offi-
cers were able to follow the Impala’s tire tracks to Johnson’s
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
home. The tracks indicated that Johnson backed from his
garage, drove in circles in two yards located along Fontenelle
Boulevard, and then crashed into the nearby garage.
Johnson had been pulling his vehicle into his garage when
two individuals standing by the driver’s side of the vehicle
began firing into the driver’s-side window. Johnson backed the
vehicle into the street. As he circled through the yards, one of
the shooters followed the vehicle, firing into the window.
Witnesses reported that the shooters were two African-
American males wearing black hooded sweatshirts, one of
which had a red Nebraska logo on it. After the Impala
crashed, the two shooters were seen running through yards
and fleeing in a white Chevy Monte Carlo that had been
parked toward the west. The Monte Carlo had white and blue
in-transit plates.
Officers located a white Monte Carlo matching the vehicle’s
description at an address on Binney Street in Omaha, where
Short resided with his grandmother. Law enforcement obtained
and executed a search warrant at Short’s residence. During
execution of the warrant, officers seized multiple items from
Short’s bedroom, including two firearms—a .45-caliber hand-
gun and a .357-caliber Magnum revolver, one black knit glove,
a pair of “Mechanix” gloves, a black hooded sweatshirt, a
black hooded sweatshirt with a red Nebraska logo, and black
pants with dried mud on them.
As a result of the search, Short was arrested and charged
with two counts of possession of a deadly weapon by a pro-
hibited person. The State later dismissed the charges and filed
an information charging Short with first degree murder for the
killing of Johnson and use of a firearm to commit a felony.
When the firearms were dusted for fingerprints, Pope’s par-
tial palmprint was found on the barrel of the .357 Magnum.
Ballistic test results demonstrated that spent projectiles recov-
ered from Johnson’s body had been fired from the .357 Magnum
with Pope’s palmprint on it. Two of the casings found at the
scene of Neelon’s murder were found to have been fired from
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
the .45-caliber handgun found in Short’s bedroom. Officers
located additional shell casings at each of the three shootings,
but the shell casings were unable to be matched to either of the
two firearms. However, ballistic tests demonstrated that these
casings had all been fired from the same .45-caliber semiauto-
matic handgun.
On August 14, 2015, officers located a dark-colored minivan
that matched the description of the minivan used by the sus-
pects leaving Neelon’s house on Pinkney Street after she was
shot. The minivan was registered to Pope’s mother, and Pope
had been seen driving it. Cell phone records placed Pope in
the area of Neelon’s house near the time she was killed, and in
the area of Johnson’s house near the time he was killed. These
records also indicated Pope was in the area of Short’s home
soon after Neelon was killed.
Law enforcement obtained a search warrant to get a sample
of Pope’s DNA under Neb. Rev. Stat. §§ 29-3301 to 29-3307
(Reissue 2016), Nebraska’s identifying physical characteristics
statutes. The warrant permitted the use of detention to obtain
the sample. Pope was restrained after he refused to comply
with the warrant. A buccal swab was used to collect DNA
evidence at the Douglas County correctional facility where
Pope was incarcerated on unrelated charges. DNA test results
showed Pope as a major contributor to the DNA found on the
black hooded sweatshirt and black pants that had been seized
from Short’s bedroom.
In April 2016, Marcella was at the Douglas County court-
house with a friend for reasons unrelated to this case. While
there, Marcella saw Pope and recognized him as the August
5, 2015, shooter. Marcella later testified that after seeing Pope
at the courthouse, she contacted the Omaha police officer who
had initially interviewed her regarding the August 5 incident.
Marcella reported that she had seen Pope at the courthouse and
that she recognized him as the shooter.
In May 2016, the State filed an information charging Pope
with first degree murder for the killing of Johnson, use of a
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deadly weapon to commit a felony, and possession of a deadly
weapon by a prohibited person.
In October 2016, Marcella was shown a photographic lineup
by law enforcement, at which time she identified Pope as the
August 5, 2015, shooter. Prior to both the lineup and her recog-
nizing Pope at the courthouse, Marcella had seen a television
news story about the investigation into Johnson’s homicide.
The news story aired a photograph of Pope wearing a bright
yellow shirt. The photograph depicting Pope in the lineup was
identical to the one used in the news story. Marcella later testi-
fied that upon seeing the news story, she thought she recog-
nized Pope as the shooter, but did not contact law enforcement
at the time because she was not sure. Marcella stated that when
she later saw Pope at the courthouse, from the angle of his face
when he walked and when he turned his face toward her, she
was able to recognize him as the individual that ran past her
on August 5, 2015.
In June 2017, the State filed amended informations against
Short and Pope, charging each with a second count of first
degree murder for the killing of Neelon and a second count of
use of a deadly weapon. The district court ordered Short’s and
Pope’s cases to be tried separately.
Prior to trial, Pope filed motions to suppress evidence of
his DNA and of Marcella’s identification. After a hearing
on the motion to suppress evidence related to Pope’s DNA,
the district court determined the affidavit used to obtain the
warrant lacked sufficient probable cause for issuance of the
search warrant. The affidavit requested a sample of Pope’s
DNA for “comparison purposes.” The affidavit stated that
during the course of the investigation into Johnson’s death, a
search warrant executed at Short’s home resulted in the sei-
zure of two firearms, one of which had Pope’s partial palm-
print on it.
The district court noted that the affidavit failed to articu-
late a connection between the firearm and the homicide and
failed to articulate a connection between the fact that Pope had
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possessed the firearm and the fact that Pope was prohibited
from possessing a firearm. Still, the court overruled Pope’s
motion to suppress after concluding the good faith exception
applied. The court concluded that law enforcement’s reli-
ance on the warrant was reasonable because Pope had twice
been convicted of felonies and his palmprint was found on
a firearm.
Regarding Marcella’s identification of Pope, Pope sought to
suppress both the photographic lineup and any in-court iden-
tification on the grounds that Marcella’s prior identification
of Pope was unnecessarily and impermissibly suggestive. The
motion was overruled. The district court found that the prior
identification of Pope was not improperly suggestive and that
Marcella’s identification of Pope from the August 5, 2015,
incident contained sufficient indicators of reliability to out-
weigh any alleged suggestiveness in the photographic lineup.
At trial, both Marcella and her sister identified Pope as the
August 5, 2015, shooter.
James Henderson testified that he had been driving in the
area of Neelon’s house on Pinkney Street and heard gunshots
at the time she was killed. As he looked toward her house,
Henderson saw the fire. He observed two males wearing all
dark clothing standing near the front and the side of the house,
and one of the males was holding a gun. Henderson stated that
the two males, along with a third, ran across the street in front
of his vehicle. Henderson recognized one of them. Henderson
testified that he was later incarcerated with Pope and Short and
that he recognized them as the other two males.
Pope was convicted on all five counts and sentenced to two
terms of life imprisonment for the first degree murder counts,
two terms of 49 to 50 years’ imprisonment for the counts of
use of a deadly weapon, and 49 to 50 years’ imprisonment for
possession of a deadly weapon by a prohibited person. The
district court ordered Pope to serve his sentences consecutively
to each other and to a federal sentence, which he was cur-
rently serving.
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ASSIGNMENTS OF ERROR
Pope’s assignments of error, restated, are that the district
court erred in (1) providing incorrect jury instructions on the
felony murder and corresponding use counts and refusing to
give Pope’s tendered instruction, (2) providing incorrect jury
instructions on the aiding and abetting a crime count and refus-
ing to give Pope’s tendered instruction, (3) failing to grant
Pope’s motion to suppress DNA evidence, and (4) permitting
Marcella’s identification of Pope.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court. 1
[2] When reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 2
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 3
[3] A district court’s conclusion whether an identification
is consistent with due process is reviewed de novo, but the
court’s findings of historical fact are reviewed for clear error. 4
ANALYSIS
Jury Instructions.
In his first and second assignments of error, Pope argues
that the district court improperly instructed the jury on the
elements of felony murder and aiding and abetting a crime.
1
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
2
State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
3
Id.
4
State v. Cosey, 303 Neb. 257, 927 N.W.2d 822 (2019).
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Alternatively, Pope asserts that the district court erred in refus-
ing to give his tendered instructions.
[4,5] In reviewing a claim of prejudice from jury instruc-
tions given or refused, the appellant has the burden to show
that the allegedly improper instruction or the refusal to give
the requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 5 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal. 6
[6] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. 7
Felony Murder Instruction.
[7] On the count of first degree murder for the killing of
Neelon, the district court instructed on the alternate theories
of either felony murder or premeditated murder. And, as this
court has made clear, “the jury need only be unanimous as to
its verdict that defendant committed first degree murder, and
not as to the theory which brought it to that verdict.” 8
Pope makes two arguments with respect to the felony
murder jury instruction. First, Pope argues that the district
court erred by failing to instruct that for felony murder, the
jury must find that Neelon’s death was caused by the fire.
Second, Pope argues that the district court erred by refusing
to give his tendered instruction, which included these addi-
tional elements: (1) that the arson or attempted arson was the
5
State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).
6
State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
7
Id.
8
State v. Buckman, 237 Neb. 936, 940, 468 N.W.2d 589, 592 (1991).
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proximate cause of Neelon’s death and (2) that there was no
efficient intervening cause. Pope also sought to include the
following definitions:
“Proximate Cause”
The defendant’s aiding and abetting of another to kill
Deprecia Neelon during the course [of] committing or
attempting to commit arson, caused the death of Deprecia
Neelon, if her death occurred in a natural and continu-
ous sequence, and without the defendant’s acts Deprecia
Neelon’s death would not have occurred. Proximate cause
is a cause that produces a result in a natural and con-
tinuous sequence, and without which the result would not
have occurred.
“Efficient Intervening Cause”
An efficient intervening cause is a new and indepen-
dent act, itself a proximate cause of death, which breaks
the causal connection between the original illegal act and
the death.
The district court overruled Pope’s objections and declined
to give his tendered instruction. As to the material elements of
felony murder, the jurors were instructed as follows:
1. That the Defendant, Preston Pope, intended to com-
mit the crime of arson; and
2. That on or about August 6, 2015 the Defendant,
Preston Pope, was in the course of committing or attempt-
ing to commit that arson; and
3. That the Defendant, Preston Pope, did so in Douglas
County, Nebraska; and
4. That the Defendant, Preston Pope, either alone or
by aiding and abetting another, killed Deprecia Neelon
during the course of committing or attempting to commit
that arson; and
5. That the arson, or attempted arson, consisted of each
of the following elements:
. . . That the Defendant, Preston Pope, either alone or
by aiding and abetting another intentionally perpetrated
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an arson, to wit: A person intentionally damages a build-
ing or property contained within a building by starting a
fire or causing an explosion when another person is pres-
ent in the building at the time and either;
(a) the actor knows the fact; or
(b) the circumstances are such as to render the presence
of a person therein a reasonable probability.
At trial, Pope argued that the shooting itself was an efficient
intervening cause, which broke the causal chain of events
between the arson and Neelon’s death. On appeal, Pope claims
that because the jury was not required to find that Neelon’s
death was caused by the fire, he is entitled to a reversal of both
the felony murder conviction and the corresponding use of a
deadly weapon conviction. Pope asserts that the jury should
have been instructed that felony murder requires proof that
Neelon’s death came as a continuous sequence from the arson
and that the arson and the death were closely connected in time
and place. Alternatively, Pope argues that the district court
erred in failing to give his tendered instruction.
In State v. Harris, 9 this court held that a causation instruc-
tion was appropriate under the facts presented. The defendant
had been found guilty of first degree murder for the killing of
an 81-year-old woman during an attempted robbery. The vic-
tim had fallen to the ground and was kicked after she resisted
the attempt of the defendant and his accomplice to snatch her
purse. The victim suffered a broken hip either from the fall
or from being kicked by her assailants and was hospitalized.
Surgery was performed to treat the hip fracture, and although
the hip eventually healed, the patient died approximately 6
weeks after the attempted robbery.
At trial, the defendant in Harris presented evidence dem-
onstrating that the victim had suffered a myocardial infarction
and a systemic infection after the surgery and argued these
were independent intervening causes of her death. The jury
9
State v. Harris, 194 Neb. 74, 230 N.W.2d 203 (1975).
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was given a causation instruction along with the definitions of
“proximate cause” and “efficient intervening cause.” In that
case, we held that the defendant was entitled to an instruction
on causation because the evidence had raised a factual ques-
tion for the jury regarding whether the victim’s death had been
caused by the defendant or by independent intervening acts
or causes. 10
[8] However, in State v. Quintana, 11 we concluded that the
defendant, David Lee Quintana, was not entitled to a proxi-
mate cause instruction because there was no dispute as to the
victim’s cause of death. Quintana had been convicted of first
degree murder for aiding and abetting Jaime Rodriguez to
commit the crime of robbery, during which Rodriguez shot
and killed the victim. Quintana’s defense was that the robbery
was an afterthought and that the actual proximate cause of the
victim’s death was a derogatory comment made by the victim
to Rodriguez, which caused Rodriguez to become angered and
shoot the victim.
The jury instructions given at trial in Quintana required the
jury to find, as an element of the offense, that the victim was
killed during the course of Rodriguez’ robbery of, or attempt
to rob, the victim. The relevant part of the instruction stated:
“A death occurs while in the course of committing or
attempting to commit a robbery if the act that killed is
closely connected in time and place with the robbery or
attempted robbery so that the act that killed and the rob-
bery or attempted robbery may be considered one con-
tinuous event.
“If the intent to rob is formed prior to or contempora-
neously with the act that results in death, then the death
occurs in the course of the commission of the robbery or
attempted robbery.
10
Id.
11
State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001), modified on
denial of rehearing 261 Neb. 623, 633 N.W.2d 890.
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“If the taking of the property was an after thought then
the killing is not in the commission of a robbery or an
attempted robbery and you should find the defendant not
guilty of aiding and abetting first degree murder.” 12
On appeal, Quintana argued that the victim’s remark was
an efficient intervening cause, which severed the causal con-
nection between the plan to rob the victim and the shooting,
and that the trial court erred in refusing to give his proposed
instruction on proximate cause.
[9] Noting that there was no dispute as to why Rodriguez
shot the victim, we held that Quintana was not entitled to
his proffered instruction on proximate cause. We explained
that in the context of felony murder, an instruction on proxi-
mate cause is appropriate where the evidence presents a jury
question as to whether the death of the victim was proxi-
mately caused by an act of the defendant or the defendant’s
accomplice. 13
In Quintana, there was no dispute as to the cause of death;
the question for the jury was whether the shooting occurred
during the course of the robbery. We concluded that Rodriguez’
motivation for shooting the victim did not affect the fact that
the victim’s death was caused by the shooting. And the ques-
tion of whether an alternative motive for the shooting existed
was related to whether the shooting took place in the course of
the robbery. 14 We therefore held that an instruction on proxi-
mate cause was not required. 15
In the present case, we find that the jury was properly
instructed. Pope was not entitled to an instruction on causa-
tion because there was no dispute as to the proximate cause
of Neelon’s death; she died from her gunshot wounds. Nor
was there a dispute as to whether the shooting was closely
12
Id. at 59, 621 N.W.2d at 138 (emphasis omitted).
13
State v. Quintana, supra note 11. See, also, State v. Harris, supra note 9.
14
Id.
15
Id.
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connected in time and place with the arson. 16 Someone lit
Neelon’s house on fire, and when Neelon went outside to
investigate, she was met with gunfire.
The question for the jury was whether Pope was respon-
sible for the killing of Neelon, either by shooting her himself,
by committing the underlying felony of arson, or by aiding
and abetting the shooter and/or the individual committing the
arson. The jury instructions required the jury to find, as an ele-
ment of the offense, that “Pope, either alone or by aiding and
abetting another, killed . . . Neelon during the course of com-
mitting or attempting to commit that arson.” The jury was then
instructed as to the elements of the crime of arson.
[10] Pope’s tendered instruction is a correct statement of
law. 17 However, in this case, the instruction was not warranted
by the evidence. 18 A trial court is not obligated to instruct the
jury on matters which are not supported by evidence in the
record. 19 We find that the instruction given regarding felony
murder was a correct statement of the law and that Pope has
not met his burden of establishing reversible error.
Aiding and Abetting Instruction.
In regard to aiding and abetting, the jury was given the fol-
lowing instruction from NJI2d Crim. 3.8:
A person who aids, abets, procures or causes another to
commit any offense may be prosecuted as if he were the
principal offender.
The Defendant can be guilty of a crime even though
he personally did not commit every act involved in the
crime so long as he aided someone else to commit it. The
Defendant aided someone else if:
16
See State v. Perkins, 219 Neb. 491, 364 N.W.2d 20 (1985).
17
See State v. Quintana, supra note 11.
18
See id.
19
Id.
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1. The Defendant intentionally encouraged or inten-
tionally helped another person to commit the crime; and
2. The Defendant intended that the crime be commit-
ted; or the Defendant knew that the other person intended
to commit the crime; or the Defendant expected the other
person to commit the crime; and
3. The crime, in fact, was committed by that other
person.
The Defendant can be guilty of felony murder if he is
guilty of arson or attempted arson as an aider and a death
resulted during the course of committing the arson.
Pope objected to the inclusion of the instruction and to the
instruction’s definition of “aider.” Pope tendered an instruction
with the additional language:
Aiding and abetting requires some participation in the
criminal act which must be evidenced by word, act, deed,
and mere encouragement or assistance is sufficient to
make one an aider or abettor.
Evidence of mere presence, acquiescence, or silence is
not enough to sustain the State’s burden of proving guilt
under an aiding and abetting theory.
The district court overruled the objections and declined to
use Pope’s proposed instructions. However, the district court
included the second sentence proposed by Pope within its defi-
nition of “aider.”
Addressing the district court’s refusal to give Pope’s ten-
dered instruction on aiding and abetting, we recognize that
Pope’s proposed language, taken from this court’s opinion in
State v. Stubbendieck, 20 is a correct statement of the law and
was warranted by the evidence. However, we find that Pope
failed to establish that he was prejudiced by the district court’s
refusal to give the tendered instruction.
The State argues that the language set forth in the instructions
is functionally equivalent to Pope’s first proposed sentence. We
20
State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).
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agree. Two of the instructions stated that an “aider” must have
“intentionally encouraged or intentionally helped another per-
son to commit the crime.” Further, the district court’s instruc-
tion on the definition of “aider” included the second sentence
proposed by Pope. The instruction stated: “Evidence of mere
presence, acquiescence, or silence is not enough to sustain
the State’s burden of proving guilt under an aiding and abet-
ting theory.”
We conclude that Pope was not prejudiced by the district
court’s refusal to give his tendered instruction on aiding and
abetting. Jury instructions must be read as a whole, and if they
fairly present the law so that the jury could not be misled,
there is not prejudicial error. 21 Here, the district court adhered
to the Nebraska Jury Instructions, 22 and the instructions fairly
presented the law and covered the issues presented. We con-
clude that Pope has not established prejudicial error.
Evidence of Pope’s DNA.
In his third assignment of error, Pope argues that the district
court erred in admitting evidence of his DNA. Pope asserts that
the district court correctly found the affidavit used to obtain
the warrant to collect his DNA was insufficient to support
probable cause and that the district court erred in concluding
that the good faith exception applied.
The State submits that Pope waived any objection to the
admission of the evidence by failing to properly object at trial.
We agree.
Neb. Rev. Stat. § 25-1141 (Reissue 2016) provides:
Where an objection has once been made to the admis-
sion of testimony and overruled by the court it shall be
unnecessary to repeat the same objection to further testi-
mony of the same nature by the same witness in order to
save the error, if any, in the ruling of the court whereby
such testimony was received.
21
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
22
See NJI2d Crim. 3.8.
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[11] During the testimony of the detective who had collected
Pope’s DNA, Pope was granted a continuing objection “regard-
ing any DNA collection of . . . Pope.” However, Pope failed to
object to testimony by the State’s DNA expert regarding the
DNA results, which connected Pope to items of clothing seized
from Short’s home. Section 25-1141 does not apply to testi-
mony given by a different witness when no objection is made
to that witness’ testimony. 23
In order to properly preserve this alleged error on appeal, it
was necessary for Pope to object to the admission of testimony
by the State’s DNA expert regarding the DNA results. Even
assuming the district court erred in concluding that the good
faith exception applied, Pope waived his right to assert this
alleged error on appeal because he failed to properly object to
the DNA results introduced at trial.
Marcella’s Identification of Pope.
In his fourth assignment of error, Pope argues that the dis-
trict court erred in denying his pretrial motion to suppress
Marcella’s identification of him as the August 5, 2015, shooter.
Pope asserts that the photographic lineup was unduly sugges-
tive because the photograph depicting Pope in the lineup was
the same photograph that Marcella had seen on television dur-
ing a news report about the case. Pope further asserts that the
district court erred in its determination regarding the reliability
of Marcella’s identification.
[12-14] In State v. Nolan, 24 we articulated that “‘the Due
Process Clause does not require a preliminary judicial inquiry
into the reliability of an eyewitness identification when the
identification was not procured under unnecessarily suggestive
circumstances arranged by law enforcement.’” We explained
23
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved on
other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
24
State v. Nolan, 283 Neb. 50, 63, 807 N.W.2d 520, 535 (2012) (quoting
Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 181 L. Ed. 2d 694
(2012)).
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that the suppression of identification evidence on the basis of
undue suggestion is appropriate only where the witness’ abil-
ity to make an accurate identification is outweighed by the
corrupting effect of improper police conduct. 25 Finally, we
determined that when no improper law enforcement activity
is involved, it suffices to test the reliability of identification
testimony at trial, through the rights and opportunities gener
ally designed for that purpose, such as the rights to counsel,
compulsory process, and confrontation and cross-examination
of witnesses. 26
In this case, Marcella had seen a photograph of Pope during
a television news story about Johnson’s murder. However, there
was no evidence of improper law enforcement activity so as to
render the lineup unduly suggestive. The parties stipulated that
the detective who presented the photographs to Marcella was
unaware of which photograph depicted Pope. And no evidence
was presented to show that law enforcement was aware that the
photograph had been used in the news story or that Marcella
had seen the news story.
Pope argues that the brief length of time during which
Marcella had to observe the shooter, Marcella’s degree of
attention at the time, her prior description of the shooter, her
level of certainty, and the fact that 14 months had elapsed
between the shooting and the photographic lineup are all fac-
tors weighing against the reliability of her identification of
Pope as the shooter. However, absent evidence of affirmative
police conduct tainting the identification procedure, a prelimi-
nary judicial inquiry into the reliability of the witness’ identifi-
cation is not required. 27 As discussed above, Pope presented no
such evidence. Therefore, it was the jury’s duty to assess the
identification’s reliability. 28
25
State v. Nolan, supra note 24.
26
Id.
27
See State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
28
State v. Nolan, supra note 24.
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[15] The jury heard Marcella’s testimony and her cross-
examination by Pope’s counsel regarding each of the factors
Pope uses to challenge the identification’s reliability, includ-
ing inconsistent statements Marcella made regarding her level
of certainty and a discrepancy between Marcella’s estimation
of the shooter’s height and Pope’s actual height. It was the
duty of the jury to assess Marcella’s credibility and deter-
mine whether she had a sufficient opportunity to see Pope on
August 5, 2015, and make a reliable identification of him as
the shooter. 29 We do not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence pre-
sented; such matters are for the finder of fact. 30 We find that
the district court did not err in permitting Marcella to identify
Pope at trial.
CONCLUSION
For the reasons outlined above, we conclude that Pope’s
assignments of error either are without merit or were not
adequately preserved for appellate review. Pope’s convictions
are affirmed.
Affirmed.
29
See State v. Dixon, supra note 27.
30
Id. | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1975541/ | 298 U.S. 513 (1936)
ASHTON ET AL.
v.
CAMERON COUNTY WATER IMPROVEMENT DISTRICT NO. ONE.
No. 859.
Supreme Court of United States.
Argued April 29, 1936.
Decided May 25, 1936.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*514 Mr. Palmer Hutcheson, with whom Messrs. J.W. Terry and W.P. Hamblen were on the brief, for petitioners.
Messrs. David M. Wood and W.B. Lewis for respondent.
*523 MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Respondent, a water improvement district embracing 43,000 acres in Cameron County, Texas, was organized in 1914 under the laws of that State. Claiming to be insolvent and unable to meet its debts as they matured, it presented to the United States District Court, December 5, 1934, an Amended Petition with plan for adjusting its obligations $800,000 six percent bonds. This proposed final settlement of these obligations through payment of 49.8 cents on the dollar out of funds to be borrowed from the Reconstruction Finance Corporation at four percent.
The petition follows and seeks relief under the Act of Congress approved May 24, 1934, c. 345, §§ 78, 79 and 80, 48 Stat. 798; Title 11 U.S.C., §§ 301, 302 and 303.[*] It alleges that more than thirty percent of the bondholders had accepted the plan and ultimately more than two-thirds would do so. The prayer asks confirmation of the proposal and that non-assenting bondholders be required to accept it.
Owners of more than five percent of outstanding bonds appeared, said there was no jurisdiction, denied the existence *524 of insolvency, and asked that the petition be held insufficient.
The trial court dismissed the petition for lack of jurisdiction. It held
The petitioner is a mere agency or instrumentality of the State, created for local exercise of her sovereign power reclamation of arid land through irrigation. It owns no private property and carries on public business only. The bonds are contracts of the State, executed through this agency, and secured by taxes levied upon local property. Congress lacks power to authorize a federal court to readjust obligations, as provided by the Act. Also, the allegations of fact are insufficient.
The Circuit Court of Appeals took the cause, considered the points presented, and held that the allegations were adequate to show jurisdiction and to warrant introduction of evidence. Also that Congress had exercised the power "To establish . . . uniform Laws on the subject of Bankruptcies," granted by § 8, cl. 4, Art. 1 of the Constitution. Accordingly, it reversed the trial court and remanded the cause.
The Act of May 24, 1934 amended the Bankruptcy Act of July 1, 1898, c. 541, 30 Stat. 544, by adding Chapter IX (three sections, 78, 79, 80), captioned "Provisions for the Emergency Temporary Aid of Insolvent Public Debtors and to Preserve the Assets thereof and for other Related Purposes."
Section 78 asserts an emergency rendering imperative further exercise of the bankruptcy powers. Section 79 directs that "in addition to the jurisdiction exercised in voluntary and involuntary proceedings to adjudge persons bankrupt, courts of bankruptcy shall exercise original jurisdiction in proceedings for the relief of debtors, as provided in this chapter."
Section 80 long and not free from ambiguities in twelve paragraphs (a to 1) prescribes the mode and conditions *525 under which, when unable to pay its debts as they mature, "any municipality or other political subdivision of any State, including . . . any county, city, borough, village, parish, town, or township, unincorporated tax or special assessment district, and any school, drainage, irrigation, reclamation, levee, sewer, or paving, sanitary, port, improvement or other districts" may effect a readjustment. A brief outline of the salient provisions, with some quotations, will suffice for present purposes.
The petition for relief must be filed in the District Court and submit plan for readjustment approved by creditors holding thirty percent of the obligations to be affected; also complete list of creditors. If satisfied that the petition is in good faith and follows the statute, the judge shall enter an approving order; otherwise, it must be dismissed. Creditors holding five percent of the indebtedness may appear in opposition.
"A plan of readjustment within the meaning of this chapter (1) shall include provisions modifying or altering the rights of creditors generally, or of any class of them, secured or unsecured, either through the issuance of new securities of any character or otherwise; and (2) may contain such other provisions and agreements, not inconsistent with this chapter, as the parties may desire."
Upon approval of the petition, creditors must be notified; if the plan is not seasonably accepted, extension may be granted, etc.
Hearings must be accorded. The judge, with its approval, "may direct the rejection of contracts of the taxing district executory in whole or in part." He may require the district to open its books; allow reasonable compensation; stay suits; enter an interlocutory decree declaring the plan temporarily operative, etc. "But [he] shall not, by any order or decree, in the proceeding or otherwise, interfere with any of the political or governmental *526 powers of the taxing district, or any of the property or revenues of the taxing district necessary in the opinion of the judge for essential governmental purposes, or any income-producing property, unless the plan of readjustment so provides."
After hearing, the judge shall confirm the plan, if satisfied that it is fair, equitable, for the best interests of the creditors, does not unduly discriminate, complies with the statute, and has been accepted by those holding, two-thirds of the indebtedness. Also, that expenses incident to the readjustment have been provided for, that both plan and acceptance are in good faith and the district is authorized by law to take all necessary action.
The provisions of the plan, after order of confirmation, shall be binding upon the district and all creditors, secured or unsecured. Final decree shall discharge the district from all debts and liabilities dealt with by the plan, except as otherwise provided.
"(k) Nothing contained in this chapter shall be construed to limit or impair the power of any State to control, by legislation or otherwise, any political subdivision thereof in the exercise of its political or governmental powers, including expenditures therefor, and including the power to require the approval by any governmental agency of the State of the filing of any petition hereunder and of any plan of readjustment, and whenever there shall exist or shall hereafter be created under the law of any State any agency of such State authorized to exercise supervision or control over the fiscal affairs of all or any political subdivisions thereof, and whenever such agency has assumed such supervision or control over any political subdivision, then no petition of such political subdivision may be received hereunder unless accompanied by the written approval of such agency, and no plan of readjustment shall be put into temporary effect or finally confirmed without the written approval of such agency of such plans."
*527 We need not consider this Act in detail or undertake definitely to classify it. The evident intent was to authorize a federal court to require objecting creditors to accept an offer by a public corporation to compromise, scale down, or repudiate its indebtedness without the surrender of any property whatsoever. The Act has been assailed upon the ground that it is not in any proper sense a law on the subject of bankruptcies and therefore is beyond the power of Congress; also because it conflicts with the Fifth Amendment. Passing these, and other objections, we assume for this discussion that the enactment is adequately related to the general "subject of bankruptcies." See Hanover National Bank v. Moyses, 186 U.S. 181; Continental Illinois N.B. & T. Co. v. C., R.I. & P. Ry. Co., 294 U.S. 648; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555.
The respondent was organized in 1914 as Cameron County Irrigation District No. One, to furnish water for irrigation and domestic uses; in 1919, it became the Cameron County Water Improvement District No. One, all as authorized by statutes passed under § 52, Art. 3, Constitution of Texas, which permits creation of political divisions of the State, with power to sue and be sued, issue bonds, levy and collect taxes. An amendment to the Constitution § 59a, Art. 16 (October 2, 1917) declares the conservation and development of all the natural resources of the State, including reclamation of lands and their preservation, are "public rights and duties." Most of the bonds now in question were issued during 1914; the remainder in 1919.
By Act approved April 27, 1935, the Texas Legislature declared that municipalities, political subdivisions, taxing districts, &c., might proceed under the Act of Congress approved May 24, 1934.
It is plain enough that respondent is a political subdivision of the State, created for the local exercise of *528 her sovereign powers, and that the right to borrow money is essential to its operations. Houck v. Little River Drainage District, 239 U.S. 254, 261-262; Perry v. United States, 294 U.S. 330. Its fiscal affairs are those of the State, not subject to control or interference by the National Government, unless the right so to do is definitely accorded by the Federal Constitution.
The pertinent doctrine, now firmly established, was stated through Mr. Chief Justice Chase in Texas v. White, 7 Wall. 700, 725.
"We have already had occasion to remark at this term, that `the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that `without the States in union, there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."
Collector v. Day, 11 Wall. 113, 125, 126
"Such being the separate and independent condition of the States in our complex system, as recognized by the Constitution, and the existence of which is so indispensable, that, without them, the general government itself would disappear from the family of nations, it would seem to follow, as a reasonable, if not a necessary consequence, that the means and instrumentalities employed for carrying on the operations of their governments, for preserving their existence, and fulfilling the high and responsible duties assigned to them in the Constitution, *529 should be left free and unimpaired; should not be liable to be crippled, much less defeated by the taxing power of another government, which power acknowledges no limits but the will of the legislative body imposing the tax. And, more especially, those means and instrumentalities which are the creation of their sovereign and reserved rights, one of which is the establishment of the judicial department, and the appointment of officers to administer their laws. Without this power, and the exercise of it, we risk nothing in saying that no one of the States under the form of government guaranteed by the Constitution could long preserve its existence."
In Indian Motocycle Co. v. United States, 283 U.S. 570, 575, et seq., relevant cases are collected and the following conclusion announced
"This principle is implied from the independence of the national and state governments within their respective spheres and from the provisions of the Constitution which look to the maintenance of the dual system."
Notwithstanding the broad grant of power "to lay and collect taxes," opinions here plainly show that Congress could not levy any tax on the bonds issued by the respondent or upon income derived therefrom. So to do would be an unwarranted interference with fiscal matters of the State essentials to her existence. Many opinions explain and support this view. In United States v. Railroad Co., 17 Wall. 322, 329, this court said
"A municipal corporation like the city of Baltimore is a representative not only of the State, but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. The State may withdraw these local powers of government at pleasure and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence. As *530 a portion of the State in the exercise of a limited portion of the powers of the State, its revenues, like those of the State, are not subject to taxation." See also Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 586; 158 U.S. 601, 630.
The power "To establish . . . uniform Laws on the subject of Bankruptcies" can have no higher rank or importance in our scheme of government than the power "to lay and collect taxes." Both are granted by the same section of the Constitution, and we find no reason for saying that one is impliedly limited by the necessity of preserving independence of the States, while the other is not. Accordingly, as application of the statutory provisions now before us might materially restrict respondent's control over its fiscal affairs, the trial court rightly declared them invalid.
If federal bankruptcy laws can be extended to respondent, why not to the State? If voluntary proceedings may be permitted, so may involuntary ones, subject of course to any inhibition of the Eleventh Amendment. In re Quarles, 158 U.S. 532, 535. If the State were proceeding under a statute like the present one, with terms broad enough to include her, apparently the problem would not be materially different. Our special concern is with the existence of the power claimed not merely the immediate outcome of what has already been attempted. And it is of the first importance that due attention be given to the results which might be brought about by the exercise of such a power in the future.
The especial purpose of all bankruptcy legislation is to interfere with the relations between the parties concerned to change, modify or impair the obligation of their contracts. The statute before us expresses this design in plain terms. It undertakes to extend the supposed power of the Federal Government incident to bankruptcy over any embarrassed district which may apply *531 to the court. See Perry v. United States, 294 U.S. 330, 353.
If obligations of States or their political subdivisions may be subjected to the interference here attempted, they are no longer free to manage their own affairs; the will of Congress prevails over them; although inhibited, the right to tax might be less sinister. And really the sovereignty of the State, so often declared necessary to the federal system, does not exist. McCulloch v. Maryland, 4 Wheat. 316, 430. Farmers & Mechanics Bank v. Minnesota, 232 U.S. 516, 526.
The Constitution was careful to provide that "No State shall pass any Law impairing the Obligation of Contracts." This she may not do under the form of a bankruptcy act or otherwise. Sturges v. Crowninshield, 4 Wheat. 122, 191. Nor do we think she can accomplish the same end by granting any permission necessary to enable Congress so to do.
Neither consent nor submission by the States can enlarge the powers of Congress; none can exist except those which are granted. United States v. Butler, decided January 6, 1936, 297 U.S. 1. The sovereignty of the State essential to its proper functioning under the Federal Constitution cannot be surrendered; it cannot be taken away by any form of legislation. See United States v. Constantine, 296 U.S. 287.
Like any sovereignty, a State may voluntarily consent to be sued; may permit actions against her political subdivisions to enforce their obligations. Such proceedings against these subdivisions have often been entertained in federal courts. But nothing in this tends to support the view that the Federal Government, acting under the bankruptcy clause, may impose its will and impair state powers pass laws inconsistent with the idea of sovereignty.
The power to regulate commerce is necessarily exclusive in certain fields and, to be successful, must prevail *532 over obstructive regulations by the State. But, as pointed out in Houston, E. & W.T. Ry. v. United States, 234 U.S. 342, 353, "This is not to say that Congress possesses the authority to regulate the internal commerce of a state, as such, but that it does possess the power to foster and protect interstate commerce." No similar situation is before us.
The difficulties arising out of our dual from of government, and the opportunities for differing opinions concerning the relative rights of State and National Governments are many; but for a very long time this court has steadfastly adhered to the doctrine that the taxing power of Congress does not extend to the States or their political subdivisions. The same basic reasoning which leads to that conclusion, we think, requires like limitation upon the power which springs from the bankruptcy clause. United States v. Butler, supra.
The challenge to the validity of the statute must be sustained. The judgment of the Circuit Court of Appeals is reversed. The cause will be returned to the District Court for further action, consistent with this opinion.
Reversed.
MR. JUSTICE CARDOZO, dissenting.
The question is a narrow one: Is there power in the Congress under the Constitution of the United States to permit local governmental units generally, and irrigation or water improvement districts in particular, to become voluntary bankrupts with the consent of their respective states?
Cameron County Water Improvement District Number One is a public corporation created by the laws of Texas. It has issued bonds for the construction of a canal system, which bonds are outstanding in the amount of $802,000. Default has been suffered to the extent of $147,000, either *533 for principal or for interest, upon its obligations now matured. But its own indebtedness is only a part of the financial burden that oppresses it. The bonded debt of other municipalities is a superior lien upon the property in the District for $10,386,000, and accumulated interest. The population is mainly agricultural. The farmers have been unable by reason of the great depression to make a living from their farms, and unable to pay their taxes in appreciable amounts. The District has made diligent effort to enforce collections, but without success. When it has attempted to foreclose its liens, it has been compelled for lack of bidders to buy the lands in and pay the court costs. After buying the lands in, it has been unable to get rid of them, for they have been subject to other tax liens prior to its own. The defaults are steadily mounting. For the year 1932, they were 63%; for the year 1933, 88.9%. The average market value of lands in the District does not exceed $75 per acre; and the total bonded debt per acre, principal and interest, is approximately $100. In these circumstances little good can come of levying more taxes to pyramid the existing structure. The remedies of bondholders are nominal, not real.
What is true of Cameron County Water Improvement District Number One is true in essentials of thousands of other public corporations in widely scattered areas. The hearings by committees of the Congress before the passage of the statute exhibit in vivid fashion the breadth and depth of the mischief which the statute was designed to remedy.[1] In January, 1934, 2019 municipalities, counties and other governmental units were known to be in default.[2] On the list, which was incomplete, were large *534 cities as well as tiny districts. Many regions were included: 41 out of 48 states. Students of government have estimated that on January 1, 1933, out of securities to the extent of $14,000,000,000 issued by units smaller than the states, a billion were in default.[3] The plight of the debtors was bad enough; that of the creditors was even worse. It is possible that in some instances the bonds did not charge the municipalities or other units with personal liability. Even when they did, however, execution could not issue against the property of the debtor held for public uses,[4] and few of the debtors were the owners of anything else. In such circumstances the only remedy was a mandamus whereby the debtor was commanded to tax and tax again. Rees v. Watertown, 19 Wall. 107; Meriwether v. Garrett, 102 U.S. 472, 501.[5] The command was mere futility when tax values were exhausted. Often the holders of the bonds to the extent of ninety per cent or more were ready to scale down the obligations and put the debtor on its feet. A recalcitrant minority had capacity to block the plan. Nor was there hope for relief from statutes to be enacted by the states. The Constitution prohibits the states from passing any law that will impair the obligation of existing contracts, and a state insolvency act is of no avail as to obligations of the debtor incurred before its passage. Sturges v. Crowninshield, 4 Wheat. 122. Relief must come from Congress if it is to come from any one.
The next step in the inquiry has to do with the power of the Congress to eradicate the mischief. Is the Act in question, adopted May 24, 1934, to continue for two years (§§ 78, 79 and 80 of the Bankruptcy Act of 1898, as amended by 48 Stat. 798; 11 U.S.C. §§ 301, 302, 303), *535 and now extended to January 1, 1940 (April 10, 1936, c. 186, 49 Stat. 1198), a law "on the subject of Bankruptcies" within Article I, Section VIII, Clause 4 of the Constitution of the United States? Recent opinions of this court have traced the origin and growth of the bankruptcy power. Continental Illinois National Bank v. Chicago, R.I. & P. Ry. Co., 294 U.S. 648, 668; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 588. The history is one of an expanding concept. It is, however, an expanding concept that has had to fight its way. Hanover National Bank v. Moyses, 186 U.S. 181, 184; Charles Warren, Bankruptcy in United States History (1935), p. 9. Almost every change has been hotly denounced in its beginnings as a usurpation of power. Only time or judicial decision has had capacity to silence opposition. At the adoption of the Constitution the English and Colonial bankruptcy laws were limited to traders and to involuntary proceedings. An Act of Congress passed in 1800 added bankers, brokers, factors and underwriters. Doubt was expressed as to the validity of the extension (Adams v. Storey, 1 Paine 79, 82), which established itself, however, with the passing of the years. Hanover National Bank v. Moyses, supra. Other classes were brought in later, through the bankruptcy Act of 1841 and its successors, "until now practically all classes of persons and corporations are included." Continental Illinois National Bank v. Chicago, R.I. & P. Ry. Co., supra, at p. 670. For nearly a century, voluntary proceedings have been permitted at the instance of the debtor as well as involuntary proceedings on the petition of creditors. The amendment, however, was resisted. The debates in Congress bear witness to the intensity of the feeling aroused by its proposal. Warren, op. cit. supra, at p. 72 et seq. For more than sixty years, the debtor has been able to compel a minority of his creditors to accept a composition if the terms have been approved by a designated majority as well as by the judge. *536 This change like the others had to meet a storm of criticism in Congress and the courts. Warren, op. cit. supra, at pp. 44, 45, 118-120; In re Klein, reported in a note to Nelson v. Carland, 1 How. 265, 277; Louisville Joint Stock Land Bank v. Radford, supra. Since the enactment of § 77 in March, 1933 (47 Stat. 1474; 11 U.S.C. § 205), a court of bankruptcy has been empowered to reorganize railroad corporations unable to pay their debts as they mature (Continental Illinois National Bank v. Chicago, R.I. & P. Ry. Co., supra), and since the enactment of § 77 B in June, 1934 (48 Stat. 912; 11 U.S.C. § 207), a like jurisdiction has existed in respect of business corporations generally. The Act for the relief of local governmental units is a stage in an evolutionary process which is likely to be misconceived unless regarded as a whole.[6]
Throughout that evolutionary process, the court has hewn a straight path.[7] Disclaiming a willingness to bind *537 itself by a cramping definition, it has been able none the less to indicate with clearness the main lines of its approach. In substance, it agrees with Cowen, J., who wrote: "I read the constitution thus: `Congress shall have power to establish uniform laws on the subject of any person's general inability to pay his debts throughout the United States'" (Kunzler v. Kohaus, 5 Hill 317, 321), and with Blatchford, J., writing in the Matter of Reiman, Fed. Cas. No. 11,673, p. 496, that the subject of bankruptcy cannot properly be defined as "anything less than the subject of the relations between an insolvent or nonpaying . . . debtor, and his creditors, extending to his and their relief." See Hanover National Bank v. Moyses supra; Continental Illinois National Bank v. Chicago, R.I. & P. Ry. Co., supra; Louisville Joint Stock Land Bank v. Radford, supra. Such was Story's view also. "A law on the subject of bankruptcies in the sense of the Constitution is a law making provision for persons failing to pay their debts." Story, Commentaries on the Constitution, § 1113, n. 3; cf. Warren, op. cit. supra, at p. 68. It is not necessary that the debtor have any property to surrender. One may resort to a court of bankruptcy though one has used up all one's property or though what is left is exempt. Vulcan Sheet Metal Co. v. North Platte Valley Irrigation Co., 220 Fed. 106, 108; In re Hirsch, 97 Fed. 571, 573; In re J.M. Ceballos & Co., 161 Fed. 445, 450. It is enough that in an omnibus proceeding between a nonpaying debtor on the one side and the creditors on the other, the debtor-creditor relation is to be readjusted or extinguished. Cf. Warren, op. cit. supra, at pp. 8, 144.
Cameron Water Improvement District Number One has no assets to surrender. If it shall turn out hereafter that there are any not exempt, the creditors may have them. Cameron Water Improvement District Number One is a debtor in an amount beyond its capacity for *538 payment, and has creditors, the holders of its bonds, who are persuaded that a reduction of the debt will redound to their advantage. Thirty per cent of the creditors had signified their approval of a proposed plan of composition before the filing of the petition, and 66 2/3 per cent must give approval before the judge can act.[8] Even then the plan will count for nothing unless the judge upon inquiry shall hold it fair and good. A situation such as this would call very clearly for the exercise by a court of bankruptcy of its distinctive jurisdiction if the debtor were a natural person or a private corporation. Is there anything in the position of a governmental unit that exacts a different conclusion?
The question is not here whether the statute would be valid if it made provision for involuntary bankruptcy, dispensing with the consent of the state and with that of the bankrupt subdivision. For present purposes one may assume that there would be in such conditions a dislocation of that balance between the powers of the states and the powers of the central government which is essential to our federal system. Cf. Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U.S. 315; United States v. California, 297 U.S. 175. To read into the bankruptcy clause an exception or proviso to the effect that there shall be no disturbance of the federal framework by any bankruptcy proceeding is to do no more than has been done already with reference to the power of taxation by decisions known of all men. McCulloch v. Maryland, 4 Wheat. 316. The statute now in question does not dislocate the balance. It has been framed with sedulous regard to the structure of the federal system. The governmental units of the state may not act under this statute except through the medium of a voluntary *539 petition which will evince their own consent, their own submission to the judicial power. Even that, however, is not enough. By subdivision (k), which is quoted in the margin,[9] the petition must be accompanied by the written approval of the state, whenever such consent is necessary by virtue of the local law. There is still another safeguard. By subdivision (e) (6), the composition, though approved by the requisite majority, shall not be confirmed by the judge unless he is satisfied that "the taxing district is authorized by law, upon confirmation of the plan, to take all action necessary to carry out the plan." To cap the protective structure, Texas has a statute whereby all municipalities, political subdivisions and taxing districts in the state are empowered to proceed under the challenged Act of Congress, and to do anything appropriate to take advantage of its provisions. This statute became a law on April 27, 1935 (Texas, Laws 1935, c. 107), after the dismissal of the proceeding in the District Court, but before the reversal of that decision by the Court of Appeals. Being law at that time it was to be considered and applied. United States v. The Peggy, 1 Cranch 103, 110; Danforth v. Groton Water *540 Co., 178 Mass. 472, 475, 476; 59 N.E. 1033; Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271, 281; 144 N.E. 579. There are like statutes in other states. Arizona, Laws 1935, c. 17; California, Laws (Extra Session) 1934, c. 4; Florida, Laws 1933, c. 15878; Ohio, Laws (2nd Special Session) 1934, No. 77. In Texas, at all events, it is clear to the point of demonstration, that the filing of a voluntary petition by a political subdivision does not violate the local law or any local public policy. Petitioners are not the champions of any rights except their own. Premier-Pabst Sales Co. v. Grosscup, ante, p. 226; Hatch v. Reardon, 204 U.S. 152, 160, 161.
To overcome an Act of Congress invalidity must be proved beyond a reasonable doubt. Ogden v. Saunders, 12 Wheat. 213, 270; Sinking-Fund Cases, 99 U.S. 700, 718. Sufficient reasons do not appear for excluding political subdivisions from the bankruptcy jurisdiction if the jurisdiction is so exerted as to maintain the equilibrium between state and national power. Persuasive analogies tell us that consent will preserve a balance threatened with derangement. A state may not tax the instrumentalities of the central government. It may do so, however, if the central government consents. Baltimore National Bank v. State Tax Commission, 297 U.S. 209. Reciprocally, the central government, consent being given, may lay a tax upon the states. Cf. United States v. California, supra. So also, interference by a state with interstate or foreign commerce may be lawful or unlawful as consent is granted or withheld. In re Rahrer, 140 U.S. 545; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311; Whitfield v. Ohio, 297 U.S. 431. The prevailing opinion tells us in summing up its conclusions that the bankruptcy power and the taxing power are subject to like limitations when the interests of a state are affected by their action. Let that test be applied, and the Act must be upheld, for jurisdiction is withdrawn if the state does not approve.
*541 Reasons of practical convenience conspire to the same conclusion. If voluntary bankruptcies are anathema for governmental units, municipalities and creditors have been caught in a vise from which it is impossible to let them out. Experience makes it certain that generally there will be at least a small minority of creditors who will resist a composition, however fair and reasonable, if the law does not subject them to a pressure to obey the general will. This, is the impasse from which the statute gives relief. "The controlling purpose of the bill is to provide a forum where distressed cities, counties and minor political subdivisions, designated in the bill as `taxing districts,' of their own volition, free from all coercion, may meet with their creditors under the necessary judicial control and assistance in an effort to effect an adjustment of their financial matters upon a plan deemed mutually advantageous. If a plan is agreed upon by the taxing district and its creditors holding two-thirds [in some instances three-fourths] in amount of the claims of each class of indebtedness, and if the court is satisfied that the plan is workable and equitable, it may confirm the plan, and the minority creditors are bound thereby." Report No. 207, House Judiciary Committee, June 7, 1933. To hold that this purpose must be thwarted by the courts because of a supposed affront to the dignity of a state, though the state disclaims the affront and is doing all it can to keep the law alive, is to make dignity a doubtful blessing. Not by arguments so divorced from the realities of life has the bankruptcy power been brought to the present state of its development during the century and a half of our national existence.
The Act does not authorize the states to impair through their own laws the obligation of existing contracts. Any interference by the states is remote and indirect. Cf. In re Imperial Irrigation District, 10 F. Supp. 832, 841. At most what they do is to waive a personal privilege that *542 they would be at liberty to claim. Cf. Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284. If contracts are impaired, the tie is cut or loosened through the action of the court of bankruptcy approving a plan of composition under the authority of federal law. There, and not beyond in an ascending train of antecedents, is the cause of the impairment to which the law will have regard. Cf. Howard Fire Insurance Co. v. Norwich & New York Transportation Co., 12 Wall. 194, 199; Southern Pacific Co. v. Darnell-Taenzer Co., 245 U.S. 531, 533. Impairment by the central government through laws concerning bankruptcies is not forbidden by the Constitution. Impairment is not forbidden unless effected by the states themselves. No change in obligation results from the filing of a petition by one seeking a discharge, whether a public or a private corporation invokes the jurisdiction. The court, not the petitioner, is the efficient cause of the release.
The Act is not lacking in uniformity because applicable only to such public corporations as have the requisites capacity under the law of the place of their creation. Hanover National Bank v. Moyses, supra, at p. 190. Stellwagen v. Clum, 245 U.S. 605, 613. Capacity existing, the rule is uniform for all. Ibid.
No question is before us now, and no opinion is intimated, as to the power of Congress to enlarge the privilege of bankruptcy by extending it to the states as well as to the local units. Even if the power exists, there has been no attempt to exercise it. There is room at least for argument that within the meaning of the Constitution the bankruptcy concept does not embrace the states themselves. In the public law of the United States a state is a sovereign or at least a quasi-sovereign. Not so, a local governmental unit, though the state may have invested it with governmental power. Such a governmental unit may be brought into court against its will *543 without violating the Eleventh Amendment. Lincoln County v. Luning, 133 U.S. 529; Hopkins v. Clemson College, 221 U.S. 636, 645. It may be subjected to mandamus or to equitable remedies. See, e.g., Norris v. Montezuma Valley Irrigation District, 248 Fed. 369, 372; Tyler County v. Town, 23 F. (2d) 371, 373. "Neither public corporations nor political subdivisions are clothed with that immunity from suit which belongs to the State alone by virtue of its sovereignty." Hopkins v. Clemson College, supra.
No question as to the merits of any plan of composition is before us at this time. Abrams v. Van Schaick, 293 U.S. 188. Attention, however, may be directed to the fact that by the terms of the statute, subdivision c (11), the judge "shall not, by any order or decree, in the proceeding or otherwise, interfere with (a) any of the political or governmental powers of the taxing district, or (b) any of the property or revenues of the taxing district necessary in the opinion of the judge for essential governmental purposes, or (c) any income-producing property, unless the plan of readjustment so provides," and that "the taxing district shall be heard on all questions." These restrictions upon remedies do not take from the statute its quality as one affecting the "subject of Bankruptcies," which, as already pointed out, includes a readjustment of the terms of the debtor-creditor relation, though there are no assets to be distributed. On the other hand, the restrictions are important as indicating the care with which the governmental powers of the state and its subdivisions are maintained inviolate.
The statute is constitutional, and the decree should be affirmed.
The CHIEF JUSTICE, MR. JUSTICE BRANDEIS and MR. JUSTICE STONE join in this opinion.
NOTES
[*] Originally, this was limited to two years. By Act approved April 10, 1936, it was extended to January 1, 1940, c. 186, 49 Stat. 1198.
[1] See Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 1868 and H.R. 5950, 1934, 73rd Cong., 2nd Sess.; Hearings before the House Committee on the Judiciary on H.R. 1670, etc., 1933, 73rd Cong., 1st Sess.
[2] See Senate Committee Hearings, supra, at p. 12.
[3] See the statistics gathered in 46 Harvard Law Review 1317.
[4] For a collection of the cases, see 3 McQuillin, Municipal Corporations, 2nd ed., § 1262.
[5] The cases are collected in 33 Columbia Law Review 28, 44.
[6] Warren, Bankruptcy in United States History (1935), p. 9: "The trail [of the bankruptcy clause] is strewn with a host of unsuccessful objections based on constitutional grounds against the enactment of various provisions, all of which are now regarded as perfectly orthodox features of a bankruptcy law. Thus, it was at first contended that, constitutionally, such a law must be confined to the lines of the English statute; next, that it could not discharge prior contracts; next, that a purely voluntary law would be non-uniform and therefore unconstitutional; next, that any voluntary bankruptcy was unconstitutional; next, that there could be no discharge of debts of any class except traders; next, that a bankruptcy law could not apply to corporations; next, that allowance of State exemptions of property would make a bankruptcy law non-uniform; next, that any composition was unconstitutional; next, that there could be no composition without an adjudication in bankruptcy; next, that there could be no sale of mortgaged property free from the mortgage. All these objections, so hotly and frequently asserted from period to period, were overcome either by public opinion or by the Court."
[7] The Emergency Farm Mortgage Act of 1933 was condemned in Louisville Joint Stock Land Bank v. Radford, supra, because destructive of rights of property protected by the Fifth Amendment.
[8] For taxing districts other than drainage, irrigation, reclamation and levee districts, the requisite percentages are 51% and 75% respectively.
[9] "(k) Nothing contained in this chapter shall be construed to limit or impair the power of any State to control, by legislation or otherwise, any political subdivision thereof in the exercise of its political or governmental powers, including expenditures therefor, and including the power to require the approval by any governmental agency of the State of the filing of any petition hereunder and of any plan of readjustment, and whenever there shall exist or shall hereafter be created under the law of any State any agency of such State authorized to exercise supervision or control over the fiscal affairs of all or any political subdivisions thereof, and whenever such agency has assumed such supervision or control over any political subdivision, then no petition of such political subdivision may be received hereunder unless accompanied by the written approval of such agency, and no plan of readjustment shall be put into temporary effect or finally confirmed without the written approval of such agency of such plans." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/100133/ | 261 U.S. 171 (1923)
BANK OF AMERICA
v.
WHITNEY CENTRAL NATIONAL BANK.
No. 205.
Supreme Court of United States.
Argued January 15, 1923.
Decided February 19, 1923.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
Mr. Henry Root Stern, with whom Mr. George N. Hamlin was on the brief, for plaintiff in error.
Mr. Martin Conboy and Mr. J. Blanc Monroe, with whom Mr. Monte M. Lemann was on the brief, for defendant in error.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Bank of America, a New York corporation, brought this action in the federal court for the Southern District of New York, against the Whitney Central National Bank, which has its banking house and usual place of business at New Orleans, Louisiana. Service of process was made solely by delivering a summons to its president while temporarily in New York. Defendant appeared specially; challenged the jurisdiction of the court; and moved that the service be set aside. The questions of fact arising on the motion were referred to a special master to take proofs and make findings. The motion was heard upon his report; and the service was set aside *172 on the ground that defendant was not amenable to process within the district. The case is here under § 238 of the Judicial Code; the question of jurisdiction having been duly certified. The sole question for decision is whether, at the time of the service of the process, defendant was doing business within the district in such manner as to warrant the inference that it was present there. Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 265; Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516.
The facts relied upon to establish presence of the defendant within the district consist wholly of its relations to the Hanover National Bank and five other banks, whose places of business are located in New York, and of transactions conducted through them. Each of these six banks is, what is commonly called, a correspondent of the defendant. In each the Whitney Central carries continuously an active, regular deposit account. But its transactions with these banks are not limited to making deposits and drawing against them. Superimposed upon the simple relation of bank and depositor are numerous other transactions which necessarily involved also the relationship of principal and agent. These additional transactions conducted by the correspondent banks include: payment in New York of drafts drawn, with accompanying documents, against letters of credit issued by defendant at New Orleans; the receipt in New York from brokers and others of securities in which the Whitney Central or its depositors are interested, and the delivery of such securities; the making of payment to persons in New York for such securities; the holding of such securities on deposit in New York for long periods and arranging substitution of securities; the cashing, under specific instructions from defendant given in New Orleans, of checks drawn on it by third parties with whom it had no banking or deposit relations; the receipt in New York *173 from third parties, with whom defendant apparently had no banking relations, of deposits of moneys for account of its customers.
The Whitney Central had what would popularly be called a large New York business. The transactions were varied, important and extensive. But it had no place of business in New York. None of its officers or employees was resident there. Nor was this New York business attended to by any one of its officers or employees resident elsewhere. Its regular New York. In this respect transacted for it by its correspondents the six independent New York banks. They, not the Whitney Central, were doing its business in New York. In this respect their relationship is comparable to that of a factor acting for an absent principal. The jurisdiction taken of foreign corporations, in the absence of statutory requirement or express consent, does not rest upon a fiction of constructive presence, like qui facit per alium facit per se. It flows from the fact that the corporation itself does business in the State or district in such a manner and to such an extent that its actual presence there is established. That the defendant was not in New York and, hence, was not found within the district is clear.
Whether a national bank could under any circumstances be subjected, without its consent, to suit in a State or district, other than that in which it is authorized to locate its banking house, we have no occasion to consider in this case.[1]
Affirmed.
NOTES
[1] See Revised Statutes, § 5190, and other acts concerning the place in which a national bank may do business. 29 Ops. Atty. Gen. 81, 98; and concerning the district in which a national bank may be sued. See Revised Statutes, § 5198; Act July 12, 1882, c. 290, § 4, 22 Stat. 162; Act August 13, 1888, c. 866, § 4, 25 Stat. 433; Judicial Code, subdiv. 16 of § 24; First National Bank of Charlotte v. Morgan, 132 U.S. 141, 145; Continental National Bank of Memphis v. Buford, 191 U.S. 119, 123, et seq. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4555648/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:08 AM CDT
- 868 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
William Sellers, appellee, v.
Reefer Systems, Inc., appellant.
___ N.W.2d ___
Filed May 22, 2020. No. S-19-082.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
2. Judgments: Statutes: Rules of the Supreme Court: Appeal and
Error. Because Nebraska Supreme Court rules are construed in the
same manner as statutes, an appellate court does so independently of the
conclusion of the lower court.
3. Attorney Fees: Appeal and Error. A court’s decision awarding or
denying attorney fees will be upheld absent an abuse of discretion.
4. Attorney Fees: Statutes: Rules of the Supreme Court: Affidavits:
Appeal and Error. In order to recover statutory “reasonable” attor-
ney fees under Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018), the
details of the attorney-client agreement is not a necessary component of
the affidavit submitted pursuant to Neb. Ct. R. App. P. § 2-109(F) (rev.
2014) for justification of appellate attorney fees.
5. Statutes: Legislature: Intent. The intent of the Legislature may be
found through its omission of words from a statute as well as its inclu-
sion of words in a statute, and courts are not permitted to read addi-
tional words into a clear and unambiguous statute.
6. Workers’ Compensation: Attorney Fees. When Neb. Rev.
Stat. § 48-125(4)(b) (Cum. Supp. 2018) of the Nebraska Workers’
Compensation Act does not specify that reasonable attorney fees must
have been “incurred,” it is improper for a court to add it.
7. Workers’ Compensation. The Nebraska Workers’ Compensation Act
should be construed liberally to carry out its spirit and beneficent pur-
pose of providing compensation to employees injured on the job.
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
8. Attorney Fees: Legislature: Public Policy. The Legislature determined
as a matter of public policy that the “reasonable attorney’s fee” man-
dated by Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018) does not
depend on the terms of any fee agreement.
9. Attorney Fees. Statutory “reasonable” attorney fees taxed as costs do
not go directly to the attorney.
10. ____. In order to determine proper and reasonable attorney fees, a court
considers several factors, including the nature of the litigation, the time
and labor required, the novelty and difficulty of the questions raised, the
skill required to properly conduct the case, the responsibility assumed,
the care and diligence exhibited, the result of the suit, the character and
standing of the attorney, the customary charges of the bar for similar
services, and the general equities of the case.
Petition for further review from the Court of Appeals,
Riedmann, Bishop, and Arterburn, Judges, on appeal
thereto from the Workers’ Compensation Court, J. Michael
Fitzgerald, Judge. Judgment of Court of Appeals reversed
and remanded with directions.
Tanya J. Hansen, of Smith, Johnson, Allen, Connick &
Hansen, for appellant.
Joel D. Nelson, of Keating, O’Gara, Nedved & Peter, P.C.,
L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
In an appeal of a workers’ compensation case, wherein the
award to the employee was affirmed, the Nebraska Court of
Appeals denied the employee’s motion for attorney fees for his
counsel’s appellate work, despite the statutory mandate under
Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018) that reason-
able attorney fees shall be allowed to the employee by the
appellate court if the employer files an appeal from a workers’
compensation award and fails to obtain any reduction in the
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
amount of such award. We hold that the affidavit submitted
by the employee’s attorney, which mentioned a contingency
fee agreement, presented the total number of hours worked
on the appeal with a couple of examples of tasks performed,
set forth an hourly rate, averred that the total hours claimed
were calculated from business records itemizing the same, and
averred in the attorney’s expert opinion that the hours and rate
were reasonable, sufficiently justifies under Neb. Ct. R. App.
P. § 2-109(F) (rev. 2014) reasonable attorney fees to which the
employee has a statutory right. We reverse the judgment and
remand the matter to the Court of Appeals to determine the
amount of the fee.
BACKGROUND
William Sellers was injured while working for Reefer
Systems, Inc., in 2007. In 2019, the Workers’ Compensation
Court awarded him permanent total disability benefits. Reefer
Systems appealed the award to the Court of Appeals. The
Court of Appeals affirmed the award in all respects in a memo-
randum opinion issued on October 8, 2019. 1
Sellers timely filed a motion in the Court of Appeals for an
award of reasonable attorney fees pursuant to § 48-125(4)(b)
for the reason that the employer appealed the trial court deci-
sion and there was no reduction in the amount of the award
on appeal.
Attached to the motion is the affidavit of Sellers’ counsel
who worked on the appeal. Counsel avers that he spent 37.8
hours in total on the appeal, beginning April 18, 2019, and end-
ing May 7, and opines that was “a reasonable amount of time
for the work involved.” Counsel describes that he has been
an attorney since 1997 and that since 1999, a substantial por-
tion of his practice has been workers’ compensation cases. He
avers that his hourly rate ranges from $140 to $245 per hour,
that he is generally familiar with hourly rates charged by other
1
Sellers v. Reefer Systems, No. A-19-082, 2019 WL 4940200 (Neb. App.
Oct. 8, 2019) (selected for posting to court website).
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Cite as 305 Neb. 868
litigation attorneys in this geographic area, and that an hourly
rate of $200 per hour for his work on Sellers’ appeal would
be reasonable and consistent with fees charged in this area for
attorneys of similar background and skill.
Counsel avers, further, that he derived the number of hours
spent on the appeal from an audit of records maintained by his
law firm’s staff and himself, consistent with their regular and
established business practices. He notes that the audit revealed
its first entry on April 18, 2019, as reviewing the bill of excep-
tions, and, as its last entry, revising Sellers’ brief. The hours
assigned to these particular tasks is not set forth. No other
tasks are specifically delineated. The referenced records were
not attached to the affidavit. Counsel notes in the affidavit that
he represented Sellers “on a contingent fee.” The details of that
arrangement are not otherwise described.
The Court of Appeals denied the motion for attorney fees
on the ground that counsel’s affidavit did not provide suffi-
cient information to justify the reasonableness of the attorney
fees sought. The Court of Appeals issued the following minute
entry:
[Sellers’] motion for attorney fees denied. Affidavit
fails to justify amount of attorney fees sought. See Neb.
Ct. R. App. P. § 2-109(F). See also St. John v. Gering
Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019) (in
seeking attorney fee[s], lawyer has burden of proving not
only extent and value of services provided, but also exis-
tence and terms of fee contract).
We granted Sellers’ petition for further review of this order
of the Court of Appeals which overruled his motion for attor-
ney fees.
ASSIGNMENTS OF ERRORS
Sellers assigns that the Court of Appeals erred in (1) over-
ruling Sellers’ motion for statutory attorney fees and (2) impos-
ing a burden of proof regarding attorney fees derived from fee
disputes between attorneys or between an attorney and client.
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 2
[2] Because Nebraska Supreme Court rules are construed in
the same manner as statutes, an appellate court does so inde-
pendently of the conclusion of the lower court. 3
[3] A court’s decision awarding or denying attorney fees will
be upheld absent an abuse of discretion. 4
ANALYSIS
Section 48-125(4)(b) provides for mandatory attorney fees
for appellate work in circumstances where the employer appeals
and fails to obtain any reduction in the award:
If the employer files an appeal from an award of a judge
of the compensation court and fails to obtain any reduc-
tion in the amount of such award, the Court of Appeals
or Supreme Court shall allow the employee a reasonable
attorney’s fee to be taxed as costs against the employer
for such appeal.
(Emphasis supplied.)
Section 2-109(F) of the Supreme Court rules sets forth the
general procedure by which an employee must request the
attorney fees allowable under § 48-125(4), 5 inasmuch as it sets
forth the procedure for any litigant seeking from our appellate
courts attorney fees to which there is a right under law or cus-
tom. Section 2-109(F) provides in relevant part:
Any person who claims the right under the law or a uni-
form course of practice to an attorney fee in a civil case
appealed to the Supreme Court or the Court of Appeals
2
Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
3
See Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
4
See State ex. Rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606,
924 N.W.2d 664 (2019).
5
See Escobar v. JBS USA, 25 Neb. App. 527, 909 N.W.2d 373 (2018).
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Cite as 305 Neb. 868
must file a motion for the allowance of such a fee sup-
ported by an affidavit which justifies the amount of the fee
sought for services in the appellate court.
(Emphasis supplied.) Sellers’ motion for attorney fees pursuant
to § 48-125(4)(b) was timely under § 2-109(F), but the parties
dispute whether the supporting affidavit adequately justifies
“reasonable” attorney fees.
In denying Sellers’ motion, the Court of Appeals concluded
that the affidavit submitted under § 2-109(F) was inadequate
because it did not provide the details of the fee agreement
between Sellers and his attorney. This was in error. We have
never held that in order to recover statutory “reasonable”
attorney fees, the attorney must submit the details of the
attorney-client agreement. Neither is such evidence specified in
§ 2-109(F) as a necessary component to the justification of an
appellate attorney fees.
We have affirmed allowances of statutory attorney fees for
trial work despite a lack of proof as to any fee agreement. In
Dale Electronics, Inc. v. Federal Ins. Co., 6 we held under a
statute setting forth the right to “reasonable” attorney fees that
the attorney-fee allowance for the work of in-house counsel
should be for the time actually engaged in the work to the same
extent as outside counsel; evidence of counsel’s annual salary
was not required. And in Black v. Brooks, 7 we affirmed the
lower court’s award of statutory “reasonable attorney’s fees” 8
to which the successful tenant was entitled under Nebraska’s
Uniform Residential Landlord and Tenant Act (URLTA), 9 even
though the tenant was represented on a pro bono basis without
any provision under the agreement for payment to the attorney
in the event of an award of statutory fees.
6
See Dale Electronics, Inc. v. Federal Ins. Co., 205 Neb. 115, 286 N.W.2d
437 (1979).
7
Black v. Brooks, 285 Neb. 440, 827 N.W.2d 256 (2013).
8
Neb. Rev. Stat. § 76-1425(2) (Reissue 2009).
9
Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2009).
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In Black, we indicated that the tenant “need only present
some evidence to the trial court upon which the court can make
a meaningful award.” 10 We observed, “We have never said a
fee agreement or any other agreement showing an obligation of
the client to pay the attorney fees to the attorney is part of the
proof that must be proffered in order to support an award of
statutory attorney fees.” 11
We reasoned in Black that the amount of the statutory
attorney fees under URLTA is not directly tied by the statute
to the amount due under a fee agreement and that the public
policy goals of encouraging compliance with laws serving
the public interest and encouraging settlements are effectively
furthered only when the statutory attorney fees under URLTA
are awarded for fee-based and pro bono work alike. A land-
lord who violates URLTA should not “reap the benefits of free
representation to the other party.” 12 There was nothing in the
statutory language of “reasonable attorney’s fees” in URLTA
that made the recovery of such fees dependent upon a billing
obligation, and we held it would be improper to insert the addi-
tional term “incurred” into the statute. 13
[4-6] We now hold that in order to recover statutory “rea-
sonable” attorney fees under § 48-125(4)(b), the details of the
attorney-client agreement is not a necessary component of the
affidavit submitted pursuant to § 2-109(F) for justification of
appellate attorney fees. The intent of the Legislature may be
found through its omission of words from a statute as well as
its inclusion of words in a statute, and we are not permitted to
read additional words into a clear and unambiguous statute. 14
Several attorney fee statutes, such as the one recently addressed
10
Black, supra note 7, 285 Neb. at 451, 827 N.W.2d at 264.
11
Id.
12
Id. at 454, 827 N.W.2d at 266.
13
See Black, supra note 7.
14
See Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
(2016).
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
in TransCanada Keystone Pipeline v. Nicholas Family, 15 spec-
ify that to be recoverable, the reasonable attorney fees must
have been “incurred.” 16 When § 48-125(4)(b) of the Nebraska
Workers’ Compensation Act does not specify that reasonable
attorney fees must have been “incurred,” it is improper for us
to add it.
[7,8] We have repeatedly said that the Nebraska Workers’
Compensation Act should be construed liberally to carry out
its spirit and beneficent purpose of providing compensation
to employees injured on the job. 17 It is apparent that the
Legislature determined as a matter of public policy that the
“reasonable attorney’s fee” mandated by § 48-125(4)(b) does
not depend on the terms of any fee agreement. Thus, the affi-
davit submitted under § 2-109(F) in support of attorney fees
pursuant to § 48-125(4)(b) does not need to set forth the exis-
tence and terms of a fee contract between the employee and the
attorney in order to “justify” statutorily mandated “reasonable”
attorney fees for the appeal.
The Court of Appeals’ reliance on St. John v. Gering Public
Schools 18 to conclude otherwise is misplaced. St. John did not
involve attorney fees taxed as costs under a statute or custom.
Instead, it involved the question of the attorneys’ entitlement
under their attorneys’ liens for services rendered pursuant to
their fee agreements. In an analysis centered around the profes-
sional responsibility rules, we held that “while a lawyer with a
valid fee agreement is entitled to recover from a client what a
15
TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908
N.W.2d 60 (2018).
16
See, e.g., Neb. Rev. Stat. § 1-148 (Reissue 2012); Neb. Rev. Stat. § 21-281
(Cum. Supp. 2018); Neb. Rev. Stat. § 30-4020 (Supp. 2019); Neb. Rev.
Stat. § 50-1515 (Cum. Supp. 2018); Neb. Rev. Stat. § 53-223 (Reissue
2010); Neb. Rev. Stat. § 76-726 (Reissue 2018); Neb. Rev. Stat. § 81-3537
(Reissue 2014); Neb. Rev. Stat. § 85-1510 (Reissue 2014).
17
Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d
851 (2019). See Neb. Rev. Stat. § 48-101 (Reissue 2010).
18
St. John v. Gering Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019).
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fee agreement allows to the extent that amount is reasonable,
a lawyer is not entitled to recover from a client more than a
fee agreement allows.” 19 Neb. R. of Prof. Cond. § 3-501.5
provides in part that “[a] lawyer shall not make an agreement
for, charge, or collect an unreasonable fee or an unreasonable
amount for expenses.”
In so holding in St. John, we cited to Hauptman, O’Brien v.
Turco 20 for the proposition which states:
In a suit to recover an unpaid fee, “the lawyer has the
burden of persuading the trier of fact, when relevant, of
the existence and terms of any fee contract, the making
of any disclosures to the client required to render a con-
tract enforceable, and the extent and value of the lawyer’s
services.”
Like St. John, Hauptman, O’Brien did not involve statutory
“reasonable” attorney fees to be taxed as costs in favor of the
litigant-client. It was an action to enforce an attorney lien in an
amount computed in accordance with the contingent fee agree-
ment. The client asserted that recovery under the contingent
fee agreement was excessive for the amount of work actually
done, and we held that because the law firm failed to present
any evidence in support of its motion for summary judgment
as to the “extent and value of the professional services which
it performed” during the period of its representation, there
was “no factual basis upon which to determine whether or
not the claimed fee computed pursuant to the contingent fee
agreement is reasonable.” 21 This was because collection by the
attorney of attorney fees computed pursuant to a contingent
fee agreement is still subject to the ethical principle embodied
in § 3-501.5 of the professional conduct rules that prohibits a
19
Id. at 277, 923 N.W.2d at 75.
20
See Hauptman, O’Brien v. Turco, 273 Neb. 924, 931, 735 N.W.2d 368,
374 (2007) (emphasis supplied), quoting Restatement (Third) of the Law
Governing Lawyers § 42(2) (2000).
21
Hauptman, O’Brien, supra note 20, 273 Neb. at 932, 735 N.W.2d at 374.
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lawyer from making an agreement for, charging, or collecting
an unreasonable fee.
[9] But, as we pointed out in Black, statutory “reason-
able” attorney fees taxed as costs do not go directly to the
attorney. 22 The award of fees for an unsuccessful appeal by
an employer in a workers’ compensation case is “for the ben-
efit of the claimant employee.” 23 Within constitutional limits,
the Legislature is free to set statutory attorney fees under
the Nebraska Workers’ Compensation Act in any amount it
deems fit to further the public policy of the act. Attorney
fees under § 48-125(4)(b) shall be allowed in an amount that
is reasonable. That determination depends on the extent and
value of services provided and is not dependent upon a fee
agreement.
[10] We find that the affidavit submitted on Sellers’ behalf
contains sufficient justification of the extent and value of the
attorney services provided on appeal to make a meaningful
determination of the amount of “reasonable” attorney fees
to which Sellers is entitled. In order to determine proper
and reasonable attorney fees, a court considers several fac-
tors, including the nature of the litigation, the time and labor
required, the novelty and difficulty of the questions raised, the
skill required to properly conduct the case, the responsibility
assumed, the care and diligence exhibited, the result of the
suit, the character and standing of the attorney, the customary
charges of the bar for similar services, and the general equities
of the case. 24
Sellers’ affidavit did not need to set forth a detailed log of
all tasks and the amount of time spent on each task in order
to be considered under § 2-109(F) in determining reason-
able attorney fees. The affidavit by Sellers’ attorney stated
22
See Black, supra note 7.
23
Neeman v. Otoe County, 186 Neb. 370, 376, 183 N.W.2d 269, 273 (1971).
24
See, Pan v. IOC Realty Specialist, 301 Neb. 256, 918 N.W.2d 273 (2018);
Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015).
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the total number of hours and the applicable rate, and it
presented an expert opinion that both were reasonable. The
attorney noted a couple of tasks performed and stated that the
number of hours claimed had been carefully logged in his law
firm’s business records.
We also note that the evidence supporting a meaningful
determination of reasonable attorney fees on appeal is not lim-
ited to the affidavit required under § 2-109(F). It also includes
the court’s general experience in matters of litigation and what
has been produced by the attorney for the appellate court’s
direct consumption. 25
The Court of Appeals abused its discretion in concluding
that it could not meaningfully determine a “reasonable attor-
ney’s fee” pursuant to § 48-125(4)(b), because Sellers’ affi-
davit failed to adequately “justify” one. We reverse the denial
of Seller’s motion for appellate attorney fees and remand the
matter with directions for the Court of Appeals to determine
the amount of reasonable attorney fees. Nothing in this opinion
should be read as expressing an opinion as to what the amount
of attorney fees should be.
CONCLUSION
For the foregoing reasons, we reverse the judgment and
remand the matter to the Court of Appeals with directions.
Reversed and remanded with directions.
25
See, e.g., Rinderknecht v. Rinderknecht, 204 Neb. 648, 284 N.W.2d 569
(1979); Lippincott v. Lippincott, 152 Neb. 374, 41 N.W.2d 232 (1950);
Specht v. Specht, 148 Neb. 325, 27 N.W.2d 390 (1947); Yost v. Yost, 143
Neb. 80, 8 N.W.2d 686 (1943). | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2466108/ | 131 U.S. 220 (1889)
New Orleans
v.
United States ex rel.: Gaines's Administrators.
New Orleans
v.
United States ex rel.: Gaines's Administrators.
Nos. 2, 3.
Supreme Court of United States.
Argued October 13, 14, 1887.
Decided May 13, 1889.
Mr. Henry C. Miller and Mr. J.R. Beckwith for appellant. Mr. John A. Campbell, Mr. Thomas J. Semmes and Mr. Alfred Goldthwaite for appellees.
MR. JUSTICE BRADLEY delivered the opinion of the court.
The decision just made in the case of The City of New Orleans v. Myra Clark Gaines renders it necessary that the judgment or decree in this case should be reversed, and *221 it is reversed accordingly, and the cause remanded with instructions to dismiss the petition.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2986242/ | Affirmed and Memorandum Opinion filed August 8, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00596-CR
WILLIE BROOKS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court 4
Tarrant County, Texas
Trial Court Cause No. 1215599D
MEMORANDUM OPINION
Appellant Willie Brooks appeals his conviction for violating civil
commitment requirements for sexually violent predators. He argues that trial
counsel provided ineffective assistance by failing to move to quash the indictment.
Because the indictment was not defective and appellant has proven no prejudice,
we affirm.1
1
Pursuant to its docket-equalization powers, the Texas Supreme Court transferred this
appeal from the Second Court of Appeals to this Court. See Tex. Gov’t Code § 73.001.
BACKGROUND
The Texas Health and Safety Code defines a “sexually violent predator” as a
person who “(1) is a repeat sexually violent offender; and (2) suffers from a
behavioral abnormality that makes the person likely to engage in a predatory act of
sexual violence.” Tex. Health & Safety Code Ann. § 841.003(a) (West 2010). The
Act provides for the involuntary civil commitment of a repeat sexual offender who
is found to be a sexually violent predator. Id. at § 841.081(a).
Appellant was determined to be a sexually violent predator and the trial
court signed a final judgment and an order of civil commitment. A civil
commitment order must meet certain statutory requirements. Id. at § 841.082(a).
The order must require the person to “submit to tracking under a particular type of
tracking service,” participate in a “specific course of treatment,” “reside in a Texas
residential facility,” and fulfill “any other requirements determined necessary by
the judge.” Id. at § 841.082(a)(1–9).
Four requirements of appellant’s civil commitment order are relevant here.
First, appellant was required to get permission prior to having contact of a sexual
nature with any individual. Second, he was subject to global positional tracking
service requirements, in which he was required to wear GPS tracking equipment
around his ankle and charge this equipment for four hours a day. Third, as part of
his treatment, appellant was required to make daily entries in a thought journal, the
purpose of which was to keep a log of any deviant thoughts. Fourth, appellant was
required to participate in and comply with a specific course of treatment, which
encompassed the above three requirements.
The State alleged that appellant violated each of these requirements while he
was residing at a halfway house in Tarrant County. According to the State,
appellant violated the contact requirement by engaging in contact of a sexual
2
nature with a female resident of the same halfway house. The State also alleged
that appellant separated from his GPS tracking equipment on five separate
occasions and failed to charge the equipment on one occasion. Finally, the State
alleged that appellant twice failed to participate in his treatment program by not
making required entries in his thought journal. As a result of these alleged
violations, appellant was discharged from his outpatient treatment program.
In an eleven-count indictment, appellant was charged with violating the
civil commitment requirements for sexually violent predators, a third-degree
felony. The first six counts dealt with GPS tracking violations, five for separating
from his GPS equipment, and one for failing to charge his equipment. Counts 7
and 8 dealt with appellant’s alleged violations of the sexual contact prohibition.
Counts 9 and 10 dealt with appellant’s violation of his course of treatment by not
making required thought journal entries. Count 11 alleged that appellant did not
participate in and comply with his course of treatment and was discharged from the
treatment program because of the above violations. All counts alleged that the
violations took place in Tarrant County and the case was prosecuted there.
The State recommended a sentence of ten years in a plea offer. A few weeks
later, appellant waived his right to a jury trial and entered an open plea of guilty to
all eleven counts. After hearing evidence, the trial court found that the evidence
substantiated appellant’s guilt and imposed a sentence of six years’ confinement on
each count, the sentences to run concurrently. Appellant did not file a motion for a
new trial. The trial court certified appellant’s right to appeal and appellant timely
filed a notice of appeal.
ANALYSIS
In a single issue, appellant contends that his trial counsel rendered
ineffective assistance by failing to move to quash the indictment. Specifically,
3
appellant complains the indictment was defective for failing to: (1) allege criminal
offenses; (2) show venue was proper in Tarrant County; and (3) charge offenses
with sufficient specificity such that the prosecution would bar a subsequent
prosecution for the same conduct. Because his trial counsel did not file a motion to
quash challenging these alleged defects, appellant asks this court to reverse his
convictions and remand the case to the trial court for a new trial. Id. We conclude,
however, that the indictment was not defective, and in any event, it could have
been amended to cure any defects.
I. Standard of review
A defendant has a Sixth Amendment right to effective assistance of counsel
in guilty-plea proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim.
App. 2010); see U.S. Const. amend. VI. To succeed on a claim of ineffective
assistance of counsel, the appellant must show that (1) counsel’s performance was
so deficient that he was not functioning as acceptable counsel under the Sixth
Amendment, and (2) there is a reasonable probability that, but for counsel’s error
or omission, the result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 687–96 (1984); Thompson v. State, 9 S.W.3d 808, 812
(1999). A defendant is not entitled to perfect or errorless counsel, however.
Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986).
There is a strong presumption that an attorney’s conduct fell within the wide
range of reasonable professional assistance and was motivated by sound trial
strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The
appellant must prove ineffective assistance of counsel by a preponderance of the
evidence to overcome this presumption. Thompson, 9 S.W.3d at 813.
A showing of deficient performance by counsel must affirmatively appear in
the record. Thompson, 9 S.W.3d at 812–13. Though an appellate court looks at
4
the totality of the representation, a single egregious error can sufficiently
demonstrate ineffective assistance of counsel. Ex parte Felton, 815 S.W.2d 733,
735 (Tex. Crim. App. 1991) (holding appellant was denied effective assistance
when trial counsel failed to challenge a void prior conviction which was used to
enhance his punishment). A court normally will not find trial counsel ineffective
when, as here, the record is silent on counsel’s reasoning or strategy. See Jackson,
877 S.W.2d at 771. On a silent record, an appellate court should not conclude that
the defendant received ineffective assistance unless the challenged conduct was
“so outrageous that no competent attorney would have engaged in it.” Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
II. Appellant did not receive ineffective assistance of counsel.
We conclude appellant has not met his burden to prove either of the two
prongs of the Strickland test. Under the deficient performance prong, appellant
must show that counsel’s assistance was unreasonable and rebut the strong
presumption that counsel’s conduct fell within a wide range of reasonable
representation. Edwards v. State, 280 S.W.3d. 441, 442–43 (Tex. App.—Fort
Worth 2009, pet ref’d). Under the prejudice prong, appellant must demonstrate
that but for counsel’s error, the result of the proceeding would have been different.
Id. at 443. Appellant’s allegation that counsel was ineffective for not filing a
motion to quash the indictment does not meet either Strickland prong. Therefore,
we hold that he did not receive ineffective assistance. See Thompson v. State, 9
S.W.3d at 813 (failure to show either Strickland prong defeats ineffectiveness
claim).
A. Counsel’s performance was not deficient because the indictment is
not defective.
As to the deficient performance prong, appellant argues that the indictment
5
should have been quashed on three grounds, and his trial counsel was ineffective
for failing to file a motion to quash. We conclude, however, that the indictment
was not defective.
1. The indictment charged criminal offenses.
First, appellant argues that the indictment failed to charge actual criminal
offenses because it deviates from the exact statutory language of the offense. For
example, appellant states that he is charged with “separating from his GPS tracking
equipment,” while the statute regarding civil commitment orders directs the person
to “refrain from tampering with, altering, modifying, obstructing, or manipulating
the tracking equipment.” Tex. Health & Safety Code Ann. § 841.082(a)(5)(B).
Therefore, appellant argues the indictment does not charge him with an actual
criminal offense. We disagree.
The Code of Criminal Procedure provides that “words used in a statute to
define an offense need not be strictly pursued in the indictment; it is sufficient to
use other words conveying the same meaning, or which include the sense of
statutory words.” Tex. Code Crim. Proc. Ann. art. 21.17 (West 2009). Here, the
word “separating” conveys the same meaning as the statutory word “obstructing.”
By separating from his GPS equipment, appellant committed a criminal offense
because he obstructed the equipment from tracking his location. Appellant also
argues that the statute does not require him to charge his GPS equipment, so the
indictment did not charge a criminal offense. Failing to charge the equipment,
however, is equivalent to “obstructing” it, which is a violation of the statute.
Appellant also argues that the statute only forbids him from having sexual
contact with a “potential victim,” and does not criminalize his contact with a
fellow resident. As part of his supervision requirements, however, he was
“prohibited from engaging in anonymous or casual contact of a sexual nature”
6
without prior permission. The statute allows a civil commitment order to contain
“any other requirements determined necessary by the judge.” Tex. Health &
Safety Code Ann. § 841.082(a)(9). Therefore, an order may include requirements
that are not specifically listed in the statute, and a violation of them is a violation of
the statute. Here, the evidence established that appellant did not have permission
to engage in such conduct with his fellow resident, so he violated the statute.
Appellant next argues that counts nine and ten do not allege criminal
conduct because making thought journal entries is not a requirement of the statute.
According to the record, however, writing journal entries was a part of the written
requirements of appellant’s treatment plan. The civil commitment statute requires
a sexually violent predator’s participation in and compliance with a “specific
course of treatment.” Tex. Health & Safety Code Ann. § 841.082(a)(4). Not
complying with the treatment is a violation of the statute. Id.
Similarly, appellant argues that count eleven states he failed to make
“progress” in his treatment program, while the statute merely requires participation
in and compliance with it. Count eleven alleges, however, that appellant “failed to
participate in and comply with a specific course of treatment” because he “was
unsuccessfully discharged from [the program] for failing to make progress.” As
explained above, not complying with the course of treatment is a violation of the
statute. Accordingly, we hold that the indictment charged criminal offenses and is
not defective on this ground.
2. The indictment showed Tarrant County was a proper venue.
Second, appellant argues the indictment does not indicate that Tarrant
County was a proper venue. The county entering the civil commitment order, in
this case Montgomery County, “retains jurisdiction of the case with respect of a
civil commitment proceeding conducted under Subchapters F and G.” Tex. Health
7
& Safety Code Ann. § 841.082(d). This has been interpreted to mean that
Montgomery County retains only civil jurisdiction, and “general jurisdiction rules .
. . govern potential criminal proceedings that adjudge violations of the terms of the
commitment.” Jones v. State, 333 S.W.3d 615, 619 (Tex. App.—Dallas 2009, pet.
ref’d). Hence, as appellant concedes, venue is proper in the county in which the
offenses were alleged to have been committed.
Here, all eleven counts state that the criminal offenses were committed in
Tarrant County. Thus, the indictment indicates venue was proper in Tarrant
County, and it is not defective on this ground.
3. Appellant has not shown that he could be prosecuted again for the
same offenses.
Third, appellant argues the indictment created a double jeopardy problem.
In his view, the indictment was not specific enough to bar later prosecution for the
same offense because it did not state that he was required to reside in Tarrant
County or participate in a treatment program there. He contends that if he was
actually required to reside in another county, his conviction under this indictment
would not bar a later prosecution in a jurisdiction where these offenses might have
violated his civil commitment order.
Appellant offers no evidence, however, that he was required to reside in
another county, or that his commitment order applied only in the county in which
he was required to reside. Further, there is nothing in the civil commitment statute
limiting the order’s requirements to a particular county. Because the statute
requires the sexually violent predator “to reside in a Texas residential facility” and
one of its purposes is to protect the public, it is appropriate to conclude that the
statute’s requirements apply statewide. Tex. Health & Safety Code Ann. §§
841.082(a)(1), 841.142(a). We are aware of no statutory or precedential support
8
for the notion that a defendant’s violation of a commitment order could give rise to
separate criminal offenses in two separate counties: one where the violation was
committed and another where he was required to reside. As explained above,
venue was proper in Tarrant County because the offenses were committed there, so
there should be no double jeopardy issue in the future. Moreover, even if there
were a potential double jeopardy issue, the appropriate time to argue this issue is
“after he has been charged or indicted for that unnamed future offense.” Burks v.
State, 876 S.W.2d 877, 889 (Tex. Crim. App. 1994); see Keith v. State, 782 S.W.2d
861, 864 (Tex. Crim. App. 1989) (stating a double jeopardy issue was not ripe for
review because there was no initiation of any subsequent prosecution).
Accordingly, we hold the indictment is not defective on double jeopardy grounds.
* * *
Counsel is not required to engage in the filing of futile motions. Mooney v.
State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); Diaz v. State, 380 S.W.3d
309, 312 (Tex. App.—Fort Worth 2012, pet. ref’d). Because the indictment is not
defective, filing the motion to quash would have been futile. Therefore, we
conclude counsel was not ineffective for failing to file the motion. See Diaz, 380
S.W.3d at 313 (holding appellant did not meet first Strickland prong because trial
counsel did not file what would have been a futile motion to recuse).
B. Counsel’s failure to file a motion to quash did not prejudice
appellant.
Even if trial counsel’s performance had been deficient, to obtain a reversal
under Strickland, appellant must also demonstrate that but for counsel’s error, the
result of the proceeding would have been different. See Thompson, 9 S.W.3d at
812; Hill v. State, 303 S.W.3d 863, 878 (Tex. App.—Fort Worth 2009, pet. ref’d).
To establish such prejudice, appellant must demonstrate that he would have
9
succeeded on the motion to quash the indictment. See Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998). As explained above, however, such a
motion would not have succeeded.
Moreover, the remedy for a successful motion to quash the indictment under
these circumstances would not have been a dismissal or a new trial, but an
opportunity for the State to amend the deficient indictment. See Garrett v. State,
161 S.W.3d 664, 668 (Tex. App.—Fort Worth 2005, pet. ref’d). The State may
move to amend “a matter of form or substance in an indictment . . . any time before
the date the trial on the merits commences.” Tex. Code Crim. Proc. Ann. art.
28.10 (West 2010).
Here, appellant has failed to show that the State could not have amended the
indictment to cure the alleged defects. Accordingly, we conclude appellant has not
met the second prong of Strickland.
CONCLUSION
For these reasons, we overrule appellant’s sole issue on appeal and affirm
the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Frost, Brown, and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
10 | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4555610/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:07 AM CDT
- 498 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. GALVAN
Cite as 306 Neb. 498
State of Nebraska, appellee, v.
Braden M. Galvan, appellant.
___ N.W.2d ___
Filed July 17, 2020. Nos. S‑19‑623, S‑19‑624.
supplemental opinion
Appeal from the District Court for Hall County: Mark J.
Young, Judge. Former opinion modified. Motion for rehear-
ing overruled.
Gerard A. Piccolo, Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by the
appellee, State of Nebraska, concerning our opinion in State v.
Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
We overrule the motion, but modify the opinion as follows:
In the analysis section, under the subheading “Plain Error,”
we withdraw the first two sentences of the fifth paragraph,
including footnotes 24 and 25. State v. Galvan, 305 Neb. at
521, 941 N.W.2d at 190.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled. | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/95906/ | 190 U.S. 353 (1903)
BUCHANAN
v.
PATTERSON.
No. 266.
Supreme Court of United States.
Argued April 29, 30, 1903.
Decided June 1, 1903.
ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.
*359 Mr. Archibald H. Taylor and Mr. Edward P. Keech, Jr., for plaintiffs in error. Mr. John Pierce Bruns was on the brief.
Mr. Arthur W. Machen, Jr., Mr. Frank P. Clark and Mr Arthur W. Machen for defendants in error.
*360 MR. JUSTICE PECKHAM, after making the foregoing statement of facts, delivered the opinion of the court.
The contention of the plaintiffs in error is that Congress, by the acts mentioned, and particularly that of March 3, 1899, ratified and adopted the findings and decisions of the Court of Claims made in pursuance of the act of 1885, in the cases of the two ships Patapsco and Jane, and that the act of 1899 recognized and designated William B. Buchanan as an original sufferer within the meaning of Congress, by virtue of his being a partner, and the surviving partner, of S. Smith & Buchanan, and that the act gave to the personal representative of William B. Buchanan the awards in question, for the benefit of his next of kin and the next of kin of his two partners. They also assert that the Court of Claims having made the additional final certificate required by the act of Congress, and the Secretary of the Treasury, in accordance with those certificates, having paid the money to the plaintiff in error, administratrix, for the benefit of the next of kin of William B. Buchanan, to the full extent of his partnership interest in the firm, there was no power in any court to in any wise alter the statute or make any other distribution than such as would give to the next of kin of William B. Buchanan one third of the total sum to be distributed.
It becomes necessary, in order to fully appreciate the action of the Court of Claims and of Congress subsequently to the passage of the act of 1885, to examine the latter act and determine its scope and purpose. The act provided for an investigation to be undertaken by the court as to the validity of the claims for indemnity upon the French Government, for losses of citizens of the United States or their legal representatives, arising from illegal captures, seizures, etc., of vessels or cargoes prior to the treaty of 1800 between France and the United States. The act did not assume to provide for the identification of all the next of kin of the original sufferers from such illegal seizures. The court was to determine the validity and the amount of the claims included within the description contained in section 1 of the act of 1885, and it was also to determine *361 the present ownership of such claims. The matter of chief importance between the claimants and the United States was for the court to ascertain and determine the validity and the extent of the claims.
The particular class of persons who were the owners of the claims and to whom the moneys might be properly paid was at this time of subsidiary importance, so far as the United States was concerned. Although the present ownership was to be determined, and if by assignee, the date of the assignment and the consideration paid therefor, yet this was obviously for the mere purpose of informing Congress as to the present situation of a claim, whether owned by next of kin of those who suffered the loss or by assignees, but the particular individuals who composed the next of kin or the assignees were not then of importance, as gathered from the language and purpose of the act. All this action of the court was by the terms of the act made advisory only. Congress specifically withheld from the court any right to render a judgment which would in any manner conclude the United States or commit it to the payment of any claims determined by the court under the third section of the act. All that Congress did was to give jurisdiction to the Court of Claims to inquire into the matter of each claim which might be presented to it and to report to Congress its opinion of the validity and the amount of the claim with a statement as to its ownership. The whole subject thereafter remained with Congress subject to its future action.
Regarding its powers and duties under this act, the Court of Claims itself stated its opinion in the case of The Ship Jane, 24 C. Cl. 74. It held that the court could not determine to whom the money should be distributed, which Congress might thereafter award as indemnity in the French Spoliations cases, nor could it determine who were the next of kin of a deceased claimant, nor whether there were any. All that the court could determine in its report to Congress was the validity of a claim against France, its relinquishment by the United States and the amount thereof. It also held that its decisions in these cases were not judgments which judicially affect the rights of any one, and that after the court had reported a French Spoliation *362 case it remained with Congress to determine, first, the measure of the indemnity which the United States should give; and, second, the persons who were equitably entitled to participate therein. The purpose of the court was, as it stated, to require a claimant to file his letters of administration and prove to the satisfaction of the court that the decedent whose estate he administered was the same person who suffered loss through the capture of a vessel.
Again, in The Leghorn Seizures (Field, Administrator, v. United States), 27 C. Cl. 224, the court held that the French Spoliations act of 1885 conferred jurisdiction, but did not impose liabilities; that Congress conceded that several classes of claimants seeking redress for French spoliations might come into the Court of Claims and have the question of the liability of the United States determined, and conceded nothing more.
From these extracts it is plain that the Court of Claims did not regard it as its duty under the act of 1885 to investigate and determine the rights of each individual of a class, but only to determine the validity and amount of a claim, with a specification of ownership sufficient to identify the claim itself, for the payment of which an appropriation might be thereafter made. The particular individuals of the class would be matter for subsequent investigation by some other tribunal.
In Blagge v. Balch, 162 U.S. 439, the meaning and purpose of the act of 1885, together with the act of March 3, 1891, 26 Stat. 862, 908, came before this court for consideration, and it was held that the result of the action of Congress was to place the payments prescribed under the act of 1891 within the category of payments by way of gratuity and grace, and not as of right as against the Government; that under the proviso contained in the act of 1891, Congress intended the next of kin to be beneficiaries in every case, and excluded creditors, legatees, assignees and all strangers to the blood, and that the words "next of kin," as used in the proviso, meant next of kin living at the date of the act (1891), to be determined according to the statute of distribution of the respective States of the domicil of the original sufferers.
The court distinguished the case from Comegys v. Vasse, 1 *363 Pet. 193, and Williams v. Heard, 140 U.S. 529. In these cases it was held that assignees in bankruptcy took title to the moneys.
The same proviso mentioned in Blagge v. Balch, supra, and contained in the act of March 3, 1891, is found in the act of 1899, 30 Stat. 1161, 1191. So we know from the above case that the desire of Congress was to make payments to the next of kin of the original sufferers of the losses, and that assignees in bankruptcy should not take. The identification of the particular persons belonging to the class that Congress desired to aid was evidently not within the purpose of the act of 1891 or that of 1899.
Under the act of 1885, the plaintiff in error, Esther S. Buchanan, presented the claims arising out of the capture of the vessels Patapsco and Jane, together with their cargoes. It is not disputed on the contrary, it is admitted that she represented on the trial before the Court of Claims, with their consent, all the parties interested in the claim of S. Smith & Buchanan, including those who now claim in opposition to her so far as the proportion of the award to be paid to the different parties is concerned. That she represented these different persons, with their consent, in the examination before the Court of Claims, shows that there was between them at that time no diverse interest involved; that, so far as regarded the validity of the whole claim and its amount, the parties were situated alike, and had the same interest as against the United States in proving the validity of their claim and the amount thereof. That she was authorized to receive the amount that might be awarded, and that thereafter the question of proportion and distribution would arise, is a plain deduction from the facts stated. As the material point before the Court of Claims was the validity of the claim and its amount, in regard to which all claimants appeared in the same interest, it was not of much moment who should be named to receive the award (if any were to be made), and therefore the statement by the court that Esther S. Buchanan was the administratrix of William B. Buchanan, the survivor of the firm, was not calculated to call for any comment, for the reason, as stated, that the appropriation would be to a *364 representative of the next of kin, the individual members of which might be thereafter identified. The history given by the Court of Claims was, upon the question of ownership, just enough to form a basis for an appropriation to some one, who would thereupon distribute to the proper persons among themselves. The reports of the court were not intended as an identification of such persons.
After the report of the Court of Claims to Congress, Miss Buchanan had in 1891 taken out letters of administration upon the estate of James A. Buchanan. Soon after the passage of the act of 1899 she obtained the certificates already referred to from the Court of Claims, in one of which, in regard to the ship Jane, it was stated that she "represents the next of kin of William B. Buchanan, the surviving member of the firm of Samuel Smith & Buchanan, deceased, the original owners of the claim upon which said award was made," and in the other certificate, in regard to the ship Patapsco, it was stated that she "represents the next of kin of William B. Buchanan, surviving partner, etc., deceased, the original owner of the claim upon which said award was made." These certificates obviously proceeded upon the report which the courts had theretofore made in these two cases, and in which it is plain that the court reported the fact that the members of the firm of S. Smith & Buchanan, as that firm was constituted in 1798, were the original sufferers of the loss in 1798. It is also plain that the court assumed that the William B. Buchanan named in the certificate was a member of the firm in 1798, which suffered the loss, and it was to the administratrix of the survivor of that firm (1798) that the certificate in truth applied. This simply carried out the purpose of the court, expressly stated in this case, to insist that the decedent whose estate was administered was the same person who suffered loss through the capture of a vessel. In the certificates, as well as in the report of the Court of Claims, it is evident that the court assumed that the persons entitled to the distributive share of the moneys were the next of kin of the original sufferers, whoever they might turn out to be, although the court supposed that William B. Buchanan was the survivor of the firm that suffered the loss in 1798.
*365 The case of United States v. Gilliat, 164 U.S. 42, simply holds that under the special statute therein referred to the certificate made by the Court of Claims and sent to the Secretary of the Treasury was conclusive, and the United States had no right of appeal from the conclusion stated in the certificate.
In this case, the Court of Claims thought there were three members of the firm of S. Smith & Buchanan at the time of these captures. In the fourth finding, in regard to the ship Patapsco, the court reported that "John Donnell and the firm of S. Smith & Buchanan owned jointly the cotton shipped on that vessel, and that Samuel Smith, James A. Buchanan and William B. Buchanan, citizens of the United States, formed the said firm of S. Smith & Buchanan;" that is, formed the firm at the time of the capture in 1798; and in the tenth finding the court found that on November 9, 1820, "said Samuel Smith, James A. Buchanan and William B. Buchanan, copartners, and trading as hereinbefore set forth as copartners, under the firm name of S. Smith & Buchanan, assigned" to assignees for the benefit of their creditors. Thus the court assumed that the firm consisted of the same members in 1798 and in 1820, and that William B. Buchanan was the survivor. This is clearly a mistake. William B. Buchanan was born in 1795, and was then, at the time of these captures, but three years old, and was not a member of the firm at that time, as the state court finds. But clearly the Court of Claims had reference to the firm as it was composed when the losses occurred, whoever in fact were then the members of that firm.
There is nothing in its report which would show that it regarded William B. Buchanan as one of the original sufferers because of his being a member of the firm of 1818, of S. Smith & Buchanan. The whole history of the case as given by the court shows that William B. Buchanan was mistakenly supposed to have been a member of the firm in 1798, and it was on that account that he was regarded as the survivor of that firm. Whatever equity the parties might claim on account of William B. Buchanan becoming a member of the firm in 1818, it is plain that those equities were not regarded or known or supposed to exist by the Court of Claims.
*366 Taking this report of the Court of Claims, it seems to us evident that the appropriations for the payment of the claims made by the act of 1899, 30 Stat. 1194, 1195, proceeded upon the report made by that court to Congress in these cases, and that the language of that act, in the case of the ship Jane, to "Esther S. Buchanan, administratrix, representing Smith & Buchanan, $11,660.21," and in the case of the ship Patapsco, "Esther S. Buchanan, administratrix of the estate of William B. Buchanan, who was the surviving partner of the firm of S. Smith & Buchanan, deceased, $25,056, the value of the cargo shipped by said firm," when taken in connection with the other facts as to the firm of 1798, shows that the appropriation was intended for the administratrix of the survivor of the original firm existing in 1798, at the time the losses occurred, and that the next of kin of the members of that firm at that time were in reality the parties intended by Congress to receive its gratuity. It was not within the intention of Congress to determine by the appropriation who those persons were, but the appropriation was to Esther S. Buchanan as a representative of the class; in other words, the representative of the next of kin of the original sufferers, without therein determining who they were. The intent of Congress to make the payment in each case to the representative of those who were next of kin of the original sufferers, or in other words, of the firm as it stood in 1798, we think is perfectly certain. Whoever they might be, Congress intended the payment to be for those who were the next of kin, and it did not conclude the fact as to who they were, by appropriating the money to Esther S. Buchanan. It was to be for her as the representative of the next of kin of the original sufferers.
Congress could, of course, have given this fund to any one it chose, as it was a case of gratuity in any event; but the question is, what did Congress, in fact, mean when it made the appropriation in the act of 1899, and that meaning, we feel convinced, was as we have already stated.
The cases of United States v. Jordan, 113 U.S. 418; United States v. Price, 116 U.S. 43, and United States v. Louisville, 169 U.S. 249, are not in conflict with this result. In those cases the *367 appropriation was to the party named in the act and a specific sum was directed to be paid to such party. It was not a payment to him in trust for some other and unidentified members of a class to which he belonged, but it was a positive and absolute direction by Congress to pay to the individual named in the act the amount stated therein. In such cases there is no subject for identification of the members of any class and no occasion for the further action of any one before payment is to be made.
In the case at bar, it is clear that the party named in the appropriation was not entitled to the money absolutely as her own. It was an appropriation to her for the benefit of others, herself included, and those others were identified only as a class, and that class was intended as the next of kin of the firm of S. Smith & Buchanan, as it existed in 1798.
Having obtained payment of the sum appropriated by Congress, the plaintiff in error, Esther S. Buchanan, came into a court of equity and asked to have the fund distributed under its authority. She stated all the facts, and while claiming the right to share in the distribution of the money in her character as one of the next of kin of William B. Buchanan, yet she still submitted the whole question as to the proper distribution to the court. The court had jurisdiction to determine as to the real meaning and the proper construction of the act of Congress, and the highest court of that State, upon appeal from the trial court, has held in substance that it appears that there were but two members of the firm in 1798, and it accordingly decided that the intent of Congress was clearly to make the gift to the next of kin of the members of the firm in 1798, which would result in giving one half to the next of kin of S. Smith and the other one half to the next of kin of James A. Buchanan, among whom are found Esther S. Buchanan and her brother, Wilson C. Buchanan.
We see no error in the decree of the Maryland Court of Appeals, and it is, for the reasons stated,
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3850823/ | To a sci. fa. sur municipal claim to rcover the cost of grading, curbing and paving Second Street, in front of the property of defendant in Cresson Borough, he filed an affidavit of defense averring that the ordinance directing the improvement did not receive, on final passage, the requisite number of votes; and claimed that this objection was available, despite chapter VII, article 1, section 9, of the General Borough Act of May 14, 1915, P. L. 312, 393, which provides that "Complaint may be made to the next court of quarter sessions. . . . . . by any person aggrieved in consequence of any ordinance, regulation, or act done or purporting to be done in virtue of this act, and the determination and order of the court thereon shall be conclusive." He did not allege that, in any other respect, the contract was invalid, or that the work had not been properly performed. The court below entered judgment for plaintiff, for want of a sufficient affidavit of defense, because, in its opinion, even if there was such a defect in the passage of the ordinance, it was cured by the Act of March 21, 1925, P. L. 60. From this judgment defendant now appeals.
He admits the legislature had power to pass that statute, there being no constitutional provision in the way, (see Swartz v. Carlisle Borough, 237 Pa. 473), but avers it has no applicability to this case, because, in terms, it is limited to ordinances which had been adopted prior to the passage of the act, while the present one had not. We agree with this contention, but it is unnecessary to pursue the subject, since we are of one mind that the Act of May 12, 1925, P. L. 575, does validate the action of the borough council, and renders each of the abutting properties, including defendant's, liable for a due proportion of the net cost of the improvement. That statute is in part as follows:
"Sect. 1. That whenever heretofore the council of any incorporated borough of this Commonwealth has . . . . . . caused to be graded, paved, curbed . . . . . . or otherwise *Page 292
improved any public street or thoroughfare . . . . . . or has by ordinance provided for the assessment against property owners of benefits for such improvement . . . . . . but owing to some defect in the petition, action of council, . . . . . or for any other reason the cost of such improvement . . . . . . cannot be legally assessed upon the property bounding or abutting upon the street, or . . . . . . payment thereof cannot be enforced as was contemplated by the act or acts of the General Assembly under which the improvement was attempted to be made, . . . . . . such improvements are made valid and binding and the council of such incorporated borough may cause the property bounding or abutting on the street . . . . . . to be assessed . . . . . . with such a portion of the cost of such improvement as is contemplated by the law under which the improvement was made . . . . . . and all such . . . . . . assessments made or determined are hereby ratified, confirmed and validated. Such assessment or other assessmentheretofore regularly made shall be a lien upon the property assessed. . . . . ." Section 2 of the act provides for the filing of a lien "within six months after the approval of this act when the improvement is now [then] completed."
The instant case is squarely within the terms of that statute, for the borough had caused the street to be "graded, paved [and] curbed"; had "provided for the assessment" against the property of defendant and the other abutting owners; but "payment thereof [could] not be enforced, as was contemplated by the . . . . . . [statutes] under which the improvement was attempted to be made." This being so, the act, in terms, says "such improvements are made valid and binding and . . . . . . assessments heretofore regularly made shall be a lien upon the property assessed," and shall continue to be so, if filed "within six months after the approval of this act," as was the case here. We hold, therefore, that this statute validated the present lien, and made it binding *Page 293
for whatever sum was legally chargeable against defendant's property.
It is urged, however, that Charleroi Boro. v. Bailey, 54 Pa. Super. 331, is authority against the conclusion thus reached. In that case, which was appealed after a jury trial, the Superior Court held that the Act of May 3, 1909, P. L. 383, did not aid the borough, because "the date of the assessment for which the lien is filed," was not averred in the claim, nor proved at the trial. That statute only validated assessments which had been made after its approval, and hence that date became important. The Act of 1925, however, also validates assessments made before its approval, as the present ones were, and specifically makes them "a lien upon the property assessed." Because of this the time of assessment is not a jurisdictional matter and is of little or no importance. Moreover section 5 of the present lien avers that the work was completed on the 20th day of November, 1924, and assessments for said work, or improvement, were estimated by the borough engineer and filed with the secretary of the borough upon the completion of said improvement," and this fact is expressly admitted in section 5 of the affidavit of defense, without any objection, there or elsewhere, because the date was not more definitely stated. Indeed, so far as the record shows, the objection was not made until defendant filed his supplemental brief in this court; the affidavit of defense is silent on the subject, and the original brief simply states that the Act of 1925 "is a clear-cut and comprehensive act under which this appellee borough could have acted, but did not." If the objection had been made earlier, plaintiff could have had the claim amended in the particular under consideration, as a matter of right, under the authority of section 34 of the Act of May 16, 1923, P. L. 207,224. Hence, to reverse on the ground of a lack of definiteness as to the time of the assessment, would be doing a wholly useless thing, for the amendment could be made on the *Page 294
return of the record, after which plaintiff could again move for and obtain judgment, since, with a definite date inserted in the claim, the Act of 1925 admittedly destroys the only defense interposed to plaintiff's right of recovery.
The only objection defendant makes regarding the amount of the assessment, grows out of the fact that Cambria County, under the authority of the amendatory Act of March 10, 1921, P. L. 26, contributed $13,000 to the cost of the improvement. He alleges that the limit of his liability is a due proportion of two-thirds of that cost, after deducting the sum stated, and bases his contention on chapter VI, article VII (e), section 9, clause V, of the General Borough Act: P. L. 1915, page 351. The later Act of May 17, 1921, P. L. 896, adds to that section a further clause, however, which provides that "where any street or highway in a borough . . . . . . is constructed or improved jointly by the borough and county, borough and state, or the borough, county and state, all or any part of the borough's share of the cost . . . . . . may be collected from the owners of the real estate abutting on the improvement." This necessarily means all or any part of the "share of the cost," which, but for the liability of the abutting properties, the borough would be compelled to pay. In the present case that was the outside limit, for which, under the ordinance, and by the assessment made in pursuance of it, the abutting properties could be liable. They were charged no more.
Defendant contends, however, that the Act of May 17, 1921, is inapplicable, because the borough alone contracted for and made the improvement, and therefore, he says, it was not "constructed or improved jointly by the borough and county." This is too narrow an interpretation of the statute. It was passed at the same session of the legislature and subsequently to the amendatory Act of March 10, 1921, P. L. 26, under the authority of which the county made the $13,000 contribution; and *Page 295
hence, since they deal with the same general subject, and it is reasonably possible to construe them together, this course must be adopted in determining the legislative intent: White v. Meadville, 177 Pa. 643; Buttorff v. York, 268 Pa. 143. An examination of the earlier statute shows that the contribution was to be made only "where the highway is to be improved jointly by the township or borough and county," after a petition by the township, or borough, which is to do the work, thus defining what is meant, in that statute, by a joint improvement; and, there being no compelling reason to the contrary, this definition must be applied to the similar language in the later statute, now under consideration.
We should reach the same conclusion, however, entirely aside from the rule stated. The purpose of the Act of May 17, 1921, supra, is remedial; it was passed to relieve boroughs of liability in cases where the abutting properties have been benefited to the extent of their relative proportion of the amount of the municipality's share, and hence it is "to be construed by giving the words [used] the largest, the fullest, and most extensive meaning of which they are [reasonably] susceptible. The object of this kind of statutes being to cure a weakness in the old law . . . . . . it is but reasonable to suppose the legislature intended to do so as effectually, broadly and completely, as the language used, when understood in its most extensive signification, would indicate": Pocono Spring Water Ice Co. v. American Ice Co., 214 Pa. 640, 648. Applying this principle, we decide that a street or highway is constructed or improved jointly," within the meaning of the Act of May 17, 1921, whenever the cost of the improvement is paid for by more than one of the public bodies named, although the borough alone contracted for the work. To hold otherwise would, in many instances, stop the improvement of such highways, because of the constitutional limitation on the amount of the borough's indebtedness. *Page 296
What we have said above disposes of all the matters referred to in either the statement of the questions involved or the brief of argument; and we are thus led to the same goal reached by the court below, though we get there by a somewhat different route.
The judgment of the court below is affirmed.
Mr. Justice FRAZER dissented. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3850830/ | Argued May 12, 1936.
This is an appeal from the order of the court below quashing a writ of replevin on the ground that a proper replevin bond had not been filed by appellant, plaintiff in the lower court. The writ issued on August 1, 1933, to recover certain ice-freezing machinery, and with the writ was filed a bond bearing appellant's corporate seal and the signature of its branch treasurer. On behalf of the surety, the bond was executed by two attorneys-in-fact, who filed therewith a copy of their power of attorney, certified to be authentic by a document bearing the corporate seal of the surety with the signature of its assistant secretary.
On November 6, 1933, appellees gave a counter-bond and retained possession of the machinery. In July of 1934, over eleven months after the issuance of the writ, appellees petitioned to quash the original writ of replevin upon the ground that appellant's bond was defective. This was denied, but an offer of a new bond was made which the court below allowed. After the new bond had been furnished, the court reopened the question and quashed the original writ. From this order an appeal has been taken. *Page 371
As one ground for its action, the court below held that the bond was invalid because at the time of the filing thereof, the surety did not have on record in the county a certificate from the insurance commissioner as provided in the Act of June 25, 1885, P. L. 181, section 1, as amended by the Act of June 29, 1923, P. L. 943, section 1. By section 8 of the Replevin Act of April 19, 1901, P. L. 88, the authority to approve or reject the security offered is, in the first instance, vested in the prothonotary, his judgment thereon being subject to revision by the court. The Act of 1885, as amended, does not make it a prerequisite to the exercise of the judgment of the prothonotary or the court, or to the validity of the bond, that the surety offering it have on record a certificate from the insurance commissioner. It leaves the approval of sureties to those having the power under existing laws, but provides that, where a surety has been approved by the insurance department of the State and has filed in the prothonotary's office of a particular county a certificate showing its authorization to become a surety, the certificate shall be conclusive proof of its qualifications. While, therefore, the filing of a certificate conclusively establishes the capacity of a surety to act as such, a prothonotary or court may still accept a bond executed by a responsible surety even though the latter does not have such certificate on file in the county. The court below wholly misapprehended the provisions of the statute. Here it appears that a certificate was filed within a month after this bond had been placed on record. In disqualifying the surety on this ground alone, and in holding that its bond was therefore invalid, the court below was in error.
The Replevin Act makes the filing of a validly executed bond a condition precedent to the issuance of a writ: See HuronLeather Co. Ltd. v. Sklar, 101 Pa. Super. 534. A replevin bond, by the terms of the act, is security for the value of the goods replevied and *Page 372
damages consequential upon their taking and for costs, if it is shown that plaintiff had no right or title to them. Primarily, however, such a bond is intended for the protection of the defendant to the extent of the value of the goods. When, as in this case, a defendant chooses to file a counter-bond, certainly the most important purpose of the plaintiff's bond disappears. A defendant has the option of proceeding to quash the writ if a bond is defective or invalid; he need not give a counter-bond to secure possession of the goods under those circumstances. On the quashing of the writ possession of the goods is restored to him. When, instead, the defendant chooses to file a counter-bond, and after a delay of eleven months seeks to quash the writ on the ground that the plaintiff's bond is defective, not only is his motion not timely made, but his repossession of the goods by the counter-bond effectively waives any defects in plaintiff's original bond. It has been so held in other jurisdictions: DuRant v. Brown Motor Co.,144 S.E. 705 (S.C.); Jones v. General Motors AcceptanceCorporation, 115 So. 201 (Miss.); Hudelson v. First NationalBank, 71 N.W. 304 (Neb.); Carraway v. Wallace, 17 So. 930, (Miss.). However, since the plaintiff's bond is also security to defendant for damages and costs, a bond of plaintiff is required in the replevin action. Notwithstanding that defendant has retained possession of the goods sought to be replevied by counter-bond, the bond of the plaintiff necessarily remains as security to defendant for his damages and costs incurred should he prevail in the action.
We find here, however, no satisfactory proof from which the court can conclude that appellant's original bond was not adequate. It showed that the corporate seal of appellant had been attached and was accompanied by the signature of a branch treasurer. The presence of a corporate seal is prima facie evidence of authority of the corporate officer to execute it on behalf of the corporation: Fletcher, Corporations, section 487, *Page 373
2471. See Tucker v. Erie N.E. R. R. Co., 27 Pa. 281; LittleSaw Mill Valley Turnpike v. Federal Street Passenger Ry. Co.,194 Pa. 144. On behalf of the surety it was executed by two attorneys-in-fact, whose authority was shown by a copy of the power of attorney certified under the corporate seal by an officer of the surety company. There is no requirement in the Replevin Act or in any other statute that the original power of attorney to execute bonds shall be filed of record. If there were any doubts either as to the authority of appellant's officer or of the two attorneys-in-fact, the court should have heard evidence to determine this matter. Lack of authority to execute the bonds should have been proven to warrant the quashing of the writ.
The order of the court below is reversed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3850832/ | Argued December 3, 1936.
This is a suit against the maker of a promissory note; liability is denied on the ground that the note was delivered conditionally and the condition was not fulfilled, or, as we consider it, that there was failure of consideration. The note was given to The First National Bank of Bangor, the legal plaintiff, for convenience hereafter referred to as the old bank, and passed by assignment to the use plaintiff, First National Bank in Bangor, called the new bank.
In 1931, the Comptroller of the Currency discovered that the capital of the old bank was seriously impaired and notified the directors that it must be made good. The alternative was liquidation. The directors considered the problem, and finally evolved a plan intended to save the bank by contributions to be made by certain directors and stockholders. The plan was not carried out in its entirety because some who were supposed to contribute defaulted.
Defendant became a director in the fall of 1931. The president shortly afterward informed him that "we had *Page 120
certain securities that were not good and if not taken up the capital of the bank would be impaired"; later, at a board meeting held January 26, 1932, the president said that "if the different members of the board and certain stockholders took out notes to the amount of $9,000 each the impairment of the Bank's capital and the impairment of the Bank's stock would be avoided. Q. What did you say in answer to what Mr. Abel [president] said? A. I said if the rest do I will; . . ." It was also testified that he said "I'll go along for $9,000. . . ."
On March 22, 1932, an agreement was signed by eleven out of fifteen of the parties, who, defendant understood, would sign it. The purpose was to agree upon a plan and provide for restoring the capital. Paragraph 1 provides that each party "being owner of certain securities, does hereby assign, transfer, and set over those securities unto Asher G. Abel, Trustee" upon a trust stated in the agreement. These securities, as we understand the record, were the old bank's property which the Comptroller or his representative had determined to be insufficient as capital investments. A list describing them was made part of the agreement. To make the transfer possible, we understand (though the record leaves this to implication) that these securities became or were treated as the property of the parties to the contract of March 22nd, becoming part of the consideration moving from the bank for the obligations to be assumed by the participating directors to carry out the plan. Other provisions need not now be stated. The next day defendant gave his note for $9,000 payable to the order of the old bank. At various times thereafter, others (though not all) gave notes, and, in some cases, for less than the $9,000 preliminarily agreed upon. These notes were discounted by the old bank;1 it gave *Page 121
consideration by discounting them, and also by transferring the questioned capital investment; the maker's account was credited with the proceeds and he immediately drew his own check for the same amount to the order of the bank or of Abel, as trustee. The agreement provided that each contributor should receive from the trustee a certificate of participation showing his interest in the "pooled" assets, as they are termed in the brief. Such certificates were issued and were also assigned to the bank as collateral. In this way the bank was put in funds for capital reserve account and if all had made their notes the amount contributed would have been $135,000. Instead, the total amount of notes received and discounted was $88,800. The bank continued until it was closed pursuant to the President's Proclamation, March 4, 1933. It opened later on a restricted basis with Abel, who had been president, as conservator. He acted in that capacity until the old bank's assets, or such of them as were desired, were sold to the new bank organized in May, 1934. Defendant remained a director of the old bank until it closed, attended meetings and participated in the conduct of its business.
As director and stockholder, defendant stood to lose by the liquidation of the bank. He was therefore interested in having as many as possible of the other directors and stockholders contribute to restore the capital. His real grievance is that the refusal of some resulted in a smaller total contribution than would have been made if all had contributed as he expected. For present purposes, we may assume that as to him there was failure of consideration, though much may be said against the assumption. It is also unnecessary to deal with the parol evidence rule discussed by counsel. We all think *Page 122
that defendant is estopped by his conduct from March 22, 1932, to May 1, 1934, from now asserting the defense of failure of consideration, or any other suggested on his behalf. The evidence of this estoppel appears in his own testimony and in the admitted documentary evidence. To this we shall now refer in the order in which the events occurred.
(a) From time to time after the date of the agreement, March 22, 1932, Abel, the trustee, credited defendant's account in the bank with credits due to him, at the specified proportional rate on which the trustee realized from the pooled assets. As late as April, 1934, defendant drew his own check in payment of interest on the note.
(b) On March 29, 1932, defendant, with others, signed a letter, the result of discussion at a directors' meeting, to the Deputy Comptroller of the Currency stating that "To date various directors of this institution have paid into a special fund for the purpose of eliminating from the Bank certain defaulted securities, the sum of $63,000. It is planned to increase this fund to approximately $120,000 in the near future and use this fund for the purpose of purchasing from the bank certain securities now in default and certain securities which show a decided depreciation in market value. To date securities of this nature carried on our books at $43,072.50 have been entirely eliminated from the Bank's bond account." The letter, after stating how it was proposed to deal with the situation, continues: "We shall be pleased to have your reaction on this policy as stated in the preceding paragraphs of this letter and beg to renew our previous promises — that we shall use our best endeavors to place the Bank in a position that will merit the approval of your Department." Defendant was present at the board meeting and testified that when he signed the letter he knew "exactly how many people had given notes," and that "not all the people mentioned in the caption of the agreement" had given notes, *Page 123
and that the letter was written "for the purpose of showing to him [the Comptroller] that $63,000 of notes had been given." Not a word did defendant say to the Comptroller that would indicate that his note was not intended to be the absolute obligation it purported to be by its written terms. The minutes of the board reciting the discount of defendant's and other directors' notes without condition, were approved at subsequent meetings in which defendant participated.
(c) On May 31, 1932, defendant was appointed a member of a director's committee to examine the bank's condition and to report the same pursuant to the requirements of the federal law.2 Section 5211 of the Revised Statutes as amended,12 USCA 161, contains the following: "Each such report shall exhibit, in detail and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him [the Comptroller] specified. . . ." Beck was present during the examination; no information was refused to him; he signed a report including among the assets his note as well as the other notes discounted to carry out the plan. Asked why he did that, if the report did not represent the fact as respects his note, he said: "I, not knowing anything about banking, just went along with the rest. . . . Well, I stood back and looked on." Asked whether he read the report he replied: "Surely, about as much as the rest of them did." This examination of the condition of the bank occupied the time from May 31 to June 2 and gave opportunity for complete knowledge of the status of the transaction in which the note was given.3
Asked about *Page 124
performing his statutory duty as a member of the committee he said, ". . . it was sadly neglected. . . . I being a 'green horn' at that kind of business I didn't go into detail with it." He was asked, "Q. Still you were inviting deposits of people such as the laborers, the servant girls and the people in and about Bangor, upon that kind of performance of duty, weren't you? A. Yes, sir."
(d) On December 31, 1932, he again signed and swore to the accuracy of another such report.
(e) On a date in February or on March 4, 1933, defendant, with others, signed a statement certifying that an account prepared by Abel, as trustee, was correct and releasing him from further liability as trustee under the agreement of March 22, 1932. This, too, he says he did without knowing the effect of what he signed, though he would have learned, if he had examined the record of the transaction, that some of those that he thought would sign the agreement had never done so, and had given no notes and that others had given notes in amounts less than $9,000.
The Comptroller of the Currency was not informed that defendant's contribution to the restoration of the reserve was not an absolute obligation as it appeared to be. It was the Comptroller whom defendant and his associates were asking to stay liquidation of their bank upon the faith of their contributions. The law required the Comptroller to liquidate the bank unless the capital was made good. If they had not contributed, the bank would have been liquidated long before it was. The *Page 125
Comptroller acted on the representations made to him. We are not dealing with a transaction between contributing and non-contributing parties alone;4 their negotiations among themselves as directors and stockholders were mere preliminaries to the accomplishment of the object for which all were working; it was to comply with the law that the impaired capital had been restored. No conditions they might wish to impose on each other during those negotiations could encumber their contributions without notice to and assent by the Comptroller who was administering the law. It is immaterial, in this suit, that the president of the bank knew, as defendant testified, that before executing the note and the contract, defendant said he would contribute if the others did. In the circumstances, the president of the bank had no authority to accept anything less than defendant's absolute obligation(Bangor Trust Co. v. Christine, 297 Pa. 64, 146 A. 545) and the minutes of the board at which the discount was authorized show nothing less. The effect, of course, is that the old bank, the legal plaintiff, held the note free from the defense interposed: Bangor Trust Co. v. Christine, 297 Pa. 64, and cases cited page 67, 146 A. 545. The new bank, the use plaintiff, in purchasing it with other assets of the old bank, likewise received by assignment an absolute obligation and is therefore also entitled to enforce payment.
Referring back now to the reports to the Comptroller attested by defendant (paragraphs (c) and (d) above) it will be noted that if defendant's note was not then good, for the reason he now gives, the reports signed by him were false. Damages sustained in consequence of false report of the condition of a National Bank may be recovered in an action of tort: Thomas v.Taylor,5 *Page 126 224 U.S. 73; Jones National Bank v. Yates, 240 U.S. 541.
The Act of September 26, 1918, R.S. section 5209, c. 177, section 7, 40 Stat. 972, 12 USCA 592, makes it a misdemeanor for a director "with intent in any case . . . to deceive . . . the Comptroller of the Currency . . ." to make false entries in a report of the condition of the bank. As the report required a statement "in detail under appropriate heads, [of] the resources . . ." we assume (the report is not printed in full in the record) that defendant's note was carried as the asset that it purports to be; if, as defendant now says, he was not liable on it, the report was false: see U.S. v. Adams,281 U.S. 202, 204; Hargreaves v. U.S., (C.C.A. 9th) 75 F.2d 68, 71.
Defendant joined in representing to the Comptroller that certain facts existed; the representation was made to obtain his approval of the restoration of capital and allowing the bank to continue. The report as published made the same misrepresentation to the public. The Comptroller, unadvised of the condition upon which the defense is now based, adopted defendant's statement or representation of facts as unconditional and permitted the defendant and his associates to continue operating *Page 127
the bank. Having made such representation of facts, obtained action on the faith of their existence, the principles of estoppel prohibit the defendant from now saying that the facts were not as he represented them to be: State Bank of Pittsburgv. Kirk, 216 Pa. 452, 65 A. 932; Prudential Trust Co. v. Moore,245 Mass. 311, 139 N.E. 645. See Warren National Bank v.Jamieson, 301 Pa. 45, 151 A. 672; Bangor Trust Co. v.Christine, 297 Pa. 64, 146 A. 545; First National Bank ofHooversville v. Sagerson, 283 Pa. 406, 129 A. 333; Lyons v.Benney, 230 Pa. 117, 79 A. 250; People's Bank of Calif. v.Stroud, 223 Pa. 33, 72 A. 341.
Plaintiff's point for binding instructions should have been affirmed. The judgment is reversed and the record is remitted for the entry of judgment for the amount due with interest.
1 At a meeting of the board of directors on March 29, 1932, at which the defendant was present, it was resolved that the notes of nine of the directors, each for $9,000, be discounted and the proceeds credited subject to reserve requirements. Although Beck's note had in fact been discounted March 23, the resolution included it with the others. Nothing in the minutes indicates that the notes were to be given subject to any condition such as defendant asserted in defense.
2 R.S. section 5211 as amended, 12 USCA 161.
3 The report of the Committee contains the following: "The collateral held by the Bank as security on the various notes was verified and found to be correct with the records of the collateral ledger. Stock certificates were examined as to assignment and powers of attorney and found to be complete. All mortgage loans were checked as to the amount of fire insurance pledged with the mortgages and the note proof of the last trial balance was verified and found to be correct in accordance with the general ledger. The securities owned by the Bank were verified by examining those on hand with the receipts held by the Bank from our City Correspondents. The securities held by the Bank for safe-keeping and against which our customers held receipts were verified and found to be correct. The balance of various corresponding banks were checked and verified with the reconcilement ledger and found to be correct. The past due notes, as well as the notes in the process of collection were reviewed and verified.
4 Which distinguishes Riday's Estate, 317 Pa. 529, 177 A. 812, cited on defendant's behalf.
5 In connection with the quotations from the defendant's testimony describing what he did or omitted to do in ascertaining the truth of the reports attested by him, the following quotation from Thomas v. Taylor, supra, may be pertinent: "There is 'in effect' an intentional violation of a statute when one deliberately refuses to examine that which it is his duty to examine. And such was the conduct of plaintiffs in error in this case. They had notice from the Comptroller of the Currency that $194,000 of the items counted as assets of the bank were doubtful and should be collected or charged off. This 'was a direct warning to them,' as the trial court said, 'by the bank examiner and Comptroller that assets to nearly twice the amount of the capital stock were considered doubtful.' They, notwithstanding, represented the assets to be good. Such disregard of the direction of the officers appointed by the law to examine the affairs of the bank is a violation of the law. Their directions must be observed. Their function and authority cannot be preserved otherwise and be exercised to save the banks from disaster and the public who deal with them and support them from deception." | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2620755/ | 383 U.S. 575 (1966)
COUNTY BOARD OF ELECTION OF MONROE COUNTY, NEW YORK, ET AL.
v.
UNITED STATES.
No. 1040.
Supreme Court of United States.
Decided March 21, 1966.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK.
Louis J. Lefkowitz, Attorney General of New York, Jean M. Coon, Assistant Attorney General, Ruth Kessler Toch, Acting Solicitor General, and William A. Stevens for appellants.
Solicitor General Marshall for the United States.
PER CURIAM.
The appeal is dismissed for want of jurisdiction. Swift & Co. v. Wickham, 382 U.S. 111; Pennsylvania Public Utility Commission v. Pennsylvania Railroad Co., 382 U.S. 281. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3854598/ | Argued March 8, 1939.
This case is governed in principle by the decision of the Supreme Court in Dando v. Brobst et al., 318 Pa. 325, 177 A. 831, which reversed judgments in favor of the plaintiff, under very similar circumstances, and entered judgment for the defendants.
The decision was based on the legal principle laid down in the case of Carroll v. Penna. R. Co., 12 W.N.C. 348, 349, where the Supreme Court said: "It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive."
The same thing may be said of one who walks directly in front of a plainly visible approaching automobile, which is so close at hand that it hit him before he could take one step back.
Judgment affirmed. *Page 181 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2686052/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1238
In re: GREG P. GIVENS,
Petitioner.
On Petition for Extraordinary Writ.
(No. 5:12-cv-00155-FPS-JES)
Submitted: July 24, 2014 Decided: July 28, 2014
Before FLOYD and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Greg P. Givens, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Greg P. Givens petitions for a writ of procedendo,
which has been docketed as a petition for an extraordinary writ.
We conclude that relief is not warranted. Accordingly, we grant
Givens’ motion to proceed in forma pauperis, grant his motion to
file electronic media, deny his motion to carry a recording
device into the courtroom, and deny the petition. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DENIED
2 | 01-03-2023 | 07-29-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1088031/ | 355 U.S. 270 (1957)
RAILWAY EXPRESS AGENCY, INC.,
v.
UNITED STATES ET AL.
No. 557.
Supreme Court of United States.
Decided December 16, 1957.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
R. J. Fletcher, R. E. Johnson and James V. Lione for appellant.
Solicitor General Rankin, Assistant Attorney General Hansen, Robert W. Ginnane and H. Neil Garson for the United States and the Interstate Commerce Commission, and Bernard G. Segal, Irving R. Segal and S. Harrison Kahn for the United Parcel Service, Inc., appellees.
PER CURIAM.
The motions to affirm are granted and the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1157199/ | 376 U.S. 779 (1964)
J. B. ACTON, INC.,
v.
UNITED STATES ET AL.
No. 726.
Supreme Court of United States.
Decided April 6, 1964.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI.
James W. Wrape, Robert E. Joyner and Harold G. Hernly for appellant.
Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Robert W. Ginnane and Francis A. Silver for the United States et al.
PER CURIAM.
The motion to affirm is granted and the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4239140/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
TODD STERLING TRACY, Petitioner.
No. 1 CA-CR 17-0325 PRPC
FILED 1-25-2018
Petition for Review from the Superior Court in Mohave County
No. S8015CR201201255
The Honorable Steven F. Conn, Judge (Retired)
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent
Todd Sterling Tracy, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop, Judge Jennifer B. Campbell, and
Judge Paul J. McMurdie delivered the decision of the Court.
STATE v. TRACY
Decision of the Court
PER CURIAM:
¶1 Petitioner Todd Sterling Tracy seeks review of the superior
court’s order denying his petition for post-conviction relief, filed pursuant
to Arizona Rule of Criminal Procedure 32.1. This is petitioner’s first
petition.
¶2 Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for post-conviction
relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is petitioner’s
burden to show that the superior court abused its discretion by denying
the petition for post-conviction relief. See State v. Poblete, 227 Ariz. 537,
538, ¶ 1 (App. 2011) (petitioner has burden of establishing abuse of
discretion on review).
¶3 We have reviewed the record in this matter, the superior
court’s order denying the petition for post-conviction relief, and the
petition for review. We find that petitioner has not established an abuse
of discretion.
¶4 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 | 01-03-2023 | 01-25-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1913714/ | 182 Wis.2d 436 (1994)
513 N.W.2d 673
CITY OF RIVER FALLS, Plaintiff-Respondent,[]
v.
ST. BRIDGET'S CATHOLIC CHURCH OF RIVER FALLS, Defendant-Appellant.
No. 93-2637.
Court of Appeals of Wisconsin.
Submitted on briefs January 31, 1994.
Decided February 15, 1994.
*438 For the defendant-appellant the cause was submitted on the briefs of Edward W. Matchett of Davison & Vlack of River Falls.
For the plaintiff-respondent the cause was submitted on the brief of Steven B. Goff of Bye, Krueger & Goff, S.C., of River Falls.
For the the State of Wisconsin an amicus curiae brief was submitted by James E. Doyle, attorney general, and Alan Lee, assistant attorney general.
Before Cane, P.J., LaRocque and Myse, JJ.
MYSE, J.
St. Bridget's Catholic Church of River Falls appeals a judgment ordering it to pay to the City of River Falls charges associated with the cost of providing water for public fire protection (PFP) under § 196.03(3)(b), STATS.[1] The church contends that the *439 trial court erred by concluding that § 196.03(3)(b) imposes a fee and not an unconstitutional tax on otherwise tax exempt properties. The church argues that PFP charges under § 196.03 constitute a tax because the primary purpose and effect of the charge is to raise revenue and not to collect charges for services rendered. The church further argues that allowing the city to assess a PFP charge on the church under § 196.03 results in the church's property being partially exempt and taxed without uniformity, in violation of the uniformity clause of Art. VIII, § 1 of the Wisconsin Constitution. Because we conclude that the PFP charge is a fee and not a tax, we affirm the judgment.
The relevant facts are undisputed. The city provides water services as a public utility under § 196.01, STATS. Among the services the city provides is water production, storage and transmission for public fire protection. Prior to the enactment of § 196.03(3)(b), the city paid for the expenses of providing water for public fire protection out of general property tax revenues under ch. 70, STATS. After § 196.03(3)(b) was enacted, the city elected to collect PFP charges as part of each utility customer's water bill. In 1989, the Public Service Commission approved two methods of apportioning the cost of providing water for public fire protection. One method the PSC approved is to calculate the amount of PFP charge each customer pays according to the customer's property value. The city uses this method to calculate the amount of PFP charge each customer pays. Since January 1990, the city has included a PFP charge in all city water utility bills.
The church sent a letter to the PSC "Requesting a Public Hearing on (PFP) 196.03." The PSC responded, *440 explaining that the city was authorized by § 196.03(3)(b), STATS., and the PSC's 1989 order to assess PFP charges on utility customers according to the customers' property values. The PSC advised the church that concerns about being assessed a PFP charge and the timing of implementation should be raised before the city's common council. The PSC noted that it could not address these issues because the statute expressly granted the city authority to assess utility customers a PFP charge. The PSC also advised the church that it could request a formal review of the city's rates if it desired.
The church refused to pay the PFP charge, claiming that § 196.03(3)(b), STATS., is unconstitutional. The city subsequently filed a complaint with the trial court seeking a declaration that § 196.03(3)(b) is constitutional and a judgment ordering the church to pay the PFP charge. The trial court concluded that § 196.03(3)(b) is constitutional because the PFP charge is a fee, not a tax. The trial court noted that (1) the charge could be imposed by either a public or a private water utility, (2) the city imposed the charge in its capacity as a utility to pay its operational expenses, not as a municipality to collect revenue and (3) nonpayment of the charge does not result in a lien on the customer's property.
Section 196.03(3)(b), STATS., provides in part:
In the case of a public utility furnishing water, the retail charges for the production, storage, transmission, sale and delivery or furnishing of water for public fire protection purposes not included in general service charges shall be included in the water utility bill of each customer of the public utility in a city ... unless the governing body of that city ... adopts a resolution providing that the city ... will *441 pay those charges to the public utility furnishing the water.
[1-4]
Whether a statute is constitutional is a question of law that we determine independently of the trial court. Phillips v. WPC, 167 Wis. 2d 205, 224, 482 N.W.2d 121, 128 (Ct. App. 1992). Statutes "carry a heavy presumption of constitutionality and the challenger has the burden of proving unconstitutionality beyond a reasonable doubt." Id. (Citation omitted.) If doubt exists as to a statute's constitutionality, it must be resolved in favor of constitutionality. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 45-46, 205 N.W.2d 784, 792 (1973). Moreover, if any reasonable basis exists upon which a statute may be found constitutional, we must presume the legislature enacted the statute on that basis. Id. at 46, 205 N.W.2d at 793 (citation omitted). A statute should be found constitutional if at all possible. Id. at 47, 205 N.W.2d at 793.
The church contends that § 196.03(3)(b), STATS., is unconstitutional because it authorizes a partial tax on tax-exempt organizations. We therefore must first determine whether the PFP charge is a tax imposed on property owners or a fee assessed for services provided to utility customers.
[5]
A tax is an enforcement of proportional contributions from persons and property, imposed by a state or municipality in its governmental capacity for the support of its government and its public needs. Buse v. Smith, 74 Wis. 2d 550, 575, 247 N.W.2d 141, 153 (1976). Our supreme court explained the difference between taxes and fees: the primary purpose of a tax is to obtain revenue for the government, while the primary purpose of a fee is to cover the expense of *442 providing a service or of regulation and supervision of certain activities. State v. Jackman, 60 Wis. 2d 700, 707, 211 N.W.2d 480, 485 (1973).
The church concedes that a municipality that furnishes water and collects charges for furnishing that water is acting in its proprietary capacity as a public utility. The church also concedes that such a charge is a fee assessed for services rendered to utility customers. The church argues, however, that the PFP charge is not based on services rendered to utility customers, but is a mechanism for collecting revenue to pay for the cost of providing public fire protection. The church asserts that when a municipality provides adequate water and water storage for public fire protection purposes, it is acting in its governmental capacity, just as when a municipality provides fire trucks for public fire protection purposes. The church notes that the PFP charge is assessed regardless of whether the utility customer actually used water to fight a fire. Thus, the church concludes, the PFP charge is not a fee for services rendered, but is a tax.
Our supreme court stated in Milwaukee v. Milwaukee & Suburban Transp. Corp., 6 Wis. 2d 299, 305, 94 N.W.2d 584, 588 (1959), that "[t]he substance, and not the form, of the imposition is the test of its true character." The church's argument incorrectly assumes that to be a fee, a charge must be assessed for commodities actually consumed. As we previously stated, if the primary purpose of a charge is to cover the expense of providing services, supervision or regulation, the charge is a fee and not a tax. Jackman, 60 Wis. 2d at 707, 211 N.W.2d at 485.
[6]
Here, the purpose of the PFP charge is to cover the public utility's expense of making water available, storing *443 the water and ensuring that water will be delivered in case it is needed to fight fires at the utility customers' properties. Making water available, storing it and ensuring its delivery is a proprietary function, not a governmental function. The city is assessing the PFP charge in its role as the proprietor of the public utility and not in its role as a municipality providing equipment needed to fight fires. The fact that a municipality is assessing the PFP charge, rather than a private utility, does not itself render the charge a tax collected by a government. Nor does the fact that the amount of PFP charge assessed is computed according to the customer's property value itself render the charge a tax. Because the purpose of the PFP charge is to cover the public utility's expense of making water available, storing the water and ensuring that water will be delivered in case it is needed to fight fires at the utility customers' properties, its substance is consistent with a fee, not a tax.
[7]
Furthermore, the PFP charge authorized under § 196.03(3)(b), STATS., lacks some of the common characteristics of a tax. We note that the legislature did not designate § 196.03 as a tax statute, and its administration is not an integral part of the property taxing process. See State ex rel. La Follette v. Torphy, 85 Wis. 2d 94, 104-05, 270 N.W.2d 187, 191 (1978). In addition, unlike property taxes and assessments, nonpayment of the PFP charge does not result in a lien on the utility customer's land. See De Pere v. PSC, 266 Wis. 319, 326-27, 63 N.W.2d 764, 769 (1954). The fact that the PFP charge lacks some of the common characteristics of a tax supports our conclusion that the PFP charge is a fee and not a tax.
*444 [8]
Because we conclude that the PFP charge is a fee and not a tax, the church's constitutional challenge to § 196.03(3)(b), STATS., must fail. We therefore need not address the other issues the church raises. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983). We note, however, that there is some confusion whether the church also seeks to challenge the PSC's order authorizing municipalities to compute the amount of PFP charge assessed to each utility customer based upon the value of the customer's property. If the church seeks to challenge the PSC's order, it must proceed under ch. 227, STATS. See § 196.41, STATS. Therefore we consider this issue only to the extent that it is argued to be indicative of a tax. As we previously noted, because the PFP charge's administration is not an integral part of the property taxing process, the fact that the charge is calculated according to property value does not render the charge a tax.
By the Court.Judgment affirmed.
NOTES
[] Petition to review denied.
[1] For ease in discussion, we will refer to the charges associated with the cost of providing water for public fire protection under § 196.03(3)(b), STATS., as "PFP charges." These charges do not encompass costs associated with operating and maintaining a fire department or any other costs not associated with the production, storage, transmission, sale and delivery or furnishing of water for public fire protection purposes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3522936/ | This is an action upon a surety bond, wherein respondent Wipke is principal and respondent Reserve Mutual Casualty Company, a corporation, is surety given under the provisions of the Liquor Control Act of Missouri (Laws of Missouri, Extra Session, 1933-34, page 77, and amendments thereto). A judgment of the Circuit Court of St. Louis County was made in favor of respondents and from that judgment appellant has duly appealed to this Court.
The case was tried below on an agreed statement of facts. Wipke, holding only a five per cent liquor license, sold one drink of whiskey to an inspector for the Supervisor of Liquor Control, in violation of the Liquor Control Act. The sole question involved is whether or not the State may recover the full penalty of the bond without proving that it was damaged as a result of the principal's breach of the bond.
The conditions of the bond in question as executed by the respondents to the Supervisor of Liquor Control are as follows:
"Now, Therefore, The Condition of This Obligation is Such, That, if the said Principal does not violate any of the provisions of Committee Substitute for Senate Bills Nos. 6, 21, 22, 23, 24 and 25, passed by the 57th General Assembly in Extra Session, and any acts amendatory thereto, or any rule or regulation of the Supervisor of Liquor Control; and if said Principal shall at all times keep an orderly house and does not sell, give away, or otherwise dispose of, or suffer the same to be done about his premises, any intoxicating *Page 289
liquor in any quantity to any minor; and if said Principal shall pay all taxes, inspection and license fees provided for by law, together with all fines, penalties and forfeitures which may be adjudged against the Principal under the Liquor Control Act and amendatory acts thereto; and if said Principal shall faithfully perform all duties imposed upon him by law, then this obligation shall be null and void; otherwise to remain in full force and effect; provided, the enumeration of the foregoing specific provisions shall not be considered as limiting or affecting in any way the foregoing general provisions; provided, further, that a breach of any of the conditions of said bond, whether general or special, shall work a forfeiture of said bond."
There are two sections of the Liquor Control Act which provide for bond to be given by liquor dealers, Section 13-a and Section 19. It is the contention of the appellant that the bond in question is governed by Section 13-a, which is as follows:
"Any person who possesses the qualifications required by this act, and who meets the requirements of and complies with the provisions of this act, and the ordinances, rules and regulations of the incorporated city in which such licensee proposes to operate his business, may apply for and the Supervisor of Liquor Control may issue a license to sell intoxicating liquor, as in this act defined, by the drink at retail for consumption on the premises described in the application. Provided, that no license shall be issued for the sale of intoxicating liquor, other than malt liquor containing alcohol not in excess of five (5%) per cent by weight, by the drink at retail for consumption on the premises where sold, in any incorporated city having a population of less than Twenty Thousand (20,000) inhabitants, until the sale of such intoxicating liquor, by the drink at retail for consumption on the premises where sold, shall have been authorized by a vote of the majority of the qualified voters of said city. Such authority to be determined by an election to be held in said cities having a population of less than twenty thousand (20,000) inhabitants, under the provisions and methods set out in this act. The population of said cities to be determined by the last census of the United States completed before the holding of said election. Provided further, that for the purpose of this act, the term `city' shall be construed to mean any municipal corporation having a population of five hundred (500) inhabitants or more. Provided further, that no license shall be issued for the sale of intoxicating liquor, other than malt liquor containing alcohol not in excess of five (5%) per cent by weight, by the drink at retail for consumption on the premises where sold, outside the limits of such incorporated cities. In each instance, a bond in the sum of two thousand ($2,000.00) dollars, with sufficient surety, to be approved by the Supervisor of Liquor Control, must be given for the faithful performance of all duties imposed by law upon the licensee, and for the faithful performance of all the *Page 290
requirements of this act, and any violation of such conditions, duties or requirements shall be a breach of said bond and shall automatically cancel and forfeit the license granted hereunder;provided, that no person financially interested in the sale of intoxicating liquor at wholesale shall be accepted as surety on any such bond."
On the other hand, the respondents contend that Section 13-a and Section 19 both govern in the granting of the license to Wipke, and that it was proper for the bond to contain not only the conditions required by Section 13-a, but also the conditions required by Section 19. The latter section reads:
"Application for license to manufacture or sell intoxicating liquor, under the provisions of this act, shall be made to the Supervisor of Liquor Control. Before any application for license shall be approved the Supervisor of Liquor Control shall require of the applicant a bond, to be given to the state, in the sum of Two Thousand Dollars, with sufficient surety, such bond to be approved by the Supervisor of Liquor Control, conditioned that the person obtaining such license shall keep at all times an orderly house, and that he will not sell, give away or otherwise dispose of, or suffer the same to be done about his premises, any intoxicating liquor in any quantity to any minor, and conditioned that he will not violate any of the provisions of this act and that he will pay all taxes, inspection and license fees provided for herein, together with all fines, penalties and forfeitures which may be adjudged against him under the provisions of this act."
[1] It is a cardinal rule of construction that every word, clause, sentence and section of an act must be given some meaning unless it is in conflict with the legislative intent. [Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620, 104 A.L.R. 339; State ex rel. Kansas City Power Light Co. v. Smith, 342 Mo. 75,111 S.W.2d 513.] Respondents rely upon this rule and cite cases of State ex rel. Dean v. Daues, 321 Mo. 1126,14 S.W.2d 990; Johnson v. Kruckemeyer, 224 Mo. App. 351, 29 S.W.2d 730.
[2] With this rule in mind, we cannot agree with respondents that Section 13-a must be construed with Section 19. To uphold the respondents, we would have to presume that the Legislature did a useless thing in passing the paragraph dealing with the bond required in Section 13-a. The only condition of the bond required by that section is "the faithful performance of all duties imposed by law upon the licensee, and for the faithful performance of all the requirements of this act," while one of the conditions of the bond required in Section 19 is that the licensee "will not violate any of the provisions of this act." In other words, the conditions of the bond, as contended by respondents, could easily have been covered by Section 19, and the requirements set forth in Section 13-a would have been unnecessary. The Legislature enacted both Sections 13-a and 19 in one bill and it should not be said that the Legislature intended *Page 291
that the two sections of the act should mean one and the same thing. [Cohn et al., v. St. Louis, I.M. S. Railroad Co.,151 Mo. App. 661, 133 S.W. 59.]
By giving effect to every word, clause and sentence in this act which refers to the bond, we come to the conclusion that a license for the sale of liquor by the drink does not come under the provisions of Section 19. There would be no need for a bond that secured the license fee because Section 22 (Laws of Missouri, 1935, page 274) requires that before the license is issued the fee must be paid. Nor could the requirement of this section that the bond be security for taxes stand because Section 30-d (Laws of Missouri, 1937, page 534) requires that any persons holding a retail liquor license must purchase liquor from a duly licensed wholesale liquor dealer who must pay the tax under the provisions of Section 21-a-1 (Laws of Missouri, 1937, page 531). We do not agree with the respondent that the clause, "that the person obtaining such license shall keep at all times an orderly house," could apply solely to a dealer who sells by the drink. Section 22 (Laws of Missouri, 1935, page 274) authorizes a merchant who has at least $1000 in stock of merchandise, exclusive of liquor, to sell at retail liquor in the original package, and he too must keep an orderly house at all times. However, we conclude that the Legislature presumed that if a person went into a place of business where liquor was sold by the drink that he would not be shocked to find persons who were under the influence of intoxicating liquor, but if he went into a drug store or a grocery store he would certainly not expect to find such conditions existent. [3] "The question of the control and regulation of the liquor traffic is one that calls for and has received the careful consideration of the Legislature. Arguments as to the wisdom of the measures adopted address themselves to the lawmaking body, not to the courts." [State v. Kennedy,343 Mo. 786, 123 S.W.2d 118, l.c. 122.] Nor are we impressed with the argument of respondents that the clause, "and that he will not sell, give away or otherwise dispose of, or suffer the same to be done about his premises, any intoxicating liquor in any quantity to any minor," applies only to a liquor dealer who sells by the drink. We think it could apply equally to a dealer who sells in the original package, or even to a wholesaler or manufacturer. We also think that the clause that he will pay "all fines, penalties and forfeitures" could apply to wholesaler, wholesaler's agent, manufacturer and original package dealer as well as a dealer who sells by the drink.
[4] We have come to the conclusion that the provisions in Section 13-a apply only to a dealer who sells by the drink, and that Section 19 applies to the manufacturer, the wholesaler, the wholesaler's agent, and the person who sells only in the original package.
Respondents in their brief say, "It is a well-settled rule, as pointed out under point IV of appellant's brief, that where a bond is given in pursuance of a statute, courts will, in enforcing the bond, read into *Page 292
it the terms of the statute which have been omitted, and will likewise read out of it terms included in it that are not authorized by the statute." This is undoubtedly a correct statement of the law. [See 11 C.J.S. 420; Woods v. State ex rel. Rainey, 10 Mo. 698; Rubelman Hardware Co. v. Greve,18 Mo. App. 6.]
Having already reached the conclusion that the bond in question is governed solely by the provisions of Section 13-a, we must read out of the bond all conditions which do not comply with that section, which section provides "for the faithful performance of all duties imposed by law upon the licensee, and for the faithful performance of all the requirements of this act." Therefore, the only condition in a bond under this section would be for faithful observance of the law and nothing more.
[5] The question which then arises is: Where the condition of such bond is breached, is it incumbent upon the State to prove actual damage, or is the State entitled to recover the full amount of the bond merely by showing a breach thereof? Stated otherwise, is the bond an indemnity bond or a forfeiture bond?
In 11 Corpus Juris Secundum, page 510, we find:
"Where a statute requires the execution of a bond to the state, or to the United States, for a fixed penalty, conditioned for a compliance with the laws in the respects named therein, the penalty named in the bond is the measure of damages for its breach, or rather is a punishment inflicted by the sovereign for the violation of a pledge to observe its law, unless the statute under which the bond is given or the bond itself, read in the light of the statute, indicates a less or different measure."
In the case of City of Paducah v. Jones, 104 S.W. 971, l.c. 975, the Court of Appeals of Kentucky said:
"The license is not a right that the applicant may demand and have for the asking. It is a mere privilege that the authorities may or may not give in their discretion. It cannot be successfully maintained that the requirement of the execution of a bond that the licensee will observe the law is an unreasonable condition. On the contrary, it is not only a reasonable, but a proper, condition, the imposition of which exercises a restraining influence and has a tendency to compel an observance of the law. The licensee who intends to obey the law cannot object to giving surety for his good behavior, while the applicant who contemplates its violation will find his way beset with more than ordinary trouble. In fact, he takes the license subject to all the laws in force regulating or prohibiting the sale of liquor, and they become a part of the license. The bond executed by the licensee is nothing more than security that he will obey the law. The sureties in the bond bind themselves that he will do this. It is on their part a contract obligation; and, if the bond is broken, as between them and the licensing authorities, they are liable for the sum stipulated in it. The question of the amount of damages *Page 293
caused by the violation of the law by the principal does not, and cannot, enter into the question. It is not contemplated that the recovery should be for any less sum than that fixed. It would be totally impracticable if not impossible in any action by the city on the bond to arrive at any measure of damage, except the amount stipulated. In any action upon a bond properly executed, the only legitimate subject of inquiry is whether or not the conditions of the bond have been broken. If it has, the sureties by the letter of their undertaking agree that they will pay a certain sum. [Clark v. Barnard, 108 U.S. 436, 2 Sup. Ct. 878, 27 L. Ed. 780; State v. Corron, 73 N.H. 434, 62 A. 1044.] Nor will the bond be satisfied by the payment of the fine imposed in criminal proceedings against the principal. It is an independent obligation exacted as additional protection to compel an observance of the law, and the sureties are bound by the terms of their undertaking to pay the full amount specified if its conditions have been broken. The requirements of a bond with surety in a fixed sum would be almost a useless formality if it could be satisfied by the payment of a fine entered against the principal. This idea is not embraced either in the letter or meaning of the bond. There is no mention that the satisfaction of the fine will discharge it. The collection of the penalty is a matter between the municipality and the offender, and the sureties have no concern in its payment, and are not responsible for it."
[See, also, Albany v. Cassel (Ga.) 76 S.E. 105; Commonwealth v. Moeschlin (Pa.), 170 A. 119; Quintard, Treas., v. Corcoran et al., 50 Conn. 34; United States v. Engelberg, 2 F.2d 720; State v. Vending Machine Corp., 51 P.2d 724, 174 Okla. 603.Contra, State v. Estabrook, 29 Kan. 739.]
It is to be noted that Section 13-a, in speaking of the bond, provides that "any violation of such conditions, duties or requirements shall be a breach of said bond." Of course, if the condition of a bond is breached, it necessarily follows that the obligee is entitled to be paid damages. In this case we think the damage recoverable is the face of the bond; it was required and given to secure performance by means of a forfeiture, and for that reason it is an aid to the State in enforcing its laws. We hold that a sale of whiskey by a licensee holding only a five per cent liquor license, as admitted by the stipulation, is a breach of the condition of the bond and that the State may recover the full amount thereof without proof of damages, for it would be impossible for the State to prove that it suffered any pecuniary damage by an illegal sale of whiskey to a liquor inspector.
The respondents tacitly admit that this is the law, provided the bond is only for the observance of the law, for in their brief they say: "From a review of all of the authorities on the subject under consideration, including those relied upon by appellant in its brief, it may be concluded, we think, that if the bond is conditioned for the observance of some law of the sovereign, and nothing more, the *Page 294
measure of recovery for breach, unless the bond, or the statute under which it was given, indicates that a less, or different, measure was intended, is the full penalty of the bond, because it is regarded as the punishment fixed by the sovereign for the violation of law."
It follows from what we have said that the trial court erred in its ruling, unless the respondents can be sustained on the constitutional questions which they have raised and which we will now discuss.
[6] The respondents contend that the Liquor Control Act is unconstitutional for the reason that it does not comply with Section 28 of Article IV of our State Constitution which provides: "No bill . . . shall contain more than one subject, which shall be clearly expressed in its title." They contend that the title descends in particulars concerning the control of the sale of intoxicating liquor, and that there is no reference to the exaction of bonds from licensees.
Assuming, without deciding, that respondents are correct in this contention, still the title does contain this clause, "and providing penalties for the violation of this act," which we think is sufficient to cover a bond given under Section 13-a. We have held above that a bond given under this section is one for penal damages, not for actual damages sustained, and, therefore, comes within the clause of the title just quoted. Respondents on another point in their brief say, "If the bond is construed as a forfeiture bond, as appellant contends, and if the penal sum is due at once upon any breach, the forfeiture of the bond is in the nature of a fine or penalty."
Under these facts the case of Fidelity Adjustment Co. v. Cook,339 Mo. 45, 95 S.W.2d 1162, is not in point. In that case, civil liability was sought to be imposed upon the directors of a corporation whose charter had been forfeited under an act of the Legislature. The title descended to particulars. It was sought to uphold the title upon the word "penalties." We held that since the act twice used the word "penalties," meaning punishment for crime, any inference of the imposition of a personal civil liability was negatived. We are also of the opinion that the title to this act comes within the ruling of the case of Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543.
[7] Respondents also contend that if the bond in question is a forfeiture bond, then this section violates Section 25, Article II of our State Constitution, which provides "that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." In effect, they contend that if a licensee is guilty of a misdemeanor under this act and is fined from $50 to $1000, and forfeits $2000 for breach of bond, then the above section of the constitution is violated. They have cited no case in point, nor does our research find any. The only case they rely upon is the case of United States v. Choteau,102 U.S. 603, 26 L. Ed. 246. That case was a suit upon a bond given by a distiller who had violated the revenue laws. Under an act of Congress, he compromised the Government claim in a criminal prosecution. Later, this suit on the bond *Page 295
was filed and the court held that the compromise was a complete defense to the action on the bond.
The liability on the bond arises out of a contract between the licensee and the State wherein the licensee agrees to faithfully obey the liquor laws of this State and agrees that in the event he does not do so he will forfeit the face of his bond to the State. Both appellant and respondents agree that the liability on the bond is not contingent on a criminal conviction of the licensee. The authorities so hold. [See Granger v. Hayden (R.I.),20 A. 833; State v. Pierce, 26 Kan. 777; State ex rel. Canyon County v. Forch (Idaho), 146 P. 110.]
"Those authorities also establish the fact that the liquor traffic is not a lawful business, except as authorized by express legislation of the State; that no person has the natural or inherent right to engage therein; that the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial occupations. It is placed under the ban of law, and it is therefore differentiated from all other occupations, and is therefore separated or removed from the natural rights, privileges, and immunities of the citizen." [State v. Parker Distilling Co., 236 Mo. 219, l.c. 255, 139 S.W. 453.]
Assuming, without deciding, that the forfeiture of the bond in question is a criminal or quasi-criminal penalty so as to come within the above constitutional inhibition, we could not say that the punishment "would shock the mind of every man possessed of common feeling." [State v. Williams, 77 Mo. 310.]
Nor do we think this act in any way violates the equal protection clause of the Federal or State Constitution because it does apply equally to all inhabitants of this State who engage in the sale of liquor by the drink.
For the reasons stated above, the judgment of the Circuit Court is reversed and remanded with directions to the trial court to enter a judgment in conformity with this opinion for the appellant in the sum of $2000. All concur. *Page 296 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3516912/ | * Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 1226, n. 6; 17CJ, p. 56, n. 16; Searches and Seizures, 35Cyc, p. 1268, n. 28.
The appellant, Harvey Jordan, was convicted in the circuit court of Perry county on a charge of unlawfully having in his possession intoxicating liquor, and from this conviction and the sentence imposed he has prosecuted this appeal.
The evidence upon which the conviction was based was secured by means of search of appellant's automobile, under the authority of a search warrant which was issued on April 19, 1926, returnableinstanter, and which was executed on April 20, 1926.
When the cause was called for trial in the circuit court on September 23, 1926, the appellant filed a motion for a continuance on the ground of the absence of his brother, Reuben Jordan, who was alleged to be a material witness in his behalf. This motion was supported by the affidavit of the appellant averring that, on September 15, 1926, a subpoena for this witness was issued to Forrest county, Miss., which had been returned "not found;" that this absent witness was living and working in that *Page 28
county when the appellant last saw and heard of him on August 27, 1926; that the affiant believed the witness was still residing in that county; and that he could have the witness present at the next term of the court. The affidavit then set forth what this witness would testify if he were present, showing its materiality, and was in other respects in proper form. This motion for a continuance was overruled.
On appeal but two grounds are urged for a reversal, first, that the evidence upon which the conviction was based was inadmissible for the reason that it was secured under a search warrant which had become functus officio on account of the fact that it was issued on April 19, 1926, returnable instanter, and not executed until April 20, 1926; and second, that the court erred in overruling the motion for a continuance.
It is not very clear from this record whether the particular objection that the search warrant was not timely served was specifically called to the attention of the court below, and if it was not it cannot be raised here for the first time, but, conceding that it was raised in the court below, we think that the requirement that the warrant should be returned instanter
only required that it should be executed and returned within a reasonable time under the circumstances of the case, and that the execution of a search warrant on the day following the date of its issuance is a sufficient compliance with the mandate that it be executed and returned instanter.
Upon the record now before us the action of the court below in overruling the motion for a continuance presents no reversible error. The motion shows that process for the absent witness had been returned "not found," and no additional process of the court to secure the presence of this witness was requested. Neither the witness nor his affidavit showing what he would have testified to, if present, was produced on a motion for a new trial, and there was no showing that it was impossible to secure the presence of the witness or his affidavit, and it has been *Page 29
repeatedly held that it is necessary to make such a showing to warrant a reversal for the overruling of a motion for a continuance on account of the absence of a witness. Lamar v.State, 63 Miss. 265; Ware v. State, 133 Miss. 837, 98 So. 229; Cox v. State, 138 Miss. 370, 103 So. 129; Osborne v.State (Miss.), 111 So. 834.
The judgment of the court below will therefore be affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1090829/ | 393 U.S. 10 (1968)
BROWN ET AL.
v.
RESOR, SECRETARY OF THE ARMY.
No. 133, Misc.
Supreme Court of United States.
Decided October 14, 1968.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Charles Morgan, Jr., Morris Brown, Benjamin E. Smith, and Melvin L. Wulf for petitioners.
Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for respondent.
PER CURIAM.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of Carafas v. LaVallee, 391 U.S. 234. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1383568/ | 389 U.S. 11 (1967)
RHOADES ET AL.
v.
SCHOOL DISTRICT OF ABINGTON TOWNSHIP ET AL.
No. 225.
Supreme Court of United States.
Decided October 9, 1967.
APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA.
Franklin C. Salisbury for appellants.
William C. Sennett, Attorney General of Pennsylvania, John P. McCord, Deputy Attorney General, and Edward Friedman for the Commonwealth of Pennsylvania, and William B. Ball for Paul et al., appellees.
PER CURIAM.
The motions to dismiss are granted and the appeal is dismissed for want of a substantial federal question.
MR. JUSTICE DOUGLAS is of the opinion that probable jurisdiction should be noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4239141/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
HOWARD JAMELL SMITH, Petitioner.
No. 1 CA-CR 17-0377 PRPC
FILED 1-25-2018
Petition for Review from the Superior Court in Maricopa County
No. CR2012-155437-001 DT
The Honorable Jacki Ireland, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche,
Counsel for Respondent
Howard Jamell Smith, Tucson
Petitioner
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop, Judge Jennifer B. Campbell, and
Judge Paul J. McMurdie delivered the decision of the Court.
STATE v. SMITH
Decision of the Court
PER CURIAM:
¶1 Petitioner Howard Jamell Smith seeks review of the superior
court’s order denying his petition for post-conviction relief, filed pursuant
to Arizona Rule of Criminal Procedure 32.1. This is petitioner’s third
successive petition.
¶2 Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for post-conviction
relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is petitioner’s
burden to show that the superior court abused its discretion by denying
the petition for post-conviction relief. See State v. Poblete, 227 Ariz. 537,
538, ¶ 1 (App. 2011) (petitioner has burden of establishing abuse of
discretion on review).
¶3 We have reviewed the record in this matter, the superior
court’s order denying the petition for post-conviction relief, and the
petition for review. We find that petitioner has not established an abuse
of discretion.
¶4 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 | 01-03-2023 | 01-25-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2986259/ | August 8, 2013
JUDGMENT
The Fourteenth Court of Appeals
MILLSTONE INVESTMENT & MANAGEMENT, L.L.C., Appellant
NO. 14-12-00637-CV V.
BNC RETAX, L.L.C., Appellee
________________________________
This cause, an appeal from the judgment in favor of appellee, BNC Retax,
L.L.C., signed May 14, 2012, was heard on the transcript of the record. We have
inspected the record and find no error in the judgment. We order the judgment of
the court below AFFIRMED.
We order appellant, Millstone Investment & Management, L.L.C., to pay all
costs incurred in this appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/118001/ | 516 U.S. 367 (1996)
MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., ET AL.
v.
EPSTEIN et al.
No. 94-1809.
United States Supreme Court.
Argued November 27, 1995.
Decided February 27, 1996.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
*369 *369 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined, and in which Stevens, J., joined as to Parts I, IIA, and IIC. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 387. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined, and in which Souter, J., joined as to Part IIB, post, p. 388.
Barry R. Ostrager argued the cause for petitioners. With him on the briefs was Geoffrey C. Hazard, Jr.
Henry Paul Monaghan argued the cause for respondents. With him on the brief were Harold Edgar, Roger W. Kirby, and Irving Malchman.[*]
Justice Thomas, delivered the opinion of the Court.
This case presents the question whether a federal court may withhold full faith and credit from a state-court judgment approving a class-action settlement simply because the settlement releases claims within the exclusive jurisdiction of the federal courts. The answer is no. Absent a partial repeal of the Full Faith and Credit Act, 28 U. S. C. § 1738, by another federal statute, a federal court must give the judgment the same effect that it would have in the courts of the State in which it was rendered.
I
In 1990, petitioner Matsushita Electric Industrial Co. made a tender offer for the common stock of MCA, Inc., a *370 Delaware corporation. The tender offer not only resulted in Matsushita's acquisition of MCA, but also precipitated two lawsuits on behalf of the holders of MCA's common stock. First, a class action was filed in the Delaware Court of Chancery against MCA and its directors for breach of fiduciary duty in failing to maximize shareholder value. The complaint was later amended to state additional claims against MCA's directors for, inter alia, waste of corporate assets by exposing MCA to liability under the federal securities laws. In addition, Matsushita was added as a defendant and was accused of conspiring with MCA's directors to violate Delaware law. The Delaware suit was based purely on statelaw claims.
While the state class action was pending, the instant suit was filed in Federal District Court in California. The complaint named Matsushita as a defendant and alleged that Matsushita's tender offer violated Securities and Exchange Commission (SEC) Rules 10b13 and 14d10.[1] These Rules were created by the SEC pursuant to the 1968 Williams Act Amendments to the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 881, as amended, 15 U. S. C. § 78a et seq. Section 27 of the Exchange Act confers exclusive jurisdiction upon the federal courts for suits brought to enforce the Act or rules and regulations promulgated thereunder. See 15 U. S. C. § 78aa. The District Court declined to certify the class, entered summary judgment for Matsushita, and dismissed the case. The plaintiffs appealed to the Court of Appeals for the Ninth Circuit.
After the federal plaintiffs filed their notice of appeal but before the Ninth Circuit handed down a decision, the parties *371 to the Delaware suit negotiated a settlement.[2] In exchange for a global release of all claims arising out of the Matsushita-MCA acquisition, the defendants would deposit $2 million into a settlement fund to be distributed pro rata to the members of the class. As required by Delaware Chancery Rule 23, which is modeled on Federal Rule of Civil Procedure 23, the Chancery Court certified the class for purposes of settlement and approved a notice of the proposed settlement. The notice informed the class members of their right to request exclusion from the settlement class and to appear and present argument at a scheduled hearing to determine the fairness of the settlement. In particular, the notice stated that "[b]y filing a valid Request for Exclusion, a member of the Settlement Class will not be precluded by the Settlement from individually seeking to pursue the claims alleged in the . . . California Federal Actions, . . . or any other claim relating to the events at issue in the Delaware Actions." App. to Pet. for Cert. 96a. Two such notices were mailed to the class members and the notice was also published in the national edition of the Wall Street Journal. The Chancery Court then held a hearing. After argument from several objectors, the court found the class representation adequate and the settlement fair.
The order and final judgment of the Chancery Court incorporated the terms of the settlement agreement, providing:
"All claims, rights and causes of action (state or federal, including but not limited to claims arising under the federal securities law, any rules or regulations promulgated thereunder, or otherwise), whether known or unknown that are, could have been or might in the future be asserted by any of the plaintiffs or any member of the Settlement Class (other than those who have val-
*372 idly requested exclusion therefrom), . . . in connection with or that arise now or hereafter out of the Merger Agreement, the Tender Offer, the Distribution Agreement, the Capital Contribution Agreement, the employee compensation arrangements, the Tender Agreements, the Initial Proposed Settlement, this Settlement. . . and including without limitation the claims as- serted in the California Federal Actions . . . are hereby compromised, settled, released and discharged with prejudice by virtue of the proceedings herein and this Order and Final Judgment." In re MCA, Inc. Share- holders Litigation, C. A. No. 11740 (Feb. 22, 1993), reprinted in App. to Pet. for Cert. 74a75a (emphasis added). The judgment also stated that the notice met all the requirements of due process. The Delaware Supreme Court affirmed. In re MCA, Inc., Shareholders Litigation, 633 A. 2d 370 (1993) (judgt. order).
Respondents were members of both the state and federal plaintiff classes. Following issuance of the notice of proposed settlement of the Delaware litigation, respondents neither opted out of the settlement class nor appeared at the hearing to contest the settlement or the representation of the class. On appeal in the Ninth Circuit, petitioner Matsushita invoked the Delaware judgment as a bar to further prosecution of that action under the Full Faith and Credit Act, 28 U. S. C. § 1738.
The Ninth Circuit rejected petitioner's argument, ruling that § 1738 did not apply. Epstein v. MCA, Inc., 50 F. 3d 644, 661-666 (1995). Instead, the Court of Appeals fashioned a test under which the preclusive force of a state-court settlement judgment is limited to those claims that "could. . . have been extinguished by the issue preclusive effect of an adjudication of the state claims." Id., at 665. The lower courts have taken varying approaches to determining the preclusive effect of a state-court judgment, entered in a class *373 or derivative action, that provides for the release of exclusively federal claims.[3] We granted certiorari to clarify this important area of federal law. 515 U. S. 1187 (1995).
II
The Full Faith and Credit Act mandates that the "judicial proceedings" of any State "shall have the same full faith and credit in every court within the United States .. . as they have by law or usage in the courts of such State . . . from which they are taken." 28 U. S. C. § 1738. The Act thus directs all courts to treat a state-court judgment with the same respect that it would receive in the courts of the rendering State. Federal courts may not "employ their own rules . . . in determining the effect of state judgments," but must "accept the rules chosen by the State from which the judgment is taken." Kremer v. Chemical Constr. Corp., 456 U. S. 461, 481-482 (1982). Because the Court of Appeals failed to follow the dictates of the Act, we reverse.
A
The state-court judgment in this case differs in two respects from the judgments that we have previously considered in our cases under the Full Faith and Credit Act. As respondents and the Court of Appeals stressed, the judgment was the product of a class action and incorporated a settlement agreement releasing claims within the exclusive jurisdiction of the federal courts. Though respondents urge "the irrelevance of section 1738 to this litigation," Brief for Respondents 25, we do not think that either of these features exempts the judgment from the operation of § 1738.
That the judgment at issue is the result of a class action, rather than a suit brought by an individual, does not undermine *374 the initial applicability of § 1738. The judgment of a state court in a class action is plainly the product of a "judicial proceeding" within the meaning of § 1738. Cf. McDonald v. West Branch, 466 U. S. 284, 287-288 (1984) (holding that § 1738 does not apply to arbitration awards because arbitration is not a "judicial proceeding"). Therefore, a judgment entered in a class action, like any other judgment entered in a state judicial proceeding, is presumptively entitled to full faith and credit under the express terms of the Act.
Further, § 1738 is not irrelevant simply because the judgment in question might work to bar the litigation of exclusively federal claims. Our decision in Marrese v. American Academy of Orthopaedic Surgeons, 470 U. S. 373 (1985), made clear that where § 1738 is raised as a defense in a subsequent suit, the fact that an allegedly precluded "claim is within the exclusive jurisdiction of the federal courts does not necessarily make § 1738 inapplicable. " Id., at 380 (emphasis added). In so holding, we relied primarily on Kremer v. Chemical Constr. Corp., supra, which held, without deciding whether claims under Title VII of the Civil Rights Act of 1964 are exclusively federal, that state-court proceedings may be issue preclusive in Title VII suits in federal court. Kremer, we said, "implies that absent an exception to § 1738, state law determines at least the . . . preclusive effect of a prior state judgment in a subsequent action involving a claim within the exclusive jurisdiction of the federal courts." Marrese, 470 U. S., at 381. Accordingly, we decided that "a state court judgment may in some circumstances have preclusive effect in a subsequent action within the exclusive jurisdiction of the federal courts." Id., at 380.
In Marrese, we discussed Nash County Bd. of Ed. v. Biltmore Co., 640 F. 2d 484 (CA4), cert. denied, 454 U. S. 878 (1981), a case that concerned a state-court settlement judgment. In Nash, the question was whether the judgment, which approved the settlement of state antitrust claims, prevented the litigation of exclusively federal antitrust claims. *375 See 470 U. S., at 382, n. 2. We suggested that the approach outlined in Marrese would also apply in cases like Nash that involve judgments upon settlement: that is, § 1738 would control at the outset. See 470 U. S., at 382, n. 2. In accord with these precedents, we conclude that § 1738 is generally applicable in cases in which the state-court judgment at issue incorporates a class-action settlement releasing claims solely within the jurisdiction of the federal courts.
B
Marrese provides the analytical framework for deciding whether the Delaware court's judgment precludes this exclusively federal action. When faced with a state-court judgment relating to an exclusively federal claim, a federal court must first look to the law of the rendering State to ascertain the effect of the judgment. See id., at 381-382. If state law indicates that the particular claim or issue would be barred from litigation in a court of that State, then the federal court must next decide whether, "as an exception to § 1738," it "should refuse to give preclusive effect to [the] state court judgment." Id., at 383. See also Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75, 81 (1984) ("[I]n the absence of federal law modifying the operation of § 1738, the preclusive effect in federal court of [a] state-court judgment is determined by [state] law").
1
We observed in Marrese that the inquiry into state law would not always yield a direct answer. Usually, "a state court will not have occasion to address the specific question whether a state judgment has issue or claim preclusive effect in a later action that can be brought only in federal court." 470 U. S., at 381-382. Where a judicially approved settlement is under consideration, a federal court may consequently find guidance from general state law on the preclusive force of settlement judgments. See, e. g., id., at *376 382-383, n. 2 (observing in connection with Nash that "[North Carolina] law gives preclusive effect to consent judgment[s]"). Here, in addition to providing rules regarding the preclusive force of class-action settlement judgments in subsequent suits in state court, the Delaware courts have also spoken to the particular effect of such judgments in federal court.
Delaware has traditionally treated the impact of settlement judgments on subsequent litigation in state court as a question of claim preclusion. Early cases suggested that Delaware courts would not afford claim preclusive effect to a settlement releasing claims that could not have been presented in the trial court. See Ezzes v. Ackerman, 234 A. 2d 444, 445-446 (Del. 1967) ("[A] judgment entered either after trial on the merits or upon an approved settlement is res judicata and bars subsequent suit on the same claim . . .. [T]he defense of res judicata . . . is available if the pleadings framing the issues in the first action would have permitted the raising of the issue sought to be raised in the second action, and if the facts were known, or could have been known to the plaintiff in the second action at the time of the first action"). As the Court of Chancery has perceived, however, "the Ezzes inquiry [was] modified in regard to class actions," In re Union Square Associates Securities Litigation, C. A. No. 11028, 1993 WL 220528, *3 (June 16, 1993), by the Delaware Supreme Court's decision in Nottingham Partners v. Dana, 564 A. 2d 1089 (1989).
In Nottingham, a class action, the Delaware Supreme Court approved a settlement that released claims then pending in federal court. In approving that settlement, the Nottingham court appears to have eliminated the Ezzes requirement that the claims could have been raised in the suit that produced the settlement, at least with respect to class actions:
"`[I]n order to achieve a comprehensive settlement that would prevent relitigation of settled questions at the *377 core of a class action, a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable in the class action.' " 564 A. 2d, at 1106 (quoting TBK Partners, Ltd. v. Western Union Corp., 675 F. 2d 456, 460 (CA2 1982)).
See Union Square, supra, at *3 (relying directly on Nottingham to hold that a Delaware court judgment settling a class action was res judicata and barred arbitration of duplicative claims that could not have been brought in the first suit). These cases indicate that even if, as here, a claim could not have been raised in the court that rendered the settlement judgment in a class action, a Delaware court would still find that the judgment bars subsequent pursuit of the claim.
The Delaware Supreme Court has further manifested its understanding that when the Court of Chancery approves a global release of claims, its settlement judgment should preclude ongoing or future federal-court litigation of any released claims. In Nottingham, the Court stated that "[t]he validity of executing a general release in conjunction with the termination of litigation has long been recognized by the Delaware courts. More specifically, the Court of Chancery has a history of approving settlements that have implicitly or explicitly included a general release, which would also release federal claims." 564 A. 2d, at 1105 (citation omitted). Though the Delaware Supreme Court correctly recognized in Nottingham that it lacked actual authority to order the dismissal of any case pending in federal court, it asserted that state-court approval of the settlement would have the collateral effect of preventing class members from prosecuting their claims in federal court. Perhaps the clearest statement of the Delaware Chancery Court's view on this matter was articulated in the suit preceding this one: "When a state court settlement of a class action releases all claims which arise out of the challenged transaction and is determined to *378 be fair and to have met all due process requirements, the class members are bound by the release or the doctrine of issue preclusion. Class members cannot subsequently relitigate the claims barred by the settlement in a federal court." In re MCA, Inc. Shareholders Litigation, 598 A. 2d 687, 691 (1991).[4] We are aware of no Delaware case that suggests otherwise.
Given these statements of Delaware law, we think that a Delaware court would afford preclusive effect to the settlement judgment in this case, notwithstanding the fact that respondents could not have pressed their Exchange Act claims in the Court of Chancery. The claims are clearly within the scope of the release in the judgment, since the judgment specifically refers to this lawsuit. As required by Delaware Court of Chancery Rule 23, see Prezant v. De Angelis, 636 A. 2d 915, 920 (1994), the Court of Chancery found, and the Delaware Supreme Court affirmed, that the settlement was "fair, reasonable and adequate and in the best interests of the . . . Settlement class" and that notice to the class was "in full compliance with . . . the requirements of due process." In re MCA, Inc. Shareholders Litigation, C. A. No. 11740 (Feb. 22, 1993), reprinted in App. to Pet. for Cert. 73a, 74a. Cf. Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985) (due process for class-action plaintiffs requires "notice plus an opportunity to be heard and participate in the litigation"). The Court of Chancery "further determined that the plaintiffs[,] . . . as representatives of the Settlement Class, have fairly and adequately protected the *379 interests of the Settlement Class." In re MCA, Inc. Shareholders Litigation, supra, reprinted in App. to Pet. for Cert. 73a. Cf. Phillips Petroleum Co., supra, at 812 (due process requires that "the named plaintiff at all times adequately represent the interests of the absent class members").[5] Under Delaware Rule 23, as under Federal Rule of Civil Procedure 23, "[a]ll members of the class, whether of a plaintiff or a defendant class, are bound by the judgment entered in the action unless, in a Rule 23(b)(3) action, they make a timely election for exclusion." 2 H. Newberg, Class Actions § 2755, p. 1224 (1977). See also Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 874 (1984) ("There is of course no dispute that under elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation"). Respondents do not deny that, as shareholders of MCA's common stock, they were part of the plaintiff class and that they never opted out; they are bound, then, by the judgment.[6]
*380 2
Because it appears that the settlement judgment would be res judicata under Delaware law, we proceed to the second step of the Marrese analysis and ask whether § 27 of the Exchange Act, which confers exclusive jurisdiction upon the federal courts for suits arising under the Act, partially repealed § 1738. Section 27 contains no express language regarding its relationship with § 1738 or the preclusive effect of related state-court proceedings. Thus, any modification of § 1738 by § 27 must be implied. In deciding whether § 27 impliedly created an exception to § 1738, the "general question is whether the concerns underlying a particular grant of exclusive jurisdiction justify a finding of an implied partial repeal of § 1738." Marrese, 470 U. S., at 386. "Resolution of this question will depend on the particular federal statute as well as the nature of the claim or issue involved in the subsequent federal action. . . . [T]he primary consideration must be the intent of Congress." Ibid.
As a historical matter, we have seldom, if ever, held that a federal statute impliedly repealed § 1738. See Parsons Steel, Inc. v. First Alabama Bank, 474 U. S. 518, 523-525 (1986) (Anti-Injunction Act does not limit § 1738); Migra v. Warren City School Dist. Bd. of Ed., 465 U. S., at 83-85 (42 U. S. C. § 1983 does not limit claim preclusion under § 1738); Kremer v. Chemical Constr. Corp., 456 U. S., at 468-476 (Title VII of the Civil Rights Act of 1964 does not limit § 1738); Allen v. McCurry, 449 U. S. 90, 96-105 (1980) (§ 1983 does not limit issue preclusion under § 1738). But cf. Brown v. Felsen, 442 U. S. 127, 138-139 (1979) (declining to give claim preclusive *381 effect to prior state-court debt collection proceeding in federal bankruptcy suit, without discussing § 1738, state law, or implied repeals). The rarity with which we have discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an "`irreconcilable conflict' " between the two federal statutes at issue. Kremer v. Chemical Constr. Corp., supra, at 468 (quoting Radzanower v. Touche Ross & Co., 426 U. S. 148, 154 (1976)).
Section 27 provides that "[t]he district courts of the United States . . . shall have exclusive jurisdiction . . . of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder." 15 U. S. C. § 78aa. There is no suggestion in § 27 that Congress meant for plaintiffs with Exchange Act claims to have more than one day in court to challenge the legality of a securities transaction. Though the statute plainly mandates that suits alleging violations of the Exchange Act may be maintained only in federal court, nothing in the language of § 27 "remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of . . . 28 U. S. C. § 1738." Allen v. McCurry, supra, at 97-98.
Nor does § 27 evince any intent to prevent litigants in state courtwhether suing as individuals or as part of a class from voluntarily releasing Exchange Act claims in judicially approved settlements. While § 27 prohibits state courts from adjudicating claims arising under the Exchange Act, it does not prohibit state courts from approving the release of Exchange Act claims in the settlement of suits over which they have properly exercised jurisdiction, i. e., suits arising under state law or under federal law for which there is concurrent jurisdiction. In this case, for example, the Delaware action was not "brought to enforce" any rights or obligations under the Act. The Delaware court asserted judicial power *382 over a complaint asserting purely state-law causes of action[7] and, after the parties agreed to settle, certified the class and approved the settlement pursuant to the requirements of Delaware Rule of Chancery 23 and the Due Process Clause. Thus, the Delaware court never trespassed upon the exclusive territory of the federal courts, but merely approved the settlement of a common-law suit pursuant to state and nonexclusive federal law. See Abramson v. Pennwood Investment Corp., 392 F. 2d 759, 762 (CA2 1968) ("Although the state court could not adjudicate the federal claim, it was within its powers over the corporation and the parties to approve the release of that claim as a condition of settlement of the state action"). While it is true that the state court assessed the general worth of the federal claims in determining the fairness of the settlement, such assessment does not amount to a judgment on the merits of the claims. See TBK Partners, Ltd. v. Western Union Corp., 675 F. 2d 456, 461 (CA2 1982) ("`Approval of a settlement does not call for findings of fact regarding the claims to be compromised. The court is concerned only with the likelihood of success or failure; the actual merits of the controversy are not to be determined' ") (quoting Haudek, The Settlement and Dismissal of Stockholders' Actions-Part II: The Settlement, 23 Sw. L. J. 765, 809 (1969) (footnotes omitted)). The Delaware court never purported to resolve the merits of the Exchange Act claims in the course of appraising the settlement; indeed, it expressly disavowed that purpose. See In re MCA, Inc. Shareholders Litigation, C. A. No. 11740 (Feb. 16, 1993), reprinted in App. to Pet. for Cert. 68a ("In determining whether a settlement should be approved, a court should not try the merits of the underlying claims. This principle would seem to be especially appropriate where the underlying *383 claims, like the federal claims here, are outside the jurisdiction of this Court" (citation omitted)).
The legislative history of the Exchange Act elucidates no specific purpose on the part of Congress in enacting § 27. See Murphy v. Gallagher, 761 F. 2d 878, 885 (CA2 1985) (noting that the legislative history of the Exchange Act provides no readily apparent explanation for the provision of exclusive jurisdiction in § 27) (citing 2 & 3 L. Loss, Securities Regulation 997, 2005 (2d ed. 1961)). We may presume, however, that Congress intended § 27 to serve at least the general purposes underlying most grants of exclusive jurisdiction: "to achieve greater uniformity of construction and more effective and expert application of that law." Murphy v. Gallagher, supra, at 885. When a state court upholds a settlement that releases claims under the Exchange Act, it threatens neither of these policies. There is no danger that state-court judges who are not fully expert in federal securities law will say definitively what the Exchange Act means and enforce legal liabilities and duties thereunder. And the uniform construction of the Act is unaffected by a state court's approval of a proposed settlement because the state court does not adjudicate the Exchange Act claims but only evaluates the overall fairness of the settlement, generally by applying its own business judgment to the facts of the case. See, e. g., Polk v. Good, 507 A. 2d 531, 535 (Del. 1986).
Furthermore, other provisions of the Exchange Act suggest that Congress did not intend to create an exception to § 1738 for suits alleging violations of the Act. Congress plainly contemplated the possibility of dual litigation in state and federal courts relating to securities transactions. See 15 U. S. C. § 78bb(a) (preserving "all other rights and remedies that may exist at law or in equity"). And all that Congress chose to say about the consequences of such litigation is that plaintiffs ought not obtain double recovery. See ibid. Congress said nothing to modify the background rule that where a state-court judgment precedes that of a federal *384 court, the federal court must give full faith and credit to the state-court judgment. See Murphy v. Gallagher, supra, at 884.
Finally, precedent supports the conclusion that the concerns underlying the grant of exclusive jurisdiction in § 27 are not undermined by state-court approval of settlements releasing Exchange Act claims. We have held that statecourt proceedings may, in various ways, subsequently affect the litigation of exclusively federal claims without running afoul of the federal jurisdictional grant in question. In Becher v. Contoure Laboratories, Inc., 279 U. S. 388 (1929) (cited in Marrese, 470 U. S., at 381), we held that state-court findings of fact were issue preclusive in federal patent suits. We did so with full recognition that "the logical conclusion from the establishing of [the state law] claim is that Becher's patent is void." 279 U. S., at 391. Becher reasoned that although "decrees validating or invalidating patents belong to the Courts of the United States," that "does not give sacrosanctity to facts that may be conclusive upon the question in issue." Ibid. Similarly, while binding legal determinations of rights and liabilities under the Exchange Act are for federal courts only, there is nothing sacred about the approval of settlements of suits arising under state law, even where the parties agree to release exclusively federal claims. See also Brown v. Felsen, 442 U. S., at 139, n. 10 (noting that "[i]f, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court"); Pratt v. Paris Gas Light & Coke Co., 168 U. S. 255, 258 (1897) (when a state court has jurisdiction of the parties and the subject matter of the complaint, the state court may decide the validity of a patent when that issue is raised as a defense).
We have also held that Exchange Act claims may be resolved by arbitration rather than litigation in federal court. *385 In Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987), we found that parties to an arbitration agreement could waive the right to have their Exchange Act claims tried in federal court and agree to arbitrate the claims. Id. , at 227-228. It follows that state-court litigants ought also to be able to waive, or "release," the right to litigate Exchange Act claims in a federal forum as part of a settlement agreement. As Shearson/American Express Inc. demonstrates, a statute conferring exclusive federal jurisdiction for a certain class of claims does not necessarily require resolution of those claims in a federal court.
Taken together, these cases stand for the general proposition that even when exclusively federal claims are at stake, there is no "universal right to litigate a federal claim in a federal district court." Allen v. McCurry, 449 U. S., at 105. If class-action plaintiffs wish to preserve absolutely their right to litigate exclusively federal claims in federal court, they should either opt out of the settlement class or object to the release of any exclusively federal claims. In fact, some of the plaintiffs in the Delaware class action requested exclusion from the settlement class. They are now proceeding in federal court with their federal claims, unimpeded by the Delaware judgment.
In the end, §§ 27 and 1738 "do not pose an either-or proposition." Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253 (1992). They can be reconciled by reading § 1738 to mandate full faith and credit of state-court judgments incorporating global settlements, provided the rendering court had jurisdiction over the underlying suit itself, and by reading § 27 to prohibit state courts from exercising jurisdiction over suits arising under the Exchange Act. Cf. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4470, pp. 688-689 (1981) ("[S]ettlement of state court litigation has been held to defeat a subsequent federal action if the settlement was intended to apply to claims in exclusive federal jurisdiction as well as other claims. . . . These rulings *386 are surely correct"). Congress' intent to provide an exclusive federal forum for adjudication of suits to enforce the Exchange Act is clear enough. But we can find no suggestion in § 27 that Congress meant to override the "principles of comity and repose embodied in § 1738," Kremer v. Chemical Constr. Corp., 456 U. S., at 463, by allowing plaintiffs with Exchange Act claims to release those claims in state court and then litigate them in federal court. We conclude that the Delaware courts would give the settlement judgment preclusive effect in a subsequent proceeding and, further, that § 27 did not effect a partial repeal of § 1738.
C
The Court of Appeals did not engage in any analysis of Delaware law pursuant to § 1738. Rather, the Court of Appeals declined to apply § 1738 on the ground that where the rendering forum lacked jurisdiction over the subject matter or the parties, full faith and credit is not required. 50 F. 3d, at 661, 666. See Underwriters Nat. Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U. S. 691, 704-705 (1982) ("`[A] judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the meritshad jurisdiction, that is, to render the judgment' ") (quoting Durfee v. Duke, 375 U. S. 106, 110 (1963)). The Court of Appeals decided that the subject-matter jurisdiction exception to full faith and credit applies to this case because the Delaware court acted outside the bounds of its own jurisdiction in approving the settlement, since the settlement released exclusively federal claims. See 50 F. 3d, at 661-662, and n. 25.
As explained above, the state court in this case clearly possessed jurisdiction over the subject matter of the underlying suit and over the defendants. Only if this were not sofor instance, if the complaint alleged violations of the Exchange Act and the Delaware court rendered a judgment *387 on the merits of those claimswould the exception to § 1738 for lack of subject-matter jurisdiction apply. Where, as here, the rendering court in fact had subject-matter jurisdiction, the subject-matter-jurisdiction exception to full faith and credit is simply inapposite. In such a case, the relevance of a federal statute that provides for exclusive federal jurisdiction is not to the state court's possession of jurisdiction per se, but to the existence of a partial repeal of § 1738.[8]
* * *
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring in part and dissenting in part.
While I join Parts I, IIA, and IIC of the Court's opinion, and while I also agree with the Court's reasons for concluding that § 27 of the Securities Exchange Act of 1934 does not create an implied partial repeal of the Full Faith and Credit Act, I join neither Part IIB nor the Court's judgment because I agree with Justice Ginsburg that the question of Delaware law should be addressed by the Court of Appeals in the first instance, and that the Ninth Circuit remains free to consider whether Delaware courts fully and fairly litigated the adequacy of class representation.
*388 Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter joins as to Part IIB, concurring in part and dissenting in part.
I join the Court's judgment to the extent that it remands the case to the Ninth Circuit. I agree that a remand is in order because the Court of Appeals did not attend to this Court's reading of 28 U. S. C. § 1738 in a controlling decision, Kremer v. Chemical Constr. Corp., 456 U. S. 461 (1982). But I would not endeavor, as the Court does, to speak the first word on the content of Delaware preclusion law. Instead, I would follow our standard practice of remitting that issue for decision, in the first instance, by the lower federal courts. See, e. g., Marrese v. American Academy of Orthopaedic Surgeons, 470 U. S. 373, 387 (1985).
I write separately to emphasize a point key to the application of § 1738: A state-court judgment generally is not entitled to full faith and credit unless it satisfies the requirements of the Fourteenth Amendment's Due Process Clause. See Kremer, 456 U. S., at 482-483. In the class-action setting, adequate representation is among the due process ingredients that must be supplied if the judgment is to bind absent class members. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 808, 812 (1985); Prezant v. De Angelis, 636 A. 2d 915, 923-924 (Del. 1994).
Suitors in this action (called the "Epstein plaintiffs" in this opinion), respondents here, argued before the Ninth Circuit, and again before this Court, that they cannot be bound by the Delaware settlement because they were not adequately represented by the Delaware class representatives. They contend that the Delaware representatives' willingness to release federal securities claims within the exclusive jurisdiction of the federal courts for a meager return to the class members, but a solid fee to the Delaware class attorneys, disserved the interests of the class, particularly, the absentees. The inadequacy of representation was apparent, the Epstein plaintiffs maintained, for at the time of the settlement, *389 the federal claims were sub judice in the proper forum for those claimsthe federal judiciary. Although the Ninth Circuit decided the case without reaching the due process check on the full faith and credit obligation, that inquiry remains open for consideration on remand. See ante, at 379, n. 5 (due process "w[as] not the basis for the decision below," so the Court "need not address [it]").
I
Matsushita's acquisition of MCA prompted litigation in state and federal courts. A brief account of that litigation will facilitate comprehension of the Epstein plaintiffs' position. On September 26, 1990, in response to reports in the financial press that Matsushita was negotiating to buy MCA, a suit was filed in the Court of Chancery of Delaware, a purported class action on behalf of the stockholders of MCA. Naming MCA and its directors (but not Matsushita) as defendants, the complaint invoked state law only. It alleged that MCA's directors had failed to carry out a market check to maximize shareholder value upon a change in corporate control, a check required by Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A. 2d 173, 182 (Del. 1986). For this alleged breach of fiduciary duty, the complaint sought, inter alia, an injunction against Matsushita's proposed acquisition of MCA.
Matsushita announced its tender offer on November 26, 1990. It offered holders of MCA common stock $71 per share, if they tendered their shares before December 29, 1990. The owners of 91% of MCA's common stock tendered their shares and, on January 3, 1991, for a price of $6.1 billion, Matsushita acquired MCA.
On December 3, 1990, a few days after the required Securities and Exchange Commission (SEC) filings disclosed the terms of the tender offer, several MCA shareholders filed suit in the United States District Court for the Central District *390 of California.[1] Based solely on federal law, their complaints alleged that Matsushita, first named defendant, violated SEC Rules 14d10, 17 CFR § 240.14d10 (1994), and 10b13, id., § 240.10b13, by offering preferential treatment in the tender offer to MCA principals Lew Wasserman and Sidney Sheinberg. As stated in the complaint, the public tender offer included a special tax-driven stock swap arrangement for Wasserman, then MCA's chairman and chief executive officer, and a $21 million bonus for Sheinberg, then MCA's chief operating officer and owner of 1,170,000 shares of MCA common stock. These arrangements allegedly violated, inter alia, the SEC's "all-holder best-price" rule (Rule 14d10), which requires bidders to treat all shareholders on equal terms. The claims of federal securities law violations fell within the exclusive jurisdiction of the federal court. See 15 U. S. C. § 78aa. The Epstein plaintiffs also sought class certification to represent all MCA shareholders at the time of the tender offer.
Two days later, counsel in the Delaware action advised MCA's counsel that the Delaware plaintiffs intended to amend their complaint to include additional claims against MCA and its directors and to add Matsushita as a defendant. The additional claims alleged that MCA wasted corporate assets by increasing the corporation's exposure to liability for violation of Rules 10b13 and 14d10, that MCA failed to *391 make full disclosure of the benefits MCA insiders would receive from the takeover, and that directors Wasserman and Sheinberg breached their fiduciary duties by negotiating preferential deals with Matsushita. Matsushita, the amended complaint alleged, had conspired with and aided and abetted MCA directors in violation of Delaware law.
Within days, the Delaware parties agreed to a settlement and, on December 17, 1990, submitted their proposal to the Delaware Vice Chancellor. The agreement provided for a modification of a "poison pill" in the corporate charter of an MCA subsidiary,[2] and for a fees payment of $1 million to the class counsel. The settlement agreement required the release of all claims, state and federal, arising out of the tender offer.
The Vice Chancellor rejected the settlement agreement on April 22, 1991, for two reasons: the absence of any monetary benefit to the class members; and the potential value of the federal claims that the agreement proposed to release. The "generous payment" of $1 million in counsel fees, the Vice Chancellor observed, "confer[red] no benefit on the members of the Class." In re MCA, Inc. Shareholders Litigation, 598 A. 2d 687, 695 (Del. Ch. 1991). And the value of the revised poison pill to the class, the Vice Chancellor said, was "illusionary[,] . . . apparently . . . proposed merely to justify a settlement which offers no real monetary benefit to the Class." Id. , at 696. The Vice Chancellor described the state-law claims as "at best, extremely weak and, therefore, [of] little or no value." Id. , at 694. "[T]he only claims which have any substantial merit," he said, "are the claims. . . in the California federal suit that were not asserted in this Delaware action." Id. , at 696. After the rejection of *392 the settlement, the Delaware lawsuit lay dormant for more than a year.
The federal litigation proceeded. In various rulings, the District Court denied the federal plaintiffs' motion for partial summary judgment, denied the Epstein plaintiffs' motion for class certification, and granted Matsushita's motion for summary judgment dismissing the claims. On April 15, 1992, the District Court entered its final judgment, which the Epstein plaintiffs appealed to the Ninth Circuit.
On October 22, 1992, after the federal plaintiffs had filed their notice of appeal, the Delaware parties reached a second settlement agreement. Matsushita agreed to create a $2 million settlement fund that would afford shareholders 2 to 3 cents per share before payment of fees and costs. The Delaware class counsel requested $691,000 in fees. In return for this relief, the Delaware plaintiffs agreed to release "all claims, rights and causes of action (state or federal, including but not limited to claims arising under the federal securities laws, and any rules or regulations promulgated thereunder, or otherwise) . . . in connection with or that arise now or hereafter out of the [tender offer] . . . including without limitation the claims asserted in the California Federal Actions . . . ." App. 187-188. Unlike the first settlement proposal, the second agreement included an opt-out provision.
This time the Vice Chancellor approved the settlement. He stated: "[I]t is in the best interests of the class to settle this litigation and the terms of the settlement are fair and reasonablealthough the value of the benefit to the class is meager." In re MCA, Inc. Shareholders Litigation, C. A. No. 11740, 1993 WL 43024, *1 (Del. Ch., Feb. 16, 1993). He found the class members' recovery of 2 to 3 cents per share "adequate (if only barely so) to support the proposed settlement." Id. , at *4. The federal claims, he reasoned, having been dismissed by the District Court, "now have minimal economic value." Ibid. And he gave weight to the presence *393 in the second settlement agreement of an opt-out provision. Ibid.
Addressing the objectors' contention that the proposed settlement was "collusive," the Vice Chancellor recalled that "the settling parties ha[d] previously proposed a patently inadequate settlement," and he agreed that "suspicions abound." Id. , at *5. Nevertheless, he noted, the "[o]bjectors have offered no evidence of any collusion," so he declined to reject the settlement on that ground. Ibid. Reducing the counsel fees from the requested $691,000 to $250,000, the Vice Chancellor offered this observation: "[T]he defendants' willingness to create the settlement fund seems likely to have been motivated as much by their concern as to their potential liability under the federal claims as by their concern for liability under the state law claims which this Court characterized as `extremely weak.' " Id. , at *6. In a brief order, the Delaware Supreme Court affirmed "on the basis of and for the reasons assigned by the Court of Chancery . . . ." In re MCA, Inc. Shareholders Litigation, C. A. No. 126,1993, 1993 WL 385041, *1 (Sept. 21, 1993), judgt. order reported at 633 A. 2d 370.
Before the Ninth Circuit, Matsushita argued that the Delaware class-action settlement barred litigation of the federal claims raised in the Epstein action. The Ninth Circuit disagreed. Relying on Federal Circuit Court decisions,[3] the Court of Appeals held that state courts lack plenary power to approve settlements that effectively extinguish exclusively federal claims. Only if federal and state claims rest on the "identical factual predicate," the Ninth Circuit concluded, could a state-court settlement subsume an exclusively federal claim. It was not enough, in the Ninth Circuit's view, that the discrete federal and state claims stem from the *394 "same transaction," the test Matsushita urged. 50 F. 3d, at 661-665. The federal securities claims did not turn on the same operative facts as the state claims pleaded in Delaware, the Ninth Circuit found; accordingly, the federal claims could not have been extinguished by the issue-preclusive effect of an adjudication of the state claims. This analysis led the Ninth Circuit to declare that the Delaware decree "exceed[ed] the jurisdiction of the state court and, therefore, is not entitled to full faith and credit." Id. , at 666.
On the merits, the Ninth Circuit held, first, that a private right of action could be maintained to redress Rule 14d10 violations. Id. , at 652. The court next held that Matsushita violated Rule 14d10 by paying Wasserman consideration not offered to other shareholders, id. , at 657; reversing the District Court's disposition of this matter, the Ninth Circuit held that plaintiffs were entitled to summary judgment on liability and remanded for a determination of damages, ibid. Regarding plaintiffs' claim that the $21 million payment to Sheinberg violated Rule 14d10, the Ninth Circuit vacated the summary judgment for Matsushita and remanded for a determination whether the payment was in fact made to encourage Sheinberg to tender his shares. Id. , at 659.
II
A
Section 1738's full faith and credit instruction, as the Court indicates, requires the forum asked to recognize a judgment first to determine the preclusive effect the judgment would have in the rendering court. See Kremer, 456 U. S., at 466; Marrese, 470 U. S., at 381. Because the Ninth Circuit did not evaluate the preclusive effect of the Delaware judgment through the lens of that State's preclusion law, I would remand for that determination. See id., at 386-387; Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75, 87 (1984) ("Prudence . . . dictates that it is the District Court, in the *395 first instance, not this Court, that should interpret Ohio preclusion law and apply it.").[4]
B
Every State's law on the preclusiveness of judgments is pervasively affected by the supreme law of the land. To be valid in the rendition forum, and entitled to recognition nationally, a state court's judgment must measure up to the requirements of the Fourteenth Amendment's Due Process Clause. Kremer, 456 U. S., at 482-483. "A State may not grant preclusive effect in its own courts to a constitutionally infirm judgment, and other state and federal courts are not required to accord full faith and credit to such a judgment." Id. , at 482 (footnote omitted).
In Phillips Petroleum Co. v. Shutts, this Court listed minimal procedural due process requirements a class-action money judgment must meet if it is to bind absentees; those requirements include notice, an opportunity to be heard, a right to opt out, and adequate representation. 472 U. S., at 812. "[T]he Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members." Ibid. (citing Hansberry v. Lee, 311 U. S. 32, 42-43, 45 (1940)). As the Shutts Court's phrase "at all times" indicates, the class representative's duty to represent absent class members adequately is a continuing one. 472 U. S., at 812; see also Gonzales v. Cassidy, 474 F. 2d 67, 75 (CA5 1973) (representative's failure to pursue an appeal rendered initially adequate class representation inadequate, so that judgment did not bind the class).
Although emphasizing the constitutional significance of the adequate representation requirement, this Court has recognized *396 the first line responsibility of the States themselves for assuring that the constitutional essentials are met. See Hansberry, 311 U. S., at 42.[5] Final judgments, however, remain vulnerable to collateral attack for failure to satisfy the adequate representation requirement. See id. , at 40, 42; see also Restatement (Second) of Judgments §§ 42(d) and (e), Comments e and f, pp. 406, 410-412 (1982) (noting, inter alia, that judgment is not binding on purportedly represented person where, to the knowledge of the opposing party, the representative seeks to advance his own interest at the expense of the represented person); see also id. , § 41, Comment a, p. 394 (if § 42 circumstances exist, "the represented person may avoid being bound either by appearing in the action before rendition of the judgment or by attacking the judgment by subsequent proceedings"). (Emphasis added.) A court conducting an action cannot predetermine the res judicata effect of the judgment; that effect can be tested only in a subsequent action. See 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1789, p. 245 (2d ed. 1986).
In Delaware, the constitutional due process requirement of adequate representation is embodied in Delaware Court of Chancery's Rule 23, a class-action rule modeled on its federal counterpart. Prezant, 636 A. 2d, at 923, 920. Delaware requires, as a prerequisite to class certification, that the named *397 plaintiffs "fairly and adequately protect the interests of the class." Del. Ch. Rule 23(a)(4). In Prezant, the Delaware Supreme Court considered whether adequate class representation was "a sine qua non for approval of a class action settlement," and concluded that it was. 636 A. 2d, at 920, 926. The state high court overturned a judgment and remanded a settlement because the Court of Chancery had failed to make an explicit finding of adequate representation. Id. , at 926.
The Delaware Supreme Court underscored that due process demands more than notice and an opportunity to opt out; adequate representation, too, that court emphasized, is an essential ingredient. Id. , at 924 (citing Phillips Petroleum Co. v. Shutts, 472 U. S., at 812). Notice, the Delaware Supreme Court reasoned, cannot substitute for the thorough examination and informed negotiation an adequate representative would pursue. Prezant, 636 A. 2d, at 924. The court also recognized that opt-out rights "are infrequently utilized and usually economically impracticable." Ibid.
The Vice Chancellor's evaluation of the merits of the settlement could not bridge the gap, the Delaware Supreme Court said, because an inadequate representative "taint[s]" the entire settlement process. Id., at 925.[6] "[A]n adequate representative," the Delaware Supreme Court explained, "vigorously prosecuting an action without conflict and bargaining at arms-length, may present different facts and a *398 different settlement proposal to the court than would an inadequate representative." Ibid. Consequently, the Delaware Supreme Court held, "in every class action settlement, the Court of Chancery is required to make an explicit determination on the record of the propriety of the class action according to the requisites of Rule 23(a) and (b)." Ibid.
In the instant case, the Epstein plaintiffs challenge the preclusive effect of the Delaware settlement, arguing that the Vice Chancellor never in fact made the constitutionally required determination of adequate representation. See id. , at 923.[7] They contend that the state court left unresolved key questions: notably, did the class representatives share substantial common interests with the absent class members, and did counsel in Delaware vigorously press the interests of the class in negotiating the settlement.[8] In particular, the Epstein plaintiffs question whether the Delaware class representativeswho filed the state lawsuit on September 26, 1990, two months before the November 26 tender offer announcementactually tendered shares in December, thereby enabling them to litigate a Rule 14d10 claim in federal court. They also suggest that the Delaware representatives undervalued the federal claimsclaims they could only settle, but never litigate, in a Delaware court. Finally, *399 the Epstein plaintiffs contend that the Vice Chancellor improperly shifted the burden of proof;[9] he rejected the Delaware objectors' charges of "collusion" for want of evidence while acknowledging that "suspicions [of collusion] abound." In re MCA, Inc. Shareholders Litigation, 1993 WL 43024, at *5.[10]
Mindful that this is a court of final review and not first view, I do not address the merits of the Epstein plaintiffs' contentions, or Matsushita's counterargument that the issue of adequate representation was resolved by full and fair litigation in the Delaware Court of Chancery.[11] These arguments remain open for airing on remand. I stress, however, the centrality of the procedural due process protection of adequate representation in class-action lawsuits, emphatically including those resolved by settlement. See generally J. Coffee, Suspect Settlements in Securities Litigation, N. Y. L. J., March 28, 1991, p. 5, col. 1.
NOTES
[*] Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.
Thaddeus Holt filed a brief for C. L. Grimes as amicus curiae urging affirmance.
[1] We express no opinion in this case on the existence of a private cause of action under §§ 14(d)(6) and (7) of the Securities Exchange Act of 1934, 15 U. S. C. §§ 78n(d)(6) and (7),the statutory authority for Rule 14d10.
[2] A previous settlement was rejected by the Court of Chancery as unfair to the class. See In re MCA, Inc. Shareholders Litigation, 598 A. 2d 687 (1991).
[3] Compare the decision below with Grimes v. Vitalink Communications Corp., 17 F. 3d 1553 (CA3), cert. denied, 513 U. S. 986 (1994); Nottingham Partners v. Trans-Lux Corp., 925 F. 2d 29 (CA1 1991); and Abramson v. Pennwood Investment Corp., 392 F. 2d 759 (CA2 1968).
[4] In fact, the Chancery Court rejected the first settlement, which contained no opt-out provision, as unfair to the class precisely because it believed that the settlement would preclude the class from pursuing their exclusively federal claims in federal court. See In re MCA, Inc. Shareholders Litigation, 598 A. 2d, at 692 ("[I]f this Court provides for the release of all the claims arising out of the challenged transaction, the claims which the Objectors have asserted in the federal suit will likely be forever barred").
[5] Apart from any discussion of Delaware law, respondents contend that the settlement proceedings did not satisfy due process because the class was inadequately represented. See Brief for Respondents 34-45. Respondents make this claim in spite of the Chancery Court's express ruling, following argument on the issue, that the class representatives fairly and adequately protected the interests of the class. Cf. Prezant v. De Angelis, 636 A. 2d 915, 923 (Del. 1994) ("[The] constitutional requirement [of adequacy of representation] is embodied in [Delaware] Rule 23(a)(4), which requires that the named plaintiff `fairly and adequately protect the interests of the class' "). We need not address the due process claim, however, because it is outside the scope of the question presented in this Court. See Yee v. Escondido, 503 U. S. 519, 533 (1992). While it is true that a respondent may defend a judgment on alternative grounds, we generally do not address arguments that were not the basis for the decision below. See Peralta v. Heights Medical Center, Inc., 485 U. S. 80, 86 (1988).
[6] Respondents argue that their failure to opt out of the settlement class does not constitute consent to the terms of the settlement under traditional contract principles. Brief for Respondents 16-25. Again, the issue raised by respondentswhether the settlement could bar this suit as a matter of contract law, as distinguished from § 1738 lawis outside the scope of the question on which we granted certiorari. We note, however, that if a State chooses to approach the preclusive effect of a judgment embodying the terms of a settlement agreement as a question of pure contract law, a federal court must adhere to that approach under § 1738. Kremer v. Chemical Constr. Corp., 456 U. S. 461, 481-482 (1982).
[7] Though the plaintiff class premised one of its claims of fiduciary breach on the allegation that MCA wasted corporate assets by exposing the corporation to liability under the federal securities laws, the cause pleaded was nonetheless a state common-law action for breach of fiduciary duty.
[8] Kalb v. Feuerstein, 308 U. S. 433 (1940), is not to the contrary. In that case, the federal statute at issue expressly prohibited certain common-law actions from being either instituted or maintained in state court. Id., at 440-441. Thus, by merely entertaining a common-law foreclosure suit, over which it otherwise would have had jurisdiction, the state court violated the terms of the Act. That is not the situation here, where there is no contention that just by entertaining the class action the Delaware court acted in violation of federal law.
[1] Two sets of plaintiffs filed complaints in the Central District of California: the Epstein plaintiffs (including Lawrence Epstein, John Linder, Jane Rockford, Maurice Karlin, Ruth Karlin, Beth Karlin, and Bert Karlin) sued both individually and on behalf of all MCA shareholders at the time of the tender offer; Walter Minton brought suit in his individual capacity. All had tendered their shares for the $71 tender price. The District Court consolidated the two cases. Minton and, it appears, Rockford opted out of the Delaware class-action settlement. Matsushita does not contest the qualification of Minton and Rockford, as individuals, to pursue federal claims unimpeded by the settlement in Delaware. See Brief for Petitioners ii. Matsushita does contest any class-action initiative in federal court.
[2] The subsidiary in question was spun off from MCA during the merger because it owned a television station that federal law prohibited Matsushita from acquiring. The $71 tender offer price included $5 worth of stock in this new corporation.
[3] Closest in point, the court said, were Grimes v. Vitalink Communications Corp., 17 F. 3d 1553 (CA3 1994), and Nottingham Partners v. TransLux Corp., 925 F. 2d 29 (CA1 1991). See Epstein v. MCA, Inc., 50 F. 3d 644, 662 (CA9 1995).
[4] In its endeavor to forecast Delaware preclusion law, the Court appears to have blended the "identical factual predicate" test applied by the Delaware Supreme Court in Nottingham Partners v. Dana, 564 A. 2d 1089, 1106-1107 (1989), with the broader "same transaction" test advanced by Matsushita. See ante, at 376-378.
[5] Many States, including Delaware, have class-action rules corresponding to Federal Rule of Civil Procedure 23, a rule ranking adequacy of representation as a prerequisite to maintaining a class action. See 3 H. Newberg & A. Conte, Newberg on Class Actions, App. 13-1 (3d ed. 1992) (listing 39 States and the District of Columbia with rules comparable to the amended Federal Rule of Civil Procedure 23);Fed. Rule Civ. Proc. 23(a)(4) (representatives may sue on behalf of the class only if "the representative parties will fairlyand adequately protect the interests of the class"); see also General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 157-158, n. 13 (1982) (Federal Rule of Civil Procedure 23(a)(4)'s adequate representation requirement "raises concerns about the competency of class counsel and conflicts of interest," in addition to the question whether the representative shares the interests of the class members).
[6] Inboth Prezant and the instant case, a temporary settlement class device was used, telescoping the inquiry of adequate representation into the examination of the fairness of the settlement. According to the Delaware Supreme Court, however, this near simultaneity does not relieve the representative of her duty to demonstrate, nor the court of its duty to determine, the adequacy of representation. Prezant, 636 A. 2d,at 923. In a comprehensive opinion, the Third Circuit reached the same conclusion after examining the temporary class settlement device in the context of Federal Rule of Civil Procedure 23. See In re General Motors Corp. Pick-up Truck Fuel Tank Products Liability Litigation, 55 F. 3d 768, 794-800 (1995).
[7] The Vice Chancellor did not have the benefit of the Delaware Supreme Court's clear statement in Prezant, decided one year after this settlement was approved. In Prezant, however, the Delaware Supreme Court largely reiterated and applied what this Court had stated almost a decade earlier in Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 808, 812 (1985). See also 2 R. Balotti & J. Finkelstein, Delaware Law of Corporations and Business Organization § 13.22,p.13-131, and n. 578 (2d ed. 1996 Supp.).
[8] The order approving the class for settlement purposes, the Epstein plaintiffs urge, contains no discussion of the adequacy of the representatives, see App. 198, and the order and final judgment approving the settlement contains only boilerplate language referring to the adequacy of representation, see id., at 204-205. The Delaware Supreme Court approved the Court of Chancery's judgment in a one paragraph order. See In re MCA, Inc. Shareholders Litigation, 633 A. 2d 370 (1993) (judgt. order).
[9] Delaware law appears to place the burden of proof on the classrepresentatives. See 2 Balotti & Finkelstein, supra, at 11, n. 7, § 13-17, p.13-121 (class representative must prove satisfaction of Del. Ch. Rule 23(a) requirements, including adequacy of representation); see also 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1765, pp. 273-274, and n. 29 (2d ed. 1986); 3B J. Moore, Moore's Federal Practice § 23.02-2 (2d ed. 1995).
[10] In this regard, it is noteworthy that Matsushita did not move to dismiss the Delaware action after the Vice Chancellor, in rejecting the first proposed settlement, surveyed the state-law claims and found them insubstantial. See In re MCA, Inc. Shareholders Litigation, 598 A. 2d 687, 694 (Del. Ch. 1991) (Vice Chancellor described "the asserted state law claims" as "at best, extremely weak" and of "little or no value").
[11] Counsel for Matsushita acknowledged that relief from a judgment may be sought in Delaware pursuant to that State's counterpart to Federal Rule of Civil Procedure 60(b). See Tr. of Oral Arg. 51-52; Del. Ch. Rule 60; see also 2 Newberg & Conte, supra, at 9, n. 5, §§ 11.27, 11.63 (Federal Rule of Civil Procedure 60(b) provides an avenue to challenge the adequacy of representation in a class settlement). | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/110291/ | 447 U.S. 54 (1980)
NEW YORK GASLIGHT CLUB, INC., ET AL.
v.
CAREY.
No. 79-192.
Supreme Court of United States.
Argued February 19, 1980.
Decided June 9, 1980.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
*56 Albert N. Proujansky argued the cause for petitioners. With him on the brief was Marvin Luboff.
James I. Meyerson argued the cause and filed a brief for respondent.
Harriet S. Shapiro argued the cause for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General McCree, Assistant Attorney General Days, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager.[*]
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the question whether, under Title VII of the Civil Rights Act of 1964, a federal court may allow the prevailing party attorney's fees for legal services performed in prosecuting an employment discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke.
I
Respondent Cidni Carey, in August 1974, applied for work as a cocktail waitress with petitioner New York Gaslight Club, Inc. After an interview, she was advised that no position was available.
The following January, respondent filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners, the Club and its manager, had denied her a position because of her race. App. to Brief for Respondent a1-a3. As required by § 706 (c) of Title VII of the Civil *57 Rights Act of 1964, 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (c), respondent's complaint was forwarded to the New York State Division of Human Rights (Division).
In May 1975, after an investigation during which respondent was represented by counsel,[1] the Division found probable cause to believe that petitioners had engaged in an unlawful discriminatory practice. Efforts at conciliation failed, and the Division, pursuant to N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979), recommended that a public hearing be held.
Counsel for respondent wrote to the EEOC on May 20, advising the Commission that respondent was proceeding in the Division. He asked that the Commission "reassume" jurisdiction over the claim so that, if necessary, respondent could obtain a right-to-sue letter at an appropriate time. On May 22, the EEOC responded, stating that an investigator would be assigned to respondent's matter as soon as possible.
The state administrative hearing was held on two separate days in late 1975 and early 1976. Both respondent and petitioners were represented by counsel. App. 68. No attorney for the State appeared. On August 13, 1976, the hearing examiner found that petitioners had discriminated against respondent because she is black. Id., at 70. Petitioners were ordered to offer respondent employment as a cocktail waitress and to pay her back wages from August 1974. Id., at 70-72. No attorney's fee was awarded.
Petitioners appealed to the New York State Human Rights Appeal Board, an agency established to hear appeals from orders of the Division. N. Y. Exec. Law § 297-a (McKinney 1972 and Supp. 1979). The Board held a hearing in December 1976 at which counsel for petitioners, respondent, and the Division appeared.
*58 Meanwhile, EEOC proceedings had begun. Giving due weight to the state finding of probable cause, see § 706 (b), 42 U. S. C. § 2000e-5 (b), the EEOC determined that there was reasonable cause to believe petitioners had violated Title VII. The EEOC's attempts at conciliation also failed. The Commission's General Counsel chose not to sue, and, as required by § 706 (f) (1), § 2000e-5 (f) (1), the EEOC issued respondent a right-to-sue letter. This was issued on July 13, 1977; respondent, under § 706 (f) (1), then had 90 days to file a Title VII action in federal district court.
On August 26, the Appeal Board confirmed the Division's order. Petitioners immediately appealed the Board's decision to the New York Supreme Court. The Division cross-petitioned for enforcement of its order.
On September 30, respondent filed suit in the United States District Court for the Southern District of New York, asserting claims under the Civil Rights Act of 1866, 42 U. S. C. § 1981, Title VII, and the Thirteenth Amendment. App. 29. Respondent alleged that petitioners did not hire her because she is black, and that petitioner Club had employed only four blacks as waitresses during its 20-year existence. The complaint sought a declaratory judgment that petitioners' practices were unlawful under federal law, an order requiring petitioners to hire respondent, backpay with interest, retroactive employment-related benefits, attorney's fees, and other appropriate relief. Petitioners' answer denied virtually all the allegations in the complaint and cited the pendency of the state proceedings as an affirmative defense.
The Appellate Division of the New York Supreme Court on November 3 unanimously affirmed the Appeal Board's determination. New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App. Div. 2d 852, 399 N. Y. S. 2d 158 (1977). Petitioners unsuccessfully moved for reargument, and then filed a motion with the New York Court of Appeals for leave to appeal.
*59 On February 3, 1978, while that motion was pending, the Federal District Court held a pretrial conference, after which petitioners agreed that if the state court denied their motion for leave to appeal, they would comply with the Division's order. App. 73. One week later the New York Court of Appeals denied petitioners' motion. 43 N. Y. 2d 951 (1978).
The parties thereafter apparently agreed that the federal action could be dismissed, except for respondent's request for attorney's fees. See App. 75-79. Respondent sought an award for 82 hours of attorney's time. Of that total, 9 hours were spent in preparing and filing the EEOC charge and the federal suit, 22 hours were spent in preparing and presenting the case before the hearing examiner, 29 hours were spent in defending the Division's order before the Appeal Board and the state courts, and 22 hours were spent seeking the fee award. App. to Pet. for Cert. A39-A40.
In July 1978, the District Court dismissed respondent's complaint, App. 35, but left pending the application for attorney's fees. After further briefing, the court denied the fee request. 458 F. Supp. 79 (SDNY 1978).
The District Court found the propriety of the EEOC's issuance of a right-to-sue letter while state proceedings were pending "very doubtful." Id., at 80. Although the EEOC's action had given respondent no choice but to preserve her rights by filing a complaint in federal court, the District Court ruled that the mere filing of a federal suit does not entitle an aggrieved party to attorney's fees. The court reasoned that the fortuity of a need to file a protective federal suit should not make the defendants responsible for the costs of representing the plaintiff in the state forums. Id., at 81.
The District Court also relied on its conclusion that respondent "had the option of pursuing her state administrative remedies without incurring any expenses at all for legal services," since state law, N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1978), provides that the case in support of the complaint is to be presented to the hearing examiner by one *60 of the attorneys for the Division. 458 F. Supp., at 81. The decision in Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977), upholding an award of attorney's fees for prosecution of a federal employee's Title VII claim in mandatory preliminary proceedings within the employee's agency, was distinguished on the ground that the agency did not provide an independent attorney to prosecute the complaint. 458 F. Supp., at 81.
A divided panel of the United States Court of Appeals for the Second Circuit reversed. 598 F. 2d 1253 (1979). The court ruled: "A complaining party who is successful in state administrative proceedings after having her complaint under Title VII referred to a state agency in accordance with the statutory scheme of that Title is entitled to recover attorney's fees in the same manner as a party who prevails in federal court." Id., at 1260. The court relied on several factors in reaching its decision. Among them were the significant role of state human rights agencies in the Title VII enforcement scheme; the statute's strong preference for administrative resolution of a discrimination complaint; the importance of providing an incentive for complete development of the administrative record; the language of the statute's fee provision; and the desirability of encouraging a complainant to retain private counsel notwithstanding participation of a Division attorney at certain points during the state proceedings.
We granted certiorari, 444 U. S. 897 (1979), to consider this question that is significant to the enforcement of the antidiscrimination provisions of Title VII.
II
Section 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k), provides:
"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs."
*61 The question presented is whether, in the words of the statute, respondent was the "prevailing party" in an "action or proceeding under this title." An examination of the language and history of the statute, the nature of the proceedings in which respondent participated, and the relationship of those proceedings to Title VII's enforcement mechanisms, together persuade us that Congress clearly intended to authorize awards of attorney's fees to persons in respondent's situation.
The words of § 706 (k) leave little doubt that fee awards are authorized for legal work done in "proceedings" other than court actions. Congress' use of the broadly inclusive disjunctive phrase "action or proceeding" indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings. This conclusion is supported by a comparison of § 706 (k) with another fee provision in the same Act, namely, § 204 (b) of Title II, 78 Stat. 244, 42 U. S. C. § 2000a-3 (b). The pertinent language of § 204 (b) is identical to that of § 706 (k) except that § 204 (b) permits an award only with respect to "any action commenced pursuant to this title." The two provisions were enacted contemporaneously as parts of the Civil Rights Act of 1964. The omission of the words "or proceeding" from § 204 (b) is understandable, since enforcement of Title II depends solely on court actions. See Newman v. Piggie Park Enterprises, 390 U. S. 400, 401 (1968). It is apparent, therefore, that the two fee provisions were carefully tailored to the enforcement scheme of each Title. It cannot be assumed that the words "or proceeding" in § 706 (k) are mere surplusage.
It might be argued that the words "or proceeding" authorize fee awards only for work done in federal administrative proceedings,[2] such as those before the EEOC, but not for *62 state administrative or state judicial proceedings. This reading at least would not render the words "or proceeding" a complete nullity. We find nothing in the statute, however, to suggest that Congress intended to draw this particular line. Rather, other provisions of the statute that interact with § 706 (k); the purpose of § 706 (k); the humanitarian remedial policies of Title VII; and the statute's structure of cooperation between federal and state enforcement authorities, all point to the opposite conclusion.
Section 706 (k) authorizes a fee award to the prevailing party in "any . . . proceeding under this title." (Emphasis added.) The same Title creates the system of deferral to state and local remedies. The statute uses the word "proceeding" to describe the state and local remedies to which complainants are required to resort. For example, § 706 (c), 86 Stat. 104, provides:
"[N]o charge may be filed . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. . . . If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent. . . ." (Emphasis added).
Indeed, throughout Title VII the word "proceeding," or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, *63 administrative and judicial.[3] The conclusion that fees are authorized for work done at the state and local levels is inescapable.
This Court recently examined the legislative history and purpose of § 706 (k). In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), it was noted that, although the legislative history of § 706 (k) is "sparse," 434 U. S., at 420, it is clear that one of Congress' primary purposes in enacting the section was to "make it easier for a plaintiff of limited means to bring a meritorious suit." Ibid., quoting 110 Cong. Rec. 12724 (1964) (remarks of Sen. Humphrey). Because Congress has cast the Title VII plaintiff in the role of "a private attorney general," vindicating a policy "of the highest priority," a prevailing plaintiff "ordinarily is to be awarded attorney's fees in all but special circumstances." 434 U. S., at 416, 417. See also Newman v. Piggie Park Enterprises, 390 U. S., at 402. It is clear that Congress intended to facilitate the bringing of discrimination complaints. Permitting an attorney's fee award to one in respondent's situation furthers this goal, while a contrary rule would force the complainant to bear the costs of mandatory state and local proceedings and thereby would inhibit the enforcement of a meritorious discrimination claim.
Title VII establishes a comprehensive enforcement scheme in which state agencies are given "a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination." Oscar Mayer & Co. v. Evans, 441 U. S. 750, 755 (1979). Congress envisioned that Title VII's procedures and remedies would "mes[h] nicely, logically, and coherently with the State and city legislation," and that remedying employment *64 discrimination would be an area in which "[t]he Federal Government and the State governments could co-operate effectively." 110 Cong. Rec. 7205 (1964) (remarks of Sen. Clark).
Pursuant to this policy of cooperation, Title VII provides that where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice and in which an agency has been established to enforce that law, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706 (c). In practice, § 706 (c) has resulted in EEOC's development of a referral and deferral system, which the Court approved in Love v. Pullman Co., 404 U. S. 522 (1972). When a charge is filed with the EEOC prior to exhaustion of state or local remedies, the Commission refers the complaint to the appropriate local agency. The EEOC then holds the complaint in "suspended animation." Id., at 526. Upon termination of the state proceedings or expiration of the 60-day deferral period, whichever comes first, the EEOC automatically assumes concurrent jurisdiction of the complaint. Ibid.[4]
Of course, the "ultimate authority" to secure compliance with Title VII resides in the federal courts. Alexander v. Gardner-Denver Co., 415 U. S. 36, 44-45 (1974). The statute *65 authorizes civil enforcement actions by both the EEOC and the private plaintiff. After the deferral period, the EEOC assumes jurisdiction, and, "as promptly as possible" it determines whether there is probable cause to believe that the charge is true. § 706 (b). After an additional 30 days, the EEOC is authorized to bring an action, in which the complainant has an absolute right to intervene. § 706 (f). If the Commission does not file suit, or enter into a conciliation agreement to which the complainant is a party, within 180 days after it reassumes jurisdiction, it must issue a "right to sue" letter notifying the complainant of his right to bring an action within 90 days. Ibid.[5]
It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief. See Alexander v. Gardner-Denver Co., 415 U. S., at 48-50.
The construction of § 706 (k) that petitioners advocate clashes with this congressional design. Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. See n. 6, infra. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme.
The District Court felt that granting a fee award to respondent would be a "windfall" based on the unforeseeable fortuity that filing a protective federal suit became necessary. 458 F. Supp., at 81. We agree with the District Court that the *66 availability of a federal fee award for work done in state proceedings following EEOC referral and deferral should not depend upon whether the complainant ultimately finds it necessary to sue in federal court to obtain relief other than attorney's fees. But our agreement with the District Court compels us to reject its conclusion. It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress' plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that § 706 (f) (1)'s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state and local proceedings.[6]
III
Against the strong considerations favoring an award of fees, petitioners make three arguments. First, they contend that awarding fees for work done in state proceedings for *67 which the State does not authorize fees[7] infringes on the State's powers under the Tenth Amendment. Second, they argue that Congress' intent to pre-empt the state law has not been clearly expressed. Third, they contend that even if § 706 (k) authorizes fees for work done in state proceedings in some instances, denial of an award here was within the District Court's discretion.
We must reject petitioners' Tenth Amendment argument. Congress' power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees in connection with state proceedings. See Hutto v. Finney, 437 U. S. 678 (1978); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976).
Petitioners cite Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), Schwartz v. Texas, 344 U. S. 199 (1952), and Florida v. United States, 282 U. S. 194 (1931), in support of their argument that Congress' intent to pre-empt state regulation of the administration of state proceedings is not clearly expressed in § 706 (k) and should not be inferred. We find these cases inapposite. Section 706 (k) does not "pre-empt" state law. "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Alexander v. Gardner-Denver Co., 415 U. S., at 48-49. Title VII explicitly leaves the States free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums. § 706 (f) (1). One aspect of complete relief is an *68 award of attorney's fees, which Congress considered necessary for the fulfillment of federal goals. Provision of a federal award of attorney's fees is not different from any other aspect of the ultimate authority of federal courts to enforce Title VII. For example, if state proceedings result in an injunction in favor of the complainant, but no award for backpay because state law does not authorize it, the complainant may proceed in federal court to "supplement" the state remedy. The state law which fails to authorize backpay has not been pre-empted. In any event, if it can be said that § 706 (k) pre-empts the state rule, we believe that Congress' intent to achieve this result is manifest.
We also find no merit in petitioners' suggestion that denial of a fee award was within the District Court's discretion. As noted earlier, the court's discretion to deny a fee award to a prevailing plaintiff is narrow. Absent "special circumstances," see Newman v. Piggie Park Enterprises, 390 U. S., at 402; Christiansburg Garment Co. v. EEOC, 434 U. S., at 416-417, fees should be awarded. Petitioners argue that the availability of a Division attorney to present the "case in support of the complaint" is a "special circumstance" which should deprive a prevailing complainant of a fee award. Clearly, however, an attorney is needed to assist the complainant during the state proceedings, and the Division employee does not take the place of private counsel.
The New York state procedure, to which respondent's charge was referred, provides for adversary quasi-judicial hearings leading to findings of fact, administrative appeals, and judicial review. The first stage of the state administrative action is the investigation; this results in either a finding of probable cause or a dismissal of the complaint. N. Y. Exec. Law § 297 (2) (McKinney Supp. 1979). A finding of probable cause after investigation is a necessary prelude to the public hearing. § 297 (4) (a). State law makes no provision for the participation of a Division attorney in the investigation, and a complainant is not represented by a Division attorney *69 at this preliminary stage. See Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 4-5.
Following the investigation, the Division attempts to conciliate the complainant's grievance with the employer. N. Y. Exec. Law §§ 297 (3) (a), (b), and (c) (McKinney 1972). No Division attorney participates in the conciliation efforts on behalf of the complainant, and the Division staff is even empowered to execute a settlement agreement with the employer over the complainant's objections. § 297 (3) (c).
If efforts at conciliation fail and a hearing is scheduled, state law provides:
"The case in support of the complaint shall be presented by one of the attorneys or agents of the division and, at the option of the complainant, by his attorney. With the consent of the division, the case in support of the complainant may be presented solely by his attorney." § 297 (4) (a) (McKinney Supp. 1979).
At the time of the hearing on respondent's complaint, however, the practice of the Division was to involve one of its attorneys only if the complainant was not represented by private counsel. Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5.[8] Complainants were "encouraged" to obtain private counsel due to a growing caseload and staff limitations. App. to Pet. for Cert. A58-A59.
At the appellate level, the Division attorney appears only to support and seek enforcement of orders issued by the Division and the Appeal Board. N. Y. Exec. Law § 298 (McKinney Supp. 1979). The Division attorney does not *70 represent the complainant on an appeal from an order adverse to the claimant. In addition, the Division cannot appeal from an order of the Human Rights Appeal Board reversing a Division order. See Brief for New York State Attorney General and New York Division of Human Rights as Amici Curiae 5-6.
It is thus obvious that the assistance provided a complainant by the Division attorney is not fully adequate, and that the attorney has no obligation to the complainant as a client. In fact, at times the position of the Division may be detrimental to the interests of the complainant and to enforcement of federal rights. Representation by a private attorney thus assures development of a complete factual record at the investigative stage and at the administrative hearing. At both, settlement is possible and is encouraged. A Division employee cannot act as the complainant's attorney for purposes of advising him whether to accept a settlement. Retention of private counsel will help assure that federal rights are not compromised in the conciliation process.
If a Division attorney appears at the public hearing, he does not represent the interests of the complainant, but rather those of the State. Id., at 5; App. to Pet. for Cert. A59-A60. He presents the "case in support of the complaint," not in support of the complainant. N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979). Upon appeal, the Division attorney is authorized only to support the order entered by the Division or the Appeal Board. Without doubt, the private attorney has an important role to play in preserving and protecting federal rights and interests during the state proceedings.[9]
*71 In sum, we conclude that §§ 706 (f) and 706 (k) of Title VII authorize a federal-court action to recover an award of attorney's fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII. We also conclude that no special circumstances exist in this case that would justify denial of a fee award.
The judgment of the Court of Appeals is therefore affirmed.
It is so ordered.
THE CHIEF JUSTICE joins the Court's opinion except footnote 6 thereof; in his view, resolution of the issue dealt with in that footnote is not necessary.
MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST would reverse the judgment essentially for the reasons given by Judge Mulligan in dissenting from the judgment of the Court of Appeals.
MR. JUSTICE STEVENS, concurring in the judgment.
While I agree with most of what is said in the Court's opinion, it is useful to emphasize that this federal litigation was commenced in order to obtain relief for respondent on the merits of her basic dispute with petitioners, and not simply to recover attorney's fees. Whether Congress intended to authorize a separate federal action solely to recover costs, including attorney's fees, incurred in obtaining administrative relief in either a deferral or a nondeferral State is not only doubtful but is a question that is plainly not presented by this record.
*72 On July 13, 1977, when the EEOC issued respondent a letter notifying her that she had a right to file an action in federal court, and on September 30, 1977, when she commenced her federal-court action, state judicial review of the state administrative proceedings had not yet been completed. It was not until sometime in February 1978, after the federal judicial proceeding had been pending for several months, that all questions other than the fee issue were finally removed from the federal case. It is clear, therefore, that under the plain language of § 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k),[*] the Federal District Court then had jurisdiction to allow the prevailing party to recover attorneys fees as a part of her costs.
A quite different question would be presented if, before any federal litigation were commenced, an aggrieved-party had obtained complete relief in the administrative proceedings. It is by no means clear that the statute, which merely empowers a "court" to award fees, would authorize a fee allowance when there is no need for litigation in the federal court to resolve the merits of the underlying dispute. Indeed, it is not even clear that the EEOC has the authority to issue a "right to sue" letter, empowering the complainant to bring suit in federal court, after the complainant has obtained complete relief on the merits of his claim in administrative proceedings. See § 706 (f) (1) of the Civil Rights Act of 1964 as amended, 42 U. S. C. § 2000e-5 (f) (1). In any event, the facts of this case present no occasion for the Court's resolution of the issue, ante, at 66. All that needs to be decided is whether an allowance of fees may properly cover the work *73 performed in the administrative proceedings that were a prerequisite to the court action. I agree with the Court's disposition of that issue, and would also observe that the same analysis would apply to work performed in appearing before the federal agency in a nondeferral State.
Accordingly, I concur in the judgment.
NOTES
[*] Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, Judith T. Kramer, Arnold Flescher, and Barbara Levy, Assistant Attorneys General, and Ann Thacher Anderson for the New York State Attorney General et al.; by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and Bill Lann Lee for the NAACP Legal Defense and Educational Fund, Inc.; and by Charles C. Parlin, Jr., and Peter Bienstock for the Puerto Rican Legal Defense & Education Fund, Inc.
[1] Respondent was represented by counsel employed by the NAACP Special Contribution Fund.
[2] In cases involving federal employees, all the Courts of Appeals that have considered the question have upheld fee awards under § 706 (k) for work done in federal administrative proceedings that must be exhausted as a condition to filing an action in federal court. E. g., Brown v. Bathke, 588 F. 2d 634, 638 (CA8 1978); Fischer v. Adams, 572 F. 2d 406 (CA1 1978); Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977); Foster v. Boorstin, 182 U. S. App. D. C. 342, 561 F. 2d 340 (1977); Johnson v. United States, 554 F. 2d 632 (CA4 1977).
[3] See, e. g., § 706 (f) (1), 78 Stat. 260, as redesignated, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f) (1) (court may stay "further proceedings" pending the termination of "State or local proceedings"); § 706 (i), 78 Stat. 261, as amended, 86 Stat. 107, 42 U. S. C. § 2000e-5 (i) (Commission may commence "proceedings" to compel compliance with court order).
[4] Other provisions of Title VII also evidence the policy of promoting federal-state cooperation in enforcement. Section 706 (b), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (b), requires the EEOC to "accord substantial weight" to a state administrative determination, and § 709 (b), 78 Stat. 262, as amended, 86 Stat. 108, 42 U. S. C. § 2000e-8 (b), authorizes the EEOC to "cooperate with State and local agencies charged with the administration of State fair employment practices laws" in funding research and other mutually beneficial projects, and to enter into work-sharing agreements with those agencies to facilitate the processing of complaints.
[5] We thus disagree with the District Court that the propriety of EEOC's issuance of the right-to-sue letter in this case is "very doubtful." 458 F. Supp. 79, 80 (SDNY 1978). As we read the statute, the Commission was required to issue the letter after 180 days, regardless of the posture of any state proceedings.
[6] We note that if fees were authorized only when the complainant found an independent reason for suing in federal court under Title VII, such a ground almost always could be found. Section 706 (f) (1) requires the EEOC to give the complainant a "right to sue" letter if, after it assumes concurrent jurisdiction over the complaint, it does not sue within 180 days. Thus, after waiting 240 days (60 days deferral to the state or local agency and 180 days for the EEOC to act after deferral), the complainant appears to have an absolute right to resort to an action in federal court. The federal court may stay the action for a maximum of 60 more days, to permit completion of state proceedings. § 706 (f) (1). It took three years for the New York proceedings in this case finally to provide respondent all the relief she desired other than attorney's fees. It is doubtful that the systems of many States could provide complete relief within 240 days. The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress' intent to encourage full use of state remedies.
[7] The Human Rights Law of the State of New York does not authorize an award of counsel fees for work done in either state administrative or judicial proceedings. See State Commission for Human Rights v. Speer, 35 App. Div. 2d 107, 111-112, 313 N. Y. S. 2d 28, 33 (1970), rev'd on other grounds, 29 N. Y. 2d 555, 272 N. E. 2d 884 (1971); State Division of Human Rights v. Gorton, 32 App. Div. 2d 933, 934, 302 N. Y. S. 2d 966, 968 (1969).
[8] On October 18, 1977, Division regulations were amended to provide for the presentation of the case in support of the complaint solely by the attorney for the complainant, upon consent of the Division. The regulation requires the Division attorney to submit a statement to the hearing examiner in lieu of appearance. 9 N. Y. C. R. R. § 465.11 (d) (2).
[9] We also reject petitioners' argument, not suggested in the petition for certiorari, that respondent's representation by a public interest group is a "special circumstance" that should result in denial of counsel fees. Federal Courts of Appeals' decisions are to the contrary. See, e. g., Reynolds v. Coomey, 567 F. 2d 1166 (CA1 1978); Torres v. Sachs, 538 F. 2d 10, 13 (CA2 1976). Congress endorsed such decisions allowing fees to public interest groups when it was considering, and passed, the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988, which is legislation similar in purpose and design to Title VII's fee provision. See H. R. Rep. No. 94-1558, pp. 5 and 8, n. 16 (1976).
[*] That section provides in part:
"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ." | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1528140/ | 982 F. Supp. 609 (1997)
Joseph J. CECALA, et al., Plaintiffs,
v.
Edward F. MOORE, et al., Defendants.
No. 97 C 5252.
United States District Court, N.D. Illinois, Eastern Division.
November 17, 1997.
*610 Daniel K. Touhy, Timothy J. Touhy & Associates, Joseph John Cecala, Chicago, IL, for Plaintiffs.
Paul R. Shuldiner, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
Plaintiffs Joseph J. Cecala and Valerie A. Cecala have filed a one-count complaint for damages against defendants Edward F. Moore and Maureen M. Moore, claiming a violation of the Illinois Residential Real Property Disclosure Act ("Disclosure Act"), 765 Ill. Comp. Stat. 77/1-99. This suit, originally filed in Cook County Circuit Court, was removed to this court upon petition of defendants pursuant to 28 U.S.C. § 1441. The court's jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332. Defendants have moved to stay the proceedings pending arbitration pursuant to Section 3 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 3. For the reasons set forth below, the motion is granted pursuant to the Illinois Uniform Arbitration Act ("IUAA"), 710 Ill. Comp. Stat. 5/1-23.
*611 BACKGROUND/FACTS[1]
Plaintiffs are residents of Park Ridge, Illinois, and defendants are residents of Michigan. On April 30, 1996, plaintiffs purchased a residence (108 South Merrill Street, Park Ridge) from defendants for the sum of $313, 750. Prior to closing, defendants had executed and delivered to plaintiffs a Residential Real Property Disclosure Report ("Disclosure Report") as required by the Disclosure Act. In that report, defendants indicated, inter alia, that they were not aware of any "flooding or recurring leakage problems in the crawlspace or basement" or of any "material defects in the basement or foundation," and that to their knowledge the property was not "located in a flood plain." On May 9, 1996, nine days after plaintiffs occupied the residence, the basement flooded from rainfall; subsequently, rainfall water "leaked, flooded, seeped and otherwise flowed into the basement" on a number of occasions, resulting (on some occasions) in standing water covering the foundation of the garage and driveway. As a consequence, plaintiffs were forced to make expenditures to prevent recurring flooding and to repair damage.
Plaintiffs allege that in the Disclosure Report, defendants "falsely and fraudulently" represented that the property did not leak or flood, thereby violating the Disclosure Act by, (1) failing to disclose a material defect, see 765 Ill. Comp. Stat. 77/25(b), and (2) knowingly disclosing false information in a Residential Real Property Disclosure Report, see 765 Ill. Comp. Stat. 77/55. Plaintiffs further allege that they relied on defendants' "false and untrue statements" in entering into the purchase contract, and suffered injury as a result.
Defendants have moved to stay this proceeding pursuant to a mediation provision in the contract between the parties, and pursuant to Section 3 of the FAA. Under that mediation clause, the parties agreed that "any and all disputes or claims ... arising out of or relating to" the contract would be submitted to mediation. Plaintiffs argue that their complaint is based on the Disclosure Report and its alleged violation of the Disclosure Act, and that as such it arises from Illinois statutory law and not from the contract. Therefore, plaintiffs argue that the complaint is not within the scope of the mediation provision. Defendants argue that the complaint does arise from the contract and that it does fall within the scope of the mediation clause.
DISCUSSION
Before addressing the contentions of the parties, the court must first determine whether the FAA is applicable to this dispute. Section 2 of the FAA makes enforceable "only those arbitration agreements `in any maritime transaction or a contract evidencing a transaction involving commerce.'" Snyder v. Smith, 736 F.2d 409, 417 (7th Cir.1984) (quoting 9 U.S.C. § 2); see also United States Fidelity & Guar. Co. v. Bangor Area Joint Sch. Auth., 355 F. Supp. 913, 916 (E.D.Pa.1973). Because there is no maritime transaction here, the court must decide whether the contract evidences a transaction involving commerce for purposes of the FAA. Because of the liberal federal policy favoring arbitration agreements, the requirement of "evidencing a transaction involving commerce" is to be construed very broadly. See Snyder, 736 F.2d at 417-18. For example, the Supreme Court has refused to limit the applicability of the FAA to contracts for the interstate shipment of goods. Id. (citing Prima Paint Corp. v. Flood & Conklin Mfg., 388 U.S. 395, 401 n. 7, 87 S. Ct. 1801, 1804-05, n. 7 18 L. Ed. 2d 1270 (1967)). Further, it has been stated that "[t]he slightest nexus of an agreement with interstate commerce will bring the agreement within the FAA." A.J. Taft Coal Co. v. Randolph, 602 So. 2d 395, 397 (Ala.1992). Nevertheless, not every agreement evidences a transaction involving commerce.
In Mathews v. Fluor Corp., 312 S.C. 404, 440 S.E.2d 880, 881 (1994), the purchasers of real estate alleged that the sellers had fraudulently misrepresented the condition of the property. The sellers moved to stay the proceedings and compel arbitration pursuant to the FAA. The property at issue was in South Carolina, the seller was a California *612 entity and the buyer was a Pennsylvania partnership. In addition, transactions incident to the sale took place in jurisdictions outside South Carolina. Nevertheless, the Supreme Court of South Carolina held that the contract "did not involve interstate commerce as defined in the Federal Arbitration Act," and that it was therefore outside the scope of the FAA. Id. at 881-82. Mathews is similar to the instant case, but in Mathews there was arguably more justification for finding a transaction involving commerce. There, although the property itself was in South Carolina, both the purchaser and seller were in other, different states. In addition, transactions incident to the sale took place in jurisdictions outside South Carolina. In the instant case, only the seller is outside Illinois, and there is no evidence that transactions incident to the sale took place outside Illinois.[2] If there was no interstate commerce in Mathews, there certainly is none in the instant case. The court concludes that the contract for sale of real estate in the instant case does not evidence a transaction involving interstate commerce. The FAA therefore is inapplicable.
That does not end the inquiry, however. In such situations, courts have held that "a contract or agreement not predicated upon interstate commerce must be governed by state arbitration law." Shearson Hayden Stone, Inc. v. Liang, 493 F. Supp. 104, 106 (N.D.Ill.1980); see also Howard Fields & Associates v. Grand Wailea Co., 848 F. Supp. 890, 893 (D.Haw.1993). Because the contract was executed in Illinois, and plaintiff and the property are located in Illinois, the laws of that state would apply. See Dollar Properties, Inc. v. Myers Fin. Group, Inc., 719 F. Supp. 734, 735-36 (N.D.Ill.1989). In Illinois, contractual arbitration provisions are construed in light of the Illinois Uniform Arbitration Act, 710 Ill. Comp. Stat. 5/1-23, which to a certain extent tracks the language of the FAA.[3]See J & K Cement Constr., Inc. v. Montalbano Builders, Inc., 119 Ill.App.3d 663, 667, 75 Ill. Dec. 68, 456 N.E.2d 889 (2nd Dist.1983). Section 5/1 of the IUAA provides in pertinent part:
A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract....
710 Ill. Comp. Stat. 5/1 (emphasis added). Because there is no commerce requirement, the instant contract's lack of involvement in interstate commerce is not a defect under the IUAA. Nevertheless, it still must be determined whether the specific dispute at issue falls within the scope of the mediation clause.[4] If plaintiffs' contentions are correct *613 and the dispute is in fact separate from the contract and beyond the scope of the mediation clause, then it must be concluded that it falls outside the IUAA as well as the FAA. As plaintiffs correctly point out, "[t]he agreement of the parties governs which issues are subject to arbitration, and the parties are bound to arbitrate only those issues which the clear language of the agreement, unextended by construction or implication, shows they have agreed to arbitrate." Johnson v. Baumgardt, 216 Ill.App.3d 550, 558, 159 Ill. Dec. 846, 576 N.E.2d 515 (2nd Dist.1991).
Moreover, it must be determined whether this court has the authority to stay the current proceedings. Under the IUAA, there is authority for a court to stay proceedings pending arbitration. Section 5/2(d) provides in pertinent part: "Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section...." Beyond that, this court possesses an inherent power to stay an action pending arbitration. See United States Fidelity, 355 F.Supp. at 917-18. "Such a remedy is one which is within the inherent power of a court and does not require statutory authority.... [T]he power to stay proceedings is `incidental to the power inherent in every court to control the disposition of the causes on its docket....'" Id. (quoting Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Comm'n, 387 F.2d 768, 773 (3rd Cir.1967)). Hence, if the dispute at issue is found to arise out of or relate to the instant contract and so to be within the scope of the mediation clause, then this court concludes that it has the authority to stay the proceedings pending arbitration.
The court turns now to the contentions of the parties. Plaintiffs argue that their complaint arises from the Disclosure Report, which they allege is separate from the real estate contract. They maintain that defendants' completion and delivery of the Disclosure Report constituted a violation of the Illinois Disclosure Act, which provides its own remedy. That statutory breach, they argue, is just that, a statutory violation and not a breach of any provision in the contract. Hence, the complaint "does not fall within the scope of the contract," and the mediation clause is therefore inapplicable.
The mediation clause in the instant contract provides:
The parties hereto agree that any and all disputes or claims between Purchaser and Seller arising out of or relating to this Contract or the breach of this Contract shall be submitted to the NWAR HOME SELLERS/HOME PURCHASERS NON-BINDING MEDIATION SYSTEM and shall be mediated in accordance with the Rules and Procedures of said system. The cost of said mediation shall be shared equally between the parties, and shall not exceed $400 for a 1/2-day session.
Contract ¶ 33 (emphasis added).
Clauses such as this, stating that all claims "arising out of" or "relating to" a contract are subject to arbitration, "have been properly categorized as `generic' arbitration clauses." Johnson, 216 Ill.App.3d at 558, 159 Ill. Dec. 846, 576 N.E.2d 515. Plaintiffs note correctly that a dispute is within the scope of such a clause when it "arises out of the subject matter of the contract." Id. at 559, 159 Ill. Dec. 846, 576 N.E.2d 515 (emphasis added).[5] Plaintiffs of course assert that their complaint does not so arise, but in fact it clearly does. Generic arbitration clauses are viewed as being "very broad," J & K Cement, 119 Ill.App.3d at 670, 75 Ill. Dec. 68, 456 N.E.2d 889, including within their scope disputes similar to the one at issue here. For example, in J & K Cement, the court held that a claim of precontract fraud (which is essentially what plaintiffs here are alleging) was arbitrable under a broad arbitration clause which used the language "arising out of, or relating to." Id. at 669, 671-72, 75 *614 Ill.Dec. 68, 456 N.E.2d 889. "The majority of courts considering a claim of fraud concerning the contract as a whole as opposed to a fraudulent inducement to enter into an arbitration agreement [have] concluded that the fraud claim is within the scope of a broad arbitration clause." Id. at 671-72, 75 Ill. Dec. 68, 456 N.E.2d 889; see also Prima Paint, 388 U.S. at 399-404, 87 S.Ct. at 1803-06 (upholding decision that fraud in the inducement of a contract is arbitrable under the FAA). Further, in Johnson itself, a case cited by plaintiffs, the court held that issues not specifically enumerated in the contract fell within the scope of a broad arbitration clause. See 216 Ill.App.3d at 559, 159 Ill. Dec. 846, 576 N.E.2d 515.
It is clear that plaintiffs' complaint arises out of the subject matter of (relates to) the contract. Plaintiffs maintain that the "terms of the contract ... are irrelevant" to the Disclosure Report, that in fact the contract and the report are separate. However, if that were the case, plaintiffs would lack foundation for their statutory claim, which they maintain is the basis of their complaint. In that complaint, plaintiffs cite to Section 55 of the Disclosure Act, which provides in pertinent part:
[A] person who knowingly violates or fails to perform any duty prescribed by any provision of this Act or who discloses any information on the Residential Property Disclosure Report that he knows to be false shall be liable in the amount of actual damages ....
765 Ill. Comp. Stat. 77/55 (emphasis added). Without the contract (which plaintiffs attach as an exhibit to the complaint), plaintiffs would not have purchased and occupied the residence, and there would be no damages upon which to base a statutory claim.[6] Therefore, the complaint that defendants fraudulently induced plaintiffs to enter into the contract clearly "arises out of the subject matter of the contract" and falls within the scope of the broad mediation clause.
Moreover, there is another reason for concluding that the complaint falls within the scope of the mediation clause: that reason lies in the statutory basis of the complaint. It is that very statutory basis which plaintiffs insist puts their complaint outside the scope of the contract and mediation clause. However, claims based upon statutes clearly are subject to arbitration. In Cusamano v. Norrell Health Care, Inc., 239 Ill.App.3d 648, 180 Ill. Dec. 352, 607 N.E.2d 246 (4th Dist.1992), a claim of "precontract, allegedly fraudulent misrepresentations that violated the [Illinois] Franchise Disclosure Act" was held arbitrable even though it was based on a statute. Id. at 649, 657, 180 Ill. Dec. 352, 607 N.E.2d 246; see also Southland Corp. v. Keating, 465 U.S. 1, 16 n. 7, 17, 104 S. Ct. 852, 861 n. 7, 861-62, 79 L. Ed. 2d 1 (1984) (finding that broad arbitration clause covered claim based on statute). The Cusamano court also held that, as a prerequisite to finding the statutory claim arbitrable, the statute itself "automatically becomes part of every franchise contract to which it applies." Cusamano, 239 Ill.App.3d at 652, 180 Ill. Dec. 352, 607 N.E.2d 246. Surely that is the case here as well.
Section 10 of the Disclosure Act in the instant case provides that, barring specified exceptions, "this Act applies to any transfer by sale ... of residential real property." 765 Ill. Comp. Stat. 77/10. Section 20 of the Act provides:
A seller of residential real property shall complete all applicable items in the disclosure document described in Section 35 of this Act. The seller shall deliver to the prospective buyer the written disclosure statement required by this Act before the signing of a written agreement by the seller and prospective buyer that would, subject to the satisfaction of any negotiated contingencies, require the prospective buyer to accept a transfer of the residential real property.
765 Ill. Comp. Stat. 77/20.
Hence, the Disclosure Report is necessarily a precursor to every contract for transfer *615 of residential real property to which the Disclosure Act applies. Further, the report's subject matter is closely linked to such contracts: it discloses seller's representations as to "certain conditions of the residential real property," noting that (although such representations "are not deemed to be warranties") seller is aware that "prospective buyers may choose to rely on this information in deciding whether or not and on what terms to purchase the residential real property." 765 Ill. Comp. Stat. 77/35. The close relation between the Disclosure Report and the contract is clear. Therefore, the court holds, following Cusamano, that the requirements of the Disclosure Act become a part of every contract for transfer of residential real property to which it applies.
The court concludes that the instant complaint both arises from and relates to the contract between the parties, and therefore falls within the scope of the mediation clause. Accordingly, defendants' motion to stay the current proceedings pending mediation is granted.
CONCLUSION
For the reasons set forth above, defendants' motion to stay proceedings pending mediation is granted pursuant to the Illinois Uniform Arbitration Act, 710 Ill. Comp. Stat. 5/1-23. The status report set for November 20, 1997, is vacated. This matter is set for a status report on May 21, 1998, at 9:00 a.m., which allows the parties ample time to mediate the dispute. Should the mediation succeed in a settlement, plaintiff is directed to notify the court immediately.
NOTES
[1] For purposes of the motion, the facts have been taken from plaintiffs' complaint.
[2] Snyder is distinguishable from the instant case. In Snyder, one member of an Illinois partnership which owned real estate in Texas challenged the confirmation of an arbitration award setting the purchase price of a deceased partner's interest. See 736 F.2d at 412-13. In holding that the partnership agreement involved interstate commerce and so fell under the FAA, the court noted that the real estate at issue was in Texas, the partners lived in Illinois and the partnership was managed from Illinois. Id. at 418. On the surface, that seems similar to the instant case. However, even though the purchase in Snyder had real estate at its base, strictly speaking it was a purchase of a partnership interest and not of real estate. More importantly, in Snyder there was ongoing management of the Texas real estate from Illinois, while in the instant case there is no indication of any such ongoing management of the subject real estate from out-of-state.
[3] That is not surprising, given the two acts' common origins. Both the Uniform Arbitration Act (which forms the basis for the Illinois act) and the FAA are "patterned after the New York arbitration statute enacted in 1920." J & K Cement Constr., Inc. v. Montalbano Builders, Inc., 119 Ill.App.3d 663, 668, 75 Ill. Dec. 68, 456 N.E.2d 889 (2nd Dist.1983). For that reason, "courts interpreting State arbitration statutes patterned after the Uniform Arbitration Act look for guidance to Federal court decisions interpreting similar provision[s] of the Federal Arbitration Act." Id. In addition, the Illinois Supreme Court has stated that opinions from other jurisdictions "are given greater than usual deference in construing the Uniform Arbitration Act since the purpose of the act is to make uniform the laws of those states which enact it." Id.
[4] "Whether a dispute is within the scope of an arbitration clause `should be determined at the earliest possible moment and should be controlled by judicial guidelines.' The court and not the arbitrator should determine whether the issues in dispute are within the scope of the arbitration agreement." J & K Cement, 119 Ill. App.3d at 663, 75 Ill. Dec. 68, 456 N.E.2d 889 (citations omitted).
[5] There is an important distinction between arising "out of the subject matter of the contract" and arising from the contract itself. The former is equivalent to "relating to" the contract, which is one of the options included in the broad mediation clause used here. Hence, although plaintiffs' claim might not arise from the contract, it surely arises from its subject matter.
[6] Defendants argue that plaintiffs' complaint relates directly to paragraph 15 of the contract, which promises, inter alia, that plumbing systems will be in operating condition and that the foundation is free from leaks. It is not clear that such language, by itself, brings the complaint within the scope of the contract. Nevertheless, for reasons already noted, the court has concluded that the complaint arises from the subject matter of the contract. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8569591/ | TEXTO COMPLETO DE LA SENTENCIA
Los recurrentes de epígrafe nos solicitan la revisión de una resolución emitida por la Junta de Planificación mediante la cual se aprobó la consulta de ubicación sometida por Calrincón Corp.
Por los fundamentos que más adelante exponemos, expedimos el auto solicitado, revocamos la resolución recurrida y devolvemos el caso al foro de origen para la continuación de los procedimientos de forma compatible con lo aquí expuesto.
I
El 9 de mayo de 2002, Calrincón Corp., en lo sucesivo Calrincón, sometió ante la consideración de la Junta de Planificación la consulta de ubicación número 2001-25-0402-JPU para la construcción de un proyecto residencial multifamiliar en una finca con cabida de 8.82 cuerdas situada en la Carretera Estatal Número 413, kilómetro 1.0 en el Barrio Ensenada del Municipio de Rincón, Puerto Rico. El terreno en cuestión ubica en un distrito RT-1. El proyecto propuesto consta de 184 apartamentos, los cuales estarían distribuidos en cuatro edificios de tres niveles, y 320 estacionamientos.
El 12 de junio de 2002, la Junta de Planificación emitió una resolución en la cual acordó "dejar en suspenso por 30 días para que el proponente rediseñe el proyecto incorporando el elemento turístico que dispone el distrito vigente de acuerdo a la Zonificación de Interes Turístico aprobada por la Junta de Planificación, el concepto solicitado deberá conformar el Plan Territorial hasta donde éste ha sido estudiado".
El 23 de julio de 2002, el Sr. Wishinsky solicitó intervención ante la Junta de Planificación, la cual le fue *265concedida. Posteriormente, solicitó la celebración de una vista pública sobre la consulta de ubicación.
El 13 de febrero de 2003, la Junta de Planificación emitió otra resolución en la que reiteró lo que había dispuesto en la resolución anterior y en la que declaró sin lugar la solicitud para la celebración de vista pública.
El 7 de marzo de 2003, la Junta de Planificación emitió la resolución de la cual se recurre ante nos en la cual aprobó la consulta de ubicación solicitada por Calrincón. Dicha resolución fue notificada a las partes el 13 de marzo de 2003.
En el proceso de evaluación de la consulta de ubicación, la Junta de Planificación consultó y/o solicitó el endoso de diversas agencias gubernamentales, a saber: la Autoridad de Energía Eléctrica, Autoridad de Acueductos y Alcantarillados, el Instituto de Cultura Puertorriqueña, la Autoridad de Carreteras, el Departamento de Agricultura, la Junta de Calidad Ambiental, el Departamento de Recursos Naturales y el Municipio de Rincón.
En lo que aquí nos concierne, destacamos los comentarios y los endosos emitidos por el Departamento de Recursos Naturales y Ambientales (Recursos Naturales) y la Junta de Calidad Ambiental respecto a la referida consulta (Calidad Ambiental).
El 5 de noviembre de 2002, Recursos Naturales emitió una comunicación en la que endosó él proyecto propuesto, con la condición de que se cumplieran con varios reglamentos de la agencia y que se obtuviera de Calidad Ambiental el permiso para el control de erosión y sedimentación para minimizar la erosión hacia los cuerpos de agua cercanos al proyecto. Recursos Naturales advirtió que dicho endoso no constituia una autorización para mover material de la corteza terrestre ni para realizar ningún trabajo en el área hasta tanto se cumpliera con todos los reglamentos y reglas aplicables al movimiento de terreno y con el Reglamento para la Extracción de Material de la Corteza Terrestre.
Recursos Naturales señaló, además, que estaba de acuerdo con el plano de mensura sometido en el cual se establece el límite de la zona marítimo-terrestre y los seis (6) metros de servidumbre de la vigilancia del litoral dedicada a uso público, la cual deberá quedar libre de construcciones.
De otra parte, la Junta de Planificación, como agencia proponente, sometió ante Calidad Ambiental un documento titulado Evaluación Ambiental (EA) en el que sostuvo, en lo pertinente, que el proyecto objeto de estudio no causaría un impacto ambiental significativo en el sector en que estaría ubicado.
El 6 de marzo de 2002, Calidad Ambiental, luego de analizar dicha EA, le informó a la Junta de Planificación que la propuesta cumplía con el Artículo 4(c) de la Ley Núm. 9 de 18 de junio de 1970, conocida como Ley de Política Pública Ambiental, 12 L.P.R.A. secs. 1124(C). Calidad Ambiental también emitió ciertas recomendaciones y condiciones que los proponentes del proyecto en cuestión debían cumplir.
En la resolución recurrida, la Junta de Planificación hizo referencia a todos los comentarios y endosos suscritos por las agencias consultadas y concluyó, como cuestión de derecho, lo siguiente: (1) Jos .terrenos objeto de la consulta están comprendidos dentro de un distrito RT-1; (2) de acuerdo al Reglamento de Procedimientos Adjudicativos de la Junta de Planificación de 12 de noviembre de 1999, Reglamento Núm. 6031, le compete a la Junta de Planificación tramitar el desarrollo como una consulta de ubicación; (3) que la Sección 66.01 del Reglamento de Planificación Núm. 4 establece que la Junta de Planificación considerará los proyectos de apartamentos en los distritos RT-1 mediante consulta de ubicación; (4) que la consulta propuesta está en armonía con los Objetivos y Políticas Públicas del Plan de Usos de Terrenos de Puerto Rico. La Junta de Planificación señaló, además, que la aprobación de la consulta estaba sujeta a la condición de que se cumplieran diversos señalamientos y recomendaciones allí expuestas.
*266El 2 de marzo de 2003, los recurrentes solicitaron la reconsideración del dictamen emitido por la Junta de Planificación. En esa misma fecha, presentaron una moción de reconsideración ante el Departamento de Recursos Naturales y otra ante Calidad Ambiental.
El 8 de mayo de 2003, los recurrentes comparecieron ante nos mediante el recurso de revisión administrativa del título (KLRA-2003-00320) en el que impugnan la resolución emitida por la Junta de Planificación mediante la cual se aprobó la consulta de ubicación y los comentarios y certificaciones emitidas por Calidad Ambiental y Recursos Naturales. Los recurrentes formularon los siguientes señalamientos de error:
“1. erró el DRNA ql aprobar un deslinde de la zona marítimo-terrestre llevado a cabo en violación a los requisitos de notificación dek-Reglamento para el Aprovechamiento, Vigilancia, Conservación y Administración de las Aguas Territoriales, los. Terrenos Sumergidos bajo éstas y la Zona Marítimo-Terrestre.
2. erró la JCA al certificar que la Evaluación Ambiental sometida por la JP cumple con los requisitos procesales del Artículo 4(c) de la Ley sobre Política Pública Ambiental (12 L.P.R.A. sec. 1124(c)) y al JP al determinar que la Consulta de Ubicación propuesta no tendría impacto ambiental significativo.
3. erró la JP al aprobar la Consulta de ubicación sin que antes el proponente haya sometido el estudio hidrológico-hidráulico requerido por el Reglamento sobre Zonas Susceptibles a Inundaciones.
4. erró la JP al conceder variaciones reglamentarias en violación al Reglamento de Zonificación y la jurisprudencia aplicable.
5. erró al JP al aprobar la Consulta de Ubicación sin haber celebrado las vistas públicas requeridas por el Reglamento de Zonificación.
6. erró la JP al aprobar la consulta de ubicación sin tener el endoso del Instituto de Cultura Puertorriqueña.
7. erró la JP al aprobar una consulta de ubicación y emitir una resolución con condiciones diferentes a las que aparecen en el plano del proyecto aprobado junto a la misma consulta de ubicación. ”
El 14 de abril de 2003, la Junta de Planificación acogió la solicitud de reconsideración presentada por los recurrentes. Sin embargo, dicha resolución no le fue notificada a las partes hasta el 14 de mayo de 2003. El 27 de junio de 2003, la Junta de Planificación emitió una resolución, notificada a las partes el 2 de julio de 2003, en la cual denegó la referida solicitud de reconsideración.
A la luz del trámite reseñado, la Junta de Planificación compareció ante nos y solicitó la desestimación del recurso KLRA-2003-00320 por prematuro.
Calrincón también alegó que el recurso es prematuro y solicitó su desestimación. Adujo, además, que el recurso no había sido notificado a las partes con interés en el pleito (los señores Ramón Medina, Miguel Bonilla y Guillermo Torres) y a ARPE y que este Foro carecía de jurisdicción para revisar las decisiones emitidas por Calidad Ambiental y Recursos Naturales en lo que respecta a la consulta de ubicación solicitada. Calrincón también discutió los señalamientos de error levantados por los recurrentes.
Calidad Ambiental solicitó la desestimación del recurso por el fundamento de que la Asociación de Residentes de Rincón carece de legitimación activa.
Calrincón solicitó el traslado del presente recurso a la región judicial de Aguadilla-Mayagüez, porque el *267proyecto en cuestión está ubicado en el Municipio de Rincón. Por otro lado, los recurrentes alegaron que el panel correspondiente a la región judicial de San Juan es el que tiene facultad para atender el recurso de autos, puesto que todas las agencias administrativas involucradas en el caso están ubicadas en el Municipio de San Juan.
Los recurrentes se opusieron a todas las solicitudes presentadas por Calrincón y las distintas agencias.
Finalmente, el 1 de agosto de 2003, los recurrentes comparecieron nuevamente ante este Tribunal mediante la presentación del recurso de revisión administrativa KLRA-2003-00557 en el cual solicitaron la revisión de la resolución emitida por la Junta de Planificación el 27 de junio de 2003. Formularon los siguientes señalamientos de error:
“1. erró la JP al aprobar la consulta de ubicación sin que antes el proponente haya sometido el estudio hidrológico-hidráulico requerido por el Reglamento sobre Zonas Susceptibles a Inundaciones.
2. erró la JP al conceder variaciones reglamentarias en violación al Reglamento de Zonificación y la jurisprudencia aplicable.
3. erró la JP al aprobar la Consulta de Ubicación sin haber celebrado las vistas públicas requeridas por el Reglamento de Zonificación.
4. erró la JP al aprobar la Consulta de ubicación sin tener el endoso del Instituto de Cultura Puertorriqueña.
5. erró la JP al aprobar la Consulta de Ubicación y emitir una Resolución con condiciones diferentes a las que aparecen en el plano del proyecto aprobado junto a la misma consulta de ubicación. ”
El 10 de diciembre de 2003, le ordenamos al Procurador General que se expresara en tomo a las siguientes cuestiones: (1) moción de desestimación y objeción a la misma; (2) si el caso de título debe ser consolidado con el caso KLRA-2003-00557; (3) cuál es la facultad del Tribunal de Apelaciones para revisar los endosos de las agencias administrativas en un caso ante el Departamento de Recursos Naturales y Ambientales; (4) solicitud de traslado a la Región Judicial de Aguadilla y Mayagüez.
El Procurador General de Puerto Rico compareció ante nos en representación de Recursos Naturales y, entre otros asuntos, expresó lo siguiente:
“...valga advertir que en el presente caso los comentarios notificados por el DRNA incluían la descripción de un plano de deslinde de la zona marítimo-terrestre que fue certificado por la agencia compareciente. Es necesario reconocer que dicho plano fue aprobado sin notificar a los dueños de los predios colindantes (Artículo 3.1 del Reglamento 4860). Por ello, la consulta de ubicación aprobada adolece de esta deficiencia. Ante esta realidad, procede se devuelva el caso a la Junta de Planificación a los fines de que el DRNA inicie el procedimiento de deslinde de la zona marítimo-terrestre y, de ser procedente, proceda a certificar el plano, conforme a lo dispuesto en el Reglamento 4860 del Departamento de Recursos Naturales y Ambientales.” (Énfasis nuestro.)
Calrincón se opuso a los argumentos esbozados por el Procurador General.
Los recurrentes presentaron dos mociones en las que nos solicitaron la paralización de los procedimientos, las cuales fueron declaradas sin lugar.
*268El 24 de marzo de 2004, le concedimos término a la Junta de Planificación para que expusiera su posición frente al recurso y señalamos una vista oral. La Junta de Planificación compareció y avaló la posición asumida por el Procurador General, por lo que solicitó que se le devolviera el caso.
El 21 de abril de 2004 se celebró la vista oral, a la cual comparecieron los representantes legales de los recurrentes, Calrincón, la Junta de Planificación, Recursos Naturales y Calidad Ambiental. En esa misma fecha ordenamos la consolidación de los recursos KLRA-2003-00320 y KLRA-2003-00557.
Examinados los escritos de las partes, así como las argumentaciones vertidas en la vista oral, los documentos obrantes en el expediente ante nos, la ley, los reglamentos y la jurisprudencia aplicable, estamos en posición de resolver.
11
Antes de discutir los méritos del caso de autos, es importante precisar cuál es el ámbito y los límites de la revisión judicial de las decisiones de las agencias administrativas.
Nuestro Tribunal Supremo ha establecido reiteradamente que las determinaciones de los organismos administrativos especializados merecen gran consideración y respeto. Mun. de San Juan v. J.C.A., 152 D.P.R. _(2000), 2000 J.T.S. 193; Misión Ind. P.R. v. J.C.A., 145 D.P.R. 908 (1998); Metropolitana, S.E. v. A.R.P. E., 138 D.P.R. 200 (1995); Asoc. Drs. Med. Cui. Salud v. Morales, 134 D.P.R. 567 (1993).
La Ley 170 de 12 de agosto de 1988, conocida como la Ley de Procedimiento Administrativo Uniforme, en su sección 4.5, 3 L.P.R.A. see. 2175, establece los límites de la revisión judicial de decisiones administrativas y dispone que las determinaciones de hechos de las agencias serán sostenidas por el Tribunal si se basan en evidencia sustancial que obre en el expediente administrativo. Por lo tanto, estamos obligados a sostener tales determinaciones si están respaldadas por evidencia suficiente que surja del expediente administrativo considerado en su totalidad. Misión Industrial P.R. v. J.C.A., supra; Facultad de Ciencias Sociales v. Consejo de Educación Superior, 133 D.P.R. 521 (1993).
No obstante, las conclusiones de derecho de los organismos administrativos que no involucren interpretaciones efectuadas dentro del ámbito de especializacion de la agencia concernida, son revisables en toda su extensión. Rivera v. A & C Development Corp., 144 D.P.R. 450 (1997). Como regla general, los tribunales deben conceder gran peso y deferencia a las interpretaciones que la agencia administrativa hace de aquellas leyes particulares que le corresponde poner en vigor. A.A.A. v. Unión de Abogados, _ D.P.R._(2002), 2002 J.T.S. 155; Calderón v. Adm. Sistemas de Retiro, 129 D.P.R. 1020 (1992); pero aun esta deferencia judicial al "expertise" administrativo cede ante una actuación irrazonable o ilegal. T-JAC; Inc. v. Caguas Centrum Limited, 148 DPR 70 (1999).
En resumen, la revisión judicial de las determinaciones administrativas está limitada a determinar si la actuación administrativa fue razonable y cónsona con el propósito legislativo o si por el contrario fue irrazonable, ilegal o si medió abuso de discreción. T-JAC; Inc. v. Caguas Centrum Limited, supra, Rivera v. A & C Development Corp., supra; Agosto v. Fondo del Seguro del Estado, 132 D.P.R 866 (1993).
Con estos principios en mente, pasamos a resolver los señalamientos de error formulados por los recurrentes.
111
Los recurrentes sostienen que toda vez que la Junta de Planificación incumplió con varias disposiciones legales y reglamentarias aplicables, procede decretar la nulidad de la consulta de ubicación aprobada.
*269El Artículo VI, Sección 19 de nuestra Constitución dispone que:
“Será política pública del Estado Libre Asociado la más eficaz conservación de sus recursos naturales, así como el mayor desarrollo y aprovechamiento de los mismos para el beneficio general de la comunidad. ”
Recientemente, nuestro Tribunal Supremo señaló en Misión Ind. de P.R. v. J.C.A., supra, que:
“Esta disposición no es la expresión de un insigne afán, ni constituye tampoco sólo la declaración de un principio general de carácter exhortativo. Se trata, más bien, de un mandato que debe observarse rigurosamente, y que prevalece sobre cualquier estatuto, reglamento u ordenanza que sea contraria a éste.
Conforme a este claro historial constitucional, en Puerto Rico, cualquier decisión o determinación del Estado que incida sobre los recursos naturales debe responder cabalmente al doble mandato de la Sección 19 de lograr la más eficaz conservación de los recursos naturales, a la vez que se procura el mayor desarrollo y aprovechamiento de esos recursos para el beneficio general de la comunidad. Dicha Sección fija de modo incuestionable el criterio jurídico primordial para juzgar la validez o interpretar el significado de cualquier norma o decisión relativa al uso o protección de los recursos naturales formulada por la Asamblea Legislativa o por cualquier agencia, departamento, municipio o instrumentalidad gubernamental. ” (Énfasis nuestro.)
La Junta de Planificación es el organismo gubernamental creado con el propósito de desarrollar los recursos humanos, económicos, ambientales y físicos de forma coordinada para crear las condiciones necesarias que propendan al desarrollo integral de la sociedad. 23 L.P.R.A. § 62c. Su creación obedece a la necesidad de velar por la ordenada y adecuada utilización de nuestros escasos terrenos y recursos naturales. Art. VI, Sec. 19, Const. E.L.A., L.P.R.A. Tomo 1. La Junta debe ejercer sus funciones en cumplimiento con la política pública del Estado Libre Asociado de 'fomentar la participación de la ciudadanía en el proceso de planificación de Puerto Rico". 23 L.P.R.A. sec. 62v(a).
Al amparo de las facultadas delegadas por la ley que la creó, la Junta aprobó el Reglamento de Zonificación de Puerto Rico, mejor conocido como el Reglamento de Planificación Núm. 4, el cual tiene como propósito guiar y controlar el uso y desarrollo de los terrenos con el fin de contribuir a la seguridad, el orden, la convivencia, la solidez económica y el bienestar general de los actuales y futuros habitantes de Puerto Rico. Véase, T-JAC, Inc. v. Caguas Centrum Limited, supra.
Para evadir la rigidez del esquema de zonificación, el Reglamento Núm. 4 establece el procedimiento de la consulta de ubicación. El mismo constituye una solicitud para que la Junta "evalúe, pase juicio y tome la determinación que estime pertinente sobre propuestos usos de terrenos que no son permitidos ministerialmente por la reglamentación aplicable en áreas zonificadas, pero que las disposiciones reglamentarias proveen para que se consideren". Sección 2.01 del Reglamento Núm. 4. Véase, además, Sección 2.00(7) del Reglamento Núm. 6031 de la Junta de Planificación, aprobado el 12 de noviembre de 1999, conocido como el Reglamento de Procedimientos Adjudicativos de la Junta de Planificación, en lo sucesivo Reglamento Núm. 6031. La consulta de ubicación se identificará como pública o privada dependiendo de quién la origine e incluye los proyectos de desarrollos extensos a considerarse bajo las disposiciones del Reglamento Núm. 4. Id.
La Junta tiene gran discreción en el ejercicio de su facultad de evaluar las consultas de ubicación; sin embargo, está sujeta al cumplimiento de las normas y requisitos establecidos en la ley y en la jurispmdencia. Mun. de San Juan v. Bosque Real, 158 D.P.R._(2003), 2003 J.T.S. 33; T-JAC, Inc. v. Caguas Centrum Limited, supra.
*270En la Sección 7.01 del Reglamento Núm. 6031 se establece que la Junta de Planificación, en el proceso de evaluación, tramitación y disposición de la consulta de ubicación, consultará, cuando lo considere necesario, a cualesquiera de los organismos gubernamentales, comisiones locales de planificación y otras entidades públicas y privadas, que de alguna manera tengan relación con los proyectos bajo estudio y se le requiere a las partes consultadas que notifiquen copia de sus comentarios a la parte proponente y a las opositoras para que éstas puedan responder a los mismos.
IV
El caso de autos trata de una consulta de ubicación de un desarrollo residencial extenso que se intenta llevar a cabo en una finca ubicada en un distrito residencial RT-1. La Sección 2.01 del Reglamento de Planificación Núm. 4 define desarrollo extenso como aquél que:
“[cjomprende los desarrollos residenciales para veinte (20) o más familias o solares en pueblos o áreas con una población urbana censal menor de diez mil (10,000) personas; treinta (30) o más familias o solares en pueblos o áreas con una población urbana censal entre diez mil (10,000) a cuarenta mil (40,000) personas y cuarenta (40) o más familias o solares en pueblos o areas con una población urbana censal sobre cuarenta mil (40,000) personas, conforme a los resultados del último censo poblacional. ”
La Sección 79.00 del Reglamento de Planificación Núm. 4 regula lo relativo a los proyectos de desarrollos extensos y tiene el propósito de identificar, para conocimiento general, aquellos proyectos de desarrollos extensos que pueden ser considerados al amparo de las disposiciones de este Reglamento, sin que se considere variación a las disposiciones aplicables de este Reglamento. Sección 79.02. La determinación que se tome sobre un proyecto- de desarrollo extenso descansara en la evaluación de factores que presente y demuestre la parte interesada en el caso a base, pero sin limitarse a, los siguientes factores: conformidad del uso propuesto y su intensidad con el Plan de Usos de Terrenos; disponibilidad, programación y mejoras propuestas por el proyecto a la infraestructura del sector; y la forma en que el proyecto propiciaría el desarrollo integral del sector y mantendría las mejoras existentes. Sección 79.03 del Reglamento Núm. 4.
La Sección 81.00 se refiere a desarrollos extensos evaluados por la Junta de Planificación. En la Sección 81.01 se dispone que se podrán someter ante la Junta de Planificación cualquiera de los tipos de proyectos que se indican en dicha sección, solos o combinados, independientemente del distrito en que se propongan. Sin embargo, nuestro Tribunal Supremo ha interpretado que esta disposición no exime a la Junta de Planificación de observar los procedimientos establecidos y promulgados por esa misma agencia para la aprobación y consideración de tales proyectos y que dicha disposición reglamentaria hay que considerarla en conjunto con el total del cuerpo reglamentario. Véase, T-JAC, Inc. v. Caguas Centrum Limited, supra, a la pág. 88.
La Junta de Planificación podrá considerar proyectos de desarrollos residenciales extensos de acuerdo con los siguientes requisitos:
“i. Los terrenos en los cuales se propone la urbanización estarán adyacentes o dentro del ámbito de expansión urbana del municipio correspondiente, dentro de una zona de interés turístico o un área desarrollada. La Junta podrá considerar este tipo de desarrollo fuera del área de expansión urbana, cuando se demuestre que exista o pueda proveerse la infraestructura necesaria para servir el proyecto.
2. La densidad propuesta alcanzará los mínimos y no excederá los máximos establecidos en el Plan de Usos de Terrenos vigentes.
3. Se celebrará vista pública con notificación a los dueños de los terrenos circundantes cuando el desarrollo residencial extenso tenga acceso a una calle municipal con un rodaje menor de 8.00 metros y por la cual accesen más de diez (10) estructuras residenciales en una distancia de doscientos cincuenta (250)
*271
metros, medidos desde las entradas al proyecto.
4. Si la infraestructura necesaria para atender las necesidades del proyecto propuesto y para mitigar sus efectos directos e indirectos está disponible o puede proveerse.
5. El proyecto podrá incluir el desarrollo de una o más estructuras principales en un mismo solar si se propone segregar el mismo.
6. Se podrá dispensar de los requerimientos de este Reglamento cuando se trate de desarrollos para vivienda de interés social y las circunstancias así lo justifiquen. ” (Énfasis nuestro.) Sección 81.02 del Reglamento Núm. 4.
Uno de los fundamentos en que se apoya la parte recurrente para solicitar que se decrete la nulidad de la consulta de ubicación aprobada por la Junta de Planificación es el relativo a que no se celebró la vista pública que se establece en la Sección 81.02(3) del Reglamento Núm. 4. Los recurrentes aducen que el desarrollo residencial extenso propuesto tiene acceso a una calle municipal con un rodaje menor de 8.00 metros, por la cual accesan más de diez (10) estructuras residenciales en una distancia de doscientos cincuenta (250) metros medidos desde la entrada del proyecto.
Por su parte, Calrincón no discutió esa cuestión en los escritos que presentó ante nos, sino que se limitó a señalar que el proyecto propuesto tiene acceso a través de una carretera estatal. En la vista oral celebrada ante este Foro, Calrincón aceptó la existencia del acceso a la carretera municipal, pero alegó que no aplica la referida disposición reglamentaria, puesto que el ancho de la carretera va a aumentar a 13 metros luego de la construcción. El argumento esbozado por Calrincón es frívolo de su faz y no la exime del requisito de la celebración de la vista pública.
En lo que respecta al análisis de la Sección 81.02(3) del Reglamento Núm. 4, nuestro más Alto Foro resolvió en Ortiz v. J.P., 152 D.P.R._(2000), 2000 J.T.S. 151, que:
“[Ejste inciso del Reglamento de Zonificación, en relación a proyectos de desarrollo residencial extenso, establece dos (2) circunstancias en las cuales es mandatorio que la Junta celebre vistas públicas con notificación a los dueños de terrenos circundantes. La primera es cuando el proyecto tenga acceso a una calle municipal bajo las condiciones allí descritas. Y, la segunda, que es de aplicación al caso de autos, siempre que la densidad propuesta sea mayor que la del área circundante. Esta interpretación no sólo le insufla vida a la política pública de ‘fomentar la participación de la ciudadanía en el proceso de planificación> esbozada por la propia Ley Orgánica de la Junta de Planificación de Puerto Rico, sino que establece un balance entre el poder del Estado para velar por la adecuada utilización de los terrenos y el derecho de los ciudadanos al libre disfrute de sus propiedades. Además fomenta la confianza del Pueblo en que las zonificaciones donde tienen sus hogares no serán alteradas a sus espaldas y sin brindarles la oportunidad de que los funcionarios públicos a cargo del proceso tomen en consideración sus puntos de vista.” (Énfasis suplido y citas omitidas.)
En Mun. de San Juan v. Bosque Real, supra, nuestro más Alto Foro expresó lo siguiente en lo que respecta a la aprobación de una consulta de ubicación de un desarrollo extenso sin la celebración de vista pública:
“Hoy, los fines de la justicia y el interés de proteger el medio ambiente y la pureza en los procesos de planificación urbana nos urgen a adjudicar una controversia sobre la validez de una consulta de ubicación que a todas luces fue aprobada mediante un procedimiento viciado y carente del indispensable requisito de la participación de los principales afectados con la construcción. ”
Ciertamente, dicha disposición reglamentaria reviste extraordinaria importancia en los procesos que se llevan a cabo ante la Junta de Planificación. La celebración de la vista pública en casos como el de autos -en que el *272proyecto tiene acceso a una calle municipal con las circunstancias ya establecidas-, es mandatoria. El claro incumplimiento con los requisitos señalados tiene el alcance de convertir en nula e ilegal la consulta de ubicación mediante la cual fue aprobado el proyecto.
La actuación de la Junta de Planificación es ilegal y, por ello, intervenimos con la misma. Procede, pues, devolver el caso a la Junta de Planificación para la celebración de la vista correspondiente y se cumpla con el requisito indispensable de permitirle participar a los principales afectados con la construcción.
V
Ya hemos expuesto que la Junta de Planificación al evaluar las consultas de ubicación está sujeta al cumplimiento de las normas y requisitos establecidos en la ley y en la jurisprudencia y que consultará, cuando lo considere necesario, a cualesquiera de los organismos gubernamentales, comisiones locales de planificación y otras entidades públicas y privadas, que de alguna manera tengan relación con los proyectos bajo estudio.
Los recurrentes solicitan, además, que se decrete la nulidad de la consulta de ubicación por el fundamento de que Recursos Naturales endosó el plano de mensura en el que se certifico la zona mantimo-terrestre sin haber seguido el procedimiento de deslinde establecido en el Reglamento Núm. 4860.
Recursos Naturales compareció ante nos y reconoce dicho error al señalar que en el presente caso, los comentarios notificados por el DRNA incluían la descripción de un plano de deslinde de la zona mantimo-terrestre que fue certificado por la agencia compareciente. Es necesario reconocer que dicho plano fue aprobado sin notificar a los dueños de los predios colindantes (Artículo 3.1 del Reglamento 4860)". A esos efectos, Recursos Naturales solicita que se devuelva el caso a la Junta de Planificación a los fines de que el DRNA inicie el procedimiento de deslinde de la zona marítimo-terrestre. La Junta de Planificación también accedió a tal solicitud.
La Sección 24.06 del Reglamento de Zonificación de la Zona Costanera y de Accesos a las Playas y Costa de Puerto Rico, conocido como el Reglamento de Planificación Núm. 17, con vigencia de 29 de noviembre de 1986, en adelante Reglamento Núm. 17, dispone lo siguiente:
"Todo proyecto dentro de la zona costanera de Puerto Rico y especialmente aquellos colindantes con la zona marítimo-terrestre o con un recurso natural a preservarse, necesitará para su evaluación, de los comentarios del Departamento de Recursos Naturales. Tales comentarios serán solicitados por la Junta en la etapa de consulta de ubicación y uso de terrenos o por la ARPE cuando no se requiera la tramitación de una consulta de ubicación. El Departamento de Recursos Naturales deberá contestar dentro del término establecido por la Junta y si transcurrido este término no se recibe contestación, se entenderá que dicho Departamento no tiene comentarios sobre el proyecto. Véase, ademas, la Sección 85.02 del Reglamento Num. 4.
En la Sección 86.02 del Reglamento Núm. 4 se establece lo siguiente:
“86.02 - Delimitación de la Zona Marítimo-terrestre- Todo proyecto propuesto en terrenos colindantes con la zona marítimo-terrestre deberá someter a la Junta o a A.R.P.E., según corresponda, junto con los otros documentos y requisitos, un plano de mensura, debidamente certificado por el Departamento de Recursos Naturales, en el cual aparezca deslindado el límite mantimo-terrestre. Esta certificación delimitando la zona marítimo-terrestre tendrá un (1) año de vigencia y no se entenderá que conceda derechos de propiedad permanentes y sí que representa el límite de ésta en la fecha del plano, el cual podra variar cuando la naturaleza altere el contorno de la costa o playa. ”
El Departamento de Recursos Naturales y Ambientales es la entidad encargada de implantar la fase operacional de la política púbtica establecida en nuestra Constitución en lo que respecta a la protección de *273nuestros recursos naturales. Véase, Artículo 3 de la Ley Núm. 23 de 20 de junio de 1972, conocida como la Ley Orgánica del Departamento de Recursos Naturales, 3 L.P.R.A. see. 153. El Secretario de Recursos Naturales ‘tendrá a su cargo el estudio y control de las inundaciones; la vigilancia, conservación y limpieza de las playas; el control de la extracción de arena y grava en las playas; el deslinde y saneamiento de la zona marítimo-terrestre, y la vigilancia y atención de los manglares pertenecientes al Estado Libre Asociado de Puerto Rico’. ” 12 L.P.R.A. see. 1202. (Énfasis nuestro.)
En cumplimiento con los deberes impuestos por ley, Recursos Naturales adoptó el Reglamento para el Aprovechamiento, Vigilancia, Conservación y Administración de las Aguas Territoriales, los Terrenos Sumergidos y la Zona Marítimo-terrestre, Reglamento Núm. 4860 de 30 de diciembre de 1992, en lo sucesivo el Reglamento Núm. 4860. En el Artículo 2.33 del Reglamento se define deslinde como la "actividad mediante la cual se determinan los límites entre uno o más inmuebles colindantes con el dominio público marítimo-terrestre". El Artículo 3 del Reglamento regula lo relativo al procedimiento de deslinde de la zona marítimo-terrestre. El Artículo 3.1 lee como sigue:
“A. Para la determinación del límite, tierra adentro, del dominio público marítimo-terrestre, el Departamento, discrecionalmente, practicará o requerirá que se practique el deslinde de la zona marítimo-terrestre. Dicho deslinde se incoará de oficio o a petición de la persona interesada y será certificado correcto por el Secretario del Departamento.
B. Todo peticionario, y en caso de deslindes incoados de oficio, el Departamento, notificará mediante carta certificada con acuse de recibo a los propietarios colindantes y al municipio correspondiente sobre el inicio del proceso de deslinde. ”
Procede, pues, devolver el caso a la Junta de Planificación para que le ordene a Recursos Naturales que inicie el procedimiento de deslinde de la zona marítimo-terrestre en cumplimiento con el Artículo 3.1 del Reglamento Núm. 4860. Como ya expusimos, tanto Recurso Naturales como la Junta de Planificación están de acuerdo con lo anterior.
Es sabido lo reiterado en Magríz v. Empresas Nativas, 143 D.P.R. 63 (1997), que:
“...un error administrativo no crea un estado de derecho que obligue a la agencia ni impide su corrección. Una parte no puede pretender ampararse en una actuación administrativa incorrecta o ilegal. ”
VI
Debido al resultado al que llegamos en la presente sentencia, entendemos que resulta innecesario discutir los restantes señalamientos de error levantados por los recurrentes.
Procede, entonces, devolverle el caso a la Junta de Planificación para que celebre la vista pública requerida para la consideración de desarrollos extensos en la que se le brinde oportunidad a los recurrentes de presentar todas las objeciones que tienen al proyecto objeto de la consulta de ubicación. La Junta de Planificación deberá ordenarle, además, a Recursos Naturales que inicie el procedimiento de deslinde de conformidad con lo establecido en el Reglamento Núm. 4860.
Es preciso añadir —como nota cautelar— que la Junta de Planificación al reevaluar la consulta de ubicación debe tomar en consideración los demás planteamientos señalados por los recurrentes, entre los que destacamos los siguientes: si la acción propuesta conllevará un impacto ambiental significativo o no significativo; si era necesaria la preparación de una Declaración de Impacto Ambiental (DIA); si era necesario que se sometiera el estudio hidrológico-hidráulico requerido por el Reglamento de Planificación Núm. 13 para desarrollos que ubiquen en zonas susceptibles a inundaciones en las cuales se desconozca el nivel de inundación base; y si se incumplieron *274las disposiciones establecidas en las secciones 85.07, 85.11, 85.12 del Reglamento de Planificación Núm. 4.
YH
Por los fundamentos antes expuestos, en el caso KLRA-2003-00320, expedimos el auto solicitado y devolvemos el caso al foro de origen para la continuación de los procedimientos de forma compatible con lo aquí expresado. Además, según expuesto en el texto de la sentencia, se desestima el recurso KLRA-2003-00557 por ser el mismo académico.
Así lo pronunció y manda el Tribunal y lo certifica la Secretaria General.
Aida Ileana Oquendo Graulau
Secretaria General
ESCOLIOS 2004 DTA 108
1. Entre éstos mencionó los siguientes: Reglamento sobre Zonas Susceptibles a Inundaciones (Reglamento de Planificación Núm. 13) por estar el proyecto ubicado en Zona II o 1M; Reglamento de Planificación Num. 25 sobre siembra, corte y reforestación; Reglamento de Planificación Núm. 3; y Reglamento Núm. 17 de Planificación (Reglamento de Zonificación de la Zona Costanera y de Accesos a las Playas y Costas de Puerto Rico).
2. No procede la desestimación del recurso KLRA-2003-00320 por prematuro. Los recurrentes presentaron la solicitud de reconsideración ante la Junta de Planificación oportunamente. El 14 de abril de 2003, la Junta de Planificación consideró la moción de reconsideración, pero no se le notificó a las partes hasta el 14 de mayo de 2003, cuando ya los recurrentes habían presentado el recurso KLRA-2003-00320 ante este Foro.
En Caro Ortiz v. Cardona Rivera, 158 D.P.R._(2003), 2003 J.T.S. 13, el Tribunal Supremo de Puerto Rico tuvo la oportunidad de analizar una situación similar a la aquí planteada, aunque se trataba de un caso civil y no de una revision .administrativa. Allí, nuestro más Alto Foro resolvió, en lo pertinente, lo siguiente:
“...para que la consideración de una moción de reconsideración tenga el efecto de interrumpir el término jurisdiccional para recurrir en alzada, es necesario, no solamente que el tribunal la considere antes de que transcurra el término para recurrir en alzada o que una de las partes haya presentado un recurso en el foro apelativo, sino que es necesario que esta determinación se notifique también antes de que hayan ocurrido estos eventos procesales. (Enfasis nuestro.)
Entendemos que lo allí resuelto aplica por analogía al caso de autos. El término para acudir ante nos empezó a decursar luego de expirado el término de 15 días desde que se presentó la solicitud de reconsideración, o sea, el 17 de abril de 2003. Toda vez que el recurso KLRA-2003-00320 fue presentado el 8 de mayo de 2003, antes de que la Junta de Planificación le hubiera notificado a las partes que iba a considerar la solicitud de reconsideración, es preciso concluir que la moción de reconsideración presentada por los recurrentes no interrumpió el término para acudir ante nos y no procede la desestimación del recurso KLRA-2003-00320 por prematuro.
Por el mismo razonamiento antes expuesto, procede la desestimación del recurso KLRA-2003-00557, habida cuenta que la Junta de Planificación —desde el 8 de mayo de 2003 — , perdió jurisdicción para resolver la moción de reconsideración presentada por los recurrentes.
3. La solicitud hecha por Calrincón a los efectos de que procedía la desestimación del recurso por no haber notificado la presentación del mismo a las partes con interés en el pleito no procede. Si bien de la resolución recurrida se desprende que la misma fue notificada a las tres personas antes mencionadas, los recurrentes nos informaron que éstos los señores Torres, Medina y Bonilla — , nunca recibieron copia de la referida resolución, pues las direcciones que obraban en récord las cuales fueron provistas por Calrincón — , no eran correctas. Los recurrentes acompañaron prueba indicativa de lo anterior. La notificación a las referidas partes hubiese constituido un ejercicio fútil.
Los recurrentes también argumentan que estas tres personas no fueron parte del procedimiento ante la Junta de Planificación, Concurrimos con tal postura. Los nombres de éstos sólo aparecen en el expediente en un formulario sometido *275por Calrincón a la Junta de Planificación en la que se certifica quiénes son los colindantes del proyecto en cuestión con sus respectivas direcciones. No hay nada que indique cuál fue la participación de éstos —si alguna— en el procedimiento ante la Junta de Planificación.
Por tanto, es preciso concluir que no procede la desestimación del recurso por dicho fundamento. Tampoco era necesario notificar a la A.R.P.E., pues dicha agencia no es la agencia recurrida ni era parte en el procedimiento ante la Junta de Planificación.
De otra parte, debemos aclarar que sólo la resolución emitida por la Junta de Planificación es revisable ante nos. Los comentarios y/o endosos emitidos por las distintas agencias administrativas como parte del proceso de la consulta de ubicación no son revisables directamente ante este Foro. Ahora bien, lo anterior no impide que este Foro, al revisar la resolución emitida por la Junta de Planificación, examine la misma en su totalidad, incluyendo —claro está— los comentarios y/o endosos emitidos de las distintas agencias considerados por la Junta de Planificación. Como cuestión de hecho, asimismo lo reconocen los propios recurrentes mediante moción informativa radicada ante este Foro el 13 de agosto de 2003.
4. Originalmente, comparecieron como recurrentes en el recurso de epígrafe la Asociación de Residentes de Rincón, David Wishinsky y Carlos Gastón, en su carácter personal y como miembros de la Asociación de Residentes de Rincón. Posteriormente, y ante la solicitud de desestimación presentada por una de las partes respecto a la Asociación de Residentes de Rincón, dicha parte reconoció que no tenía legitimación activa para comparecer como parte en el presente recurso. No obstante, se alegó que los señores David Wishinsky y Carlos Gastón sí tenían legitimación activa para ello, por ser residentes del Municipio de Rincón, utilizar las facilidades que se verían afectadas por el proyecto objeto de la consulta de ubicación, porque se verían afectados los servicios de acueductos y alcantarillados que reciben, y en específico, se indicó que el Sr. Wishinsky era dueño y residente de una propiedad que colinda con el proyecto en controversia.
Resulta claro, pues, que los señores Wishinsky y Gastón tienen legitimación activa para comparecer ante este Foro. Como cuestión de hecho, el Sr. Wishinsky fue aceptado como interventor ante la Junta de Planificación. No procede la desestimación del recurso por dicho fundamento. En lo sucesivo, nos referiremos a éstos conjuntamente como los recurrentes.
5. Tampoco procede el traslado solicitado. La Regla 60 del Reglamento del Tribunal de Circuito de Apelaciones, vigente al momento de radicarse el presente recurso, 4 L.P.R.A. Ap. XXII, R. 60, y el Reglamento Transitorio del Tribunal de Apelaciones, establece que el recurso de revisión administrativa será atendido por el Circuito de Apelaciones correspondiente a la región judicial donde "se planee, se esté llevando o se haya llevado a cabo la actividad o incidente que hubiera dado lugar la controversia".
En el caso de autos, todo el trámite relacionado con el proyecto en cuestión se ha realizado en San Juan por la Junta de Planificación, habida cuenta que aún nos encontramos en la etapa inicial relacionada con la obtención de los permisos. De manera que no procede el traslado del caso a la región judicial de Aguadilla-Mayagüez.
De todas maneras, la parte recurrente presentó este recurso ante el Circuito Regional de San Juan. Una vez se determina que el recurso fue presentado ante el Tribunal de Circuito de Apelaciones o Tribunal de Apelaciones y que dicho Foro tiene jurisdicción para considerar el mismo, cualquier Panel tiene competencia para resolverlo. Falta de competencia no es falta de jurisdicción.
6. Los recurrentes aclararon en la vista oral que dicho error no se había cometido.
7. Véase, nota núm. 2.
8. El Reglamento Núm. 4 aplicable a la situación de autos es el que tiene fecha de vigencia de 5 de noviembre de 2000.
9. A este mismo resultado arribó nuestro Tribunal Supremo en los casos de Mun. de San Juan v. Bosque Real, supra, y de Ortiz v. J.P., supra.
10. Véanse, además, Director de Inspección Notarías v. Colón, 131 D.P.R. 102, 112-113 (1992); Consejo Tit. C. Parkside v. *276MGIC Fin. Corp., 128 D.P.R. 538, 555 (1991); Arce v. Caribbean Home Const. Corp., 108 D.P.R. 225, 258 (1978); Del Rey v. J.A.C.L., 107 D.P.R. 348, 355-356 (1989). | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2687036/ | IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ANTONI LASHAWN KNIGHT, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-1208
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 3, 2014.
An appeal from the Circuit Court for Duval County.
J. Bradford Stetson, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
VAN NORTWICK, CLARK, and SWANSON, JJ., CONCUR. | 01-03-2023 | 07-31-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/108714/ | 410 U.S. 179 (1973)
DOE ET AL.
v.
BOLTON, ATTORNEY GENERAL OF GEORGIA, ET AL.
No. 70-40.
Supreme Court of United States.
Argued December 13, 1971.
Reargued October 11, 1972.
Decided January 22, 1973.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA.
*181 Margie Pitts Hames reargued the cause for appellants. With her on the briefs were Reber F. Boult, Jr., Charles Morgan, Jr., Elizabeth Roediger Rindskopf, and Tobiane Schwartz.
Dorothy T. Beasley reargued the cause for appellees. With her on the brief were Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Joel Feldman, Henry L. Bowden, and Ralph H. Witt.[*]
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26-1201 through 26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante, p. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect *182 in a majority of our States. The Georgia legislation, however, is different and merits separate consideration.
I
The statutes in question are reproduced as Appendix A, post, p. 202.[1] As the appellants acknowledge,[2] the 1968 statutes are patterned upon the American Law Institute's Model Penal Code, § 230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States.[3] The new Georgia provisions replaced statutory law that had been in effect for more than 90 years. Georgia Laws 1876, No. 130, § 2, at 113.[4] The predecessor statute paralleled *183 the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary "to preserve the life" of the pregnant woman. The new statutes have not been tested on constitutional grounds in the Georgia state courts.
Section 26-1201, with a referenced exception, makes abortion a crime, and § 26-1203 provides that a person convicted of that crime shall be punished by imprisonment for not less than one nor more than 10 years. Section 26-1202 (a) states the exception and removes from § 1201's definition of criminal abortion, and thus makes noncriminal, an abortion "performed by a physician duly licensed" in Georgia when, "based upon his best clinical judgment . . . an abortion is necessary because:
"(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or
"(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or
"(3) The pregnancy resulted from forcible or statutory rape."[5]
Section 26-1202 also requires, by numbered subdivisions of its subsection (b), that, for an abortion to be authorized *184 or performed as a noncriminal procedure, additional conditions must be fulfilled. These are (1) and (2) residence of the woman in Georgia; (3) reduction to writing of the performing physician's medical judgment that an abortion is justified for one or more of the reasons specified by § 26-1202 (a), with written concurrence in that judgment by at least two other Georgia-licensed physicians, based upon their separate personal medical examinations of the woman; (4) performance of the abortion in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; (5) advance approval by an abortion committee of not less than three members of the hospital's staff; (6) certifications in a rape situation; and (7), (8), and (9) maintenance and confidentiality of records. There is a provision (subsection (c)) for judicial determination of the legality of a proposed abortion on petition of the judicial circuit law officer or of a close relative, as therein defined, of the unborn child, and for expeditious hearing of that petition. There is also a provision (subsection (e)) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure.
II
On April 16, 1970, Mary Doe,[6] 23 other individuals (nine described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers), and two nonprofit Georgia corporations that advocate abortion reform instituted this federal action in the Northern District of Georgia against the State's attorney general, the district attorney of *185 Fulton County, and the chief of police of the city of Atlanta. The plaintiffs sought a declaratory judgment that the Georgia abortion statutes were unconstitutional in their entirety. They also sought injunctive relief restraining the defendants and their successors from enforcing the statutes.
Mary Doe alleged:
(1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child.
(2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial Hospital, Atlanta, for a therapeutic abortion under § 26-1202. Her application was denied 16 days later, on April 10, when she was eight weeks pregnant, on the ground that her situation was not one described in § 26-1202 (a).[7]
(3) Because her application was denied, she was forced either to relinquish "her right to decide when and how many children she will bear" or to seek an abortion that was illegal under the Georgia statutes. This invaded her *186 rights of privacy and liberty in matters related to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The statutes also denied her equal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. She sued "on her own behalf and on behalf of all others similarly situated."
The other plaintiffs alleged that the Georgia statutes "chilled and deterred" them from practicing their respective professions and deprived them of rights guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs also purported to sue on their own behalf and on behalf of others similarly situated.
A three-judge district court was convened. An offer of proof as to Doe's identity was made, but the court deemed it unnecessary to receive that proof. The case was then tried on the pleadings and interrogatories.
The District Court, per curiam, 319 F. Supp. 1048 (ND Ga. 1970), held that all the plaintiffs had standing but that only Doe presented a justiciable controversy. On the merits, the court concluded that the limitation in the Georgia statute of the "number of reasons for which an abortion may be sought," id., at 1056, improperly restricted Doe's rights of privacy articulated in Griswold v. Connecticut, 381 U.S. 479 (1965), and of "personal liberty," both of which it thought "broad enough to include the decision to abort a pregnancy," 319 F. Supp., at 1055. As a consequence, the court held invalid those portions of §§ 26-1202 (a) and (b) (3) limiting legal abortions to the three situations specified; § 26-1202 (b) (6) relating to certifications in a rape situation; and § 26-1202 (c) authorizing a court test. Declaratory relief was granted accordingly. The court, however, held *187 that Georgia's interest in protection of health, and the existence of a "potential of independent human existence" (emphasis in original), id., at 1055, justified state regulation of "the manner of performance as well as the quality of the final decision to abort," id., at 1056, and it refused to strike down the other provisions of the statutes. It denied the request for an injunction, id., at 1057.
Claiming that they were entitled to an injunction and to broader relief, the plaintiffs took a direct appeal pursuant to 28 U.S. C. § 1253. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971). The defendants also purported to appeal, pursuant to § 1253, but their appeal was dismissed for want of jurisdiction. 402 U.S. 936 (1971). We are advised by the appellees, Brief 42, that an alternative appeal on their part is pending in the United States Court of Appeals for the Fifth Circuit. The extent, therefore, to which the District Court decision was adverse to the defendants, that is, the extent to which portions of the Georgia statutes were held to be unconstitutional, technically is not now before us.[8]Swarb v. Lennox, 405 U.S. 191, 201 (1972).
III
Our decision in Roe v. Wade, ante, p. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe's existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe's and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy and has standing to maintain the action.
*188 Inasmuch as Doe and her class are recognized, the question whether the other appellantsphysicians, nurses, clergymen, social workers, and corporations present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F.2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972).
In holding that the physicians, while theoretically possessed of standing, did not present a justiciable controversy, the District Court seems to have relied primarily on Poe v. Ullman, 367 U.S. 497 (1961). There, a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Georgia's statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another *189 Georgia abortion statute under which, we are told,[9] physicians were prosecuted. The present case, therefore, is closer to Epperson v. Arkansas, 393 U.S. 97 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State's anti-evolution statute. See also Griswold v. Connecticut, 381 U. S., at 481.
The parallel claims of the nurse, clergy, social worker, and corporation-appellants are another step removed and as to them, the Georgia statutes operate less directly. Not being licensed physicians, the nurses and the others are in no position to render medical advice. They would be reached by the abortion statutes only in their capacity as accessories or as counselor-conspirators. We conclude that we need not pass upon the status of these additional appellants in this suit, for the issues are sufficiently and adequately presented by Doe and the physician-appellants, and nothing is gained or lost by the presence or absence of the nurses, the clergymen, the social workers, and the corporations. See Roe v. Wade, ante, at 127.
IV
The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection.
A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here and need not be repeated.
*190 B. The appellants go on to argue, however, that the present Georgia statutes must be viewed historically, that is, from the fact that prior to the 1968 Act an abortion in Georgia was not criminal if performed to "preserve the life" of the mother. It is suggested that the present statute, as well, has this emphasis on the mother's rights, not on those of the fetus. Appellants contend that it is thus clear that Georgia has given little, and certainly not first, consideration to the unborn child. Yet, it is the unborn child's rights that Georgia asserts in justification of the statute. Appellants assert that this justification cannot be advanced at this late date.
Appellants then argue that the statutes do not adequately protect the woman's right. This is so because it would be physically and emotionally damaging to Doe to bring a child into her poor, "fatherless"[10] family, and because advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child. Thus, "a statute that requires a woman to carry an unwanted pregnancy to term infringes not only on a fundamental right of privacy but on the right to life itself." Brief 27.
The appellants recognize that a century ago medical knowledge was not so advanced as it is today, that the techniques of antisepsis were not known, and that any abortion procedure was dangerous for the woman. To restrict the legality of the abortion to the situation where it was deemed necessary, in medical judgment, for the preservation of the woman's life was only a natural conclusion in the exercise of the legislative judgment of that time. A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge. It is perhaps unfair to argue, as the appellants do, that because the early focus *191 was on the preservation of the woman's life, the State's present professed interest in the protection of embryonic and fetal life is to be downgraded. That argument denies the State the right to readjust its views and emphases in the light of the advanced knowledge and techniques of the day.
C. Appellants argue that § 26-1202 (a) of the Georgia statutes, as it has been left by the District Court's decision, is unconstitutionally vague. This argument centers on the proposition that, with the District Court's having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as § 26-1202 (a) reads, it is "based upon his best clinical judgment that an abortion is necessary." The appellants contend that the word "necessary" does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary.
The net result of the District Court's decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his "best clinical," judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him.
The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U.S. 62, 71-72 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal "unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine." That statute has been construed to bear upon psychological as *192 well as physical well-being. This being so, the Court concluded that the term "health" presented no problem of vagueness. "Indeed, whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered." Id., at 72. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, "an abortion is necessary" is a professional judgment that the Georgia physician will be called upon to make routinely.
We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factorsphysical, emotional, psychological, familial, and the woman's agerelevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.
D. The appellants next argue that the District Court should have declared unconstitutional three procedural demands of the Georgia statute: (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals:[11] (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by the independent examinations of the patient by two other licensed physicians. The appellants attack these provisions not only on the ground that they unduly restrict the woman's right of privacy, but also on procedural due process and equal protection grounds. The physician-appellants also argue that, by subjecting a doctor's individual medical judgment to *193 committee approval and to confirming consultations, the statute impermissibly restricts the physician's right to practice his profession and deprives him of due process.
1. JCAH accreditation. The Joint Commission on Accreditation of Hospitals is an organization without governmental sponsorship or overtones. No question whatever is raised concerning the integrity of the organization or the high purpose of the accreditation process.[12] That process, however, has to do with hospital standards generally and has no present particularized concern with abortion as a medical or surgical procedure.[13] In Georgia, there is no restriction on the performance of non-abortion surgery in a hospital not yet accredited by the JCAH so long as other requirements imposed by the State, such as licensing of the hospital and of the operating surgeon, are met. See Georgia Code §§ 88-1901 (a) *194 and 88-1905 (1971) and 84-907 (Supp. 1971). Furthermore, accreditation by the Commission is not granted until a hospital has been in operation at least one year. The Model Penal Code, § 230.3, Appendix B hereto, contains no requirement for JCAH accreditation. And the Uniform Abortion Act (Final Draft, Aug. 1971),[14] approved by the American Bar Association in February 1972, contains no JCAH-accredited hospital specification.[15] Some courts have held that a JCAH-accreditation requirement is an overbroad infringement of fundamental rights because it does not relate to the particular medical problems and dangers of the abortion operation. E. g., Poe v. Menghini, 339 F. Supp., at 993-994.
We hold that the JCAH-accreditation requirement does not withstand constitutional scrutiny in the present context. It is a requirement that simply is not "based on differences that are reasonably related to the purposes of the Act in which it is found." Morey v. Doud, 354 U.S. 457, 465 (1957).
This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt *195 standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to exclude the first trimester of pregnancy, see Roe v. Wade, ante, at 163, is also invalid. In so holding we naturally express no opinion on the medical judgment involved in any particular case, that is, whether the patient's situation is such that an abortion should be performed in a hospital, rather than in some other facility.
2. Committee approval. The second aspect of the appellants' procedural attack relates to the hospital abortion committee and to the pregnant woman's asserted *196 lack of access to that committee. Relying primarily on Goldberg v. Kelly, 397 U.S. 254 (1970), concerning the termination of welfare benefits, and Wisconsin v. Constantineau, 400 U.S. 433 (1971), concerning the posting of an alcoholic's name, Doe first argues that she was denied due process because she could not make a presentation to the committee. It is not clear from the record, however, whether Doe's own consulting physician was or was not a member of the committee or did or did not present her case, or, indeed, whether she herself was or was not there. We see nothing in the Georgia statute that explicitly denies access to the committee by or on behalf of the woman. If the access point alone were involved, we would not be persuaded to strike down the committee provision on the unsupported assumption that access is not provided.
Appellants attack the discretion the statute leaves to the committee. The most concrete argument they advance is their suggestion that it is still a badge of infamy "in many minds" to bear an illegitimate child, and that the Georgia system enables the committee members' personal views as to extramarital sex relations, and punishment therefor, to govern their decisions. This approach obviously is one founded on suspicion and one that discloses a lack of confidence in the integrity of physicians. To say that physicians will be guided in their hospital committee decisions by their predilections on extramarital sex unduly narrows the issue to pregnancy outside marriage. (Doe's own situation did not involve extramarital sex and its product.) The appellants' suggestion is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, *197 so-called "error," and needs. The good physiciandespite the presence of rascals in the medical profession, as in all others, we trust that most physicians are "good" will have sympathy and understanding for the pregnant patient that probably are not exceeded by those who participate in other areas of professional counselling.
It is perhaps worth noting that the abortion committee has a function of its own. It is a committee of the hospital and it is composed of members of the institution's medical staff. The membership usually is a changing one. In this way, its work burden is shared and is more readily accepted. The committee's function is protective. It enables the hospital appropriately to be advised that its posture and activities are in accord with legal requirements. It is to be remembered that the hospital is an entity and that it, too, has legal rights and legal obligations.
Saying all this, however, does not settle the issue of the constitutional propriety of the committee requirement. Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee. With regard to the protection of potential life, the medical judgment is already completed prior to the committee stage, and review by a committee once removed from diagnosis is basically redundant. We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under § 26-1202 (e), the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, *198 for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202 (e) affords adequate protection to the hospital, and little more is provided by the committee prescribed by § 26-1202 (b) (5).
We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State.
3. Two-doctor concurrence. The third aspect of the appellants' attack centers on the "time and availability of adequate medical facilities and personnel." It is said that the system imposes substantial and irrational roadblocks and "is patently unsuited" to prompt determination of the abortion decision. Time, of course, is critical in abortion. Risks during the first trimester of pregnancy are admittedly lower than during later months.
The appellants purport to show by a local study[16] of Grady Memorial Hospital (serving indigent residents in Fulton and DeKalb Counties) that the "mechanics of the system itself forced . . . discontinuance of the abortion process" because the median time for the workup was 15 days. The same study shows, however, that 27% of the candidates for abortion were already 13 or more weeks pregnant at the time of application, that is, they were at the end of or beyond the first trimester when they made their applications. It is too much to say, as appellants do, that these particular persons "were victims of a system over which they [had] no control." If higher risk was incurred because of abortions in the *199 second rather than the first trimester, much of that risk was due to delay in application, and not to the alleged cumbersomeness of the system. We note, in passing, that appellant Doe had no delay problem herself; the decision in her case was made well within the first trimester.
It should be manifest that our rejection of the accredited-hospital requirement and, more important, of the abortion committee's advance approval eliminates the major grounds of the attack based on the system's delay and the lack of facilities. There remains, however, the required confirmation by two Georgia-licensed physicians in addition to the recommendation of the pregnant woman's own consultant (making under the statute, a total of six physicians involved, including the three on the hospital's abortion committee). We conclude that this provision, too, must fall.
The statute's emphasis, as has been repetitively noted, is on the attending physician's "best clinical judgment that an abortion is necessary." That should be sufficient. The reasons for the presence of the confirmation step in the statute are perhaps apparent, but they are insufficient to withstand constitutional challenge. Again, no other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us. If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice. The attending physician will know when a consultation is advisable the doubtful situation, the need for assurance when the medical decision is a delicate one, and the like. Physicians have followed this routine historically and *200 know its usefulness and benefit for all concerned. It is still true today that "[r]eliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he [the physician] possesses the requisite qualifications." Dent v. West Virginia, 129 U.S. 114, 122-123 (1889). See United States v. Vuitch, 402 U. S., at 71.
E. The appellants attack the residency requirement of the Georgia law, §§ 26-1202 (b) (1) and (b) (2), as violative of the right to travel stressed in Shapiro v. Thompson, 394 U.S. 618, 629-631 (1969), and other cases. A requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient.
Nevertheless, we do not uphold the constitutionality of the residence requirement. It is not based on any policy of preserving state-supported facilities for Georgia residents, for the bar also applies to private hospitals and to privately retained physicians. There is no intimation, either, that Georgia facilities are utilized to capacity in caring for Georgia residents. Just as the Privileges and Immunities Clause, Const. Art. IV, § 2, protects persons who enter other States to ply their trade, Ward v. Maryland, 12 Wall. 418, 430 (1871); Blake v. McClung, 172 U.S. 239, 248-256 (1898), so must it protect persons who enter Georgia seeking the medical services that are available there. See Toomer v. Witsell, 334 U.S. 385, 396-397 (1948). A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve.
F. The last argument on this phase of the case is one that often is made, namely, that the Georgia system is violative of equal protection because it discriminates against the poor. The appellants do not urge that abortions *201 should be performed by persons other than licensed physicians, so we have no argument that because the wealthy can better afford physicians, the poor should have non-physicians made available to them. The appellants acknowledged that the procedures are "nondiscriminatory in . . . express terms" but they suggest that they have produced invidious discriminations. The District Court rejected this approach out of hand. 319 F. Supp., at 1056. It rests primarily on the accreditation and approval and confirmation requirements, discussed above, and on the assertion that most of Georgia's counties have no accredited hospital. We have set aside the accreditation, approval, and confirmation requirements, however, and with that, the discrimination argument collapses in all significant aspects.
V
The appellants complain, finally, of the District Court's denial of injunctive relief. A like claim was made in Roe v. Wade, ante, p. 113. We declined decision there insofar as injunctive relief was concerned, and we decline it here. We assume that Georgia's prosecutorial authorities will give full recognition to the judgment of this Court.
In summary, we hold that the JCAH-accredited hospital provision and the requirements as to approval by the hospital abortion committee, as to confirmation by two independent physicians, and as to residence in Georgia are all violative of the Fourteenth Amendment. Specifically, the following portions of § 26-1202 (b), remaining after the District Court's judgment, are invalid:
(1) Subsections (1) and (2).
(2) That portion of Subsection (3) following the words "[s]uch physician's judgment is reduced to writing."
(3) Subsections (4) and (5).
*202 The judgment of the District Court is modified accordingly and, as so modified, is affirmed. Costs are allowed to the appellants.
APPENDIX A TO OPINION OF THE COURT
Criminal Code of Georgia
(The italicized portions are those held unconstitutional by the District Court)
CHAPTER 26-12. ABORTION.
26-1201. Criminal Abortion. Except as otherwise provided in section 26-1202, a person commits criminal abortion when he administers any medicine, drug or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.
26-1202. Exception. (a) Section 26-1201 shall not apply to an abortion performed by a physician duly licensed to practice medicine and surgery pursuant to Chapter 84-9 or 84-12 of the Code of Georgia of 1933, as amended, based upon his best clinical judgment that an abortion is necessary because:
(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or
(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or
(3) The pregnancy resulted from forcible or statutory rape.
(b) No abortion is authorized or shall be performed under this section unless each of the following conditions is met:
(1) The pregnant woman requesting the abortion certifies in writing under oath and subject to the penalties *203 of false swearing to the physician who proposes to perform the abortion that she is a bona fide legal resident of the State of Georgia.
(2) The physician certifies that he believes the woman is a bona fide resident of this State and that he has no information which should lead him to believe otherwise.
(3) Such physician's judgment is reduced to writing and concurred in by at least two other physicians duly licensed to practice medicine and surgery pursuant to Chapter 84-9 of the Code of Georgia of 1933, as amended, who certify in writing that based upon their separate personal medical examinations of the pregnant woman, the abortion is, in their judgment, necessary because of one or more of the reasons enumerated above.
(4) Such abortion is performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals.
(5) The performance of the abortion has been approved in advance by a committee of the medical staff of the hospital in which the operation is to be performed. This committee must be one established and maintained in accordance with the standards promulgated by the Joint Commission on the Accreditation of Hospitals, and its approval must be by a majority vote of a membership of not less than three members of the hospital's staff; the physician proposing to perform the operation may not be counted as a member of the committee for this purpose.
(6) If the proposed abortion is considered necessary because the woman has been raped, the woman makes a written statement under oath, and subject to the penalties of false swearing, of the date, time and place of the rape and the name of the rapist, if known. There must be attached to this statement a certified copy of any report of the rape made by any law enforcement officer or agency and a statement by the solicitor general of the *204 judicial circuit where the rape occurred or allegedly occurred that, according to his best information, there is probable cause to believe that the rape did occur.
(7) Such written opinions, statements, certificates, and concurrences are maintained in the permanent files of such hospital and are available at all reasonable times to the solicitor general of the judicial circuit in which the hospital is located.
(8) A copy of such written opinions, statements, certificates, and concurrences is filed with the Director of the State Department of Public Health within 10 days after such operation is performed.
(9) All written opinions, statements, certificates, and concurrences filed and maintained pursuant to paragraphs (7) and (8) of this subsection shall be confidential records and shall not be made available for public inspection at any time.
(c) Any solicitor general of the judicial circuit in which an abortion is to be performed under this section, or any person who would be a relative of the child within the second degree of consanguinity, may petition the superior court of the county in which the abortion is to be performed for a declaratory judgment whether the performance of such abortion would violate any constitutional or other legal rights of the fetus. Such solicitor general may also petition such court for the purpose of taking issue with compliance with the requirements of this section. The physician who proposes to perform the abortion and the pregnant woman shall be respondents. The petition shall be heard expeditiously and if the court adjudges that such abortion would violate the constitutional or other legal rights of the fetus, the court shall so declare and shall restrain the physician from performing the abortion.
(d) If an abortion is performed in compliance with this section, the death of the fetus shall not give rise to any claim for wrongful death.
*205 (e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b) (5). A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person.
26-1203. Punishment. A person convicted of criminal abortion shall be punished by imprisonment for not less than one nor more than 10 years.
APPENDIX B TO OPINION OF THE COURT
American Law Institute
MODEL PENAL CODE
Section 230.3. Abortion.
(1) Unjustified Abortion. A person who purposely and unjustifiably terminates the pregnancy of another otherwise than by a live birth commits a felony of the third degree or, where the pregnancy has continued beyond the twenty-sixth week, a felony of the second degree.
(2) Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All *206 illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection. Justifiable abortions shall be performed only in a licensed hospital except in case of emergency when hospital facilities are unavailable. [Additional exceptions from the requirement of hospitalization may be incorporated here to take account of situations in sparsely settled areas where hospitals are not generally accessible.]
(3) Physicians' Certificates; Presumption from Non-Compliance. No abortion shall be performed unless two physicians, one of whom may be the person performing the abortion, shall have certified in writing the circumstances which they believe to justify the abortion. Such certificate shall be submitted before the abortion to the hospital where it is to be performed and, in the case of abortion following felonious intercourse, to the prosecuting attorney or the police. Failure to comply with any of the requirements of this Subsection gives rise to a presumption that the abortion was unjustified.
(4) Self-Abortion. A woman whose pregnancy has continued beyond the twenty-sixth week commits a felony of the third degree if she purposely terminates her own pregnancy otherwise than by a live birth, or if she uses instruments, drugs or violence upon herself for that purpose. Except as justified under Subsection (2), a person who induces or knowingly aids a woman to use instruments, drugs or violence upon herself for the purpose of terminating her pregnancy otherwise than by a live birth commits a felony of the third degree whether or not the pregnancy has continued beyond the twenty-sixth week.
(5) Pretended Abortion. A person commits a felony of the third degree if, representing that it is his purpose to perform an abortion, he does an act adapted to cause abortion in a pregnant woman although the woman is in fact not pregnant, or the actor does not believe she is. *207 A person charged with unjustified abortion under Sub-section (1) or an attempt to commit that offense may be convicted thereof upon proof of conduct prohibited by this Subsection.
(6) Distribution of Abortifacients. A person who sells, offers to sell, possesses with intent to sell, advertises, or displays for sale anything specially designed to terminate a pregnancy, or held out by the actor as useful for that purpose, commits a misdemeanor, unless:
(a) the sale, offer or display is to a physician or druggist or to an intermediary in a chain of distribution to physicians or druggists; or
(b) the sale is made upon prescription or order of a physician; or
(c) the possession is with intent to sell as authorized in paragraphs (a) and (b); or
(d) the advertising is addressed to persons named in paragraph (a) and confined to trade or professional channels not likely to reach the general public.
(7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section shall be deemed applicable to the prescription, administration or distribution of drugs or other substances for avoiding pregnancy, whether by preventing implantation of a fertilized ovum or by any other method that operates before, at or immediately after fertilization.
MR. CHIEF JUSTICE BURGER, concurring[*]
I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using *208 the term health in its broadest medical context. See United States v. Vuitch, 402 U.S. 62, 71-72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts.
In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.
I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
*209 MR. JUSTICE DOUGLAS, concurring[*]
While I join the opinion of the Court,[1] I add a few words.
I
The questions presented in the present cases go far beyond the issues of vagueness, which we considered in United States v. Vuitch, 402 U.S. 62. They involve the right of privacy, one aspect of which we considered in Griswold v. Connecticut, 381 U.S. 479, 484, when we held that various guarantees in the Bill of Rights create zones of privacy.[2]
*210 The Griswold case involved a law forbidding the use of contraceptives. We held that law as applied to married people unconstitutional:
"We deal with a right of privacy older than the Bill of Rightsolder than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Id., at 486.
The District Court in Doe held that Griswold and related cases "establish a Constitutional right to privacy broad enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages, by obtaining an abortion." 319 F. Supp. 1048, 1054.
The Supreme Court of California expressed the same view in People v. Belous,[3] 71 Cal. 2d 954, 963, 458 P.2d 194, 199.
The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come *211 within the meaning of the term "liberty" as used in the Fourteenth Amendment.
First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality.
These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337 U.S. 1; Roth v. United States, 354 U.S. 476, 508 (dissent); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 (concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (Black, J., concurring, in which I joined). The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.S. 178, 196-199, is protected by the First and the Fifth. The First Amendment grants the privacy of first-class mail, United States v. Van Leeuwen, 397 U.S. 249, 253. All of these aspects of the right of privacy are rights "retained by the people" in the meaning of the Ninth Amendment.
Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of "unreasonable searches and seizures" and of "probable cause." These rights are "fundamental," and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a "compelling state interest" must be shown in support of the limitation. E. g., Kramer v. Union Free School District, 395 U.S. 621; Shapiro v. Thompson, 394 U.S. 618; *212 Carrington v. Rash, 380 U.S. 89; Sherbert v. Verner, 374 U.S. 398; NAACP v. Alabama, 357 U.S. 449.
The liberty to marry a person of one's own choosing, Loving v. Virginia, 388 U.S. 1; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535; the liberty to direct the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510, and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category.[4]*213 Only last Term in Eisenstadt v. Baird, 405 U.S. 438, another contraceptive case, we expanded the concept of Griswold by saying:
"It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.
This right of privacy was called by Mr. Justice Brandeis the right "to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, " `outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.' " Kent v. Dulles, 357 U.S. 116, 126.
Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.
These rights, though fundamental, are likewise subject to regulation on a showing of "compelling state interest." We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and wandering "are historically part of the amenities of life as we have known them." As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29:
"There is, of course, a sphere within which the individual may assert the supremacy of his own will *214 and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will."
In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court said, "The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow."
In Terry v. Ohio, 392 U.S. 1, 8-9, the Court, in speaking of the Fourth Amendment stated, "This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs."
Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion."
In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said:
"Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
The Georgia statute is at war with the clear message of these casesthat a woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. For example, rejected applicants under the Georgia statute are required to endure the *215 discomforts of pregnancy; to incur the pain, higher mortality rate, and aftereffects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing child care; and, in some cases, to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships.
II
Such reasoning is, however, only the beginning of the problem. The State has interests to protect. Vaccinations to prevent epidemics are one example, as Jacobson, supra, holds. The Court held that compulsory sterilization of imbeciles afflicted with hereditary forms of insanity or imbecility is another. Buck v. Bell, 274 U.S. 200. Abortion affects another. While childbirth endangers the lives of some women, voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society. The woman's health is part of that concern; as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as a medical one.
One difficulty is that this statute as construed and applied apparently does not give full sweep to the "psychological as well as physical well-being" of women patients which saved the concept "health" from being void for vagueness in United States v. Vuitch, 402 U. S., at 72. But, apart from that, Georgia's enactment has a constitutional infirmity because, as stated by the District Court, it "limits the number of reasons for which an abortion may be sought." I agree with the holding of the District Court, "This the State may not do, because such action unduly restricts a decision sheltered by the Constitutional right to privacy." 319 F. Supp., at 1056.
The vicissitudes of life produce pregnancies which may be unwanted, or which may impair "health" in *216 the broad Vuitch sense of the term, or which may imperil the life of the mother, or which in the full setting of the case may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take. These hardships may be properly embraced in the "health" factor of the mother as appraised by a person of insight. Or they may be part of a broader medical judgment based on what is "appropriate" in a given case, though perhaps not "necessary" in a strict sense.
The "liberty" of the mother, though rooted as it is in the Constitution, may be qualified by the State for the reasons we have stated. But where fundamental personal rights and liberties are involved, the corrective legislation must be "narrowly drawn to prevent the supposed evil," Cantwell v. Connecticut, 310 U.S. 296, 307, and not be dealt with in an "unlimited and indiscriminate" manner. Shelton v. Tucker, 364 U.S. 479, 490. And see Talley v. California, 362 U.S. 60. Unless regulatory measures are so confined and are addressed to the specific areas of compelling legislative concern, the police power would become the great leveler of constitutional rights and liberties.
There is no doubt that the State may require abortions to be performed by qualified medical personnel. The legitimate objective of preserving the mother's health clearly supports such laws. Their impact upon the woman's privacy is minimal. But the Georgia statute outlaws virtually all such operationseven in the earliest stages of pregnancy. In light of modern medical evidence suggesting that an early abortion is safer healthwise than childbirth itself,[5] it cannot be seriously *217 urged that so comprehensive a ban is aimed at protecting the woman's health. Rather, this expansive proscription of all abortions along the temporal spectrum can rest only on a public goal of preserving both embryonic and fetal life.
The present statute has struck the balance between the woman's and the State's interests wholly in favor of the latter. I am not prepared to hold that a State may equate, as Georgia has done, all phases of maturation preceding birth. We held in Griswold that the States may not preclude spouses from attempting to avoid the joinder of sperm and egg. If this is true, it is difficult to perceive any overriding public necessity which might attach precisely at the moment of conception. As Mr. Justice Clark has said:[6]
"To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscuritythe known rather than the unknown. When sperm meets egg life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of *218 life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus.[7] This would not be the case if the fetus constituted human life."
In summary, the enactment is overbroad. It is not closely correlated to the aim of preserving prenatal life. In fact, it permits its destruction in several cases, including pregnancies resulting from sex acts in which unmarried females are below the statutory age of consent. At the same time, however, the measure broadly proscribes aborting other pregnancies which may cause severe mental disorders. Additionally, the statute is overbroad because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth.
III
Under the Georgia Act, the mother's physician is not the sole judge as to whether the abortion should be performed. Two other licensed physicians must concur in his judgment.[8] Moreover, the abortion must be performed in a licensed hospital;[9] and the abortion must be *219 approved in advance by a committee of the medical staff of that hospital.[10]
Physicians, who speak to us in Doe through an amicus brief, complain of the Georgia Act's interference with their practice of their profession.
The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.
It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacythe right to care for one's health and person and to seek out a physician of one's own choice protected by the Fourteenth Amendmentbecomes only a matter of theory, not a reality, when a multiple-physician-approval system is mandated by the State.
The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known. He is entitled to procedural due process before professional disciplinary sanctions may be imposed. See In re Ruffalo, 390 U.S. 544. Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good-faith decision of the patient's chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.
The right to seek advice on one's health and the right to place reliance on the physician of one's choice are *220 basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the "liberty" and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their "liberty," viz., their right of privacy, without any compelling, discernible state interest.
Georgia has constitutional warrant in treating abortion as a medical problem. To protect the woman's right of privacy, however, the control must be through the physician of her choice and the standards set for his performance.
The protection of the fetus when it has acquired life is a legitimate concern of the State. Georgia's law makes no rational, discernible decision on that score.[11] For under the Code, the developmental stage of the fetus is irrelevant when pregnancy is the result of rape, when the fetus will very likely be born with a permanent defect, or when a continuation of the pregnancy will endanger the life of the mother or permanently injure her health. When life is present is a question we do not try to resolve. While basically a question for medical experts, as stated by Mr. Justice Clark,[12] it is, of course, caught up in matters of religion and morality.
In short, I agree with the Court that endangering the life of the woman or seriously and permanently injuring *221 her health are standards too narrow for the right of privacy that is at stake.
I also agree that the superstructure of medical supervision which Georgia has erected violates the patient's right of privacy inherent in her choice of her own physician.
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.[*]
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers *222 and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.
It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women *223 whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.
Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of § 26-1202 (a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case.
MR. JUSTICE REHNQUIST, dissenting.
The holding in Roe v. Wade, ante, p. 113, that state abortion laws can withstand constitutional scrutiny only if the State can demonstrate a compelling state interest, apparently compels the Court's close scrutiny of the various provisions in Georgia's abortion statute. Since, as indicated by my dissent in Wade, I view the compelling-state-interest standard as an inappropriate measure of the constitutionality of state abortion laws, I respectfully dissent from the majority's holding.
NOTES
[*] Briefs of amici curiae were filed by Roy Lucas for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Delores V. Horan for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G. Zarky for the American Association of University Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; by Robert E. Dunne for Robert L. Sassone; and by Ferdinand Buckley pro se.
[1] The portions italicized in Appendix A are those held unconstitutional by the District Court.
[2] Brief for Appellants 25 n. 5; Tr. of Oral Arg. 9.
[3] See Roe v. Wade, ante, p. 113, at 140 n. 37.
[4] The pertinent provisions of the 1876 statute were:
"Section I. Be it enacted, etc., That from and after the passage of this Act, the willful killing of an unborn child, so far developed as to be ordinarily called `quick,' by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be guilty of a felony, and punishable by death or imprisonment for life, as the jury trying the case may recommend.
"Sec. II. Be it further enacted, That every person who shall administer to any woman pregnant with a child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or mother be thereby produced, be declared guilty of an assault with intent to murder.
"Sec. III. Be it further enacted, That any person who shall wilfully administer to any pregnant woman any medicine, drug or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to procure the miscarriage or abortion of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished as prescribed in section 4310 of the Revised Code of Georgia."
It should be noted that the second section, in contrast to the first, made no specific reference to quickening. The section was construed, however, to possess this line of demarcation. Taylor v. State, 105 Ga. 846, 33 S.E. 190 (1899).
[5] In contrast with the ALI model, the Georgia statute makes no specific reference to pregnancy resulting from incest. We were assured by the State at reargument that this was because the statute's reference to "rape" was intended to include incest. Tr. of Oral Rearg. 32.
[6] Appellants by their complaint, App. 7, allege that the name is a pseudonym.
[7] In answers to interrogatories, Doe stated that her application for an abortion was approved at Georgia Baptist Hospital on May 5, 1970, but that she was not approved as a charity patient there and had no money to pay for an abortion. App. 64.
[8] What we decide today obviously has implications for the issues raised in the defendants' appeal pending in the Fifth Circuit.
[9] Tr. of Oral Arg. 21-22.
[10] Brief for Appellants 25.
[11] We were advised at reargument, Tr. of Oral Rearg. 10, that only 54 of Georgia's 159 counties have a JCAH-accredited hospital.
[12] Since its founding, JCAH has pursued the "elusive goal" of defining the "optimal setting" for "quality of service in hospitals." JCAH, Accreditation Manual for Hospitals, Foreword (Dec. 1970). The Manual's Introduction states the organization's purpose to establish standards and conduct accreditation programs that will afford quality medical care "to give patients the optimal benefits that medical science has to offer." This ambitious and admirable goal is illustrated by JCAH's decision in 1966 "[t]o raise and strengthen the standards from their present level of minimum essential to the level of optimum achievable . . . ." Some of these "optimum achievable" standards required are: disclosure of hospital ownership and control; a dietetic service and written dietetic policies; a written disaster plan for mass emergencies; a nuclear medical services program; facilities for hematology, chemistry, microbiology, clinical microscopy, and sero-immunology; a professional library and document delivery service; a radiology program; a social services plan administered by a qualified social worker; and a special care unit.
[13] "The Joint Commission neither advocates nor opposes any particular position with respect to elective abortions." Letter dated July 9, 1971, from John I. Brewer, M. D., Commissioner, JCAH, to the Rockefeller Foundation. Brief for amici curiae, American College of Obstetricians and Gynecologists et al., p. A-3.
[14] See Roe v. Wade, ante, at 146-147, n. 40.
[15] Some state statutes do not have the JCAH-accreditation requirement. Alaska Stat. § 11.15.060 (1970); Hawaii Rev. Stat. § 453-16 (Supp. 1971); N. Y. Penal Code § 125.05, subd. 3 (Supp. 1972-1973). Washington has the requirement but couples it with the alternative of "a medical facility approved . . . by the state board of health." Wash. Rev. Code § 9.02.070 (Supp. 1972). Florida's new statute has a similar provision. Law of Apr. 13, 1972, c. 72-196, § 1 (2). Others contain the specification. Ark. Stat. Ann. §§ 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code §§ 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. §§ 40-2-50 to 40-2-53 (Cum. Supp. 1967); Kan. Stat. Ann. § 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, §§ 137-139 (1971). Cf. Del. Code Ann., Tit. 24, §§ 1790-1793 (Supp. 1972), specifying "a nationally recognized medical or hospital accreditation authority," § 1790 (a).
[16] L. Baker & M. Freeman, Abortion Surveillance at Grady Memorial Hospital Center for Disease Control (June and July 1971) (U. S. Dept. of HEW, Public Health Service).
[*] [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.]
[*] [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.]
[1] I disagree with the dismissal of Dr. Hallford's complaint in intervention in Roe v. Wade, ante, p. 113, because my disagreement with Younger v. Harris, 401 U.S. 37, revealed in my dissent in that case, still persists and extends to the progeny of that case.
[2] There is no mention of privacy in our Bill of Rights but our decisions have recognized it as one of the fundamental values those amendments were designed to protect. The fountainhead case is Boyd v. United States, 116 U.S. 616, holding that a federal statute which authorized a court in tax cases to require a taxpayer to produce his records or to concede the Government's allegations offended the Fourth and Fifth Amendments. Mr. Justice Bradley, for the Court, found that the measure unduly intruded into the "sanctity of a man's home and the privacies of life." Id., at 630. Prior to Boyd, in Kilbourn v. Thompson, 103 U.S. 168, 190, Mr. Justice Miller held for the Court that neither House of Congress "possesses the general power of making inquiry into the private affairs of the citizen." Of Kilbourn, Mr. Justice Field later said, "This case will stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee." In re Pacific Railway Comm'n, 32 F. 241, 253 (cited with approval in Sinclair v. United States, 279 U.S. 263, 293). Mr. Justice Harlan, also speaking for the Court, in ICC v. Brimson, 154 U.S. 447, 478, thought the same was true of administrative inquiries, saying that the Constitution did not permit a "general power of making inquiry into the private affairs of the citizen." In a similar vein were Harriman v. ICC, 211 U.S. 407; United States v. Louisville & Nashville R. Co., 236 U.S. 318, 335; and FTC v. American Tobacco Co., 264 U.S. 298.
[3] The California abortion statute, held unconstitutional in the Belous case, made it a crime to perform or help perform an abortion "unless the same is necessary to preserve [the mother's] life." 71 Cal. 2d, at 959, 458 P. 2d, at 197.
[4] My Brother STEWART, writing in Roe v. Wade, supra, says that our decision in Griswold reintroduced substantive due process that had been rejected in Ferguson v. Skrupa, 372 U.S. 726. Skrupa involved legislation governing a business enterprise; and the Court in that case, as had Mr. Justice Holmes on earlier occasions, rejected the idea that "liberty" within the meaning of the Due Process Clause of the Fourteenth Amendment was a vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats. Griswold involved legislation touching on the marital relation and involving the conviction of a licensed physician for giving married people information concerning contraception. There is nothing specific in the Bill of Rights that covers that item. Nor is there anything in the Bill of Rights that in terms protects the right of association or the privacy in one's association. Yet we found those rights in the periphery of the First Amendment. NAACP v. Alabama, 357 U.S. 449, 462. Other peripheral rights are the right to educate one's children as one chooses, Pierce v. Society of Sisters, 268 U.S. 510, and the right to study the German language, Meyer v. Nebraska, 262 U.S. 390. These decisions, with all respect, have nothing to do with substantive due process. One may think they are not peripheral to other rights that are expressed in the Bill of Rights. But that is not enough to bring into play the protection of substantive due process.
There are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed.
[5] Many studies show that it is safer for a woman to have a medically induced abortion than to bear a child. In the first 11 months of operation of the New York abortion law, the mortality rate associated with such operations was six per 100,000 operations. Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 1971) (U. S. Dept. of HEW, Public Health Service). On the other hand, the maternal mortality rate associated with childbirths other than abortions was 18 per 100,000 live births. Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969). See also Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (Apr. 1961); Kolblova, Legal Abortion in Czechoslovakia, 196 J. A. M. A. 371 (Apr. 1966); Mehland, Combating Illegal Abortion in the Socialist Countries of Europe, 13 World Med. J. 84 (1966).
[6] Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 9-10 (1969).
[7] In Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617, the California Supreme Court held in 1970 that the California murder statute did not cover the killing of an unborn fetus, even though the fetus be "viable," and that it was beyond judicial power to extend the statute to the killing of an unborn. It held that the child must be "born alive before a charge of homicide can be sustained." Id., at 639, 470 P.2d, at 630.
[8] See Ga. Code Ann. § 26-1202 (b) (3).
[9] See id., § 26-1202 (b) (4).
[10] Id., § 26-1202 (b) (5).
[11] See Rochat, Tyler, & Schoenbucher, An Epidemiological Analysis of Abortion in Georgia, 61 Am. J. of Public Health 543 (1971).
[12] Supra, n. 6, at 10.
[*] [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.] | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/102825/ | 301 U.S. 324 (1937)
UNITED STATES
v.
BELMONT ET AL., EXECUTORS.
No. 532.
Supreme Court of United States.
Argued March 4, 1937.
Decided May 3, 1937.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
*325 Solicitor General Reed and Mr. David E. Hudson, with whom Messrs. W.W. Scott, A.H. Feller, Albert Levitt, and Paul A. Sweeney were on the brief, for the United States.
Mr. Cornelius W. Wickersham for respondents.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is an action at law brought by petitioner against respondents in a federal district court to recover a sum of money deposited by a Russian corporation (Petrograd *326 Metal Works) with August Belmont, a private banker doing business in New York City under the name of August Belmont & Co. August Belmont died in 1924; and respondents are the duly-appointed executors of his will. A motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action was sustained by the district court, and its judgment was affirmed by the court below. 85 F. (2d) 542. The facts alleged, so far as necessary to be stated, follow.
The corporation had deposited with Belmont, prior to 1918, the sum of money which petitioner seeks to recover. In 1918, the Soviet Government duly enacted a decree by which it dissolved, terminated and liquidated the corporation (together with others), and nationalized and appropriated all of its property and assets of every kind and wherever situated, including the deposit account with Belmont. As a result, the deposit became the property of the Soviet Government, and so remained until November 16, 1933, at which time the Soviet Government released and assigned to petitioner all amounts due to that government from American nationals, including the deposit account of the corporation with Belmont. Respondents failed and refused to pay the amount upon demand duly made by petitioner.
The assignment was effected by an exchange of diplomatic correspondence between the Soviet Government and the United States. The purpose was to bring about a final settlement of the claims and counterclaims between the Soviet Government and the United States; and it was agreed that the Soviet Government would take no steps to enforce claims against American nationals; but all such claims were released and assigned to the United States, with the understanding that the Soviet Government was to be duly notified of all amounts realized by the United States from such release and assignment. The assignment and requirement for notice *327 are parts of the larger plan to bring about a settlement of the rival claims of the high contracting parties. The continuing and definite interest of the Soviet Government in the collection of assigned claims is evident; and the case, therefore, presents a question of public concern, the determination of which well might involve the good faith of the United States in the eyes of a foreign government. The court below held that the assignment thus effected embraced the claim here in question; and with that we agree.
That court, however, took the view that the situs of the bank deposit was within the State of New York; that in no sense could it be regarded as an intangible property right within Soviet territory; and that the nationalization decree, if enforced, would put into effect an act of confiscation. And it held that a judgment for the United States could not be had, because, in view of that result, it would be contrary to the controlling public policy of the State of New York. The further contention is made by respondents that the public policy of the United States would likewise be infringed by such a judgment. The two questions thus presented are the only ones necessary to be considered.
First. We do not pause to inquire whether in fact there was any policy of the State of New York to be infringed, since we are of opinion that no state policy can prevail against the international compact here involved.
This court has held, Underhill v. Hernandez, 168 U.S. 250, that every sovereign state must recognize the independence of every other sovereign state; and that the courts of one will not sit in judgment upon the acts of the government of another, done within its own territory.
That general principle was applied in Oetjen v. Central Leather Co., 246 U.S. 297, to a case where an action in replevin had been brought in a New Jersey state court to recover a consignment of hides purchased in Mexico from *328 General Villa. The title of the purchaser was assailed on the ground that Villa had confiscated the hides. Villa, it appeared, had seized the hides while conducting independent operations under the Carranza government, which at the time of the seizure had made much progress in its revolution in Mexico. The government of the United States, after the trial of the case in the state court, had recognized the government of Carranza, first as the de facto government of the Republic of Mexico, and later as the government de jure. This court held that the conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this political power was not subject to judicial inquiry or decision; that who is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts; and that recognition by these departments is retroactive and validates all actions and conduct of the government so recognized from the commencement of its existence. "The principle," we said, p. 303, "that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly `imperil the amicable relations between governments and vex the peace of nations.'" Ricaud v. American Metal Co., 246 U.S. 304, 308-309, 310, is to the same effect.
In A.M. Luther v. James Sagor & Co., L.R. [1921] 3 K.B. 532, the English Court of Appeal expressly approved *329 and followed our decision in the Oetjen case. The English case involved that part of the same decree of the Soviet Government here under consideration which declared certain private woodworking establishments to be the property of the Republic. Under that decree the Government seized plaintiff's factory in Russia together with a stock of wood therein. Agents of the Republic sold a quantity of the stock so seized to the defendants, who imported it into England. Thereafter, the British Government recognized the Soviet Government as the de facto government of Russia. Upon these facts, the court held that, the British Government having thus recognized the Soviet Government, existing at a date before the decree in question, the validity of that decree and the sale of the wood to the defendants could not be impugned, and gave judgment for defendants accordingly. The court regarded the decree as one of confiscation, but was unable to see (Bankes, L.J., p. 546) how the courts could treat the decree "otherwise than as the expression by the de facto government of a civilized country of a policy which it considered to be in the best interest of that country. It must be quite immaterial for present purposes that the same views are not entertained by the Government of this country, are repudiated by the vast majority of its citizens, and are not recognized by our laws." Lord Justice Scrutton, in his opinion, discusses (pp. 557-559) the contention that the courts should refuse to recognize the decree and the titles derived under it as confiscatory and unjust, and concludes that the question is one not for the judges but for the action of the sovereign through his ministers. "I do not feel able," he said, "to come to the conclusion that the legislation of a state recognized by my Sovereign as an independent sovereign state is so contrary to moral principle that the judges ought not to recognize it. The responsibility for recognition or nonrecognition with the consequences of each rests on the *330 political advisers of the Sovereign and not on the judges." Further citation of authority seems unnecessary.
We take judicial notice of the fact that coincident with the assignment set forth in the complaint, the President recognized the Soviet Government, and normal diplomatic relations were established between that government and the Government of the United States, followed by an exchange of ambassadors. The effect of this was to validate, so far as this country is concerned, all acts of the Soviet Government here involved from the commencement of its existence. The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over internal affairs is distributed between the national government and the several states. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.
A treaty signifies "a compact made between two or more independent nations with a view to the public welfare." Altman & Co. v. United States, 224 U.S. 583, 600. But an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements *331 like that now under consideration are illustrations. See 5 Moore, Int. Law Digest, 210-221. The distinction was pointed out by this court in the Altman case, supra, which arose under § 3 of the Tariff Act of 1897, authorizing the President to conclude commercial agreements with foreign countries in certain specified matters. We held that although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a "treaty" within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this court.
Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. "To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot's Debates 515. And see Ware v. Hylton, 3 Dall. 199, 236-237. And while this rule in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states. Compare United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316, et seq. In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes the State of New York does not exist. Within the field of its powers, whatever *332 the United States rightfully undertakes, it necessarily has warrant to consummate. And when judicial authority is invoked in aid of such consummation, state constitutions, state laws, and state policies are irrelevant to the inquiry and decision. It is inconceivable that any of them can be interposed as an obstacle to the effective operation of a federal constitutional power. Cf. Missouri v. Holland, 252 U.S. 416; Asakura v. Seattle, 265 U.S. 332, 341.
Second. The public policy of the United States relied upon as a bar to the action is that declared by the Constitution, namely, that private property shall not be taken without just compensation. But the answer is that our Constitution, laws and policies have no extraterritorial operation, unless in respect of our own citizens. Compare United States v. Curtiss-Wright Export Corp., supra, at p. 318. What another country has done in the way of taking over property of its nationals, and especially of its corporations, is not a matter for judicial consideration here. Such nationals must look to their own government for any redress to which they may be entitled. So far as the record shows, only the rights of the Russian corporation have been affected by what has been done; and it will be time enough to consider the rights of our nationals when, if ever, by proper judicial proceeding, it shall be made to appear that they are so affected as to entitle them to judicial relief. The substantive right to the moneys, as now disclosed, became vested in the Soviet Government as the successor to the corporation; and this right that government has passed to the United States. It does not appear that respondents have any interest in the matter beyond that of a custodian. Thus far no question under the Fifth Amendment is involved.
It results that the complaint states a cause of action and that the judgment of the court below to the contrary is erroneous. In so holding, we deal only with the case *333 as now presented and with the parties now before us. We do not consider the status of adverse claims, if there be any, of others not parties to this action. And nothing we have said is to be construed as foreclosing the assertion of any such claim to the fund involved, by intervention or other appropriate proceeding. We decide only that the complaint alleges facts sufficient to constitute a cause of action against the respondents.
Judgment reversed.
MR. JUSTICE STONE, concurring.
I agree with the result, but I am unable to follow the path by which it is reached. Upon the record before us there is, I think, no question of reexamining the validity of acts of a foreign state, and no question of the United States' declaring and enforcing a policy inconsistent with one that the State of New York might otherwise adopt in conformity to its own laws and the Constitution.
The United States, by agreement with the Soviet government, has acquired an assignment of all the rights of the latter in a chose in action, against an American citizen, formerly belonging to a Russian national, and confiscated by decree of the Soviet government. If the subject of the transfer were a chattel belonging to an American, but located in Russia, we may assume that the validity of the seizure would be recognized here, Oetjen v. Central Leather Co., 246 U.S. 297; Ricaud v. American Metal Co., 246 U.S. 304, 308-310; Salimoff & Co. v. Standard Oil Co., 262 N.Y. 220; 186 N.E. 679. Similarly, the confiscation of the present claim, being lawful where made, is upon familiar principles to be regarded as effective in New York, except in so far as that state, by reason of the presence of the debtor there, may adopt and enforce a policy based upon non-recognition of the transfer.
*334 But this Court has often recognized that a state may refuse to give effect to a transfer, made elsewhere, of property which is within its own territorial limits, if the transfer is in conflict with its public policy. Green v. Van Buskirk, 5 Wall. 307, 311-312; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664; Security Trust Co. v. Dodd, Mead & Co., 173 U.S. 624; Clark v. Williard, 292 U.S. 112, 122; Clark v. Williard, 294 U.S. 211. It is likewise free to disregard the transfer where the subject of it is a chose in action due from a debtor within the state to a foreign creditor, especially where, as in the present case, the debtor's only obligation is to pay within the state, on demand. Harrison v. Sterry, 5 Cranch 289; Disconto Gesellschaft v. Umbreit, 208 U.S. 570; Barth v. Backus, 140 N.Y. 230; 35 N.E. 425; Vladikavkazsky Ry. Co. v. New York Trust Co., 263 N.Y. 369, 378-379; 189 N.E. 456. The chose in action is so far within the control of the state as to be regarded as located there for many purposes. Wyman v. Halstead, 109 U.S. 654, 656; Chicago, R.I. & P. Ry. Co. v. Sturm, 174 U.S. 710; Harris v. Balk, 198 U.S. 215; Pennington v. Fourth National Bank, 243 U.S. 269; Security Savings Bank v. California, 263 U.S. 282, 285; Corn Exchange Bank v. Coler, 280 U.S. 218; In re Russian Bank for Foreign Trade, L.R. 1933, Ch. Div. 745, 767; American Law Institute, Restatement, Conflict of Laws, §§ 108, 213.
It does not appear that the State of New York, at least since our diplomatic recognition of the Soviet government, has any policy which would permit a New York debtor to question the title of that government to a claim of the creditor acquired by its confiscatory decree, and no reason is apparent for assuming that such is its policy. Payment of the debt to the United States as transferee will discharge the debtor and impose on him no burden which he did not undertake when he assumed the position of debtor. Beyond this he has no interest for the state *335 to protect. But it is a recognized rule that a state may rightly refuse to give effect to external transfers of property within its borders so far as they would operate to exclude creditors suing in its courts. Harrison v. Sterry, supra; Security Trust Co. v. Dodd, Mead & Co., supra; Disconto Gesellschaft v. Umbreit, supra; Clark v. Williard, supra; Barth v. Backus, supra.
We recently held, in Clark v. Williard, supra, that the full faith and credit clause does not preclude the attachment of property within the state, by a local creditor of a foreign corporation, all of whose property has been previously transferred, in the state of its incorporation, to a statutory successor for the benefit of creditors. Due process under the Fifth Amendment, the benefits of which extend to alien friends, as well as to citizens, Russian Volunteer Fleet v. United States, 282 U.S. 481, does not require any different result. Disconto Gesellschaft v. Umbreit, supra, 579, 580. The Constitution has no different application where the property transferred is a chose in action, later seized by a creditor in the state of the debtor. Disconto Gesellschaft v. Umbreit, supra. See Harrison v. Sterry, supra. In conformity to this doctrine, New York would have been free to enforce a local policy, subordinating the Soviet government, as the successor of its national, to local suitors. Its judicial decisions indicate that such may be its policy for the protection of creditors or others claiming an interest in the sum due. James & Co. v. Second Russian Insurance Co., 239 N.Y. 248, 257; 146 N.E. 369; Matter of People (City Equitable Fire Insurance Co.), 238 N.Y. 147, 152; 144 N.E. 484; Matter of Waite, 99 N.Y. 433, 448; 2 N.E. 440. See Vladikavkazsky Ry. Co. v. New York Trust Co., supra.
It seems plain that, so far as now appears, the United States does not stand in any better position with respect to the assigned claim than did its assignor, or any other *336 transferee of the Soviet government. We may, for present purposes, assume that the United States, by treaty with a foreign government with respect to a subject in which the foreign government has some interest or concern, could alter the policy which a state might otherwise adopt. It is unnecessary to consider whether the present agreement between the two governments can rightly be given the same effect as a treaty within this rule, for neither the allegations of the bill of complaint, nor the diplomatic exchanges, suggest that the United States has either recognized or declared that any state policy is to be overridden.
So far as now relevant, the document signed by the Soviet government, as preparatory to a more general settlement of claims and counterclaims between the two governments, assigns and releases to the United States all amounts "due or that may be found to be due it" from American nationals, and provides that the Soviet government is "to be duly notified in each case of any amount realized by the Government of the United States from such release and assignment." The relevant portion of the document signed by the President is expressed in the following paragraph:
"I am glad to have these undertakings by your Government and I shall be pleased to notify your Government in each case of any amount realized by the Government of the United States from the release and assignment to it of the amounts admitted to be due or that may be found to be due."
There is nothing in either document to suggest that the United States was to acquire or exert any greater rights than its transferor, or that the President, by mere executive action, purported or intended to alter the laws and policy of any state in which the debtor of an assigned claim might reside, or that the United States, as assignee, *337 is to do more than the Soviet government could have done after diplomatic recognition that is, collect the claims in conformity with those laws. Cf. Todok v. Union State Bank, 281 U.S. 449.
As respondent debtor may not challenge the effect of the assignment to the United States, the judgment is rightly reversed. But as the reversal is without prejudice to the rights of any other parties to intervene, they should be left free to assert, by intervention or other appropriate procedure, such claims with respect to the amount due as are in accordance with the laws and policy of New York. There is no occasion to say anything now which can be taken to foreclose the assertion by such claimants of their rights under New York law.
MR. JUSTICE BRANDEIS and MR. JUSTICE CARDOZO concur in this opinion. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/109946/ | 439 U.S. 14 (1978)
PRESNELL
v.
GEORGIA.
No. 77-6885.
Supreme Court of United States.
Decided November 6, 1978.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA.
PER CURIAM.
Petitioner was indicted and found guilty by a jury of three capital offensesrape, kidnaping with bodily injury, and murder with malice aforethought. Under Georgia law, a jury may impose the death penalty if it finds that the offender committed a capital felony under at least 1 of 10 statutorily enumerated aggravating circumstances. Ga. Code § 27-2534.1 (b) (1975). The only such circumstance relevant here is that
"[t]he [capital] offense . . . was committed while the offender was engaged in the commission of another capital felony . . . ." § 27-2534.1 (b) (2).
At the penalty phase of petitioner's trial, the jury was instructed that it could impose the death penalty (1) for rape if that offense was committed while petitioner was engaged in the commission of murder, (2) for kidnaping with bodily injury if that offense was committed while petitioner was engaged in the commission of rape, or (3) for murder if that offense was committed while petitioner was engaged in the commission of "kidnapping with bodily harm, aggravated *15 sodomy." The jury found that all three offenses were committed during the commission of the specified additional offenses, and it imposed three death sentences on petitioner.
On appeal, the Supreme Court of Georgia held that the first two death sentences imposed by the jury could not stand. 241 Ga. 49, 52, 64, 243 S.E.2d 496, 501, 508 (1978). Both sentences depended upon petitioner's having committed forcible rape, and the court determined that the jury had not properly convicted petitioner of that offense.[1]
In addition, the Supreme Court of Georgia held that the State could not rely upon sodomy as constituting the bodily injury associated with the kidnaping.[2] Nonetheless, despite the fact that the jury had been instructed that the death penalty for murder depended upon a finding that it was committed while petitioner was engaged in "kidnapping with bodily harm, aggravated sodomy" (emphasis added), the Georgia Supreme Court upheld the third death penalty imposed by the jury. It did so on the theory that, despite the *16 lack of a jury finding of forcible rape, evidence in the record supported the conclusion that petitioner was guilty of that offense, which in turn established the element of bodily harm necessary to make the kidnaping a sufficiently aggravating circumstance to justify the death sentence.
In Cole v. Arkansas, 333 U.S. 196 (1948), petitioners were convicted at trial of one offense but their convictions were affirmed by the Supreme Court of Arkansas on the basis of evidence in the record indicating that they had committed another offense on which the jury had not been instructed. In reversing the convictions, Mr. Justice Black wrote for a unanimous Court:
"It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. . . .
"To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court." Id., at 201-202.[3]
These fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial. Cf. Gardner v. Florida, 430 U.S. 349 (1977). *17 In light of these principles, the death sentence for the crime of murder with malice aforethought cannot stand.
Insofar as the petition for certiorari challenges the conviction for kidnaping with bodily injury[4] and the imposition of the death sentence, it is granted along with petitioner's motion to proceed in forma pauperis. The judgment of the Supreme Court of Georgia affirming the conviction for kidnaping with bodily injury and the death sentence for murder is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Insofar as the petition challenges the convictions for murder, kidnaping, and statutory rape, it is denied.
It is so ordered.
MR. JUSTICE BRENNAN, concurring.
I join the opinion of the Court. For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U.S. 153, 227 (1976), I would in addition hold that the death penalty violates the Eighth and Fourteenth Amendments and that therefore petitioner may not be resentenced to death in any proceedings following remand from this Court.
MR. JUSTICE MARSHALL, concurring.
While I join the opinion of the Court, I again emphasize my opinion that the death penalty in any proceeding is unconstitutional.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
If, as the per curiam opinion for the Court states, the Supreme Court of Georgia had found petitioner guilty of kidnaping *18 with bodily injury in spite of a failure of the jury to return a proper guilty verdict for that crime, I would join this decision. My review of the record and the opinion of the Georgia court, however, has convinced me that petitioner's conviction for that crime might well have been upheld on the basis of the jury's proper verdict. Because the opinion of the Supreme Court of Georgia is fundamentally ambiguous on this point, I would remand the case for clarification rather than vacating petitioner's sentence of death. Accordingly, I dissent.
Petitioner was indicted for five offenses: murder of Lori Ann Smith; kidnaping of Lori Ann Smith; rape of Andrea Furlong; aggravated sodomy of Andrea Furlong; and the kidnaping of Andrea Furlong "with bodily injury." The aggravated sodomy charge was not submitted to the jury, as the aggravated sodomy of Andrea was alleged to have supplied the bodily injury element of her kidnaping. The jury returned guilty verdicts on all four counts. It sentenced petitioner to death on three of the counts: (i) the murder of Lori Ann, with the kidnaping of Andrea with bodily injury as a specified aggravating circumstance; (ii) the rape of Andrea, with the murder of Lori Ann as a specified aggravating circumstance; and (iii) the kidnaping of Andrea with bodily injury, with the rape of Andrea as a specified aggravating circumstance. Petitioner also was sentenced to a term of years for the kidnaping of Lori Ann.
On appeal, the Georgia court vacated the death sentences for the rape of Andrea and the kidnaping of Andrea with bodily injury. With respect to the rape of Andrea, the court noted that the jury was instructed on both forcible and statutory rape and returned a verdict that did not distinguish between the two crimes. As only forcible rape was a capital crime under Georgia law, petitioner had to be resentenced as *19 if he had been convicted only of statutory rape. With respect to the kidnaping of Andrea, the court did not indicate whether it vacated the sentence because it believed our recent opinion in Coker v. Georgia, 433 U.S. 584 (1977), so mandated, or because the specified aggravating circumstance for this offense, the rape of Andrea, also was tainted by the jury's failure to distinguish between forcible and statutory rape.[1] The court did not disturb, however, the conviction for the underlying offense of kidnaping with bodily injury.
The Georgia court did affirm the sentence of death for the murder of Lori Ann, the kidnaping of Andrea with bodily injury being the aggravating circumstance. The validity of that kidnaping conviction is the matter in issue here. According to the Court, the court below ruled that even though as a matter of state law the aggravated sodomy of Andrea could not provide the bodily-injury element of the kidnaping, that element was supplied by the evidence of forcible rape. The Court then holds that the Georgia court could not constitutionally rely on evidence of forcible rape as bodily injury, because the jury may have convicted petitioner only of statutory rape, which requires no finding of force. Statutory rape would therefore be insufficient to provide the bodily-injury element associated with the kidnaping, which in turn would render that offense insufficient as an aggravating circumstance for the purpose of imposing the death penalty.[2]
Although the opinion of the Georgia court is not a model of clarity, a careful reading of the decision persuades me that the Court has misconstrued a critical part of what was held below. The Court is correct that the Georgia Supreme Court was not entitled to rely upon the evidence in the record of forcible rape *20 to supply the bodily-injury component of the kidnaping.[3] But it is incorrect to say that the court below necessarily rejected the jury's unambiguous finding of aggravated sodomy[4]*21 as establishing the bodily injury that converted simple kidnaping into a capital offense under Georgia law. On this point the opinion of the state court is hopelessly obscure. As the Court observes, portions of the opinion may be read as indicating that aggravated sodomy, a crime that has as an element a forcible assault upon the victim, cannot constitute "bodily injury" with respect to the crime of kidnaping with bodily injury. Ante, at 15 n. 2. An equally plausible reading of the opinion, however, is that once the court determined that the evidence of harm inflicted during the rape established bodily injury, it did not think it necessary to decide the question whether aggravated sodomy, considered alone, also could establish that element. Certainly that question was not necessarily decided by the court, as it believed that bodily injury was proved, at least in part, by the evidence of forcible rape.[5] Moreover, the trial court expressly held that the sodomy did satisfy the bodily injury requirement, and the Georgia Supreme Court did not reverse that ruling.[6]
*22 The validity of petitioner's conviction for kidnaping with bodily injury, and the use of that conviction as an aggravating circumstance for the purpose of sentencing, cannot be determined without resolution of this state-law question. If the court below meant to rule that as a matter of Georgia law evidence of forcible sodomy does not constitute proof of "bodily injury" for the purposes of the kidnaping offense, although proof of forcible rape would suffice, then the death sentence must be vacated and the conviction for kidnaping with bodily injury must be reversed. A criminal defendant is "entitled to have the validity of [his] convictio[n] appraised on consideration of the case as it was tried and as the issues were determined in the trial court." Cole v. Arkansas, 333 U.S. 196, 202 (1948). Here, the jury was permitted to find petitioner guilty of kidnaping with bodily injury if he committed aggravated sodomy during the offense. The jury also was allowed to specify this kidnaping as an aggravating circumstance of the murder if it coincided with aggravated sodomy. If it was an error of state law so to instruct the jury, the court may not redeem the mistake by ruling that the jury could have believed other evidence indicating petitioner had injured his victim in other ways. Cf. Duncan v. Louisiana, 391 U.S. 145 (1968). This is particularly true here, as the Georgia court ruled that *23 the jury cannot be deemed to have returned a guilty verdict on the forcible rape charge itself.
If, however, the aggravated sodomy, accomplished by force, did satisfy the bodily-injury element under state law, it would appear that the jury properly convicted petitioner of that crime and was permitted to use that conviction as an aggravating circumstance with respect to the murder conviction. Because the question is substantial and was not resolved by the court below, I would remand the case for clarification.[7]
NOTES
[1] Petitioner was indicted and found guilty by the jury of "rape." Because the jury had been instructed both on forcible and statutory rape, but did not in its verdict specify which offense it had found, the Supreme Court of Georgia interpreted the "rape" conviction as one for statutory rapean offense that includes no element of bodily harm. Moreover, there was no jury finding of forcible rape at the penalty phase of the trial.
[2] Although the Georgia Supreme Court did not explain this holding, the holding itself is unambiguous. First, the Georgia court unequivocally stated:
"The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child." 241 Ga., at 52, 243 S. E. 2d, at 501.
Second, after concluding that the evidence of forcible rape could supply the bodily injury element of the crime of kidnaping, the Georgia court added:
"The state's attempted reliance upon sodomy as constituting the bodily injury associated with the kidnapping of the older child is not ground for retrial." Ibid., 243 S. E. 2d, at 502.
[3] In the present case, when the Supreme Court of Georgia ruled on petitioner's motion for rehearing it recognized that, prior to its opinion in the case, petitioner had no notice, either in the indictment, in the instructions to the jury, or elsewhere, that the State was relying on the rape to establish the bodily injury component of aggravated kidnaping:
"On motion for rehearing the defendant urges, among other things, that he was not on notice that evidence as to the older child's injuries which resulted from her being raped would provide the evidence of her bodily injury to convict him of her kidnapping with bodily injury. He was on notice, however, that he was charged with forcible rape as well as kidnapping with bodily injury of the older child.
"Motion for rehearing denied." Id., at 67, 243 S.E.2d, at 510.
[4] Because the jury convicted petitioner of the same offense that it relied upon to find the statutory aggravating circumstances necessary to impose the death penaltykidnaping with bodily injury, to wit, aggravated sodomythe Georgia Supreme Court's affirmance of that conviction on the basis of the bodily injury resulting from the rape is also unconstitutional under Cole v. Arkansas, 333 U.S. 196 (1948). Accordingly, under the dictates of that case, id., at 200, 202, the conviction must be reversed.
[1] As the Court observes, ante, at 14, Ga. Code § 27-2534.1 (b) (2) (1975) limits those crimes whose commission in the course of a homicide will sustain a death sentence to certain enumerated felonies. Statutory rape is not such an offense, although forcible rape is.
[2] See n. 1, supra.
[3] The court below actually identified two problems with the rape conviction, a state-law double jeopardy violation as well as the ambiguity of the jury verdict discussed in the text. This is made clear by a close reading of the opinion. It begins by observing:
"The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child. Thus, the convictions for both kidnapping with bodily injury and forcible rape cannot be upheld." 241 Ga. 49, 52, 243 S.E.2d 496, 501 (1978).
This Court apparently believes that "both" convictions could not be upheld because of the failure of the jury to distinguish in both instances between forcible and statutory rape. Immediately after this sentence, however, the Georgia court cited its decision in State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974). That decision involves the protection against double jeopardy provided by the Georgia Constitution, a protection of substantially broader scope than that provided by the Federal Constitution.
Under the Georgia Constitution, a defendant cannot be convicted and punished for separate crimes arising from the same criminal conduct. Ibid. It is plain that the Georgia court was concerned that separate punishments for both the kidnaping of Andrea with bodily harm and the forcible rape would violate this protection in a situation where rape was the only bodily harm involved. It had ruled that double jeopardy applied to similar facts in Allen v. State, 233 Ga. 200, 203, 210 S.E.2d 680, 682 (1974). When the Georgia court stated that "both" convictions could not stand, it therefore meant not that each was invalid, but that petitioner could be punished only for one. It is in this context that the court determined that petitioner had not been punished for forcible rape and, "[a]s a consequence of the foregoing, there is evidence of bodily injury, not a part of the crime of statutory rape, to support the crime of kidnapping with bodily injury." 241 Ga., at 52, 243 S. E. 2d, at 502.
[4] The trial court instructed the jury that it could convict petitioner of kidnaping with bodily injury only if it found that petitioner had committed aggravated sodomy upon Andrea's person. To make this finding, the jury was required to find beyond a reasonable doubt that petitioner in the course of kidnaping Andrea "performed a sexual act involving his sexual organ with the mouth of Andrea Furlong, forcibly and against her will." Unlike the charge on forcible rape, the jury was not given the option of convicting petitioner for this offense on the ground that Andrea was under the age of consent. Accordingly, the jury could have convicted petitioner on this count only if it found he had committed an act of force on Andrea's person.
Similarly, during the sentencing stage the jury was instructed that in order to impose death for the murder of Lori Ann, it had to find that petitioner was "engaged in the commission of another capital felony, towit: The kidnapping with bodily harm, aggravated sodomy, of Andrea Furlong."
[5] There is no apparent reason why aggravated sodomy should not satisfy the bodily-injury requirement. Both forcible rape and aggravated sodomy require the use of force as elements of the offense. The only distinction between the two crimes under Georgia law relates to the part of the body violated. Compare Ga. Code § 26-2001 with Ga. Code § 26-2002 (1975). As both crimes involve a violent interference with the person, each logically would supply the element of bodily injury required by the kidnaping offense.
[6] Counsel for petitioner moved for acquittal on the kidnaping count, arguing that aggravated sodomy did not constitute bodily injury for purposes of the kidnaping offense. The trial court was specific in its ground for rejecting this motion:
"I will give you a precise ruling so that you will have the advantage of your motion. I will hold specifically that the act of aggravated sodomy committed upon her person was such harm that aggravated the kidnapping and made it a higher crime. I hold that it does not require, the law does not require, a physical bruising injury or battery, but that the act of sodomy itself is as vile and as gross as anything can be as an act of harm against a ten year old child, and I don't have any problem with it." Record 990-991.
Nowhere in its opinion does the Georgia court state that this view of the law was incorrect.
[7] The Court's opinion, as I read it, does not preclude resentencing of petitioner for the murder and kidnaping-with-bodily-harm convictions, if the court below does determine the jury verdicts with respect to those counts to have been proper. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/111989/ | 484 U.S. 495 (1988)
ETSI PIPELINE PROJECT
v.
MISSOURI ET AL.
No. 86-939.
Supreme Court of United States.
Argued November 3, 1987
Decided February 23, 1988[*]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
*497 Jeffrey P. Minear argued the cause for petitioners in both cases. With him on the brief for petitioners in No. 86-941 were Solicitor General Fried, Acting Assistant Attorney General Flint, Deputy Solicitor General Wallace, Fred R. Disheroon, and Ralph W. Tarr. James A. Hourihan, Walter A. Smith, Jr., and Mary Anne Sullivan filed briefs for petitioner in No. 86-939.
Elizabeth M. Osenbaugh, Deputy Attorney General of Iowa, argued the cause for respondents in both cases. With her on the brief for respondents State of Missouri et al. were Thomas J. Miller, Attorney General of Iowa, Eliza Ovrom, Assistant Attorney General, William L. Webster, Attorney General of Missouri, Curtis F. Thompson, Assistant Attorney General, Robert M. Spire, Attorney General of Nebraska, and Le Roy W. Sievers, Assistant Attorney General. Stephen E. Roady, Ronald J. Wilson, and William E. Walters III filed a brief for respondents Kansas City Southern Railway Co. et al.[]
JUSTICE WHITE delivered the opinion of the Court.
We must decide whether in the circumstances of this case the Secretary of the Interior has exceeded the authority Congress delegated to him by the Flood Control Act of 1944.
I
The dispute centers on Lake Oahe, an enormous reservoir located on the Missouri River in South Dakota, with a capacity of more than 23 million acre-feet of water. In 1982, ETSI *498 Pipeline Project entered into a contract with the Secretary of the Interior to withdraw up to 20,000 acre-feet of water from Lake Oahe per year for 40 years.[1] South Dakota already had granted ETSI a state permit to use this water in a coal slurry pipeline that would transport coal from Wyoming to the southeastern United States. Soon after the contract was signed, the States of Missouri, Iowa, and Nebraska brought suit in District Court to enjoin performance of the contract, alleging that the manner in which the contract was approved violated several federal statutes. In particular, the plaintiffs contended that the Interior Secretary lacks statutory authority under the Flood Control Act of 1944 (Act), 58 Stat. 887, to execute a contract to provide water from Lake Oahe for industrial uses without obtaining the approval of the Secretary of the Army.[2]
The District Court ruled for the plaintiffs. Missouri v. Andrews, 586 F. Supp. 1268 (Neb. 1984). It concluded that the Oahe Dam was not a reclamation or power development that was undertaken by the Interior Secretary, pursuant to clear statutory authority. Instead, the dam was built by the Corps of Engineers, now part of the Department of the Army (formerly the Department of War, but renamed by Act of July 26, 1947, 61 Stat. 495), which has always maintained and operated the reservoir. No block of water in Lake Oahe has been specifically set aside for use by the Interior Department, and the Interior Secretary has not constructed any works at Lake Oahe. On these facts, the District Court held *499 that the Act does not empower the Interior Secretary to furnish water from Lake Oahe for industrial use.
The Court of Appeals affirmed, with one judge dissenting. Missouri v. Andrews, 787 F.2d 270 (CA8 1986). It upheld the District Court's conclusion that Lake Oahe is not a reclamation development undertaken by the Interior Secretary, primarily because the Army built the reservoir and controls its operation. Accordingly, the Interior Secretary cannot contract on his own to withdraw water from the reservoir for industrial use. Neither the language nor the legislative history of the Act was thought to support the claim that the Interior Secretary was ceded broad authority over water in this reservoir, even water that it claims has been designated as available for future irrigation purposes. Indeed, the language of the Act and its legislative history were found to be convincing enough on this point that the Court of Appeals refused to defer to the Interior Secretary's contrary interpretation.
The Court of Appeals denied a petition for rehearing en banc by an equally divided vote of the judges. We granted certiorari, 480 U.S. 905 (1987), and we now affirm.
II
A
The Missouri River Basin is a watershed that covers a vast area in the midwestern United States. The topography of this area, however, reveals two distinct regions that experience very different water problems. The upper part of the Basin, which includes large sections of Montana, Wyoming, North Dakota, and South Dakota, is mostly arid or semiarid; there, the Missouri River and its tributaries are important because they represent a major resource for developing the agricultural and industrial potential of the area. The lower part of the Basin, which includes territory in Nebraska, Kansas, Iowa, and Missouri, is more humid, and there the rivers are used chiefly for navigation, though the critical problem in *500 this region is to control flooding. See generally M. Ridgeway, The Missouri Basin's Pick-Sloan Plan 47-55 (1955). In the early 1940's, Congress focused its attention on the water problems of the Missouri River Basin, prompted especially by severe floods that had devastated the lower Basin in 1943 and 1944.
At the behest of Congress, the Army Corps of Engineers prepared a report that described a comprehensive plan to develop the entire Basin, known as the Pick Plan for its author, a colonel in the Corps. The Pick Plan proposed the construction of 12 multiple-purpose reservoirs and related works, including 5 reservoirs on the main stem of the Missouri River, at an approximate initial cost of $480 million, though it was estimated that to carry out the entire proposal might cost close to $1 billion. The Pick Plan stressed flood control as its primary objective, but noted that its comprehensive list of projects "would also provide for the most efficient utilization of the waters of the Missouri River Basin for all purposes, including irrigation, navigation, power, domestic and sanitary purposes, wildlife, and recreation," as well as other intangible benefits. H. R. Doc. No. 475, 78th Cong., 2d Sess., 29 (1944) (H. R. Doc.). The report estimated the gross storage capacity of the Oahe Reservoir at about 6 million acre-feet of water.
At almost the same time, the Interior Department's Bureau of Reclamation independently completed its own plan to develop the Basin, which it had begun earlier, known as the Sloan Plan after the Montana engineer who prepared much of its analysis. The Sloan Plan proposed a total of 90 reservoirs, many of them on the smaller tributary streams, and included 3 reservoirs on the main stem of the Missouri River, at a projected cost of $1.2 billion, with much of that figure to be repayable. The Sloan Plan was also a comprehensive proposal, though it emphasized use of the water for irrigating land, especially in the upper part of the Basin. It estimated that the Oahe Reservoir would hold 19,600,000 acre-feet of *501 water. The Sloan Plan also contained a section comparing its provisions to those in the Pick Plan and suggesting modifications to the Pick Plan "which appear necessary to satisfy water-use requirements throughout the Missouri River Basin." S. Doc. No. 191, 78th Cong., 2d Sess., 120 (1944) (S. Doc.). This section concluded that though "the capacity of individual reservoirs, as well as aggregate capacities, remain to be determined in greater detail," the "Army and Reclamation plans on storage needs for all purposes can be composed." Id., at 122-123.
The Pick and Sloan Plans differed with one another not only in their primary objectives, but also in several other important respects, such as the amount of expenditures and the number of projects. The engineering features of the two plans also were dissimilar. On the main stem of the Missouri River, the two plans called for different numbers of reservoirs of divergent sizes, and thus for inconsistent amounts of total water storage. Even where the two plans agreed on the need for a particular reservoir at a particular location, which they did at Oahe and at Fort Randall, they envisioned those projects very differently; as noted above, for example, the Sloan Plan proposed that Lake Oahe would hold more than three times as much water as called for in the Pick Plan, at an additional cost of more than $20 million.
Obviously Congress could not proceed with both plans at once. In order to arrive at a single set of projects for development of the Basin, a Committee composed of two representatives each from the Corps of Engineers and the Bureau of Reclamation was appointed to review the engineering features of the two plans. This Committee essentially combined the determinations made by the Corps about the projects that would be needed for flood control and navigation and the determinations made by the Bureau about the additional projects that would be needed for irrigation. After meeting for two days, the Committee produced an engineering report that recommended most of the specific *502 developments that had been set out in the Sloan Plan, but provided for six main-stem reservoirs on the Missouri River. The Oahe Reservoir was to be created by construction of a high dam and to have a gross storage capacity of 19 million acre-feet of water. The stated purposes of Lake Oahe were to allow "the irrigation of 750,000 acres of land in the James River Basin as well as to provide useful storage for flood control, navigation, the development of hydroelectric power, and other purposes." S. Doc. No. 247, 78th Cong., 2d Sess., 3 (1944). As had been proposed in the Sloan Plan, the irrigation of the James River Basin was to be made possible by construction of a system of long canals, including one canal approximately 125 miles long. See S. Doc., at 115-116. With a single set of projects before it at last, Congress enacted the Flood Control Act of 1944 less than two months later.
B
In the Act, Congress accomplished three distinct tasks. First, it authorized certain specific projects to be undertaken by approving the "general comprehensive plans set forth in [the Pick and Sloan Plans] as revised and coordinated by Senate Document 247." § 9(a), 58 Stat. 891. It directed that "the initial stages recommended are hereby authorized and shall be prosecuted by the War Department and the Department of the Interior as speedily as may be consistent with budgetary requirements." Ibid. Second, Congress appropriated funds to pay for the initial work done on those projects. Two separate allotments were authorized: $200 million "for the partial accomplishment of the works to be undertaken under said expanded plan by the Corps of Engineers," § 9(d), and another $200 million "for the partial accomplishment of the works to be undertaken under said plans by the Secretary of the Interior." § 9(e).
Third, Congress adopted an administrative framework within which these projects were to go forward. This task involved several areas of potential controversy. The Act *503 evoked federalism concerns because the States were anxious to keep control over the development of their lands and the use of valuable water resources. In response, Congress declared a policy of "recogniz[ing] the interests and rights of the States in determining the development of the watersheds within their borders and likewise their interests and rights in water utilization and control." § 1, as set forth in 33 U.S. C. § 701-1 (1952 ed.). The Act also implicated the tensions between the Upper Basin States and the Lower Basin States, whose interests in the use and control of the water were markedly different. Congress addressed this problem by providing that when the Department of War undertook additional works not authorized by the Act it would be required to consult and share information with the affected States and the Secretary of the Interior, depending on whether the works were located west of the 97th and 98th meridians. §§ 1(a) and (b). All projects proposed by the Interior Secretary that would involve construction of "works for irrigation" were made subject to a similar requirement, without regard to geographical location. § 1(c).
Finally, and most directly relevant to this case, the Act required Congress to deal with the administrative jurisdictions of several agencies of the Federal Government. Among the interested agencies were not only the Departments of War and Interior, but also the Department of Agriculture and the Federal Power Commission, both of whom joined the Interior Department in submitting comments on the Pick Plan, and both of whose interests were also touched on by the Act. H. R. Doc., at 1-3, 10-13; Act, §§ 2, 5, 11-15, 58 Stat. 889, 890, 903-907. The crucial provisions here, however, were the sections that set forth the specific authority allotted to War and Interior, the two key Departments affected by the Act. In relevant part, those five central sections of the Act state as follows:
(1) "The Chief of Engineers, under the supervision of the Secretary of War, is authorized to construct, maintain, and *504 operate public park and recreational facilities in reservoir areas under the control of the War Department, and to permit the construction, maintenance, and operation of such facilities. The Secretary of War is authorized to grant leases of lands, including structure or facilities thereon, in reservoir areas for such periods and upon such terms as he shall deem reasonable." § 4, 16 U.S. C. § 460d (1946 ed.).
(2) "Electric power and energy generated at reservoir projects under the control of the War Department and in the opinion of the Secretary of War not required in the operation of such projects shall be delivered to the Secretary of the Interior, who shall transmit and dispose of such power and energy." § 5, 16 U.S. C. § 825s (1946 ed.).
(3) "That the Secretary of War is authorized to make contracts with States, municipalities, private concerns, or individuals, at such prices and on such terms as he may deem reasonable, for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the War Department." § 6, 33 U.S. C. § 708 (1946 ed.).
(4) "Hereafter, it shall be the duty of the Secretary of War to prescribe regulations for the use of storage allocated for flood control or navigation at all reservoirs constructed wholly or in part with Federal funds provided on the basis of such purposes, and the operation of any such project shall be in accordance with such regulations." § 7. See 33 U.S. C. § 709 (1946 ed.).
(5) "Hereafter, whenever the Secretary of War determines, upon recommendation by the Secretary of the Interior that any dam or reservoir project operated under the direction of the Secretary of War may be utilized for irrigation purposes, the Secretary of the Interior is authorized to construct, operate, and maintain, under the provisions of [the Federal reclamation laws,] . . . such additional works in connection therewith as he may deem necessary for irrigation purposes. . . . Dams and reservoirs operated under the direction of the Secretary of War may be utilized hereafter for *505 irrigation purposes only in conformity with the provisions of this section." § 8. See 43 U.S. C. § 390 (1946 ed.).
III
A
In light of these specific provisions, as well as the general background to the Act, it is beyond question that the Interior Secretary does not possess the authority that is claimed in this case: to execute a contract to provide water from an Army reservoir for industrial uses without obtaining the approval of the Secretary of the Army. Nobody has disputed that Lake Oahe, one of the six main-stem reservoirs on the Missouri River, was constructed by, and has been operated and maintained by, the Army Secretary, and the District Court found this to be true as a matter of fact. 586 F. Supp., at 1273-1274. The Act says explicitly that such reservoirs are "under the control of" or "under the direction of" the Army Secretary. §§ 4-6, 8. Only two provisions of the Act provide for the Interior Secretary to exercise any authority is whatsoever at Army reservoirs, and in both instances the Act clearly states that the Interior Secretary's authority is subordinate to that of the Army Secretary, who does after all "control" those reservoirs. The Interior Secretary is authorized to "transmit and dispose of" electric power and energy generated at Army reservoirs, but only when that energy is "in the opinion of the Secretary of [the Army] not required in the operation of such projects." § 5. The Interior Secretary is also authorized to recommend to the Army Secretary that an Army reservoir "be utilized for irrigation purposes," and to "construct, operate, and maintain . . . such additional works in connection therewith as he may deem necessary for irrigation purposes." § 8. But this authority only comes into play if the Army Secretary "determines" that "any dam or reservoir project operated under [the Secretary's] direction" may be used for such purposes. Ibid. The language of the Act is plain in every respect, and the conclusion *506 is unavoidable that if the Interior Secretary wishes to remove water from an Army reservoir for any purpose, the approval of the Army Secretary must be secured.
The precise authority claimed by the Interior Secretary in this case is to enter into a contract, without the approval of the Army, to remove from Lake Oahe water that is claimed to be available for irrigation, and to allow that water to be devoted to industrial use. Nowhere does the Act provide any support for this claimed authority, and in fact it is directly inconsistent with §§ 6 and 8 of the Act, which show that only the Army Secretary has that independent authority in this instance. Section 6 gives the Army Secretary the authority "to make contracts with States, municipalities, private concerns, or individuals . . . for domestic and industrial uses for surplus water that may be available at any reservoir" under the Secretary's control, "Provided, That no contracts for such water shall adversely affect then existing lawful uses of such water." The language of the Act is plain enough: "surplus water" is all water that can be made available from the reservoir without adversely affecting other lawful uses of the water. As long as ample water remains in Lake Oahe for the purposes embodied in the Act, and absent any allocation for irrigation pursuant to § 8, the Army Secretary has exclusive authority to contract to remove water for industrial uses. In this light, two of the District Court's factual findings take on special significance. First, the District Court found no evidence "which would show that specific storage space in Oahe Reservoir was assigned to irrigation," and "there is no evidence that separate allocations were made at Oahe." 586 F. Supp., at 1277. Second, "there is no evidence that any Oahe water ever has been used for irrigation or will be in the near future." Id., at 1274. In light of these facts, and the plain provisions of § 8, the Interior Secretary had no authority to dispose of Lake Oahe water. The Army Secretary might have but has not done so.[3]
*507 Section 8 details the procedures for utilizing water from Lake Oahe for irrigation, and only when these procedures are followed does the Interior Secretary have any authority to deal with Lake Oahe water. The Interior Secretary may recommend to the Army Secretary that an Army reservoir be utilized at least in part for irrigation purposes. If the Army Secretary determines that the reservoir may be used for this purpose, then the Interior Secretary "is authorized to construct, operate, and maintain, under the provisions of [the Federal reclamation laws,] . . . such additional works in connection therewith as he may deem necessary for irrigation purposes." Congress must grant "specific authorization" for the construction of any such additional works. Water from Army reservoirs "may be utilized hereafter for irrigation purposes only in conformity with the provisions of this section." *508 § 8. It may be recalled at this point that the Sloan Plan, which had envisioned the use of a substantial amount of water from Lake Oahe for irrigation of the James River Basin, was consistent with this approach; the Sloan Plan provided for the construction of massive additional works for irrigation comprising a system of long canals. S. Doc., at 115-116. By this means, Interior would be permitted to withdraw water from Army reservoirs through these additional works for use in irrigation, which would then bring that water under its control, and under the federal reclamation laws the Interior Secretary may reallocate irrigation water from irrigation projects to other purposes when he sees fit, as long as "it will not impair the efficiency of the project for irrigation purposes." 43 U.S. C. § 485h(c) (1946 ed.).[4] In this case, the District Court found that the Interior Department did begin initial construction on irrigation works at Lake Oahe, but Congress later authorized the Department to cancel construction, which it did. 586 F. Supp., at 1274. As already stated, the District Court found that no water from Lake Oahe has ever been used for irrigation, ibid., and we are unaware of any such plans in the near future. Under these circumstances, the Interior Secretary is not "in conformity with the provisions of" § 8, and therefore has no authority under the Act to withdraw water from Lake Oahe, whether for irrigation or otherwise. It is likely that *509 Lake Oahe contains surplus water, but that water is subject to disposal by the Army, not by Interior.[5]
B
The petitioners seek to avert this conclusion by pointing to §§ 9(a) and (c) of the Act. Section 9(a) approves the "general comprehensive plans" set out in the Pick Plan and the Sloan Plan, as revised and coordinated by the final Senate Document, and authorizes the initial stages of those projects to be "prosecuted by the War Department and the Department of the Interior as speedily as may be consistent with budgetary requirements." The petitioners contend that this statement represents congressional approval of various aspects of the functional division of authority between the Army and Interior Departments that had been suggested in those plans; in particular, the petitioners suggest that this provision allows the Interior Secretary unilaterally to remove water from Army reservoirs for irrigation purposes and for other related uses.
This contention is both wide of the mark and grounded on a misuse of the legislative history. To begin with, it would be surprising if Congress had followed up the five sections of the Act in which it explicitly established the jurisdiction of Army and Interior over specific uses of Army reservoirs, the last section of which established jurisdiction over the use of those reservoirs for irrigation, with a provision in which it indirectly *510 made further refinements in how water could be used for irrigation, and yet did not offer the slightest indication that it was doing so. In any event, there is no reason to think that § 9(a) incorporates into the Act any additional indications about the proper division of authority between Army and Interior. On the contrary, its location in § 9 of the Act indicates that this provision was not intended as anything more than authorization for the two Departments to begin working on the projects listed in the final Senate Document. The other parts of § 9 merely harmonize the Act with existing laws and set out separate appropriations for Army and Interior to begin "the partial accomplishment of the works to be undertaken under said expanded plans," §§ 9(d) and (e), which indicates that this entire section of the Act encompasses only the necessary ministerial details to allow action to begin on the specified projects.
If there were any room for believing that § 9(a) implicitly modified the jurisdictional provisions that were plainly set forth in the preceding sections of the Act, or for doubting that it instead approved a different division of authority from that suggested in the Pick Plan and the Sloan Plan, one item in the legislative history puts this supposition entirely to rest. The original House version of the Act included language almost identical to the suggestions made in the two plans, see infra, at 511-512, which obliged the Interior Secretary "to prescribe regulations" for the use of water stored in Army reservoirs for irrigation. Hearings on H. R. 4485 before a Subcommittee of the Senate Committee on Commerce, 78th Cong., 2d Sess., 2 (1944). Secretary Ickes testified at the Senate Hearings on the proposed bill that this approach did not relate very well to the reclamation laws because it "disregards the problem of allocating costs for multiple-purpose facilities serving other uses in addition to irrigation." Id., at 458. He proposed replacing that approach instead with the language currently contained in § 8 of the Act, which was eventually enacted by Congress. Id., at 313. As noted *511 above, § 8 now provides that Army controls the main-stem reservoir projects and Interior controls all such additional irrigation works as it may "construct, operate, and maintain" at the site of those main-stem projects. One need not draw all the inferences that may be justified by this piece of legislative history in order to make it decisive here, for at the very least it directly refutes the notion that the other sections of the Act were intended to effect no changes in the division of authority between Army and Interior that had been suggested in the Pick Plan and the Sloan Plan.
Moreover, even if § 9(a) had been intended to adopt every aspect of the functional division of authority between the two Departments that had been proposed in the Pick and Sloan Plans, this section would not provide Interior with the authority to withdraw water unilaterally from Lake Oahe for irrigation and other uses in flat contradiction of § 8 of the Act. Contrary to the petitioners' argument in this case, nothing in those two plans indicates that control over individual reservoirs was to be divided among various departments of the Federal Government. The Pick Plan, for example, emphasized that although the Department of War was willing to coordinate its activities with Interior in order to serve "the broad and important interests and responsibilities" of both agencies, "[i]t is essential, however, that the main-stem projects be built, operated, and maintained by the Corps of Engineers." H. R. Doc., at 3-4. The War Department noted that although it would retain control of those reservoir projects, it accepted that "utilization of storage reserved for irrigation" in those reservoirs "should be in accordance with [Interior] regulations." Id., at 4.[6] But this accession is not *512 at all the same as dividing control between the two agencies over the reservoir projects or the water stored in those projects, which was not contemplated in the Pick Plan. The Sloan Plan basically agreed with the approach set out in the Pick Plan, recognizing that the agency "with primary interest in the dominant function of any feature proposed in the plan should construct and operate that feature, giving full recognition, in the design, construction, and operation, to the needs of other agencies with minor interests." S. Doc., at 11. The Sloan Plan recognized that the "dominant function" of Lake Oahe and the other main-stem reservoir projects would be flood control and navigation, and therefore these projects would come under the jurisdiction of the Army and its Corps of Engineers. Id., at 4.[7] Even if Congress had intended to write the jurisdictional structure suggested in the Pick Plan and the Sloan Plan directly into law, therefore, it would not have extended to Interior the unilateral authority that has been claimed in this case.
The petitioners also point to § 9(c) of the Act as lending support to its argument. That section states that "the reclamation and power developments to be undertaken by the *513 Secretary of the Interior under said plans shall be governed by the Federal Reclamation Laws." As noted already, under the reclamation laws the Interior Secretary is authorized to reallocate water under his control for industrial use as he sees fit. See n. 4, supra. By its terms, however, § 9(c) applies only to "the reclamation and power developments" undertaken by the Interior Secretary under the Act: that is, to the "transmission lines and related facilities" that § 5 authorizes the Interior Secretary "to construct or acquire" for transmitting and disposing of electric power, and to the "irrigation works" that § 8 authorizes the Interior Secretary "to construct, operate, and maintain" under the reclamation laws. This provision merely stipulates that the reclamation laws, which typically apply to other Interior projects, see 43 U.S. C. § 371 et seq. (1946 ed.), also apply to all the projects that Interior may undertake under the Flood Control Act. But as the District Court found, and as is readily apparent, the reservoir project engineered by the Army at Oahe is neither a "power development" nor a "reclamation development" that has been undertaken by the Interior Secretary. 586 F. Supp., at 1273-1278.[8] On the facts of this case, § 9(c) *514 clearly does not extend any authority to Interior to withdraw water from Lake Oahe by other means than those stated in the Act.[9]
Not only do the language, structure, and legislative history of the Act fail to support the petitioners in this case, but the substance of their position is also difficult to fathom. The *515 petitioners claim that the administrative structure established in the Act divides authority over Lake Oahe between Army and Interior in a novel fashion that is considerably different from what appears on the face of the Act. One possibility, which the petitioners disavow, is that Interior has the ultimate authority to use water from the reservoir for irrigation purposes and Army has the ultimate authority to use water from the reservoir for flood control and navigational purposes. This approach obviously would founder, and could give rise to endless squabbles, unless the water in the reservoir has been allocated between these uses, yet the District Court explicitly found "no evidence that separate allocations were made at Oahe," and "one wonders how the Interior Department is to control what cannot be identified." 586 F. Supp., at 1277. The position actually urged by the petitioners is even less straightforward than the foregoing: they argue that the Act requires Interior to consult with Army before withdrawing any water for industrial use from Lake Oahe, and does not allow Interior to withdraw water if Army objects, and yet the Act does not require Interior to obtain the approval of Army in order to withdraw water for industrial use. Tr. of Oral Arg. 14-15. The Army's authority over Lake Oahe is thus to be understood as most closely analogous to an executive veto over legislation: Interior must offer its proposal to the Army, and cannot proceed on its own if the Army objects, but can proceed even without Army approval as long as Army does not object. This would be, to say the least, a most unusual approach to administrative jurisdiction, one that gains no support from the text of the Act, and one that we are unwilling to read into the Act as an implicit modification of its otherwise sensible and intelligible provisions.
C
The petitioners finally contend that this Court should defer to the Interior Secretary's interpretation of the authority granted to him under the Act, which the Army apparently *516 has acquiesced in at least for the purposes of this litigation. The petitioners also point to what they describe as a tradition of cooperation between these two Departments in the Missouri River Basin, including a period between 1975 and 1978 when they entered into a joint agreement that allowed the Interior Secretary, "both on his own behalf and as agent for the Secretary of the Army, [to] contract for the marketing of water for industrial uses" from the six main-stem reservoirs.[10] The District Court disagreed with this historical account of the relations between Interior and the Army on this subject, and concluded that when "the chief attorneys for the two departments affected by a statute disagree, neither enjoys any deference." 586 F. Supp., at 1280. The Court of Appeals discussed this issue very briefly, but the gist of its holding was simply that Interior's interpretation did not even constitute a reasonable reading of the Act. 787 F.2d, at 287.[11]
It is unnecessary to consider the petitioners' contention that deference to the Interior Secretary is appropriate in this case and their related arguments about the history of relations between Army and Interior under the Act, for even if Interior's interpretation of the Act would be entitled to any *517 deference in these circumstances, the Executive Branch is not permitted to administer the Act in a manner that is inconsistent with the administrative structure that Congress enacted into law. As this Court has stated in a recent opinion on the proper limits of deference to an agency's construction of the statute which it administers: "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). The Flood Control Act speaks directly to the dispute in this case, and congressional intent as expressed in the Act indicates clearly that the Interior Secretary may not enter into a contract to withdraw water from an Army reservoir for industrial use without the approval of the Department of the Army. That is "the end of the matter." Id., at 842.
The decision of the Court of Appeals is therefore affirmed.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of this case.
NOTES
[*] Together with No. 86-941, Hodel, Secretary of the Interior, et al. v. Missouri et al., also on certiorari to the same court.
[] Roger A. Tellinghuisen, Attorney General of South Dakota, Charles J. Meyers, Joseph B. Meyer, Attorney General of Wyoming, Michael T. Greely, Attorney General of Montana, and Nicholas J. Spaeth, Attorney General of North Dakota, filed a brief for the State of Montana et al. as amici curiae urging reversal.
[1] Although the contract states that the Interior Secretary entered into it "after consultation with the Secretary of the Army," App. 226, no party has disputed the fact that the Secretary of the Army did not expressly approve or sign the contract, which was signed on behalf of the United States by a regional director for the Interior Department's Bureau of Reclamation. Id., at 234.
[2] This case also has involved several procedural issues, as well as ancillary issues about the validity of the contract. Those other issues are not before this Court. Neither is there any issue presented here as to the relative interests of the United States and South Dakota in Lake Oahe water.
[3] At one time, the Army took the view that the only "surplus water" in the main-stem reservoirs was the water that neither was held in the reservoirs nor was run through the generators to produce hydroelectric power in other words, that no "surplus water" existed in the reservoirs themselves apparently because it assumed that all water contained in the reservoirs "is otherwise being used" for specified purposes. Army Memorandum, Marketing of Missouri River Water for Coal Gasification, AR900407 (Dec. 16, 1974), App. 133. More recently, however, the Army has abandoned this assumption and recognized that "this interpretation of what constitutes surplus water is unnecessarily narrow." Memorandum from Susan Crawford, General Counsel of Army, to Assistant Secretary of Army, Proposed Contracts for Municipal and Industrial Water Withdrawals from Main Stem Missouri Reservoirs 2 (March 13, 1986), App. to Brief for Respondent States 14a. Its current position is that § 6 of the Act gives the Army Secretary the same authority over "water he determines is not needed to fulfill a project purpose in Army reservoirs" that the Interior Department possesses over water contained in its own reservoir projects, namely, the authority to withdraw water for industrial use if to do so would not impair the efficiency of the project for its other stated purposes. Memorandum of Crawford 4, App. to Brief for Respondent 16a. See also Army Circular EC XXXX-X-XXX, pp. 3-4 (Oct. 30, 1987). This view is consistent with the language of the Act, for if the term "surplus water" could never include any of the water stored in the reservoirs themselves, then the caveat Congress enacted in § 6 that this grant of authority shall not "adversely affect then existing lawful uses of such water" would have been irrelevant because this grant of authority could never adversely affect any existing or projected uses of such water.
[4] See also 43 U.S. C. § 521 (1946 ed.). Under that section the Interior Secretary "in connection with the operations under the reclamation law is hereby authorized to enter into contract to supply water from any project irrigation system for other purposes than irrigation . . .: Provided . . . , That no water shall be furnished for the uses aforesaid if the delivery of such water shall be detrimental to the water service for such irrigation project." The Interior Secretary's determination that the sale of water does not impair the irrigation purpose of a project under his control has been accorded broad deference. See, e. g., Environmental Defense Fund v. Morton, 420 F. Supp. 1037 (Mont. 1976), aff'd in part and rev'd in part, Environmental Defense Fund v. Andrus, 596 F.2d 848 (CA9 1979).
[5] Nothing in today's decision, it should be emphasized, prevents the water in Lake Oahe from being put to beneficial use for industrial or other purposes. Of the 23 million acre-feet of water stored in this reservoir, by far the most part was projected for potential use in irrigation. As the District Court found, however, none of this water has been allotted for irrigation, no works have been constructed to make use of this water for irrigation, and none of this water has ever been used for irrigation or is likely to be used for that purpose in the foreseeable future. 586 F. Supp., at 1274, 1277. On these facts, there is considerable leeway for the Army Secretary to designate some of this water for industrial use without "adversely affect[ing]" the "existing lawful uses of such water." Act, § 6. Certainly if the Executive Branch as a whole wishes to put the water in this reservoir to beneficial use, it may do so simply by complying with the terms of the Act.
[6] In its comments on the Pick Plan, Interior endorsed this approach, stating that the Army "Corps of Engineers should construct, operate, and maintain any feature in which flood control and navigation are dominant considerations, and the [Interior's] Bureau of Reclamation should construct, operate, and maintain any feature in which the functions of irrigation, restoration of surface and ground water levels, and power are dominant," though the two Departments would "advise and consult with" one another to the extent that these interests overlapped in features controlled by one or the other Department. H. R. Doc., at 7.
[7] The self-styled "joint engineering report" contained in the final Senate Document that effected a reconciliation of the Pick and Sloan Plans did not shed any further light on how the administrative jurisdictions of the two Departments were to be circumscribed, but merely observed that the engineering features of the two plans were brought into agreement by applying the principles that the Army Corps of Engineers "should have the responsibility for determining main stem reservoir capacities and capacities of tributary reservoirs for flood control and navigation," and the Bureau of Reclamation "should have the responsibility for determining the reservoir capacities on the main stem and tributaries of the Missouri River for irrigation." S. Doc. No. 247, 78th Cong., 2d Sess., 1 (1944). This passage seems to be nothing more than an explanation of how the final number of projects and the amount of their storage capacities were reached by the representatives of the two Departments.
[8] The petitioners contend that the term "reclamation . . . developmen[t]" in § 9(c) can encompass either the entire reservoir project at Oahe or the activities that Interior might undertake to dispose of water stored at Oahe for irrigation. Neither suggestion is tenable. The construction of the main-stem dam and reservoir project at Oahe was undertaken and controlled by the Army, and the District Court found this to be true as a matter of fact; thus Oahe cannot be a "reclamation . . . developmen[t] to be undertaken by the Secretary of the Interior." And the suggestion that the term "reclamation . . . developmen[t]" may refer to activities rather than projects is wrong for several reasons. First, the whole term is "reclamation and power developments to be undertaken by the Secretary of the Interior." These developments, which were set out more specifically in the Pick and Sloan Plans, plainly refer to the only developments that the Act identifies Interior as undertaking: the "power developments" ("transmission lines and related facilities") identified in § 5, and the "reclamation developments" ("irrigation works") identified in § 8. Second, the term "reclamation . . . developmen[t]" used in § 9(c) of the Act is linked by petitioners to § 9(c) of the Reclamation Project Act of 1939, 53 Stat. 1193, as set forth in 43 U.S. C. § 485h(c) (1946 ed.), which is said to give Interior the authority to contract to dispose of this water, yet that statutory section itself limits Interior's authority by stating that such authority may not be used to "impair the efficiency of the project for irrigation purposes." Ibid. (emphasis added). Thus this same account relates the terms "development" and "project." Third, the integral nature of the relation between these two terms is shown by further consideration of the Reclamation Project Act § 2(i), 43 U.S. C. § 485a(i) (1946 ed.), which defines the term "development unit" as "a part of a project which, for purposes of orderly engineering or reclamation development, is designated as a development unit by order of the Secretary." Thus a "reclamation development" is a designated part of a "reclamation project" under the Reclamation Project Act, for administrative purposes, and the two terms are used almost synonomously in that Act. See § 485f(b).
[9] Petitioners suggest that their reading of the Act is supported by Congress' enactment of § 212 of the Reclamation Reform Act of 1982, 43 U.S. C. § 390ll. That provision, however, works no change in any of the substantive provisions of the Flood Control Act, and specifically does not purport to modify § 8 of the Act, which states the manner in which water may be withdrawn from Lake Oahe for use in irrigation. Section 212(a) merely was intended "to eliminate the shadow of applicability of the reclamation law to Corps of Engineers projects in any case in which the intent of Congress concerning such applicability is not clearly and explicitly set forth in statutory language," S. Rep. No. 97-373, p. 16 (1982), which it was not in § 8 of the Act. Section 212(b) simply ensures that the Interior Secretary's "authority to contract with water user entities for the irrigation water deliveries from Corps of Engineers projects, and to collect appropriate charges for those deliveries, continues in effect." Ibid. It says nothing about when and how the Interior Secretary possesses and exercises the authority to enter into such contracts, which is prescribed in § 8 of the Act. Even more to the point, § 212 does not indicate in any way that the Interior Secretary has the authority to enter into a contract to withdraw water from an Army reservoir for industrial use, which is the precise authority asserted in this case.
[10] This "Memorandum of Understanding" declared that the Army Secretary "shall retain all operational and managerial control over said reservoirs." Memorandum of Understanding Between Secretary of Interior and Secretary of Army, AR900072 (Feb. 24, 1975), App. 136. Over the four years it was in effect, no contracts were executed under it, and the agreement was allowed to expire in 1978. It also appears, by all accounts, that the contract at issue in this case is the only instance of the Interior Secretary exercising unilateral authority to withdraw water for industrial uses from a reservoir project controlled by the Army.
[11] Both the District Court and the Court of Appeals mentioned various reasons why the Interior Secretary's interpretation of the Act might not be entitled to deference even if it were a reasonable interpretation. But since in the end the District Court, like the Court of Appeals, concluded that the agency's decision was not "reasonable," 586 F. Supp., at 1280, its additional comments, like those of the Court of Appeals, were pure dictum, and there is no reason to address them here. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/110371/ | 449 U.S. 341 (1981)
WATKINS
v.
SOWDERS, WARDEN.
No. 79-5949.
Supreme Court of United States.
Argued November 10, 1980.
Decided January 13, 1981.[*]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
*342 Frank W. Heft, Jr., argued the cause for petitioners in both cases. With him on the briefs was Daniel T. Goyette.
Victor Fox, Assistant Attorney General of Kentucky, argued the cause for respondent in both cases. With him on the brief were Steven L. Beshear, Attorney General, and Joseph R. Johnson and Penny R. Warren, Assistant Attorneys General.
JUSTICE STEWART delivered the opinion of the Court.
These cases, consolidated for argument and decision in the Court of Appeals and in this Court, present the question whether a state criminal trial court is constitutionally compelled to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness' identification of him was arrived at improperly.
I
A
John Watkins, the petitioner in No. 79-5949, was convicted in a Kentucky court of attempting to rob a Louisville liquor store. On the night of January 11, 1975, four men entered the store, one of whom asked for a pack of cigarettes. Walter Smith, an employee of the store, turned around to get the cigarettes, and one of the men said "[t]his is a hold-up." Donald Goeing, a part owner of the store, had been stocking a soft-drink cooler, and when he heard those words, he turned towards the robbers. The man who had spoken thereupon fired two shots at him, one striking him in his arm, the other in the region of his heart. The four men then fled.
That night Smith and Goeing described the gunman to the police. Two days later, the police in the presence of Smith conducted a lineup consisting of three men, one of whom was *343 Watkins. Smith identified Watkins as the gunman. That same day, the police took Watkins to Goeing's hospital bed, and Goeing identified Watkins as the man who had shot him. Watkins was then charged with first-degree robbery and first-degree assault.
At the subsequent trial of Watkins, the prosecution called Smith and Goeing as witnesses. They both identified Watkins as Goeing's assailant but were not asked by the prosecution about the lineup or the showup. Watkins' counsel, however, cross-examined both men at some length about both the lineup and showup. The prosecution then called a police officer. He testified that he had taken Watkins to be identified at the hospital because "at that time there was some question as to whether or not Mr. Goeing was going to survive the incident." Watkins' counsel cross-examined the officer about both the showup and the lineup and through him introduced pictures of the lineup. For the defense, Watkins' counsel called two witnesses who said that they had been in a pool hall with Watkins at the time of the robbery and another witness who said he had been in the liquor store at the time of the robbery and had not seen Watkins. Finally, Watkins himself testified to his innocence.
On appeal, as he had at trial, counsel for Watkins argued that the trial court had a constitutional obligation to conduct a hearing outside the presence of the jury to determine whether the identification evidence was admissible. The Supreme Court of Kentucky rejected that argument. Relying on its decision in Ray v. Commonwealth, 550 S.W.2d 482, 483 (1977), the court said "`[a]lthough we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant's conviction.'" Watkins v. Commonwealth, 565 S.W.2d 630, 631 (1978). The court found that the identification procedures "fail[ed] to *344 raise any impermissible suggestiveness" and that Watkins "was in no way prejudiced." Ibid.
Watkins then unsuccessfully sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That court held that, "although pretrial suppression hearings are preferable, the failure to hold them does not require the reversal of a conviction."[1] The court also found that admission of neither the lineup nor the showup evidence at the state trial had violated constitutional standards.
The Court of Appeals for the Sixth Circuit affirmed the District Court's judgment and, like the District Court, ruled that a hearing on the admissibility of identification evidence need not be held outside the presence of the jury. Turning to the evidence itself, the court cited Stovall v. Denno, 388 U.S. 293, as authority for holding that "[g]iven the seriousness of the wounds to Donald Goeing, a showup was necessary in this case." Summitt v. Bordenkircher, 608 F.2d 247, 252. The federal appellate court also held that the lineup evidence had been constitutionally admissible at the state trial.
B
James Summitt, the petitioner in No. 79-5951, was convicted in a Kentucky court of rape. Late on the night of July 20, 1974, the prosecutrix was forced into a car occupied by two men, driven to an isolated location, raped by one of the men, and then returned to her own car. The next day she reported the crime to the police, described the rapist, and looked through 12 volumes of photographs from police files, without identifying the man who had raped her. Two days later she was taken to another police station, where she examined more pictures. A police officer testified at the subsequent trial of Summitt that "after a short time she pointed to the defendant's picture and said: `This is the man that raped me. *345 There's no doubt about it, this is Jimbo, the man that raped me.'" In addition to the officer, the prosecutrix and her stepfather as witnesses for the prosecution described the prosecutrix's examination of the police photographs, and the prosecutrix testified that Summitt was the man who had raped her. There was extensive cross-examination.
The Supreme Court of Kentucky found "no error in the trial court's refusal to conduct a suppression hearing and no semblance of impermissible suggestiveness in the identification procedure." Summitt v. Commonwealth, 550 S.W.2d 548, 550 (1977). Summitt then sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky, but that court found no constitutional error. The Court of Appeals, as in the consolidated Watkins case, affirmed the judgment of the District Court, 608 F.2d 247.
We granted certiorari to consider the constitutional claim asserted by both petitioners throughout their state and federal court proceedings. Sub nom. Watkins v. Bordenkircher and Summitt v. Bordenkircher, 445 U.S. 926.
II
The issue before us is not, of course, whether a trial court acts prudently in holding a hearing out of the presence of the jury to determine the admissibility of identification evidence. The prudence of such a hearing has been emphasized by many decisions in the Courts of Appeals, most of which have in various ways admonished trial courts to use that procedure.[2] The *346 issue here, rather, is whether such a hearing is required by the Due Process Clause of the Fourteenth Amendment.
In urging an affirmative answer, the petitioners first cite cases holding that a defendant has a right to the presence of his counsel at a postindictment lineup, e. g., United States v. Wade, 388 U.S. 218, and that an identification procedure, in the absence of a lineup, may be so defective as to deprive a defendant of due process of law, e. g., Stovall v. Denno, 388 U.S. 293. The petitioners then analogize their cases to Jackson v. Denno, 378 U.S. 368, in which this Court enunciated a defendant's right "to have a fair hearing and a reliable determination on the issue of voluntariness," id., at 377, and in which the Court declared unconstitutional a New York procedure which gave the jury what was in practice unreviewable discretion to decide whether a confession was or was not voluntary.
The petitioners contend that Jackson v. Denno established a per se due process right to a hearing outside the presence of the jury whenever a question of the voluntariness of a confession is raised. If such a hearing is required where the voluntariness of a confession is at issue, it follows, the petitioners argue, that a similar hearing must also be required where the propriety of identification procedures has been questioned.
Even if it be assumed that Jackson v. Denno did establish the per se rule asserted,[3] the petitioners' argument must fail, *347 because Jackson v. Denno is not analogous to the cases now before us. The Court in Jackson did reject the usual presumption that a jury can be relied upon to determine issues according to the trial judge's instructions, but the Court did so because of the peculiar problems the issue of the voluntariness of a confession presents. The Court pointed out that, while an involuntary confession is inadmissible in part because such a confession is likely to be unreliable, it is also inadmissible even if it is true, because of the "`strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.'" Id., at 385, quoting Blackburn v. Alabama, 361 U.S. 199, 206-207. The Court concluded in Jackson that a jury "may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession. . . . Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the [jury's] implicit findings become suspect." Id., at 382.
Where identification evidence is at issue, however, no such special considerations justify a departure from the presumption that juries will follow instructions. It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U.S. 98, 113-114; United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to asses the reliability of that evidence. Thus the *348 Court's opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal's statement that,
"`[W]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heartthe `integrity'of the adversary process.
"`Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identificationincluding reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.'" 432 U.S., at 114, n. 14, quoting Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted).
The petitioners argue, however, that cross-examination is inadequate in cases such as these. They assert that the presence of the jury deterred their lawyers from cross-examining the witnesses vigorously and fully as to the possible improprieties of the pretrial identifications in these cases. The petitioners point to no specific instances in the trial when their counsel were thus deterred, and the record reveals that the cross-examination on the identity issues was, if not always effective, both active and extended. Nonetheless, the petitioners rely on a passage from United States v. Wade, supra, which referred to
"the predicament in which Wade's counsel found himself realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification." 388 U.S., at 240-241.
The petitioners, however, attribute undue significance to this passage. The "predicament" described in Wade was no *349 more than part of the Court's demonstration that, if identification stemming from an improperly conducted lineup was to be excluded, a courtroom identification based on such a lineup logically had to be excluded as well.
A "predicament," if one chooses to call it that, is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client. Yet, under our adversary system of justice, cross-examination has always been considered a most effective way to ascertain truth.[4] We decline in these cases to hold that the Due Process Clause of the Fourteenth Amendment inevitably requires the abandonment of the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence.
A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the Constitution requires a per se rule compelling such a procedure in every case.
Accordingly, the judgments are
Affirmed.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
The Court holds that the Due Process Clause of the Fourteenth Amendment did not require that the trial judge in each of the instant cases hold a "fair hearing," Jackson v. Denno, 378 U.S. 368, 377 (1964), to decide the admissibility of eyewitness identification evidence, and that a remand is not now required to accord such a hearing. While freely conceding that a "judicial determination outside the presence of the *350 jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances . . . constitutionally necessary," ante, at 349, the Court holds that the Constitution does not require "a per se rule compelling such a procedure in every case," ibid. I dissent. In my view, the Due Process Clause mandates such a hearing whenever a defendant, as both petitioners did at their respective trials below, has proffered some evidence that pretrial police procedures directed at identification were impermissibly suggestive. The flaw in the Court's reasoning lies in its statement that identification evidence does not implicate the "special considerations" on which Jackson v. Denno relied to "justify a departure from the presumption that juries will follow instructions." Ante, at 347. Surely jury instructions can ordinarily no more cure the erroneous admission of powerful identification evidence than they can cure the erroneous admission of a confession. Accordingly, the separate judicial determination of admissibility required by Jackson for confessions is equally applicable for eyewitness identification evidence. Because the record before us is inadequate to conclude that in each case the identification evidence was properly admitted, see Jackson v. Denno, supra, at 376-377, I would remand these cases for further proceedings.
At least since United States v. Wade, 388 U.S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence.[1] Two particular attributes of such evidence have significance for the instant cases. First, eyewitness identification evidence is notoriously unreliable:
"The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances *351 of mistaken identification. Mr. Justice Frankfurter once said: `What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recentnot due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927)." Id., at 228 (footnote omitted).
Manson v. Brathwaite, 432 U.S. 98, 111-112 (1977), emphasized this troublesome characteristic of such evidence:
"The driving force behind United States v. Wade, 388 U.S. 218 (1967), Gilbert v. California, 388 U.S. 263 (1967) (right to counsel at a post-indictment lineup), and Stovall, all decided on the same day, was the Court's concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police."
Accordingly, to guard against the "dangers inherent in eyewitness identification," United States v. Wade, supra, at 235, the Court has required the presence of counsel at postindictment lineups, 388 U.S., at 236-237,[2] and has held inadmissible identification evidence tainted by suggestive confrontation procedures and lacking adequate indicia of reliability, *352 Manson v. Brathwaite, supra, at 114. "Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability." 432 U.S., at 112. An important thrust of our eyewitness identification evidence cases from Wade to Manson, therefore, has been to prevent impairment of the jury's decisionmaking process by the introduction of unreliable identification evidence.
Second, despite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries. Juries seem most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the defendant commit the crime.[3]
"[E]yewitness testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all. All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says `That's the one!'"[4]
The powerful impact that much eyewitness identification evidence has on juries, regardless of its reliability,[5] virtually *353 mandates that, when such evidence is inadmissible, the jury should know nothing about the evidence. See Manson v. Brathwaite, supra, at 112. For certainly the resulting prejudice to the defendant cannot be erased by jury instructions. See generally E. Loftus, Eyewitness Testimony 189-190 (1979); P. Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases 149-150 (1976). The Court's contrary conclusion cavalierly dismisses the inherent unreliability of identification evidence and its effect on juriestwo attributes of confession evidence that led the Court to mandate a "fair hearing" safeguard in Jackson v. Denno.
Any purported distinction between the instant cases and Jackson is plainly specious. In Jackson, this Court invalidated a New York State procedure whereby the jury was instructed first to determine the voluntariness of a defendant's confession[6] and then to disregard the confession if it concluded that the confession was involuntary. Jackson struck down this practice and required first that the voluntariness *354 of a confession be determined by the judge before its admission in evidence, and second that the jury not be allowed to consider an inadmissible confession. Jackson refused to rely on the curative effect of jury instructions where the trial judge had not applied "`the exclusionary rules before permitting evidence to be submitted to the jury.'" 378 U.S., at 382, n. 10, quoting Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317, 327 (1954).[7]
For purposes of the instant cases, three factors central to our decision in Jackson are apposite. First, Jackson stated, as the Court today notes, ante, at 347, "that the Fourteenth Amendment forbids the use of involuntary confession . . . because of the probable unreliability of confessions that are obtained in a manner deemed coercive." 378 U.S., at 385-386. Second, Jackson stated, as the Court today further notes, ante, at 347, that involuntary confessions are inadmissible "because of the `strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.'" 378 U.S., at 386.[8] Third, because of the sensitive nature of confession *355 evidence, Jackson found that instructions were not adequate to assure that the jury would ignore involuntary confession evidence:
"Under the New York procedure, the fact of a defendant's confession is solidly implanted in the jury's mind, for it has not only heard the confession, but it has also been instructed to consider and judge its voluntariness and is in position to assess whether it is true or false.[9] If it finds the confession involuntary, does the juryindeed, can itthen disregard the confession in accordance with its instructions? If there are lingering doubts about the sufficiency of the other evidence, does the jury unconsciously lay them to rest by resort to the confession? Will uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonable doubt actually result in acquittal when the jury knows the defendant has given a truthful confession." Id., at 388 (footnote omitted).
Similar considerations plainly require a hearing in the case of identification evidence. First, there can be little doubt that identification evidence is as potentially unreliable as confession evidence. See supra, at 350-352. Second, suggestive confrontation procedures which, in the totality of the circumstances, create "`a very substantial likelihood of irreparable misidentification,'" Manson v. Brathwaite, 432 U. S., at 116, quoting Simmons v. United States, 390 U.S. 377, 384 (1968), are as impermissible a police practice as the securing of a custodial confession determined, in the totality of the circumstances, to be involuntary, see United States v. Washington, 431 U.S. 181, 188 (1977); cf. North Carolina v. Butler, *356 441 U.S. 369, 374-375 (1979) (waiver). See also Manson v. Brathwaite, supra, at 112; Foster v. California, 394 U.S. 440, 442-443 (1969); United States v. Wade, 388 U. S., at 228-229, 232-235; Stovall v. Denno, 388 U.S. 293, 302 (1967). And third, because of the extraordinary impact of much eyewitness identification evidence, juries hearing such evidence will be no more able fully to ignore it upon instruction of the trial judge than will juries hearing confession evidence.[10] To expect a jury to engage in the collective mental gymnastic of segregating and ignoring such testimony upon instruction is utterly unrealistic. The Court's bald assertion, therefore, that jury instructions are adequate to protect the accused, is as untrue for identification evidence as it is for involuntary confessions.
Nor can it be assumed, as the Court has, that cross-examination will protect the accused in this circumstance. That is no more true here than it was in Jackson, where the defendant was also allowed to cross-examine on the question of voluntariness. Cross-examination, of course, affects the weight and credibility given by the jury to evidence,[11] but cross-examination is both an ineffective and a wrong tool for purging inadmissible identification evidence from the jurors' minds. It is an ineffective tool because all of the scientific *357 evidence suggests that much eyewitness identification testimony has an unduly powerful effect on jurors. Thus, the jury is likely to give the erroneously admitted evidence substantial weight, however skillful the cross-examination. See generally E. Loftus, Eyewitness Testimony 9 (1979). Cross-examination is also a wrong tool in the sense that jury instructions are the means normally employed to cure the erroneous introduction of evidence. At best, cross-examination might diminish the weight the jury accords to the admissible evidence. The likelihood is, however, that the jury would continue to give the improperly admitted evidence substantial weight, even if properly instructed to disregard it.
It is clear beyond peradventure, I submit, that because of the dangers to a just result inherent in identification evidence its unreliability and its unusual impact on the jury a "fair hearing and a reliable determination" of admissibility, Jackson v. Denno, 378 U. S., at 377, are constitutionally mandated. The Due Process Clause obviously precludes the jury from convicting on unreliable identification evidence. Manson v. Brathwaite, supra.[12] But the only way to be sure that the jury will not rest its verdict on improper identification evidence, as a practical matter, is by not permitting the jury to hear it in the first place. A Jackson v. Denno hearing would expediently accomplish that purpose.[13] I believe that the Due Process Clause requires no less.
*358 A large and distinguished group shares my view. The lower federal courts with virtual unanimity have encouraged the type of hearing sought by petitioners.[14] As already noted, *359 the Court too states that "[a] judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances. . . constitutionally necessary." Ante, at 349. I should think it follows from this congruence of opinion on the desirability of such a judicial hearing that evolving standards of justice[15] mandate such a hearing whenever a defendant proffers sufficient evidence to raise a colorable claim that police confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976).
In the instant cases, the suggestiveness of the confrontation procedures was clearly shown, and equally clearly cross-examination in front of the jury was inadequate to test the reliability of the evidence because of the undoubted inhibiting effect on cross-examination from fear that rigorous questioning of hostile witnesses would strengthen the eyewitnesses' testimony and impress it upon the jury. See United States v. Wade, 388 U. S., at 240-241.[16] In any event, the record *360 is inadequate to decide that petitioners could not have succeeded in foreclosing admission of the evidence if they had been afforded a hearing out of the jury's presence in the first place. Accordingly, I would remand for such further proceedings as are necessary to give these petitioners "a fair hearing and a reliable determination," Jackson v. Denno, 378 U. S., at 377, that the identification evidence in each trial was not erroneously admitted.
NOTES
[*] Together with No. 79-5951, Summitt v. Sowders, Warden, also on certiorari to the same court.
[1] The opinion of the District Court is unreported.
[2] E. g., United States v. Mitchell, 540 F.2d 1163 (CA3 1976); United States v. Cranson, 453 F.2d 123 (CA4 1971); Haskins v. United States, 433 F.2d 836 (CA10 1970); United States v. Ranciglio, 429 F.2d 228 (CA8 1970); United States v. Allison, 414 F.2d 407 (CA9 1969); United States v. Broadhead, 413 F.2d 1351 (CA7 1969); Clemons v. United States, 133 U. S. App. D. C. 27, 408 F.2d 1230 (1968) (en bane). The Court of Appeals for the Fifth Circuit has left the matter to the discretion of the district courts. United States v. Smith, 546 F.2d 1275 (1977). At least two Federal Courts of Appeals have commended hearings outside the presence of the jury to state courts, Nassar v. Vinzant, 519 F.2d 798 (CA1 1975); United States ex rel. Phipps v. Follette, 428 F.2d 912 (CA2 1970), and at least one has held that due process may in some circumstances require a hearing outside the presence of a jury to decide the admissibility of identification evidence. United States ex rel. Fisher v. Driber, 546 F.2d 18 (CA3 1976).
[3] See Pinto v. Pierce, 389 U.S. 31, 32:
"This Court has never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances. . . . [B]ecause a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury. . . . In this case, however, the confession was held voluntary and admitted as evidence suitable for consideration by the jury."
[4] As Professor Wigmore put it, "[cross-examination] is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, Evidence § 1367 (Chadbourn rev. 1974).
[1] The special nature of eyewitness identification evidence has produced an enormous reservoir of scholarly writings, many based on solid empirical research. For a bibliography of that literature, see E. Loftus, Eyewitness Testimony 237-247 (1979).
[2] "[S]uggestibility inherent in the context of the pretrial identification" is a factor that has led the Court to require the presence of counsel at postindictment lineups. United States v. Wade, 388 U. S., at 235. If counsel is not present at such a lineup, the identification may not be introduced into evidence at trial and an in-court identification may be made only if the prosecutor establishes "by clear and convincing evidence that the in-court identification [was] based upon observatio[n] . . . of the suspect other than the lineup identification." Id., at 240.
[3] "[J]uries unfortunately are often unduly receptive to [identification] evidence . . . ." Manson v. Brathwaite, 432 U.S. 98, 120 (1977) (MARSHALL, J., dissenting) (footnote omitted). See Loftus, supra, at 8-19; P. Wall, Eye-witness Identification in Criminal Cases 19-23 (1965); Hammelmann & Williams, Identification ParadesII, 1963 Crim. L. Rev. 545, 550. See generally A. Yarmey, The Psychology of Eyewitness Testimony (1979).
[4] Loftus, supra, at 19 (emphasis supplied). Professor Loftus exhaustively canvasses statistical and psychological evidence which persuasively supports her conclusion that eyewitness identification evidence is "overwhelmingly influential." Id., at 9.
[5] Professor Loftus, ibid. (emphasis in original), observes that "[j]urors have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence."
Wall, supra, at 19 (footnotes omitted) (emphasis supplied), concludes:
"[J]uries are unduly receptive to identification evidence and are not sufficiently aware of its dangers. It has been said that `positive recognition by well intended uninterested persons is commonly accepted unless the alibi is convincing,' and that evidence of identification, however untrustworthy, is `taken by the average juryman as absolute proof.'"
[6] Distinguishing Jackson from the instant cases on the basis that the jury there was first instructed to determine voluntariness is not persuasive. That consideration goes to the weight given the evidence by the jury. Jackson itself recognized that the lingering effect of the involuntary confession might be decisive in the jury's deliberation. Such an effect is no less likely to be decisive in the case of powerful eyewitness identification evidence that a jury has been instructed to ignore. In both instances, peculiarly powerful evidence must leave an indelible impact on a juror's mind. See n. 7, infra.
[7] The Court in Jackson noted:
"`Due Process of law requires that a coerced confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . . . And the rule of exclusion ought not to be emasculated by admitting the evidence and giving to the jury an instruction which, as every judge and lawyer knows, cannot be obeyed.'" 378 U.S., at 382-383, n. 10, quoting E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 104-105 (1956).
[8] Of course, police misbehavior is not always so lacking in subtlety that involuntary confessions are invariably wrenched from an accused by force. Thus, indirect methods of interrogation which seek to elicit a statement from a custodial suspect may also warrant a conclusion of involuntariness. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (interrogation includes actions which "the police should know are reasonably likely to elicit an incriminating response"); cf. Brewer v. Williams, 430 U.S. 387 (1977) (Sixth Amendment violation).
[9] See n. 6, supra.
[10] In both of these cases, the eyewitnesses were also the victims of the crimes. Not only does that dual status affect the reliability of the identification, but it also is likely to make the testimony more powerful and thus less curable by jury instructions. Clearly, this is not a case where 14 reliable identifications were properly received in evidence, but a 15th by a nonvictim witness was subject to suggestive confrontation procedures and was unreliable, thereby raising the possibility that the error was harmless beyond a reasonable doubt.
[11] In Manson v. Brathwaite, 432 U. S., at 116, the Court stated:
"We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."
[12] In Jackson v. Denno, the Court was concerned that the jury not hear a defendant's confession until a trial judge had made a preliminary determination of voluntariness. The Court assumed that were this not done, a deleterious impact on the jury's deliberations would operate:
"[I]t is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant and which would permit the jury to consider the confession in adjudicating guilt or innocence." 378 U.S., at 387.
[13] The Court errs in any event in deciding these cases on the premise that petitioners request a per se rule requiring a hearing out of the jury's presence in every case. In the first place, petitioners rely substantially on authority which does not go that far. Brief for Petitioners 43-45. Clearly, they have sought reversal of their convictions on the basis that they were entitled to such a hearing. Moreover, there is no question here that they raised a colorable claim that the confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (CA3 1976); United States v. Cranson, 453 F.2d 123, 127 (CA4 1971), cert. denied, 406 U.S. 909 (1972).
If the Court's result is out of concern for not adding another layer of complexity to criminal litigation, that is understandable, but not sufficient to supplant an accused's constitutional right. Moreover, a rule requiring the defendant to proffer some minimum quantum of evidence showing the suggestiveness of the confrontation procedures would eliminate frivolous requests. See, e. g., United States ex rel. Fisher v. Driber, supra, at 22.
[14] United States ex rel. Fisher v. Driber, supra, at 22 (requiring hearing outside presence of jury where motion for such hearing is not frivolous); United States v. Smith, 546 F.2d 1275, 1279 (CA5 1977) (evidentiary hearing not required where no critical facts in dispute); United States v. Mitchell, 540 F.2d 1163, 1166 (CA3 1976) (defendant could have "requested a hearing outside the presence of the jury in accordance with Neil v. Biggers"), cert. denied, 429 U.S. 1099 (1977); Nassar v. Vinzant, 519 F.2d 798, 802, n. 4 (CA1) (commending hearing out of jury's presence), cert. denied, 423 U.S. 898 (1975); United States v. Cranson, supra, at 125-126 ("evidentiary hearing outside the jury's presence is required" upon motion to suppress); Haskins v. United States, 433 F.2d 836, 838 (CA10 1970) (requiring hearing outside of jury's presence); United States v. Ranciglio, 429 F.2d 228, 230 (CA8) ("trial court, out of the hearing and presence of the jury, conducted a hearing as required in Wade"), cert. denied, 400 U.S. 959 (1970); United States ex rel. Phipps v. Follette, 428 F.2d 912, 913, n. 1 (CA2) ("commend[ing]. . . practice" of hearing out of jury's presence), cert. denied, 400 U.S. 908 (1970); United States v. Allison, 414 F.2d 407, 410 (CA9) (requiring hearing outside of jury's presence), cert. denied, 396 U.S. 968 (1969); United States v. Broadhead, 413 F.2d 1351, 1359 (CA7 1969) (pretrial hearing approved), cert. denied, 396 U.S. 1017 (1970); Clemons v. United States, 133 U. S. App. D. C. 27, 34, 408 F.2d 1230, 1237 (1968) (en banc) (requiring hearing outside of jury's presence or disclosure of prosecutor's evidence), cert. denied, 394 U.S. 964 (1969). Even the Court of Appeals deciding these cases stated that it had "no doubt that" a hearing out of the jury's presence "is the preferable procedure." Summitt v. Bordenkircher, 608 F.2d 247, 250 (CA6 1979).
In addition, the Commonwealth of Kentucky, where petitioners were tried and convicted, appears to require a hearing out of the presence of the jury, upon defendant's motion, for confession and for search evidence. See Ky. Rule Crim. Proc. 9.78. In addition, Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky. 1978), decided after petitioners were convicted, held that the trial court's refusal to hold a suppression hearing to determine the admissibility of identification evidence constituted error. Previous Kentucky appellate decisions had reached a similar conclusion. E. g., Francis v. Commonwealth, 468 S.W.2d 287 (App. 1971).
[15] See, e. g., Harper v. Virginia Board of Elections, 383 U.S. 663, 669 (1966) (equal protection); Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality opinion of Warren, C. J.) (Eighth Amendment).
[16] It is no answer to say, as the Court does, that the record does not reflect that petitioners' respective counsel were deterred by the presence of the jury, for the simple reason that a cold record cannot reflect questions not asked. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4166762/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
T.K. and M.K., :
Petitioners :
: CASE SEALED
v. : No. 1029 C.D. 2016
: Submitted: January 27, 2017
Department of Human Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: May 8, 2017
T.K. (Father) and M.K. (Mother) (collectively, Parents) petition for
review of an adjudication of the Pennsylvania Department of Human Services
(Department), Bureau of Hearings and Appeals (Bureau), that adopted an
Administrative Law Judge’s recommendation to deny Parents’ request to expunge
an indicated report of abuse of their son, L.K. (Child), from the ChildLine
Registry.1 Parents argue that the indicated report was untimely filed under Section
6337(b) of the Child Protective Services Law (Law),2 23 Pa. C.S. §6337(b), and
must be expunged. They further argue that the evidence of intervenor County
Children and Youth Services (CYS) was insufficient to establish a presumption of
1
ChildLine, a unit within the Department, operates a statewide system for receiving reports of
suspected child abuse; refers the reports for investigation; and maintains the reports for
reference. 55 Pa. Code §3490.4.
2
23 Pa. C.S. §§6301-6386.
abuse under Section 6381(d) of the Law, 23 Pa. C.S. §6381(d). We agree and
reverse.
Background
Father and Mother are married and the biological parents of Child and
his brother, who is two years older. On December 20, 2014, when Child was
approximately four months old, Parents took him and his brother to their on-call
pediatrician’s office for their persistent cough and congestion. The on-call
pediatrician (On-Call Pediatrician) examined them and ordered a chest x-ray.
Child’s x-ray revealed “healing left lateral 6th and 7th rib fractures,” which,
according to the physician who reviewed the x-ray, “raises concern for
nonaccidental trauma and further investigation is required.” Certified Record
(C.R.) Item 4, Exhibit C-6, at 4. Both children were then transferred to the
emergency room for a skeletal x-ray. The tests were negative, except that Child’s
report revealed the same “healing or healed fracture of the left seventh rib … with
what appears to represent a more recent fracture of the adjacent sixth rib.” C.R.
Item 4, Exhibit C-6, at 7. No other fractures were identified. Child then
underwent a retina scan and a CT scan for signs of Shaken Baby Syndrome or
other kinds of abuse; both results were negative.
On December 20, 2014, CYS received a report of suspected child
abuse related to Child’s rib fractures.3 C.R. Item 4, Exhibit C-1. A caseworker
conducted an investigation. On-Call Pediatrician, who examined Child on
3
Although the record shows that a written notice of suspected child abuse was sent to CYS on
December 23, 2014 (C.R. Item 4, Exhibit C-1), the parties agreed, and the ALJ found, that CYS
received a phone call from ChildLine with the allegation of abuse on December 20, 2014. ALJ
Opinion (11/2/2015) at 5.
2
December 20, 2014, was then hired by the Children’s Advocacy Center to review
the matter. Parents proposed two potential causes of the rib fractures. They
explained that Child had recently fallen off a bed when the family was in New
York for Thanksgiving. Parents consulted with Father’s sister, who is a physician,
and she told them that it was unnecessary to visit the emergency room. Parents
also explained that Child’s brother jumped on Child on at least two or three
occasions, when he attempted to use a “bouncy chair” in which Child was sitting.
These incidents caused Child to cry.
On-Call Pediatrician prepared a report on behalf of the Children’s
Advocacy Center, which report stated, in relevant part, as follows:
Chart reviewed completed and negative … Chest x-ray done on
02/12/2014 revealing healing left lateral 6th and 7th rib
fractures. Reading was performed by Dr. Eric Vilbert. Skeletal
survey performed by Dr. Weimer was negative with the
exception of again anterior lateral left 6th and 7th rib fractures
with what appeared to represent a more recent fracture of the
adjacent sixth rib. No other fractures identified. Review of x-
rays performed by Dr. Faruq, Geisinger Medical Center
radiology, in agreement with readings. CAT scan of the head
performed on 12/29/2014 was within normal limits. Laboratory
workup including calcium phosphorus, alkaline phosphatase,
parathyroid hormone, vitamin D within normal limits.
Ophthalmologic evaluation performed by Dr. Wilson, Geisinger
Medical Center, reportedly within normal limits.
C.R. Item 4, Exhibit C-6, at 2. The report concluded as follows:
A 4-month-old white male with anterior lateral rib fracture of
ribs sixth and seventh possibly of different ages. Those injuries
are inconsistent with the history of the mechanism reported and
are highly suspicious for nonaccidental trauma. Case reviewed
with [Consulting Physician who is] in agreement with
evaluation and medical conclusion.
3
C.R. Item 4, Exhibit C-6, at 2-3.
On January 8, 2015, a multidisciplinary investigative team4 met to
discuss Child’s case and recommended that CYS file an indicated report of child
abuse. On January 22, 2015, CYS filed an indicated report with ChildLine listing
the perpetrator as “unknown.” C.R. Item 4, Exhibit C-2, at 1. The report, filed on
Form CY-48, stated:
Child had injuries which could not have been caused by
himself, and for which there was no explanation which was
supported by medical opinion. A specific, known perpetrator
could not be identified[,] however. Although the parents are the
sole caretakers, there was no other evidence to identify either as
the perpetrator. Report is indicated against Unknown.
C.R. Item 4, Exhibit C-2, at 2.
ChildLine rejected the report because it did not identify a perpetrator.
On March 19, 2015, CYS decided to amend the initial report by identifying Parents
as the perpetrators. The report, again filed on Form CY-48, stated:
Indicated on both parents. Child had injuries which could not
have been caused by himself, and for which there was no
explanation which was supported by medical opinion. The
parents are the sole caretakers.
C.R. Item 4, Exhibit C-3, at 2.
4
By way of background, Section 6365 of the Law provides that the county agency shall make
available among its services a multidisciplinary review team for the prevention, investigation,
and treatment of child abuse. It further provides that the multidisciplinary investigative team
shall be used to coordinate child abuse investigations between county agencies and law
enforcement. The multidisciplinary investigative team shall consist of individuals and agencies
responsible for investigating the abuse or for providing services to the child, including health
care providers, county caseworkers, and law enforcement officials. 23 Pa. C.S. §6365(b)-(c).
4
On April 3, 2015, the Department notified Parents that they were
listed as perpetrators of physical abuse of Child in the ChildLine Registry. Parents
appealed. On June 8, 2015, a hearing was held before an Administrative Law
Judge (ALJ). CYS presented testimony from the CYS caseworker (Caseworker),
who conducted the investigation, and from On-Call Pediatrician. Parents presented
testimony from a board-certified pediatric radiologist (Radiologist) and Child’s
regular treating pediatrician (Treating Pediatrician). Parents also testified.
Caseworker testified that she visited Parents at the hospital and again
at their home, and they “continued to say that they couldn’t think of any way this
[injury] could have happened unless it was from either [Child’s brother] jumping
on [Child] when he was in his bouncy chair, or from the fall off the bed that
occurred in New York State.” Notes of Testimony, 6/8/2015, at 40 (N.T. __).
Caseworker testified that she talked to Father’s sister, a physician, who confirmed
that she examined Child and did not believe he needed emergency room
treatment.5 N.T. 74-75. Caseworker testified that she saw the “bouncy chair”
during the home visit and described it as a little chair that sits on the floor.
Caseworker described the chair as metal framed, coated in plastic and covered with
fabric.
Caseworker testified that Parents informed her that they were the sole
caretakers of Child. She observed that Child’s two-year-old brother appeared to be
in good health; the house was safe; and the boys were “healthy and clean.” N.T.
70. She also testified that she spoke to the daycare attended by Child’s brother,
which reported no concerns. She also spoke to Child’s pediatricians and was told
5
At the hearing, the parties stipulated that Father’s sister examined Child shortly after he fell off
the bed and did not see anything “amiss.” N.T. 149-50.
5
that Child had never missed wellness visits. Caseworker testified that a safety plan
had been undertaken during the investigation but was later terminated because
there were no ongoing safety concerns for either child.
Caseworker testified that at the January 8, 2015, multidisciplinary
investigative team meeting, On-Call Pediatrician opined that the rib fractures could
not have been caused in either of the two ways Parents suggested. The District
Attorney, who was also present at the meeting, stated that there was insufficient
evidence to charge Parents. Caseworker testified that the District Attorney’s
assessment was a “significant factor” in the team’s recommendation that CYS file
an indicated report listing an unknown perpetrator. N.T. 78.
Caseworker testified that she contacted the police “because [she was]
required to notify police in [such] instances”; however, she had not heard back
from the police at the time she prepared the report. N.T. 30; 48. She testified that
on January 21, 2015, right before she filed the report with ChildLine, she visited
Parents again, telling them that “[CYS was] going to be indicating the case on
unknown perpetrator, and that technically … would mean [that] the report would
be unfounded against them.” N.T. 49.
Caseworker further testified that before she filed the report, she
contacted ChildLine to see if any additional paperwork was needed to indicate
unknown perpetrators; she was told that a Form CY-48 was enough. N.T. 54.
After she filed the report, however, ChildLine informed her that CYS could not
indicate unknown perpetrators but should rather “either … unfound or indicate
both parents. [CYS] can’t have it both ways.” N.T. 77. This prompted CYS to
convene a meeting on March 19, 2015, and then name Parents as perpetrators. The
District Attorney was not at the March meeting. Following the meeting,
6
Caseworker filed a new Form CY-48 naming Parents as perpetrators, with the
intent to replace “the one that [she] submitted in January that ChildLine rejected.”
N.T. 57. She testified that between January 22, 2015, and March 19, 2015, CYS
did not receive new evidence.
On-Call Pediatrician testified that under her contract with the
Children’s Advocacy Center, she does medical examinations for any child who is
referred there for suspected physical or sexual abuse. She was trained in
evaluating physical abuse in medical school and for “more than 17 years, [she had]
always maintained some educational expertise in [] physical abuse.” N.T. 96. On-
Call Pediatrician testified that she received “in-depth training of physical and
sexual abuse … through the regional CAC [Children’s Advocacy Center] training.”
N.T. 96.
On-Call Pediatrician testified that she reviewed Child’s medical
record with Consulting Physician, who is a “nationally renowned expert in child
abuse.” N.T. 87-88. She testified that she sent Consulting Physician the
examination report, which included the proposed mechanism of injury (i.e., falling
off the bed onto the floor), without sending her the x-ray images. As a result of
this consultation, On-Call Pediatrician concluded that “[t]he mechanism of trauma
was not consistent with the findings of a rib fracture.” N.T. 89. She testified:
Rib fractures typically on a [] child with normal bones will only
occur with an abnormal force of squeezing or compression or a
crush injury such as a motor-vehicle accident.
We do have, as well, lab reports as far as bone fragility testing,
calcium phosphorus, alkaline phosphorus, that are all within
normal limits, including vitamin D, testifying to the fact that his
bones are normal, in addition to he has no other fractures on the
skeletal survey.
7
N.T. 90. On-Call Pediatrician testified that the report she prepared was based on
her own training and expertise and that she conferred with other physicians “to
confirm [her] opinion.” N.T. 99.
On-Call Pediatrician also testified that Child could not have been
injured by his brother jumping on him in the bouncy chair. She explained: “Again,
you’re not having a significant compression or squeezing force. That bouncy chair
is very flexible, so there’s not a hard force … that would cause fracture of the
ribs.” N.T. 91. On-Call Pediatrician opined that “injuries such as this … are
highly specific for abuse.” N.T. 93. She explained:
The most recent article from the American Academy of
Pediatrics, which is a compilation of research, has indicated that
rib fractures are high specificity in regards to child abuse with
specifically infants. Mainly because of the developmental age,
they’re unable to cause any injuries to themselves.
And, again, there was no neurologic or radiologic evidence of
bone disease. Multiple rib fractures are concerning for physical
abuse. Fractures that are sequential, meaning as in this case,
ribs six and seven, could be where placement of the fingers
were creating that anterior/posterior compression causing the
rib fracture.
N.T. 92.
On-Call Pediatrician testified that she could rule out the possibility of
inherited diseases and “all other matters that would come up in the differential for
causes for this case[.]” N.T. 96-97. She testified that a child would experience
severe pain at the time of the rib fracture and would scream continuously. On-Call
Pediatrician opined that Parents should be identified as perpetrators of abuse of
Child.
8
On cross-examination, On-Call Pediatrician conceded that rib
fractures could indicate either an accidental trauma or a non-accidental trauma.
She testified:
[Question]: And you cannot look at an x-ray and actually tell
from the x-ray whether that particular bone … is a strong bone
or a weak bone. You can tell really weak bones, but in the
middle, you can’t. Is that not correct?
[Answer]: Correct.
***
[Question]: And since we don’t know the actual structure of
the bone, how weak or how strong it is, we wouldn’t be able to
give any reasonable opinions about how much force it would
take to cause rib fractures in [Child]; isn’t that correct?
[Answer]: Correct. But at the same time, [Child] had no other
fractures of any of his other bones.
[Question]: No, I understand that. And so if a child has an
older sibling and that sibling jumps or lands or causes some
force to the child, that can explain an accidental injury, can it
not?
[Answer]: If there is an anterior/posterior [front and back]
compression.
[Question]: Sure. So what you’re saying is the fall [off] the
bed does not describe it, but you can’t tell us how, in fact,[] to a
reasonable degree of medical certainty how this injury
occurred; is that correct?
[Answer]: Correct.
***
[Question]: So the actual read of an x-ray is not diagnostic for
abuse; is that not correct?
9
[Answer]: Correct.
***
[Question]: And you would agree with [Radiologist’s] report,
that just because there might be … a difference in the callus of
each fracture, that’s not the diagnostic of two separate injuries.
Is that not correct?
[Answer]: That it’s difficult to ascertain that fact, correct.
[Question]: Right. So we can say within a reasonable degree
of medical certainty that we have two rib fractures that could
have happened in one incident. Is that not right?
[Answer]: It could have happened in one incident. It could
have happened in two incidents.
[Question]: Right. And that it could have happened from the
trauma that’s accidental or non-accidental?
[Answer]: Correct.
N.T. 102-05. The parties stipulated that the cause of the injury was not
demonstrated by the medical exams.
Radiologist, who is board-certified in pediatric radiology, testified for
Parents. She stated that the x-ray images appear to show that “[o]ne fracture …
[is] probably a complete fracture and the other may have been incomplete because
[she] can only see the callus on one side of it.” N.T. 115. Radiologist testified that
a callus, a healing response to bone fractures, starts to form “anywhere from a
couple of weeks to a month or more” after the fracture. N.T. 115. Therefore, “[the
fractures were] not just a few days of age.” N.T. 115. Beyond that, Radiologist
testified, she was not able to be precise.
Radiologist testified that, because the injured ribs are right next to
each other, “the likelihood is that [the fractures] occurred together.” N.T. 115-16.
10
Radiologist agreed with On-Call Pediatrician that rib fractures could indicate either
an accidental trauma or a non-accidental trauma:
[Question]: Okay. Now, taking a look at those x-rays, are
those x-rays diagnostic, in and of themselves, a non-accidental
trauma to a four month old?
[Answer]: Absolutely not.
[Question]: And can you explain that? ….
[Answer]: X-rays can only tell you about the … imaging
presence or absence of certain types of anatomic findings. So
on an x-ray, I can say a fracture is present. I can tell you if it’s
healing. I can sometimes give a rough estimate of dates, but
beyond that, there’s nothing about the x-ray that can tell us
anything about whether they were inflicted ....
So for an inflicted injury – I think I sent you the references.
Those children have been diagnosed, again, not by x-ray, but by
evidence from a wide variety of sources. Bone fractures tend to
be greater in number. It’s often associated with additional
injuries, and from my review of the records these were isolated.
***
[Question]: Okay. So … medical evidence that takes it more to
a conclusion of a non-accidental injury includes something
more than two rib fractures; is that not correct?
[Answer]: Well, again, x-rays can’t tell you anything about
intent…. So you have to look at the context of other things. In
this case, there was additional imaging evaluation. That was
negative…. X-rays are simply images. They can’t tell you
anything – from the x-ray of this. I don’t have additional
factors that would suggest abuse. All I have are two rib
fractures….
N.T. 116-18.
11
Treating Physician, Child’s primary treating pediatrician, also testified
for Parents. He and On-Call Pediatrician are partners in the same pediatric group,
and he is the medical director of the Children’s Advocacy Center. Treating
Physician testified that he had seen both Child and his brother for most of their
wellness visits and some of their sick visits. Parents brought both children in on a
regular basis. He testified that “[he] typically see[s] a baby two or three days after
they [sic] leave the hospital, and then a two-week visit and a two-months visit.”
N.T. 141. Regarding Child’s general health, Treating Physician testified that
“[o]verall, [Child] had been healthy. His biggest issue had been … some eczema
issues, but other than that, he’d been healthy and appropriate on all their visits.”
N.T. 141. Treating Physician also testified to the rib fractures:
[Question]: So after the work-up had been done and the testing
had been done, did your opinion change as to whether you had
any concern regarding the parents and their care of their son?
[Answer]: Any time that you have rib fractures that are
unexplained, it always is a concern for non-accidental trauma.
Personally, I did not have specific concerns with [Child]’s
parents, but … nobody knew where these came from, and how
they were obtained, so it puts everybody that had had contact
with him as a potential inflictor of this.
N.T. 143. Treating Physician further testified that rib fractures in young children
are difficult to detect:
Sometimes they have just generalized fussiness. Sometimes
there is … physical findings … where they had significant
trauma to their chest. Sometimes it’s unknown, basically an
incidental finding with something else … a respiratory illness
where you happen to find something like this.
N.T. 145.
12
Parents also testified. Mother testified that she had been a “stay-at-
home mom” since her pregnancy with Child. N.T. 154. She did not notice “any
sort of fussiness” in the past months that would have led her to think that Child
may have rib fractures. N.T. 156. When she learned of the fractures, she was
“absolutely heartbroken, very shocked.” N.T. 156. Both Parents denied that they
had ever abused Child or his brother.
Father testified that Child fell off of a bed when the family was in
New York at his father’s house for Thanksgiving. Father placed Child on the bed
and briefly left the room; he heard a thump and rushed back, finding Child crying
on the floor on his stomach. Father testified that “[Child] was crying more loudly
than I had ever heard him cry before.” N.T. 182. Father testified he did not
believe that Child could fall, and he “was very surprised [that] he did fall.” N.T.
181. Father then took Child to the other room; laid him on the bed; and checked
his condition including pulse, pupils, and bones. Father testified that he had taken
classes in first aid and was “current in CPR [cardiopulmonary resuscitation], [but]
not advanced first aid.” N.T. 182. Father thought Child was okay but he called his
sister, a physician, who checked Child the next day. She concluded Child was
fine. Father testified that he did not notice anything “out of the ordinary”
thereafter. N.T. 184.
Mother testified that Child was “crying pretty hard for several
minutes” after the fall. N.T. 158. She “tried to nurse him, which he nursed right
away. And after that, he was fine and then he slept fine, too.” N.T. 158-59.
Mother testified that the bed Child fell from was king-size and at least two and a
half to three feet high. The floor was carpeted.
13
Parents also testified that Child’s brother was seen jumping onto Child
several times while Child was propped up in a bouncy chair. According to Mother,
Child’s brother “would just run across the room and jump on top of him.” N.T.
163. Father testified that they “would catch him most of the time, but not every
time.” N.T. 180.
The ALJ recommended sustaining Parents’ appeal. He found that
both the January 22, 2015, and March 19, 2015, indicated reports were defective.
The January 22, 2015, report, the ALJ reasoned, should have identified a
perpetrator of the alleged abuse; ChildLine had rejected the filing for the same
reason. As to the March 19, 2015, report, it was not filed within the 60-day
timeframe under Section 6337(b) of the Law, 23 Pa. C.S. §6337(b). Accordingly,
the ALJ concluded that the report must be deemed unfounded. ALJ Opinion
(11/2/2015) at 5. By order dated November 4, 2015, the Bureau adopted the ALJ’s
recommendation in its entirety.
CYS requested reconsideration, claiming that it had timely filed the
indicated report on January 22, 2015, and the March 19, 2015, report was an
amendment, not a new report. Further, CYS argued that it was allowed to list an
unknown perpetrator in an indicated report. On November 20, 2015, the Secretary
of Human Services granted reconsideration and remanded the case to the Bureau to
decide the merits of the matter. The parties requested that the appeals be
adjudicated based on the June 8, 2015, hearing transcripts and the briefs filed.
On remand, the ALJ reversed his prior recommendation. Crediting
the testimony of On-Call Pediatrician and Radiologist, the ALJ found that Child’s
ribs were likely injured at the same time. At least one rib was completely
fractured, which “would have been extremely painful when it occurred.” ALJ
14
Opinion (5/26/2016) at 13. The ALJ further found that unexplained rib fractures in
an infant are highly suspicious for abuse because an infant’s ribs are highly elastic
and difficult to break. No evidence, the ALJ found, suggested that Child had a
medical condition or history of being involved in a vehicular accident or other non-
abuse event involving significant forces that could explain the rib fractures.
Discrediting Parents’ testimony, the ALJ found their two possible
explanations implausible because neither involved sufficient force to compress
Child’s chest and fracture his ribs. The ALJ reasoned that one expects head or
clavicle injuries to occur in a fall. Further, Child did not cry continuously after
either incident; rather, Parents described that he was quickly consoled. The ALJ
concluded that, “[a]s no plausible accidental explanation for the serious physical
injuries was provided after non-abuse medical or congenital explanations were
excluded, and the injuries would have caused the child to experience severe pain
… CYS provided substantial evidence that the subject child was the victim of
physical child abuse.” ALJ Opinion (5/26/2016) at 12.
The ALJ further concluded that CYS demonstrated by substantial
evidence that the presumption under Section 6381(d) of the Law should apply to
find that Parents abused Child. 23 Pa. C.S. §6381(d). Further, Parents failed to
overcome the presumption that one of them abused Child by offering a plausible
explanation for Child’s injuries. Accordingly, the ALJ recommended that Parents’
appeal be denied. On June 2, 2016, the Bureau adopted the ALJ’s proposed
adjudication in its entirety. Parents then filed the subject petition for review with
this Court.
15
Appeal
On appeal,6 Parents raise two issues. They first argue that the Bureau
erred in denying their expungement request because CYS’s March 19, 2015, report
was filed well beyond the 60-day deadline under Section 6337(b) of the Law, 23
Pa. C.S. §6337(b). Second, Parents argue that the Bureau erred in finding that
CYS provided substantial evidence that Child’s rib fractures were the result of
abuse. We address these issues seriatim.
I.
In their first issue, Parents argue that the Bureau erred in denying their
expungement request because CYS did not file an indicated report against them
until March 19, 2015, which was well beyond the 60-day deadline imposed by
Section 6337(b) of the Law. Failure to file a report within the statutory timeframe,
Parents argue, rendered the report unfounded. CYS counters that it timely filed an
indicated report on January 22, 2015; the March 19, 2015, report simply amended
the previous report to identify the perpetrators. CYS further argues that the 60-day
period did not begin to run until “the agency [CYS] reported a named perpetrator
to ChildLine.” CYS Brief at 11. Parents respond that if the March 19, 2015,
report was indeed an amendment, it should have been filed on Form CY-49.
We begin with an examination of the law relevant to the timeliness of
an indicated report. Section 6337(b) of the Law provides:
6
“This Court’s review is limited to determining whether legal error has been committed, whether
constitutional rights have been violated, or whether the necessary findings of fact are supported
by substantial evidence.” T.H. v. Department of Human Services, 145 A.3d 1191, 1196 n. 6 (Pa.
Cmwlth. 2016) (quoting F.R. v. Department of Public Welfare, 4 A.3d 779, 782 n.7 (Pa. Cmwlth.
2010)). Whether a county agency’s evidence satisfied the evidentiary standard set forth in the
statute is a question of law. In re S.H., 96 A.3d 448, 455 (Pa. Cmwlth. 2014).
16
(b) Absence of other determination. – If an investigation of a
report of suspected child abuse conducted by the appropriate
county agency pursuant to this chapter does not determine
within 60 days of the date of the initial report of the instance of
suspected child abuse that the report is a founded report, an
indicated report or an unfounded report, or unless within that
same 60-day period court action has been initiated and is
responsible for the delay, the report shall be considered to be
an unfounded report, and all information identifying the
subjects of the report shall be expunged no later than 120 days
following the expiration of one year after the date the report
was received by the department….
23 Pa. C.S. §6337(b) (emphasis added). In accordance with Section 6337(b),
Section 3490.69 of the Department’s regulations provides that, “[w]hen the CY-48
form is not filed with ChildLine within 60-calendar days of receipt of the report by
ChildLine, the report shall be unfounded.” 55 Pa. Code §3490.69. This Court has
construed this provision to mean that a report is deemed unfounded when a county
agency fails to file the report as founded, indicated, or unfounded within the 60-
day deadline. J.C. v. Department of Public Welfare, 138 A.3d 57, 62 n. 16 (Pa.
Cmwlth. 2016).
The Department’s regulations also provide a procedure for a county
agency to amend a founded or indicated report. Section 3490.67(d) of the
Department regulations states:
(d) A supplemental child abuse report form shall be submitted
to ChildLine on founded and indicated reports when additional
case information is obtained, including dates of birth, identity
of the subjects, additional information about the nature of the
abuse, or the case is presented before a court and there is a
change in the status of the report.
17
55 Pa. Code §3490.67(d) (emphasis added). The Department has designated Form
CY-49 as “Child Protective Service Supplemental Report.”7
The parties do not dispute, and the ALJ found, that in this case CYS
intended to file an indicated report. Section 6303(a) of the Law defines an
“indicated report” as:
[A] report of child abuse made pursuant to this chapter if an
investigation by the department or county agency determines
that substantial evidence of the alleged abuse by a perpetrator
exists based on any of the following:
(i) Available medical evidence.
(ii) The child protective service investigation.
(iii) An admission of the acts of abuse by the
perpetrator.
23 Pa. C.S. §6303(a). Effective December 31, 2014, an indicated report based on
(i) or (ii) may list the perpetrator as “unknown” if “substantial evidence of abuse
by a perpetrator exists, but the department or county agency is unable to identify
the specific perpetrator.” 23 Pa. C.S. §6303(a), added by Act of December 18,
2013, P.L. 1170.
Here, CYS received a report of suspected abuse of Child on December
20, 2014; it filed an indicated report with ChildLine on January 22, 2015, listing
the perpetrators as “unknown.” This filing was permitted under Section 6303(a),
which had become effective on December 31, 2014. Nevertheless, ChildLine
rejected the filing8 based upon former Section 6303, which required identification
7
See 55 Pa. Code §3490.91(a)(5)(i).
8
The ALJ found that ChildLine had rejected CYS’s January 22, 2015, indicated report. ALJ
Opinion (5/26/2016) at 5, Finding of Fact No. 38. This finding, as part of the ALJ’s
(Footnote continued on the next page . . .)
18
of a specific perpetrator of the alleged abuse. Regardless of whether ChildLine’s
interpretation of the Law was reasonable under the circumstances, the January 22,
2015, report had been rejected and, as a result, could not be amended.
Further, the March 19, 2015, report was filed on a Form CY-48. The
Department regulation provides that, to amend a previously filed report, “[a]
supplemental child abuse report form shall be submitted to ChildLine on founded
and indicated reports when additional case information is obtained….” 55 Pa.
Code §3490.67(d) (emphasis added). Form CY-49 is the designated supplemental
child abuse report form. Furthermore, between January 8, 2015, and March 19,
2015, CYS did not obtain additional information on the cause of Child’s rib
injuries or that indicated Parents were perpetrators of abuse.
For the above reasons, we conclude that the March 19, 2015, report
was not an amendment to the January 22, 2015, report, which had been rejected
and, thus, no longer existed. The March 19, 2015, indicated report constituted a
new filing.
The March 19, 2015, indicated report was untimely. CYS received
the report of suspected abuse on December 20, 2014. Nearly 90 days passed
before CYS filed the indicated report on March 19, 2015. Under Section 6337(b)
of the Law, the report had to be filed within 60 days of the initial report of abuse.
23 Pa. C.S. §6337(b). Because the report was untimely, it should have been
deemed unfounded under Section 6337(b) of the Law, 23 Pa. C.S. §6337(b), and
its accompanying regulation, 55 Pa. Code §3490.69.
(continued . . .)
Recommendation, was adopted by the Bureau on June 2, 2016. The parties do not contest this
finding on appeal before this Court.
19
II.
Parents argue, next, that the Bureau erred in finding that CYS
provided substantial evidence that Child’s rib fractures resulted from abuse. They
contend that the evidence presented by both parties showed that rib fractures can
be caused by either accidental or non-accidental trauma. Further, Parents argue,
the Bureau erred in applying the presumption of abuse because the evidence
established only a suspicion of abuse. By doing so, the Bureau improperly shifted
the burden of proof to Parents. The Department responds that substantial evidence
existed to establish a prima facie case of child abuse because every medical
witness testified that rib fractures are significant injuries caused by strong force
that will cause severe pain. Further, Parents did not offer a plausible explanation
as to how Child’s injury occurred and therefore failed to rebut the presumption of
abuse.
An indicated report is issued by a county agency or the Department if,
after an investigation, “‘substantial evidence’ of the alleged abuse exists based on
available medical evidence, the child protective services investigation, or an
admission of the facts of abuse by the perpetrator.” G.V. v. Department of Public
Welfare, 91 A.3d 667, 671 (Pa. 2014) (quoting 23 Pa. C.S. §6303(a)). Section
6303(a) of the Law defines “substantial evidence” as “[e]vidence which outweighs
inconsistent evidence and which a reasonable person would accept as adequate to
support a conclusion.” 23 Pa. C.S. §6303(a). Further, Section 6303(b.1) defines
the term “child abuse” as follows:
The term “child abuse” shall mean intentionally, knowingly or
recklessly doing any of the following:
(1) Causing bodily injury to a child through any recent act or
failure to act.
20
***
(5) Creating a reasonable likelihood of bodily injury to a child
through any recent act or failure to act.
***
(7) Causing serious physical neglect of a child.
23 Pa. C.S. §6303(b.1) (emphasis added).9 Section 6303(c) of the Law recites the
requirement for finding an individual culpable of child abuse as follows:
Conduct that causes injury or harm to a child or creates a risk of
injury or harm to a child shall not be considered child abuse if
there is no evidence that the person acted intentionally,
knowingly or recklessly when causing the injury or harm to the
child or creating a risk of injury or harm to the child.
23 Pa. C.S. §6303(c).
The “substantial evidence” standard, as articulated under Section
6303(a) of the Law, is “the equivalent of the preponderance of the evidence
standard.” T.H. v. Department of Human Services, 145 A.3d 1191, 1198 (Pa.
Cmwlth. 2016). CYS bears the burden of showing that the indicated report of
abuse is accurate and is consistent with the Law. Id.; 23 Pa. C.S. §6341(c).
Section 6381(d) of the Law establishes a presumption of child abuse
in certain cases. It states:
9
At the time the alleged abuse occurred in this case, the Child Protective Services Law defined
“child abuse,” in relevant part, as “any recent act or failure to act by a perpetrator which causes
nonaccidental serious physical injury to a child under 18 years of age.” 23 Pa. C.S. §6303. This
definition was amended to the current version quoted in the body of this opinion, effective
December 31, 2014, to broaden the term “child abuse” significantly. Act of December 18, 2013,
P.L. 1170; see also In re L.Z., 111 A.3d 1164, 1168 n.3 (Pa. 2015). In this case, CYS filed the
indicated report with ChildLine after December 31, 2014, when the current version of Section
6303 was in effect. Therefore, the indicated report at issue is governed by the current, rather
than the previous, version of Section 6303 of the Law.
21
(d) Prima facie evidence of abuse. – Evidence that a child has
suffered child abuse of such a nature as would ordinarily not be
sustained or exist except by reason of the acts or omissions of
the parents or other person responsible for the welfare of the
child shall be prima facie evidence of child abuse by the parent
or other person responsible for the welfare of the child.
23 Pa. C.S. §6381(d). Prima facie evidence is “[s]uch evidence as, in the judgment
of the law, is sufficient to establish a given fact, or the group or chain of facts
constituting the party’s claim or defense, and which if not rebutted or contradicted,
will remain sufficient.” In re L.Z., 111 A.3d 1164, 1185 (Pa. 2015) (quoting
BLACK’S LAW DICTIONARY 825 (6th ed. abridged 1991)). “[E]vidence that a child
suffered injury that would not ordinarily be sustained but for the acts or omissions
of the parent or responsible person is sufficient to establish that the parent or
responsible person perpetrated that abuse unless the parent or responsible person
rebuts the presumption. The parent or responsible person may present evidence
demonstrating that they [sic] did not inflict the abuse[.]” Id.
Here, crediting On-Call Pediatrician’s testimony, the ALJ found that
rib fractures in infants are “highly suspicious for child abuse.” ALJ Opinion
(5/26/2016) at 3, Finding of Fact No. 15. On-Call Pediatrician admitted, however,
that a rib fracture is a type of injury derived from either an accidental or non-
accidental trauma. Radiologist testified that x-ray images of two rib fractures,
without more, cannot establish abuse. On-Call Pediatrician also conceded that an
older sibling jumping onto an infant could cause rib fractures “[i]f there is an
anterior/posterior [front and back] compression.” N.T. 103-04. Both physicians
testified that reading an x-ray image, by itself, cannot support a conclusion that
abuse occurred. The ALJ credited the above testimony; in fact, he credited the
testimony of all witnesses except Parents. ALJ Opinion (5/26/2016) at 13.
22
The evidence, taken as a whole, did not establish that the alleged
abuse is “of such a nature as would ordinarily not be sustained or exist except by
reason of the acts or omissions of the parent.” 23 Pa. C.S. §6381(d). An injury
that is “highly suspicious for child abuse” does not establish abuse. CYS did not
establish, by substantial evidence, the occurrence of “child abuse,” which is
defined as “intentionally, knowingly or recklessly … [c]ausing bodily injury to a
child through any recent act or failure to act….” 23 Pa. C.S. §6303(b.1)(1)
(emphasis added). Section 6303(c) further states that “[c]onduct that causes injury
or harm to a child … shall not be considered child abuse if there is no evidence that
the person acted intentionally, knowingly or recklessly when causing the injury or
harm to the child….” 23 Pa. C.S. §6303(c) (emphasis added). Stated otherwise,
the mere existence of an injury, without additional evidence, cannot support a
finding of abuse. Here, CYS offered no evidence of Parents’ culpability. For all
of the foregoing reasons, we conclude that CYS failed to establish, with substantial
evidence, a prima facie case of abuse under Section 6381(d) of the Law, 23 Pa.
C.S. §6381(d). The Bureau, therefore, erred by shifting the burden of proof to
Parents to rebut a claim that they abused their child.
Conclusion
For all of the foregoing reasons, we reverse the Bureau’s decision and
direct the expunction of Parents’ indicated report from the ChildLine Registry and
deny Parents’ request for oral argument as moot.
________________________________________________
MARY HANNAH LEAVITT, President Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
T.K. and M.K., :
Petitioners :
: CASE SEALED
v. : No. 1029 C.D. 2016
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 8th day of May, 2017, the order of the Department of
Human Services, Bureau of Hearings and Appeals, dated June 2, 2016, in the
above-captioned matter is hereby REVERSED and T.K. and M.K.’s indicated
report is ORDERED to be removed from the ChildLine Registry. Petitioners’
application for oral argument is DENIED.
_________________________________________________
MARY HANNAH LEAVITT, President Judge | 01-03-2023 | 05-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/118061/ | 518 U.S. 727 (1996)
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al.
v.
FEDERAL COMMUNICATIONS COMMISSION et al.
No. 95-124.
United States Supreme Court.
Argued February 21, 1996.
Decided June 28, 1996.[*]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
*729 *729 *730 *731 Breyer, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, in which Stevens, O'Connor, Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with respect to Parts I, II, and V, in which Stevens, O'Connor, and Souter, JJ., joined, and an opinion with respect to Parts IV and VI, in which Stevens and Souter, JJ., joined. Stevens, J., post, p. 768, and Souter, J., post, p. 774, filed concurring opinions. O'Connor, J., filed an opinion concurring in part and dissenting in part, post, p. 779. Kennedy, J., filed an opinion concurring in part,concurring in the judgment in part, and dissenting in part, in which Ginsburg, J., joined, post, p. 780. Thomas, J.,filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 812.
I. Michael Greenberger argued the cause for petitioners. With him on the brief for the Alliance for Community Media et al., petitioners in No. 95-227, were James N. Horwood, Andrew Jay Schwartzman, Gigi Sohn, Elliot Mincberg, Lawrence Ottinger, Thomas J. Mikula, and Mark S. Raffman. Robert T. Perry and Brian D. Graifman filed briefs for the New York Citizens Committee for Responsible Media et al., petitioners in No. 95-227. Charles S. Sims, Steven R. Shapiro, and Marjorie Heins filed briefs for the American Civil Liberties Union et al., petitioners in No. 95-124.
Deputy Solicitor General Wallace argued the cause for respondents in both cases. With him on the briefs for the federal respondents were Solicitor General Days, Assistant Attorney General Hunger, James A. Feldman, Barbara L. Herwig, Jacob M. Lewis, William E. Kennard, and Christopher J. Wright. Daniel L. Brenner, Neal M. Goldberg, and *732 Diane B. Burstein filed a brief for the National Cable Television Association, Inc., respondent in both cases.[]
Justice Breyer announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, an opinion with respect to Parts I, II, and V, in which Justice Stevens, Justice O'Connor, and Justice Souter join, and an opinion with respect to Parts IV and VI, in which Justice Stevens and Justice Souter join.
These cases present First Amendment challenges to three statutory provisions that seek to regulate the broadcasting of "patently offensive" sex-related material on cable television. Cable Television Consumer Protection and Competition Act of 1992 (1992 Act or Act), 106 Stat. 1486, §§ 10(a), 10(b), and 10(c), 47 U. S. C. §§ 532(h), 532(j), and note following § 531. The provisions apply to programs broadcast over cable on what are known as "leased access channels" and "public, educational, or governmental channels." Two of the provisions essentially permit a cable system operator to prohibit the broadcasting of "programming" that the "operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner." 1992 *733 Act, § 10(a); see § 10(c). See also In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992: Indecent Programming and Other Types of Materials on Cable Access Channels, First Report and Order, 8 FCC Rcd 998 (1993) (First Report and Order); In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, Indecent Programming and Other Types of Materials on Cable Access Channels, Second Report and Order, 8 FCC Rcd 2638 (1993) (Second Report and Order). The remaining provision requires cable system operators to segregate certain "patently offensive" programming, to place it on a single channel, and to block that channel from viewer access unless the viewer requests access in advance and in writing. 1992 Act, § 10(b); 47 CFR § 76.701(g) (1995).
We conclude that the first provisionwhich permits the operator to decide whether or not to broadcast such programs on leased access channelsis consistent with the First Amendment. The second provision, which requires leased channel operators to segregate and to block that programming, and the third provision, applicable to public, educational, and governmental channels, violate the First Amendment, for they are not appropriately tailored to achieve the basic, legitimate objective of protecting children from exposure to "patently offensive" material.
I
Cable operators typically own a physical cable network used to convey programming over several dozen cable channels into subscribers' houses. Program sources vary from channel to channel. Most channels carry programming produced by independent firms, including "many national and regional cable programming networks that have emerged in recent years," Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 629 (1994), as well as some programming that the system operator itself (or an operator affiliate) *734 may provide. Other channels may simply retransmit through cable the signals of over-the-air broadcast stations. Ibid. Certain special channels here at issue, called "leased channels" and "public, educational, or governmental channels," carry programs provided by those to whom the law gives special cable system access rights.
A "leased channel" is a channel that federal law requires a cable system operator to reserve for commercial lease by unaffiliated third parties. About 10 to 15 percent of a cable system's channels would typically fall into this category. See 47 U. S. C. § 532(b). "[P]ublic, educational, or governmental channels" (which we shall call "public access" channels) are channels that, over the years, local governments have required cable system operators to set aside for public, educational, or governmental purposes as part of the consideration an operator gives in return for permission to install cables under city streets and to use public rights-of-way. See § 531; see also H. R. Rep. No. 98-934, p. 30 (1984) (authorizing local authorities to require creation of public access channels). Between 1984 and 1992, federal law (as had much pre-1984 state law, in respect to public access channels) prohibited cable system operators from exercising any editorial control over the content of any program broadcast over either leased or public access channels. See 47 U. S. C. §§ 531(e) (public access), 532(c)(2) (leased access).
In 1992, in an effort to control sexually explicit programming conveyed over access channels, Congress enacted the three provisions before us. The first two provisions relate to leased channels. The first says:
"This subsection shall permit a cable operator to enforce prospectively a written and published policy of prohibiting programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards." 1992 Act, § 10(a)(2), 106 Stat. 1486.
*735 The second provision, applicable only to leased channels, requires cable operators to segregate and to block similar programming if they decide to permit, rather than to prohibit, its broadcast. The provision tells the Federal Communications Commission (FCC or Commission) to promulgate regulations that will (a) require "programmers to inform cable operators if the program[ming] would be indecent as defined by Commission regulations"; (b) require "cable operators to place" such material "on a single channel"; and (c) require "cable operators to block such single channel unless the subscriber requests access to such channel in writing." 1992 Act, § 10(b)(1). The Commission issued regulations defining the material at issue in terms virtually identical to those we have already set forth, namely, as descriptions or depictions of "sexual or excretory activities or organs in a patently offensive manner" as measured by the cable viewing community. First Report and Order ¶¶ 33 38, at 1003-1004. The regulations require the cable operators to place this material on a single channel and to block it (say, by scrambling). They also require the system operator to provide access to the blocked channel "within 30 days" of a subscriber's written request for access and to reblock it within 30 days of a subscriber's request to do so. 47 CFR § 76.701(c) (1995).
The third provision is similar to the first provision, but applies only to public access channels. The relevant statutory section instructs the FCC to promulgate regulations that will
"enable a cable operator of a cable system to prohibit the use, on such system, of any channel capacity of any public, educational, or governmental access facility for any programming which contains obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct." 1992 Act, § 10(c), 106 Stat. 1486.
*736 The FCC, carrying out this statutory instruction, promulgated regulations defining "sexually explicit" in language almost identical to that in the statute's leased channel provision, namely, as descriptions or depictions of "sexual or excretory activities or organs in a patently offensive manner" as measured by the cable viewing community. See 47 CFR § 76.702 (1995) (incorporating definition from § 76.701(g)).
The upshot is, as we said at the beginning, that the federal law before us (the statute as implemented through regulations) now permits cable operators either to allow or to forbid the transmission of "patently offensive" sex-related materials over both leased and public access channels, and requires those operators, at a minimum, to segregate and to block transmission of that same material on leased channels.
Petitioners, claiming that the three statutory provisions, as implemented by the Commission regulations, violate the First Amendment, sought judicial review of the Commission's First Report and Order and its Second Report and Order in the United States Court of Appeals for the District of Columbia Circuit. A panel of that Circuit agreed with petitioners that the provisions violated the First Amendment. Alliance for Community Media v. FCC, 10 F. 3d 812 (1993). The entire Court of Appeals, however, heard the case en banc and reached the opposite conclusion. It held that all three statutory provisions (as implemented) were consistent with the First Amendment. Alliance for Community Media v. FCC, 56 F. 3d 105 (1995). Four of the eleven en banc appeals court judges dissented. Two of the dissenting judges concluded that all three provisions violated the First Amendment. Two others thought that either one, or two, but not all three of the provisions, violated the First Amendment. We granted certiorari to review the en banc court's First Amendment determinations.
*737 II
We turn initially to the provision that permits cable system operators to prohibit "patently offensive" (or "indecent") programming transmitted over leased access channels. 1992 Act, § 10(a). The Court of Appeals held that this provision did not violate the First Amendment because the First Amendment prohibits only "Congress" (and, through the Fourteenth Amendment, a "State"), not private individuals, from "abridging the freedom of speech." Although the court said that it found no "state action," 56 F. 3d, at 113, it could not have meant that phrase literally, for, of course, petitioners attack (as "abridg[ing] . . . speech") a congressional statutewhich, by definition, is an Act of "Congress." More likely, the court viewed this statute's "permissive" provisions as not themselves restricting speech, but, rather, as simply reaffirming the authority to pick and choose programming that a private entity, say, a private broadcaster, would have had in the absence of intervention by any federal, or local, governmental entity.
We recognize that the First Amendment, the terms of which apply to governmental action, ordinarily does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speechand this is so ordinarily even where those decisions take place within the framework of a regulatory regime such as broadcasting. Were that not so, courts might have to face the difficult, and potentially restrictive, practical task of deciding which, among any number of private parties involved in providing a program (for example, networks, station owners, program editors, and program producers), is the "speaker" whose rights may not be abridged, and who is the speechrestricting "censor." Furthermore, as this Court has held, the editorial function itself is an aspect of "speech," see Turner, 512 U. S., at 636, and a court's decision that a private party, say, the station owner, is a "censor," could itself interfere *738 with that private "censor's" freedom to speak as an editor. Thus, not surprisingly, this Court's First Amendment broadcasting cases have dealt with governmental efforts to restrict, not governmental efforts to provide or to maintain, a broadcaster's freedom to pick and to choose programming. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973) (striking restrictions on broadcaster's ability to refuse to carry political advertising); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (upholding restrictions on editorial authority); FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984) (striking restrictions); cf. Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530 (1980) (striking ban on political speech by public utility using its billing envelopes as a broadcast medium); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980) (striking restriction on public utility advertising).
Nonetheless, petitioners, while conceding that this is ordinarily so, point to circumstances that, in their view, make the analogy with private broadcasters inapposite and make these cases special ones, warranting a different constitutional result. As a practical matter, they say, cable system operators have considerably more power to "censor" program viewing than do broadcasters, for individual communities typically have only one cable system, linking broadcasters and other program providers with each community's many subscribers. See Turner, supra, at 633 (only one cable system inmost communities; nationally more than 60% of homes subscribe to cable, which then becomes the primary or sole source of video programming in the overwhelming majority of these homes). Moreover, concern about system operators' exercise of this considerable power originally led government local and federalto insist that operators provide leased and public access channels free of operator editorial control. H. R. Rep. No. 98-934, at 30-31. To permit system operators to supervise programming on leased access channels will *739 create the very private-censorship risk that this anticensorship effort sought to avoid. At the same time, petitioners add, cable systems have two relevant special characteristics. They are unusually involved with government, for they depend upon government permission and government facilities (streets, rights-of-way) to string the cable necessary for their services. And in respect to leased channels, their speech interests are relatively weak because they act less like editors, such as newspapers or television broadcasters, than like common carriers, such as telephone companies.
Under these circumstances, petitioners conclude, Congress' "permissive" law, in actuality, will "abridge" their free speech. And this Court should treat that law as a congressionally imposed, content-based, restriction unredeemed as a properly tailored effort to serve a "compelling interest." See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 118 (1991); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). They further analogize the provisions to constitutionally forbidden content-based restrictions upon speech taking place in "public forums" such as public streets, parks, or buildings dedicated to open speech and communication. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802 (1985); Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983); see also H. R. Rep. No. 98-934, supra, at 30 (identifying public access channels as the electronic equivalent of a "speaker's soap box"). And, finally, petitioners say that the legal standard the law contains (the "patently offensive" standard) is unconstitutionally vague. See, e. g., Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 (1968) (rejecting censorship ordinance as vague, even though it was intended to protect children).
Like petitioners, Justices Kennedy and Thomas would have us decide these cases simply by transferring and applying literally categorical standards this Court has developed in other contexts. For Justice Kennedy, leased access *740 channels are like a common carrier, cablecast is a protected medium, strict scrutiny applies, § 10(a) fails this test, and, therefore, § 10(a) is invalid. Post, at 796-801, 805-807. For Justice Thomas, the case is simple because the cable operator who owns the system over which access channels are broadcast, like a bookstore owner with respect to what it displays on the shelves, has a predominant First Amendment interest. Post, at 816-817, 822-824. Both categorical approaches suffer from the same flaws: They import law developed in very different contexts into a new and changing environment, and they lack the flexibility necessary to allow government to respond to very serious practical problems without sacrificing the free exchange of ideas the First Amendment is designed to protect.
The history of this Court's First Amendment jurisprudence, however, is one of continual development, as the Constitution's general command that "Congress shall make no law . . . abridging the freedom of speech, or of the press," has been applied to new circumstances requiring different adaptations of prior principles and precedents. The essence of that protection is that Congress may not regulate speech except in cases of extraordinary need and with the exercise of a degree of care that we have not elsewhere required.
See, e. g., Schenck v. United States, 249 U. S. 47, 51-52 (1919); Abrams v. United States, 250 U. S. 616, 627-628 (1919) (Holmes, J., dissenting); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943); Texas v. Johnson, 491 U. S. 397, 418-420 (1989). At the same time, our cases have not left Congress or the States powerless to address the most serious problems. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); FCC v. Pacifica Foundation, 438 U. S. 726 (1978).
Over the years, this Court has restated and refined these basic First Amendment principles, adopting them more particularly to the balance of competing interests and the special *741 circumstances of each field of application. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (allowing criticism of public officials to be regulated by civil libel only if the plaintiff shows actual malice); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (allowing greater regulation of speech harming individuals who are not public officials, but still requiring a negligence standard); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (employing highly flexible standard in response to the scarcity problem unique to overthe-air broadcast); Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 231-232 (1987) (requiring "compelling state interest" and a "narrowly drawn" means in context of differential taxation of media); Sable, supra, at 126, 131 (applying "compelling interest," "least restrictive means," and "narrowly tailored" requirements to indecent telephone communications); Turner, 512 U. S., at 641 (using "heightened scrutiny" to address content-neutral regulations of cable system broadcasts); Central Hudson Gas & Elec. Corp., 447 U. S., at 566 (restriction on commercial speech cannot be "more extensive than is necessary" to serve a "substantial" government interest).
This tradition teaches that the First Amendment embodies an overarching commitment to protect speech from government regulation through close judicial scrutiny, thereby enforcing the Constitution's constraints, but without imposing judicial formulas so rigid that they become a straitjacket that disables government from responding to serious problems. This Court, in different contexts, has consistently held that government may directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech. Justices Kennedy and Thomas would have us further declare which, among the many applications of the general approach that this Court has developed over the years, we are applying here. But no definitive choice among competing *742 analogies (broadcast, common carrier, bookstore) allows us to declare a rigid single standard, good for now and for all future media and purposes. That is not to say that we reject all the more specific formulations of the standardthey appropriately cover the vast majority of cases involving government regulation of speech. Rather, aware as we are of the changes taking place in the law, the technology, and the industrial structure related to telecommunications, see, e. g., Telecommunications Act of 1996, 110 Stat. 56; S. Rep. No. 104-23 (1995); H. R. Rep. No. 104-204 (1995), we believe it unwise and unnecessary definitively to pick one analogy or one specific set of words now. See Columbia Broadcasting, 412 U. S., at 102 ("The problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence"); Pacifica, supra, at 748 ("We have long recognized that each medium of expression presents special First Amendment problems"). We therefore think it premature to answer the broad questions that Justices Kennedy and Thomas raise in their efforts to find a definitive analogy, deciding, for example, the extent to which private property can be designated a public forum, compare post, at 791-793, 794 (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part), with post, at 826-829 (Thomas, J., concurring in judgment in part and dissenting in part); whether public access channels are a public forum, post, at 791-792 (opinion of Kennedy, J.); whether the Government's viewpoint neutral decision to limit a public forum is subject to the same scrutiny as a selective exclusion from a pre-existing public forum, post, at 799 803 (opinion of Kennedy, J.); whether exclusion from common carriage must for all purposes be treated like exclusion from a public forum, post, at 797-798 (opinion of Kennedy, J.); and whether the interests of the owners of communications *743 media always subordinate the interests of all other users of a medium, post, at 816-817 (opinion of Thomas, J.).
Rather than decide these issues, we can decide these cases more narrowly, by closely scrutinizing § 10(a) to assure that it properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech. The importance of the interest at stake hereprotecting children from exposure to patently offensive depictions of sex; the accommodation of the interests of programmers in maintaining access channels and of cable operators in editing the contents of their channels; the similarity of the problem and its solution to those at issue in Pacifica; and the flexibility inherent in an approach that permits private cable operators to make editorial decisions, lead us to conclude that § 10(a) is a sufficiently tailored response to an extraordinarily important problem.
First, the provision before us comes accompanied with an extremely important justification, one that this Court has often found compellingthe need to protect children from exposure to patently offensive sex-related material. Sable Communications, 492 U. S., at 126; Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); New York v. Ferber, 458 U. S. 747, 756-757 (1982).
Second, the provision arises in a very particular context congressional permission for cable operators to regulate programming that, but for a previous Act of Congress, would have had no path of access to cable channels free of an operator's control. The First Amendment interests involved are therefore complex, and require a balance between those interests served by the access requirements themselves (increasing the availability of avenues of expression to programmers who otherwise would not have them), H. R. Rep. No. 98-934, at 31-36, and the disadvantage to the First Amendment interests of cable operators and other programmers (those to whom the cable operator would have assigned *744 the channels devoted to access). See Turner, 512 U. S., at 635-637.
Third, the problem Congress addressed here is remarkably similar to the problem addressed by the FCC in Pacifica, and the balance Congress struck is commensurate with the balance we approved there. In Pacifica this Court considered a governmental ban of a radio broadcast of "indecent" materials, defined in part, like the provisions before us, to include
"`language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.' " 438 U. S., at 732 (quoting 56 F. C. C. 2d 94, 98 (1975)).
The Court found this ban constitutionally permissible primarily because "broadcasting is uniquely accessible to children" and children were likely listeners to the program there at issuean afternoon radio broadcast. 438 U. S., at 749 750. In addition, the Court wrote, "the broadcast media have established a uniquely pervasive presence in the lives of all Americans," id., at 748, "[p]atently offensive, indecent material . . . confronts the citizen, not only in public, but also in the privacy of the home," generally without sufficient prior warning to allow the recipient to avert his or her eyes or ears, ibid.; and "[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs" to hear similar performances, id., at 750, n. 28.
All these factors are present here. Cable television broadcasting, including access channel broadcasting, is as "accessible to children" as over-the-air broadcasting, if not more so. See Heeter, Greenberg, Baldwin, Paugh, Srigley, & Atkin, Parental Influences on Viewing Style, in Cableviewing 140 (C. Heeter & B. Greenberg eds. 1988) (children spend more time watching television and view more channels *745 than do their parents, whether their household subscribes to cable or receives television over the air). Cable television systems, including access channels, "have established a uniquely pervasive presence in the lives of all Americans." Pacifica, supra, at 748. See Jost, The Future of Television, 4 The CQ Researcher 1131, 1146 (Dec. 23, 1994) (63% of American homes subscribe to cable); Greenberg, Heeter, D'Alessio, & Sipes, Cable and Noncable Viewing Style Comparisons, in Cableviewing, supra, at 207 (cable households spend more of their day, on average, watching television, and will watch more channels, than households without cable service). "Patently offensive" material from these stations can "confron[t] the citizen" in the "privacy of the home," Pacifica, supra, at 748, with little or no prior warning. Cableviewing, supra, at 217-218 (while cable subscribers tend to use guides more than do broadcast viewers, there was no difference among these groups in the amount of viewing that was planned, and, in fact, cable subscribers tended to sample more channels before settling on a program, thereby making them more, not less, susceptible to random exposure to unwanted materials). There is nothing to stop "adults who feel the need" from finding similar programming elsewhere, say, on tape or in theaters. In fact, the power of cable systems to control home program viewing is not absolute. Over-the-air broadcasting and direct broadcast satellites already provide alternative ways for programmers to reach the home and are likely to do so to a greater extent in the near future. See generally Telecommunications Act of 1996, § 201, 110 Stat. 107 (advanced television services), § 205 (direct broadcast satellite), § 302 (video programming by telephone companies), and § 304 (availability of navigation devices to enhance multichannel programming); L. Johnson, Toward Competition in Cable Television (1994).
Fourth, the permissive nature of § 10(a) means that it likely restricts speech less than, not more than, the ban at issue in Pacifica. The provision removes a restriction as to *746 some speakersnamely, cable operators. See supra, at 743. Moreover, although the provision does create a risk that a program will not appear, that risk is not the same as the certainty that accompanies a governmental ban. In fact, a glance at the programming that cable operators allow on their own (nonaccess) channels suggests that this distinction is not theoretical, but real. See App. 393 (regular channel broadcast of Playboy and "Real Sex" programming). Finally, the provision's permissive nature brings with it a flexibility that allows cable operators, for example, not to ban broadcasts, but, say, to rearrange broadcast times, better to fit the desires of adult audiences while lessening the risks of harm to children. See First Report and Order ¶ 31, at 1003 (interpreting the Act's provisions to allow cable operators broad discretion over what to do with offensive materials). In all these respects, the permissive nature of the approach taken by Congress renders this measure appropriate as a means of achieving the underlying purpose of protecting children.
Of course, cable system operators may not always rearrange or reschedule patently offensive programming. Sometimes, as petitioners fear, they may ban the programming instead. But the same may be said of Pacifica' s ban. In practice, the FCC's daytime broadcast ban could have become a total ban, depending upon how private operators (programmers, station owners, networks) responded to it. They would have had to decide whether to reschedule the daytime show for nighttime broadcast in light of comparative audience demand and a host of other practical factors that similarly would determine the practical outcomes of the provisions before us. The upshot, in both cases, must be uncertainty as to practical consequencesof the governmental ban in the one case and of the permission in the other. That common uncertainty makes it difficult to say the provision here is, in any respect, more restrictive than the order in *747 Pacifica. At the same time, in the respects we discussed, the provision is significantly less restrictive.
The existence of this complex balance of interests persuades us that the permissive nature of the provision, coupled with its viewpoint-neutral application, is a constitutionally permissible way to protect children from the type of sexual material that concerned Congress, while accommodating both the First Amendment interests served by the access requirements and those served in restoring to cable operators a degree of the editorial control that Congress removed in 1984.
Our basic disagreement with Justice Kennedy is narrow. Like him, we believe that we must scrutinize § 10(a) with the greatest care. Like Justices Kennedy and Thomas, we believe that the interest of protecting children that § 10(a) purports to serve is compelling. But we part company with Justice Kennedy on two issues. First, Justice Kennedy's focus on categorical analysis forces him to disregard the cable system operators' interests. Post, at 805-806. We, on the other hand, recognize that in the context of cable broadcast that involves an access requirement (here, its partial removal), and unlike in most cases where we have explicitly required "narrow tailoring," the expressive interests of cable operators do play a legitimate role. Cf. Turner, 512 U. S., at 636-637. While we cannot agree with Justice Thomas that everything turns on the rights of the cable owner, see post, at 823-824, we also cannot agree with Justice Kennedy that we must ignore the expressive interests of cable operators altogether. Second, Justice Kennedy's application of a very strict "narrow tailoring" test depends upon an analogy with a category ("the public forum cases"), which has been distilled over time from the similarities of many cases. Rather than seeking an analogy to a category of cases, however, we have looked to the cases themselves. And, as we have said, we found that Pacifica provides the *748 closest analogy and lends considerable support to our conclusion.
Petitioners and Justice Kennedy, see post, at 797-798, 803-804, argue that the opposite result is required by two other cases: Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989), a case in which this Court found unconstitutional a statute that banned "indecent" telephone messages, and Turner, in which this Court stated that cable broadcast receives full First Amendment protection. See 512 U. S., at 637-641. The ban at issue in Sable, however, was not only a total governmentally imposed ban on a category of communications, but also involved a communications medium, telephone service, that was significantly less likely to expose children to the banned material, was less intrusive, and allowed for significantly more control over what comes into the home than either broadcasting or the cable transmission system before us. See 492 U. S., at 128. The Court's distinction in Turner, furthermore, between cable and broadcast television, relied on the inapplicability of the spectrum scarcity problem to cable. See 512 U. S., at 637-641. While that distinction was relevant in Turner to the justification for structural regulations at issue there (the "must carry" rules), it has little to do with a case that involves the effects of television viewing on children. Those effects are the result of how parents and children view television programming, and how pervasive and intrusive that programming is. In that respect, cable and broadcast television differ little, if at all. See supra, at 744-745. Justice Kennedy would have us decide that all common carriage exclusions are subject to the highest scrutiny, see post, at 796-799, and then decide these cases on the basis of categories that provide imprecise analogies rather than on the basis of a more contextual assessment, consistent with our First Amendment tradition, of assessing whether Congress carefully and appropriately addressed a serious problem.
*749 Petitioners also rely on this Court's "public forum" cases. They point to Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S., at 45, a case in which this Court said that "public forums" are "places" that the government "has opened for use by the public as a place for expressive activity," or which "by long tradition . . . have been devoted to assembly and debate." Ibid. See also Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S., at 801 (assuming public forums may include "private property dedicated to public use"). They add that the Government cannot "enforce a content-based exclusion" from a public forum unless "necessary to serve a compelling state interest" and "narrowly drawn." Perry, supra, at 45. They further argue that the statute's permissive provisions unjustifiably exclude material, on the basis of content, from the "public forum" that the Government has created in the form of access channels. Justice Kennedy adds by analogy that the decision to exclude certain content from common carriage is similarly subject to strict scrutiny, and here does not satisfy that standard of review. See post, at 796-799, 805-807.
For three reasons, however, it is unnecessary, indeed, unwise, for us definitively to decide whether or how to apply the public forum doctrine to leased access channels. First, while it may be that content-based exclusions from the right to use common carriers could violate the First Amendment, see post, at 796-800 (opinion of Kennedy, J.),it is not at all clear that the public forum doctrine should be imported wholesale into the area of common carriage regulation. As discussed above, we are wary of the notion that a partial analogy in one context, for which we have developed doctrines, can compel a full range of decisions in such a new and changing area. See supra, at 739-743. Second, it is plain from this Court's cases that a public forum "may be created for a limited purpose." Perry, supra, at 46, n. 7; see also Cornelius, supra, at 802 ("[T]he government `is not required to indefinitely retain the open character of the facility' ") *750 (quoting Perry, supra, at 46). Our cases have not yet determined, however, that government's decision to dedicate a public forum to one type of content or another is necessarily subject to the highest level of scrutiny. Must a local government, for example, show a compelling state interest if it builds a band shell in the park and dedicates it solely to classical music (but not to jazz)? The answer is not obvious. Cf. Perry, supra, at 46, n. 7. But, at a minimum, these cases do not require us to answer it. Finally, and most important, the effects of Congress' decision on the interests of programmers, viewers, cable operators, and children are the same, whether we characterize Congress' decision as one that limits access to a public forum, discriminates in common carriage, or constrains speech because of its content. If we consider this particular limitation of indecent television programming acceptable as a constraint on speech, we must no less accept the limitation it places on access to the claimed public forum or on use of a common carrier.
Consequently, if one wishes to view the permissive provisions before us through a "public forum" lens, one should view those provisions as limiting the otherwise totally open nature of the forum that leased access channels provide for communication of other than patently offensive sexual materialtaking account of the fact that the limitation was imposed in light of experience gained from maintaining a totally open "forum." One must still ask whether the First Amendment forbids the limitation. But unless a label alone were to make a critical First Amendment difference (and we think here it does not), the features of these cases that we have already discussedthe Government's interest in protecting children, the "permissive" aspect of the statute, and the nature of the mediumsufficiently justify the "limitation" on the availability of this forum.
Finally, petitioners argue that the definition of the materials subject to the challenged provisions is too vague, thereby granting cable system operators too broad a programscreening *751 authority. Cf. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498 (1982) (citing Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972)) (vague laws may lead to arbitrary enforcement); Dombrowski v. Pfister, 380 U. S. 479, 486-487 (1965) (uncertainty may perniciously chill speech). That definition, however, uses language similar to language previously used by this Court for roughly similar purposes.
The provisions, as augmented by FCC regulations, permit cable system operators to prohibit
"programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards." 1992 Act, § 10(a), 106 Stat. 1486.
See also 47 CFR § 76.702 (1995) (reading approximately the same definition into § 10(c)). This language is similar to language adopted by this Court in Miller v. California, 413 U. S. 15, 24 (1973), as a "guidelin[e]" for identifying materials that States may constitutionally regulate as obscene. In Miller, the Court defined obscene sexual material (material that lacks First Amendment protection) in terms of
"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently of- fensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Ibid. (emphasis added; internal quotation marks omitted).
The language, while vague, attempts to identify the category of materials that Justice Stewart thought could be described only in terms of "I know it when I see it." Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (concurring opinion). In *752 § 10(a) and the FCC regulations, without Miller `s qualifiers, the language would seem to refer to material that would be offensive enough to fall within that category but for the fact that the material also has "serious literary, artistic, political or scientific value" or nonprurient purposes.
This history suggests that the statute's language aims at the kind of programming to which its sponsors referred pictures of oral sex, bestiality, and rape, see 138 Cong. Rec. 981, 985 (1992) (statement of Sen. Helms)and not at scientific or educational programs (at least unless done with a highly unusual lack of concern for viewer reaction). Moreover, as this Court pointed out in Pacifica, what is "patently offensive" depends on context (the kind of program on which it appears), degree (not "an occasional expletive"), and time of broadcast (a "pig" is offensive in "the parlor" but not the "barnyard"). 438 U. S., at 748, 750. Programming at 2 o'clock in the morning is seen by a basically adult audience and the "patently offensive" must be defined with that fact in mind.
Further, the statute protects against overly broad application of its standards insofar as it permits cable system operators to screen programs only pursuant to a "written and published policy." 1992 Act, § 10(a), 106 Stat. 1486. A cable system operator would find it difficult to show that a leased access program prohibition reflects a rational "policy" if the operator permits similarly "offensive" programming to run elsewhere on its system at comparable times or in comparable ways. We concede that the statute's protection against overly broad application is somewhat diminished by the fact that it permits a cable operator to ban programming that the operator "reasonably believes " is patently offensive. Ibid. (emphasis added). But the "reasonabl[e] belie[f]" qualifier here, as elsewhere in the law, seems designed not to expand the category at which the law aims, but, rather, to provide a legal excuse, for (at least) one honest mistake, from liability that might otherwise attach. Cf. Waters v. Churchill, 511 *753 U. S. 661, 682 (1994) (Souter, J., concurring) (public employer's reasonable belief that employee engaged in unprotected speech excuses liability); United States v. United States Gypsum Co., 438 U. S. 422, 453-455, and n. 29 (1978) ("`meeting competition' " defense in antitrust based on reasonable belief in the necessity to meet competition); Pierson v. Ray, 386 U. S. 547, 555-557 (1967) (police officer has defense to constitutional claim, as did officers of the peace at common law in actions for false arrest, when the officer reasonably believed the statute whose violation precipitated the arrest was valid). And the contours of the shieldreasonableness constrain the discretion of the cable operator as much as they protect it. If,for example, a court had already found substantially similar programming to be beyond the pale of "patently offensive" material, or if a local authority overseeing the local public, governmental, or educational channels had indicated that materials of the type that the cable operator decides to ban were not "patently offensive" in that community, then the cable operator would be hard pressed to claim that the exclusion of the material was "reasonable." We conclude that the statute is not impermissibly vague.
For the reasons discussed, we conclude that § 10(a) is consistent with the First Amendment.
III
The statute's second provision significantly differs from the first, for it does not simply permit, but rather requires, cable system operators to restrict speechby segregating and blocking "patently offensive" sex-related material appearing on leased channels (but not on other channels). 1992 Act, § 10(b). In particular, as previously mentioned, see supra, at 735, this provision and its implementing regulations require cable system operators to place "patently offensive" leased channel programming on a separate channel; to block that channel; to unblock the channel within 30 days of a subscriber's written request for access; and to *754 reblock the channel within 30 days of a subscriber's request for reblocking. 1992 Act, § 10(b); 47 CFR §§ 76.701(b), (c), (g) (1995). Also, leased channel programmers must notify cable operators of an intended "patently offensive" broadcast up to 30 days before its scheduled broadcast date. §§ 76.701(d), (g).
These requirements have obvious restrictive effects. The several up-to-30-day delays, along with single channel segregation, mean that a subscriber cannot decide to watch a single program without considerable advance planning and without letting the "patently offensive" channel in its entirety invade his household for days, perhaps weeks, at a time. These restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through "surfing," minute by minute); to viewers who would like occasionally to watch a few, but not many, of the programs on the "patently offensive" channel; and to viewers who simply tend to judge a program's value through channel reputation, i. e. , by the company it keeps. Moreover, the "written notice" requirement will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the "patently offensive" channel. Cf. Lamont v. Postmaster General, 381 U. S. 301, 307 (1965) (finding unconstitutional a requirement that recipients of Communist literature notify the Post Office that they wish to receive it). Further, the added costs and burdens that these requirements impose upon a cable system operator may encourage that operator to ban programming that the operator would otherwise permit to run, even if only late at night.
The Government argues that, despite these adverse consequences, the "segregate and block" requirements are lawful because they are "the least restrictive means of realizing" a "`compelling interest,' " namely, "`protecting the physical and psychological well-being of minors.' " See Brief for Federal Respondents 11 (quoting Sable, 492 U. S., at 126). *755 It adds that, in any event, the First Amendment, as applied in Pacifica, "does not require that regulations of indecency on television be subject to the strictest" First Amendment "standard of review." Brief for Federal Respondents 11.
We agree with the Government that protection of children is a "compelling interest." See supra, at 743. But we do not agree that the "segregate and block" requirements properly accommodate the speech restrictions they impose and the legitimate objective they seek to attain. Nor need we here determine whether, or the extent to which, Pacifica does, or does not, impose some lesser standard of review where indecent speech is at issue, compare 438 U. S., at 745 748 (opinion of Stevens, J.) (indecent materials enjoy lesser First Amendment protection), with id., at 761-762 (Powell, J., concurring in part and concurring in judgment) (refusing to accept a lesser standard for nonobscene, indecent material). That is because once one examines this governmental restriction, it becomes apparent that, not only is it not a "least restrictive alternative" and is not "narrowly tailored" to meet its legitimate objective, it also seems considerably "more extensive than necessary." That is to say, it fails to satisfy this Court's formulations of the First Amendment's "strictest," as well as its somewhat less "strict," requirements. See, e. g., Sable, 492 U. S., at 126 ("compelling interest" and "least restrictive means" requirements applied to indecent telephone communications); id., at 131 (requiring "narrowly tailored" law); Turner, 512 U. S., at 641 (using "heightened scrutiny" to address content-neutral structural regulations of cable systems); id., at 662 (quoting "`no greater than . . . essential' " language from United States v. O'Brien, 391 U. S. 367, 377 (1968), as an example of "heightened," less-than-strictest, First Amendment scrutiny); Central Hudson , 447 U. S., at 566 (restriction on commercial speech cannot be "more extensive than is necessary"); Florida Bar v. Went For It, Inc., 515 U. S. 618, 624 (1995) (restriction must be "narrowly drawn"); id., at 632 (there must be a *756 "reasonable" "fit" with the objective that legitimates speech restriction). The provision before us does not reveal the caution and care that the standards underlying these various verbal formulas impose upon laws that seek to reconcile the critically important interest in protecting free speech with very important, or even compelling, interests that sometimes warrant restrictions.
Several circumstances lead us to this conclusion. For one thing, the law, as recently amended, uses other means to protect children from similar "patently offensive" material broadcast on un leased cable channels, i. e., broadcast over any of a system's numerous ordinary, or public access, channels. The law, as recently amended, requires cable operators to "scramble or . . . block" such programming on any (unleased) channel "primarily dedicated to sexually-oriented programming." Telecommunications Act of 1996, § 505, 110 Stat. 136 (emphasis added). In addition, cable operators must honor a subscriber's request to block any, or all, programs on any channel to which he or she does not wish to subscribe. § 504, ibid. And manufacturers, in the future, will have to make television sets with a so-called "V-chip" a device that will be able automatically to identify and block sexually explicit or violent programs. § 551, id., at 139-142.
Although we cannot, and do not, decide whether the new provisions are themselves lawful (a matter not before us), we note that they are significantly less restrictive than the provision here at issue. They do not force the viewer to receive (for days or weeks at a time) all "patently offensive" programming or none; they will not lead the viewer automatically to judge the few by the reputation of the many; and they will not automatically place the occasional viewer's name on a special list. They therefore inevitably lead us to ask why, if they adequately protect children from "patently offensive" material broadcast on ordinary channels, they would not offer adequate protection from similar leased channel broadcasts as well? Alternatively, if these provisions *757 do not adequately protect children from "patently offensive" material broadcast on ordinary channels, how could one justify more severe leased channel restrictions when (given ordinary channel programming) they would yield so little additional protection for children?
The record does not answer these questions. It does not explain why, under the new Act, blocking alonewithout written access requestsadequately protects children from exposure to regular sex-dedicated channels, but cannot adequately protect those children from programming on similarly sex-dedicated channels that are leased. It does not explain why a simple subscriber blocking request system, perhaps a phone-call-based system, would adequately protect children from "patently offensive" material broadcast on ordinary non-sex-dedicated channels (i. e., almost all channels) but a far more restrictive segregate/block/written-access system is needed to protect children from similar broadcasts on what (in the absence of the segregation requirement) would be non-sex-dedicated channels that are leased. Nor is there any indication Congress thought the new ordinary channel protections less than adequate.
The answers to the questions are not obvious. We have no empirical reason to believe, for example, that sexdedicated channels are all (or mostly) leased channels, or that "patently offensive" programming on non-sex-dedicated channels is found only (or mostly) on leased channels. To the contrary, the parties' briefs (and major city television guides) provide examples of what seems likely to be such programming broadcast over both kinds of channels.
We recognize, as the Government properly points out, that Congress need not deal with every problem at once. Cf. Semler v. Oregon Bd. of Dental Examiners, 294 U. S. 608, 610 (1935) (the legislature need not "strike at all evils at the same time"); and Congress also must have a degree of leeway in tailoring means to ends. Columbia Broadcasting, 412 U. S., at 102-103. But in light of the 1996 statute, it seems *758 fair to say that Congress now has tried to deal with most of the problem. At this point, we can take Congress' different, and significantly less restrictive, treatment of a highly similar problem at least as some indication that more restrictive means are not "essential" (or will not prove very helpful). Cf. Boos v. Barry, 485 U. S. 312, 329 (1988) (existence of a less restrictive statute suggested that a challenged ordinance, aimed at the same problem, was overly restrictive).
The record's description and discussion of a different alternativethe "lockbox"leads, through a different route, to a similar conclusion. The Cable Communications Policy Act of 1984 required cable operators to provide
"upon the request of a subscriber, a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by the subscriber." 47 U. S. C. § 544(d)(2).
This devicethe "lockbox"would help protect children by permitting their parents to "lock out" those programs or channels that they did not want their children to see. See FCC 85-179, ¶ 132, 50 Fed. Reg. 18637, 18655 (1985) ("[T]he provision for lockboxes largely disposes of issues involving the Commission's standard for indecency"). The FCC, in upholding the "segregate and block" provisions, said that lockboxes protected children (including, say, children with inattentive parents) less effectively than those provisions. See First Report and Order ¶¶ 14-15, 8 FCC Rcd, at 1000. But it is important to understand why that is so.
The Government sets forth the reasons as follows:
"In the case of lockboxes, parents would have to discover that such devices exist; find out that their cable operators offer them for sale; spend the time and money to buy one; learn how to program the lockbox to block undesired programs; and, finally, exercise sufficient vigilance to ensure that they have, indeed, locked out *759 whatever indecent programming they do not wish their children to view." Brief for Federal Respondents 37.
We assume the accuracy of this statement. But the reasons do not show need for a provision as restrictive as the one before us. Rather, they suggest a set of provisions very much like those that Congress placed in the 1996 Act.
No provision, we concede, short of an absolute ban, can offer certain protection against assault by a determined child. We have not, however, generally allowed this fact alone to justify "` "reduc[ing] the adult population . . . to . . . only what is fit for children."` " Sable, 492 U. S., at 128 (quoting Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73 (1983), in turn quoting Butler v. Michigan, 352 U. S. 380, 383 (1957)); see Sable, supra, at 130, and n. 10. But, leaving that problem aside, the Government's list of practical difficulties would seem to call, not for "segregate and block" requirements, but, rather, for informational requirements, for a simple coding system, for readily available blocking equipment (perhaps accessible by telephone), for imposing cost burdens upon system operators (who may spread them through subscription fees); or perhaps even for a system that requires lockbox defaults to be set to block certain channels (say, sex-dedicated channels). These kinds of requirements resemble those that Congress has recently imposed upon all but leased channels. For that reason, the "lockbox" description and the discussion of its frailties reinforces our conclusion that the leased channel provision is overly restrictive when measured against the benefits it is likely to achieve. (We add that the record's discussion of the "lockbox" does not explain why the law now treats leased channels more restrictively than ordinary channels.)
There may, of course, be other explanations. Congress may simply not have bothered to change the leased channel provisions when it introduced a new system for other channels. But responses of this sort, like guesses about the comparative seriousness of the problem, are not legally adequate. *760 In other cases, where, as here, the record before Congress or before an agency provides no convincing explanation, this Court has not been willing to stretch the limits of the plausible, to create hypothetical nonobvious explanations in order to justify laws that impose significant restrictions upon speech. See, e. g., Sable, supra, at 130 ("[T]he congressional record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be"); Simon & Schuster , 502 U. S., at 120; Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575, 585-586 (1983); Arkansas Writers' Project, 481 U. S., at 231-232.
Consequently, we cannot find that the "segregate and block" restrictions on speech are a narrowly, or reasonably, tailored effort to protect children. Rather, they are overly restrictive, "sacrific[ing]" important First Amendment interests for too "speculative a gain." Columbia Broadcasting, 412 U. S., at 127; see League of Women Voters, 468 U. S., at 397. For that reason they are not consistent with the First Amendment.
IV
The statute's third provision, as implemented by FCC regulation, is similar to its first provision, in that it too permits a cable operator to prevent transmission of "patently offensive" programming, in this case on public access channels. 1992 Act, § 10(c); 47 CFR § 76.702 (1995). But there are four important differences.
The first is the historical background. As Justice Kennedy points out, see post, at 788-790, cable operators have traditionally agreed to reserve channel capacity for public, governmental, and educational channels as part of the consideration they give municipalities that award them cable franchises. See H. R. Rep. No. 98-934, at 30. In the terms preferred by Justice Thomas, see post, at 827-828, the requirement to reserve capacity for public access channels is similar to the reservation of a public easement, or a dedication *761 of land for streets and parks, as part of a municipality's approval of a subdivision of land. Cf. post, at 793-794 (opinion of Kennedy, J.). Significantly, these are channels over which cable operators have not historically exercised editorial control. H. R. Rep. No. 98-934, supra, at 30. Unlike § 10(a) therefore, § 10(c) does not restore to cable operators editorial rights that they once had, and the countervailing First Amendment interest is nonexistent, or at least much diminished. See also post, at 792-793 (opinion of Kennedy, J.).
The second difference is the institutional background that has developed as a result of the historical difference. When a "leased channel" is made available by the operator to a private lessee, the lessee has total control of programming during the leased time slot. See 47 U. S. C. § 532(c)(2). Public access channels, on the other hand, are normally subject to complex supervisory systems of various sorts, often with both public and private elements. See § 531(b) (franchising authorities "may require rules and procedures for the use of the [public access] channel capacity"). Municipalities generally provide in their cable franchising agreements for an access channel manager, who is most commonly a nonprofit organization, but may also be the municipality, or, in some instances, the cable system owner. See D. Brenner, M. Price, & M. Myerson, Cable Television and Other Nonbroadcast Video ¶ 6.04[7] (1993); P. Aufderheide, Public Access Cable Programming, Controversial Speech, and Free Expression (1992) (hereinafter Aufderheide), reprinted in App. 61, 63 (surveying 61 communities; the access manager was: a nonprofit organization in 41, a local government official in 12, the cable operator in 5, and an unidentified entity in 3); D. Agosta, C. Rogoff, & A. Norman, The Participate Report: A Case Study of Public Access Cable Television in New York State 28 (1990) (hereinafter Agosta), attached as Exh. K to Joint Comments for the Alliance for Community Media et al., filed with the FCC under MM Docket No. 92 *762 258 (materials so filed hereinafter FCC Record) ("In 88% [of New York public access systems] access channels were programmed jointly between the cable operator and another institution such as a university, library, or non-profit access organization"); id., at 28-32, FCC Record; Comments of National Cable Television Association Inc., at 14, FCC Record ("Operators often have no involvement in PEG channels that are run by local access organizations"). Access channel activity and management are partly financed with public fundsthrough franchise fees or other payments pursuant to the franchise agreement, or from general municipal funds, see Brenner, Price, & Myerson, supra, ¶ 6.04[3][c]; Aufderheide, App. 59-60and are commonly subject to supervision by a local supervisory board. See, e. g., D. C. Code Ann. § 43-1829 (1990 and Supp. 1996); Lynchburg City Code § 12.1 44(d)(2) (1988).
This system of public, private, and mixed nonprofit elements, through its supervising boards and nonprofit or governmental access managers, can set programming policy and approve or disapprove particular programming services. And this system can police that policy by, for example, requiring indemnification by programmers, certification of compliance with local standards, time segregation, adult content advisories, or even by prescreening individual programs. See Second Report and Order ¶ 26, 8 FCC Rcd, at 2642 ("[F]rom the comments received, it appears that a number of access organizations already have in place procedures that require certification statements [of compliance with local standards], or their equivalent, from access programmers"); Comments of Boston Community Access and Programming Foundation, App. 163-164; Aufderheide, id., at 69-71; Comments of Metropolitan Area Communications Commission 2, FCC Record; Reply Comments of Waycross Community Television 4-6, FCC Record; Reply Comments of Columbus Community Cable Access, Inc., App. 329; Reply Comments of City of St. Paul, id., at 318, 325; Reply Comments of Erik *763 Mollberg, Public Access Coordinator, Ft. Wayne, Ind., 3, FCC Record; Comments of Defiance Community Television 3, FCC Record; Comments of Nutmeg Public Access Television, Inc., 3-4, FCC Record. Whether these locally accountable bodies prescreen programming, promulgate rules for the use of public access channels, or are merely available to respond when problems arise, the upshot is the same: There is a locally accountable body capable of addressing the problem, should it arise, of patently offensive programming broadcast to children, making it unlikely that many children will in fact be exposed to programming considered patently offensive in that community. See 56 F. 3d, at 127-128; Second Report and Order ¶ 26, 8 FCC Rcd 2642.
Third, the existence of a system aimed at encouraging and securing programming that the community considers valuable strongly suggests that a "cable operator's veto" is less likely necessary to achieve the statute's basic objective, protecting children, than a similar veto in the context of leased channels. Of course, the system of access managers and supervising boards can make mistakes, which the operator might in some cases correct with its veto power. Balanced against this potential benefit, however, is the risk that the veto itself may be mistaken; and its use, or threatened use, could prevent the presentation of programming, that, though borderline, is not "patently offensive" to its targeted audience. See Aufderheide, App. 64-66 (describing the programs that were considered borderline by access managers, including sex education, health education, broadcasts of politically marginal groups, and various artistic experiments). And this latter threat must bulk large within a system that already has publicly accountable systems for maintaining responsible programs.
Finally, our examination of the legislative history and the record before us is consistent with what common sense suggests, namely, that the public/nonprofit programming control systems now in place would normally avoid, minimize, or *764 eliminate any child-related problems concerning "patently offensive" programming. We have found anecdotal references to what seem isolated instances of potentially indecent programming, some of which may well have occurred on leased, not public access, channels. See 138 Cong. Rec. 984, 990 (1992) (statement of Sen. Wirth) (mentioning "abuses" on Time Warner's New York City channel); but see Comments of Manhattan Neighborhood Network, App. 235, 238 (New York access manager noting that leased, not public access, channels regularly carry sexually explicit programming in New York, and that no commercial programs or advertising are allowed on public access channels); Brief for Time Warner Cable as Amicus Curiae 2-3 (indicating that relevant "abuses" likely occurred on leased channels). See also 138 Cong. Rec., at 989 (statement of Sen. Fowler) (describing solicitation of prostitution); id., at 985 (statement of Sen. Helms) (identifying newspaper headline referring to mayor's protest of a "strip act"); 56 F. 3d, at 117-118 (recounting comments submitted to the FCC describing three complaints of offensive programming); Letter from Mayor of Rancho Palos Verdes, FCC Record; Resolution of San Antonio City Council, No. 92-49-40, FCC Record.
But these few examples do not necessarily indicate a significant nationwide pattern. See 56 F. 3d, at 127-128 (public access channels "did not pose dangers on the order of magnitude of those identified on leased access channels," and "local franchising authorities could respond" to such problems "by issuing `rules and procedures' or other `requirements' "). The Commission itself did not report any examples of "indecent" programs on public access channels. See Second Report and Order, 8 FCC Rcd, at 2638; see also Comments of Boston Community Access and Programming Foundation, App. 162-163 (noting that the FCC's Notice of Proposed Rulemaking, 7 FCC Rcd 7709 (1992), did not identify any "inappropriate" programming that actually exists on public *765 access channels). Moreover, comments submitted to the FCC undermine any suggestion that prior to 1992 there were significant problems of indecent programming on public access channels. See Agosta 10, 28, FCC Record (surveying 76 public access systems in New York over two years, and finding "only two examples of controversial programming, and both had been settled by the producers and the access channel"); Reply Comments of Staten Island Community Television 2, FCC Record ("Our access channels have been on the air since 1986 without a single incident which would be covered by Section 10 of the new law"); Reply Comments of Waycross Community Television, at 2, FCC Record ("[I]ndecent and obscene programs . . . [have] never been cablecast through Waycross Community Television during our entire ten year programming history"); Reply Comments of Cambridge Community Television, App. 314 ("In Cambridge less than one hour out of 15,000 hours of programming CCTV has run in the past five year[s] may have been affected by the Act"); ibid. ("CCTV feels that there simply is not a problem which needs to be fixed"); Reply Comments of Columbus Community Cable Access, Inc., id., at 329 ("ACTV is unaware of any actions taken by the cable operators under [a local law authorizing them to prohibit "legally obscene matter"] within the last 10 years"); Reply Comments of Cincinnati Community Video, Inc., id., at 316 ("[I]n 10 years of access operations with over 30,000 access programs cablecast not a single obscenity violation has ever occurred"); Comments of Defiance Community Television, at 2-3, FCC Record (in eight years of operation, "there has never been a serious problem with the content of programming on the channel").
At most, we have found borderline examples as to which people's judgment may differ, perhaps acceptable in some communities but not others, of the type that petitioners fear the law might prohibit. See, e. g., Aufderheide, App. 64-66; Brief for Petitioners in No. 95-124, p. 7 (describing depiction *766 of a self-help gynecological examination); Comments of Time Warner Entertainment Co., App. 252 (describing an Austin, Tex., program that included "nude scenes from a movie," and an Indianapolis, Ind., "`safe sex' " program). It is difficult to see how such borderline examples could show a compelling need, nationally, to protect children from significantly harmful materials. Compare 138 Cong. Rec., at 985 (statement of Sen. Helms) (justifying regulation of leased access channels in terms of programming that depicts "bestiality" and "rape"). In the absence of a factual basis substantiating the harm and the efficacy of its proposed cure, we cannot assume that the harm exists or that the regulation redresses it. See Turner, 512 U. S., at 664-665.
The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships among local community and nonprofit supervising boards and access managers, which relationships are established through municipal law, regulation, and contract. In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear. At the same time, given present supervisory mechanisms, the need for this particular provision, aimed directly at public access channels, is not obvious. Having carefully reviewed the legislative history of the Act, the proceedings before the FCC, the record below, and the submissions of the parties and amici here, we conclude that the Government cannot sustain its burden of showing that § 10(c) is necessary to protect children or that it is appropriately tailored to secure that end. See, e. g., Columbia Broadcasting, 412 U. S., at 127; League of Women Voters, 468 U. S., at 398-399; Sable, 492 U. S., at 126. Consequently, we find that this third provision violates the First Amendment.
*767 V
Finally, we must ask whether § 10(a) is severable from the two other provisions. The question is one of legislative intent: Would Congress still "have passed" § 10(a) "had it known" that the remaining "provision[s were] invalid"? Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 506 (1985). If so, we need not invalidate all three provisions. New York v. Ferber, 458 U. S., at 769, n. 24 (citing United States v. Thirty-seven Photographs, 402 U. S. 363 (1971)).
Although the 1992 Act contains no express "severability clause," we can find the Act's "severability" intention in its structure and purpose. It seems fairly obvious Congress would have intended its permissive "leased access" channels provision, § 10(a), to stand irrespective of § 10(c)'s legal fate. That is because the latter provision concerns only public, educational, and governmental channels. Its presence had little, if any, effect upon "leased access" channels; hence its absence in respect to those channels could not make a significant difference.
The "segregate and block" requirement's invalidity does make a difference, however, to the effectiveness of the permissive "leased access" provision, § 10(a). Together they told the cable system operator: "Either ban a `patently offensive' program or `segregate and block' it." Without the "segregate and block" provision, cable operators are afforded broad discretion over what to do with a patently offensive program, and because they will no longer bear the costs of segregation and blocking if they refuse to ban such programs, cable operators may choose to ban fewer programs.
Nonetheless, this difference does not make the two provisions unseverable. Without the "segregate and block" provision, the law simply treats leased channels (in respect to patently offensive programming) just as it treats all other channels. And judging by the absence of similar segregate and block provisions in the context of these other channels, Congress would probably have thought that § 10(a), standing *768 alone, was an effective (though, perhaps, not the most effective) means of pursuing its objective. Moreover, we can find no reason why, in light of Congress' basic objective (the protection of children), Congress would have preferred no provisions at all to the permissive provision standing by itself. That provision, capable of functioning on its own, still helps to achieve that basic objective. Consequently, we believe the valid provision is severable from the others.
VI
For these reasons, the judgment of the Court of Appeals is affirmed insofar as it upheld § 10(a); the judgment of the Court of Appeals is reversed insofar as it upheld § 10(b) and § 10(c).
It is so ordered.
Justice Stevens, concurring.
The difference between § 10(a) and § 10(c) is the difference between a permit and a prohibition. The former restores the freedom of cable operators to reject indecent programs; the latter requires local franchising authorities to reject such programs. While I join the Court's opinion, I add these comments to emphasize the difference between the two provisions and to endorse the analysis in Part IIIB of Justice Kennedy's opinion even though I do not think it necessary to characterize the public access channels as public fora. Like Justice Souter, I am convinced that it would be unwise to take a categorical approach to the resolution of novel First Amendment questions arising in an industry as dynamic as this. Cf. R. A. V. v. St. Paul, 505 U. S. 377, 426-427 (1992) (Stevens, J., concurring in judgment).
I
Federal law requires cable system operators to reserve about 15 percent of their channels for commercial lease to unaffiliated programmers. See 47 U. S. C. § 532(b). On *769 these channels, federal law generally prohibits the cable operator from exercising any control over program content, see § 532(c)(2), with one exception: Section 10(a) allows the operator to refuse to air "indecent" programs. In my view, that exception is permissible.
The Federal Government established the leased access requirements to ensure that certain programmers would have more channels available to them. Section 10(a) is therefore best understood as a limitation on the amount of speech that the Federal Government has spared from the censorial control of the cable operator, rather than a direct prohibition against the communication of speech that, in the absence of federal intervention, would flow freely.
I do not agree, however, that § 10(a) established a public forum. Unlike sidewalks and parks, the Federal Government created leased access channels in the course of its legitimate regulation of the communications industry. In so doing, it did not establish an entirely open forum, but rather restricted access to certain speakers, namely, unaffiliated programmers able to lease the air time. By facilitating certain speech that cable operators would not otherwise carry, the leased access channels operate like the must-carry rules that we considered in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 643-646 (1994), without reference to our public forum precedents.
When the Federal Government opens cable channels that would otherwise be left entirely in private hands, it deserves more deference than a rigid application of the public forum doctrine would allow. At this early stage in the regulation of this developing industry, Congress should not be put to an all or nothing-at-all choice in deciding whether to open certain cable channels to programmers who would otherwise lack the resources to participate in the marketplace of ideas.
Just as Congress may legitimately limit access to these channels to unaffiliated programmers, I believe it may also limit, within certain reasonable bounds, the extent of the access *770 that it confers upon those programmers.[1] If the Government had a reasonable basis for concluding that there were already enough classical musical programs or cartoons being telecastor, perhaps, even enough political debateI would find no First Amendment objection to an open access requirement that was extended on an impartial basis to all but those particular subjects. A contrary conclusion would ill-serve First Amendment values by dissuading the Government from creating access rights altogether.[2]
Of course, the fact that the Federal Government may be entitled to some deference in regulating access for cable programmers does not mean that it may evade First Amendment constraints by selectively choosing which speech should be excepted from private control. If the Government spared all speech but that communicated by Republicans from the control of the cable operator, for example, the First Amendment violation would be plain. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 *771 (1985). More subtle viewpoint-based limitations on access also may be prohibited by the First Amendment. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 564 (1975) (Douglas, J., dissenting in part and concurring in result in part).
Even though it is often difficult to determine whether a given access restriction impermissibly singles out certain ideas for repression, in these cases I find no basis for concluding that § 10(a) is a species of viewpoint discrimination. By returning control over indecent programming to the cable operator, § 10(a) treats indecent programming on access channels no differently from indecent programming on regular channels. The decision to permit the operator to determine whether to show indecent programming on access channels therefore cannot be said to reflect a governmental bias against the indecent programming that appears on access channels in particular.
Nor can it be argued that indecent programming has no outlet other than leased access channels, and thus that the exclusion of such speech from special protection is designed to prohibit its communication altogether. Petitioners impliedly concede this point when they contend that the indecency restrictions are arbitrarily underinclusive because they do not affect the similarly indecent programming that appears on regular channels.
Moreover, the criteria § 10(a) identifies for limiting access are fully consistent with the Government's contention that the speech restrictions are not designed to suppress "a certain form of expression that the Government dislikes," post, at 802 (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part), but rather to protect children from sexually explicit programming on a pervasive medium. In other cases, we have concluded that such a justification is both viewpoint neutral and legitimate. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); *772 FCC v. Pacifica Foundation, 438 U. S. 726 (1978). There is no reason to conclude otherwise here.
Finally, § 10(a) cannot be assailed on the somewhat broader ground that it nevertheless reduces the programming available to the adult population to what is suitable for children. Butler v. Michigan, 352 U. S. 380, 383 (1957); post, at 807 (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part). Section 10(a) serves only to ensure that the newly created access right will not require operators to expose children to more unsuitable communications than would otherwise be the case. It is thus far different in both purpose and effect from the provision at issue in Butler, which criminalized the sale of certain books. 352 U. S., at 381.
In sum, § 10(a) constitutes a reasonable, viewpoint-neutral limitation on a federally created access right for certain cable programmers. Accordingly, I would affirm the judgment of the Court of Appeals as to this provision.
II
As both Justice Breyer and Justice Kennedy have explained, the public, educational, and governmental access channels that are regulated by § 10(c) are not creations of the Federal Government. They owe their existence to contracts forged between cable operators and local cable franchising authorities. Ante, at 734, 760-762 (opinion of Breyer, J.); post, at 788-790, 791-794 (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part).
As their name reflects, so-called PEG channels are subject to a variety of local governmental controls and regulations thatapart from any federal requirementmay result either in a prohibition or a requirement that certain types of programs be carried. Ante, at 761-763 (opinion of Breyer, J.) Presumably, as Justice Breyer explains, the local authorities seldom permit programming of the type described by § 10(c) to air. Ante, at 762-763.
*773 What is of critical importance to me, however, is that if left to their own devices, those authorities may choose to carry some programming that the Federal Government has decided to restrict. As I read § 10(c), the federal statute would disable local governments from making that choice. It would inject federally authorized private censors into fora from which they might otherwise be excluded, and it would therefore limit local fora that might otherwise be open to all constitutionally protected speech.[3]
Section 10(c) operates as a direct restriction on speech that, in the absence of federal intervention, might flow freely. The Federal Government is therefore not entitled to the same leeway that I believe it deserves when it enacts provisions, such as § 10(a), that define the limits of federally created access rights. See supra, at 769-770. The Federal Government has no more entitlement to restrict the power of a local authority to disseminate materials on channels of its own creation, than it has to restrict the power of cable operators to do so on channels that they own. In this respect, I agree entirely with Justice Kennedy, save for his designation of these channels as public fora.
That is not to say that the Federal Government may not impose restrictions on the dissemination of indecent materials on cable television. Although indecent speech is protected by the First Amendment, the Government may have a compelling interest in protecting children from indecent speech on such a pervasive medium. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). When the Government *774 acts to suppress directly the dissemination of such speech, however, it may not rely solely on speculation and conjecture. See Sable Communications of Cal., Inc. v. FCC, 492 U. S., at 129-131.
Justice Breyer persuasively demonstrates that the Government has made no effort to identify the harm caused by permitting local franchising authorities to determine the quantum of so-called "indecent" speech that may be aired in their communities. Ante, at 763-766. Nor has the Government attempted to determine whether the intervention of the discretionary censorial authority of a private cable operator constitutes an appropriately limited means of addressing that harm. Ibid. Given the direct nature of the restriction on speech that § 10(c) imposes, the Government has failed to carry its burden of justification. Accordingly, I agree that the judgment of the Court of Appeals with respect to § 10(c) should be reversed.
Justice Souter, concurring.
Justice Kennedy's separate opinion stresses the worthy point that First Amendment values generally are well served by categorizing speech protection according to the respective characters of the expression, its context, and the restriction at issue. Reviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said.[1] Justice Kennedy sees no warrant in these cases for anything but a categorical and rule-based approach applying a fixed level of scrutiny, the strictest, to judge the content-based provisions of §§ 10(a), (b), and (c), and he accordingly faults the principal opinion *775 for declining to decide the precise doctrinal categories that should govern the issue at hand. The value of the categorical approach generally to First Amendment security prompts a word to explain why I join the Court's unwillingness to announce a definitive categorical analysis in these cases.
Neither the speech nor the limitation at issue here may be categorized simply by content. Our prior case most nearly on point dealt not with a flat restriction covering a separate category of indecency at the First Amendment's periphery, but with less than a total ban, directed to instances of indecent speech easily available to children through broadcasts readily received in the household and difficult or impossible to control without immediate supervision. See FCC v. Pacifica Foundation, 438 U. S. 726, 747 (1978) (plurality opinion) ("It is a characteristic of speech such as this that both its capacity to offend and its `social value' . . . vary with the circumstances").[2] It is not surprising that so contextually complex a category was not expressly assigned a standard level of scrutiny for reviewing the Government's limitation at issue there.[3]
Nor does the fact that we deal in these cases with cable transmission necessarily suggest that a simple category subject *776 to a standard level of scrutiny ought to be recognized at this point; while we have found cable television different from broadcast with respect to the factors justifying intrusive access requirements under the rule in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), see Turner Broadcasting System, Inc. v.FCC, 512 U. S. 622, 638-639 (1994) (finding that Red Lion `s spectrum scarcity rationale had no application to cable), today's plurality opinion rightly observes that the characteristics of broadcast radio that rendered indecency particularly threatening in Pacifica, that is, its intrusion into the house and accessibility to children, are also present in the case of cable television, ante, at 744-745. It would seem, then, that the appropriate category for cable indecency should be as contextually detailed as the Pacifica example, and settling upon a definitive level-of-scrutiny rule of review for so complex a category would require a subtle judgment; but there is even more to be considered, enough more to demand a subtlety tantamount to prescience.
All of the relevant characteristics of cable are presently in a state of technological and regulatory flux. Recent and far-reaching legislation not only affects the technical feasibility of parental control over children's access to undesirable material, see, e. g., Telecommunications Act of 1996, § 551, 110 Stat. 139-142 (provision for "V-chip" to block sexually explicit or violent programs), but portends fundamental changes in the competitive structure of the industry and, therefore, the ability of individual entities to act as bottlenecks to the free flow of information, see Title III, id., at 114-128 (promoting competition in cable services). As cable and telephone companies begin their competition for control over the single wire that will carry both their services, we can hardly settle rules for review of regulation on the assumption that cable will remain a separable and useful category of First Amendment scrutiny. And as broadcast, cable, and the cybertechnology of the Internet and the World Wide Web approach the day of using a common receiver, we can *777 hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others.[4]
Accordingly, in charting a course that will permit reasonable regulation in light of the values in competition, we have to accept the likelihood that the media of communication will become less categorical and more protean. Because we cannot be confident that for purposes of judging speech restrictions it will continue to make sense to distinguish cable from other technologies, and because we know that changes in these regulated technologies will enormously alter the structure of regulation itself, we should be shy about saying the final word today about what will be accepted as reasonable tomorrow. In my own ignorance I have to accept the real possibility that "if we had to decide today . . . just what the First Amendment should mean in cyberspace, . . . we would get it fundamentally wrong." Lessig, The Path of Cyberlaw, 104 Yale L. J. 1743, 1745 (1995).
The upshot of appreciating the fluidity of the subject that Congress must regulate is simply to accept the fact that not every nuance of our old standards will necessarily do for the new technology, and that a proper choice among existing doctrinal categories is not obvious. Rather than definitively settling the issue now, Justice Breyer wisely reasons by direct analogy rather than by rule, concluding that the speech and the restriction at issue in these cases may usefully be measured against the ones at issue in Pacifica.[5] If *778 that means it will take some time before reaching a final method of review for cases like these, there may be consolation in recalling that 16 years passed, from Roth v. United States, 354 U. S. 476 (1957), to Miller v. California, 413 U. S. 15 (1973), before the modern obscenity rule jelled; that it took over 40 years, from Hague v. Committee for Industrial Organization, 307 U. S. 496 (1939), to Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 (1983), for the public forum category to settle out; and that a round halfcentury passed before the clear and present danger of Schenck v. United States, 249 U. S. 47 (1919), evolved into the modern incitement rule of Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam).
I cannot guess how much time will go by until the technologies of communication before us today have matured and their relationships become known. But until a category of indecency can be defined both with reference to the new technology and with a prospect of durability, the job of the courts will be just what Justice Breyer does today: recognizing established First Amendment interests through a close analysis that constrains the Congress, without wholly incapacitating it in all matters of the significance apparent here, maintaining the high value of open communication, measuring the costs of regulation by exact attention to fact, and compiling a pedigree of experience with the changing subject. These are familiar judicial responsibilities in times when we know too little to risk the finality of precision, and attention to them will probably take us through the communications revolution. Maybe the judicial obligation to shoulder these responsibilities can itself be captured by a much older rule, familiar to every doctor of medicine: "First, do no harm."
*779 Justice O'Connor, concurring in part and dissenting in part.
I agree that § 10(a) is constitutional and that § 10(b) is unconstitutional, and I join Parts I, II, III, and V, and the judgment in part. I am not persuaded, however, that the asserted "important differences" between §§ 10(a) and 10(c), ante, at 760, are sufficient to justify striking down § 10(c). I find the features shared by § 10(a), which covers leased access channels, and § 10(c), which covers public access channels, to be more significant than the differences. For that reason, I would find that § 10(c) also withstands constitutional scrutiny.
Both §§ 10(a) and 10(c) serve an important governmental interest: the well-established compelling interest of protecting children from exposure to indecent material. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); Ginsberg v. New York, 390 U. S. 629, 639-640 (1968). Cable television, like broadcast television, is a medium that is uniquely accessible to children, see ante, at 744-745, and, of course, children have equally easy access to public access channels as to leased access channels. By permitting a cable operator to prevent transmission of patently offensive sexrelated programming, §§ 10(a) and 10(c) further the interest of protecting children.
Furthermore, both provisions are permissive. Neither presents an outright ban on a category of speech, such as we struck down in Sable Communications of Cal., Inc. v. FCC, supra. Sections 10(a) and 10(c) leave to the cable operator the decision whether to broadcast indecent programming, and, therefore, are less restrictive than an absolute governmental ban. Certainly § 10(c) is not more restrictive than § 10(a) in this regard.
It is also significant that neither § 10(a) nor § 10(c) is more restrictive than the governmental speech restriction we upheld in FCC v. Pacifica Foundation, 438 U. S. 726 (1978). I agree with Justice Breyer that we should not yet undertake *780 fully to adapt our First Amendment doctrine to the new context we confront here. Because we refrain from doing so, the precedent established by Pacifica offers an important guide. Section 10(c), no less than § 10(a), is within the range of acceptability set by Pacifica. See ante, at 744-747.
The distinctions upon which the Court relies in deciding that § 10(c) must fall while § 10(a) survives are not, in my view, constitutionally significant. Much emphasis is placed on the differences in the origins of leased access and public access channels. To be sure, the leased access channels covered by § 10(a) were a product of the Federal Government, while the public access channels at issue in § 10(c) arose as part of the cable franchises awarded by municipalities, see ante, at 761-762, but I am not persuaded that the difference in the origin of the access channels is sufficient to justify upholding § 10(a) and striking down § 10(c). The interest in protecting children remains the same, whether on a leased access channel or a public access channel, and allowing the cable operator the option of prohibiting the transmission of indecent speech seems a constitutionally permissible means of addressing that interest. Nor is the fact that public access programming may be subject to supervisory systems in addition to the cable operator, see ante, at 761-763, sufficient in my mind to render § 10(c) so illtailored to its goal as to be unconstitutional.
Given the compelling interest served by § 10(c), its permissive nature, and its fit within our precedent, I would hold § 10(c), like § 10(a), constitutional.
Justice Kennedy, with whom Justice Ginsburg joins, concurring in part, concurring in the judgment in part, and dissenting in part.
The plurality opinion, insofar as it upholds § 10(a) of the 1992 Cable Act, is adrift. The opinion treats concepts such as public forum, broadcaster, and common carrier as mere labels rather than as categories with settled legal significance; *781 it applies no standard, and by this omission loses sight of existing First Amendment doctrine. When confronted with a threat to free speech in the context of an emerging technology, we ought to have the discipline to analyze the case by reference to existing elaborations of constant First Amendment principles. This is the essence of the case-bycase approach to ensuring protection of speech under the First Amendment, even in novel settings. Rather than undertake this task, however, the plurality just declares that, all things considered, § 10(a) seems fine. I think the implications of our past cases for these cases are clearer than the plurality suggests, and they require us to hold § 10(a) invalid. Though I join Part III of the opinion (there for the Court) striking down § 10(b) of the Act, and concur in the judgment that § 10(c) is unconstitutional, with respect I dissent from the remainder.
I
Two provisions of the 1992 Act, §§ 10(a) and (c), authorize the operator of a cable system to exclude certain programming from two different kinds of channels. Section 10(a) concerns leased access channels. These are channels the cable operator is required by federal law to make available to unaffiliated programmers without exercising any control over program content. The statute allows a cable operator to enforce a written and published policy of prohibiting on these channels any programming it "reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards," speech we can refer to as "indecent programming."
Section 10(c) involves public, educational, and governmental access channels (or PEG access channels, as they are known). These are channels set aside for use by members of the public, governmental authorities, and local school systems. As interpreted by the Federal Communications Commission (FCC), § 10(c) requires the agency to make regulations *782 enabling cable operators to prohibit indecent programming on PEG access channels. See ante, at 734-736 (quoting statutory provisions in full and discussing interpretive regulations).[*]
Though the two provisions differ in significant respects, they have common flaws. In both instances, Congress singles out one sort of speech for vulnerability to private censorship in a context where content-based discrimination is not otherwise permitted. The plurality at least recognizes this as state action, ante, at 737, avoiding the mistake made by the Court of Appeals, Alliance for Community Media v. FCC, 56 F. 3d 105, 112-121 (CADC 1995). State action lies in the enactment of a statute altering legal relations between persons, including the selective withdrawal from one group of legal protections against private acts, regardless of whether the private acts are attributable to the State. Cf. Hunter v. Erickson, 393 U. S. 385, 389-390 (1969) (state action under the Fourteenth Amendment).
The plurality balks at taking the next step, however, which is to advise us what standard it applies to determine whether the state action conforms to the First Amendment. Sections 10(a) and (c) disadvantage nonobscene, indecent programming, a protected category of expression, Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989), on the basis of its content. The Constitution in general does not tolerate content-based restriction of, or discrimination against, speech. R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992) ("Content-based regulations are presumptively invalid"); Carey v. Brown, 447 U. S. 455, 461-463 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). In the *783 realm of speech and expression, the First Amendment envisions the citizen shaping the government, not the reverse; it removes "governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity." Cohen v. California, 403 U. S. 15, 24 (1971). "[E]ach person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641 (1994). We therefore have given "the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." Id., at 642.
Sections 10(a) and (c) are unusual. They do not require direct action against speech, but do authorize a cable operator to deny the use of its property to certain forms of speech. As a general matter, a private person may exclude certain speakers from his or her property without violating the First Amendment, Hudgens v. NLRB, 424 U. S. 507 (1976), and if §§ 10(a) and (c) were no more than affirmations of this principle they might be unremarkable. Access channels, however, are property of the cable operator, dedicated or otherwise reserved for programming of other speakers or the government. A public access channel is a public forum, and laws requiring leased access channels create common-carrier obligations. When the government identifies certain speech on the basis of its content as vulnerable to exclusion from a common carrier or public forum, strict scrutiny applies. These laws cannot survive this exacting review. However compelling Congress' interest in shielding children from indecent programming, the provisions in these cases are not drawn with enough care to withstand scrutiny under our precedents.
*784 II
Before engaging the complexities of cable access channels and explaining my reasons for thinking all of § 10 unconstitutional, I start with the most disturbing aspect of the plurality opinion: its evasion of any clear legal standard in deciding these cases. See ante, at 741 (disavowing need to "declare which, among the many applications of the general approach that this Court has developed over the years, we are applying here").
The plurality begins its flight from standards with a number of assertions nobody disputes. I agree, of course, that it would be unwise "to declare a rigid single standard, good for now and for all future media and purposes," ante, at 742. I do think it necessary, however, to decide what standard applies to discrimination against indecent programming on cable access channels in the present state of the industry. We owe at least that much to public and leased access programmers whose speech is put at risk nationwide by these laws.
In a similar vein, we are admonished, these cases are complicated, not simple; the importance of contextual review, we are told, cannot be evaded by recourse to simple analogies. Ante, at 739-743, 748. All this is true, but use of a standard does not foreclose consideration of context. Indeed, if strict scrutiny is an instance of "judicial formulas so rigid that they become a straitjacket that disables government from responding to serious problems," ante, at 741, this is a grave indictment of our First Amendment jurisprudence, which relies on strict scrutiny in a number of settings where context is important. I have expressed misgivings about judicial balancing under the First Amendment, see Burson v. Freeman, 504 U. S. 191, 211-212 (1992) (concurring opinion); Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 124-125 (1991) (opinion concurring in judgment), but strict scrutiny at least confines the balancing process in a manner protective of speech; it does not disable government from addressing serious problems, *785 but does ensure that the solutions do not sacrifice speech to a greater extent than necessary.
The plurality claims its resistance to standards is in keeping with our case law, where we have shown a willingness to be flexible in confronting novel First Amendment problems. The cases it cites, ante, at 740-741, however, demonstrate the opposite of what the plurality supposes: In each, we developed specialized or more or less stringent standards when certain contexts demanded them; we did not avoid the use of standards altogether. Indeed, the creation of standards and adherence to them, even when it means affording protection to speech unpopular or distasteful, is the central achievement of our First Amendment jurisprudence. Standards are the means by which we state in advance how to test a law's validity, rather than letting the height of the bar be determined by the apparent exigencies of the day. They also provide notice and fair warning to those who must predict how the courts will respond to attempts to suppress their speech. Yet formulations like strict scrutiny, used in a number of constitutional settings to ensure that the inequities of the moment are subordinated to commitments made for the long run, see Simon & Schuster, supra, at 115-116; Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983), mean little if they can be watered down whenever they seem too strong. They mean still less if they can be ignored altogether when considering a case not on all fours with what we have seen before.
The plurality seems distracted by the many changes in technology and competition in the cable industry. See ante, at 741-742; ante, at 776-777 (Souter, J., concurring). The laws challenged here, however, do not retool the structure of the cable industry or (with the exception of § 10(b)) involve intricate technologies. The straightforward issue here is whether the Government can deprive certain speakers, on the basis of the content of their speech, of protections afforded *786 all others. There is no reason to discard our existing First Amendment jurisprudence in answering this question.
While it protests against standards, the plurality does seem to favor one formulation of the question in these cases: namely, whether the Act "properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech." Ante, at 743. (Though the plurality frowns on any effort to settle on a form of words, it likes this formulation well enough to repeat it; see ante, at 741.) This description of the question accomplishes little, save to clutter our First Amendment case law by adding an untested rule with an uncertain relationship to the others we use to evaluate laws restricting speech. The plurality cannot bring itself to apply strict scrutiny, yet realizes it cannot decide these cases without uttering some sort of standard; so it has settled for synonyms. "[C]lose judicial scrutiny," ibid., is substituted for strict scrutiny, and "extremely important problem," ante, at 743, or "extraordinary proble[m]," ante, at 741, is substituted for "compelling interest." The admonition that the restriction not be unnecessarily great in light of the interest it serves, ante, at 743, is substituted for the usual narrow tailoring requirements. All we know about the substitutes is that they are inferior to their antecedents. We are told the Act must be "appropriately tailored," ante, at 741, "sufficiently tailored," ante, at 743, or "carefully and appropriately addressed," ante, at 748, to the problems at handanything, evidently, except narrowly tailored.
These restatements have unfortunate consequences. The first is to make principles intended to protect speech easy to manipulate. The words end up being a legalistic cover for an ad hoc balancing of interests; in this respect the plurality succeeds after all in avoiding the use of a standard. Second, the plurality's exercise in pushing around synonyms for the words of our usual standards will sow confusion in the courts bound by our precedents. Those courts, and lawyers in the *787 communications field, now will have to discern what difference there is between the formulation the plurality applies today and our usual strict scrutiny. I can offer little guidance, except to note the unprotective outcome the plurality reaches here. This is why comparisons and analogies to other areas of our First Amendment case law become a responsibility, rather than the luxury the plurality considers them to be. The comparisons provide discipline to the Court and guidance for others, and give clear content to our standardsall the things I find missing in the plurality's opinion. The novelty and complexity of these cases is a reason to look for help from other areas of our First Amendment jurisprudence, not a license to wander into uncharted areas of the law with no compass other than our own opinions about good policy.
Another troubling aspect of the plurality's approach is its suggestion that Congress has more leeway than usual to enact restrictions on speech where emerging technologies are concerned, because we are unsure what standard should be used to assess them. Justice Souter recommends to the Court the precept, "`First, do no harm,' " ante, at 778. The question, though, is whether the harm is in sustaining the law or striking it down. If the plurality is concerned about technology's direction, it ought to begin by allowing speech, not suppressing it. We have before us an urgent claim for relief against content-based discrimination, not a dry run.
I turn now to the issues presented, and explain why strict scrutiny is warranted.
III
A
Cable operators deliver programming from four sources: retransmission of broadcast stations; programming purchased from professional vendors (including national services like ESPN and Nickelodeon) and delivered by satellite; programs *788 created by the cable operator itself; and access channels (PEG and leased), the two kinds of programming at issue here. See Mueller, Note, Controversial Programming on Cable Television's Public Access Channels: The Limits of Governmental Response, 38 DePaul L. Rev. 1051, 1056-1057 (1989) (hereinafter Mueller). See also Turner Broadcasting, 512 U. S., at 628-629.
PEG access channels grew out of local initiatives in the late 1960's and early 1970's, before the Federal Government began regulating cable television. Mueller 1061. Local franchising was the first form of cable regulation, arising from the need of localities to control access to public rightsof-way and easements and to minimize disruption to traffic and other public activity from the laying of cable lines. See D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video § 3.01[3] (1996) (hereinafter Brenner); Turner Broadcasting, supra, at 628 ("[T]he cable medium may depend for its very existence upon express permission from local governing authorities"). A local government would set up a franchise authority to oversee the cable system and to negotiate a franchise agreement specifying the cable operator's rights and obligations. See Brenner § 3.01; § 3.01[4] (discussing States where local franchising has now been displaced by state regulation). Cf. 47 U. S. C. § 522(10) (defining franchise authority). A franchise, now mandatory under federal law except for systems operating without them prior to 1984, § 541(b), is an authorization, akin to a license, by a franchise authority permitting the construction or operation of a cable system. § 522(8). From the early 1970's onward, franchise authorities began requiring operators to set aside access channels as a condition of the franchise. See Mueller 1061-1062; D. Agosta, C. Rogoff, & A. Norman, The Participate Report: A Case Study of Public Access Cable Television in New York State 24 (1990) (hereinafter Agosta), attached as Exhibit K to Joint Comments for the Alliance for *789 Community Media et al., filed with the FCC under MM Docket No. 92-258 (hereinafter FCC Record).
The FCC entered the arena in 1972, requiring the cable companies servicing the country's largest television markets to set aside four access channels (one each for public, educational, governmental, and leased programming) by a date certain, and to add channel capacity if necessary to meet the requirement. Cable Television Report and Order, 36 F. C. C. 2d 141, 189-198 (1972). See also In re Amendment of Part 76 of the Commission's Rules and Regulations Concerning the Cable Television Channel Capacity and Access Channel Requirements of Section 76.251, 59 F. C. C. 2d 294, 303, 321 (1976) (modifying the 1972 rules). We struck down the access rules as beyond the FCC's authority under the Communications Act of 1934. FCC v. Midwest Video Corp., 440 U. S. 689, 708-709 (1979).
When Congress turned its attention to PEG access channels in 1984, it recognized that "reasonable third-party access to cable systems will mean a wide diversity of information sources for the publicthe fundamental goal of the First Amendmentwithout the need to regulate the content of programming provided over cable." H. R. Rep. No. 98-934, p. 30 (1984). It declined, however, to set new federal mandates or authorize the FCC to do so. Since "[a]lmost all recent franchise agreements provide for access by local governments, schools, and non-profit and community groups" over some channels, the 1984 Act instead "continue[d] the policy of allowing cities to specify in cable franchises that channel capacity and other facilities be devoted to such use." Ibid.
Section 611 of the Communications Act of 1934, added by the Cable Communications Policy Act of 1984 (1984 Act), authorized local franchise authorities to require cable operators to set aside channel capacity for PEG access when seeking new franchises or renewal of old ones. 47 U. S. C. § 531(b). *790 Franchise authorities may enforce franchise agreements, § 531(c), but they lack the power to impose requirements beyond those authorized by federal law, § 531(a). But cf. § 557(a) (grandfathering as valid all pre-1984 franchise agreements for the remainder of their term). Federal law also allows a franchise authority to "require adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support." § 541(a)(4)(B). Prior to the passage of § 10(c) of the 1992 Act, the cable operator, save for implementing provisions of its franchise agreement limiting obscene or otherwise constitutionally unprotected cable programming, § 544(d), was forbidden any editorial control over PEG access channels. 47 U. S. C. § 531(e) (1988 ed.).
Congress has not, in the 1984 Act or since, defined what public, educational, or governmental access means or placed substantive limits on the types of programming on those channels. Those tasks are left to franchise agreements, so long as the channels comport in some sense with the industry practice to which Congress referred in the statute.
My principal concern is with public access channels (the P of PEG). These are the channels open to programming by members of the public. Petitioners here include public access programmers and viewers who watch their shows. By contrast, educational and governmental access channels (the E and G of PEG) serve other speakers. Under many franchises, educational channels are controlled by local school systems, which use them to provide school information and educational programs. Governmental access channels are committed by the cable franchise to the local municipal government, which uses them to distribute information to constituents on public affairs. Mueller 1065-1066. No local governmental entity or school system has petitioned for relief in these cases, and none of the petitioners who are viewers has asserted an interest in viewing educational or governmental programming or briefed the relevant issues.
*791 B
The public access channels established by franchise agreements tend to have certain traits. They are available at low or no cost to members of the public, often on a first-come, first-served basis. Brenner § 6.04[3][a][b], at 6-38. The programmer on one of these channels most often has complete control over, as well as liability for, the content of its show. Ibid.; Mueller 1064. The entity managing the technical aspects of public access, such as scheduling and transmission, is not always the cable operator; it may be the local government or a third party that runs the access centers, which are facilities made available for the public to produce programs and transmit them on the access channels. Brenner § 6.04[7], at 6-48.
Public access channels meet the definition of a public forum. We have recognized two kinds of public fora. The first and most familiar are traditional public fora, like streets, sidewalks, and parks, which by custom have long been open for public assembly and discourse. Perry, 460 U. S., at 45; Hague v. Committee for Industrial Organization, 307 U. S. 496, 515 (1939) (opinion of Roberts, J.). "The second category of public property is the designated public forum, whether of a limited or unlimited characterproperty that the State has opened for expressive activity by part or all of the public." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678 (1992).
Public access channels fall in the second category. Required by the franchise authority as a condition of the franchise and open to all comers, they are a designated public forum of unlimited character. The House Report for the 1984 Act is consistent with this view. It characterized public access channels as "the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace *792 of ideas." H. R. Rep. No. 98-934, supra, at 30. Public fora do not have to be physical gathering places, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 830 (1995), nor are they limited to property owned by the government, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800 (1985). Indeed, in the majority of jurisdictions, title to some of the most traditional of public fora, streets and sidewalks, remains in private hands. 10A E. McQuillin, Law of Municipal Corporations § 30.32 (3d ed. 1990); Hague, supra, at 515 ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions"). Public access channels are analogous; they are public fora even though they operate over property to which the cable operator holds title.
It is important to understand that public access channels are public fora created by local or state governments in the cable franchise. Section § 10(c) does not, as the Court of Appeals thought, just return rightful First Amendment discretion to the cable operator, see Alliance for Community Media, 56 F. 3d, at 114. Cable operators have First Amendment rights, of course; restrictions on entry into the cable business may be challenged under the First Amendment, Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 494 (1986), and a cable operator's activities in originating programs or exercising editorial discretion over programs others provide on its system also are protected, Turner Broadcasting, 512 U. S., at 636. But cf. id., at 656 (distinguishing discretion of cable operators from that of newspaper editors). Yet the editorial discretion of a cable operator is a function of the cable franchise it receives from local government. The operator's right to exercise any editorial discretion over cable service disappears if its franchise is terminated. See 47 U. S. C. § 541(b) (cable service may not *793 be offered without a franchise); § 546 (prescribing procedures and standards for renewal). Cf. Brenner § 3.07[9][a] (franchise terms of 15 years are the norm); § 3.07[15] (typical franchise agreements recognize the absolute right of the franchiser to refuse renewal at expiration of term). If the franchise is transferred to another, so is the right of editorial discretion. The cable operator may own the cables transmitting the signal, but it is the franchisethe agreement between the cable operator and the local governmentthat allocates some channels to the full discretion of the cable operator while reserving others for public access.
In providing public access channels under their franchise agreements, cable operators therefore are not exercising their own First Amendment rights. They serve as conduits for the speech of others. Cf. PruneYard Shopping Center v. Robins, 447 U. S. 74, 87 (1980). Section 10(c) thus restores no power of editorial discretion over public access channels that the cable operator once had; the discretion never existed. It vests the cable operator with a power under federal law, defined by reference to the content of speech, to override the franchise agreement and undercut the public forum the agreement creates. By enacting a law in 1992 excluding indecent programming from protection but retaining the prohibition on cable operators' editorial control over all other protected speech, the Federal Government at the same time ratified the public-forum character of public access channels but discriminated against certain speech based on its content.
The plurality refuses to analyze public access channels as public fora because it is reluctant to decide "the extent to which private property can be designated a public forum," ante, at 742. We need not decide here any broad issue whether private property can be declared a public forum by simple governmental decree. That is not what happens in the creation of public access channels. Rather, in return for granting cable operators easements to use public rights-ofway *794 for their cable lines, local governments have bargained for a right to use cable lines for public access channels. Justice Thomas resists public-forum analysis because he sees no evidence of a "formal easement." Post, at 828. Under general principles of property law, no particular formalities are necessary to create an easement. Easements may be created by contract. 2 G. Thompson, Commentaries on the Modern Law of Real Property §§ 331-332 (1980); 3 H. Tiffany, The Law of Real Property § 776 (3d ed. 1939). A franchise agreement is a contract, and in those agreements the cable operator surrenders his power to exclude certain programmers from use of his property for specific purposes. A state court confronted with the issue would likely hold the franchise agreement to create a right of access equivalent to an easement in land. So one can even view these cases as a local government's dedication of its own property interest to speech by members of the public. In any event, it seems to me clear that when a local government contracts to use private property for public expressive activity, it creates a public forum.
Treating access channels as public fora does not just place a label on them, as the plurality suggests, see ante, at 750. It defines the First Amendment rights of speakers seeking to use the channels. When property has been dedicated to public expressive activities, by tradition or government designation, access is protected by the First Amendment. Regulations of speech content in a designated public forum, whether of limited or unlimited character, are "subject to the highest scrutiny" and "survive only if they are narrowly drawn to achieve a compelling state interest." Lee, 505 U. S., at 678. Unless there are reasons for applying a lesser standard, § 10(c) must satisfy this stringent review.
C
Leased access channels, as distinct from public access channels, are those the cable operator must set aside for unaffiliated *795 programmers who pay to transmit shows of their own without the cable operator's creative assistance or editorial approval. In my view, strict scrutiny also applies to § 10(a)'s authorization to cable operators to exclude indecent programming from these channels.
Congress created leased access channels in the 1984 Act. Section 612 of the Act, as amended, requires a cable system with more than 36 channels to set aside a certain percentage of its channels (up to 15%, depending on the size of the system) "for commercial use by persons unaffiliated with the operator." 47 U. S. C. § 532(b)(1). Commercial use means "provision of video programming, whether or not for profit." § 532(b)(5). When an unaffiliated programmer seeks access, the cable operator shall set "the price, terms, and conditions of such use which are at least sufficient to assure that such use will not adversely affect the operation, financial condition, or market development of the cable system," § 532(c)(1). Cf. 47 CFR § 76.971 (1995) (rules governing terms and conditions of leased access). The price may not exceed the maximum charged any unaffiliated programmer in the same program category for the use of nonaccess channels. § 76.970. Aggrieved programmers have recourse to federal district court and the FCC (if there are repeated violations) to compel access on appropriate terms. 47 U. S. C. §§ 532(d), (e).
Before 1992, cable operators were forbidden editorial control over any video programming on leased access channels, and could not consider the content of the programming except to set the price of access, 47 U. S. C. § 532(c)(2) (1988 ed.). But cf. 47 U. S. C. § 532(h) (prohibiting programs that are obscene or otherwise unprotected under the Constitution on leased access channels). Section 10(a) of the 1992 Act modifies the no-discretion rule by allowing cable operators to reject, pursuant to a written and published policy, programs they reasonably believe to be indecent. § 532(h). Under § 10(b) of the Act, any indecent programming must be *796 segregated onto one channel and blocked unless the subscriber requests that the channel be provided to him. § 532(j); 47 CFR § 76.701 (1995).
Two distinctions between public and leased access channels are important. First, whereas public access channels are required by state and local franchise authorities (subject to certain federal limitations), leased access channels are created by federal law. Second, whereas cable operators never have had editorial discretion over public access channels under their franchise agreements, the leased access provisions of the 1984 Act take away channels the operator once controlled. Cf. Midwest Video, 440 U. S., at 708, n. 17 (federal mandates "compelling cable operators indiscriminately to accept access programming will interfere with their determinations regarding the total service offering to be extended to subscribers"). In this sense, § 10(a) now gives back to the operator some of the discretion it had before Congress imposed leased access requirements in the first place.
The constitutionality under Turner Broadcasting, 512 U. S., at 665-668, of requiring a cable operator to set aside leased access channels is not before us. For purposes of these cases, we should treat the cable operator's rights in these channels as extinguished, and address the issue these petitioners present: namely, whether the Government can discriminate on the basis of content in affording protection to certain programmers. I cannot agree with Justice Thomas, post, at 821-822, that the cable operator's rights inform this analysis.
Laws requiring cable operators to provide leased access are the practical equivalent of making them common carriers, analogous in this respect to telephone companies: They are obliged to provide a conduit for the speech of others. The plurality resists any classification of leased access channels (as created in the 1984 Act) as a common-carrier provision, ante, at 739-740, although we described in just those *797 terms the access (including leased access) rules promulgated by the FCC in 1976:
"The access rules plainly impose common-carrier obligations on cable operators. Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis. Operators are prohibited from determining or influencing the content of access programming. And the rules delimit what operators may charge for access and use of equipment." Midwest Video, 440 U. S., at 701-702 (citations and footnotes omitted).
Indeed, we struck down the FCC's rules as beyond the agency's statutory authority at the time precisely because they made cable operators common carriers. Id., at 702 709. The FCC characterizes § 612 as a form of commoncarrier requirement, App. to Pet. for Cert. 139a140a, as does the Government, Brief for Federal Respondents 23.
Section 10(a) authorizes cable operators to ban indecent programming on leased access channels. We have held that a law precluding a common carrier from transmitting protected speech is subject to strict scrutiny, Sable Communications, 492 U. S., at 131 (striking down ban on indecent telephonic communications), but we have not had occasion to consider the standard for reviewing a law, such as § 10(a), permitting a carrier in its discretion to exclude specified speech.
Laws removing common-carriage protection from a single form of speech based on its content should be reviewed under the same standard as content-based restrictions on speech in a public forum. Making a cable operator a common carrier does not create a public forum in the sense of taking property from private control and dedicating it to public use; rather, regulations of a common carrier dictate the manner in which private control is exercised. A common-carriage *798 mandate, nonetheless, serves the same function as a public forum. It ensures open, nondiscriminatory access to the means of communication. This purpose is evident in the statute itself and in the committee findings supporting it. Congress described the leased access requirements as intended "to promote competition in the delivery of diverse sources of video programming and to assure that the widest possible diversity of information sources are made available to the public from cable systems in a manner consistent with growth and development of cable systems." 47 U. S. C. § 532(a). The House Committee reporting the 1984 cable bill acknowledged that, in general, market demand would prompt cable operators to provide diverse programming. It recognized, though, the incentives cable operators might have to exclude "programming which represents a social or political viewpoint that a cable operator does not wish to disseminate, or . . . competes with a program service already being provided by that cable system." H. R. Rep. No. 98 934, at 48. In its view, the leased access provisions were narrowly drawn structural regulations of private industry, cf. Associated Press v. United States, 326 U. S. 1 (1945), to enhance the free flow and diversity of information available to the public without governmental intrusion into decisions about program content. H. R. Rep. No. 98-934, supra, at 32-35. The functional equivalence of designating a public forum and mandating common carriage suggests the same scrutiny should be applied to attempts in either setting to impose content discrimination by law. Under our precedents, the scrutiny is strict.
"The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Widmar v. Vincent, 454 U. S. 263 (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U. S. 167 (1976) (school board meeting); Southeast- *799 ern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975) (municipal theater). Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest." Perry, 460 U. S., at 45-46 (footnote omitted).
In Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972), we made clear that selective exclusions from a public forum were unconstitutional. Invoking the First and Fourteenth Amendments to strike down a city ordinance allowing only labor picketing on any public way near schools, we held the "government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Id., at 96.
"Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone." Ibid.
Since the same standard applies to exclusions from limited or unlimited designated public fora as from traditional forums, Lee, 505 U. S., at 678, there is no reason the kind of selective exclusion we condemned in Mosley should be tolerated here.
The plurality acknowledges content-based exclusions from the right to use a common carrier could violate the First Amendment. It tells us, however, that it is wary of analogies to doctrines developed elsewhere, and so does not address this issue. Ante, at 749. This newfound aversion to analogical reasoning strikes at a process basic to legal analysis. *800 See E. Levi, An Introduction to Legal Reasoning 1-2 (1949). I am not suggesting the plurality should look far afield to other areas of law; these are settled First Amendment doctrines dealing with state action depriving certain speakers of protections afforded to all others.
In all events, the plurality's unwillingness to consider our public-forum precedents does not relieve it of the burden of explaining why strict scrutiny should not apply. Except in instances involving well-settled categories of proscribable speech, see R. A. V., 505 U. S., at 382-390, strict scrutiny is the baseline rule for reviewing any content-based discrimination against speech. The purpose of forum analysis is to determine whether, because of the property or medium where speech takes place, there should be any dispensation from this rule. See Consolidated Edison Co. of N. Y. v. Public Service Comm'n of N. Y., 447 U. S. 530, 538-539 (1980). In the context of government property, we have recognized an exception "[w]here the government is acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power to regulate or license," and in those circumstances, we have said, regulations of speech need only be reasonable and viewpoint neutral. Lee, supra, at 678-679. Here, of course, the Government has not dedicated the cable operator's property for leased access to serve some proprietary function of its own; it has done so to provide a forum for a vital class of programmers who otherwise would be excluded from cable television.
The question remains whether a dispensation from strict scrutiny might be appropriate because § 10(a) restores in part an editorial discretion once exercised by the cable operator over speech occurring on its property. This is where public-forum doctrine gives guidance. Common-carrier requirements of leased access are little different in function from designated public fora, and no different standard of review should apply. It is not that the functional equivalence of leased access channels to designated public fora *801 compels strict scrutiny; rather, it simply militates against recognizing an exception to the normal rule.
Perhaps, as the plurality suggests, ante, at 749-750, § 10(a) should be treated as a limitation on a forum rather than an exclusion from it. This would not change the analysis, however. If Government has a freer hand to draw contentbased distinctions in limiting a forum than in excluding someone from it, the First Amendment would be a dead letter in designated public fora; every exclusion could be recast as a limitation. See Post, Between Governance and Management: the History and Theory of the Public Forum, 34 UCLA L. Rev. 1713, 1753 (1987). We have allowed content-based limitations of public fora, but only when necessary to serve specific institutional ends. See Perry, 460 U. S., at 48 (school mailboxes, if considered designated public fora, could be limited to mailings from "organizations that engage in activities of interest and educational relevance to students"); Widmar v. Vincent, 454 U. S. 263, 267-268, n. 5 (1981) (recognizing a public university could limit the use of its facilities by reasonable regulations compatible with its mission of education); Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U. S. 167, 175, n. 8 (1976) (in assessing a teacher's right to speak at a school board meeting, considering it obvious that "public bodies may confine their meetings to specified subject matter"). The power to limit or redefine fora for a specific legitimate purpose, see Rosenberger, 515 U. S., at 829-830, does not allow the government to exclude certain speech or speakers from them for any reason at all.
Madison Joint School Dist., supra, illustrates the point. The Wisconsin Employment Relations Commission had ordered a school board to prohibit school employees other than union representatives from speaking at its meetings on matters subject to collective bargaining between the board and the union. Id., at 173. While recognizing the power of a State to limit school board meetings to certain subject matter, *802 we held it could not confine the forum "to one category of interested individuals." Id., at 175. The exclusion would skew the debate and deprive decisionmakers of the benefit of other voices. Id., at 175-176.
It is no answer to say Congress does not have to create access channels at all, so it may limit access as it pleases. Whether or not a government has any obligation to make railroads common carriers, under the Equal Protection Clause it could not define common carriage in ways that discriminate against suspect classes. See Bailey v. Patterson, 369 U. S. 31, 33 (1962) (per curiam) (States may not require railroads to segregate the races). For the same reason, even if Congress has no obligation to impose common-carriage rules on cable operators or retain them forever, it is not at liberty to exclude certain forms of speech from their protection on the suspect basis of content. See Perry, supra, at 45-46.
I do not foreclose the possibility that the Government could create a forum limited to certain topics or to serving the special needs of certain speakers or audiences without its actions being subject to strict scrutiny. This possibility seems to trouble the plurality, which wonders if a local government must "show a compelling state interest if it builds a band shell in the park and dedicates it solely to classical music (but not to jazz)." Ante, at 750. This is not the correct analogy. These cases are more akin to the Government's creation of a band shell in which all types of music might be performed except for rap music. The provisions here are content-based discriminations in the strong sense of suppressing a certain form of expression that the Government dislikes or otherwise wishes to exclude on account of its effects, and there is no justification for anything but strict scrutiny here.
Giving government free rein to exclude speech it dislikes by delimiting public fora (or common-carriage provisions) would have pernicious effects in the modern age. Minds are *803 not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media. Cf. United States v. Kokinda, 497 U. S. 720, 737 (1990) (Kennedy, J., concurring in judgment). The extent of public entitlement to participate in those means of communication may be changed as technologies change; and in expanding those entitlements the Government has no greater right to discriminate on suspect grounds than it does when it effects a ban on speech against the backdrop of the entitlements to which we have been more accustomed. It contravenes the First Amendment to give Government a general license to single out some categories of speech for lesser protection so long as it stops short of viewpoint discrimination.
D
The Government advances a different argument for not applying strict scrutiny in these cases. The nature of access channels to one side, it argues the nature of the speech in questionindecent broadcast (or cablecast)is subject to the lower standard of review it contends was applied in FCC v. Pacifica Foundation, 438 U. S. 726, 748 (1978) (upholding an FCC order declaring the radio broadcast of indecent speech during daytime hours to be sanctionable).
Pacifica did not purport, however, to apply a special standard for indecent broadcasting. Emphasizing the narrowness of its holding, the Court in Pacifica conducted a contextspecific analysis of the FCC's restriction on indecent programming during daytime hours. See id., at 750. See also Sable Communications, 492 U. S., at 127-128 (underscoring the narrowness of Pacifica ). It relied on the general rule that "broadcasting . . . has received the most limited First Amendment protection." 438 U. S., at 748. We already have rejected the application of this lower broadcast standard of review to infringements on the liberties of cable operators, even though they control an important communications *804 medium. Turner Broadcasting, 512 U. S., at 637-641. There is even less cause for a lower standard here.
Pacifica did identify two important considerations relevant to the broadcast of objectionable material. First, indecent broadcasting "confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." 438 U. S., at 748. Second, "broadcasting is uniquely accessible to children, even those too young to read." Id., at 749. Pacifica teaches that access channels, even if analogous to ordinary public fora from the standpoint of the programmer, must also be considered from the standpoint of the viewer. An access channel is not a forum confined to a discrete public space; it can bring indecent expression into the home of every cable subscriber, where children spend astounding amounts of time watching television, cf. ante, at 744-745 (citing studies). Though in Cohen we explained that people in public areas may have to avert their eyes from messages that offend them, 403 U. S., at 21, we further acknowledged that "government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue," ibid. See Hess v. Indiana, 414 U. S. 105, 108 (1973) (per curiam); Rowan v. Post Office Dept., 397 U. S. 728, 736-738 (1970). This is more true when the interests of children are at stake. See id., at 738 ("[T]he householder [should not] have to risk that offensive material come into the hands of his children before it can be stopped").
These concerns are weighty and will be relevant to whether the law passes strict scrutiny. They do not justify, however, a blanket rule of lesser protection for indecent speech. Other than the few categories of expression that can be proscribed, see R. A. V., 505 U. S., at 382-390, we have been reluctant to mark off new categories of speech for diminished constitutional protection. Our hesitancy reflects *805 skepticism about the possibility of courts drawing principled distinctions to use in judging governmental restrictions on speech and ideas, Cohen, 403 U. S., at 25, a concern heightened here by the inextricability of indecency from expression. "[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." Id., at 26. The same is true of forbidding programs indecent in some respect. In artistic or political settings, indecency may have strong communicative content, protesting conventional norms or giving an edge to a work by conveying "otherwise inexpressible emotions." Ibid. In scientific programs, the more graphic the depiction (even if to the point of offensiveness), the more accurate and comprehensive the portrayal of the truth may be. Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power. Under our traditional First Amendment jurisprudence, factors perhaps justifying some restriction on indecent cable programming may all be taken into account without derogating this category of protected speech as marginal.
IV
At a minimum, the proper standard for reviewing §§ 10(a) and (c) is strict scrutiny. The plurality gives no reason why it should be otherwise. I would hold these enactments unconstitutional because they are not narrowly tailored to serve a compelling interest.
The Government has no compelling interest in restoring a cable operator's First Amendment right of editorial discretion. As to § 10(c), Congress has no interest at all, since under most franchises operators had no rights of editorial discretion over PEG access channels in the first place. As to § 10(a), any governmental interest in restoring operator discretion over indecent programming on leased access channels is too minimal to justify the law. First, the transmission of indecent programming over leased access channels *806 is not forced speech of the operator. Turner Broadcasting, supra, at 655-656; PruneYard, 447 U. S., at 87. Second, the discretion conferred by the law is slight. The operator is not authorized to place programs of its own liking on the leased access channels, nor to remove other speech (racist or violent, for example) that might be offensive to it or to viewers. The operator is just given a veto over the one kind of lawful speech Congress disdains.
Congress does have, however, a compelling interest in protecting children from indecent speech. Sable Communications, 492 U. S., at 126; Ginsberg v. New York, 390 U. S. 629, 639-640 (1968). See also Pacifica, 438 U. S., at 749-750 (same). So long as society gives proper respect to parental choices, it may, under an appropriate standard, intervene to spare children exposure to material not suitable for minors. This interest is substantial enough to justify some regulation of indecent speech even under, I will assume, the indecency standard used here.
Sections 10(a) and (c) nonetheless are not narrowly tailored to protect children from indecent programs on access channels. First, to the extent some operators may allow indecent programming, children in localities those operators serve will be left unprotected. Partial service of a compelling interest is not narrow tailoring. FCC v. League of Women Voters of Cal., 468 U. S. 364, 396 (1984) (asserted interest in keeping noncommercial stations free from controversial or partisan opinions not served by ban on station editorials, if such opinions could be aired through other programming); Florida Star v. B. J. F., 491 U. S. 524, 540-541 (1989) (selective ban on publication of rape victim's name in some media but not others not narrowly tailored). Cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73 (1983) (restriction that "provides only the most limited incremental support for the interest asserted" cannot pass muster under commercial-speech standards). Put another way, the *807 interest in protecting children from indecency only at the caprice of the cable operator is not compelling. Perhaps Congress drafted the law this way to avoid the clear constitutional difficulties of banning indecent speech from access channels, but the First Amendment does not permit this sort of ill fit between a law restricting speech and the interest it is said to serve.
Second, to the extent cable operators prohibit indecent programming on access channels, not only children but adults will be deprived of it. The Government may not "reduce the adult population . . . to [viewing] only what is fit for children." Butler v. Michigan, 352 U. S. 380, 383 (1957). It matters not that indecent programming might be available on the operator's other channels. The Government has no legitimate interest in making access channels pristine. A block-and-segregate requirement similar to § 10(b), but without its constitutional infirmity of requiring persons to place themselves on a list to receive programming, see ante, at 756-757, protects children with far less intrusion on the liberties of programmers and adult viewers than allowing cable operators to ban indecent programming from access channels altogether. When applying strict scrutiny, we will not assume plausible alternatives will fail to protect compelling interests; there must be some basis in the record, in legislative findings or otherwise, establishing the law enacted as the least restrictive means. Sable Communications, supra, at 128-130. Cf. Turner Broadcasting, 512 U. S., at 664-668. There is none here.
Sections 10(a) and (c) present a classic case of discrimination against speech based on its content. There are legitimate reasons why the Government might wish to regulate or even restrict the speech at issue here, but §§ 10(a) and (c) are not drawn to address those reasons with the precision the First Amendment requires.
*808 V
Not only does the plurality fail to apply strict scrutiny, but its reasoning is unpersuasive on its own terms.
The plurality declares § 10(c) unconstitutional because it interferes with local supervisory systems that "can set programming policy and approve or disapprove particular programming services." Ante, at 762. Replacing these local schemes with a cable operator veto would, in the plurality's view, "greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear," ante, at 766. Although the plurality terms these local schemes "public/nonprofit programming control systems," ante, at 763, it does not contend (nor does the record suggest) that any local board or access center has the authority to exclude indecent programming, or to do anything that would cast doubt on the status of public access channels as public fora. Cf. Agosta 88 (New York state law forbids editorial control over public access programs by either the cable operator or the municipality); Comments of Hillsborough County Board of County Commissioners 2, FCC Record (explaining county's inability to exclude indecent programming). Indeed, "[m]ost access centers surveyed do not prescreen at all, except, as in [two named localities], a high speed run-through for technical quality." P. Aufderheide, Public Access Cable Programming, Controversial Speech, and Free Expression (1992), reprinted in App. 61, 68. As the plurality acknowledges, the record indicates no response to indecent programming by local access centers (whether they prescreen or not) other than "requiring indemnification by programmers, certification of compliance with local standards, time segregation, [and] adult content advisories," ante, at 762. Those are measures that, if challenged, would likely survive strict scrutiny as narrowly tailored to safeguard children. If those measures, in the words of the plurality, "normally avoid, minimize, or eliminate any child-related *809 problems concerning `patently offensive' programming" on public access channels, ante, at 763-764, one is left to wonder why the cable operator veto over leased access programming authorized in § 10(a) is constitutional even under the plurality's First Amendment analysis. Although I concur in its judgment that § 10(c) is invalid, I cannot agree with the plurality's reasoning.
In regard to § 10(a), the plurality's analysis there undermines its claims of faithfulness to our First Amendment jurisprudence and close attention to context.
First, the plurality places some weight on there being "nothing to stop `adults who feel the need' from finding [indecent] programming elsewhere, say, on tape or in theaters," or on competitive services like direct broadcast television, ante, at 745. The availability of alternative channels of communication may be relevant when we are assessing contentneutral time, place, and manner restrictions, Ward v. Rock Against Racism, 491 U. S. 781, 791, 802 (1989), but the fact that speech can occur elsewhere cannot justify a contentbased restriction, Southeastern Promotions, 420 U. S., at 556; Schneider v. State (Town of Irvington), 308 U. S. 147, 163 (1939).
Second, the plurality suggests the permissive nature of § 10(a) at least does not create the same risk of exclusion as a total ban on indecency. Ante, at 745-746. This states the obvious, but the possibility the Government could have imposed more draconian limitations on speech never has justified a lesser abridgment. Indeed, such an argument almost always is available; few of our First Amendment cases involve outright bans on speech. See, e. g., Forsyth County v. Nationalist Movement, 505 U. S. 123, 130-137 (1992) (broad discretion of county administrator to award parade permits and to adjust permit fee according to content of speech violates First Amendment); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) (informal threats to recommend criminal prosecutions and other pressure tactics by state morality *810 commission against book publishers violate the First Amendment).
Third, based on its own factual speculations, the plurality discounts the risks created by the law that operators will not run indecent programming on access channels. The plurality takes "a glance at the programming that cable operators allow on their own (nonaccess) channels," and, espying some indecent programming there, supposes some cable operators may be willing to allow similar programs on leased access channels. Ante, at 746. This sort of surmise, giving the Government the benefit of the doubt when it restricts speech, is an unusual approach to the First Amendment, to put it mildly. Worse, it ignores evidence of industry structure that should cast doubt on the plurality's sanguine view of the probable fate of programming considered "indecent" under § 10(a). The plurality fails to note that, aside from the indecency provisions of § 10 tacked on in a Senate floor amendment, the 1992 Act strengthened the regulation of leased access channels because it was feared cable operators would exercise their substantial market power to exclude disfavored programmers. The congressional findings in the statute and the conclusions of the Senate Committee on Commerce, Science, and Transportation after more than two years of hearings on the cable market, see S. Rep. No. 102 92, pp. 3-4 (1991), are instructive. Leased access channels had been underused since their inception in 1984, the Senate Committee determined. Id., at 30. Though it recognized the adverse economics of leased access for programmers may have been one reason for the underutilization, the Committee found the obstinacy of cable operators and their control over prices, terms, and conditions also were to blame. Id., at 31.
"The cable operator is almost certain to have interests that clash with that of the programmer seeking to use leased access channels. If their interests were similar, the operator would have been more than willing to carry *811 the programmer on regular cable channels. The operator thus has already decided for any number of reasons not to carry the programmer. For example, the operator may believe that the programmer might compete with programming that the [operator] owns or controls. To permit the operator to establish the leased access rate thus makes little sense." Ibid.
Perhaps some operators will choose to show the indecent programming they now may banish if they can command a better price than other access programmers are willing to pay. In the main, however, leased access programs are the ones the cable operator, for competitive reasons or otherwise, has no interest in showing. And because the cable operator may put to his own commercial use any leased access capacity not taken by unaffiliated programmers, 47 U. S. C. § 532(b)(4), operators have little incentive to allow indecent programming if they have excess capacity on leased access channels.
There is even less reason to think cable operators will choose to show indecent programs on public access channels. The operator is not paid, or paid much, for transmitting programs on these channels; public access programs may compete with the operator's own programs; the operator will wish to avoid unwanted controversy; and here, as with leased access channels, the operator may reclaim unused PEG capacity for its own paid use, 47 U. S. C. § 531(d)(1).
In the 1992 Act, Congress recognized cable operators might want to exclude unaffiliated or otherwise disfavored programmers from their channels, but it granted operators discretion to do so in regard to but a single category of speech. The obvious consequence invited by the discretion is exclusion. I am not sure why the plurality would suppose otherwise, or contend the practical consequences of § 10(a) would be no worse for programmers than those flowing from the sort of time-segregation requirement approved in Pacifica. See ante, at 746-747. Despite its claim of making *812 "a more contextual assessment" of these cases, ante, at 748, the plurality ignores a key difference of these cases from Pacifica. There, the broadcaster wanted to air the speech in question; here, the cable operator does not. So the safe harbor of late-night programming permitted by the FCC in Pacifica would likely promote speech, whereas suppression will follow from § 10(a).
VI
In agreement with the plurality's analysis of § 10(b) of the Act, insofar as it applies strict scrutiny, I join Part III of its opinion. Its position there, however, cannot be reconciled with upholding § 10(a). In the plurality's view, § 10(b), which standing alone would guarantee an indecent programmer some access to a cable audience, violates the First Amendment, but § 10(a), which authorizes exclusion of indecent programming from access channels altogether, does not. There is little to commend this logic or result. I dissent from the judgment of the Court insofar as it upholds the constitutionality of § 10(a).
Justice Thomas, joined by The Chief Justice and Justice Scalia, concurring in the judgment in part and dissenting in part.
I agree with the principal opinion's conclusion that § 10(a) is constitutionally permissible, but I disagree with its conclusion that §§ 10(b) and (c) violate the First Amendment. For many years, we have failed to articulate how, and to what extent, the First Amendment protects cable operators, programmers, and viewers from state and federal regulation. I think it is time we did so, and I cannot go along with Justice Breyer's assiduous attempts to avoid addressing that issue openly.
I
The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so. In Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 *813 (1969), we held that, in light of the scarcity of broadcasting frequencies, the Government may require a broadcast licensee "to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves." Id., at 389. We thus endowed the public with a right of access "to social, political, esthetic, moral, and other ideas and experiences." Id., at 390. That public right left broadcasters with substantial, but not complete, First Amendment protection of their editorial discretion. See, e. g., Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 117-118 (1973) ("A broadcast licensee has a large measure of journalistic freedom but not as large as that exercised by a newspaper").
In contrast, we have not permitted that level of government interference in the context of the print media. In Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), for instance, we invalidated a Florida statute that required newspapers to allow, free of charge, a right of reply to political candidates whose personal or professional character the paper assailed. We rejected the claim that the statute was constitutional because it fostered speech rather than restricted it, as well as a related claim that the newspaper could permissibly be made to serve as a public forum. Id., at 256-258. We also flatly rejected the argument that the newspaper's alleged media monopoly could justify forcing the paper to speak in contravention of its own editorial discretion. Id., at 256.
Our First Amendment distinctions between media, dubious from their infancy,[1] placed cable in a doctrinal wasteland in which regulators and cable operators alike could not be sure whether cable was entitled to the substantial First Amendment protections afforded the print media or was *814 subject to the more onerous obligations shouldered by the broadcast media. See Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 496 (1986) (Blackmun, J., concurring) ("In assessing First Amendment claims concerning cable access, the Court must determine whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis"). Over time, however, we have drawn closer to recognizing that cable operators should enjoy the same First Amendment rights as the nonbroadcast media.
Our first ventures into the world of cable regulation involved no claims arising under the First Amendment, and we addressed only the regulatory authority of the Federal Communications Commission (FCC) over cable operators.[2] Only in later cases did we begin to address the level of First Amendment protection applicable to cable operators. In Preferred Communications, for instance, when a cable operator challenged the city of Los Angeles' auction process for a single cable franchise, we held that the cable operator had stated a First Amendment claim upon which relief could be granted. Id., at 493. We noted that cable operators communicate various topics "through original programming or by exercising editorial discretion over which stations or programs to include in [their] repertoire." Id., at 494. Cf. FCC v. Midwest Video Corp., 440 U. S. 689, 707 (1979) (Midwest Video II) ("Cable operators now share with broadcasters a significant amount of editorial discretion regarding what their programming will include"). But we then likened *815 the operators' First Amendment interests to those of broadcasters subject to Red Lion `s right of access requirement. 476 U. S., at 494-495.
Five years later, in Leathers v. Medlock, 499 U. S. 439 (1991), we dropped any reference to the relaxed scrutiny permitted by Red Lion. Arkansas had subjected cable operators to the State's general sales tax, while continuing to exempt newspapers, magazines, and scrambled satellite broadcast television. Cable operators, among others, challenged the tax on First Amendment grounds, arguing that the State could not discriminatorily apply the tax to some, but not all, members of the press. Though we ultimately upheld the tax scheme because it was not content based, we agreed with the operators that they enjoyed the protection of the First Amendment. We found that cable operators engage in speech by providing news, information, and entertainment to their subscribers and that they are "part of the `press.' " 499 U. S., at 444.
Two Terms ago, in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), we stated expressly what we had implied in Leathers: The Red Lion standard does not apply to cable television. 512 U. S., at 637 ("[T]he rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation . . . does not apply in the context of cable regulation"); id., at 639 ("[A]pplication of the more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation"). While Members of the Court disagreed about whether the must-carry rules imposed by Congress were content based, and therefore subject to strict scrutiny, there was agreement that cable operators are generally entitled to much the same First Amendment protection as the print media. But see id., at 670 (Stevens, J., concurring in part and concurring in judgment) ("Cable operators' control of essential facilities provides a *816 basis for intrusive regulation that would be inappropriate and perhaps impermissible for other communicative media").
In Turner, by adopting much of the print paradigm, and by rejecting Red Lion, we adopted with it a considerable body of precedent that governs the respective First Amendment rights of competing speakers. In Red Lion, we had legitimized consideration of the public interest and emphasized the rights of viewers, at least in the abstract. Under that view, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." 395 U. S., at 390. After Turner, however, that view can no longer be given any credence in the cable context. It is the operator's right that is preeminent. If Tornillo and Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1 (1986), are applicable, and I think they are, see Turner, supra, at 681-682 (O'Connor, J., concurring in part and dissenting in part), then, when there is a conflict, a programmer's asserted right to transmit over an operator's cable system must give way to the operator's editorial discretion. Drawing an analogy to the print media, for example, the author of a book is protected in writing the book, but has no right to have the book sold in a particular bookstore without the store owner's consent. Nor can government force the editor of a collection of essays to print other essays on the same subject.
The Court in Turner found that the FCC's must-carry rules implicated the First Amendment rights of both cable operators and cable programmers. The rules interfered with the operators' editorial discretion by forcing them to carry broadcast programming that they might not otherwise carry, and they interfered with the programmers' ability to compete for space on the operators' channels. 512 U. S., at 636-637; id., at 675-676 (O'Connor, J., concurring in part and dissenting in part). We implicitly recognized in Turner that the programmer's right to compete for channel space *817 is derivative of, and subordinate to, the operator's editorial discretion. Like a freelance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no freestanding First Amendment right to have that programming transmitted. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S., at 256-258. Likewise, the rights of would-be viewers are derivative of the speech rights of operators and programmers. Cf. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756-757 (1976) ("Freedom of speech presupposes a willing speaker. But where a speaker exists, . . . the protection afforded is to the communication, to its source and to its recipients both"). Viewers have a general right to see what a willing operator transmits, but, under Tornillo and Pacific Gas, they certainly have no right to force an unwilling operator to speak.
By recognizing the general primacy of the cable operator's editorial rights over the rights of programmers and viewers, Turner raises serious questions about the merits of petitioners' claims. None of the petitioners in these cases are cable operators; they are all cable viewers or access programmers or their representative organizations. See Brief for Petitioners in No. 95-124, pp. 5-6; Brief for Petitioners New York Citizens Committee for Responsible Media et al. in No. 95-227, p. 3; Brief for Petitioners Alliance for Community Media et al. in No. 95-227, p. 3. It is not intuitively obvious that the First Amendment protects the interests petitioners assert, and neither petitioners nor the plurality have adequately explained the source or justification of those asserted rights.
Justice Breyer's detailed explanation of why he believes it is "unwise and unnecessary," ante, at 742, to choose a standard against which to measure petitioners' First Amendment claims largely disregards our recent attempt in Turner *818 to define that standard.[3] His attempt to distinguish Turner on the ground that it did not involve "the effects of television viewing on children," ante, at 748, is meaningless because that factual distinction has no bearing on the existence and ordering of the free speech rights asserted in these cases.
In the process of deciding not to decide on a governing standard, Justice Breyer purports to discover in our cases an expansive, general principle permitting government to "directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech." Ante, at 741. This heretofore unknown standard is facially subjective and openly invites balancing of asserted speech interests to a degree not ordinarily permitted. It is true that the standard I endorse lacks the "flexibility" inherent in the plurality's balancing approach, ante, at 740, but that relative rigidity is required by our precedents and is not of my own making.
In any event, even if the plurality's balancing test were an appropriate standard, it could only be applied to protect speech interests that, under the circumstances, are themselves protected by the First Amendment. But, by shifting the focus to the balancing of "complex" interests, ante, at 743, Justice Breyer never explains whether (and if so, how) a programmer's ordinarily unprotected interest in affirmative transmission of its programming acquires constitutional significance on leased and public access channels. See *819 ibid. ("interests of programmers in maintaining access channels"); ibid. ("interests served by the access requirements"). It is that question, left unanswered by the plurality, to which I now turn.
II
A
In 1984, Congress enacted 47 U. S. C. § 532(b), which generally requires cable operators to reserve approximately 10 to 15 percent of their available channels for commercial lease to "unaffiliated persons." Operators were prohibited from "exercis[ing] any editorial control" over these leased access channels. § 532(c)(2). In 1992, Congress withdrew part of its prohibition on the exercise of the cable operators' editorial control and essentially permitted operators to censor privately programming that the "operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner." § 532(h).
Since 1984, federal law has also permitted local franchise authorities to require cable operators to set aside certain channels for "public, educational, or governmental use" (PEG channels),[4] § 531(a), but unlike the leased access provisions, has not directly required operators to do so. As with leased access, Congress generally prohibited cable operators from exercising "any editorial control" over public access channels, but provided that operators could prohibit the transmission of obscene programming. § 531(e); see § 544(d). Section 10(c) of the 1992 Act broadened the operators' editorial control and instructed the FCC to promulgate regulations enabling a cable operator to ban from its public access channels "any programming which contains obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct." Note following 47 U. S. C. § 531. The *820 FCC subsequently promulgated regulations in its Second Report and Order, In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992: Indecent Programming and Other Types of Materials on Cable Access Channels, 8 FCC Rcd 2638 (1993) (Second Report and Order). The FCC interpreted Congress' reference to "sexually explicit conduct" to mean that the programming must be indecent, and its regulations therefore permit cable operators to ban indecent programming from their public access channels. Id., at 2640.
As I read these provisions, they provide leased and public access programmers with an expansive and federally enforced statutory right to transmit virtually any programming over access channels, limited only by the bounds of decency. It is no doubt true that once programmers have been given, rightly or wrongly, the ability to speak on access channels, the First Amendment continues to protect programmers from certain Government intrusions. Certainly, under our current jurisprudence, Congress could not impose a total ban on the transmission of indecent programming. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 127 (1989) (striking down total ban on indecent dial-aporn messages). At the same time, however, the Court has not recognized, as entitled to full constitutional protection, statutorily created speech rights that directly conflict with the constitutionally protected private speech rights of another person or entity.[5] We have not found a First Amendment violation in statutory schemes that substantially expand the speech opportunities of the person or entity challenging the scheme.
There is no getting around the fact that leased and public access are a type of forced speech. Though the constitutionality of leased and public access channels is not directly at *821 issue in these cases,[6] the position adopted by the Court in Turner ineluctably leads to the conclusion that the federal access requirements are subject to some form of heightened scrutiny. See Turner, 512 U. S., at 661-662 (citing Ward v. Rock Against Racism, 491 U. S. 781 (1989); United States v. O'Brien, 391 U. S. 367 (1968)). Under that view, contentneutral governmental impositions on an operator's editorial discretion may be sustained only if they further an important governmental interest unrelated to the suppression of free speech and are no greater than is essential to further the asserted interest. See id., at 377. Of course, the analysis I joined in Turner would have required strict scrutiny. 512 U. S., at 680-682 (O'Connor, J., concurring in part and dissenting in part).
Petitioners must concede that cable access is not a constitutionally required entitlement and that the right they claim to leased and public access has, by definition, been governmentally created at the expense of cable operators' editorial *822 discretion. Just because the Court has apparently accepted, for now, the proposition that the Constitution permits some degree of forced speech in the cable context does not mean that the beneficiaries of a Government-imposed forced speech program enjoy additional First Amendment protections beyond those normally afforded to purely private speakers.
We have said that "[i]n the realm of private speech or expression, government regulation may not favor one speaker over another," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995), but this principle hardly supports petitioners' claims, for, if they do anything, the leased and public access requirements favor access programmers over cable operators. I do not see §§ 10(a) and (c) as independent restrictions on programmers, but as intricate parts of the leased and public access restrictions imposed by Congress (and state and local governments) on cable operators. The question petitioners pose is whether §§ 10(a) and (c) are improper restrictions on their free speech rights, but Turner strongly suggests that the proper question is whether the leased and public access requirements (with §§ 10(a) and (c)) are improper restrictions on the operators' free speech rights. In my view, the constitutional presumption properly runs in favor of the operators' editorial discretion, and that discretion may not be burdened without a compelling reason for doing so. Petitioners' view that the constitutional presumption favors their asserted right to speak on access channels is directly contrary to Turner and our established precedents.
It is one thing to compel an operator to carry leased and public access speech, in apparent violation of Tornillo, but it is another thing altogether to say that the First Amendment forbids Congress to give back part of the operators' editorial discretion, which all recognize as fundamentally protected, in favor of a broader access right. It is no answer to say that leased and public access are content neutral and that *823 §§ 10(a) and (c) are not, for that does not change the fundamental fact, which petitioners never address, that it is the operators' journalistic freedom that is infringed, whether the challenged restrictions be content neutral or content based.
Because the access provisions are part of a scheme that restricts the free speech rights of cable operators and expands the speaking opportunities of access programmers, who have no underlying constitutional right to speak through the cable medium, I do not believe that access programmers can challenge the scheme, or a particular part of it, as an abridgment of their "freedom of speech." Outside the public forum doctrine, discussed infra, at 826-831, Government intervention that grants access programmers an opportunity to speak that they would not otherwise enjoy and which does not directly limit programmers' underlying speech rightscannot be an abridgment of the same programmers' First Amendment rights, even if the new speaking opportunity is content based.
The permissive nature of §§ 10(a) and (c) is important in this regard. If Congress had forbidden cable operators to carry indecent programming on leased and public access channels, that law would have burdened the programmer's right, recognized in Turner, supra, at 645, to compete for space on an operator's system. The Court would undoubtedly strictly scrutinize such a law. See Sable, 492 U. S., at 126. But §§ 10(a) and (c) do not burden a programmer's right to seek access for its indecent programming on an operator's system. Rather, they merely restore part of the editorial discretion an operator would have absent Government regulation without burdening the programmer's underlying speech rights.[7]
*824 The First Amendment challenge, if one is to be made, must come from the party whose constitutionally protected freedom of speech has been burdened. Viewing the federal access requirements as a whole, it is the cable operator, not the access programmer,[8] whose speech rights have been infringed. Consequently, it is the operator, and not the programmer, whose speech has arguably been infringed by these provisions. If Congress passed a law forcing bookstores to sell all books published on the subject of congressional politics, we would undoubtedly entertain a claim by bookstores that this law violated the First Amendment principles established in Tornillo and Pacific Gas. But I doubt that we would similarly find merit in a claim by publishers of gardening books that the law violated their First Amendment rights. If that is so, then petitioners in these cases cannot reasonably assert that the Court should strictly scrutinize the provisions at issue in a way that maximizes their ability to speak over leased and public access channels and, by necessity, minimizes the operators' discretion.
B
It makes no difference that the leased access restrictions may take the form of common carrier obligations. See Midwest Video II, 440 U. S., at 701; see also Brief for Federal Respondents 23. But see 47 U. S. C. § 541(c) ("Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service"). That the leased access provisions may be described in common carrier terms does not demonstrate that access programmers *825 have obtained a First Amendment right to transmit programming over leased access channels. Labeling leased access a common carrier scheme has no real First Amendment consequences. It simply does not follow from common carrier status that cable operators may not, with Congress' blessing, decline to carry indecent speech on their leased access channels. Common carriers are private entities and may, consistent with the First Amendment, exercise editorial discretion in the absence of a specific statutory prohibition. Concurring in Sable, Justice Scalia explained: "I note that while we hold the Constitution prevents Congress from banning indecent speech in this fashion, we do not hold that the Constitution requires public utilities to carry it." 492 U. S., at 133. See also Information Providers' Coalition for Defense of First Amendment v. FCC, 928 F. 2d 866, 877 (CA9 1991) ("[A] carrier is free under the Constitution to terminate service to dial-a-porn operators altogether"); Carlin Communications, Inc. v. Mountain States Telephone & Telegraph Co., 827 F. 2d 1291, 1297 (CA9 1987) (same), cert. denied, 485 U. S. 1029 (1988); Carlin Communication, Inc. v. Southern Bell Telephone & Telegraph Co., 802 F. 2d 1352, 1357 (CA11 1986) (same).
Nothing about common carrier status per se constitutionalizes the asserted interests of petitioners in these cases, and Justice Kennedy provides no authority for his assertion that common carrier regulations "should be reviewed under the same standard as content-based restrictions on speech in a public forum." Ante, at 797. Whether viewed as the creation of a common carrier scheme or simply as a regulatory restriction on cable operators' editorial discretion, the net effect is the same: operators' speech rights are restricted to make room for access programmers. Consequently, the fact that the leased access provisions impose a form of common carrier obligation on cable operators does not alter my view that Congress' leased access scheme burdens the constitutionally protected speech rights of cable operators in order *826 to expand the speaking opportunities of access programmers, but does not independently burden the First Amendment rights of programmers or viewers.
C
Petitioners argue that public access channels are public forums in which they have First Amendment rights to speak and that § 10(c) is invalid because it imposes content-based burdens on those rights. Brief for Petitioners New York Citizens Committee for Responsible Media et al. in No. 95 227, pp. 8-23; Brief for Petitioners Alliance for Community Media et al. in No. 95-227, pp. 32-35. Though I agree that content-based prohibitions in a public forum "must be narrowly drawn to effectuate a compelling state interest," Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 46 (1983), I do not agree with petitioners' antecedent assertion that public access channels are public forums.
We have said that government may designate public property for use by the public as a place for expressive activity and that, so designated, that property becomes a public forum. Id., at 45. Petitioners argue that "[a] local government does exactly that by requiring as a condition of franchise approval that the cable operator set aside a public access channel for the free use of the general public on a first-come, first-served, nondiscriminatory basis."[9]*827 Brief for Petitioners Alliance for Community Media et al. in No. 95-227, p. 33. I disagree.
Cable systems are not public property.[10] Cable systems are privately owned and privately managed, and petitioners point to no case in which we have held that government may designate private property as a public forum. The public forum doctrine is a rule governing claims of "a right of access to public property," Perry Ed. Assn., supra, at 44, and has never been thought to extend beyond property generally understood to belong to the government. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 681 (1992) (evidence of expressive activity at rail stations, bus stations, wharves, and Ellis Island was "irrelevant to public fora analysis, because sites such as bus and rail terminals traditionally have had private ownership" (emphasis in original)). See also id., at 678 (public forum is "government" or "public" property); Perry Ed. Assn., supra, at 45 (designated public forum "consists of public property").
Petitioners point to dictum in Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U. S. 788, 801 (1985), that a public forum may consist of "private property dedicated to public use," but that statement has no applicability here. That statement properly refers to the common practice of formally dedicating land for streets and parks when subdividing real estate for developments. See 1A C. Antieau & J. Antieau, Antieau's Local Government Law § 9.05 (1991); 11A E. McQuillin, Law of Municipal Corporations § 33.03 (3d ed. 1991). Such dedications may or may not transfer title, but they at least create enforceable public easements in the dedicated land. 1A Antieau, supra, § 9.15; 11A McQuillin, supra, *828 § 33.68. To the extent that those easements create a property interest in the underlying land, it is that governmentowned property interest that may be designated as a public forum.
It may be true, as petitioners argue, that title is not dispositive of the public forum analysis, but the nature of the regulatory restrictions placed on cable operators by local franchising authorities is not consistent with the kinds of governmental property interests we have said may be formally dedicated as public forums. Our public forum cases have involved property in which the government has held at least some formal easement or other property interest permitting the government to treat the property as its own in designating the property as a public forum. See, e. g., Hague v. Committee for Industrial Organization, 307 U. S. 496, 515 (1939) (streets and parks); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972) (sidewalks adjoining public school); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 555 (1975) (theater under long-term lease to city); Carey v. Brown, 447 U. S. 455, 460-462 (1980) (sidewalks in front of private residence); Widmar v. Vincent, 454 U. S. 263, 267-268 (1981) (university facilities that had been opened for student activities). That is simply not true in these cases. Pursuant to federal and state law, franchising authorities require cable operators to create public access channels, but nothing in the record suggests that local franchising authorities take any formal easement or other property interest in those channels that would permit the government to designate that property as a public forum.[11]
*829 Similarly, assertion of government control over private property cannot justify designation of that property as a public forum. We have expressly stated that neither government ownership nor government control will guarantee public access to property. See Cornelius, supra, at 803; Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 129 (1981). Government control over its own property or private property in which it has taken a cognizable property interest, like the theater in Southeastern Promotions, is consistent with designation of a public forum. But we have never even hinted that regulatory control, and particularly direct regulatory control over a private entity's First Amendment speech rights, could justify creation of a public forum. Properly construed, our cases have limited the government's ability to declare a public forum to property the government owns outright, or in which the government holds a significant property interest consistent with the communicative purpose of the forum to be designated.
Nor am I convinced that a formal transfer of a property interest in public access channels would suffice to permit a local franchising authority to designate those channels as a public forum. In no other public forum that we have recognized does a private entity, owner or not, have the obligation not only to permit another to speak, but to actually help produce and then transmit the message on that person's behalf. Cable operators regularly retain some level of managerial and operational control over their public access channels, subject only to the requirements of federal, state, and local law and the franchise agreement. In more traditional public forums, the government shoulders the burden of administering and enforcing the openness of the expressive forum, but it is frequently a private citizen, the operator, who shoulders that burden for public access channels. For instance, *830 it is often the operator who must accept and schedule an access programmer's request for time on a channel.[12] And, in many places, the operator is actually obligated to provide production facilities and production assistance to persons seeking to produce access programming.[13] Moreover, unlike a park picketer, an access programmer cannot transmit its own message. Instead, it is the operator who must transmit, or "speak," the access programmer's message. That the speech may be considered the operator's is driven home by 47 U. S. C. § 559, which authorizes a fine of up to $10,000 and two years' imprisonment for any person who "transmits over any cable system any matter which is obscene." See also *831 § 558 (making operators immune for all public access programming, except that which is obscene).[14]
Thus, even were I inclined to view public access channels as public property, which I am not, the numerous additional obligations imposed on the cable operator in managing and operating the public access channels convince me that these channels share few, if any, of the basic characteristics of a public forum. As I have already indicated, public access requirements, in my view, are a regulatory restriction on the exercise of cable operators' editorial discretion, not a transfer of a sufficient property interest in the channels to support a designation of that property as a public forum. Public access channels are not public forums, and, therefore, petitioners' attempt to redistribute cable speech rights in their favor must fail. For this reason, and the other reasons articulated earlier, I would sustain both § 10(a) and § 10(c).
III
Most sexually oriented programming appears on premium or pay-per-view channels that are naturally blocked from nonpaying customers by market forces, see In re Implementation of Section 10 of the Consumer Protection and Competition Act of 1992: Indecent Programming and Other Types of Materials on Cable Access Channels, First Report and Order, 8 FCC Rcd 998, 1001, n. 20 (1993) (First Report and Order), and it is only governmental intervention in the first instance that requires access channels, on which indecent programming may appear, to be made part of the basic cable package. Section 10(b) does nothing more than adjust the nature of Government-imposed leased access requirements *832 in order to emulate the market forces that keep indecent programming primarily on premium channels (without permitting the operator to charge subscribers for that programming).
Unlike §§ 10(a) and (c),§ 10(b) clearly implicates petitioners' free speech rights. Though § 10(b)by no means bans indecent speech, it clearly places content-based restrictions on the transmission of private speech by requiring cable operators to block and segregate indecent programming that the operator has agreed to carry. Consequently, § 10(b) must be subjected to strict scrutiny and can be upheld only if it furthers a compelling governmental interest by the least restrictive means available. See Sable, 492 U. S., at 126. The parties agree that Congress has a "compelling interest in protecting the physical and psychological well-being of minors" and that its interest "extends to shielding minors from the influence of [indecent speech] that is not obscene by adult standards." Ibid. See Ginsberg v. New York, 390 U. S. 629, 639 (1968) (persons "who have th[e] primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility"). Because § 10(b) is narrowly tailored to achieve that well-established compelling interest, I would uphold it. I therefore dissent from the Court's decision to the contrary.
Our precedents establish that government may support parental authority to direct the moral upbringing of their children by imposing a blocking requirement as a default position. For example, in Ginsberg, in which we upheld a State's ability to prohibit the sale of indecent literature to minors, we pointed out that the State had simply imposed its own default choice by noting that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Ibid. Likewise, in Sable we set aside a complete ban on indecent dial-a-porn messages in part because the FCC had previously imposed certain default rules intended to prevent access by minors, *833 and there was no evidence that those rules were ineffective. 492 U. S., at 128-130.[15]
The Court strikes down § 10(b) by pointing to alternatives, such as reverse blocking and lock boxes, that it says are less restrictive than segregation and blocking. Though these methods attempt to place in parents' hands the ability to permit their children to watch as little, or as much, indecent programming as the parents think proper, they do not effectively support parents' authority to direct the moral upbringing of their children. See First Report and Order, 8 FCC Rcd, at 1000-1001.[16] The FCC recognized that leased access programming comes "from a wide variety of independent sources, with no single editor controlling [its] selection and presentation." Id., at 1000. Thus, indecent programming on leased access channels is "especially likely to be shown randomly or intermittently between nonindecent programs." Ibid. Rather than being able to simply block out certain channels at certain times, a subscriber armed with only a lock box must carefully monitor all leased access programming and constantly reprogram the lock box *834 to keep out undesired programming. Thus, even assuming that cable subscribers generally have the technical proficiency to properly operate a lock box, by no means a given, this distinguishing characteristic of leased access channels makes lock boxes and reverse blocking largely ineffective.
Petitioners argue that § 10(b)'s segregation and blocking scheme is not sufficiently narrowly tailored because it requires the viewer's "written consent," 47 CFR § 76.701(b) (1995); it permits the cable operator 30 days to respond to the written request for access, § 76.701(c); and it is impermissibly under inclusive because it reaches only leased access programming.
Relying on Lamont v. Postmaster General, 381 U. S. 301 (1965), petitioners argue that forcing customers to submit a written request for access will chill dissemination of speech. In Lamont, we struck down a statute barring the mail delivery of "`communist political propaganda' " to persons who had not requested the Post Office in writing to deliver such propaganda. Id., at 307. The law required the Post Office to keep an official list of persons desiring to receive communist political propaganda, id., at 303, which, of course, was intended to chill demand for such materials. Here, however, petitioners' allegations of an official list "of those who wish to watch the `patently offensive' channel," as the majority puts it, ante, at 754, are pure hyperbole. The FCC regulation implementing § 10(b)'s written request requirement, 47 CFR § 76.701(b) (1995), says nothing about the creation of a list, much less an official Government list. It requires only that the cable operator receive written consent. Other statutory provisions make clear that the cable operator may not share that, or any other, information with any other person, including the Government. Section 551 mandates that all personally identifiable information regarding a subscriber be kept strictly confidential and further requires cable operators to destroy any information that is no longer necessary for the purpose for which it was collected. 47 U. S. C. § 551. *835 None of the circumstances that figured prominently in Lamont exists here.
Though petitioners cannot reasonably fear the specter of an officially published list of leased access indecency viewers, it is true that the fact that a subscriber is unblocked is ascertainable, if only by the cable operator. I find no legally significant stigma in that fact. If a segregation and blocking scheme is generally permissible, then a subscriber's access request must take some form, whether written or oral, and I see nothing nefarious in Congress' choice of a written, rather than an oral, consent.[17] Any request for access to blocked programmingby whatever methodultimately will make the subscriber's identity knowable.[18] But this is hardly the kind of chilling effect that implicates the First Amendment.
Though making an oral request for access, perhaps by telephone, is slightly less bothersome than making a written request, it is also true that a written request is less subject to fraud "by a determined child." Ante, at 759. Consequently, despite the fact that an oral request is slightly less restrictive in absolute terms, it is also less effective in supporting parents' interest in denying enterprising, but parentally unauthorized, minors access to blocked programming.
The segregation and blocking requirement was not intended to be a replacement for lock boxes, V-chips, reverse blocking, or other subscriber-initiated measures. Rather, Congress enacted in § 10(b) a default setting under which a subscriber receives no blocked programming without a written *836 request. Thus, subscribers who do not want the blocked programming are protected, and subscribers who do want it may request access. Once a subscriber requests access to blocked programming, however, the subscriber remains free to use other methods, such as lock boxes, to regulate the kind of programming shown on those channels in that home.[19] Thus, petitioners are wrong to portray § 10(b) as a highly ineffective method of screening individual programs, see Brief for Petitioners in No. 95-124, at 43, and the majority is similarly wrong to suggest that a person cannot "watch a single program . . . without letting the `patently offensive' channel in its entirety invade his household for days, perhaps weeks, at a time," ante, at 754; see ante, at 756. Given the limited scope of § 10(b) as a default setting, I see nothing constitutionally infirm about Congress' decision to permit the cable operator 30 days to unblock or reblock the segregated channel.
Petitioners also claim that § 10(b) and its implementing regulations are impermissibly under inclusive because they apply only to leased access programming. In R. A. V. v. St. Paul, 505 U. S. 377 (1992), we rejected the view that a content-based restriction is subject to a separate and independent "under inclusiveness" evaluation. Id., at 387 ("In our view, the First Amendment imposes not an `under inclusiveness' limitation but a `content discrimination' limitation upon a State's prohibition of proscribable speech"). See also ante, at 757 ("Congress need not deal with every problem at once"). Also, petitioners' claim is in tension with the constitutional principle that Congress may not impose a remedy that is more restrictive than necessary to satisfy its asserted compelling interest and with their own arguments pressing that very principle. Cf. R. A. V., supra, at 402 (White, J., concurring in judgment) (though the "over breadth doctrine *837 has the redeeming virtue of attempting to avoid the chilling of protected expression," an under breadth challenge "serves no desirable function").
In arguing that Congress could not impose a blocking requirement without also imposing that requirement on public access and nonaccess channels, petitioners fail to allege, much less argue, that doing so would further Congress' compelling interest. While it is true that indecent programming appears on nonaccess channels, that programming appears almost exclusively on "per-program or per channel services that subscribers must specifically request in advance, in the same manner as under the blocking approach mandated by section 10(b)." First Report and Order, 8 FCC Rcd, at 1001, n. 20.[20] In contrast to these premium services, leased access channels are part of the basic cable package, and the segregation and blocking scheme Congress imposed does nothing more than convert sexually oriented leased access programming into a free "premium service."[21] Similarly, Congress' failure to impose segregation and blocking requirements on public access channels may have been based on its judgment that those channels presented a less severe problem of unintended indecencyit appears that most of the anecdotal evidence before Congress involved leased access channels. Congress may also have simply decided *838 to permit the States and local franchising authorities to address the issue of indecency on public access channels at a local level, in accordance with the local rule policies evinced in 47 U. S. C. § 531. In any event, if the segregation and blocking scheme established by Congress is narrowly tailored to achieve a compelling governmental interest, it does not become constitutionally suspect merely because Congress did not extend the same restriction to other channels on which there was less of a perceived problem (and perhaps no compelling interest).
The United States has carried its burden of demonstrating that § 10(b) and its implementing regulations are narrowly tailored to satisfy a compelling governmental interest. Accordingly, I would affirm the judgment of the Court of Appeals in its entirety. I therefore concur in the judgment upholding § 10(a) and respectfully dissent from that portion of the judgment striking down §§ 10(b) and (c).
NOTES
[*] Together with No. 95-227, Alliance for Community Media et al. v. Federal Communications Commission et al., also on certiorari to the same court.
[] Briefs of amici curiae urging reversal were filed for the American Booksellers Foundation for Free Expression et al. by Michael A. Bamberger and Margaret Jacobs; and for the Association of American Publishers, Inc., by R. Bruce Rich and Jonathan Bloom.
Briefs of amici curiae urging affirmance were filed for the State of New York by Dennis C. Vacco, Attorney General, Victoria A. Graffeo, Solicitor General, Barbara Billet, Deputy Solicitor General, and Stephen D. Houch and Theodore Zang, Jr., Assistant Attorneys General; for the Family Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Keith A. Fournier, and Thomas P. Monaghan; for the Family Research Council et al. by Cathleen A. Cleaver and Bruce A. Taylor; for Morality in Media, Inc., by Paul J. McGeady and Robert W. Peters; and for Time Warner Cable by Stuart W. Gold and Rebeca L. Cutler.
Len L. Munsil filed a brief for the National Family Legal Foundation as amicus curiae.
[1] Our precedents recognize that reasonable restraints may be placed on access to certain well-regulated fora. There is no reason why cable television should be treated differently. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995); id., at 892-895, 899 (Souter, J., dissenting); see also Widmar v. Vincent, 454 U. S. 263, 278 (1981) (Stevens, J., concurring in judgment) ("I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular timeone to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamletthe First Amendment would not require that the room be reserved for the group that submitted its application first"); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 394 (1969) (approving access requirement limited to "matters of great public concern").
[2] For purposes of these cases, canons of constitutional avoidance require us to assume that the Government has the authority to impose leased access requirements on cable operators. Indeed, no party to this litigation contends to the contrary. Because petitioners' constitutional claim depends for its success on the constitutionality of the underlying access rights, they certainly cannot complain if we decide the cases on that assumption.
[3] Although in 1984 Congress essentially barred cable operators from exercising editorial control over PEG channels, see 47 U. S. C. § 531(e), § 10(c) does not merely restore the status quo ante. Section 10(c) authorizes private operators to exercise editorial discretion over "indecent" programming even if the franchising authority objects. Under the pre-1984 practice, local franchising authorities were free to exclude operators from exercising any such control on PEG channels.
[1] See,e. g., Blasi, The Pathological Perspective and the First Amendment, 85 Colum. L. Rev. 449, 474 (1985) (arguing that "courts . . . should place a premium on confining the range of discretion left to future decisionmakers who will be called upon to make judgments when pathological pressures are most intense").
[2] Our indecency cases since Pacifica have likewise turned as much on the context or medium of the speech as on its content. See, e. g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 127-128 (1989) (distinguishing Pacifica in part on the ground that the telephonic medium at issue was less intrusive than broadcast television); Renton v. Playtime Theatres, Inc., 475 U. S.41, 47, 54 (1986) (permitting zoning regulation of adult theaters based on their "secondary effects"); Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 685-686 (1986) (upholding restriction on indecent speech in a public school).
[3] Our analysis of another important strand of the present cases, the right of owners of the means of communication to refuse to serve as conduits for messages they dislike, has been equally contextual. Compare Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (upholding a right-of-reply requirement in the broadcasting context), with Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (rejecting such a requirement for print journalism).
[4] See, e. g., Lynch, Speedier Access: Cable and Phone Companies Compete, at http://www.usatoday.com/life/cyber/bonus/cb006.htm (June 17, 1996) (describing cable modem technology); Gateway 2000 ships first Destination big screen TV-PC's, at http://www.gw2k.com/corpinfo/press/1996/ destin.htm (Apr. 29, 1996) (describing computer with both cable TV and Internet reception capability).
[5] See, e. g., Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 786 (1993) (observing that analogical reasoning permits "greater flexibility. . . over time"); Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. Colo. L. Rev. 293, 295, n.6 (1992) (noting that "once the categories are established . . .the categorical mode leads to briefs and arguments that concentrate much more on threshold characterization than on comparative analysis").
[*] The Telecommunications Act of 1996, §§ 506(a), (b), 110 Stat. 136, 137, permits a cable operator to refuse to transmit any leased or public access program or portion thereof which contains "obscenity, indecency, or nudity." The constitutionality of the 1996 amendments, to the extent they differ from the provisions here, is not before us.
[1] See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 638, and n. 5 (1994).
[2] See United States v. Southwestern Cable Co., 392 U. S. 157 (1968); United States v. Midwest Video Corp., 406 U. S. 649 (1972) (Midwest Video I). Our decisions in Southwestern Cable and Midwest Video I were purely regulatory and gave no indication whether, or to what extent, cable operators were protected by the First Amendment.
[3] Curiously, the plurality relies on "changes taking place in the law, the technology, and the industrial structure related to telecommunications," ante, at 742, to justify its avoidance of traditional First Amendment standards. If anything, as the plurality recognizes, ante, at 745, those recent developmentswhich include the growth of satellite broadcast programming and the coming influx of video dialtone servicessuggest that local cable operators have little or no monopoly power and create no programming bottleneck problems, thus effectively negating the primary justifications for treating cable operators differently from other First Amendment speakers.
[4] Because indecent programming on PEG channels appears primarily on public access channels, I will generally refer to PEG access as public access.
[5] Even in PruneYard Shopping Center v. Robins, 447 U. S. 74, 87-88 (1980), for instance, we permitted California's compelled access rule only because it did not burden or conflict with the mall owner's own speech.
[6] Following Turner, some commentators have questioned the constitutionality of leased and public access. See, e. g., J. Goodale, All About Cable § 6.04[5], pp. 6-38.6 to 6-38.7 (1996) ("In the wake of the Supreme Court's decision in the Turner Broadcasting case, the constitutionality of both PEG access and leased access requirements would seem open to searching reexamination. . . . To the extent that an access requirement . . . is considered to be a content-based restriction on the speech of a cable system operator, it seems clear, after Turner Broadcasting, that such a requirement would be found to violate the operator's First Amendment rights" (footnotes omitted)); Ugland, Cable Television, New Technologies and the First Amendment After Turner Broadcasting System, Inc. v. F. C. C., 60 Mo. L. Rev. 799, 837 (1995) ("PEG requirements are contentbased on their face because they force cable system operators to carry certain types of programming" (emphasis in original)); Perritt, Access to the National Information Infrastructure, 30 Wake Forest L. Rev. 51, 66 (1995) (leased access and public access requirements "were called into question in Turner "). Moreover, as Justice O'Connor noted in Turner, Congress' imposition of common-carrier-like obligations on cable operators may raise Takings Clause questions. 512 U. S., at 684 (opinion concurring in part and dissenting in part). Such questions are not at issue here.
[7] The plurality, in asserting that § 10(c) "does not restore to cable operators editorial rights that they once had," ante, at 761, mistakes inability to exercise a right for absence of the right altogether. That cable operators "have not historically exercised editorial control" over public access channels, ibid., does not diminish the underlying right to do so, even if the operator's forbearance is viewed as a contractual quid pro quo for the local franchise.
[8] Turner recognized that the must-carry rules burden programmers who must compete for space on fewer channels. 512 U. S., at 636-637. Leased access requirements may also similarly burden programmers who compete for space on nonaccess channels.
[9] In Rosenberger v.Rector and Visitors of Univ. of Va., 515 U. S. 819, 829-830 (1995), we found the university's student activity fund, a nontangible channel of communication, to be a limited public forum, but generally we have been quite reluctant to find even limited public forums in such channels of communication. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 804 (1985) (Combined Federal Campaign not a limited public forum); Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 47-48 (1983) (school mail facilities not a limited public forum). In any event, we certainly have never held that public access channels are a fully designated public forum that entitles programmers to freedom from content-based distinctions.
[10] See G. Shapiro, P. Kurland, & J. Mercurio, "CableSpeech": The Case for First Amendment Protection 119 (1983) ("Because cable systems are operated by private rather than governmental entities, cable television cannot be characterized as a public forum and, therefore, rights derived from the public forum doctrine cannot be asserted by those who wish to express themselves on cable systems").
[11] Petitioners' argument that a property right called "the right to exclude" has been transferred to the government is not persuasive. Though it is generally true that, excepting § 10(c), cable operators are forbidden to exercise editorial discretion over public access channels, that prohibition is not absolute. Section 531(e) provides that the prohibition on the exercise of editorial discretion is subject to § 544(d)(1), which permits operators and franchising authorities to ban obscene or other constitutionally unprotected speech. Some States, however, have not permitted exercise of that authority. See, e. g., Minn. Stat. § 238.11 (1994) (prohibiting any censorship of leased or public access programming); N. Y. Pub. Serv. Law § 229 (McKinney Supp. 1996) (same). At any rate, the Court has never recognized a public forum based on a property interest "taken" by regulatory restriction.
[12] See D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Non broadcast Video § 6.04[7] (1996) (hereinafter Brenner). Some States and local governments have formed nonprofit organizations to perform some of these functions. See D. C. Code Ann. § 43-1829(a) (1990 and Supp. 1996) (establishing Public Access Corporation "for the purpose of facilitating and governing nondiscriminatory use" of public access channels).
[13] See, e. g., 47 U. S. C. § 541(a)(4)(B) (authorizing franchise authorities to "require adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support"); Conn. Gen. Stat. § 16-331c (1995) (requiring cable operators to contribute money or resources to cable advisory councils that monitor compliance with public access standards); § 16-333(c) (requiring the department of public utility control to adopt regulations "establishing minimum standards for the equipment supplied . . . for the community access programming"); D. C. Code Ann. § 43-1829.1(c) (1990) ("For public access channel users, the franchisee shall provide use of the production facilities and production assistance at an amount set forth in the request for proposal"); Minn. Stat. § 238.084.3(b) (1994) (requiring cable operators to "make readily available for public use at least the minimal equipment necessary for the production of programming and playback of prerecorded programs"). That these activities are "partly financed with public funds," ante, at 762, does not diminish the fact that these activities are also "partly financed" with the operator's money. See Brenner § 6.04[7], at 6-48 ("Frequently, access centers receive money and equipment from the cable operator"); id., § 6.04[3][c], at 6-41 (discussing cable operator financing of public access channels and questioning its constitutionality as "forced subsidization of speech").
[14] Petitioners argue that § 10(d) of the 1992 Act, 47 U. S. C. § 558, which lifts cable operators' immunity for obscene speech, forces or encourages operators to ban indecent speech.Because Congress could directly impose an outright ban on obscene programming, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 124 (1989), petitioners' encouragement argument is meritless.
[15] After Sable, Congress quickly amended the statute and the FCC again promulgated those "safe harbor" rules. Those rules were later upheld against a First Amendment challenge. See Dial Information Servs. Corp. of N. Y. v. Thornburgh, 938 F. 2d 1535 (CA2 1991), cert. denied, 502 U. S. 1072 (1992); Information Providers' Coalition for Defense of First Amendment v. FCC, 928 F. 2d 866 (CA9 1991). In promulgating regulations pursuant to § 10(b), the FCC was well aware that the default rules established for dial-a-porn had been upheld and asserted that similar rules were necessary for leased access channels. See First Report and Order, 8 FCC Rcd 998, 1000 (1993) ("The blocking scheme upheld in these cases is, in all relevant respects, identical to that required by section 10(b)"); ibid. ("[J]ust as it did in section 223 relating to `dial-a-porn' telephone servicesCongress has now determined that mandatory, not voluntary, blocking is essential").
[16] In the context of dial-a-porn, courts upholding the FCC's mandatory blocking scheme have expressly found that voluntary blocking schemes are not effective. See Dial Information Servs., supra, at 1542; Information Providers' Coalition, supra, at 873-874.
[17] Because, under the circumstances of these cases, I see no constitutionally significant difference between a written and an oral request to see blocked programming, I also see no relevant distinction between § 10(b) and the blocking requirement enacted in the 1996 Act, on which the majority places so much reliance. See ante, at 756-758.
[18] Indeed, persons who request access to blocked programming pursuant to 47 CFR § 76.701(c) (1995) are no more identifiable than persons who subscribe to sexually oriented premium channels, because those persons must specially request that premium service.
[19] The lock box provision, originally passed in 1984, was unaffected by the 1992 Act and remains fully available to every subscriber. 47 U. S. C. § 544(d)(2).
[20] In examining the restrictions imposed by the 1996 Act, the majority is probably correct to doubt that "sex-dedicated channels are all (or mostly) leased channels," ante, at 757,but surely the majority does not doubt that most nonleased sex-dedicated channels are premium channels that must be expressly requested. I thus disagree that the provisions of the 1996 Act address a "highly similar problem." Ante, at 758.
[21] Unlike Congress' blocking scheme, and the market norm of requiring viewers to pay a premium for indecent programming, lock boxes place a financial burden on those seeking to avoid indecent programming on leased access channels. See 47 U. S. C. § 544(d)(2)("[A] cable operator shall provide (by sale or lease)a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber"). | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3515204/ | PARTIALLY DISSENTING OPINION.
The county court instructed the jury for the plaintiff "that if you return a verdict in favor of the plaintiff, the form of your verdict may be `We the jury find for the plaintiff and assess his damages at $238.11.'" This was the full amount of damages claimed by the plaintiff and if his driving at an unlawful rate of speed contributed to his injury his damages of course should be diminished to the extent that his negligence contributed thereto. Whether his driving at an unlawful rate of speed did in fact contribute to his injury was for the jury's determination, consequently this instruction should not have been given. It can be interpreted to mean, and the jury most probably did so interpret it, that in the event the jury returned a verdict for the plaintiff they should award him the full amount sued for. I, therefore, concur in reversing the judgment. I do not concur in holding that the jury was without the right on the evidence to find that the plaintiff's negligence did not contribute to his injury, for on the evidence that question was for the determination of the jury and not of the trial judge.
Roberds, J., concurs in this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4555606/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:07 AM CDT
- 579 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
In re Estate of William Daniel
Hutton, deceased.
John Hodge, Successor Personal Representative
of the Estate of William Daniel Hutton,
deceased, appellee, v. Webster County,
Nebraska, appellant.
___ N.W.2d ___
Filed July 24, 2020. No. S-19-875.
1. Guardians and Conservators: Judgments: Appeal and Error.
Appeals of matters arising under the Nebraska Probate Code, Neb. Rev.
Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 &
Supp. 2019), are reviewed for error on the record. When reviewing a
judgment for errors on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
2. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable
compensation, fees, and expenses under the statutes governing com-
pensation of personal representatives, expenses in estate litigation, and
compensation of personal representatives and employees of the estate, is
within the sound discretion of the county court.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
4. Costs. Costs of litigation and expenses incident to litigation may not
be recovered unless provided for by statute or a uniform course of
procedure.
5. ____. Whether costs and expenses are authorized by statute or by the
court’s recognition of a uniform course of procedure presents a question
of law.
6. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
- 580 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
7. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
8. Legislature: Intent. The intent of the Legislature is expressed by omis-
sion as well as by inclusion.
Appeal from the County Court for Webster County: Michael
O. Mead, Judge. Judgment vacated.
Sara J. Bockstadter, Webster County Attorney, for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Webster County, Nebraska (County), appeals from an order
of the county court requiring the County to pay fees and
expenses to a court-appointed successor personal representa-
tive. Because the court lacked the authority to order the County
to pay the successor personal representative fees, we vacate
the order.
BACKGROUND
William Daniel Hutton died intestate without a surviv-
ing spouse in February 2015. The county court granted an
application filed by Hutton’s only children, John Hutton and
Alexis Elledge, for informal appointment of copersonal repre-
sentatives of the estate. In July 2015, counsel for the coper-
sonal representatives withdrew from the case. Thereafter, each
copersonal representative retained independent counsel.
In January 2016, John filed a “Motion to Distribute Estate
Assets,” requesting that the court order Elledge to pay him
half the value of E.W. Seals, a business owned and operated
by William at the time of his death. John alleged that the busi-
ness had a value of $250,000. The court ordered the business
to be liquidated or sold with the proceeds to be paid to the
- 581 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
estate. The copersonal representatives filed an inventory that
included valuations for all estate assets except E.W. Seals.
In January 2017, in response to an order to show cause,
Elledge filed a motion seeking the appointment of a new
personal representative who was not a family relative. The
motion alleged that there was a breakdown in communication
between the copersonal representatives due to disagreement
over the valuation and distribution of the E.W. Seals assets.
At the show cause hearing, the copersonal representatives
informed the court it was unlikely they would be able to
complete the administration of the estate. On February 14, the
court discharged John and Elledge as copersonal representa-
tives and appointed attorney John Hodge as successor per-
sonal representative.
In October 2018, Hodge filed an amended inventory which
valued the estate at approximately $420,000. Hodge filed a
statement of distributions of the prior copersonal representa-
tives showing that John had taken $210,455.62 and Elledge
had taken $147,908.43. Although the assets of the estate were
to be divided equally between the surviving children, John had
received $62,547.19 more than Elledge.
The estate owed $60,346.23 in federal income taxes and
$8,429.29 in state income taxes. The court ordered John and
Elledge to return liquid funds to Hodge for payment of estate
taxes, and then it granted Elledge’s motion for reconsideration
and ordered John to return the value of an investment account
and the value of a 2013 Toyota pickup.
Hodge filed a “Petition for Order to Pay Debts of the
Estate and Equalization of Assets Among Beneficiaries”
and a “Petition for Determination of Inheritance Tax and
Reimbursement of Prior Paid Tentative Inheritance Tax.”
Around this same time, Hodge filed an application for payment
of his fees and expenses. In December 2018, following a hear-
ing, the court ordered John to immediately return $62,547.19,
of which John returned $30,000. The court ordered Hodge to
pay court costs and outstanding federal and state taxes. The
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
court continued to a later date the final settlement and Hodge’s
application for fees and expenses. Hodge used the remaining
funds in the estate’s account to pay $478 in court costs and
$42,545.89 in federal taxes.
Hodge completed administration of the estate and renewed
his application for fees and expenses. Per order of the court,
Hodge served the Webster County Attorney with a notice of
hearing for August 2, 2019. At the hearing, the court informed
the County that the estate was insolvent and that Hodge would
submit his request for payment to the County. The County
objected to being responsible for Hodge’s fees and expenses,
and it stated that Hodge’s application had not requested that
the County pay his fees and expenses. The County argued
that the estate at one point had substantial assets and that the
heirs of the estate should be held responsible for Hodge’s fees.
Hodge admitted he knew of no statutory authority to require
the County to pay his fees.
In its order dated August 13, 2019, the court found that
Hodge had served as a court-appointed successor personal
representative for 21⁄2 years and that his fees were fair and
reasonable given the amount of work involved. The court
found that the estate was insolvent and that the amount owed
by the heirs to the Internal Revenue Service and the Nebraska
Department of Revenue was likely uncollectible. The court
found that “the County . . . shall pay the amount of $6,455.63 to
. . . Hodge.”
The County appealed and is the only party to participate
in this matter. We moved this case to our docket on our own
motion.
ASSIGNMENTS OF ERROR
The County assigns, restated, that the court lacked authority
to order the County to pay the fees and expenses of the court-
appointed successor personal representative. The County fur-
ther contends that had the distributions taken by the original
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copersonal representatives not occurred, there would have
been sufficient assets for the estate to pay Hodge.
STANDARD OF REVIEW
[1] Appeals of matters arising under the Nebraska Probate
Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue
2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error
on the record. 1 When reviewing a judgment for errors on the
record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. 2
[2] Ordinarily, the fixing of reasonable compensation, fees,
and expenses, pursuant to § 30-2480, governing compensation
of personal representatives; § 30-2481, governing expenses in
estate litigation; and § 30-2482, governing compensation of
personal representatives and employees of the estate, is within
the sound discretion of the county court. 3
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 4
ANALYSIS
[4,5] The issue presented to us is whether the county court
was authorized to order the County to pay the reasonable
fees and expenses of the court-appointed successor personal
representative. We have long held that costs of litigation and
expenses incident to litigation may not be recovered unless
provided for by statute or a uniform course of procedure. 5
Whether costs and expenses are authorized by statute or by the
1
In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).
2
Id.
3
In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).
4
In re Guardianship of Eliza W., supra note 1.
5
City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795
N.W.2d 256 (2011). See Nat. Bank of Commerce Trust & Savings Assn. v.
Rhodes, 207 Neb. 44, 295 N.W.2d 711 (1980).
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court’s recognition of a uniform course of procedure presents
a question of law. 6
[6,7] In construing a statute, a court must determine and
give effect to the purpose and intent of the Legislature as ascer-
tained from the entire language of the statute considered in its
plain, ordinary, and popular sense. 7 It is not within the province
of the courts to read a meaning into a statute that is not there or
to read anything direct and plain out of a statute. 8
In In re Guardianship of Suezanne P., 9 the Nebraska Court
of Appeals addressed whether, in a guardianship proceeding, a
county may be ordered to pay the fees of an attorney appointed
to represent the minor child’s mother. Although the county was
not involved in the case, the trial court ordered the county to
pay the attorney fees. When the county appealed, the appellate
court found that the attorney pled no authority for requiring the
county to pay his fees and that no authority was cited in the
trial court’s order. In vacating the order, the Court of Appeals
found that although various other statutes authorize a court to
order a county to pay attorney fees, there was no authority for
the trial court to order the county to pay the fees of the parent’s
court-appointed attorney in a civil guardianship case in which
the county was no way involved. 10
[8] In In re Adoption of Kailynn D., 11 this court consid-
ered whether a county could be required to pay the fee of a
guardian ad litem in a private adoption. Our interpretation
of the statutes at issue focused on the rule that the intent of
6
See, D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017); In re
Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).
7
Anderson v. A & R Ag Spraying & Trucking, ante p. 484, ___ N.W.2d ___
(2020).
8
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
9
In re Guardianship of Suezanne P., 6 Neb. Ct. App. 785, 578 N.W.2d 64
(1998).
10
Id.
11
In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).
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the Legislature is expressed by omission as well as by inclu-
sion. 12 The statutory provision at issue in that case, Neb. Rev.
Stat. § 43-104.18 (Reissue 2016), addressed the court’s author-
ity to appoint a guardian ad litem to represent the interests of
the biological father. We reasoned that because the Legislature
expressly obligated a county to pay guardian ad litem or attor-
ney fees in other statutes, such as Neb. Rev. Stat. § 43-292.01
(Reissue 2016), but not in the statute at issue, the Legislature
did not intend to grant a court the authority to order a county
to pay the fees of a guardian ad litem appointed for a biological
father in a private adoption case. 13 We cited with approval In
re Guardianship of Suezanne P., noting that in both cases the
county was not involved in the case until the court ordered it
to pay fees. 14
In this matter, we must examine the statutory provisions
under the Nebraska Probate Code that address personal rep-
resentatives. A personal representative “includes executor,
administrator, successor personal representative, special admin-
istrator, and persons who perform substantially the same func-
tion under the law governing their status.” 15 A successor per-
sonal representative is “a personal representative, other than a
special administrator, who is appointed to succeed a previously
appointed personal representative.” 16 A personal representative
is entitled to reasonable compensation. 17 We have held that the
fixing of reasonable compensation is within the sound discre-
tion of the county court. 18
12
Id.
13
See id.
14
See id. See, also, In re Guardianship of Suezanne P., supra note 9.
15
§ 30-2209(33).
16
§ 30-2209(45).
17
§ 30-2480.
18
See, In re Estate of Graham, supra note 3; In re Estate of Odineal, 220
Neb. 168, 368 N.W.2d 800 (1985).
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This court has not been presented with any authority or
recognized course of procedure to support an order requiring a
county to pay a personal representative’s fees. Our review of
the relevant statutes indicates that a personal representative’s
fees are paid by the estate. Under § 30-2481, a personal rep-
resentative who defends or prosecutes any proceeding in good
faith is entitled to receive necessary expenses “from the estate.”
Under § 30-2482(1), the court may review the reasonableness
of the compensation determined by the personal representative
for his or her own services and may order the return of exces-
sive “compensation from an estate.” Section 30-2487 states
that “[c]osts and expenses of administration” are paid from
“assets of the estate.” Under § 30-2473, a personal representa-
tive is liable to interested persons for damage or loss resulting
from breach of his or her fiduciary duty.
We digress to note that the county court discharged the
copersonal representatives instead of merely removing them
or terminating their authority. Typically, courts remove or
terminate the status of a personal representative rather than
discharge the personal representative so that the terminated
personal representative remains responsible for any misdeeds
he or she may have committed while acting as personal
representative. 19
In returning to the case at bar, the Legislature has expressly
designated the estate as being responsible for personal rep-
resentative compensation. Additionally, the Legislature has
not expressly stated that a county is responsible for personal
representative compensation. Any rules governing whether
a county should be ordered to pay for a personal repre
sentative’s costs and expenses should be established by the
Legislature. 20
The County notes in its brief that there are a number of
statutory provisions which grant the court authority to require
19
See In re Estate of Graham, supra note 3.
20
See White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).
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counties to pay fees in other circumstances. 21 Regarding such
provisions under the Nebraska Probate Code, § 30-2620.01
permits a court to order a county to pay the reasonable fees
and costs of an attorney, a guardian ad litem, a physician, and
a visitor appointed by the court for an incapacitated person,
if the incapacitated person does not possess an estate. Section
30-2643 permits a court to order a county to pay the reasonable
fees and costs of an attorney, a guardian ad litem, a physician,
a conservator, a special conservator, and a visitor appointed by
the court for a protected person, if the protected person does
not possess an estate. The fact that the Legislature did not
expressly obligate counties to pay personal representative fees
and expenses reflects a legislative intent that a county cannot
be ordered to pay those fees. Moreover, this is a probate matter
in which the County was in no way involved. Accordingly, pur-
suant to In re Guardianship of Suezanne P. 22 and In re Adoption
of Kailynn D., 23 we conclude that the court erred in ordering
the County to pay Hodge’s fees.
Additionally, the County contends that the court should
have ordered the estate to pay for Hodge’s services before the
estate became insolvent. Prior to ordering the County to pay
Hodge’s reasonable compensation, the court ordered Hodge to
pay the estate’s court costs and outstanding federal and state
income taxes. Hodge paid court costs and a large portion, but
not all, of the federal taxes owed. The estate had insufficient
assets to satisfy the remaining federal and state taxes or com-
pensate Hodge. The County contends that if the estate cannot
fully pay all of its claims, the court should have given priority
to Hodge’s compensation under § 30-2487(a)(1). However,
21
See, Neb. Rev. Stat. § 29-3905 (Reissue 2016) (payment for attorneys
appointed to represent indigent felony defendants); Neb. Rev. Stat.
§ 42-358 (Reissue 2016) (payment for attorneys appointed for minor child
in domestic relations cases if responsible party is indigent).
22
In re Guardianship of Suezanne P., supra note 9.
23
In re Adoption of Kailynn D., supra note 11.
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we need not address the County’s argument regarding the
priority of payments to be made under § 30-2487(a), because
either way, the court lacked the statutory authority to order
the County to pay the successor personal representative’s fees.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. 24
CONCLUSION
Because the county court lacked the authority to order the
County to pay the successor personal representative’s fees and
expenses, the order granting fees and expenses is vacated.
Judgment vacated.
24
Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
Cassel, J., concurring.
This court’s opinion, which I join unreservedly, correctly
resolves the narrow issue presented in this appeal. But the
court’s opinion gives a glimpse of an estate that went horribly
wrong.
One lesson that deserves emphasis to the bench and bar is
the distinction between the termination of an appointment of a
personal representative and the discharge of a personal repre-
sentative. They are not synonymous. And unwitting use of the
wrong terminology can have disastrous consequences.
According to our transcript, on January 31, 2017, one of
the heirs sought the appointment of a new personal represent
ative to replace the original copersonal representatives. The
motion did not request that the original copersonal represent
atives be discharged.
Only 3 days later, at a hearing where the attorney for the
original copersonal representatives apparently informed the
court that they likely would be unable to complete admin-
istration, the county court not only appointed a new per-
sonal representative, it “discharged” the original copersonal
representatives. Because we have no record of the hearing
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on that date, our record contains only the court’s written
order.
The Nebraska Probate Code, 1 which is based on the Uniform
Probate Code, 2 clearly distinguishes a “termination of appoint-
ment” from a “discharge.” 3 Section 30‑2451 states:
Termination of appointment of a personal representa-
tive occurs as indicated in sections 30‑2452 to 30‑2455.
Termination ends the right and power pertaining to the
office of personal representative as conferred by this
code or any will . . . . Termination does not discharge a
personal representative from liability for transactions or
omissions occurring before termination, or relieve him
of the duty to preserve assets subject to his control, to
account therefor and to deliver the assets. Termination
does not affect the jurisdiction of the court over the per-
sonal representative, but terminates his authority to repre-
sent the estate in any pending or future proceeding.
(Emphasis supplied.) One of the methods for termination is
specified in § 30‑2454, which authorizes the county court to
remove a personal representative and sets forth the procedure
to do so. The comment to the equivalent provision of the uni-
form act explains, “‘Termination’, as defined by this and suc-
ceeding provisions, provides definiteness respecting when the
powers of a personal representative (who may or may not be
discharged by court order) terminate. . . . It is important to note
that ‘termination’ is not ‘discharge’.” 4
Under § 30‑24,115(a), a court “may enter an order or
orders, on appropriate conditions, . . . discharging the personal
1
Neb. Rev. Stat. §§ 30‑401 to 30‑406, 30‑701 to 30‑713, 30‑2201 to
30‑2902, 30‑3901 to 30‑3923, 30‑4001 to 30‑4045, 30‑4101 to 30‑4118,
and 30‑4201 to 30‑4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019).
2
Unif. Probate Code, § 1‑101 et seq., 8 U.L.A. 1 et seq. (2013 & Supp.
2019).
3
§ 30‑2451.
4
Unif. Probate Code § 3‑608, comment, 8 (part II) U.L.A. 138 (2013).
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representative from further claim or demand of any inter-
ested person.”
I express no opinion regarding the legal effect of the county
court’s order of February 9, 2017, which memorialized the
hearing of February 3. But I urge that courts be precise in the
use of this terminology. | 01-03-2023 | 08-14-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2575034/ | (2008)
ACCOUNTING PRINCIPALS, INC., Plaintiff,
v.
MANPOWER, INC., and International Business Machines Corporation, Defendants.
Case No. 07-CV-636-TCK-PJC.
United States District Court, N.D. Oklahoma.
May 23, 2008.
OPINION AND ORDER
TERENCE C. KERN, District Judge.
Before the Court is Plaintiff's Motion to Disqualify Counsel (Doc. 20). For reasons set forth herein, the motion is granted, and the law firm of Crowe and Dunlevy ("Crowe & Dunlevy") is disqualified from serving as counsel for Defendant Manpower, Inc. ("Manpower").
I. Factual Background
Plaintiff Accounting Principals, Inc. ("API") is a staffing company specializing in contract, contract to hire, and direct hire of accounting and finance professionals in the Tulsa employment market. On May 1, 2003, API and Defendant International Business Machines, Inc. ("IBM") entered into an agreement ("Base Agreement") under which API agreed to provide contract employees to fill finance and accounting positions at IBM's Tulsa office.
A. 2005 LawsuitCrowe & Dunlevy Represents API
On March 31, 2005, API filed suit against one of its staffing competitors, AcctKnowledge, and its owner, John Favell ("2005 Lawsuit"). API alleged that AcctKnowledge and Favell (1) tortiously interfered with contractual relationships between API and two of its employees by hiring them in violation of non-compete clauses in those employees' contracts; (2) interfered with API's business relations with several of its employees by "tempnapping" them; and (3) interfered with API's business relations with IBM by "tempnapping" API's employees. (See 3/31/05 Petition, Ex. A to Mot. to Disqualify.) "Tempnapping" was a term used by API in the 2005 Lawsuit to describe AcctKnowledge's alleged conduct of wrongfully soliciting and stealing API's employees working at IBM. Attorneys Craig Hoster ("Hoster") and Michael Pacewicz ("Pacewicz"), both of Crowe & Dunlevy, represented API in the 2005 Lawsuit.
During this same time frame, API pursued a complaint against IBM in an internal ombudsman program at IBM ("Ombudsman Proceeding"). The Ombudsman Proceeding was related to IBM's involvement in AcctKnowledge's alleged improper conversion of API's employees. Although Crowe & Dunlevy did not formally represent API during the Ombudsman Proceeding, API alleges that API employees "confided in the Crowe & Dunlevy attorneys regarding this dispute and sought and received their legal advice." (Aff. of Kimberly Nation, Ex. A to Reply to Mot. to Disqualify, at ¶ 6.) The IBM ombudsman ruled in favor of API. Subsequently, the 2005 Lawsuit was settled, and the case was dismissed with prejudice by stipulation of the parties on January 20, 2006.
B. Current LawsuitCrowe & Dunlevy Represents Manpower
On November 1, 2007, API filed the pending suit against another of its staffing competitors, Manpower, and against IBM.[1] In this case, API seeks injunctive relief (1) forcing Manpower to refrain from communicating with API employees; (2) forcing IBM to refrain from communicating with API employees regarding agreements between IBM and API; (3) forcing IBM to perform its obligations under the Base Agreement; and (4) forcing IBM to cease coordination with and/or provision of assistance to Manpower in its efforts to contract or communicate with API employees. API also asserts three other causes of action: (1) a claim against IBM for breach of the Base Agreement; (2) a claim against Manpower for tortious interference with API's contractual relations with IBM; and (3) a claim against IBM and Manpower for tortious interference with prospective business relations between API and its employees. (See 11/1/07 Verified Petition, Ex. E to Mot. to Disqualify.) API is represented by Tony Haynie and Jed Isbell, of the law firm of Conner & Winters. Manpower is represented by James L. Kincaid ("Kincaid") and Randall J. Snapp ("Snapp"), of Crowe & Dunlevy.
API has moved to disqualify all attorneys at the law firm of Crowe & Dunlevy from representing Manpower based on Crowe & Dunlevy's prior representation of API in the 2005 Lawsuit. API contends that Crowe & Dunlevy has a conflict of interest, as defined in Oklahoma Rules of Professional Conduct 1.9(a) ("ORPC 1.9(a)") and 1.10(a) ("ORPC 1.10(a)"). Specifically, API contends that Hoster and Pacewicz have a conflict of interest pursuant to ORPC 1.9(a) and that such conflict is imputed to the Crowe & Dunlevy firm, including Kincaid and Snapp, pursuant to ORPC 1.10(a).[2]
II. General Standard Governing Motions to Disqualify
Control of attorneys' conduct in trial litigation is within the supervisory powers of the trial judge and is a matter of judicial discretion. Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1383 (10th Cir.1994). In exercising its discretion and determining whether to grant a motion to disqualify, federal courts must look to "two sources of authority." Id. "First, attorneys are bound by the local rules of the [federal] court in which they appear." Id. As noted by the Tenth Circuit, "[f]ederal district courts usually adopt the Rules of Professional Conduct of the states where they are situated." Id. The Northern District of Oklahoma has adopted the Oklahoma Rules of Professional Conduct ("ORPC") as the standard governing attorney conduct. See N.D. Okla. LCvR 83.6(b). Therefore, one source of law that the Court must consult is the Oklahoma Rules of Professional Conduct.
"Second, because motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of the parties, they are decided by applying standards developed under federal law." Cole, 43 F.3d at 1383 (emphasis added); see also United States v. Stiger, 413 F.3d 1185, 1195 (10th Cir.2005) (same). Under Tenth Circuit law, "motions to disqualify are governed by the ethical rules announced by the national profession and considered in light of the public interest and the litigants' rights." Cole, 43 F.3d at 1383 (quotation omitted) (emphasis added). Thus, although federal courts must consult state rules of professional conduct, they are not bound by state-court interpretations of such rules. See Weeks v. Indep. Sch. Dist. No. 1-89 of Okla. County., 230 F.3d 1201, 1214 (10th Cir.2000) (Briscoe, J., concurring) (explaining that neither district court nor Tenth Circuit was bound by Oklahoma Supreme Court's interpretation of ORPC 4.2 because "ethical rules in federal court are subject to a national standard"). Nonetheless, Judge Briscoe advised that "it would arguably create procedural difficulties for practitioners in Oklahoma were we to adopt an interpretation of Rule 4.2 different from that adopted by the Oklahoma Supreme Court." Id. Based on these pronouncements, the Court's task is to "apply[ ] standards developed under federal law," Cole, 43 F.3d at 1383, while attempting to avoid any inconsistencies with state law that would "create procedural difficulties for practitioners in Oklahoma," see Weeks, 230 F.3d at 1214.
III. Standard Governing Motions to Disqualify Based on ORPC 1.9(a)
A. ORPC 1.9(a) and 1.10(a)
API asserts that disqualification is warranted based on the conflict of interest rule governing duties to former clients set forth at ORPC 1.9(a):
Rule 1.9. Conflict of Interest: Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
Okla. Stat. tit. 5, Ch. 1, App. 3-A, Rule 1.9.[3] API further contends that the conflict of interest is imputed to the entire Crowe & Dunlevy firm pursuant to ORPC 1.10(a):
Rule 1.10. Imputation of Conflicts of Interest: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.6 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not represent a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
Id. at Ch. 1, App. 3-A, Rule 1.10. It is not disputed that, if Hoster and Pacewicz have a conflict of interest pursuant to ORPC 1.9(a) based on their prior representation of API, such conflict may be imputed to the entire firm of Crowe & Dunlevy pursuant to ORPC 1.10(a).[4] The dispute is whether API has met its burden of proving that the 2005 Lawsuit and the present case are substantially related, and that disqualification is warranted in light of the public interest and the litigants' rights.
B. Tenth Circuit Standard
Pursuant to Tenth Circuit law, a party seeking to disqualify opposing counsel pursuant to ORPC 1.9(a) must establish that "`(1) an actual attorney-client relationship existed between the moving party and the opposing counsel; (2) the present litigation involves a matter that is `substantially related' to the subject of the movant's prior representation; and (3) the interests of the opposing counsel's present client are materially adverse to the movant.'" Stiger, 413 F.3d at 1196 (quoting Cole, 43 F.3d at 1383). If the movant establishes the first two prongs, "an irrebuttable 'presumption arises that a client has indeed revealed facts to the attorney that require his disqualification.'" Id. (quoting Smith v. Whatcott, 757 F.2d 1098, 1100 (10th Cir.1985)). This irrebuttable presumption under Tenth Circuit law is consistent with the Comment to the most recent version of ORPC 1.9, which took effect January 1, 2008:
A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.
Okla. Stat. tit. 5, Ch. 1, App. 3-A, Rule 1.9, Cmt. Thus, API need not come forward with evidence of the actual confidential information that was revealed to Hoster and Pacewicz during the 2005 Lawsuit. Instead, the Court may conclude that these attorneys have confidential information to use in this matter if API demonstrates that (1) an actual attorney-client relationship existed; and (2) this case involves a matter that is substantially related to the 2005 Lawsuit.[5]
C. Oklahoma Supreme Court's Decision in Arkansas Valley State Bank v. Phillips
Although Manpower concedes that federal standards govern the motion to disqualify, Manpower seems to argue that API is not entitled to the irrebuttable presumption under Tenth Circuit law. Relying on the Oklahoma Supreme Court case of Arkansas Valley State Bank v. Phillips, 171 P.3d 899 (Okla.2007), Manpower criticizes API's reliance "upon presumptions that have been implicitly rejected by the Oklahoma Supreme Court" and API's failure to "identify `specific fact[s] . . . that [Crowe & Dunlevy attorneys] had knowledge of material and confidential information." (Id. 10 (quoting Phillips).) Although it is not bound by Oklahoma law interpreting the professional rules, the Court does have an obligation to consider relevant Oklahoma Supreme Court decisions and, if possible, avoid inconsistencies that would "create procedural difficulties for practitioners in Oklahoma." See Weeks, 230 F.3d at 1214. Accordingly, the Court will address the Phillips decision and its impact on the instant case.
In Phillips, a bank filed a breach of contract suit against a securities firm and an individual employed by both the bank and the securities firm. The individual and the securities firm were represented by attorney Bill Wilkinson ("Wilkinson"). During discovery, Wilkinson conducted depositions of several bank employees. Following his deposition, one bank employee was terminated. The terminated employee retained Wilkinson to represent him in a wrongful termination suit against the bank. The bank moved to disqualify Wilkinson as counsel in the contract dispute based on Wilkinson's representation of the terminated employee in the wrongful termination suit, arguing that Wilkinson had received confidential information from the terminated employee that was material to the contract dispute. The bank relied on ORPC 4.2, which prohibits communication with a represented party, and ORPC 1.6, which prohibits a lawyer from revealing information relating to representation of a client, as the specific grounds for disqualification of Wilkinson. The district court rejected the bank's argument based on ORPC 4.2 because the terminated employee did not have the authority to speak for or bind the bank. Id. at 905. However, the district court accepted the bank's argument based on ORPC 1.6 and granted the motion to disqualify, finding that there was "beyond a nagging suspicion" that the terminated employee had disclosed confidential information to Wilkinson. Id. at 902, 906.[6] The district court did so despite the terminated employee's testimony that he never disclosed confidential information to Wilkinson. Id. at 906 n. 35.
On appeal, the "central point of contention" was the proper test to apply when faced with a motion to disqualify counsel. Id. at 903. The bank argued that an "appearance of impropriety test" should be employed, with doubts resolved in favor of disqualification. Id. Wilkinson argued that the appearance of impropriety test had been abrogated and that a movant should bear a heavy burden to disqualify counsel. The court rejected use of the appearance of impropriety test, held that "[d]isqualification is such a drastic measure that it should be invoked if, and only if, the court is satisfied that real harm is likely to result," and reversed the disqualification order. Id. at 905. According to the Oklahoma Supreme Court, the trial court erred by failing to make findings that Wilkinson had knowledge of the bank's material and confidential information and by resolving doubts in favor of disqualification. Id. The court concluded by stating:
A party litigant's right to employ the counsel of his or her choice is fundamental. A disqualification order is a drastic measure. The standard for granting a motion to disqualify counsel is whether real harm to the integrity of the judicial process is likely to result if counsel is not disqualified. If a trial court grants a motion to disqualify counsel based on conflict of interest or improper possession of confidential information, it must hold an evidentiary hearing and make a specific factual finding that the attorney had knowledge of material and confidential information.
Id. at 911 (emphasis added).
To the extent Manpower relies on Phillips in an attempt to avoid the irrebuttable presumption that arises under federal law, the Court rejects such reliance. First, Phillips is not binding on this Court, and the Court will not apply Phillips in a manner that is inconsistent with the relevant three-part test set forth in Tenth Circuit precedent. Second, any interpretation of Phillips that would require a moving party to present evidence of the precise confidential information that was obtained during the prior representation is inconsistent with the new Comment to ORPC 1.9(a), which took effect approximately two months following the Phillips decision. See In re Application of the Okla. Bar Ass'n to Amend the Okla. Rules of Prof'l Conduct, 171 P.3d 780 (Okla.2007) (showing differences between former Comment to ORPC 1.9 and new Comment to ORPC 1.9). The new Comment provides that the "former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter." Okla. Stat. tit. 5, Ch. 1, App. 3-A, Rule 1.9, Cmt. (emphasis added). Thus, ORPC 1.9(a) actually supports application of the irrebuttable presumption and is consistent with federal law.
Third, the facts of Phillips are distinguishable from those presented, and the court in Phillips did not expressly address an alleged violation of ORPC 1.9(a). In Phillips, Wilkinson did not accept representation that was substantially related to a matter involving one of his own former clients. Wilkinson accepted representation of an individual that had recently been fired by an opposing party in the present litigation, and the terminated party expressly testified that he had not revealed any confidential information to Wilkinson. Although the Oklahoma Supreme Court stated that "[t]he common thread running through each of the Bank's arguments is that the attorney was improperly in possession of confidential information about the Bank's suit" and therefore extended its holding to all cases involving a "conflict of interest," the Court never directly addressed ORPC 1.9(a) or the issue of a "substantially related" matter involving a former client.
Finally, even assuming the standard set forth in Phillips remains applicable to ORPC 1.9(a) and was intended to govern violations of ORPC 1.9(a), it is not entirely clear that API must actually reveal the confidential information in order to comply with the Phillips standard. The standard in Phillips is "whether real harm to the integrity of the judicial system is likely to result if counsel is not disqualified." Id. at 911. The more specific required finding is that the disqualified attorney "had knowledge of material and confidential information." Id. In a case involving Rule 1.9(a), a court could potentially make a finding, based purely on the substantial relatedness of the two matters, that an attorney had knowledge of material and confidential information without knowing precisely what that information is. A court could certainly make a finding, based purely on the relatedness of the two matters, that "real harm" to the integrity of the judicial system is likely to result if the attorney is not disqualified. Therefore, even in applying the federal standard and the irrebuttable presumption, this Court will not necessarily run afoul of Oklahoma law. Cf. Prospective Investment and Trading Co., Ltd. v. GBK Corp., 60 P.3d 520, 525-26 (Okla.Civ.App.2002) (specifically addressing ORPC 1.9(a) and 1.10(a)) (explaining that the trial court could properly "infer[ ] from the circumstances" whether a law firm was provided with confidential information "to such extent that it ha[d] knowledge of confidential information" and that district court was not required to "conduct an inquiry and identify the confidential information with specificity ... [because] the confidential nature of the information would be compromised").
IV. Analysis of Whether 2005 Lawsuit and Present Case Are Substantially Related
The first prong, the existence of a former attorney-client relationship between Crowe & Dunlevy and API, is not disputed. The dispute is whether API can satisfy the second prong, which requires a showing that "the present litigation involves a matter that is `substantially related' to the subject of [API's] prior representation" by Crowe & Dunlevy. Stiger, 413 F.3d at 1196. The Comment to ORPC 1.9(a), which is identical to that contained in the model rule, provides significant guidance in determining when two "matters" are "substantially related":
The scope of a "matter" for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. . . . The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.
Okla. Stat. tit. 5, Ch. 1, App. 3-A, Rule 1.9, Cmt. (emphasis added); see also ABA Model Rule of Prof'l Conduct 1.9, Cmt. (identical). Consistent with this Comment, the Tenth Circuit "look[s] to whether the factual contexts of the two representations are similar or related." Stiger, 413 F.3d at 1196 (quotations omitted); Cole, 43 F.3d at 1384 (same); SLC Ltd. V, 999 F.2d at 466 (same). According to the Tenth Circuit, "[t]he underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question." Stiger, 413 F.3d at 1196.
The Court concludes that the 2005 Lawsuit and this case are "substantially related" and that there is a "substantial risk" that confidential factual information obtained by Crowe & Dunlevy in the 2005 Lawsuit would materially advance Manpower's position in the present case. First, there is significant overlap in the legal claims asserted against AcctKnowledge and Manpower. Both cases involve allegations that a competitor of API "tempnapped" API employees from one of its clients, IBM. In serving as counsel for the 2005 Lawsuit for over a one-year period of time, there is a substantial likelihood that Crowe & Dunlevy learned, and even created, trial strategies in asserting a claim against a competitor for tempnapping employees assigned by API to IBM. Just like AcctKnowledge, Manpower is a competitor that API has accused of tortiously interfering with prospective business advantages to be gained by API from its employees. This is simply the same claim against a different defendant. Crowe & Dunlevy's contention that it has gained no tactical or material advantage in formerly representing API in prosecuting an identical claim against a different competitor is without merit.
Second, and contrary to Manpower's arguments, there is a significant factual overlap between the two matters. Manpower argues that "[n]one of the facts or circumstances surrounding the [2005 Lawsuit] will bear upon this matter, and many of those facts have been rendered obsolete by the passage of time." (Resp. to Mot. to Disqualify 6.) However, the Court finds many facts and circumstances that are relevant to both actions, including but not limited to: (1) API's internal procedures and competitive strategies aimed at retaining employees assigned to IBM and generally preventing tempnapping of its employees by its competitors; (2) API's internal response and strategy when tempnapping by a competitor occurs; (3) API's internal information regarding its client relationship with IBM and the Base Agreement that is at issue in the present case; (4) API's resolution of the Ombudsmen Proceeding, which was intertwined with the 2005 Lawsuit, and any compromises reached by API with IBM as a result of such proceeding; and (5) API's ongoing strategies for maintaining its client relationship with IBM. There is a significant factual nexus between the two lawsuits that creates a substantial risk that Crowe & Dunlevy possesses confidential information that could further the interests of Manpower in this case. See SLC Limited V, 999 F.2d at 467 (finding that attorney's knowledge of former client's financial position, negotiating strategies, and its capacity to settle its outstanding indebtedness created conflict in representing secured creditor in bankruptcy proceeding, where the former client was a general partner of the bankruptcy debtor). Further, the 2005 Lawsuit was dismissed in January 2006, and this action was filed in late 2007. This is not such a significant passage of time that facts and information learned by Crowe & Dunlevy would now be rendered obsolete. Indeed, it is the same Base Agreement with IBM that API sought to protect in both cases.
Third, the Court rejects Manpower's argument that, because API now seeks injunctive relief and because API has now included IBM as a defendant, the two cases are not substantially related. (See Resp. to Mot. to Disqualify 7-8.) By attempting to characterize the breach of contract claim against IBM as the "principal" claim asserted in this case, Manpower ignores that the fourth cause of action against it is identical to a cause of action asserted against AcctKnowledge in the 2005 Lawsuit. The claim against Manpower is not merely a throw-away claim in a larger, unrelated case that is really against IBM. The allegations are that Manpower, after striking a deal with IBM, placed representatives outside IBM and solicited API employees to leave API in order to maintain their IBM jobs. (See 11/1/07 Verified Petition, Ex. E to Mot. to Disqualify, at ¶ 15.) Clearly, API has accused Manpower of wrongdoing that is distinct from IBM's alleged breach of the Base Agreement. Further, although IBM was not a party to the 2005 Lawsuit, the Base Agreement was relevant and material to the question of whether AcctKnowledge tortiously interfered with such agreement. There is a high likelihood that API learned numerous facts regarding API's negotiation, performance, and interpretation of the Base Agreement that could materially advance Manpower's position that it did not tortiously interfere with the Base Agreement. In addition, although API did not sue IBM in the 2005 Lawsuit, API was, during the same time frame, involved in a dispute with IBM regarding its conduct in relation to API employees and AcctKnowledge. That dispute proceeded along a parallel track with the 2005 Lawsuit and, according to API, was instrumental in its decision to settle and dismiss the 2005 Lawsuit.
Fourth, Manpower's argument that there is no substantial risk that confidential information was learned because there was no discovery taken and there was a "minimal amount of activity" in the 2005 Lawsuit is unpersuasive. The amount of discovery or the number of entries on the state court docket sheet are irrelevant to the question of whether confidential information was potentially derived from one's client during the course of a year-long attorney/client relationship. Further, the fact that the Base Agreement is public record in no way minimizes the risk that Crowe & Dunlevy has confidential information regarding the Base Agreement.
Fifth, the Court does not share Manpower's concerns that the Court's disqualification of Crowe & Dunlevy will have farreaching, negative effects on its practice or the modern legal practice in general. (See Resp. to Mot. to Disqualify 7 ("The approach advocated by Plaintiff would essentially require disqualification whenever a law firm represented a new client in a matter adverse to a former client and the two matters involved similar legal theories because the law firm might have obtained confidential information about the former client's views with respect to those legal theories. In effect, Plaintiff is seeking to prevent [Crowe & Dunlevy] from ever representing an adverse party where the claims and legal theories resemble those in the 2005 Lawsuit."). In this case, there is not merely an overlap of generalized legal theories or "general knowledge of the client's policies and practices." Okla. Stat. tit. 5, Ch. 1, App. 3-A, Rule 1.9, Cmt. Instead, there is evidence of a likelihood of "knowledge of specific facts gained in a prior representation that are relevant to the matter in question." Id. This is because the 2005 Lawsuit involved the same underlying client agreement and client relationship with IBM. It also involved the same underlying allegations, which were that IBM and a competitor worked together to terminate API as a staffing provider.
Such facts make the case distinguishable from SST Castings, Inc. v. Amana Appliances, Inc., 250 F.Supp.2d 863 (S.D.Ohio 2002), the principal case relied upon by Manpower. In that case, the moving party sought to disqualify opposing counsel in a breach of contract action based on counsel's representation of the moving party in former, unrelated breach of contract actions. Id. at 868. The court characterized the information obtained during the former representation as "background information" and mere "familiarity of the workings of the corporation." Id. at 869. The court explained that the "simple fact that a law firm has represented a client in garden-variety contract disputes, does not mean that when the client chooses representation by another firm, the client has veto power to block its former firm from representing an adverse party in yet another garden-variety contract dispute." Id. at 868 (emphasis added). In this case, API has not merely shown that Crowe & Dunlevy represented it in a garden-variety breach of contract case. API has shown that Crowe & Dunlevy represented it in a former case presenting highly similar facts and legal issues and involving the same contract with IBM. Crowe & Dunlevy is free to accept representation against API in other matters; however, these two cases are so related in time and subject matter that a conflict of interest exists.
For reasons explained above, API has shown that the two matters are substantially related. The Court finds that there is a "substantial risk" that Crowe & Dunlevy gained confidential information based on its former attorney/client relationship with API that would give Manpower a material advantage in this case, such that ORPC 1.9(a) is violated by Crowe & Dunlevy's representation of Manpower. Further, the Court concludes that disqualification is warranted in light of the public interest and the litigants' rights. Specifically, Manpower's right to select counsel is outweighed by (1) API's right to protect its confidential information and legal strategies regarding retention of its employees that work at IBM, and (2) the public's interest in trials that are untainted by unfair advantage.
Plaintiff's Motion to Disqualify Counsel (Doc. 20) is GRANTED. Manpower shall cause an entry of appearance to be entered by new counsel no later than Friday, June 6, 2008. All parties shall submit a revised Joint Status Report no later than Wednesday, June 18, 2008. A Scheduling Order will be entered following submission of the Joint Status Report.
NOTES
[1] The case was filed in the District Court for Tulsa County, Oklahoma and was removed to this Court on November 6, 2007.
[2] Neither Hoster or Pacewicz have entered an appearance on behalf of Manpower before this Court. However, Pacewicz appeared with Kincaid at the hearing held in state court on API's motion for temporary restraining order. For purposes of this Order, the Court assumes that only Kincaid and Snapp seek to serve as named counsel for Manpower in this action.
[3] ORPC 1.9(a) is identical to the ABA Model Rule of Professional Conduct. See ABA Model Rule of Prof'l Conduct 1.9. Thus, the Oklahoma rule reflects the national standard.
[4] As explained in the Comment to ORPC 1.10, "a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated." Id. at Ch. 1, App. 3-A, Rule 1.10.
[5] The irrebuttable presumption does not apply in cases in which the lawyer who formerly represented the moving party has changed law firms, and the moving party seeks to disqualify the attorney's new firm pursuant to ORPC 1.10(b) or a similar rule. See SLC Ltd. V v. Bradford Group West, Inc., 999 F.2d 464, 468 (10th Cir.1993) (explaining that the attorney's new law firm is "disqualified only when the attorney involved had actual knowledge of protected material information protected"). In this case, the attorneys who allegedly possess confidential information, Hoster and Pacewicz, remain employed at Crowe & Dunlevy.
[6] The bank argued, and the district court apparently agreed, that ORPC 1.6 imposes a "duty on attorneys not only to refrain from disclosing confidential information, but also a correlative duty to refrain from inducing others to disclose confidential information." Id. at 906. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1502627/ | 366 F. Supp. 1268 (1973)
UNITED STATES of America ex rel. Nelson AYALA, Petitioner,
v.
James TUBMAN, Warden, Rikers Island Hospital, Respondent.
No. 73 C 1191.
United States District Court, E. D. New York.
November 26, 1973.
MEMORANDUM ORDER
NEAHER, District Judge.
Petitioner, at the time of filing this application for a writ of habeas corpus, was incarcerated in the Rikers Island Hospital, apparently following a plea of guilty to an indictment that had been pending in the Bronx County Supreme Court. Petitioner alleges a denial of his constitutional right to a speedy trial, inducement to the entering of a perjured plea, and either a coerced withdrawal or outright denial of his right to appear before the grand jury. Petitioner also alleged that he had effectively exhausted all available State remedies.
On October 2, 1973, this court issued an order to show cause to the State Attorney General. The order was ultimately responded to by letter of November 15, 1973 from the Office of the District Attorney of Bronx County, which confirmed that petitioner is confined at Rikers Island pursuant to a guilty plea in the Bronx County Supreme Court.
The District Attorney's letter and independent inquiry brought to the court's attention that Rikers Island, despite its mailing address in Queens County, is nonetheless within the territorial boundaries of Bronx County. The territorial jurisdiction of this court does not include Bronx County, but does include Queens County and "concurrently with the Southern District, the waters within the counties of Bronx and New York." 28 U.S.C. § 112(c) (1970). The question of whether Rikers Island can be considered to be part of the "waters within Bronx County" is for this case more than a curious abstraction. Unless *1269 petitioner's place of incarceration can be considered within the statutorily defined boundaries of this district, his petition fails to meet the requirements of 28 U. S.C. § 2241(d) (1970), as both petitioner's place of custody and the sentencing court are within the Southern District of New York.
A common-sense approach to the problem suggests that what Congress had in mind in its limited establishment of concurrent jurisdiction in adjoining waters was the avoidance of difficult venue questions in maritime-connected cases arising in such waters. At any rate, it can hardly be thought Congress intended that two district courts shall have jurisdiction over the same area of land, particularly when State legislators and cartographers have no difficulty in precisely locating that land within one of the districts. The fact that the land in question is an island within the waters of concurrent jurisdictions does not alter the situation, for the same could be said for the islands of Manhattan and Long Island. Accordingly, the court concludes that, at least insofar as 28 U. S.C. § 2241(d) is concerned, inmates of the New York City Department of Correction's facilities on Rikers Island who have been convicted and sentenced in a State court held outside of this district may not file an application for a writ of habeas corpus in this court.
There remains the vexing question of the proper disposition of the instant application. District courts in this circuit have been divided on the question of whether, in a case such as this, the application may be transferred under 28 U.S.C. § 1406(a) for improper venue, or whether the defect under 28 U.S.C. § 2241(d) is jurisdictional, requiring a dismissal. In United States ex rel. Ruffin v. Mancusi, 300 F. Supp. 686 (E.D. N.Y.1969), Judge Judd of this court adopted the venue approach and ordered a transfer of the petition. Among the reported cases, both before and after Ruffin, district courts of this circuit have found the defect one of subject matter jurisdiction which required outright dismissal of the petition. United States ex rel. Ervin v. Sawner, 322 F. Supp. 1108 (S.D.N.Y.1971), United States ex rel. Jimenez v. Conboy, 310 F. Supp. 801 (S.D.N.Y.1970); United States ex rel. Griffin v. LaVallee, 270 F. Supp. 531 (E.D.N.Y.1967) (Weinstein, J.). The practical difference in these approaches is whether or not the petitioner would be obliged to refile his petition in the proper court at a subsequent time.
A review of these cases leaves this court convinced that although § 2241(d), in referring to judicial districts, is phrased in terms traditionally associated with venue requirements, the overall statutory language and its legislative history make clear that it is a grant of subject matter jurisdiction to appropriate courts to entertain applications for writs of habeas corpus. That conclusion is strengthened by Judge Weinfeld's instructive analysis of this problem in Jimenez, supra, which adds that prior to the enactment of § 2241(d), Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948), had to be read as establishing subject matter jurisdiction limitations on 28 U.S.C. § 2241 (a). 310 F.Supp. at 802-803. Since § 2241(d) was enacted in response to the Ahrens-created "jurisdictional void" in the sentencing district when the petitioner was no longer confined there, § 2241(d) must also be read as jurisdictional. Id.
This analysis, once very persuasive, may be questionable in light of the holding in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973). Braden, if it did not overrule the Ahrens rule entirely, substantially undercut its jurisdictional basis, strongly suggesting that it was not to be read as Judge Weinfeld has taught. 410 U.S. at 494-500, 93 S. Ct. 1123. Nevertheless, the Braden case does not construe § 2241(d), and hence does not control here. The court therefore adheres to its view of the statute, and concludes, on its own motion, that *1270 there is no subject matter jurisdiction in the instant case.
Ordinarily such a conclusion would end the matter, the result being an outright dismissal as in Jimenez, supra. However, the court declines to follow this route, for it is convinced that even a defect of subject matter jurisdiction in the special circumstances of this case does not defeat the court's power to transfer under § 1406(a).
The starting point for what may at first blush seem a remarkable construction is Goldawr, Inc. v. Heiman, 369 U.S. 463, 82 S. Ct. 913, 8 L. Ed. 2d 39 (1962), a decision no less remarkable in this circuit in its own time. In Goldlawr the Supreme Court reversed the Second Circuit, 288 F.2d 579 (1961), to hold that transfer under § 1406(a) for improper venue was not precluded where the transferor court was without power to adjudicate the case because of a lack of personal jurisdiction over the defendants. Justice Black concluded that there was nothing in the language or legislative history of § 1406(a) that compelled the restrictive construction of the Court of Appeals. Id. at 465-466, 82 S. Ct. 913. On the contrary, he concluded, its language and history showed a congressional purpose to remedy such injustices as a dismissal merely because of "an erroneous guess with regard to the existence of some elusive fact of the kind upon which venue provisions often turn." Id. at 466, 82 S.Ct. at 915.
The real defect in this case, of course, is exactly the type of which Justice Black spoke. But as has been indicated, the court is obliged to read the somewhat ambiguous language of § 2241(d) as establishing something more than a mere venue requirement. That, however, does not change the fact that the defect here is one traditionally associated with those that § 1406(a) was meant to cure. In Goldlawr the Court did not allow the transferor court's lack of power to adjudicate the case to restrict the availability of the transfer power, and this court is unable to perceive a sound reason for failing to apply the Goldlawr rationale to the instant case.[1]
It cannot be overemphasized that it is the variable nature of the jurisdictional statute in this case, § 2241(d), that makes this result possible. The majority of federal cases arise under jurisdictional statutes which prescribe requirements that are invariant over all federal judicial districts. For example, under §§ 1331-1332, neither the substantiality of federal questions, the amount in controversy, nor the citizenship of the parties depend on what district the action is filed in. A § 1406(a) transfer of a case defective under either of those statutes, therefore, would be a pointless gesture, and one obviously in frustration of the general purposes underlying § 1406(a).
There are, of course, other federal statutes in addition to § 2241(d) which link subject matter jurisdiction to variable venue considerations.[2] For example, *1271 33 U.S.C. § 921(d) (Supp. II 1972) provides for application, for the enforcement of compensation orders of the Benefits Review Board under the Longshoremen's and Harbor Workers' Compensation Act, "to the Federal District court for the judicial district in which the injury occurred." Some pre-Goldlawr cases have interpreted this statute[3] to preclude a § 1406(a) transfer for improper venue where there was a defect in § 921 subject matter jurisdiction. Atlantic Ship Rigging Co. v. McLellan, 288 F.2d 589 (3 Cir. 1961); Hughes v. Quigley, 184 F. Supp. 568 (D.N.J.1960). See generally Annot., 3 A.L.R.Fed. 467, 496-98 (1970). Without passing on the applicability of this court's approach with respect to § 2241(d) to cases arising under 33 U.S.C. § 921(d) and similar statutes,[4] it is sufficient to say that the court finds both Atlantic and Hughes unpersuasive in light of the later developments in Goldlawr.
Post-Goldlawr cases include Grubisic v. Esperdy, 229 F. Supp. 679 (S.D.N.Y. 1964). Grubisic dealt with a sui generis situation under the Immigration and Nationality Act and is likewise not controlling here. The remaining post-Goldlawr cases are the habeas corpus cases discussed earlier, and this court is obliged to disagree with them to the extent of holding that a transfer under § 1406(a) for improper venue is available, if it be in the interest of justice, when a federal district court in a state with two or more federal judicial districts receives an application for a writ of habeas corpus which could not properly have been brought there but could have been brought in another federal district court of that same state.
In this case the pro se nature of the petition, the court's own confusion about the location of the correctional facility, the potential for confusion in the disparity between the county boundaries and the facility's mailing address, and the unnecessary delay that a dismissal would cause all cry out for the discretionary transfer under § 1406(a) held available in this case.
Accordingly, the application is ordered transferred by the Clerk of this Court to the Clerk of the Court of the Southern District of New York under 28 U.S.C. § 1406(a).
So ordered.
NOTES
[1] In fact, while not dispositive of the construction given here for § 1406(a), taken as a whole, § 1406, Cure or Waiver of Defects, would seem to contemplate some defects of subject matter jurisdiction. Section 1406(c) allows transfer by the district court of cases there filed wherein the only subject matter jurisdiction lies in the Court of Claims. See the legislative history in 1960 U.S.Code Cong. & Admin.News, p. 3583 (S.Rep.No. 1894, 86th Cong., 2d Sess.). The underlying rationale for this addition to § 1406 is equally applicable to the instant case:
"The reform of existing practice embodied in this bill is another expression of the underlying philosophy of the Federal Rules of Civil Procedure and of modern legal practice generally, that the decisive question in a lawsuit should, as far as possible, be its merits and not esoteric, technical problems of procedure." Id. at U.S.Code Cong. & Admin.News, p. 3585.
[2] As is the case here, all such statutes preclude consideration of the problem of whether or not a § 1406(a) transfer can be made where venue is proper but subject matter jurisdiction is lacking. Cf. transfer cases where venue was proper but personal jurisdiction was lacking. See C. Wright, Federal Courts § 44, at 164 n. 17 (2d ed. 1970). See also the dissenting opinion in Goldlawr, supra.
[3] Then a part of 33 U.S.C. § 921(b).
[4] Similarly, the court expresses no view on the legitimacy of transfer of a case erroneously founded in the court's derivative jurisdiction. See Grimes v. Hull-Dobbs, Inc., 154 F. Supp. 151 (E.D.Ky.1957). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2522389/ | 52 F. Supp. 2d 34 (1999)
Tom CAMPBELL, et al., Plaintiffs,
v.
William Jefferson CLINTON, President of the United States, Defendant.
No. Civ.A. 99-1072 PLF.
United States District Court, District of Columbia.
June 8, 1999.
*35 Jules Lobel, Michael Ratner, Franklin Siegel, William Goodman, Jennifer Green, Center for Constitutional Rights, New York City, James Robert Klimaski, Klimaski & Smith, Washington, DC, H. Lee Halterman, Oakland, CA, Joel E. Starr, Washington, DC, for plaintiffs.
Andrea Gail Cohen, U.S. Dept. Of Justice, Federal Programs Branch, Washington, DC, for defendant.
OPINION
PAUL L. FRIEDMAN, District Judge.
Since March 24, 1999, the United States has been participating in an air offensive launched by the North Atlantic Treaty Organization against the Federal Republic of Yugoslavia. Plaintiffs, twenty-six members of the United States House of Representatives, seek a declaration that the President has violated the War Powers Clause of the Constitution and the War Powers Resolution, 50 U.S.C. § 1541, et seq., by involving the United States in the air offensive without congressional authorization. The defendant is the President of the United States, who has filed a motion to dismiss this action. Upon full consideration of the defendant's motion, plaintiffs' opposition, the defendant's reply and the arguments presented by counsel at the hearing held on June 3, 1999, and for the reasons stated below, the Court concludes that plaintiffs do not have standing to raise these claims. The motion to dismiss therefore will be granted.
I. BACKGROUND
A. Constitutional and Statutory Framework
The War Powers Clause of the United States Constitution provides Congress with the power to "declare War...." U.S. Constitution, Art. I, § 8, cl. 11. Congress' power to declare war works in conjunction with the authority granted to the President under the Constitution to act as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. Constitution, Art. II, § 2, cl. 1. The Constitution does not further delineate the precise scope of the powers granted to the executive and legislative branches, but clearly the Framers intended to *36 give each of the two branches a role in the conduct of foreign affairs. Essentially, Congress would declare war and raise and financially maintain armies, while the President would conduct wars.
In 1973, over President Richard Nixon's veto, Congress passed the War Powers Resolution, 50 U.S.C. § 1541, et. seq., in order to "fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations." 50 U.S.C. § 1541(a). The purpose of the resolution was to ensure that the "constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." 50 U.S.C. § 1541(c).
The War Powers Resolution provides, inter alia, that "[i]n the absence of a declaration of war, in any case in which United States Armed Forces are introduced (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours" to the Speaker of the House of Representatives and to the President pro tempore of the Senate a written report setting forth the circumstances necessitating the introduction of forces, the constitutional and legislative authority to introduce the forces and the estimated scope and duration of the hostilities or involvement. 50 U.S.C. § 1543(a). The President also is required to submit periodic reports, at least every six months, for as long as the forces remain engaged in hostilities. 50 U.S.C. § 1543(c).
Within sixty calendar days after the President either submits a report pursuant to Section 1543(a) or is required to have submitted a report, the President must terminate the use of the United States Armed Forces described in Section 1543 unless Congress (1) has declared war or has provided specific authorization for the use of such forces, (2) has extended by law the sixty-day time period, or (3) is physically unable to meet as a result of an armed attack on the United States. 50 U.S.C. § 1544(b). The President may extend the sixty day period an additional thirty days if he determines and certifies in writing to the Congress that the continued use of forces for the additional time is necessary to safely remove the United States Armed Forces. Id. The War Powers Resolution also sets forth a mechanism so that both houses of Congress are required to give priority consideration to any resolution or bill that would provide the President with the authorization described above. See 50 U.S.C. §§ 1545, 1546, 1546a.
Finally, the War Powers Resolution explicitly provides that authority to introduce forces into hostilities shall not be inferred "from any provision of law ... including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of [the War Powers Resolution]," or "from any treaty ... unless such treaty is implemented by legislation specifically authorizing the introduction of United States *37 Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of [the War Powers Resolution]." 50 U.S.C. § 1547(a) (emphasis added).
B. Conflict with Federal Republic of Yugoslavia
Kosovo, a region of Serbia, historically has been inhabited both by ethnic Albanians and by ethnic Serbs. See Def's Motion to Hold in Abeyance, Att. A (Declaration of Under Secretary of State for Political Affairs Thomas R. Pickering) at ¶ 3. The region gained a considerable degree of autonomy through the 1970's, and by the late 1980's ethnic Albanians constituted an "overwhelming majority of the population in Kosovo." Id. at ¶ 4. When Slobodan Milosevic came to power in Serbia in the late 1980's, he abolished the autonomous status of the province, and Kosovo's ethnic Albanians began taking various non-violent measures to resist Milosevic and the authoritarian rule of Serbia. Id. at ¶ 5. In early 1998, Serbia launched a crackdown in Kosovo, killing dozens of ethnic Albanians and causing thousands to flee the Kosovo region. Id. at ¶ 8.
Throughout 1998 and into the beginning of 1999, the United States in partnership with NATO member countries and other allies sought a diplomatic resolution to the conflict between the ethnic Albanians in Kosovo and Milosevic's government, and it imposed various economic sanctions against the Federal Republic of Yugoslavia in an effort to force a resolution. See Pickering Declaration at ¶¶ 11-14. After the massacre of forty-five ethnic Albanian civilians in January 1999, diplomatic efforts intensified, and the Kosovo Albanians and representatives of the Serbian government participated in peace negotiations in Rambouillet, France in February 1999. Id. at ¶¶ 14, 15. On March 15, 1999, the Kosovo Albanian delegation signed the interim agreement that had been proposed in Rambouillet, but three days later negotiations were suspended because the Serbian delegation refused to accept the interim agreement. Id. at ¶ 17. By March 19, 1999, the tempo of the repressive offensive by Milosevic's armed units had intensified. Id. at ¶ 18. Milosevic's forces drove thousands of ethnic Albanians from their homes and villages, summarily executed some, displaced others and burned many of their villages. Id.
On March 21, 1999, Ambassador Richard Holbrooke made a final diplomatic effort to persuade the Milosevic government to accept the interim agreement, but he failed in that mission and departed Belgrade on March 23, 1999, without having achieved any progress towards a diplomatic resolution. Pickering Declaration at ¶ 19. That day, March 23, 1999, the Senate passed by a vote of 58 to 41 a concurrent resolution authorizing the President to "conduct military air operations and missile strikes in cooperation with our NATO allies against the Federal Republic of Yugoslavia (Serbia and Montenegro)." S.Con.Res. 21, 106th Cong. (1999).
The next day, March 24, 1999, United States Armed Forces in coalition with NATO allies began a series of air strikes in the Federal Republic of Yugoslavia. See Amended Complaint at ¶ 8; Pickering Declaration at ¶ 19. That same day, by a vote of 424 to 1, the House of Representatives passed a resolution stating that it "supports the members of the United States Armed Forces who are engaged in military operations against the Federal Republic of Yugoslavia and recognizes their professionalism, dedication, patriotism, and courage." H.R.Res. 130, 106th Cong. (1999).
Two days later, President Clinton sent identical letters to J. Dennis Hastert, Speaker of the House of Representatives, and to Strom Thurmond, President pro tempore of the Senate. The letter opens: "At approximately 1:30 p.m. eastern standard time, on March 24, 1999, U.S. military forces, at my direction and in coalition *38 with our NATO allies, began a series of air strikes in the Federal Republic of Yugoslavia (FRY) in response to the FRY government's continued campaign of violence and repression against the ethnic Albanian population in Kosovo." See Pls' Motion for Summ.J., Exh. 19.[1] The letter goes on to detail the circumstances that led to the decision to begin air strikes in the Federal Republic of Yugoslavia, including the atrocities committed by the Milosevic government and the Milosevic government's history of noncompliance with resolutions of the United Nations Security Council and NATO. The letter concludes: "We cannot predict with certainty how long these operations will need to continue.... Milosevic must stop his offensive, stop the repression and agree to a peace accord based on the framework from Rambouillet. ... I have taken these actions pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive. In doing so, I have taken into account the views and support expressed by the Congress.... I am providing this Report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action." Id.
On April 7, 1999, the President again sent letters to Speaker Hastert and Senator Thurmond reporting on the situation in Kosovo as part of his "efforts to keep the Congress fully informed, consistent with the War Powers Resolution." See Pls' Motion for Summ.J., Exh. 38. The letter states that "[w]e will continue to intensify our actions to achieve the objectives I set forth in my report to the Congress of March 26 and to support the international relief efforts being conducted in the region." The letter reemphasizes that it is "not possible to predict how long [the] operations will continue." Id.
On April 28, 1999, the House of Representatives voted on four measures relevant to this action. By a vote of 2 to 427, the House defeated a joint resolution declaring a state of war between the United States and the government of the Federal Republic of Yugoslavia. See H.R.J.Res. 44, 106th Cong. (1999). By a tie vote, 213 to 213, the House rejected the concurrent resolution that had been passed by the Senate on March 23, 1999, authorizing the President to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia. See S.Con.Res. 21, 106th Cong. (1999). The House also defeated by a vote of 139 to 290 a concurrent resolution that would have directed the President, "pursuant to section 5(c) of the War Powers Resolution, [50 U.S.C. § 1544(c),] to remove United States Armed Forces from their positions in connection with the present operations against the Federal Republic of Yugoslavia." See H.R.Con.Res. 82, 106th Cong. (1999). Finally, the House passed a bill that prohibits the use of Department of Defense funds for deployment of United States ground forces to the Federal Republic of Yugoslavia without specific congressional authorization. See H.R. 1569, 106th Cong. (1999).[2]
On May 20, 1999, Congress passed an Emergency Supplemental Appropriations Act that, inter alia, provides supplemental emergency appropriations for the conflict in Yugoslavia. The appropriations bill requires the President to transmit to the Congress "a report, in both classified and unclassified form, on current United States participation in Operation Allied Force," defined as "operations of the North Atlantic Treaty Organization (NATO) conducted against the Federal Republic of Yugoslavia (Serbia and Montenegro) during the period beginning on March 24, 1999, and ending on such date as NATO may designate, to resolve the conflict with respect to Kosovo." See 1999 Emergency Supplemental Appropriations Act, Pub.L. No. 106-31, *39 113 Stat. 57. The Appropriations Act does not contain a statement that it is intended to constitute specific statutory authorization within the meaning of the War Powers Resolution.
C. Background of This Lawsuit
Plaintiffs are twenty-six members of the House of Representatives who voted nay on the Senate's concurrent resolution that would have authorized the President to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia.[3] Plaintiffs have sued President William Jefferson Clinton, contending that he has violated the War Powers Clause of the Constitution by beginning the air strikes prior to a congressional declaration of war and by continuing the air strikes without any congressional declaration of war or authorization under the Constitution.
Plaintiffs also claim that the President has violated the War Powers Resolution. They maintain that on March 26, 1999, two days after the air strikes began, the President was required to submit a written report pursuant to Section 1543(a) of the War Powers Resolution to the Speaker of the House of Representatives and to the President pro tempore of the Senate.[4] Regardless of whether such report was submitted, plaintiffs contend that pursuant to Section 1544, the President was required to withdraw the United States Armed Forces from the Federal Republic of Yugoslavia by May 25, 1999, sixty days after the date he either did submit or was obligated to submit the written report required by the War Powers Resolution. Plaintiffs allege that the President was compelled to withdraw troops because Congress has not declared war on the Federal Republic of Yugoslavia, has not specifically authorized the use of forces, and has not specifically extended the sixty day period. Rather, the measure declaring war on the Federal Republic of Yugoslavia was overwhelmingly defeated in the House of Representatives, and the concurrent resolution that would have authorized the President to conduct military air operations and missile strikes in cooperation with NATO allies against Yugoslavia was very narrowly defeated in the House of Representatives. The appropriations bill lacked any specific authorization pursuant to the War Powers Resolution for the President to continue the air strikes, and Congress has not considered any extensions of time pursuant to the War Powers Resolution.
Plaintiffs therefore argue that either the President must immediately withdraw the troops from the Federal Republic of Yugoslavia or, if he determines and certifies in writing to the Congress that the continued use of forces for additional time is necessary solely in order to safely remove United States Armed Forces, he must withdraw the troops within thirty days. Plaintiffs seek a declaration to that effect from this Court.
The President has filed a motion to dismiss arguing that plaintiffs lack standing, that this case presents a non-justiciable political question, and that the issues presented are not ripe for resolution by the Court at this time. Plaintiffs have filed a motion for summary judgment. The Court has held in abeyance further briefing on plaintiffs' motion pending a determination on the motion to dismiss filed by the President. See Order of May 26, 1999. The Court heard argument on the President's motion to dismiss on June 3, 1999.
II. DISCUSSION
Plaintiffs, who are members of the legislative branch, seek a declaration from the *40 judicial branch that the President, the head of the executive branch, has violated the War Powers Clause of the Constitution and the War Powers Resolution by conducting air strikes in the Federal Republic of Yugoslavia without congressional authorization. Any case involving coordinate and co-equal branches of government raises separation of powers concerns, see, e.g., Moore v. United States House of Representatives, 733 F.2d 946, 955-56 (D.C.Cir. 1984), cert. denied, 469 U.S. 1106, 105 S. Ct. 779, 83 L. Ed. 2d 775 (1985); Riegle v. Fed'l Open Market Comm., 656 F.2d 873, 879 (D.C.Cir.1981), cert. denied, 454 U.S. 1082, 102 S. Ct. 636, 70 L. Ed. 2d 616 (1981), and War Powers actions brought by legislators raise especially grave separation of powers issues. See Dellums v. Bush, 752 F. Supp. 1141, 1149 (D.D.C.1990) ("The principle that the courts shall be prudent in the exercise of their authority is never more compelling than when they are called upon to adjudicate on such sensitive issues as those trenching upon military and foreign affairs").
For this reason, judges traditionally have expressed great reluctance to intercede in disputes between the political branches of government that involve matters of war and peace. Some judges have found a jurisdictional bar: legislators lack standing to sue in such cases. See, eg., Crockett v. Reagan, 720 F.2d 1355, 1357 (D.C.Cir.1983) (Bork, J., concurring), cert. denied, 467 U.S. 1251, 104 S. Ct. 3533, 82 L. Ed. 2d 839 (1984); Holtzman v. Schlesinger, 484 F.2d 1307, 1309-10 (2d Cir.1973), cert. denied, 416 U.S. 936, 94 S. Ct. 1935, 40 L. Ed. 2d 286 (1974); cf. Goldwater v. Carter, 617 F.2d 697, 709-15 (D.C.Cir.) (en banc) (Wright and Tamm, J.J., concurring in result), vacated and remanded with directions to dismiss, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979). Others, while finding standing, have concluded that the particular dispute is not yet ripe for adjudication. See Dellums v. Bush, 752 F.Supp. at 1151. Because the law that developed in this Circuit over the years did not impose a particularly high standard to demonstrate legislative standing, judges here have sometimes exercised so-called equitable or remedial discretion to decline to resolve such cases or have invoked the political question or non-justiciability doctrine to avoid the political thicket. See, eg., Mitchell v. Laird, 488 F.2d 611, 615-16 (D.C.Cir.1973) (political question); Lowry v. Reagan, 676 F. Supp. 333, 339-40 (D.D.C.1987) (political question and remedial discretion); Crockett v. Reagan, 558 F. Supp. 893, 898-99 (D.D.C.1982) (political question and equitable discretion), aff'd per curiam, 720 F.2d 1355 (D.C.Cir.1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3533, 82 L. Ed. 2d 839 (1984).
The legal landscape with respect to legislative standing was altered dramatically by the Supreme Court in its first Line Item Veto decision, Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997). Virtually all of this Circuit's prior jurisprudence on legislative standing now may be ignored, and the separation of powers considerations previously evaluated under the rubric of ripeness or equitable or remedial discretion now are subsumed in the standing analysis. For all intents and purposes, the strict legislative standing analysis suggested by Justice Scalia in Moore v. United States House of Representatives, 733 F.2d at 956-61 (Scalia, J., concurring), now more closely reflects the state of the law. See also Crockett v. Reagan, 720 F.2d at 1357 (Bork, J., concurring). The Court's analysis in this case therefore begins and ends with the question of standing.[5]
*41 Article III of the Constitution limits the jurisdiction of the federal courts to deciding actual cases and controversies. "[T]he doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process." Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990), and it "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). At an irreducible minimum, in order to establish standing plaintiffs seeking to obtain relief must allege "`personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'" See Raines v. Byrd, 521 U.S. at 818, 117 S. Ct. 2312 (quoting Allen v. Wright, 468 U.S. at 751, 104 S. Ct. 3315).
The dispute over standing in this case centers on whether plaintiffs, suing in their capacities as members of the House of Representatives, have alleged a particularized and personal injury sufficient to establish their interest in this litigation.[6] The alleged injury must be "legally and judicially cognizable," which means, among other things, "that the plaintiff have suffered an invasion of a legally protected interest which is concrete and particularized, and that the dispute is traditionally thought to be capable of resolution through the judicial process." Raines v. Byrd, 521 U.S. at 819, 117 S. Ct. 2312 (internal quotations and citations omitted). "[A]n asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court." Allen v. Wright, 468 U.S. at 754, 104 S. Ct. 3315.
Since the standing requirement is based on separation of powers principles, the standing inquiry is "especially rigorous" where, as here, "reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." See Raines v. Byrd, 521 U.S. at 819-20, 117 S. Ct. 2312. Alleging a sufficiently concrete and particularized injury to establish institutional standing as a member of Congress is not an easy task. especially since "the only test of congressional standing that is both consistent with our constitutional traditions and susceptible of principled application ... must take as its point of departure the principle that we sit here neither to supervise the internal workings of the executive and legislative branches nor to umpire disputes between those branches regarding their respective powers." Moore v. United States House of Representatives, 733 F.2d at 959 (Scalia, J., concurring).
In Raines v. Byrd, the Supreme Court held that members of Congress who voted against the Line Item Veto Act, 2 U.S.C. § 691, et. seq., lacked standing to challenge the constitutionality of that Act. See Raines v. Byrd, 521 U.S. at 829-30, 117 S. Ct. 2312. Plaintiffs in Raines had alleged that they suffered injury in their institutional capacity because the Act diminished the effectiveness of their future votes on appropriations bills and altered the balance of power between Congress and the President. The Court concluded, however, that any such injury was "wholly abstract and widely dispersed" and that plaintiffs therefore had failed to allege a *42 "sufficiently concrete injury to have established Article III standing." See id.
At oral argument, plaintiffs' counsel acknowledged that after Raines, a general allegation that the President has ignored the War Powers Clause or the War Powers Resolution is too generalized an injury to provide a legislator with standing. Citing Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939), the one case in which the Supreme Court has upheld standing for legislators claiming an institutional injury, plaintiffs instead argue that where Congress has affirmatively exercised its authority and the President "nullifies" or ignores a clear direction from Congress, legislators do have standing to challenge the President's actions.
In Coleman, members of the Kansas State Senate established standing in their institutional capacities to seek redress for an alleged nullification of a vote they had taken. Twenty members of the forty-member Kansas State Senate voted against an amendment to the United States Constitution. Lacking a majority vote, the amendment would not have been ratified except that the Lieutenant Governor, the President of the State Senate, cast the deciding vote for the amendment. Plaintiffs, including all twenty senators who had voted against the amendment, alleged that the Lieutenant Governor had no authority to cast the deciding vote and sued for a writ of mandamus in the Kansas Supreme Court to prevent the governor from certifying that the amendment had been ratified. The Kansas Supreme Court found that plaintiffs had standing but ruled against them on the merits. On certiorari, the Supreme Court held that the members of the legislature had standing because the votes of the plaintiffs "against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification." See Coleman v. Miller, 307 U.S. at 438, 59 S. Ct. 972.
While the Coleman decision was not overturned by Raines, it has been limited and now stands at most "for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the grounds that their votes have been completely nullified." See Raines v. Byrd, 521 U.S. at 823, 117 S. Ct. 2312.[7] It was unnecessary for the Court in Raines to examine the precise parameters of the Coleman exception, however, because of the "vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power" that was alleged by the members of Congress challenging the Line Item Veto Act. See Raines v. Byrd, 521 U.S. at 824, 117 S. Ct. 2312.
The circumstances of this case obviously are more similar to those of Coleman than were the circumstances in Raines. Plaintiffs here allege that the President's actions have deprived them of "their constitutional right and duty under Article I, Section 8, Clause 11, to commit this country to war, or to prevent, by refusing their assent, the committing of this country to war," and that the President has "completely nullifie[d] their vote against authorizing military air operation and missile strikes against Yugoslavia." Amended Complaint at ¶ 18. They have alleged that they voted against the concurrent resolution authorizing the President to conduct air strikes in the Federal Republic of Yugoslavia, that they had sufficient votes to defeat that resolution and that the resolution *43 in fact failed. See id. at ¶¶ 15, 17. They also have alleged that they had sufficient votes to defeat a measure declaring a state of war against the Federal Republic of Yugoslavia. Id. at ¶¶ 16, 17. Despite the fact that both of those measures were defeated, plaintiffs allege that the President of the United States has ignored the votes and has acted as though Congress either has declared war or has specifically authorized his actions in the Federal Republic of Yugoslavia.
While there are facial similarities between the facts of Coleman and the situation presented in this case, upon closer scrutiny of plaintiffs' allegations, the Court concludes that plaintiffs lack standing under the Coleman exception to Raines. In the circumstances presented, the injury of which plaintiffs complainthe alleged "nullification" of congressional votes defeating the measures declaring war and providing the President with authorization to conduct air strikesis not sufficiently concrete and particularized to establish standing. To have standing, legislative plaintiffs must allege that their votes have been "completely nullified," Raines v. Byrd, 521 U.S. at 823, 117 S. Ct. 2312, or "virtually held for naught." Coleman v. Miller, 307 U.S. at 438, 59 S. Ct. 972. Such a showing requires them to demonstrate that there is a true "constitutional impasse" or "actual confrontation" between the legislative and executive branches; otherwise courts would "encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict." Goldwater v. Carter, 444 U.S. at 997-98, 100 S. Ct. 533 (Powell, J., concurring). In the Court's view, there is no such constitutional impasse here.[8]
If Congress had directed the President to remove forces from their positions and he had refused to do so or if Congress had refused to appropriate or authorize the use of funds for the air strikes in Yugoslavia and the President had decided to spend that money (or money earmarked for other purposes) anyway, that likely would have constituted an actual confrontation sufficient to confer standing on legislative plaintiffs. Cf. Goldwater v. Carter, 444 U.S. at 999-1000, 100 S. Ct. 533 (Powell, J., concurring) (in hypothetical situation where President announces that treaty would go into effect despite its rejection by Senate, judicial branch could resolve dispute). The two votes at issue in this case, however, do not provide the President with such an unambiguous directive; neither vote facially required the President to do anything or prohibited him from doing anything. Unlike in Coleman where the meaning of the vote allegedly nullified was clearly that the legislature did not want the amendment ratified, the meaning of the two votes at issue in this case is not self-evident. The fact that some members of Congress believe that the President's actions are inconsistent with two particular congressional votes does not a fortiori demonstrate an impasse that would provide those members of Congress with standing.
*44 Congressional reaction to the air strikes has sent distinctly mixed messages, and that congressional equivocation undermines plaintiffs' argument that there is a direct conflict between the branches. On the same day that the House of Representatives defeated the measures declaring war against the Federal Republic of Yugoslavia and providing the President with authorization to conduct air strikes, it also defeated a resolution that would have directed the President, "pursuant to section 5(c) of the War Powers Resolution, to remove United States Armed Forces from their positions in connection with the present operations against the Federal Republic of Yugoslavia." H.R.Con.Res. 82, 106th Cong. (1999). Congress subsequently passed a Supplemental Emergency Appropriations Act that provides funding for the activities being undertaken in the Federal Republic of Yugoslavia. See 1999 Emergency Supplemental Appropriations Act, Pub.L. No. 106-31, 113 Stat. 57.[9] Had the four votes been consistent and against the President's position, and had he nevertheless persisted with air strikes in the face of such votes, there may well have been a constitutional impasse. But Congress has not sent such a clear, consistent message. Where, as here, Congress has taken actions that send conflicting signals with respect to the effect and significance of the allegedly nullified votes, there is no actual confrontation or impasse between the executive and legislative branches and thus no legislative standing. Cf. Goldwater v. Carter, 444 U.S. at 997-98, 100 S. Ct. 533 (Powell, J., concurring); Lowry v. Reagan, 676 F.Supp. at 340-41; Moore v. United States House of Representatives, 733 F.2d at 954-56; Holtzman v. Schlesinger, 484 F.2d at 1315.[10]
Finally, it is significant that some of the 213 representatives who voted against authorizing the President's actions and against a declaration of war also voted in favor of supporting the troops and appropriating money to fund the conflict in Yugoslavia and against directing the President to remove the Armed Forces from their positions. The position of the twenty-six plaintiffsthat the President has nullified congressional votes by continuing air strikestherefore appears not to be shared by a number of their colleagues the nullification of whose votes they seek to vindicate. While the Court is not suggesting that all 213 representatives who voted to defeat the authorization resolution must join in this lawsuit in order to establish legislative standing, the absence of any indication that the twenty-six plaintiffs have been authorized to represent those two-hundred and thirteen representatives or even a substantial number of themcompels the conclusion that plaintiffs have no standing to raise these claims. See Raines v. Byrd, 521 U.S. at 829, 117 S. Ct. 2312 ("We attach some importance to the fact that [plaintiffs] have not been authorized to represent their respective Houses of Congress in this action ..."); Bender v. Williamsport Area School District, 475 U.S. 534, 544, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986) (status as school board member did not confer upon plaintiff right to appeal on behalf of board as a whole where board itself declined to take such appeal); Dellums v. Bush, 752 F.Supp. at 1151 ("it is only if the majority of the Congress seeks relief from an infringement on its constitutional war-declaration *45 power that it may be entitled to receive it").[11]
For all of these reasons, plaintiffs have failed to establish a sufficiently genuine impasse between the legislative and executive branches to give them standing. The most that can be said is that Congress is divided about its position on the President's actions in the Federal Republic of Yugoslavia and that the President has continued with air strikes in the face of that divide. Absent a clear impasse between the executive and legislative branches, resort to the judicial branch is inappropriate. See Goldwater v. Carter, 444 U.S. at 997, 100 S. Ct. 533 (Powell, J., concurring) ("The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse""); Dellums v. Bush, 752 F.Supp. at 1149 ("Judicial restraint must, of course, be even further enhanced where the issue is one as here on which the other two branches [themselves] may be deeply divided"). Cf. Humphrey v. Baker, 848 F.2d 211, 214 (D.C.Cir.1988) ("the availability of an internally available remedy to Members of Congress means that it would be an abuse of discretion for the judiciary to entertain the action"), cert. denied sub nom. Humphrey v. Brady, 488 U.S. 966, 109 S. Ct. 491, 102 L. Ed. 2d 528 (1988). Because plaintiffs have failed to demonstrate an actual confrontation or constitutional impasse between the legislative and executive branches, they have no standing to bring this action.
This is not to say that members of the legislative branch never have standing to resort to the judicial branch when the executive branch flouts the law. But the courts will apply Raines and Coleman rigorously and will find standing only in the clearest cases of vote nullification and genuine impasse between the political branches. Under the circumstances presented in this case, the Court cannot conclude that plaintiffs have standing to bring this action, and the case therefore will be dismissed. An Order and Judgment consistent with this Opinion will be issued this same day.
SO ORDERED.
NOTES
[1] Plaintiffs incorporated exhibits from their motion for summary judgment into their opposition to the President's motion to dismiss.
[2] The Senate has taken no action on that bill.
[3] On June 7, 1999, plaintiffs filed an Amendment to the Complaint to add five additional plaintiffs. The addition of these plaintiffs does not change the Court's analysis.
[4] The Court does not understand whether or why plaintiffs believe the President did not comply with Section 1543(a) by virtue of the letters he sent to Speaker Hastert and Senator Thurmond on March 26, 1999. See supra at 37-38.
[5] In addition to standing and ripeness, the President also has argued that this case raises a non-justiciable political question. To the extent that the President is arguing that every case brought by a legislator alleging a violation of the War Powers Clause raises a non-justiciable political question, he is wrong. See Baker v. Carr, 369 U.S. 186, 210-11, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) ("[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.... [The Court instead must conduct] a discriminating analysis of the particular question posed" in order to determine whether the issue is justiciable); Mitchell v. Laird, 488 F.2d at 614 (in some instances there may be "judicial competence to determine the allocation, between the executive and legislative branches, of the powers to wage war"). Because the Court concludes that plaintiffs lack standing, however, it need not reach the issue of whether this case is one in which the judicial branch has competence to adjudicate such questions.
[6] It is clear that plaintiffs are suing in their official capacities as members of Congress and not in their individual capacities. Compare Amended Complaint at ¶ 4 with Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969).
[7] It is important to note that Coleman did not implicate separation of powers concerns to the extent that they are implicated in this case because the plaintiffs there were state legislators challenging the acts of a state executive. See Raines v. Byrd, 521 U.S. at 824 n. 8, 832 n. 3, 117 S. Ct. 2312 (Souter, J., concurring). It is possible that the Coleman exception is further narrowed where, as here, plaintiffs are members of the federal legislature who are challenging the actions of the federal executive.
[8] A finding that the legislative plaintiffs in this case lack standing under these circumstances does not preclude judicial resolution of a challenge to the President's actions. Counsel for the President appears to have acknowledged that an individual alleging personal injury from the President's alleged failure to comply with the War Powers Clause or the War Powers Resolution, as for instance a serviceperson who has been sent to carry our the air strikes against the Federal Republic of Yugoslavia, would have standing to raise these claims. See Def's Reply at 8. Compare Raines v. Byrd, 521 U.S. at 830, 117 S. Ct. 2312 (members of Congress alleging institutional injury have no standing to challenge constitutionality of Line Item Veto Act) with Clinton v. New York, 524 U.S. 417, 118 S. Ct. 2091, 2099, 141 L. Ed. 2d 393 (1998) (individuals alleging personal injury from President's exercise of power granted by Line Item Veto Act do have standing to challenge constitutionality of Act). The Court also notes that the political question doctrine does not apply to suits brought by individuals in their personal capacities. See Michel v. Anderson, 14 F.3d 623, 628 (D.C.Cir.1994).
[9] While neither the defeat of the House concurrent resolution nor the passage of the Appropriations Act constitutes an "authorization" within the meaning of the War Powers Resolution, see 50 U.S.C. § 1547, congressional action on those measures is relevant to the legislative standing analysis.
[10] Because plaintiffs' alleged injury is caused in part by their failure to persuade their colleagues in the Congress to defeat the budget authorization bill and to vote for the resolution directing the President to withdraw troops from Yugoslavia, it also is not clear that plaintiffs can establish that their alleged injury is "fairly traceable" to the actions of the President rather than to the actions of their colleagues in the Congress. See Raines v. Byrd, 521 U.S. at 830 n. 11, 117 S. Ct. 2312.
[11] The President has suggested that if Congress has available to it other remedies to check a President's alleged abuse of power such as impeaching him or withholding funds, a judicial remedy is precluded. That is incorrect. The mere availability of a legislative alternative is not sufficient to defeat standing; if it were, a legislator would never have standing since Congress always has the option of impeaching and removing the President.
While the availability of such a remedy does not affect the standing analysis, the fact that Congress actually took contradictory steps certainly is relevant to a determination of standing under Raines and Coleman. If neither the budget authorization bill nor the measure directing the President to withdraw troops from Yugoslavia had been introduced or considered, the fact that Congress could have introduced such bills may not have been sufficient to defeat standing. But the House of Representatives did in fact consider and vote on both measures, and the congressional action on those two measures therefore cannot be ignored. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3520624/ | Appellant filed his petition against appellee in the circuit court of Hinds county, praying for a writ of mandamus, requiring appellee to honor appellant's requisitions for the commissions and expenses of his office as state tax collector, and to issue warrants therefor on the state treasurer.
Appellee demurred to the petition, setting up several grounds, which, taken together, mean that appellee claims *Page 118
that there is no law authorizing appellee to honor appellant's requisitions for the commissions and expenses of his office, and to issue to appellee warrants on the state treasurer therefor.
Appellant's petition for mandamus is rather vague and indefinite. As we construe it, we get from it the following grounds upon which the writ was sought. Under the law, neither appellant nor his office force or deputies, are paid salaries out of the state treasury. They are all compensated for their services out of the twenty per cent commissions on collections of public revenues made through the office. All such collections, including the twenty per cent commissions, are by appellant paid into the state treasury; therefore, in order for appellant and his deputies to be compensated for their services out of the twenty per cent commissions on such collections, it is necessary that appellant in some manner be permitted to withdraw from the state treasury a sufficiency of such funds for that purpose. From time to time appellant has made requisition on appellee for warrants on the state treasurer, out of the twenty per cent commission fund, for that purpose, which requisitions appellee has refused to honor.
After appellee's refusal to honor such requisitions, appellant claimed the right to withdraw, and demanded of appellee that he issue his warrant on the state treasurer for the entire twenty per cent commission fund, paid by appellee into the state treasury, to enable appellee himself to take out of such fund a sufficiency to pay the expenses of his office, and to compensate himself and his deputies for their services in making the collection of public funds, out of which the twenty per cent was set aside as a special deposit in the state treasury.
Prior to the adoption of chapter 330 of the Laws of 1924, the state revenue agent received twenty per cent of all public funds collected by his office, out of which he paid his deputies and office force, retaining the balance for his services. That act provides that out of the twenty *Page 119
per cent commissions allowed by law, the revenue agent shall pay all the expenses incident to the discharge of the duties of his office, and all attorney's fees, and retain the sum of five thousand dollars per annum for his salary; the compensation of his deputies to be paid out of the amount collected, as a result of their services, not to exceed five thousand dollars per annum; the balance of such commissions to be paid by him into the state treasury; and a detailed, itemized report of such collections and disbursements made to each session of the Legislature.
Chapter 286 of the Laws of 1926, abolished the office of state revenue agent, creating in its place the office of state tax collector, prescribing the duties and powers of the latter office, and providing for the transfer of all records and papers from the former to the latter office. With certain exceptions unnecessary to mention, the state tax collector was given the same authority as was formerly possessed by the state revenue agent.
The complete scheme of substituting the office of state tax collector for that of state revenue agent was accomplished by chapter 71 of the Laws of the Extraordinary Session of 1928, which in certain respects amends chapter 330 of the Laws of 1924, and chapter 286 of the Laws of 1926. At the extraordinary session of the Legislature of 1928, chapter 30 of the acts of that session was adopted, as follows:
"Be it enacted by the Legislature of the State of Mississippi, That all taxes, fees and penalties that may be hereafter collected for or in the name of the state of Mississippi shall be paid direct to the treasurer of the state, as now provided by law, by the officer charged with the duty of collecting or collecting the same, with an itemized statement to be filed with the state auditor, showing from whom collected and to what account to be credited, and all fees and commissions that may be due to any officer for collecting same shall be paid to such officer by the state treasurer on a warrant issued therefor *Page 120
by the state auditor, and the said warrant shall recite the section of law authorizing the payment thereof. Provided this act shall not apply to collection of taxes by sheriffs and tax collectors of the several counties collecting taxes for the state.
"Sec. 2. That any officer charged with the duty of collecting such taxes, fees and penalties and collecting the same, who willfully fails to comply with the provisions of this act shall be guilty of a misdemeanor and upon conviction thereof shall forfeit all fees and commissions that may be due him for collecting the same and in addition shall be fined not more than one thousand dollars or imprisoned for six months or by both such fine and imprisonment."
At the same session of the Legislature, chapter 84 was adopted. It will be observed that by the first section of the latter act, on the first and fifteenth of each month, all state officials are required to make a detailed report of public funds collected and received in their respective offices, and on hand at such time, to the state auditor, and to pay such funds into the state treasury. Section 2 of the act provides that all funds, and accrued interest thereon, so paid into the state treasury, shall be handled by the state treasurer as a special deposit, and that any part thereof belonging to the counties of the state, or to any other political subdivisions of the state, shall be paid and distributed to such counties or other political subdivisions by the state treasurer on warrants of the auditor. Section 4 of the act provides that the auditor shall make distribution of such funds to the counties and other political subdivisions of the state, by means of warrants on the state treasurer, issued by him in behalf of the counties and other political subdivisions of the state entitled thereto. Section 7 of the act excepts from the operation of the act, all taxes collected by the Attorney-General and the state tax collector belonging to the counties and other political subdivisions of the state, including levee districts. It provides that such funds shall not *Page 121
be deposited in the state treasury, but that the Attorney-General and the state tax collector shall forthwith transmit such funds to the counties, and other political divisions of the state, entitled thereto. Section 6 of the act provides that the act shall not be treated as amendatory of any existing laws, but supplementary thereto.
As we understand appellant's petition, he has paid into the treasury in full, including his twenty per cent commissions, all public funds collected through his office belonging to the state; and, in addition, he has paid into the state treasury twenty per cent of all public funds collected through his office which belonged to the counties, municipalities, and other political subdivisions of the state, the deposit so made by him constituting a special deposit in the state treasury.
Appellant now seeks, by this mandamus proceeding, to require appellee to honor his requisitions for warrants on the state treasurer against this special deposit, with which to pay the expenses of his office, his own salary, and that of his deputies; and if denied that relief, appellant seeks to have appellee honor his requisition and issue a warrant on the treasurer for the entire amount of such special deposit, in order that appellant may be enabled out of such special deposit to pay the salaries and expenses of his office, the excess of the twenty per cent special deposit to be turned back into the treasury after this is done.
Appellant contends that under the law appellee has no discretion as to whether or not he shall honor such requisitions.
On the other hand, appellee contends that under the law it is the duty of appellee, as state auditor, to audit, pass upon, and allow all such requisitions. In other words, that the law requires appellee, as state auditor, to exercise his judgment and discretion in passing on such requisitions.
Chapters 30 and 84 of the Laws of the Extraordinary Session of 1928, are to be construed together; they treat *Page 122
of the same subject-matter in part. The requirement that the state officials shall deposit all public funds in the state treasury on the first and fifteenth of each month had for its purpose the safety of such funds. The Legislature sought to remove the opportunity and the temptation on the part of state officials to misappropriate such funds, or to make a profit therefrom. The statute applies to the state tax collector, as well as to other state officials, except as provided in section 7 of chapter 84, the Attorney-General and the state tax collector are not required to pay into the state treasury public funds belonging to the various political subdivisions of the state. The object of this exception was to enable the Attorney-General and the state tax collector to take out of such funds their commissions allowed them by law, before transmitting the funds to the counties, municipalities, and other taxing subdivisions of the state to which they belong.
The Legislature probably had a further purpose in view, in requiring state officials to turn public funds into the state treasury, which was to provide checks in the offices of the state auditor and treasurer against the records in the offices of the state officials collecting such funds.
Prior to the adoption of chapters 30 and 84 of the Laws of the Extraordinary Session of 1928, the state tax collector was authorized by law to take out of all public funds collected by his office, whether for the state or for any of its political subdivisions, a commission of twenty per cent; and out of this he was to pay the expenses of his office, his own salary and the salaries of his deputies; and the balance remaining he was required to turn into the treasury of the state, or to the counties or other political subdivisions of the state entitled thereto. The state tax collector was vested with full authority, to be exercised in good faith, to pass on, and allow out of, the twenty per cent commissions his own salary, the salaries of his deputies, and the expenses of his office.
We are of opinion that chapters 30 and 84, Laws Extraordinary Session of 1928, were intended to make no *Page 123
change in that respect. It was not intended to authorize the state auditor to act in a quasi-judicial capacity in passing on appellant's requisitions against this twenty per cent commission fund to pay the expenses and salaries of his office. The withdrawal and disposition of this fund remained the responsibility of the state tax collector, as it had been therefore. It is therefore mandatory on the state auditor to honor his requisitions against such fund to the full amount thereof, if necessary, the state auditor has no discretion in the matter. Such requisitions by the state tax collector relieve the auditors of all responsibility, being his vouchers for the issuance of warrants on the state treasurer for the amounts therein called for.
It follows from these views that whatever fund there may be to this account in the state treasury, derived from commissions on collections of public funds by appellant, belonging to the state, appellee is required to honor the requisitions of appellant upon it for the fees and salaries of his office, without passing on the merits of such requisitions; and if any part of the twenty per cent special fund deposited in the state treasury was derived from collections on behalf of counties or other political subdivisions of the state, appellee is required to honor the requisition of appellant for the entire amount in a lump sum.
We do not mean by this that under the law appellant is entitled to twenty per cent of the collections for the counties and other political subdivisions of the state, in addition to the maximum amount of salary fixed by law for himself and his deputies. He is only allowed twenty per cent of all public funds collected, regardless of whether they belong to the state, or any of its political subdivisions, out of which to pay the expenses of his office, and his own maximum salary and those of his deputies, as fixed by law.
It follows from these views that the judgment of the court below should be reversed and the cause remanded; *Page 124
and if the trial court should deem it necessary to allow appellant to amend his petition, in order more fully to present the facts upon which he relies, that should be done. Reversed and remanded. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2143583/ | 825 F. Supp. 2d 73 (2011)
Frazier CAUDLE, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 08-00205 (HHK).
United States District Court, District of Columbia.
September 1, 2011.
*74 John Peter Relman, Jennifer I. Klar, Katherine A. Gillespie, Megan Cacace, Relman, Dane & Colfax, PLLC, Washington, DC, for Plaintiffs.
MEMORANDUM OPINION
HENRY H. KENNEDY, JR., District Judge.
Following a jury trial in this case, verdicts were returned for plaintiffs Frazier Caudle, Nikeith Goins, William James, Sholanda Miller, and Donald Smalls. The jury determined that the District of Columbia Metropolitan Police Department ("MPD") had retaliated against plaintiffs in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs now move for equitable relief: an award of back-pay, an order requiring the District to transfer them to a different MPD district, and an injunction barring the District from retaliating against them again [#301]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be granted in part and denied in part.
I. BACKGROUND
In the summer of 2006, the five plaintiffs were members of the MPD First District Focus Mission Unit ("FMU"), a specialized plainclothes unit composed of "productive" patrol officers who "graduated to" FMU duty. See Trial Tr. 165-66, 169, June 15, 2010 (test. of Capt. Ralph McLean). Goins was part of the FMU's auto theft section; the other plaintiffs were part of its vice unit. After Lieutenant Ronald Wilkins took charge of the FMU, plaintiffs, who are African American, came to feel that they were being treated differently from their Caucasian colleagues. They believed *75 that Wilkins, who is Caucasian, was discriminating against them because of their race. See, e.g., Trial Tr. 111, June 28, 2010. After a failed attempt to meet with the First District Commander, Diane Groomes, about Wilkins's behavior, Caudle, James, Miller, and Smalls enlisted the help of Caudle's fiancé, an attorney, in drafting an anonymous letter to Groomes expressing their concerns about Wilkins. See Trial Tr. 22-23, June 15, 2010; Trial Tr. 124-25, June 30, 2010. The letter was sent to Groomes on June 16, 2006. See Pls.' Opp'n Ex. 20 (unsigned letter to Diane Groomes, June 16, 2006). Goins, who was not involved in the production of the unsigned letter, complained orally to Wilkins about Wilkins's conduct on numerous occasions. Trial Tr. 113, June 28, 2010.
On June 25, Officer Chanel Howard, also a member of the FMU, sent an email to Groomes expressing her belief that Caudle, James, Miller, and Smalls were behind the anonymous letter. Trial Tr. 17-18, June 21, 2010; Trial Tr. 23-24, June 22, 2010. Wilkins likewise speculated that those officers were responsible for the letter. Trial Tr. 28-30, June 24, 2010. Shortly after receiving the letter, Groomes called a meeting of all FMU officers, at which she "explained to them that [she] was in receipt of a letter of complaint and went over parts of what the complaint was." Trial Tr. 19, June 22, 2010. After discussing the complaint, Groomes asked the FMU officers whether "they could work together as a unit." Trial Tr. 21, June 22, 2010. During the meeting, many of the FMU officers spoke; according to plaintiffs, the other officers appeared to know who was behind the unsigned complaint, and many officers "t[ook] shots at" plaintiffs. Trial Tr. 130, June 30, 2010.
Soon thereafter, Groomes decided to require the FMU officers to submit applications to remain in the unit, an apparently unprecedented step that she described as motivated by performance concerns. Trial Tr. 24-25, June 22, 2010. Caudle, James, Smalls, and Goins each submitted an application to remain in the FMU. Trial Tr. 51, June 15, 2010; Trial Tr. 115, June 28, 2010; Trial Tr. 34, 134, June 30, 2010.
Plaintiffs were concerned that the reapplication process was a ruse designed to allow their removal from the unit because of their complaints about Wilkins. While the applications were pending, Caudle, James, Miller, and Smalls, who had for some time patrolled together in an unmarked car, were forced to split up and ride with other officers. Trial Tr. 44-45, June 15, 2010; Trial Tr. 32-33, 131, June 30, 2010. They were also excluded from certain FMU operations. Trial Tr. 42, June 15, 2010; Trial Tr. 131-33, June 30, 2010. Believing these changes to be retaliatory, all five plaintiffs, along with Greg Philpotts, another FMU officer, drafted (and signed) a second written complaint, which they sent to the D.C. Office of Human Rights and the U.S. Department of Justice on August 24, 2006. See Pls.' Opp'n Ex. 29 (August 24, 2006 written complaint).
When the reapplication process was complete, each plaintiff's application was denied, and each was replaced by an officer from the patrol unit. Trial Tr. 41, 139-40, June 30, 2010. Plaintiffs, who had been praised by their supervising sergeants as effective and capable officers, see, e.g., Trial Tr. 206-09, June 24, 2010, were devastated. See, e.g., Trial Tr. 120, June 28, 2010. Caudle, who had previously been named FMU Officer of the Year, was sent back to the patrol unit, which he found "embarrassing and humiliating." Trial Tr. 41, June 30, 2010. James, Smalls, and Goins were assigned to a newly created "Intel" unit, of which they were the only members. Trial Tr. 143-44, June *76 30, 2010. The Intel unit was eventually dissolved, and James, Smalls, and Goins were returned to patrol positions. Trial Tr. 92, June 15, 2010. Miller, who had previously requested a transfer to the patrol day shift to allow her to care for her child, Trial Tr. 44, June 21, 2010, was instead assigned to the patrol evening shift. Trial Tr. 74, June 21, 2010; Trial Tr. 121, June 22, 2010.
Believing that these events were in retaliation for their complaints of discrimination, plaintiffs filed this action against the District. Following a jury trial, the jury found for plaintiffs, awarding Caudle and Goins $200,000 each, James and Smalls $250,000 each, and Miller no damages. Soon thereafter, the District filed a motion for judgment as a matter of law, a new trial, or remittitur of the jury's damage awards, which the Court denied, see Caudle v. District of Columbia, 804 F. Supp. 2d 32, 2011 WL 3632211 (D.D.C. Aug. 19, 2011), and plaintiffs filed the present motion.
II. ANALYSIS
"[O]ne of the central purposes of Title VII is `to make persons whole for injuries suffered on account of unlawful employment discrimination.'" Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 763, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975)). Accordingly, Title VII expressly provides for a wide range of remedies:
If the court finds that the [defendant] has intentionally engaged in ... an unlawful employment practice charged in the complaint, the court may enjoin the [defendant] from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate.
42 U.S.C. § 2000e-5(g)(1) (emphasis added). In considering what remedy is appropriate, the Court "must strive to grant `the most complete relief possible.'" Lander v. Lujan, 888 F.2d 153, 156 (D.C.Cir.1989) (quoting Franks, 424 U.S. at 764, 96 S. Ct. 1251). In other words, the Court's goal is to restore the plaintiffs, as nearly as possible, to the circumstances they "would have occupied if the wrong had not been committed." Id. (quoting Albemarle Paper, 422 U.S. at 418-19, 95 S. Ct. 2362) (internal quotation marks omitted).
Here, plaintiffs seek three types of relief: (i) back-pay damages to compensate for the overtime opportunities they lost as a result of the District's retaliatory conduct; (ii) an order requiring the District to transfer them from the First District (where they worked during 2006 and, with the exception of Miller and Smalls, still work) to the Second District; and (iii) an injunction barring the District from retaliating against them again. The Court will address each request in turn.
A. Back Pay
First, Caudle, Goins, Smalls, and James request an award of back pay to compensate for the overtime opportunities they lost as a result of their transfers from the FMU. At trial, these plaintiffs each testified that their transfers resulted in diminished opportunities to earn overtime pay, in particular because they had fewer chances to make arrests and appear in court. See Trial Tr. 85-86, June 15, 2010; Trial Tr. 19-20, June 29, 2010; Trial Tr. 45, 148-49, June 30, 2010. Plaintiffs also presented testimony from Dr. Louis Lanier, an expert economist, who quantified plaintiffs' lost overtime pay, both by comparing *77 plaintiffs pre- and post-transfer overtime hours and by comparing plaintiffs' post-transfer overtime to hours to those of the officers who remained in the FMU after it was organized. See Trial Tr. 166-67, 175, June 29, 2010; Pls.' Mot. for Equitable & Inj. Relief ("Pls.' Mot.") Ex 2 (Pls.' Trial Ex. 11A, overtime summary tables). Lanier based his analysis entirely on pay data provided by the MPD, both for the individual plaintiffs and for "every employee of the FMU who worked there between ... January 1st, 2003, and May 31st, 2010." Trial Tr. 166, June 29, 2010. Ultimately, Lanier concluded that the individual plaintiffs had lost the following amounts: Caudle, $36,454; Smalls, $14,399; James, $51,666; and Goins, $36,785. See Pls.' Mot. Ex 2 (Pls.' Trial Ex. 11A, overtime summary tables) at T.5.
On the basis of this testimony, plaintiffs now request that each of these four plaintiffs be awarded the amount that Lanier found him to have lost, plus prejudgment interest. See Pls.' Mot. at 6-8. The District makes several responses, none of which is availing.
First, the District argues that the individual plaintiffs each admitted to not knowing how much overtime they lost, "and, therefore, offered no reliable evidence to support their respective claims." Def.'s Opp'n to Pls.' Mot. ("Def.'s Opp'n") at 3. But alone, this argument proves nothing; the entire purpose of Lanier's expert testimony was to quantify the amount of overtime that plaintiffs lost, because they could not do so themselves.
Second, the District contends that Lanier's statistical methodology was unreliable because it disregarded certain provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the District's municipal regulations, and therefore over-counted the number of overtime hours that plaintiffs would have worked had they remained in the FMU. But, as plaintiffs point out, Lanier's overtime determinations were based solely on the data provided by the MPD, which identified hours worked as regular, overtime, or court-overtime. See Pls.' Reply Ex. 9 (sample pay data); Trial Tr. 165, June 29, 2010 ("Q: Did you exercise any discretion regarding what was an overtime hour and what was not an overtime hour? A: No. I made no determination of that. The data that were already provided had the overtime hours already marked."). Thus, the District's data, rather than Lanier's methodology, were responsible for any errors in his overtime tabulations.
Third, the District challenges Lanier's methodology as "grounded upon no particular method or procedure," and "not tied to the facts of the case." Def.'s Opp'n at 5-8[1] This argument is wholly without merit. After establishing his credentials,[2] Lanier testified that his conclusions were based on a database of hours worked and pay stub data, both provided by the MPD, and explained that he reached those conclusions by conducting the comparisons described above. Trial Tr. 165-167, 175, June 29, 2010. Specifically, he explained that, to compare plaintiffs' pre- and post-transfer overtime hours, he "calculated the amount [of] overtime worked as a percentage of total paid hours ... because [plaintiffs] didn't work exactly the same number *78 of hours in the before period and the after period, and in order to be able to compare apples to apples, you have to express the overtime worked as a percentage of the total time worked." Trial Tr. 167, June 29, 2010. And he testified that he considered the overtime hours of the officers who remained in the FMU "to see if there was any change in the overtime being worked by those who remained in the FMU that might tend to explain the decreases in overtime that we see for the plaintiffs." Trial Tr. 175, June 29, 2010. It is thus obvious that Lanier's conclusions were based on a "particular method or procedure," and the District's unsupported assertions to the contrary are "no more than unfounded lay opinion," amounting to "a failure of proof." See Order of May 20, 2010 [#247] (denying the District's motion to exclude Lanier's testimony) (quoting Cactus Corner, LLC v. U.S. Dep't of Agric., 346 F. Supp. 2d 1075, 1113 (E.D.Cal. 2004)) (internal quotation marks omitted). Likewise, Lanier's description of the basis for his calculations the overtime-hours and pay-rate data provided to him by the District makes clear that his conclusions were "tied to the facts of the case."
Fourth, the District attacks Lanier's conclusions as purely "speculative," arguing that "[i]t is impossible to reconstruct what would have followed had the unit not been reorganized; thus, Plaintiffs cannot meet their burden to establish the likelihood of damages." Def.'s Opp'n at 6. But calculating lost pay in a case like this necessarily involves some amount of estimation, precisely because it is not possible to reconstruct with perfect accuracy the events that would have occurred but for the defendant's unlawful conduct; "this speculative aspect should not deter courts from fashioning awards that accomplish Title VII's goals of making a wronged plaintiff whole." Selgas v. Am. Airlines, Inc., 104 F.3d 9, 14 n. 6 (1st Cir.1997); see also Barbour v. Merrill, 48 F.3d 1270, 1280 (D.C.Cir.1995) (holding that "a district court should not refuse to award front pay merely because some speculation about future earnings is necessary").[3] Here, the fact that Lanier necessarily had to rely on certain basic assumptions, see, e.g., Trial Tr. 187, June 29, 2010, does not undermine the validity of his conclusions or his methodology, especially given the District's failure to offer any evidence or expert testimony that called those assumptions into question.
Finally, the District contends that any back-pay award to plaintiffs should be reduced because, by voluntarily moving from the patrol evening shift to the patrol day shift after their transfers, plaintiffs failed to mitigate their damages. According to the District, the patrol day shift offers fewer overtime opportunities because court proceedings occur during the day; thus, an officer whose normal shift is in the evening earns overtime for appearing in court, whereas an officer who normally works during the day does not. But, as the party liable for an unlawful employment practice, the District bears the burden of establishing the facts of plaintiffs' failure to mitigate. See Fogg v. Gonzales, 492 *79 F.3d 447, 455 (D.C.Cir.2007); Peyton v. DiMario, 287 F.3d 1121, 1128 (D.C.Cir. 2002). And conspicuously absent from the District's opposition brief are any facts as opposed to unsupported assertions by counsel supporting the District's argument or establishing the extent of plaintiffs' alleged failure to mitigate. This lapse is especially problematic given that, as plaintiffs point out, Pls.' Reply at 7 n. 11, the District's argument relates to only one type of overtime; plaintiffs' non-court, FMU-specific overtime opportunities were terminated by their transfers, and were thus not impacted by their subsequent shift changes. In light of the District's inability to put forward any exhibits or calculations supporting its argument or even to hazard a guess at the amount that plaintiffs' back-pay awards should be reduced the Court concludes that the District has not carried its burden with regard to mitigation.
In sum: plaintiffs' back-pay claims are supported by the expert testimony adduced at trial, and all of the District's objections thereto are meritless. Accordingly, the Court concludes that each plaintiff is entitled to a back-pay award in the amount given by Dr. Lanier: Caudle, $36,454; Smalls, $14,399; James, $51,666; and Goins, $36,785. See Pls.' Mot. Ex 2 (Pls.' Trial Ex. 11A, overtime summary tables) at T.5. Plaintiffs are also entitled to prejudgment interest at the prime rate for each year between plaintiffs' removals from the FMU and the present (unless the parties agree on another rate). See Loeffler v. Frank, 486 U.S. 549, 558, 108 S. Ct. 1965, 100 L. Ed. 2d 549 (1988); Chadwick v. District of Columbia, 56 F. Supp. 2d 69, 73 n. 2 (D.D.C.1999) (citing Forman v. Korean Air Lines Co., Ltd., 84 F.3d 446, 450 (D.C.Cir.1996)).
B. Transfers to the Second District
As described above, the District's retaliatory actions against plaintiffs took place in the MPD's First District. Plaintiffs argue that Caudle, James, and Goins, who still serve in the First District, should be transferred to the Second District in order to insulate them from the continuing hostility and discord caused by the events underlying this case.[4] The District counters that a transfer is unwarranted because there is no indication of ongoing retaliation in the First District, neither Groomes nor Wilkins works in the First District anymore,[5] and a transfer to the Second District would not return plaintiffs to the positions they occupied prior to the District's retaliatory conduct. On this point, the District has the stronger position.
At trial, plaintiffs testified that, since their removals from the FMU, they have felt excluded, stared at, gossiped about, and mocked by other First District officers. See, e.g., Trial Tr. 45-46, June 30, 2010 (test. of Frazier Caudle). On this basis, they now ask to be transferred to the Second District, where they will not be "surrounded by officers and officials who have formed settled opinions about Plaintiffs' complaints and their efforts to vindicate *80 their rights." Pls.' Mot. at 10. Although the Court is not unsympathetic to plaintiffs' request, three facts militate against the relief they seek.
First, because Groomes and Wilkins have both left the First District (and because Groomes has been promoted), plaintiffs are already outside of Wilkins's chain of command, and would remain within Groomes's authority anywhere in the city. Thus, plaintiffs' requested transfers would not place them beyond the authority of those who were responsible for the retaliation against them. Cf. Webb v. Hyman, 861 F. Supp. 1094, 1117-18 (D.D.C.1994) (ordering the defendant to transfer the plaintiff beyond the authority of the superior who sexually harassed her).
Second, as described by plaintiffs at trial, the ostracism that they have experienced is not so severe as to "make[] an amicable and productive work relationship impossible." Cox v. Dubuque Bank & Tr. Co., 163 F.3d 492, 498 (8th Cir.1998) (affirming an award of front pay in lieu of reinstatement where hostility would make reinstatement impracticable). That other First District officers have "formed settled opinions" about the events underlying this case or have "talked about Plaintiffs' protected activity," Def.'s Mot. at 10, does not establish that plaintiffs cannot work productively in the First District, especially in the absence of testimony or evidence regarding plaintiffs' relationships with their present supervisors.
Third, ordering the MPD to transfer plaintiffs from one district to another would constitute a significant intrusion into the operations of both districts. When fashioning remedies under Title VII, courts attempt not to "interfere with the policymaking and personnel decisions that rightly belong to public servants." Jones v. Rivers, 732 F. Supp. 176, 178 (D.D.C. 1990). Although that goal is ultimately secondary to Title VII's core purpose of making a plaintiff whole, see Lander, 888 F.2d at 158, it is nevertheless a factor to be considered.
In light of these considerations, the Court must conclude that plaintiffs' requested transfers are unwarranted. Transferring plaintiffs would not restore their lost overtime opportunities or the other perks of FMU duty, and does not appear necessary to enable plaintiffs to work productively as MPD officers. Plaintiffs' desire for a fresh start is understandable, but the Court does not believe that the measure by which they hope to achieve that fresh start is appropriate here.[6]
C. Injunction Against Further Retaliation
Lastly, plaintiffs request an injunction barring the District from engaging in any further unlawful retaliation against them. Plaintiffs contend that this step is warranted by the high rank of the officials involved and the continued possibility of retaliation created by plaintiffs' ongoing employment with the MPD. The District, terming plaintiffs' requested remedy an "obey the law injunction," rejoins that such measures are improper under the Federal Rules of Civil Procedure. The District's response is unavailing.
Title VII expressly provides that, after a finding of liability, "the court may enjoin the [defendant] from engaging in [the] unlawful employment practice [in question]." 42 U.S.C. § 2000e-5(g)(1). This remedy, *81 which the Supreme Court has called "an important form of relief," Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), is "typical" in this jurisdiction. Bass v. Tanoue, 2001 WL 1659158, at *7 (D.D.C. Dec. 21, 2001); see, e.g., Jones v. Wash. Metro. Area Transit Auth., 205 F.3d 428, 435 (D.C.Cir.2000) (affirming issuance of a permanent injunction prohibiting the defendant from taking "any form of retaliatory action" against the plaintiff); Webb, 861 F.Supp. at 1117-18 (ordering the defendants "to refrain from sexual harassment, sex discrimination or retaliation in any form against" the plaintiff); Jones, 732 F.Supp. at 178 ("[T]he District of Columbia will be enjoined from further discrimination against Joan Jones on the basis of sex and from any future acts of retaliation."); Mitchell v. Sec'y of Commerce, 715 F. Supp. 409, 410 (D.D.C.1989) (granting a permanent injunction against future acts of discrimination or retaliation against the plaintiff, where he would continue to work for the defendant, which had exhibited some signs of resentment regarding the plaintiff's lawsuit).
Here, plaintiffs aver that such an injunction is warranted because of the ongoing possibility of further retaliation. They point out that four of the five plaintiffs still work for the MPD, and the fifth (Miller) is seeking reinstatement. And they further observe that their retaliation claim involved high-ranking MPD officials, including one (Groomes) who is now an Assistant Chief. Plaintiffs' arguments are persuasive. This dynamic where both the plaintiffs and the parties responsible for the unlawful action they experienced continue to work for the defendant frequently justifies the issuance of an injunction, especially where the defendant has "taken no affirmative steps to prevent recurrence" of the misconduct in question. See Bundy v. Jackson, 641 F.2d 934, 946 n. 13 (D.C.Cir.1981); see also Bruso v. United Airlines, Inc., 239 F.3d 848, 864 (7th Cir.2001) (holding that an injunction was warranted under Title VII where both the plaintiff and "the two individuals who were most influential in [his] demotion" still worked for the defendant).[7]
The District offers the Court no basis to reach a different conclusion here. As noted above, the District attacks plaintiffs' proposed injunction as an improper "obey the law" injunction. But the District fails to grapple with the numerous authorities cited by plaintiffs authorizing injunctions just like the one requested here. And, in any event, an impermissible "obey the law" injunction is one that is not meaningfully more specific than the law in question. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir.2011) (rejecting an injunction requiring the defendants "to act `in full conformity with applicable laws pertaining to firearms,' and to `adopt [] appropriate prophylactic measures to prevent violation' of those laws, without specifying which laws are `applicable' or identifying the ways in which the defendants must alter their behavior to comply with those laws." (alteration in original)). The injunction requested here does not approach that problematic level of generality.
The District's remaining objections are equally unpersuasive. The fact that plaintiffs have not experienced retaliation recently is irrelevant; in rejecting the same argument, the D.C. Circuit has explained *82 that "a suit for injunctive relief does not become moot simply because the offending party has ceased the offending conduct, since the offending party might be free otherwise to renew that conduct once the court denied the relief." Bundy, 641 F.2d at 946 n. 13. Nor must plaintiffs affirmatively establish a likelihood of future retaliation; on the contrary, courts have awarded injunctions where the defendant has failed to show that future misconduct is unlikely. See Bruso, 239 F.3d at 864; Bundy, 641 F.2d at 946 n. 13. And finally, the existence of an internal MPD policy forbidding retaliation which, notably, was in place at the time of the unlawful retaliation that gave rise to this case does not establish that an injunction is not necessary. In Bundy, a sexual harassment case against the District, the D.C. Circuit noted that the District's Mayor had issued an order prohibiting sexual harassment; the court concluded that the Mayor's order "d[id] not provide any certainty that the offending conduct will not recur," and called it "a useful supplement to ... a District Court injunction." Bundy, 641 F.2d at 946 nn. 13-14; see also Bruso, 239 F.3d at 864. So too here.
III. CONCLUSION
For the foregoing reasons, plaintiffs' motion for equitable and injunctive relief [#301] is granted in part and denied in part. An appropriate order accompanies this Memorandum.
NOTES
[1] Here, the District retreads the meritless arguments that it used in its failed attempt to exclude Lanier's testimony in the first place. See Def.'s Mot. In Limine to Exclude Pls.' Expert Economist [#198].
[2] Lanier holds a B.S. and a Ph.D. in economics and works as an economics consultant, specializing in labor economics. He has performed policy analysis for the government, and has previously served as a litigation consultant. Trial Tr. 152-53, June 29, 2010.
[3] Cf. Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1234-35 (D.C.Cir. 1997) ("Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate." (quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S. Ct. 248, 75 L. Ed. 544 (1931)) (internal quotation marks omitted)).
[4] The First District covers a portion of the District of Columbia that is bordered on the south by the Potomac and Anacostia rivers and on the north by New York Avenue NW and Florida Avenue NE. The Second District spans a larger, roughly triangular section of the city, bounded by the Potomac river, Western Avenue NW, and Rock Creek Park. See Police Districts & PSAs, METROPOLITAN POLICE DEPARTMENT, http://mpdc.dc.gov/mpdc/cwp/view,a,1239,Q,543336,mpdcNav_GID,1523,.asp (last visited Aug. 19, 2011).
[5] Groomes is now Assistant Chief in charge of Patrol Services and the School Security Bureau, and Wilkins now works in the Fifth District.
[6] In so holding, the Court does not endorse the District's repeated, outlandish assertions that plaintiffs' request to be transferred illustrates "a willingness to seek improper benefits for themselves" and demonstrates that plaintiffs' "entire claim of retaliation has been illegitimate ab initio." Def.'s Opp'n at 3, 15.
[7] Strangely, the District attempts to distinguish Bruso by pointing out that, there, the managers responsible for the plaintiff's demotion "were still in `[defendant's] upper echelon of management,'" Def.'s Opp'n at 16 (quoting Bruso, 239 F.3d at 864) a phrase that accurately describes Groomes's current Assistant Chief position. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2987375/ | Affirmed in Part, Reversed and Remanded in Part and Opinion filed
March 26, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00691-CV
FELICIA WILLIAMS, INDIVIDUALLY AND D/B/A IN THE URBAN
CITY INVESTMENT GROUP, Appellant
V.
DESTRY C. BELL, SR. AND CHRIST TEMPLE OF DELIVERANCE
CHURCH OF GOD IN CHRIST, INC., Appellees
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 989501
OPINION
Appellant Felicia Williams, individually and d/b/a In the Urban City
Investment Group, appeals the trial court’s order granting summary judgment in
favor of appellees Destry C. Bell, Sr. and Christ Temple of Deliverance Church of
God in Christ, Inc. (“Christ Temple”). We affirm in part and reverse and remand
in part for further proceedings consistent with this opinion.
BACKGROUND
On April 2, 2008, Williams and Christ Temple entered into a “Commercial
Buyer/Tenant Representation Agreement.” Bell signed the agreement on behalf of
Christ Temple, where he is a pastor. To help finalize a transaction, Williams
agreed to take only $20,000 of her $54,000 brokerage commission at closing. She
accepted a promissory note for the remaining $34,000 with a 0% interest rate. Bell
also signed this note on behalf of Christ Temple. The note provided for the
acceleration of all unpaid principal and other amounts due in the event of a default
by Christ Temple and further provided that Christ Temple would pay a late fee if
any payment under the note became more than 10 days overdue. The late fee was
to be “equal to 5% of the installment not paid.”
Christ Temple made one payment of $2,833.83 but failed to make any
further payments. On April 7, 2011, Williams filed a petition against Christ
Temple and Bell for payment on the note. Williams requested payment of
“$93,132.15, plus accrued late fees as provided for in the note.” The appellees
filed their response on June 13, 2011, in which they denied all of Williams’s
claims, and brought counterclaims for usury, unjust enrichment, promissory
estoppel, and fraud. The appellees also sent notice of their usury claim directly to
Williams.
The appellees sent requests for disclosure to Williams; these included a
request that Williams “[s]tate the amount of economic damages and any method of
calculating the damages.” Williams responded by restating the $93,132.141 figure
but did not explain how it was calculated.
1
In her original petition, Williams claimed damages of $93,132.15; the amount she
claimed in her response to the appellees’ requests for disclosure was one cent smaller:
$93,132.14. This discrepancy does not affect our analysis.
2
On February 3, 2012, the appellees filed traditional and no-evidence
summary-judgment motions. The appellees argued that (1) there was no basis for
Bell’s personal liability on the agreement and (2) the agreement itself was
unenforceable because the $93,132.14 amount reflected an attempt to collect
usurious interest of nearly 66%. Williams denied charging any interest and
claimed she had never loaned money to the appellees.
On April 4, 2012, Williams filed her first amended petition seeking a smaller
sum from the appellees and explaining her calculations:
[The appellees] defaulted in paying the note. [Williams] has
accelerated the debt according to the terms of the note. There is
currently due $31,166.17, which includes principal and the 0% in
accrued interest on the note. [Williams] is also due late fees as
provided for in the note in the amount of $1,700 for six late
installment payments. In sum, there is currently due and owing from
[the appellees] $32,866.17.
Williams argued that because the damages she sought could no longer be construed
as usurious, summary judgment was not appropriate. For the first time in the
proceedings, Williams also asserted a common-law fraud claim. The trial court
heard argument from both parties on April 24, 2012.
On April 30, 2012, the trial granted the appellees’ summary judgment
motions and ordered Williams to pay statutory damages to Christ Temple in the
amount of $93,132.15. Williams moved for both a new trial and a rehearing on the
motions for summary judgment; the trial court denied the motions. This appeal
followed.
ANALYSIS
As an initial matter, the parties have not disputed our jurisdiction over this
appeal, but we examine that fundamental issue sua sponte. See Royal Indep. Sch.
3
Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008,
no pet.).
“[T]he general rule, with a few mostly statutory exceptions, is that an appeal
may be taken only from a final judgment. A judgment is final for purposes of
appeal if it disposes of all pending parties and claims in the record, except as
necessary to carry out the decree.” Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001) (footnote omitted); see Kan. City S. Ry. v. Oney, 380 S.W.3d 795,
798 (Tex. App.—Houston [14th Dist.] 2012, no pet.). To determine if an order is
final, we examine the express language of the order and determine whether the
order, “actually disposes of all claims against all parties.” Crites v. Collins, 284
S.W.3d 839, 840 (Tex. 2009) (per curiam).
The trial court’s order provides, in relevant part:
IT IS THEREFORE ORDERED THAT [the appellees’] Motion for
Traditional Summary Judgment be and is hereby GRANTED in all
things.
IT IS ALSO ORDERED THAT [the appellees’] Motion for No-
Evidence Summary Judgment be and is hereby GRANTED in all
things.
* * *
This is a final judgment. All relief not expressly granted herein is
DENIED.
No mention is made of Williams’s fraud claim, and the appellees did not address
the fraud claim in their motions for summary judgment.
That omission notwithstanding, the trial court’s intent to finally dispose of
the case is unequivocally expressed in the words of the order granting summary
judgment. As we explain below, this was error, but it does not make the trial
4
court’s order interlocutory. “[I]f a defendant moves for summary judgment on
only one of four claims asserted by the plaintiff, but the trial court renders
judgment that the plaintiff take nothing on all claims asserted, the judgment is final
— erroneous, but final.” Lehmann, 39 S.W.3d at 200.
We conclude that this appeal is within our jurisdiction, and we proceed to
examine its merits.
In nine issues,2 Williams argues that the trial court erred by granting
summary judgment in favor of the appellees. Before reaching her substantive
issues, we address her assertion that she received inadequate notice of the summary
judgment hearing.
In her seventh issue, Williams contends that she was notified of the
summary judgment hearing 11 days before it took place and that, as a result, she
was deprived of the 21-day notice provided for in the Texas Rules of Civil
Procedure. See Tex. R. Civ. P. 166a(c).
Rule 166a of the Texas Rules of Civil Procedure requires that a party serve
notice of a summary judgment hearing on opposing counsel at least 21 days before
the hearing date. Tex. R. Civ. P. 166a (c). This requirement does not apply to a
resetting of the hearing. Skelton v. Comm’n for Lawyer Discipline, 56 S.W.3d 687,
691 (Tex. App.—Houston [14th Dist.] 2001, no pet.); LeNotre v. Cohen, 979
S.W.2d 723, 726 (Tex. App.—Houston [14th Dist.] 1998, pet. denied.). Provided
the nonmovant received notice 21 days before the original hearing, only
“reasonable notice” of at least seven days is necessary. Skelton, 56 S.W.3d at 691;
LeNotre, 979 S.W.2d at 726.
The summary judgment hearing was originally scheduled for March 1, 2012,
2
Williams lists ten issues in her brief, but one of her issues is listed twice.
5
and notice was sent to Williams on February 3, 2012. Williams does not allege
that this initial notice was untimely. After several delays, on April 13, the
appellees notified Williams of the April 24 hearing date.
Because she received adequate notice of the original hearing, Williams had a
right only to “reasonable notice” of the rescheduled hearing. The notice provided
by the appellees, 11 days in advance of the hearing, satisfies this requirement.
We overrule Williams’s seventh issue and proceed to the merits of her
appeal.
We review summary judgments de novo. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 156 (Tex. 2004); Raynor v. Moores Mach. Shop, LLC,
359 S.W.3d 905, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.). When the
trial court grants summary judgment without specifying on what grounds, we will
affirm if any of the grounds presented are meritorious. FM Props. Operating Co.
v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Raynor, 359 S.W.3d at 907.
The appellees moved for summary judgment on traditional and no-evidence
grounds. For both types of motions, we take as true all evidence favorable to the
nonmovant, and indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. See Joe, 145 S.W.3d at 157 (traditional summary judgment);
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (no-evidence
summary judgment).
In a no-evidence summary judgment, the movant represents that there is no
evidence of one or more essential elements of claims for which the non-movant
bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). We sustain a no-
evidence summary judgment when (a) there is a complete absence of evidence of a
vital fact, (b) the court is barred by rules of law or evidence from giving weight to
6
the only evidence offered to prove a vital fact, (c) the evidence offered to prove a
vital fact is no more than a mere scintilla, or (d) the evidence conclusively
establishes the opposite of a vital fact. King Ranch, Inc., 118 S.W.3d at 751.
“Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no
more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1963)). On the other hand, more than a
scintilla of evidence exists when reasonable and fair-minded people could differ in
their conclusions based on the evidence. Id.
In a traditional summary judgment, the movant has the burden of showing
there is no genuine issue of material fact and it is entitled to judgment as a matter
of law. Tex. R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,
425 (Tex. 1997). To be entitled to a traditional summary judgment, a defendant
must conclusively negate at least one essential element of each of the plaintiff’s
causes of action or conclusively establish each element of an affirmative defense.
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once a
defendant establishes a right to summary judgment as a matter of law, the burden
shifts to the plaintiff to present evidence raising a genuine issue of material fact.
Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Evidence is conclusive only
if reasonable people could not differ in their conclusions. City of Keller v.Wilson,
168 S.W.3d 802, 816 (Tex. 2005).
I. No-Evidence Summary Judgment
In her fourth, fifth, sixth, and eighth issues, respectively, Williams argues
that the trial court erred by granting the appellees’ no-evidence motion for
summary judgment because (1) she raised a genuine issue of material fact
regarding Bell’s individual liability; (2) she raised a genuine issue of material fact
regarding the appellees’ liability under the promissory note; (3) the appellees did
7
not address her fraud claim; and (4) the motion was insufficient as a matter of law
because it was conclusory.
In a no-evidence motion for summary judgment, the movant must
specifically identify the elements for which there is no evidence. Barzoukas v.
Found. Design, Inc., 363 S.W.3d 829, 832 (Tex. App.—Houston [14th Dist.] 2012,
pet. filed). To prevail on a suit for a promissory note, a plaintiff must prove: (1)
the note in question; (2) the party sued signed the note; (3) the plaintiff is the
owner or holder of the note; and (4) a certain balance is due on the note. Dorsett v.
Hispanic Hous. & Educ. Corp., 389 S.W.3d 609, 613 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
The appellees specifically identified the second element in their no-evidence
motion for summary judgment. They did not dispute the existence of the note,
Williams’s ownership of the note, or the fact that a balance was due, only that
“there is no evidence to support any claim asserted by [Williams] against Pastor
Bell.” In response, Williams offered a document purportedly showing that Christ
Temple’s corporate charter had been forfeited. Such a document has no bearing on
Bell’s liability on the note.3
An individual who signs a negotiable instrument is presumed to be
personally liable on the note if he does not indicate that he is signing in a
representative capacity. Tex. Bus. & Com. Code Ann. § 3.403(b) (Vernon 2002).
However, when “the form of the signature shows unambiguously that the signature
3
The record is not entirely clear, but it appears that a temporary forfeiture of
Christ Temple’s corporate privileges was caused by an administrative error within the
Texas Comptroller’s Office. Regardless of the cause, however, the corporate debts of a
corporation that has forfeited its privileges are governed by the tax code. See Tex. Tax
Code Ann. § 171.255(a) (Vernon 2011). Williams has not argued that Bell is liable under
this provision.
8
is made on behalf of the represented person who is identified in the instrument, the
representative is not liable on the instrument. Tex. Bus. & Com. Code Ann. §
3.402(b)(1) (Vernon 2002). A note signed “[corporation name] by [signer’s
name]” and followed by the signer’s job title is prima facie evidence the signer is
not personally liable. See Wolf v. Little John Corp. of Liberia, 585 S.W.2d 774,
776 (Tex. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.).
Here, Bell’s signature appeared under Christ Temple’s full name:
CHRIST TEMPLE OF DELIVERANCE CHURCH OF GOD IN
CHRIST, INC. a Texas nonprofit corporation
/s/ Destry C. Bell Sr.
by Destry C. Bell, Sr., Pastor
This is evidence Bell signed the note in a representative capacity, and
Williams has not presented evidence to the contrary. Accordingly, the trial court
did not err by granting the appellees’ no-evidence motion for summary judgment
on the issue of Bell’s personal liability on the note.
We overrule Williams’s fourth issue.
The appellees’ no-evidence motion was concerned solely with Bell’s
personal liability on the note. Therefore, issues of Christ Temple’s liability on the
note and Williams’s fraud claim are wholly irrelevant. We overrule Williams’s
fifth and sixth issues.
With her sixth issue, Williams argues that the no-evidence motion for
summary judgment was conclusory.
No-evidence motions for summary judgment must note the specific elements
as to which there is no evidence; the rules do not authorize “conclusory motions or
general no-evidence challenges to an opponent’s case.” Tex. R. Civ. P. 166a, cmt.
9
(1997). The purpose of the specificity argument is to provide the non-movant with
fair notice of the matters on which it must produce some evidence. Doherty v. Old
Place, Inc., 316 S.W.3d 840, 843 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
We have already noted that the appellees’ no-evidence motion specifically
identified the issue of Bell’s personal liability on the note. We reject the
contention that the motion was conclusory.
We overrule Williams’s eighth issue.
II. Traditional Summary Judgment
A. Usury
In her first issue, Williams argues that the trial court erred by granting the
appellees’ traditional motion for summary judgment because she raised a genuine
issue of material fact on the appellees’ counterclaim and affirmative defense of
usury.
Usury is any charged interest, “in excess of the amount allowed by law.”
First Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex. 1994).
Contracts for usurious interest are contrary to public policy and prohibited by the
Texas Constitution and Texas Finance Code. See Tex. Const. art. XVI, § 11; Tex. Fin.
Code Ann. §§ 302.001(b), 305.001-.008 (Vernon 2011); Sturm v. Muens, 224 S.W.3d
758, 761 (Tex. App.—Houston [14th Dist.] 2007, no pet.). To prevail on a claim of
usury, a party must prove (1) a loan of money, (2) an absolute obligation to repay the
principal, and (3) the exaction of greater compensation than is allowed by law for the
borrower’s use of the money. Sturm, 224 S.W.3d at 761.
The basis for a usury action is a claim or demand for usury made by the
creditor; the vehicle for the claim or demand is immaterial except as an evidentiary
fact. Danziger v. San Jacinto Sav. Ass’n, 732 S.W.2d 300, 304 (Tex. 1987). A
10
usurious charge may be contained in an invoice, a letter, a ledger sheet or other book or
document. Id. This rule has one well-settled exception: “A pleading by itself, even if
it contains a claim for usurious interest, does not constitute a ‘charge’ of usurious
interest for the purposes of the Texas usury statute.” D & S Kingsway Ventures v. Tex.
Capital Bank-Richmond, N.A., 882 S.W.2d 573, 575 (Tex. App.—Houston [14th Dist.]
1994, no writ). This reflects the unique characteristics of the judicial process:
Usury statutes are designed to correct abusive practices in consumer and
commercial credit transactions, not to serve as a trap for the unwary
pleader in a court proceeding. Pleadings serve to give a party notice of
the issues as trial. Pleadings are addressed to the court, and only demand
that the court grant judgment. There is no demand on the opposing party.
George A. Fuller Co. of Tex., Inc. v. Carpet Servs., Inc., 823 S.W.2d 603, 605 (Tex.
1992) (citations omitted).
Here, the parties executed a promissory note for $34,000 with a 0% interest
rate. After one payment of $2,833.83, Christ Temple failed to make any further
payments. Williams filed suit, seeking “$93,132.15, plus accrued late fees as
provided for in the note.” In accordance with the rules of civil procedure, the
appellees requested that Williams disclose, among other things, “the amount of
economic damages and any method of calculating the damages.” Williams
answered, “93,132.14,” but did not explain her calculations.
The appellees argue that Williams has demanded usury on two separate
occasions: once in her original petition and again in her responses to requests for
disclosure.
These claims are without merit. By itself, the original petition clearly cannot
form the basis of the appellees’ usury action. See George A. Fuller Co., 823
S.W.2d at 603; D & S Kingsway Ventures, 882 S.W.2d at 575. We must determine
whether the original petition, combined with responses to requests for disclosure,
11
constitutes a charge of usurious interest. We hold that it does not.
We believe that this case presents an issue of first impression because it
concerns a document sent directly to the appellees. Existing case law relies, at
least in part, on the fact that “[p]leadings are addressed to the court.” See, e.g.,
George A. Fuller Co., 823 S.W.2d at 605; Resolution Trust Corp. v. Ammons, 836
S.W.2d 705, 711 (Tex. App.—Houston [1st Dist.] 1992, no writ) (“Since the summary
judgment motion and supporting affidavit were in the nature of pleadings addressed to
the court and only demand that the court grant judgment, we hold they do not
constitute a charge [of] usurious interest.”).
There is no question that Williams addressed her responses directly to the
appellees instead of the court, but this fact is incidental to our analysis. In our view,
Williams did not demand $93,132.14 from the appellees when she responded to
their request for disclosures; she merely gave the appellees further notice of the
damages she was seeking in her suit. The $93,132.14 figure was never mentioned
outside of the court proceedings in this case. This is the key factor in our analysis.
A demand that “arises from the judicial process rather than directly from a
commercial or consumer transaction” does not constitute a charging under Texas usury
laws. Briones v. Solomon, 842 S.W.2d 278, 278 (Tex. 1992) (per curiam); George A.
Fuller Co., 823 S.W.2d at 605; Hunt v. Baldwin, 68 S.W.3d 117, 129 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). We conclude that Williams’s claim for damages
arises from the judicial process and does not constitute a charging under Texas usury
laws.
We sustain Williams’s first issue and reverse the trial court’s order granting
summary judgment on the usury issue and imposing statutory damages. However,
Williams has not moved for summary judgment on the usury issue in this appeal.
Therefore, we cannot render judgment, but must remand this portion of the case to the
12
trial court.
B. Suit on Note
In her second issue, Williams argues that the trial court erred by granting the
appellees’ traditional motion for summary judgment because she raised a genuine
issue of material fact on her suit-on-note claim.
Summary judgments may only be granted upon the grounds expressly
asserted in the summary judgment motion. Tex. R. Civ. P. 166a(c); G & H Towing
Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam). Granting a
summary judgment on a claim not addressed in the summary judgment motion
therefore is, as a general rule, reversible error. G & H Towing Co., 347 S.W.3d at
297.
The only ground for summary judgment expressly asserted in the summary
judgment motion was that the note was unenforceable because it charged usurious
interest. As we have said above, the trial court erred by granting summary
judgment on this basis.
We therefore sustain Williams’s second issue and remand the case to the
trial court for consideration of Williams’s suit-on-note claim.
C. Fraud
In her third and ninth issues, Williams argues that the trial court erred by
granting the appellees’ traditional motion for summary judgment on her fraud
claim because that claim was not addressed in the appellees’ motion.
We agree. When the movant files a summary judgment motion and the non-
movant then adds a new claim that is not addressed by the motion or by a
subsequent motion, summary judgment properly may be granted only on the
claims addressed in the motion. See Lehmann, 39 S.W.3d at 204.
13
We sustain Williams’s third and ninth issues, and we remand the case to the
trial court for consideration of Williams’s fraud claim.
CONCLUSION
We affirm the trial court’s judgment with regard to Bell’s personal liability;
we reverse the trial court’s finding that Williams charged usurious interest and its
imposition of statutory damages. We also reverse the trial court’s judgment insofar
as it was granted on grounds not asserted in the motion for summary judgment, and
we remand this case for proceedings in accordance with this court’s opinion.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
14 | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/489846/ | 820 F.2d 1229
*/**U.S.v.Caraballo-Garcia
86-7758
United States Court of Appeals,Eleventh Circuit.
6/5/87
1
S.D.Ala.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 11th Cir.R. 23.
** Local Rule: 25 case. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2748029/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2014*
Decided November 4, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐1820
DE HANG CHEN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A099 605 222
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
De Hang Chen, a Chinese citizen, petitions for review from the denial of his
applications for asylum, withholding of removal, and protection under the Convention
Against Torture. We dismiss the petition for lack of jurisdiction.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the petition is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 14‐1820 Page 2
Chen entered the United States without inspection, conceded his removability
before an immigration judge, and, through counsel, sought asylum and related relief
based on his wife’s forced abortion, see 8 U.S.C. § 1101(a)(42). Chen acquired new
counsel before his merits hearing, where he testified that his wife had been forced to
undergo an abortion and that twice he had scuffled with a local village official in his
native Fujian province. The IJ denied relief, finding Chen not credible—based on key
inconsistencies between his testimony and written submissions—and his evidence
insufficient to corroborate his testimony.
In his appeal to the Board of Immigration Appeals, Chen, through the same
counsel, primarily challenged the adverse credibility finding, and he noted in one
sentence that his application did not mention the altercations with the local official at
his first lawyer’s suggestion. The Board dismissed Chen’s appeal, adding in a footnote
that his contention about his first lawyer’s advice “lack[ed] support in the record”
because Chen had not asserted any claim of ineffective assistance.
Now represented by a third lawyer, Chen petitions for review before this court,
arguing that his second lawyer ineffectively assisted him by not submitting an updated
application or corroborating evidence and by not asking him to clarify his inconsistent
testimony. But we lack jurisdiction to consider any claim relating to the alleged
ineffective assistance of Chen’s second counsel because Chen did not exhaust his
administrative remedies before seeking judicial review. See 8 U.S.C. § 1252(d)(1); Singh
v. Holder, 720 F.3d 635, 640 (7th Cir. 2013). Before presenting his ineffective‐assistance
claim to us, Chen first needed to present it to the Board, as in a motion to reopen, see 8
U.S.C. § 1229a(c)(7); United States v. Arita‐Campos, 607 F.3d 487, 491–92 (7th Cir. 2010);
such a motion would have allowed the Board to consider whether his second lawyer
was ineffective, see Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Although an
issue is deemed exhausted if the Board addresses it on its own, see Arobelidze v. Holder,
653 F.3d 513, 517 (7th Cir. 2011), the Board’s allusion in its footnote to the absence of a
claim in no way constitutes exhaustion, see Tian v. Holder, 745 F.3d 822, 826 (7th Cir.
2014), and in any event Chen’s reference before the Board was to his first lawyer, not
the second lawyer of whom he complains here.
DISMISSED. | 01-03-2023 | 11-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2370863/ | 624 F. Supp. 2d 548 (2007)
PHI, INC.
v.
OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION and Office & Professional Employees International Union Local 108.
Civil Action Nos. 06-1469 (LEAD), 06-2243 (MEMBER).
United States District Court, W.D. Louisiana, Lafayette Division.
October 29, 2007.
*549 Hal J. Broussard, Broussard & Kay, Lafayette, LA, E. Scott Smith, Joshua L. Ellis, Fisher & Phillips, Atlanta, GA, for PHI, Inc.
Louis L. Robein, Jr., William Lurye, Julie M. Richard-Spencer, Robein Urann & Lurye, Metairie, LA, Melvin S. Schwarzwald, Timothy Gallagher, Schwarzwald & McNair, Cleveland, OH, for Office & Professional Employees International Union and Office & Professional Employees International Union Local 108.
MEMORANDUM RULING
REBECCA F. DOHERTY, District Judge.
Pending before this Court is PHI, Inc.'s ("PHI") Motion to Dismiss Count II of the Unions' Second Amended Counterclaim in the "Bad Faith Bargaining Case"[1] [Doc. 86]. The motion is opposed by the Office of Professional Employees International *550 Union ("OPEIU") and its Local Union 108 ("Local 108") (collectively, "the Unions") [Doc. 99]. For the following reasons, PHI's motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2000, OPEIU was certified by the National Mediation Board ("NMB") as the collective bargaining representative of the flight deck crewmembers ("pilots") employed by PHI. Shortly after the NMB certification, OPEIU entered into negotiations with PHI in an attempt to reach an initial collective bargaining agreement ("CBA"), As a result of these negotiations, a CBA was confected between PHI and the Unions on July 12, 2001, which was effective June 1, 2001 through May 31, 2004.
On or about February 19, 2004, negotiations between PHI and the Unions began in an effort to reach a successor CBA. After approximately 39 days of direct bargaining and more than 38 additional bargaining sessions mediated by the NMB, no successor CBA was reached. On July 28, 2006, the NMB issued a letter advising PHI and the Unions that as of 12:01 a.m. EDT on August 28, 2006, the parties would be free to engage in economic self-help.
On August 28, 2006, PHI filed suit in this court, seeking a declaratory judgment and permanent injunctive relief against the Unions under the Railway Labor Act, 45 U.S.C. § 151, et seq. ("RLA"), on grounds that the Unions violated Section 2, First of the RLA by bargaining in bad faith and failing to exert reasonable efforts to reach an agreement with the Company (the "Bad Faith Bargaining Case"). PHI also seeks to enjoin the Unions from further bargaining in bad faith and require them, henceforth, to bargain in good faith with the intent of reaching an agreement.
On September 20, 2006, the Unions instituted a strike of PHI's pilots. On the same day, PHI sent several communications to its pilots in response to the strike, including the following:
PHI's September 20, 2006 letter to the pilots advising them that they were being "permanently replaced" and that their "final paycheck including earnings due for bonuses, accrued vacation or earned time off" would be put in the mail within the next 24 hours. This letter also advised the pilots that all company benefits were being discontinued as of that date.[2]
PHI's September 20, 2006 memorandum to all pilots advising the pilots of their alleged duty to report for work. This memorandum advised the striking pilots that "[p]ilot(s) not in contact with their supervisor and/or who do not provide an acceptable (non-strike related) reason for their absence, will, after three days, be considered to have abandoned their job/responsibilities." The memorandum also advised that pilots not in contact with their supervisors within the three-day time period would be discharged.[3]
PHI's September 20, 2006 letter to the pilots attaching COBRA notices and advising the pilots of their right to elect to self-pay in order to continue their health insurance coverage previously provided by PHI. These notices advise the pilots that continuing coverage was being offered "[b]ecause of the above event [i.e., permanent replacement] that will end your coverage *551 under the plan,...."[4]
PHI's September 21, 2006 letter to each striking pilot, attaching a pay check and advising each pilot that "your employment status with PHI, Inc. has now been coded as `Permanently Replaced Due To Job Actions.'" The letter advised the pilots that "enclosed herein is your last pay check, including any bonuses and accrued vacation due you" and further stated that "your PHI benefits cease as of this date...."[5]
PHI's September 25, 2006 letter to OPEIU international representative Paul Bohelski, in which PHI confirmed the contents of it September 20, 2006 memorandum that all pilots who fail to advise PHI of their job status faced discharge for job abandonment.[6]
On November 10, 2006, the Unions advised PHI that the pilots were ending the strike and making an unconditional offer to return to work. On November 27, 2006, the Unions filed a complaint for preliminary and permanent injunctive relief, declaratory judgment, damages, and other relief under the Railway Labor Act, 45 U.S.C. § 151, et seq. and 28 U.S.C. § 2201 against PHI (the "Return to Work Case").[7] In the "Return to Work Case," the Unions allege that PHI has ignored the unconditional return to work offer and/or placed illegal conditions on the offer, in violation of the RLA and La.Rev.Stat. § 23:822. The Unions seek a preliminary injunction directing PHI to immediately reinstate with full back pay and benefits those flight deck crew members ("pilots") employed by PHI and represented by the Unions who engaged in a protected work stoppage and made an unconditional offer to return to work at the conclusion of the work stoppage on November 10, 2006.
On April 17, 2007, the Unions filed a second amended answer to PHI's complaint in the "Bad Faith Bargaining Case," as well as a second amended counterclaim, wherein the Unions allege that PHI's "final paychecks" to the pilots deemed "permanently replaced" contain deductions not authorized by the pilots, in violation of La.Rev.Stat. § 23:631 [Doc. 63]. The Unions contend that amicable demand has been made by the Unions on behalf of the affected pilots, requesting that the deductions be rescinded and that the pilots be paid the full amounts due, but that PHI has refused to pay these amounts. PHI seeks liquidated damages for PHI's refusal to pay.
On May 29, 2007, PHI filed the instant motion to dismiss the Unions' wage deduction claim [Doc. 86]. The Unions filed their opposition brief on July 3, 2007 [Doc. 99].
II. LAW AND ANALYSIS
A. Procedural Posture
PHI's motion was filed as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[8] By the *552 express language of the rule, however, a Rule 12(b)(6) motion "shall be made before pleading if a further pleading is permitted." Fed.R.Civ.P. 12(b)(6). In the instant matter, PHI filed its answer to the Unions' wage deduction claim on April 25, 2007 [Doc. 66], and filed the instant motion to dismiss on May 29, 2007 [Doc. 86]. Therefore, PHI's motion to dismiss is untimely pursuant to Rule 12(b)(6).
In Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999), the Fifth Circuit explained that an untimely-filed 12(b)(6) motion to dismiss should be treated as a motion for judgment on the pleadings pursuant to Rule 12(c), to wit:
Because a rule 12(b) motion must be filed before responsive pleadings, the appellees' motion was untimely. Rule 12(c) motions, however, may be filed after the pleadings are closed. Such motions will be treated as a motion for judgment on the pleadings based on a failure to state a claim on which relief may be granted. Thus, the district court did not err when it construed the defendants' motion as one for judgment on the pleadings.
Accordingly, PHI's 12(b)(6) motion would ordinarily be treated as one for judgment on the pleadings pursuant to Rule 12(c).[9] Despite the foregoing, this Court is unable to treat the instant motion as a Rule 12(c) motion to dismiss, because the Unions state in their opposition brief that they rely on materials outside the pleadings in support of their arguments. Accordingly, the Unions urge this Court to consider the attached materials and consider the instant motion as a motion for summary judgment.
This Court has reviewed the documents attached by the Unions to their opposition brief and agrees that the documents are material to the issues before the Court. Accordingly, on October 9, 2007, this Court notified the parties that it intended to treat the instant motion to dismiss as a motion for summary judgment [Doc. 135]. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 195 (5th Cir.1988). See also Clark v. Tarrant County, Texas, 798 F.2d 736, 745 (5th Cir.1986).[10] Considering the *553 foregoing, the instant motion is hereby considered, and will be adjudicated as, a motion for summary judgment.
B. Summary Judgment Standard
"A party against whom a claim, counterclaim, or cross-claim is asserted or declaratory judgment is sought may, at any time, move with or without supporting affidavits for summary judgment in the parties favor as to all or any part thereof." Fed. R. Civ. Pro. 56(b). Summary judgement is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Pro. 56(c).
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 the adverse party's pleading, but the adverse party's response by affidavits or is otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed. R. Civ. Pro. 56(e).
As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994):
When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322, 106 S. Ct. 2548; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir.1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991). Only when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L.Ed.2d 202(1986).
The Supreme Court has instructed:
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element *554 of her case with respect to which she has the burden of proof."
[....]
... In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.
Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)(emphasis added)).
The Fifth Circuit has further elaborated:
[The parties'] burden is not satisfied with `some metaphysical doubt as to the material facts,' by `conclusory allegations,' by `unsubstantiated assertions,' or by only a `scintilla' of evidence. We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.... [S]ummary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted).
Finally, in evaluating evidence to determine whether a factual dispute exists, "credibility determinations are not part of the summary judgment analysis." Id. To the contrary, "in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001).
C. The Unions' Wage Deduction Claim
PHI seeks dismissal of the Unions' wage deduction claims on grounds that the Unions are not entitled to relief on the face of the statute. Section 23:631 states in pertinent part:
A. (1)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(b) Upon the resignation of any laborer or other employee of any kind whatever, *555 it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
La.Rev.Stat § 23:631(A)(1)(a) & (b) (emphasis added). PHI argues that, pursuant to Louisiana jurisprudence, Section 23:631 contains a preliminary threshold, that is, an employee must have been either actually discharged or must have actually resigned in order to obtain relief under the statute. PHI argues that, because the Unions cannot show that the pilots in question either actually resigned or were actually discharged by PHI, they cannot obtain relief under the statute. In fact, PHI argues that, because the pilots are strikers, they remain employees of PHI. See National Labor Relations Board v. Mackay Radio, 304 U.S. 333, 335, 58 S. Ct. 904, 82 L. Ed. 1381 (1938) ("The strikers remained employees under Section 2(3) of the [National Labor Relations] Act, 29 U.S.C.A. 152(3) ..."). PHI also argues that the Unions' wage deduction claim is preempted by federal law.
1. The Wage Deduction Claim is Not Preempted
Putting aside for a moment the issue of whether Section 23:631 is applicable in this case as a matter of law, PHI argues that, even if the Court determines that Section 23:631 is applicable to the Unions' wage deduction claim, such claim is preempted by the RLA pursuant to the principles set forth in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959), otherwise known as Garmon preemption.
In Garmon, an employer sued the Union in state court to recover damages from picketing that allegedly violated the National Labor Relations Act. The United States Supreme Court held that this state remedy was preempted by federal law because the state courts must yield to the exclusive jurisdiction of the NLRB, even when the NLRB has declined to take jurisdiction. Garmon, 359 U.S. at 238, 79 S. Ct. 773. The Garmon court further stated that preemption is necessary because "the exercise of state power over a particular area of activity threatens interference with the clearly indicated policy of industrial relations ..." Id. at 243, 79 S. Ct. 773. Concerned with "conflict in its broadest sense," the Garmon court eschewed a focus on the type of state regulation or claim, and adopted an approach that "looks to the nature of the activities which the states have sought to regulate." Id. Garmon requires federal preemption of state causes of action "if they attach liability to conduct that is arguably protected ... or arguably prohibited by federal labor relations law." Id. at 245, 79 S. Ct. 773.
Garmon recognized two exceptions to preemption. First, some conduct will "touch interests so deeply rooted in local feeling and responsibility that ... [the Court] could not infer Congress had deprived the states of the power to act." Id. at 244, 79 S. Ct. 773. The classic example of this exception, provided by the court in Garmon itself, is that of union activities involving violence. See also Youngdahl v. Rainfair, Inc., 355 U.S. 131, 139-40, 78 S. Ct. 206, 2 L. Ed. 2d 151 (1957) (upholding state court injunction against violent picketing). The second exception is for matters only of "peripheral concern" to federal labor relations law. Garmon, 359 U.S. at 243, 79 S. Ct. 773.
*556 The Fifth Circuit applied the doctrine of Garmon preemption in Kaufman v. Allied Pilots Ass'n, 274 F.3d 197 (5th Cir.2001). In Kaufman, airline passengers brought a class action in which they asserted state law claims against an airline pilots union, seeking to recover for economic damages caused when the union staged a sick-out in violation of a federal temporary restraining order. Plaintiffs originally asserted both federal and state claims, and the district court dismissed all claims with prejudice except a state claim of tortious interference with contract arising from post-TRO conduct of the Union. The only issue on appeal was whether the state law claim was preempted by federal law.
On appeal, plaintiffs averred that the federal and state legal regimes were not in conflict inasmuch as a violation of a TRO is a violation of federal law, and further argued that if the two regimes were not contradictory, there could be no preemption. Kaufman, 274 F.3d at 202. The Fifth Circuit rejected this argument, finding that it could not stand in light of the United States Supreme Court's decision in Wisconsin Department of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 106 S. Ct. 1057, 89 L. Ed. 2d 223 (1986). See Kaufman, 274 F.3d at 202. The Kaufman court noted that in Gould, the Supreme Court reaffirmed the Garmon preemption principle as "prevent[ing] states not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act." Id. (emphasis in original), citing Gould, 475 U.S. at 286, 106 S. Ct. 1057.
The Kaufman court reiterated that "Garmon preemption is required when a state cause of action poses `a serious risk of conflict with national labor policy,'" noting that
The [Supreme] Court has directed that we look not to the effect on labor-management relations of allowing a particular claim to proceed, but rather to conflict in the "broadest sense." Gould reminds us that adding state remedies or penalties to the mix would be a "conflict" necessitating preemption ... The concern of Garmon is not so much with the righting of labor wrongs, the concern of the labor relations laws themselves, as with the uniformity and singularity of remedy provided by federal law. It is a national labor policy-as this case makes vivid.
274 F.3d at 202-03 (emphasis added). See also Garner v. Teamsters, 346 U.S. 485, 498-499, 74 S. Ct. 161, 170, 98 L. Ed. 228 (1953) ("The conflict lies in remedies.... [W]hen two separate remedies are brought to bear on the same activity, a conflict is imminent.").
The Unions argue that the first exception to Garmon preemptionthat involving deeply rooted state law interestsis applicable here and relies on Butler v. Fidelity Technologies Corp., 685 So. 2d 676 (La.App. 3rd Cir.1996), cert. denied, 691 So.2d 84(La.) and cert. denied, 522 U.S. 821, 118 S. Ct. 77, 139 L. Ed. 2d 36 (1997), in support of its position. In Butler, plaintiffs brought claims pursuant to Section 23:631 for unpaid vacation time. 685 So. 2d at 678. The defendant employer asserted lack of subject matter jurisdiction, claiming preemption pursuant to the Federal Service Contract Act ("SCA"). Id. In deciding that the wage deduction claim was not preempted, the court stated that "the historic police powers of the States are not to be superceded by ... federal act unless that is the clear and manifest purpose of Congress." Id., quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, *557 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992). The Butler court further stated:
To determine whether a state statute is preempted by federal statute, the court must first determine the construction of the two statutes and then resolve the question of whether the state statute interferes with the accomplishment and execution of the full purposes and objectives of Congress.
Id. at 678, citing Tenneco, Inc. v. Sutton, 530 F. Supp. 411 (M.D.La.1981).
Noting that the SCA does not explicitly nor implicitly address the issue of nonpayment of wages, the court found that the "main thrust" of the SCA is to ensure that employees of contractors or subcontractors furnishing services for federal agencies are paid no less than the prevailing rate in the locality, including fringe benefits, and that the work will not be performed under unsafe or unsanitary conditions. Butler, 685 So.2d at 678-79. The court then found that the purpose of Section 23:631 is to "compel the employer to pay the earned wages of an employee promptly after his dismissal or resignation." Id. at 680. The Butler court specifically found that Section 23:631 does not prevent or interfere with the attainment of the federal goals set forth in the SCA. Id. Thus, the court held that the SCA does not preempt claims alleged under Section 23:631. Id. See also Gibbons v. Kansas City Southern Ry. Co., 100 So. 2d 319 (La.App. 2nd Cir.1958) (court held that RLA did not preempt the application of Section 23:631, rejecting employer's argument that plaintiffs claim under Section 23:631 was barred because plaintiff had not pursued a grievance under the grievance/arbitration machinery of the RLA).
This Court concludes that Kaufman, which was decided after Butler, is consistent with Butler. In Kaufman, the Fifth Circuit specifically indicated that certain types of state law claims can survive federal preemption, as follows:
While courts have refused to apply Garmon preemption to state tort claims that served substantial state interests and did not threaten interference with the federal regulatory scheme, [internal citations omitted], this is not our case. Slicing the claim into before and after the TRO does not change the reality that the state law is being asked to take hold of the same controversy as the federal labor laws.
Kaufman, 274 F.3d at 203 (emphasis added).
Applying the principles set forth in Butler and Kaufman to the instant case, this Court concludes that the purpose of Section 23:631 is to compel an employer to pay the earned wages of an employee promptly after his dismissal or resignation. This Court further concludes that Section 23:631 protects Louisiana's deeply rooted local interests in protecting the state's employees from forfeiting their hard-earned wages. The purpose of the RLA is "to forbid any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the right of employees to join a labor organization." 45 U.S.C. § 151a; see also Johnson v. Express One Intern., Inc., 944 F.2d 247 (5th Cir.1991). This Court finds that Section 23:631 does not prevent or interfere with the attainment of the RLA's goals, and there does not appear to be a threat of conflicting remedies under the two legal schemes. Indeed, PHI does not argue that permitting the affected pilots to be paid the wages they have already earned would frustrate the purpose and intent of the RLA.
Considering the foregoing, this Court concludes that Section 23:631 serves substantial state interests that do not threaten interference with, or remedies *558 that conflict with, the federal regulatory scheme. Considering the foregoing, this Court finds that the RLA does not preempt the Unions' claims under Section 23:631.
2. PHI fails to carry burden of establishing that Section 23:631 is not applicable as a matter of law
PHI argues that, absent either actual discharge or resignation, the affected pilots are not entitled to relief under Section 23:631. On the other hand, the Unions argue Louisiana law does not require that Section 23:631 be so narrowly construed and cites the Louisiana Supreme Court decision in Beard v. Summit Institute for Pulmonary Medicine and Rehabilitation, Inc., 707 So. 2d 1233 (La.1998), in support of its position. In Beard, plaintiff worked for a company that had a personnel policy that stated when an employee walked off the job without cause or voluntarily resigned without notice, the employee was deemed to have abandoned his or her position. The policy further stated any employee who abandoned his or her position forfeited all accrued benefits. Beard walked off her job at the beginning of a shift and never returned to work. When Beard requested her accrued vacation pay, the company refused, claiming that Beard had abandoned her position and forfeited her right to vacation pay under the company's policy. Beard sued for unpaid wages under La.Rev.Stat. §§ 23:631, 632,[11] and 634.[12]
In considering whether the company violated Louisiana law, the Louisiana Supreme Court first noted the lower courts had framed the issue only in terms of whether the company violated Section 23:634, which states that an employer cannot require an employee to sign a contract providing that the employee will forfeit wages if the employee resigns before the end of the contract period. Beard, 707 *559 So.2d at 1235. The company had argued that Beard had not signed such a contract, and therefore, Section 23:634 did not apply. However, the Louisiana Supreme Court reasoned that, "clearly if an employer may not require an employee to sign a contract providing for forfeiture of wages upon termination or resignation, an employer cannot require an employee to forfeit wages simply by enacting a policy to that effect." Id. at 1235. Therefore, the Beard court held that the provisions of Sections 23:631 and 23:632, as well as Section 23:634, were applicable in the case. Id.
The court then turned its attention to the nature of the benefit at issue and concluded that "accrued vacation pay" qualifies as "wages"and, therefore, an "amount then due"under Section 23:631. Beard, 707 So.2d at 1234, citing Boudreaux v. Hamilton Medical Group, Inc., 644 So. 2d 619, 622 (La. 1994). After considering the facts of the case, the Beard stated:
Summit argues that since its personnel policy provides that vacation pay is forfeited when an employee abandons his or her position, which Beard did, that the vacation pay is not due under the terms of employment. However, La. R.S. 23:634 strictly forbids an employer from requiring an employee to forfeit her "wages" upon resignation and provides that the employee shall be entitled to the wages actually earned up to the time of their discharge or resignation. The terms of Beard's employment were that she would be compensated for any unused vacation time. Because accrued vacation time is "wages," La. R.S. 23:634 prohibits an employment policy or a signed employment contract which requires its forfeiture.
707 So.2d at 1235-1236.
Thus, the Beard court held that the company's policy of requiring employees to forfeit wages and its failure to pay Beard her wages violated Sections 23:631, 632, and 634. In so holding, the court noted that the dissenting judge distinguished between an employee who "resigns" and one who "abandons her position," and argued that Sections 632 and 634 are only applicable to an employee who resigns. However, the majority stated "this view is contrary to the personnel policy itself which states that `abandonment of position is considered a voluntary resignation without notice.'" Id. at 1236, n. 1 (emphasis added). See also Wyatt v. Avoyelles Parish School Bd., 831 So. 2d 906 (La.2002) (holding that School Board violated Section 23:631 where it failed to pay amounts actually accrued and not lost by retired employees pursuant to School Board's "use it or lose it" accrued benefits policy).
This Court acknowledges that the Unions do not seek relief pursuant to Section 23:364. Nevertheless, with respect to Sections 23:631 and 632, this Court concludes that Beard stands for two principles: (1) depending upon the company's personnel policies, under certain circumstances, an employer cannot maintain a policy that requires an employee who abandons his or her job to forfeit wages; and (2) an employee who "abandons" or "voluntarily leaves" a job without notice depending upon the company's personnel policies, may be considered as having voluntarily resigned and thus may be entitled to relief for a violation of Section 23:631. Pursuant to Beard, if an employer's policy so provides, an employee who is not actually discharged or who has not actually resigned may be considered as having voluntarily resigned and thus entitled to possible relief under Section 23:631. Considering the foregoing, on the facts presented *560 to this Court, this Court cannot conclude that Section 23:631 does not apply to this case as a matter of law.
Notwithstanding the foregoing, this Court has not been presented with sufficient facts to conclude whether the affected pilots are actually entitled to relief under Section 23:631 and, if so, the nature of that relief. Neither party has addressed PHI's policies at the pertinent time regarding (1) the nature of the benefits that accrue to pilots employed by PHI during their employment, such that the Court could determine whether such benefits qualify as "amounts then due" under Section 23:631; and/or (2) the nature of PHI's policy regarding payment of accrued benefits to pilots who have been terminated and/or discharged; and/or (3) the personnel policies in effect at the time as they relate to "voluntary resignation" and, thus, the policies which might apply to pilots who have resigned, "abandoned their positions," or "voluntarily left without notice."[13] Thus, the Court makes no ruling with respect to these issues at this time.[14]
Furthermore, this Court concludes that there are genuine issues of material fact as to whether the amounts that PHI withheld from the affected pilots' paychecks were properly withheld. PHI argues that "the deductions stem from the pilots' failure to return Company property, such as expensive helmets and flight equipment." However, the Unions argue that deductions were made for equipment that had been returned prior to the strike and for equipment that had never been issued to the pilots. The Unions further argue that at no time prior to the deductions *561 being made did PHI prepare an inventory of equipment allegedly in the possession of the striking pilots, nor did PHI respond to certain pilots' requests for information as to how the pilots could return equipment that was in their possession to PHI at PHI's expense. Considering the foregoing, this Court concludes that there are genuine issues of material fact as to whether the amounts that were withheld from the affected pilots' paychecks were properly withheld by PHI.
Thus, this Court concludes that (1) PHI has failed to carry its burden of proving that Section 23:631 can provide no relief to the Unions as a matter of law, and (2) there are genuine issues of material fact regarding whether the amounts withheld by PHI were properly withheld. PHI's motion for summary judgment is, therefore, DENIED.[15]
NOTES
[1] Civil Action No. 06-1469.
[2] See Doc. 99, Exhibit 1 to Exhibit A, "Declaration of Paul Bohelski."
[3] Id., Exh. 2 to Exhibit A.
[4] Id., Exh. 3 to Exhibit A.
[5] Id., Exh. 6 to Exhibit A.
[6] Id., Exh. 9 to Exhibit A.
[7] Civil Action No. 06-2243.
[8] Rule 12(b) states:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P. 12(b).
[9] Rule 12(c) states:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall he treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P. 12(c).
[10] Rule 56(c) states that a motion for summary judgment "shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits." Fed.R.Civ.P. 56(c). In Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 195 (5th Cir.1988), the Fifth Circuit stated that the notice requirement of Rule 56(c) does not require that a party is "entitled to notice that the court would, as opposed to could, treat the motion as one for summary judgment." Id. at 195. Rather, the court found that "[t]he proper question ... is whether the plaintiffs had ten days' notice after the court accepted for consideration matters outside the pleadings." Id. at 196. Finding that the plaintiff in Isquith had well over ten days' notice after the district court accepted for consideration the materials outside the pleadings, the court held that Rule 56(c)'s notice requirement was satisfied. Given the contentious nature of this proceeding and out of an abundance of caution, this Court notified the parties in writing on October 9, 2007 that the instant motion would be treated as a motion for summary judgment.
[11] Section 632 states:
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.
La.Rev.Stat. § 23:632.
[12] Section 634 states:
A. No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.
B. Nothing in Subsection A of this Section or in R.S. 23:631(A) shall prohibit an employer from requiring an applicant for employment who becomes an employee or an employee, provided the employee is compensated at a rate equivalent to not less than one dollar above the existing federal minimum wage and is not a part-time or seasonal employee as defined in R.S. 23:1021, to sign a contract providing that the costs of such individual's preemployment medical examination or drug test may be withheld from his wages if he resigns within ninety working days from his first day of work, and, upon resignation, withholding such costs, unless such resignation is attributable to a substantial change made to the employment by the employer as applied in the Louisiana Employment Security Law.
La.Rev.Stat. § 23:634.
[13] Although the Unions argue that the letters sent by PHI to the affected pilots between September 20, 2006 and September 25, 2006 establish that the pilots were, in fact, terminated, neither party sets forth for this Court what PHI's benefits/accrued vacation policies were at the time the pilots went on strike, or PHI's personnel policies as to what could constitute a "voluntary resignation."
Notwithstanding the foregoing, it appears that the materials the Unions attach to their opposition brief may contain some of this information. Article 12 of the parties' expired CBA provides that "[i]n the event a pilot voluntarily leaves the Employer (including retirement or permanent disability) he will be paid for his accrued [vacation and scheduled time off] days provided he has given the Employer two weeks notice of his departure." (emphasis added). Alternatively, under the terms and conditions of employment that PHI proposed to implement on August 28, 2006, the payment of accrued vacation pay is called for any time a pilot's employment with PHI ceases. Thus, in Article 12, Section E of the Green Book, PHI's policy states: "In the event a pilot's employment ceases, he will be paid for his earned [vacation and scheduled time off] hours." (emphasis added).
Because the parties have not adequately briefed these issues, this Court cannot determine whether the affected pilots are actually entitled to relief under Section 23:631 and the nature of that relief.
[14] Because the Court does not determine at this time whether the affected pilots are actually entitled to relief under Section 23:631, the Court cannot address the issue regarding whether the affected pilots can be legally considered "discharged" pursuant to Section 23:631 while simultaneously being considered employees of PHI under the RLA. To the extent that the affected pilots could be entitled to relief under Section 23:631, this Court notes that, pursuant to the United States Supreme Court's ruling in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999), an individual's status under one statute is not necessarily dispositive of that individual's status under another statute (holding that plaintiff's pursuit, and receipt, of social security insurance benefits did not automatically estop her from pursuing an ADA claim). This issue has not been adequately briefed by the parties, and, again, this Court makes no finding as to what the precise status of the pilots was under the particular policy that PHI had in place at the time of the events in question. For these reasons, this Court makes no finding on this issue at this time.
[15] This Court makes no finding regarding whether the pilots are entitled to relief under Section 23:631, as this Court has not been provided with sufficient facts to make such a determination. All this Court decides today is that PHI fails to establish that the pilots can be entitled to no relief under Section 23:631 as a matter of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2986257/ | Dismissed and Memorandum Opinion filed August 8, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00465-CV
NORMAN CRITTENDEN, Appellant
V.
JOSEPH FLORES AND MARGARET FLORES, Appellee
On Appeal from the Co Civil Ct at Law No 3
Harris County, Texas
Trial Court Cause No. 1020693
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed February 6, 2013. A
motion for new trial was filed March 4, 2013. Appellant’s notice of appeal was
filed May 28, 2013.
When appellant has filed a timely motion for new trial, the notice of appeal
must be filed within ninety days after the date the judgment is signed. See Tex. R.
App. P. 26.1(a). Appellant’s notice of appeal was not filed timely. A motion for
extension of time is necessarily implied when an appellant, acting in good faith,
files a notice of appeal beyond the time allowed by Rule 26.1, but within the
fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of
time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (1997) (construing the
predecessor to Rule 26). Appellant’s notice of appeal was not filed within the
fifteen-day period provided by Rule 26.3
On July 9, 2013, notification was transmitted to all parties of the court’s
intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P.
42.3(a). Appellant’s response fails to demonstrate that this Court has jurisdiction
to entertain the appeal. Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Brown, Christopher, and McCally.
2 | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2987394/ | Abatement Order filed March 21, 2013
In The
Fourteenth Court of Appeals
____________
NO. 14-12-00167-CV
____________
VONDA BARNHART, Appellant
V.
SYLVIA MORALES AND LUIS PEREZ, Appellees
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2010-17655
ABATEMENT ORDER
This is an appeal of a judgment in favor of Sylvia Morales and Luis Perez.
Notice was filed on March 18, 2013 that Santa Fe Auto Insurance Company, which
insures appellant, has been placed into receivership by the State of Texas. On
February 28, 2013, the State of Texas asked the Commissioner of Insurance for the
State of Texas to place Santa Fe Auto Insurance Company into rehabilitation
pursuant to chapter 443 of the Texas Insurance Code. The State also requested a
permanent injunction and automatic stay of litigation pursuant to section 443.008
of the Texas Insurance Code.
On March 8, 2013, the 419th District Court of Travis County, Texas entered
a rehabilitation order in State of Texas v. Santa Fe Auto Insurance Company,
Cause No. D-1-GV-13-000204. The court appointed the Texas Commissioner of
Insurance as the rehabilitator for Santa Fe Auto Insurance Company. The
rehabilitation order also issued automatic stays with respect to actions against
insureds of Santa Fe Auto Insurance Company as specified in section 443.008(d)
of the Texas Insurance Code. Accordingly, we stay this appeal. This appeal is
abated for ninety days from the entry of the rehabilitation order until June 6, 2013.
For administrative purposes only, and without surrendering jurisdiction, the
appeal is abated and treated as a closed case until June 6, 2013, or further order of
this court.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1592055/ | 389 F. Supp. 836 (1975)
Jo-Ann BYKOFSKY, on her own behalf and on the behalf of her son, a minor, Shaw Bykofsky, as his guardian, Plaintiffs,
v.
The BOROUGH OF MIDDLETOWN et al., Defendants.
Civ. No. 75-74.
United States District Court, M. D. Pennsylvania.
February 18, 1975.
*837 *838 *839 Andrew F. Schneider, Harrisburg, Pa., for plaintiffs.
William M. Young, Jr., James H. Booser, McNees, Wallace & Nurick, Harrisburg, Pa., for defendants.
MEMORANDUM
SHERIDAN, Chief Justice.
Plaintiff, Jo-Ann Bykofsky, on her own behalf and on the behalf of her son, a twelve year old minor, Shaw Bykofsky, as his guardian, filed this action seeking declaratory and preliminary and permanent injunctive relief against the defendants the Borough of Middletown, Harry Judy, the Mayor of Middletown, Steven Mrakovich, the Chief of Police of Middletown and George Merkel, Middletown Borough Manager. The action is brought under the Civil Rights Act, 42 U.S.C.A. § 1983, and the Federal Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, and federal jurisdiction is properly predicated on 28 U.S.C.A. § 1343.
Specifically, plaintiffs request the court to declare unconstitutional and enjoin the enforcement of a criminal ordinance of the Borough of Middletown which imposes a curfew on children under the age of sixteen.[1] The ordinance *840 prohibits any child under sixteen years of age from being on or upon the public streets, highways, alleys, parks, or other public places of the borough after 10:30 P.M. unless (1) such child is accompanied by his parent, guardian, legal custodian, or is accompanied by a responsible person of good repute over twenty-one years of age; or (2) such child is in the performance of an errand or duty directed by his parent, guardian, or legal custodian; or (3) such child's legal, recognized employment makes it necessary for him to be in or upon the public streets or public places after the hour of 10:30 P.M., in which case such child shall carry a certified card of employment signed by the Burgess. The ordinance further provides that the parent, guardian, or legal custodian shall not allow or permit a child under sixteen years of age to go or be upon any of the public streets, highways, alleys, parks, or other public places of the borough after 10:30 P.M., except as noted above or "unless reasonable necessity can be shown therefor." With respect to the child, the ordinance provides no penalty for a curfew violation, except that a policeman upon finding a child who is violating the ordinance, shall take his name and the name and address of his parent, guardian or legal custodian, send the child home, and file a written report with the Middletown Chief of Police within 24 hours, whereupon the Police Chief shall send to the child's parents, guardians, or legal custodians a written notice of the violation of the ordinance together with notice that unless the terms of the ordinance are complied with, the penalty provided for in the ordinance will be imposed on them. The ordinance states that a parent, guardian, or legal custodian of a child who subsequently violates the ordinance, after having had notice of the child's first violation, shall upon conviction be sentenced to pay a fine of not more than ten dollars and costs of prosecution, and in default of the payment of the fine and costs shall be imprisoned for a period not exceeding ten days. This is the only criminal penalty imposed by the ordinance, a penalty which falls upon the parent, not the child. The ordinance, as previously noted, does, however, give the Middletown police the power and authority to remove and thereby keep off the public streets after 10:30 P.M. children under the age of sixteen.
A hearing was held on January 24, 1975, solely on plaintiffs' request for a preliminary injunction. Defendants at that time filed a motion to dismiss the complaint and action on the ground the plaintiffs lack standing and on the ground this court should abstain from adjudicating the constitutionality of the borough's ordinance. A trial on the merits with respect to the permanent relief requested will be held later. Thus the court presently is concerned only with the request for a preliminary injunction.
*841 Initially it should be noted that one of the defendants, the Borough of Middletown, is not a "person" within the meaning of 42 U.S.C.A. § 1983 and therefore is not subject to suit under the Civil Rights Act. City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109; Monroe v. Pape, 1961, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492; United States ex rel. Gittlemacker v. County of Philadelphia, 3 Cir. 1969, 413 F.2d 84, cert. denied, 1970, 396 U.S. 1046, 90 S. Ct. 696, 24 L. Ed. 2d 691. Therefore, no relief will be granted with respect to this defendant.
Defendants assert that since the ordinance has never been enforced against either plaintiff, they lack standing to challenge the constitutionality of the ordinance. Defendants rely on Laird v. Tatum, 1972, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154, for this proposition. Their reliance is misplaced.
The Laird case reaffirmed the "established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action . . .." Ex parte Levitt, 1937, 302 U.S. 633, 634, 58 S. Ct. 1, 82 L. Ed. 493. In Laird plaintiffs had claimed that their first amendment rights were chilled and hence violated by the mere existence of the Army's domestic data-gathering system. The alleged chilling i. e., deterrent effect arose merely from the individual plaintiff's knowledge that the Army was engaged in certain activities and their perception of the activities as inherently dangerous and inappropriate to the Army's role under our form of government, and from the concomitant fear that, armed with the fruits of these activities, the Army might in the future take some other and additional action detrimental to the individual plaintiffs. The Court held that such allegations of a subjective "chill" or deterrent effect were an inadequate substitute for a claim of specific objective harm or a threat of specific future harm. 408 U.S. at 13-14, 92 S. Ct. 2318.
Unlike in Laird, the plaintiffs in the instant case are presently subject to an ordinance which, according to the testimony of defendant Mrakovich, the Chief of Police of Middletown, is always enforced and was in fact enforced 16 times in 1973 and 11 times in 1974.[2] Thus, in contrast with the claims asserted in the Laird case, the deterrent effect complained of here is one which is grounded in a realistic fear of prosecution if the plaintiffs undertake the conduct proscribed by the ordinance. In Poe v. Ullman, 1961, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989, the Supreme Court held that the case presented no real controversy justifying the adjudication of a constitutional issue and hence the plaintiff lacked standing because, with a single exception, no one had ever been prosecuted under the challenged statute, which had been enacted in 1879. In contrast, the ordinance in the present case is not moribund and has been and continues to be enforced. Thus, the present case presents a controversy of sufficient immediacy and reality, Golden v. Zwickler, 1969, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113; O'Shea v. Littleton, 1973, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674, to present a justiciable controversy. The criminal ordinance applies to and will be invoked against the plaintiffs if the minor plaintiff, age 12, is present upon the public streets, highways, alleys, parks, or other public places of Middletown after 10:30 P.M. The plaintiffs, therefore, assert a sufficiently direct threat of personal detriment.
The plaintiffs having alleged that a criminal ordinance prohibits and deters constitutionally protected conduct, and the alleged threat of prosecution not being imaginary or speculative, since it is clear that the conduct plaintiffs wish *842 to undertake falls within the proscription of the ordinance, which is vigorously enforced, the case presents a justiciable controversy under Article III of the Constitution which the plaintiffs have standing to litigate. Steffel v. Thompson, 1974, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (Court recognized right of citizen, who had twice been warned to stop handbilling on a sidewalk of a shopping center and threatened with arrest by police if he failed to do so for violating the state's criminal trespass law, though never so arrested, had standing to challenge the constitutionality of the application to him of that statute); Doe v. Bolton, 1973, 410 U.S. 179, 188-189, 93 S. Ct. 739, 35 L. Ed. 2d 201 (Court recognized right of physicians, though not charged criminally, to challenge state's abortion statute); see Epperson v. Arkansas, 1968, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (Court recognized right of school teacher, though not yet charged criminally, to challenge the state's anti-evolution statute).
The court now turns to the question of abstention. While it is clear that the court can grant declaratory relief in the instant case if it ultimately decides after the trial on the merits that the ordinance is unconstitutional, Allee v. Medrano, 1974, 416 U.S. 802, 94 S. Ct. 2191, 40 L. Ed. 2d 566; Steffel v. Thompson, 1974, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505, this court is squarely faced with the issue not reached in Allee and Steffel as to whether a Younger showing, Younger v. Harris, 1971, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, is necessary to obtain injunctive relief against threatened prosecutions. The court holds that the interwoven precepts of federalism and equitable restraint that combine to make up the Younger doctrine of non-intrusion in the administration of state criminal justice require that the court refrain from the issuance of injunctive relief, at least under the circumstances of this case.
In Younger v. Harris, 1971, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, and its companion cases, Samuels v. Mackell, 1971, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688; Boyle v. Landry, 1971, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696; Perez v. Ledesma, 1971, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701, the Court held that a federal court may not interfere in an ongoing state criminal proceeding absent a showing of prosecutorial bad faith or harassment, or other "extraordinary circumstances." The Court based its holding in part on the notion of federalism or comity, which the Court defined as
". . . a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." 401 U.S. at 44, 91 S.Ct. at 750.
The Younger Court made clear that among the state functions of which a federal court must be particularly respectful is the administration of state criminal justice. Accord: Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324; Watson v. Buck, 1941, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416; Fenner v. Boykin, 1926, 271 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927; Railroad Commission v. Pullman, 1941, 312 U.S. 496, 500, 61 S. Ct. 643, 85 L. Ed. 971.
The Younger decision clearly implies that any sort of federal injunctive relief against the enforcement of a state criminal statute is normally an improper interference, unless the Younger test of prosecutorial bad faith or harassment, or other extraordinary circumstances, is met. The Younger Court stated the following:
". . . In Fenner v. Boykin, 271 U.S. 240 [46 S. Ct. 492, 70 L. Ed. 927] (1926), suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a *843 unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances:
`Ex parte Young, 209 U.S. 123 [28 S. Ct. 441, 52 L. Ed. 714], and following cases have established the doctrine that, when absolutely necessary for protection of constitutional rights, courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done, except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the state, and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.' Id., at 243-244, [46 S. Ct. 492 at 493].
These principles, made clear in the Fenner case, have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions. See e. g., Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 [55 S. Ct. 678, 79 L. Ed. 1322] (1935); Beal v. Missouri Pac. R. Co., 312 U.S. 45 [61 S. Ct. 418, 85 L. Ed. 577] (1941); Watson v. Buck, 313 U.S. 387 [61 S. Ct. 962, 85 L. Ed. 1416] (1941); Williams v. Miller, 317 U.S. 599 [63 S. Ct. 258, 87 L. Ed. 489] (1942); Douglas v. City of Jeannette, 319 U.S. 157 [63 S. Ct. 877, 87 L. Ed. 1324] (1943).
In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is `both great and immediate.' Fenner, supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered `irreparable' in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See e. g., Ex parte Young, supra, [209 U.S.] at 145-147, [28 S. Ct. 441, at 447-449.] Thus, in the Buck case, supra, [313 U.S.] at 400 [61 S. Ct. 962, at 966,] we stressed:
`Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. "No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid." Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, [61 S. Ct. 418, 420, 85 L. Ed. 577].'
And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:
`It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith . . ..' 319 U.S. at 164 [63 S. Ct. 877 at 881].
. . . . . .
In other words, the injury that Harris faces is solely `that incidental to every criminal proceeding brought *844 lawfully and in good faith,' Douglas, supra, and therefore under the settled doctrine we have already described he is not entitled to equitable relief `even if such statutes are unconstitutional.' Buck, supra." 401 U.S. at 45-47, 49, 91 S.Ct. at 751. (Emphasis supplied.)
In Roe v. Wade, 1972, 410 U.S. 113, 126-127, 93 S. Ct. 705, 35 L. Ed. 2d 147, the Court expressly rejected the request of a doctor, being prosecuted in a state court, for injunctive relief directed only against future prosecutions under a state's abortion statute on the ground comity barred such relief. 410 U.S. at 126-127, 93 S. Ct. 705.
The issuance of a preliminary injunction in the instant case against the enforcement of the borough ordinance would certainly constitute a major intrusion into the administration of state criminal justice and would be squarely in conflict with the spirit of comity expressed in Younger and in Roe. But see Lake Carriers' Association v. MacMullan, 1972, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257.[3] Thus, in the instant case where there are no allegations of prosecutorial bad faith or harassment, or other extraordinary circumstances,[4] the court would refuse to grant the preliminary injunction solely on the comity precept embodied in Younger.
However, the court need not rely solely on comity for its refusal to grant injunctive relief in this case. A critical aspect of Younger's limitations upon federal incursions into the state criminal justice system is the concept of equitable restraint which, interwoven with the concept of federalism, form the basis for the anti-injunctive strictures of Younger.
The precepts of equitable restraint establish that a federal court should not enjoin threatened prosecutions except when necessary to prevent irreparable harm which is great and immediate. Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324; Watson v. Buck, 1941, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416; Fenner v. Boykin, 1926, 271 *845 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927; see Younger v. Harris, supra. It is clear that the cost, anxiety, and inconvenience which the plaintiffs may suffer in defending against a single criminal prosecution brought in good faith cannot in itself constitute irreparable harm. Younger v. Harris, supra; Douglas v. City of Jeannette, supra. Moreover, the mere allegation of the threat of prosecution falls far short of establishing irreparable harm if the state is allowed to prosecute in the normal manner. Beal v. Missouri Pacific Railroad Corp., 1941, 312 U.S. 45, 61 S. Ct. 418, 85 L. Ed. 577; Musick v. Jonsson, 5 Cir. 1971, 449 F.2d 201; cf. Boyle v. Landry, 1971, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696.
The ordinance penalty to which the plaintiff parent is subject in the instant case consists only of a fine of up to ten dollars plus costs of prosecution, and upon failure to pay said fine and costs, imprisonment up to ten days. No criminal penalty is imposed on the minor, except to the extent that his removal from the public streets to his home by the police be viewed as a quasi-criminal penalty. In three cases involving threatened prosecutions under statutes which exposed plaintiffs only to fines (in no case exceeding one thousand dollars) and not imprisonment, except upon failure to pay the fine, the Supreme Court held that such circumstances did not warrant a finding of irreparable injury and thus refused to grant injunctive relief against the threatened prosecutions. Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324; Beal v. Missouri Pacific Railroad, 1941, 312 U.S. 45, 61 S. Ct. 418, 85 L. Ed. 577; Spielman Motor Sales Co. v. Dodge, 1935, 295 U.S. 89, 55 S. Ct. 678, 79 L. Ed. 1322. In Williams v. Miller, 1942, 317 U.S. 599, 63 S. Ct. 258, 87 L. Ed. 489, aff'g per curiam N.D.Cal.1943, 48 F. Supp. 277, where the penalties imposed for a violation of the contested statute ranged up to six months in jail and a fine of five hundred dollars, the Court held that "the bill does not allege facts which would warrant the granting of equitable relief." 317 U.S. at 599, 63 S.Ct. at 258. However, in Toomer v. Witsell, 1948, 334 U.S. 385, 68 S. Ct. 1156, 92 L. Ed. 1460, the Court enjoined the enforcement of a state statute regulating commercial shrimp fishing, a violation of which entailed suspension of the violator's shrimp boat license as well as a maximum of a one thousand dollar fine, imprisonment for a year, or a combination of a five hundred dollar fine and a year's imprisonment. In Toomer the Court reasoned that since defiance of the statute would subject certain of the plaintiffs to "the risk of heavy fines and long imprisonment" and "required payment of large sums of money for which South Carolina provides no means of recovery," these plaintiffs had demonstrated under the circumstances of that case irreparable injury. 334 U.S. at 392, 68 S.Ct. at 1160. These five cases, taken together, indicate that the Supreme Court has found irreparable injury to exist whenever there is no means of securing a decision on the constitutionality of legislation other than by violating the statute, when the penalities prescribed for violation of the statute include imprisonment. Since the ordinance in the present case does not impose imprisonment as a penalty, but merely provides for the payment of a fine up to ten dollars plus costs of prosecution, there is a lack of sufficient irreparable injury under the aforementioned Supreme Court cases to justify injunctive relief against a threatened prosecution under the ordinance.
There is another equally compelling reason why irreparable injury is lacking in the instant case. Irreparable harm exists only when there is no adequate remedy at law. While injunctive relief was the only form of federal relief available when many of the aforementioned cases were decided, today it is possible to obtain, pursuant to 28 U.S. C.A. §§ 2201, 2202, a declaratory judgment that a challenged state statute is unconstitutional. Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the *846 injunction and to be utilized to test the constitutionality of state criminal statutes. Steffel v. Thompson, 1974, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505. With the enactment of the Federal Declaratory Judgment Act, citizens were no longer left with the option, either to violate the ordinance and take their chances in testing the constitutionality in a criminal prosecution, or else to forego, in fear of prosecution, the exercise of claimed rights or constitutionally-protected conduct. The traditional prerequisite for the granting of injunctive relief demonstration of irreparable injury is not a prerequisite to the granting of declaratory relief. Steffel v. Thompson, 415 U.S. at 471-472, 94 S. Ct. 1209. Thus, the Federal Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, clearly provides plaintiffs in the instant case with an adequate remedy at law and hence the irreparable injury needed to justify the issuance of injunctive relief is lacking.
For all of the foregoing reasons, the equitable doctrine that a federal court should not enjoin threatened state prosecutions, except when necessary to prevent irreparable harm which is great and immediate a precept whose substance is an integral part of the doctrine of federal non-intrusion makes it apparent that an injunction would be improper in the present case.
Moreover, the injury the plaintiffs face is solely that incidental to every criminal proceeding brought lawfully and in good faith. Thus, assuming a Younger showing must be made, the plaintiffs clearly have not demonstrated the type of irreparable injury needed to justify equitable relief. Younger v. Harris, 401 U.S. at 49, 91 S. Ct. 746, 27 L. Ed. 2d 669; Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324; Watson v. Buck, 1941, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416; Fenner v. Boykin, 1926, 271 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927; Independent Tape Merchant's Association v. Creamer, M.D.Pa.1972, 346 F. Supp. 456, 459-460; cf. Lewis v. Kugler, 3 Cir. 1971, 446 F.2d 1343.[5] In addition, the Supreme Court's description of declaratory relief as a milder alternative to injunctive relief that has a "less intrusive effect on the administration of state criminal laws" than the injunction, Steffel v. Thompson, 1974, 415 U.S. at 469, 94 S.Ct. at 1221, indicates that in accordance with the dictates of the concept of *847 comity, only declaratory relief should be granted in threatened prosecution cases.
The court holds that the plaintiffs in the instant case who presented no evidence at the preliminary injunction hearing but only presented oral argument to the effect that the ordinance was vague, overbroad, had a chilling effect on plaintiffs' constitutional rights, and hence was unconstitutional on its face have failed for all the foregoing reasons to present a case for casting aside either the precept of comity or the precept of equitable restraint that combine to make up the Younger doctrine of federal non-intrusion in the administration of the state criminal justice system.
In addition, the instant case does not fit within the rationale of Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22. First, plaintiffs have not attacked the good faith of the defendants in enforcing the ordinance. Younger v. Harris, 401 U.S. at 50-54, 91 S. Ct. 746. Second, there has been no showing that action taken under this ordinance has had a chilling effect on freedom of expression, freedom of speech, or the right peaceably to protest. There is no evidence that this law interferes with the protected first amendment rights of the plaintiffs. The court does not view the ordinance on its face as one which in any way regulates expression. Dombrowski was not concerned with alleged chilling or deterrent effects on non-freedom of expression rights. Heard v. Rizzo, E.D.Pa.1968, 281 F. Supp. 720, 729-730, aff'd, 1968, 392 U.S. 646, 88 S. Ct. 2307, 20 L. Ed. 2d 1358. Thus, the allegations of the complaint depict a situation in which defense of the state's criminal prosecution will assure adequate vindication of constitutional rights. Younger v. Harris, 401 U.S. at 50-54, 91 S. Ct. 746.
For federal courts to exercise their equitable power in threatened prosecution cases as a matter of course, without requiring a Younger showing, would expose every state criminal justice system to insupportable disruption. Cf. O'Shea v. Littleton, 1974, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674. It would provide a means to subvert the orderly, effective prosecution of local crime in local courts. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by the federal courts, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of state criminal justice. This is not a case in which the lack of a pending state action means that the impact of federal injunctive relief upon a state's administration of its criminal laws will be minimal. On the contrary, it is the court's opinion that the issuance of a preliminary injunction would be highly disruptive in that the Borough of Middletown would in effect no longer have an enforceable curfew,[6] even though the constitutionality of the ordinance has yet to be adjudicated.
For all the foregoing reasons, plaintiffs' request for a preliminary injunction will be denied.
Since the court has decided that plaintiffs have standing to litigate the claims asserted and that the court should not abstain with respect to declaratory relief, defendants' motion to dismiss the complaint and the action will be denied.
Awaiting the trial on the merits, the court intimates no opinion as to the constitutionality of the ordinance.
The foregoing shall constitute the court's findings of fact and conclusions of law.
NOTES
[1] "CHAPTER VI
CURFEW
Section 1. Curfew Established for Children
under Age of Sixteen
Section 2. Duties of Parents and Guardians
Section 3. Duties of Police
Section 4. Penalty Applicable to Parents of
Children Violating Curfew Regulations
Section 1. Curfew Established for Children under Age of Sixteen. That from and after the passage and publication of this ordinance, no child under the age of sixteen years shall be upon any of the public streets, highways, alleys, parks or other public places of the Borough of Middletown, unless such child is accompanied by his or her parent, guardian, or other person having the legal care or custody of such child or is accompanied by a responsible person of good repute over twenty-one (21) years of age, or is in the performance of an errand or duty directed by his or her parent, guardian or legal custodian or whose legal, recognized employment makes it necessary for such child to be in or upon said streets, highways, alleys, parks or other public places after the hour of 10:30 P.M. in which case such child shall carry a certified card of employment signed by the Burgess. Provided: wherever, in this ordinance, any specific time of the clock is mentioned, such time shall be construed to be based upon Eastern Standard Time, Eastern Daylight Saving Time, or whatever other standard of time is generally observed by the public in the Borough, as the case may be.1 (March 8, 1943, Section 1, as amended by Ordinance 309, February 9, 1953, Sections 1 and 2)
Section 2. Duties of Parents and Guardians. No parent, guardian or other person having the legal care or custody of a child under the age of sixteen years shall allow or permit any such child to go or be in or upon any of the public streets, highways, alleys, parks or other public places of the Borough of Middletown after 10:30 P.M. except as specified in Section 1 of this ordinance,2 or unless reasonable necessity can be shown therefor. (March 8, 1943, Section 2, as amended by Ordinance 309, February 9, 1953, Section 1)
Section 3. Duties of Police. The policemen of the Borough of Middletown upon finding a child under the age of sixteen years in or upon any of the public streets, highways, alleys, parks or other public places of the Borough of Middletown in violation of any of the provisions of this ordinance after
1. Section 5 of the ordinance of March 8, 1943, provided for the repeal of all ordinances or parts thereof in conflict with this ordinance.
2. Section 1 of this chapter.
the hour of 10:30 P.M. shall take the name of such child and the name and address of the parent, guardian, or person having the legal care and custody of such child, send such child home, and file a written report of the same in the office of the Chief of Police of the Borough within twenty-four (24) hours, whereupon the Chief of Police shall send to the said parent, guardian or legal custodian of such child a written notice of the violation of this ordinance together with notice to such parent, guardian or legal custodian that unless the terms of this Ordinance are complied with the penalty thereof will be invoked against such parent, guardian or legal custodian of such child. (March 8, 1943, Section 3, as amended by Ordinance 309, February 9, 1953, Section 1)
Section 4. Penalty Applicable to Parents of Children Violating Curfew Regulations. Any parent, guardian or legal custodian of a child under the age of 16 years of age violating any of the portions of this Ordinance after notice thereof as provided in Section 33 shall upon conviction thereof before the Burgess or any Justice of the Peace of the Borough of Middletown be sentenced to pay a fine of not more than ten dollars ($10.00) and costs of prosecution, and in default of the payment of said fine and costs shall be imprisoned in the Jail of Dauphin County for a period not exceeding ten (10) days. (March 8, 1943, Section 4)
3. Section 3 of this chapter."
[2] Police Chief Mrakovich testified that Middletown had a population of 9600 but that he did not know how many children under the age of sixteen lived in the borough.
[3] This court does not believe that the dicta in Lake Carriers could have decided the issues which were so carefully discussed in Younger and its companion cases. Samuels v. Mackell, 1971, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688; Boyle v. Landry, 1971, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 676; Perez v. Ledesma, 1971, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701. Moreover, the issue of whether a Younger showing is necessary to obtain injunctive relief against threatened prosecutions was expressly reserved in the recent cases of Allee v. Medrano, 1974, 416 U.S. 802, 94 S. Ct. 2191, 40 L. Ed. 2d 566 and Steffel v. Thompson, 1974, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505. This court finds the careful reasoning of Younger on the issue, although also dicta, more convincing than the conclusory dicta of Lake Carriers. See Independent Tape Merchant's Association v. Creamer, M.D.Pa.1972, 346 F. Supp. 456.
[4] In Younger the Supreme Court stated: "There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment." 401 U.S. at 53, 91 S.Ct. at 755. The Court then pointed to an illustration of what such circumstances might be, quoting from Watson v. Buck: "It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." 401 U.S. at 53-54, 91 S.Ct. at 755. No other definition or illustration of the "extraordinary circumstances" exception has ever been undertaken by the Supreme Court. But in the recent case of Allee v. Medrano, 1974, 416 U.S. 802, 94 S. Ct. 2191, 40 L. Ed. 2d 566, Chief Justice Burger, joined by two other members of the Court, appeared to interpret Younger in a manner that leaves no room for any extraordinary circumstances exception: "To meet the Younger test the federal plaintiff must show manifest bad faith and injury that is great, immediate, and irreparable, constituting harassment of the plaintiff in the exercise of his constitutional rights, and resulting in a deprivation of meaningful access to the state courts." 416 U.S. at 836, 94 S.Ct. at 2210. (Emphasis supplied.) Thus, uncertainty exists concerning what circumstances, if any, will warrant federal intrusion under the "extraordinary circumstances" exception. In the instant case it is clear that no extraordinary circumstances exist.
[5] In Lewis v. Kugler, 3 Cir. 1971, 446 F.2d 1343, the Court of Appeals for the Third Circuit held that the Younger absention doctrine had no application with respect to certain claims of unconstitutional police conduct by plaintiffs who did not have criminal prosecutions pending against them at the time the federal proceeding began. The Kugler case is distinguishable from the instant case in that the plaintiffs in Kugler did not challenge the constitutionality nor seek to enjoin the enforcement of a state criminal statute. Rather plaintiffs merely sought to enjoin certain alleged unconstitutional police practices to wit, the alleged practice by the New Jersey State Police of unreasonable searches of vehicles driven by long-haired travellers and searches of such travellers themselves without probable cause, in violation of plaintiffs' constitutional rights. Injunctive relief prohibiting enforcement of a state criminal ordinance is a much more serious intrusion into the state criminal justice system than an injunction directed at specific unconstitutional police conduct, which may never lead to a criminal prosecution. With respect to the plaintiffs who did have prosecutions pending against them, prosecutions in which the alleged unconstitutional searches and seizures formed the basis of the state criminal charges, the Kugler court did abstain on the basis of Younger. Accord: Roe v. Wade, 1973, 410 U.S. 113, 126-127, 93 S. Ct. 705, 35 L. Ed. 2d 147; Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S. Ct. 118, 96 L. Ed. 138. To have abstained with respect to the plaintiffs against whom no criminal charges had been lodged would have left these plaintiffs totally without a forum in which to litigate their federal constitutional claims of police harassment. Moreover, Younger is concerned with federal interference with the enforcement of state criminal statutes and the resulting interference with state prosecutions, actual or threatened, not with police conduct. See Heard v. Rizzo, E.D.Pa.1968, 281 F. Supp. 720, aff'd, 1968, 392 U.S. 646, 88 S. Ct. 2307, 20 L. Ed. 2d 1358. Thus, Kugler, which did not pose a challenge to the constitutionality of a state statute or ordinance, is inapposite with respect to the abstention issue before the court in the instant case.
[6] Harry Judy, the Mayor of Middletown, testified that the ordinance furthered the following borough interests: (1) the protection of young children; (2) the enforcement of parental control of and responibility for their children; (3) the control of nocturnal juvenile activities and prevention of nocturnal juvenile crime. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1630513/ | 723 F. Supp. 492 (1989)
WESTFIELD INSURANCE COMPANY, Plaintiff,
v.
TWT, INC., et al., Defendants.
No. C-88-2389-CAL.
United States District Court, N.D. California.
October 12, 1989.
*493 Lee S. Pantell, Thomas D. Reese and Lakin Spears, Palo Alto, Cal., for plaintiff.
Anne Treseder, Hallisey and Johnson, San Francisco, Cal., for Robert W. Kenney.
C. Judith Johnson, Camerlingo & Johnson, Burlingame, Cal., for TWT, Inc., Trade Wind Traders, Inc., TW Trading Intern., TWT Financial Group, Patricia K. Henry.
Neil Bloomfield and Renee Chernus, Law Offices of Neil Bloomfield, Fairfax, Cal., for Charlotte E. Noda.
John A. Koeppel, Joshua Goodman, Ropers, Majeski, Kohn, Wagner & Kane, San Francisco, Cal., for Joseph J. Garbarino, Mike F. Buschati, Herbert Goldberg, William Kent III, Erna F. Longfellow, Frank Mammini, Terry Mirri, Sarkis S. Sarkisian.
David F. Gross, Mark C. Dosker and Donald P. Margolis, Graham & James, San Francisco, Cal., for Federal Sav. and Loan Ins. Corp. ("FSLIC").
AMENDED ORDER
LEGGE, District Judge.
Plaintiff Westfield Insurance Company filed this action seeking a declaration of its obligations under policies of insurance issued by it. Defendants TWT, Inc., Tradewind Traders, Inc., T.W. Trading International, TWT Financial Group (hereinafter collectively called "TWT") and Patricia Kay Henry, an officer of TWT, seek a defense and indemnity from plaintiff for certain suits filed against them, arising from the failure and receivership of Columbus Savings and Loan Association. Defendants have been sued by Federal Savings & Loan Insurance Corporation ("FSLIC") and others because of defendants' financial dealings with Columbus. The question is whether defendants' potential liability in those suits is covered by plaintiff's policies, either imposing upon plaintiff the obligation of indemnifying defendants for their liability, or at least obliging plaintiff to defend defendants in those suits.
Defendants have moved for summary judgment, seeking a judgment of coverage under plaintiff's policies. The court has reviewed the moving and opposing papers, the policies of insurance, the arguments of counsel, the record of the cases, and the applicable authorities. The court is of the opinion that the following matters can be decided as a matter of contract interpretation and law, with no genuine issues of material fact.
I.
Plaintiff issued a comprehensive general liability insurance policy (the CGL policy) and an excess policy to TWT, Inc. There is no dispute that the TWT defendants are "named insureds" under the policies. There is no dispute that Patricia Kay Henry, as an officer of TWT, is also an "insured" under the policy definitions; so all defendants will be called "defendants" or "TWT."
The insuring agreements of the CGL policy provide coverage for liability for bodily injury and property damage. An expanded coverage endorsement to that policy also extends coverage for so-called personal injury and advertising injury liability. The relevant provisions of the CGL policy, under which defendants seek coverage, are the following:
Bodily Injury Coverage
The company [plaintiff] will pay on behalf of the insured all sums which the *494 insured shall become legally obligated to pay as damages because of ... bodily injury.... to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury....
`Bodily Injury' means bodily injury, sickness or disease sustained by any person which occurs during the policy period ... `Occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
Advertising and Personal Injury Endorsement
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies, sustained by any person or organization and arising out of the conduct of the named insured's business, within the policy territory, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury....
`Advertising Injury' means injury arising out of an offense committed during the policy period occurring in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan. This insurance does not apply ... to personal injury or advertising injury arising out of libel or slander or the publication or utterance of defamatory or disparaging material concerning any person or organization or goods, products or services, or in violation of an individual's right to privacy, made by or at the direction of the insured with knowledge of the falsity thereof.
The relevant provisions of the excess policy are as follows:
The company will indemnify the insured for ultimate net loss in excess of applicable underlying limit which the insured shall become legally obligated to pay as damages because of
(A) Personal Injury;
(B) Property Damage; or
(C) Advertising Offense
to which policy applies, caused by an occurrence anywhere in the world, ... `Damages' includes damages for death and for care and loss of services resulting from personal injury and damages for loss of use of property resulting from property damage.
`Advertising Offense' means injury occurring in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan (other than a patent);
`Personal Injury' means bodily injury, shock, mental anguish, sickness or disease; injury arising out of false arrest, ... humiliation; and, except with respect to injury occurring in the course of the named insured's advertising activities, injury arising out of the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual's right to privacy;
`Occurrence' means an accident, including continuous or repeated exposure to conditions which results in personal injury, property damage, or advertising offense neither expected nor intended from the standpoint of the insured;
II.
Defendants assert that the policies cover the actions against them under the bodily injury and the advertising injury coverages.
A.
Westfield's initial argument is that the acts alleged against defendants are not "occurrences" within the meaning of the policies, but are rather "intentional" acts as a matter of law. Therefore, Westfield *495 believes, there is no need to inquire further into the other specific coverage provisions of the policies. Westfield relies on the authority of wrongful discharge cases, which hold that firing an employee is an intentional act, not covered by an "occurrence"-type policy. St. Paul Fire & Marine Ins. Co. v. Superior Court, 161 Cal. App. 3d 1199, 208 Cal. Rptr. 5 (1984); Giddings v. Industrial Indemnity Co., 112 Cal. App. 3d 213, 169 Cal. Rptr. 278 (1980); Hartford Fire Ins. Co. v. Karavan Enterprises, 659 F. Supp. 1075 (N.D.Cal.1986). This court believes that those cases are distinguishable and do not control the coverage of the acts alleged against defendants in this case.
Some of the claims against defendants arise from acts that are not necessarily intentional. Some allegations against defendants involve negligence, not intentional wrongdoing. And, as Westfield is aware, TWT defended FSLIC's recent summary judgment motion on the ground that the TWT officers were at most guilty of negligent supervision, not fraud. Negligent supervision could constitute an "occurrence" under the policy language. Therefore, this court believes that defendants have made a sufficient showing to bring the claims against them within the "occurrence" language. Royal Globe Ins. Co. v. Whitaker, 181 Cal. App. 3d 532, 226 Cal. Rptr. 435 (1986) (insured's burden to show that the claim falls within the basic coverage).
Westfield also relies on this court's previous grant of summary judgment against TWT officers based on the D'Oench doctrine. D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942). This court determined that for purposes of the D'Oench doctrine, the TWT officers were, in essence, strictly liable on the personal guarantees they had signed. That is not the potential liability asserted against defendants here for their alleged involvement with Columbus. In the guarantee motions, this court did not determine the nature of defendant's involvement in the other affairs of Columbus, nor did it need to do so.
Assuming that some of the claims against TWT are "occurrences" within the policy language, the parties then dispute whether any of the claims fall within the other insuring agreements.
B.
TWT argues that the bodily injury coverage applies to the cross-claim by Charlotte Noda against TWT for damages allegedly caused by TWT's negligence. TWT submits the declaration of its counsel, C. Judith Johnson, who states that she notified Westfield on March 22, 1988 that the anticipated cross-claim would include damages for emotional distress. Later, at a status conference in this group of cases, Ms. Johnson asked Ms. Noda's attorney whether Noda sought damages for emotional distress, and Johnson was told that Noda did seek such damages. Johnson so informed Westfield. Finally, Johnson propounded interrogatories and the answers reflected claims for emotional distress. These interrogatories were served on Westfield March 30, 1989.
Westfield does not dispute that emotional distress is within the definition of "bodily injury" under the policies; in fact, the excess policy language explicitly includes it. Under Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 419 P.2d 168, 54 Cal. Rptr. 104 (1966), the duty to defend a lawsuit is broader than the duty to indemnify. An insurer must defend a suit whenever it ascertains facts within or without the complaint that give rise to the potential of liability under the policy. This court therefore determines that Westfield does have an obligation to defend the Noda cross-complaint.
That duty to defend arose when Ms. Johnson informed Westfield that she had spoken with Noda's counsel, who had told her that he was asserting a claim for emotional distress. The cross-complaint itself was not specific; it merely stated a claim for negligence against all defendants. The underlying complaint by the FSLIC did not state a claim for emotional distress, nor could it. Therefore, it is only by knowing more facts about Noda's role and claims that Westfield would be apprised of the *496 potential for a bodily injury claim. Once Westfield was told that Noda's attorney had represented that he asserted an emotional distress claim, Westfield had knowledge of facts giving rise to potential coverage. Under Gray v. Zurich, it is not necessary that those facts appear in a complaint.
Plaintiff argues that because Noda's cross-complaint was later dismissed without prejudice, by agreement of the parties, it cannot give rise to a duty to defend. However, the evaluation of the duty to defend must occur at the outset of the claim. Gray v. Zurich. And the cross-complaint may be reasserted at any time. Therefore, this court does not believe that the dismissal of the cross-complaint eliminates the duty to defend.
C.
TWT also argues that certain claims asserted by FSLIC in the underlying complaint are covered by plaintiff's policies. TWT asserts that interrogatory answers by FSLIC give rise to a potential slander of title claim which is covered by the "advertising injury" provisions of the policies.
TWT propounded the following interrogatory to FSLIC:
"Do you contend that TWT and/or Henry negligently misrepresented that TWT held title to 1.8 million dollars loaned by Columbus to TWT, when in fact Eric Noda held title to 1.3 million dollars of the 1.8 million dollars?" It also asked whether FSLIC contended that Columbus suffered loss of reputation or good will because of the misrepresentation. FSLIC answered that TWT executed several documents indicating that it was the recipient of the money. FSLIC believes that as a result, Columbus loaned money to TWT. TWT defaulted, and the default resulted in negative publicity for Columbus, forcing Columbus to raise its interest rates to attract deposits, to work harder to attract qualified personnel, and to increase its cash reserves.
However, the argument that this is a slander of title, for purposes of "advertising injury" coverage, is inaccurate. FSLIC does not claim that TWT falsely slandered its title to anything. And even if a "title" were somehow at issue here, it was not Columbus' interest in any property that was slandered by the alleged misrepresentations. The tort of slander of title is meant to protect against frivolous title disputes that interfere with the salability of property. On the record as it stands, FSLIC has not and could not state a claim against defendants for slander of title. Defendants are not entitled to coverage or a defense on that theory.
D.
TWT also seeks coverage of the claims against it by FSLIC based on the "advertising injury" coverage for unfair competition. TWT argues that because California courts have read the state's unfair competition statute broadly enough to redress any fraudulent business practice or consumer fraud, that language should be read as broadly in insurance policies. This court disagrees. Courts have retained the more restrictive common law meaning of unfair competition in the interpretation of insurance policies, even when the term in a state statute has been interpreted more expansively. Ruder & Finn Inc. v. Seaboard Surety Co., 52 N.Y.2d 663, 422 N.E.2d 518, 439 N.Y.S.2d 858 (N.Y.1981); Pine Top Insurance v. Public Utility District, 676 F. Supp. 212 (E.D.Wash.1987); Seaboard v. Ralph Williams' Northwest Chrysler Plymouth, Inc., 81 Wash.2d 740, 504 P.2d 1139 (1973). Here TWT was not in competition with FSLIC or Columbus, and FSLIC has not and could not state a claim for the tort of unfair competition on the present record. Therefore, there is no duty to defend based on the "unfair competition" policy coverage.
III.
Defendants assert that because Westfield has a duty to defend the Noda cross-complaint, it also has a duty to defend the entire action, including the underlying complaint against them by FSLIC. Defendants cite Gray v. Zurich Ins. Co.; Garcia v. Truck Ins. Exchange, 36 Cal. 3d 426, 436, 682 P.2d 1100, 204 Cal. Rptr. 435 *497 (1984); and Tibbs v. Great American Ins. Co., 755 F.2d 1370, 1374 (9th Cir.1985). However, none of those cases address the issue here, where there is a potentially covered claim in a cross-complaint, but not in the main action. All of those cases state the general propositions that the duty to defend is broader than the duty to indemnify, and that the duty extends to any actions where the facts in the complaint, or the facts otherwise known, show a potential for coverage. Here, because the underlying complaint by FSLIC does not give rise to any potentially covered claims, Westfield is responsible for defending only the Noda cross-complaint.
This court concludes that Westfield has a duty to defend TWT and Henry as to the Noda cross-complaint only, from the time it was told by Johnson that Noda's attorney intended to assert a claim for emotional distress. Westfield has no duty to cover or defend defendants for the claims asserted against them by FSLIC.
TWT's motion for summary judgment is therefore granted in part and denied in part.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/88022/ | 74 U.S. 392 (____)
7 Wall. 392
RAILROAD COMPANY
v.
HOWARD.
Supreme Court of United States.
*397 Messrs. Emmot, Cook, and Drury, for the appellants.
Messrs. Grant and Rogers, contra.
*406 *407 Mr. Justice CLIFFORD delivered the opinion of the court.
Subscriptions were made to the Mississippi and Missouri Railroad Company by certain municipal corporations through which the railroad was located, and the proper authorities of those municipalities issued their bonds in payment of such subscriptions to the stock of the railroad company.
Coupons were attached to the bonds providing for the payment of interest semi-annually, and the railroad company, as the immediate transferees of the bonds, guaranteed that the principal and interest of the bonds should be paid as stipulated by an instrument in writing on the back of each bond, duly executed by the proper officers of the railroad company.
Obvious purpose of that guaranty was to augment the credit of the bonds in the market, and to facilitate their sale to capitalists to raise money to construct their railroad and put it in operation. Complainants became the lawful holders for value of a large number of these bonds, and the guarantors as well as the obligors neglecting and refusing to pay the coupons as the same fell due, they brought separate suits against those parties, and recovered judgments against them respectively, as alleged in the bill of complaint.
Executions were issued as well on the judgment against the obligors of the bonds, as on the judgment against the guarantors of the same, and the return of the officer in each case was that he found no property. Prior to the date of those judgments, the railroad company had executed several mortgages of their railroad to secure the payment of their bonds, issued at different times, to the amount of seven millions of dollars, and the company had become insolvent. They had also become liable as guarantors of the municipal bonds already described, and others of like kind received and used for the same purpose, to the amount of three hundred thousand dollars, the payment of which was repudiated by the respective municipal corporations, by whose officers the bonds were issued.
Unable to pay the debts of the company, the stockholders *408 of the same determined to sell their railroad. Arrangements were accordingly made between the stockholders and the holders of the mortgage bonds to get up the stock of the company through certain agents or trustees, and to execute and deliver to the several holders of those bonds and to the owners of the stock of the company, certificates of the amounts that they respectively would be entitled to receive under a distribution of the consideration of the proposed sale. Amount of the consideration, as assumed in the arrangement, was five millions five hundred thousand dollars, and the terms of the arrangement were that the consideration should be distributed among the parties interested therein, according to a prescribed scale as set forth in the bill of complaint.
By that scale of distribution sixteen per cent. of the amount, to wit, five hundred and fifty-two thousand four hundred dollars were to be paid to the owners of the capital stock, but none of the stipulations in the arrangement made any provision for the payment of the bonds or coupons belonging to the complainants. Authorized to carry the arrangement into effect, the proper agents of the company offered to sell the entire property of the railroad to the Chicago and Rock Island Railroad, and the latter company, on the first day of November, 1865, accepted the proposition, and the parties entered into written stipulations upon the subject.
Those proposing to sell agreed that they would, with all possible despatch, cause the mortgages on the railroad to be foreclosed, and that the entire property of the company, real and personal, should be sold and conveyed to trustees, and that the same should be transferred to such incorporated company in that State as the other contracting party should designate as the purchaser of the property, if such designation was made within the time therein prescribed.
By the terms of the agreement the Chicago and Rock Island Railroad Company agreed to cause to be incorporated in that State a company which should make the purchase, as proposed, for the sum of five million five hundred thousand dollars, and complete the railroad to the place therein mentioned, *409 and the other party stipulated that the purchaser at the foreclosure sale should convey the railroad to the new company for that consideration. Pursuant to that agreement the mortgages were foreclosed, and the new company, to wit, the Chicago, Rock Island, and Pacific Railroad Company, was created under the general laws of the State, and the entire property of the railroad was sold at the foreclosure sale, and the purchasers conveyed the same to the new company as stipulated in the agreement. All the stockholders in the old company became thereby entitled, as against all those who joined with them in negotiating the sale, to a pro rata share in the sixteen per cent. of the consideration reserved to their use under the scale of distribution prescribed in that arrangement.
Statement of the bill of complaint is, that the new company is ready to pay that amount to the stockholders of the old company, and the complainants contend that the facts herein recited show that they are entitled to have their whole debt paid before any portion of the fund derived from that sale shall go to the stockholders of the old company, which is insolvent, and will become extinct when that arrangement is fully carried into effect.
Views of the complainants were sustained in the court below, where it was ordered, adjudged, and decreed, that the complainants and the other parties who were duly admitted as such, and joined in the prosecution of the suit, were entitled, as creditors of the railroad company, to so much of the purchase-money as was agreed between the parties, and intended to be reserved and distributed among the stockholders of the company, and from that decree, as more fully set forth in the record, the respondents appealed.
I. Equity regards the property of a corporation as held in trust for the payment of the debts of the corporation, and recognizes the right of creditors to pursue it into whosesoever possession it may be transferred, unless it has passed into the hands of a bonâ fide purchaser; and the rule is well settled that stockholders are not entitled to any share of the *410 capital stock nor to any dividend of the profits until all the debts of the corporation are paid.
Assets derived from the sale of the capital stock of the corporation, or of its property, become, as respects creditors, the substitutes for the things sold, and as such they are subject to the same liabilities and restrictions as the things sold were before the sale, and while they remained in the possession of the corporation. Even the sale of the entire capital stock of the company and the division of the proceeds of the sale among the stockholders will not defeat the trust nor impair the remedy of the creditors, if any debts remain unpaid, as the creditors in that event may pursue the consideration of the sale in the hands of the respective stockholders, and compel each one, to the extent of the fund, to contribute pro rata towards the payment of their debts out of the moneys so received and in their hands.
Valid contracts made by a corporation survive even its dissolution by voluntary surrender or sale of its corporate franchises, and the creditors of the corporation, notwithstanding such surrender or sale, may still enforce their claims against the property of the corporation as if no such surrender or sale had taken place. Moneys derived from the sale and transfer of the franchises and capital stock of an incorporated company are assets of the corporation, and as such constitute a fund for the payment of its debts, and if held by the corporation itself, and so invested as to be subject to legal process, the fund may be levied on by such process; but if the fund has been distributed among the stockholders, or passed into the hands of other than bonâ fide creditors or purchasers, leaving any debts of the corporation unpaid, the established rule in equity is, that such holders take the fund charged with the trust in favor of creditors, which a court of equity will enforce, and compel the application of the same to the satisfaction of their debts.[*]
*411 Regarded as the trustee of the corporate fund, the corporation is bound to administer the same in good faith for the benefit of creditors and stockholders, and all others interested in its pecuniary affairs, and any one receiving any portion of the fund by voluntary transfer, or without consideration, may be compelled to account to those for whose use the fund is held. Creditors are preferred to stockholders on account of the peculiar trust in their favor, and because the latter, as constituent members of the corporate body, are regarded as sustaining, in that aspect, the same relation to the former as that sustained by the corporation.
None of these principles are directly controverted by the appellants; but they deny that the sixteen per cent. agreed to be paid to the stockholders belonged to the corporation.
Claim of the complainants to the fund in controversy rests mainly upon two propositions, which present mixed questions of law and fact:
1. That they are creditors of the railroad company, as evidenced by the judgments set forth in the record.
2. That the fund in question was assets of the railroad company.
Authority of the municipal corporations to issue the bonds purchased by the complainants is not denied; but the appellants contend that the railroad company had no power to guarantee their payment, and they also deny that the railroad company had any title or interest in the fund in controversy. On the contrary, they insist that it was a concession made by the holders of the mortgage bonds to the stockholders as a "gratuitous favor" to save them from a total loss, and to induce them not to interpose any obstacles in the way of a speedy foreclosure of the several mortgages.
Express allegation of the bill of complaint is, that the bonds issued by the municipal corporations were received by the railroad company in payment for subscriptions to the stock of the company, and that the corporation, as the holders of the same, guaranteed their payment and sold *412 them in the market, and the stipulation of the parties is, that all the allegations of the bill of complaint not denied in the answer are to be considered as admitted. Apart, therefore, from the effect of the judgments, those allegations must be taken to be true, as they were not denied in, the answer.
Power to make contracts, and acquire and transfer property, is conferred upon such corporations, by the laws of the State, to the same extent as that enjoyed by individuals; and the record shows, to the entire satisfaction of the court, that the instrument of guaranty was executed and the bonds sold in the market as the means of raising money to construct the railroad and put it in operation.
Counties and cities may issue bonds under the laws of that State in aid of such improvements; and railway companies are expressly authorized to receive such securities in payment of subscriptions to their capital stock, and to sell the bonds in the market for such discount as they think proper.
Abundant proof exists in this record, that railway companies may issue their own bonds to raise money to carry into effect the purposes for which they were created; and it is difficult to see why they may not guarantee the payment of such bonds as they have lawfully received from cities and counties, and put them upon the market instead of their own, as the means of accomplishing the same end. Undoubtedly they may receive such bonds under the laws of the State, and if they may receive them, they may transfer them to others; and if they may transfer them to purchasers, they may, if they deem it expedient, guarantee their payment as the means of augmenting their credit in the market, and saving the corporation from the necessity of issuing their own bonds to accomplish the same purpose.
Considered, therefore, as an open question, the court is of the opinion that the objection is without merit. Private corporations may borrow money, or become parties to negotiable paper in the transaction of their legitimate business, unless expressly prohibited; and until the contrary is shown, *413 the legal presumption is that their acts in that behalf were done in the regular course of their authorized business.[*]
Railroad companies are responsible in their corporate capacity for acts done by their agents, either ex contractu or ex delicto, in the course of their business and within the scope of the agent's authority.[]
Corporations as much as individuals are bound to good faith and fair dealing, and the rule is well settled that they cannot, by their acts, representations, or silence, involve others in onerous engagements and then turn round and disavow their acts and defeat the just expectations which their own conduct has superinduced.[]
Tested by any view of the evidence, it is quite clear that the corporation possessed the power to execute the instruments of guaranty appearing on the back of the bonds, and the necessary consequence of that conclusion is that on the default of payment they became liable to the holders of the same to the same extent as the obligors.
Present suit is not one against stockholders to compel them to pay a corporate debt out of their own estate, but it is a suit against the corporation and certain other parties holding or claiming assets which belong to the principal respondent, to prevent that fund from being distributed among the stockholders of the corporation before the debts due to the complainants are paid. Viewed in that light, it is obvious that the stockholders are precluded by the judgment from denying the validity of the instruments of guaranty, and that the judgments are conclusive as to the indebtedness of the corporation.
II. Second defence is that the fund in question did not belong to the corporation, as contended by the appellees. *414 Extended discussion of that proposition is not necessary, as the evidence in the record affords the means of demonstration that it is not correct. Mortgage bondholders had a lien upon the property of the corporation embraced in their mortgages, and the corporation having neglected and refused to pay the bonds, they had a right to institute proceedings to foreclose the mortgages, but the equity of redemption remained in the corporation. Subject to their lien, the property of the railroad was in the mortgagors, and whatever interest remained after the lien of the mortgages was discharged belonged to the corporation, and as the property of the corporation when the bonds were discharged, it became a fund in trust for the benefit of their creditors. Holders of bonds secured by mortgage as in this case, may exact the whole amount of the bonds, principal and interest, or they may, if they see fit, accept a percentage as a compromise in full discharge of their respective claims, but whenever their lien is legally discharged, the property embraced in the mortgage, or whatever remains of it, belongs to the corporation.
Conceded fact is that the property and franchises of the railroad were sold for the consideration specified in the record, and that the mortgage bondholders discharged their lien for eighty-four per cent. of that amount, and that the residue of the purchase-money remained in the hands of the purchaser discharged of the lien created by the mortgages, and the complainants contend that it was clear of all liens, except that of the creditors. Such a corporation cannot be said to own anything separate from the stockholders, unless it be the tangible property of the company and the franchises conferred by the charter, and it is conceded by both parties that the fund in question was derived from a voluntary sale and transfer of those identical interests. They were heavily incumbered by mortgages, and our attention is called to the fact that the provisional arrangement was negotiated by the stockholders and bondholders; but the decisive answer to that suggestion is, that the two railroad companies were parties to the subsequent contract of sale, and that they both agreed to all the terms of sale and purchase, and to the mode *415 of transferring and of perfecting the title. Prompt payment was secured by the bondholders, and it is highly probable that they received under that arrangement a larger portion of their claims than they could have obtained in any other way.
Another suggestion of the appellants is that the contract of sale was unauthorized, but the suggestion is entitled to no weight, as the contract was ultimately carried into effect by the consent or subsequent ratification of all parties interested in the subject-matter of the sale.
Next objection is that there is such a want of parties that a court of equity cannot grant the relief as prayed. Principal suggestion in support of this proposition is that the stockholders should have been made parties, but the court is of a different opinion, because their interest is fully represented by the parties before the court. Respondents in the suit are the two railroad companies and the committee or trustees chosen and appointed by the stockholders and bondholders through whom the provisional arrangement was perfected and the contract of sale was carried into effect. Neither the stockholders nor bondholders were necessary parties under the circumstances of this case.[*]
Remaining objection is, that the certificates issued to the stockholders in lieu of their stock, were negotiable, and that they may be in the hands of innocent holders; but the objection is entitled to no weight, because it is based upon an erroneous theory.
Written contracts are not necessarily negotiable simply because by their terms they enure to the benefit of the bearer. Doubtless the certificates were assignable, and they would have been so if the word bearer had been omitted, but they were not negotiable instruments in the sense supposed by the appellants. Holders might transfer them, but the assignees *416 took them subject to every equity in the hands of the original owner.[*]
Particular mention is not made of the defence that the complainants have an adequate remedy at law, as it is utterly destitute of merit.
DECREE AFFIRMED.
NOTES
[*] Story's Equity Jurisprudence (9th ed.), § 1252; Mumma v. Potomac Company, 8 Peters, 286; Wood v. Dummer, 3 Mason, 308; Vose v. Grant, 15 Massachusetts, 522; Spear v. Grant, 16 Massachusetts, 14; Curran v. Arkansas, 15 Howard, 307.
[*] Canal Company v. Vallette, 21 Howard, 424; Partridge v. Badger, 25 Barbour, 146; Barry v. Mer. Ex. Co., 1 Sandford's Ch. 280; Angell and Ames on Corporations, § 257; Story on Bills, § 79; Farnum v. Blackstone Canal, 1 Sumner, 46.
[] Railroad Co. v. Quigley, 21 Howard, 202.
[] Bargate v. Shortridge, 5 House of Lords' Cases, 297; Zabriskie v. Railroad, 23 Howard, 397; Bissell v. Jeffersonville, 24 Id. 300.
[*] Bagshaw v. Railway Co., 7 Hare, 131; Holyoke Bank v. Manufacturing Co., 9 Cushing, 576; Hall v. Railroad, 21 Law Reporter, 138; 1 Redfield on Railways, 578; Boon v. Chiles, 8 Peters, 532; Story v. Livingston, 13 Id. 359.
[*] Mechanics' Bank v. Railroad Co., 13 New York, 599. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/729549/ | 99 F.3d 1156
Smithv.Hertz Equipment Rental***
NO. 96-8439
United States Court of Appeals,
Eleventh Circuit.
Sept 30, 1996
Appeal From: S.D.Ga., No. 94-00104-CV-1
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case | 01-03-2023 | 04-17-2012 |
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