text
stringlengths 1
2.25M
|
|---|
425 F.2d 928
UNITED STATES of America, Plaintiff-Appellee,v.William KATZ and Jeno Weiss, Defendants-Appellants.UNITED STATES of America, Plaintiff-Appellee,v.William KATZ, Defendant-Appellant.
Nos. 474-476, Dockets 33694, 33907, 33973.
United States Court of Appeals, Second Circuit.
Argued Jan. 20, 1970.Decided April 2, 1970.
Herbert Monte Levy, New York City (Michael Miller, New York City, of counsel), for defendant-appellant William Katz.
Peter F. Rient, Asst. U.S. Atty. (Robert M. Morgenthau, U.S. Atty. for the Southern District of New York, and Michael W. Leisure, Asst. U.S. Atty., of counsel), for appellee United States in #33973.
William A. Ackerman, Jackson Heights, N.Y. (Lawrence Peirez, Woodside, N.Y., of counsel), for defendant-appellant Jeno Weiss.
Peter L. Zimroth, Asst. U.S. Atty. (Robert M. Morgenthau, U.S. Atty., for the Southern District of New York, and Jay Gold, Asst. U.S. Atty., of counsel), for appellee United States in #33694 and #33907.
Before MOORE, FRIENDLY and HAYS, Circuit Judges.
FRIENDLY, Circuit Judge:
1
These appeals are from convictions in the District Court for the Southern Distrct of New York, after trial before Judge Motley and a jury, for making false statements with respect to FHA-insured improvement loans, 18 U.S.C. 1010. Katz, the owner of Superior Heat & Power Co., a plumbing contractor, was a defendant in both cases along with the respective owners. In No. 33973 he and one Lipschitz were indicted on two counts, for making a false statement in an application for an FHA-insured loan to Manufacturers Trust Company and another in a completion certificate submitted to the bank relating to a building at 172 Forsyth St. in New York City. The loan application stated that the proceeds would be used to install new plumbing, and the completion certificate stated that the work had been done. A witness who purchased the building from Lipschitz some two months later testified that the pipes were old and of galvanized steel as opposed to the brass for which the loan had been granted and that there were no showers. The new owner arranged with Katz and the same bank to obtain another FHA-insured loan for the same work covered by the old one. The jury convicted Katz on both counts but disagreed as to Lipschitz who claimed, among other things, that he could not read English. Katz did not testify.
2
The subjects of the indictment in Nos. 33694 and 33907 were Katz and Jeno Weiss, the owner of property at 1681 Madison Ave. They joined in an application to the Manufacturers Trust Company for an FHA-insured loan, to cover 'Brass Plg, storm windows, No. 1 oil burner, Portman Boiler, low down tanks.' Later they signed a completion certificate and the bank issued a $5,000 check to Katz. He drew a $3,000 check to Weiss who endorsed it to a lawyer, who then issued his own $3,000 check to a creditor of Weiss. A tenant testified that none of the improvements had been made, and a purchaser of the building confirmed this. Katz claimed that he had been persuaded to allow Weiss to do the work, had been told by Weiss it was finished, and had signed the completion certificate on the faith of this. When he went to the building a few days later he 'almost fainted * * * Absolutely nothing was done.' The jury acquitted both defendants on a count charging a false statement in the loan application but convicted on a count charging a false completion certificate.
3
Katz received one year sentences on the two counts of the first indictment and on the second count of the second, all to run concurrently. Weiss was sentenced for six months, suspended on condition that he reimburse the Government for its loss on the loan, and was fined $5,000.
4
The sole ground of Katz' appeals is ineffective representation by counsel. Murry Boxer, Esq., had been retained by him in both cases; when it was demonstrated that Katz would be unable to pay, Boxer was assigned under the Criminal Justice Act, 18 U.S.C. 3006A. After Katz had been sentenced on both indictments and had declared an intention to appeal, Boxer stated his desire to withdraw. Judge Motley announced she would remove him and, in the interests of justice, appoint new counsel to argue Mr. Boxer's ineffectiveness, which she did.1 However, when new counsel moved for a new trial on the second indictment on that ground, she denied the motion after a more detailed appraisal of Mr. Boxer's conduct.
5
Determination of the effectiveness of counsel cannot be divorced from the factual situation with which he is confronted. When, as here, the prosecution has an overwhelming case based on documents and the testimony of disinterested witnesses, there is not too much the best defense attorney can do. If he simply puts the prosecution to its proof and argues its burden to convince the jury beyond a reasonable doubt, the defendant may think him lacking in aggressiveness, and surely will if conviction occurs. If he decides to flail around and raise a considerable amount of dust, with the inevitable risk that some may settle on his client, the defendant will blame him if the tactic fails, although in the rare event of success the client will rank him with leaders of the bar who have used such methods in some celebrated trials of the past.
6
We find it difficult to see what mode of defense could have helped Katzon the first indictment. His new counsel suggested at argument that the best course would have been to lie low and then argue that no one could have been so brazen as to fail to put in brass plumbing and then seek a new loan from the same bank for the same purpose. Yet that would have admitted the lack of performance which Mr. Boxer's claim that the building had been vandalized, unwarranted by any evidence as it was, managed to avoid. Although some of the other particulars advanced by new counsel indicate that the case could have been better tried,2 these are a long way from the showing required to invalidate a conviction because of lack of effective assistance of counsel. United States v. Garguilo, 324 F.2d 795 (2 Cir. 1963); United States v. Horton, 334 F.2d 153 (2 Cir. 1964); United States v. Currier, 405 F.2d 1039 (2 Cir.), cert. denied, 395 U.S. 914, 89 S.Ct. 1761, 23 L.Ed.2d 228 (1969).
7
The claim with respect to the second indictment, where Katz did have the semblance of a defense, namely, to put the blame on Weiss, is a shade more impressive, but not sufficiently so. Counsel stresses statements by Mr. Boxer to the judge outside the presence of the jury early in the trial that he 'would rather walk out on this case and not be on it,' was 'not very happy about the entire thing,' and was 'just doing a duty,' and that on two occasions he was observed to be sleeping while Weiss' counsel was examining a witness. But this attitude and conduct did not require the trial judge to set aside the conviction unless it prevented Katz from receiving a fair trial. She was justified in concluding that Mr. Boxer did not in fact fail in his duty of loyalty or in elementary skill. Mr. Boxer went after Weiss with vigor, and his opening statement, criticized by new counsel, that the Government was trying to convict Katz for the non-payment of a loan on which he was not the debtor, fitted well enough into this strategy and also constituted the kind of diversionary tactic to which we have alluded. That these endeavors were not without success is evidenced by the acquittal of both defendants on the first count. In denying the motion for a new trial, Judge Motley stated that the testimony during the periods of counsel's somnolence was not central to Katz' case and that, if it had been, she would have awakened him rather than have waited for the luncheon recess to warn him. It is claimed that while Mr. Boxer was too sleepy on these occasions, he was too aggressive on others, notably in a totally unwarranted attack on the qualifications of an FBI handwriting expert. Much as we deplore such methods, Mr. Boxer was not the first attorney to use them and doubtless will not be the last. Having reviewed all the specifications, we cannot find, especially in light of the considered opinion of the trial judge, that individually or in the aggregate they suffice to constitute a denial of effective representation. See Kennedy v. United States, 259 F.2d 883, 885 (5 Cir. 1958), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959), quoted with approval in United States ex rel. Maselli v. Reincke, 383 F.2d 129, 133 (2 Cir. 1967); and United States v. Cariola, 323 F.2d 180, 185 n. 4 (3 Cir. 1963) (dictum). Accord, United States ex rel. Weber v. Ragen, 176 F.2d 579 (7 Cir. 1949), cert. dismissed, 338 U.S. 809, 70 S.Ct. 49, 94 L.Ed. 489 (1949); MacKenna v. Ellis, 280 F.2d 592 (5 Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961); Root v. Cunningham, 344 F.2d 1 (4 Cir. 1965), cert. denied, 382 U.S. 866, 86 S.Ct. 135, 15 L.Ed.2d 104 (1965).3
8
Weiss' appeal borders on the frivolous. He claims that the evidence established that he signed the completion certificate in blank. But even if that would relieve him of criminal liability, the evidence shows no such thing. The only blank is the space identifying the date of the loan application and the form carries the legend, with the 'Notice' in bold face:
Notice To Borrower
9
DO NOT SIGN this certificate until you are satisfied that the dealer has carried out his obligations to you and that the work or materials have been satisfactorily completed or delivered.
10
Furthermore Weiss' own testimony disclosed his familiarity with FHA-insured loan procedures. The completion certificate was properly admitted as a verbal act and the Government did not have to lay a basis for its admission under the Business Records Act, 28 U.S.C. 1732. Weiss' other points are even less deserving of discussion.
11
Affirmed.
1
We wholly approve of the judge's conclusion that this course was authorized by 18 U.S.C. 3006A(c) and that neither Rule 7 of the Criminal Rules of the Southern District nor Rule 4(b) of this Court dictates otherwise, if indeed they could. Notices of appeal had not yet been filed, and the cases were open for further proceedings in the trial court
2
With respect to one of them, relating to the taking of a handwriting sample in the absence of an attorney, which is advanced again with respect to the second indictment, appellate counsel is simply wrong. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)
3
The court is grateful to Herbert Monte Levy, Esq., for his vigorous undertaking of the distasteful task of criticizing a brother lawyer on Katz' behalf
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THERESA WESTON SAUNDERS,
Plaintiff,
v. Civil Action No. 02-1803 (CKK)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
(May 13, 2010)
Plaintiff Theresa Weston Saunders brings this action against Defendants District of
Columbia (the “District” or “D.C.”), Natwar M. Gandhi, individually and in his official capacity
as Chief Financial Officer of the District of Columbia, and Earl C. Cabbell, individually and in
his official capacity as Plaintiff’s Supervisor (collectively “Defendants”). Plaintiff, a former
employee of the District, alleges that Defendants unlawfully discriminated against her on the
basis of her gender and age in violation of Title VII, 42 U.S.C. § 2000e et seq., and on the basis
of her race in violation of 42 U.S.C. §§ 1981, 1982, 1983, and 1985. She further alleges that
Defendants impermissibly retaliated against her in violation of the Federal False Claims Act
(“FCA”), 31 U.S.C. § 3729 et seq., and that she was terminated from her employment with the
District in violation of her Fifth Amendment due process rights.
The District previously filed a [31] Motion to Dismiss Plaintiff’s claims, which Motion
the Court granted-in-part, denied-in-part and held in abeyance-in-part pending further briefing.
In particular, as is relevant to the instant Memorandum Opinion, the Court held the District’s
Motion in abeyance insofar as it sought dismissal of Plaintiff’s FCA retaliation claim and
directed the parties to submit further briefing on that issue. In addition, the Court denied the
District’s Motion without prejudice as to Plaintiff’s claim that her property interest in her job
with the District was unlawfully terminated without due process in violation of the Fifth
Amendment and ordered the parties to provide supplemental briefing as to the viability of
Plaintiff’s section 1983 claim as well.
This matter now comes before the Court upon the filing of the parties’ supplemental
briefing. Accordingly, the only two claims presently at issue are Plaintiff’s FCA retaliation claim
and her section 1983 claim insofar as it is based on allegations that Defendants terminated her in
violation of her Fifth Amendment due process rights. Upon consideration of the parties’ filings,
the relevant case law and statutory provisions as well as the record of this case as a whole, the
Court rules as follows. First, with respect to the District’s [31] Motion to Dismiss, which was
previously held in abeyance with respect to Plaintiff’s FCA retaliation claim, the Court shall
DENY the Motion for the reasons below. Specifically, the Motion is DENIED WITH
PREJUDICE insofar as the District argues that Plaintiff has failed to sufficiently allege that she
was retaliated against in violation of the FCA, but is DENIED WITHOUT PREJUDICE insofar
as the District argues that Plaintiff’s FCA claim is time-barred. The parties shall submit
supplemental briefing on the question of the appropriate statute of limitations for Plaintiff’s FCA
retaliation claim consistent with this Memorandum Opinion and as provided for in the
accompanying Order. Second, the Court shall GRANT the District’s [38] Supplemental Motion
to Dismiss Plaintiff’s due process claim and shall therefore dismiss Plaintiff’s claim that she was
termination in violation of her Fifth Amendment property interests for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).
2
I. BACKGROUND
A. Factual Background
As set forth in the Amended Complaint, Plaintiff, an African-American female, was
previously employed by the District from August 1982 through her termination in 2000.
Amended Complaint (“Am. Compl.”) ¶¶ 5, 10, 33.1 During that time period, Plaintiff “held
increasingly responsible positions in [the] financial management of the D.C. Government.” Id. ¶
5. In 1999, she became Acting Chief Financial Officer (“CFO”) at the Office of the Chief
Technology Officer. Id. ¶ 12. Plaintiff alleges that at the time of her appointment to the Acting
CFO position, the District was “under pressure from the U.S. Department of Treasure and the
U.S. Government Accounting Office because financial statements could not be produced for
more than $70 million [in federal funding] given to the [Office of the Chief Technology
Officer].” Id. ¶ 13. According to Plaintiff, the then-City Administrator and Chief Financial
Officer turned to Plaintiff for assistance, “insist[ing] that [Plaintiff] take the [Office of Chief
Technology Officer] assignment to save the District from reprisals by” the Federal government.
Id. ¶ 14.
Plaintiff alleges that during her tenure as Acting CFO at the Office of Chief Technology
Officer, she “discovered and reported numerous deficiencies in contract procurement, violations
in the approval and payment of contractors, and an overall lack of . . . internal control in
management of [its federal funding].” Id. She also “forwarded a memorandum to [the Chief
Technology Officer] recommending a disallowance of $13,812,518 against a claim submitted by
1
These facts are drawn from the well-pleaded factual allegations in Plaintiff’s Amended
Complaint, which is attached as Exhibit A to Plaintiff’s [18] Motion for Leave to Amend.
3
IBM which was made without appropriate budget authority.” Id. ¶ 47. While the Chief
Technology Officer acknowledged receipt of the memorandum, no action was taken on the
recommendation. Id. In addition, Plaintiff asserts that she “directed letters to [the Office of the
Chief Financial Officer’s] General Counsel requesting clarification of authority of consultants
and contractor employees of the District of Columbia to obligate the city to pay for work
contracted in violation of established contractual procedures.” Id. ¶ 32.
According to Plaintiff, as a result of these “initiatives,” she “became the target of reprisals
by [the Chief Technology Officer].” Id. ¶¶ 14, 32. Specifically, Plaintiff asserts that she “was
not permitted . . . to report to the Chief Financial Officer of the District of Columbia,” despite the
requirement in force at that time that all agency Chief Financial Officers were to report directly to
the Chief Financial Officer. Id. ¶¶ 29-30. In addition, she alleges that the Chief Technology
Officer attempted to remove Plaintiff from her position as Acting CFO and to bar her from
working in any other position within the Office of the Chief Financial Officer. Id. ¶ 14. Plaintiff
asserts, however, that the Chief Technology Officer’s efforts were thwarted by the then-City
Administrator and Chief Financial Officer, who intervened on Plaintiff’s behalf and “insisted that
she not be excluded from her career” with the Office of the Chief Financial Officer. Id.
Ultimately, in October 1999, Plaintiff was reassigned away from the Office of the Chief
Technology Officer to the position of CFO for the District of Columbia Lottery and Charitable
Games Control Board. Id. ¶¶ 10, 14.
At some unspecified date thereafter, the City Administrator and the Chief Financial
Officer left their positions with the D.C. Government. Id. ¶ 15. Plaintiff alleges that their
departure left her vulnerable to further retaliation and that she was subsequently “targeted,
4
reassigned and demoted as reprisal for upholding the District’s financial accountability law.” Id.
Specifically, Plaintiff asserts that, beginning in late May of 2000, the Chief of Staff for the new
Chief Financial Officer approached her about a transfer to the Special Projects Team, which was
headed by Defendant Cabbell. Id. ¶¶ 20-21. According to Plaintiff, the Special Projects Team
“was responsible for developing and implementing strategies to resolve outstanding audit
findings and internal control weaknesses stated in the management letter of the audit report.” Id.
¶ 20. Plaintiff indicated to the Chief of Staff that “she would have to think about serving on the
[Special Projects Team].” Id. ¶ 21. On June 19, 2000, the Chief of Staff again contacted
Plaintiff and this time advised her that she would in fact be transferred to the Special Projects
Team. Id. Plaintiff responded “that she had decided to turn down the staff position offer because
it was not a good career move to change from a management position to a staff/line position.”
Id. Plaintiff was told, however, that she “had no choice - it was either take the transfer or have
no job;” as a result, she “unwillingly agreed to the transfer.” Id.
Plaintiff alleges that her salary was reduced as a result of the transfer to the Special
Projects Team. Id. She further alleges that, upon reporting for work at the Special Projects
Team, her office door was locked, her computer was not connected, and she had no printer;
Plaintiff therefore asserts that “[s]he could not get her work done.” Id. ¶ 24. In addition,
Plaintiff alleges that “she was increasingly alienated by the Defendants” during her time with the
Special Projects Team. Id. ¶ 25. For example, “she was not invited to meetings, she was
subjected to hostile remarks, and she was harassed by [Defendant] Cabbell.” Id.
Ultimately, on July 25, 2000, Plaintiff was presented with a separation letter, informing
her “[t]hat it is necessary to discontinue your employment with the Office of the Chief Financial
5
Officer for the District of Columbia.” Id. ¶ 26. The separation letter was dated July 21, 2000,
and indicated that it was effective 30 days after receipt (i.e., August 24, 2010). Id. Plaintiff was
immediately placed on 30-days paid administrative leave, at the end of which she would be paid
a lump sum separation payment equivalent to eight weeks salary. Id. Plaintiff was not given a
reason for her termination. Id. The separation letter advised Plaintiff that she could appeal the
termination within ten days of receipt of the letter, which she did. Id. ¶ 27. Plaintiff asserts,
however, that “Defendants [] totally ignored her appeal,” and she subsequently initiated a charge
of discrimination with the Equal Employment Opportunity Commission in January 2001. Id. ¶¶
3, 27.
Plaintiff alleges that the decision to transfer her to the Special Projects Team and the
decision to terminate her employment with the Office of the Chief Financial Officer were both
made by Defendant Ghandi. Id. ¶¶ 16, 17, 27. According to Plaintiff, Ghandi was hired as the
Chief Financial Officer shortly before Plaintiff was transferred to the Special Projects Team. Id.
¶ 16. She asserts that “[w]ithin the first three months as [Chief Financial Officer], Ghandi
terminated all female agency CFO’s,” with the exception of two who worked directly for former-
Mayor Williams. Id. ¶ 17. In addition, Plaintiff states that “[a]lmost all of the management
meetings held by Ghandi consisted of only males” and that “99% of Ghandi’s management
appointments for the first year were males.” Id. Plaintiff further alleges that “Ghandi
intentionally re-assigned [Plaintiff] to [co-Defendant] Cabbell, who like Ghandi did not believe
in the appointment of females to CFO psotions.” Id. According to Plaintiff, “[a]t the time of
[her] demotion/termination, there were other reassignments of male CFOs, but those did not
result in adverse actions, i.e., demotions or terminations,” even though “[s]ome of these male
6
individuals had not performed equally as well in their positions as [Plaintiff] had.” Id. ¶ 28.
B. Procedural History
Plaintiff filed her initial Complaint on September 11, 2002. See Compl., Docket No. [1].
As indicated previously, Plaintiff has named as Defendants the District of Columbia, Natwar M.
Gandhi, individually and in his official capacity as Chief Financial Officer of the District of
Columbia, and Earl C. Cabbell, individually and in his official capacity as Plaintiff’s Supervisor.
The District initially moved for dismissal of Plaintiff’s Complaint. See District’s Mot. to
Dismiss, Docket No. [9]. Plaintiff opposed the District’s motion and simultaneously moved for
leave to amend her complaint in an effort to resolve certain issues raised in the District’s motion.
See Pl.’s Mot. for Leave, Docket No. [18]. The District did not file an opposition to Plaintiff’s
motion for leave, instead choosing to substantively respond to the new allegations in Plaintiff’s
proposed Amended Complaint. See District’s Reply, Docket No. [24]. Rather than rule on
Plaintiff’s claims in a piecemeal fashion, the Court granted Plaintiff’s request for leave to file an
Amended Complaint, and denied the District’s motion to dismiss without prejudice, allowing the
District to re-file a dispositive motion directed towards Plaintiff’s Amended Complaint, as it
deemed appropriate. See Mar. 23, 2004 Order, Docket No. [30].
Accordingly, Plaintiff’s Amended Complaint is the operative complaint in this matter.2
Although the Amended Complaint is by no means a model of clarity, the Court understands
2
As is discussed below, while Plaintiff purported to file a [40] Second Amended
Complaint, Plaintiff failed to move for leave of the Court before doing so. The Court therefore
shall order that the Second Amended Complaint be stricken from the docket in this case as filed
in violation of the Federal Rules of Civil Procedure. See infra at pp. 14-15.
7
Plaintiff to assert seven claims, which fall into four principal categories. First, Plaintiff alleges
that Defendants discriminated against her on the basis of her gender and age in violation of Title
VII, 42 U.S.C. § 2000e et seq. Second, Plaintiff asserts that Defendants discriminated against her
on the basis of her race in violation of 42 U.S.C. §§ 1981, 1982, 1983, and 1985. Third, Plaintiff
contends that Defendants unlawfully retaliated against her in violation of the Federal False
Claims Act, 31 U.S.C. § 3729 et seq. Fourth, Plaintiff contends that Defendants deprived her of
her property and liberty interests without due process in violation of the Fifth Amendment;
although not stated in the Amended Complaint itself, Plaintiff appears to assert this latter claim
pursuant to 42 U.S.C. § 1983 as well. See Am. Compl. ¶¶ 42-43, 48.3
As permitted, the District4 filed a renewed [31] Motion to Dismiss (hereinafter, “Motion
to Dismiss”) directed at Plaintiff’s Amended Complaint. See Def.’s MTD, Docket No. [31].
After full briefing by the parties, see Pl.’s Opp’n to Def.’s MTD, Docket No. [34]; Def.’s Reply
in support of Def.’s MTD, Docket No. [35], the Court issued an Order and Memorandum
Opinion granting-in-part, denying-in-part, and holding in abeyance-in-part the Motion to
Dismiss. Saunders v. D.C., Civ. Act. No. 02-1803, 2005 WL 3213984 (D.D.C. Oct. 25, 2005).
Specifically, the Court granted the District’s motion with respect to Plaintiff’s claims brought
3
Although Plaintiff did not number the final paragraph of her Amended Complaint, the
Court for convenience shall refer to that paragraph in numerical order as Paragraph 48.
4
Neither Defendant Ghandi nor Defendant Cabbell (hereinafter, “Individual
Defendants”), in their individual capacities, have joined the District’s Motion to Dismiss nor
have they yet filed an answer or otherwise responded to Plaintiff’s Amended Complaint (or the
initial Complaint, for that matter). As discussed in greater detail below, see infra at pp. 13-14, it
is unclear from the present record whether Plaintiff has served the Complaint and Summons on
Defendant Ghandi and Defendant Cabbell in their individual capacities.
8
under 42 U.S.C. §§ 1982 and 1985 as well as her claim of discrimination in violation of Title
VII, but denied the motion with respect to Plaintiff’s 42 U.S.C. § 1981 claim. See id. at * 3-4, 6-
7. The Court also denied the District’s motion as to Plaintiff’s claim that her property interest in
her job with the District was unlawfully terminated without due process in violation of the Fifth
Amendment, but did so without prejudice and ordered the parties to provide supplemental
briefing addressing the viability of Plaintiff’s section 1983 claim.5 Id. at * 5. Finally, the Court
held the District’s motion in abeyance insofar as it sought dismissal of Plaintiff’s FCA retaliation
claim, directing the parties to submit further briefing on that issue as well. Id. at * 7-8. Plaintiff
therefore has four claims remaining — namely, her claims of (1) racial discrimination in
violation of 42 U.S.C. § 1981; (2) racial discrimination in violation of 42 U.S.C. § 1983; (3)
retaliation in violation of the FCA; and (4) violation of her Fifth Amendment right to due
process.
This matter now comes before the Court upon the filing of the parties’ supplemental
briefs as required by the Court’s order on the District’s Motion to Dismiss. The only two claims
that are presently at issue are Plaintiff’s FCA retaliation claim and her section 1983 claim insofar
as it is based upon allegations that Defendants terminated her in violation of her Fifth
Amendment due process rights. First, with respect to Plaintiff’s claim of retaliation in violation
5
In arguing that Plaintiff’s section 1983 should be dismissed, the District focused only on
Plaintiff’s allegation that her property interest in her job had been terminated without due
process; the District did not address Plaintiff’s related claims under section 1983 that Defendants
violated her liberty interest without due process of the law and discriminated against her based
upon race. See Saunders, 2005 WL 3213984 at * 6; see also Def.’s MTD, Docket No. [31], at 7-
8.
9
of the FCA, the parties have submitted the following supplemental materials: (1) Plaintiff’s
Supplemental Memorandum of Law on the False Claims Act Retaliation Claim (hereinafter,
“Pl.’s FCA Supp. Mem.”), Docket No. [41]; and (2) Defendant’s Supplemental Brief in Reply to
Plaintiff’s Supplemental Memorandum of Law on the False Claims Act Retaliation Claim
(hereinafter, “Def.’s FCA Supp. Reply Mem.”), Docket No. [42].
Second, with respect to Plaintiff’s due process claim, the parties have submitted the
following supplemental materials: (1) the District’s Supplemental Motion to Dismiss Plaintiff’s
due process claim (hereinafter, “Def.’s DP Supp. MTD.”), Docket No. [38]; (2) the District’s
Amended Supplemental Memorandum on Plaintiff’s due process claim (hereinafter, “Def.’s Am.
DP Supp. Mem.”), Docket No. [39]; (3) Plaintiff’s Response to the District’s Supplemental
Memorandum (hereinafter, “Pl.’s DP Supp. Opp’n”), Docket No. [43]; and (4) the District’s
Reply (hereinafter, “Def.’s DP Supp. Reply”), Docket No. [47]. In addition, after principal
briefing had been completed, Plaintiff filed a motion for leave to file a surreply, see Pl.’s Mot. for
Leave to File Surreply, Docket No. [48], to which Plaintiff attached the proposed surreply, see
id., Ex. A (“Pl.’s DP Supp. Surreply”). The District in turn filed what it nominally entitled an
opposition to Plaintiff’s motion for leave; however, while purporting to oppose Plaintiff’s request
for leave, the District’s opposition consisted largely of a substantive response to the arguments
advanced in Plaintiff’s proposed surreply. See Def.’s Opp’n to Pl.’s Mot. for Leave to File
Surreply, Docket No. [49]. The Court therefore granted Plaintiff’s motion for leave, indicating
that it would “consider the Surreply filed by Plaintiff and the arguments raised in Defendant’s
Opposition thereto as it deems appropriate.” Sept. 22, 2006 Min. Order. Accordingly, the Court
10
shall also consider these materials to the extent appropriate.
Finally, along with Plaintiff’s supplemental briefing on her FCA claim, Plaintiff
submitted a [40] Second Amended Complaint. Plaintiff asserted that she was doing so in order
to “set[] forth in greater detail the FCA retaliation claim.” Pl’s FCA Supp. Mem. at 2.
Significantly, Plaintiff did not obtain either the Defendants’ written consent or the Court’s leave
prior to submitting the Second Amended Complaint nor did she file an appropriate motion for
leave to amend. Rather, Plaintiff simply submitted the amendment along with her Court-ordered
supplemental briefing. Although the Clerk’s Office appears to have automatically lodged the
Second Amended Complaint on the docket in this case, it did so in error, as is discussed in
greater detail below. See infra at pp. 14-15. The operative complaint in this case therefore
remains Plaintiff’s Amended Complaint.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the
“grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions”
or “a formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan
v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,
11
accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must
construe the complaint in a light most favorable to the plaintiff and must accept as true all
reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine
Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally
construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be
derived from the facts alleged.”). However, as the Supreme Court recently made clear, a plaintiff
must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal,
129 S. Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court,
drawing on its judicial experience and common sense, to infer more than the “mere possibility of
misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. at 1950.
III. DISCUSSION
A. Plaintiff’s Claims Against Defendants Ghandi and Cabbell in their Individual
Capacities
Plaintiff asserts that she brings this suit against Defendant Ghandi and Defendant Cabbell
in their individual as well as official capacities. The record, however, is unclear as to whether
Plaintiff has actually served the Individual Defendants in their individual capacities. While
Plaintiff submitted proof of service as to Defendant Ghandi, see Docket No. [3], no proof of
12
service has been filed with respect to Defendant Cabbell. Moreover, the proof of service
submitted by Plaintiff with respect to Defendant Ghandi is internally inconsistent as to whether
he was served as an employee of the District or in his individual capacity. For example, although
the process server checked off the box on the Return of Service indicating that service was made
to Defendant Ghandi in his individual capacity at his “dwelling house or usual place of abode,”
the Summons by contrast lists the place of service as Defendant Ghandi’s “place of employment”
with that address provided. See Docket No. [3]. In addition, the process server avers on the
Return of Service that the summons and complaint were left with Jerry Malone; reference to the
Summons issued as to the District of Columbia indicates that Jerry Malone was the then-General
Counsel for the District, see Docket No. [4], further suggesting that service was made at the place
of employment and not Defendant Ghandi’s personal home. Finally, the Court notes that the
process server similarly indicated on the Returns of Service for the District that service was made
to the “defendant’s dwelling house or usual place of abode.” See Docket Nos. [2] & [4]. Quite
obviously, this representation is incorrect as to the District, thereby raising the possibility that the
process server may have simply checked the wrong box on all three affidavits submitted as proof
of service in this matter.
Significantly, the Individual Defendants have yet to file an answer or respond to the
pleadings in this case, and the District has consistently maintained that, “upon information and
belief, the District of Columbia was the only defendant to have been served with Plaintiff’s
complaint.” Def.’s MTD at 2, n.1. Plaintiff, however, has not taken any action as to the
Individual Defendants nor has she made any effort to respond to the District’s assertions on the
13
point.
The Court directs Plaintiff’s attention to Federal Rule of Civil Procedure 4(m), which
provides that:
If a defendant is not served within 120 days after the complaint is filed, the court —
on motion or on its own after notice to the plaintiff — must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
As the Complaint was filed in this case on September 11, 2002, Plaintiff was required to serve
the Complaint and Summons on the Individual Defendants by no later than January 9, 2003.
Obviously, the time for Plaintiff to perfect service is now long past. The Court therefore directs
Plaintiff to file a notice with the Court, by no later than June 1, 2010, providing either proof of
timely service as to the Individual Defendants or an explanation as to why service was not timely
made. Plaintiff is advised that if she fails to file such notice, the Court shall dismiss Plaintiff’s
claims against the Individual Defendants in their individual capacities only for failure to comply
with Rule 4(m).
B. Second Amended Complaint
As indicated above, Plaintiff purported to file a [40] Second Amended Complaint along
with her supplemental briefing on her FCA claim. At the time the filing was made, Federal Rule
of Civil Procedure 15 permitted a party to amend its pleading once as a matter of course at any
time before a responsive pleading is served.6 Subsequent amendments to the pleading were
6
Federal Rule of Civil Procedure 15 has since been amended, effective December 1,
2009, to permit a party to amend its pleading once as a matter of course only within 21 days after
the pleading is served or within 21 days after a responsive pleading or motion under Rule 12 is
14
permitted “only with the opposing party’s written consent or the court’s leave.” See Fed. R. Civ.
P. 15(a)(2). In this case, Plaintiff has previously amended her complaint.7 Plaintiff was therefore
required to move for leave of the Court or obtain the opposing party’s written consent before
additional amendments could be made. This she has not done. Accordingly, Plaintiff’s [40]
Second Amended Complaint shall be STRICKEN from the record.
While this result is mandated by the federal rules, the Court nonetheless emphasizes that
this decision will not prejudice Plaintiff and has no practical effect on the Court’s conclusions
reached herein. As Plaintiff explained in submitting the amendments, her sole purpose in filing a
second amended complaint was to “set[] forth in greater detail the FCA retaliation claim” in
response to the District’s supplemental briefing. Pl’s FCA Supp. Mem. at 2. For the reasons set
forth below, the Court concludes that the District’s Motion to Dismiss must be denied at this
time to the extent it seeks dismissal of Plaintiff’s FCA retaliation claim. The claim therefore
remains viable at present, and Plaintiff is of course free to move for leave to amend in
compliance with the Federal Rules. The Amended Complaint therefore remains the operative
served. Nonetheless, under either version of the Rule, a party may amend the complaint only
once as a matter of course.
7
The Court notes that Plaintiff, in amending her complaint for the first time, filed a
motion for leave of the Court. See Pl.’s Mot. for Leave to Amend, Docket No. [18]. As
indicated above, however, Plaintiff was not required to do so, as she was entitled under Rule 15
to amend her complaint once as a matter of course prior to service of a responsive pleading. In
such a situation, the D.C. Circuit has made clear that the Court is to effectively treat Plaintiff’s
motion for leave as an amendment of right. See Cureton v. U.S. Marshall Serv., 322 F. Supp. 2d
23, 25, n. 5 (D.C. Cir. 2004) (stating that a plaintiff’s “filing of a motion for leave to amend does
not nullify her right to amend and invoke the court’s authority to deny leave.”). Accordingly, the
Court is persuaded that any additional amendments to Plaintiff’s complaint may be made only
with leave of the Court or with the opposing party’s consent pursuant to Rule 15.
15
pleading in this case. With that understanding in mind, the Court turns now to consider the
merits of the parties’ supplemental briefing on Plaintiff’s FCA and due process claims.
C. Plaintiff’s False Claims Act Retaliation Claim
The Court first considers Plaintiff’s allegation that Defendants unlawfully retaliated
against her in violation of the Federal False Claims Act. The FCA imposes civil liability upon
any person who, inter alia, knowingly presents a “false or fraudulent claim for payment” to the
United States. 31 U.S.C. § 3729.8 An FCA civil action may be commenced in two ways. First,
the Attorney General may bring a civil action against an alleged false claimant. 31 U.S.C. §
3730(a). Second, private individuals — commonly known as “relators” — may bring a qui tam
action in the Government’s name to remedy violations of § 3729. See 31 U.S.C. § 3730(b). In
addition, as is relevant to Plaintiff’s suit, the FCA confers a private cause of action on an
individual who has been retaliated against by her employer for assisting in an FCA investigation
or proceeding. 31 U.S.C. § 3730(h). Specifically, section 3730(h) provides that:
[a]ny employee who is discharged, demoted, suspended, threatened, harassed, or in
any other manner discriminated against in the terms and conditions of employment
8
The FCA has been amended at least twice since the filing of Plaintiff’s Complaint. See,
e.g., Patient Protection and Affordable Care Act, H.R. 3590, 111th Cong. § 10104 (2010)
(amending 31 U.S.C. § 3730); Fraud Enforcement Recovery Act of 2009, S. 386, 111th Cong. §
4 (2009) (amending 31 U.S.C. §§ 3729, 3730). Despite being ordered by the Court to provide
updates as to any intervening changes in the facts or law, see Mar. 13, 2010 Order, Docket No.
[56], neither party has acknowledged these changes or addressed whether they have any impact
on Plaintiff’s FCA retaliation claim. Nonetheless, given the Court’s conclusions herein, the
Court finds that the parties’ failure to address the FCA amendments is not material to resolution
of the parties’ supplemental briefing. The Court therefore cites to and quotes from the version of
the FCA in effect at the time the action was commenced. The parties are advised, however, that
any future briefing on Plaintiff’s FCA claim must address the FCA amendments and the impact
of such changes on Plaintiff’s FCA claim, if any.
16
by his or her employer because of lawful acts done by the employee . . . in
furtherance of an action under this section, including investigation for, initiation of,
testimony for, or assistance in an action filed or to be filed under this section, shall
be entitled to all relief necessary to make the employee whole.
As indicated above, the Court held the District’s Motion to Dismiss in abeyance insofar
as the District sought dismissal of Plaintiff’s claim of retaliation brought under the FCA. The
District had initially argued in its Motion to Dismiss that Plaintiff’s FCA claim should be
dismissed for two principal reasons: (1) Plaintiff had failed to allege that “she disclosed any
information relating to any false claims action, including the investigation of, initiation of,
testimony or assistance in, an action that was or had been intended to be filed pursuant to federal
law,” Def.’s MTD at 10-11; and (2) Plaintiff’s claim was filed beyond the relevant statute of
limitations period and was therefore untimely, id. at 11. Plaintiff disagreed, arguing that she had
sufficiently alleged that she was retaliated against for engaging in lawful acts done in furtherance
of an FCA action filed, or to be filed, and that the District had relied on an incorrect statute of
limitations in asserting that her claim was untimely. See Pl.’s Opp’n to Def.’s MTD at 18-19.
The Court ultimately determined that it could not resolve the viability of Plaintiff’s FCA claim
on the record then before it because the parties had failed to adequately brief the relevant legal
issues. See Saunders, 2005 WL 3213984, * 8. The Court therefore required the parties to submit
supplemental briefing addressing, inter alia: (1) the appropriate statute of limitations to be
applied to Plaintiff’s retaliation claim under the FCA, and (2) the sufficiency of Plaintiff’s
retaliation claim.9 Id. As the parties have since submitted the required briefing, the Court now
9
The Court also directed the District to brief the issue of standing as to the FCA claim,
Saunders, 2005 WL 3213984, * 8, which the District has now done, see Def.’s FCA Reply Mem.
17
turns to consider these two issues.
1. Statute of Limitations
The FCA provides for a six-year statute of limitations for civil actions brought pursuant
to 31 U.S.C. § 3730. See 31 U.S.C. § 3731(b)(1). However, in Graham County Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005), the United States
Supreme Court held that the express statute of limitations applies only to §§ 3730(a) and (b)
actions and does not govern § 3730(h) retaliation actions. Id. at 417. Rather, the Supreme Court
held that the most closely analogous state limitations period governs FCA retaliation claims. Id
at 418. The task now before the Court, therefore, is to determine which District statute provides
the most closely analogous statute of limitations.10
Significantly, this issue appears to be one of first impression in the D.C. Circuit. The
parties have not directed the Court to any case law within this Circuit addressing this issue nor is
the Court itself aware of any such legal precedent. Although a handful of courts outside of this
jurisdiction have addressed this question, they have reached varying conclusions as to the type of
state statute that is most closely analogous to the FCA’s retaliation provisions. Compare
Campion v. Northeast Utilities, 598 F. Supp. 2d 638, 645-53 (M.D. Penn. 2009) (applying
residual statute of limitations for personal injury actions), United States ex. rel. Smart v. Christus
Health, 626 F. Supp. 2d 647, 657-58 (S.D. Tex. 2009) (applying statute of limitations period for
at 4-5. Plaintiff has not contested this issue, see generally Pl.’s FCA Supp. Mem., and the Court
is satisfied that any challenges to the District’s standing are without merit.
10
District of Columbia law may be treated as state law for purposes of the borrowing
doctrine. See Brown v. United States, 742 F.2d 1498, 1501 (D.C. Cir. 1984).
18
claims alleging retaliation against hospital employees for reporting violations of law), United
States ex. rel. Smith v. Yale Univ., 415 F. Supp. 2d 58, 99-102 (D. Conn. 2006) (applying statute
of limitations period for wrongful discharge tort claims), with United States ex rel. Lujan v.
Hughes Aircraft Co., 162 F.3d 1027, 1035 (9th Cir. 1998) (holding that “the most analogous
statute of limitations under California law is the one-year statute applicable to wrongful
termination in violation of California public policy”). As these cases demonstrate, the question
of which limitations period to apply to Plaintiff’s FCA retaliation claim is by no means a simple,
straightforward one.
Unfortunately, the parties’ briefing on this issue is woefully inadequate, leaving the Court
once again unable to adequately resolve the question on the current record. The parties
themselves disagree on this issue, with each advocating for the application of a different statute
of limitations period to Plaintiff’s claim under 31 U.S.C. § 3730(h). Plaintiff urges the Court to
apply the catchall three-year statute of limitations period set forth at D.C. Code § 12-301(8)
(providing that actions “for which a limitation is not otherwise specially prescribed” may not be
brought after “3 years”).11 Pl.’s FCA Supp. Mem. at 5-6. Under this theory, Plaintiff’s FCA
retaliation claim is timely. The District, by contrast, argues that D.C.’s Whistleblower Protection
Act (“WPA”), D.C. Code § 1-615.51 et seq., is the most closely analogous state statute and that
the Court should therefore apply the WPA’s limitations period to Plaintiff’s claim, which the
District asserts is one year. Def.’s Supp. Reply Mem. at 3-4. Under this theory, Plaintiff’s FCA
11
Plaintiff, in her Supplemental Memorandum, actually cites to D.C. Code § 1-301(8).
As no such code provision exists, the Court assumes that Plaintiff intended to cite to D.C. Code §
12-301(8), which is the correct citation for the District’s catchall statute of limitations provision.
19
retaliation claim would be time-barred. Accordingly, resolution of this issue may have a
dispositive impact on the viability of Plaintiff’s FCA claim.
Despite the importance of this question, the parties have provided scant attention to the
issue. Plaintiff’s argument in favor of the three-year catchall statute of limitations is located in a
single paragraph in her supplemental memorandum and is premised entirely upon the incorrect
assertion that the Supreme Court’s decision in Graham County identified D.C. Code § 12-301(8)
“as the applicable statute of limitations for a retaliation claim in the District of Columbia.” See
Pl.’s FCA Supp. Mem. at 5-6. While the Supreme Court identified a series of “likely analogous
state statutes of limitations” in its decision in Graham County, it explicitly “stress[ed]” that these
statutes “are only the likely candidates for analogous state statues of limitations; it may well not
be an exhaustive or authoritative list of possibilities.” 545 U.S. at 419, n. 3; see also id. at 422
(emphasizing that it was not deciding the question of which “appropriate state statute of
limitations to borrow”). For this reason, “[c]ourts have not felt constrained by the list of
suggested analogous limitations periods” set forth in Graham County. Campion, 598 F. Supp. 2d
at 646 (listing cases). Accordingly, while Plaintiff is correct that the Supreme Court identified
the catchall statute of limitations as a “likely candidate,” the Supreme Court did not
authoritatively hold that application of this limitations period was appropriate. Indeed, as
Plaintiff conveniently fails to acknowledge, the Supreme Court in fact identified two District
statutes in its list of likely analogous statutes — listing both the catchall provision identified by
Plaintiff and the statute of limitations for the District’s WPA (i.e., the statute identified by the
District as most closely analogous). Graham County, 545 U.S. at 491, n. 3. The Supreme
20
Court’s citation of D.C. Code § 12-301(8) as one of two possible statutory candidates simply
cannot bear the weight Plaintiff seeks to place on it. Significantly, Plaintiff offers no other
argument in support of her position that the Court should apply the three-year catchall statute of
limitations period.
While the District has, unlike Plaintiff, at least attempted to advance a substantive
argument in support of its position that the Court should apply the District’s WPA limitations
period to Plaintiff’s FCA claim, the District’s argument is similarly deficient for several reasons.
First, while the District argues that the WPA is the most analogous statute, this argument is based
solely on the assertion — set forth in a single sentence in the District’s supplemental briefing —
that “[t]he D.C. Circuit has likened the False Claims Act anti-retaliation provision to a
whistleblower casue of action.” Def.’s FCA Supp. Reply Mem. at 3 (citing Shekoyan v. Sibley
Int’l, 409 F.3d 414, 422 (D.C. Cir. 2005)). This general assertion, however, is an inadequate
substitute for the type of detailed substantive analysis that is necessary to demonstrate that D.C.
Code § 1-615.54 is, in fact, the most closely analogous statute of limitations. See, e.g., Campion,
598 F. Supp. 2d at 645- 53; United States ex. rel. Smith, 415 F. Supp. 2d at 99-102.
Second, despite being ordered by the Court to provide updates as to any intervening
changes in the facts or law, see Mar. 13, 2010 Order, Docket No. [56], the District failed to
acknowledge that the statute of limitations provision for the WPA has been recently amended.
At the time the parties’ supplemental briefing was filed, the Act provided that “[a] civil action
shall be filed within one year after a violation occurs or within one year after the employee first
becomes aware of the violation.” D.C. Code § 1-615.54(a). On January 11, 2010, however, the
21
D.C. Council approved D.C. Act 18-265, known as the Whistleblower Protection Act
Amendment of 2009, which amended D.C. Code § 1-615.54 to specify that “[a] civil action shall
be filed within 3 years after a violation occurs or within one year after the employee first
becomes aware of the violation, whichever occurs first.” The Amendment became effective on
March 11, 2010. While it appears likely that this amendment does not materially impact the
District’s argument or the applicable statute of limitations period that would apply to Plaintiff’s
FCA claim, the parties have not briefed this question and the Court declines to make the parties’
arguments for them.
Third, while the District urges the Court to adopt the WPA’s statute of limitations period,
the District’s own briefing suggests a third likely candidate statute — the District’s statute of
limitations period for claims of wrongful discharge in violation of public policy. See Def.’s FCA
Supp. Reply at 3 (citing to United States ex rel. Lujan v. Huges Aircraft Co., 162 F.3d 1027 (9th
Cir. 1998) (applying California’s one-year limitation statute of limitations period for discharge in
violation of public policy)); see also United States ex. rel. Smith, 415 F. Supp. 2d at 99-102 (D.
Conn. 2006) (concluding that the state’s statute of limitations period for wrongful discharge in
contravention of public policy, rather than state’s whistleblower protection limitations period,
applied to FCA retaliation claim). Under District of Columbia case law, it appears the
limitations period for claims of wrongful discharge in violation of public policy is three years.
See Kamen v. Int’l Bro. of Elec. Workers, AFL-CIO, 505 F. Supp. 2d 66, 78 (2007). Plaintiff’s
FCA claim would therefore be timely if the Court were to determine that the District’s wrongful
discharge statute of limitations period was the most closely analogous to the FCA’s retaliation
22
provision. Neither party, however, has addressed this particular statutory provision.
Given the inadequacy of the parties’ briefing and the importance of this issue, the Court
declines to make a ruling on the present record. In so doing, the Court emphasizes that it makes
no conclusion as to the merits of the parties’ respective arguments nor does it suggest that the
statute of limitations period for claims of wrongful discharge in violation of public policy is the
most analogous statute. Rather, the Court highlights these points simply to illustrate some of the
key deficiencies in the parties’ briefing on the statute of limitations issue. Accordingly, the Court
shall DENY WITHOUT PREJUDICE the District’s [31] Motion to Dismiss insofar as the
District urges that Plaintiff’s claim is time-barred. However, because resolution of this issue may
be dispositive of Plaintiff’s FCA claim and may also implicate the Court’s jurisdiction,12 the
parties are directed to file supplemental briefing on the question of the appropriate statute of
limitations for Plaintiff’s FCA retaliation claim consistent with this Memorandum Opinion and
as provided for in the accompanying Order.
2. Sufficiency of Plaintiff’s FCA Retaliation Claim
In its Motion to Dismiss, the District had also argued in the alternative that Plaintiff has
failed to state a viable claim for retaliation in violation of the FCA. Specifically, the District
urged that Plaintiff had failed to allege that “she disclosed any information relating to any false
12
See, e.g., U.S. ex rel. Dugan v. ADT Sec. Servs., Inc., Civ. Act. No. 03-3485, 2009 WL
3232080, * 3 (D. Md. Sept. 29, 2009) (“It is not yet clearly resolved whether a statute of
limitations defense under the FCA is properly analyzed as a bar to subject matter jurisdiction or
as a failure to state a claim.”) (citing cases). The parties must therefore also address in their
supplemental briefing whether application of the statute of limitations raises a challenge to the
Court’s jurisdiction.
23
claims action, including the investigation of, initiation of, testimony or assistance in, an action
that was or had been intended to be filed pursuant to federal law.” Def.’s MTD at 10-11. As
explained above, the Court held Defendant’s Motion to Dismiss in abeyance on this point and
ordered supplemental briefing addressing the identified deficiencies in Plaintiff’s FCA claim.
Saunders, 2005 WL 3213984, at * 7-8. In particular, the Court directed Plaintiff to: (1) address
her compliance with “the procedures set forth in 31 U.S.C. § 3730(b) and (c) for filing an action
under the Federal False Claims Act;” and (2) show “that she was ‘discharged, demoted,
suspended, threatened, harassed, or in any other matter discriminated against’ by her employer
because of her lawful actions ‘including investigation for, initiation of, testimony for, or
assistance in an action filed or to be filed under this section,’” as required by 31 U.S.C. §
3730(h). Id. at * 8.
Plaintiff has now submitted the required supplemental briefing. See Pl.’s FCA Supp.
Mem. First, as Plaintiff correctly notes therein, she need not allege that she initiated a qui tam
lawsuit under 31 U.S.C. § 3730(b), or even allege that she contemplated doing so, in order to
state a viable retaliation claim under the FCA. See id. at 3, n. 1; see also Yesudian v. Howard
Univ., 153 F.3d 731, 739-41 (D.C. Cir. 1998). Rather, “it is sufficient that a plaintiff be
investigating matters that ‘reasonably could lead’ to a viable False Claims Act case,” Yesudian,
153 F.3d at 740, even if the “investigation is conducted without contemplation of — or
knowledge of the legal possibility of — a False Claims Act suit,” id. at 741. The District does
24
not dispute this assertion in its supplemental reply.13 See generally Def.’s FCA Supp. Reply at 2-
3. Accordingly, as Plaintiff accurately states, compliance with the procedures set forth in 31
U.S.C. §§ 3730(b) and (c) is not required to assert a viable claim of retaliation under the FCA.
Plaintiff therefore need not show that she satisfied any of the procedural requirements set forth
therein.
Second, Plaintiff argues that she has adequately alleged a claim for retaliation in violation
of 31 U.S.C. § 3730(h). See Pl.’s FCA Supp. Mem. at 2-5. While acknowledging Plaintiff’s
argument on this point, see Def.’s FCA Supp. Reply at 3 (noting that Plaintiff “argu[es] that [she]
states a substantive claim under the False Claims Act”), the District has chosen not to
substantively respond to Plaintiff’s assertions, see generally id. Accordingly, given the District’s
failure to dispute Plaintiff’s substantive arguments regarding the viability of her FCA claim, the
Court easily concludes that the District has not shown that Plaintiff’s FCA retaliation claim must
be dismissed at this time for failure to state a claim. The District’s [31] Motion to Dismiss is
therefore DENIED insofar as the District argues that Plaintiff failed to allege that “she disclosed
13
Defendant instead argues only that Plaintiff’s FCA claim should be dismissed because
Plaintiff failed to address the procedural deficiencies identified by the Court in its previous
Memorandum Opinion and Order. See Def.’s FCA Supp. Reply at 3. This argument, however,
is without merit as Plaintiff did in fact address her compliance with the procedural requirements
of the FCA. That is, by arguing that she is not required to have initiated a qui tam lawsuit under
31 U.S.C. § 3730(b) in order to state a viable retaliation claim under the FCA, Plaintiff argues —
correctly — that she need not comply with the procedures set forth in 31 U.S.C. §§ 3730(b) &
(c). See Pl.’s FCA Supp. Mem. at 3, n. 1. Plaintiff has therefore complied with the Court’s
Order directing her to address her compliance with the FCA’s procedures. To the extent the
District construes the Court’s previous Memorandum Opinion as requiring Plaintiff actually
show that she filed a qui tam lawsuit, it is clear that Plaintiff need not do so in light of the D.C.
Circuit precedent.
25
any information relating to any false claims action, including the investigation of, initiation of,
testimony or assistance in, an action that was or had been intended to be filed pursuant to federal
law.”
D. Plaintiff’s Due Process Claim
The Court turns finally to consider Plaintiff’s claim that her dismissal deprived her of her
property interest in continued employment without due process in violation of the Fifth
Amendment.14 The District initially argued in its Motion to Dismiss that Plaintiff’s due process
claim must be dismissed for failure to state a claim insofar as the claim is premised on an alleged
property interest in Plaintiff’s employment with the District because Plaintiff was an at will
employee at the time of her termination. See Def.’s MTD at 8. As the D.C. Circuit has made
clear, “[t]hose who are terminable at will have no property interest because there is no objective
basis for believing that they will continue to be employed indefinitely.” Hall v. Ford, 856 F.2d
255, 265 (D.C. Cir. 1988). Accordingly, if Plaintiff was an at will employee at the time of her
termination, she cannot succeed on her claim that her dismissal deprived her of her property
interest in continued employment without due process in violation of the Fifth Amendment.
In support of its argument that Plaintiff was an at will employee, the District initially
relied upon the decisions in District Council 20 v. D.C., Civ. Act. No. 97-185, 1997 WL 446254
(D.D.C. July 29, 1997); Alexis v. D.C., 44 F. Supp. 2d 331 (D.D.C. 1999); and Leonard v. D.C.,
794 A.2d 618 (D.C. 2002). In each of these decisions, the plaintiffs — former District
14
While due process violations are typically analyzed under the Fourteenth Amendment,
the District of Columbia — which is not a state — is subject to the Due Process Clause of the
Fifth Amendment. See Butera v. District of Columbia, 235 F.3d 637, 645 n. 7 (D.C. Cir.1987).
26
employees — were held to be at will employees by virtue of the Omnibus Consolidated
Rescissions and Appropriations Act of 1996 (hereinafter, “OCRA”). As Judge Emmet G.
Sullivan aptly explained in his opinion in District Council 20,
The [OCRA] is one of a series of statutes commencing with the District of Columbia
Financial Responsibility and Management Assistance Act of 1995 (“1995 Act”) that
was enacted on April 17, 1995, to eliminate budget deficits and management
inefficiencies in the District of Columbia government. The 1995 Act established,
inter alia, the District of Columbia Financial Responsibility and Management
Assistance Authority, and the Office of the Chief Financial Officer. Congress placed
the Office of the Chief Financial Officer within the executive branch of the district
government, and transferred some of the Mayor’s power over financial management
to the CFO. One year later, on April 26, 1996, Congress enacted [OCRA]. Section
152(a)15 of this Act expanded the CFO’s authority by transferring all budget,
15
Section 152(a) of OCRA provides, in relevant part, that:
Notwithstanding any other provision of law, for the fiscal years ending September
30, 1996 and September 30, 1997–
(a) the heads and all personnel of the following offices, together with all other
District of Columbia executive branch accounting, budget, and financial management
personnel, shall be appointed by, shall serve at the pleasure of, and shall act under the
direction and control of the Chief Financial Officer:
The Office of the Treasurer.
The Controller of the District of Columbia.
The Office of the Budget.
The Office of Financial Information Services.
The Department of Finance and Revenue.
The District of Columbia Financial Responsibility and Management Assistance
Authority established pursuant to Public Law 104-8, approved April 17, 1995, may
remove such individuals from office for cause, after consultation with the Mayor and
the Chief Financial Officer.
27
accounting and financial management personnel in the executive branch of the city
government from the Mayor’s authority to the CFO’s authority, and stating that the
employees “serve at the pleasure of” the CFO.
1997 WL 446254, * 3 (internal citations omitted). Based on the plain language of OCRA and its
legislative history, these courts uniformly “conclude[d] that section 152 of [OCRA] converted
the subject employees to ‘at will’ employees,” and that the subject employees therefore lacked a
property interest in their employment with the District. Id. at * 5; see also Alexis, 44 F. Supp. 2d
at 343-44 (same); Leonard, 794 A.2d at 624-27 (same).
The District, however, failed to acknowledge in its initial Motion to Dismiss that OCRA,
by its own express terms, applied only “for the fiscal years ending September 30, 1996 and
September 30, 1997.” Saunders, 2205 WL 3213984, * 5 (quoting Pub. L. No. 104-134, 110 Stat.
132). Because Plaintiff was terminated in the summer of 2000, the 1996 Budget Act did not
control Plaintiff’s employment status at the time of the alleged due process violation. See id.
The Court therefore concluded that the District had failed to show that Plaintiff was an at will
employee at the time of her termination in 2000. Accordingly, the Court therefore denied the
District’s Motion to Dismiss without prejudice insofar as it moved for dismissal of Plaintiff’s due
process claim, but granted the District leave to refile a supplemental motion on this point. See id.
The District has since filed its Supplemental Memorandum on Plaintiff’s due process
claim. See Def.’s DP Supp. MTD. As set forth therein, the District contends that while OCRA
applied only during fiscal years 1995 and 1996, Congress has extended the substantive provisions
OCRA, Pub. L. No. 104-134, § 152, 110 Stat. 1321, 1321-102 (1996).
28
of section 152(a) by enactment of the District of Columbia Appropriations Act of 1997
(hereinafter, “the 1997 Appropriations Act”). Pub. L. No. 104-194, 110 Stat. 2356. Specifically,
section 142 of the 1997 Appropriations Act provided, in language nearly identical to that in
section 152(a) of OCRA, that:
Notwithstanding any other provision of law, during any control period in effect under
subtitle A of title II of the District of Columbia Financial Responsibility and
Management Assistance Act of 1995 the following shall apply:
(a) The heads and all personnel of the following offices, together with all other
District of Columbia accounting, budget, and financial management personnel
(including personnel of independent agencies but not including personnel of the
legislative and judicial branches of the District government), shall be appointed by,
shall serve at the pleasure of, and shall act under the direction and control of the
Chief Financial Officer:
The Office of the Treasurer.
The Controller of the District of Columbia.
The Office of the Budget.
The Office of Financial Information Services.
The Department of Finance and Revenue.
The District of Columbia Financial Responsibility and Management Assistance
Authority established pursuant to Public Law 104-8, approved April 17, 1995, may
remove such individuals from office for cause, after consultation with the Mayor and
the Chief Financial Officer.
1997 Appropriations Act, Pub. L. No. 104-194, § 142, 110 Stat. 2356, 2375.
Plaintiff does not dispute that the 1997 Appropriations Act extended the substantive
provisions of OCRA. See Pl.’s DP Supp. Surreply at 2. She correctly emphasizes, however, that
the provisions were “extended only during any control period in effect under subtitle A of title II
29
of the District of Columbia Financial Responsibility Management Assistance Act of 1995
(hereinafter, the “Assistance Act of 1995”). See id.; see also 1997 Appropriations Act, Pub. L.
No. 104-194, § 142, 110 Stat. 2356, 2375 (“Notwithstanding any other provision of law, during
any control period in effect under subtitle A of title II of the District of Columbia Financial
Responsibility and Management Assistance Act of 1995 the following shall apply.”).
Accordingly, in order to determine if the provisions of section 142(a) of the 1997 Appropriations
Act applied to Plaintiff at the time of her termination — such that she was an at will employee
without a property interest in her employment — the first step is to ascertain whether Plaintiff’s
termination fell within a “control period,” as that term is used in section 142(a).
There is some dispute between the parties on this point. Although the parties both agree
that a control period started on April 17, 1995,16 they disagree as to whether the control period
ended before or after Plaintiff was released from her employment with the District. Section
209(b) of the Assistance Act of 1995 governs the termination date of the control period and
provides, in relevant part, that:
A control period terminates upon the certification by the [District of Columbia
Financial Responsibility and Management] Authority that --
(A) the District government has adequate access to both short-term and long-term
credit markets at reasonable interest rates to meet its borrowing needs; and
(B) for 4 consecutive fiscal years (occurring after the date of the enactment of this
Act) the expenditures made by the District government during each of the years did
16
As the District asserts — and Plaintiff does not dispute — the relevant “control period”
began immediately upon enactment of the Assistance Act of 1995, which occurred on April 17,
1995. Assistance Act of 1995, Pub. L. 104-8, § 209(c), 109 Stat. 97, 137 (“a control period is
deemed to exist upon the enactment of this Act”).
30
not exceed the revenues of the District government during such years (as determined
in accordance with generally accepted accounting principles, as contained in the
comprehensive annual financial report for the District of Columbia under section
448(a)(4) of the District of Columbia Self-Government and Governmental
Reorganization Act).
Assistance Act of 1995, Pub. L. 104-8, § 209(b), 109 Stat. 97, 136-37. By resolution dated
September 20, 2000, the District of Columbia Financial Responsibility and Management
Authority (hereinafter, the “Authority”), noted that, while the District government had satisfied
the first of these requirements (i.e., had adequate access to both short-term and long-term credit
markets at reasonable interest rates), the Authority was unable to certify at that time that the
second condition, as set forth under paragraph B, had been met. See Def.’s DP Am. Mem., Ex. 1
(Authority’s September 20, 2000 Resolution).17 Thereafter, by resolution dated February 14,
2001, the Authority noted that it was “now in a position to make the last required certification
under Public Law 104-8,” and certified that all requirements had been met. See id., Ex. 2
(Authority’s February 14, 2001 Resolution). Accordingly, as the District correctly concludes, the
control period ended on February 14, 2001, “upon the certification by the Authority” that the
requirements set forth in section 209(b) of the Assistance Act of 1995 had been met. The Court
therefore finds that the control period was in effect at the time of Plaintiff’s termination, such
that the terms of section 142 of the 1997 Appropriations Act applied.
Significantly, Plaintiff, in her opposition to the District’s supplemental motion, initially
17
In considering a motion for failure to state a claim under Rule 12(b)(6), it is well
established that the Court may consider matters of which the court may take judicial notice as
well as matters of public record without converting the motion into one for summary judgment.
See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see also
Texas Border Coalition v. Napolitano, 614 F. Supp. 2d 54, 57 n. 1 (D.D.C. 2009).
31
failed to contest the District’s assertion that a control period was in effect at the time of her
termination. See generally Pl.’s DP Supp. Opp’n. Indeed, her opposition briefing was entirely
silent on this point. See id.; see also Def.’s DP Supp. Reply at 2 (noting Plaintiff’s failure to
contest the issue). As such, the Court is within its discretion to treat the argument as conceded.
Hopkins v. Women’s Div., General Bd. of Global Ministries, 284 F. Supp .2d 15, 25 (D.D.C.
2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.”), aff’d 98 Fed. Appx. 8
(D.C. Cir. 2004); Franklin v. Potter, 600 F. Supp. 2d 38, 60 (D.D.C. 2009) (treating defendant’s
argument in motion for summary judgment as conceded where plaintiff failed to address it in his
response). Although Plaintiff has attempted to belatedly address the issue in her Surreply, her
efforts to do so are inappropriate as a “surreply may be filed only . . . to address new matters
raised in a reply to which a party would otherwise be unable to respond.” United States ex rel.
Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 276-77 (D.D.C. 2002). As
such, while the Court indicated that it would “consider the Surreply filed by Plaintiff . . . as it
deems appropriate,” it is clear that Plaintiff’s attempt to use the Surreply as a vehicle to advance
untimely arguments is wholly inappropriate and therefore need not be considered by the Court.
Nonetheless, even if the Court were to consider Plaintiff’s untimely arguments, her
assertions on this point are without merit. Specifically, Plaintiff contends that the control period
actually ended — not on the date of the Authority’s certification — but on the day the substantive
requirements set forth in the Assistance Act of 1995 were actually met in full, i.e., September 30,
32
2000. Pl.’s DP Supp. Surreply at 2-3. Recognizing, however, that this theory only takes her so
far — given that Plaintiff’s termination was effective on August 24, 2000, well before September
30, 2000 — Plaintiff also urges the Court to find that she was not in fact “terminated” until
October 21, 2000. Id. Plaintiff reasons that because she received a lump sum separation
payment, which was the “equivalent to an 8-weeks salary,” she was not actually “terminated”
until eight weeks after the date her termination became effective. Id.
This argument is plainly without merit for several reasons. First, the plain language of
the Assistance Act of 1995 provides that the “control period terminates upon the certification by
the Authority that” the two enumerated conditions have been met. Assistance Act of 1995, Pub.
L. 104-8, § 209(b), 109 Stat. 97, 136-37 (emphasis added). Second, even assuming Plaintiff was
correct that the control period ended on September 30, 2000 — an argument the Court explicitly
rejects — Plaintiff nonetheless was terminated well before that date. As explained above,
Plaintiff alleges that she was given notice of her termination on July 25, 2000, and that the
separation letter indicated that her termination was effective 30 days after receipt of the
separation letter (i.e., August 24, 2000). Am. Compl. ¶¶ 26, 33. Plaintiff’s present contention
that the District, by awarding Plaintiff a lump-sum payment upon separation, somehow
effectively retained Plaintiff in the District’s employ for another eight weeks is entirely specious.
Plaintiff offers no legal support for this view, and the Court is unpersuaded. Rather, based upon
Plaintiff’s own allegations in the Amended Complaint, it is clear that her termination was
effective on August 24, 2000. As such, at the time of Plaintiff’s termination, section 142 of the
1997 Appropriations Act was in force.
33
Having established as much, the Court must next determine whether Plaintiff qualified as
an employee subject to the provisions of section 142, such that she was an at will employee at the
time of her termination. The District maintains that Plaintiff qualified as “financial management
personnel,” as enumerated in section 142(a), at the time of her termination. Def.’s DP Supp.
MTD at 4-5. Plaintiff disputes this conclusion for three reasons. The Court addresses each in
turn. First, Plaintiff argues that section 142(a), by its own terms, applies only to “management”
employees; because Plaintiff alleges that she was holding a staff position at the time of her
termination, having been previously demoted from her position as CFO of the District’s Lottery
and Charitable Games Control Board to the Special Projects Team, she concludes that she was
not subject to the terms of section 142 of the 1997 Appropriations Act. Pl.’s DP Supp. Opp’n at
2-3.18 Significantly, however, Plaintiff has offered no case law or other legal authority in support
of her position that section 142 applies only to management employees. Her argument instead
rests entirely on the language of the statute itself, and, in particular, the phrase “all other District
of Columbia accounting, budget, and financial management personnel.” See id. Although
Plaintiff has not clearly articulated her argument on this point, it appears that she believes that the
18
While the District disputes Plaintiff’s assertion that she was holding a staff position,
rather than a management position, at the time of her termination, the Court finds that Plaintiff
has sufficiently alleged that she held a staff position at the time of her separation from the
District. See, e.g., Am. Compl. ¶ 21 (describing the position on the Special Projects Team as a
“staff position”); id. Ex. A (EEOC Charge of Discrimination) (indicating that she “was not given
supervisory authority” in her position with the Special Projects Team). Admittedly, Plaintiff’s
Amended Complaint is contradictory on this point. See, e.g., id. ¶ 5 (“at the time of her
termination, she was employed as Chief Financial Officer of the D.C. Lottery and Charitable
Games Control Board.”). However, construing the allegations and facts in the Amended
Complaint in the light most favor to Plaintiff, the Court shall proceed on the understanding that
Plaintiff held a staff position in July of 2000.
34
word “management” should be read as modifying the word “personnel,” such that the phrase
refers only to accounting, budget, and financial personnel who are in management. See Pl.’s DP
Supp. Opp’n at 2.
The Court does not agree and instead concludes that the word “management” should be
read as part of the term “financial management,” such that Congress intended the phrase at issue
to refer to all District personnel (both staff and management) that work in the areas of (a)
accounting, (b) budget, and (c) financial management. This is so for several reasons. The word
“personnel” is ordinarily defined as “[t]he body of people employed in an organization . . . staff,
employees collectively.” XI Oxford English Dictionary 605 (2d ed. 1989). The term therefore
incorporates both staff as well as managing employees. As such, Plaintiff’s assertion that the
term “management” should be read to modify “personnel” makes little sense and would require
the Court to treat the term “personnel” as superfluous and without meaning. Plaintiff’s “reading
is thus at odds with one of the most basic interpretive canons, that ‘[a] statute should be
construed so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant . . . .’” Corley v. United States, __ U.S. __, 129 S. Ct. 1558,
1566 (2009). Moreover, review of the relevant portions of the 1996 Budget Act — upon which
section 142 of the 1997 Appropriations Act is based — demonstrates that Congress intended the
phrase “financial management” to be read as a single term referencing a particular subject matter
or area. See, e.g., OCRA, Pub. L. 104-134, 110 Stat. 1321, 1321-78 (appropriating monies for “a
new financial management system”as well as for an analysis of the “existing financial
management environment;” referring to “the District’s financial management system”); cf.
35
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007) (“A standard principle of
statutory construction provides that identical words and phrases within the same statute should
normally be given the same meaning.”).19 Finally, this interpretation is confirmed by the prior
court decisions interpreting the identical language in the predecessor section 152(a) of OCRA.
See, e.g., District Council 20, 1997 WL 446254, * 1 (finding that the summary dismissal of
approximately 165 “financial management employees,” without distinction between management
and staff employees, did not violate their due process rights as the employees had been converted
to at will employees under OCRA). Plaintiff offers no reason why the Court should now hold
otherwise.
Second, Plaintiff suggests for the first time in her Surreply that she may not have been
working on “accounting or budget functions” in her position with the Special Projects Team,
such that she does not qualify as “accounting, budget, and financial management personnel.”
Pl.’s DP Surreply at 4. Alternatively, Plaintiff contends that additional discovery on this issue is
needed. Id. As an initial matter, Plaintiff has been aware from the outset that section 142 of the
1997 Appropriations Act applies specifically to “accounting, budget, and financial management”
personnel. Accordingly, Plaintiff’s present assertion on this point could have been — and should
have been — raised in her principal briefing; her attempt to advance this argument for the first
19
Indeed, although by no means dispositive, the Court notes that Plaintiff’s Amended
Complaint itself reflects this same understanding that the term “financial management” refers to
a particular subject matter or area. See, e.g., Am. Compl. ¶¶ 11, 16 (indicating that Plaintiff “had
twenty-five years experience in financial management,” of which she “served as financial
manager, controller or CFO with increasing responsibilities for more than twelve years at the
time of her termination”).
36
time in her Surreply is therefore inappropriate and need not be considered by the Court. See
United States ex rel. Pogue, 238 F. Supp. 2d at 276-77.
Nonetheless, even if the Court were to consider this argument, it would not alter the
Court’s conclusion that Plaintiff was, at the time of her termination, subject to section 142 of the
1997 Appropriations Act. Plaintiff clearly asserts in her Amended Complaint that the Special
Projects Team “was responsible for developing and implementing strategies to resolve
outstanding audit findings and internal control weaknesses as stated in the management letter of
the audit report.” Am. Compl. ¶ 20. Plaintiff has therefore clearly alleged that the Special
Project Team was tasked with and responsible for “accounting, budget [and/or] financial
management.” Moreover, while Plaintiff now directs the Court to a copy of her discrimination
complaint before the District of Columbia Office of Human Rights (hereinafter, “OHR
complaint”) as indicating to the contrary, the Court notes that the OHR complaint in fact
similarly alleges that the Special Projects Team “was responsible for developing and
implementing strategies to resolve outstanding management letter and internal control comments
for prior audits.” See Pl.’s DP Surreply, Ex. A (discrimination complaint) at ¶ 2.
Plaintiff attempts to avoid this outcome by focusing on her description in the newly
attached OHR complaint of some of the particular projects she worked on as a member of the
Special Projects Team in the weeks before her termination. See id. at 4. Specifically, Plaintiff
indicated in her OHR complaint that she “worked on projects including the establishment and
coordination of meetings for the Management Information Systems Subcommittee and the Board
Process Reengineering Subcommittee; the development of the citywide Audit Tracking Report
37
and the Agency Response Report; and the coordination of meetings for [her] assigned
subcommittees.” Id., Ex. A (OHR complaint) at ¶ 11. Plaintiff now argues that “[t]hese projects
appear not to have been budget and/or financial functions,” or, “[i]n the alternative, more
discovery is needed to make this determination.” Id. at 4. Contrary to Plaintiff’s present claims,
however, the Court easily concludes that these project descriptions — particularly when viewed
in light of the Special Projects Team’s overarching responsibilities as alleged in the Amended
Complaint — implicate issues relating to accounting, budgeting, and financial management.
Plaintiff’s claim that “more discovery is needed” in order to make this determination is similarly
dubious; Plaintiff herself is obviously in the best position to know what responsibilities she was
assigned as a member of the Special Projects Team and yet she offers no affidavit or declaration
in support of her present argument that these projects did not involve budgetary or financial
matters. More importantly, even if the Court were to agree with Plaintiff that her work on the
Special Projects Team included projects on nonfinancial matters, Plaintiff has offered no support
for her apparent claim that application of section 142 of the 1997 Appropriations Act turns upon
the nature of the specific projects the individual employee is working on at the time of his or her
termination rather than the nature of the employees’ general duties and responsibilities nor is the
Court so persuaded. Rather, the Court finds that even if her work included some non-financial
projects, Plaintiff — as a staff member on the Special Projects Team — qualified as “accounting,
budget and financial management personnel.”
Third and finally, Plaintiff appears to contend that her interpretation of section 142 (i.e.,
that she did not qualify as an at will employee at the time of her termination) is supported by the
38
fact that her “separation letter contains components that an ‘at-will’ employee would not have.”
Pl.’s DP Supp. Opp’n at 3. For example, Plaintiff alleges that the separation letter provided that
her termination was effective 30 days from receipt, rather than immediately; that the separation
letter advised Plaintiff of her appeal rights; and that the separation letter did not state a reason for
her termination. Id. at 3-4. As an initial matter, Plaintiff has not provided the Court with any
legal authority in support of her assertion that these provisions constitute protections that “an at-
will employee would not have.” While Plaintiff appears to assume that the proposition is self-
evident, the Court disagrees. There is no reason why provision of a 30-day notice period is
inherently inconsistent with at will status and the fact that Plaintiff was not provided a reason for
her termination is surely consistent with a finding that she was an at will employee subject to
termination at any time and for any reason. More importantly, however, “a constitutionally
protected property interest in continued employment only arises when a plaintiff can demonstrate
a legitimate claim of entitlement to the benefit in question.” Menkes v. Dep’t of Homeland
Security, 486 F.3d 1307, 1311 (D.C. Cir. 2007). Section 142 of the 1997 Appropriations Act, by
converting Plaintiff to an at will employee, eliminated any “legitimate claim of entitlement”
Plaintiff may have had in her job. Plaintiff’s apparent belief that she nonetheless had a legitimate
expectation of continued employment based upon various statements in her separation letter —
provided at the termination, rather than the outset, of her employment — is without merit. Cf.
Doe v. Gates, 981 F.2d 1316, 1320-21 (D.C. Cir. 1993) (rejecting claim by CIA employee that
statements in Agency handbook and by Agency employees endowed him with a property interest
in his job notwithstanding federal statutory provision providing the CIA Director with discretion
39
to terminate him at will) (“The law is clear that if a statute relegates termination decisions to the
discretion of the Director, no property entitlement exists, and any [] statements to the contrary
have no binding force.”).
Accordingly, the Court finds that Plaintiff was subject to the terms of section 142 of the
1997 Appropriations Act at the time of her termination and was therefore an at will employee.
As such, Plaintiff had no property interest in continued employment. Hall, 856 F.2d at 265. For
this reason, Plaintiff’s claim that Defendants unlawfully terminated her from her position with
the District without due process in violation of the Fifth Amendment must be DISMISSED for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
IV. CONCLUSION
For the reasons set forth above, the Court finds as follows. First, with respect to the
District’s [31] Motion to Dismiss, which was previously held in abeyance with respect to
Plaintiff’s FCA retaliation claim, the Motion is DENIED WITH PREJUDICE insofar as the
District argues that Plaintiff has failed to sufficiently allege that she was retaliated against in
violation of the FCA, but is DENIED WITHOUT PREJUDICE insofar as the District argues that
Plaintiff’s FCA claim is time-barred. The parties shall submit supplemental briefing on the
question of the appropriate statute of limitations for Plaintiff’s FCA retaliation claim consistent
with this Memorandum Opinion and as provided for in the accompanying Order. Second, the
District’s [38] Supplemental Motion to Dismiss Plaintiff’s due process claim is GRANTED and
Plaintiff’s claim that her termination deprived her of her property interest in continued
employment without due process in violation of the Fifth Amendment is dismissed pursuant to
40
Federal Rule of Civil Procedure 12(b)(6). In addition, Plaintiff shall file a notice with the Court,
by no later than June 1, 2010, providing either proof of timely service as to the Individual
Defendants or an explanation as to why service was not timely made. Failure to do so may result
in dismissal of Plaintiff’s claims against the Individual Defendants only in their individual
capacities. Finally, Plaintiff’s [40] Second Amended Complaint shall be STRICKEN from the
record.
Date: May 13, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
41
|
295 Md. 419 (1983)
456 A.2d 375
KATHLEEN ELAINE HOWLETT
v.
STATE OF MARYLAND
[No. 40, September Term, 1982.]
Court of Appeals of Maryland.
Decided February 22, 1983.
The cause was argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.
Gary S. Offutt, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.
Stephen Rosenbaum, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
MURPHY, C.J., delivered the opinion of the Court.
We granted certiorari primarily to consider whether a probationer's admission of violating the conditions of a probationary order constitutes a plea of guilty which is subject to the requirements of Maryland Rule 731 c. That rule at the time of this case provided:
"c. Plea of Guilty.
The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. The court may accept the plea of guilty even though the defendant does not admit that he is in fact guilty if the court is satisfied *421 that there is a factual basis for the plea. If the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty."[1]
The record discloses that on January 7, 1980 the appellant Howlett pleaded guilty in the Circuit Court for Washington County to two counts of forgery. She was sentenced to two consecutive five-year terms of imprisonment; the sentences were suspended and she was placed on probation for three years upon condition that she obey all laws. She did not appeal.
On May 28, 1981, Howlett was charged with violating her probation. A hearing was conducted in the Circuit Court for Washington County at which she was represented by counsel. The trial judge (Corderman, J.) opened the proceedings by stating that Howlett was alleged to have violated the condition of her probation that she obey all laws. The court asked Howlett's counsel whether Howlett admitted or denied the violation. Counsel stated that Howlett admitted "the involvement." The court thereafter asked the prosecutor to state the facts upon which the State intended to rely in proving the violation. The prosecutor stated that Howlett had been convicted of conspiracy and receiving stolen goods in Pennsylvania and placed on fifteen months' supervised probation. In response to the court's question whether Howlett admitted the Pennsylvania convictions, her counsel answered in the affirmative. The court then asked Howlett whether she admitted the convictions. She said that she did. The court then stated that it accepted Howlett's admission and was satisfied that she had violated the terms of her probation.
*422 The court then asked the prosecutor to recommend a disposition. He urged that Howlett's probation be revoked. The court thereafter asked Howlett's counsel for a suggested disposition. Counsel called Howlett's probation agent as a witness "in mitigation to review some aspects of ... [Howlett's] record and her dealings with the Defendant." The agent testified concerning her supervision of Howlett, said that she was cooperative but lacking in judgment and common sense, that she was immature and emotionally "shaky," but nevertheless rational. The witness stated that Howlett was arrested on November 29, 1980 and outlined the details underlying the Pennsylvania convictions. Thereafter, Howlett was afforded an opportunity to address the court on the matter of disposition. She admitted her "mistake" in Pennsylvania and asked the court for mercy. The court said that it had "run out of mercy in this case"; that the court had spent considerable time with Howlett in the past and had given her a number of "breaks." It reimposed the suspended sentences.
On appeal, Howlett argued that the lower court's order revoking her probation should be vacated because the record failed to demonstrate that her guilty plea was entered and accepted in compliance with Maryland Rule 731 c. The Court of Special Appeals, in answer to this contention, as well as others advanced by Howlett, concluded that a probation revocation hearing was not within the ambit of Rule 731 c; that due process had been afforded to Howlett in the probation revocation proceedings in that, prior to her admission of the violation, the prosecutor had outlined the specific order violated by the Pennsylvania criminal convictions; that the record made it clear that Howlett voluntarily and intelligently admitted the violation of probation; and that the hearing amply complied with the requirements of fundamental fairness. Howlett v. State, 51 Md. App. 162, 441 A.2d 1112 (1982).
Before us, Howlett reasserts her argument that Rule 731 c is applicable to probation revocation proceedings. She urges that the requirements of Rule 731 c are not restricted *423 to guilty pleas to criminal charges. Quoting from Brown v. State, 237 Md. 492, 504, 207 A.2d 103 (1965), Howlett maintains that the meaning of a rule "does not depend upon the niceties of definition but upon the reasonable intendment of the language used in the light of the purpose to be effectuated." Howlett contends that Rule 731 c was written to insure that a person pleading guilty to a charge that may result in a loss of liberty acts "voluntarily, with understanding of the nature of the charge and the consequences of the plea." She argues that her admission of the Pennsylvania convictions was tantamount to a confession of guilt to violating her probation and that under Rule 731 c the court was required, prior to acceptance of her plea, to question her to determine that the plea was knowingly and voluntarily entered. Howlett relies on State v. Bryan, 284 Md. 152, 395 A.2d 475 (1978).
I
Both by its terms and placement in the Maryland Rules, Rule 731 c is not applicable in a probation revocation hearing. The rule provides in subsection a that a defendant may plead "not guilty, guilty, or, with the consent of the court, nolo contendere." Subsection b 2 of the rule requires that the plea be made "within 15 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance Provision for or Waiver of Counsel)." Rule 723 requires the defendant to appear before the court in response to a summons issued pursuant to Rule 720 after a charging document has been filed. Thus, the requirement of Rule 731 c that the court, upon the tendering of a guilty plea, determine that the plea is made with an understanding of the nature of the "charge" has reference to the "charging document," defined in Rule 702 a as "a written accusation, filed in court, alleging that a defendant has committed an offense." Under this rule, a charging document specifically includes an indictment, an information or a District Court *424 charging document.[2] Rule 702 e defines an "offense" as a "violation of the criminal laws of this State or a political subdivision thereof." Rule 710 a requires that "[a]n offense shall be tried only on a charging document."
Considering these provisions in context, and in relation to each other, it is manifest that Rule 731 c is limited in application to the taking of a guilty plea in the initial phase of a criminal prosecution. While a probation revocation proceeding relates directly to the criminal case of the substantive offense, the proceeding is not itself a new criminal prosecution; the commission of a crime is not charged and the alleged violation of probation, if established, is not punishable beyond the reimposition of the original sentence imposed. State v. Bryan, 284 Md. 152, 395 A.2d 475 (1978). A person charged with a violation of probation is not, therefore, invested with all the rights constitutionally accruing to the defendant in a criminal prosecution and the hearing is not subject to all the limitations imposed by law upon a trial leading to conviction. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Bryan, supra.
That Rule 731 c was not intended to apply at probation revocation hearings is further evident from a review of the structure of the criminal rules governing the prosecution of criminal cases in the circuit courts. Chapter 700, entitled "Criminal Causes," follows a chronological progression through the trial. From general matters of definition, purpose and construction (Rules 701-702), the headings of the rules progress through "Charging Document" (Rules 710-13), "Initial Processing" (Rules 720-25), "Pleas and Motions" (Rules 730-37), "Matters Preliminary to Trial" (Rules 740-46), "Trial" (Rules 750-64), "Post-Trial Procedure" (Rules 770-78), and "Miscellaneous" matters (Rules 780-85). Rule 731, positioned within the "Pleas and Motions" provisions of the rules, is directed to pre-trial motions and pleadings. Rule 775, included within the "Post-Trial Procedure" *425 division of the rules, provides in subsection a that the court, when placing a defendant on probation, must advise him "of the conditions and duration of probation and the possible consequences of a violation of any condition thereof." Rule 775 b permits the court to modify, clarify or terminate any condition of probation, change the duration thereof, or impose additional conditions. Rule 775 c authorizes the court, sua sponte, or on motion of the prosecutor, to "hold a hearing to determine whether any condition of probation has been violated." Subsection c of Rule 775 further requires that notice of each alleged violation shall be given to the probationer "sufficiently before the hearing to permit him a reasonable opportunity to rebut the charges." Nothing in the self-contained "Probation" provisions of Rule 775 purports to import the requirements of Rule 731 c into a probation revocation proceeding.
Other jurisdictions having a rule similar to Rule 731 c have concluded that the rule does not apply to probation revocation proceedings. In United States v. Segal, 549 F.2d 1293 (9th Cir.), cert. denied, 431 U.S. 919 (1977), the court held that Rule 11 of the Federal Rules of Criminal Procedure, a rule markedly similar to Maryland Rule 731 c (see State v. Priet, 289 Md. 267, 282, 424 A.2d 349 (1981)), was not applicable to probation revocation proceedings. The court said:
"By its [Rule 11's] terms, the court must advise a defendant `[b]efore accepting a plea of guilty.' . .. It is the taking of the plea, not the imposition of sentence or the revocation of probation, to which the rule is addressed. Indeed, the advisory committee notes make no reference to protection from an admission of wrongdoing outside the context of a plea of guilty to a criminal charge. If the Supreme Court and Congress wish to extend the application of Rule 11 to new areas, they are free to do so. But it would be officious meddling for a court of appeals to amend the rule. We decline to do so."
549 F.2d at 1296.
*426 Accord: United States v. Stehl, 665 F.2d 58 (4th Cir.1981); United States v. Johns, 625 F.2d 1175 (5th Cir.1980); United States v. Hill, 548 F.2d 1380 (9th Cir.1977). State jurisdictions have reached the same result when interpreting a rule similar to Maryland Rule 731 c. See State v. Guenther, 122 Ariz. 196, 593 P.2d 946 (1979); People v. Beard, 59 Ill.2d 220, 319 N.E.2d 745 (1974); People v. Rial, 399 Mich. 431, 249 N.W.2d 114 (1976).
State v. Bryan, supra, upon which Howlett places reliance, is not apposite. That case held that probation revocation proceedings were included within the right to counsel provisions of Maryland Rule 723 because the rule, in specific terms, applied "at any proceeding after [the defendant's] appearance pursuant to section a of this Rule," thus having a continuing effect throughout subsequent proceedings. Rule 731 does not contain equivalent language.
II
Howlett next contends that even if the provisions of Rule 731 c do not apply to probation revocation proceedings, due process requires an affirmative showing on the record that her admission to having violated the probationary order was knowingly and voluntarily made, with an understanding of the nature of the violation, as well as its consequences. She maintains that the record fails to disclose that she was aware of her right to contest the State's accusation; that the record does not demonstrate that her "plea" was voluntary and knowing; or even that she was entitled to a hearing to determine her culpability for the alleged violation. She relies mainly upon People v. Hardin, 70 Mich. App. 204, 245 N.W.2d 566 (1976) and People v. Adams, 411 Mich. 1070, 310 N.W.2d 671 (1981), cases which hold that in probation revocation proceedings the probationer's plea to the probation violation charge must be voluntarily and knowingly made.
*427 The Supreme Court made it clear in Gagnon v. Scarpelli, supra, that the full panoply of constitutional rights due a defendant at a criminal trial has no application in probation revocation hearings. Rather, as the Court there said, the legality of such proceedings is to be tested by fundamental fairness the touchstone of due process. Gagnon, supra, 411 U.S. at 790; State v. Bryan, supra, 284 Md. at 159 n. 6. Within this general standard, the record in this case discloses that Howlett's hearing was a fair one. The court explained the basis for the alleged violation at the outset of the hearing. Howlett was advised in the presence of her counsel that she was charged with having violated that condition of her probation that she obey all laws. Howlett has never contended that she did not understand the nature of the claimed violation. She readily admitted having been convicted of the Pennsylvania offenses; indeed, the convictions are matters of public record. Howlett does not now claim, nor did she contend in the Court of Special Appeals, that she did not commit the offenses or that, having committed them, did not know that the probationary order had thereby been violated. She has never contended that she did not understand the consequences of violating her probation, or that the court, at the time she was placed on probation, did not advise her of the consequences of violating her probation, as expressly required by Rule 775 a. Howlett does not even contend that her admission to the convictions was in fact involuntary, coerced or unknowingly made, but only that the record fails affirmatively to disclose adequate inquiry by the court to satisfy all requisite due process considerations.
Nothing in Gagnon, or in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), involving parole revocation hearings, requires that any particular litany be followed to determine whether a probationer or parolee understands and acts voluntarily and knowingly during the course of revocation proceedings. All that the record is required to disclose in probation revocation hearings is that the charge was explained to the probationer in *428 understandable terms and that his responses demonstrated that his actions were knowing and voluntary. That determination can only be made on a case-by-case basis, taking into account all relevant circumstances in their totality as disclosed by the record. Compare Dortch v. State, 290 Md. 229, 428 A.2d 1220 (1981); State v. Priet, 289 Md. 267, 424 A.2d 349 (1981); Davis v. State, 278 Md. 103, 361 A.2d 113 (1976). From the colloquy between the court, counsel and Howlett, we think it evident in this very simple case that Howlett understood that she was entitled to contest the charge, that she understood its nature and consequences, and that her admissions were knowing and voluntary. We conclude that due process, to the extent required in probation revocation hearings by Gagnon, was not offended in this case.
Judgment affirmed, with costs.
NOTES
[1] Rule 731 c was modified on January 1, 1982 to permit the prosecutor or defense counsel to examine the defendant. The rule now reads, in pertinent part:
"If the defendant tenders a plea of guilty, the court may not accept the plea until it determines, after an examination of the defendant on the record in open court by the court, by the State's Attorney, by the attorney for the defendant, or by any combination thereof, that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea...."
[2] Maryland District Rule 702 a provides that a "charging document" includes a citation, an information, a statement of charges and a traffic adjudication docket.
|
Greco v Wellington Leasing L.P. (2016 NY Slip Op 07925)
Greco v Wellington Leasing L.P.
2016 NY Slip Op 07925
Decided on November 23, 2016
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 November 23, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SANDRA L. SGROI
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2014-08152
(Index No. 11344/12)
[*1]Jennifer Greco, respondent,
vWellington Leasing Limited Partnership, et al., appellants.
Weiner, Millo, Morgan & Bonanno, LLC, New York, NY (Alan S. Weiner of counsel), for appellants.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, NY (William P. Hepner and David M. Schwarz of counsel), for respondent.
DECISION & ORDER
In a consolidated action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lebowitz, J.), dated May 7, 2014, as denied those branches of their motion which were to vacate the plaintiff's note of issue and certificate of readiness pursuant to 22 NYCRR 202.21(e), and to compel the plaintiff to produce records pertaining to her prior psychiatric and substance abuse treatment, child custody status, and child support payments.
ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provisions thereof denying those branches of the defendants' motion which were to vacate the plaintiff's note of issue and certificate of readiness pursuant to 22 NYCRR 202.21(e) and to compel the plaintiff to produce records pertaining to her prior psychiatric and substance abuse treatment, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendants.
The plaintiff's certificate of readiness incorrectly stated that medical reports had been exchanged, that there were no outstanding requests for discovery, and that discovery known to be necessary had been completed, with the sole exceptions of "depositions of certain party witnesses" and "expert exchanges and discovery." Because this was a misstatement of a material fact, the filing of the note of issue and certificate of readiness was a nullity, and the note and certificate should have been vacated (see 22 NYCRR 202.21[e]; Young v Destaso Funding, LLC, 92 AD3d 778, 778-779; Gaskin v Ilowitz, 69 AD3d 563; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497).
Moreover, the Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which was to compel production of the plaintiff's psychiatric and substance abuse treatment records. CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." "Material and necessary information is that which is required to be disclosed because it bears upon the controversy at issue and will assist the [*2]requesting party in preparing for trial" (M.C. v Sylvia Marsh Equities, Inc., 103 AD3d 676, 678; see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406). "Courts are to interpret discovery requests liberally in favor of disclosure" (M.C. v Sylvia Marsh Equities, Inc., 103 AD3d at 678; see Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566).
Here, because the plaintiff affirmatively placed her entire medical condition in controversy through broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries, which included impairment of her nervous system and requirement of neurological care, the nature and severity of her previous psychiatric conditions and her history of treatment for substance abuse are matters material and necessary to the issue of damages (see O'Rourke v Chew, 84 AD3d 1193, 1194; Azznara v Strauss, 81 AD3d 578, 578-579; Amoroso v City of New York, 66 AD3d 618; Rothstein v Huh, 60 AD3d 839; Diamond v Ross Orthopedic Group., P.C., 41 AD3d 768; Coddington v Lisk, 249 AD2d 817, 818). However, the Supreme Court properly denied that branch of the defendants' motion which was to compel the production of records pertaining to the plaintiff's child custody status and child support payments, as they failed to establish that such records contained information that was material and necessary in the prosecution or defense of this action (see CPLR 3101[a]; Allen v Crowell-Collier Pub. Co., 21 NY2d at 406).
HALL, J.P., SGROI, BARROS and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30202
Plaintiff-Appellee,
D.C. No.
v. 1:15-cr-00062-
SPW-1
LEON SEMINOLE,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted July 10, 2017
Portland, Oregon
Filed July 31, 2017
Before: Paul J. Watford and John B. Owens, Circuit
Judges, and Vince G. Chhabria, * District Judge.
Opinion by Judge Owens
*
The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.
2 UNITED STATES V. SEMINOLE
SUMMARY **
Criminal Law
The panel affirmed the defendant’s convictions for
strangling and assaulting his wife, in a case in which the
district court compelled the defendant’s wife to testify
against him.
The panel rejected the defendant’s argument that the
Supreme Court in Trammel v. United States, 445 U.S. 40
(1980), effectively overruled the holding in Wyatt v. United
States, 362 U.S. 525 (1960), that a court can compel a
witness to testify against her spouse when she is the victim
of the crime.
COUNSEL
Robert L. Kelleher (argued), Kelleher Law Office, Billings,
Montana, for Defendant-Appellant.
Bryan Timothy Dake (argued), Assistant United States
Attorney, United States Attorney’s Office, Great Falls,
Montana, for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SEMINOLE 3
OPINION
OWENS, Circuit Judge:
Defendant-Appellant Leon Seminole (“Seminole”), an
enrolled member of the Northern Cheyenne Tribe, appeals
from his jury trial convictions for strangling and assaulting
his wife in violation of 18 U.S.C. §§ 113(a)(8) and 113(a)(7).
He contends that the trial court erred by compelling his wife
– the domestic violence victim – to testify against him. The
trial court did not err, so we affirm.
I. FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
A. The Strangulation and Assault
Seminole and his common-law wife Maxine
Limberhand (“Limberhand”) had a history of problems, and
by August 2014, Limberhand needed a change – she planned
on moving out of their house. On August 17, 2014,
Limberhand drove with her brother Enoch and his girlfriend
to the house so Limberhand could remove certain
belongings.
When they arrived at the house, Limberhand exited the
vehicle and spoke with Seminole outside. She then entered
the house with Seminole, who shut the door. A few minutes
later, Enoch saw his sister come “staggering out, and she was
holding her cheek.” Seminole followed her outside the
house with a pistol in his hand. When Enoch approached,
Seminole cocked his pistol and held it at his side.
Limberhand was dizzy with a bump on her cheek and blood
showing, and told her brother they should leave before
Seminole shot somebody.
4 UNITED STATES V. SEMINOLE
They left Seminole at the house and drove away,
eventually meeting a Bureau of Indian Affairs (“BIA”)
officer who accompanied Limberhand to the emergency
room and recorded her statement. Limberhand told the BIA
officer that Seminole hit and knocked her into a corner, and
then began swinging and kicking while she was down. He
got on the floor and continued to hit her, and eventually
placed her in a chokehold. She made similar statements to
the emergency room doctor, who observed her right eye
swollen shut, swelling around her left eye, a swollen and
lacerated lip, other facial abrasions, a broken tooth, and a
scraped knee. He opined that these injuries were consistent
with blunt force trauma to her face. Two days later,
Limberhand provided the BIA officer with a written
statement consistent with her earlier recorded statement.
B. The Indictment and Trial
A grand jury returned a two-count indictment against
Seminole for: (1) assault of a spouse by attempting to
strangle and suffocate (18 U.S.C. §§ 1153(a) and 113(a)(8)),
and (2) assault resulting in substantial bodily injury to a
spouse (18 U.S.C. §§ 1153(a) and 113(a)(7)). The case
proceeded to trial, where the government introduced
evidence of defendant’s guilt, including the testimony of
Enoch, the emergency room doctor, and other people who
witnessed Seminole’s actions and Limberhand’s subsequent
injuries.
The government also called Limberhand as a witness,
even though she made clear in a variety of ways that she
wanted no part of this prosecution. 1 In particular, she
1
The government is not arguing that any error in compelling
Limberhand’s testimony was harmless.
UNITED STATES V. SEMINOLE 5
attempted to assert the adverse spousal testimony privilege
(or the “anti-marital facts” privilege, as our circuit
sometimes calls it) to avoid taking the stand. The district
court compelled her to testify, and that testimony differed
dramatically from her earlier statements to the BIA officer
and the doctor. This time, she told the jury that, in effect,
she was the instigator, and Seminole merely tried to hug her
to calm her down. The prosecution impeached her testimony
with her previous statements detailing the assault and
strangulation. The jury returned a guilty verdict on both
counts, and Seminole received concurrent 48-month
sentences for each count.
II. DISCUSSION
A. Standard of Review
This court reviews de novo a district court’s construction
of the Federal Rules of Evidence. United States v.
Montgomery, 384 F.3d 1050, 1056 (9th Cir. 2004).
B. The District Court Did Not Err In Compelling
Limberhand’s Testimony
Federal common law recognizes two separate marital
privileges: (1) the so-called “adverse spousal testimony” or
“anti-marital facts” privilege, which permits a witness to
refuse to testify against his or her spouse; and (2) the “marital
communications” privilege, which allows either spouse to
prevent testimony concerning statements privately
communicated between them. See United States v. Griffin,
440 F.3d 1138, 1143–44 (9th Cir. 2006); United States v.
White, 974 F.2d 1135, 1137 (9th Cir. 1992). This case
concerns the former.
6 UNITED STATES V. SEMINOLE
In Wyatt v. United States, 362 U.S. 525 (1960), a Mann
Act prosecution, the Supreme Court addressed the same
issue as we have here – whether a trial court could compel a
wife to testify against her husband, despite the well-
established spousal testimony privilege that normally would
prohibit such testimony. The short answer was yes the court
could, due to a well-established exception to the well-
established privilege – if the spouse is the victim of the
defendant’s crime, the privilege does not apply, and absent
the privilege, compelling the spouse (like compelling any
other witness) is within the court’s power. Id. at 530; see
also Shores v. United States, 174 F.2d 838, 841 (8th Cir.
1949) (“[T]he wife . . . stood in the same position as any
other victim of another’s criminal act.”). 2
The “spouse as victim” exception to the adverse spousal
testimony privilege did not originate in Wyatt – it has existed
for hundreds of years, as the Supreme Court and our court
have recognized. 3 Courts regularly reaffirm Wyatt’s holding
2
Although the Court in Wyatt dealt with the Mann Act, 362 U.S. at
530–31, no court has read the exception to apply only in Mann Act cases.
Indeed, “[t]he classic case for invocation of the exception is wife-
beating,” and “it is generally agreed that an assault, battery, or other form
of corporeal violence is within the exception.” 25 Charles Alan Wright
& Kenneth W. Graham, Jr., Federal Practice & Procedure § 5592 (1st
ed. 1989). Courts have also applied the exception outside the traditional
domestic violence and Mann Act context. See, e.g., Herman v. United
States, 220 F.2d 219, 226 (4th Cir. 1955) (“[A] wife can be a witness
against her husband not only when personal injury to her of a physical
or moral nature is claimed, but also where the crime affects her
property.”). We do not decide the exception’s outer limits, because this
case falls squarely within it.
3
The Supreme Court dates the exception back to 1631. See, e.g.,
Trammel v. United States, 445 U.S. 40, 46 n.7 (1980) (citing Lord
Audley’s Case (1631) 123 Eng. Rep. 1140); see also Note, Victim-Wife’s
UNITED STATES V. SEMINOLE 7
that a court can compel a witness to testify against her spouse
when she is the victim of the crime, even if she is adamant
that she not do so. See, e.g., United States v. Underwood,
859 F.3d 386, 390 (6th Cir. 2017) (citing Wyatt and
recognizing that “federal courts have also created an
exception to the privilege in instances in which the spouse
commits an offense against the other spouse”); Brown v.
Dart, 667 F. App’x 873, 874 (7th Cir. 2016) (privilege was
unavailable to domestic violence victim because under
Wyatt, “the victim spouse cannot be prevented from
testifying [against her husband], and can even be
compelled”); United States v. Chandler, No. 2:10-cr-00482,
2011 WL 1871223, at *3–6 (D. Nev. May 16, 2011) (under
Wyatt, the court can compel spouse’s testimony when
defendant’s abuse of her was “facilitated and inextricably
intertwined with the conduct for which [he] was charged”).
Hundreds of years of adverse and ironclad precedent
normally end a case. But Seminole argues that the Supreme
Testimony May Be Compelled in Prosecution of Husband for Mann Act
Violation: Wyatt v. United States, 362 U.S. 525 (1960), 39 Tex. L. Rev.
508, 510 n.11 (1961). The Supreme Court and our court have referenced
it many times. See Stein v. Bowman, 38 U.S. 209, 221 (1839) (“It is a
general rule that neither a husband nor wife can be a witness for or
against the other. This rule is subject to some exceptions; as where the
husband commits an offence against the person of his wife.” (citations
omitted)); Cohen v. United States, 214 F. 23, 29 (9th Cir. 1914) (“[T]he
common law made an exception to the rule of privilege in cases where
the husband or wife was called as a witness to testify as to personal
wrong or injury sustained from the other.”); Kerr v. United States,
11 F.2d 227, 228 (9th Cir. 1926) (wife permitted to testify against
husband in prosecution for mailing her poisoned candy, as under “the
common law a wife had a right to testify against her husband in a case
of personal violence by the husband against her”); see also White,
974 F.2d at 1138 (applying exception to marital communications
privilege).
8 UNITED STATES V. SEMINOLE
Court in Trammel v. United States, 445 U.S. 40 (1980),
dramatically altered the spousal privilege landscape. We
disagree.
In Trammel, the Court considered whether a criminal
defendant could use the adverse spousal testimony privilege
to prevent his wife from taking the stand at his narcotics
trafficking trial, even though the spouse was willing to do so.
445 U.S. at 42–43. Until Trammel, the answer was yes – the
privilege barred “the testimony of one spouse against the
other unless both consent[ed].” Hawkins v. United States,
358 U.S. 74, 78 (1958). After reviewing the history and
purpose of the privilege, the Court narrowed Hawkins and
the privilege: “the witness-spouse alone has a privilege to
refuse to testify adversely.” 445 U.S. at 53. Although
Trammel did not feature a crime against a spouse, the Court
went out of its way to recognize that the exception to the
privilege “for cases in which one spouse commits a crime
against the other . . . was a longstanding one at common
law.” Id. at 46 n.7.
Despite Trammel’s narrowing the scope of the privilege,
Seminole contends that the Court actually broadened it
considerably with the following language at the end of the
opinion: “the witness may be neither compelled to testify nor
foreclosed from testifying.” Id. at 53. According to
Seminole, when the Trammel Court wrote “the witness may
[not be] compelled to testify,” it meant that in all
circumstances, with no exception. The Court, the argument
goes, effectively overruled Wyatt with this phrase.
Seminole reads too much into this language. If a court
says that hearsay is inadmissible without noting its countless
exceptions, this does not reflect an intent to eliminate the
exceptions. Similarly, it is clear from the context of
Trammel that the Court was not overruling Wyatt with these
UNITED STATES V. SEMINOLE 9
12 words. Rather, it was simply stating the general principle
that, absent an exception, a witness cannot be compelled to
testify against her spouse. 4 But there is an exception – one
the Court in Trammel identified as existing as early as 1631,
but the facts in Trammel did not implicate. Seminole has not
identified any cases that hold that Trammel somehow
eliminated a court’s ability to compel a witness to testify
against her spouse when she is the victim of the spouse’s
crime. 5 And to the extent that the Court in Trammel found
“special relevance” in state law trends under Federal Rule of
Evidence 501 “because the laws of marriage and domestic
relations are concerns traditionally reserved to the states,” id.
at 47–50, the trend here is all one way – no state in our circuit
permits a spouse to refuse to testify in a domestic violence
prosecution. See Chandler, 2011 WL 1871223, at *6
(collecting statutes of Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, and Washington).
We are far from solving the crisis of domestic violence,
as “[t]his country witnesses more than a million acts of
domestic violence, and hundreds of deaths from domestic
4
It is for this same reason that Seminole overreads similar language
in United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir.
1997), overruled on other grounds by United States v. Nordby, 225 F.3d
1053 (9th Cir. 2000), which also did not require discussion of the
“spouse as victim” exception.
5
United States v. Jarvison, 409 F.3d 1221 (10th Cir. 2005), which
neither party cited, does not alter our view. The Tenth Circuit in Jarvison
quoted the same phrase from Trammel to hold that a court could not
compel a spouse to testify against a defendant who was accused of
sexually abusing their granddaughter. Id. at 1231–32. The opinion
neither cited Wyatt nor the spousal victim exception that Trammel
expressly identified. Because Jarvison did not feature a spousal victim,
we do not opine on its validity, but do conclude it has no application
here.
10 UNITED STATES V. SEMINOLE
violence, each year.” United States v. Castleman, 134 S. Ct.
1405, 1408 (2014). It is a crime that is “notoriously
susceptible to intimidation or coercion of the victim to
ensure that she does not testify at trial.” Davis v.
Washington, 547 U.S. 813, 832–33 (2006). Wyatt’s “spouse
as victim” holding dictates that the district court correctly
compelled the testimony of Limberhand.
AFFIRMED.
|
962 F.Supp. 1093 (1997)
Earnest ROWELL, Plaintiff,
v.
CIGNA, et al., Defendants.
No. 96 C 8076.
United States District Court, N.D. Illinois, Eastern Division.
April 28, 1997.
Mark D. DeBofsky, Richard Quentin Holloway, DeBofsky & DeBofsky, Chicago, IL, for plaintiff.
Rody P. Biggert, David S. Baffa, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Stephen C. Debboli, Modesto, Reynolds & McDermott, Chicago, IL, for Life Ins. Co. of North America.
MEMORANDUM OPINION AND ORDER
ALESIA, District Judge.
This matter comes before the court on defendant Life Insurance Company of North America's motion to strike plaintiff Earnest Rowell's jury demand. For the reasons set forth below, the court grants defendant's motion to strike plaintiff's jury demand.
I. BACKGROUND
Plaintiff Earnest Rowell ("plaintiff") filed suit against defendants Life Insurance Company of North America and The Pullman Company (collectively "defendants") pursuant to section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 *1094 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), for wrongfully denying him disability benefits under Pullman's employee welfare benefit plan. In his first amended complaint, plaintiff seeks a declaratory judgment entitling him to disability benefits under the plan and interest on those unpaid benefits, an order requiring continued payment of benefits until plaintiff no longer meets the disability, conditions under the plan, and attorney's fees.
In connection with his claim, plaintiff filed a jury demand. Defendant has moved to strike plaintiff's jury demand, claiming plaintiff has no such right in this case.
II. DISCUSSION
The Seventh Amendment right to a jury trial is not absolute; instead, it is determined by the "nature of the plaintiff's cause of action." Brown v. Retirement Committee of Briggs & Stratton Retirement Plan, 797 F.2d 521, 527 (7th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1311, 94 L.Ed.2d 165 (1987). A trial by jury is available in suits enforcing legal rights, if the action involves legal rights and remedies. It is not available, however, when Congress creates a statutory scheme authorizing only equitable relief, unless Congress specifically provides otherwise. Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974); Wardle v. Central States, S.E. and S.W. Areas Pension Fund, 627 F.2d 820, 828 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981).
Section 502(a)(1)(B) of ERISA is silent as to the issue of a plaintiff's right to a jury trial. In Wardle, the Seventh Circuit analyzed the statute and its history and concluded that "Congress' silence on the jury right issue," in conjunction with the statutory remedy's equitable nature, means that jury trials are unavailable in "suits for pension benefits by disappointed applicants." Wardle, 627 F.2d at 829-30. Jury trials are similarly unavailable in suits brought under section 502(a)(1)(B) for the denial of disability benefits. Brown, 797 F.2d at 527. Therefore, the Seventh Circuit has unequivocally decided that jury trials are not available to plaintiffs who file suit pursuant to section 502(a)(1)(B), as such suits provide only equitable relief. See Oil, Chemical & Atomic Workers' Int'l v. Amoco Corp., No. 93 C 5929, 1996 WL 563447, *2 (N.D.Ill. Sept.27, 1996).
Based on the Seventh Circuit's unequivocal statement of the law, a jury trial is not available in plaintiff's ERISA claim for wrongful denial of disability benefits. In fact, plaintiff concedes, as he must, that "it has long been the law in this Circuit that there is no right to trial by jury in an ERISA claim." (Pl.'s Mem. in Opp. at 1.) Despite the apparent agreement between the parties, plaintiff asks this court to reconsider the issued based on the Seventh Circuit's decision in Senn v. United Dominion Indus., 951 F.2d 806 (1992), cert. denied, 509 U.S. 903, 113 S.Ct. 2992, 125 L.Ed.2d 687 (1993), which relied on the Supreme Court's decision in Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990). Plaintiff also has requested that should this court deny his request for reconsideration, it either certify the issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or impanel an advisory jury.
Plaintiff believes that Senn warrants reconsideration of the availability of jury trials in ERISA claims. The court disagrees. In Senn, the Seventh Circuit was faced with a class action lawsuit claiming breach of a collective bargaining agreement brought pursuant to section 301(a) of the Labor Management Relations Act ("LMRA") and sections 502(a)(1) and (a)(3) of ERISA. Senn, 951 F.2d at 813. The court in Senn upheld the use of a jury trial in a case where several theories of recovery, both legal and equitable, were claimed by the plaintiffs. Id. at 814. The court relied on the Supreme Court's holding in Terry, which stated that "a claim under Section 301 [of The LMRA] that the employer breached a Collective Bargaining Agreement `is comparable to a breach of contract claim a legal issue.'" Id. at 813 (citing Terry, 494 U.S. at 569-70, 110 S.Ct. at 1347.) Because the case presented both legal and equitable issues, the plaintiff was entitled to a jury trial.
Senn is distinguishable from this case. In this case, plaintiff has no LMRA or other *1095 legal claim; therefore, he does not have both legal and equitable relief available to him. Plaintiff's claim seeks a declaratory judgment entitling him to disability benefits and interest on unpaid benefits, an order requiring continued payment of benefits until he no longer meets the disability conditions under the plan, and attorney's fees. Such requests for relief are undeniably only equitable in nature; therefore, plaintiff is not entitled to a jury trial. See Casey v. Uddeholm Corp., No. 92 C 2156, 1992 WL 122951, *3 (N.D.Ill. May 28, 1992). For these reasons, the court finds no basis for applying the holding in Senn to a case where the sole claim is based on the denial of disability benefits, which allows for only equitable relief to the plaintiff.
Plaintiff also relies on a district court case from Colorado, Adams v. Cyprus Amax Mineral Co., 954 F.Supp. 1470 (D.Col.1997), as support for his jury trial request. Adams involved an ERISA claim for severance benefits. The Adams court, relying on Terry, reasoned that while an ERISA claim itself may be equitable, the underlying claim is really a breach of contract claim. Adams, 954 F.Supp. at 1476-77. In making such a claim, the court acknowledged that nine federal circuits had held otherwise. Id. at 1471-72. Nonetheless, the Adams court's own circuit, the Tenth, had not yet addressed the issue. The Adams court also viewed the remedy sought as including "monetary damages," a legal remedy, as distinguished from restitution or injunctive relief, equitable remedies. Id.
This court finds the Adams court's reasoning unpersuasive, particularly in light of the overwhelming weight of authority against it. Moreover, the Adams court certified the issue for interlocutory appeal to the Tenth Circuit, which has not yet addressed it. Therefore, Adams is, at this point, of questionable authority.
In contrast, the Seventh Circuit has made it explicitly clear that jury trials are unavailable to ERISA plaintiffs because ERISA claims are equitable in nature. Plaintiff has failed to provide any reasonable basis for why this court should reject the weight of authority, including binding Seventh Circuit precedent, that is contrary to his position. For these reasons, the court grants defendant's motion to strike plaintiff's jury demand.
The court further finds no need for an interlocutory appeal. An interlocutory appeal is appropriate pursuant to 28 U.S.C. § 1292(b) only when there exists "a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal ... may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Plaintiff has not met the statutory requirements for an interlocutory appeal of this court's decision to strike his jury demand. As discussed above, there is hardly a "substantial ground for difference of opinion" as to whether or not an ERISA plaintiff is entitled to a jury trial. The only support plaintiff provides for such a difference of opinion is Adams, the district court case from Colorado. However, the Adams court itself recognized that nine federal circuits have found no such jury right in ERISA cases. There can be no "substantial ground for difference of opinion" when nine federal circuit courts, including the circuit in which this court sits, all have agreed that ERISA claims are equitable claims for which no right to a jury trial exists, in the face of one district court decision that reached a contrary conclusion. Accordingly, the court rejects plaintiff's request to certify this issue for interlocutory appeal. For the same reasons, the court also rejects plaintiff's request for an advisory jury.
III. CONCLUSION
Because plaintiff has failed to show why this court should disregard binding Seventh Circuit precedent, which explicitly prohibits an ERISA plaintiff's right to a jury trial, the court grants defendant's motion to strike plaintiff's jury demand.
|
49 Cal.2d 243 (1957)
CLARENCE RADAR et al., Appellants,
v.
ALPHA C. ROGERS, as Administratrix, etc., Respondent.
L. A. No. 24421.
Supreme Court of California. In Bank.
Oct. 30, 1957.
Gray, Glass, Allen & Ransom, Dudley Gray and Gray, Glass & Allen for Appellants.
Ball, Hunt & Hart and Loyal C. Pulley for Respondent.
SCHAUER, J.
Plaintiffs appeal from a judgment entered after a demurrer to their second amended complaint was sustained without leave to amend. Plaintiff Radar was allegedly injured and the property of plaintiffs Walter J. Henry and Catherine Henry damaged by the negligence of George Rogers, since deceased. The question is whether the action is barred by the following provision of section 714 of the Probate Code: "When a claim is rejected either by the executor or administrator ... written notice of such rejection shall be given ... to the holder of the claim or to the person filing or presenting it, and the holder must bring suit in the proper court against the executor or administrator, within three months after the date of service of such notice if the claim is then due ... [or] the claim shall be forever barred." [fn. 1]
At the time plaintiffs' claims were presented to and rejected by the administratrix of the estate of George W. Rogers, the complaint in this action was already on file. At the time it was filed no personal representative of decedent had been appointed. The complaint named as defendants "John Doe and Jane Doe, as Administrator and/or Administratrix of the Estate of George Rogers, Deceased" and alleged "that the defendants John Doe and Jane Doe are sued herein as Administrator and/or Administratrix of the Estate of George Rogers, deceased, for the reason that the true name of the administrator and/or administratrix is unknown to the plaintiffs at this time." The complaint was not amended to allege the true name of the administratrix (who was appointed one year, less one day, subsequent to its filing) until more than three months after plaintiffs' claims were presented and rejected. We have concluded that inasmuch as the suit against *246 the fictitiously named personal representatives was on file at the time plaintiffs' claims were rejected, plaintiffs have substantially met the requirement of section 714 that they "bring suit ... within three months after the date of service of such notice [of rejection of their claims]." In the circumstances of this case, as hereinafter developed, the fact that the suit was on file not later than "three months after the date of service" of the notice of rejection is sufficient to defeat the plea in abatement and sustain the action.
Chronologically the factual situation is as follows:
December 15, 1952: The accident which gave rise to this action occurred. Rogers was killed in that accident.
March 11, 1953: Complaint was filed herein against "John Doe and Jane Doe, as Administrator and/or Administratrix of the Estate of George Rogers." As above set out more fully, it alleged as a ground for use of the fictitious names "that the true name of the administrator and/or administratrix is unknown to the plaintiffs at this time."
March 10, 1954: Defendant was appointed and qualified as administratrix.
March 12, 1954: Notice to creditors was first published.
August 12, 1954: Plaintiffs presented their claims to the administratrix. This presentation was timely within section 700 of the Probate Code (within six months after first publication of notice to creditors).
August 20, 1954: The administratrix gave notice of rejection of plaintiffs' claims. (It thus appears that defendant had notice of, and opportunity to voluntarily approve and pay, plaintiffs' claims; this fact becomes important, as is hereinafter developed.)
February 21, 1955: Plaintiffs filed a first amended complaint which named "Alpha C. Rogers, as Administratrix of the Estate of George W. Rogers," as defendant.
Defendant did not at this time plead the bar of the statute as a defense; instead she demurred to this complaint generally and specially, specifying as grounds that it failed to state facts constituting a cause of action and that it was uncertain, ambiguous and unintelligible in that it did not appear therefrom whether a claim had been filed in the estate proceeding. The demurrer was sustained with leave to amend.
April 4, 1955: Plaintiffs filed a second amended complaint alleging the presentation and rejection of their claims.
Defendant's demurrer to this second amended complaint was used as a vehicle for points and authorities which raised *247 the contention that the suit was barred by limitation because it was not instituted after, and within three months after, the rejection of the claims, as assertedly required by section 714. Such demurrer was sustained without leave to amend.
[1] The so-called amended complaints are, speaking technically, by code definition, supplemental complaints; that is, they allege "facts material to the cases occurring after the former complaint." (Code Civ. Proc., 464; see California etc. Co. v. Schiappa- Pietra (1907), 151 Cal. 732, 742-743 [91 P. 593].) From the second amended (or supplemental) complaint it appears that after, rather than before, this action was filed plaintiffs took the essential (to recovery of judgment) step of presenting their claims to the administratrix. [fn. 2]
[2] It has been said that "The general rule is that where an action is prematurely brought, and the original complaint must fall, a supplemental complaint has no place as a pleading." (Walton v. County of Kern (1940), 39 Cal.App.2d 32, 34 [1] [102 P.2d 531], citing Morse v. Steele (1901), 132 Cal. 456, 458 [64 P. 690], and Lewis v. Fox (1898), 122 Cal. 244, 252 [54 P. 823].) But the rule of the Walton case is by no means absolute and universal in application. The statement quoted was made in connection with a holding that a supplemental complaint cannot aid an original complaint which was filed before a cause of action had arisen. Here there was a cause of action when the original complaint was filed. That cause of action accrued when the accident happened. Every fact essential to state a cause of action, at least in the absence of a plea in abatement, is well pleaded. [3a] As stated in Preston v. Knapp (1890), 85 Cal. 559, 561 [24 P. 811], "Appellant's counsel contend that, inasmuch as the complaint was not amended after the substitution of the executrix, by adding thereto an averment that the claim had been regularly presented to and rejected by the executrix, it is insufficient to support the judgment. But as no such objection was made in the court below, and as defendant expressly admitted on the trial that the claim had been presented to the executrix in due time, and that she had refused to act upon it, and made no objection on the ground that it was not presented in due form, it is too late to make the objection that the presentation and rejection of the claim were not alleged *248 in the complaint, for the first time, on this appeal. (Hentsch v. Porter, 10 Cal. 555; Coleman v. Woodworth, 28 Cal. 568; Bank v. Howland, 42 Cal. 130; Drake v. Foster, 52 Cal. 225.) [Here, we recognize that defendant argued the asserted defect on demurrer in the trial court. But the opinion continues:] The object of the statutory requirement of presentation and rejection of claims against estates, as a condition precedent to the commencement of suits upon them, is to save to estates of deceased persons the costs and expenses of useless suits,--suits to recover what would have been allowed and paid by the executor or administrator without suit. The merits of such claims do not depend in any degree upon their presentation and rejection before suit."
At the time the complaint in the case at bar was filed, as is obvious from the facts above related, the claim here had not, and could not have, been presented to the personal representative of decedent's estate because no personal representative had been appointed, and no claim had or could then have been filed "in the office of the clerk of the court from which letters issued" (Prob. Code, 700), for no letters had issued. Nevertheless, the cause of action was extant. [4] "A thing in action arising out of a wrong which results in physical injury to the person ... shall not abate by reason of the death of the wrongdoer." (Civ. Code, 956.) The cause of action against the decedent is the cause of action which survives against the personal representative. (Smith v. Finley (1952), 112 Cal.App.2d 599, 600 [1] [246 P.2d 989].) Realism requires us to recognize the practical problem which plaintiffs faced. They believed they had a cause of action and in the exercise of diligence they wished to have their complaint on file before any question as to the running of an applicable statute of limitations could arise. Accordingly, they filed this complaint alleging the facts as above related. The desirability of the procedure followed by plaintiffs is not a matter which requires consideration or comment; we pass only on the ultimate questions of law essential to disposition of this appeal.
Persuasive here is Security-First Nat. Bank v. Bennett (1936), 17 Cal.App.2d 641, 642-643 [62 P.2d 798]. There a complaint was filed against seven defendants, one of whom was deceased at the time the complaint was filed. Plaintiff presented his claim to the executrix of the deceased defendant on August 8, 1933, and the claim was rejected on August 23, 1933. An amended and supplemental complaint in which the *249 death of the deceased defendant was set out was filed on February 9, 1934. The appellate court rejected the contention that the action was barred by the provision of section 714 of the Probate Code that suit must be brought within three months after service of notice of rejection of claim. It is said that "The point now presented is highly technical and does not affect the substantial rights of the parties. Before the filing of the amended and supplemental complaint the executrix had ample notice of the claim and opportunity to approve it. There has been no miscarriage of justice. (Const., art. VI, 4 1/2.)" (See also Grant v. Sun Indemnity Co. (1938), 11 Cal.2d 438, 440 [80 P.2d 996].)
[5] Here too it would be highly technical to apply section 714 to bar this complaint, which was not filed too late but, at worst, prematurely. The substantial rights of the estate are not affected by the procedure followed by plaintiffs. The administratrix had ample opportunity, before the filing of the amended complaints, to approve plaintiffs' claims. The substance of the defect that the action had been brought before presentation and rejection of claim no longer existed when defendant by general demurrer to the amended and supplemental complaint sought to raise the issue. We do not believe that section 714 was ever intended to bar the action in this situation. [3b] We again quote the language of Preston v. Knapp (1890), supra, "The object of the statutory requirement of presentation and rejection of claims against estates, as a condition precedent to the commencement of suits upon them, is to save to estates of deceased persons the costs and expenses of useless suits,--suits to recover what would have been allowed and paid by the executor ... without suit." We add, "When the reason of a rule ceases, so should the rule itself." (Civ. Code, 3510.) Here, the reason of the rule ceases because it appears from the very pleading which defendant relies on to show the facts which she invokes, that before she raised the plea she had had, and had rejected, every benefit the statute gave her.
Further illustrating a liberal approach to the claims requirements of the Probate Code is Gregory v. Clabrough's Executors (1900), 129 Cal. 475, 479 [62 P. 72]. There an action was pending against Clabrough when he died. On his death a claim was duly presented to his executors but was neither approved nor rejected. It is held that "Section 1498 of the Code of Civil Procedure [now Prob. Code, 714] can have no application to a case like the present, where the action *250 was already pending when the claim was presented. All that is required of the plaintiff in such a case is simply to present his claim. (Code Civ. Proc., 1502 [now Prob. Code, 709].) The point intended seems to be that suit was not revived against the executors for over three months after the claim was rejected. But there is no provision of the code requiring that it should be revived within any definite period."
[6] The defense that suit was commenced before the presentation and rejection of claim "is simply matter of abatement--a defense which is not favored, and must be made by plea, and in proper time, or it is waived." (Bemmerly v. Woodward (1899), 124 Cal. 568, 574-575 [57 P. 561]; see also Verbeck v. Clymer (1927), 202 Cal. 557, 562 [5] [261 P. 1017]; Seches v. Bard (1932), 215 Cal. 79, 81 [2] [8 P.2d 835].) Here there is no occasion to consider whether the unfavored defense was waived, for it had ceased to exist at the time defendant sought to raise it. [7] "A consequence of the disfavor with which such pleas are viewed is that matter in abatement must exist at the time of filing of the pleading urging it" (1 Cal.Jur.2d 29-30, 3) and if the stated ground does not exist at the time of trial it may be disregarded. (Archibald v. Iacopi (1953), 120 Cal.App.2d 666, 669 [5] [262 P.2d 40].)
For the reasons above stated, we have concluded that the general demurrer was improperly sustained.
The judgment is reversed and the cause is remanded to the trial court with directions to overrule the general demurrer, and to entertain such further proceedings as may be appropriate.
Gibson, C.J., Carter, J., Traynor, J., and Spence, J., concurred.
SHENK, J.,
Dissenting.
It is the general rule, applicable in this case, that in order properly to commence an action there must first be a party then in existence capable of being sued and against whom a judgment may be entered. Secondly, facts must exist at that time which when alleged would be sufficient to support a judgment in favor of the plaintiffs. Here neither condition existed.
Section 714 of the Probate Code requires that the holder of a claim must "bring suit" in the proper court against the executor or administrator, within three months after the date of service of notice of rejection of claim or the "claim shall be *251 forever barred." Under section 350 of the Code of Civil Procedure an action is "commenced" when a complaint is filed. However, this section must be construed with section 312 of the Code of Civil Procedure. That section provides that "Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute." An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right. (Code Civ. Proc., 22.) A cause of action cannot exist in vacuo. In order that a civil action be prosecuted there must be an existing person against whom the processes of law can operate. (Tanner v. Estate of Best, 40 Cal.App.2d 442, 445 [104 P.2d 1084]; Bancroft's Code Pleading [1926], vol. 1, p. 169.) A complaint is based upon the theory that the plaintiff is entitled to judgment at the time of its filing. (Bank of Italy, etc. Assn. v. Bentley, 217 Cal. 644, 658 [20 P.2d 940].)
When this complaint was filed there was no one in existence against whom a judgment could be entered on the plaintiffs' claim. The necessary party defendant was the personal representative of the decedent's estate acting in her official capacity. (Cf. Prob. Code, 714, 573, 577; Mesmer v. Jenkins, 61 Cal. 151, 153.) There was no personal representative appointed at that time and therefore there was no one against whom the plaintiffs could have proceeded.
A complaint naming a nonexistent defendant is fatally defective. Suing the nonexistent personal representative under a fictitious name could not breathe life into the complaint. The fictitious name statute applies where the plaintiff is ignorant of the true name or identity of a real person or a real entity against whom he has a cause of action. In such case the plaintiff may designate the defendant "by any name" and when the true name is discovered he may amend his pleading accordingly. (Code Civ. Proc. 474.) The fictitious name statute was designed to stop the running of the statute of limitations on a cause of action where the identity of a real defendant is unknown at the time the complaint is filed. Where the complaint states a cause of action against such a real but unknown person the complaint may be amended even after the statute of limitations would have otherwise run. The action will then be deemed to have been commenced against *252 the defendant as of the time the original complaint was filed. (Hoffman v. Keeton, 132 Cal. 195 [64 P. 264]; Farris v. Merritt, 63 Cal. 118.)
The plaintiffs were not faced with any problem of having the general statute of limitations run on their claim. Section 353 of the Code of Civil Procedure, enacted in 1872, provides: "... If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives, after the expiration of that time, and within one year after the issuing of letters testamentary or of administration." The fact that there was no executor or administrator against whom they could proceed could not prejudice the plaintiffs insofar as the statute of limitations was concerned. It was tolled regardless of the time intervening between the death of the decedent and the appointment of his personal representative. (Hibernia S. & L. Society v. Boland, 145 Cal. 626 [79 P. 365]; Danglada v. De La Guerra, 10 Cal. 386, 387.) If the delay in the commencement of probate proceedings caused them any hardship the plaintiffs were not without a remedy. They could have had an administrator appointed under the provisions of section 422 of the Probate Code and presented their claim to him.
Once an administratrix was appointed, however, the plaintiffs were required to be vigilant in presenting their claim. This they did. The rejection of their claim was sufficient to put them on notice that under the law prompt action was required to enable them to pursue their right of action against the estate. This they did not do. They did not sue within due time after the rejection of their claim.
Section 714 of the Probate Code constitutes a special or short-term statute of limitations. (Cowgill v. Dinwiddie, 98 Cal. 481, 485 [33 P. 439]; Benedict v. Haggin, 2 Cal. 385, 387; Estate of Wilcox, 68 Cal.App.2d 780, 785 [158 P.2d 32]; Thayer v. Fish, 49 Cal.App.2d 618, 620 [122 P.2d 358]; San Francisco Bank v. St. Clair, 47 Cal.App.2d 194, 201 [117 P.2d 703]; Laukkare v. Abramson, 9 Cal.App.2d 447, 449 [50 P.2d 478].) It does not begin to run until after notice of rejection of the claim, or, at the claimant's election, until 10 days after presentation of claim without any action having been taken thereon. (Prob. Code, 712.) Here the claim of the plaintiffs was rejected on August 20, 1954, and the short-term statute of limitations commenced to operate on that date. Statutes *253 of limitation are recognized as being "vital to the welfare of society ... they promote repose by giving security and stability to human affairs ... they stimulate to activity and punish negligence." (Wood v. Carpenter, 101 U.S. 135, 139 [25 L.Ed 807], quoted with approval in Neff v. New York Life Ins., 30 Cal.2d 165, 175 [180 P.2d 900, 171 A.L.R. 563].) Generally it is held that as between parties acting in their own right the plea of the statute of limitations is a personal privilege. It may be waived and if not asserted, is deemed to have been waived. However, the administratrix, as here, is held to act not in her own right but as trustee for the benefit of creditors and heirs. She possesses no personal privilege to waive the defense of the statute. (Fontana Land Co. v. Laughlin, 199 Cal. 625, 636-637 [250 P. 669, 48 A.L.R. 1308]; Reay v. Heazelton, 128 Cal. 335, 338-339 [60 P. 977]; Boyce v. Fisk, 110 Cal. 107, 117 [42 P. 473]; Hurlimann v. Bank of America, 141 Cal.App.2d 801, 806 [297 P.2d 682]; Bryson v. Hill, 107 Cal.App. 158, 160 [290 P. 52].) She could not have waived the defense that section 714 of the Probate Code barred this action. That section is declarative of a public policy of the state for the efficient administration and the prompt settlement of estates for the benefit of heirs and beneficiaries as well as creditors. Its provisions are comparable to the three months' limitation provided in section 580a of the Code of Civil Procedure for the commencement of an action for a deficiency judgment. The provisions of that section have been held to be part of a legislative plan to lighten the burdens of trust-debtors and they may not be waived as they are not mere personal rights for the benefit of individuals. (Hatch v. Security- First Nat. Bank, 19 Cal.2d 254, 259 [120 P.2d 869]; California Bank v. Stimson, 89 Cal.App.2d 552, 554-555 [201 P.2d 39].) The time provided in the section is reasonable. The Legislature had the power to prescribe the term of the limitation. The language it employed leaves no room for doubt. If the procedure prescribed is not followed the claim is "forever barred."
In order to state a cause of action against the estate a necessary prerequisite was that the claim be first presented to the personal representative of the estate and that it be rejected, or be deemed rejected by operation of law (Prob. Code, 712). Prior to such rejection no cause of action could be stated. It is the general rule that where an original complaint upon a rejected claim fails because the action is prematurely brought, a supplemental complaint has no place as a pleading to sustain *254 the action. (Morse v. Steele, 132 Cal. 456, 458 [64 P. 690]; Walton v. County of Kern, 39 Cal.App.2d 32, 34 [102 P.2d 531].) There are no circumstances shown here which would justify a modification of this rule on the grounds of estoppel (cf. Grant v. Sun Indemnity Co., 11 Cal.2d 438, 440 [80 P.2d 996]) or waiver (cf. Bollinger v. National Fire Ins. Co., 25 Cal.2d 399, 406 [154 P.2d 399]) or other recognized grounds. The cases of Gregory v. Clabrough's Executors, 129 Cal. 475, 479 [62 P. 72], Preston v. Knapp, 85 Cal. 559, 561 [24 P. 811], and Security First Nat. Bank v. Bennett, 17 Cal.App.2d 641, 642-643 [62 P.2d 798], cited in the majority opinion, are distinguishable on their facts.
The majority opinion states that "it appears from the very pleading which defendant relies on to show the facts which she invokes, that before she raised the plea she had had, and had rejected, every benefit the statute gave her." But the benefits the statute gave the administratrix were not merely to have the opportunity of approving or rejecting a claim before suit may be brought thereon. Other benefits and duties were specifically provided for. The statute gave the administratrix a right to consider that at the expiration of three months from the service of notice of rejection of the plaintiffs' claim no action could thereafter be brought. Whether the substantial rights of the estate were affected is not the issue. The legislative concern for prompt settlement of estates is clearly expressed. The rights given to creditors and claimants must be pursued as provided by law. It cannot be said that the administratrix was dilatory in presenting her objections or that she had an opportunity to object at a time when the plaintiffs could have amended their complaint or when they could have dismissed and filed anew. She had no right or privilege to waive her objections. Her objections were in the nature of a plea in bar and not in abatement. The trial court properly sustained her demurrer to the second amended complaint without leave to amend.
For the foregoing reasons and for the additional reasons stated in the majority opinion of the District Court of Appeal of the Second District, Division Two (Cal.App.), 302 P.2d 910, I would affirm the judgment.
McComb, J., concurred.
Prob. Code, 707: "All claims ... for damages for physical injuries ... or injury to property ... must be filed or presented within the time limited in the notice [to creditors] ..."
NOTES
[fn. 1] 1. See also Prob. Code, 716: "No holder of a claim against an estate shall maintain an action thereon, unless the claim is first filed with the clerk or presented to the executor or administrator [with an exception not here material]."
[fn. 2] 2. The notice to creditors requires "all persons having claims against the decedent to file them ... in the office of the clerk of the court from which letters issued, or to present them ... to the executor or administrator ..." (Prob. Code, 700.)
|
91 Wn.2d 36 (1978)
586 P.2d 482
JERRY O. HOUSER, Petitioner,
v.
THE CITY OF REDMOND, Respondent.
No. 44846.
The Supreme Court of Washington, En Banc.
November 16, 1978.
John P. Cogan, Edwards & Barbieri, Malcolm L. Edwards, and Charles K. Wiggins, for petitioner.
Richard J. Glein and Clinton, Fleck, Glein & Brown, for respondent.
*37 UTTER, J.
Petitioner, a former employee of the City of Redmond, sued Redmond, alleging interference with his contract of employment. His trial court award of $30,000 was reversed by the Court of Appeals, which held that he could not assert an interference claim against a party to the contract at issue. We affirm the judgment of the Court of Appeals, and hold that petitioner has failed to assert a legally sufficient claim against Redmond.
Houser is a former member of the Redmond Police Department and was terminated in June 1972 for recording the private conversations of fellow officers without their consent or knowledge, in violation of RCW 9.73.030. According to testimony of witnesses at petitioner's civil service hearing, the recordings were designed to provide him with a record of the derogatory remarks made by fellow officers about the chief of police and others. After making the recordings, he would inform those who had made the derogatory remarks of the existence of the recordings. This was followed by a warning that the recordings would be delivered to the chief of police if the persons whose remarks had been recorded ever caused the petitioner any difficulty.
Petitioner's recording practices engendered some hostility among his fellow officers. On a Saturday in April 1972, the head of the detective division, off duty at the time, broke into petitioner's locker and applied acid to the tape recorder. Two of his assistants, also off duty, witnessed the incident, while a fourth officer arrived on the scene just after the destruction was accomplished. After discovering the destruction, the petitioner reported it, and the chief of police instituted an investigation. He routinely appointed the head of the detective division to conduct the investigation with the assistance of the two previously mentioned assistants. Thus, the parties in fact responsible for the destruction were in charge of the investigation.
In the course of investigation proceedings, petitioner voluntarily surrendered a tape and the recorder. That tape contained some of the illegally recorded conversations. *38 When the chief became aware that petitioner's recording habits violated state law, he dismissed him from the force. Plaintiff appealed the dismissal to the Civil Service Commission. The commission held a hearing to review the propriety of the dismissal at which witnesses testified regarding petitioner's recording habits. The progress of the investigation into the vandalism of his locker and recorder, though not directly at issue in the proceedings, was briefly the subject of discussion at the hearing. The head of the detective division falsely testified that he had been unsuccessful in solving the break-in.
The Civil Service Commission determined that petitioner's dismissal was the appropriate and proper disciplinary action for his law violations. He appealed this decision to the Superior Court, which affirmed it.
The true facts surrounding the break-in were beginning to unravel about this time. Near the time of the hearing, the fourth police officer with information regarding the vandalism contacted the Redmond city attorney, purported to invoke the attorney-client privilege, and related the details of the break-in incident. The city attorney took no action on this information for some time. Finally, at the urging of the fourth officer, a meeting was held at which that officer, the city attorney, the mayor, and the chief of police were present.
Eventually, after further delay, the information regarding the break-in became public. The detective who committed the break-in resigned from the force, and the three officers who had knowledge of the break-in, and who had participated in the aftermath, were demoted with a reduction in pay.
Based upon the revelations regarding the break-in, petitioner moved to vacate the Superior Court judgment and for a remand to the Civil Service Commission for further proceedings. The superior court judge ruled orally that the judgment would be vacated and the case remanded, but died before a formal order was entered. Plaintiff withdrew *39 his motion to vacate at that time and instead filed this independent action in tort.
This case was filed solely against the City, and not against any of the participants in these events individually. The only theory presented at trial, and the only theory submitted to the jury, was that of interference with petitioner's employment contract. Thus, the only threshold legal issue at trial was whether the City of Redmond itself could be held liable for interfering with his contract of employment with the City. Denying a motion for summary judgment, the trial judge instructed the jury that petitioner could legally recover from the City on the interference theory. The jury returned a verdict for $30,000 in favor of petitioner, which award was reversed by the Court of Appeals. He appealed to this court, alleging that the Court of Appeals erred in concluding as a matter of law that he cannot recover from the City on this interference claim. Because we affirm the Court of Appeals and hold that petitioner cannot recover from Redmond for tortious interference, we do not reach numerous other issues which were the subjects of appeals and cross appeals.
[1] Recovery for tortious interference with a contractual relation requires that the interferor be an intermeddling third party; a party to a contract cannot be held liable in tort for interference with that contract. Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964); Hein v. Chrysler Corp., 45 Wn.2d 586, 277 P.2d 708 (1954). This limitation certainly does not leave persons remediless against parties to a contract; the remedy available against a party to the contract for wrongful action on its part, or on the part of its agents acting within the scope of their employment, is an action for breach of contract. Hein v. Chrysler Corp., supra.
Petitioner seeks to avoid the force of Hein and the logic of the rule that one cannot be held liable for inducing oneself to breach a contract, but only for actually breaching that contract, by asserting that Redmond is not directly liable, but is instead responsible under respondeat superior *40 for the actions of its employees. Thus, petitioner asserts, the employees constitute the requisite third parties for a valid interference claim.
[2] The employees are only third parties if they were not acting within the scope of their employment. A municipal corporation, like any corporation, can act only through its agents, and when its agents act within the scope of their employment their actions are the actions of the city itself. See P. Mechem, Outlines of the Law of Agency §§ 361, 362 (4th ed. 1952). Thus, if Redmond's employees were acting within the scope of their employment, their actions were Redmond's, and no interference claim will lie.
If, on the other hand, the actions of the employees were not within the scope of employment, then they are third parties potentially liable in their individual capacities. However, if these actions were outside the scope of employment, their actions are not chargeable to Redmond and Redmond cannot be held liable under the doctrine of respondeat superior. Hein, at 600; Nelson v. Broderick & Bascom Rope Co., 53 Wn.2d 239, 332 P.2d 460 (1958); 2 F. Harper & F. James, The Law of Torts § 26.6, at 1374 (1956).
Thus, under no set of circumstances can Redmond be liable for interference here. It is unnecessary to decide whether each action of which petitioner complains is within or outside the scope of employment; it is sufficient to note that each action cannot be both within and outside that scope simultaneously. If the employees were within the scope of their employment, the interference claim falls for lack of a third party; petitioner's remedy, if his discharge was wrongful, is in contract. If the employees were not within the scope of their employment, they might be individually liable for interference, but Redmond bears no responsibility for their private actions. Because petitioner brought only an interference claim, and named only Redmond as a defendant, the Court of Appeals correctly concluded that he has not stated an actionable claim in this lawsuit.
*41 Our recent decision in Cherberg v. Peoples Nat'l Bank, 88 Wn.2d 595, 564 P.2d 1137 (1977), is not at variance with these principles. Although the parties to that lawsuit were also parties to a contract, it was not that contract upon which the claim of interference was based. We held in that case that the defendant's intentional and outrageous action in breaching that contract interfered with the business relationship that the plaintiffs had with their customers. The defendant was a third party as to that relationship, and thus not subject to contractual actions based upon it. Here, in contrast, petitioner had a potential action against Redmond for breach of the same contract which has been the subject of this interference claim, if he could have proved discharge in violation of that contract. He did not assert that claim, but instead asserted one which does not constitute adequate legal grounds for recovery.
Affirmed.
WRIGHT, C.J., and ROSELLINI, HAMILTON, STAFFORD, BRACHTENBACH, HOROWITZ, DOLLIVER, and HICKS, JJ., concur.
|
510 U.S. 968
Brooksv.Greer, Warden.
No. 93-5999.
Supreme Court of United States.
November 8, 1993.
1
Appeal from the C. A. 7th Cir.
2
Certiorari denied.
|
701 F.Supp. 229 (1988)
KORU NORTH AMERICA, Plaintiff,
v.
UNITED STATES, Defendant.
Court No. 88-04-00293.
United States Court of International Trade.
November 23, 1988.
*230 Coudert Brothers, Robert L. Eisen and Michelle S. Benjamin, New York City, for plaintiff.
John R. Bolton, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, Intern. Trade Field Office, Commercial Litigation Branch, U.S. Dept. of Justice Michael P. Maxwell and Barbara Epstein, New York City, of counsel, Karen P. Binder, U.S. Customs Service, New York City, for defendant.
OPINION
TSOUCALAS, Judge:
Plaintiff, Koru North America, brings this action to contest the United States Customs Service's (Customs) exclusion of frozen Hoki fillets that entered through the port of Seattle under entry # XXX-XXXXXXX-X on February 23, 1988. Upon determining that plaintiff improperly marked the subject merchandise as a "Product of New Zealand," rather than as a "Product of the Soviet Union," for country of origin purposes, Customs issued a Notice of Redelivery with respect to these goods. Plaintiff claims that since the product was correctly marked, Customs improperly issued the Notice of Redelivery.
Background
The fish, known as the "New Zealand Hoki,"[1] were caught off the shores of New Zealand within its Exclusive Economic Zone (EEZ).[2] They were caught by ships chartered by Fletcher Fishing, Ltd. (Fletcher), the largest fishing company in New Zealand, while flying the flags of New Zealand, Japan and the Union of Soviet Socialist Republic.[3] The fish were beheaded, detailed, eviscerated and frozen aboard the ships within New Zealand's EEZ, then landed and offloaded in New Zealand where they were commingled and stored under Fletcher's control. The initial processing aboard the vessel had to conform with all of New Zealand's fishing laws and regulations.
Once ashore, the fish were inspected and certified by the New Zealand Ministry of Agriculture and Fisheries as being of New Zealand origin, fit for human consumption and caught in conformity with the requirements imposed by New Zealand.
The fish were then sent to Korea for further processing; they were thawed, skinned, boned, trimmed, glazed, refrozen and packaged for exportation to the United States.
The merchandise arrived in the United States in cartons marked "Product of New Zealand." Customs issued a Notice of Redelivery against the merchandise in its condition marked as imported. Customs' position is that the fish caught and commingled should be labeled "Product of the Soviet Union, Japan and New Zealand," based on the doctrine of the Law of the Flag. It *231 reasons that since the EEZ is outside the territorial waters of a country, it is the high seas, and that fish caught on the high seas are products of the country of the flag of the catching vessel. Plaintiff, on the other hand, claims that the fish are products of New Zealand since they were caught within New Zealand's EEZ on behalf of a New Zealand company, and were at all times owned by that company.
At the hearing of this action and in their briefs, the parties presented arguments as to whether the fish are a product of New Zealand or a product of the Soviet Union, but sought to reserve judgment on the issue of whether the product was substantially transformed in South Korea, thereby rendering it a product of South Korea for country of origin purposes.
At the direction of the Court at oral argument, the parties briefed the issue pertaining to substantial transformation and agreed that the fish were substantially transformed in South Korea. The following discussion sets forth the Court's rationale for finding that substantial transformation occurred in South Korea.
Discussion
A. The Law of the Flag
On the high seas, the country of origin of fish is determined by the flag of the catching vessel. Procter & Gamble Mfg. v. United States, 60 Treas. Dec. 356, T.D. 45099 (1931), aff'd, 19 CCPA 415, C.A. D. 3488, cert. denied, 287 U.S. 629, 53 S.Ct. 82, 77 L.Ed. 546 (1932).[4] In international law, a ship on the high seas is considered foreign territory, functionally, "a floating island of the country to which [it] belongs." Thompson v. Lucas, 252 U.S. 358, 361, 40 S.Ct. 353, 64 L.Ed. 612 (1920). See also Robbins (Inc.) v. United States, 47 Treas. Dec. 261, T.D. 40728 (1925) (fish are characterized by their first taking).
Plaintiff maintains that "the maritime principle that the nationality of a vessel on the `high seas' is determined by the flag it flies, is of no relevance to this particular controversy, because the fish in question were caught in the EEZ by registered New Zealand fishing vessels on behalf of the New Zealand industry and against its share of the total allowable catch."[5]Plaintiff's Reply in Support of its Motion for Partial Summary Judgment, and in Opposition to Defendants' Cross-Motion for Partial Summary Judgment and Dismissal at 18 (Plaintiff's Reply). Plaintiff additionally claims that the foreign ships became de facto "New Zealand fishing vessels" despite being foreign owned and flagged because: (1) the fish were caught by vessels under charter to the New Zealand company, Fletcher, for the specific purpose of enabling Fletcher to exhaust its Hoki quota allocation; (2) the vessels were controlled by Fletcher and New Zealand laws; Fletcher owned all the fish caught and processed by the vessels; the vessels, which were temporarily imported for home consumption whereby Fletcher entered into a deed of covenant of NZ $700,000.00 for each vessel, were thought of as New Zealand fishing vessels by the New Zealand Ministry of Agriculture; and (3) the Director General consented to registration of the vessels as "New Zealand fishing vessels." Plaintiff's Brief at 24-27. Thus, plaintiff asserts that the proper country of origin is New Zealand.
However, plaintiff's fiction of "de facto New Zealand vessels" ignores that even though the ships were registered in New Zealand for purposes of fishing within *232 the EEZ, the ships maintained their Soviet registry, meaning, they flew the flag of the Soviet Union, applied Soviet law on board ship, and remained part of the sovereignty of the Soviet Union. The law of the flag has been found to "supersede[] the territorial principle ... because [the ship] `is deemed to be a part of the territory of that sovereignty [whose flag it flies], and not to lose that character when in navigable waters within the territorial limits of another sovereignty,'" Lauritzen v. Larsen, 345 U.S. 571, 585, 73 S.Ct. 921, 929, 97 L.Ed. 1254 (1953) (quoting United States v. Flores, 289 U.S. 137, 155-59, 53 S.Ct. 580, 584-86, 77 L.Ed. 1086 (1933)), and "must prevail unless some heavy counterweight appears." Id. 345 U.S. at 586, 73 S.Ct. at 930. Cf. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Gulf Trading & Transportation Co. v. M/V Tento, 694 F.2d 1191 (9th Cir. 1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2091, 77 L.Ed.2d 301 (1983) (sufficient and substantial contacts with the United States satisfy the "heavy counterweight" requirement). Therefore, since the subject merchandise was caught and initially processed on Soviet territory, it originates from that country.
Plaintiff misinterprets the application of rights conveyed through the establishment of an EEZ.[6] The authority for establishing an EEZ derives from the United Nations Convention on the Law of the Sea (LOS Convention) where each country is provided with certain sovereign rights within its EEZ, specifically "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or nonliving...." Article 56 of the LOS Convention. These rights need not be claimed by a coastal State to exist. See Art. 55, LOS Convention.
In interpreting the LOS Convention, plaintiff correctly observes that the fish are "natural resources within an area under New Zealand's sovereign jurisdiction and authority [i.e., the EEZ]," but carefully and correctly refrains from going so far as to state that the fish are natural resources of New Zealand. The distinction is significant because, according to the LOS Convention, a State is not provided with absolute sovereignty over the living natural resources within an EEZ. The State is only provided with "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources...." Id. "Sovereign rights" are not the equivalent of "sovereignty."[7] The State, therefore, possesses nothing more than a preferential fishing zone within its EEZ, which has been recognized as:
not compatible with the exclusion of all fishing activities of other States. A coastal State entitled to preferential rights is not free, unilaterally and according to its own uncontrolled discretion, to determine the extent of those rights. The characterization of the coastal State's rights as preferential implies a certain priority, but cannot imply the extinction of the concurrent rights of other States.... The coastal State has to take into account and pay regard to other States....
1974 I.C.J. 1, 27.
Even though plaintiff would like this Court to equate the EEZ with the territorial sea, such a conclusion would be clearly improper, as certain elements of the high seas are retained in an EEZ. Specifically, the "freedoms ... of navigation and *233 overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms...." Art. 58 of the LOS. In addition, a State is free in its territorial sea to prohibit fishing by foreigners, monopolize the fishing resources and the exploitation thereof, and fully control those waters. Within an EEZ, however, the State retains control of the fishing resources only for the purpose of optimum utilization and to prevent the unnecessary exhaustion of resources.[8] In this regard, although the State retains the exclusive right to determine the amount of allowable catch, it is obligated to allocate the surplus among the other States. Art. 62 of the LOS. Consequently, it would be improper to characterize fish caught within a country's EEZ as originating from that country on the basis of their being caught within the EEZ.
The extra grant of jurisdiction to a State through its EEZ must be considered in light of the purposes of the marking statute. In ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. Procter & Gamble, 19 CCPA at 422 (citing Burnet v. Chicago Portrait Co., 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587 (1932)).
The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940), where the court stated that:
Congress intended that the ultimate purchaser should be able to know by an inspection of the marking on imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.
This purpose would be best served in the instant action by finding the fish to be products of the Soviet Union, Japan and New Zealand since the catching and initial processing occurred on the vessels of these countries.
Plaintiff claims the marking statute requires that the nexus among the fish, the registration of the vessels and New Zealand be considered in making a country of origin determination. The term "country of origin" is defined in the regulations as:
the country of manufacture, production, or growth of any article of foreign origin entering the United States.
19 C.F.R. § 134.1(b). The term "country" is defined as:
the political entity known as a nation. Colonies, possessions, or protectorates outside the boundaries of the mother country are considered separate countries.
19 C.F.R. § 134.1(a).
Plaintiff contends that neither of the above definitions squarely addresses the present situation. The Court disagrees. The fish in the instant action were caught beyond the boundaries of the mother country (New Zealand), i.e., in an area which is not within the sovereignty of New Zealand but where New Zealand merely possesses preferential fishing rights. Therefore, the fish are a product of the Soviet Union, Japan and New Zealand, provided they have not been substantially transformed in South Korea.
B. Substantial Transformation
The marking statute, section 304 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1304 (1982 & Supp. III 1985) requires all articles imported into the United States to "be marked in a conspicuous place as legibly, indelibly, and permanently [as possible] ... to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article." 19 U.S.C. § 1304(a). The country of origin of an article is defined as "the country of manufacture, production, or growth *234 of any article of foreign origin entering the United States." 19 C.F.R. § 134.1(b). In the instant action, that country would be either New Zealand, because the fish were caught in its claimed EEZ, or the Soviet Union, since the catches were made on board a Soviet-flag vessel. However, an important exception exists to the marking statute. When "[f]urther work or material added to an article in another country [would] effect a substantial transformation", such other country will be the "country of origin" within the meaning the statute. Id. The Court finds the procedures performed upon the fish in South Korea to constitute a "substantial transformation" within the meaning of the statute.
The country of origin marking statute was intended, inter alia, "to facilitate consumer purchasing decisions...." National Juice Products Ass'n v. United States, 10 CIT 48, 59 n. 15, 628 F.Supp. 978, 989 (1986). By indicating to consumers where a product was manufactured, the statute helps informed and discriminating buyers decide either "to buy or refuse to buy [a product] ... if such markings should influence [their] will." Id. at 58, 628 F.Supp. at 988 (citations omitted). Courts have developed several tests in determining whether substantial transformation has occurred. The most significant is the "name, character or use" test.[9]Anheuser-Busch Brewing Ass'n v. United States, 207 U.S. 556, 562, 28 S.Ct. 204, 206, 52 L.Ed. 336 (1907). A substantial transformation occurs where articles "lose their identity as such, and become new articles having ... a new name, character, and use...." United States v. Gibson-Thomsen Co., 27 CCPA 267, 270, C.A.D. 98 (1940). The "name, character and use" test is "entitled to continued adherence in view of its affirmance in recent opinions by our appellate court." Ferrostaal Metals Corp. v. United States, 11 CIT ___, ___, 664 F.Supp. 535, 538 (1987) (citing Torrington Co. v. United States, 3 Fed.Cir. (T) 158, 764 F.2d 1563 (1985); Belcrest Linens v. United States, 2 Fed.Cir. (T) 105, 741 F.2d 1368 (1984)).
The Customs Service has incorporated the name, character or use test of Gibson-Thomsen in its regulations. See 19 C.F.R. § 134.35. A processor who converts an imported article into a different article having a new name, character or use has substantially transformed the imported article, thereby requiring the markings on the product to reflect this change. Id.
The article need not experience a change in name, character and use to be substantially transformed. United States v. International Paint Co., 35 CCPA 87, C.A.D. 376 (1948). Only one of the three prongs needs to be satisfied for a product to achieve substantial transformation. The name element, however, has received less weight and is considered "the weakest evidence of substantial transformation." National Juice Products, 10 CIT at 59, 628 F.Supp. at 989; cf. Superior Products Co. v. United States, 11 CIT at ___, 669 *235 F.Supp. at 478 (changes in use or character were the predominant elements).
In the present action, the criteria for substantial transformation have been satisfied. The fish's name has been changed as the result of the processing method which occurred in Korea. When the fish arrive in Korea they are known as "headed and gutted" Hoki, as they have been beheaded, de-tailed and eviscerated. Plaintiff's Response to Defendant's Statement of Material Facts as to Which There is No Genuine Issue to be Tried, Exhibit A, Reply Affidavit of D.J. Easton (Easton Reply Affidavit), para. 2. The fish fillets exported from Korea to the United States, on the other hand, are known as "individually quick-frozen (IQF) fillets." Id. at para. 5(e). While change of name is not dispositive, "satisfaction of the name criterion" is evidence in favor of a finding of substantial transformation. Ferrostaal Metals, 11 CIT at ___, 664 F.Supp. at 541.
The fish's character, after its journey through Korea, is also vastly different from what it was upon departure from New Zealand. Plaintiff's Reply Brief at 9. The fish arrive in Korea, with the look of a whole fish, albeit without heads, tails or viscera, see id. at 9 (citing Easton Reply Affidavit, paras. 5(e) and (g)), whereas the fish that are exported from Korea have no skin or bones, "no longer possess the essential shape of the fish ... have been trimmed of jagged edges, fat lines and impurities, glazed to preserve their moisture and thereby enhance their shelf life, frozen to protect the fish from spoilage and finally, packaged."[10]Id. at 9. Additionally, the fillets are considered discrete commercial goods and are sold in separate areas and markets. Id. at 10. Unlike the product in National Juice Products, the fresh article here (the headed and gutted fish) undergoes its transformation into a processed retail product (fillet) in the second country (Korea). These changes go to the fundamental nature and character of the fish; the fish have been transformed, both in name and in character. Therefore, a new article of commerce has been created.
Moreover, as plaintiff points out, they have different tariff classifications. Plaintiff's Reply Brief at 10. Even though "proper tariff classification is not dispositive of whether the manufacturing process necessary to complete an article constitutes a substantial transformation," Torrington Co., 3 Fed.Cir. (T) at 167, 764 F.2d at 1571 (citing Belcrest Linens, 2 Fed.Cir. (T) at 110, 741 F.2d at 1373), different tariff classifications are, nevertheless, additional evidence of substantial transformation. Ferrostaal Metals, 664 F.Supp. at 541.
Conclusion
For the above reasons this Court finds that the Hoki were substantially transformed in South Korea and are thus a product of South Korea and should be properly marked as such. Additionally, had fish not been substantially transformed in South Korea they would have properly been marked as products of the Soviet Union, Japan and New Zealand.
JUDGMENT
This case having been duly submitted for decision and the Court, after due deliberation, having rendered a decision herein, now, in conformity with said decision,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED: that the subject merchandise was substantially transformed in South Korea; and it is further
ORDERED, ADJUDGED, and DECREED: that the United States Customs Service shall enter the subject merchandise if properly marked a product of South Korea; and it is further
ORDERED, ADJUDGED, and DECREED: that plaintiff's motion for partial *236 summary jugment is denied; defendant's cross-motion for partial summary judgment is also denied; and except as provided above, this action is hereby dismissed.
NOTES
[1] The scientific name is Macruronus Novaezelandiae Hector, see Plaintiff's Brief in Support of its Motion for Partial Summary Judgment at 6-7 [hereinafter Plaintiff's Brief].
[2] New Zealand defines its EEZ as those areas of sea, beyond and adjacent to the territorial sea, having as their outer limits a line measured seaward from the defined baseline every point of which is 200 nautical miles from the nearest point of the baseline. Id. at 7. New Zealand's definition is in accordance with the definition provided in the United Nations Convention on the Law of the Sea, A/Conf. 62/122, U.N. Sales No. E.83.V.5, Articles 55, 57 (1983).
[3] Although Customs originally determined that the cartons should be marked only as a "Product of the Soviet Union," they have subsequently revised their position to require that the goods be marked as a "Product of the Soviet Union, Japan and New Zealand" because the fish were caught by vessels flying the flags of those countries. References in this opinion solely to the Soviet Union will, for the sake of brevity, be assumed to encompass Customs' latter intent.
[4] In Procter & Gamble, the merchant ships of a foreign country were found to be foreign territory, and whale oil produced upon them in the Antarctic Ocean under contract to a U.S. company was considered produced in a foreign country within the meaning of the statute involved. 19 CCPA at 417.
[5] Under the quota management system implemented by New Zealand in the New Zealand Fisheries Act 1983 and the Fisheries Amendments 1986, Individual Transferable Quota (ITQ) is first allocated by the New Zealand government to individuals and companies comprising the New Zealand fishing industry in order to allocate that industry's access to the fishing resource within New Zealand EEZ waters, in furtherance of New Zealand's fishery conservation and management regime. See Plaintiff's Brief at 8; Plaintiff's Statement of Material Facts as to Which There is no Genuine Issue to be Tried at 5, para. 24.
[6] The concept of an EEZ has been given legitimacy in international law. The number of States claiming such a zone, fifty-nine as of 1985, represents over two-thirds of all coastal States, including all industrial maritime States. Most EEZs generally conform to the regime set out in the United Nations Convention on the Law of the Sea and such widespread acceptance provides the necessary elements for international legal acceptance. The United States not only proclaims its own EEZ, but also recognizes the claims of foreign nations to an EEZ. Proclamation No. 5030, 48 Fed.Reg. 10,605 (1983); United States v. Rioseco, 845 F.2d 299 (11th Cir.1988).
[7] The characterization of the rights of the coastal State within an EEZ as "sovereign rights" rather than as "sovereignty" represents a deliberate compromise between the territorial and the jurisdictional theorists of the time. See O'Connell, The International Law of the Sea, Vol. 1 at 575 (1982).
[8] See generally Comment, The Exclusive Economic Zone: Its Development and Future in International and Domestic Law, 45 La.L.Rev. 1269 (1985); Oda, Fisheries Under the United Nations Convention on the Law of the Sea, 77 Am.J.Int'l L. 739 (1983); O'Connell at 553-79.
[9] Three other tests are manifest from caselaw: (1) The "article of commerce" test focuses on whether a "new article of commerce" has emerged from the operations performed on the imported article, see Carlson Furniture Industries v. United States, 65 Cust.Ct. 474, C.D. 4126 (1970); (2) The "essence" test which yields substantial transformation if the imported article is an integral part of the whole product with which it is combined, see Grafton Spools, Ltd. v. United States, 45 Cust.Ct. 16, C.D. 2190 (1960); The Diamond Match Co. v. United States, 49 CCPA 52, C.A.D. 796 (1962); and (3) the "value added" test which requires the imported article to contribute significantly to the value of the final product. See United States v. Murray, 621 F.2d 1163 (1st Cir.), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980).
The plethora of tests results from the cases on substantial transformation being "very product specific and ... often distinguishable on that basis, rather than by their statutory underpinnings." Superior Products Co. v. United States, 11 CIT ___, ___, 669 F.Supp. 472, 479 (1987). Courts have not adhered rigidly to a single test because of "the importance of focusing on the facts of each case." Coastal States Marketing, Inc. v. United States, 10 CIT 613, 615, 646 F.Supp. 255, 257 (1986), aff'd, 818 F.2d 860 (Fed.Cir.1987) (citing Belcrest Linens, 2 Fed.Cir. (T) at 109, 741 F.2d at 1372). Courts find it "difficult to take concepts applicable to products such as textiles and apply them to combinations of liquids or fabrication of steel articles." Superior Products, 11 CIT at ___, 669 F.Supp. at 479. Nonetheless, the Court will apply only the name, character or use test in this case.
[10] The decision in William Camp Co. v. United States, 24 CCPA 142, 144, T.D. 48623 (1936), is extremely persuasive: "[T]here are many varieties of fish that are caught upon the high seas and not within the territorial limits of any country. In such case, clearly the place where packed, as the term `packed' is used in [the relevant provision], would properly be considered the country of origin, and the words `Packed in [that country]' would clearly indicate the country of origin."
|
500 F.2d 575
*dResnickv.U. S.
74-1980
UNITED STATES COURT OF APPEALS Fifth Circuit
8/27/74
1
S.D.Fla.
AFFIRMED
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N
|
550 S.W.2d 749 (1977)
In the Interest of E. S. M.
No. 16812.
Court of Civil Appeals of Texas, Houston (1st Dist.).
April 21, 1977.
Rehearing Denied May 19, 1977.
*751 Martin J. Grimm, Houston, for appellant.
Bray & Watson, Robert V. Holland, Jr., Houston, for appellee; W. B. Irwin, Jr., Houston, of counsel.
PEDEN, Justice.
Wendy Golden appeals from a decree terminating her parental rights in favor of the petitioners, Lydia and William Baxter. Appellant contends that later decrees entered in this case ineffectively attempted to correct judicial errors and that the termination was unsupported by any evidence or was contrary to the great weight of the evidence.
Mr. and Mrs. Baxter, the appellees, brought this suit to terminate the parental rights of the appellant and of Lawrence Hue McClain to E.S.M., the child in question, so they could adopt him. By the time of the hearing they had kept him at the mother's request for more than two years. The trial judge announced his decision of termination of parental rights after a trial on the merits and appointed the appellees as managing conservators of the child. The written judgment subsequently entered, however, mistakenly decreed that "the parent-child relationship between Lawrence Hue McClain and Wendy Celeste Golden, a/k/a Angelina McClain be and is hereby terminated . . .." It also failed to recite that the defendant-appellant had been cited and had appeared. The appellant asserts that these two errors made the judgment invalid. We hold that the omission of a recital that the defendant had been cited and had appeared did not constitute error. It is clear that she did appear and participate fully in the hearing. The appellees filed a motion to enter a judgment nunc pro tunc reciting that the parent-child relationship between Lawrence Hue McClain and the appellant as parents and E.S.M., the child, was terminated; the trial court granted this motion on May 17, 1976, and the appellant perfected this appeal from that date under Rule 306b, Texas Rules of Civil Procedure. That purported nunc pro tunc decree was defective, however, because it contained no indication that it was being entered nunc pro tunc or that *752 the first judgment was being vacated, reformed, corrected, or amended. See City of West Lake Hills v. State ex rel City of Austin, 466 S.W.2d 722 at p. 726 (Tex.1971). A third decree has been signed while this case was on appeal; it contains recitals that the previous two judgments are vacated, and it corrects the errors noted in the first one. We base our review of this case on the third decree.
The appellant contests the validity of the original termination decree and the subsequent decrees in her first and second points of error. She also complains that the judgment was based on unverified pleadings, citing Tex.Fam.Code § 11.08(b). We hold that she waived this defect by not pointing it out by special exception or by filing a plea in abatement. Hays v. Old, 385 S.W.2d 464, 465 (Tex.Civ.App.1964, writ ref. n. r. e.); Rule 90, T.R.C.P.
Appellant argues that the mistakes in the original judgment constituted judicial errors, so they could not be corrected by a nunc pro tunc judgment entered more than 30 days after the entry of the original judgment.
A judicial error is one made in the rendition of the judgment, whereby an improper judgment is rendered; a clerical error occurs where the minutes of the court do not correctly recite the judgment actually rendered. A clerical error may be corrected at a subsequent term of court. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819 (1936); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). When the rendition of judgment is valid, the court has the power to correct any mistake or omission in the record of the judgment by entering a judgment nunc pro tunc. Rules 316 and 317, T.R.C.P.; Reavley & Orr, Trial Court's Power To Amend Its Judgments, 25 Baylor L.Rev. 191, 194 (1973).
In our case the trial judge rendered judgment at the close of the termination hearing when he said: "The parent-child relationship is terminated. The Petitioners are appointed managing conservators of the child." The failure of the original decree to correctly recite this was simply a clerical error made in the entry of the decree on the minutes of the court. It is clear that the parent-child relationship was terminated by the court's oral rendition at the end of the trial. We overrule the appellant's first two points of error.
In her third and fourth points the appellant complains that the trial court erred in terminating her parent-child relationship with E.S.M. because there is no evidence and insufficient evidence to sustain the trial court's findings in support of the order. These points are multifarious, but we will consider them. In deciding no evidence points, we view the evidence in a light most favorable to support the trial court's findings. Fisher Constr. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). Great weight points require a consideration of all the evidence.
The trial court made findings (under the numbers shown) that the appellant and the child's father had:
5. voluntarily left the child alone or in the possession of another, not the parent, without expressing an intent to return.
6. voluntarily left the child alone or in possession of another not the parent without expressing an intent to return, without providing for adequate support of the child and remained away for a period of at least three months.
7. knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.
8. engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.
9. failed to support the child in accordance with their ability during a period of at least one year.
10. and that the termination would be in the best interest of the child.
*753 Findings 7, 8, and 10 correspond with provisions (1) D, E, and (2), respectively, of the involuntary termination statute of the Texas Family Code, § 15.02 (1974). We review all of the evidence pertaining to these findings.
The termination hearing began on July 31, 1975. The first witness was the appellant, Wendy Golden, age 24. She is also known as Wendy Doherty and Angelina McClain. She identified Lawrence Hue McClain as father of her child, E.S.M. She describes her relationship with McClain as a common law marriage but says she also had a previous common law marriage to Henry Golden and has never been divorced. She has lived alone for the past four months after having lived with one Thomas Cox. Before that she was in the county jail for three months on a charge of criminal trespassing in a store; the charge was burglary, but she pleaded guilty to the reduced charge of trespassing. She has also been in jail twice for prostitution, once for carrying a pistol, once for theft, once for possession of marijuana, and once for possession of narcotics paraphernalia. Before her last jail sentence she lived a couple of places with Thomas Cox, and before that she was in jail for two months on the theft charge. She thinks she has been in jail seven to ten times. The child in question, E.S.M., was born on November 18, 1972. In that year she lived in the Kingston Apartments with Lawrence McClain. She doesn't recall that anyone else lived with them, but Johnny Price stayed there occasionally. When E.S.M. was born he lived there, as did a dog and a cat.
She voluntarily allowed Mr. and Mrs. Baxter to take E.S.M. because she was going to jail on one case and had other charges against her. She is now in sales work for Super Pretzel of Texas. She says she has worked sporadically as a prostitute and was doing so before her son's birth. She can give no estimate as to the number of times she has worked as a prostitute, and does not know whether it was more than 50. She can't explain how the child has blue eyes and blond hair when McClain is black. She has had two children besides E.S.M. Both of them died in their cradles within 48 hours after birth.
She has used amphetamines, L.S.D., marijuana, and has tried heroin. She said she believed the term "supercharging" meant the inhaling of marijuana smoke, then blowing it into the face of another. This testimony was elicited from her:
"Q Have you ever supercharged your son when you had him, seven months or younger, to put him to sleep so that he would stop crying?
A Possibly. I mean, he was in a room full of smoke, and I did smoke marijuana, yes.
Q Smoked marijuana almost continuously when you had him in your possession, did you not?
A Yes, sir, I did.
Q And used other drugs almost continuously while you had your son in your possession, did you not?
A Yes, sir, I did. I told the reasons why I gave him up at the time because I could not handle him.
Q Well, didn't you just previously testify that one of the reasons that you gave him up, or at least implied one of the reasons you gave up was because you were afraid of his welfare?
A Yes, sir. That is another reason. There are many reasons that I was afraid for him. There are many reasons why his birth certificate is not in my real name. There are many reasons why he was placed out of town, not with dope fiends and not with any people that I was around, so that he would not end up with the welfare. I thought that I placed him in good hands with an oral agreement that once all of my cases, and all of my problems, should they be drugs, should they be illegal, until I was stable enough to take my son back, which I am now, that then I could come back and get him. That was the oral agreement.
*754 Q When was the last time that you were at the Baxters' home and visited with the child?
A Approximately, two weeks ago.
Q Had you been using any drugs before you arrived?
A I believe I had smoked some marijuana, one joint of marijuana, before I arrived.
Q Just previous to arriving and visiting with your son?
A Yes, sir."
She placed E.S.M. with the Baxters when he was six or seven months old. In the two years he has been with them she has visited with him very few timesabout five. Since he has been with the Baxters he has never appeared mistreated. He is well fed and appears to be receiving all the love and affection of any normal home. She once tried to give him a $100 bill, but the Baxters told her she could not do so. She explained that her never having given him any Christmas or birthday presents was because she was in jail on both those occasions. She knows how to take care of a child; "I think any mother knows." She denied having let her child become so dirty that others had to change him. She admitted that she never actually provided the Baxters with any money for support of her child in the two years he had been with them. She offered money on one occasion "Yes, only when I could afford it."
She said when she had her son with her she placed him in the best conditions she could afford, but she admitted that she was not required to give him conditions under which she and her visitors were continuously using different kinds of dope. She also admitted that she didn't think those conditions were conducive to the best interests of a child six months old.
She placed her son with the Baxters because McClain was with the Bandidos, there was a battle between bike clubs, and a contract "had been pulled on me;" McClain had almost been shot a few times, Heather, her babysitter, had her face eaten up with acid as a part of the battle between the bike clubs, and the appellant's apartment had been shot up. Further, she had some charges pending against her, and she saw no way she could fairly take care of her child. She searched and found the Baxters to take care of him properly. She says her life is now straightened out except for not having her son. Her life was changed by an incident that occurred while she was in jail. She had someone call the Baxters to explain why she couldn't visit her son on his birthday and to say that when she got out she could begin to readjust to society, but they sent a lawyer to ask her to give him up. When she got out she tried to start making her life right.
She doesn't believe her son recognized her when she walked into the courtroom. She said she doesn't use or need drugs now but admitted having smoked marijuana before visiting her child two weeks ago. Her explanation of this inconsistency was that when the word "drugs" is used, she thinks of hard drugs. She now makes about $200 per week in commission from Super Pretzel of Texas. She said she has cirrhosis of the liver and is on the verge of having liver cancer.
We review the testimony of Mr. Baxter. He lives with his wife and E.S.M. in Richmond, Texas. E.S.M. has his own bedroom, a playroom, a rabbit, and a pony. Baxter has two jobs but is always at home by 5 P.M. His wife does not work outside their home. E.S.M. came with them on June 20, 1973. He has neighborhood children to play with. Baxter and his wife love the child and want to adopt him. He has learned to crawl, walk, and talk while living with them. They do not drink or use drugs. Baxter has seen the appellant visit only three times in the 26 months E.S.M. has been with them. E.S.M. seemed afraid of McClain. When E.S.M. came to them he seemed to be afraid of black people, of policemen, and of sirens.
Mrs. Baxter testified that when the appellant came to visit E.S.M. on Thanksgiving something was wrong with her. She said she would have the baby back by 3 P.M., but didn't call until 7:30 P.M. Mrs. Baxter went into town to meet them, and *755 when she took the baby she could smell beer. One of the boys told the appellant she shouldn't have picked the baby up in that shape, and she replied that she wanted to see him and "just had to do this." She had on such a tiny costume that you could see everything. Mrs. Baxter had called her many times to come spend weekends, but she refused, saying that she didn't have time because weekends were her busiest time. "And I just kept calling her and asking her, and she would never come." She gave them no money to support the child.
Mrs. Baxter described one apartment where E.S.M. had lived with the appellant. It had one big room with a kitchen adjoining it. There were no beds, just mattresses on the floor in each corner. The baby slept in a small playpen with one small cloth blanket. There was a dog and three cats, and the place was "run over with dirt." E.S.M. lived there with the appellant and with McClain, Price, and another boy.
When asked whether the appellant ever paid or offered any money, Mrs. Baxter replied:
A. No, sir. We didn't ask her. She never offered. No, sir. I wasn't hired as a babysitter. She wanted to place him in my home because she said she couldn't make a home, you know, for him or be a real mother to him. She wanted someone to have him to take good care of him and that she would maybe someday be back to take him as her own baby, but she wasn't sure. And she kept not wanting to come over, she said she would rather stay away because it was upsetting to the baby, that he didn't know her anyway, and it was upsetting me. Well, it wasn't upsetting to me for her to come see him. Even if we were granted adoption, sir, she can still come see him, but he doesn't know her.
Mrs. Baxter also expressed love for the child and a strong hope to adopt him.
John Shields, a son of Mrs. Baxter, testified next. He has known the appellant about 2½ or 3 years. While he was living at the Kingston Apartments, the appellant and her son moved in with him and his brother when McClain went to a hospital. She told him she was then engaged in prostitution. They slept with guns nearby because they were afraid a member of a rival motorcycle gang would break in and kill them. E.S.M. was neglected, was living in squalor, and was generally dirty and hungry. The worst he ever saw E.S.M. was one day when he came home from school, while the appellant was out working as a prostitute, and saw E.S.M. in his bed, covered with dung while the babysitter was watching TV and eating peaches. The bed was full of dung, the baby was crying and was filthy. Generally, he and his brother (John Price) were the only ones who cleaned E.S.M. up.
Shields disputed the appellant's claim that she has completely straightened out her life for the last four months. Two or 2½ months ago, she was living with a man named Tom. She got Shields to go with her to see E.S.M. about a month ago, and she tried to get him to give E.S.M. a $100 bill that she said she had gotten through prostitution.
Shields said the appellant and he had smoked marijuana during the last four months, and every time he has seen her she appeared to be high. He has frequently seen the appellant put E.S.M. to sleep by "supercharging." Drugs were frequently used around E.S.M., and he was in the presence of people that were using them. Shields said he was the one whose efforts led to the Baxters taking E.S.M. for the appellant, who didn't want him sent to a county home. He seems well adjusted with the Baxters except when the appellant comes out to see him. She cries and carries on that she wants him and has straightened her life out. Shields says he knows from what she has told him that she hasn't straightened it out and that the child has no life with a woman like her.
Shields admitted on cross-examination to an arrest at age 16. He invoked the fifth amendment when asked about his use of *756 drugs. He said he had not been convicted of any felony or misdemeanor involving moral turpitude.
Two of the Baxter's neighbors testified to their good home life and to E.S.M.'s good emotional growth.
Frank Pultar testified that within the last four months he had gone with John Shields to where the appellant was staying with some man. He was nervous there because it was a rough atmosphere and the people were smoking marijuana. He heard her say she had been involved in prostitution within the last four months. He has not been convicted in the last five years of any crime involving moral turpitude.
Stuart Kauftheil related that the appellant has worked for him in sales for 16 weeks at Super Pretzel of Texas. She is definitely an asset to his business and earns about $200 to $250 per week in commissions.
Mrs. Patricia Calkins, adoptive sister of the appellant, lives in New Jersey. Her mother boarded children, and the appellant was left with them for eighteen years. She hasn't been in contact with the appellant in the past four months except that she got a letter and came to Houston the morning of this hearing. She didn't know whether the appellant was married at age 15. She sent money to her for a lawyer when the appellant needed help.
The appellant later testified that she wants her baby back because she loves him and thinks he needs her. She doesn't want him to think she didn't want him. During the last two years she has worked towards getting him back, and she now feels that she is in a position to adequately care for him. She still knows the same men she knew before, but she does not "frequent" them. She has left the past behind and wants to take her son and go back to New Jersey with her adoptive sister. She explained: "I would take him to my sister's home, the home I was raised in, and it would be in the east where there would be no social pressures, and no one would call his father a nigger, and no one would call his mother a whore, and he would not be raised to believe that. He would not be raised to think his parents didn't want him."
She loved her son or she couldn't have left him. She knows it upsets him to see her and it upsets her to see him. She admitted that at any time during the past few years she could have straightened out her life.
We sustain the appellant's point that there is no evidence to support the trial court's finding 5 and agree that the wording of that finding is materially different from the provision of § 15.02(1)(A).
We also agree with the appellant that finding 6 is not supported by sufficient evidence. The proceedings in an action which permanently breaks the ties between a parent and child should be strictly scrutinized. Wiley v. Spartlan, 543 S.W.2d 349 (Tex.1976). The appellant's expression of intent to return was equivocal, and we cannot say from a preponderance of the evidence that she remained away from him for a period of at least three months when she was free to be with him.
We hold, however, that the trial judge was entitled to conclude, from the evidence in support of his finding of fact 7, that the appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered his physical or emotional well-being. We also hold that the evidence supports the court's eighth finding of fact, that the appellant engaged in conduct which endangers the child's physical or emotional well-being.
We need not review the trial court's ninth finding of fact.
Finding of fact 10 states that the termination would be in the best interest of the child. A number of factors have been considered by the courts in ascertaining the best interest of the child, including these: "(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the *757 future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.. . ." Holley v. Adams, 544 S.W.2d 367 (Tex.1976).
At the time of the trial the child had lived with the Baxters for two years, and their neighbors report that they maintain an emotionally stable and physically healthy atmosphere. The trial judge had an opportunity to observe the parties. The Baxters encouraged the appellant to visit with her son, but she rarely came. When she did visit, she often arrived late at night, appeared "high" or intoxicated, and upset her child because "she cries and carries on that she wants him back and has straightened out her life." An opinion was expressed that the appellant had not changed and that the child should not be returned to her.
The appellant apparently held a job during the 16 weeks immediately preceding the trial and asserted that she had dramatically altered her life, but the trial court was not required to accept the truth of her testimony as to her past actions or future intentions. The evidence in the record authorized the trial court to measure the appellant's future conduct by her recent deliberate past conduct as it may be related to the same or a similar situation. DeLlano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361 (1960). During the first 6 months of the child's life, she placed him in a dangerous atmosphere and admitted that she possibly used marijuana smoke as a tranquilizer. She then placed the entire parental responsibility and financial burden of her child on the Baxters for two years and did not ask for his return until they asked to keep him. They provided the physical necessities and emotional stability that he seemed to desperately need. They are the only family he has ever known, and he has now been with them for nearly four years.
There is a strong presumption that a minor's best interest is usually served by keeping custody in the natural parents. It is based on a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral, and emotional development of the child. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976), citing Mumma v. Aguirre, 364 S.W.2d 220 (Tex. 1963).
We consider that the evidence in this case was sufficient to overcome that strong presumption and that the evidence supports the trial judge's decision that the best opportunities for the child's care and development would be provided if he thus made it possible for the Baxters to proceed with their adoption petition rather than returning the child to the appellant or continuing his status as a foster child.
Trial Court decisions in two related cases were also appealed by the appellant in our case: the Baxter's adoption proceeding has been transferred to the Court of Civil Appeals for the Eleventh District, at Eastland, and we are today issuing an unpublished opinion in the appellant's habeas corpus proceeding, styled "Ex parte E.S.M."
The judgment of the trial court is affirmed.
|
J-S96029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
S.J.
Appellant No. 1182 WDA 2016
Appeal from the Order July 13, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): FD-07-009307-004
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 30, 2017
S.J. (“Father”) appeals pro se from the July 13, 2016 order denying his
petition for contempt and awarding M.G. (“Mother”) $1,000 in attorneys’
fees that she incurred defending herself from the unjustified petition. 1 We
affirm.
Mother and Father married on February 5, 1994, separated in 2007,
and divorced on April 13, 2010. This custody litigation has a long and
____________________________________________
1
The appeal is properly before this Court. An order denying a petition for
contempt of a prior final order is appealable. Cf. Schultz v. Schultz, 70
A.3d 826, 828 (Pa.Super. 2013) (order refusing to find husband in contempt
of interlocutory order regarding marital property was not appealable because
equitable distribution and divorce remained unresolved). Instantly, Father
claims that Mother violated certain provisions of the final custody order
entered on January 21, 2016. Hence, the order denying the petition for
contempt is appealable.
J-S96029-16
tedious history, and Father’s unsuccessful appeals to this Court are myriad.
Pursuant to the most recent custody order entered on January 21, 2016,
Mother maintains sole legal custody and primary physical custody of the
parties’ now-sixteen-year-old daughter, Su.J. Father exercises periods of
partial custody. As it relates to this appeal, Mother’s legal custody was
subject to certain limitations, including seeking Husband’s input on
educational matters and when scheduling extracurricular activities.
However, if an agreement could not be reached, Mother retained sole
authority over those decisions.
The pertinent facts follow. During summer 2016, Mother desired to
send Su.J. to summer enrichment programs at Cornell University and Brown
University. Mindful of Father’s litigiousness, Mother filed a petition for
special relief seeking the trial court’s express authorization to enroll Su.J. in
the programs notwithstanding her legal authority to act unilaterally. The
petition stated that Mother reached out to Father, and that while he did not
object to his daughter’s participation in either program, he refused to
contribute to the cost of attendance. Mother’s petition also requested
permission to take Su.J. on a five-day college tour during Spring 2017.
Father responded to the petition by objecting to both of Mother’s
entreaties and leveling allegations of contempt based upon Mother’s alleged
use of Su.J. as an intermediary, failing to address him with respect, and
neglecting to utilize the Our Family Wizard communication and scheduling
-2-
J-S96029-16
system as required by the January 21, 2016 custody order. On June 9,
2016, the trial court granted all three aspects of Mother’s requests for relief,
summarily rejected Father’s assertions of contempt, and concluded that the
programs’ expenses would be paid consistent with the extracurricular-
activity provision in the governing child support order. The court denied
Father’s ensuring “Emergency petition for reconsideration,” which leveled
additional allegations of contempt.
Undaunted by the Court’s prior renunciation of his contempt
allegations, on July 18, 2016, Father filed yet another contempt petition
against Mother. That petition, which is the genesis of the instant appeal,
assailed Mother for, inter alia, traveling to Deep Creek, Maryland with Su.J.
on an undisclosed date, continuing to use the child as an intermediary, and
misleading the court about the child’s desire to attend the summer
enrichment programs. Mother countered with a request for legal fees. On
July 13, 2016, the trial court denied the petition and awarded Mother $1,000
for attorney fees. This timely appeal followed.
Father raised six prolix claims for review, which we restate as three
succinct issues: (1) Whether the trial court committed an abuse of discretion
in denying Father’s petition for contempt and in finding that the summer
enrichment programs were educational activities subject to Mother’s decision
when the record demonstrates that Mother lied to the court about the
relevant custody arrangements and misstated Su.J.’s desire to attend
-3-
J-S96029-16
summer camp; (2) Whether the trial court abused its discretion in awarding
attorneys’ fees based upon Father’s obdurate and vexatious behavior; and
(3) Whether the trial court’s decision is the product of partiality, bias, and ill
will. See Father’s brief at 3-4.
We review an order denying a petition for civil contempt for an abuse
of discretion. Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009).
An abuse of discretion is tantamount to a misapplication of law or an
unreasonable exercise of judgment. Id. As we have explained, “[w]hen
reviewing an appeal from a contempt order, the [appellate] court must place
great reliance upon the discretion of the trial judge. Id. at 1235 (quoting
Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001)).
In relation to Father’s specific allegations of contempt regarding
Mother’s failure to comply with the January 21, 2016 custody order, the
petitioning party has the burden of proving noncompliance by a
preponderance of the evidence. MacDougall v. MacDougall, 49 A.3d 890,
892 (Pa.Super. 2012). Accordingly, herein, Father had the burden of
proving that: (1) Mother had notice of the specific order or decree that she
is alleged to have disobeyed; (2) her violation was volitional; and (3) she
acted with wrongful intent. See Harcar, supra at 1234.
Concerning Father’s assertions that the court erred in accepting
Mother’s testimony when it was rife with lies, we observe, “this Court defers
to the credibility determinations of the trial court with regard to the
-4-
J-S96029-16
witnesses who appeared before it, as that court has had the opportunity to
observe their demeanor.” Garr, supra at 189. As long as the certified
record supports the trial court's credibility determination, we will not disturb
it. Harcar, supra at 1236.
Father’s second issue challenges the assessment of counsel fees. The
Child Custody Law provides, “a court may award reasonable interim or final
counsel fees, costs and expenses to a party if the court finds that the
conduct of another party was obdurate, vexatious, repetitive or in bad faith.”
23 Pa.C.S. § 5339. Similar to our examination of Husband’s first set of
issues, we will not alter an award of counsel fees absent an abuse of
discretion. See A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa.Super. 2015). In
this context, “[a] trial court has abused its discretion if it failed to follow
proper legal procedures or misapplied the law.” Id.
Finally, in relation to Father’s claim that the trial court demonstrated
bias, partiality, and ill-will, we previously reiterated in In re S.H., 879 A.2d
802, 808 (Pa.Super. 2005), that a mere adverse ruling, without more, does
not demonstrate bias. Likewise, as noted, supra, credibility determinations
are within the purview of the trial court as the ultimate arbiter of fact. Thus,
the fact that the trial court credited Mother’s testimony over Father’s is not
competent evidence of partiality, bias, or impropriety. See Garr, supra at
189; Harcar, supra at 1236.
-5-
J-S96029-16
After a thorough review of the certified record, the parties’ briefs, and
the pertinent law, and following our examination of the Pa.R.A.P. 1925(a)
opinion that Judge Kathryn Hans-Greco entered on September 12, 2016, we
find that the trial court ably discussed the issues that Father asserted in this
appeal and adopt her reasoning as our own. Specifically, for the reasons
cogently explained in the trial court opinion, we conclude that the certified
record does not support Father’s allegations of contempt or his several
assertions that Mother lied to the court. Likewise, we agree with the trial
court’s conclusion that counsel fees were warranted in light of Father’s
persistent and repetitive iterations of patently frivolous grievances. We see
no evidence of trial court partiality, bias, or ill will.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
-6-
Circulated 01 /20/2017 04:33 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
M.G. (formerly M.J.),
Plaintiff, SEALED OPINION
v. No.: FD-07-09307-004
ll82WDA2016
S.J.,
Defendant.
BY:
Honorable Kathryn Hens-Greco
440 Ross Street
Suite 5077
Pittsburgh, PA 15219
COPIES TO:
Counsel for Plaintiff:
Mark B. Morrow, Esquire
429 Forbes A venue, Suite 909
Pittsburgh, PA 15219 - 1604
Pro Se Defendant:
S. J.
1605 Blackburn Heights Drive
.ce Sewickley, PA 15143
0 <
0:: ::z 0..
""-.. o2->-
UUH-
__
u.i--r ,
~>:::-
0 :c .-oc
_,
UJ 0- ct:;:,-C
::, _,'··
..
' -u.. N
c;
w
en
.._0
o:i,~".
o..s::u:
U..::l:
0 ::! U.'.
.-> .. s :
u:, 0.0';j:
--~-,
~ •,:
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
M.G. (formerly M.J.),
Plaintiff, No.: FD-07-09307-004
1182 WDA 2016
V,
S.J .•
Defendant.
OPINION
HENS-GRECO, J. September 12, 2016
In this matter, S.J. ("Father"), prose, appeals this Court's Orders of July 13, 2016, which
denied his request for a hearing on his contempt petition, but granted the request of M.G.
("Mother") for an award of attorney fees in the amount of $1,000.00 (One Thousand Doi Jars)
upon finding Father's petition to constitute obdurate and vexatious behavior. Father appeals.
I. PROCEDURAL POSTURE
The parties are parents to 15-year-old daughter Su.J.; the parties older son has long since
reached majority age. Custody litigation has been regular since this case's inception in 2007. A
cursory review of the docket reveals approximately 20 appellant cases before the Superior Court,
all but a few of them belonging to Father. He has never appealed successfully. At times. his
conduct has been so hostile that he has been sanctioned by this Court and by the Superior Court.
His animosity toward Mother was part of the reason this Court awarded Mother sole legal
custody in 2013, where recent history begins. See Order of Court, dated March 24, 2014. Father
unsuccessfully appealed this award. See 637 WDA 2014.
In December 2015, this Court held another custody trial, this time on Father's petition for
modification. But Father refused to participate in the trial. A custody order was entered on
December 17, 2015. This Court entered clarification orders on January 21, 2016. Father
appealed this Court's custody orders. See 64 WDA 2016. This Court opined that Father's
appeal should be quashed given Father's defective notice of appeal and his failure to preserve the
issues. See this Court's Statement in Lieu of Opinion, docketed February 11, 2016. To date, the
Superior Court has not ruled.
But regardless of how the Superior Court ultimately rules, matters of legal custody have
remained unchanged since 2014. That is, whether the ultimate custody will be this Court's Order
of December 17, 2015 (as clarified by the order of January 21, 2016) the fact remains the same
that Mother has sole decision-making authority in matters regarding the child's educational and
extracurricular activity. See Final Custody Order of Court, dated January 21, 2016, at Section I,
Paragraph 2(b) ("If the parties cannot agree, Mother will have the sole authority to decide
whether to enroll [the childj in the (extracurricular) activity"); at Section I, Paragraph J(a) ("In
the event the parents cannot agree, Mother will have the sole authority for making educational
decisions for [the child.]"); see also Id., at l. The Court "adopts the legal custody orders as
outlined in the order of March 24, 2014 and as outlined in the second paragraph of the order of
June 26, 2014 (relating to medical decisions). They are reiterated below, verbatim."
Fast forward to Summer 2016. Mother brought a petition for special relief, wherein she
alleged that she sought to enroll the child in educational summer camps: one affiliated with
Cornell University (lasting about three weeks) and one with Brown University (lasting about 5
days). Mother also requested the ability to take the child on college tours from March 31 to
April 4, 2017. Mother had petitioned for the latter request after the Court had granted Father five
2
consecutive days to visit with relatives in town from Singapore. See Order of Court, dated June
9, 2016. The Court had awarded Father atypical custody time with the out-of-town relatives,
after the Court had granted Mother's previous request to take the child on a trip to the Galapagos
Islands. In her June 9111 petition, Mother clarified for the Court that the Galapagos trip was not a
special trip she took with the child, but rather a trip affiliated with the child's school. In any
event, the Court interpreted its custody order to mean that Mother did not need the Court's
permission to sign the child up for educational/extracurricular activities, even when those
activities occur on Father's time.
On July J 3, 2016, Father brought forth a lengthy petition for contempt. Mother
submitted a response and a new matter, asking for counsel fees. After hearing argument, this
Court denied Father's relief and granted Mother's request. Father appeals.
II. DISCUSSION
A. Contempt of Custody Order
Father alleges this Court en-eel in denying his request for a hearing to determine whether
Mother was in contempt of the January 21, 2016 custody order. See Father's Concise Statement,
at Paragraph I. Per 23 Pa.C.S.A. §5323(g), "[a] party who willfully fails to comply with any
custody order may, as prescribed by general rule, be adjudged in contempt." This Court denied
Father's request for a hearing on contempt, because the facts alleged during the motion, even if
true, did not prove that Mother willfully failed to comply with the custody order.
Father alleged that Mother violated Paragraph 13 of the January 21, 2016 custody order
outlining travel outside of Allegheny County. See Father's Petition for Contempt, at Paragraph 2.
The allegation is quite ridiculous. The Court has been aware for some time that Mother attends a
family reunion in Deep Creek, MD around the Fourth of July holiday. Father had even once
3
brought this issue to the Superior Court, arguing that Mother misled the Court in describing her
family get-together as a "family union." He argued that the gathering was not a family reunion
because the child had testified in camera that the family does not, in fact, have t-shirts made.
See 775 WDA 2011, Trial Court Opinion, at Footnote 3. This Court determined that Paragraph
13 was clearly meant to apply to general vacations or the special business trips on which Father
takes the child, and not the family reunion trip which has been the source of Father's litigation
since 2011.
Father alleged that Mother violated Paragraph 18 of the January 21, 2016 Custody Order,
which provides that the child shall be able to have regular phone contact with Father when in
Mother's custody. See Father's Petition for Contempt, at Paragraph 3. Father argued that it was
Mother's fault that she took the child to an area where there was no cell phone reception.
Clearly the custody provision was supposed to guard against one parent forbidding
communication with the other parent. That the 15-year-old child could not answer the call, or
would not answer the call, or do so in a timely fashion, does not mean that Mother willfully
failed to comply with the custody order.
Father alleged that Mother violated the custody order because she did not notify him, via the
Our Family Wizard computer program, that the child would be late entering his custody. See
Father's Petition for Contempt, at Paragraph 4. The child was returning from a school trip and
the flight was delayed. Father petitions for a contempt hearing, because Mother did not
memorialize the delayed flight on Our Family Wizard. This is not a violation of the custody
order.
4
Father alleged that Mother violated Paragraph 161 of the January 21, 2016 Custody Order,
which provides that the parents will endeavor to communicate with each other rather than using
the child as an intermediary. See Father's Petition for Contempt, at Paragraph 5. Such provisions
are common is custody orders, especially in cases where communication between the parents is
difficult. The provision seeks to prevent parents from placing undue burdens on children with
shared custody arrangements. Such might occur when a child is tasked with relaying the
intentions of one parent to the other. Here, Father claims that Mother forced the child to be a go-
between during the scheduling of the child's summer. Father did not speak to this point during
the presentation of his motion, and so the Court does not know precisely the alleged facts. But
the Court is familiar with the case and knows that as the child has matured, Mother has
encouraged the child to communicate directly to her Father when she wants him to know of her
requests and desires. In this context, Mother has encouraged the child to explain to her Father -
as opposed to using her Mother as the go-between - her desire to go to summer camp. This is
not the type of act the custody order seeks to prevent, and Mother is not in violation of the order.
Father alleged that Mother is in contempt for representing to the Court that the child wanted
to attend the summer camps when the child did not want to attend at all. See Father's Petition for
Contempt, at Paragraphs 6-7. The Court is not persuaded by Father's argument that the child
never wanted to go. Frankly, even if the child did not want to attend, it would be within
Mother's purview, per this Court's grant of legal custody, to sign the child up anyway. Though
no sworn testimony was taken, the Court was persuaded by Mother's representation that Father
put extreme pressure on the child to cancel the summer camps, or else he would refuse to
financially contribute to the child's education. Unfortunately, it would not be the first time
I
Father's concise statement mistakenly cites Paragraph 13 (the vacation provision): he means Paragraph 16 (the
communication between panics provision)
5
Father pressured the child until she submitted to his wishes. She testified in camera during the
December custody trial that Father refused to see or speak to her until she fired her appointed
attorney. In any event, the child decided not to attend the camps, which Father took as
opportunity to seek sanctions for Mother's "lie" that the child wanted to go in the first place.
Under no circumstance were Mother's act ions contemptuous.
B. False Statements
Father routinely faults this Court for its bias, and for believing Mother's lies. He has
previously (and unsuccessfully) brought these specific issues before the Superior Court. Often
times the Court is presented with diametrically-opposed versions of the events, often times
without a plethora of supporting evidence. That the Court has chosen to believe Mother's
version over Father's is neither evidence of the Court's bias nor Mother's perjury. Father's
Concise Statements regarding these matters are devoid of merit. See Father's Concise Statement,
at Paragraph 2-3; 5-6.
C. Counsel Fees
Per 23 Pa.C.S.A. §5339, "a court may award reasonable interim or final counsel fees, costs
and expenses to a party if the court finds that the conduct of another party was obdurate,
vexatious, repetitive or in bad faith." Father alleges this Court erred in awarding Mother counsel
fees. See Father's Concise Statement, at Paragraph 4. Father's July 13 contempt petition was his
third iteration of the grievances he had with summer camp and at least the second iteration of
those issues related to the Galapagos trip. See Orders of Court, dated June 9, 2016 and June 22,
2016. And even though this Court denied Father's requested relief then, he still brought
substantially the same matters back before the Court. And when all else foiled, Father alleged
contempt, citing infringements so slight that they did not even warrant a hearing on the merits.
6
In addition to Father's frivolous petitions, Father has engaged in an extremely vexatious manner.
He has purposefully pressured child to submit to his will or face punishment, even though this
Court explicitly awarded Mother greater legal custody due to this very type of behavior. An
award of $1,000 is appropriate given Mother's time and expense needed to defend against
Father's campaign.
III. CONCLUSION
For the reasons set forth above, Father's July 13, 2016 petition for contempt did not allege
sufficient facts to warrant a hearing on contempt. Father's other concise statements regarding
the Court's bias or Mother's lies are meritless. This Court's decision to award Mother counsel
fees was not an abuse of discretion. This Court's order of July 13, 2016 should be affirmed.
BY THE COURT:
7
|
607 F.Supp.2d 216 (2009)
James ROANE, Jr., et al., Plaintiffs,
v.
Eric H. HOLDER, Jr., et al., Defendants.
Civil Action No. 05-2337 (RWR).
United States District Court, District of Columbia.
April 20, 2009.
*218 Joshua Christopher Toll, King & Spalding, LLP, Graham E. Eddy, Vinson & Elkins, L.L.P., Paul F. Enzinna, Jeremy I. Levin, Rachel M. McKenzie, Baker Botts LLP, Charles Anthony Zdebski, Troutman Sanders LLP, Telecommunications & Technology, Washington, DC, for Plaintiffs.
Peter S. Smith, Beverly Maria Russell, John F. Henault, Jr., Kenneth Adebonojo, Madelyn E. Johnson, U.S. Attorney's Office, Paul F. Enzinna, Baker Botts, LLP, Robert J. Erickson, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
Six death row inmates facing execution by lethal injection bring this action against the Attorney General and other Justice Department officials[1] in their official and *219 individual capacities alleging various constitutional and statutory violations caused by the federal government's adoption and intended use of a lethal injection protocol that allegedly exposes the inmates to a substantial risk of severe pain. The defendants have renewed their motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Because the defendants' asserted statute of limitations defense raises a genuine factual dispute that precludes summary judgment, the defendants' renewed motion for judgment on the pleadings will be denied in part. The defendants have also renewed their motion to dismiss under Rules 12(b)(1) and 12(b)(6). Because the plaintiffs do not oppose dismissal of all individual capacity claims, the defendants' motion to dismiss all individual capacity claims will be granted. In addition, because the plaintiffs do not seek to challenge 28 C.F.R. § 26.3, the defendants' motion to dismiss Count IV to the extent it challenges this regulation will be denied as moot. Because Count V challenges the defendants' general policy to not apply certain Controlled Substances Act ("CSA") provisions against individuals who participate in federal lethal injections or against the federal government's lethal injection protocol itself, but does not challenge any individual decision not to prosecute an alleged CSA violation, the defendants' motion to dismiss to Count V of the amended complaint will be denied. The defendants' motion to dismiss all official capacity claims against defendant Thomas Webster, M.D., a penitentiary Clinic Director, will be granted because Dr. Webster has exercised his right under 18 U.S.C. § 3597(b) and 28 C.F.R. § 26.5 not to participate in federal executions.
BACKGROUND
Plaintiffs James Roane, Jr., Cory Johnson, and Richard Tipton were each tried and convicted on multiple charges and "each was sentenced to death on one or more of the capital murder charges on which he was convicted." United States v. Tipton, 90 F.3d 861, 868 (4th Cir.1996). Their convictions became final on direct appeal when the Supreme Court denied certiorari for each on June 2, 1997. Roane v. United States, Johnson v. United States, Tipton v. United States, 520 U.S. 1253, 117 S.Ct. 2414, 138 L.Ed.2d 179 (1997). Plaintiff Orlando Hall was convicted of kidnaping resulting in death and other crimes and sentenced to death in 1995. United States v. Hall, 152 F.3d 381, 390 (5th Cir.1998). His conviction became final on May 17, 1999. Hall v. United States, 526 U.S. 1117, 119 S.Ct. 1767, 143 L.Ed.2d 797 (1999) (denying petition for certiorari). Plaintiff Bruce Webster was convicted of kidnaping resulting in death and other crimes and sentenced to death in 1996. United States v. Webster, 162 F.3d 308, 317, 319-20 (5th Cir.1998). His conviction became final on October 4, 1999. Webster v. United States, 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999) (denying petition for certiorari). Plaintiff Anthony Battle was convicted of murdering a federal correctional officer and sentenced to death in 1997. United States v. Battle, 173 F.3d 1343, 1345 (11th Cir.1999). His conviction became final on March 20, 2000. Battle v. United States, 529 U.S. 1022, 120 S.Ct. 1428, 146 L.Ed.2d 318 (2000) (denying petition for certiorari). Each plaintiff also has sought unsuccessfully to challenge his death sentence through collateral review. At present, each plaintiff is to be executed in the manner prescribed by the federal government's lethal injection protocol.
Plaintiffs Roane, Tipton, and Johnson filed this action on December 6, 2005 against the Attorney General, the Administrator of the Drug Enforcement Administration ("DEA"), Director of the Federal Bureau of Prisons Harley G. Lappin, Medical Director of the Health Services Division of the Federal Bureau of Prisons *220 Newton E. Kendig, M.D., Warden of the United States Penitentiary Terre Haute ("Terre Haute") Mark Bezy, and Clinical Director at Terre Haute Thomas Webster, M.D. Bruce Webster, Battle, and Hall intervened as plaintiffs in 2007. The plaintiffs' executions were stayed by consent of all parties. The plaintiffs' amended complaint alleges five claims. The plaintiffs' first claim alleges that they have been denied due process under the Fifth Amendment because the defendants "have refused to disclose the procedures that will be utilized in carrying out the plaintiffs' executions[.]" (Am. Compl.¶ 58.) The plaintiffs' second and third claims allege that the defendants' method of carrying out the plaintiffs' executions by lethal injection violates the Eighth Amendment's prohibition against cruel and unusual punishment. (Id. ¶¶ 61, 63-66.) The plaintiffs' fourth claim, brought under the Administrative Procedure Act ("APA"), alleges that the defendants failed to follow the APA's rulemaking procedures when promulgating their lethal injection protocol. (Id. ¶¶ 68-72.) Finally, the plaintiffs' fifth claim alleges that "the defendants have arbitrarily and capriciously failed to exercise their authority to enforce the CSA" against persons dispensing one of the lethal injection drugs, sodium thiopental, without a valid registration. (Id. ¶¶ 74-77.)
The defendants have renewed[2] their motion for judgment on the pleadings and their motion to dismiss certain claims and defendants. The defendants contend that they are entitled to judgment because the plaintiffs' claims are barred by the applicable statute of limitations and because the plaintiffs' claims are an eleventh hour challenge filed "too late in the day." (Defs.' Mem. in Supp. of Their Renewed Mot. for J. on the Pleadings ("Defs.' J. on the Pleadings Mem.") at 9-10.) The defendants also contend that all individual capacity claims, the official capacity claims against the DEA Administrator and Dr. Webster, and Counts IV (in part) and V of the amended complaint should be dismissed, alleging that one claim in Count IV is barred by res judicata, that the claim against the DEA Administrator in Count V is foreclosed by the Supreme Court's decision in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and that no relief is available against Dr. Webster because he has exercised his right not to participate in federal executions.
DISCUSSION
I. RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS
A party may move for judgment on the pleadings "[a]fter the pleadings are closedbut early enough not to delay trial" under Rule 12(c). Fed.R.Civ.P. 12(c). Under Rule 12(d), if, as here, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). Summary judgment may be granted only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The relevant inquiry "is the threshold inquiry of determining whether there is a need for a trialwhether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of *221 either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, all evidence and inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A. Statute of limitations
The defendants contend that the plaintiffs' method-of-execution claims are barred by the general six-year statute of limitations on lawsuits against the government. (Defs.' J. on the Pleadings Mem. at 14) (citing 28 U.S.C. § 2401 ("[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.").) A statute of limitations bar is an affirmative defense and the defendants bear the burden of proving it. See Colbert v. Potter, 471 F.3d 158, 165 (D.C.Cir.2006); Jones v. Ritter, 587 F.Supp.2d 152, 159 (D.D.C.2008.) The defendants allege that each plaintiff's claim accrued at the time he exhausted his direct appeal, which was more than six years before each plaintiff's participation in this action. In response, the plaintiffs contend that the general six-year statute of limitations does not apply to constitutional claims seeking injunctive relief, and that if the statute of limitations does apply, the plaintiffs' claims are timely. (See Pls.' Opp'n to Renewed Mot. for J. on the Pleadings at 15-16.)
The six-year statute of limitations under 28 U.S.C. § 2401 applies to the plaintiffs' claims for injunctive relief. See Kendall v. Army Bd. of Corr. of Military Records, 996 F.2d 362, 365 (D.C.Cir.1993) (holding that § 2401(a) "applies to all civil actions whether legal, equitable, or mixed"). Section 2401(a) applies to "every civil action," making no distinction between legal and equitable actions. 28 U.S.C. § 2401(a); see Kendall, 996 F.2d at 365; Walters v. Sec'y of Def., 725 F.2d 107, 111-12 (D.C.Cir.1983) (noting the Congress's choice to use "civil action" rather than "suit" "eliminat[es] any possible distinction under the statute between legal and equitable claims"). Thus, by its express terms, the six-year statute of limitations under § 2401(a) applies to all civil actions against the United States, "even [if] the relief sought ... is purely prospective." Walters, 725 F.2d at 113. Accordingly, although the plaintiffs' claims seek injunctive relief, such claims are still subject to the six-year limitations period for claims brought against the United States.
"[I]t is the `standard rule that [accrual occurs] when the plaintiff has a complete and present cause of action[,]'... that is, when `the plaintiff can file suit and obtain relief[.]'" Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (internal citation omitted) (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)). A cause of action may accrue even if "the full extent of the injury is not then known or predictable." Id. at 391, 127 S.Ct. 1091 (internal quotation marks omitted). Courts of appeals considering when a method-of-execution claim accrues have concluded that a plaintiff's claim accrues upon completion of the plaintiff's direct appeal or, if the challenged protocol is not known upon conclusion of direct appeal, at the time when a plaintiff "knew or should have known based upon reasonable inquiry" about the protocol giving rise to the challenge. Cooey v. Strickland, 479 F.3d 412, 422 (6th Cir.2007); see Walker v. Epps, 550 F.3d 407, 414 (5th Cir.2008) (holding that the statute of limitations begins to run on "the *222 date direct review of an individual case is complete or the date on which the challenged protocol was adopted"); McNair v. Allen, 515 F.3d 1168, 1174, 1176-77 (11th Cir.2008) (holding that a method-of-execution claim under § 1983 "accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol"); Nooner v. Norris, 491 F.3d 804, 808 (8th Cir.2007) (concluding that the constitutionality of a lethal injection protocol can be challenged once an inmate's death sentence becomes final on direct review "as long as lethal injection is the established method of execution, the protocol is known, and no state administrative remedies are available"); see also Neville v. Johnson, 440 F.3d 221, 222 (5th Cir.2006) ("A challenge to a method of execution may be filed at any time after the plaintiff's conviction has become final on direct review.").
The question of when a plaintiff knew or should have known of his cause of action is a question of fact. See Jones v. Rogers Mem'l Hosp., 442 F.2d 773, 775 n. 2 (D.C.Cir.1971); Cobell v. Babbitt, 30 F.Supp.2d 24, 44 (D.D.C.1998) ("The question of when the plaintiffs knew or should have known of their claim is a question of fact."). For example, in Cooey, the Sixth Circuit concluded that Cooey's 2004 method-of-execution challenge was untimely under the applicable two-year statute of limitations because, regardless of his actual knowledge, "Cooey should have known of his cause of action in 2001 after amendments to the law required that he be executed by lethal injection, and the information was publicly available upon request." 479 F.3d at 422. Similarly, in McNair, the Eleventh Circuit held that the plaintiff, whose conviction became final in 1990, had a method-of-execution claim that accrued on July 31, 2002, the date the plaintiff "selected lethal injection as the means by which he [would] die." 515 F.3d at 1177. The Eleventh Circuit concluded that at the time the plaintiff selected lethal injection as the method for his execution and made himself subject to the state's lethal injection protocol, "the facts which would support a cause of action [challenging the lethal injection method] should have been apparent to any person with a reasonably prudent regard for his rights." Id.
Here, each plaintiff's conviction became final on direct appeal more than six years before he filed or intervened in this action. However, the plaintiffs argue that the federal government has "assiduously guarded" its protocol and the government's lack of disclosure prevented the plaintiffs from having knowledge of their injury until "well within any possible limitations period." (Pls.' Opp'n to Renewed Mot. for J. on the Pleadings at 19, 21.) Plaintiffs identify facts revealing eight specific alleged constitutional defects in the defendants' execution processes. (Id. at 35-48.) Notably, the plaintiffs' amended complaint alleges that at the time this case was filed, "[t]he defendants ... [had] refused to disclose the procedures that will be utilized in carrying out plaintiffs' executions[.]" (Am.Compl. ¶ 58.) The plaintiffs further contend that "there was no specific information ... until November 2003" indicating that the federal government's method of execution used too little anesthetic, and that information regarding "the use of the femoral vein access and the employment of persons who are responsible" for previous serious errors in federal executions was not available until June 26, 2007, when the government produced an addendum to its protocol. (Pls.' Opp'n to Renewed Mot. for J. on the Pleadings at 20.) The defendants do not dispute the plaintiffs' allegations that they were not permitted access to the defendants' protocol. Instead, the defendants contend that there was sufficient publicly available information *223 cited in the plaintiffs' amended complaint[3] and "published accounts of purported problems with lethal injection procedures" known to each plaintiff at the time his conviction became final on direct review that he should have been aware of his claims at that time and therefore, the claims of each plaintiff accrued more than six years before he filed or intervened in this action. (See Defs.' Reply at 13-14.)
To show the plaintiffs knew or should have known of their claims long ago, it is not enough to recite the amended complaint's allegations that there were reports of problems with federal executions for years. The plaintiffs must or should have known of the particular problems the plaintiffs have cited in this case as being of actionable constitutional dimensions. When the plaintiffs actually knew or when they should have known about each of their challenges to the defendants' lethal injection protocol is a fact question that cannot be resolved as a matter of law based on the current record.[4] Accordingly, the defendants' motion for judgment on the pleadings on the ground that the plaintiffs' claims are barred by six-year statute of limitations for civil actions brought against the government will be denied.
B. Eleventh hour challenge
The defendants allege, relying on the Supreme Court's opinion in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), that the plaintiffs' suit should be dismissed as being an "eleventh hour challenge" to their executions that was "filed too late in the day and can reasonably be construed as dilatory." (See Defs.' J. on the Pleadings Mem. at 13-14.) In Nelson v. Campbell, 541 U.S. 637, 641, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), the *224 Supreme Court held that a stay of execution was "an equitable remedy" that "`must take into consideration the State's strong interest in proceeding with its judgment.'" Id. at 649, 124 S.Ct. 2117. Two years later, in Hill, the Supreme Court reaffirmed its position that "a stay of execution is an equitable remedy" that is "not available as a matter of right," and that "inmates seeking time to challenge the manner in which the [government] plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits."[5] 547 U.S. at 584, 126 S.Ct. 2096. The Court further explained that "equity must be sensitive to the [government's] strong interest in enforcing its criminal judgments without undue interference from the ... courts." Id. Thus, "[a] court considering a stay [of execution] must also apply `a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.'" Id. (quoting Nelson, 541 U.S. at 650, 124 S.Ct. 2117). Hill noted that "a number of federal courts [had] invoked their equitable powers to dismiss suits they saw as speculative or filed too late in the day" and concluded that "courts can and should protect [against] dilatory and speculative suits." Id. at 584-85, 126 S.Ct. 2096. In addition, in Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), the Supreme Court cautioned that a plaintiff bringing a method-of-execution challenge carries a heavy burden to establish an Eighth Amendment violation. Id. at 1537. Recognizing the government's "legitimate interest in carrying out a sentence of death in a timely manner[,]" Baze concluded that "a stay of execution may not be granted... unless the condemned prisoner establishes that the ... lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives." Id.
Ultimately, in Nelson, Hill, and Baze, the Supreme Court has provided a clear warning to convicted inmates facing execution that equity weighs against those who sit on their rights and then seek to delay timely enforcement of judgments. See, e.g., Walker v. Epps, 587 F.Supp.2d 763, 773 (N.D.Miss.2008) (applying the "`strong equitable presumption against the grant of a stay where the claim could have been brought'" earlier in the context of the plaintiffs' requests for stays of execution (quoting Nelson, 541 U.S. at 650, 124 S.Ct. 2117)). However, equity's dislike of late-filed suits requiring stays is a "presumption" and accordingly, may be overcome in certain circumstances. Since the defendants have moved to lift the stays of execution currently in place, the defendants' argument that equity demands judgment for the defendants because the plaintiffs claims were filed too late in the day will be considered together with the motion to lift the stay.[6] Accordingly, *225 whether the defendants are entitled to judgment in their favor because the plaintiffs' claims are an eleventh hour challenge to their executions "filed too late in the day" will be taken up separately.
II. RENEWED MOTION TO DISMISS
The defendants have renewed their motion to dismiss certain claims and defendants under Rules 12(b)(1) and 12(b)(6), alleging that all individual capacity claims against the defendants and the official capacity claims against the DEA Administrator and Dr. Webster should be dismissed, that the plaintiffs' challenge in Count IV to the federal regulations authorizing lethal injection is barred by res judicata or the six-year statute of limitations, and that the plaintiffs' Count V claim challenging the defendants' alleged failure to enforce the CSA with respect to individuals who participate in federal executions is barred by Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).
A. Individual capacity claims
Plaintiffs do not oppose the dismissal of all individual capacity claims. (Pls.' Opp'n to Renewed Mot. to Dismiss at 1 n. 1.) Accordingly, all individual capacity claims against the defendants will be dismissed.
B. Alleged challenge to federal regulations in Count IV
The defendants contend that any challenge to the 28 C.F.R. § 26.3, the federal regulation permitting lethal injection, is barred either by the doctrine of res judicata or by the six-year statute of limitations under 28 U.S.C. § 2401. In their opposition, the plaintiffs state that they "do not challenge the promulgation of [this] regulation[]." (Pls.' Opp'n to Renewed Mot. to Dismiss at 10.) Accordingly, the defendants' motion to dismiss Count IV to the extent that it challenges 28 C.F.R. § 26.3 will be denied as moot.
C. Count V: failure to enforce the CSA
Count V alleges that "the defendants have arbitrarily and capriciously failed to exercise their authority to enforce the CSA by not requiring the persons whom the defendants intend to dispense controlled substances to the plaintiffs to apply for a registration[.]" (Am.Compl. ¶ 77.) The CSA requires "[e]very person who dispenses, or proposes to dispense, any controlled substance" to "obtain from the Attorney General a registration" unless the registration requirement is waived by the Attorney General. 21 U.S.C. §§ 822, 829, 841(a)(1). "The Attorney General may, by regulation, waive the requirements for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety." 21 U.S.C. § 822(d). The plaintiffs contend that their claim challenges the "Defendants' long-settled position concerning application of [the] CSA [registration] requirements to those who carry out the federal lethal injection protocol and their adoption of a general policy that is unlawful." (Pls.' Opp'n to Renewed Mot. to Dismiss at 4.) In addition, the plaintiffs challenge not just the defendants' adoption of an enforcement policy, but the lethal injection protocol itself as a violation of the CSA. The defendants contend that these challenges are barred by the "presumption against reviewability for `an agency's decision not to take enforcement action'" established in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).[7]Crowley Caribbean Transp., *226 Inc. v. Pena, 37 F.3d 671, 675 (D.C.Cir. 1994) (quoting Heckler, 470 U.S. at 832, 105 S.Ct. 1649). (See Defs.' Mem. in Supp. of Their Renewed Mot. to Dismiss at 12-15.)
The APA "provides judicial review to any `person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.'" Webster v. Doe, 486 U.S. 592, 597, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (quoting 5 U.S.C. § 702). However, under 5 U.S.C. § 701(a), judicial review under the APA is not available if the relevant statute precludes review or if the "agency action is committed to agency action by law." 5 U.S.C. § 701(a); see Webster, 486 U.S. at 599, 108 S.Ct. 2047. In Heckler, prison inmates brought suit against the Food and Drug Administration ("FDA"), challenging the FDA's refusal to take enforcement action against the states for alleged violations of the Federal Food, Drug, and Cosmetic Act ("FDCA") caused by the states' use of certain drugs in administering lethal injections to carry out capital sentences. 470 U.S. at 823-24, 105 S.Ct. 1649. The government argued that the FDA's decision not to apply the FDCA to drugs used in lethal injections was "`committed to agency discretion by law' under § 701(a)(2)." Id. at 828, 105 S.Ct. 1649. Considering whether the FDA's determination "not to exercise its enforcement authority" with respect to the drugs used by states in lethal injections, the Supreme Court concluded that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion[,]" and is presumptively unreviewable. Id. at 831, 105 S.Ct. 1649. The Court reasoned that "an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise." Id.
[An] agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.
Id. at 831-32, 105 S.Ct. 1649. Further, Heckler reasoned that "when an agency refuses to act it generally does not exercise its coercive power over an individual's liberty ... and thus does not infringe upon areas that courts often are called upon to protect." Id. at 832, 105 S.Ct. 1649. Finally, Heckler noted that an agency's decision not to enforce "shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indicta decision which has long been regarded as the special province of the Executive Branch." Id.
In Crowley, the court of appeals clarified the scope of the Heckler presumption against judicial review, distinguishing between a "single-shot non-enforcement decision" presumed unreviewable and "a general enforcement policy [that] may be reviewable for legal sufficiency where the agency has expressed the policy as a formal regulation after the full rulemaking process ... or has otherwise articulated it in some form of universal policy statement[.]" 37 F.3d at 676. The court of appeals reasoned that a reviewable policy *227 is distinguishable from an unreviewable enforcement decision because "[b]y definition, expressions of broad enforcement policies are abstracted from the particular combinations of facts the agency would encounter in individual enforcement proceedings." Id. at 677. Further, enforcement policies "are more likely to be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are ... peculiarly within the agency's expertise and discretion." Id. Thus, where the agency has expressed a policy "divorced from any specific ... factual scenario, Heckler does not preclude review." Ctr. for Auto Safety, Inc. v. Nat'l Highway Traffic Safety Admin., 342 F.Supp.2d 1, 13 (D.D.C.2004) (reviewing the National Highway Traffic Safety Administration's 1998 letter to manufacturers stating a policy that the Safety Act "precludes regional recalls"); see OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 809, 812 (D.C.Cir.1998) (holding that the Maritime Administration's "longstanding interpretation of the Merchant Marine Act of 1936" permitting "vessel[s] built with the aid of a `construction-differential subsidy' from the federal government ... [to] enter domestic trade after the statutorily defined economic life of vessel expires" was reviewable as "a general enforcement policy"); cf. Crowley, 37 F.3d at 677 (finding the Maritime Administrator's denial of a waiver for a single company "unreviewable because it [was] a decision to forego enforcement in [the] one instance").
By the plaintiffs' own admission, they do not seek review of "`individual, isolated non-enforcement decisions'" presumed unreviewable under Heckler. (Pls.' Opp'n to Renewed Mot. to Dismiss at 4) (quoting Heckler, 470 U.S. at 839, 105 S.Ct. 1649 (Brennan, J., concurring).) Instead, the plaintiffs' contend that the defendants have a general policy against applying the CSA's registration requirements to those who participate in federal lethal injections under the protocol. To the extent the plaintiffs are claiming that the defendants have made a general statement about their policy of enforcement of the CSA with respect to federal lethal injections divorced from any fact-specific enforcement decision, the plaintiffs have stated a claim outside the scope of the Heckler presumption against judicial review. Similarly, the plaintiffs also challenge "the lethal injection protocol itself," arguing that the protocol's "failure to require registration ... preclud[es] enforcement of the registration requirement." (Id. at 8.) To the extent the plaintiffs are arguing that the lethal injection protocol itself is unlawful, such a claim is not foreclosed by Heckler. Accordingly, the defendants' motion to dismiss the plaintiffs' Count V claim and the DEA Administrator as a defendant will be denied to the extent that Count V is a challenge to an alleged general enforcement policy and the lethal injection protocol itself.
D. Defendant Webster
Defendant Webster seeks dismissal of all claims brought against him in his official capacity as clinical director at Terre Haute because he has exercised his right under 18 U.S.C. § 3597(b) and 28 C.F.R. § 26.5 to be excused from attendance at or personal participation in any execution. Under 18 U.S.C. § 3597(b), no employee of
the United States Department of Justice, the Federal Bureau of Prisons, or the United States Marshals Service ... shall be required, as a condition of that employment or contractual obligation, to be in attendance at or to participate in any prosecution or execution under this section if such participation is contrary to the moral or religious convictions of the employee. In this subsection, "participation *228 in executions" includes personal preparation of the condemned individual and the apparatus used for execution and supervision of the activities of other personnel in carrying out such activities.
18 U.S.C. § 3597(b). In addition, under 28 C.F.R. § 26.5,
No officer or employee of the Department of Justice shall be required to be in attendance at or to participate in any execution if such attendance or participation is contrary to the moral or religious convictions of the officer or employee, or if the employee is a medical professional who considers such participation or attendance contrary to medical ethics. For purposes of this section, the term "participation" includes personal preparation of the condemned individual and the apparatus used for execution and supervision of the activities of other personnel in carrying out such activities.
28 C.F.R. § 26.5.
In his affidavit in support of the defendants' motion, Dr. Webster declares that he has exercised his right "not to participate in any and all facets of the execution process" and "absolutely no involvement in, nor control over, any facet of the operation involving the execution process." (Defs.' Renewed Mot. to Dismiss, Decl. of Thomas Webster at 1.) The plaintiffs nonetheless contend that Dr. Webster has an affirmative duty to involve himself in the execution process to "ensur[e] that appropriate steps are taken to minimize pain suffered by inmates," and that he "bears responsibility for any `deliberate indifference' to such pain." (Pls.' Opp'n to Renewed Mot. to Dismiss at 9.) The plaintiffs' contention that Dr. Webster bears responsibility for pain caused by the federal execution process after he has exercised his right under 18 U.S.C. § 3597(b) and 28 C.F.R. § 26.5 not to participate is inconsistent with the clear purpose of these provisions. In addition, dismissal of Dr. Webster as a named defendant will cause no prejudice to the plaintiffs because there is no question that the relief sought can be provided by the other named defendants in this action. Accordingly, the defendants' motion to dismiss Dr. Webster as a named defendant will be granted.
CONCLUSION
Because the defendants' statute of limitations defense raises a genuine factual dispute regarding when the plaintiffs knew or should have known of their Eighth Amendment method-of-execution claims, the defendants' renewed motion for judgment on the pleadings will be denied in part. Because the defendants' argument that the plaintiffs have filed their claim too late in the day to permit consideration raises equitable arguments, such arguments will be considered along with the defendants' motion to lift the stays of execution currently in place. The defendants' renewed motion to dismiss will be granted in part and denied in part. The defendants' motion to dismiss all individual capacity claims will be granted as unopposed. The defendants' motion to dismiss Count IV to the extent it challenges 28 C.F.R. § 26.3 will be denied as moot because plaintiffs do not purport to be challenging this regulation. Because Count V alleges an APA challenge to an alleged general nonenforcement policy and the defendants' lethal injection protocol itself, the defendants' motion to dismiss Count V and the DEA Administrator as unreviewable under Heckler will be denied. Finally, because defendant Webster has exercised his right under 18 U.S.C. § 3597(b) and 28 C.F.R. § 26.5 not to participate in federal executions and the relief sought by the amended complaint can be provided by the remaining named defendants, the defendants' motion to dismiss Dr. Webster as a named defendant will be granted. Accordingly, it is hereby
*229 ORDERED that the defendants' renewed motion for judgment on the pleadings [160] be, and hereby is, DENIED IN PART insofar as it asserts a statute of limitations bar. It is further
ORDERED that the defendants' renewed motion to dismiss [159] be, and hereby is, GRANTED IN PART and DENIED IN PART. All individual capacity claims are dismissed and defendant Webster is dismissed as a named defendant. The motion is denied in all other respects.
NOTES
[1] Under Federal Rule of Civil Procedure 25(d), Attorney General Eric H. Holder, Jr. and Acting DEA Administrator Michele Leonhart are substituted for their predecessors as parties.
[2] This action has been twice stayed pending the Supreme Court's decisions in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), and Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).
[3] The intervenor plaintiffs prepared their own complaints, but the parties stipulated that the intervenors would simply join in the original plaintiffs' existing pleading.
[4] The plaintiffs also contend that their method-of-execution claims have not yet accrued because a method-of-execution claim alleges a "continuing violation." (See Pls.' Opp'n to Renewed Mot. for J. on the Pleadings at 15-16.). The continuing tort doctrine applies where "no single incident in a continuous chain of tortious activity can `fairly or realistically be identified as the cause of significant harm[.]'" Page v. United States, 729 F.2d 818, 821-22 (D.C.Cir.1984) (quoting Fowkes v. Pa. R.R., 264 F.2d 397, 399 (3d Cir.1959); see Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.2001)) ("A violation is called `continuing'... when it would be unreasonable to require or even permit [the plaintiff] to sue separately over every incident of the defendant's unlawful conduct."). For example, a hostile work environment claim under Title VII alleges a continuing violation because, unlike a discrete act of discrimination, it is based on "repeated conduct ... [that] cannot be said to occur on any particular day." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In such a situation, "the cumulative effect of the conduct [is] actionable," and "`the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases.'" Page, 729 F.2d at 821-22 (quoting Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir.1974), vacated on other grounds, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)). The continuing tort doctrine "becomes relevant only when the tortious conduct is ongoing." Id. at 822 n. 23.
The plaintiffs' method-of-execution challenge does not allege a continuing violation because there is no "continuous chain of tortious activity." Page, 729 F.2d at 821. "The challenged protocol will affect each plaintiff but once." Walker, 550 F.3d at 417 (concluding that the continuous tort doctrine does not apply to a method-of-execution challenge). Similarly, the adoption of the challenged protocol is a discrete action that creates the alleged risk of future injury. Although the risk of future injury for each plaintiff may continue while they are subject to the challenged protocol, there is no ongoing tortious conduct by the government giving rise to a cumulative injury. Accordingly, the continuing tort doctrine is inapplicable to the plaintiffs' claims.
[5] To be entitled to preliminary injunctive relief, a plaintiff generally must "demonstrate four things: (1) that he is substantially likely to succeed on the merits of his suit, (2) that in the absence of an injunction, he would suffer irreparable harm for which there is no adequate legal remedy, (3) that the injunction would not substantially harm other parties, and (4) that the injunction would not significantly harm the public interest." Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C.Cir.1995). "These factors interrelate on a sliding scale and must be balanced against each other." Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C.Cir.1998).
[6] On a motion to lift a stay, a court must be guided by the same equitable considerations that apply when a court determines whether a stay should be issued in the first place. See SEC v. Vision Commc'ns, Inc., Civil Action No. 94-0615(CRR), 1995 WL 109037, at *2-3 (D.D.C. Mar.6, 1995).
[7] The defendants construe this claim as brought only against the DEA Administrator. However, the plaintiffs contend that this claim is brought "against all defendants who have been named in the case" because the defendants' alleged policy "is a coordinated policy established by all Defendants." (Pls.' Opp'n to Renewed Mot. to Dismiss at 8.) At this stage, it must be presumed that the plaintiffs will be able to provide support for their allegation of coordination among all the defendants.
|
659 F.2d 1066
Dadziev.Immigration and Naturalization Service
80-2326
UNITED STATES COURT OF APPEALS Third Circuit
5/29/81
1
I.N.S.
AFFIRMED; PETITION FOR REVIEW DISMISSED
|
90 Cal.App.2d 326 (1949)
THE PEOPLE, Respondent,
v.
ALTA ANDERSON et al., Appellants.
Crim. No. 2522.
California Court of Appeals. First Dist., Div. Two.
Feb. 25, 1949.
Albert A. Spiegel for Appellants.
Fred N. Howser, Attorney General, and Clarence A. Linn, Deputy Attorney General, for Respondent.
GOODELL, J.
By an indictment in four counts the defendants Anderson, Rodley and Jenkins were accused of conspiracy (Pen. Code, 182) to commit abortions, and of committing abortions (Pen. Code, 274), on three women, C. T., L. L. and G. D. It alleged that the offenses were committed in the city and county of San Francisco and the county of San Mateo. The three defendants were tried together and verdicts of guilty were returned on each count. They were sentenced to Tehachapi, with the four sentences running concurrently. A motion for new trial was denied and an appeal taken by each defendant. The Anderson and Rodley appeals were dismissed by them but this appeal was carried forward by defendant Jenkins.
That abortions were performed on each of the three women on January 2, 1947, at the same place in Colma, San Mateo County, was proved by direct evidence which was uncontradicted. None of the defendants took the stand and no witness was called in their behalf. The principal question on this appeal is with respect to the connection of appellant with the conspiracy and with the abortions.
The record shows without dispute that defendant Anderson and her daughter, defendant Rodley, occupied a dwelling at 1097 South Van Ness Avenue, in San Francisco; that on December 27, 1946, C. T. called there by appointment, and on December 30, L. L. and G. D. called there, separately, by appointment. With each woman the procedure was about the same. After waiting in a reception room where other women were waiting they were taken in turn into an operating room where they were given a physical examination to determine whether they were pregnant and if so the approximate stage of pregnancy. Each of the women had become convinced beforehand of her pregnancy and each testified frankly that the purpose of her visit was for an abortion. All three were married. L. L. and G. D. testified that the physical examination was made by defendant Anderson. C. T. testified that she did not know who examined her because of a shade over *328 her face. Each was charged $5.00 for the examination and was told that the abortion would cost $300. In each instance a definite engagement was made for the performance of the abortion a few days later. For L. L. and G. D. the date was January 2 and each of them was told to be in front of a certain well- known business establishment in Daly City at 1 p. m. on the 2d. An earlier date had been set for C. T., but when she found she could not meet it, she was told to be at 1097 South Van Ness at 11:30 a. m. on January 2d.
On that day at 11:30 a. m. C. T. arrived there and was seen to enter. At 12:45 p. m. she, accompanied by defendants Anderson and Rodley, came out the front door and photographs in evidence show them coming out and getting into a Cadillac sedan. Defendants Anderson and Rodley were in the front and C. T. in the back seat.
At 1 p. m. the Cadillac drove up to the rendezvous in Daly City, where L. L. and G. D. were waiting. Defendant Rodley alighted and the car drove up the street a ways where defendant Rodley reentered the front seat and L. L. and G. D. got into the back seat with C. T. The three in the back seat were told that when they got to a certain spot nearing their destination they should slip down to the floor so as not to be seen by the neighbors, which instructions they obeyed.
At 1:12 p. m. the Cadillac drove up to 201 Garden Lane, in Colma, and into the driveway beside the house, where all five women alighted and entered the house by a side door. Two San Francisco police inspectors watching the place from near by saw this.
Each of the three women paid defendant Rodley $300 just before her operation. Each testified that no anaesthetic was administered, and related the circumstances of her operation. None, however, saw the person who operated, for a curtain suspended from above shut off her view of the operation and the operator. Each of the three testified that while on the operating table she heard whispered conversations. Two of them testified that this whispering was between two, and at times three, women, but none could make out what was said. L. L. identified the voices of defendants Anderson and Rodley. C. T. testified that during her operation defendant Rodley stood beside her, near her head.
After the operation each woman was taken to a place to lie down, two on cots in one room, the other on a Chesterfield in another, and while resting the officers entered. *329
Thus far appellant Jenkins has not been mentioned. The two inspectors who saw the Cadillac drive up at 1:12, had arrived at about 12:30. At 12:45 they saw a woman drive up alone in an Oldsmobile, open the garage door, drive in, close the door, and then enter 201 Garden Lane by the front door. They could not see whether she unlocked the door but neither could they see anybody open it from inside. This woman was later identified as appellant.
The officers left about 1:30 or 1:45 and returned about 2:30 and resumed their vigil. About 2:45 defendant Rodley came out of the house and drove off; she was intercepted by the officers about a block away and brought back. When questioned she said nobody but her mother was in the house. When asked if appellant was not there also she answered in the negative and said she had not seen her for a month or six weeks. One of the inspectors went to the rear to watch that part of the premises. The other inspector with an assistant district attorney from San Francisco and defendant Rodley were admitted at the front door by defendant Anderson and found the three women resting after their operations. In the house were surgical instruments and equipment (all of which was introduced in evidence) including an operating table, a sterilizer, a spotlight, drugs and medicines, thermometers, gauze, sponges and surgical dressings. The house, while seemingly a dwelling from outside appearances, with two "for sale" signs in front, was not furnished for occupancy.
Within a few moments after the officers' entry at the front, appellant Jenkins left the house by a side or rear door and was apprehended in the garage by the inspector on watch at the rear. She was without hat or coat, but had her purse under her arm. She had left her fur coat in the house. When asked her name she gave no answer and when asked what she was doing there she answered that she was visiting the people in the house. When brought back inside she and defendant Anderson were questioned. The report of Inspector Ahern, read into the record, shows the following: "I then asked her and Gertrude Jenkins who owned the instruments in the operating room, and Gertrude remained mute. I then turned to Alta Anderson and asked her and she stated that she would not say anything so she said she would take the blame fully, as they were all mine."
On the way back to San Francisco C. T., L. L. and G. D. were taken to the San Francisco Hospital and examined by a physician, who testified that each case showed evidence of *330 recent instrumentation and that in each case an abortion had been performed.
A stop was made at appellant's home on the way back to San Francisco where certain admissions which are detailed later were made by appellant respecting the possession of surgical instruments belonging to her.
[1] Appellant contends that the city and county of San Francisco was not the proper county for the prosecution and trial of this case. Respondent relies on three statutory provisions to fix the jurisdiction and venue in San Francisco.
Section 781, Penal Code, provides that "When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county."
Section 182 provides that "... All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect such conspiracy shall be done."
Section 184 provides that "No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done."
While the abortions were performed in San Mateo County, the preliminary arrangements were made at the house on South Van Ness; there the physical examinations were made; there each of the women was told that $300 would be the charge; there three definite engagements were made for the abortions to be performed on January 2d; hence certain steps were taken in San Francisco which were part of the offenses later consummated in Colma.
In addition to those steps, on January 2d at 12:45 p. m., defendants Anderson and Rodley, with C. T., left the South Van Ness house in their Cadillac, destined for the Colma house. They arrived in Daly City--just across the county line--at 1 p. m. For 15 minutes, then, the two defendants were traveling through San Francisco on their way to the place where the abortions were performed, and there was no change of plan or deviation from their original purpose. This stage of the journey through San Francisco was an integral part of the illegal enterprise.
These acts in San Francisco bring the case within sections 182, 184 and 781. Several cases are directly in point. People *331 v. Duffy, 110 Cal.App. 631 [294 P. 496] and People v. Anderson, 3 Cal.App.2d 521 [40 P.2d 270], were robbery cases prosecuted in Sacramento County. The actual holdups, however, were across the river in Yolo County. In each case the illegal journey started in Sacramento and that reason was held sufficient under section 781 to give Sacramento County jurisdiction. In People v. Benenato, 77 Cal.App.2d 350 [175 P.2d 296] the prosecution was in Sacramento County. That was a pandering case with one count for conspiracy and one for an attempt. The court held the case triable in Sacramento County on both counts, despite the fact that the principal overt act was in Amador County where the appellant maintained a house of prostitution. People v. Anderson, 3 Cal.App.2d 521, supra, cites People v. Grubb, 24 Cal.App. 604 [141 P. 1051] and People v. De Martini, 25 Cal.App. 9 [142 P. 898] (pandering cases) and People v. Steffner, 67 Cal.App. 1 [227 P. 690] (false pretenses) in all of which section 781 was applied.
Other cases where section 781 was applied are cited in People v. Megladdery, 40 Cal.App.2d 748 at 774-777 [106 P.2d 84]. Still others are People v. Mandell, 35 Cal.App.2d 368 [95 P.2d 704]; People v. Megladdery, 40 Cal.App.2d 643 [105 P.2d 385] and People v. Wallace, 78 Cal.App.2d 726 [178 P.2d 771].
We are mindful of the fact that this point is raised by appellant, while thus far we have dealt only with jurisdiction and venue in connection with the other defendants. If, however, appellant is connected up with the conspiracy then what has been just said applies with equal force to her as well, for reasons presently to be given.
[2] Appellant frankly concedes that "because of the difficulty of proving clandestine agreements without such evidence," circumstantial evidence is admissible to prove a conspiracy (People v. Gonzales, 20 Cal.2d 165 [124 P.2d 44]; 5 Cal.Jur. p. 521), but she claims that here the prosecution had to rely on a pyramiding of inferences in order to connect her with the several offenses. We do not agree that any inference had to be based on any other inference to establish such connection. The undisputed facts show the arrival of appellant at the Colma place just 27 minutes ahead of the other two defendants with the three women. They show her entrance into the house and her departure from it, and without resort to inference they show the commission of three felonies in the house between her arrival and departure. Counsel for *332 appellant argues "Assuming that the unidentified third person in the room was Mrs. Jenkins, reason can suggest any of a number of innocent reasons why she would or should have been there" but does not suggest what any one of such reasons might be. The place was not a home; nobody was living there. It was equipped with a large variety of surgical instruments and equipment, all laid before the jury as real evidence and supplemented by numerous photographs of the exterior and interior of the house with the instruments and equipment in place from which the jury could see that on the outside it appeared to be a dwelling house up for sale while on the inside it was outfitted as a surgery. The following comment in People v. Jordan, 24 Cal.App.2d 39, 50 [74 P.2d 519], another conspiracy case, with respect to the presence of a defendant at the scene of the crime applies to this case: "It cannot be reasonably inferred that any of those present would have remained longer than a few minutes if he had not understood or had been deceived in the nature of the enterprise."
The fact that appellant drove right up to the garage door, opened it up, drove in, closed it and then entered the house would warrant the jury in concluding that she was neither a casual visitor, a prospective buyer, nor an intruder, but that she had familiarity with the place and free entry to it. The fact that she arrived just 27 minutes ahead of the other two defendants, who had a definite engagement to commit abortions there was ample basis for the direct inference that appellant was a party to the same engagement.
Appellant argues further that "Certainly, mere presence in a house is insufficient to support a conviction for a crime committed by others in the same house; for then any person found at or near the scene of a crime can be held to be a participant therein. Yet the jury plainly reasoned that 'if she was there, she must be guilty'; for there is no other basis of guilt in this case."
Nobody will question the general proposition that mere presence at the scene of a crime does not necessarily incriminate, but here the direct evidence (without the aid of any inference) shows that three women were in the place within hearing of the women on the operating table, since three women's voices were heard. The presence of defendants Anderson and Rodley was definitely accounted for since they were not only heard but seen in the house. The appellant was seen to enter and leave the place, and from this combination of events, and by the process of elimination, the jury could *333 draw the direct inference that hers was the third voice heard in the operating room.
Appellant left the Colma house by a rear or side door about the time the officers entered the front door, and she left without a hat or coat, but with her purse under her arm. She had opened the garage door where her Oldsmobile was left when apprehended by the inspector. When asked her name she made no answer. When asked what she was doing there she answered that she was visiting the people in the house and "false statements for the purpose of misleading or warding off suspicion" are indicative of a consciousness of guilt. (People v. Cole, 141 Cal. 88, 90 [74 P. 547]; People v. Cooper, 81 Cal.App.2d 110, 117 [183 P.2d 67]; 8 Cal.Jur. p. 42.)
The fact that appellant did not stop to put on her fur coat or even pick it up, and the other circumstances of her departure, invite an inference of flight. "Immediate flight, in the absence of any accusation--in advance, perhaps, of the probability of an accusation, formal or informal--may afford persuasive evidence of a consciousness of guilt" (People v. Waller, 14 Cal.2d 693, 702 [96 P.2d 344], citing People v. Murguia, 6 Cal.2d 190 [57 P.2d 115], and People v. Erno, 195 Cal. 272 [232 P. 710]).
Finally, it may be stated as it was in People v. Waller, supra, at page 702, that when the prosecution rested its case the defendants offered no evidence, nor did they take the witness stand in their own behalf. As declared by section 13 of article I of the state Constitution, "... in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be ... considered by the court or the jury." See, also, People v. Byers, 5 Cal.2d 676, 685 [55 P.2d 1177].
The defendants were taken from the Colma house to Redwood City for booking and on the way back to San Francisco Inspectors Ahern and Baroni and Assistant District Attorney Hirshberg stopped with defendants Anderson and Jenkins at the latter's home at 6017 Mission Street where there was a conversation between Inspector Ahern and defendants Anderson and Jenkins. While appellant's home was being searched Inspector Ahern asked appellant where the equipment was or surgical instruments were, that she had. She stated that she had moved them all out to quite some distance away and in the course of the conversation "She then interrupted and said to the defendant Anderson that she may have forgotten *334 some curettes downstairs in a room in the basement. I [Ahern] asked her for the key to that room, took her and the defendant Anderson downstairs where I met Mr. Hirschberg and Inspector Baroni. I assisted them in making a thorough search of that particular room and after we found no instruments she stated ... to the defendant Anderson that she must have moved them all." Inspector Ahern when shown a report which he had made of this conversation admitted that he had stated therein "I asked her where she left all her equipment and she said it was a long way off, in San Jose."
Appellant knew, defendant Anderson knew, and the inspector knew, the kind of surgical instruments, including curettes, about which they were talking and the jury from these admissions could have concluded that they were discussing instruments used in the performance of abortions.
[3] Appellant contends that the evidence did not connect her with the conspiracy until January 2d, after the overt acts in San Francisco had taken place. In her brief it is said: "Even if a requisite act did take place in San Francisco, it was completed before Mrs. Jenkins was shown to have participated in the crime and consequently has no force to subject her to the jurisdiction of the San Francisco courts."
That the appellant arrived at the Colma house at 12:45, which was exactly the time when defendants Anderson and Rodley entered their Cadillac and left the San Francisco house, is established by direct evidence and not left to inference. From those facts the jury could have concluded that any communication had, or engagement made, between defendants Anderson and Rodley and appellant had to be before the Cadillac's departure at 12:45. For a quarter hour after 12:45 the Cadillac was being driven through San Francisco which was a well defined overt act and an integral part of the illegal enterprise.
"The law fixes no time at which a conspiracy must have been entered into" and "It is not necessary that two persons should meet together and enter into an explicit or formal agreement to commit the crime, or that the conspiracy should be expressed in words. If in any manner the conspirators tacitly come to a mutual understanding to commit a crime it is sufficient to constitute a conspiracy." (People v. Yeager, 194 Cal. 452, 484 [229 P. 40], citing 5 Cal.Jur. p. 497.) There was ample evidence from which the jury could conclude that certain of the overt acts in San Francisco took place after appellant entered the conspiracy. Indeed it would seem that *335 the chronology of events just outlined would force the conclusion that there must have been prearrangement before 12:45 p. m. on January 2d.
It is settled law that in a conspiracy, the act of one is the act of all (People v. Creeks, 170 Cal. 368, 374, 375 [149 P. 821]; People v. Harper, 25 Cal.2d 862, 871 [156 P.2d 249]). Counsel for appellant concedes "that where a conspiracy has been formed and a third party subsequently joins the conspiracy, such person adopts and ratifies all of the prior acts done pursuant to the original conspiracy" (People v. MacPhee, 26 Cal.App. 218, 224 [146 P. 522]), but it is argued that this is only a rule of evidence and has no application in determining where the prosecution should take place. If "the act of one is the act of all" and the new member adopts and ratifies all prior acts, then an overt act taking place in San Francisco would identify this appellant with San Francisco for purposes of jurisdiction and venue just as much as it would the other two defendants, and we have seen that entering the Cadillac and driving it through San Francisco by the other two could well have been after this appellant was a party to the conspiracy. It is to be implied from the verdict that the jury so found.
The evidence was sufficient to support the finding that the appellant was a party to the conspiracy before certain overt acts took place in San Francisco and that she was one of the persons who performed the three abortions.
The judgment of conviction and the order denying appellant's motion for a new trial are affirmed.
Nourse, P. J., and Dooling, J., concurred.
|
No. 82-88
I N THE SUPREPI COURT OF THE STATE OF MONTANA
1982
AVCO FINANCIAL S E R V I C E S
OF B I L L I N G S ONE, I N C . ,
P l a i n t i f f and A p p e l l a n t ,
DANIEL L . C H R I S T I A E N S , BEVERLY A.
C H R I S T I A E N S , 1,ELVIN R. CEIRISTIAENS ,
LINDA K. CMRISTIAENS, ROBERT M.
RODMAN AND SUSAN A. RODMAN,
D e f e n d a n t s and R e s p o n d e n t s .
Appeal from: D i s t r i c t C o u r t of t h e Second J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of S i l v e r Bow
H o n o r a b l e A r n o l d O l s e n , Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For P l a i n t i f f :
John L e s l i e H a n m e r , B u t t e , M o n t a n a
For D e f e n d a n t s :
M a u r i c e A. Maf f e i , B u t t e , Ilontana
S u b m i t t e d on b r i e f s : August 19, 1982
Decided-: October 14, 1982
F i l e d OCT&qSZ
Mr. J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n o f t h e
Court.
F o l l o w i n g t h e d e f a u l t by D a n i e l and B e v e r l y C h r i s t i a e n s
(~hristiaens)
on a l o a n +e AVCO F i n a n c i a l S e r v i c e s ( A V C O ) ,
0m f i x
AVCO o b t a i n e d a judgment a g a i n s t C h r i s t i a e n s f o r $ 8 , 5 7 5 . 1 9 .
AVCO b r o u g h t a d e c l a r a t o r y judgment a c t i o n t o d e t e r m i n e i f
t h e judgment c o n s t i t u t e d a l i e n on c e r t a i n S i l v e r Bow County
property. The D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t
f o r S i l v e r Bow County e n t e r e d a judgment f i n d i n g t h e r e was
no e f f e c t i v e l i e n . W e v a c a t e t h a t judgment.
The f o l l o w i n g i s s u e s w i l l b e c o n s i d e r e d on r e v i e w :
(1) I s a s e c u r e d p a r t y f i r s t r e q u i r e d t o d i s p o s e o f
c o l l a t e r a l given f o r s e c u r i t y of a d e b t i n order t o reduce
t h e amount o f t h e judgment b e f o r e s e e k i n g a n a l t e r n a t i v e
remedy.
(2) I f a j u n i o r encumbrancer p u r c h a s e s a s e n i o r encum-
b r a n c e r ' s i n t e r e s t u n d e r a t r u s t i n d e n t u r e and t h e r e a f t e r
sells t h e p r o p e r t y , does t h i s c o n s t i t u t e a f o r e c l o s u r e under
T i t l e 71, MCA, and i s t h e s e c u r e d p a r t y t h e r e b y p r e c l u d e d
from p u r s u i n g f u r t h e r r e m e d i e s .
AVCO l o a n e d C h r i s t i a e n s a sum of money on J u n e 8 ,
1978. A s s e c u r i t y f o r t h e loan C h r i s t i a e n s executed a
p r o m i s s o r y n o t e and a s e c u r i t y a g r e e m e n t i n f a v o r of AVCO
which g a v e AVCO a l i e n on v a r i o u s h o u s e h o l d goods and on two
o l d e r automobiles. AVCO a l s o r e c e i v e d a s e c o n d t r u s t i n d e n t u r e
l i e n on r e a l p r o p e r t y on E x c e l s i o r Avenue i n B u t t e owned by
Christiaens. The f i r s t l i e n was h e l d on t h i s p r o p e r t y by
Nationwide F i n a n c e Company ( N a t i o n w i d e ) .
On September 28, 1979, t h e l o a n w i t h AVCO was i n d e f a u l t .
AVCO f i l e d a n a c t i o n a g a i n s t C h r i s t i a e n s and judgment was
e n t e r e d on November 1, 1 9 7 9 , by d e f a u l t a g a i n s t C h r i s t i a e n s
f o r $8,575.19 p l u s c o s t s and i n t e r e s t .
The o b l i g a t i o n due Nationwide was a l s o i n d e f a u l t and
Nationwide n o t i c e d f o r e c l o s u r e on i t s t r u s t i n d e n t u r e on t h e
E x c e l s i o r Avenue p r o p e r t y . The s a l e was conducted on November
8 , 1979, and AVCO, t h e second t r u s t i n d e n t u r e l i e n h o l d e r ,
purchased t h e p r o p e r t y a t t h e t r u s t e e ' s s a l e . AVCO h a s
s u b s e q u e n t l y s o l d t h e p r o p e r t y on E x c e l s i o r Avenue a t a
loss.
O November 1, 1979, t h e d a t e of e n t r y of judgment
n
a g a i n s t C h r i s t i a e n s , t h e y a l s o owned i n t e r e s t s of r e c o r d i n
l a n d d e s c r i b e d a s p l a t 170-B l o c a t e d i n S i l v e r Bow County.
On March 28, 1980, C h r i s t i a e n s s o l d t h e i r t r a c t 170-B l a n d
t o d e f e n d a n t s Rodman f o r $70,000--of which $8,611.19 was
h e l d back by Summit V a l l e y T i t l e Company pending f i n a l
d e t e r m i n a t i o n o f AVCO by way of t h e i r judgment l i e n .
The f i r s t i s s u e i s whether a s e c u r e d p a r t y i s f i r s t
required t o dispose of c o l l a t e r a l given f o r s e c u r i t y of a
d e b t i n o r d e r t o r e d u c e t h e amount o f t h e judgment b e f o r e
s e e k i n g a n a l t e r n a t i v e remedy.
I n o r d e r t o s e c u r e t h e l o a n w i t h AVCO, C h r i s t i a e n s
gave AVCO a l i e n on a 1969 Oldsmobile, a 1972 C h e v r o l e t
p i c k u p , and household goods and f u r n i t u r e . After default
AVCO d i d n o t a t t e m p t t o t a k e p o s s e s s i o n of any of the security.
C h r i s t i a e n s t e s t i f i e d t h a t he d r o v e t h e Oldsmobile " u n t i l
t h e f r o n t end b a l l j o i n t s w e r e r e a l bad" and t h a t h e " p a r k e d
t h e c a r and e v e n t u a l l y it was junked o u t . " Christiaens also
t e s t i f i e d t h a t t h e t r a n s m i s s i o n went o u t on t h e C h e v r o l e t
p i c k u p and t h a t he " f i n a l l y s o l d i t f o r p a r t s . " Most of t h e
household goods and f u r n i s h i n g s were l e f t i n t h e house on
E x c e l s i o r Avenue, b u t t h e C h r i s t i a e n s s t i l l had t h e washer
and d r i e r .
Mark Ayers, manager of t h e B u t t e AVCO o f f i c e , t e s t i f i e d
t h a t AVCO does n o t r e p o s s e s s a s e c u r i t y i f they f e e l t h a t
t h e r e was no way t h e y would g e t t h e i r p r i n c i p a l back by
doing so.
C h r i s t i a e n s c o n t e n d t h a t AVCO i s f i r s t r e q u i r e d t o t a k e
p o s s e s s i o n of t h e c o l l a t e r a l and f i r s t d i s p o s e o f i t i n a
r e a s o n a b l y commercial manner b e f o r e a t t e m p t i n g t o a c q u i r e
any d e f i c i e n c y and t h a t s i n c e AVCO d i d n o t r e p o s s e s s any o f
t h e c o l l a t e r a l i t s h o u l d b e p r e c l u d e d from a t t e m p t i n g t o
e n f o r c e i t s judgment on t h e s a l e o f t h e t r a c t 170-B l a n d .
S e c t i o n 30-9-504(1), MCA, provides: "A s e c u r e d p a r t y
a f t e r d e f a u l t may s e l l , l e a s e o r o t h e r w i s e d i s p o s e o f any -
or
of t h e c o l l a t e r a l i n i t s then c o n d i t i o n . . ." (Emphasis
added.) I n a d d i t i o n , s e c t i o n 30-9-501(1), MCA, provides:
"When a d e b t o r i s i n d e f a u l t u n d e r a s e c u r i t y a g r e e m e n t , a
secured party. . .may r e d u c e h i s c l a i m t o judgment, foreclosure
o r o t h e r w i s e e n f o r c e t h e s e c u r i t y i n t e r e s t by any a v a i l a b l e
j u d i c i a l procedure." The Utah Supreme C o u r t , i n c o n s i d e r i n g
t h e same Uniform Commercial Code s e c t i o n a l l o w e d a s e c u r e d
party t o " a t i t s option, ignore t h a t security [personal
p r o p e r t y ] and s a t i s f y i t s judgment from o t h e r p r o p e r t y [ r e a l
p r o p e r t y ] i n t h e hands o f t h e judgment d e b t o r . " Kennedy v .
Banlc o f Ephraim ( U t a h 1 9 7 9 ) , 594 P . 2d 881, 884.
" [ T l h e c r e d i t o r c a n i g n o r e h i s s e c u r i t y i n t e r e s t and
o b t a i n a judgment on t h e u n d e r l y i n g o b l i g a t i o n and p r o c e e d
by e x e c u t i o n and l e v y . " J . White & R . Summers, Uniform
Commercial Code, a t 962-963 (1972). I t may n o t a l w a y s b e
p r a c t i c a l f o r t h e secured p a r t y t o f i r s t t a k e p o s s e s s i o n of
t h e c o l l a t e r a l and a t t e m p t t o s e l l i t i f t h e v a l u e o f t h e
c o l l a t e r a l h a s s o d i m i n i s h e d t h a t t h e p r o c e e d s from r e s a l e
would c l e a r l y b e i n s u f f i c i e n t t o s a t i s f y t h e d e b t . I t may
t h e n b e t o t h e s e c u r e d p a r t y ' s a d v a n t a g e t o p r o c e e d by
judgment and e x e c u t i o n b e c a u s e i n t h a t way he c a n r e a c h
a s s e t s i n a d d i t i o n t o t h e c o l l a t e r a l and c a n e l i m i n a t e t h e
t w o - s t e p p r o c e s s o f f i r s t s e l l i n g t h e c o l l a t e r a l and t h e n
suing f o r a deficiency.
W e hold t h a t a secured c r e d i t o r i s n o t required t o
f i r s t t a k e p o s s e s s i o n and d i s p o s e o f c o l l a t e r a l b e f o r e
o b t a i n i n g a judgment a n d e x e c u t i o n upon o t h e r p r o p e r t y owned
by t h e d e b t o r .
The second i s s u e i s i f a j u n i o r encumbrancer p u r c h a s e s
a s e n i o r e n c u m b r a n c e r ' s i n t e r e s t u n d e r a t r u s t i n d e n t u r e and
t h e r e a f t e r s e l l s t h e property, does t h i s c o n s t i t u t e a f o r e c l o s u r e
under ~ i t l e
71, MCA, and i s t h e s e c u r e d p a r t y t h e r e b y p r e c l u d e d
from p u r s u i n g f u r t h e r r e m e d i e s .
A s p a r t o f t h e c o l l a t e r a l , AVCO r e c e i v e d a s e c o n d l i e n
i n t h e form of a t r u s t i n d e n t u r e on p r o p e r t y t h a t C h r i s t i a e n s
owned on E x c e l s i o r Avenue. Nationwide had t h e f i r s t l i e n
a l s o i n t h e form o f a t r u s t i n d e n t u r e . On November 8 , 1 9 7 9 ,
Nationwide f o r e c l o s e d and t h e p r o p e r t y was s o l d by b i d i n
conformance w i t h T i t l e 71, MCA, r e g a r d i n g t r u s t i n d e n t u r e s .
AVCO was t h e s o l e b i d d e r f o r $ 7 , 8 5 6 . 6 1 - - t h e amount d u e on
Nationwide's balance. AVCO t h e n s o l d t h e p r o p e r t y t h r o u g h a
Butte realtor. AVCO r e c e i v e d a g r o s s s a l e p r i c e o f $8,200
and a f t e r p a y i n g t h e t a x e s and s e l l i n g e x p e n s e s , AVCO n e t t e d
a p p r o x i m a t e l y $6,711.
C h r i s t i a e n s contend t h a t when AVCO b o u g h t and s o l d t h e
E x c e l s i o r Avenue p r o p e r t y , AVCO p r o c e e d e d u n d e r T i t l e 71,
MCA, and i s p r e v e n t e d from any f u r t h e r r e c o v e r y b e c a u s e o f a
d e f i c i e n c y u n d e r s e c t i o n 71-1-317, MCA, which p r o v i d e s :
"When a t r u s t i n d e n t u r e e x e c u t e d i n c o n f o r m i t y w i t h t h i s
p a r t i s f o r e c l o s e d by a d v e r t i s e m e n t and s a l e , no o t h e r o r
f u r t h e r a c t i o n , s u i t , o r proceedings s h a l l be t a k e n o r
judgment e n t e r e d f o r any d e f i c i e n c y a g a i n s t t h e g r a n t o r . .
I'
The c o n t e n t i o n on t h e p a r t o f C h r i s t i a e n s and t h e h o l d i n g
o f t h e ~ i s t r i c t o u r t s u g g e s t s c o n f u s i o n a s t o t h e p a r t y who
C
in fact foreclosed. AVCO did not foreclose on the Excelsior
Avenue property. Nationwide did foreclose on that property
in accordance with the procedure under Title 71, MCA, the
"Small Financing Act." At the sale conducted by Nationwide,
AVCO bid on the property in the amount owed to Nationwide
and AVCO then received a trustee's deed covering the
Excelsior Avenue property. The title which AVCO received by
that trustee's deed had no relationship to AVCO's junior
trust indenture lien, or to AVCO's judgment lien. Section
71-1-318, MCA, describes the trustee's deed:
"(3) The trustee's deed shall operate to
convey to the purchaser, without right of
redemption, the trustee's title and all
right, title, interest, and claim of the
grantor and his successors in interest and
of all persons claiming by, through, or
under them in and to the property sold. . ."
The trustee's deed in this case transferred the title
originally held by Nationwide as trustee and including all
right, title and interest of the Christiaens and all those
claiming through them in and to the Excelsior Avenue property.
Such trustee's deed has the affect of eliminating the AVCO
trust indenture lien under its junior trust indenture, and
also eliminating the AVCO judgment lien. As a result of the
trustee's deed, AVCO became the owner of the Excelsior
Avenue property with a right to sell the same in any manner
it chose. Under section 71-1-317, MCA, relied upon by the
Christiaens, Nationwide was prohibited from taking a deficiency
judgment. That section in no way applied to AVCO as a
purchaser. AVCO therefore had the right to sell the Excelsior
Avenue property without regard to section 71-1-317, MCA.
AVCO did suffer a loss of approximately $1,145 when it sold
the Excelsior Avenue property, but AVCO is not attempting to
recover from Christiaens any part of that loss. AVCO is
only seeking to recover the amount of its judgment entered
on November 1, 1979, plus interest.
We hold that AVCO is entitled to a declaratory judgment
establishing that its judgment of November 1, 1979, constituted
a lien upon the land described as plat 170-B, Silver Bow
County.
We vacate the judgment of the District Court in favor
of the Christiaens, and direct the court to enter a judgment
for AVCO in accordance with this opinion.
We Concur:
%+
~LdLdl.
Chief Justice
|
Filed 1/29/14 P. v. Seaton CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B246548
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA089436
v. consolidated with No. NA089702)
JAMAL SEATON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard R. Romero, Judge. Affirmed.
Kevin Michele Finkelstein, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Jamal Seaton appeals his conviction by jury verdict of one count of felony
vandalism. His appointed counsel found no arguable issues for appeal. We find no
arguable issues and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was charged with seven offenses arising from incidents occurring at two
separate locations on the same day, one on West 19th Street in San Pedro and the other
on Magnolia Street. One charge (count 3) was dismissed on the prosecution’s motion in
the interests of justice. Of the remaining counts, appellant was found not guilty by the
jury of all charges except count 6, felony vandalism at the residence at West 19th Street.
That charge arose out of an altercation with his former girlfriend, Kameron C. We
therefore confine our review and discussion to the single count on which appellant was
convicted and sentenced.
Kameron C. testified that she began dating appellant in 2004 and continued to see
him off and on until sometime in 2010. He is the father of her five-year-old twin
daughters. She and appellant did not stay in contact after ending the relationship and
Kameron did not consider him to be a friend.
On July 5, 2011, Kameron, the twins, and her dog lived on West 19th Street.
Appellant was not allowed to come to her home or to visit the children without
permission. At 2:20 in the morning, Kameron was sleeping in the bedroom with her
daughters. She was woken by the noise of the front gate to the house opening. Then she
heard a noise at the window. She looked and saw appellant at the window. At first he
was yelling, but she could not make out what he was saying through the closed window.
When she saw appellant, Kameron started to dial 911 on her cordless telephone
because she had a restraining order against him. Appellant slid the unlocked window
open and reached inside. Kameron threw the telephone. The dog was on the bed right
under the window. Appellant grabbed the dog and tried to pull it through the window.
Kameron held onto the dog and a struggle followed. Appellant banged Kameron’s arms
against the windowsill and hit her, but was unable to get possession of the dog.
2
Appellant then went to the front door and kicked it in. Kameron entered the living
room and saw appellant lift her laptop and smash it on the floor, then smash the printer on
the floor as well. Kameron used her cell phone to call 911. Appellant hit her. He left
with the dog. Kameron estimated the value of the laptop at $600 and the printer at $100.
She identified photographs of her damaged laptop and printer.
An information was filed and amended charging appellant with vandalism causing
over $400 in damage arising from the damage to Kameron’s computer equipment.
(§ 594, subd. (a).) During pretrial proceedings, defense counsel declared a doubt as to
defendant’s competence to stand trial. Criminal proceedings were suspended and an
examination of appellant was ordered. Dr. Kaushal K. Sharma conducted a psychiatric
examination of appellant under Evidence Code section 730 in order to determine whether
he was competent to stand trial in relation to the charges arising from the incident at the
house on Magnolia Street. Dr. Sharma concluded that appellant did not demonstrate any
psychotic symptoms. He demonstrated understanding of his legal predicament, the
possible consequences, the role of various court officials, and the circumstances under
which he was taken into custody, although he minimized his criminal behavior.
Dr.Sharma concluded that appellant was competent to stand trial. The report indicated
that the court might wish to issue a medical minute order asking the jail psychiatrist to
evaluate appellant for possible medication. Appellant had stated during the interview that
he needed medication.
Dr. Sanjay M. Sahgal conducted a psychiatric evaluation of appellant in December
2012 regarding the same incident. He observed that appellant had a severe problem with
methamphetamine dependence and in the past had experienced psychotic symptoms
during and after chronic abuse of that drug. Dr. Sahgal concluded that appellant was
capable of forming an intent to commit the charged crimes at the time of commission.
Appellant described a prior history of psychiatric treatment through outpatient clinics for
depression and mood instability. Appellant denied prior psychiatric hospitalization. The
court considered the two psychiatric reports and found appellant mentally competent to
stand trial.
3
In February 2012, case No. NA089436 (the Magnolia Street incident) was
consolidated with case No. NA089702 (regarding Kameron C.) and the information was
amended to add those counts. It was alleged that appellant suffered prior strike
convictions under the Three Strikes law in 1999 for burglary in violation of Penal Code
section 4591 (case No. VA054495, a guilty plea) and in 2006 for second degree robbery
in violation of section 211 (a no contest plea) (case No. NA067897). It also was alleged
that appellant suffered a prior conviction for residential burglary in 1999, a violation of
Health and Safety Code section 11352, subdivision (a) in 2000, and a robbery conviction
in 2006 under sections 667.5, subdivision (b) and 1203, subdivision (e)(4). Appellant
pled not guilty to the consolidated amended information.
Jury trial began on August 21, 2012. The court granted appellant’s motion to
bifurcate trial of the priors. Defense counsel requested an in camera hearing as to
whether certain defense evidence had to be disclosed to the prosecution. The trial court
ruled that the information, relevant to count 5 (corporal injury), had to be disclosed. The
discovery was given to the prosecutor. The trial court ruled that if appellant testified, he
could be impeached with prior convictions for residential burglary and robbery, finding
the convictions were not unduly prejudicial and their probative value was not
substantially outweighed by the danger of undue prejudice or confusion.
During cross-examination of Kameron, defense counsel showed her a document
Kameron wrote after the July 2011 incident. Counsel asked Kameron if she wrote the
statement “‘I have to live with this fake tooth for the rest of my life. He deserves a third
strike to sit in jail for the rest of his life.’” The prosecutor objected. At sidebar, the court
admonished defense counsel that normally the jury was not told a case was a third strike
case. It stated that if the issue arose, it needed to be addressed outside the presence of the
jury. The fact that the witness made the statement did not make it admissible. The court
expressed concern that the third strike language was a red flag to jurors. Defense counsel
argued that she wanted the statement admitted because it showed Kameron had a motive
1 Statutory references are to the Penal Code unless otherwise indicated.
4
to “put him away.” The court commented that this could have been accomplished by
saying “he deserves life in prison” and that the court’s issue was with the term “‘three
strike.’”
Defense counsel inquired whether the court planned to ask the jury to disregard it.
The court said: “I don’t want to emphasize it now and tell the jurors, ‘disregard what you
just heard,’ and they will think, ‘Oh, boy, that’s really important. Now I have to
disregard it.’” The prosecutor said he believed the entire point of bifurcating priors is so
the jury does not find out the defendant is facing a third strike charge. The court agreed,
and suggested there was no point in bifurcating any longer. Defense counsel suggested
that if admonishing the jury would be curative, she would agree, subject to the agreement
of her client. The trial court said: “I was just venting. There is no cure here. We just
move on.” The prosecutor asked the court to admonish defense counsel to avoid any
further mention of three strikes or life in prison. Defense counsel argued the importance
of Kameron’s motive to frame appellant. The court advised defense counsel that she
could argue that Kameron had a motive because she wanted appellant to be punished
severely, but that no mention was to be made of “‘three strike.’”
The court and counsel then discussed how the written statement could be redacted.
It was agreed that the phrase “jail for the rest of his life” could be substituted for the
redacted “third strike” in the statement written by Kameron. Without repeating the actual
words, the court struck the question and answer in which Kameron said she had written
that appellant deserved a third strike. The jury was admonished not to consider it.
Defense counsel then asked: “Did you write in this document that I showed you in
defense [exhibit] A that, ‘I have to live with this fake tooth for the rest of my life. He
deserves to sit in jail for the rest of his life’?” Kameron said she had. The defense also
was allowed to question Kameron as to whether she lied about the incident with appellant
in order to cover up a sham marriage to another man.
After the People rested, the defense moved to dismiss counts 1 through 7 pursuant
to section 1118.1. The trial court dismissed count 3, but denied the motion as to the
remaining counts. The jury was informed that count 3 had been dismissed.
5
The defense presented witnesses who testified that Kameron repeatedly
telephoned them before July 2011 to find out where appellant was and that she was upset
by his relationship with another woman.
Appellant testified in his own defense. He said that he had a relationship with
Kameron until he was arrested in 2011. He stayed with her several days a week. She
was upset about his relationship with Robin Underwood, who became pregnant in 2009.
Kameron had told him she entered into a sham marriage with a man named Zouhair
Mouchtachar for several thousand dollars.
According to appellant, Kameron asked him to come over on July 4, 2011 to help
her because she was still healing from recent surgery. After she and the children went to
bed, he went to sleep on the couch in the living room. Later that night he heard a noise,
and saw the door opening. He got into a tussle with the man who had entered the
residence. When Kameron turned on the lights appellant saw that it was the man
Kameron had married. Kameron screamed and grabbed appellant to get him off of the
man. The man reached into his pants. Appellant grabbed the first thing available, the
computer, and tried to throw it at the man’s head. Appellant left the residence and the
dog followed him.
During deliberations, the jury requested the readback of the testimony of Emanuel
Kirton and Daniel Brown and asked to review the police report by Long Beach Police
Officer Juarez, who investigated the Magnolia incident. The court responded that the
police report was not in evidence and therefore could not be given to the jury. The
testimony of witnesses Kirton and Brown was read back. Later the same day, the jury
asked: “Were the photos of Kameron C. and her home (People’s exhibit 3, 4, 5, 7, 8, 9,
etc.) taken by the police, on the night of the incident?” The jury also submitted the
following to the court the same day: “Are the photos provided of Kameron C.’s home &
person photos that were taken by the police? That is, are they police photos or photos
that were taken by someone else?” The court responded: “Besides the readback, there is
no further testimony regarding when any pictures were taken, or by whom.”
6
The jury found appellant guilty of vandalism (count 6) but not guilty on all other
charges. Appellant was advised of his right to trial on the prior conviction allegations
and waived it. He admitted the prior allegations. Prior to sentencing, appellant moved to
dismiss his prior convictions under section 1385 and People v. Superior Court (Romero)
(1996) 13 Cal.4th 497. He cited the nature of the current offense, and argued that even
without the strike allegations, appellant would receive a lengthy sentence. In addition he
cited factors relied upon by the court in People v. Garcia (1999) 20 Cal.4th 490, 503,
including the fact that one of his prior prison terms arose from a single period of aberrant
behavior, he had cooperated with police, his crimes were related to drug addiction, and he
did not have a violent criminal history.
At sentencing, probation was denied. The trial court struck the residential
burglary strike but denied the motion as to the other strike conviction. It imposed the
upper term of six years on count 6, plus one year for the prior convictions pursuant to
section 667.5(b) for a total term of nine years in prison. Appellant was given total credit
time for 771 days in custody (514 days actual and 257 days good time/work time). He
was ordered to pay a $240 restitution fine (§ 1202.4), a parole restitution fine
(§ 1202.45), a $40 court security fee (§ 1465.8) and a $30 court facilities assessment
(Gov. Code, § 70373). He filed a timely appeal.
DISCUSSION
We appointed counsel to represent appellant on appeal. Appointed counsel filed
an appellate brief raising no issues, but asking that we independently review the record
on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441–442. We advised
appellant that he had 30 days within which to submit by brief or letter any contentions or
argument he wished this court to consider. We have received no response to this letter.
We have independently reviewed the entire record on appeal and find no arguable issues
that could aid appellant.
7
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
8
|
Filed 7/1/16 P. v. Sims CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B263878
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA059763)
v.
JERMAYNE LAMAR SIMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Eric P.
Harmon, Judge. Affirmed as modified.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Jermayne Lamar Sims was convicted of making a criminal threat (Pen.
Code, § 422) and numerous other offenses connected with stalking his ex-girlfriend,
M.R.1 He raises three issues on appeal. First, he contends there was insufficient
evidence of sustained fear to support his criminal threat conviction. Second, he argues
that the amount of restitution recorded on the abstract of judgment should be stricken
because it was not orally pronounced at sentencing. Lastly, he claims that the trial court
erroneously miscalculated the presentence custody time credited to his sentence.
We find substantial evidence supports the conviction. We refuse to strike the
amount of restitution recorded on the abstract of judgment because the trial court held a
proper restitution hearing. However, we agree that the trial court erroneously
miscalculated the amount of presentence credit. Except for the presentence credit
modification, we affirm.
FACTS AND PROCEDURAL HISTORY
This appeal focuses on the hostile message defendant left on M.R.’s telephone in
which he threatened to break her window and “f[uck her] up.” However, to provide
context, we discuss M.R.’s prior history with defendant. M.R. and defendant began
dating in 2012, but had problems in their relationship almost from the outset. Defendant
was controlling, threw tantrums, yelled, and threatened M.R. M.R. did not want
defendant to move in with her, but defendant did as he pleased; he kept a car with his
belongings parked at her home and even began receiving his mail at M.R.’s address.
M.R. ended the relationship in July 2012, but defendant’s intimidating behavior
continued. He stalked and threatened M.R. and, out of fear, she would accede to his
demands, whether to allow him to enter or stay the night.
Before M.R. ended the relationship, she became pregnant with defendant’s child,
and in November 2012 gave birth. M.R. still did not feel safe around defendant, so did
not want him living with her. However, because M.R. believed it was important for the
1 All statutory references are to the Penal Code.
2
child to know her father, she tried to be cordial and to reason with defendant. M.R. told
defendant he would be allowed to visit the child, but only when she permitted.
Defendant became enraged and, in an act of vengeance, raped M.R. In a desperate
attempt to escape the sexual abuse, M.R. jumped out of a window, breaking both her legs.
In February 2013, M.R. obtained a restraining order against defendant. When
defendant was served with the restraining order, he ripped it up on the spot. Disregarding
the restraining order and undeterred by M.R.’s frequent calls to the police, defendant
continued to come and go as he pleased. Somehow, he obtained a key to M.R.’s house,
which he used until she changed the locks. Undiscouraged by the change of locks,
defendant continued to invade M.R.’s home by climbing through windows, using the
garage door, and kicking the doors in. Finally, on February 22, 2013, defendant was
arrested for violating the restraining order. He was in county jail from that date until
March 23, 2013.
Between March 23 and March 24, 2013, M.R. received three telephone messages
from defendant.2 In the first message, defendant told M.R. that if she did not want any
problems at her house, she needed to answer his phone calls. In the second, he threatened
to “bust out all the fucking windows” and “stab out all the fucking tires” on her van. In
the third, he threatened to “bust out [her] motherfucking window” and to “f[uck her] up.”
M.R. was terrified that defendant would carry out his threats.
On May 2, 2013, approximately one month after defendant left M.R. the
threatening messages, he went to M.R.’s home at 11:00 at night and refused to leave
despite M.R.’s repeated requests. Afraid to provoke defendant, M.R. ultimately allowed
him to sleep there. Early the next morning, defendant tried to steal M.R.’s house and car
2 The operative information alleged the threatening phone calls occurred between
March 17 and 24, 2013. Defendant notes he was in jail for most of this period and could
not have made the calls while incarcerated. The jury was properly instructed that the
prosecution was not required to prove that the offense took place on an exact date, only
that it happened reasonably close to that date. In any event, there was a two-day window
in which defendant had been released from jail, and the jury reasonably could have found
that he likely left the messages during that time.
3
keys, but M.R. caught him in the act, and the two argued. The argument moved outside,
where defendant reversed his car over M.R.’s feet. She yelled out in pain. He then put
the car in drive, and pulled forward running over her feet a second time. Nigel, M.R.’s
adult son, ran after defendant yelling that he had hurt M.R. Defendant punched Nigel
through the open car window and then proceeded to drag him down the street with the
car. Following this incident, M.R. played defendant’s threatening messages to the police
and had two of her sons disconnect the garage door opener to prevent defendant from
coming in through the garage. After further stalking, harassing, and vandalism,
defendant was eventually arrested on January 23, 2014.
Defendant was charged by an amended eight-count information with stalking
(§ 646.9), felony and misdemeanor vandalism (§ 594), two counts of assault with a
deadly weapon (§ 245), dissuading a witness (§ 136.1), and making criminal threats.
Several prior conviction enhancements were alleged. Defendant pleaded not guilty and
the case proceeded to jury trial. The jury found defendant guilty of stalking, making a
criminal threat, both counts of assault with a deadly weapon, and one count of felony
vandalism. The court also found the allegations as to defendant’s priors to be true.
Defendant was sentenced to a total of 22 years in prison. The trial court advised the
parties at sentencing that a restitution determination would be made at a later date.
Neither party objected. The trial court held a restitution hearing on February 20, 2015,
and ordered victim restitution in the amount of $9,684.40. Defendant appealed from the
judgment.
DISCUSSION
1. Sufficiency of Evidence to Support a Finding of Sustained Fear
a. Standard of Review
Defendant’s only argument on the merits of any of the counts of which he was
convicted is a substantial evidence challenge to the criminal threats charge. He claims
insufficient evidence of sustained fear. Claims challenging the sufficiency of the
evidence to uphold a judgment are reviewed under the substantial evidence standard.
4
Under this standard, “ ‘ “an appellate court reviews the entire record in the light most
favorable to the prosecution to determine whether it contains evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find [the elements of
the crime] beyond a reasonable doubt.” ’ [Citation.]” (In re George T. (2004) 33 Cal.4th
620, 630-631 (George T.).) Resolution of credibility issues and evidentiary conflicts,
such as inconsistencies in the testimony, “is the exclusive province of the trier of fact.”
(People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) If the evidence reasonably
justifies the trier of fact’s findings, the reviewing court’s opinion that the evidence might
also reasonably support a contrary finding does not warrant a reversal of the judgment.
(George T., at pp. 630-631.) Unless “the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction.” (Young,
at p. 1181.)
b. Criminal Threats Elements of Offense
In order to sustain a conviction of a criminal threat under section 422, the
prosecution must prove the following elements: “ ‘(1) that the defendant “willfully
threaten[ed] to commit a crime which will result in death or great bodily injury to another
person,” (2) that the defendant made the threat “with the specific intent that the statement
. . . is to be taken as a threat, even if there is no intent of carrying it out,” (3) that the
threat . . . was “on its face and under the circumstances in which it [was] made, . . . so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the threat,”
(4) that the threat actually caused the person threatened “to be in sustained fear for his or
her own safety or for his or her immediate family’s safety,” and (5) that the threatened
person’s fear was “reasonabl[e]” under the circumstances.’ [Citation.]” (George T.,
supra, 33 Cal.4th at p. 630, citing People v. Toledo (2001) 26 Cal.4th 221, 228.)
Here, defendant argues that the evidence was insufficient that M.R. was in
sustained fear. Sustained fear refers to an emotional state of mind spanning a period of
time that is more than momentary, fleeting, or transitory. (People v. Allen (1995)
33 Cal.App.4th 1149, 1156 (Allen).) The requirement that the victim reasonably be in
5
sustained fear has a subjective and an objective component. Under the fourth and fifth
elements discussed in George T., a victim must actually be in sustained fear, and the
sustained fear must also be objectively reasonable under the circumstances. (In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The surrounding circumstances that a jury
may consider under both elements include: the relationship of the parties, a victim’s
knowledge of the defendant’s prior conduct, and the manner in which the communication
was made. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) Moreover, “a threatening
statement does not have to be the sole cause of the victim’s fear and that a statement the
victim does not initially consider a threat can later be seen that way based upon a
subsequent action taken by a defendant.” (People v. Solis (2001) 90 Cal.App.4th 1002,
1014 (Solis).)
c. Analysis
1. Evidence of Subjective Fear
We discuss first the evidence as to subjective sustained fear. Here defendant had a
history of stalking and harassing M.R., and M.R. had called the police for help with the
situation several times prior to the threatening phone messages. Moreover, M.R. had
obtained (and defendant was aware of) a restraining order against him. Defendant was
subsequently arrested for violating that restraining order and the court entered a criminal
protective order against him. Finally, M.R. was a victim of sexual abuse at the hands of
defendant prior to making the criminal threat. M.R. even jumped out of a window,
breaking both her legs, in order to escape that abuse. M.R.’s knowledge of defendant’s
prior conduct relates directly to her mental and emotional state after defendant left the
threatening message on her phone, and the jury reasonably could have found that M.R.
was actually (subjectively) in sustained fear.
Defendant’s conduct after leaving the threatening message enhanced the nature of
his messages and contributed to the subjective element of her sustained fear. On May 2,
2013, approximately one month after defendant’s message said that he would “f[uck
M.R.] up,” he went to M.R.’s home, uninvited, at 11:00 p.m. and refused to leave. The
next morning, after an altercation, defendant ran over M.R.’s feet with his car, twice.
6
M.R.s son, Nigel, chased after defendant’s car, leading defendant to punch and drag him
down the street. Defendant’s subsequent actions gave meaning to his earlier message and
indicated, subjectively, to M.R. that he was serious when he made the threat. Indeed,
following the incident with the car, M.R. played Defendant’s threatening messages to the
police and had her sons disconnect the garage door opener to prevent defendant from
coming in through the garage. Thus, the jury properly concluded that M.R. was actually
in sustained fear.
2. Evidence of Objective Fear
The objective element of sustained fear is similarly satisfied. All of the facts
demonstrate that defendant had access to M.R. and her family and could hurt them. The
jury could find it objectively reasonable that defendant’s increasingly menacing behavior
caused M.R. to be in sustained fear for her and her family’s safety until he was finally
arrested.
Defendant contends that the evidence is insufficient to support a finding of
sustained fear for several reasons. First, he claims that there were no facts that suggested
M.R. was in sustained fear for any period of time. The definition of sustained fear set
forth in Allen does not require that a victim be in sustained fear for a calculable period of
time, only that the fear be sustained beyond what is momentary, fleeting, or transitory.
(Allen, supra, 33 Cal.App.4th at p. 1156.) In Allen, the 15 minutes in which the victim
was threatened at gunpoint was more than fleeting. (Ibid.) Here, M.R. testified that the
messages left by defendant caused her fear. Moreover, a threatening statement by the
defendant is considered in the context of surrounding circumstances, including the
defendant’s subsequent conduct. (Solis, supra, 90 Cal.App.4th at p. 109.) Here,
defendant’s actions after leaving the message indicated to M.R. that he was serious, that
he had access to her and her family, and that he could hurt them. Such circumstances
reasonably caused M.R. to be in sustained fear for her and her family’s safety until
defendant was finally arrested.
Next, defendant argues that the jury could reasonably infer that M.R. was not in
sustained fear because she did not contact the police immediately after receiving the
7
messages or take any immediate steps to protect herself and her children in response.
That is not the test. Even if the evidence might also reasonably support a contrary
finding, a reversal is not warranted if the evidence reasonably justifies the jury’s findings.
(George T., supra, 33 Cal.4th at pp. 630-631.) In any event, there is no requirement that
the victim must call the police for the jury to find sustained fear. (People v. Stanfield
(1995) 32 Cal.App.4th 1152 [victim did not call police until after receiving a package
containing a dead cat because the package greatly changed the circumstances of the
earlier telephoned threat].) Here, the jury could properly consider the fact that after
defendant left the threatening message, he ran over M.R.’s feet and dragged her son down
the street with a car, extending the period of fear. After defendant’s conduct had proven
his threat to be serious, M.R. played the threatening messages for the police. The delay
does not undermine the jury’s finding of sustained fear.
2. Restitution
Defendant also argues that the amount of restitution recorded on the abstract of
judgment must be stricken because it was not orally pronounced at sentencing. Section
1202.46 provides that “when the economic losses of a victim cannot be ascertained at the
time of sentencing pursuant to subdivision (f) of section 1202.4, the court shall retain
jurisdiction over a person subject to a restitution order for purposes of imposing or
modifying restitution until such time as the losses may be determined. (§ 1202.46.)
Here, the record shows that the parties agreed at the sentencing hearing that if any
restitution were owed, the prosecutor would advise the court at a later date. The trial
court then properly held a restitution hearing on February 20, 2015, at which defendant
was present and was represented by counsel. Insofar as neither party designated the
reporter’s transcript for inclusion in the record on appeal, there is no reporter’s transcript
of the restitution hearing. Nonetheless, the minute orders in the clerk’s transcript indicate
that restitution was properly ordered at the restitution hearing on February 20, 2015. We
find no error.
8
3. Defendant’s Presentence Credits
Defendant’s final argument is that the trial court erroneously miscalculated the
amount of presentence credits. Respondent agrees with defendant that he is entitled to
another day of custody credit. A defendant is entitled to credit for days spent in actual
custody beginning with the date of arrest and continuing until the date of sentencing.
(People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Here, defendant was arrested on
January 23, 2014 and was sentenced on June 18, 2014. Thus, defendant was entitled to
147 days of custody credit, one day more than the 146 days he received. We order the
abstract of judgment modified.
DISPOSITION
The superior court is directed to modify the abstract of judgment to reflect that
defendant is entitled to 147 days of custody credit. The superior court is to forward a
corrected copy of the abstract of judgment to the Department of Corrections. As
modified, the judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
9
|
230 S.W.3d 77 (2007)
STATE of Missouri, Respondent,
v.
David Michael HOLMAN, Appellant.
No. 28021.
Missouri Court of Appeals, Southern District, Division Two.
August 14, 2007.
*78 Matthew Michael Ward, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Mary H. Moore, Asst. Atty. Gen., Jefferson City, for Respondent.
ROBERT S. BARNEY, Judge.
David Michael Holman ("Appellant") was convicted by the trial court of two counts of violating section 570.030 by stealing funds from the checking account of South Morgan Township ("the Township") in Dade County, Missouri.[1] Following a bench trial, the trial court suspended imposition of sentence as to Count I. The trial court then sentenced Appellant to three years imprisonment on Count II, but suspended the execution of the sentence and placed Appellant on probation for a term of five years. Appellant was also ordered to pay restitution in the amount of $8,570.20.[2] Appellant solely challenges his conviction under Count II.[3]
Viewing the evidence in the light most favorable to the trial court's verdict, State v. Shockley, 98 S.W.3d 885, 887 (Mo.App. 2003), the record reveals that in 1995 Appellant was elected as a board member of the Township. According to the testimony at trial, at bi-annual elections the Township voters would elect two board members, a trustee or treasurer, and a clerk and collector. At the time Appellant was elected as a board member, Wife was elected as clerk of the Township and Harold Dunn ("Mr. Dunn") was elected as trustee. There have been no other elections held in the Township since 1995. In 2001, Mr. Dunn found himself unable to continue to perform his duties as trustee and turned the Township books, including the check book and certain equipment, over to Appellant and Wife.
Deputy Max Huffman ("Deputy Huffman") of the Dade County Sheriff's Department testified that he was asked by the prosecuting attorney of Dade County to investigate the Township's financial records. He stated that in February of 2004 *79 he met with Wife, who was "very cooperative" and "very friendly." Wife provided Deputy Huffman with the Township's checking account information as well as cancelled checks and check stubs. When Deputy Huffman spoke with Wife she stated she did not know the title of her official position with the Township, but that she "took care of the checking account and the books." She told the deputy that she was not sure of Appellant's title either, and that "they had just started doing things that needed to be done after Mr. Dunn had passed away." She stated that she "took care of the checkbook" and Appellant "always signed the checks."
At trial, Deputy Huffman testified as to the details of eight checks at issue which were written during the time period covered by Count II.[4]
In this connection, Deputy Huffman testified that check number 1744 was written on January 7, 2004, for $834.00 to Wife and the memo line indicated the payment was for "[p]apers, fill out and trustee."[5] However, the check stub and check register relating to check number 1744 was blank.
Deputy Huffman also stated that check number 1746 was made payable to Appellant in the amount of $321.67. Wife told Deputy Huffman that Appellant "`signed the check and [she] wrote it. It was for both of [them] cleaning ditches. We both endorsed the check.'" The memo line on the check stated it was for "[l]abor," but the check register entry for this check was blank. The check was endorsed by both Appellant and Wife.
Deputy Huffman also testified that check number 1747 was made payable to Wife in the amount of $346.21 for "book-keeping." Wife explained to Deputy Huffman that the check was "for out-of-pocket expenses. [She did not] have any records or worksheets. [She] just didn't keep any. [She] wrote the check and [Appellant] signed it." The check register indicated that the check was made payable "to the Dadeville Road" for "[t]axes." Wife was unable to explain this apparent discrepancy to Deputy Huffman.
According to Deputy Huffman, check number 1748 was made payable to Wife "[f]or bookkeeping and ditch cleaning" in the amount of $821.42 on March 12, 2004. Wife told Deputy Huffman this check was *80 for "ditch cleaning, piling brush and clean up of ditches before grading. It did not cover any bookkeeping. It was figured at $8 per hour for each of [them]." The check was endorsed by Wife and the accompanying check register entry was "completely blank."
Deputy Huffman also stated that check number 1751 was made payable to Appellant in the amount of $894.00. The memo line on the check indicated it was for "[l]abor" and the check was endorsed by Appellant. Wife told Deputy Huffman the check was "for brush hog and spraying . . . and fuel." The check register indicated the check "was payable to [Appellant] . . . for helping Allen work roads." Wife stated she did not have any receipts relating to this check. Wife was unable to explain to Deputy Huffman the discrepancy in the memo line and in the check register notation.
Deputy Huffman related that check number 1753 was made payable to Wife in the amount of $325.00 and was signed by Appellant. The memo line indicated the check was for "[p]icking up brush and hauling brush." The coordinating check register was empty of any notations relating to this check except that it indicated the check was for $225.00 instead of $325.00.
Deputy Huffman testified that check number 1754 was made payable to Appellant in the amount of $862.40. The check, which was signed by Appellant, stated it was for "cutting brush and tractor tires." The check register contained no notations relating to this check. There were no attendant receipts.
Deputy Huffman also stated that check number 1755 was made payable to Appellant and signed by Appellant. The check was executed in the amount of $327.41, and set out it was for "[d]igging tin horns." Wife told Deputy Huffman the check was "figured . . . at $10 per hour, labor, diesel and tractor." The check register for this check indicated its amount, but no other notations.
Deputy Huffman testified that in his review of the Township financial records it appeared that "[i]n 2002, the accounts seemed to be fairly complete or kept up complete in the check stubs and check register. As it continued on in 2003 and 2004, there . . . [were] more entries missing, totals were not carried forward, entries were not made at all." He stated that as time passed the number of checks written directly to Wife and Appellant "increased significantly, as well as the amounts of the checks."
At trial, Appellant testified that from 2002 to 2004 he was "on the board" of the Township, but related he did not know if he was a trustee. He stated that at that time Wife "was kind of clerk, treasurer, bookkeeper." He also related that he and Wife initially got involved with the Township after Mr. Dunn became ill and they agreed to take over "the books, the equipment and the headache." He stated he and Wife received no training in bookkeeping or in their responsibilities for the Township's finances. He related that Wife "pretty well tried to keep the books up, keep the bills paid" and he "took all the calls. . . . There is a limb in the road. There is a tree on the road, making sure the roads were graded, making sure the snow was pushed off, doing the FEMA work. Just whatever needed to be done." He stated his duties included finding someone to haul and spread chat on the roads as well as personally removing dead dogs from the roads, removing tree limbs, and arranging to have the roads graded. He was responsible for brush hogging the Township's property and right of ways with the Township's tractor or his own tractor. He stated there were between *81 19.5 miles and 22.3 miles of roads in the Township under his care. He stated he paid himself between $10.00 and $15.00 per hour depending on the particular job. Appellant also explained that sometimes he paid himself based on "how much profanity was used on what [he] did. If [he] was flagged down in the middle of the road, and it usually started with profanity and ended with profanity, [he] usually tacked a little extra on. . . ." He stated he "pretty much told [Wife] what to write [his] checks for . . ." and she did so.
Appellant also related that Wife typically filled out the checks and he signed them. When asked if he felt "odd writing any checks to [him]self," he stated that he did. He stated that when they first took over the finances in 2001, they went "to a meeting [with the county commissioners] . . . to discuss what [he] thought was probably financial statements. When [he] got over here, there was a discussion about somebody complained the brush was bad." He stated that when he left the meeting it was his understanding that he
was to take care of the roads and the right of ways, and if [he did] the work, [he] was pretty adamant that [he] didn't want to pay [him]self, but if [he] had to get out and do all of the running around on the roads and taking care of the roads, [he] was going to be compensated.
He related that when he left the meeting he felt like he had the consent of the county commission to write checks to himself for work he performed for the Township.
Appellant also stated that he felt like he and Wife "were doing what had been done before, taking care of the roads." He stated that Mr. Dunn "had always [written] the checks out and had done the work, paid himself. . . ." He related that some of the checks at issue were reimbursements for money he and Wife had paid out of their own pocket for the Township's needs. He also stated that he "couldn't really pack that great big checkbook around with [him]. And if [he] had to run to . . . pick up some parts or whatever . . . [he] would pay for it and was reimbursed. . . ." He stated the memo lines on the checks were small and he could not "get a lot on there."
In explanation for the fact that the bookkeeping got progressively worse during his tenure with the Township, Appellant explained that the Township's revenues decreased during that time period. He stated the Township received revenue from "CART money," which was paid out by the county, and road district tax money. He stated that in 2003 and part of 2004 the Township did not receive CART money because the Township had to file a financial statement to receive the money and there were some problems which were preventing the filing of the financial statement.[6]
Appellant also testified that there were no minutes of official Township meetings, but there were many unofficial meetings "at a ball game or at the local gas station or just out on the road." Appellant related he was "a record nut" and he tried to "keep everything down and [he] did have quite a bit of it [written down];" however, he did not know what happened to all of the documentation. He stated he did not know if there were any receipts for bills or *82 payments relating to the monies paid out by the Township. Appellant testified he did not solicit public bids for Township work and usually just did the work himself. Appellant also related he tried to get help from county commissioners in straightening out the Township's finances, but he never received help. He admitted that in 2003 the Township received $13,457.00 in total receipts and he and Wife were paid $4,801.00. He acknowledged that the total receipts for the Township in 2004 were $7,344.49 and Appellant and Wife were paid $5,702.11 during that year. Appellant asserted that he and Wife did not steal any money from the Township.
At the close of all the evidence, the trial court convicted Appellant of two counts of stealing. The trial court found that
ignorance of the law is never an excuse in the operation of public duties. I can understand the position that you folks felt that you were put in, but with no elections since 1995, neither of you are properly elected as treasurer, being entitled to any of the fees or a percentage. And no matter how well intentioned it may have been, you just can't step into statutorily described duties and responsibilities haphazardly or you are going to risk the penalties of law that are set out in the statutes.
I can overlook sloppy bookkeeping and I can understand that, if it weren't for some of these just out right misstatement and misrepresentations and apparent fraud in what is written down in the books, that shows to me that there was deceit necessary under the stealing statutes.
It appears to me that a lot of these figures and the checks written were just kind of pulled out of the air. No, no record of how you came up with the amounts that were going to be paid, just wrote down some kind of, some kind of amount.
And I guess some of it depends upon how rude the people were to you, if you felt insulted, that is how much [you would] charge. That's not the way that you can operate as a public official. It looks to me like the pattern that I see that it was a convenient bank account to use and just kind of, especially as you got to [2004], it became kind of your personal checking. You took what you wanted when you wanted to.
So I'm going to enter findings of guilty on both Counts I and II in each case, because I feel that it got worse as time went on.
Thereafter, the trial court suspended imposition of sentence on Count I and sentenced Appellant to three years imprisonment on Count II with the execution of sentence suspended. Appellant was also placed on probation for five years. This appeal followed.
In his sole point of trial court error, Appellant maintains the trial court erred in overruling his motion for judgment of acquittal and in convicting him of stealing. Specifically, he asserts the trial court's rulings violated his due process rights in that "the evidence was insufficient to establish beyond a reasonable doubt that [Appellant] took money from the . . . Township without consent or by deceit. There was no evidence that [Appellant] did not perform the work that he claimed, and the evidence did not show that this was anything besides poor bookkeeping."
The appellate court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case. State v. Agee, 37 S.W.3d 834, 836 (Mo.App.2001); see Shockley, 98 S.W.3d at 890. Additionally, *83 "`[w]e review the denial of a motion for acquittal to determine if the [S]tate adduced sufficient evidence to make a submissible case.'" State v. Howard, 973 S.W.2d 902, 906 (Mo.App.1998) (quoting State v. Foster, 930 S.W.2d 62, 63 (Mo.App. 1996)). Where Appellant contests the sufficiency of the evidence to support his conviction, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable trier-of-fact might have found Appellant guilty beyond a reasonable doubt. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995); Agee, 37 S.W.3d at 836.
`The Court is required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. The Court disregards contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.'
State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993)).
It is axiomatic that in resolving conflicts in the evidence, a trial court is not bound to accept a defendant's self-serving claims or explanations. State v. Fraga, 189 S.W.3d 585, 591 (Mo.App.2006). "The credibility and weight of testimony are for the fact-finder to determine. The fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case." State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002) (internal citation omitted).
In our review we need not review Appellant's assertions relating to the lack of evidence showing him to be guilty of taking money without consent. This is because there is sufficient evidence showing that Appellant appropriated the Township's funds by means of deceit.
Section 570.030.1 sets out that "[a] person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." (Emphasis added); see State v. Presberry, 128 S.W.3d 80, 91 (Mo.App. 2003). Section 570.010(7) sets out, in pertinent part, that "`[d]eceit' means purposely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind." "The only intent required to commit the act of stealing is the intent to deprive the owner of the property or services being appropriated." State v. Bradshaw, 81 S.W.3d 14, 21 (Mo. App.2002). Stated another way, there are four essential elements to the crime of stealing by deceit: (1) an appropriation; (2) of property of another; (3) with purpose to deprive the other thereof; and (4) accomplished by means of deceit. State v. Goebel, 83 S.W.3d 639, 642 (Mo.App.2002).
Here, the evidence shows a pattern of deceit by Appellant. In 2004, Appellant signed four checks made payable to himself and four checks payable to Wife out of the Township checkbook. Out of those eight checks, six had no explanation for payment or payee information listed on the check stubs; one listed the wrong amount on the check stub; one contained a memo notation that it was to Wife for "bookkeeping" but the check register stated it was "to the Dadeville Road" for "[t]axes;" one stub stated it was payable to Appellant "for helping Allen work roads," but Wife explained to Deputy Huffman that it was for tractor use, fuel, brush hogging, and spraying; and one stated it was for "digging tin horns," but Wife told Deputy *84 Huffman it was for labor, tractor use, and fuel. Only one of the eight checks was made out for a consistent amount, listed the same notation on both the memo line and the check stub, and was properly recorded in the check register.
As previously related, Appellant offered no documentation to support any of these payments to Wife or himself, and he was unable to explain the reason for the lack of documentation. Furthermore, Appellant's only explanation for his poor bookkeeping was the fact that it was difficult for him to carry the "great big checkbook around with [him]" and he was unable to fit much information on the small memo lines of the checks. "The subjective intent of a defendant to deceive may be proven by circumstantial evidence." State v. Watson, 947 S.W.2d 514, 516 (Mo.App. 1997); see State v. Inscore, 592 S.W.2d 809, 811 (Mo. banc 1980) (holding that the subjective intent of a defendant at the time of the commission of a crime is rarely open to direct proof and intent may be proven by circumstantial evidence). Here, there is sufficient evidence supporting the proposition that Appellant's poor bookkeeping was in reality an effort to conceal his deceit and misappropriation of the Township's funds.
The trial court did not err in overruling Appellant's motion for judgment of acquittal and in finding him guilty of stealing. There was sufficient evidence to prove beyond a reasonable doubt that Appellant violated section 570.030 by stealing funds from the Township by means of deceit. § 570.030.1. Appellant's point lacks merit.
The judgment and sentence of the trial court is affirmed.
GARRISON and LYNCH, JJ., Concur.
NOTES
[1] All statutory references are to RSMo Cum. Supp.2002 and all rule references are to Missouri Court Rules (2006).
[2] Appellant and his wife, Tamara Holman ("Wife"), were tried together and the order for restitution set out that it was to be paid jointly by Appellant and Wife. Wife is not associated with this appeal.
[3] In the Amended Information, Count II charged that Appellant committed the class C felony of stealing in violation of section 570.030:
in that from January 1, 2004[,] through December 31, 2004, . . . [Appellant] appropriated funds from the checking account of the . . . Township in excess of five-hundred dollars but less than twenty five thousand dollars, which property was owned by [the] Township, and [Appellant] appropriated such property without consent or by means of deceit with the purpose to deprive [the] Township thereof.
[4] Although it appears the checks were entered into evidence at trial, Appellant has failed to include them in his record on appeal. It is Appellant's duty to compile the record on appeal which should contain all of the exhibits and evidence necessary for this Court's determination of the questions presented. Rule 30.04; see State v. Hackler, 122 S.W.3d 132, 135 (Mo.App.2003). Appellant has breached this duty. Ordinarily, we would be "unable to give meaningful review to Appellant's claim of error," id. at 136, however, in the present matter there was extensive, detailed testimony by Deputy Huffman regarding the checks at issue. Accordingly, we rely on that testimony to assist us in our review of this appeal.
[5] Wife told Deputy Huffman that she paid herself trustee fees as allowed by statute and she calculated that amount at "3 percent of everything [she] deposited. . . ."
While Appellant and Wife may have been entitled to certain statutory fees depending on their positions within the Township, we note that throughout Appellant's brief he seems to assert that the calculation of trustee fees recited by Deputy Huffman at trial and used by the trial court in calculating Appellant's restitution were incorrect. This issue was not raised in Appellant's point relied on. It has long been held that this Court limits "`our review to matters raised in the points relied on. . . .'" State v. Ernst, 164 S.W.3d 70, 73 n. 4 (Mo.App.2005) (quoting State v. Coody, 867 S.W.2d 661, 664 n. 1 (Mo.App.1993)); see Rule 84.04. Accordingly, we shall not address Appellant's complaints about the calculation of trustee fees or the amount of his restitution in this opinion.
[6] Appellant admitted that in December of 2004 he was charged and convicted of failure to file Township financial statements in the years 2002 and 2003. He testified that the charges were the result of "a couple of checks that [they] couldn't account for, that were supposedly sent to [them] by the . . . county treasurer, that w[ere] never cashed, never turned up anywhere, but [they] couldn't file a financial statement without those."
|
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 16, 2007
No. 07-10564 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00279-CR--T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FRANCISCO SANCHEZ ARAGON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 16, 2007)
Before DUBINA, CARNES and HILL, Circuit Judges.
PER CURIAM:
Mark G. Rodriguez, counsel for Jose Francisco Sanchez Aragon, has filed a
motion to withdraw on appeal supported by a brief prepared pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent
review of the entire record reveals that counsel’s assessment of the relative merit of
the appeal is correct. Because independent examination of the entire record reveals
no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and
Aragon’s conviction and sentence are AFFIRMED.
2
|
NO. 95-575
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE MARRIAGE OF
REBECCA JEAN YATES,
Petitioner and Respondent,
and
JUSTIN GREG YATES,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell G. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard 0. Harkins; Attorney at Law;
Ekalaka, Montana
For Respondent:
Joan Meyer Nye; Nye & Meyer;
Billings, Montana
Submitted on Briefs: November 21, 1996
C'EC 1 9 Tg$j Decided: December 19, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Justin Greg Yates filed a petition pursuant to Chapter 7 of
the Bankruptcy Code on September 6, 1994, in the United States
Bankruptcy Court in the District of Montana, in which he named his
ex-wife, Rebecca Jean Yates, as a creditor. In response, Rebecca
filed an adversarial proceeding in Bankruptcy Court, in which she
objected to the discharge of Justin's obligations to her. On
January 12, 1995, the Bankruptcy Court entered an order in which it
abstained from the proceeding and remanded the question of
dischargeability to the District Court for the Thirteenth Judicial
Court in Yellowstone County. Following a hearing, the District
Court issued an order in which it concluded that, pursuant to
11 U.S.C. 5 523(a) (5), Justin's debts to Rebecca for maintenance
and property settlement are not dischargeable. Justin appeals the
District Court's order. We affirm in part and reverse in part the
order of the District Court.
We address three issues on appeal:
1. Did the District Court have jurisdiction to decide the
issue of dischargeability, pursuant to 11 U.S.C. § 523?
2. Did the District Court err when it concluded that
Justin's maintenance obligation is not dischargeable?
3. Did the District Court err when it concluded that
Justin's property settlement obligation is not dischargeable?
FACTUAL BACKGROUND
The marriage of Justin and Rebecca Yates was dissolved by
decree on June 30, 1992. The dissolution decree required Justin to
2
pay Rebecca the amount of $23,171.50 for property settlement, and
maintenance in the amount of $300 per month for twenty-four months
or until full-time employment or remarriage.
As of 1994, Justin had not paid any of the amount owed to
Rebecca for property settlement or maintenance. Following a
hearing on August 11, 1994, the District Court entered an order in
which it found that Justin had property and income sufficient to
make some payments on the two obligations to Rebecca. The court
therefore found Justin to be in contempt and ordered him to sell
certain items of property and to sign a partial assignment of wages
to purge himself of contempt. Justin did not appeal the District
Court's order.
On September 6, 1994, Justin filed a petition pursuant to
Chapter 7 of the Bankruptcy Code in the United States Bankruptcy
Court and sought a discharge from his property division and
maintenance obligations. In response, Rebecca filed an adversarial
proceeding in which she claimed that Justin's debts to her were not
dischargeable. On January 12, 1995, the Bankruptcy Court issued an
order of abstention and remanded the case to the Thirteenth
Judicial District Court for a determination of dischargeability.
The District Court held a hearing to consider the issue of the
dischargeability of Justin's two debts to Rebecca on October 27,
1995. 1n its findings of fact, conclusions of law, and order,
entered November 15, 1995, the court concluded that, pursuant to
11 U.S.C. 5 523(a) (5), neither Justin's maintenance obligation nor
his property settlement obligation are dischargeable. The court
3
therefore ordered Justin to comply with its contempt order of
August 23, 1994
STANDARD OF REVIEW
Our review of a district court's order is two-fold. First, we
review the district court's findings of fact to determine whether
they are clearly erroneous. Dairies v. Knight (19951, 269 Mont. 320,
324, 888 P.2d 904, 906. Second, we review a district court's
conclusions of law to determine whether the court's interpretation
of the law is correct. Carbon Counly v. Union Reserve Cod Co. ( 19 9 5 ) , 271
Mont. 459, 469, 898 P.2d 680, 686.
ISSUE 1
Did the District Court have jurisdiction to decide the issue
of dischargeability, pursuant to 11 U.S.C. § 523?
In this case, the United States Bankruptcy Court in the
District of Montana entered an order in which it abstained from the
issue of the dischargeability of Justin's debts and transferred the
issue to the Thirteenth Judicial District Court in Yellowstone
County. The Bankruptcy Court reasoned that the proper forum for
the issue of the discharge of a support claim in a divorce action
is the state district court. In support of its conclusion, the
court relied on InreRough (Bankr. Mont. 1986), 3 Mont. B.R. 1, 3, in
which the same court stated:
It is a well settled rule that the Bankruptcy Court
has concurrent jurisdiction, as opposed to exclusive
jurisdiction to determine the dischargeability of a debt
under Section 523(a) (5). In re Aldrich, 34 B.R. 776, 780
(BAP 9th Cir. 1983); State of Montana ex rel. Rouqh v.
District Court, [218 Mont. 499, 502, 710 P.Zd 47, 491, 42
St. Rep. 1773, 1775 (1985); 3 Collier on Bankruptcy,
523.15(6), pp. 108-109 (15th edition).
4
The District Court accepted concurrent jurisdiction and concluded
that (1) Justin's maintenance obligation is not dischargeable,
pursuant to 11 U.S.C. 5 523(a) (5), and that (2) Justin's property
settlement obligation is not dischargeable, pursuant to 11 U.S.C.
5 523(a) (5).
It is well established that a state district court has
concurrent jurisdiction with a federal bankruptcy court to
determine the issue of the dischargeability of debts pursuant to
11 U.S.C. § 523(a) (5). Stateexrel.Roughv.Dis~ictCourt (1985), 218 Mont.
499, 502, 710 P.2d 47, 49. Therefore, we hold that the District
Court in this case had jurisdiction, following the Bankruptcy
Court's abstention, to decide the issue of the dischargeability of
Justin's maintenance and property division obligations pursuant to
§ 523(a) (5).
ISSUE 2
Did the District Court err when it concluded that Justin's
maintenance obligation is not dischargeable?
The parties' decree of dissolution, entered on June 30, 1992,
required Justin to pay Rebecca the amount of $23,171.50 as the
value of her interest in marital property, and maintenance in the
amount of $300 per month for twenty-four months or until full-time
employment or remarriage. In support of its award of maintenance,
the District Court made a finding that:
Rebecca had no skills or job training at the time of
separation. She has embarked on a plan of vocational
training, and she needs some financial assistance to
complete that so that she can become self-supporting. She
is receiving financial assistance during her training by
reason of a PELL grant. Justin's living expenses are
5
very low because he lives on his parents' ranch and is
able to contribute something to Rebecca's reasonable
maintenance . . Commencing July lst, 1992 Justin
should pay Rebecca $300 per month until she obtains full
employment or remarries, but in any event not to exceed
24 months.
Justin did not appeal the District Court's order which awarded
Rebecca maintenance
In determining the issue of the dischargeability of Justin's
debt, the District Court concluded that its original ma.intenance
award is not dischargeable pursuant to 11 U.S.C. 5 523(a,) (5).
11 U.S.C. 5 523(a) (5) excepts from discharge a debt
to a spouse, former spouse, or a child of the debtor, for
alimony to, maintenance for, or support of such spouse or
child, in connection with a separation agreement, divorce
decree or other order of a court of record, determination
made in accordance with State or territorial law by a
governmental unit, or property settlement agreement
. .
Section 523(a) (5) (B) provides that the exception does not extend to
a debt to the extent that
such debt includes a liability designated as alimony,
maintenance, or support, unless such liability is
actually in the nature of alimony, maintenance, or
support.
In this case, Justin maintains that the District Court's award
of maintenance is not "in the nature of . . maintenance,"
pursuant to 11 U.S.C. § 523(a) (5) (B), and is thus dischargeable.
Specifically, Justin alleges that Rebecca became self-supporting in
mid-September 1992, so that the District Court's maintenance award
was no longer necessary after that date. Justin therefore
maintains that "[tlhe portion payable after Rebecca became self-
supporting . should be discharged."
6
The determination of whether a debt to a former spouse
qualifies as nondischargeable support pursuant to 11 U.S.C.
§ 523(a) (5) (B) is a matter of federal law. In ye Gianakas (3d Cir
1990), 917 F.2d 159, 762. Federal courts have held that "[t]he
critical question in determining whether the obligation is, in
substance, support is 'the function served by the obligation at the
time of divorce.'" InreSampson(10th Cir. 1993), 997 F.2d 717, 725.
Factors relied on by bankruptcy courts in making such a
determination include:
(1) Whether the obligation under consideration is
subject to contingencies, such as death or remarriage;
(2) Whether the payment was fashioned in order to
balance disparate incomes of the parties;
(3) Whether the obligation is payable in installments or
a lump sum;
(4) Whether there are minor children involved in a
marriage requiring support;
(5) The respective physical health of the spouse and the
level of education;
(6) Whether, in fact, there was a need for spousal
support at the time of the circumstances of the
particular case.
InreRobinson (Bankr. N.D. Ga. 1996), 193 B.R. 367, 372. See also In YE
Bowsman (Bankr. M.D. Fl. 1991), 128 B.R. 485, 487; InreGraves (Bankr.
S.D. Fla. 1987), 69 B.R. 626, 628.
In this case, an evaluation of the terms of the dissolution
decree in light of 11 U.S.C. § 523(a) (5) (B) and federal bankruptcy
factors clearly supports the District Court's finding that the
original maintenance award was in the nature of support, and
7
therefore nondischargeable pursuant to 11 U.S.C. § 523(a)(s). As
set forth above, the award was payable in monthly installments for
a period of up to twenty-four months and was made contingent upon
remarriage or full-time employment. Furthermore, the award was
based on the court's finding that Rebecca had no skills or job
training at the time of the couple's separation and therefore
needed financial assistance for vocational training. Finally, the
award referred to the couple's disparate incomes and found that
Justin had the means to contribute to Rebecca's reasonable
maintenance. Based on the foregoing factors, we hold that the
District Court's conclusion that Justin's maintenance obligation
was not dischargeable is correct.
Furthermore, we reject Justin's contention that the District
Court was required to re-evaluate the original maintenance award in
light of Rebecca's subsequent employment. The majority of federal
bankruptcy courts holds that an inquiry into whether a maintenance
award is in the nature of support, pursuant to 11 U.S.C.
§ 523(a) (5), should not include an examination of the present
situation of the parties. See, e.g., Forsdickv. Turgeon (2d Cir. 1987) , 812
F.2d 801, 803; InreHarrell (11th. Cir. 1985), 754 F.2d 902, 907; Boyle
v. Donovan (8th Cir. 1984), 124 F.2d 681, 683; InreStone (Bankr. D.Md.
1987), 79 B.R. 633, 639. The Second Circuit Court of Appeals, in
fact, addressed the same issue and held:
As a secondary position the husband argues that even
if the . award was in the nature of alimony and hence
was nondischargeable under 5 523(a) (5), the bankruptcy
court should have taken notice of the alleged "changed
circumstances" of the parties and held that because the
wife apparently no longer requires the support granted to
8
her by the state court decision, the obligation is
dischargeable despite the language of § 523(a) (5) . .
.
There is no support in the language of s 523(a) (5)
for the husband's position. As the eleventh circuit
noted in Harrell, 754 F.2d at 906, ti [tl he language does not
suggest a precise inquiry into financial circumstances to
determine precise levels of need or support; nor does the
statutory language contemplate an ongoing assessment of
need as circumstances change." To be exemot from
discharge an award of alimonv or support does not have to
conform exactly to some level that a bankruptcv iudqe
might deem necessarv for maintenance of a former spouse
or children; it merelv has to be "in the nature of"
alimonv or support. In short, there is no warrant for a
federal bankruptcv court to evaluate the state court's
alimonv award asainst the needs of the former spouse to
whom it was sranted.
Forsdick, 812 F.2d at 803-04 (emphasis added) (citation omitted).
In this case, then, the circumstances of Rebecca's employment
after the decree of dissolution are clearly irrelevant to a
determination of the dischargeability of Justin's maintenance
debts. If Justin had chosen to contest Rebecca's award of
maintenance, he could have appealed the District Court's original
dissolution decree or petitioned that court for a modification of
the decree. It is a matter of federal law, however, that the
proper forum for a determination of "changed circumstances" is not
a federal bankruptcy court or a state court sitting as a bankruptcy
court.
We therefore hold that the District Court did not err when it
declined to consider the changed circumstances of the parties. We
affirm the District Court's holding that Justin's maintenance debt
was not dischargeable, pursuant to 11 U.S.C. § 523(a) (5).
9
ISSUE 3
Did the District Court err when it concluded that Justin's
property settlement obligation is not dischargeable?
The District Court, in its "Order of Nondischargeability,"
concluded that Justin's obligation to pay Rebecca the amount of
$23,171.50 for settlement of her interest in the marital property
is not dischargeable pursuant to 11 U.S.C. § 523(a) (5), which
provides that debts which constitute alimony, maintenance, or
support are excepted from discharge. On appeal, Justin maintains
that the $23,171.50 obligation is not a debt for alimony,
maintenance, or support of Rebecca, and is thus dischargeable as a
debt for the division of marital property.
It is well established that:
An indebtedness for a former spouse for alimony,
maintenance, or support of the spouse or the couple's
children which is memorialized in the divorce decree is
not dischargeable in bankruptcy. 11 U.S.C. § 523(a) (5).
An indebtedness in the divorce decree that merelv divides
the marriase property, however, is discharseable.
Stafeexrel.Roughv.DistrictCourt (19851, 218 Mont. 499, 503, 710 P.2d 47,
49 (quoting InreCoil (7th Cir. 1982), 680 F.2d 1170, 1171). see also
InreMorel (8th Cir. 1992), 983 F.2d 104, 105; In reBrody (Zd Cir.
1993), 3 F.3d 35, 38. This Court has adopted a test for the
determination of whether an alleged property settlement is intended
for a spouse's support:
In determining whether an obligation is intended for
support of a former spouse, the court must look beyond
the language of the decree to the intent of the parties
and to the substance of the obligation . If an
agreement fails to provide explicitly for spousal
support, a court may presume that a so-called "property
settlement" is intended for support when the
10
circumstances of the case indicate that the recioient
spouse needs support . . . . Factors indicating-that
support is necessary include the presence of minor
children and an imbalance in the relative income of the
parties . . Similarly, if an obligation terminates on
the death or remarriage of the recipient spouse, a court
may be inclined to classify the agreement as one for
support . . . . A property settlement would not be
affected by the personal circumstances of the recipient
spouse; thus, a change in those circumstances would not
affect a true property settlement, although it would
affect the need for support. The court will look also to
nature and duration of the obligation to determine
whether it is intended as support. Support payments tend
to mirror the recipient spouse's need for support. Thus,
such payments are generally made directly to the
recipient spouse and are paid in installments over a
substantial period of time.
Rough, 218 Mont. at 503-04, 710 P.2d at 50 (quoting Shaverv.Shaver (9th
Cir. 1984), 736 F.2.d 1314, 1316-17).
In this case, the District Court made no finding that the
amount awarded for division of the couple's marital property was
actually in the nature of support. In fact, a review of the decree
of dissolution makes clear that the $27,171.50 obligation was
solely intended as a division of the couple's marital estate. In
the decree, the District Court entered the following finding:
The court finds that . . the net estate of the parties
at the time of separation is $61,855 ($54,099 [cattle and
other assets1 + $3,450 C.D. + $1,600 state income refund
+ $2,706 federal income refund). Accordingly, each party
should receive $30,927.50 as that party's one-half share
of the net marital estate . . . . Justin shall transfer
to Rebecca said certificate of deposit in the amount of
$3,450 and transfer to her by endorsement of the check,
or otherwise, the federal and state income tax refund in
the amount of $4,306, which, when deducted from her share
of the marital estate, leaves a balance due her of
$23,171.50; said amount shall be paid Justin to Rebecca
as soon as practicable, and in any event, not later than
60 days from the date of entry of judgment herein.
11
Based on the Rough factors, the District Court's property division
does not qualify does not qualify as an order in the nature of
support. First, the award was not dependent upon Rebecca's
personal circumstances and was thus not terminable upon Rebecca's
death or remarriage. Second, the award was not payable in
installment payments over a substantial period of time, but instead
was to be paid in one lump sum within a period of sixty days.
Finally, the dissolution decree provided separately for Rebecca's
support in the form of an award of maintenance, which, as set forth
above, clearly addressed Rebecca's need for support in light of the
disparity in the couple's income.
Because the property division award was not in the nature of
alimony, maintenance, or support, it is not a nondischargeable debt
pursuant to 11 U.S.C. § 523(a) (5). On appeal, however, Rebecca
contends that even if Justin's debt is not dischargeable pursuant
to 11 U.S.C. § 523(a) (5), this Court may still affirm the District
Court's "Order of Nondischargeability" on the ground that Justin's
debt is not dischargeable pursuant to 11 U.S.C. 5 523(a) (6).
In this case, the District Court did not address the issue of
the dischargeability of Justin's debts pursuant to 11 U.S.C.
§ 523(a) (6), which provides that a debtor may not be released from
a debt "for willful and malicious injury by the debtor to another
entity or to the property of another entity." The District Court's
failure to address that issue was, however, correct. A claim
pursuant to 11 U.S.C. § 523(a) (6), unlike § 523(a) (5), "may not be
pursued in the state court as a result of the exclusive
12
jurisdiction granted to the bankruptcy courts by the bankruptcy
code." InreAldrich (Bankr. App. 1983), 34 B.R. 776, 781. See also In re
Martinez (Bankr. N.D. 111. 1990), 110 B.R. 353, 355; InreHolt (Bankr.
S.D. Ohio 1989), 102 B.R. 116, 119; In ye f’etrotdo (Bankr. W.D.N.Y.
1983), 33 B.R. 750, 751. Because the dischargeability of a debt
pursuant to 11 U.S.C. 5 523(a) (6) is within the exclusive
jurisdiction of a federal bankruptcy court, the District Court in
this case clearly did not have jurisdiction to determine whether
Justin's debt for property division was dischargeable pursuant to
that section.
We hold that the District Court erred when it concluded that
Justin's debt for property division is not dischargeable pursuant
to 11 U.S.C. § 523(a) (5). We further hold that the District Court
did not have jurisdiction to address the issue of the
dischargeability of that debt pursuant to 5523(a) (6). We therefore
reverse that portion of the court's "Order of Nondischargeability"
which concluded that Justin's $23,171.50 debt was not dischargeable
and affirm that portion of the District Court's order which
concluded that Justin's maintenance obligation was not
dischargeable.
ustice
/
Chief'Justice
14
|
T.C. Memo. 2000-76
UNITED STATES TAX COURT
SANDRA J. BRANNON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22025-97. Filed March 6, 2000.
J. Raymond Karam, for petitioner.
Elizabeth A. Owen, for respondent.
MEMORANDUM OPINION
COUVILLION, Special Trial Judge: Respondent determined
deficiencies of $2,974 and $1,562 in Federal income taxes and
penalties under section 6662(a)1 of $595 and $312, respectively,
for petitioner's 1993 and 1994 tax years.
1
Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the years at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
- 2 -
The issues for decision are: (1) Whether a horse breeding
activity conducted by petitioner was an activity not engaged in
for profit under section 183(a); (2) alternatively, whether,
under section 162(a), some of the expenses in connection with the
activity were substantiated; (3) whether petitioner, in an
unrelated business activity, established, under section 1012, a
basis for an asset used in that activity upon which depreciation
would be allowable under section 167(a); and (4) whether
petitioner is liable for the penalties under section 6662(a).
Some of the facts were stipulated. Those facts, with the
annexed exhibits, are so found and are incorporated herein by
reference. At the time the petition was filed, petitioner's
legal residence was San Antonio, Texas.
The first issue is with respect to a horse breeding activity
that petitioner commenced in 1990 with the purchase of one horse.
She purchased another horse in 1991. During 1993 and 1994, the
years at issue, petitioner had six horses. The horses were
quarter horses. The activity was not successful from a financial
standpoint. Petitioner amassed substantial losses over the
years, although the losses did not deter petitioner's continuing
interest in and dedication to the activity. The Schedule C
losses reported by petitioner on her Federal income tax returns
were $18,642 and $8,869, respectively, for 1993 and 1994. The
other years, prior to and subsequent to the years at issue, were
- 3 -
not much better financially. For these years, petitioner
reported the following losses:
1990 $18,521
1991 20,957
1992 24,926
1995 12,217
1996 15,549
1997 34,425
At trial, petitioner testified she believed she would realize a
net profit of $7,500 for 1998; however, she had no books and
records to support that testimony, and she had not yet filed her
income tax return for 1998. Petitioner acknowledged she did not
maintain accounting records to reflect income, expenses, and
profits or losses, although she maintained a file folder in which
she kept her receipts. It appears that petitioner calculated her
profits or losses for income tax purposes only at or about the
time such returns were due.
After graduating from high school in 1983, petitioner
attended Southwest Texas State University at San Marcos, Texas,
and earned a bachelor's degree in business with an emphasis in
marketing. After receiving her degree, petitioner obtained full-
time employment at or near San Antonio, Texas, and drove to her
employment each day from her parents' home, a distance of 8 to 10
miles. Although the nature of petitioner's employment and her
employer's business were not established at trial, neither the
- 4 -
business nor petitioner's job related to horse breeding.
Petitioner left that employment in October 1997 and did not
thereafter accept any other employment. She continued living
with her parents, devoting her entire time to the horse breeding
activity. Petitioner has never paid rent or subsidized her
parents for her living accommodations even during the period she
was gainfully employed. In addition to providing petitioner with
her room and board, petitioner's father also provided her with
some financial assistance.
Petitioner's horses have always been on a tract of land of
approximately 10 acres located about 25 miles from petitioner's
parents' residence. The property consisted of a pasture with
some trees and a barn or shed. Petitioner and her father leased
the property. Another individual, Cecil Valdez, used the same
property for his horses. Mr. Valdez did not pay any rent for his
use of the property.
As noted earlier, petitioner commenced her activity with one
horse, then another, and owned six horses during 1993 and 1994.
Based on the testimony at trial, it appears that quarter horses
can be bred and trained in certain categories, which petitioner
and her father described generally as (1) western, (2) pleasure,
(3) halter and trail, and (4) cutting. Petitioner directed her
activity toward the first three named specialties, although she
later realized that her chances for profit would be greater with
- 5 -
cutting horses. She, therefore, changed her operation to that
specialty. It is that change that petitioner claims resulted in
her realization of a net profit for 1998. Petitioner regularly
attended horse shows, was a member of various associations
related thereto, had business cards, and advertised in trade
journals or newspapers. Petitioner's sales of horses, however,
were minimal. The purchaser of three horses was Cecil Valdez,
who owned other horses at the same location with petitioner.
Another purchaser was an unrelated party.
Petitioner was of the belief that a market for her horses
would be in Mexico; however, that did not materialize because of
the decline in value of the Mexican peso. Petitioner also
attributed her losses to the fact that she did not have a
sufficient number of brood mares and that the bloodlines of her
horses were not of the quality that would be in demand. She
claimed that her chances of success would be enhanced by
specializing with cutting horses rather than the other
specialties stated above. She acknowledged her goal was to
produce a $100,000 horse; however, to do that, she would be
required to pay breeding or stud fees of at least $10,000, which
she was not capable of doing. During the years at issue,
petitioner paid $750 for stud fees. With respect to
participation in horse shows, participants were either
professionals or amateurs. Petitioner always participated as an
- 6 -
amateur, although she acknowledged that participation as a
professional would enhance her financial success in the business.
Petitioner never attempted to qualify as a professional.
Petitioner's sole motivation for engaging in her activity
was her love for horses, dating back to her childhood.
Petitioner had no educational training or experience in the
business of breeding and training horses. She made no studies or
consultations with professionals with respect to the business
aspect of such an activity. She did not maintain a separate bank
account for her activity, and she did not maintain formal books
and records, nor does the record establish that petitioner made
any effort to change the direction of her operation, although she
recognized her need to do so.
Section 183(a) provides generally that, if an activity is
not engaged in for profit, no deduction attributable to such
activity shall be allowed. Section 183(c) defines an activity
not engaged in for profit as "any activity other than one with
respect to which deductions are allowable for the taxable year
under section 162 or under paragraph (1) or (2) of section 212."
The standard for determining whether the expenses of an activity
are deductible under either section 162 or section 212(1) or (2)
is whether the taxpayer engaged in the activity with the "'actual
and honest objective of making a profit'". Ronnen v.
Commissioner, 90 T.C. 74, 91 (1988) (quoting Beck v.
- 7 -
Commissioner, 85 T.C. 557, 569 (1985)). While a reasonable
expectation of profit is not required, the taxpayer's profit
objective must be bona fide. See Hulter v. Commissioner, 91 T.C.
371 (1988). Whether a taxpayer had an actual and honest profit
objective is a question of fact to be resolved from all relevant
facts and circumstances. See id. at 393; Golanty v.
Commissioner, 72 T.C. 411, 426 (1979), affd. without published
opinion 647 F.2d 170 (9th Cir. 1981). The burden of proving such
objective is on petitioner. Rule 142(a); see Welch v. Helvering,
290 U.S. 111 (1933). In resolving this factual question, greater
weight is given to objective facts than to the taxpayer's after-
the-fact statements of intent. See Thomas v. Commissioner, 84
T.C. 1244, 1269 (1985), affd. 792 F.2d 1256 (4th Cir. 1986);
Siegel v. Commissioner, 78 T.C. 659, 699 (1982); sec. 1.183-2(a),
Income Tax Regs.
Section 1.183-2(b), Income Tax Regs., sets forth a
nonexclusive list of nine objective factors relevant to the
determination of whether an activity is engaged in for profit.
These factors are: (1) The manner in which the taxpayer carries
on the activity; (2) the expertise of the taxpayer or his
advisers; (3) the time and effort expended in carrying on the
activity; (4) the expectation that the assets used in the
activity may appreciate in value; (5) the success of the taxpayer
in carrying on other similar or dissimilar activities; (6) the
- 8 -
history of income or losses with respect to the activity; (7) the
amount of occasional profits earned, if any; (8) the financial
status of the taxpayer; and (9) the elements of personal pleasure
or recreation involved. These factors are not merely a counting
device where the number of factors for or against the taxpayer is
determinative, but rather all facts and circumstances must be
taken into account, and more weight may be given to some factors
than to others. Cf. Dunn v. Commissioner, 70 T.C. 715, 720
(1978), affd. 615 F.2d 578 (2d Cir. 1980). Not all factors are
applicable in every case, and no one factor is controlling. See
Abramson v. Commissioner, 86 T.C. 360, 371 (1986); sec. 1.183-
2(b), Income Tax Regs. Further, the determination of a
taxpayer's profit motive is made on a yearly basis. See
Commissioner v. Sunnen, 333 U.S. 591, 598 (1948).
On this record, the Court is satisfied that petitioner's
activity was not carried on with an actual and honest objective
of making a profit. It is fair to conclude, among other things,
that the activity was not conducted in a businesslike manner.
Although the Court is satisfied that petitioner was dedicated to
the activity, her motivation was primarily her love for horses.
Despite years of substantial losses, petitioner had no formal or
informal business plan and never sought the advice of experts on
how to conduct the activity on a profitable basis. See Bessenyey
v. Commissioner, 45 T.C. 261, 274 (1965) ("the goal must be to
- 9 -
realize a profit on the entire operation which presupposes not
only future net earnings but also sufficient net earnings to
recoup the losses which have meanwhile been sustained in the
intervening years"), affd. 379 F.2d 252 (2d Cir. 1967).
Respondent, therefore, is sustained on this issue.
Having concluded that petitioner's horse breeding activity
was not engaged in for profit, the Court finds it unnecessary to
consider respondent's alternative determination that some of the
expenses claimed in connection with the activity were not
substantiated.
With respect to the third issue, petitioner and her father
began an emu breeding business in 1993.2 Although the record is
not clear, it appears that this activity was also conducted on
the same property with petitioner's horse breeding activity.
The only issue with respect to the emu activity is
petitioner's claim to a depreciation deduction of $1,036 on her
1993 Federal income tax return with respect to four emus that
were purchased in September 1993.3 The four emus (two matched
2
An emu is defined as any of various flightless birds,
including a swift-running Australian bird with underdeveloped
wings that is related to and smaller than the ostrich. See
Webster's Ninth New Collegiate Dictionary 408 (1985).
3
Petitioner reported the emu activity on a separate
Schedule C of her 1993 and 1994 income tax returns. Respondent
did not challenge the activity as an activity not engaged in for
profit under sec. 183.
- 10 -
pairs of male and female) were purchased by petitioner's father
for either $28,000 or $28,500. Petitioner contends that she
purchased a one-fourth interest in the four emus from her father
and claimed a depreciation deduction of $1,036 on her 1993 income
tax return with respect to that interest. Respondent disallowed
the deduction on the ground that there was no evidence that
petitioner had purchased any interest in the emus from her
father. Respondent, therefore, determined that petitioner did
not have a basis in the asset; therefore, petitioner could not
claim a depreciation deduction.
There was no bill of sale offered into evidence to reflect
the purchase of a one-fourth interest in the emus by petitioner.
Petitioner's father agreed that no monetary consideration was
paid to him by petitioner; however, he stated that petitioner was
obligated to pay for her interest in the birds by taking care of
them. No promissory note or other evidence of indebtedness was
executed by petitioner. There was some reference at trial to a
letter prepared by petitioner's father that stated that
petitioner would pay the interest on an indebtedness, but the
document admittedly failed to state that petitioner was liable
for the principal. The document was not offered into evidence,
nor was any documentary evidence presented to reflect what time
or care petitioner expended on the emus.
Under section 167(c), the basis for the deduction for
- 11 -
exhaustion, wear and tear, and obsolescence in respect of
property is the adjusted basis for determining gain or loss on
the sale of such property as provided in section 1011. Section
1011(a) provides generally that the adjusted basis for
determining gain or loss shall be, as pertinent here, the basis
determined under section 1012. Section 1012 provides generally
that the basis of property is its cost.
On this record, petitioner did not establish that she
acquired an interest in the emus. Moreover, the record does not
establish that petitioner acquired an interest in the emus by
gift. The Court, therefore, sustains respondent on this issue.
The final issue is whether petitioner is liable for
penalties under section 6662(a) for the years 1993 and 1994.
Section 6662(a) provides that, if that section is applicable to
any portion of an underpayment in taxes, there shall be added to
the tax an amount equal to 20 percent of the portion of the
underpayment to which section 6662 applies. Under section
6664(c), no penalty shall be imposed under section 6662(a) with
respect to any portion of an underpayment if it is shown that
there was a reasonable cause and that the taxpayer acted in good
faith with respect to such portion of the underpayment.
Section 6662(b)(1) provides that section 6662 shall apply to
any underpayment attributable to negligence or disregard of rules
or regulations. Negligence is defined as lack of due care or
- 12 -
failure to do what a reasonable and ordinarily prudent person
would do under like circumstances. Neely v. Commissioner, 85
T.C. 934 (1985). The term "negligence" includes any failure to
make a reasonable attempt to comply with the provisions of the
internal revenue laws, and the term "disregard" includes any
careless, reckless, or intentional disregard of rules or
regulations.
The Court is satisfied that petitioner not only engaged in
the horse breeding activity solely because of her personal love
of horses but also engaged in this activity with the knowledge
that it was unrealistic to expect that any profit could be
realized in the manner in which she conducted the activity. Such
a conclusion is manifested by the fact that petitioner maintained
no books and records, commingled the meager income with her
personal funds, and never sought the advice of professionals who
could have advised her on what she should do to make the activity
profitable. Petitioner, moreover, had a degree in business and
obviously had some knowledge, albeit basic, that her activity, as
described, necessitated the maintenance of books and records.
The substantial losses petitioner claimed over the years from
this activity and the manner in which she conducted this activity
manifest a negligent or intentional disregard of rules or
regulations. Respondent's determination on this issue also was
based on the deficiency attributable to the disallowed
- 13 -
depreciation on the emus. The record shows that petitioner had
no semblance of title to the emus, either by purchase or by gift,
and the claim for depreciation on such asset likewise was a
negligent or intentional disregard of rules or regulations.
Respondent, therefore, is sustained on this issue.
Decision will be entered
for respondent.
|
357 N.E.2d 285 (1976)
Louis SILVERMAN and Shirley Silverman, d/b/a Town & Castle Cleaners, Appellants (Plaintiffs below),
v.
CITY OF FORT WAYNE, Appellee (Defendant below).
No. 3-1074A180.
Court of Appeals of Indiana, Third District.
December 7, 1976.
Ronald D. Frybarger, Edward E. Beck, Fort Wayne, for appellants.
David B. Keller, David E. Travelstead, William N. Salin, Warren B. Rosenblatt, Leonard E. Eilbacher, William L. Briggs, Fort Wayne, for appellee.
STATON, Presiding Judge.
Louis and Shirley Silverman (Silverman) sued the City of Fort Wayne (City) for damages caused by a riot; Silverman alleged that City promised police protection, that City provided for a brief time the promised protection, that City then withdrew such protection, and that as a direct result of the withdrawal of protection Silverman's property was damaged. The trial court dismissed Silverman's action under Indiana Trial Rule 12(B)(6), failure to state a claim under which relief may be granted. On appeal, Silverman asserts that the dismissal was error. We agree; the judgment is reversed and the cause remanded.
I.
Trial Rule 12(B)(6)
In interpreting the propriety of granting a motion under TR. 12(B)(6) courts have *286 held that a motion to dismiss for failure to state a claim should only be granted when it is clear from the face of the complaint that no facts are alleged which would under any circumstances permit recovery. State v. Rankin (1973) 260 Ind. 228, 294 N.E.2d 604; Jacob Weinberg News Agency, Inc. v. City of Marion (1975), Ind. App., 322 N.E.2d 730; Citizens Nat. Bk., Grant Cty. v. First Nat. Bk., Marion (1975), Ind. App., 331 N.E.2d 471; Kiyose v. Trustees of Indiana University (1975), Ind. App. 333 N.E.2d 886.
This Court has enunciated in agreement that:
"Subsequent decisions have followed Rankin and have found the statement of a claim sufficient despite the absence of an allegation on a necessary element to be proved at trial, so long as it did not appear from the complaint, itself, that plaintiff was precluded from recovery." [Citations omitted.] Soltes v. School City of East Chicago (1976), Ind. App., 344 N.E.2d 865, 868.
II.
Special Duty
City alleges that (1) no special duty was extant between the City and Silverman, and (2) therefore there exists no circumstance under which recovery would be proper. We do not determine here whether a showing of more than a general duty would have been necessary. However, we do note that the difference between a general and a special duty is a factual determination. On the face of the pleading such determination cannot be made.
Gladis v. Melloh (1971), 149 Ind. App. 466, 469, 273 N.E.2d 767, 769, established that "[t]he test is whether in the light most favorable to the plaintiff and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claims." Since Silverman alleged in his complaint that a personal promise issued from certain officials of the City, the possibility exists that a special duty was in fact present. However, we need not make that determination on this appeal. The trial court erred in granting the motion to dismiss. We reverse.
GARRARD, J., concurs in result.
HOFFMAN, J., dissents with opinion.
HOFFMAN, Judge (dissenting).
I dissent to the majority opinion. Indiana Rules of Procedure, Trial Rule 12(B)(6), allows for the dismissal of a cause for failure to state a claim upon which relief can be granted. In the case at bar the complaint alleges merely a failure of the City of Fort Wayne to fulfill a promise for police protection of property during a riot. Under no circumstance could such promise and duty of fulfillment become more than a general obligation of the government to its citizenry. Campbell; Knotts v. State (1972), 259 Ind. 55, 284 N.E.2d 733. Therefore a legal theory of special duty is nonexistent under the pleadings. Roberts v. State (1974), Ind. App., 307 N.E.2d 501 (transfer denied).
While the propriety of a motion to dismiss is the salient issue here, we ought not discount the fact that inherent in the right to exercise police power is the right to determine the strategy and tactics for its deployment. The sovereign authorities should be left free to exercise their discretion during a riot situation without worry over general allegations of negligence. Wong v. City of Miami (Fla. 1970), 237 So.2d 132.
There are no facts available in the pleadings upon which to establish a claim. Moreover under no theory could one be raised. Indiana Suburban Sewers, Inc. v. Hanson (1975), Ind. App., 334 N.E.2d 720 (transfer denied).
I would affirm the judgment of the trial court.
|
892 F.2d 64
FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Appellee,Continental Illinois National Bank & Trust Company ofChicago, Plaintiff,Federal Deposit Insurance Corporation, as Receiver of FirstNational Bank and Trust Company of Oklahoma City,Oklahoma, Plaintiff-Counterclaim Defendant,v.Ray BELL; Atex Oil Company; Atex Oil Company of Texas;Atex Stations, Inc.; Atex Refining Company;Anderson-Prichard Pipe Line Corporation; Atex Oil Companyof Oklahoma Inc.; Anson Pipeline Co.; Anson Refining Co.;Atex Pipeline Co.; and Oklahoma Pipeline Co.,Defendants-Appellants.OKLAHOMA PIPELINE CO.; Atex Pipeline Co.; and Atex OilCompany of Oklahoma Inc., Defendants-Third-PartyPlaintiffs-Appellants,andMeridith R. Sheets, Inc., Defendant,v.Trudy PERRY, Third-Party Plaintiff.
No. 88-2167.
United States Court of Appeals,Tenth Circuit.
Dec. 15, 1989.Rehearing Denied Feb. 5, 1990.
Oliver S. Howard (Theodore Q. Eliot and Pamela S. Anderson with him on the brief) of Gable & Gotwals, Tulsa, Okl., for plaintiff-appellee.
Paul Tobin (Murray Cohen with him on the brief) of Cohen, Pluess & Tobin, P.C., Oklahoma City, Okl., for defendants-appellants.
Before MOORE, BRORBY and EBEL, Circuit Judges.
JOHN P. MOORE, Circuit Judge.
1
The question presented by this appeal is whether the rule of Langley v. Federal Deposit Ins. Corp., 484 U.S. 86, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987), applies to an alleged failure to disclose a material fact. We hold that it does, and therefore the Federal Deposit Insurance Corporation is entitled to the shield provided by 12 U.S.C. § 1823(e).
2
Oklahoma Refining Company (ORC), an Oklahoma general partnership, owned and operated two oil refineries and a pipeline system. The partners of ORC were An-Son Transportation Company, which held a 66% share, and Atex Refining Company, which owned the balance. Loans from Continental Illinois National Bank (CINB) and First National Bank of Oklahoma CityB funded ORC's operations and acquisitions.
3
In 1983, after CINB and FNB loaned An-Son an aggregate of $30 million, certain officials within CINB recommended An-Son dispose of its interest in ORC because of ORC's questionable financial status.1 Included in CINB's internal documents was a report prepared by one of its staff valuing ORC's properties at $22.3 million. This report substantially belied previous representations made to the president of Atex, defendant, Ray Bell, whom CINB had approached, suggesting the purchase of An-Son's interest in ORC.
4
In 1983, Mr. Bell made that purchase, and at the same time assumed a 100% guaranty of ORC's obligations to Continental Illinois National Bank and First National Bank of Oklahoma City. ORC continued operations until September 1984, when it filed a petition for bankruptcy relief after it was unable to obtain further bank credit.
5
Both CINB and FNB filed an action against Mr. Bell to recover on the guaranties. Mr. Bell counterclaimed for securities and common law fraud, claiming he had been fraudulently induced to buy out An-Son's interest by CINB's misrepresentation of the value of ORC. Acting in its corporate capacity, the Federal Deposit Insurance Corporation subsequently succeeded to the interests of both CINB and FNB in the prosecution of the suit and the defense of Mr. Bell's counterclaims.
6
Relying on Langley, the FDIC moved for summary judgment on the counterclaims under 12 U.S.C. § 1823(e), which provides:
7
No agreement which tends to diminish or defeat the right, title or interest of the Corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.
8
FDIC took the position that even though Mr. Bell claimed CINB's fraud consisted of failure to make complete disclosure of its internal evaluation of ORC's properties rather than overt false representations, Langley provided FDIC with a complete defense to the counterclaims. The trial court agreed and entered summary judgment for the FDIC on the counterclaims. Mr. Bell appeals that decision.
9
Mr. Bell concedes that if his counterclaims were based upon overt fraudulent representations, Langley would govern, and he would be deprived of his claims. He argues, however, Langley does not apply to transactions involving the omission of facts, such as CINB's failure to tell him of its internal evaluations because those transactions cannot give rise to the essential "agreement" which requires application of § 1823(e).
10
We believe Langley allows no room for the distinction Mr. Bell would have us draw. One of the keystones in Langley is the Court's conclusion that § 1823(e) is not confined to a "secret promise" to perform an act in the future. The Court assumed a broader meaning for the word "agreement" in the statute, and concluded the word must be interpreted to include any condition upon the performance of a contract, including warranties grounded in fraud. 108 S.Ct. at 401-02. Countering the suggestion that a fraudulent misrepresentation known to the FDIC cannot support application of § 1823(e), the Court stated,
11
We conclude, however, that neither fraud in the inducement nor knowledge by the FDIC is relevant to the section's application.
12
No conceivable reading of the word "agreement" in § 1823(e) could cause it to cover a representation or warranty that is bona fide but to exclude one that is fraudulent. Petitioners effectively acknowledge this when they concede that the fraudulent nature of a promise would not cause it to lose its status as an "agreement".
13
Id. at 402. Since the Court included fraudulent warranties within the definition of "agreement" without circumscribing fraud to overt acts, we see no basis for concluding one form of fraud is governed by § 1823(e) while another is not. If fraudulent warranties fall within the reach of the statute, it is irrelevant whether the fraud was caused by overt misrepresentation or deceitful omission. We therefore conclude Langley compels the result reached by the district court.
14
AFFIRMED.
1
CINB and An-Son had maintained a lending relationship for over 20 years, and ORC's status was seen to imperil An-Son's ability to repay its existing debt to CINB
|
125 F.2d 790 (1942)
RHEINSTROM
v.
CONNER, Collector of Internal Revenue. FIRST NAT. BANK, Cincinnati, Ohio
v.
SAME.
Nos. 8850, 8851.
Circuit Court of Appeals, Sixth Circuit.
February 13, 1942.
*791 Jerome Goldman, of Cincinnati, Ohio (Thomas C. Lavery and A. Julius Freiberg, both of Cincinnati, Ohio, on the brief), for petitioners.
Paul S. McMahon, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., J. Louis Monarch, Sp. Asst. to Atty. Gen., Calvin Crawford, of Dayton, Ohio, and Frederic W. Johnson, of Cincinnati, Ohio, on the brief), for respondent.
Before SIMONS, ALLEN and McALLISTER, Circuit Judges.
McALLISTER, Circuit Judge.
These cases were heard separately before the court, without a jury, but, because they arise out of the same facts, were disposed of in the same findings, and are presented on the same record on review.
On appellants' suits claiming refund of income taxes claimed to have been erroneously assessed, the District Court entered judgments in favor of the Collector of Internal Revenue.
In 1908, the Karl Kiefer Machine Company was organized as an Ohio corporation, with authorized capital of $500,000.00, consisting of 3,000 shares of common stock, with a par value of $100.00 per share, and 2,000 shares of preferred stock, with a similar par value. 1,500 shares of common stock and 420 shares of preferred stock were fully paid for, the total paid in capital, amounting to $192,000.00. Karl *792 Kiefer owned all of the outstanding preferred stock and 748 shares of the common stock. Minna W. Rheinstrom owned 748 shares of common stock. The remaining 4 shares of common stock were held in the names of other individuals in order to qualify them as directors. With this variously divided ownership of stock, on November 30, 1914, a reduction of capital stock from $500,000.00 to $70,000.00, was properly authorized. The preferred stock was reduced to 420 shares, which was the amount previously issued; and the common stock was reduced to 280 shares. Kiefer continued as the owner of all the preferred stock, and ownership of the common stock was equally divided between Kiefer and Minna Rheinstrom. On the books of the company, the reduction of $122,000.00, representing the reduction of 1,220 shares of common stock, was taken from the common stock account and placed in the "earned surplus" account, increasing the latter from $31,006.80 to $153,006.80. In 1921, this amount of $122,000.00 was transferred to a new account, designated as "paid in surplus"; but no actual distribution of any kind was made, and there was no physical segregation of assets, nor any other action taken in regard to the capital stock reduction until 1934. In that year, the company, in addition to the payment of a dividend of $90,000.00, distributed the $122,000.00 to the stockholders and canceled the "paid in surplus" account, designating this payment as having arisen by reduction of the common stock in 1914. Half of this sum, amounting to $61,000.00, was distributed to Minna Rheinstrom; and the other half, to the beneficiaries under the will of Karl Kiefer. It appears that the earnings for the year 1934 were more than sufficient to pay the $90,000.00 dividend and the above mentioned sum of $122,000.00.
On October 1, 1937, Minna Rheinstrom died and the Collector of Internal Revenue assessed her estate on the amount of $61,000.00 on the ground that it was subject to income tax as a dividend. A similar tax was assessed against the estate of Karl Kiefer. The executor under the will of Minna Rheinstrom, and the trustee under the will of Karl Kiefer, sued for a refund of the tax so assessed and collected, claiming that the distribution of the sum of $122,000.00 was not a dividend, but a return of capital on partial liquidation, or the payment of a debt owed by the corporation to its shareholders. The first question to be determined is whether the distribution of the amount of $122,000.00, to Minna Rheinstrom and the beneficiaries under the will of Karl Kiefer, was actually a dividend or a return of capital on partial liquidation. If it was a dividend, it is taxable.
The term "dividend," as used in the 1934 Revenue Act, in so far as here applicable, means any distribution made by a corporation to its shareholders, whether in money or in other property, out of its earnings or profits, accumulated after February 28, 1913 (§ 115(a), 26 U.S.C.A. Int.Rev. Acts, page 703); and every distribution is presumed made out of earnings or profits to the extent thereof, and from the most recently accumulated earnings or profits (§ 115(b).
The Act further provides, however, in § 115(c), that where amounts are distributed in complete liquidation of a corporation, they shall be treated as in full payment in exchange of stock; and where amounts are distributed in partial liquidation of a corporation, they shall be treated as in part or in full payment in exchange for stock. In so far as this controversy is concerned, it is provided that in the case of amounts distributed in partial liquidation, the part of such distribution which is properly chargeable to capital stock, is not considered a distribution of earnings or profits within the meaning of § 115(b). In other words, that part of an amount distributed in partial liquidation of a corporation, which is properly chargeable to capital stock, is not considered a distribution of earnings or profits to the extent thereof, and from the most recently accumulated profits (§ 115(c); and it is provided that the general definition of a dividend in § 115(a) is not intended to apply to distributions made to stockholders in the liquidation of a corporation, but that it was intended that such distributions should be governed by § 115(c). But if a corporation cancels or redeems its stock at such time and in such manner as to make the distribution and cancellation or redemption in whole or in part, essentially equivalent to the distribution of a taxable dividend, the amount so distributed in redemption or cancellation of the stock, to the extent that it represents a distribution of earnings accumulated after February 28, 1913, shall be treated as a taxable dividend (§ 115(g).
As used in the statute, the term "amounts distributed in partial liquidation" means a distribution by the corporation in complete cancellation or redemption of a part of its *793 stock or one of a series of distributions in complete cancellation or redemption of all, or a portion of its stock. See § 115(i).
We come, therefore, to the consideration of that part of a distribution in partial liquidation, which is properly chargeable to capital stock; and whether the distribution, in this case, was a redemption of stock at such a time and in such a manner as to be essentially equivalent to the distribution of a taxable dividend. With regard to whether a redemption of stock is essentially equivalent to the distribution of a taxable dividend, this depends upon the circumstances of each case, and under the statute, consideration must be given to the time at which and the manner in which the redemption is made. Commissioner v. Champion, 6 Cir., 78 F.2d 513.
On these questions it is held that the Commissioner's determination is prima facie correct and the burden is on the taxpayer to prove that it was wrong. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623; Wiese v. Commissioner, 8 Cir., 93 F.2d 921; Whitlow v. Commissioner, 8 Cir., 82 F.2d 569; Tate v. Commissioner, 8 Cir., 97 F.2d 658.
With regard to the proposition before us, the many adjudications have resulted in some difficulty in distinguishing the various statements therein found. See Patty v. Helvering, 2 Cir., 98 F.2d 717; Hyman v. Helvering, 63 App.D.C. 221, 71 F.2d 342; certiorari denied 293 U.S. 570, 55 S.Ct. 100, 79 L.Ed. 669. Aside from certain conflict, however, it can be said that a degree of apparent contradiction has resulted from the language of the statute, respecting a somewhat abstract area of corporate finance, as well as because of the great diversity of factual situations presented in the cases.
Whether a dividend is a distribution in liquidation, is held to be a question of fact; and one of the factors to be considered, is the intent of the directors of the corporation. Tate v. Commissioner, supra; Tootle v. Commissioner, 8 Cir., 58 F.2d 576. It is also said that it is the effect of the distribution which classifies it, and not the motives of the taxpayer or corporation. Flanagan v. Helvering, 73 App.D.C. 46, 116 F.2d 937; Smith v. United States, 3 Cir., 121 F.2d 692.
In Commissioner v. Champion, 6 Cir., 78 F.2d 513, a decision of the Board of Tax Appeals, holding that a distribution in redemption of stock was not essentially equivalent to the distribution of a taxable dividend, was affirmed. It appeared that an increase in capital stock anticipated improvements in business, which failed to materialize, and, instead, the corporation business declined. The court held that there was a reasonable inference that the shrinkage in the business brought the corporation to the realization that the capital was in excess of its needs, and to that extent, unprofitable, and that good business judgment might naturally suggest a redemption of stock proportionate to the decline in business.
In Flanagan v. Helvering, supra, it was said that neither the courts nor the Board of Tax Appeals have laid down a sole decisive test to determine whether a transaction is equivalent to a taxable dividend or a partial liquidation, under the statutory provisions here under consideration. In that case the factors considered by the court in arriving at its determination that a distribution was taxable as a dividend, were that the major part of the capitalization of the corporation represented former earnings; only two relatively small dividends were ever paid; the proportional ownership of the shareholders was not changed; the corporation did not manifest any policy of contraction; the initiative for the corporate distribution came from a stockholder who needed cash; and the corporation continued to operate at a profit.
In McGuire v. Commissioner, 7 Cir., 84 F.2d 431, certiorari denied 299 U.S. 591, 57 S.Ct. 118, 81 L.Ed. 435, where a taxpayer and his father owned all but one share of stock of a corporation, which accumulated a large sum from profits for a plan of expansion, and, after abandoning such plans, retired almost half the shares for a price computed by allocating accrued benefits thereto, the transaction was held equivalent to a distribution of a taxable dividend, even though the taxpayer's mother, who owned one share, did not participate. It was held that the reduction bore no marked relation to the company's plan of operation, and, in deciding the case, the court observed the great variety of opinion on the question, and remarked that most of the cases were of little value in the determination of the issue, as each depended upon its own peculiar facts; and whether a given case falls within or without the provisions of § 115(g), is often a difficult question and one inviting the closest scrutiny of the trier of the facts. In Goldstein v. Commissioner, 7 Cir., 113 *794 F.2d 363, among the relevant factors which the court took into consideration, were the large size of the surplus, the great earnings, and the question of why a cash dividend had not been declared.
In the following cases, distribution was held not taxable: where a reduction of stock and distribution was made by a corporation, when its business had become less profitable and had continued to decline, and the purpose of the reduction was to bring it more in line with actual conditions, rather than a cloak for the payment of dividends [Commissioner v. Cordingley, 1 Cir., 78 F.2d 118]; where expansion had proved unprofitable, and a partial liquidation of a corporate enterprise and its subsidiaries had begun [Commissioner v. Babson, 7 Cir., 70 F.2d 304]; where reduction resulted from sincere motives on the part of the directors, to meet corporate needs in fair business objectives [Commissioner v. Quackenbos, 2 Cir., 78 F.2d 156]; and where several parties, associated with the corporation, had died, business had declined, stockholders had directed activities toward winding up the business, and although the company continued in operation, its scope was steadily narrowed. Commissioner v. Straub, 3 Cir., 76 F.2d 388. See Kelly v. Commissioner, 2 Cir., 97 F.2d 915.
In Leland v. Commissioner, 1 Cir., 50 F.2d 523, it is held that there is a conclusive presumption that every distribution by a corporation to its stockholders is made from the most recently accumulated earnings, when the corporation had earnings accumulated since February 28, 1913, and available for distribution; although that case involved a distribution in which there was no reduction of stock. To the same effect, see Douglas v. Edwards, 2 Cir., 298 F. 229; Edwards v. Douglas, 269 U.S. 204, 46 S.Ct. 85, 70 L.Ed. 235.
In Baker v. Commissioner, 2 Cir., 80 F.2d 813, it was held that a distribution to a stockholder was a taxable dividend, although it represented, in part, proceeds of sale of capital assets of a subsidiary, where it appeared that the corporation had earnings and profits accumulated since February 28, 1913, exceeding the amount distributed. Section 201(a) (b) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 146. In Faris v. Helvering, 9 Cir., 71 F.2d 610, under provisions of § 201(a) (b) of the Revenue Act of 1921, 42 Stat. 228, which, for purposes herein, are the same as § 115(a) (b) of the Revenue Act of 1934, it was held that if a corporation had on hand any undistributed earnings or profits accumulated since February 28, 1913, payment of distribution made pursuant to the authorization by a State Commissioner of Corporations to distribute $200,000.00 of its capital assets, must be deemed to be made out of the earnings on hand.
It is held that a dividend can be a partial liquidating dividend only if it is one of a series of distributions in complete redemption of stock; and the fact that the corporation is not immediately dissolved and the fact that the dividend is declared to be paid out of surplus, do not prevent a finding that the distribution was a liquidating dividend, as far as taxpayers are concerned. Tate v. Commissioner, supra; Tootle v. Commissioner, supra. But a finding that the taxpayer's evidence fails to indicate that the corporation had any definite purpose to conclude its business and dissolve, justifies the conclusion that such a distribution is a taxable dividend. Tate v. Commissioner, supra. However, in other cases, it is held that it is unnecessary that a corporation be planning a cessation of business or be in the process of final liquidation in order that a distribution be considered a liquidating dividend. Commissioner v. Cordingley, supra; Commissioner v. Quackenbos, supra. See Kelly v. Commissioner, supra.
In Commissioner v. Brown, 7 Cir., 69 F.2d 602, it was held that it is the time and manner of the liquidation, not the existence of undistributed earnings, which makes it essentially equivalent to a taxable dividend. The court stated that subsection (g) does not turn every partial liquidation into a dividend whenever there are undistributed earnings in the corporation; but that this section was to prevent the issuance of a stock dividend, which is fundamentally not taxable, from being made use of as a device for the actual distribution of a cash dividend.
In Hyman v. Helvering, supra, in discussing the distinction between taxable dividends and distributions in liquidation, and commenting upon the intent of Congress in carrying out its objective of taxing certain distributions, even in cases where there was a corresponding redemption of stock, the court said [63 App.D.C. 221, 71 F.2d 343]:
"But, in our view, the answer within the intendment of (g) turns not so much upon the question of whether there was or was *795 not liquidation as upon the result. That is to say, if the distribution and cancellation, viewed fairly, made it essentially equivalent to a distribution of profits, it is taxable. The Commissioner and the Board have both held that what occurred was essentially equivalent to a distribution of profits. * * * Undoubtedly the tax law recognizes a distinction between liquidating dividends and dividends out of profits, and provides a different basis on which to tax them. The purpose of Congress in the inclusion of (g) was to narrow the distinction to the end that corporations might not by resort to the device of stock redemption or cancellation make a distribution to its shareholders essentially resulting in a division of profits. In both the House and Senate reports, and in the conference reports, an illustration is given showing the congressional purpose. The illustration supposes, under the tax laws prior to the amendment involved here, the case of two men holding practically the entire stock of a corporation for which each paid $50,000. The corporation, having accumulated a surplus of $50,000 above its cash capital, buys from the stockholders for cash one-half of the stock held by them and cancels it, and the payment is nontaxable because it is a partial redemption of stock. To change this result and make it taxable (g) was written in and incorporated into the law."
In this case, the earnings of the company for the years 1910 to 1913, inclusive, were $148,000.00, on a capital of $192,000.00 out of which dividends of $87,000.00 were paid. In 1934, when the alleged distribution of $112,000.00 in liquidation was made, the company also paid $90,000.00 in dividends; and, after both distributions, had a remaining surplus of approximately $370,000.00. The 1934 profits exceeded those of 1933, and there were substantial dividends every year from 1914 to 1934.
In considering the foregoing, we here mention a further contention of appellants that the distribution was merely the payment of a debt due the stockholders. This claim is based upon the contention that, at the time of the reduction in stock, the amount represented by the deduction was payable to the stockholders, and that payment thereof was made by the distribution in 1934. The circumstances, however, of transferring in 1914, the amount involved, from the common stock account to earned surplus, and keeping it in such account until 1921, when it was entered as "paid in surplus," is evidence from which reasonable inferences could be drawn that it was not intended to be a distribution in liquidation; and while bookkeeping entries are not conclusive, they are circumstances to be taken into consideration in determining whether it was a real liquidation or a dividend. The same observation applies to the circumstance that the entire amount was left untouched by the stockholders for 20 years, all this time, unsegregated and working in earning dividends, further giving rise to the inference that the cancellation of the stock was merely a bookkeeping entry and that the transaction was intended to leave the corporate assets and the proportionate stock ownership virtually untouched. See Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A. L.R. 1570. Furthermore, there remains, under this contention of appellants, application of the presumption that any distribution, other than in liquidation, is a dividend. Appellants cite Weaver v. Commissioner, 9 Cir., 58 F.2d 755. That case involved a distribution of funds that the stockholders paid in as contributed surplus. When repaid, it was held to be a return of capital. No stock was involved; the stockholders merely received back their advance. The difficulty in reconciling the grounds of decision, with the language of the statute, can afford appellants no support in the disposition of an entirely different problem. The decision, while bearing upon the contention above discussed, is not applicable to the facts here.
Appellants claim that the court erred in rejecting certain proffered testimony as to the purpose of the reduction of stock in 1914. This was to the effect that it was decided to make free for the stockholders, a large portion of the then paid in capital, as it was considered the company was over-capitalized; it was sought to be shown by appellants that it was determined to reduce the capital stock for the purpose of creating a fund which would be available to the stockholders at any time they wished to draw therefrom; and that they could borrow from the bank on the company's credit to the extent of this fund, which, otherwise, they had no right to do. The court permitted appellants to make a proffer of the proposed testimony, but refused to admit it in evidence, although the claims with reference thereto were mentioned in the court's findings.
*796 With regard to the claimed error of the court in excluding this testimony, appellants were permitted to make the proffer. The court considered the evidence in its findings; and it is to be observed that, on the trial, when the court indicated that the testimony was inadmissible, counsel for appellants stated that he did not think that the proffer or the evidence was necessary, "because, as a matter of law, the effect of the reduction as stated was the same as the purpose the stockholders had in making it." Under all of the circumstances, we are of the opinion that, if it be assumed that such testimony was admissible, the exclusion was harmless.
Many of the criteria heretofore relied upon by the courts to sustain the holding that a distribution was a dividend, are here present. The corporation continued to operate at a profit and manifested no policy of contraction (Flanagan v. Helvering, supra); there were a large surplus and continued profits each year after 1914 until the distribution in 1934 (Goldstein v. Commissioner, supra); earnings and profits accumulated since 1913, exceeded the amount distributed (Baker v. Commissioner, supra). There was no declining of corporation business, and no proof of reasonable grounds to conclude that the capital was in excess of the company's needs, as in Commissioner v. Champion, supra; nor did there appear any prudent business reasons to reduce the capitalization by the cancellation of stock (Hyman v. Helvering, supra); and there was nothing to indicate that a liquidation or winding up of the business was contemplated. The transaction does not appear to have borne any marked relation to the company's plan of operation, and no reasonable business need appears to have been accomplished.
It is claimed that the reduction gave the holder of the preferred stock a larger right to share in assets of the corporation on final liquidation. Under the evidence, with regard to the effect of the reduction of the common and preferred stock, in this case, that may be conceded. It is one circumstance to be taken into account, but it is not conclusive; and the reduction of stock was proportionate in the important right to share in dividends on common stock.
It is unnecessary to suggest further circumstances that existed, or did not exist, in order to pass upon the correctness of the conclusion of the District Court. Those mentioned above, are only some of the many situations that may be considered in arriving at a determination of whether the distribution was properly chargeable to capital account, or was essentially equivalent to the distribution of a taxable dividend. The question, here, was whether the distribution was made primarily from the standpoint and concern of the corporate business, or primarily for the purpose of benefiting stockholders by means of a dividend, disguised as a payment of a debt or as a distribution in liquidation. The burden was upon appellants to prove that the determination was wrong; and they have failed to establish their claim. The evidence sustains the finding that the distribution was a taxable dividend.
The judgments of the District Court are affirmed.
|
1 Kan. App. 2d 1 (1977)
561 P.2d 892
JAMES CLARDY, ADMINISTRATOR OF THE ESTATE OF LUCY CLARDY, Appellant,
v.
NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, A Corporation, Appellee.
No. 48,192
Court of Appeals of Kansas.
Opinion filed February 25, 1977.
Charles S. Scott, of Scott, Scott, Scott & Scott, of Topeka, for the appellant.
S. Mark Edwards, of Hoover, Schermerhorn, Edwards & Pinaire, of Junction City, for the appellee.
En Banc
SWINEHART, J.:
The plaintiff was the duly appointed, qualified and acting administrator of the estate of Lucy Clardy. Lucy Clardy was the beneficiary of a life and accident insurance policy issued by the defendant herein on the life of one Charles E. Johnson. The pertinent provisions of the policy are:
"(4) EXCEPTIONS No indemnity shall be payable hereunder on account of any *2 disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the Insured by himself, while sane or insane, or by any other person other than an assailant attempting to burglarize the Insured's household or rob the Insured; ..."
Trial was to the court, based upon stipulations by the parties as to facts and testimony of various witnesses. The two questions decided by the trial court were:
"1. Whether the insured's death resulted from accidental means or was intentionally inflicted upon the insured by himself, or by any other person other than an assailant attempting to burglarize the insured's household or rob the insured.
"2. Should attorney's fees be awarded to plaintiff's attorney pursuant to K.S.A. 40-256."
The trial court found:
"1. That the court has jurisdiction of the partie and the subject matter.
"2. That the plaintiff, Lucy Clardy, is the beneficiary under a policy of insurance on the life of Charles E. Johnson with the National Life and Accident Insurance Company.
"3. That on the 3d day of December, 1968, Charles Johnson was mortally wounded by stabbing.
"4. That the assailant was Helen Jean Slate.
"5. That there is, under the insurance policy, under item numbered (4), `Exceptions,' a statement which reads as follows: `No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the insured by himself, while sane or insane, or by any other person than an assailant attempting to burglarize the insured's household or rob the insured....'
"6. The court finds that said assault was not during a burglary or an attempt to rob the said Charles E. Johnson. The court finds that the obligation to go forward with the evidence and the burden of showing that the death falls within the purview of the policy is upon the plaintiff herein. The court believes that the plaintiff has not sustained said burden from the evidence as presented.
"7. The court specifically finds that said death was not accidental in that the court was presented with no evidence which would sustain such a finding. The court incorporates herein the stipulations and agreed facts as submitted to the court, the same as if they were set forth herein.
"8. Based upon the above findings of fact and conclusions of law, the court must grant judgment to the defendant and tax the costs of this action to the plaintiff."
This decision of the court was modified as a result of ruling on defendant's motion for amendment, to the extent that is material to the determination of the questions here involved, as follows:
"The record discloses that death of insured was the result of a murderous assault upon him for which he is in no wise chargeable with blame. Such death is caused by `accidental' means within a policy insuring against disability or death *3 from accidental means, though inflicted intentionally so far as the assailant is concerned. Kascoutas v. Federal Life Insurance Company, 193 Iowa 343, 22 ALR 294.
"The death certificate upon which defendant relies to establish `non-accidental' death, shows `murder' as the circumstance of the fatal stab wound. While the court recognizes that `homicide' would have been a more judicious answer to the question posed, the fact remains that the death certificate substantiates the claim of death by accidental means as above defined.
"Finding No. 7 is amended by striking the word `not' in Line 2; placing a period after the word `accidental,' and striking the remaining words in the first sentence.
"The `threshold question' of accidental death having been determined, the second objection that the Court placed the burden upon plaintiff to negate the exceptions to recovery under the policy is considered. The record discloses evidence adduced by the defendant that the assailant was one Helen Jean Slate and that the assault was not made during a burglary or an attempt to rob the insured, and the Court so found placing the claim squarely within the policy exception, `No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the insured by himself, while sane or insane, or by any other person other than an assailant attempting to burglarize the insured's household or rob the insured.'"
Judgment was entered in favor of defendant, and plaintiff-administrator now appeals.
The testimony presented to the trial court by written stipulation was that the deceased, Charles E. Johnson, had been acquainted with Helen Slate for a period of time prior to December 3, 1968, and said acquaintance was more than a mere casual one. On December 3, 1968, at approximately 8:00 a.m., Charles E. Johnson was at the home of Helen Slate, and at the same time, there was another man, Fred Wilson, in the bedroom of the home of Helen Slate. Further testimony revealed that the man in Helen Slate's bedroom had previously threatened to kill Helen Slate if the victim was ever caught in her home again. Charles Johnson, who was in the process of leaving said home, a taxicab having been called for him by Helen Slate, had departed from the residence and was standing near the street. Helen Slate was observed leaving the house thereafter, and in conversation with Charles E. Johnson in the front yard. A passerby noted that Charles E. Johnson and Helen Slate, while in the front yard at this time, appeared to be loving and kissing. Shortly thereafter, Charles E. Johnson was observed lying on the ground, bleeding profusely. A knife with approximately a four-inch blade was found in the grass near the body. An ambulance was called, and Mr. Johnson was taken to the emergency room of the hospital. *4 During the trip, Helen Slate rode in the ambulance and made the following statements in the presence of the ambulance driver and some police officers, to-wit: "I did it, but don't let him die." At the emergency room again Mrs. Slate was overheard making the following statement: "I did it, I did it, please don't let him die."
Evidence as a result of the autopsy indicates the deceased did die of a stab wound. The autopsy report further shows that the stab wound was in the chest area and that the offending weapon penetrated the heart in a downward direction, and that this wound was approximately three and one-half inches deep. The autopsy report further indicates that the chemical test concerning blood alcohol content was performed, and Charles E. Johnson, shortly after his death, had blood alcohol content of .169.
The evidence further indicates that the victim's mother, Lucy Clardy, had, in a previous conversation with the victim, warned him about his relationship with Helen Slate.
As has been previously indicated, the parties agreed that the witnesses, if they had testified in person, would have testified as presented to the court and briefly outlined above.
Plaintiff, for his argument on appeal, raises the issue of whether the death, found to be accidental in nature, falls within the exclusionary clause which denies recovery if the assailant was a person other than one attempting to burglarize the insured's household or to rob him, or whether the accidental death as found by the court falls within the general coverage of the policy. Plaintiff maintains in light of the evidence presented to the court that the court erred when it found that the death of Charles E. Johnson resulted from an intentional wound inflicted upon the insured by persons other than an assailant attempting to burglarize the insured's household or rob the insured. Plaintiff further contends the lower court erred when it found that the evidence presented by the defendant insurance company was sufficient to show that the death of the deceased fell within the exclusions providing for no indemnity in the insurance policy, and that the plaintiff had the obligation to go forward with the evidence to show that said attack by the assailant did not come within the exclusionary provisions of this particular section of the policy. Plaintiff cites the case of Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P.2d 763, and Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, 529 P. *5 2d 171.
The defendant maintains that such cases are inapplicable for the reason that the evidence here presented was sufficient for the court to make the finding that the injuries inflicted upon the deceased, Charles E. Johnson, by Helen Slate were inflicted intentionally and were not inflicted during the commission of a robbery of the deceased or during the course of burglarizing his household.
This court does not feel that the above cited cases are in point in this particular case, for the reason that the trial court did find from the evidence presented that the said Charles E. Johnson met his death by accidental means. This was gleaned by the court from all the stipulated testimony. From the same testimony, the court made the further finding that the death was a result of an intentional assault upon the insured by one Helen Slate and that said assault did not take place during the course of a robbery of the insured or burglary of the insured's household. Without further testimony, the preponderance of the evidence precluded recovery by the plaintiff-beneficiary.
The recognized rule in Kansas is that one who claims benefits under an insurance policy has the burden of showing that the injury suffered was of a type included in the general provisions of the insurance contract. See Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P.2d 401. Further, an insurance company, seeking to avoid liability under an exclusionary clause in its policy, has the burden of proving that the loss falls within the exclusion. Baugher v. Hartford Fire Ins. Co., supra; Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, 529 P.2d 171. The record in this case shows that the evidence was presented to the trial court by agreed stipulation. The court found that, based on this evidence, the defendant had met its burden of proof. This being so, judgment for defendant was proper because plaintiff, by agreeing to the stipulation, waived any rebuttal evidence he might have had.
The findings of fact are attacked for insufficiency of evidence. The duty of the appellate court is to search the record to determine whether there is competent evidence to support the findings. The appellate court will not weigh the evidence. Further, the reviewing court must review the evidence most favorable to the party who prevailed below. Union National Bank and Trust *6 Co. v. Acker, 213 Kan. 491, 516 P.2d 999.
Applying the foregoing rules, and after review of all of the arguments of counsel and consideration of the facts as presented to the trial court, this court finds that although there was no eyewitness to the actual stabbing, the trial court could have reasonably drawn the inference from all of the circumstances, including but not limited to the relationship of the parties, the depth and direction of the wound, the length of the knife used, and the statements in the nature of admissions by Helen Slate, "I did it, I did it, don't let him die," that the act of stabbing was done intentionally by Helen Slate, and not in an attempt to rob the victim or commit a burglary. This court finds that there was no abuse of discretion, and that there was substantial evidence to support the facts above set forth, and that the court did not shift the burden of proof to the plaintiff to prove that section 4 of the insurance policy was not applicable.
We conclude the order of the lower court, finding in favor of the defendant, was based upon substantial evidence. We further conclude the burden of proof was immaterial for the reason that all of the evidence was presented and considered by the trial court at the same time, and the evidence presented was prepared by plaintiff's counsel, and acquiesced in by the counsel for defendant.
Judgment of the lower court is affirmed.
ABBOTT, J., not participating.
|
63 Ill. App.3d 742 (1978)
380 N.E.2d 529
SAINT JOSEPH HOSPITAL, Plaintiff-Appellee,
v.
WILLIAM H. DOWNS et al., Defendants-Appellants.
No. 77-498.
Illinois Appellate Court Third District.
Opinion filed September 7, 1978.
*743 Norman H. Small, of Chicago, for appellants.
Harold Shabelman, Ltd., of Joliet, for appellee.
Judgment affirmed.
Mr. PRESIDING JUSTICE STOUDER delivered the opinion of the court:
Plaintiff, Saint Joseph Hospital, filed a complaint against defendants, William and Ardeen Downs, husband and wife, to recover for hospital services rendered to William Downs. Defendants, by their counsel, entered an appearance and answered the complaint, admitting that services had been rendered, but denied the remaining allegations of the complaint. The trial was set on August 14, 1977. On that date, the plaintiff was present by counsel. Mrs. Downs appeared in person and on behalf of her husband. After testimony was heard, judgment was entered for plaintiff in the amount of $1,202.55, as prayed for in the complaint.
Within 30 days, defendants, by their counsel, filed a motion to vacate the judgment. The trial court denied the motion and defendants appealed.
On appeal, defendants claim first, the lower court erred in refusing to *744 continue the trial; second, the trial court abused its discretion in denying defendants motion to vacate the judgment; and finally, defendants argue the judgment should be reversed because the proof does not conform to the pleadings.
1 The cryptic facts set forth above is prompted in part by the absence of a report of proceedings. Defendants have failed to file a report of proceedings on appeal as required by Supreme Court Rule 323 (Ill. Rev. Stat. 1977, ch. 110A, par. 323). It is the appellant's obligation to provide a complete record on appeal. If no verbatim transcript is obtainable, an agreed statement of facts or a bystander's report are acceptable substitutes. (Ill. Rev. Stat. 1977, ch. 110A, pars. 323(c), (d).) Defendants have not undertaken either substitute. The only information in the record which could arguably provide this court with the information necessary to an intelligent examination of defendants' first and third claims of error is defendants' motion to vacate. Such a motion does not overcome the failure to file a report of proceedings because a post-trial motion is not a substitute for a report of proceedings. (Belcher v. Spillman, 28 Ill. App.3d 973, 329 N.E.2d 550.) Furthermore, the "statement of facts" in defendants' brief is insufficient to provide us with information concerning trial since without adequate support in the record the statement of facts lies outside the record and may not be considered on appeal. Abbey Plumbing & Heating, Inc. v. Brown, 47 Ill. App.3d 719, 365 N.E.2d 115.
2, 3 The only record of the trial court's actions is provided by the trial court's docket sheet. That docket sheet contains no mention of a request for continuance by Mrs. Downs. In light of this and the absence of a report of proceedings which might indicate such a request was made, defendants' claim that a continuance of the trial should have been granted is not entitled to review. Defendants' argument that the proof does not conform to the pleadings must similarly fail, for without a report of proceedings there is nothing before this court to gauge whether or not the pleadings and proof are at variance. In such situations, it must be presumed the evidence at trial was sufficient to support the judgment.
4 The only issue entitled to review concerns defendants' claim that the trial court abused its discretion in denying their motion to vacate. (See Abbey Plumbing & Heating, Inc. v. Brown, 47 Ill. App.3d 719, 365 N.E.2d 115.) On appeal defendants have attempted to characterize the judgment entered against them as a default judgment and their motion to vacate as a motion pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50(5)). In light of Mrs. Downs' appearance at trial for herself and on behalf of her husband, as well as defendants' filing of the necessary pretrial pleadings, the judgment is not a default as contemplated by section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50(5)). According to the motion, a collateral action to *745 recover for Mr. Downs' medical expenses had been filed against his health insurance carrier and the defendants desired that the plaintiff not proceed on this action until the other action had been decided. Admittedly, this is not a defense to the present action and in no way suggests any reasons why fairness and justice require another trial. With due consideration to the state of the record before us, we do not believe the trial court abused its discretion in denying defendants' motion to vacate.
For the foregoing reasons the judgment of the circuit court of Will County is affirmed.
Judgment affirmed.
STENGEL and SCOTT, JJ., concur.
|
164 Cal.App.4th 1561 (2008)
URBAN HABITAT PROGRAM et al., Plaintiffs and Appellants,
v.
CITY OF PLEASANTON et al., Defendants and Respondents.
No. A118327.
Court of Appeals of California, First District, Division Two.
June 20, 2008.
*1565 Public Advocates, Inc., Richard A. Marcantonio, Elisabeth Voight, Angelica K. Jongo; California Affordable Housing Project, Public Interest Law Project, Michael Rawson, Craig D. Castellanet; Munger Tolles & Olson, Carolyn Hoeker Luedtke, Lika C. Miyake and Tyler A. Roozen for Plaintiffs and Appellants.
Ilene J. Jacobs for California Rural Legal Assistance, Inc., as Amicus Curiae on behalf of Plaintiffs and Appellants.
Luz Buitrago for Law Center for Families as Amicus Curiae on behalf of Plaintiffs and Appellants.
Kyra Kazantzis for Public Interest Law Firm a Program of the Law Foundation of Silicon Valley as Amicus Curiae on behalf of Plaintiffs and Appellants.
Crystal Sims for the Legal Aid Society of Orange County as Amicus Curiae on behalf of Plaintiffs and Appellants.
Mona Tawatao for Legal Services of Northern California as Amicus Curiae on behalf of Plaintiffs and Appellants.
Shashi Hanuman and Lisa Jaskol for Public Counsel as Amicus Curiae on behalf of Plaintiffs and Appellants.
*1566 Ken Babcock and Ezequiel Gutierrez for The Public Law Center as Amicus Curiae on behalf of Plaintiffs and Appellants.
S. Lynn Martinez and Richard A. Rothschild for The Western Center on Law and Poverty as Amicus Curiae on behalf of Plaintiffs and Appellants.
Michael H. Roush, City Attorney; Hanson Bridgett Marcus Vlahos & Rudy and Thomas B. Brown for Defendants and Respondents.
Zack Cowan for League of California Cities as Amicus Curiae on behalf of Defendant and Respondent City of Pleasanton.
OPINION
HAERLE, J.
I. INTRODUCTION
This is an appeal from a judgment of dismissal of the first amended petition of plaintiffs and appellants Urban Habitat Program and Sandra DeGregorio (collectively referred to as Urban Habitat) for a writ of mandate and their complaint for declaratory and injunctive relief (the complaint), following the demurrer of defendants and respondents City of Pleasanton and Pleasanton City Council (collectively referred to as City).
Urban Habitat contends the trial court erred in granting the City's demurrer because (1) it misconstrued the applicable statutes of limitations set out in Government Code section 65009[1] and Code of Civil Procedure section 338, subdivision (a); and (2) it misapplied the ripeness doctrine. We agree and, accordingly, reverse the judgment of dismissal except as it applies to two causes of action (the fifth and sixth), as to which we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Appellant Urban Habitat Program is a nonprofit corporation that "works to ensure equitable and non-discriminatory access to affordable housing and other opportunities throughout the Bay Area...." Appellant Sandra DeGregorio lives in Pleasanton, and is a "very-low income Latina single mother with minor children."
*1567 B. The Housing Element
The complaint alleges that, under California's Housing Element Law (§ 65580 et seq., hereinafter referred to as the Housing Element Law), the City was required to pass, as part of its general plan, a "Housing Element," which is designed to "make adequate provision for the housing needs of all income groups, including accommodating the local government's share of the RHNA [Regional Housing Need Allocation]." The City enacted its Housing Element in 2003, a year after the statutory deadline for doing so.
The City's share of the Regional Housing Need Allocation was allocated, pursuant to state statute, by the Association of Bay Area Governments. During the 1999-2006 planning period, the City was allocated 729 new units of "very low income" housing, 455 units of "low-income" housing, 1,239 units of "moderate-income" housing and 2,636 units of "above-moderate" housing.
The City's 2003 Housing Element disclosed that, under current planning policies, including current zoning provisions, there would be a deficit of appropriate sites for 871 units of high-density, lower income housing during the 1999 to 2006 planning period. The City "determined that 30 to 40 acres of land presently designated for non-residential use must be designated `HDR' [high density residential] through General Plan amendments" and rezoning. The City's Housing Element contained a requirement described in "Program 19.1" that "appropriate modifications to the Land Use Element [of the general plan] and rezonings" would occur "as soon as possible, but no later than June 2004...."
The City's Housing Element was granted "limited `conditional approval'" by California's Department of Housing and Community Development, the state agency charged with, among other things, "reviewing local Housing Elements for substantial compliance with the Housing Element Law." A finding of compliance was conditioned "`on the effective and timely implementation (June 2004) of the general plan amendment and rezoning strategy as described in Program 19.1.'"
On March 7, 2005, California's Department of Housing and Community Development notified the City that it had revoked the City's Housing Element compliance status because the City had not met the June 2004 date for rezoning and that, in fact, "final action on the rezoning had `slipped' from a scheduled date of November or December 2006 to `the first quarter of *1568 2007.'" In January 2007, the City announced that its projected completion date for rezoning would be December 2007 or later.
C. The City's Housing Cap and Growth Management Ordinance
The complaint also identified local legislation that, as of April 2006, made it impossible for the City to meet its share of the Regional Housing Needs Allocation. In 1996, the City's voters approved Measure GG, or the "Housing Cap" initiative. Measure GG amended the Housing Cap provision contained in the City's general plan to provide that the City shall (1) maintain a "maximum housing buildout of 29,000 units"; (2) monitor and zone so as not to exceed the maximum housing buildout (a mandate also referred to as "Program 15.1"); and (3) permit amendments to the Housing Cap initiative only by a vote of the people.
Although the City consistently asserted that the number of units that could permissibly be built under the Housing Cap was sufficient to meet its Regional Housing Needs Allocation, Urban Habitat alleges it discovered in April 2006 that this was not the case. On April 24, 2006, the city manager wrote a memorandum to the city council stating "that the City's remaining unmet portion of its share of the RHNA ... was 2,889 units...." The complaint alleges that, because the "`remaining residential potential'" under the Housing Cap was only 1,686 units, the City could not meet its obligation, under California law, to satisfy its Regional Housing Needs Allocation. The complaint alleges that "[a]t the present time, the Housing Cap poses an immediate regulatory barrier to the construction of new affordable housing, in that the units remaining under the Housing Cap ... are numerically insufficient to satisfy the City's remaining unmet share of the Bay Area Regional Housing Need Allocation...."
Urban Habitat also alleges that the City's implementation and enforcement of Program 15.1 independently prevents the City from fulfilling its obligations under the Regional Housing Needs Allocation because the City has chosen to comply with the Housing Cap rather than state law.
The City's Growth Management Ordinance is another local ordinance that, according to the complaint, has been implemented in a manner that, as of April 2006, makes it impossible for the City to meet its share of the Regional Housing Needs Allocation, which runs through 2009. Specifically, under the Growth Management Ordinance, which was adopted in 1986 and amended in 1998, the maximum number of building permits allowed during 2007, 2008, and 2009 is 2,250 units. According to the complaint: "This total number of *1569 permits is numerically insufficient to accommodate the unmet balance of the City's share of the RHNA during the present planning period, which (according to City documents) was 2,889 as of April 24, 2006. Accordingly, a current and immediate conflict exists between the Growth Management Program and the City's obligations under state law."
The City, in its 2003 Housing Element, required through a "Program 34.5" that it "[a]mend the Growth Management Ordinance to allow the City Council to override the annual housing allocations in order to grant approvals to projects so that the City is able to meet its regional housing needs goal by the end of the planning period." To date, the City has not done so. A second Housing Element Program, in this case Program 34.1, "directs the City Council to reserve the first 100 allotments out of the annual total of 750 building permits for projects containing 25 percent or more lower-income units, with the annual total of 750 building permits...." At this rate of allotment, however, the City will be unable to fulfill its present obligations under state law.
The complaint alleges that the City concealed the existence of the conflict between the Housing Cap, the Growth Management Ordinance, and the City's obligations under state law by denying the existence of such a conflict. Not until the April 24, 2006, staff memorandum was made available to the public, did Urban Habitat become aware of this conflict.
D. Housing Discrimination
The complaint also alleges that City actions favor the development of low-income housing units that are not suitable for families with children. Although the City's Housing Element requires the City to provide housing that includes "apartments for large families" and "affordable units for singleparent heads of households," the City has allegedly failed to do so, and has instead implemented the Housing Element in a discriminatory manner by failing to provide for families with children. As a result of this practice, and other land use planning decisions, the City's development of low income housing has been "at the expense of families with children."
E. Notice to the City
By letter dated June 20, 2006, Urban Habitat notified the City "of the violations of state law caused by the Housing Cap and Growth Management Program; the City's failure to adopt and implement a legally-sufficient *1570 Housing Element, which designates and zones sufficient vacant land to meet the projected housing needs in all income levels; and the City's discriminatory housing practices."
F. Legal Action
Urban Habitat filed a complaint against the City on October 17, 2006. On May 17, 2007, the trial court sustained, without leave to amend, the City's demurrer to the complaint. It ruled that each cause of action in the complaint was barred because Urban Habitat had "failed to allege any cognizable cause of action which is not barred by the applicable statute of limitations (CCP 338 and Cal. Gov. Code section 65009)...." The court also sustained the demurrer without leave to amend on the grounds that Urban Habitat's first through third causes of action were not ripe.
This timely appeal followed.
III. DISCUSSION
A. Standard of Review
"We review a trial court's ruling on a demurrer independently. [Citation.]" (Liska v. The Arns Law Firm (2004) 117 Cal.App.4th 275, 281 [12 Cal.Rptr.3d 21].) "Our task in reviewing a judgment of dismissal following the sustaining of ... a demurrer [without leave to amend] is to determine whether the complaint states, or can be amended to state, a cause of action. For that purpose we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed. [Citations.]" (Crowley v. Katleman (1994) 8 Cal.4th 666, 672 [34 Cal.Rptr.2d 386, 881 P.2d 1083].)
B. Section 65009
Both the City and Urban Habitat make vigorous arguments regarding whether the trial court was correct in holding that Urban Habitat's complaint was barred by section 65009, subdivision (d). The City contends that Urban Habitat's complaint was untimely under that section because the complaint challenges growth management laws adopted by the City in the 1980's and 1990's, and the City's Housing Element, which was adopted in 2003. The City argues that section 65009, subdivision (d), imposes a one-year statute of limitations on these challenges, a period that begins to run on the date of enactment and, therefore, the trial court did not err in finding them barred.
(1) Urban Habitat argues that the statute of limitations began to accrue 60 days after it gave notice to the City of its claims, and it then had one year *1571 from this date to file its complaint. Under this theory of accrual, Urban Habitat argues its complaint is timely.
We begin with an overview of section 65009. Section 65009 imposes relatively short statutes of limitations on legal challenges to local land use decisions. (§ 65009, subd. (a)(2).) As our Supreme Court explained in Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765 [16 Cal.Rptr.3d 404, 94 P.3d 538] (Travis), it does so in order to "`provide certainty for property owners and local governments regarding decisions made pursuant to this division' (§ 65009, subd. (a)(3)) and thus to alleviate the `chilling effect on the confidence with which property owners and local governments can proceed with projects' (id., subd. (a)(2))
(2) Section 65009 is made up of eight subdivisions, four of which are relevant to this appeal. The first, section 65009, subdivision (a), identifies the goal of section 65009 as providing "certainty for property owners and local governments regarding decisions made pursuant to this division." (§ 65009, subd. (a)(3).) It also states that the statute applies to challenges to the land use planning decisions of local authorities. (§ 65009, subd. (a)(2).)
(3) The next subdivision, section 65009, subdivision (b), limits proceedings to challenge a "finding, determination, or decision" of a public agency in a land use matter made at a "properly noticed public hearing" to issues that were raised at the hearing (unless the issues "could not have been raised ... by persons exercising reasonable diligence" or if the body conducting the hearing prevented the issue from being raised). (§ 65009, subd. (b)(1)(A), (B).)
(4) The third subdivision, section 65009, subdivision (c), sets a 90-day limit on the time for challenging local "decision[s] ... to adopt or amend" (§ 65009, subd. (c)(1)(A)) ordinances, regulations, development agreements, or permit conditions. (§ 65009, subd. (c)(1)(A)-(F).) The 90-day time limit begins to run from the date the decision is made. Section 65009, subdivision (c)(2), provides that the 90-day time period may be extended to the "date that the Department of Housing and Community Development" makes findings regarding a housing element.
(5) Finally, section 65009, subdivision (d), provides for a longer period of limitations, specifically one year, for claims "brought with respect to actions taken pursuant to" a variety of land use planning statutes (§ 65009, subd. (d)(2)), as long as these claims are "brought in support of or to encourage or facilitate the development" of low-income housing. (§ 65009, subd. (d)(1).) A cause of action for a challenge to land use action involving low-income housing accrues either 60 days after notice is given of the *1572 deficiency in a "general plan, specific plan, or zoning ordinance" or 60 days after the local legislative body takes a final action in response to the notice, whichever occurs first. (§ 65009, subd. (d)(2).)
C. Time for Filing Notice Under Section 65009, subdivision (d)
In sustaining the City's demurrer, the trial court held that the limitations period set out in section 65009, subdivision (d),[2] began to run on the dates the City enacted the 1986 Growth Management Ordinance and the 1996 Housing Cap. It concluded, therefore, that Urban Habitat was required to file suit within one year of die dates of those enactments. Urban Habitat contends that the trial court erred in reaching this conclusion because the one-year limitations period set out in section 65009, subdivision (d) began to run not on the date the city enacted the Growth Management Ordinance and the Housing Cap but on the date Urban Habitat first gave notice of its claims. Urban Habitat also argues that the statute contains no requirement that a notice be filed at any particular point after a decision is rendered by a local authority. Rather, it contends that the only statute of limitations applicable to its claim is one that begins to run 60 days after notice is filed with the City. The City responds that Urban Habitat's interpretation of section 65009, subdivision (d), amounts to an "open-ended" limitations period, which must be rejected because it is at odds with the statute's stated policy that there must be finality in land use planning decisions. We believe both parties are incorrect.
(6) Any claim that challenges the "decision" of a local authority and is brought "in support of or to encourage or facilitate the development of *1573 [low-income] housing." (§ 65009, subd. (d)(1)) is subject to section 65009, subdivision (d). That provision, requires that, before a complaint may be filed, the complaining party must notify the local authority of the alleged deficiency in a low-income housing decision and give the local body an opportunity to rectify the error.
(7) Although the statute does not specify the time within which such a notice must be given, it is our conclusion that the statute must be interpreted as containing a time limit within which this requirement must be met. (8) We reach this conclusion in light of the general principle that "[i]t is fundamental that legislation should be construed so as to harmonize its various elements without doing violence to its language or spirit." (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788 [176 Cal.Rptr. 104, 632 P.2d 217].) The goal of section 65009 is to provide "certainty for property owners and local governments regarding decisions made pursuant to this division." (§ 65009, subd. (a)(3).) Section 65009 does so by providing short time limits for filing challenges to land use planning decisions. This intent applies equally to each of its sections, including section 65009, subdivision (d), and each section must be read in such a way as to effectuate this goal. It is for this reason that we cannot read section 65009, subdivision (d), in the manner suggested by Urban Habitat because such a reading imposes no time limit at all within which a party must notify the local authority of a challenge to a land use planning decision impacting lowincome housing.
(9) Although the statute does not provide a time limit within which notice must be given to a local land use agency of a claim, we will interpret the general time limit of 90 days for bringing a complaint regarding a land use decision set out in section 65009, subdivision (c), as equally applicable to section 65009, subdivision (d). Put another way, if section 65009, subdivision (c), requires that a complaint regarding an allegedly erroneous decision must be filed within 90 days of the date the decision is made, then a notice of such a deficiency must also be filed within 90 days under section 65009, subdivision (d).
This requirement harmonizes all sections of the statute by imposing one uniform deadline for the date on which the initial step in bringing a legal challenge to a land use planning state must be made. It also avoids the result that, in one section of a statute specifically designed to ensure finality with regard to land use planning decisions, such challenges are subject to clear deadlines, while in another section of the same statute, no finality can ever be assured, because no deadline exists for initiating such a claim.
(10) In sum, a party bringing a challenge governed by section 65009, subdivision (d), has 90 days from the date a legislative action is taken or *1574 approval is given to notify the local land use authority of any claimed deficiencies in such an action or approval. Its claim then accrues 60 days after it gives this notice.
D. Claims Subject to Section 65009, subdivision (d)
In their discussion of the proper construction of section 65009, subdivision (d), both Urban Habitat and the City assume that all of Urban Habitat's claims are governed by section 65009, subdivision (d), albeit for different reasons. Underlying Urban Habitat's arguments regarding the proper interpretation of section 65009, subdivision (d), is its conclusion that, because its claims are brought "in support of or to encourage or facilitate" low-income housing, section 65009, subdivision (d), applies to its complaint. The City's arguments regarding that statute's accrual provision assume that Urban Habitat's complaint is brought "with respect to actions taken" by a local land use authority, and therefore is subject to section 65009, subdivision (d).
(11) In making these assumptions, both Urban Habitat and the City ignore the fact that that provision contains a two-prong requirement for applicability of section 65009, subdivision (d), to affordable housing-based claims. It is certainly the case, under the first prong, that section 65009, subdivision (d), applies to actions "brought in support of or to encourage or facilitate" low-income housing. However, as Amicus League of California Cities points out, the second prong that must be satisfied before section 65009, subdivision (d), will apply to such a claim is that the claim must be one that challenges "actions taken" pursuant to a variety of land use planning statutes.[3] (§ 65009, subd. (d)(2).) Thus, the issue we now address is whether Urban Habitat's claims fall under that second prong of section 65009, subdivision (d).
E. First, Second, and Third Causes of Action
In finding that each of Urban Habitat's claims was barred by section 65009, subdivision (d), the trial court concluded that all of Urban Habitat's claims *1575 amounted to a facial challenge to two City enactments: its 1986 Growth Management Ordinance, and the 1996 Housing Cap. In so doing, the court erred as to the first, second, and third causes of action, which are not facial claims.
The first, second and third causes of action are based on allegations that, although the City consistently asserted that the number of units that could permissibly be built under the Housing Cap was sufficient to meet its Regional Housing Needs Allocation, in April 2006 Urban Habitat allegedly discovered that this was not the case.
On April 24, 2006, the city manager wrote a memorandum to the city council stating "that the City's remaining unmet portion of its share of the RHNA ... was 2,889 units...." The complaint alleges that, because the "remaining residential potential" under the Housing Cap was only 1,686 units, the City could not meet its obligation, under California law, to satisfy its Regional Housing Needs Allocation. The complaint alleges that "[a]t the present time, the Housing Cap poses an immediate regulatory barrier to the construction of new affordable housing, in that the units remaining under the Housing Cap ... are numerically insufficient to satisfy the City's remaining unmet share of the Bay Area Regional Housing Need Allocation...."
Urban Habitat also alleged that the City's Growth Management Ordinance has been implemented in a manner that, as of April 2006, makes it impossible for the City to meet its share of the Regional Housing Needs Allocation, which runs through 2009. Specifically, under the Growth Management Ordinance, the maximum number of building permits allowed during 2007, 2008, and 2009 is 2,250 units. According to the complaint: "This total number of permits is numerically insufficient to accommodate the unmet balance of the City's share of the RHNA during the present planning period, which (according to City documents) was 2,889 as of April 24, 2006. Accordingly, a current and immediate conflict exists between the Growth Management Program and the City's obligations under state law."
Thus, the first cause of action alleges that, as a result of this insufficiency, the City's Housing Cap and Growth Management Ordinance "are inconsistent with the requirements of ... the state Zoning and Planning law ... the Housing Element Law ... the Least Cost Zoning Law and the Density Bonus Law." Similarly, the second cause of action claims that the Housing Cap now "prevent[s] the City from accommodating the unmet portion of its share of the RHNA" and, therefore, is an invalid exercise of the City's police power. The third cause of action argues that this same problem creates a general plan inconsistency.
*1576 (12) These three claims do not challenge a specific action taken by the City. As we have explained, one important feature of each of the subdivisions of section 65009 is that the limitations periods set out in the statute are triggered by specific acts of local land use planning authorities. Thus, section 65009 refers to local land use planning "decision[s]" (§ 65009, subd. (a)(2)), "finding[s]" (§ 65009, subd. (b)), "determination[s]" (ibid.), and "actions taken" (§ 65009, subd. (d)). Because these claims are not brought as to "actions taken" as that phrase is defined in section 65009, subdivision (d), they are not subject to the statute of limitations set out in this section.
Our conclusion is supported by Travis, supra, 33 Cal.4th 757. In that case, our Supreme Court considered a complaint that made two claims. First, the landowner/plaintiffs challenged decisions made by a local land use authority in which conditions were imposed on their permits. Second, the plaintiffs argued that the ordinance under which the conditions were imposed was preempted by a state law that was enacted well after the ordinance was enacted.
With regard to the first claim, the Travis court held that the imposition of conditions on a permit was an adjudicatory decision that fell within the statute of limitations set out in section 65009, subdivision (c). (Travis, supra, 33 Cal.4th 757, 769.) However, the Travis court reached a different conclusion with regard to the second claim concerning the failure to amend an ordinance that had fallen out of compliance with state law. The court held that this claim was not a challenge to a decision to adopt or amend an ordinance. Rather, the challenge was to "the Board's failure to repeal or amend the Ordinance and its continued enforcement despite having been preempted by the Costa-Hawkins Act in 1996." The landowners argued that "[a]pplication of section 65009 to claims of preemption by a later enacted statute is unworkable ... because it would preclude any challenge to an ordinance that was valid when enacted but later preempted by state law." (Travis, supra, 33 Cal.4th at pp. 771-772.) The Travis court agreed, holding that a challenge to an ordinance that is "based on preemption by later enacted state statutes ... is subject to the three-year limit of Code of Civil Procedure section 338 rather than the 90-day limit of Government Code section 65009. Plaintiffs, in claiming the County has breached a duty to bring its zoning code into compliance with later enacted state law, are not complaining of the Ordinance's adoption but of the Board's failure ... to repeal the Ordinance or amend it to conform to state law." (Id. at p. 772.) The Travis court also pointed out that "a challenge to the Ordinance based on its conflict with state laws passed in 1984 and 1995 could not have been brought within 90 days of the Ordinance's 1982 effective date. [Citation.] Section 65009 was intended to require prompt challenges to zoning ordinances, but not to demand the impossible." (Id. at p. 773.)
*1577 (13) In this case, the City argues that Travis applies only to those claims in which an ordinance is preempted by state law after the ordinance is enacted. In making this argument, the City relies on a footnote in Travis, in which the court stated that its holding "applies only to claims of preemption by statutes enacted after the Ordinance's adoption, and not to statutory or constitutional provisions already in force at the time the Ordinance was adopted." (Travis, supra, 33 Cal.4th at p. 772, fn. 9.) In making this argument, the City misconstrues the real point the Travis court is making, which is simply that, when an ordinance conflicts with statutory or constitutional provisions already in effect when the ordinance is passed, then the claim begins to accrue when the ordinance is passed. This observation is entirely consistent with the court's general conclusion on which we rely here: a challenge to a local government's decision based on events that occurred after that decision took place and, therefore could not have been brought during the statutory time limits, is not governed by section 65009.
Other courts have read Travis as standing for this general proposition. For example, in Fontana Redevelopment Agency v. Torres (2007) 153 Cal.App.4th 902, 912 [62 Cal.Rptr.3d 875], the plaintiff challenged the implementation of an amendment to a redevelopment agreement. Citing Travis as authority, the Fontana court pointed out that "even when an illegal act may be immune from facial attack, it can be challenged under new factual circumstances." (Fontana, at p. 913.)
Nor is Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 388 [110 Cal.Rptr.2d 579] (Napa Citizens), helpful to the City. In Napa Citizens, the court interpreted section 65009 as "providing that the decision to adopt a general plan or a specific plan may be attacked no later than 90 days after that decision was made." Napa Citizens does not, however, stand for the proposition that a regulation's initial enactment is the triggering event for any claim related to that regulation. As we have explained, both our reading of the plain language of section 65009 and Travis support the conclusion that the claims brought by Urban Habitat in its first through third causes of action do not fall within section 65009, because they do not attack a specific land use planning "decision" but, rather, relate to events that occurred well after such a decision.
We also reject the City's argument that DeVita v. County of Napa (1995) 9 Cal.4th 763 [38 Cal.Rptr.2d 699, 889 P.2d 1019] (DeVita) compels a different result. As Urban Habitat points out, the DeVita court noted that in a situation in which a land use planning decision becomes invalid after it is adopted, and this invalidity is not corrected, "courts may then be asked to intervene to remedy deficiencies...." (Id. at p. 793.) This statement is entirely consistent with Travis and with our reading of section 65009.
*1578 (14) Thus, because the first through third causes of action in Urban Habitat's complaint allege that, with the passage of time, the City's Housing Cap and Growth Management Ordinance now conflict with the City's obligations under state law to meet Regional Housing Needs Allocations, these claims are not subject to section 65009, subdivision (d).
(15) Instead, these claims are subject to the more generally applicable statute of limitations set out in Code of Civil Procedure section 338, subdivision (a), which applies to "[a]n action upon a liability created by statute, other than a penalty or forfeiture." (See also Travis, supra, 33 Cal.4th at p. 772.) The claims set out in the first through third causes of action in Urban Habitat's complaint are timely under section 338, subdivision (a). As the Travis court explained, that provisionwhich governs an action to enforce a statutory obligation"runs ... from the first time the challenge could [have been] brought...." (Id. at p. 774.) In this case, the complaint alleges that the City could not meet its obligations under the Regional Housing Needs Allocation in April 2006. The complaint was filed in October 2006 and, therefore, was timely under Code of Civil Procedure section 338, subdivision (a).
F. Fourth Cause of Action
The fourth cause of action alleges that the City failed to comply with mandatory duties set out in Program 19.1 of its Housing Element to take steps, by April 15, 2004, to rezone a certain amount of property within the City to accommodate its share of the Regional Housing Needs Allocation.
(16) The fourth cause of action is also subject to Code of Civil Procedure section 338 rather than section 65009. A failure to comply with duties allegedly imposed by law is neither an "action" nor a "decision" and, therefore, does not fall under section 65009. Furthermore, the claim is timely under Code of Civil Procedure section 338, subdivision (a), because it was brought in October 2006, less than three years after the date by which the complaint alleges the City was required to complete rezoning in order to accommodate its share of the Regional Housing Needs Allocation.
G. Fifth Cause of Action
The fifth cause of action alleges that the Housing Element adopted by the City on April 15, 2003, does not comply with California's Housing Element Law. This claim challenges a "decision" of a local authority, namely the adoption of the Housing Element. It is also brought "in support of or to encourage or facilitate the development of [low-income] housing...." (§ 65009, subd. (d)(1).) Therefore, it is subject to section 65009, subdivision (d).
*1579 As we have held, notice of a claim under section 65009, subdivision (d), must be made within 90 days after the challenged decision is made. "A cause of action brought pursuant to this subdivision shall accrue 60 days after notice is filed or the legislative body takes a final action in response to the notice, whichever occurs first." (§ 65009, subd. (d)(2).)
Urban Habitat gave notice on June 20, 2006, to the City that the Housing Element was not in compliance with state law and then filed its complaint on October 17, 2006. Therefore, its claim is untimely and barred by section 65009, subdivision (d).
H. Sixth Cause of Action
The sixth cause of action alleges that the deficiencies in the Housing Element that form the basis of the fifth cause of action also constitute a violation of the Least Cost Zoning Law (§ 65913 et seq.). For the reasons set forth in our discussion of the fifth cause of action, such a claim, which arose when the Housing Element was enacted, is also subject to, and barred by, section 65009, subdivision (d).
I. Seventh and Eighth Causes of Action
The seventh and eighth causes of action set forth claims for unlawful housing discrimination under the California Fair Employment and Housing Act (§ 12900 et seq.). Thus, the seventh cause of action alleges that the City, through its implementation or failure to implement general plan policies and programs, has made housing opportunities unavailable to a member of a protected class "at a significantly higher rate than it does to others." The City's policies have allegedly had a discriminatory effect on "families with children, on female-headed households and on racial and ethnic minorities."
The eighth cause of action alleges that "[t]he City's failure to adopt an adequate Housing Element, to implement its adopted Housing Element programs, and to designate and zone, and allow residential development of, sufficient land with appropriate standards to facilitate development of housing affordable to lower-income households, has the effect of denying housing opportunities and the enjoyment of residence in the city to households in these protected groups to a significantly greater degree than to other households."
Urban Habitat's housing discrimination claims arise not out of decisions by the City in enacting its general plan and Housing Element, but out of events that took place after these enactments, events described in the complaint as occurring in 2006. Therefore, these claims are not subject to the limitations periods set out in section 65009 but, rather, were timely under the Fair *1580 Employment and Housing Act, which provides that such claims must be commenced "not later than two years after the occurrence ... of an alleged discriminatory housing practice." (§ 12989.1.)
J. Ripeness
The trial court also held that the first, second and third causes of action are not ripe. We disagree.
(17) The City argues that, because the complaint does not challenge a specific permit denial, Urban Habitat's claims are not ripe. Ripeness is analyzed under a two-prong test. The first prong requires consideration of the issues' "fitness" for "judicial decision." An issue is fit for judicial decision when it is "`"definite and concrete"'" and "`"admit[s] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."'" (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722 [45 Cal.Rptr.2d 752].) The second prong is one in which we must consider "`the hardship to the parties of withholding court consideration.'" (Id. at p. 1723.)
Both prongs are met here. In Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744 [33 Cal.Rptr.2d 137], a challenge was brought to a growth control ordinance on the ground that it conflicted with a local entity's obligation to meet its share of regional housing needs. The court held that such a claim could be brought so long as "in light of facts relating to the local entity's compliance with its obligation to meet its share of regional housing needs, there was conflict between a numerical growth control ordinance and state law or a general plan." (Id. at p. 763.) Urban Habitat has alleged such a conflict.
Second, the City's alleged failure to meet its affordable housing obligations under state law can be resolved through declaratory and mandamus relief and, at least as alleged in the complaint, the failure to provide affordable housing without question harms the parties and the general public.
The trial court erred, therefore, in finding that the claims were barred under the ripeness doctrine.
K. Standing
The City argues that neither Urban Habitat nor Sandra DeGregorio have standing to challenge the City's housing-related regulations. We disagree.
*1581 (18) As Urban Habitat points out, citing Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 [261 Cal.Rptr. 574, 777 P.2d 610], in a "citizen's action" to enforce a public duty, "it is sufficient that the plaintiff be interested as a citizen in having the laws executed and the public duty enforced." (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1236 [94 Cal.Rptr.2d 740].) So long as the "public duty is sharp and the public need weighty" a citizen has a sufficient interest to confer standing. (Id. at p. 1237.) Without question, the City's duty to enforce the shortage of affordable housing is sharp and the public's need for such housing is "weighty." (See Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1564 [55 Cal.Rptr.2d 465].) Both Urban Habitat and Sandra DeGregorio, therefore, have standing to bring this action.
As for the City's argument that Urban Habitat does not have standing under the California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.) to bring a claim for housing discrimination, FEHA permits an organization to bring suit to enforce the FEHA. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1424 [60 Cal.Rptr.3d 719].) Urban Habitat has alleged facts that establish the City's housing policies "show[] a drain on its resources from both a diversion of its resources and frustration of its mission" which is sufficient to establish that it is an aggrieved party. (Fair Housing of Marin v. Combs (9th Cir. 2002) 285 F.3d 899, 905.) The same is true of the housing discrimination claims brought pursuant to section 65008, which prohibits discrimination by local government against development of housing for low- and moderate-income persons.
L. Mandatory Duty
The City also argues that, although the trial court did not base its dismissal of the complaint on this ground, the fourth, fifth and sixth causes of action should have been dismissed because the City has no mandatory duty enforceable by law to comply with the requirement contained in its Housing Element that it rezone City land to accommodate low-income housing by a stated date. We have found that the fifth and sixth causes of action are time-barred and, therefore, need not decide this issue as to these claims.
With regard to the application of this claim to the fourth cause of action, we also need not reach this issue. The trial court did not rule on it and, in any event, it is not dispositive of this appeal. (Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 427 [29 Cal.Rptr.3d 909].)
*1582 IV. DISPOSITION
The judgment of dismissal is affirmed insofar as it dismisses the fifth and sixth causes of action in the complaint, but reversed with regard to the remaining causes of action of the complaint. Each party is to bear their own costs on appeal.
Kline, P. J., and Richman, J., concurred.
NOTES
[1] All further statutory references are to the Government Code, unless otherwise indicated.
[2] Section 65009, subdivision (d), provides as follows: "An action or proceeding shall be commenced and the legislative body served within one year after the accrual of the cause of action as provided in this subdivision, if the action or proceeding meets both of the following requirements: [¶] (1) It is brought in support of or to encourage or facilitate the development of housing that would increase the community's supply of housing affordable to persons and families with low or moderate incomes, as defined in Section 50079.5 of the Health and Safety Code, or with very low incomes, as defined in Section 50105 of the Health and Safety Code, or middle-income households, as defined in Section 65008 of this code. This subdivision is not intended to require that the action or proceeding be brought in support of or to encourage or facilitate a specific housing development project. [¶] (2) It is brought with respect to actions taken pursuant to Article 10.6 (commencing with Section 65580) of Chapter 3 of this division, pursuant to Section 65589.5, 65863.6, 65915, or 66474.2 or pursuant to Chapter 4.2 (commencing with Section 65913). [¶] A cause of action brought pursuant to this subdivision shall not be maintained until 60 days have expired following notice to the city or clerk of the board of supervisors by the party bringing the cause of action, or his or her representative, specifying the deficiencies of the general plan, specific plan, or zoning ordinance. A cause of action brought pursuant to this subdivision shall accrue 60 days after notice is filed or the legislative body takes a final action in response to the notice, whichever occurs first. A notice or cause of action brought by one party pursuant to this subdivision shall not bar filing of a notice and initiation of a cause of action by any other party."
[3] The land use planning statutes to which section 65009, subdivision (d), applies are as follows: Section 65580 et seq. governs the requirement that a community's general plan contain a housing element. Section 65589.5 requires certain findings by local agencies to support a denial of a proposed low-income housing. Section 65863.6 requires that any local ordinance that "limits the number of housing units which may be constructed on an annual basis shall contain findings as to the public health, safety, and welfare of the city or county to be promoted by the adoption of the ordinance which justify reducing the housing opportunities of the region." Chapter 4.2 contains the "Least Cost Zoning Law" (§ 65913 et seq.), which requires that cities zone sufficient vacant land at densities that can accommodate low-income affordable housing. Finally, section 65915 concerns the award of "density bonus[es]" for the construction of low-income housing and section 66474.2 governs tentative map approval.
|
IN THE INTEREST OF Z.M.
No. 29299.
Intermediate Court of Appeals of Hawaii.
April 29, 2009.
On the briefs:
Herbert Y. Hamada, for Mother-Appellant.
Mary Anne Magnier and Eric J. Alabanza, Deputy Attorneys General, for Department of Human Services-Appellee.
SUMMARY DISPOSITION ORDER
RECKTENWALD, C.J., NAKAMURA and LEONARD, JJ.
Mother-Appellant (Mother) appeals from the July 29, 2008 Orders Concerning Child Protective Act filed in the Family Court of the First Circuit (family court) that awarded Petitioner-Appellee State of Hawaii, Department of Human Services (DHS), foster custody of her son (Child).[1]
Mother's sole point of error on appeal is that the lack of an identified perpetrator of harm to Child precluded the family court from granting foster custody to DHS. Specifically, Mother argues that "[b]ecause the [family] court found no identified perpetrator of harm to [Child] the [family] court could not find that either [Mother] or [F]ather harmed or threatened to harm [Child]."
After a careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Mother's point of error as follows:
The family court did not clearly err in concluding that the Child's "physical or psychological health or welfare has been harmed or is subject to threatened harm by the acts or omissions of Mother and Father under [Hawaii Revised Statutes (HRS)] Section 587-63(b)(1)." See September 10, 2008 Findings of Fact and Conclusions of Law (FsOF/CsOL), COL 6; cf. In re Doe, 95 Hawai`i 183, 190, 20 P.3d 616, 623 (2001) (family court's determinations under HRS § 587-73 (a) present mixed questions of law and fact and are accordingly reviewed on appeal for clear error).
The family court found in its FsOF[2] that Mother and Father were the primary caretakers of Child; that Father[3] brought Child to the emergency room at Pali Momi Medical Center on March 3, 2008 due to fever, congestion and shaking, and Child was taken by ambulance to Kapiolani Medical Center for Women and Children (KMCWC) after suffering seizures at Pali Momi; that "CT and MRI exams indicated damage to the Child's brain"; that x-rays and a skeletal survey conducted on March 12 and 13, 2008 revealed that Child had four fractured left ribs, a fractured right rib and a fracture of the right clavicle;[4] that the right rib injury appeared to have occurred at a different time from the other fractures, although "[t]he majority of these rib fractures... occurred 10 to 14 days before the skeletal survey on March 13, 2008, i.e., on or about March 3, 2008"; and that the fractures and brain damage "would require a forceful event to have occurred; these were non-accidental injuries."
Mother and Father testified that Child was with a babysitter on March 3, 2008, but both Mother and Father testified that they did not believe that the babysitter had caused the injuries. Rather, they testified that they believed the injuries had been caused by hospital staff, and Mother also suggested that the clavicle could have been broken during childbirth. However, Dr. Lillian Fujimoto, Child's primary care physician, was called by Mother as a witness and testified that she did not believe that Child's fractures occurred following his hospitalization, and that she did not believe the clavicle had been broken during birth.
The family court found that although "[t]here is no identified perpetrator to the Child's serious, life-threatening injuries," neither Mother nor Father had been ruled out as either perpetrators of the harm or perpetrators as not being protective. It further found that "[t]here has been no adequate explanation by Mother or Father" for how Child suffered the injuries, and that the testimony of Mother and Father was not credible.
The family court also found that Father had a history of assaultive behavior, including convictions for Abuse of a Family Member and Assault. It also found that Mother had a history of mental health problems including Intermittent Explosive Disorder, a Probable Bipolar II Disorder, and a Personality Disorder Not Otherwise Specified with antisocial features. The court further found Mother had come to the attention of CPS in March, 2004, when Child's half-sibling was threatened by Mother and half-sibling's father. Custody of half sibling was subsequently awarded to the half-sibling's father in 2007 after Mother hit a maternal uncle with a metal battalion and kicked and punched maternal grandfather, and then failed to continue with parenting classes and was not compliant with recommendations for a psychological evaluation.
Thus, the family court concluded that "[g]iven Mother's mental health condition and lack of psychological and psychiatric intervention, history of poor parenting skills, history of confirmed Child maltreatment with the half-sibling without following through with services, and not having been ruled out as the perpetrator of Child's harm, she is unable to adequately care for the Child."
The family court did not err in reaching that conclusion. Depending on the circumstances of the alleged abuse, the family court can take action to protect a child even if the identity of the perpetrator has not been determined. See In re Jeffrey R.L., 435 S.E.2d 162, 173 (W.Va. 1993) (terminating parental rights when infant child was severely injured while in custody of parents and identity of perpetrator could not be determined); In re Christina T., 184 Cal. App. 3d 630, 640 (1986) (reversing trial court's dismissal of dependency petition when child had been subject to sexual abuse, although the identity of the perpetrator had not been determined).
The circumstances of Child's injuries and the implausibility of Mother's and Father's explanation for them, together with Mother's mental health issues, prior threatening conduct toward Child's half-sibling and lack of compliance with services in that prior case, and Father's history of assaultive behavior, all support the inference that Child's physical and psychological welfare had been harmed or was subjected to threatened harm by the acts or omissions of Child's family. HRS § 587-63(b)(1). The identity of the perpetrator is one of a number of factors which the family court must consider under the safe family home guidelines, id.; HRS § 587-25, and we cannot say that the family court clearly erred in its consideration of those factors at this stage of the proceeding.
Accordingly, the July 29, 2008 Orders Concerning Child Protective Act entered in the Family Court of the First Circuit are hereby affirmed.
NOTES
[1] The Honorable Jennifer L. Ching presided.
[2] Mother does not challenge any of the family court's FsOF, and accordingly, they are binding for purposes of this appeal. Poe v. Hawaii Labor Relations Bd., 97 Hawai`i 528, 536, 40 P.3d 930, 938 (2002).
[3] Although the court found that Child was taken to the hospital by Father, Mother and Father testified that they both took Child to the hospital.
[4] Father testified that Child was hospitalized at KMCWC after being transferred there on March 3 through the taking of the x-rays on or about March 13.
|
926 A.2d 1287 (2007)
Margarita I. DAVILA, Petitioner
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs May 25, 2007.
Decided June 26, 2007.
Margarita I. Davila, petitioner, pro se.
Randall S. Brandes, Asst. Counsel and Gerard M. Mackarevich, Deputy Chief Counsel, Harrisburg, for respondent.
BEFORE: McGINLEY, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.
*1288 OPINION BY Judge McGINLEY.
Margarita I. Davila (Claimant), pro se, petitions for review from the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Section 402(b) of the Unemployment Compensation Law (Law).[1]
The relevant facts as found by the Board are as follows:
1. The claimant was last employed as a social work supervisor by the City of Philadelphia from February 8, 1988, at a final rate of $59,889 and her last day of work was April 14, 2006.
2. The employer has a program called the DROP program, which employees who are of retirement age may choose to participate in.
3. The employee must file an application and if approved must retire within four years of the application date.
4. During this time period neither the employer nor the employee contribute to the employer's pension, and the employee's pension amount no longer increases.
5. Monthly pension credits, in the amount of the pension payment the employee would be entitled to, are made to a special account for the employee.
6. When the claimant retires she is entitled to a lump sum payment of the amount credited to the special account.
7. The claimant applied for and was accepted into the DROP program.
8. Continuing work was available to the claimant had she not retired.
9. The claimant retired effective April 14, 2006, pursuant to the terms of the DROP program.
Board Decision, January 8, 2007, Findings of Fact Nos. 1-9 at 1-2; Reproduced Record (R.R.) at 2a-3a.
The Board determined that Claimant did not have a necessitous and compelling reason to quit her job:
The claimant retired pursuant to the employer's DROP program which she voluntarily participated in. The claimant has not provided the Board with her reason for entering the program, which required her to retire within four years. The Referee did inquire about the reason, but the claimant did not wish to present testimony on this issue. The claimant alleges that she had a cause of a necessitous and compelling nature to quit because she was required to under the DROP program. The Board finds this argument to be without merit.
The claimant chose to enter the program, which she knew required her to retire. The claimant has not presented any testimony or evidence to establish that she had a reason to enter into this agreement that the Board can consider good cause for her to do so. Section 3, which has been called the Keystone of the Pennsylvania Unemployment Compensation Law, states that the purpose of the Law is to protect individuals who are unemployed through no fault of their own. A review of the DROP program, which was submitted into evidence, shows that the claimant received a financial gain by entering the program. The record does not indicate that the claimant was in imminent danger of being laid off at the time she entered the program or at the time of her separation. Therefore, the Board also concludes that the claimant is not unemployed through no fault of her own. Accordingly, the Board must conclude that the claimant did not have cause of a necessitous and compelling nature to voluntarily leave *1289 her employment and is ineligible for benefits under Section 402(b) of the Law.
The claimant referred to the DROP program at the Referee's hearing as an established employer program. While it was an established program the claimant was not laid off. Therefore, the proviso to Section 402(b) of the Law for employees who accept a layoff pursuant to an established employer program does not apply.
Opinion at 3; R.R. at 4a.[2]
Claimant contends that her participation in the DROP [Deferred Retirement Option Plan] provided cause of a necessitous and compelling nature for her to leave her employment and that she became unemployed through no fault of her own.[3]
An employee who voluntarily terminates employment shoulders the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling[4] reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 59 Pa. Cmwlth. 500, 429 A.2d 1282 (1981). Where an employee resigns, leaves, or quits without action by the employer, the action amounts to a voluntary termination. Sweigart v. Unemployment Compensation Board of Review, 47 Pa.Cmwlth. 421, 408 A.2d 561 (1979).
Claimant asserts that she had a necessitous and compelling reason for terminating because she was legally obligated under the DROP to resign within four years of entering the program. Because the City of Philadelphia (Employer) instituted the program, Claimant asserts that she may not be disqualified from receiving unemployment compensation benefits. Further, Claimant asserts that Employer did not state in the Philadelphia City Code or Home Rule Charter that a participant in DROP was ineligible to receive unemployment compensation benefits. At the hearing before the referee, Claimant stated, "[t]he reason why I joined that program are not an issue here." Notes of Testimony, October 30, 2006, at 9; R.R. at 14a.
In order to prove that a claimant had a necessitous and compelling reason for quitting employment, a claimant must establish that circumstances existed which produced real and substantial pressure to terminate employment, that like circumstances would force a reasonable person to quit, that the claimant acted with ordinary common sense, and that the claimant made a reasonable effort to preserve employment. The Western and Southern Life Insurance Company v. Unemployment Compensation Board of Review, 913 A.2d 331 (Pa.Cmwlth.2006).
Here, this Court agrees with the Board that Claimant failed to shoulder her burden. Claimant's sole reason for retiring *1290 was because she applied for and was accepted into the DROP program and the program required her to retire within four years of her application date. Claimant has not established that she was in danger of losing her job had she not entered the DROP. In fact, the Board credited the testimony of Douglas Abbott, Administrative Trainee I for Employer, that Claimant had continuing work available. Even if Employer attempted to induce employees to leave employment through the DROP, that inducement without additional circumstances, such as a lack of continuing work, either at the time of the inducement or at a certain point in the future, would not provide a necessitous and compelling reason for terminating employment. See Staub v. Unemployment Compensation Board of Review, 673 A.2d 434 (Pa. Cmwlth.1996).[5]
Accordingly, this Court affirms.
ORDER
AND NOW, this 26th day of June, 2007, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
NOTES
[1] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
[2] The Board also determined that Claimant could appeal the Service Center's determination nunc pro tunc. That issue is not before this Court.
[3] This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 161 Pa.Cmwlth. 464, 637 A.2d 695 (1994).
[4] Good cause for voluntarily leaving one's employment results from circumstances which produce pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa.Cmwlth.1995).
[5] Claimant makes reference to her right to equal protection. However, she failed to raise this argument in her Statement of Questions Involved and did not develop the argument or cite any pertinent case law in her brief. This issue is waived. See Commonwealth v. Unger, 494 Pa. 592, 595 n. 1, 432 A.2d 146, 147 n. 1 (1980); See also Ruiz v. Unemployment Compensation Board of Review, 911 A.2d 600, 605 n. 5 (Pa.Cmwlth. 2006).
|
99 F.3d 402
O'Connellv.U.S.
NO. 95-2236
United States Court of Appeals,
Second Circuit.
Dec 26, 1995
Appeal From: N.D.N.Y.94-cv-852
1
AFFIRMED.
|
32 A.3d 503 (2011)
202 Md. App. 386
Kenneth THOMAS
v.
STATE of Maryland.
No. 2062, Sept. Term, 2010.
Court of Special Appeals of Maryland.
December 2, 2011.
*504 Ben Miller (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.
James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
EYLER, DEBORAH S., KEHOE, and IRMA S. RAKER (Retired, specially assigned), JJ.
IRMA S. RAKER (Retired, specially assigned), J.
Kenneth Thomas, appellant, presents a single question for our review: Did the Circuit Court for Montgomery County err by admitting a witness's prior consistent statements into evidence? We shall hold that the testimony in question was admissible pursuant to Maryland Rule 5-802.1, which sets out exceptions to the hearsay rule. Accordingly, we shall affirm.
I.
Appellant was indicted by the Grand Jury for Montgomery County with one count of distribution of a controlled dangerous substance ("CDS"). He was convicted by a jury in the Circuit Court for Montgomery County, and the court sentenced him to a term of incarceration of five years, with all but eighteen months suspended, and three years of supervised probation.
On December 9, 2009, Richard Benjamin contacted appellant to buy crack cocaine from him. Appellant told Benjamin to meet him at the Blockbuster Video store located in the Nealsville Shopping Center in Germantown, Maryland. Benjamin arrived between 7 p.m. and 8 p.m. that evening; appellant arrived about thirty minutes later, driving a gold Saturn. Benjamin got out of his car, got into the front passenger side of appellant's car, and paid him $50 consisting of two $20 bills and one $10 bill, in exchange for a rock of crack cocaine. With the transaction concluded, both men left the parking lot in their own cars.
Unbeknownst to them, however, Officer Peter Johnson of the Montgomery County Police Department ("MCPD") observed their interaction, though he did not see an exchange because his view was partially obscured by the dashboard of appellant's car. Believing he had witnessed a drug purchase, Officer Johnson radioed other MCPD officers to intercept both men. Two officers, including Jeffrey Rea, stopped Benjamin and began to question him. Officer Johnson arrived on the scene shortly thereafter. Benjamin consented to a search, and the officers discovered a .53 gram rock of crack cocaine in one of his shoes, whereupon he was placed under arrest and charged with possession. Benjamin told the police that he had just purchased the drugs near the local Blockbuster for $50 from a man he knew as "Kenny," who drove a gold Saturn; in court, Benjamin identified appellant as that man.
While the police questioned and searched Benjamin, other police officers stopped appellant shortly after he left the shopping center parking lot. They found $275 in appellant's possession, including $50 consisting of two $20 bills and one $10 bill, discovered separately from the other money in his left jacket pocket. The police, however, did not find any drugs in appellant's car or on his person.
Benjamin was the first witness called by the State at trial. The State questioned him about his drug charge arising out of *505 the events of the instant case as well as an unrelated unauthorized use of a motor vehicle charge that arose after this drug case. Benjamin stated that he had received probation before judgment ("PBJ") in connection with his drug charge. He testified that within the prior two weeks he had been charged with unauthorized use of a motor vehicle, stemming from an incident in which he borrowed a truck from a friend of his girlfriend. Appellant's counsel, on cross-examination, asked the following:
"Q: Mr. Benjamin
A: Uh-huh.
Q: in terms of the vehicle being returned, didn't in fact the police take the vehicle?
A: They came to the house. I, when Iwhat happened was I was using
Q: Well
A: it for the day because
Q: Okay.
A: Do you want me to finish or
Q: No, I ask the questions. I want you to answer my questions.
A: Okay.
Q: okay? Did you return the vehicle to them, or did the police get the vehicle from you or tell you not to use the vehicle anymore?
A: Actually, yeah, actually, the police came to the door, and then, Yvonne came and picked it up
Q: Okay.
A: Yvonne and Jerry.
Q: So you didn't actually take it back to her?
A: No, no.
Q: And you didn't call her and tell, tell her that you still had the vehicle?
A: No.
Q: Okay. And, in fact, she spent the better part of that day, prior to calling the police or reporting to the police that the vehicle wasn't returned, she spent the better part of that day trying to get in touch with you ... to find out where the vehicle was."
The cross examination of Benjamin continued, and it became clear that he had kept the vehicle for longer and for purposes other than it had been loaned, and that the car's owner reported it as stolen. Defense counsel continued:
"Q: Were you informed that you had charges against you or potential charges for unauthorized use of a vehicle or failure to return a vehicle?
A: That evening they said I could be charged with something.
Q: Okay. And prior to today's date, you've met with [the prosecutor], correct?
A: I never met with her until this morning.
Q: Did you speak to her?
A: I spoke to her on the phone once to let me know that I was supposed to be here.
Q: Okay. And was that within the last week?
A: That was Friday
....
Q: Okay. And this past Friday, when you spoke to [the prosecutor] on the phone, you in fact told [her] that you have this matter pending?
A: I told her that there was, there was a situation that happened that could, there could have been something thatjust to let her know in case that was a bearing on this case.
Q: And you were hoping that [the prosecutor] might be able to help you out on that?
*506 A: I mean, I knew it wasn't going to go anyhow because it wasn'tit was just a big misunderstanding
Q: Okay.
A:and that's exactly what in fact it turned out to be.
Q: But, in fact, you told [the prosecutor] about it prior to your coming here today?
A: I thought I should tell her about it.
Q: That's a yes or a no.
A: That would be a yes.
Q: Okay. And let's talk about thewhen you went to court back in January
A: Uh-huh.
Q:you had indicated that you got probation, a fine, and some community service.
....
Q: Okay. Did you go to jail or not?
A: I did not.
Q: Okay. And this PBJ that you're talking about
A: Uh-huh.
Q:what in effect that is, is that this not going to be on your record at all, correct?
A: I believe so.
Q: Okay. And [the prosecutor], in fact, was the State's attorney who handled that case back in January when you went with the guilty plea?
A: That's true."
Defense counsel again had Benjamin confirm that he spoke to the prosecutor the previous Friday and that he had spoken to the officers who had arrested him about this case. At the end of the cross-examination, defense counsel accused Benjamin of being the seller, not the buyer, of the crack cocaine; Benjamin flatly denied this.
Officer Johnson testified after Benjamin. The State asked the officer about his questioning of Benjamin: and the following colloquy ensued:
"Q: Okay. And at that point in time, was Mr. Benjamin placed under arrest?
A: No. WeI wanted to speak with him further.
Q: Okay. And did you have an opportunity to speak with him?
A: I did. I asked Mr. Benjamin, `Okay'
[DEFENSE COUNSEL]: Your Honor, I'm going to object to the hearsay nature of any responses to his questions.
[PROSECUTOR]: Your Honor
THE COURT: Overruled.
[PROSECUTOR]:may we approach? Oh.
Q: What did Mr. Benjamin say?
A: I asked Mr. Benjamin, I told him, I was like, `Look, we know more than you think, this is not just a traffic stop, where did you get this, where did you get this crack cocaine?' and he said, `I bought it from a guy named Kenny'
[DEFENSE COUNSEL]: I object again, Your Honor.
THE COURT: Overruled
WITNESS:`I, I got it from a guy named Kenny at the Blockbuster, who drives a gold Saturn.'"
Officer Rea testified as well. Again, over defense counsel's objections, the State elicited from the officer that Benjamin stated he had purchased the crack cocaine "from a black guy at a nearby shopping center"; "a man he knew as Kenny that was in a gold Saturn at Blockbuster"; and "that [Benjamin] paid for the crack cocaine with $50," consisting of two $20 bills and one $10 bill.
Appellant did not call any witnesses. At the close of the trial, defense counsel devoted *507 virtually her entire argument to attacking Benjamin's credibility. She pointed out to the jury that Benjamin received no jail time for his possession charge and that he had spoken to the prosecutor about his pending unauthorized use of a vehicle charge. She offered the defense's theory that Benjamin was the seller and that appellant went to the shopping center to purchase $50 of crack cocaine but changed his mind at the last moment.
The jury found appellant guilty, the court imposed sentence, and this timely appeal followed.
II.
Before this Court, appellant argues that the prior consistent statements of Benjamin, offered through the officers' testimony, were inadmissible hearsay evidence, which in his view do not fall within any exception to the rule against hearsay. Although appellant acknowledges that Md. Rule 5-802.1(b) might permit the statements to be admitted, he asserts that Benjamin's motive to fabricate testimony arose as soon as the police stopped him and found crack cocaine in his possession. Since this motive arose before all of the statements in question occurred, appellant continues, the statements are not admissible under the Rule.
The State asserts that these statements were admissible under Rule 5-802.1(b) to rebut the inference, raised by appellant in cross-examination of Benjamin and in closing argument, that Benjamin testified falsely in the hope that he would receive consideration from the State in its prosecution of him for unauthorized use of a motor vehicle. As Benjamin was charged with this crime after he made the statements repeated by the officers, according to the State, his alleged motivation to inculpate appellant falsely could only have arisen after these statements, and, thus, the statements were admissible under Rule 5-802.1(b).
III.
Admissibility of prior consistent statements in Maryland is controlled by Maryland Rules of Evidence 5-802.1 and 5-616. Rule 5-802.1, based on Federal Rule of Evidence 801, addresses prior statements by witnesses and sets out exceptions to the hearsay rule. The Rule provides, in pertinent part, as follows:
"The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:
(b) A statement that is consistent with the declarant's testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.]"
Md. Rule 5-802.1(b). Prior consistent statements admitted into evidence under Rule 5-802.1(b) may be admissible as substantive evidence.
Rule 5-616(c)(2), Impeachment and Rehabilitation, provides for the admission of prior consistent statements to rehabilitate a witness, providing in pertinent part, as follows:
"(c) A witness whose credibility has been attacked may be rehabilitated by:
(2) Except as provided by statute, evidence of the witness's prior statements that are consistent with the witness's present testimony, when their having been made detracts from the impeachment[.]"
Prior consistent statements admitted into evidence under Rule 5-616(c) are not admissible as substantive evidence but instead *508 are admitted to rehabilitate the witness's credibility. Prior consistent statements are offered often for one of three purposes: to rehabilitate a witness who has been impeached, to corroborate evidence, or as substantive evidence. The general rule in most jurisdictions is that prior consistent statements are not admissible in evidence, with certain exceptions, because when offered merely as corroborative evidence, they are excluded on relevancy grounds and also on the need to avoid unnecessary repetition of cumulative evidence, as well as the need to prevent fabrication of evidence. If statements are offered for the truth of the matter asserted in the statements, i.e., for substantive purposes, then the statements are hearsay and are inadmissible ordinarily unless they fit within an exception to the hearsay rule. However, when they are offered to corroborate in-court testimony and to rehabilitate a witness who has been impeached, prior consistent statements are not hearsay and may be admissible.
Although the text of Rule 5-802.1(b) does not condition the admissibility of a prior consistent statement on its having been made before an alleged motive to fabricate arises, the Court of Appeals in Holmes v. State, 350 Md. 412, 712 A.2d 554 (1998), held that the Rule does include this temporal element. At common law, the premotive requirement for admitting prior consistent statements was based upon the rationale that such statements have no relevancy to refute a charge of bias or motive to testify falsely unless the statements were made before the bias or motive arose. Id. at 417, 712 A.2d 554. In Tome v. United States, 513 U.S. 150, 152, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), the United States Supreme Court held that Federal Rule of Evidence 801(d)(1)(B) incorporated the common-law temporal element, even though the federal rule's languageallowing admission of a prior consistent statement "to rebut a charge of a recent fabrication or improper influence or motive" did not so require. The Court of Appeals found evidence in the commentary of the Maryland Rules Committee suggesting that Rule 5-802.1(b), which was based on Federal Rule 801(d)(1)(B), meant to incorporate the longstanding temporal condition, and held that "in order to be admissible under Md. Rule 5-802.1(b), a prior consistent statement must have been made before the alleged fabrication or improper influence or motive arose." Holmes, 350 Md. at 424, 712 A.2d 554.
In the instant case, there is no dispute that the statements that the State elicited were prior consistent statements. Appellant objected to the evidence, without stating a foundation for the objection,[1] and the trial court did not ask the State the basis for the admissibility of the statements. The court overruled the objection, without discussion, and admitted the evidence. We have little doubt that the court understood that the prior consistent statement exception applied. In Ball v. State, 347 Md. 156, 206, 699 A.2d 1170 (1997), the Court of Appeals, addressing the trial court's use of victim impact evidence, noted as follows:
"Trial judges are presumed to know the law and to apply it properly. Regardless of the prosecution's representation of the purpose of victim impact evidence, therefore, the court is presumed to have made proper use of the victim impact evidence."
*509 Benjamin's statements, offered in evidence through the police officers, that Benjamin bought the drugs from appellant, was admissible under Rule 5-802.1(b). They were statements made by a witness subject to cross-examination, consistent with the witness's in-court testimony, offered to rebut express or implied charges of fabrication, improper influence or motive.
The wrinkle in this case, and the heart of appellant's argument on appeal, is that the witness allegedly had a motive to fabricate at the time he made the statements in question.[2] Appellant's argument here is that Benjamin would have had the motive to lie to police as soon as police discovered cocaine on his person, in order to avoid the stiffer penalties for distribution of a CDS as opposed to simple possession of a CDS. Compare Md.Code (2002, 2011 Cum. Supp.), § 5-601(c)(1) of the Criminal Law Article (maximum term of incarceration for four years for possession of a CDS), with id. § 5-608(a) (maximum term of incarceration for twenty years for distribution or possession with intent to distribute cocaine base). The State focuses its argument on the fact that, at trial, defense counsel questioned Benjamin about his charge of unauthorized use of a motor vehicle and implied, during cross-examination and again in closing argument, that Benjamin was receiving a benefit from the State on that charge in exchange for his favorable testimony against appellant.
The question then arises: What is the outcome under Rule 5-802.1(b) if a witness's statement is admissible under the Rule because he did not have a motive to fabricate under one scenario, but he did have a motive to fabricate under a second scenario? We hold that a witness's prior consistent statement is admissible if made prior to the existence of any one of multiple biases or motives that an opposing party charges, expressly or impliedly, might have influenced the witness's testimony.
In People v. Hayes, 52 Cal.3d 577, 276 Cal.Rptr. 874, 802 P.2d 376 (1990), the Supreme Court of California considered a situation similar to the one presented in this case. In Hayes, the defendant impeached a prosecution witness with the fact that he had criminal charges pending against him, and implied that the witness was testifying in a manner favorable to the prosecution to obtain a lenient disposition on those charges. Id., 276 Cal.Rptr. 874, 802 P.2d at 394. The prosecution sought to introduce the witness's prior consistent statement, arguing that the criminal charges had not been brought at the time the witness made the statement. Id. The defendant responded that the witness still had a motive to lie when he made the prior consistent statement because he was on probation and was a suspect in the investigation of the crimes for which the defendant was on trial. Id., 276 Cal.Rptr. 874, 802 P.2d at 395. The trial court admitted the prior consistent statement, and on appeal, the California Supreme Court affirmed.
California's statute governing the admission of prior consistent statements provides in relevant part as follows:
"Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:
(b) An express or implied charge has been made that his testimony at the *510 hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Cal. Evid.Code § 791(b) (West 2011). Based upon this language, the court held that a prior consistent statement, otherwise meeting the statutory requirements, "is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party's express or implied charge, may have influenced the witness's testimony." Hayes, 276 Cal.Rptr. 874, 802 P.2d at 395; see also State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1217 (1983); Debra T. Landis, Annotation, Admissibility of Impeached Witness' Prior Consistent StatementModern State Criminal Cases, 58 A.L.R.4th 1014, § 2a (2011). The Maryland Rule and the California Code are worded similarly. Neither rule requires that a prior consistent statement precede all alleged motives to fabricate.
Benjamin's prior consistent statements were admissible also under Rule 5-616(c) as rehabilitative evidence. The Court of Appeals in Holmes held that, although the statement in that case was not admissible under Rule 5-802.1(b) because it was not offered to rebut a motive to fabricate testimony, it was admissible under Rule 5-616(c), which does not have a temporal requirement, because the statement rehabilitated the witness's credibility and lent credence to his in-court testimony. See 350 Md. at 427-30, 712 A.2d 554. The Court explained as follows:
"Under Md. Rule 5-616(c)(2), a prior consistent statement is admissible to rehabilitate a witness as long as the fact that the witness has made a consistent statement detracts from the impeachment. Prior consistent statements used for rehabilitation of a witness whose credibility is attacked are relevant not for their truth since they are repetition of the witness's under which they are made rebut an attack on the witness's credibility. Thus, such statements by definition are not offered as hearsay and logically do not have to meet the same requirements as hearsay statements falling within an exception to the hearsay rule, e.g., Md. Rule 5-802.1(b). We therefore conclude that a relevant consistent statement admitted solely for the purpose of rehabilitation is not required to meet the stringent premotive requirement of Md. Rule 5-802.1(b)."
Id. at 427, 712 A.2d 554 (emphasis added).
At a minimum, if appellant wished to limit the use of the prior consistent statements to rehabilitative purposes rather than as substantive evidence, appellant needed to raise the issue with the court and request a limiting instruction. He did not do so. In McCray v. State, 122 Md. App. 598, 609, 716 A.2d 302 (1998), Judge Sonner, writing for this Court, discussed the obligations placed upon the defendant when prior consistent statements are offered into evidence:
"Because Holmes does not require the State to articulate whether it is seeking to admit the prior consistent statement for substantive or rehabilitative purposes, it places two burdens on the defendant. First, it is incumbent on the defendant to inquire about the basis upon which the State intends to introduce the prior consistent statement. Second, the defendant must request a jury instruction limiting the use of the prior consistent statement for rehabilitative purposes only."
In the case at bar, the State sought to introduce statements of Benjamin that were prior consistent statements. The evidence was admissible as an exception to *511 the hearsay rule and alternatively as rehabilitative evidence. The trial judge did not abuse his discretion in admitting the statements.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
NOTES
[1] "The State is not required to assert the purpose for which it is seeking admission of a prior consistent statement unless asked by the court." Holmes v. State, 350 Md. 412, 429, 712 A.2d 554 (1998).
[2] Although defense counsel argued to the jury that Benjamin was the seller and appellant was the buyer, who decided not to go through with the purchase at the last minute, she did not make the argument to the judge that the evidence should not be admitted on that basis; additionally, there was no evidence offered to support this theory at trial.
|
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 24,2003
The Honorable James L. Keffer Opinion No. GA-O 107
Chair, Committee on Economic Development
Texas House of Representatives Re: Whether Long Island, a spoil island directly
P.O. Box 2910 south of the City of Port Isabel, is within that
Austin, Texas 78768-2910 city’s extraterritorial jurisdiction (RQ-006 1-GA)
Dear Representative Keffer:
You ask whether Long Island, a spoil island directly south of the City of Port Isabel, Texas,
is within that city’s extraterritorial jurisdiction.
Your request is a response to a disagreement between the City of Port Isabel (the “City”) and
the Village of Long Island (the “Village”), an unincorporated area located on the spoil island called
Long Island. In 2002, officials of the Village filed with the county judge of Cameron County an
application to incorporate. The City opposes the incorporation on the ground that the Village is
within the City’s extraterritorial jurisdiction.
Section 42.021 ofthe Local Government Code provides that “[tlhe extraterritorial jurisdiction
of a municipality is the unincorporated area that is contiguous to the corporate boundaries of the
municipality and that is located: . . . within one-half mile of those boundaries, in the case of a
municipality with fewer than 5,000 inhabitants.” TEX. Lot. GOV’T CODE ANN. 9 42.021(l)
(Vernon 1999). According to the 2000 census, the City has a population of 4,865. See BUREAU
OF THE CENSUS, U.S. DEP’T OF COMMERCE, 2000 CENSUS OF POPULATION: General Population
Characteristics (population of Port Isabel: 4,865)’ available at http://www.census.gov/ (last visited
Sept. 18’2003). You indicate that the “Village is one-half mile of the southern city limits of Port
Isabel and, therefore, . . . is considered within Port Isabel’s ETJ [extraterritorial jurisdiction] .“l
Section 42.041(a) of the Local Government Code states that “[a] municipality may not be
incorporated in the extraterritorial jurisdiction of an existing municipality unless the governing body
of the existing municipality gives its written consent by ordinance or resolution.” TEX. LOC. GOV’T
CODE ANN. 9 42.041(a) (Vernon 1999). The City has not given its consent to the Village’s
incorporation.
‘Letter from Honorable James L. Keffer, Chair, House Committee on Economic Development, to Honorable
Greg Abbott, Texas Attorney General (May 21,2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable James L. Keffer - Page 2 (GA-0107)
On the other hand, section 43.902 of the Local Government Code provides, in relevant part:
(a) Land on an island bordering the Gulf of Mexico that is not
accessible by a public road or common carrier ferry facility may not
be annexed by a municipality without the consent of the owners of the
land.
(b) The extraterritorial jurisdiction of a municipality does not
include land on the island unless the owners of the land consent.
Id. 8 43.902(a)-(b). You state that “[tlhe residents of Long Island Village are claiming in part that
Long Island is ‘an island bordering on the Gulf of Mexico,’ and, therefore, they assert the area they
wish to incorporate would qualify under this aspect of the exception created by [section] 43.902 [of
the] Local Government Code.” Request letter, supra note 1, at 2. Thus, the question before us is
whether Long Island, on which the Village is located, is “an island bordering the Gulf of Mexico.”
See TEX. Lot. GOV’T CODE ANN. 8 43.902(a) (Vernon 1999).
An official map prepared by the Texas General Land Office is attached as an appendix to this
opinion. This map also indicates that “Long Island” is located in the body of water designated as the
“Laguna Madre.” The Texas Supreme Court has held that courts may take judicial notice of the
“general physiographic features” of a county. Int ‘I-Great N. R. R. Co. v. Reagan, 49 S .W.2d 4 14’4 16
(Tex. 1932). In that case, the court “concluded that the map of Robertson county, made by the land
office of the state of Texas, and the United States geological survey maps, may bring before us those
facts which we judicially know.” Id. Moreover, the Texas Supreme Court has observed that “[flacts
about well known and easily ascertainable geographical facts concerning counties are frequently
judicially noticed,” citing, as one example among many, that “[i]t was judicially known that
Matagorda County is bounded by the Gulf of Mexico, Giddings v. Day, 84 Tex. 605, 19 S.W. 682
(1892).” Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154, 158 (Tex. 1967). We must
therefore determine whether the “Laguna Madre” is a part of the “Gulf of Mexico.” If so, then Long
Island is, under the terms of section 43.902 of the Local Government Code, “an island bordering the
Gulf of Mexico.” TEX. Lot. GOV’T CODE ANN. 5 43.902(a) (Vernon 1999).
We note initially that section 11 .013(a) of the Natural Resources Code declares that “[tlhe
gulfward boundary of each county located on the coastline of the Gulf of Mexico is the Three Marine
League line as determined by the United States Supreme Court.” TEX. NAT. RES. CODE ANN. 0
11.013(a) (Vernon 2001). “The term ‘coastline’ as used in this subsection means the line of mean
low tide along that portion of the coast which is in direct contact with the open Gulf ofMexico.” Id.
5 ll.O13(b)( em ph asis added); accord 42 U.S.C. 5 1301(c) (2000) (“the term ‘coast line’ means the
line of ordinary low water along that portion of the coast which is in direct contact with the open sea
and the line marking the seaward limit of inland waters”). Cameron County is “a county located on
the coastline,” and the entire southern portion of Cameron County includes Padre Island. See THE
DALLAS MORNING NEWS, 2000-2001 TEXAS ALMANAC 148 (Mary G. Ramos ed., 1999).
The Honorable James L. Keffer - Page 3 (GA-0107)
A number of Texas cases have distinguished the body of water known as Laguna Madre from
the Gulf of Mexico. In Kenedy Memorial Foundation v. Dewhurst, 90 S.W.3d 268 (Tex. 2002)' the
Texas Supreme Court declared:
The Laguna Madre, translated “Mother Lagoon,” whose waters
were prescribed by Spain and Mexico to mark the disputed boundary,
is a narrow estuary on the west side of Padre Island extending some
130 miles from Corpus Christi to Port Isabel. The Laguna Madre is
open to the Gulf of Mexico at both ends but sheltered from the Gulf
along its length by Padre Island. In many areas, including adjacent
the Foundation’s property, it is slightly above sea level. The presence
and depth of water in most of the Laguna Madre is governed not by
astronomic tidal forces from which it is insulated, like those exerted
by the moon and sun, but by meteorological forces to which it
remains open, like the wind and barometric air pressure. In much of
the Laguna Madre, including the area in dispute, variations in water
levels due to daily tidal forces are minuscule, masked almost entirely
by variations caused by atmospheric forces. The water does not
advance and subside daily, as one thinks of a shore facing the open
sea. The wind can actually blow water uphill so that it is sometimes
deeper at higher elevations than at lower ones. At places, the Laguna
Madre is constantly inundated with seawater several feet deep, deep
enough for waves and boats.
Id. at 27 1. The court in Kenedy Memorial Foundation thus cites numerous distinctions between the
Laguna Madre and the Gulf of Mexico, including the fact that the Laguna Madre is a “narrow
estuary,” and the fact that “[tlhe Laguna Madre is open to the Gulf of Mexico at both ends, but
sheltered from [it] along its length by Padre Island.” Id.
Other Texas cases support this view. In Butler v. Sadler, 399 S.W.2d 411 (Tex. Civ.
App.-Corpus Christi 1966, writ ref d n.r.e.), the court said:
The Laguna Madre is a continuous body of water running from
Corpus Christi Bay on the north to the Brazos-Santiago Pass on the
south and connects with the Gulf of Mexico at both ends. On the east
side of the Laguna Madre is a long strip of land called Padre Island
which runs almost the entire length of the coast between Corpus
Christi and Brownsville. The island separates the Gulf of Mexico on
the east and the Laguna Madre on the west.
Id. at 413 (emphasis added). Likewise, in Luttes v. State, 324 S.W.2d 167 (Tex. 1958)’ the Texas
Supreme Court described the Laguna Madre as a “long, narrow lagoon.” It “lies between the
mainland on the west and, on the east, the long, narrow, sandy island called Padre, the eastwardly
side of which latter is the shore of the Gulf of Mexico.” Id. at 168.
The Honorable James L. Keffer - Page 4 (GA-0107)
Although the Laguna Madre has been described as “an arm of the Gulf of Mexico,” it is
clearly different from, and not a part of, the body of water known as the Gulf of Mexico. See
Humble Oil &Refining Co. v. Sun Oil Co., 191 F.2d 705, 716 (5th Cir. 1951); City of Weslaco v.
Turner, 237 S.W.2d 635, 637 (Tex. Civ. App.-Waco 1951, writ ref d n.r.e.). Moreover, Texas
statutory law distinguishes between the Gulf of Mexico and its arms and bays. Section 11.012(c)
of the Natural Resources Code, for example, declares:
The State of Texas owns the water and the beds and shores of the
Gulf of Mexico and the arms of the Gulf of Mexico within the
boundaries provided in this section, including all land which is
covered by the Gulf of Mexico and the arms of the Gulf of Mexico
either at low tide or high tide.
TEX. NAT. RES. CODE ANN. 8 11.012(c) (Vernon 2001). We conclude therefore that the body of
water known as the Laguna Madre is separate from, and not a part of, the body of water called the
Gulf of Mexico.
Moreover, on April 1,2002, John Haywood, attorney for the City, addressed a letter to Roger
L. Payne, Executive Secretary of the United States Board on Geographic Names, inquiring whether
Long Island borders the Gulf of Mexico.* The Board on Geographic Names, a division of the United
States Geological Survey, “is a Federal body created in 1890 and established in its present form by
Public Law in 1947. Comprised of representatives of Federal agencies, appointed for 2-year terms,
the Board is authorized to establish and maintain uniform geographic name usage throughout the
Federal Government .” See U.S. DEP’T OF THE INTERIOR,U.S. GEOLOGICALSURVEY, UNITED
STATES BOARD ON GEOGRAPHIC NAMES, available at http://geonames.usgs.gov/bgn.html (last
modified July 15,2003). On April 17,2002, Mr. Payne replied to Mr. Haywood as follows:
This is in response to your inquiry regarding the “identity of waters
bordering Long Island in Texas.”
The U.S. Board on Geographic Names defines Long Island as the
following: a 2.6 km (1.6 mi) long island in Cameron County, Texas
located in Laguna Madre. The island is approximately 152 m (500 ft)
south of the community of Port Isabel.3
Thus, in the view of the federal agency charged with defining geographical entities, Long Island is
located in the “Laguna Madre.”
2Letter from John Haywood, P.C., to Roger L. Payne, Executive Secretary, United States Board on Geographic
Names (Apr. 1,2002) (on file with Opinion Committee).
3Letter from Roger L. Payne, Executive Secretary, United States Board on Geographic Names, to John
Haywood, Attorney at Law (Apr. 17,2002) (on file with Opinion Committee) (emphasis added).
The Honorable James L. Keffer - Page 5 (GA-0107)
It follows that, because the Laguna Madre is separate from, and not a part of, the body of
water called the “Gulf of Mexico,” and because Long Island is an island “located in Laguna Madre,”
Long Island is not “an island bordering the Gulf of Mexico.” TEX.Lot. GOV’T CODEANN. 5 43.902
(Vernon 1999). As a result, the exception for islands bordering the Gulf of Mexico does not apply
to Long Island. Long Island is accordingly within the extraterritorial jurisdiction of the City of Port
Isabel, and Long Island Village may not incorporate without the consent of the City of Port Isabel.
The Honorable James L. Keffer - Page 6 (GA-0107)
SUMMARY
Long Island, a spoil island located directly south of the City
of Port Isabel, is located entirely within the Laguna Madre, a
saltwater lagoon that is not a part of the Gulf of Mexico. The Village
of Long Island is within the extraterritorial jurisdiction of the City of
Port Isabel, and may not incorporate without the consent of the City
of Port Isabel.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Cornmittee
Rick Gilpin
Assistant Attorney General, Opinion Committee
|
223 F.3d 932 (9th Cir. 2000)
COUFAL ABOGADOS; ERIC COUFAL, Plaintiffs-Appellants,v.AT&T, INC.; LUCENT TECHNOLOGIES INC.,Defendants-Appellees.
No. 98-56988
Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit
Argued and Submitted May 3, 2000.August 2, 2000
Lance Orloff, Daniels, Baratta & Fine, Los Angeles, California, for the plaintiffs-appellants.
William B. Campbell, William W. Oxley, Orrick, Herrington & Sutcliffe, Los Angeles, California, for the defendants-appellees.
Appeal from the United States District Court for the Central District of California, D.C. No. CV-97-00343-RSWL; Ronald S.W. Lew, District Judge, Presiding
Before: David R. Thompson, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
FISHER, Circuit Judge:
1
Eric Coufal and his law firm, Coufal Abogados (collectively "Coufal"), appeal the district court's grant of summary judgment in favor of appellees AT&T Corp. ("AT&T") and Lucent Technologies, Inc. ("Lucent") on Coufal's claim of tortious interference with a contract. The district court held that the law of Jalisco, Mexico applied; that Mexican law did not recognize the tort of interference with a contract; and that to the extent Coufal's allegations were cognizable as a claim for illicit behavior under Mexican law, the claim was barred by the two year statute of limitations. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm. We hold that the district court correctly found that Mexican law applied, and that Coufal has waived his argument that the Mexican statute of limitations period has not expired.
FACTS
2
In January 1990, AT&T Productos de Consumo de Mexico S.A. de C.V. ("Productos") contracted with Avanti Constructora ("Avanti") to construct a factory for Productos in Guadalajara, Mexico. Avanti's performance was secured by $5 million in bonds. Extremely unsatisfied with the quality of Avanti's work, Productos terminated Avanti in May 1991. At this point, Avanti had been paid $9 million out of the total contract amount of $11 million. The factory was completed using other contractors at an additional expense of $4 million, the extra $2 million allegedly being necessary to correct Avanti's mistakes. Productos hired Coufal to provide legal services and to initiate an arbitration proceeding against Avanti to recover damages. Coufal and Productos had a contingency fee arrangement under which Coufal would receive any amount recovered from Avanti in excess of $400,000. The arbitration proceeding against Avanti resulted in a $7.8 million award to Productos.
3
Because of the high amount of the arbitration award, Coufal and Productos renegotiated their contract to make it more equitable. Under this new contract, Coufal would receive payment only upon collection of the arbitration award or settlement with Avanti and would receive approximately half of the collected amount. In addition, Productos agreed that it would not unilaterally revoke Coufal's authority to enforce and collect the arbitration award, that it would not settle with Avanti without Coufal's consent and that the contract would not terminate until the final settlement of the disputes between Avanti and Productos. Just before the new contract was executed, the First Civil Court sitting in Guadalajara declared the arbitration award invalid due to procedural irregularities. Consequently, Coufal needed to appeal that decision successfully in order to enforce the award and get paid under the contract.
4
In September 1993, Avanti purchased ads in Mexican newspapers setting forth its position in the Avanti/Productos dispute and denouncing Productos. In response to this negative publicity directed at an AT&T subsidiary, Santiago Guitierrez, president of AT&T Mexico, AT&T's main Mexican subsidiary and the person responsible for representing AT&T's overall interest in Mexico, began expressing to Productos and to AT&T his displeasure with the entire arbitration dispute. Eventually, Lee Cutcliff, a vice-president in AT&T'slegal department based in Basking Ridge, New Jersey, assembled a team to investigate the controversy and directed the team to "take appropriate action, fix it, and get it straightened out." All of the team's investigative efforts occurred in Mexico. During the investigation, AT&T determined that Coufal's interests conflicted with AT&T's overall interest in Mexico -AT&T's objective was to get this matter resolved in a way that was positive for AT&T, but it saw Coufal as being mostly concerned about the arbitration award. In addition, AT&T had some concerns about Coufal's methods. Eventually, Cutcliff decided that Coufal should no longer serve as lead counsel for Productos. Thereafter, Luis Gomez Sanchez, Productos' legal representative in Mexico, directed a Mexican notary public to execute a revocation of Coufal's power of attorney.
5
In August 1994, the Federal Circuit Court of Jalisco overturned the First Civil Court's invalidation of the arbitration award and ordered its enforcement. AT&T soon decided, however, that Productos' collecting the arbitration award was not in AT&T's best interests, in terms of its entire Mexican presence. According to Coufal, this strategy completely disregarded the Coufal/Productos contract and damaged him when AT&T permitted the $5 million in performance bonds to expire. Because the arbitration award has not been collected, Coufal currently is not entitled to receive compensation under the contract.
6
Coufal sued appellees on November 25, 1996 in Los Angeles County Superior Court, alleging, in part, tortious interference with his contract with Productos. Appellees removed the case to the U.S. District Court for the Central District of California on diversity grounds. There, appellees argued that Mexican law applied, that the only claim Coufal's complaint arguably covered was one for "illicit behavior " and that the statute of limitations had run on that claim. The district court granted summary judgment to appellees, and Coufal appealed.
DISCUSSION
I. Choice of Law
7
A district court's decision concerning the appropriate choice of law is reviewed de novo. See Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501, 1505 (9th Cir. 1993). In a diversity case, the district court must apply the choice-of-law rules of the state in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir. 1987).
8
California applies a three-step "governmental interest" analysis to choice-of-law questions. See Hurtado v. Superior Court, 522 P.2d 666, 669 (Cal. 1974); Reich v. Purcell, 432 P.2d 727, 730 (Cal. 1967); see also McGhee v. Arabian American Oil Co., 871 F.2d 1412, 1422 (9th Cir. 1989). First, the court examines the substantive law of each jurisdiction to determine whether the laws differ as applied to the relevant transaction. See Liew v. Official Receiver and Liquidator, 685 F.2d 1192, 1196 (9th Cir. 1982). Second, if the laws do differ, the court must determine whether a "true conflict " exists in that each of the relevant jurisdictions has an interest in having its law applied. Id. "If only one jurisdiction has a legitimate interest in the application of its rule of decision, there is a `false conflict' and the law of the interested jurisdiction is applied." McGhee, 871 F.2d at 1422. On the other hand, if more than one jurisdiction has a legitimate interest, "the court must move to the third stage of the analysis, which focuses on the `comparative impairment' of the interested jurisdictions. At this stage, the court seeks to identify and apply the law of the state whose interest would be the more impaired if its law were not applied." Id. (internal quotation marks omitted).
9
Coufal argues that New York law should apply to his claim against appellees for their alleged tortious interference with his contract with Productos. AT&T argues that the district court correctly determined that the law of Jalisco, Mexico applies.
10
A. Do the Laws of Mexico and New York Differ?
11
The parties agree that the laws of New York and Mexico differ. Specifically, New York recognizes a claim for tortious interference, whereas Mexico does not.
12
B. "True Conflict" Analysis: Do Both New York and Mexico have an Interest in Applying Their Laws in this Case?
1. Mexico's Interest
13
Relying primarily on Hurtado, Coufal argues that Mexico has no interest in applying its law to limit recovery by its citizens. Hurtado involved a wrongful death action filed by Mexican plaintiffs against a California defendant regarding an automobile accident that occurred in California. 522 P.2d at 668. Mexico placed a monetary limit on recovery in wrongful death cases, whereas California limited recovery solely by the concept of "just compensation." Id. at 669. The court held that "[t]he interest of a state in a tort rule limiting damages for wrongful death is to protect defendants from excessive financial burdens or exaggerated claims." Id. at 670. Because the plaintiffs and not the defendants were the Mexican citizens, the court held that Mexico had no interest in applying its law: "Mexico has no defendant residents to protect and has no interest in denying full recovery to its residents injured by non-Mexican defendants." Id.
14
Unlike Hurtado, the complained-of conduct in this case took place primarily, if not entirely, in the foreign jurisdiction, Mexico. While some decisions may have been made in the United States, they were carried out in Mexico. A Mexican notary public revoked Coufal's power of attorney in Mexico. The legal services contract with which appellees allegedly interfered was a Mexican contract, governed by Mexican law, to be performed completely in Mexico. Although the situs of the injury is no longer the sole consideration in California choice-of-law analysis, California courts have held that, "with respect to regulating or affecting conduct within its borders, the place of the wrong has the predominant interest. " Hernandez v. Burger, 102 Cal. App. 3d 795, 802 (1980); see also McGhee, 871 F.2d at 1425 ("[I]t seems certain that Saudi Arabia has some legitimate interest in seeing that Saudi law determines the consequences of actions within its borders causing injury to people who reside there."). It is nonsensical to suggest that Mexico has no interest in regulating conduct that affects contracts made in Mexico.
15
One federal district court has applied Hurtado 's rule regarding damages limitation laws to cases where the tortious conduct occurred in the foreign jurisdiction. See Marsh v. Burrell, 805 F. Supp. 1493 (N.D. Cal. 1992). In Marsh, Dutch plaintiffs sued California defendants in California for an assault and battery that occurred in the Netherlands, and negligent hiring that occurred in California. The court in Marsh held that all of the claims were governed by California's more liberal damages rules, because none of the defendants were Dutch, and the Netherlands' "only interest in having its damages rules applied is in protecting its own resident defendants." Id. at 1499.
16
Unlike Marsh, or even Hurtado, though, this case does not involve a damages limitation rule, which courts have recognized is "intended to protect defendants from large verdicts. It is not an attempt to limit the compensation of plaintiffs." In re Aircrash in Bali, Indonesia, 684 F.2d 1301, 1307 (9th Cir. 1982) (citation omitted). Instead, this case involves Mexico's determination of the scope of its substantive law: the point at which it will attach tort liabilityto conduct occurring within its borders. This decision is designed both to protect potential defendants -including foreign defendants who might otherwise avoid doing business in Mexico1 -from liability for conduct that Mexico does not consider wrongful, and to limit plaintiffs from recovering even if such conduct damages them.
17
By choosing to regulate such conduct solely under its general illicit behavior statute, Mexico apparently has determined that it does not wish to punish conduct within its borders that does not rise to the level of illicit conduct. Indeed, there may even be some circumstances in which a third-party's interference with a Mexican contract might result in a net societal benefit -e.g., when the "interference " enables a contracting party to find a better deal. In this case, for example, AT&T's alleged "interference" enabled Products to extract itself from a bad situation with Avanti-a situation that was disruptive enough to involve high level government officials in both the United States and Mexico. The damaged party might still have a breach of contract remedy against the other contracting party but will have no cause of action against the third party.
18
Accordingly, Mexico has a significant interest in applying its law to this action.
2. New York's Interest
19
Coufal has not pointed to any activities that occurred in New York. Instead, he points to decisions made from offices in New Jersey and meetings that occurred in Atlanta.2 The only reason behind Coufal's assertion that New York law should apply appears to be that AT&T's state of incorporation is New York. He argues that New York has an interest in regulating its resident corporations' conduct. However, a company's contacts with a state that are not significantly related to the cause of action at issue are an insufficient basis for the application of that state's law. Cf. McGhee, 871 F.2d at 1424 ("California courts have rejected arguments that a party's contacts with California, unrelated to the cause of action at hand, create a basis for extending the reach of California's law."); id. at 1425 ("California, despite its interest in securing recovery for its residents, will not apply its law to conduct in other jurisdictions resulting in injury in those jurisdictions.").
20
Because New York does not have a significant interest in applying its law, there is a "false conflict " situation, and thus the district court correctly determined that the law of the interested jurisdiction, Mexico, should govern. McGhee, 871 F.2d at 1422.
21
II. Statute of Limitations on the Mexican Illicit Behavior Claim
22
At the hearing on appellees' summary judgment motion, the district court found as follows:
23
[T]o the extent plaintiffs' allegations are cognizable under the laws of Jalisco, Mexico, the claim would be governed by Article 1831 of the form of Jalisco civil code, authorizing a claim for illicit behavior. The statute of limitations for that kind of claim is two years.
24
Plaintiff does not dispute that the cause of action accrued at the time of Coufal's termination in March of 1994. The action was filed in November of 1996. Therefore, the action is barred by the statute of limitations under the laws of Mexico.
25
On appeal, Coufal acknowledges that, under the law of Jalisco, illicit behavior claims are subject to a two-year statute of limitations. He did not dispute that, under American tortious interferencelaw, his claim accrued in March 1994. Regarding the possible illicit behavior claim, however, he argues that, under the Mexican Supreme Court's interpretation, the limitations period does not begin to run until the damage ends and that, because he has still not been paid under the contract, the damage is ongoing and the limitations period has yet to start.
26
AT&T argues that Coufal's argument regarding the interpretation of the Jalisco statute of limitations was not raised before the district court and is therefore waived. See Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996) ("To have been properly raised below, `the argument must be raised sufficiently for the trial court to rule on it.' " (quoting In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989))). We agree. AT&T raised the illicit behavior statute of limitations issue in its summary judgment motion. In his opposition papers, Coufal did not offer the district court his contrary interpretation regarding when the limitations period begins under Jalisco law. Since the district court did not have an opportunity to consider this argument, it is waived.
27
AFFIRMED.
Notes:
1
Cf. Arno v. Club Med, Inc., 22 F.3d 1464, 1468 (9th Cir. 1994) (noting, in a case involving a supervisor's tortious conduct against an employee in Guadelope, that "Guadeloupe has an interest in encouraging local industry and reliably defining the duties and scope of liability of an employer doing business within its borders").
2
Coufal does not argue on appeal that either New Jersey or Georgia law should apply.
|
88 Mich. App. 667 (1979)
278 N.W.2d 713
PEOPLE
v.
ROSECRANTS
Docket No. 78-2120.
Michigan Court of Appeals.
Decided February 20, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, *668 Prosecuting Attorney, and John W. Wildeboer, Assistant Prosecuting Attorney, for the people.
Before: BEASLEY, P.J., and D.F. WALSH and J.E. McDONALD,[*] JJ.
BEASLEY, P.J.
Defendant was convicted by jury of resisting a police officer contrary to MCL 750.479; MSA 28.747. He was sentenced to pay a fine of $100 or spend 60 days in jail and to pay court costs of $582.
The prosecutor had also filed a supplemental information charging defendant with being a second felony offender under MCL 769.10; MSA 28.1082. The trial judge dismissed the supplemental information on the ground that, although defendant had one prior felony conviction, defendant's present offense was designated a misdemeanor under the applicable penal code provision, MCL 750.479; MSA 28.747 and, therefore, would not support application of the habitual offender statute. The prosecutor appeals this dismissal.
Defendant's offense, that of resisting a police officer, is termed a misdemeanor under the penal code, but is punishable by up to two years imprisonment. MCL 750.479; MSA 28.747. The prosecutor argues that, for purposes of charging defendant as a second felony offender under the code of criminal procedure, the court must use the definition of "felony" as set forth in the criminal code rather than on the basis of whether a crime is nominally termed a misdemeanor or felony in the penal code. The trial judge held that, absent an express repealer clause by the Legislature, the court must be governed by the prior enacted designation *669 of defendant's offense as a misdemeanor under the penal code.
"Felony", as used in the code of criminal procedure [MCL 761.1(g); MSA 28.843(g)] of which the habitual offender provision in question is a part, reads as follows:
"As used in this act:
* * *
"(g) `Felony' means an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year or an offense expressly designated by law to be a felony." 1974 PA 63, § 1.
Prior to the amendment, a "felony" under the code of criminal procedure was "construed to mean an offense for which the offender, on conviction, may be punished by death or by imprisonment in state prison". 1970 CL 761.1. Defendant's offense, although termed a misdemeanor, would also appear to have been a felony under the penal code before the statute's amendment as it is "punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than 1,000 dollars". 1970 CL 750.479.
The Legislature has expressed two intents as to the designated grade of defendant's offense; under the penal code defendant's activity is termed a misdemeanor, while under the later enacted code of criminal procedure it falls under the classification of a felony. The Legislature has the general power to designate both the grade and the punishment of criminal offenses.[1] The habitual offender statute is an example of the Legislature's intent to use this power to augment the permissible punishment for second and subsequent felony offenders *670 rather than to make a separate substantive crime out of being an habitual offender.[2]
The Legislature, in implementing its inherent power to define the grade of crimes, sets forth a uniform definition of the term "felony" for use when the code of criminal procedure applies, as in the instant case where the habitual offender statute is being applied. Although this uniform definition in MCL 761.1(g) does not expressly purport to affect or change the designated grade, as set forth under the prior enacted penal code, a legislature, enacting or amending a statute, must be presumed to have knowledge of existing statutes and laws.[3]
This case does not present a situation where the Legislature has enacted two inconsistent penalties. If so, defendant could argue that he was entitled to receive the lesser of the two penalties.[4] The statute governing prosecution of an habitual offender is clear in designating defendant's offense as a felony, and the punishment for defendant's activity falls within the felony definition under the criminal code.
Furthermore, we do not find the divergent designations of the grade of defendant's offense to be irreconcilable. For purposes of the penal code alone, the crime of resisting a police officer is treated as a misdemeanor. However, any application of the code of criminal procedure would result in the characterization of defendant's offense as a felony.[5]
Although designating defendant's offense as a felony under the code of criminal procedure eliminates *671 most, if not all, of the effect the prior designation of the offense as a misdemeanor under the penal code, the Legislature has the inherent power to define crimes, their grades and allowable punishment. We must, if at all possible, uphold the legislative determination as expressed in the applicable statute.
Therefore, we reverse the trial court's dismissal of the supplemental information charging defendant as a second felony offender and remand for trial on the supplemental information.
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] People v Causley, 299 Mich 340; 300 NW 111 (1941).
[2] People v Shotwell, 352 Mich 42; 88 NW2d 313 (1958).
[3] Skidmore v Czapiga, 82 Mich App 689, 691; 267 NW2d 150 (1978).
[4] People v Lockhart, 242 Mich 491; 219 NW 724 (1928); People v Hoaglin, 262 Mich 162; 247 NW 141 (1933).
[5] People v Duhamel, 72 Mich App 77; 248 NW2d 670 (1976).
|
893 F.2d 1342
Jonesv.American Broadcasting Co.**
NO. 88-3925
United States Court of Appeals,Eleventh Circuit.
DEC 21, 1989
Appeal From: M.D.Fla., 694 F.Supp. 1542
1
AFFIRMED.
**
Local Rule 36 case
|
Opinion issued January 29, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-01133-CR
———————————
IN RE JAMES MARCUS MILES, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
Relator James Marcus Miles seeks habeas corpus relief “for free copy of the
statement of facts in the above-styled cause, on appeal.”1 Relator has also filed a
motion to appeal as indigent and a motion for bail or bond. We dismiss for want of
jurisdiction.
1
The underlying case is The State of Texas v. James Marcus Miles, cause
number1578944, pending in the 179th District Court of Harris County, Texas, the
Honorable Randy Roll presiding.
An appellate court may issue a writ of habeas corpus when a person’s liberty
is restrained by an order issued by a court based on violation of a previous order
entered by a court in a civil case. See TEX. GOV’T CODE § 22.221(d). Appellant is
not complaining that his liberty is restrained by an order signed by a trial court in a
civil case. Therefore, this Court is without jurisdiction to issue the relief requested
in this petition. See, e.g., In re Thomas, No. 01–15–00786–CR, 2015 WL 6081429,
at * 1 (Tex. App.—Houston [1st Dist.] Oct. 13, 2015, orig. proceeding) (dismissing
for want of jurisdiction petition for writ of habeas corpus seeking relief in criminal
case).
If an appeal had been filed in this Court, we could construe this petition as a
motion to obtain a free record. But no appeal of a conviction with this trial court
cause number has been filed in this court.
Accordingly, the petition is dismissed for want of jurisdiction. Any pending
motions are denied.
PER CURIAM
Panel consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
2
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
CARLOTTA OLIVER, et al., )
)
Plaintiffs, )
) Civil Action No. 10-1443 (EGS)
v. )
)
BLACK KNIGHT ASSET MANAGEMENT, )
LLC, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiffs Carlotta Oliver and Joe Seymour1 brought an
eight-count Amended Complaint alleging breaches of contract,
unjust enrichment, retaliation, breach of settlement agreement,
and violations of federal securities and employment benefit
statutes against their former employer, Black Knight Asset
Management, LLC (“Black Knight” or “the Company”), and its
controlling officers, Daryl Dennis and Stanley Snow.2 In the
Amended Complaint, plaintiff Oliver alleges that defendants
failed to compensate her in accordance with the terms of her
1
Mr. Seymour has only brought suit for one count of
breach of contract, and thus, the bulk of defendants’ motion to
dismiss addresses claims specific to Ms. Oliver.
2
Defendant Daryl Dennis is Black Knight’s President and
Chief Executive Officer. Am. Compl. ¶ 5. Defendant Stanley
Snow is described as an organizer of Black Knight, but there is
no further description of his current role in the Company. See
id.
employment agreement, terminated her in retaliation for filing a
wage and hour claim, and deprived her of benefits under the
Company’s welfare and benefit plans.
Pending before the Court is defendants’ motion to dismiss
under Rule 12(b)(1) for lack of jurisdiction or, in the
alternative, under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted on any of the federal claims.
In addition, pending before the Court is plaintiffs’ motion for
partial summary judgment. Upon consideration of the motions,
the responses and the replies thereto, the applicable law, and
for the reasons set forth below, the motion to dismiss for lack
of jurisdiction is DENIED,3 the motion to dismiss for failure to
state a claim is GRANTED IN PART AND DENIED IN PART, and the
motion for partial summary judgment is DENIED.
I. BACKGROUND
Plaintiff Oliver was hired by Black Knight as Managing
Director, Business Development, in March 2007. Am. Compl. ¶ 2.
Under the terms of Ms. Oliver’s employment agreement, Black
Knight was required to pay her salary and related entitlements
and benefits. Id. ¶ 11. According to plaintiff, in June 2008,
without justification and in violation of her employment
3
Because the Court finds below that plaintiffs have
alleged sufficient facts to state a claim under ERISA on one of
their alleged counts, the Court concludes that it has subject-
matter jurisdiction over this action under Rule 12(b)(1).
2
agreement, Black Knight unilaterally and unlawfully attempted to
modify her pay structure. Id. Black Knight ceased paying Ms.
Oliver altogether in January 2010. Id. ¶ 12. Shortly
thereafter, she filed a complaint with the District of Columbia
Wage and Hour Office. Id. ¶ 13. In response, Black Knight’s
CEO, Daryl Dennis, represented to the Wage and Hour Office that
Black Knight would pay all compensation owed to Ms. Oliver--
approximately $24,000--the following day. Id. Instead, and as
plaintiff alleges, in retaliation for her wage and hour claim,
Black Knight terminated Ms. Oliver on February 26, 2010, a few
days short of the date on which, under Black Knight’s equity
participation plan, her five percent equity interest in the
Company was to vest. Id. ¶ 14. On May 26, 2010, upon learning
that Ms. Oliver intended to file the instant action, Black
Knight paid Ms. Oliver $18,000. Id. ¶ 15. To date, defendant
has not paid Ms. Oliver the remainder of what it had promised to
pay her, nor has it paid her the equity interest to which she
alleges she is entitled under the Company’s equity participation
plan. Id. Plaintiff also alleges that Black Knight was
obligated to pay her six months’ severance plus health benefits
if she was terminated without cause; it has failed to honor this
obligation. Id.
Plaintiff Seymour was hired by Black Knight in April 2008
to direct the Company’s 401(k) business development division.
3
Id. ¶ 4. Under the terms of his employment agreement with Black
Knight, he was entitled to be paid a base salary plus a
percentage of the assets he developed for Black Knight, as well
as his expenses. Id. ¶ 54. Although Mr. Seymour developed
business and incurred expenses in compliance with his agreement,
Black Knight has failed to pay him his base salary or his
percentage of assets, or to reimburse his expenses, since
October 2009. Id. ¶ 55. On May 26, 2010, upon learning that
Mr. Seymour intended to file suit for bad faith refusal to
compensate, Black Knight paid Mr. Seymour $7,700, a portion of
what he is owed. Id. Black Knight has failed to pay Mr.
Seymour the remainder of what he was owed under his employment
agreement.
Plaintiffs filed their initial complaint on August 25, 2010
alleging breaches of contract, retaliation, and unjust
enrichment. On September 16, 2010, defendants filed a motion to
dismiss the case under Rule 12(b)(1) due to a lack of complete
diversity of citizenship, as several members of the LLC,
including defendant Stanley Snow, are, like plaintiff Oliver,
citizens of Maryland. Defs.’ Mem. at 1. Plaintiffs then filed
an Amended Complaint on September 30, 2010, adding two claims
under the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. §§ 1001 et seq., and one claim under the Investment
Advisers Act, 15 U.S.C. § 80b-1 et seq. In response, defendants
4
filed another motion to dismiss, in which they argue that
plaintiffs have failed to state claims for any violations of
ERISA or the Investment Advisers Act, such that the Court does
not have federal question jurisdiction over this case.
Defendants also argue that plaintiffs have failed to make any
allegations as to defendants Daryl Dennis and Stanley Snow in
their individual capacities, and that the case should be
dismissed as to them. On April 19, 2011, plaintiffs filed a
motion for partial summary judgment concerning the issue of
whether Ms. Oliver has retained her five unit equity interest in
the Company. The motion to dismiss and the motion for partial
summary judgment are now ripe for determination by the Court.
II. LEGAL STANDARD
A. Rule 12(b)(1)
On a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure, the plaintiff bears the burden of establishing
that the court has jurisdiction. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). The subject-matter
jurisdiction of the federal district courts is limited and is
set forth generally at 28 U.S.C. §§ 1331 and 1332. Under those
statutes, federal jurisdiction is available only when a “federal
question” is presented, or the parties are of diverse
citizenship and the amount in controversy exceeds $75,000. See
5
Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006). A party
seeking relief in the district court must plead facts that bring
the suit within the court’s jurisdiction. See Fed. R. Civ. P.
8(a). Failure to plead such facts warrants dismissal of the
action. See Fed. R. Civ. P. 12(h)(3); see also Bell v. Hood,
327 U.S. 678, 682-83 (1946) (stating that a suit may be
dismissed for lack of jurisdiction where “the alleged claim
under the Constitution or federal statutes clearly appears to be
immaterial and made solely for the purpose of obtaining
jurisdiction”); Tooley v. Napolitano, 586 F.3d 1006, 1009 (D.C.
Cir. 2009) (“A complaint may be dismissed on jurisdictional
grounds when it ‘is patently insubstantial, presenting no
federal question suitable for decision.’” (quoting Best v.
Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994))). If the court
concludes that it lacks subject-matter jurisdiction, the court
must dismiss the complaint in its entirety. See Arbaugh, 546
U.S. at 514.
In deciding a Rule 12(b)(1) motion, moreover, the court
must give the plaintiff’s factual allegations closer scrutiny
than would be required for a Rule 12(b)(6) motion because
subject-matter jurisdiction focuses on the court’s power to hear
the claim. See Macharia v. United States, 334 F.3d 61, 64, 69
(D.C. Cir. 2003). Thus, to determine whether it has
jurisdiction over a claim, the court may consider materials
6
outside the pleadings where necessary to resolve disputed
jurisdictional facts. Herbert v. Nat’l Acad. of Scis., 974 F.2d
192, 197 (D.C. Cir. 1992); Alliance for Democracy v. Fed.
Election Comm’n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).
B. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citations omitted). “‘[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint[,]’”
Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.
Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)),
and grant the plaintiff “the benefit of all inferences that can
be derived from the facts alleged.” Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A court need not,
however, “accept inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the
complaint. Nor must the court accept legal conclusions cast in
the form of factual allegations.” Id. In addition,
7
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 1950.
C. Rule 56
Summary judgment should be granted only if the moving party
has shown that there are no genuine issues of material fact and
that the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). “A fact is material if it ‘might affect
the outcome of the suit under the governing law,’ and a dispute
about a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The moving party bears the initial burden of
demonstrating the absence of genuine issues of material fact.
See Celotex, 477 U.S. at 322-23. In determining whether a
genuine issue of material facts exists, the Court must view all
facts in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C.
Cir. 2004). The non-moving party’s opposition, however, must
8
consist of more than mere unsupported allegations or denials;
rather, it must be supported by affidavits or other competent
evidence setting forth specific facts showing that there is a
genuine issue for trial. See Fed. R. Civ. P. 56(c)(1); Celotex,
477 U.S. at 324. “The mere existence of a scintilla of evidence
in support of the [non-movant]’s position will be insufficient;
there must be evidence on which the jury could reasonably find
for the [non-movant].” Anderson, 477 U.S. at 252.
III. ANALYSIS
A. Motion to Dismiss
1. ERISA Claims
a. Count II, 29 U.S.C. § 1140
Section 510 of ERISA provides, in relevant part, that it
“shall be unlawful for any person to discharge, fine, suspend,
expel, discipline, or discriminate against a participant or
beneficiary . . . for the purpose of interfering with the
attainment of any right to which such participant may become
entitled under the [employee benefit] plan . . . .” 29 U.S.C.
§ 1140. The enforcement of section 510 is provided for in 29
U.S.C. § 1132, which permits a beneficiary to bring an action:
“(A) to enjoin any act or practice which violates any provision
of this title or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or
9
(ii) to enforce any provisions of this title or the terms of the
plan . . . .” Id. § 1132(a)(3).
In interpreting ERISA, the D.C. Circuit follows the burden
shifting approach employed in Title VII and Age Discrimination
in Employment Act (“ADEA”) cases. See May v. Shuttle, Inc., 129
F.3d 165, 169-70 (D.C. Cir. 1997); Lurie v. Mid-Atlantic
Permanente Med. Group, P.C., 729 F. Supp. 2d 304, 322 (D.D.C.
2010). Under that framework, the plaintiff is required to first
make out a prima facie case of prohibited employer conduct
before the burden shifts to the defendant to articulate a
legitimate reason for its action. May, 129 F.3d at 169. The
burden then shifts back to the plaintiff to prove that the
presented reasons are pretextual. Id. at 169-70.
In Count II, plaintiffs argue that “[d]efendants purported
to terminate Ms. Oliver’s rights under the Company’s equity
participation plan, thereby wrongfully depriving her of the
Plan’s benefits.” Am. Compl. ¶ 19. Defendants concede that the
plan at issue is an “employee pension benefit plan” under
ERISA,4 and that Black Knight is subject to ERISA as “an
4
The parties refer to three different plans in the
pleadings: (i) the equity participation plan, (ii) the 401(k)
plan, and (iii) the health care plan. Although plaintiffs refer
to all three in the complaint, plaintiffs’ ERISA claims are
focused on the equity participation plan, under which Ms. Oliver
was supposed to receive a five percent equity interest in the
Company. While defendants conceded that “the plan at issue” is
an ERISA qualified plan (see Defs.’ Mem. at 2; Defs.’ Reply Br.
10
employer engaged in commerce.” Defs.’ Mem. at 2; see also
Defs.’ Reply Br. at 5 & n.2. Defendants argue, however, that
plaintiffs fail to allege what the defendants did to violate
ERISA, other than conclusory allegations such as: “Through the
misconduct set forth in this [C]omplaint, Defendants improperly
caused Oliver to be removed as a participant in the Plans,
improperly removed the benefits to which she [is] entitled, and
improperly terminated her in violation of ERISA.” Defs.’ Mem.
at 2 (citing Am. Compl. ¶ 28). According to defendants,
plaintiff Oliver failed to allege that her termination was for
the purpose of interfering with the attainment of any right
available under the Company’s plan; rather, the Amended
Complaint is replete with allegations that plaintiff was
terminated in retaliation for filing a wage and hour claim.
Defs.’ Mem. at 5-6.
Defendants’ arguments on this point are unpersuasive.
Plaintiffs have alleged that Black Knight fired Ms. Oliver
without cause (i) in retaliation for filing a wage and hour
at 5), defendants also refer numerous times to the fact that
plaintiff Oliver withdrew from the health and benefit plans
before her termination. See, e.g., Defs.’ Mem. at 6 (“[D]espite
Oliver’s position that she was unlawfully deprived of her rights
under the plan by way of the termination on February 26, 2010,
she had voluntarily stopped participating in the 401(k) Plan in
September of 2009 and was no longer a participant in the health
care plan as of September, 2009 as well.”). The defendants
offer nothing to suggest that Ms. Oliver withdrew from or was
not entitled to benefits from the equity participation plan.
11
claim, and (ii) specifically for the purpose of depriving her of
her five percent interest under the equity participation plan,
thus depriving her of benefits she was entitled to under ERISA.
See Am. Compl. ¶¶ 19-21, 28. Plaintiffs state that Black Knight
terminated Oliver days before her interest was to vest. See id.
¶ 14. Under the lenient pleading standards of Rule 8, these
allegations are sufficient to state a claim at the motion to
dismiss stage and shift the burden to defendants to articulate a
legitimate reason for their action. Defendants have nowhere
offered a legitimate reason for their action in order to shift
the burden back to plaintiffs. Accordingly, defendants’ motion
to dismiss Count II of the Amended Complaint is DENIED.
b. Count III, 29 U.S.C. § 1109
Section 404 of ERISA requires every fiduciary of a plan to
“discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and . . . in
accordance with the documents and instruments governing the plan
. . . .” 29 U.S.C. § 1104(a)(1). A “fiduciary” is defined as a
person who “exercises any discretionary authority or
discretionary control respecting management of [a] plan or
exercises any authority or control respecting management or
disposition of its assets . . . or has any discretionary
authority or discretionary responsibility in the administration
of such plan.” Id. § 1002(21)(A). Under section 409 of ERISA,
12
“[a]ny person who is a fiduciary with respect to a plan who
breaches any of the responsibilities, obligations, or duties
imposed upon fiduciaries . . . shall be personally liable to
make good to such plan any losses to the plan resulting from
each such breach . . . and shall be subject to such other
equitable or remedial relief as the court may deem appropriate.”
Id. § 1109(a). Section 502 specifically authorizes a
beneficiary to bring an action for a violation of section 409.
See id. § 1132(a)(2) (a civil action may be brought “by a
participant, beneficiary or fiduciary for appropriate relief
under section 409”).
In Count III, plaintiffs allege that Black Knight and Daryl
Dennis breached fiduciary duties to the plaintiffs in violation
of ERISA. Am. Compl. ¶ 34. Defendants make three arguments
refuting these allegations. First, defendants argue that
plaintiffs have failed to allege that the defendants exercised
any “authority or discretionary control” respecting the
management and/or disposition of any assets under the plan.
Defs.’ Mem. at 7. Second, defendants argue that plaintiffs fail
to state how a fiduciary duty was breached by either defendant.
Id. According to defendants, the mere fact that plaintiff
Oliver was terminated from the Company and deprived of her right
to participate in the “plan” does not lead to the conclusion
that the defendants breached any fiduciary duty to her. Id. at
13
3. Third, defendants argue that, although plaintiffs have
attempted to bring a claim on behalf of the plans, “it is clear
that [plaintiff Oliver’s] complaint is aimed at recovering on
her own behalf, not on behalf of any other purported plan
members, as she has raised no allegations that any other plan
members were injured in any manner because they were not.” Id.
at 7.
i. Fiduciary Status
Plaintiffs allege that both Black Knight and Daryl Dennis
were fiduciaries with respect to the Company’s plans.5 First,
plaintiffs allege that the administrator of a plan is a
fiduciary, but no administrator was designated in Black Knight’s
plan documents. Am. Compl. ¶ 31. Where a plan administrator is
not designated, the plan sponsor is the administrator. See 29
U.S.C. § 1002(16)(A). Plaintiffs thus assert that Black Knight,
as the sponsor of the plans, was the administrator and thus was
a fiduciary with respect to the plans. Am. Compl. ¶ 31; see
also 29 U.S.C. § 1002(16)(B) (defining “plan sponsor” as “the
employer in the case of an employee benefit plan established or
maintained by a single employer”). In addition, plaintiffs
allege that defendant Dennis had discretionary authority and
responsibility in the administration and management of Black
5
As discussed supra n.4, defendants have conceded that
the equity participation plan was an ERISA-qualified plan.
14
Knight’s plans, as well as authority and control respecting the
management or disposition of the plans’ assets. Am. Compl.
¶ 32.
In contrast to plaintiffs’ claims, however, ERISA defines
an administrator as a fiduciary “only to the extent that he acts
in such a capacity in relation to a plan.” Pegram v. Herdrich,
530 U.S. 211, 225-26 (2000) (citation omitted). Thus, in every
case charging a breach of fiduciary duty under ERISA, the
threshold question is “whether that person was acting as a
fiduciary (that is, was performing a fiduciary function) when
taking the action subject to complaint.” Id. at 226. Not all
actions taken by an ERISA fiduciary implicate these
responsibilities because an ERISA plan administrator “may wear
different hats.” Id. at 225. For example, it has long been the
rule that an employer or plan sponsor does not act in a
fiduciary capacity when adopting, modifying or terminating an
employee benefit plan. See Beck v. PACE Int’l Union, 551 U.S.
96, 101-02 (2007); Lockheed Corp. v. Spink, 517 U.S. 882, 890-91
(1996) (applying rule to pension benefit plan); Curtiss-Wright
Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995) (applying rule to
welfare benefit plan); Hartline v. Sheet Metal Workers’ Nat’l
Pension Fund, 286 F.3d 598, 599 (D.C. Cir. 2002). Rather than
acting as fiduciaries, employers or plan sponsors amending a
plan are “analogous to the settlors of a trust.” Lockheed, 517
15
U.S. at 890. This is because such acts are business decisions
that do not fall within the ambit of fiduciary duties.
Plaintiffs have not pled sufficient facts to show that
Black Knight was acting in its fiduciary capacity as an
administrator, rather than an employer or sponsor, when it
terminated Ms. Oliver’s employment and removed her from the
plans. In addition, plaintiffs have not alleged how defendant
Dennis possessed the discretionary authority of a fiduciary with
respect to the plans, other than as President and CEO of the
Company. However, even assuming, arguendo, that plaintiffs
could show that both Black Knight and Dennis were fiduciaries,
plaintiffs have failed to allege that defendants breached their
fiduciary duties, as described below.
ii. Breach of Fiduciary Duties
Plaintiffs assert that defendants improperly caused and/or
knowingly participated in (1) Oliver’s removal as a participant
in the plans; (2) removal of the benefits to which she was
entitled; and (3) her termination. According to plaintiffs, in
doing so, defendants breached their fiduciary duties to act “for
the purpose of benefiting the plans’ participant, i.e. Oliver,
and to prudently and loyally maintain the plans’ assets.” Am.
Compl. ¶ 34. However, as the Supreme Court has held, fiduciary
activity under ERISA is limited to discretionary acts of plan
16
“management” and “administration.” See Varity Corp. v. Howe,
516 U.S. 489, 502 (1996); see also Lockheed, 517 U.S. at 890.
Under ERISA, fiduciaries have a duty to invest the assets
of a plan prudently and to provide accurate information about
the plan to participants. For example, “managing or
administering the investment and use of [] trust assets are
deemed fiduciary functions.” Hartline v. Sheet Metal Workers’
Nat’l Pension Fund, 134 F. Supp. 2d 1, 13 (D.D.C. 2000), aff’d,
286 F.3d 598 (D.C. Cir. 2002) (citation omitted). A plan
administrator breaches his or her fiduciary duties by, inter
alia, deceiving a plan’s beneficiaries into withdrawing from
their old plan, forfeiting their benefits, and enrolling in a
new plan in order to save the employer money at the
beneficiaries’ expense. See Varity, 516 U.S. at 492-94, 506.
Additionally, the D.C. Circuit has found that a failure to
disclose material information to beneficiaries is a breach of a
fiduciary’s duties. See Eddy v. Colonial Life Ins. Co. of Am.,
919 F.2d 747, 750 (D.C. Cir. 1990).
By contrast, the Supreme Court has made clear that acts
such as terminating a fund in its entirety or allowing a plan to
become insolvent do not implicate fiduciary duties because there
are no more benefits for the fiduciary to guarantee. See Beck,
551 U.S. at 101-02, 106. As stated supra, Section III.A.1.b.i.,
such actions are business decisions that do not trigger
17
fiduciary obligations. According to the Supreme Court, “plan
participants and beneficiaries must rely primarily (if not
exclusively) on state-contract remedies if they do not receive
proper payments or are otherwise denied access to their funds.”
Id. at 106. Termination of employment and removal from a plan
are not the types of actions that implicate fiduciary duties and
are instead more akin to business decisions not subject to
ERISA’s fiduciary obligations. For these reasons, plaintiffs
have not stated sufficient facts to support a claim for relief
under 29 U.S.C. § 1109.
iii. Recovery on Behalf of Individual
Finally, defendants argue that plaintiffs cannot seek to
recover individually for an alleged breach of fiduciary duties,
but rather must seek to recover on behalf of the plan as a
whole. See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134,
140-42 (1985). Because plaintiffs have not stated sufficient
facts to show that Ms. Oliver seeks to recover on behalf of the
plan as a whole, defendants argue that plaintiffs’ claim for
breach of fiduciary duties should be dismissed. Defs.’ Mem.
at 7. Even assuming, arguendo, that plaintiffs could make a
claim to recover individually,6 plaintiffs have not stated
6
See, e.g., Varity, 516 U.S. at 510-13, 515 (holding
that in an action for equitable relief, a companion subsection,
29 U.S.C. § 1132(a)(3), can, in fact, provide plaintiffs with a
18
sufficient facts to show that defendants breached any fiduciary
duties. Accordingly, the motion to dismiss Count III of the
Amended Complaint is GRANTED, and plaintiffs’ claim for breach
of fiduciary duties is DISMISSED.
2. Investment Advisers Act Claim
Section 206 of the Investment Advisers Act (“IAA”)
provides, in relevant part, that it is unlawful for any
investment adviser to “engage in any act, practice, or course of
business which is fraudulent, deceptive, or manipulative.” 15
U.S.C. § 80b-6(4). Section 215 of the Act provides a private
right of action to void or rescind a contract where an
investment adviser has engaged in manipulative or unlawful
conduct. 15 U.S.C. § 80b-15. As the Supreme Court has stated,
sections 206 and 215 were intended to benefit the clients of
investment advisers. See Transamerica Mortg. Advisors v. Lewis,
444 U.S. 11, 17 (1979); SEC v. Capital Gains Research Bureau,
Inc., 375 U.S. 180, 187-88 (1963); see also Paul S. Mullin &
Assocs., Inc. v. Bassett, 632 F. Supp. 532, 537 (D. Del. 1986)
(“Courts have held uniformly that only an investment adviser and
its clients (or prospective clients) are proper parties in a
private suit under the [IAA].”); Reserve Mgmt. Corp. v. Anchor
remedy for a breach of fiduciary duty in their individual
capacity, rather than solely on behalf of the plan).
19
Daily Income Fund, Inc., 459 F. Supp. 597, 608 (S.D.N.Y. 1978)
(same).
In Count IV, plaintiffs allege that defendants’ unlawful
termination of Oliver’s participation in the equity
participation plan constituted a manipulative or deceptive
practice proscribed by the IAA. According to plaintiffs,
defendants engaged in manipulative conduct “when they terminated
Ms. Oliver’s plan participation on a pretextual basis in
retaliation for her exercise of [her] lawful right to file a
wage and hour claim.” Am. Compl. ¶ 39. However, as defendants
correctly argue, plaintiffs have not properly stated a claim
under the IAA because an employer-employee relationship is not
the type of relationship the IAA was intended to protect. In
addition, claims brought under the IAA generally must allege
elements similar to those required to prove securities fraud
violations,7 and plaintiffs have not even alleged these basic
elements.
Defendants argue that plaintiffs have failed to identify
how the “unlawful termination” of plaintiff Oliver is a
7
See, e.g., SEC v. Steadman, 967 F.2d 636, 641-42, 6447
(D.C. Cir. 1992); SEC v. Wall Street Publ’g Inst., Inc., 591 F.
Supp. 1070, 1082-84 (D.D.C. 1984); see also Vernazza v. SEC, 327
F.3d 851, 858-59 (9th Cir. 2003) (equating the materially false
statement or omission requirement in the IAA to that to that
required to prove violations of the Securities and Exchange
Acts, 15 U.S.C. §§ 77q(a) and 78j(b)).
20
“manipulative or deceptive practice.” Defs.’ Mem. at 3, 9
(citing Am. Compl. ¶ 38). Defendants here are correct.
Although the Act does not define “manipulative” and “deceptive”
practices, case law provides examples of the types of behavior
that will suffice to establish claims for violations of section
206. See, e.g., Wall Street Publ’g Inst., 591 F. Supp. at 1081-
87 (involving violations arising out of false and misleading
statements published in defendant’s magazine and defendant’s
failure to disclose consideration received in connection with
the publication of feature articles). The Supreme Court has
interpreted the IAA to impose upon the investment adviser “an
affirmative duty of utmost good faith, and full and fair
disclosure of all material facts,” as well as an “affirmative
obligation to employ reasonable care to avoid misleading” its
clients. Capital Gains Research Bureau, 375 U.S. at 194
(internal citations and quotation marks omitted). Plaintiffs’
primary claim here is that Ms. Oliver was wrongfully terminated.
See Am. Compl. ¶¶ 38-39. Plaintiffs have presented no
allegations that defendants committed any fraud or made any
untrue statements and/or omissions of material fact to
plaintiffs or anyone else. Without more, these allegations do
not suffice to make out a claim of a fraudulent, manipulative,
or deceptive act.8
8
Defendants further argue that plaintiffs fail to
21
Plaintiffs have failed to state any facts which could be
construed as providing the basis for a claim that defendants
engaged in any fraudulent, manipulative, or deceptive practice.
Accordingly, the motion to dismiss on this claim is GRANTED, and
plaintiffs’ claim under the IAA is DISMISSED.
3. Dismissal of Individual Defendants
Defendants argue that plaintiffs have not alleged
sufficient facts to support allegations against either Stanley
Snow or Daryl Dennis individually, as opposed to in their
official capacities as officers of the Company. Officers of a
corporation do not fall within ERISA’s definition of an
“employer,”9 and thus officers cannot be held personally liable
for a corporation’s alleged ERISA violations by virtue of their
relationship to the employer alone.10 See Connors v. P & M Coal
Co., 801 F.2d 1373, 1378 (D.C. Cir. 1986); see also Int’l Bhd.
allege any facts supporting their position that the Company’s
private placement offering (which contained the equity
participation plan) is an “Investment Advisers Contract,” as
defined in the Act. Defs.’ Mem. at 9. Plaintiffs wholly failed
to address this issue in their opposition, and therefore, the
Court finds that this point has been conceded.
9
ERISA defines an employer as one who acts “directly as
an employer, or indirectly in the interest of an employer, in
relation to an employee benefit plan; and includes a group or
association of employers acting for an employer in such
capacity.” 29 U.S.C. § 1002(5).
10
Even assuming, arguendo, that the individual
defendants could be held personally liable under the Investment
Advisers Act, as discussed supra Section III.A.2., a claim under
the IAA is wholly inappropriate in this context.
22
of Painters & Allied Trades Union v. George A. Kracher, Inc.,
856 F.2d 1546, 1548-50 (D.C. Cir. 1988) (affirming district
court’s conclusion that liability for a corporation’s delinquent
pension contributions does not extend to an individual who is
the organization’s chief officer and principal shareholder).
Once corporate liability has been established under ERISA,
“officers may be held personally liable for their corporations’
obligations under ERISA if they have acted as the ‘alter egos’
of their corporations or otherwise met the requirements that
justify ‘piercing the corporate veil’ under traditional common
law principles.” Connors, 801 F.2d at 1378 (citations omitted);
see also Bd. of Trs. v. Northern Steel Corp., 657 F. Supp. 2d
155, 160-61 (D.D.C. 2009).
In Labadie Coal v. Black, 672 F.2d 92 (D.C. Cir. 1982), the
D.C. Circuit identified a two-prong test for deciding when it is
appropriate to pierce the corporate veil: (1) whether there is
such unity of interest and ownership that the separate
personalities of the corporation and the individual no longer
exist; and (2) if the acts are treated as those of the
corporation alone, whether an inequitable result will follow.
See 672 F.2d at 96. Under the first prong, the court should
consider “the degree to which formalities have been followed to
maintain a separate corporate identity.” Id. The factors that
should weigh in the court’s determination include: (1) the
23
nature of the corporate ownership and control; (2) failure to
maintain adequate corporate records; (3) failure to maintain
corporate formalities; (4) commingling of funds and corporate
assets; (5) diversion of the corporation’s funds or assets; and
(6) use of the same office or business location by the
corporation and the individual shareholders. Id. at 97-99.
As to defendant Snow, defendants assert that the Amended
Complaint has not made a single factual allegation against Mr.
Snow to permit recovery against him individually. Defs.’ Mem.
at 10. As the D.C. Circuit has held, mere reference to an
individual’s role as an officer in a company is insufficient to
establish liability. See Int’l Bhd. of Painters & Allied Trades
Union, 856 F.2d at 1548. Indeed, the Amended Complaint contains
only one sentence related to Mr. Snow: “Defendant Stanley Snow
is an organizer of Black Knight.” Am. Compl. ¶ 5.11 Plaintiffs
11
Plaintiffs attempt to incorporate additional facts
into their opposition as to Snow. See Pls.’ Opp. at 2 (“Black
Knight, through defendants Snow and Dennis, in June 2008
unilaterally and unlawfully attempted to modify Ms. Oliver’s pay
structure.”); id. at 3 (“Black Knight, at the behest of Stan
Snow and Daryl Dennis, wrongfully terminated Ms. Oliver on
February 26, 2010.”); id. (“Stan Snow caused Black Knight to pay
Ms. Oliver $18,000.00 . . . .”); id. at 8 (“On information and
belief, the actions taken by defendants have been taken at the
express direction of defendant Snow. Defendant Snow has exerted
dominion and control over Black Knight due to its financial
struggles.”). Because plaintiffs have not sought to amend their
complaint, these facts cannot be read into the complaint when
raised for the first time in the opposition. See Ghawanmeh v.
Islamic Saudi Acad., 672 F. Supp. 2d 3, 15 (D.D.C. 2009)
(“[S]uppositions in an opposition to a motion to dismiss are no
24
have not alleged that Snow did anything either on behalf of the
Company or in his individual capacity. Without more, the
complaint does not give defendant Snow notice of the claims
against him and the grounds upon which they rest. For this
reason, the motion to dismiss as to defendant Snow is GRANTED.
Defendants similarly argue that plaintiffs have not pled
sufficient facts in Counts I-IV to recover against defendant
Dennis individually. With respect to Mr. Dennis, plaintiffs
allege that Dennis occupied the role of President and CEO of
Black Knight; that he represented to the D.C. Wage and Hour
Office that Black Knight would pay Ms. Oliver the compensation
owed to her and then wrongfully terminated her instead; that he
had the responsibilities and obligations of Black Knight as
administrator of the Company’s equity participation and health
and benefit plans; and that he offered in writing to settle Ms.
Oliver’s claim and then refused to honor the terms of the draft
settlement agreement. See Am. Compl. ¶¶ 5, 13-14, 32, 50-51.
Plaintiffs have failed, however, to allege that Dennis did
anything outside of his role as President and CEO of the Company
that would permit him to be held personally liable under the
veil piercing or alter-ego theories discussed above.
substitute for the specific factual allegations plaintiff must
make in her complaint.”).
25
Accordingly, the motion to dismiss as to defendant Dennis is
GRANTED.
B. Motion for Partial Summary Judgment
In the motion for partial summary judgment, plaintiffs seek
an order entering judgment in Ms. Oliver’s favor on the issue of
whether she retained her equity units in Black Knight.
According to plaintiffs, the equity units were provided for
under the terms of Ms. Oliver’s employment and Black Knight’s
Offering Memorandum, and, under the terms of the employment
agreement, any forfeiture of the equity units was required to be
in writing. See Pls.’ Mot. Summ. J. at 1-4. Because no writing
evidencing forfeiture of Ms. Oliver’s equity exists, plaintiffs
argue that they are entitled to summary judgment on this issue.
Defendants argue that the employment agreement contains no
requirement that the Company obtain a document from plaintiff
evidencing a forfeiture of her interests, but rather, that the
agreement operates to divest the equity ownership automatically
when an employee is terminated prior to her third anniversary of
employment with the Company. See Defs.’ Opp. at 3-5.
Defendants further argue that genuine issues of material fact
exist at this stage of the litigation, in which minimal
discovery has been taken. See id. at 1-2, 7. Because the Court
is persuaded that genuine issues of material fact exist that
26
preclude summary judgment at this time, plaintiffs’ motion for
partial summary judgment is DENIED without prejudice.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that
plaintiffs have failed to state a claim for breach of fiduciary
duties under ERISA, 29 U.S.C. § 1109 (Count III), or for relief
under the IAA, 15 U.S.C. § 80b-15 (Count IV). The Court
additionally concludes that plaintiffs have failed to state
claims against either Stanley Snow or Daryl Dennis in their
individual capacities. However, the Court concludes that
plaintiffs have alleged sufficient facts at this stage to make
out a claim for relief under section 510 of ERISA, 29 U.S.C. §
1140 (Count II). Accordingly, defendants’ motion to dismiss is
GRANTED IN PART AND DENIED IN PART. In addition, because
genuine issues of material fact exist that preclude summary
judgment at this time, plaintiffs’ motion for partial summary
judgment is DENIED without prejudice. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: EMMET G. SULLIVAN
United States District Judge
September 26, 2011
27
|
856 F.2d 198
U.S.v.Cuartas-Restrepo***
NO. 87-5888
United States Court of Appeals,Eleventh Circuit.
AUG 01, 1988
1
Appeal From: S.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
**
Local Rule: 36 case
|
T.C. Memo. 2010-136
UNITED STATES TAX COURT
ENMED, LLC d.b.a. QUALITY HOME HEALTH AGENCY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17142-08L. Filed June 22, 2010.
Johnny Rhondo (manager), for petitioner.
Guy Glaser and Timothy Berry, for respondent.
MEMORANDUM OPINION
KROUPA, Judge: This collection review matter is before the
Court in response to a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 63301
1
All section references are the Internal Revenue Code, and
all Rule references are to the Tax Court Rules of Practice and
Procedure, unless otherwise indicated.
-2-
(determination notice) pertaining to a $28,250 penalty under
section 6698 for failure to timely file a partnership return for
2004 and a $650 penalty under section 6721 for failure to file
the return electronically for 2004. The sole issue for decision
is whether respondent’s determination to sustain the lien filing
to collect the penalties assessed is an abuse of discretion.2 We
hold it is not.
Background
This case was submitted fully stipulated pursuant to Rule
122, and the facts are so found. The stipulation of facts, the
supplemental stipulation of facts, and the accompanying exhibits
are incorporated by this reference. Petitioner maintained its
headquarters in Ontario, California, at the time it filed the
petition.
IRS Penalty Appeal
Respondent assessed the penalties against petitioner and
issued a notice requesting petitioner to pay the penalties.
Instead of paying, petitioner asked that the penalties be abated
by respondent’s Appeals Office (penalty appeal). Penalty Appeals
Tax Specialist MaryAnn Woodbury (AO Woodbury) determined that
2
Respondent filed a motion for summary judgment. We
recharacterized respondent’s motion as a motion for partial
summary judgment and granted partial summary judgment to
respondent that petitioner was foreclosed from challenging the
underlying liability for the penalties. We left open whether
filing the lien was appropriate to collect the penalties. It is
that issue we decide today.
-3-
petitioner was not entitled to have the penalties abated.3 AO
Woodbury explained she did not abate the penalties because
petitioner had a history of failure to timely file penalties,
the return was filed over 17 months late, and so much time
elapsed between the events petitioner cited for causing the delay
and the delayed filing.
The CDP Hearing
Respondent filed a Notice of Federal Tax Lien in San
Bernardino County against petitioner with respect to the
penalties. Respondent also sent petitioner a notice informing
petitioner of its collection due process rights. Petitioner
timely submitted a hearing request seeking abatement of the
penalties. Petitioner raised no other issue in the hearing
request, nor did petitioner raise any collection alternatives in
the hearing request, such as an installment agreement or an
offer-in-compromise.
Settlement Officer Wendy J. Clinger (SO Clinger) sent
petitioner a letter scheduling a date and time for the hearing.
She stated in the letter that the purpose of the hearing would be
limited to discussing the lien and that, pursuant to section
6330(c)(2)(B), she would not allow petitioner to challenge its
3
Petitioner filed a petition in this Court (Docket No.
26219-07) to contest AO Woodbury’s determination not to abate the
penalties. That petition was untimely, and the case was
dismissed for lack of jurisdiction.
-4-
liability for the underlying penalties because petitioner already
had exercised an opportunity to do so during the penalty appeal.
SO Clinger further stated that she would consider any non-
frivolous issues petitioner wished to discuss including
challenges to the appropriateness of the collection action and
other defenses. She asked petitioner to provide her with all the
information that it wished her to consider regarding the lien so
she could properly consider collection alternatives.
Responding to SO Clinger, petitioner provided the same
information and repeated the same arguments it had previously
raised during the penalty appeal. Petitioner also claimed it had
“not had the opportunity to dispute the appropriateness of the
collection action.” Petitioner did not raise any other
arguments, including objections to the collection action or
collection alternatives.
Petitioner chose not to participate in a face-to-face
hearing with SO Clinger and declined the opportunity to discuss
the matter by telephone. Petitioner instead requested that SO
Clinger make her determination using documents it had previously
submitted.4 The documents submitted to SO Clinger only address
4
Apparently petitioner now seeks to negotiate the penalties
and has stated that it would like each party to concede 50
percent of the liability based on doubt as to liability.
Petitioner is precluded from challenging its liability for the
penalties pursuant to our order granting respondent’s motion for
partial summary judgment.
-5-
petitioner’s liability for the penalties. They do not raise any
relevant issues.
SO Clinger issued petitioner a determination notice
sustaining the filing of the lien. She determined through
account transcript analysis that the penalties were properly
assessed and that petitioner was properly notified of the
assessments and informed of its rights with respect to the lien
action. SO Clinger also determined that petitioner had
previously had the opportunity to challenge its liability for the
penalties and was therefore precluded from challenging it again.
She further determined that petitioner did not raise any relevant
arguments, including defenses and collection alternatives.
Petitioner timely filed a petition in response to the
determination notice. The only issue raised is whether
petitioner is liable for the penalties.
Discussion
We are asked to decide in this collection review matter
whether respondent abused his discretion by proceeding with the
lien action to collect the penalties from petitioner. Petitioner
only wants to contest its liability for the penalties. We begin
with general rules that apply to collection actions.
The Secretary is required to furnish the taxpayer with
written notice that a lien has been filed. Sec. 6320. The
taxpayer is entitled, upon request, to a hearing before the
-6-
Appeals Office. Sec. 6320(b)(1). If the taxpayer requests a
hearing, he or she may raise at that hearing any relevant issues
relating to the unpaid tax or the proposed collection action.
Sec. 6330(c)(2). Relevant issues include any appropriate
defenses, challenges to the appropriateness of collection, and
possible alternative means of collection such as an installment
agreement or an offer-in-compromise. Sec. 6330(c)(2)(A).
After the hearing, the Appeals officer is required to make a
determination that addresses issues the taxpayer raised, verifies
that all requirements of applicable law and administrative
procedure have been met, and balances the need for the efficient
collection of taxes with the legitimate concern of the person
that any collection action be no more intrusive than necessary.
Sec. 6330(c)(3). Petitioner may prove abuse of discretion by
showing that respondent exercised his discretion arbitrarily,
capriciously, or without sound basis in fact or law. See
Giamelli v. Commissioner, 129 T.C. 107, 111 (2007).
The record reflects that SO Clinger properly verified that
respondent followed the applicable law and administrative
procedure.5 She reviewed respondent’s account transcript and
5
Petitioner elected not to participate in a face-to-face or
telephone hearing with SO Clinger and requested that she make her
determination using documents it had submitted to her.
Petitioner now argues in its briefs that its due process rights
were violated when SO Clinger denied its request for a face-to-
face hearing. We find no abuse of discretion by SO Clinger in
light of petitioner’s waiver of the opportunity for a hearing in
(continued...)
-7-
concluded that petitioner received all notices and was accorded
all rights to which it was entitled regarding the assessments.
Additionally, petitioner did not raise any relevant issues for SO
Clinger’s consideration. Petitioner did not provide any
collection alternatives, nor did it present any other defenses
for SO Clinger’s consideration. Finally, the record reflects
that SO Clinger properly balanced the need for efficient
collection of taxes with petitioner’s legitimate concern that any
collection be no more intrusive than necessary. We therefore
conclude that SO Clinger did not abuse her discretion in
sustaining the lien action to collect the penalties from
petitioner.
We decline petitioner’s invitation to review whether
petitioner had reasonable cause to file the return almost 18
months after the due date. That question is not before the
Court. We previously granted respondent’s partial summary
judgment on the question whether petitioner may challenge its
liability for the penalties in this collection review matter.
We have considered all arguments made in reaching our
decision, and, to the extent not mentioned, we conclude that they
are moot, irrelevant, or without merit.
5
(...continued)
person or by telephone.
-8-
To reflect the foregoing,
Decision will be entered
for respondent.
|
FILED
DEC 302009
UNITED STATES DISTRICT COURT Clerk, U.S. District and
FOR THE DISTRICT OF COLUMBIA Bankruptcy Courts
Lawrence Wilder, Sr., )
)
Plaintiff, )
)
v. ) Civil Action No. O!} 2446
)
Hendersen Webb, Inc., et al., )
)
Defendants. )
MEMORANDUM OPINION
Before the Court is the plaintiffs pro se complaint and application to proceed informa
pauperis. The application will be granted and the complaint will be dismissed.
The plaintiff, a self-described "psychiatrically disabled 44-year-old African American
male," Compl. at 1-2 (punctuation and spelling altered), purports to bring claims under several
federal statutes and the common law, and demands $200,789,113.00 in damages. The seven-
page complaint is rambling and incoherent. It makes mention of numerous public personalities,
including John Gotti, Congressman Elijah Cummings, see id. at 3, "Baltimore City Mayor Sheila
Dixon," id. at 4, and several Maryland state and federal judges, id. at 5. In addition to alleging
that the plaintiff was falsely accused "for the purpose of violating my due process, disrespecting
my Janet Reno DOJ pardon, suppressing evidence to prove my innocence, and stopping my
intervention of the New Haven Firefighters Supreme Court case," the complaint alleges that
"U.S. Court of Appeals for the 4th Circuit judge Williams stalked the plaintiff in Bedford,
Pennsylvania at the Pennsylvania Turnpike tollbooth." Id. at 6.
A complaint such as this one that describes fantastic or delusional scenarios is subject to
immediate dismissal. See Neitzke v. Williams, 490 U.S. 319, 328 (1989); Best v. Kelly, 39 F.3d
328, 330-31 (D.C. Cir. 1994). Moreover, a complaint may be dismissed as frivolous when it
lacks "an arguable basis in law and fact." Brandon v. District a/Columbia Bd. a/Parole, 734
F.2d 56,59 (D.C. Cir. 1984). Accordingly, this compl' wr~~ismissed.
)
A separate appropriate order accompanies hi morandum opinion.
Date: /1-/:t /! 0 '1 ~'
//I~
Unitdd States District Judge
|
268 N.W.2d 705 (1978)
STATE of Minnesota, Respondent,
v.
William Elmer WEEKES, Appellant.
No. 47712.
Supreme Court of Minnesota.
April 7, 1978.
C. Paul Jones, Public Defender, Gregory Gaut, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Jane Prohaska, Sp. Asst. Atty. Gen., St. Paul, Thomas Nagel, County Atty., Litchfield, for respondent.
*706 Heard before PETERSON, YETKA, and IVERSON, JJ., and considered and decided by the court en banc.
YETKA, Justice.
Defendant was charged with feloniously causing the death of one Michael T. Biel in the city of Litchfield, Minnesota, in April 1974. The case was tried before a jury in the Meeker County District Court, where defendant was found guilty of manslaughter in the first degree.
Defendant initially appealed from the judgment of conviction in June 1975. In that first appeal appellant challenged the legal sufficiency of the evidence supporting that verdict and the admissibility of his inculpatory statements given to law-enforcement officials after an illegal arrest.
This court, in State v. Weekes, Minn., 250 N.W.2d 590, 593 (1977), disposed of defendant's first claim of error by finding that the "direct, circumstantial, and medical opinion evidence compels our holding that the jury could justifiably have found defendant guilty as charged." However, deficiencies in the record prevented this court from fully deciding whether his confession was properly admitted into evidence. The court remanded the case to the district court for a redetermination of the admissibility of appellant's statements under guidelines set down in its opinion. This court concluded that (Minn., 250 N.W.2d 595):
"* * * Should the trial court, after a rehearing, find that defendant's statements were an intervening, independent product of his free will so as to dissipate the taint of his illegal detention and confinement, his conviction is affirmed; otherwise, a new trial is granted."
In accordance with this court's directive, an evidentiary hearing was held on March 21, 1977, in the Meeker County District Court. Following that hearing, the court concluded that defendant's inculpatory statements were made of his own free will and uninfluenced by his incarceration.
Defendant now again appeals the conviction, seeking review in light of the new evidence heard in the district court.
The issue before the court in this second appeal is whether the statements made by defendant should be excluded as the fruit of an illegal arrest so as to require a new trial, or whether those inculpatory statements were sufficiently an act of his independent free will so as to purge them of the primary taint of his illegal detention and so justify the prior conviction. We reverse and remand for a new trial.
In the original appeal of this case, State v. Weekes, supra, this court has substantially set forth the circumstances surrounding the death of Michael Biel, and there is no need to repeat those facts here. For purposes of this appeal it is necessary to set out the facts of the investigations and interrogations of defendant, his illegal arrest, and the facts surrounding the making of his inculpatory statements.
On Wednesday, April 24, 1974, the date of Michael Biel's death, the police conducted an initial investigation and questioned defendant at the Litchfield police station. Miranda warnings were read to defendant at this time. Defendant waived his constitutional rights and denied any knowledge of what might have happened to Michael Biel to cause his death. Defendant was then allowed to leave and went to his parents' home in South Haven, Minnesota.
Defendant was not contacted by law-enforcement officials again until the morning of Thursday, May 2, 1974. On that date, defendant was at the home of Katherine Weekes[1] in Litchfield where they were packing Katherine's things so that she could join defendant at South Haven.
As they were loading the car, Deputy Sheriff Russell Dibb came to the home and informed defendant that Sheriff John Rogers wanted to talk to him concerning Michael Biel's death. Defendant testified that he believed he had no choice but to go with *707 Officer Dibb. The sheriff, however, testified that he had previously spoken with Katherine Weekes about the possibility of having defendant come down to the sheriff's office for another interview. When he learned that appellant was in Litchfield, the sheriff asked Officer Dibb to bring defendant to his office. Defendant was neither searched nor handcuffed before he rode with the deputy to the sheriff's office.
At 11 a. m. that day, Sheriff Rogers interviewed defendant in his office in the presence of Mary Kalkbrenner, the sheriff's secretary. After advising him of his Miranda rights, the sheriff questioned him about Michael Biel, whom defendant denied harming in any way. The sheriff also questioned defendant about his medical history. Sheriff Rogers had been acquainted with defendant for some time and was aware of the fact that he had a history of seizures and blackouts which had occasionally required hospitalization. Defendant stated that he had such a seizure several weeks before the death of the child, but there was no claim that defendant had any such seizure immediately prior to the incident in question.
Sheriff Rogers and defendant additionally discussed at this time whether he would consent to taking a lie detector test. Defendant agreed to take the test and the sheriff then explained to him that he would have to remain at the county jail until the test could be scheduled. Defendant was later informed that the test could not be given until Monday, May 6, 1974.
Sheriff Rogers testified that his decision to detain defendant was two-fold. First, he wanted to hold him for investigation in connection with the child's death. Secondly, he stated that he was concerned about the defendant's seizure problem. When questioned further about this, Sheriff Rogers admitted that incarceration for a medical problem was probably not the best approach to this situation and stated that perhaps hospitalization, or at least a medical examination would have been more appropriate.
Defendant was photographed and fingerprinted. He was then placed alone in a single cell, isolated from any other prisoners. When asked if he felt that incarceration in a one-man cell might aggravate defendant's condition, the sheriff responded that he "never gave it that much thought," but that this was the reason he and others kept a close watch on defendant.
The sheriff stated that he brought the defendant many of his meals and also came to his cell on several other occasions as well to check on him. Defendant testified that on these occasions when the sheriff came to his cell, he would stay and talk, asking him questions about Michael's death.
At about 3:15 p. m. that same afternoon, defendant was taken from his cell and interrogated by agents John Barry and Les Loch of the Bureau of Criminal Apprehension. After reading Miranda rights to defendant, agent Barry questioned him about the child's death and about defendant's medical history. Defendant continued to deny any wrongdoing and the questioning was ended at around 4:15 p. m.
That same day, Katherine Weekes and Dolly Weekes, defendant's mother, learned that defendant was in jail and went there to see him. Both were denied admission.
Sheriff Rogers stated that their appearance at the jail did not coincide with the officially scheduled visiting hours. That night, Katherine Weekes went to the jail and talked with defendant from the street through the open window of his ground-level jail cell. Sheriff Rogers stated that he was aware of this unauthorized visit, but did nothing to prevent the two from talking. The two talked for only a few minutes.
Defendant made no phone calls and did not appear in court or consult with an attorney during his first day of incarceration.
According to the sheriff, visiting hours in his jail are Tuesdays and Fridays from 2 to 4 o'clock in the afternoon. Doctors, clergymen, and attorneys are allowed at almost any time, however. Katherine Weekes testified that she tried to visit appellant again *708 on Friday, May 3, 1974, because she was told of these visiting hours. She was again denied admission. That same day, Robert Wells, who was married to defendant's sister, and Reverend Rolland Reed, pastor of the Faith Baptist Church of Anoka, drove to the Litchfield jail to visit defendant. The sheriff told Mr. Wells that he would not allow him to visit. Rev. Reed, however, was allowed to visit the defendant from 30 to 45 minutes. Rev. Reed has a doctorate in clinical psychology and at the remand hearing was allowed to testify as to his opinion of defendant's mental and emotional state. He stated that defendant did not seem to have a clear understanding of his situation. He described defendant's condition as disassociation reaction psychosis and opined that defendant's incarceration contributed to this highly emotional state of mind. The trial judge, in his findings, stated he was largely unimpressed with Rev. Reed's testimony.
During this second day of incarceration, Sheriff Rogers formally interrogated defendant once again. Defendant was given his Miranda rights, and he agreed to talk to the sheriff. Once again he maintained that he had nothing to do with the death of Michael Biel.
After dark that evening, Katherine Weekes again talked to defendant through his jail cell window. She stated that he was upset and crying and told her that the sheriff had been at his cell talking to him all day and that he felt pressured by him. He stated that he did not like talking to Sheriff Rogers, but that if he had to talk to anyone, he would rather talk to Agent Barry of the Bureau of Criminal Apprehension. Both Katherine Weekes and defendant testified that defendant did not ask to see Agent Barry. Nevertheless, Katherine Weekes called Agent Barry that night and asked him to go and talk to defendant. She stated that she had called Barry because she felt defendant needed someone to talk to because he seemed so upset, and they would not let her in to talk to him. After calling Barry, she returned to the jail window to tell defendant what she had done. Defendant testified that he was upset that she called Agent Barry, but told her not to worry about it. He indicated that he said this because he did not want her to think he was mad at her.
After being contacted by Mrs. Weekes, Agent Barry then left his home to visit defendant in his cell. Defendant testified that when Barry came to his cell that night, he told him he did not want to talk with him. Agent Barry denies that defendant said this and testified only that the defendant stated he was confused and that he said he did not know if he were really guilty or not. Barry stated that he gave defendant his Miranda rights, and a lengthy interrogation ensued in which defendant ultimately made his inculpatory statements. From the time of his original confinement until the time of his ultimate confession, defendant had been incarcerated over 34 hours.
Defendant remained in his cell until the next morning, Saturday, May 4, 1974, when defendant appeared before the judge of county court for an initial appearance on a charge of manslaughter. That same morning, Katherine Weekes was allowed to visit defendant in his cell. In the afternoon, defendant signed a 21-page transcript of his confession taken by Agent Barry the previous night.
In State v. Weekes, supra, this court held that the arrest and detention of defendant in this case were clearly illegal and violated his Fourth Amendment rights (Minn., 250 N.W.2d 595). Quoting from Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), this court set forth factors to consider in order to determine whether the taint of an illegal arrest can be purged, rendering a confession during an illegal confinement admissible. Those factors are:
(1) Whether Miranda warnings were given;
(2) The temporal proximity of the arrest and the confession;
(3) The presence of any intervening circumstances;
(4) The purpose and flagrancy of the official misconduct;
*709 (5) The treatment of defendant while confined;
(6) His relationship with his interrogators; and
(7) His freedom of communication with persons other than law-enforcement officers.
No one factor provides a certain guide. One must balance all of these factors and attempt to determine whether the illegal arrest was a proximate contributing cause of the confession. In other words, the test by which we must review this case is whether defendant's statements were obtained by an exploitation of his illegal arrest, or whether the confession was an independent product of defendant's free will. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, supra.
It is essential to note that not only must a confession which is obtained after an illegal arrest be voluntary under the Fifth Amendment, it also must be free of the taint of Fourth Amendment violations. Voluntariness, then, is not the only factor this court must look for. The confession must be given independently of the primary illegality, such that the connection between the illegal arrest and the confession is sufficiently tenuous so as to purge that taint.
The evidence presented by the state was wholly inadequate to meet its burden of proving the confession admissible.[2] The admittedly proper Miranda warnings and lack of physical abuse do not support the trial court's findings in light of the overwhelming weight of the other factors which the trial court was required to consider.[3]
It is clear that the defendant's confession was the product of an illegal 34 hour confinement during which he was repeatedly questioned. Rather than attenuating the taint of the illegal arrest, the length of the confinement and the continued questioning compounded the illegality. In two cases cited approvingly by the majority in Brown v. Illinois, supra, confinements in excess of 40 hours did not serve to purge confessions of the taint of illegal arrests.[4] As stated in U. S. ex rel. Gockley v. Myers, 450 F.2d 232, 238 (3 Cir. 1971), certiorari denied, 404 U.S. 1063, 92 S.Ct. 738, 30 L.Ed.2d 732 (1972):
"* * * the wrong in this case, the `taint,' is not merely the illegality of the arrest but also the illegality of the continuing detention pursuant to the illegal arrest for the purpose of controlled, persistent and repeated questioning. * * *" 450 F.2d 238. (Italics supplied.)
No intervening circumstances occurred in this case which are generally recognized as sufficient to purge the taint of an illegal arrest. There was no appearance before a magistrate;[5] there was no release and subsequent voluntary return to confess;[6] there was no consultation with an attorney.[7] This is, in part, the result of an archaic system of court appointment of defense counsel. This case would never have come here had a full-time public defender been present to monitor admissions to the county jail.[8]
*710 Although defendant was reluctantly allowed to see a minister, Katherine Weekes, his mother, and defendant's brother-in-law were all denied admittance to the jail. The fact that Katherine Weekes was allowed to visit after the confession and at a time not set aside for visitors emphasizes the sheriff's determination to keep defendant from communicating with persons outside the jail until he confessed.
The most important factor in the determination that the confession was illegally obtained was the flagrant nature of the police action. In State v. Weekes, Minn., 250 N.W.2d 590, 594, we stated:
"* * * Assuming the sheriff's utmost good faith in his judgment that defendant should be confined for the `protection' of himself and others or held for `investigation,' it is nevertheless clear that defendant was taken into custody and confined without a warrant and without probable cause in violation of Fourth Amendment guarantees, for absent probable cause there is not and never has been any lawful basis for `holding' a person `for investigation' or `on suspicion.' Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); State v. Mitchell, 285 Minn. 153, 172 N.W.2d 66 (1969). Indeed this is the very essence of the protection afforded by the Fourth Amendment freedom of `[t]he right of the people to be secure in their persons' against unreasonable seizures of both physical and verbal evidence which may be used in a criminal prosecution. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)."
This factor was examined at length by Mr. Justice Powell in his concurring opinion in Brown v. Illinois, 422 U.S. 590, 610, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416, 431, in which he stated:
"I would require the clearest indication of attenuation in cases in which official conduct was flagrantly abusive of Fourth Amendment rights. If, for example, the factors relied on by the police in determining to make the arrest were so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or if the evidence clearly suggested that the arrest was effectuated as a pretext for collateral objectives, * * * or the physical circumstances of the arrest unnecessarily intrusive on personal privacy, I would consider the equalizing potential of Miranda warnings rarely sufficient to dissipate the taint. In such cases the deterrent value of the exclusionary rule is most likely to be effective, and the corresponding mandate to preserve judicial integrity, * * * most clearly demands that the fruits of official misconduct be denied. I thus would require some demonstrably effective break in the chain of events leading from the illegal arrest to the statement, such as actual consultation with counsel or the accused's presentation before a magistrate for a determination of probable cause, before the taint can be deemed removed * * *."
The Fourth Amendment violations which occurred here were not merely technical, because the sheriff's explanations reveal no probable cause for the illegal arrest and detention.
One major purpose for the exclusionary rule is deterrence of illegal police conduct by removing incentives to the illegality. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Were we to affirm the trial court the effect would be to render admissible any confession made after an illegal detention where police conduct falls short of overt physical brutality. To say, as does the state, that the defendant's confession was the result of remorse is merely to say that his will was overcome by the confinement. Affirmance would serve to encourage police disregard of constitutional procedures, to encourage exploitation of illegal confinements, and to increase public cynicism about law enforcement agencies.
Law and order require the police as well as citizens to refrain from illegal activities. While we in no way condone the acts committed *711 by defendant, the police failure to abide by constitutional restraints mandates a reversal in this case. The confession must be excluded in any retrial.
Reversed and remanded.
IRVING C. IVERSON, Justice[*] (dissenting).
I respectfully dissent from the opinion of the majority.
This court concluded in the initial appeal of this case, State v. Weekes, Minn., 250 N.W.2d 590, 595 (1977), that
"* * * [s]hould the trial court, after a rehearing, find that defendant's statements were an intervening, independent product of his free will so as to dissipate the taint of his illegal detention and confinement, his conviction is affirmed; otherwise, a new trial is granted."
It is fundamental that upon an appeal from the findings of fact, conclusions of law, and judgment of a trial court, the findings of the trial court will not be set aside by the appellate court unless the findings of the trial court are clearly erroneous. This basic principle is religiously followed by the courts as well when consideration is given to the reversal of a jury verdict. The rationale of the principle is based upon the commonsense realization by appellate courts that the trial judge or the jury as trier of fact is in a better position to evaluate the testimony of witnesses than the appellate court where the review of testimony and other evidence is made on the basis of a "cold, written record."
The majority opinion in no respect discloses any departure by the trial judge from the "guidelines" set forth in the initial appeal and remand in the trial court's conduct at the remand hearing.
The lengthy incarceration following the illegal arrest, we must all condemn. The majority opinion stresses the fact that the mother of the deceased child as well as the brother-in-law of the defendant were denied visitation with the defendant. This should not be of much moment. Having in mind that at the time of the incarceration neither of those visitors were related to the defendant, their exclusion from visitation was no doubt justified. Reasonable restrictions on visitation by nonrelatives would seem appropriate. This would be particularly appropriate here where the deceased infant's mother, unrelated to defendant at the time, sought visitation with defendant, the prime suspect in the case.
The length of the incarceration (34 hours) appears to be the sole factor which the majority finds as a basis for its reversal and the granting of a new trial. All of the other factors explored by the trial judge at the rehearing led to the conclusion by the trial court that the "taint of the illegal detention" had been purged.
If the findings of the trial court are to be summarily reversed upon that sole ground, the court in the opinion of the dissent should have reversed the conviction at the time of the initial appeal and granted a new trial.
The trial court's findings, under the guidelines laid down in the initial opinion of this court, having been scrupulously adhered to, and with the added advantage of having the witnesses before it for proper evaluation, should be affirmed and the conviction should be allowed to stand.
PETERSON, Justice (dissenting).
I join in the dissent of IVERSON, J.
NOTES
[1] At the time of these events, Katherine Weekes was known by her maiden name, Katherine Biel, the mother of the deceased child, Michael Biel. Katherine and defendant were married on July 29, 1974.
[2] Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416, 427 (1975); State v. Weekes, Minn., 250 N.W.2d 590, 595 (1977).
[3] Although it is admitted that the police committed no brutal or physically coercive acts, the United States Supreme Court has clearly recognized the "compulsion inherent in custodial surroundings." Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694, 714 (1966). The evidence presented to the trial court presents a pattern of constant pressure and interrogation by the police.
[4] Hale v. Henderson, 485 F.2d 266 (6 Cir. 1973), certiorari denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974); United States ex rel. Gockley v. Myers, 450 F.2d 232 (3 Cir. 1971), certiorari denied, 404 U.S. 1063, 92 S.Ct. 738, 30 L.Ed.2d 752 (1972).
[5] Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 1626, 32 L.Ed.2d 152, 161 (1972).
[6] Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
[7] Commonwealth of Pennsylvania v. Maroney, 348 F.2d 22 (3 Cir. 1965).
[8] Defendant apparently believed that a member of the county attorney's staff would be appointed to represent him. We note that this is only one of two districts in the state where judges have elected not to have a public defender.
[*] Acting as Justice of the Supreme Court by appointment pursuant to Minn.Const. art. 6; § 2, and Minn.St. 2.724, subd. 2.
|
651 So.2d 641 (1993)
Charles Lee BURTON
v.
STATE.
CR-91-1185.
Court of Criminal Appeals of Alabama.
December 30, 1993.
Rehearing Denied March 4, 1994.
*643 William J. Willingham, Talladega, and Larry Morris, Alpine, for appellant.
James H. Evans, Atty. Gen., and Robin Blevins and Kenneth Nunnelly, Asst. Attys. Gen., for appellee.
TAYLOR, Judge.
The appellant, Charles Lee Burton, was convicted of murder made capital because it was committed during the course of a robbery in the first degree. § 13A-5-40(a)(2), Code of Alabama 1975. The jury unanimously voted for the death penalty. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.
The state's evidence tended to show that on August 16, 1991, six menthe appellant, Derrick DeBruce,[1] Deon Long, LuJuan *644 McCants, Willie Brantley, and Andre Jonesrobbed the occupants of the Auto Zone automobile parts store in Talladega, Alabama. During the course of the robbery, a customer, Doug Battle, was shot. He died as a result of a gunshot wound to the lower back, which pierced his chest. The trigger man was Derrick DeBruce.
The manager of the store, Larry McCardle, was at the cash register when an individual he identified as the appellant entered the store, purchased some items, and asked him for the location of the restroom. McCardle testified that at this time another customer, whom he identified as DeBruce, was in the store. After the appellant started walking to the restroom, DeBruce pulled a gun and told everyone in the store to get on the floor. At this point, the appellant grabbed McCardle, pointed a gun at him and told him to take him to the safe. McCardle complied. Moments later McCardle heard yelling and gunshots.
One of the appellant's codefendant's, LuJuan McCants, testified that the six men involved in the robbery were at Barbara Spencer's[2] house in Montgomery on April 16 talking about committing a robbery. He said that Deon Long, Charles Burton, and Derrick DeBruce left the Spencer house to get some guns. They agreed to meet at the appellant's house. They left the appellant's house in two cars and headed toward Birmingham. They exited the interstate at Sylacauga and proceeded to Talladega. In Talladega, they went to a carwash and discussed robbing the Auto Zone store. They left one car at the carwash and they all proceeded in the other car to the Auto Zone.
McCants testified that the appellant organized the criminal activity and that he told the others what to do during the robbery. The appellant told McCants and Long to watch the door and told them that if he left the store that they should forget the robbery plans. McCants testified that the appellant also told them that if anyone caused any trouble in the store to let him handle the situation. McCants also testified that everyone who went into the store had a gun except Deon Long. McCants said that they forced everyone in the store to get on the floor and that they then took their valuables. The victim, Battle, walked in while the robbery was in progress and McCants told him to get on the floor. Battle was having some difficulty getting on the floor and an argument ensued between DeBruce and Battle. DeBruce hit Battle and he fell to the ground. DeBruce then shot Battle in the back while he was lying face-down on the floor. McCants testified that all of the robbers had either left the store or were about to leave when DeBruce shot Battle. He said that the appellant was among those who had already left the store at the time of the shooting. After all six left the store, they jumped in their car, picked up the other car at the carwash where they had left it, went to Barbara Spencer's house and divided the money.
A forensic examination of the Auto Zone store revealed 17 of the appellant's fingerprints. These prints were found on the items that McCardle had said that the appellant purchased before the robbery and on various other items in the store.
Barbara Spencer testified that before the robbery, the six men had been at her house discussing how to commit a robbery. She said that they left her house in separate cars and that the appellant and Derrick DeBruce were riding together. She testified that they returned to her house later and appeared to be upset. They had a large amount of money and the appellant was telling the others how to divide it. Spencer said that they gave her $100 but that she gave the money to McCants.
The appellant raises many issues on appeal. A majority of the issues raised by the appellant were not brought to the attention of the trial court. However, because this case involves the death penalty, this court is obliged, under Rule 45A, A.R.App.P., to search the record for plain error.
"In all cases in which the death penalty has been imposed, the court of criminal appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of *645 the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
Rule 45A, A.R.App.P. "[T]he plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United State v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982).
I
The appellant initially argues that the trial court erred in denying his motion for a change of venue. He contends that because of the extensive pretrial publicity he was unable to obtain a fair trial in Talladega County.
"In order to meet the burden of showing the necessity for a change of venue due to pretrial publicity on the grounds of community saturation, the appellant must show more than the fact `that a case generates even widespread publicity.'" Oryang v. State, 642 So.2d 979, 983 (Ala.Cr.App.1993).
"Newspaper articles alone would not necessitate a change in venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible. Patten v. State, 246 Ala. 639, 21 So.2d 844 [1945]."
Thompson v. State, 581 So.2d 1216, 1233 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).
This court has stated that "the appropriate method to establish the existence of adverse publicity or actual prejudice is through voir dire examination of potential jurors." Hart v. State, 612 So.2d 520, 527 (Ala.Cr.App.), aff'd, 612 So.2d 536 (Ala.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993).
In this case the court questioned the prospective jurors in groups of 15.[3] At least one-half of the members of each group were at least aware of the facts surrounding the robbery and murder. Each veniremember who had heard anything about the case was individually questioned. The majority of the prospective jurors could not cite any specifics concerning the murder. All but one said that what they had heard would not affect their ability to decide the case impartially upon the evidence presented at trial. The one prospective juror who did respond that she had been biased by what she had heard was excused for cause. The appellant has failed to show that the venire was so tainted that he was unable to obtain a fair trial.
The Supreme Court, in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961), explained:
"To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."
Jurors are not required to be "totally ignorant of the facts and issues involved." Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975).
"[T]he determination of whether or not to grant a motion for a change of venue is generally left to the sound discretion of the trial judge, because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial." *646 Nelson v. State, 440 So.2d 1130, 1132 (Ala.Cr. App.1983). See also Trahan v. State, 450 So.2d 1102 (Ala.Cr.App.1984). The trial court committed no error in denying appellant's motion for a change of venue.
II
The appellant next contends that the trial court erred in holding a hearing on pre-trial motions in his absence. He contends that this action denied him his constitutional right to a fair trial. The appellant did not object to the court's holding of the hearing without him present. Thus we must determine whether plain error exists.
It appears from the record that motions on behalf of one of the appellant's co-defendant, DeBruce, were also argued at this pre-trial hearing. The motion hearing was brief and concerned certain evidentiary questions. Defense counsel discussed obtaining a videotape of an initial appearance hearing and requested an investigator, a pre-sentence expert, and information on the criminal backgrounds of McCants, Long, and Barbara Spencer. Defense counsel also asked the state if co-defendants McCants and Long had been offered life in prison in exchange for their testimony. No testimony was taken at this hearing. The hearing concerned only evidence that defense counsel wished to obtain from the state.
Judge Bowen addressed this very issue in his opinion affirming DeBruce's conviction and sentence. Judge Bowen stated:
"In Harris v. State, [Ms. 3 Div. 332, June 12, 1992] [632] So.2d [503, 512] (Ala. Cr.App.1992), this Court held that in a capital case, `if the appellant's presence, in the present case, would have been useless to her defense and if the [pretrial] hearing was not considered to be a "critical stage" of her trial, then we can find no error in the appellant's absence from the hearing.' Here, as in Harris, `[t]he appellant has been unable to suggest or demonstrate any possibility of prejudice resulting from [his] absence.' Id.
"Furthermore, although the case of Ex parte Stout, 547 So.2d 901 (Ala.1989), was a noncapital case, we find it relevant to the extent that, if error were committed in this case, that error was harmless.
"`Violations of some constitutional rights may be considered harmless error....
"`Moreover even improper exclusion of a defendant from a `critical' portion of the trial does not automatically require reversal, if in the particular case the defendant's absence was harmless beyond a reasonable doubt.'"
`Polizzi v. United States, 550 F.2d 1133, 1138 (9th Cir.1976).'
"Stout, 547 So.2d at 904. Although this Court is extremely reluctant to make a finding of harmless error in any case in which the death penalty has been imposed, here it is clear beyond any reasonable doubt that the appellant's absence at the pretrial hearing on various legal motions in no way prejudiced him. Here, as in Ex parte King, 564 So.2d 928, 931 (Ala.1990), the `hearing necessitated only arguments of law.'"
DeBruce v. State, 651 So.2d 599, 620 (Ala.Cr. App.1993). For the reasons discussed in DeBruce, we find no plain error here.
III
The appellant next argues that the trial court erred by failing to strike for cause two members of the jury venire based on their acquaintance with witnesses and people who were in the store when the robbery occurred. The appellant does not argue that either veniremember came within any ground for a challenge for cause contained in § 12-16-150, Code of Alabama 1975. Regarding this statutory grounds for challenge for cause, this court has said:
"While these grounds are not exclusive, a nonstatutory ground should be a matter which indicates probable prejudice, Ex parte Cochran, 500 So.2d 1179 (Ala.1985), or indicates that `a prospective juror's opinion or bias is so fixed that he or she could not ignore it and try the case fairly and impartially according to the law and the evidence.' Ex parte Rutledge, 523 So.2d 1118, 1120 (Ala.1988)."
Fisher v. State, 587 So.2d 1027, 1034 (Ala.Cr. App.), cert. denied, 587 So.2d 1039 (Ala.1991), *647 cert. denied, 503 U.S. 941, 112 S.Ct. 1486, 117 L.Ed.2d 628 (1992).
During voir dire, prospective juror V.S. told the court that he had spoken with Larry McCardle about the robbery several days after it occurred. McCardle told V.S. "how it felt to have a gun held to his head." However, V.S. stated that his conversation with McCardle was "in a group" and that he and McCardle were "just acquaintances." V.S. further stated that he had not formed an opinion as to the guilt or innocence of the appellant and that he would not be influenced by what McCardle has told him.
Prospective juror C.B. stated to the court that Tim Calhoun, an employee who was working at Auto Zone on the day of the robbery, was a friend of her daughter's boyfriend. C.B.'s daughter and her daughter's boyfriend went to the emergency room with Calhoun the night of the robbery and subsequently stayed at home with him. C.B. further stated that she had not formed any opinion in the case and that she could judge the case from the facts presented from the witnesses and the evidence presented and not be influenced by anything she had previously heard.
"To justify a challenge of a juror for cause there must be a statutory ground (Ala.Code Section 12-16-150 (1975)), or some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."
Nettles v. State, 435 So.2d 146, 149 (Ala.Cr. App.), aff'd, 435 So.2d 151 (Ala.1983).
Because there was no statutory ground for eliminating the two prospective jurors, an "absolute bias" must have existed.
"Ultimately, the test to be applied is whether the juror can set aside her opinions and try the case fairly and impartially, according to the law and the evidence. Tidmore v. City of Birmingham, 356 So.2d 231 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.), cert. denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 132 (1978); see Willingham v. State, 262 Ala. 550, 80 So.2d 280 (1955); Mahan v. State, 508 So.2d 1180 (Ala.Cr.App.1986). This determination again is to be based on the juror's answers and demeanor and is within the discretion of the trial judge. Thus, a prospective juror should not be disqualified for prejudices or biases if it appears from his or her answers and demeanor that the influence of those prejudices and biases can be eliminated and a verdict rendered according to the evidence."
Knop v. McCain, 561 So.2d 229, 232 (Ala. 1989); Mann v. State, 581 So.2d 22, 25 (Ala. Cr.App.1991).
The two prospective juror responses showed that they had no "absolute bias." The trial court committed no error in refusing to excuse these two prospective jurors for cause.
IV
The appellant, who is black, also argues that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. The United States Supreme Court in Batson held that the Equal Protection Clause prohibits the removal of blacks from a black defendant's jury solely on the basis of their race. This ruling was later extended to white defendants in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), and to civil litigants in Edmondson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The jury selection standards in Batson have also been applied to defense counsel. Georgia v. McCollum, ___ U.S. ___, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Lemley v. State, 599 So.2d 64 (Ala. Cr.App.1992). Recently the Alabama Supreme Court held that the protections of Batson apply to the striking of white prospective jurors. White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So.2d 657 (Ala.1993).
The party making the Batson objection must first establish a prima facie case of discrimination. Here, the prosecutor used 6 of his 14 peremptory strikes to remove 6 of the 12 blacks in the jury venire. After jury selection was complete, defense counsel made a Batson motion. The trial court, without specifically finding that the appellant had established a prima facie case of racial discrimination[4], *648 requested that the state give its reasons for striking black members of the jury venire.
"Once the prosecution responds to a Batson motion and offers race-neutral explanations for its peremptory challenges, the issue of whether a prima facie showing of intentional discrimination was made by the appellant becomes moot. Hernandez v. New York, [500] U.S. [352], 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). This court has also concluded that where the trial court has made no express finding of a prima facie case of intentional discrimination, but the prosecution nonetheless explains its peremptory challenges, then such a finding will be implied and we will proceed directly to the evaluation of the prosecutor's explanations. Williams v. State, 548 So.2d 501 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989); Currin v. State, 535 So.2d 221 (Ala. Cr.App.), cert. denied, 535 So.2d 225 (Ala. 1988)."
Hart v. State, 612 So.2d at 523-24. Therefore, this court will not consider the question of whether defense counsel established a prima facie case of discrimination. We will proceed directly to review the reasons given by the prosecutor. Hart.
The prosecutor gave the following reasons for striking the black prospective jurors:
1. Prospective juror 23She indicated during voir dire that she was opposed to the death penalty. She also answered on voir dire that her niece had been charged with writing bad checks.
2. Prospective juror 38This juror had prior misdemeanor convictions. He also had three contempt attachments for child support. He also answered on voir dire that the district attorney had prosecuted one of his family members.
3. Prospective juror 75She had served on two prior juries in the past. She answered during voir dire that she was related to someone who had a prior conviction. "What she didn't answer up to is that R.H.and Sabrina Hall, who is a black female who is the victim service officer in my office, came up and told me that R.H. and K.H. are brothers.... We've prosecuted and convicted [K.H.] on a crack sale, and even after jury trial, which is almost unheard of, he was placed on probation. And then caught again with crack within the last two or three weeks."
4. Prospective juror 71"Archie McNeal says thathe is a black deputy in the south end of Talladega County, said that she has real bad feelings towards Talladega County and towards law enforcement, that D.P. is related to her. A deputy by the name of JohnnyDonnie Green couple of years ago in trying to stop him for speeding, Donnie Green, the deputy, said that he shot at the tire of the car. The bullet actually entered the car and hit him, talking about Doug Powell, in the leg. There is a lawsuit that wasthat was filed in that matter, in that matter, against Talladega County. And I think that lawsuit may still be pending, but he said that she would not be a good juror. She did not like law enforcement and had bad feelings towards the county and the sheriff's department."
5. Prospective juror 88This juror was struck based on information from Frank Strickland that this juror had prior arrests. Strickland told the prosecutor that he had to serve warrants on him in the past.
The appellant does not challenge the use of one of the state's peremptory strikes against juror number 59, a black venireperson, who stated that the state was currently prosecuting someone related to her. However, this court has held this a race-neutral reason for striking a prospective juror. Leonard v. State, 551 So.2d 1143 (Ala.Cr. App.1989); Powell v. State, 548 So.2d 590 (Ala.Cr.App.1988), aff'd, 548 So.2d 605 (Ala. 1989). This was also the reason given for striking prospective juror 75. Thus, the striking of prospective juror 75 was also race-neutral.
*649 The appellant first challenges the state's striking of juror number 23. Upon review of the record, we find that that juror did indeed state that she was opposed to the death penalty. A veniremember's expression of reservations concerning the death penalty may be a valid race-neutral reasons for striking a prospective juror. Fisher, 587 So.2d at 1036. We find that the striking of juror number 23 did not violate Batson.
The main reason that the appellant challenges the striking of the prospective jurors is that the reasons given for striking several of the jurors were based on information from law enforcement that these individuals had been convicted or had relatives involved in illegal activities. We realize that strikes based primarily on reasons provided by law enforcement have in the past presented problems, Ex parte Thomas, 601 So.2d 56 (Ala. 1992), Walker v. State, 611 So.2d 1133 (Ala. Cr.App.1992). However, we find no Batson violation here.
As this court stated in Naismith v. State, 615 So.2d 1323 (Ala.Cr.App.1993):
"In Walker v. State, 611 So.2d 1133, 1140 (Ala.Cr.App.1992), this Court held that `[a] prosecutor cannot simply presume, without further questioning to "dispel any doubt," that a veniremember, who is under oath, did not answer a question truthfully merely because the prosecutor has hearsay evidence to the contrary.' In Williams v. State, [Ms. 90-557, November 13, 1992] [620] So.2d [82, 85] (Ala.Cr.App.1992), this Court held that `the reason given for striking prospective juror number 24, because a narcotics officer had informed the district attorney's office that he `knew this juror through his drug work,'" without saying more, is not a sufficient ground for a strike, and so is not considered to be a race neutral reason.' Both Walker and Williams support the principle that a prosecutor, in exercising a peremptory strike, may not always rely on hearsay information obtained from a law enforcement officer.
"Here, the information from the police department was that the particular veniremember had either been arrested or convicted, so that the information obtained from the police department is not susceptible to the same objection as that obtained in Walker....
"In Jones v. State, 611 So.2d 466 (Ala. Cr.App.1992), this Court addressed a factual situation very similar to that presented here and held that `[u]nder the circumstances presented here, the prosecutor's strike of veniremember # 14 on the ground that the sheriff's department had had "drug problems" with that person was racially-neutral.
"`Our holding in Walker does not apply here because in this case the prosecutor had information from the sheriff's department concerning the basis for each peremptory strike and because the prosecutor did not "simply presume, without further questioning to `dispel and doubt,' that a veniremember who is under oath, did not answer a question truthfully merely because the prosecutor has hearsay evidence to the contrary." Walker, supra.
"`Here, the prosecutor did not exercise a "same name" strike. There is no indication that the sheriff's department was having drug problems with someone named "Carter" as opposed to this particular veniremember. Here, there was more than the "mere suspicion" of relationship. See Ex parte Bird, 594 So.2d 676, 683 (Ala.1991). (a "prosecutor's self-imposed ignorance [should not] preclude a Batson claim." Id. quoting Note, Batson v. Kentucky and the Prosecutorial Peremptory Challenge: Arbitrary and Capricious Equal Protection, 74 Va.L.Rev. 811, 827 (1988)). Compare Smith v. State, 590 So.2d 388, 390 (Ala. Cr.App.1991) (wherein the court, in holding that the defendant may not cross-examine jurors or go behind the prosecutor's information to determine if such information was true, stated that a "prosecutor may strike from mistake, as long as the assumptions involved are based on an honest belief and are racially neutral").'
"Jones, 611 So.2d at 470."
*650 615 So.2d at 1326. (Emphasis in original.) Cf. Williams v. State, 620 So.2d 82 (Ala.Cr. App.1992).
Here, the reasons given by the prosecution were not based on hunches but were based on very specific reasons related to them by named law enforcement officials. We find no violation of Ex parte Thomas or of Walker. Striking a person with a prior conviction is a race-neutral reason. Leonard, supra. Also, striking a prospective juror because he or she has relatives who have prior convictions is a race-neutral reason and does not violate Batson. Leonard.
The prosecutor also gave a separate reason for striking prospective jurors 38 and 75 that was unquestionably race-neutral. They answered on voir dire that they had relatives with prior convictions.
We will reverse a trial court's ruling on a Batson motion only "[i]f that determination is clearly erroneous." Hart, 612 So.2d at 525. The court's ruling was not clearly erroneous here.
V
The appellant argues that the search warrant authorizing the search of Derrick DeBruce's car was vague and overbroad and that, therefore, the gun discovered as a result of the search should have been suppressed.
As this court stated in Williams v. State, 601 So.2d 1062 (Ala.Cr.App.1991):
"When a motion to suppress evidence in a criminal case is based on the ground that the evidence was obtained in violation of the Fourth Amendment, one issue is whether the movant has standing to assert the claim and to seek the remedy of exclusion. See LaFave, 4 Search and Seizure, § 11.3 (2d ed. 1987). The rights afforded protection by the Fourth Amendment are personal rights. See Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1967). To show that a party has standing to object to a search, the party must have a possessory interest in the premises searched. Rakas v. Illinois, 439 U.S. 128, [133-34], 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978)....
". . . .
"... It is up to the defendant to show that he has a `legitimate expectation of privacy' in the area searched. See Kaercher [v. State], 554 So.2d [1143] at 1148 [(Ala.Cr.App.1989), writ denied, 554 So.2d 1152 (Ala.1989)]. The factors to be considered in determining whether such expectation exists include whether he can exclude others from the place searched, whether he has exhibited a subjective expectation that the area would remain free from governmental invasion, and whether he took normal precautions to maintain his privacy."
Williams, 601 So.2d at 1070-71.
The appellant had no expectation of privacy in DeBruce's vehicle. Therefore, the appellant has no standing to challenge the search. We note that in DeBruce, this court upheld the validity of the search warrant.
VI
The appellant next argues that the trial court erred in allowing Larry McCardle to identify him as one of the robbers. Specifically, he contends that the identification was tainted because, he says, McCardle did not identify the appellant until after he had seen his picture in the newspaper. There was no objection to McCardle's identification of the appellant. Thus, we must determine whether plain error exists here.
Here, Larry McCardle testified that before the robbery the appellant purchased some items in the store and asked him where the restroom was located. McCardle said that the appellant then held a gun to him and forced him to take him to the safe. They were together several minutes. McCardle also testified that he identified the appellant before seeing any picture in the newspaper. He further stated that he had no doubt that the appellant was the robber who held a gun to him. There is no evidence that McCardle's identification of the appellant was tainted in any way. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). A similar issue was addressed and upheld in DeBruce, supra.
*651 VII
The appellant further contends that the prosecutors' actions in the guilt phase amounted to reversible error. First the appellant argues that the jury's findings were tainted because of, he said, the prosecutor used leading questions during LuJuan McCants's testimony. No objection was made at the time of McCants's testimony. Thus, we must review this issue under the plain error doctrine.
We have evaluated the two instances referred to in McCants's testimony. Each instance of leading questions was an attempt by the prosecutor to clarify testimony that had already been given by McCants. This did not affect the "substantial right[s] of the appellant." Rule 45, A.R.App.P.
The next complained-of instances concern statements made during the prosecutor's closing arguments. No objection was made at either instance cited by the appellant. "[T]he failure to object will weigh against any claim of prejudice." Ex parte Hart, 612 So.2d 536, 537 (Ala.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993); Madison v. State, 620 So.2d 62 (Ala. Cr.App.1992).
"`This court has concluded that the failure to object to improper prosecutorial arguments ... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful.' Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987)."
Kuenzel v. State, 577 So.2d 474, 489 (Ala.Cr. App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).
The appellant argues that the following comment made by the prosecutor in his closing argument was a statement of his personal opinion concerning the appellant's guilt.
"Even though a bunch of people were there. McCardle, several of the witnesses said, well, as far as beingI'm not positive on that. Only McCardle says `I'm positive on this one.' He probably wasn't looking at a tattoo. I've been in here in the courtroom with him for a week. I didn't notice the tattoo. If it is there today, if it was there on August 16th, I don't know. But I tell you this, I didn't notice it in the courtroom. But I sure wouldn't have noticed it with that right there pointing at me."
As the United States Supreme Court stated in Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986):
"[I]t `is not enough that the prosecutors' remarks were undesirable or even universally condemned.' The relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.' Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)."
(Citation omitted.)
We must evaluate the comment in the context of the entire proceedings.
"`Whatever is in evidence is considered subject to legitimate comment by counsel.' Bankhead v. State, 585 So.2d 97 (Ala.Cr. App.1989), aff'd, 585 So.2d 112 (Ala.1991). See also Ward v. State, 440 So.2d 1227 (Ala.Cr.App.1983). `The prosecutor has the right to present his impressions from the evidence. He may argue every matter of legitimate inference and may examine, collate, sift, and treat the evidence in his own way.' ... Donahoo v. State, 505 So.2d 1067, 1072 (Ala.Cr.App.1986)."
Williams, 601 So.2d at 1072-73. "`[C]ounsel in the trial of any lawsuit has the unbridled right (to be sure, duty) to argue the reasonable inferences from the evidence most favorable to his client.'" Kuenzel, 577 So.2d at 492, quoting Ex parte Ainsworth, 501 So.2d 1269, 1270 (Ala.1986). (Footnote omitted.) During the cross-examination of McCardle the defense asked him if the person holding a gun on him had any scars or tattoos. The comment made during closing was clearly based on the cross-examination of McCardle and was a legitimate inference from the evidence presented. "`Counsel for the state and defendant are allowed a rather wide latitude in drawing their deductions from the *652 evidence.'" Kuenzel, 577 So.2d at 493, quoting Arant v. State, 232 Ala. 275, 279, 167 So. 540, 543 (1936). No plain error exists here.
Next the appellant argues that in the following argument that the prosecutor stated facts not in evidence:
"I think the Judge will tell you that a person commits the crime of manslaughter if he recklessly causes the death of another person, and I submit to you that pointing a gun at somebody, hitting them in the back of the neck, knocking them down, pointing the gun at them, and loading it before you get in there and then pulling that trigger, there is nothing reckless about that, folks. That is an intentional act. You know when you load it. You know when you walk in there, and you know when you use it. And you know when you pull that trigger that you intended to do something."
We must view the argument in relation to the whole trial. Before making the above statement the prosecutor told the jury that the state "does not contend that the Defendant was actually the person that pulled the trigger on this occasion." The prosecutor then went on in his argument to discuss the concept of complicity and then made the above argument. The above comment was a comment on the law on which the court was going to instruct the jury. A prosecutor can argue his interpretation of the applicable law in his closing argument. Middleton v. State, 495 So.2d 726 (Ala.Cr. App.1986); Orr v. State, 462 So.2d 1013 (Ala. Cr.App.1984); Lewis v. State, 456 So.2d 413 (Ala.Cr.App.1984). "A trial judge may properly allow a district attorney to comment in his ... closing argument on the principles of conspiracy, aiding and abetting, and principal and accessory." Lewis, 456 So.2d at 416. No plain error occurred here.
The appellant further argues that the following argument impermissibly shifted the burden of proof to him.
"There is not one shred of evidence, ladies and gentlemen, that there wasn't a robbery in the first degree committed at the Auto Zone on Aprilon August 16, 1991, in Talladega County, Alabama. They were armed, they took property, they threatened force, and they caused serious physical injury. Not one shred of evidence will prove otherwise. There is not one shred of evidence to prove otherwise than that there was an intentional killing of a human being. There is not any legal defense to what was done to Doug Battle on that occasion. He didn't deserve to die."
Again, the above comment was a legitimate inference from the evidence presented. Williams, supra. No plain error occurred in the above comment made in closing argument.
Last, the appellant argues that the prosecutor attempted to portray LuJuan McCants as an "impressionable child." The prosecutor stated in closing that McCants was just 16 years old and was following the appellant, who was 41 years old at the time of the robbery-murder. Again this argument was a legitimate inference from the evidence presented. No plain error occurred here.
Furthermore, the court went to great lengths in its oral charge to instruct the jury that statements of counsel are not evidence.
VIII
The appellant next argues that the trial court erred in its instructions to the jury at the guilt phase. Initially we observe that after the court gave its charge to the jury, defense counsel announced that he was satisfied. Thus because no objections were made to any instructions, either those given or those not given by the trial court, this court must apply the plain error rule. Rule 45A, A.R.App.P.
We must view the entire instructions as a whole. "[T]he entire charge must be construed as a whole and ... the language of the charge must be given a reasonable construction, and not a strained and unreasonable one." Carroll v. State, 599 So.2d 1253, 1270 (Ala.Cr.App.1992), aff'd, 627 So.2d 874 (1993). See also Kuenzel, supra.
Initially, the appellant argues that the court's instruction on the element of intent was erroneous.
To be convicted and sentenced to death in Alabama, the individual must have a *653 "particularized intent to kill." Kennedy v. State, 472 So.2d 1092 (Ala.Cr.App.1984), aff'd, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). See also §§ 13A-2-23, 13A-5-40(a)(2), (b), (c), (d), 13A-6-2(a)(1), Code of Alabama 1975. The jury must be charged on specific intent. Kennedy.
Here the trial court gave the following instruction:
"This indictment charges the Defendant with a capital murder, being murder during robbery. If you are convinced beyond a reasonable doubt that the Defendant committed the crime of murder of the intentional killing type during a robbery in the first degree as alleged in the indictment, it would be your duty to find the Defendant guilty of a capital offense.
"The two components of a capital offense are robbery in the first degree and murder of the intentional killing type committed during the robbery in the first degree.
". . . .
"... Now, a defendant commits the crime of murder of the intentional killing type if, with intent to cause the death of another person, he causes the death of that person or another person. A person acts intentionally with respect to a result or to conduct when his purpose is to cause that result or to engage in that conduct.
"The Defendant must intentionally, as opposed to negligently, accidentally, or recklessly, cause the death of the deceased in order to invoke the capital offense. The fact that someone dies or is killed during the course of a robbery does not automatically provide that intent. The intent to kill must be real and specific in order to invoke the capital statute."
(Emphasis added.)
The court thoroughly instructed the jury on intent and gave the following instruction concerning complicity:
"Now, the following law of complicity would only apply relative to the intentional killing element of capital murder. If you find that a murder of the intentional killing type of Doug Battle was committed by some person or persons other than the Defendant, the Defendant is guilty of that intentional killing type of murder if, but only if, you find beyond a reasonable doubt either that the Defendant intentionally procured, induced, or caused the other person or persons to commit the crime or that the Defendant intentionally aided or abetted the other person or persons in the commission of the murder."
The trial court correctly charged the jury on the element of intent applicable to capital cases. No plain error occurred here.
IX
The appellant next argues that the trial court committed reversible error in failing to instruct the jury on the law relating to accomplice corroboration. § 12-21-222, Code of Alabama 1975. Again no objection was made to the lack of this instruction.
The appellant maintains that Barbara Spencer and LuJuan McCants were accomplices and that, therefore, any testimony by them had to be, according to law, corroborated. § 12-21-222.
From the record it is clear that Barbara Spencer was not an accomplice, as a matter of law. There was absolutely no evidence that she took part in any discussions concerning the robbery or the actual crime. She testified that she did receive $100 from the proceeds, which she said she gave to McCants. However, this action alone would not make her an accomplice. "An accomplice is defined as `"an associate in crime; a partner or partaker in guilt."' Darden v. State, 12 Ala.App. 165, 167, 68 So. 550, 551 (1915)." Jacks v. State, 364 So.2d 397, 401-402 (Ala. Cr.App.), cert. denied, 364 So.2d 406 (Ala. 1978).
McCants, however, freely admitted to participating in the crime and was clearly an accomplice to the robbery-murder. The court should have instructed the jury concerning the need for corroborative evidence of McCants's testimony. However, the failure to do so does not mean that this cause must automatically be reversed. Automatic reversal exists only when the error "necessarily render[s] a trial fundamentally unfair." Rose v. Clark, 478 U.S. 570, 3105, 106 S.Ct. *654 3101, 3106, 92 L.Ed.2d 460 (1986). Alabama has applied the harmless error analysis in a case involving the death penalty to the failure of the court to instruct the jury on the principle of accomplice corroboration. Gurley v. State, 639 So.2d 557 (Ala.Cr.App.1993); Frazier v. State, 562 So.2d 543, 558 (Ala.Cr. App.), rev'd on other grounds, 562 So.2d 560 (Ala.1989).
As Judge Bowen stated in Gurley:
"[T]he error of failing to instruct the jury on the need for corroborative evidence is harmless when the testimony of an accomplice has in fact been corroborated. Frazier v. State, 562 So.2d 543, 558 (Ala.Cr. App.), reversed on other grounds, 562 So.2d 560 (Ala.1989). Accord People v. Brunner, 797 P.2d 788, 790 (Colo.App. 1990); State v. Brown [187 Conn. 602], 447 A.2d 734, 740 (Conn.1982); Ali v. United States, 581 A.2d 368, 377-78 (D.C.App. 1990), cert. denied, 502 U.S. 893, 112 S.Ct. 259 [116 L.Ed.2d 213] (1991); Strong v. State [261 Md. 371], 275 A.2d 491, 495 (Md.1971), vacated on other grounds, 408 U.S. 939 [92 S.Ct. 2872, 33 L.Ed.2d 760] (1972); State v. England, 409 N.W.2d 262, 265 (Minn.App.1987).
"`Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice.' Andrews v. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979)....
"In Hood v. State, [598 So.2d 1022 (Ala. Cr.App.1991)] this Court observed:
"`The appellant ... insists that because the "for hire" element of the capital offense was not independently corroborated, the State did not establish a prima facie of capital murder. That is not the law in Alabama.
"`As early as 1867, our Supreme Court held that a charge requiring corroboration of "every material part" of an accomplices's testimony "went beyond the requirements of the statutory rule, or any rule recognized by the common law." Montgomery v. State, 40 Ala. 684, 688 (1867). More recently, in Ex parte Bell, 475 So.2d 609, 613 (Ala.1985), a capital case, the court held that Ala. Code 1975, § 12-21-222, "does not require corroborative testimony as to material elements of the crime; it only requires other evidence `tending to connect the defendant with the commission of the offense.'" See also Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979), wherein this court observed:
"`"The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. `Corroborate means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminating force of his testimony.'... Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice.'
"Hood v. State, 598 So.2d at 1024-25."
Gurley, 639 So.2d at 561-62. See also Solis v. State, 792 S.W.2d 95 (Tex.Cr.App.1990).
Here, there was absolutely no doubt that McCants's testimony was corroborated by other evidence presented at trial. No plain error exists here.
X
The appellant further argues that the trial court's reasonable doubt instruction was flawed because, he says, the court failed to define the phrase "to a moral certainty." The court gave the following instruction on reasonable doubt:
"Now, what is a reasonable doubt? When I say that the State is under the burden of proving guilt beyond a reasonable doubt and to a moral certainty, that does not mean that the State must prove an alleged crime beyond every imaginable or speculative doubt or beyond all possibility of mistake, because that would be impossible. A reasonable doubt means an actual doubt. Could arise out of the testimony in a case or it could arise from a lack of testimony in a case. It is a doubt for which a reason can be assigned, and the *655 expression `to a moral certainty' means practically the same thing as beyond a reasonable doubt. Because if you are convinced to the point where you no longer have a reasonable doubt, then you are convinced to a moral certainty."
This reasonable doubt instruction given by the court is similar to the instruction given in Smith v. State, 588 So.2d 561 (Ala.Cr.App. 1991), and found not to violate Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), and to be a permissible instruction on reasonable doubt.
XI
The appellant next argues that the trial court erred in instructing the jury that it had a duty to find the appellant guilty. However, this argument fails to look at the complete charge that was given to the jury. The court stated the following:
"This indictment charges the Defendant with a capital murder, being murder during robbery. If you are convinced beyond a reasonable doubt that the Defendant committed the crime of murder of the intentional killing type during a robbery in the first degree as alleged in the indictment, it would be your duty to find the Defendant guilty of a capital offense."
Initially, we observe that no objection was made to this instruction. Thus we apply the plain error rule. Rule 45A, A.R.App.P. This instruction was not erroneous. As Judge Bowen stated in Kuenzel:
"In a real sense, a jury does have the `duty' to convict the accused of the offense charged in the indictment if it finds the accused guilty of that offense beyond a reasonable doubt. `A jury is not empowered to waive the law or any of its rules its only power is to take the law of the case as given by the trial judge and apply it to the facts as developed on the trial. Out of this process comes the verdict.' Patterson v. State, 45 Ala.App. 229, 236, 228 So.2d 843, 849 (1969). `Admonition of the high and sacred duty resting upon juries by nisi prius judges should be encouraged rather than condemned.' Hope v. State, 21 Ala. App. 491, 492-93, 109 So. 521, 522 (1926). See also Dolan v. State, 81 Ala. 11, 16-17, 1 So. 707, 711 (1887). The trial judge did not violate the principle that `[c]ourts may instruct the jury as to the law of the case, but they may not instruct a jury as to what verdict they shall render in a criminal case on a given statement of facts.' Woodham v. State, 28 Ala.App. 62, 64, 178 So. 464, 466 (1938)."
577 So.2d at 517.
XII
The appellant next argues that the trial court erred in instructing the jury that a legal presumption existed against a witness who it felt testified falsely. The court gave the following instruction:
"Now, it is a duty of a jury to reconcile all of the testimony in the case, and to make it all speak the truth if you can do so. If you cannot, then, as a juror, you have the right to reject any portion that you believe to be untrue and consider only that which you believe to be true.
"In determining the truth of the testimony in the case, you have the right to do like you would in your ordinary affairs of life; that is, to use your common sense and everyday understanding.
"If you find that any witness in this case has willfully or corruptly testified falsely as to a material matter, then you have the right to take that into consideration in determining just what weight you will give that witness's testimony. If he or she has corruptly testified falsely to a particular material matter, then you have the right to disregard that witness's entire testimony. You have the right also to consider any bias, interest, friendship, or relationship or any other matter that might cause the witnesses to depart from the truth."
The appellant argues that this instruction informed the jury that they had to doubt all of the appellant's testimony if they disbelieved any part of it. We do not agree. This instruction was not a mandatory instruction that forced the jury to disregard any testimony presented at trial. The instruction was permissive and this court has found such instruction allowable. As stated in Crumpton *656 v. State, 402 So.2d 1081 (Ala.Cr.App.), cert. denied, 402 So.2d 1088 (Ala.1981):
"Appellant is correct that a falsus in uno charge requiring, instead of permitting, the jury to disbelieve a witness is error. See Lowe v. State, 88 Ala. 8, 7 So. 97 (1889); Watson v. State, 19 Ala.App. 267, 97 So. 118 (1923); Butler v. State, 16 Ala.App. 234, 77 So. 72 (1917). The charge must be phrased in permissive (`may disregard') rather than mandatory (`must disregard') terms."
402 So.2d at 1087. See also 4 A.L.R.2d 1077 (1949).
We have reviewed the instructions given by the court in the guilt phase in their entirety and find them both thorough and accurate.
XIII
The appellant next challenges the penalty phase of the proceedings. The appellant initially argues that the trial court interfered with his attorney-client relationship by calling two of his codefendants to the stand after his attorney had told the court that they could add nothing that would help the appellant in mitigation.
The record clearly shows that it was the appellant's wish to call these two witnesses. The court had a lengthy colloquy with the appellant concerning his desire to have his two codefendants testify at the penalty phase of the proceedings. The court, after talking with the appellant, complied with his wishes.
An attorney represents a criminal defendant and is obliged by Rule 1.2, Alabama Rules of Professional Conduct, to "abide by a client's decisions concerning the objectives of representation...." An attorney can only make recommendations to a client as to how to conduct his defense; the ultimate decision, however, lies with the client. There was no interference with the attorney-client relationship here, when the trial court was honoring the appellant's wishes.
The appellant also argues that by permitting the two codefendants to testify the trial court allowed collateral evidence to be received into evidence that did not relate to his sentence. The two codefendants were questioned about whether they had been at City National Bank in Sylacauga earlier on the day of the robbery-murder. Both witnesses denied knowing the appellant. The prosecution then asked about their being at the bank with the appellant on the same day as the murder. All of this evidence was admissible at the penalty phase. "Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence..." § 13A-5-45(d), Code of Alabama 1975. The evidence was relevant to show that the men were together on the day of the robbery-murder.
XIV
The appellant next argues that the prosecutor committed error in his closing argument in the penalty phase. Initially, we observe that no objection was made to this during trial. "[T]he failure to object will weigh against any claim of prejudice." Ex parte Hart, 612 So.2d at 537.
Initially, the appellant contends that the prosecutor argued facts not in evidence. Specifically, he argues that the prosecutor incorrectly stated that the appellant was the leader. However, this was an inference that could have been drawn from McCants's testimony. McCants testified that the appellant told the others what to do before they entered the Auto Zone. Any argument that the prosecutor made that was a legitimate inference that could have been drawn from testimony presented at trial is not error. Kuenzel, supra.
The appellant next contends that he was prejudiced by the prosecutor's argument concerning his history of criminal conduct. The appellant argues that the following argument presented nonstatutory aggravating factors for the jury to consider.
"The mitigating circumstances, I would like to go over each of those with you because it's [sic] matters for y'all to consider. The mitigating circumstances, but they are not limited to just these. And there will be another Code section. They *657 are limited to anything that this jury wishes to consider relative to character or other matters. Number one, the defendant has no significant history of prior criminal activity. The State is allowed to introduce into evidence documents, and you have heard the witnesses. And I know it took a long time, but we have to prove that this man is the same man that was convicted in these cases that go back to 1970 or 1971....
"So, I would submit to you that the Defendant in this particular case does not have that.... He has a significant history of criminal activity. So, he would not meet that first mitigating circumstance that says the defendant has no significant history of prior criminal activity when, in fact, he's got, I submit to you, a substantial record. And, in fact, going back probably 20 years of criminal activity.
". . . .
"Six, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Impaired by some mental defect or something like that. There is no evidence to that. And certainly if anybody knows the criminal justice system and the criminal laws, it is the defendant. Because he certainly had plenty of experience with the court system and plenty experience with the police and criminal justice system."
(Emphasis added.) This was not an inappropriate argument. The prosecutor was going down the list of statutory mitigating circumstances. This court in McWilliams v. State, 640 So.2d 982 (Ala.Cr.App.1991), aff'd in part, remanded on other grounds, 640 So.2d 1015 (Ala.1993), found that the prosecutor did not err when during his closing argument he went down the list of statutory mitigating circumstances and argued that none applied.
The appellant also argues that the prosecutor incorrectly stated that the jury was not to let sympathy affect its decision to vote for death or life imprisonment without parole. "A prosecutor's argument `in telling the jury not to let sympathy, emotions, or compassion affect its decision ... did not result in any error.'" DeBruce, 651 So.2d at 613; quoting Stewart v. State, 601 So.2d 491, 506 (Ala.Cr. App.1992). See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987).
XV
The appellant next argues that the trial court erred by stating during its instruction in the penalty phase that the jury's decision was a recommendation. We have previously held that the trial court does not diminish the jury's role or commit error when it states during the jury charge in the penalty phase of a death case that the jury's verdict is a recommendation or an "advisory verdict." White v. State, 587 So.2d 1218 (Ala.Cr.App.1990), aff'd, 587 So.2d 1236 (Ala. 1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992).
XVI
The appellant was convicted of the capital offense of murder during the course of a robbery in the first degree. The appellant argues that the fact that robbery was counted both as an element of capital murder during the guilt phase of the trial, under § 13A-5-40(a)(2), Code of Alabama 1975, and as an aggravating circumstance during the penalty phase of the trial, under § 13A-5-49, violated his Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution and his rights under Alabama law. This practice, known as "double counting" or "overlapping," has been upheld. Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993); Kuenzel, supra.
Section 13A-5-50, Code of Alabama 1975, states, in part, as follows:
"The fact that a particular capital offense as defined in section 13A-5-40(a) necessarily includes one or more aggravating circumstances as specified in section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence."
Clearly, § 13A-5-50 provides that a jury may consider an element of capital murder as *658 an aggravating circumstance if that element is listed in § 13A-5-49. Further, this court has repeatedly held that the use of an element of capital murder in such a way does not, as the appellant argues, punish a defendant twice for the same offense. Kuenzel, supra; see also Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985).
"A capital punishment scheme, under which the same felony may form the basis of an essential element of the crime and an aggravating circumstance for consideration by the jury in recommending a sentence, does not constitute a denial of the guarantee against double jeopardy."
Kuenzel, 577 So.2d at 488, quoting Fortenberry v. State, 545 So.2d 129, 142 (Ala.Cr. App.1988), aff'd, 545 So.2d 145 (Ala.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990).
XVII
Last, as provided in § 13A-5-53, Code of Alabama 1975, this court is required to address the propriety of appellant's conviction and sentence to death. The appellant was indicted and was charged with murder made capital because the murder was committed during the course of a robbery in the first degree. Section 13A-5-40(a)(2), Code of Alabama 1975.
The record reflects that the appellant's death sentence was not the result of the influence of any passion, prejudice, or any other arbitrary factor. Section 13A-5-53(b)(1), Code of Alabama 1975.
A review of the record shows that the trial court found that the aggravating circumstances outweighed the mitigating circumstances. The court found no statutory or nonstatutory mitigating circumstances. The trial court found that the aggravating factor was that the murder was committed during the course of a robbery. § 13A-5-40(a)(2). The trial court's findings show that it weighed the aggravating circumstances and the mitigating circumstances and correctly sentenced the appellant to death. The trial court's decision is supported by the record, and this court agrees with the trial court's findings.
This court must, as required by § 13A-5-53(b)(2), independently weigh the aggravating and the mitigating circumstances to determine the propriety of the appellant's sentence to death. We have independently weighed the aggravating and the mitigating circumstances and have found the appellant's sentence to death appropriate in this case.
Under § 13A-5-53(b)(3), this court must address whether the appellant's sentence to death was disproportionate to or excessive when compared to the sentences imposed in similar cases. It was neither. The appellant argues that because he was not the triggerman and did not intend to kill he should not be sentenced to death.
"In Enmund v. Florida, 458 U.S. 782, 797 [102 S.Ct. 3368, 3368, 73 L.Ed.2d 1140] (1982), the Court held that the death penalty is unconstitutional for one who `does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.' In Tison v. Arizona, 481 U.S. 137 [107 S.Ct. 1676, 95 L.Ed.2d 127] (1987), the Court held that it was not cruel and unusual punishment to impose the death penalty upon a defendant who played a significant role in the felony that resulted in murder and who acted with reckless indifference to human life. The rule that has evolved from Enmund and Tison is that the death sentence is disproportionate under the Eighth Amendment for the non-triggerman who was not present at the scene and did not intend that anyone be killed; however, it is permissible under the Eighth Amendment for felony murderers who actually killed, attempted to kill, or intended that a killing take place or that lethal force be used.
". . . .
"Applying the Enmund test to the instant case, we find that appellant was sufficiently involved in the killing to constitutionally authorize the application of the death penalty to her, even though she was an accomplice non-triggerman."
Haney, 603 So.2d at 386.
The appellant played a significant part in the robbery-murder. Although he was not the actual person to pull the trigger, *659 the appellant's degree of participation in the robbery-murder makes the application of the death sentence constitutional in this case.
Nor was the appellant's sentence disproportionate to the crime committed. "In Beck [v. State, 396 So.2d 645 (Ala.1981),] the Alabama Supreme Court noted that of the 50 cases it studied, 33, or 66%, were robbery-intentional killing cases." Colquitt, Death Penalty Laws, 33 Ala., L.Rev. 213, 225 (1982). Other cases in which the death penalty has been upheld for robbery-murders are McMillian v. State, 594 So.2d 1253 (Ala. Cr.App.1991), Williams v. State, 601 So.2d 1062 (Ala.Cr.App.1991), Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989).
Last, as required by Rule 45A, A.R.App.P. we have searched the record for any error that would have adversely affected the appellant's substantial rights and have found none.
The appellant received a fair trial. The appellant's conviction and sentence of death are due to be, and they are hereby, affirmed.
AFFIRMED.
All the Judges concur.
NOTES
[1] This court recently affirmed DeBruce's conviction and sentence to death in DeBruce v. State, 651 So.2d 599 (Ala.Cr.App.1993).
[2] Barbara Spencer is Deon Long's mother.
[3] The appellant also argues in a footnote in his brief to this court that he should have been allowed to conduct individual voir dire. However, the trial court is not compelled to allow individual voir dire of prospective jurors even in a case involving the death penalty. Whether to allow individual voir dire is generally within the discretion of the trial court. Bell v. State, 475 So.2d 601 (Ala.Cr.App.1984), aff'd, 475 So.2d 609 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985).
[4] There is some question as to whether the defense established a prima facie case of discrimination here. Approximately 33% of the prospective jurors were black and the 12-member jury contained 50% blacks. The two alternates were white.
|
414 U.S. 1122
94 S.Ct. 857
38 L.Ed.2d 748
Lawrence NISSINOFF et al.v.State of CALIFORNIA.
No. 73-318.
Supreme Court of the United States
January 7, 1974
On petition for writ of certiorari to the Appellate Department of the Superior Court of California, County of Alameda.
Petition for writ of certiorari granted, judgment vacated and case remanded to the Appellate Department of the Superior Court of California, County of Alameda, for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Heller v. New York, 413 U.S. 483, S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2797, 37 L.Ed.2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973).
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
1
Petitioners were convicted on charges of exhibiting allegedly obscene motion pictures in violation of the California Penal Code § 311.2(a), which provides as follows:
2
'Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor.'
3
It is my view that, 'at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the state and federal governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (dissenting opinion of Brennan, J.). It is clear that, tested by that constitutional standard, § 311.2(a) is unconstitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), I would therefore grant certiorari, vacate the judgment of the Appellate Department of the Superior Court of the State of California, in and for the County of Alameda, and remand for further proceedings not inconsistent with my Paris Adult dissent.
|
261 P.2d 899 (1953)
SPECIAL INDEMNITY FUND et al.
v.
FELLOWS et al.
No. 35589.
Supreme Court of Oklahoma.
October 6, 1953.
*900 Mont R. Powell, Sam Hill, William R. Saied, Oklahoma City, for petitioner.
Claud Briggs, Oklahoma City, Foy Edwards, Shawnee, Mac Q. Williamson, Atty. Gen., for respondents.
ARNOLD, Justice.
On competent evidence introduced in support of claimant's claim for compensation from the Special Indemnity Fund as a physically impaired person the Commission found that prior to claimant's accidental injury of January 9, 1952, he sustained an injury to his head and right eye lid; that although he had sixty-five per cent vision in his right eye this vision was not usable because the eye lid was permanently dropped over the pupil of the eye so as to obscure the vision that he had, resulting in total industrial loss of vision of the right eye; that at the time of the accident of January 9, 1952, he was a physically impaired person as defined by the Workmen's Compensation Law, and that by reason of the combination of claimant's ninety per cent permanent partial disability to his right arm sustained by reason of the accidental injury of January 9, 1952, and his prior disability to his right eye his permanent partial disability to the body as a whole had been materially increased over that which would have resulted from the last injury alone; that as a result of the combination of the old injury to the eye and the new injury to the right arm claimant is now permanently and totally unable to perform ordinary manual labor for which he is entitled to be compensated by his employer in the sum of 11 weeks temporary total disability, 90 per cent permanent partial disability to the arm, being 225 weeks, and 264 weeks against the fund, all at $25 per week and made an appropriate order against the employer and the Special Indemnity Fund.
The employer paid the award assessed against it and is not involved in this appeal. The Special Indemnity Fund seeks review of the award made against it. The only error asserted here is that since there did not exist a complete loss of vision claimant was not a physically impaired person under the law.
Permanent loss of use of an eye constitutes loss of an eye. 85 O.S. 1951 § 22; Special Indemnity Fund v. Smith, 206 Okl. 185, 242 P.2d 159. A physically impaired person is defined as "a person who as a result of accident, disease, birth, military action, or any other cause, has suffered the loss of the sight of one eye * * *". 85 O.S. 1951 § 171. An employee who has sustained permanent total industrial blindness in one eye is a physically impaired person within the meaning of the Special Indemnity Fund Act, supra.
The finding of the Commission that claimant at the time of his last injury was a physically impaired person and as a result of both injuries is now permanently and totally disabled is sustained by the evidence and its order based thereon will not be disturbed.
Award sustained.
|
915 F.2d 692
U.S.v.Carrasco-Ibarra*
NO. 90-8101
United States Court of Appeals,Fifth Circuit.
SEP 12, 1990
1
Appeal From: W.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
|
Case: 14-13138 Date Filed: 01/29/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13138
Non-Argument Calendar
________________________
D.C. Docket No. 0:13-cv-62019-KAM
SCOTT BARR, DDS
on behalf of itself and others similarly situated,
Plaintiff-Appellant,
versus
THE HARVARD DRUG GROUP, LLC,
a Michigan corporation
d.b.a. Expert-Med,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 29, 2015)
Before JORDAN, KRAVITCH and BLACK, Circuit Judges.
PER CURIAM:
Case: 14-13138 Date Filed: 01/29/2015 Page: 2 of 3
In this appeal, we must determine whether a putative class action becomes
moot when a defendant offers a judgment in favor of the only named plaintiff and
putative class representative and the plaintiff declines the offer. Because this court
recently answered this question in the negative, we reverse and remand the district
court’s dismissal of the plaintiff’s complaint.
Scott Barr, DDS, filed a putative class action against The Harvard Drug
Company, LLC (HDC) for violations of the Telephone Consumer Protection Act,
47 U.S.C. § 227. Before Barr moved for class certification, HDC made an offer of
judgment, see Fed.R.Civ.P. 68, for the maximum monetary damages for Barr’s
individual cause of action, an injunction to prevent future violations of the Act, and
an entry of a judgment. Barr did not accept the offer and instead moved for class
certification.
Thereafter, HDC moved to dismiss the complaint as moot. See Fed.R.Civ.P.
12(b)(1). The district court found Barr’s claims moot and dismissed the complaint
for lack of subject-matter jurisdiction.
When reviewing a court’s dismissal of a complaint as moot, we review
factual findings for clear error and the legal issue de novo. Stein v. Buccaneers
Ltd. P’ship, 772 F.3d 698, 701 (11th Cir. 2014).
2
Case: 14-13138 Date Filed: 01/29/2015 Page: 3 of 3
Our recent decision in Jeffrey Stein, D.D.S., M.S.D., P.A. v. Buccaneers
Limited Partnership, controls this appeal. 1 772 F.3d at 704, 709. In Buccaneers
Limited, the named plaintiff received an offer of judgment under Rule 68 before
the plaintiff moved for class certification. The plaintiff then rejected the offer. Id.
at 700-01. We held that the unaccepted offer of judgment under Rule 68 did not
render the named plaintiff’s complaint moot. Id. at 704.
The facts in the instant case are the same in all relevant respects.
Accordingly, based on Buccaneers Limited, HDC’s offer of judgment did not
render Barr’s complaint moot. We therefore REVERSE the order of dismissal for
lack of subject-matter jurisdiction and REMAND for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
1
HDC argues that Barr waived any argument concerning mootness by not raising it in his
opposition to the motion to dismiss. We disagree because “we have an independent obligation to
assure ourselves of the justiciability of a controversy under Article III.” Doe v. Wooten, 747
F.3d 1317, 1322 n.3 (11th Cir. 2014) (citation omitted).
3
|
Filed 8/18/10 NO. 4-09-0427
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
CLAUDE MITCHELL, ) No. 08CF850
Defendant-Appellant. )
) Honorable
) Paul G. Lawrence,
) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
For two reasons, defendant, Claude Mitchell, appeals from the sentence the
trial court imposed on him for forgery (720 ILCS 5/17-3(a)(2) (West 2008)): (1) the court
shorted him five days of credit against his five-year prison term, and (2) the court failed to
give him monetary credit against his fines.
The five days represent the period that defendant spent in the county jail after
sentencing but before his transfer to the Illinois Department of Corrections (DOC). It
appears, however, from DOC's official Web site, that DOC has given defendant credit for
both the three days he was in custody before sentencing and the five days he was in custody
after sentencing.
As for the monetary credit against his fines, it accrues only up to the date of
sentencing. It follows that while defendant is entitled to monetary credit for the three days
he was in custody before sentencing, he is not entitled to monetary credit for the five days
he spent in jail after sentencing. Therefore, we affirm the trial court's judgment as modified
to allow defendant a total monetary credit of $15 at the rate of $5 per day for three days.
I. BACKGROUND
On July 30, 2008, the State indicted defendant on three counts of forgery.
Defendant was in custody from July 23 to July 25, 2008. On January 16, 2009, defendant
pleaded guilty to one count of forgery committed June 18, 2008 (720 ILCS 5/17-3(a)(2)
(West 2008)), and on March 12, 2009, the trial court sentenced him to imprisonment for
five years, giving him credit for three days of presentence custody, July 23 to 25, 2008. The
court also assessed various "fees" against defendant, including a Children's Advocacy Center
fee of $15 and a drug-court fee of $10. At the conclusion of the sentencing hearing, the
court remanded defendant to the custody of the sheriff.
According to a memorandum that the sheriff filed on March 27, 2009,
defendant was in the county jail during two periods: July 23 to 25, 2008, and March 12 to
17, 2009. Thus, he was in jail for five days after the trial court sentenced him on March 12,
2009. According to DOC's official Web site, he actually was transferred to DOC on March
17, 2009, but his "custody date" is March 9, 2009.
II. ANALYSIS
A. Credit Against the Sentence of Imprisonment
On the authority of section 5-8-7(b) of the Unified Code of Corrections
(Unified Code) (730 ILCS 5/5-8-7(b) (West 2008)), defendant argues that he is entitled to
credit, against his sentence of imprisonment, for the five days he spent in custody after
sentencing but before his transfer to DOC (March 12 to 17, 2009). Section 5-8-7(b)
provides: "The offender shall be given credit on the determinate sentence *** for time spent
in custody as a result of the offense for which the sentence was imposed." It is true that
-2-
because defendant was in jail from March 12 through 16, 2009, he was in custody during
those five days and, therefore, under the plain, unqualified terms of section 5-8-7(b), he is
entitled to credit for those additional five days. With that proposition, the State agrees.
Nevertheless, we decline defendant's request to remand this case with
directions to award of an additional five days of credit, because we have no reason to
suppose that defendant has been denied such credit. According to the official Web site of
DOC, his "admission date" is March 17, 2009, but his "custody date" is March 9, 2009. See
People v. Monroe, 366 Ill. App. 3d 1080, 1097, 852 N.E.2d 888, 904 (2006) ("we take
judicial notice of the official public records of the Department of Corrections"). Apparently,
by these notations, DOC is giving defendant credit for eight days: three days in custody
before sentencing plus five days in custody after sentencing.
B. Monetary Credit Against the Fines
Defendant further argues that the Child Advocacy Center fee and drug-court
fee are fines (see People v. Paige, 378 Ill. App. 3d 95, 101-02, 880 N.E.2d 675, 682 (2007))
and that he is entitled to credit, against these fines, in the amount of $5 per day for the eight
days he spent in custody before his transfer to DOC (see 725 ILCS 5/110-14 (West 2008)).
The State agrees, but we agree with defendant only partly on this point. He is entitled to
monetary credit for July 23 to 25, 2008, but not for March 12 to 17, 2009, because the latter
period came after the sentencing on March 12, 2009.
While a defendant may receive monetary credit under section 110-14 for time
spent in custody after a finding of guilt, that credit is limited to the period between the
verdict and sentencing. People v. Raya, 250 Ill. App. 3d 795, 802-03, 621 N.E.2d 222, 227-
28 (1993); People v. Smith, 258 Ill. App. 3d 261, 270, 630 N.E.2d 147, 153 (1994); People
-3-
v. McNair, 325 Ill. App. 3d 725, 726-27, 759 N.E.2d 584, 585 (2001). Also, section 110-14
provides for credit against a fine levied upon "conviction" (725 ILCS 5/110-14 (West 2008)),
and conviction occurs at sentencing.
III. CONCLUSION
Therefore, we modify the trial court's judgment so as to allow defendant a
credit of $15 against his fines. Otherwise, we affirm the judgment as modified.
Affirmed as modified.
MYERSCOUGH, P.J., and POPE, J., concur.
-4-
|
926 F.Supp. 1022 (1996)
Shanda L. KOST, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., and Aetna Life Insurance Company, Defendants.
Civil Action No. 95-4144-DES.
United States District Court, D. Kansas.
May 2, 1996.
*1023 John R. Hooge, Lawrence, KS, for plaintiff.
Leonard Singer, Sharon D. Hess, James R. Holland, II, Bioff, Singer & Finucane, Kansas City, MO, for defendants.
MEMORANDUM AND ORDER
SAFFELS, District Judge.
This matter is before the court on defendants' motions for summary judgment based on late service by the plaintiff. (Docs. 4 and 13). The action was commenced on September 6, 1995. The defendants claim they were not served with the summons and complaint until January 5, 1996, one day beyond the 120-day deadline set forth in Fed.R.Civ.P 4(m). Also before the court is plaintiff's motion to extend time for service of process. (Doc. 16).
I. BACKGROUND
The plaintiff was an employee of UPS when she tendered her resignation on September 7, 1993. UPS failed to timely advise the plaintiff of her COBRA rights as required under 29 U.S.C. § 1166 to continue receiving health care coverage. Upon learning that the plaintiff did not receive her COBRA notice, UPS agreed to waive the COBRA premium for the plaintiff and her family through February 28, 1995, and provided her full coverage to any claims during the COBRA period. During that time, the plaintiff and her family did not claim any uninsured medical expenses for the COBRA period. The plaintiff seeks penalty money of up to $100 a day from the time she quit UPS for not being notified of her COBRA rights.
II. DISCUSSION
A. Aetna Life Insurance Company received timely service.
All insurance providers transacting business in Kansas must register with the commissioner of insurance and they must agree that service to the commissioner "shall be taken and held in all courts to be as valid and binding as if due service had been made upon the president or chief officer of such corporation." Kan.Stat.Ann. § 40-218 (1992). The Department of Insurance is, in effect, the local agent for service for all insurance companies in Kansas.
The court record contains two documents showing that the summons and complaint were delivered to the Department of Insurance on January 4, 1996. The first is a return of service form filed with the court by plaintiff's counsel. The second is a "Commissioner's Proof of Service" form signed by the commissioner of insurance certifying that the summons and complaint were received by the Department of Insurance on January 4, 1996. This form further denotes that service was made upon Aetna Life Insurance Company ("Aetna") on January 5, 1996, the day the summons and complaint were mailed to Aetna by the Department of Insurance.
Regardless of the date the Department of Insurance form indicates service was made upon Aetna, it is the date the Department of Insurance received the complaint and summons that satisfies the 120-day limit for service. The statute is clear that once service is made upon the department, it is valid and binding as if made upon the president or chief officer of a company, i.e., Aetna in this case.
Aetna further argues that service was untimely because Kan.Stat.Ann. § 40-218 provides that "the summons, and a certified copy of the petition shall be forthwith forwarded by the clerk of the court to the commissioner of insurance, who shall immediately forward a copy ... to the secretary of the company." *1024 This court rejects that argument because it is not the practice of the United States District Court for the District of Kansas to forward copies of summonses and complaints to the Department of Insurance when an insurance company is a party in litigation. Plaintiff's counsel was authorized to serve process on Aetna via the Department of Insurance.
B. Return of service summons is prima facie evidence of its truthfulness.
There is conflicting evidence as to whether United Parcel Service ("UPS") was timely served with the complaint and summons. According to both a service of process transmittal form of the CT Corporation System ("CT System") and an affidavit from Linda Cathers, service was made upon UPS on January 5, 1996.[1]
Conversely, according to the return of service form on record with the court and an affidavit from plaintiff's counsel, John R. Hooge ("Hooge"), service was made upon CT System in Topeka on January 4, 1996, by Hooge on the same day Hooge delivered the summons and complaint (regarding Aetna) to the commissioner of insurance in Topeka.
Consequently, one party is either prevaricating or is seriously mistaken as to what day it was when the papers were delivered.
In the court's view, the affidavit by plaintiff's counsel and return of service establishes a prima facie case of proper service.[2] While the affidavit by Linda Cathers and the CT System form corroborate each other, they do not overcome the strong presumption of truthfulness and accuracy the court is willing to extend to plaintiff's counsel, who is a licensed officer of this court. Moreover, from a practical perspective, it seems reasonable that Hooge would have delivered the papers to CT System which is located in downtown Topeka on January 4, 1996, the same day that he delivered papers to the department of insurance, also located in downtown Topeka.
While the court holds that the defendants were timely served, the parties are not precluded from filing further dispositive motions.
IT IS THEREFORE BY THE COURT ORDERED that defendants' motions for summary judgment (Docs. 4 and 13) are denied.
IT IS FURTHER ORDERED that plaintiff's motion to extend time for service of process (Doc. 16) is denied as moot.
NOTES
[1] CT System is the UPS designated agent for service in Kansas and Linda Cathers is an employee of CT System who actually received the summons and complaint from plaintiff's counsel and completed the service of process transmittal form.
[2] See Home-Stake Production v. Talon Petroleum, C.A., 907 F.2d 1012, 1017 (10th Cir.1990) (wherein the Tenth Circuit affirmed the district court's findings of fact on the issue of proper service and noted that the return of service form and accompanying affidavit established a prima facie case of proper service.)
|
888 S.W.2d 143 (1994)
Cheryl E. ZALESAK, Individually and as Independent Executor of the Estate of Lynn E. ZALESAK, Appellant.
v.
Sarah TAYLOR, M.D., Kelsey-Seybold Clinic, P.A., and James Albert Wolf, Jr., M.D., Appellees.
No. 01-94-00556-CV.
Court of Appeals of Texas, Houston (1st Dist.).
November 3, 1994.
Rehearing Overruled December 1, 1994.
*144 Kevin Dubose, Tom Pettiette, Houston, for appellant.
John B. Wallace, Charles W. Lyman, L. Boyd Smith, Jr., Deborah E. Lewis, Houston, for appellees.
Before COHEN, WILSON and HEDGES, JJ.
OPINION
COHEN, Justice.
This is an appeal from a summary judgment for defendants in a medical malpractice case. We reverse the judgments for Dr. Taylor and Kelsey-Seybold and remand those causes. We affirm the judgment in favor of Dr. Wolf.
On September 11, 1990, Lynn Zalesak visited the Kelsey-Seybold Clinic office of Dr. Sarah Taylor to determine the cause of rectal bleeding. Dr. Taylor performed a digital rectal examination and ordered a barium enema. No cancer was diagnosed in September; however, in January of 1991, Zalesak was seen by Dr. James Albert Wolf, Jr., who diagnosed rectal cancer. Zalesak died of cancer on April 15, 1992, and Cheryl E. Zalesak was substituted as plaintiff.
We will affirm a summary judgment only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c). All reasonable inferences are drawn in favor of the non-movant, and all evidence favorable to the non-movant is taken as true. Nixon v. Mr. Property Management, 690 S.W.2d 546, 549 (Tex.1985).
In her first point of error, appellant contends that appellees failed to prove conclusively that their acts caused no damage and that she raised a fact issue about whether Mr. Zalesak had a 50% or better chance of survival when he visited Dr. Taylor in September 1990.
In trials of medical malpractice cases, the plaintiff must prove that there was more than a 50% chance the decedent would have lived, but for a doctor's acts or omissions. Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 400 (Tex.1993). The plaintiff does not have to prove that to avoid a summary judgment. Rather, in order to obtain a summary judgment, the defendant must prove conclusively that there was a 50% or lower chance of survival. Id. We conclude that Taylor did not conclusively prove that Mr. Zalesak had a 50% or lower chance of survival September 1990.
Appellees relied exclusively on the testimony of appellant's expert, Dr. Leggett, to prove that in September 1990, Mr. Zalesak had a chance of survival 50% or less. Dr. Leggett's testimony did not prove that.
Summary judgment evidence showed that rectal cancers are divided into four categories, which are labeled A, B, C, and D. Level A rectal cancer has a survival rate of 80 to 100%; level B is 60 to 80%; level C is 40 to 60%; and level D is less than 40% survival rate. Expert testimony showed that such tumors begin as small growths that become progressively larger and more dangerous over time. Thus, if a rectal cancer is caught at a earlier stage, the patient has a much greater chance of survival.
*145 Dr. Leggett testified that he could not give an opinion about Mr. Zalesak's chance of survival in September 1990 without knowing if the cancer was level A, B, C, or D at that time. The only way he could know that with certainty, he testified, was if the tumor had been removed and examined. This evidence does not support a summary judgment because it does not prove that Mr. Zalesak's chance of survival was less than 50% at that time.
Dr. Leggett further testified that if, as in this case, the tumor was not detected by digital examination or by a barium enema, then it was probably small, in the range of .8 to 1.2 centimeters. He testified that level A tumors are typically in the range of 1 to 2 centimeters. He testified that if the digital examination and the barium enema were properly performed on Mr. Zalesak, as he assumed they were, and the tumor was too small to be detected by those tests, then it was probably a level A tumor, which had a survival rate much higher than 50%. This evidence does not establish that the chance of survival was less than 50%. It suggests the opposite. Although Dr. Leggett testified that even a small tumor could be classified as level C, that does not support a summary judgment because the survival chance for a person with a level C tumor is 40 to 60%, which is not 50% or lower. This is significant because the tumor removed from Mr. Zalesak in January of 1991 was classified as level C then, and Dr. Wolf, who removed the tumor, told Zalesak then that he had a "50-50" chance of survival. This was four months after Dr. Taylor's alleged negligence occurred, during which time the tumor presumably grew and became more dangerous. The reasonable inferences to be drawn from this fact support the plaintiff's theory of the case, not the defendants'.
We sustain point of error one.
In her second point of error, appellant complains the judge erred by striking parts of Dr. Leggett's affidavit. The portions struck stated:
Mr. Zalesak was seen by Dr. Sarah Taylor at Kelsey-Seybold Clinic in September of 1990, complaining of rectal bleeding and a flattening of the stool. According to Dr. Taylor, she properly performed a barium enema and a digital rectal examination, and neither diagnostic technique revealed the presence of a lesion on the rectum. In order for a lesion to be detectable on a digital examination, it must be at least 1.5 centimeters in size. In order for a lesion to show up on a barium enema, it must be at least 8 millimeters to 1.2 centimeters. Thus if a lesion could not be detected by digital examination or by barium enema, my opinion is that the lesion would have to be smaller than 1.2 centimeters at the time of these examinations, assuming that the examinations were properly performed.
. . . .
Assuming that Dr. Taylor properly performed the barium enema and digital rectal examination in September of 1990, and that those tests were negative, Mr. Zalesak's lesion would have been classified as a Duke's A, or Duke's B rectal tumor at that time, based on reasonable medical probability. If Mr. Zalesak's Duke's A or Duke's B tumor would have been diagnosed, and treatment initiated, in September of 1990, then his chance of survival with a Duke's A or Duke's B tumor would have been 60% or greater.
The affidavit stated that all facts and opinions in it were based on Dr. Leggett's personal knowledge and review of medical records in this case.
The motion to strike complained that the affidavit was based on hearsay and that it assumed facts not in evidence, i.e., that Dr. Taylor performed a barium enema when she testified she did not.
The first ground has no merit because an expert may rely on hearsay. TEX.R.CIV. EVID. 703. The second ground also has no merit. Dr. Taylor testified she ordered the performance of a barium enema. She never testified it was not performed. Asked the name of the technician who performed the test and whether she had seen the test report, she testified she did not know. Viewing this evidence most favorably to appellant, it suggests that the test was performed, not that it was not performed. The appellate record also contains other evidence, first presented *146 on motion for reconsideration of the summary judgment, that shows a barium enema was performed. We conclude that the judge erred in striking paragraphs four and six.
We sustain point of error two.
Appellant has moved to dismiss the appeal of the judgment in favor of Dr. Wolf. We grant the motion.
The judgment in favor of Dr. Taylor and Kelsey-Seybold is reversed, and those causes are remanded. The appeal of the judgment in favor of Dr. Wolf is dismissed.
HEDGES, J., not participating.
|
718 F.2d 1106
U. S.v.Lipscomb
83-1506
UNITED STATES COURT OF APPEALS Eighth Circuit
7/12/83
1
E.D.Ark.
AFFIRMED
|
188 F.Supp.2d 627 (2002)
UNITED STATES of America
v.
Michael FULCHER, Ethel Fulcher, Rosanna Fulcher.
No. 7: 98CR00102.
United States District Court, W.D. Virginia, Roanoke Division.
February 8, 2002.
*628 *629 Charles David Whaley, Morchower, Luxton & Whaley, Richmond, VA, for Michael Edward Fulcher.
David Preston Baugh, Richmond, VA, for Ethel Vest Fulcher.
Gerald T. Zerkin, Gerald T. Zerkin & Assoc., Richmond, VA, Carolyn V. Grady, Epperly, Follis & Schrok, P.C., Richmond, VA, for Rosanna Sue Nichols Fulcher.
Rosanna Sue Nichols Fulcher, Roanoke, VA, pro se.
MEMORANDUM OPINION
KISER, Senior District Judge.
Before me is the United States' (hereafter, the "Government's") Motion to Reinstate Jury Verdict and Motion in Limine on Remand from the Fourth Circuit Court of Appeals filed June 13, 2001.
In United States v. Fulcher, 250 F.3d 244 (4th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 313, 151 L.Ed.2d 233 (2001), the Fourth Circuit affirmed this Court's decision ordering a new trial on all charges against the defendants. See United States v. Fulcher, No. 7:98CR00102, slip opinion (W.D.Va. Feb.16, 2000). On remand, the Government moves to reinstate the jury's *630 convictions of the Fulchers based upon evidence which the Government placed in the record before this Court at a hearing on November 8, 2001. In the alternative, the Government argues that statements by Drug Enforcement Administration (DEA) Special Agent Donald O. Lincoln, produced since the first trial (hereafter "the Lincoln evidence"), be barred from evidence on retrial.
The parties fully briefed the issues and were heard in oral argument, making this matter ripe for disposition. For the reasons set forth herein, the Government's Motion to Reinstate the Verdict is DENIED and its Motion in Limine OVERRULED. The Lincoln evidence will be admissible for the defendants' public authority defense, and other defense uses previously recognized by this Court.
I. BACKGROUND
Facts and Procedural History
The facts have discussed exhaustively in this Court's Memorandum Opinion of February 16, 2000 (hereafter, "Mem.Op.") and in Fulcher, 250 F.3d at 246-248. In 1999, a Government named twenty two individuals in an indictment for engaging in drug and money laundering conspiracies. Specifically, the indictment charged that correctional officers at Bland Correctional Center ("BCC"), as well as wives, mothers, and girlfriends of inmates, smuggled marijuana into this Virginia state prison. The inmates then sold the marijuana in teaspoon-sized servings for twenty-five dollars each to fellow inmates. Unable to use cash behind bars, the inmates purchased the marijuana through money orders made out to friends and relatives of the inmate sellers. Of five defendants tried in August, 1999, three were found guilty of at least some the charges against them: inmate Michael Fulcher, his mother Ethel, and his wife Rosanna.
Prior to trial, Michael and Ethel filed notices under Fed.R.Crim.P. 12.3, stating that they intended to rely upon a "public authority" defense. They stated they "believed that, based upon past experience and circumstances, while not authorized at the time of commission, [their cooperation] would be subsequently ratified and permitted by federal and state law enforcement in the discharge of their duties." Specifically, they argued that Michael's communications with state and federal law enforcement officers in this case, along with his past work as a confidential informant for the Drug Enforcement Administration ("DEA") and other federal agencies, gave the Fulchers the impression that the Government had granted Michael permission to develop evidence against correctional officers and his fellow inmates. According to the proffered testimony, Rosanna and Ethel Fulchers' alleged money laundering activities, in particular, consisted solely of the maintenance of a "paper trail" of such evidence to use against the guards and inmates. The Fulchers wished to testify that their activities with regard to BCC were not significantly different from undercover cooperation they had given federal law enforcement agents in the past. In response, the Government filed a motion in limine barring any evidence of Michael's previous cooperation with law enforcement, and I granted the motion.
Following the Fulchers' convictions on drug and money laundering charges, and on the eve of sentencing, this Court received an ex parte letter from DEA Special Agent Donald O. Lincoln, in which Lincoln stated his concern that he, along with state law enforcement officers participating in a DEA Task Force at the time of the Fulchers' activities, may have provided BCC inmate Michael Fulcher and his family with the mistaken impression that Michael had approval to investigate alleged drug dealing involving guards at the prison. *631 Lincoln also acknowledged that on previous occasions Michael, trying to reduce his prison time, had investigated illegal activities without obtaining permission from government agents. In at least one instance, no agent ever told Michael that he could be prosecuted for aiding and abetting criminal activity; rather, the Government simply accepted and used the information which Michael obtained. In discussing the BCC marijuana ring, Lincoln admitted that he may have communicated to Michael and Ethel that a case could be presented to the DEA if it involved a larger quantity of marijuana or if interstate or international implications were raised. Lincoln also reaffirmed his previous testimony that, in his opinion, Michael had in fact gathered this evidence for potential prosecution. See Mem.Op. at 6-11 (discussing the Lincoln letter and his subsequent testimony at a hearing on post-trial motions).
Following disclosure of the letter to the parties, I granted the Fulchers' motion for a new trial, holding that the Lincoln evidence was relevant and favorable to the Fulchers: (1) on their public authority defense; and (2) on their mistake of fact defense. Mem.Op. at 14-26. I also held that the Lincoln evidence: (3) corroborated the Fulchers' position not asserted at trial because uncorroborated at the time that Michael never actually sold any drugs at BCC, and (4) made relevant Michael and Ethel Fulcher's proffered testimony of past, pre-indictment cooperation with federal law enforcement authorities testimony which I had previously barred from trial.[1] Mem.Op. at 17-27. In addition, I held that: (5) new evidence putting prosecution witness Victoria Hairston's credibility in question, and (6) lack of evidence for Michael's Continuing Criminal Enterprise (CCE) conviction, might themselves warrant a new trial. Mem.Op. at 28-30.[2]
In discussing the relevance of the Lincoln evidence to the public authority defense, I held as the Fourth Circuit would subsequently that in order to prevail on this defense, the Fulchers would have to show that law enforcement officials had actual authority to authorize their otherwise illegal activities:
With this affirmative defense, the defendant seeks exoneration based on the fact that he reasonably relied on the authority of a government official to engage him in a covert activity. The validity of this defense depends upon whether the government agent in fact had the authority to empower the defendant to perform the acts in question. If the agent had no such power, then the defendant may not rest on the "public authority"; reliance on the apparent authority of a government official is not a defense in [the Eleventh Circuit], because it is deemed a mistake of law, which generally does not excuse criminal conduct.
Mem.Op. at 19 (quoting United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18 (11th Cir.1994)). At this stage of proceedings, the elements of the public authority defense were not in dispute.
On appeal, the Fourth Circuit took up the Government's contention that the Lincoln evidence did not warrant a new trial because it was not "material" as required by United States v. Custis, 988 F.2d 1355, *632 1359 (4th Cir.1993). See Fulcher, 250 F.3d at 251.
The Government directed its argument at two of this Court's bases for granting a new trial namely, that the Lincoln evidence was material to the "innocent intent" and public authority defenses. The Government argued that Lincoln's testimony at the December 27, 1999 post-trial hearing showed "that Lincoln and his colleagues possessed, at most, only apparent authority to approve the operation undertaken by the Fulchers, and that such authority was insufficient to either negate intent or to support the defense of public authority." Id. The defendants responded by arguing that if the defendants "acted at the direction of an official who possessed [merely] apparent authority, they would lack the requisite men rea for the crimes for which they were charged. According to defendants, under such circumstance, they would have made only a mistake of fact, a cognizable defense negating intent [when proof of a crime requires knowledge]." Id. Because of the defendants' particular position, which appears to have been advanced for the first time on appeal, the Fourth Circuit took up the issue. Consistent with other federal circuit courts which had the issue, the Fourth Circuit held that the defense of public authority "requires reasonable reliance upon the actual authority of a government official to engage him in covert activity." 250 F.3d at 253 (citing, among others, Baptista-Rodriguez, 17 F.3d at 1368 n. 18; United States v. Pitt, 193 F.3d 751, 758 (3rd Cir. 1999); United States v. Holmquist, 36 F.3d 154, 161 nn. 6-7 (1st Cir.1994)). The court also rejected defendants' argument that reliance upon a government actor's merely apparent authority constituted a mistake of fact, reiterating its prior holding that such a mistake arose not from a mistake of fact as to actor's status, "but resulted from a misconception of the legal prerogatives attached to that status." 250 F.3d at 253 (quoting United States v. Kelly, 718 F.2d 661, 665 (4th Cir.1983)). The court declined to rule in favor of the Government, however, noting that "neither party has been furnished with an opportunity to introduce any evidence regarding whether Lincoln or his colleagues at the DEA possessed actual authority to sanction defendants' money laundering and drug activities." 250 F.3d at 254. Affirming this Court's decision to hold a new trial, and remanding for further proceedings consistent with its opinion, the court reminded this Court of the defendants' burden at trial, and directed that any jury instruction on these defenses indicate that reliance on apparent authority was not sufficient. 250 F.3d at 254-255, 255 n. 6.
The Government immediately filed the present motion. Claiming that it could put evidence on the record proving that neither Donald Lincoln nor any of his colleagues at DEA had the actual authority to authorize the activities of the Fulchers, the Government urged this Court to hold an evidentiary hearing and, assuming the Government succeeded, to reinstate the Fulchers' guilty verdicts. In the alternative, the Government argued that the Lincoln evidence should be excluded at the new trial because it was irrelevant and would confuse the issues. Although I expressed strong doubts concerning the propriety of directing a guilty verdict based upon new evidence presented outside of the hearing of a jury, I allowed the Government a hearing on the ultimate admissibility of the Lincoln evidence.
At the hearing conducted on November 8, 2000, the Government sought to establish three reasons why Lincoln and his DEA Task Force colleagues did not have actual authority to permit the Fulchers' activities. According to its witnesses: (1) distributing controlled substances with no expectation of recovery ("letting the drugs *633 walk") and (2) conducting financial transactions with drug proceeds ("letting the money walk"), were unusual drug enforcement operations which required review and recommendation by the Justice Department's Sensitive Activity Review Committee ("SARC") following the preparation of an operational plan justifying the activity. Special Agent Donald Mendrala of the DEA's Undercover and Sensitive Operations Unit, a SARC member, testified that only DEA Headquarters could thereafter approve an operation in which drugs walked. According to Mendrala, as a matter of practice, only operations involving no more than a gram of controlled substance are ever approved in these cases. Mendrala also testified that only the Attorney General and Deputy Attorney General could authorize letting money walk. These authorizations were limited to the most significant investigations such as tracking the money flow to the Cali cartel. According to Mendrala, less than twenty are in place nationwide. Mendrala testified that he had reviewed DEA records for such authorizations and found none in this case. He further testified that: (3) where a Confidential Informant ("CI") such a Michael Fulcher had been discharged for cause, or "blackballed," DEA headquarters had to approve the reactivation of the informant as a CI before he could be used to make an otherwise-illegal drug or money transactions.[3] If the informant was not reactivated, he was simply another unofficial Source of Information ("SI" or "SOI") who could not be given permission to participate in these transactions. Tr.Hearing, 83-90, 103-105.
Special Agent Lincoln testified similarly, corroborating Mendrala's testimony, and denying that he had statutory authority to authorize any such activities himself. He had himself sought and received proper authorization to make money pickups and transfer the proceeds to traffickers during the Javier Cruz investigation into the Cali Cartel, and was familiar with the requirements. He also knew that an agent cannot utilize a blackballed CI for sting operations without approval from DEA headquarters, and did not consider Michael Fulcher a CI in the 1990s. According to Lincoln, Fulcher merely volunteered information on a frequent basis, some of which Lincoln used or passed to other agencies. Lincoln did not direct his activities, however. Tr.Hearing, 14-42.
The Government argues that this testimony proves that Lincoln or the DEA Task Force for which he worked did not themselves have express or implied authority to allow the Fulchers to do the acts for which they were eventually charged, and that Lincoln and his colleagues did not in fact have permission from authorizing officials to allow these acts in the Fulchers' specific case. Therefore, the Government argues, there is no triable issue of fact concerning the Fulchers' public authority defense.
The defendants do not seriously dispute the testimony concerning DEA procedure. They do, however, argue that there is no evidence in the record that Agent Lincoln could not ratify the conduct of Michael Fulcher, once Fulcher's own investigation got to a size that might interest DEA in the case. They argue the record is replete with information that, in the past, Michael had been permitted to initiate investigations and to engage in acts which could be prosecuted as illegal such as aiding and abetting the possession of controlled substances, conspiracy, and tax fraudand which were subsequently ratified by the *634 DEA or other law enforcement agencies. They argue that indeed this had been a frequent course of dealing between Fulcher and law enforcement agencies both before and after his discharge as a confidential informant.[4] In oral argument, their position consistently has been that all evidence relevant to their affirmative defenses must go before a jury.
The Fulchers also point out as this Court had noted in its earlier Memorandum Opinion that their position with regard to the facts of the case will be different on retrial. For example, it will be Michael Fulcher's position at the new trial that he never actually sold drugs at BCC, and Mrs. Fulcher's position that she never forwarded, distributed, or saw any marijuana while Michael was an inmate there. According to the Fulchers, the Lincoln evidence would corroborate these positions, and therefore has relevance apart from its usefulness to a public authority defense.
II STANDARD
"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by [the Federal Rules of Evidence], or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." Fed.R.Evid. 402. "`Relevant evidence' means evidence having any tendency to make the existence of any 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. Relevance is, of course, question for the trial judge to decide. Fed.R.Evid. 104. However, in determining whether evidence is relevant, the district court "may not consider the weight or sufficiency of the evidence. Its consideration should be limited to whether the evidence has any tendency to support a consequential fact." 2 Weinstein's Federal Evidence, 2nd ed., § 401.06, pp. 401-403 (Bender 2001) (citations omitted). "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues, or misleading the jury." Fed. R.Evid. 403.
A trial court does not violate a criminal defendant's Fifth or Sixth Amendment rights when it excludes proffers of exculpatory evidence, if that evidence is not material (i.e., would not with reasonable probability affect the outcome of trial), or when the evidence is not favorable to the defendant's case. See, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); United States v. Bennett, 675 F.2d 596, 598 (4th Cir.), cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307 (1982). It is also not a violation of constitutional rights to exclude exculpatory evidence otherwise inadmissible under the Federal Rules of Evidence. Sharlow v. Israel, 767 F.2d 373 (7th Cir.), cert. denied, 475 U.S. 1022, 106 S.Ct. 1212, 89 L.Ed.2d 324 (1986).
My evaluation of the Lincoln evidence is thus restricted to whether it is relevant to the Fulchers' defenses at trial, whether it is material and favorable to the defendants, and whether its probative value is substantially outweighed by the risk of confusion of the issues or misleading the jury.
III DISCUSSION
A. The Lincoln evidence is relevant, material, and favorable to the defendants' public authority defense.
In Baptista-Rodriguez, 17 F.3d at 1368 n. 18, accord, Fulcher, 250 F.3d at 253, the Eleventh Circuit explained the public authority defense:
*635 With this affirmative defense, the defendant seeks exoneration based on the fact that he reasonably relied on the authority of a government official to engage him in a covert activity. [United States v.] Anderson, 872 F.2d [1508], 1513 (11th Cir.), cert. denied, 493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989)]; see United States v. Reyes-Vasquez, 905 F.2d 1497, 1500 n. 5 (11th Cir.1990), cert. denied, 501 U.S. 1237, 111 S.Ct. 2869, 115 L.Ed.2d 1035 (1991). The validity of this defense depends upon whether the government agent in fact had the authority to empower the defendant to perform the acts in question. If the agent had no such power, then the defendant may not rest on the "public authority"; reliance on the apparent authority of a government official is not a defense in this circuit, because it is deemed a mistake of law, which generally does not excuse criminal conduct. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987). A defendant legitimately may rely, however, on a government official's real authority to authorize the defendant's conduct. Anderson, 872 F.2d at 1515; Rosenthal, 793 F.2d at 1235-36; see United States v. Lopez-Lima, [738 F.Supp. 1404,] 1408 [(S.D.Fla.1990)]. Actions properly sanctioned by the government are not illegal.
The issue before the Fourth Circuit in Fulcher, and the issue before me now, is whether there is any relevant evidence that the DEA agents with whom the Fulchers dealt had actual authority to engage them in an illegal activity.
For argument's sake, I assume that the Government's testimony has shown that these agents had no statutory authority, and no authority implied by their positions as field agents, to engage the Fulchers. Nevertheless, it remains an open question whether they acquired actual authority to do so by other means. At common law, an agent's "actual" authority to bind his principal may be express or implied. Actual authority may be implied to the extent reasonably necessary for the agent to have in order to carry out his express authority, may be implied according to customs and usages of a trade, or may be implied in an emergency to protect the principal's interest. 2A Corpus Juris Secundum Agency, §§ 154, 156. The law may also imply actual authority from a course of actual conduct:
From conduct of the principal manifesting an assent to the exercise by the agent of powers not expressly granted, considered in light of the relevant circumstances, authority may be implied for the performance of the acts of like general character as those assented to, on the same basis as assent is implied in fact with reference to other contracts generally.... At least if the rights of a third person are involved, powers will be implied on the basis of conduct despite the failure of the express agreement to give such powers, and indeed, even though they are specifically prohibited by the original agreement creating the agency .... Any implication of authority from the conduct and relations of the parties and the circumstances of the case must be limited, however, to acts of the character of those which the supposed assent is given or incidental thereto, and does not extend to acts or transactions which are generically different.... Authority may be implied where the principal habitually or regularly permits the agent to pursue a particular course of conduct, or has repeatedly acquiesced in and adopted similar acts by the agent .... Although more convincingly deducible from a series of transactions and not capable of *636 establishment from any single act or matter standing by itself, it may, nevertheless, be implied from a single transaction.... Conduct and circumstances subsequent to the transaction are pertinent and may be considered in determining what was the mandate of the agent.
2A C.J.S. Agency § 155. Pp. 783-784 (citing, among numerous others, Penthouse Intern., Ltd. v. Barnes, 792 F.2d 943, 947 (9th Cir.1986) (photographer had implied actual authority to add handwritten term "AKA" to modify magazine's model release contract to require that only fictitious name could be used in connection with photographs of model, where photographer had previously placed such term on other contracts with no objection from magazine) (emphasis added). See also United States v. Flemmi, 225 F.3d 78, 90 (1st Cir.2000) (federal prosecutor could ratify FBI agents' unauthorized promise of immunity to informant for racketeering sting, if he knew of it, failed to repudiate it, and accepted its benefits) (discussed further below), cert denied, 531 U.S. 1170, 121 S.Ct. 1137, 148 L.Ed.2d 1002 (2001); FDIC v. Barrasso, 791 F.2d 1529, 1531 (11th Cir. 1986) (general partner's acquiescence to his agent's series of acts gave agent authorization to perform similar acts in the future); Unit. Tech. Com. v. Intern. Broth. of Elec. Wkrs, 597 F.Supp. 265, 284 (S.D.N.Y.1984) (foreman and shop steward became agents of union for purposes of illegal work stoppages when they acted in furtherance of union's total job policy, and union failed to take any action to curtail stoppages)).[5]
Implication from a course of dealings has broader consequences than a one-time "ratification." Ratification occurs when an agent acts without authority and the principal with knowledge of all material facts subsequently adopts the transaction by express affirmation, acceptance of the benefits of the transaction, or silence. Ratification apparently only creates implied actual authority for the agent in the disputed transaction. "Course of dealings," however, creates implied authority to do similar acts in the future.[6] In this case, the theory of defense would have to be that the principal and agents had a course of dealings in which they ratified past illegal activities by Fulcher either by silence or acceptance of benefits (prosecutions). This course of dealings in which actual authority was created by repeated ratifications gave agents implied authority, in this case, to let the Fulchers conduct enough low-level illegal activity to develop a case warranting federal investigation.[7]
*637 An element that will be difficult for the Fulchers to prove is knowledge by the principal of the agent's conduct, "which is not only relevant but essential to the existence of implied power." 2A C.J.S Agency § 155 "[S]omething must have been done from which the assent of the principal to the particular act in dispute, or acts of that class, can reasonably be inferred." Id. Affirmative acts of the principal are not required, however, since "knowledge of, and acquiescence in, the agent's acts may be enough and may even rest in inference if the agent's course of dealing has been for such time and of such character as to justify the inference." Id. (citations omitted).
Furthermore, a third party's belief is irrelevant to establishing ratification or "course of dealings" authority. Id. (citing Esso Intern., Inc. v. S.S. Captain John, 443 F.2d 1144, 1148 (5th Cir.1971) ("what [a third party] knew or should have known is irrelevant when one is attempting to establish an implied agency. It is the manifestations of the alleged principal and agent as between themselves that is decisive and not the appearances to a third party or what that third party should have known") (citing in turn Restatement (Second) of Agency § 7 (1958); 2 C.J.S. Agency § 99 c)). This is essentially the difference between actual authority implied by course of conduct and apparent authority: to determine the former, a court looks only to the dealings between the principal and agents.[8]
In this case, the parties have tended to pursue straw men arguments when it comes to the course of dealings theory, with the defendants arguing that past failures to prosecute Michael Fulcher for illegal activity constituted ratifications by themselves, and the Government arguing correctly that prosecutors generally have discretion not to prosecute, but arguing incorrectly that this discretion necessarily stymies the Fulchers' public authority defense. Rather, what the Fulchers have to show is that there is at least one past instance in which U.S. agents without expressly authorizing Michael Fulcher via SARC review or U.S. Attorney letter permitted him to commit illegal acts for the purpose of developing information that might lead to an official investigation. Furthermore, they must show that the U.S. Attorney's office knew about these acts at some point and either (1) expressly approved them; (2) accepted the benefits of them by developing a prosecution; or (3) looked the other way. Failure to prosecute Fulcher for these acts is, of course, a necessary condition of this showing, but it does not prove the defense.
There is some precedent for this defense in cases in which the Government is a party. In Frank L. Black, Jr., Inc. v. U.S., 1982 WL 36720, *12 (Ct.Cl. Trial Div.), a civil case, the court discussed Supreme Court precedent concerning a valid use of the above principles:
This court has also recognized that the government can be bound by the acts of agents without actual authority when the agent has been knowingly held out as having the necessary authority. In George H. Whike Construction Co. v. United States, 135 Ct.Cl. 126, 131, 140 F.Supp. 560, 564 (1956), the plaintiff sought to hold the government liable for the representations of an agent who had no actual authority. The evidence indicated that the government official who possessed the actual authority to make the representations in question was aware that his subordinate had made *638 the representations and no attempt was made to deny the representations at the time they were made. The court acknowledged the rule that actual authority is necessary to bind the government but went on to hold that justice required an exception to this rule. In these circumstances to permit Government legal representatives who had such positions and were acting in such circumstances as to lead any normal person to regard them as having capacity to act in the matter, to escape responsibility completely would be like authorizing Government employees to set a trap to lure the unwary into signing a contract.
(Emphasis added.)
The principle of implied authority through ratification has been recognized by a federal circuit court in at least one criminal context. In Flemmi, an informant had been promised use immunity in a racketeering sting by two FBI agents who had neither express authority nor authority implied by position to give it. The First Circuit acknowledged that their promise could still have been ratified:
In principle, the government may be bound by an unauthorized agreement if a properly authorized official subsequently ratifies it. See, e.g., Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1433 (Fed. Cir.1998); Carr v. Runyan, 89 F.3d 327, 331 (7th Cir.1996), 89 F.3d at 332; Howard v. United States, 31 Fed.Cl. 297, 314 (Fed.Cl.1994). But no express ratification transpired here, and ratification can be implied only when the ratifying official knows of the agreement, fails to repudiate it in a timely manner, and accepts benefits under it. See United States v. Beebe, 180 U.S. 343, 354, 21 S.Ct. 371, 45 L.Ed. 563 (1901); Carr, 89 F.3d at 332; Ouimette v. E.F. Hutton & Co., 740 F.2d 72, 78 (1st Cir.1984); see also Restatement (Second) of Agency § 43, at 134.
225 F.3d at 90.
The Government may have made a convincing case that DEA agents had no statutory authority, and no authority implied by their position, to engage the Fulchers in the activities for which they were indicted. However, the Government has not persuasively addressed the long course of dealings between Fulcher and federal law enforcement officials in which the Government may have knowingly accepted the benefits of unauthorized behavior by the Fulchers in the past. Although the Government argues correctly that failure to prosecute that behavior is not the same as ratification, this does not settle the matter. If the Government has knowingly ratified unauthorized behavior during its course of dealings with the Fulchers, the law of agency allows the Fulchers to have relied upon the implied actual authority of DEA agents to permit them to do similar acts with regard to the BCC investigation.[9]
All of this may, of course, be very difficult for the Fulchers to prove. However, there is already some evidence in the record which suggests such ratifications may have occurred. For instance, when Michael became an official CI for DEA in 1984, he was required to sign a "Statement of Understanding." The document set forth the rules under which Michael could operate, and contains representations such *639 as "I cannot and will not commit any crime whatsoever," "If I do violate any criminal law I can and will be prosecuted," and "Any cooperation given to the DEA will be brought to the attention of the U.S. Attorney's Office." Tr. Hearing, November 8, 2001, Ex. 1 (emphasis added). These authorized representations may establish two key elements of Michael's defense, assuming Michael can offer sufficient examples: (1) that the U.S. Attorney's Office or DEA headquarters knew of any illegal behavior by Michael while he was a CI; and (2) that they ignored it or ratified it by using the information gained through illegal activity in prosecutions, without prosecuting Fulcher himself. In other words, Michael's activity while a CI could show that the U.S. Attorney's Office and DEA had a course of dealings with Fulcher in which they routinely ignored their own authorization procedure.
Examples of this kind of custom may be found in Fulcher's pre-1990 drug transactions, in which he would "circulat[e] in a level of society" until he found opportunities to purchase drugs; he would then call Lincoln for permission to buy and transport the drugs. See Tr. Hearing at 52. Presumably, the amounts involved would also have allowed the Government to prosecute Fulcher for intent to distribute and conspiracy as well as possession, if it had a mind to. While not as egregious, in the eyes of Justice Department policy, as "letting drugs walk" or "letting the money walk," there is no indication that any kind of sign-off procedure was used in these instances. See, e.g., Tr. Hearing at 55-56 (in which Lincoln describes how an undercover investigation is properly "initiated"). At one point during Michael's term as a CI, the DEA "loaned" him to the ATF to assist with a weapons investigation. Lincoln could not say, however, whether Fulcher's undercover weapons buys for the ATF involved any specific approval by the U.S. Attorney; he also has never seen formal initiation reports generated prior to those stings. Tr. Hearing at 57-58. Yet if the Government prosecuted parties based on Fulcher's actions in such circumstances, it presumably knew and accepted the benefits of the illegal activity approved initially by lower-level law enforcement agents.
The Government's position has been that Fulcher was "official" prior to 1990, and that evidence of illegal activity by him during investigations within this period is irrelevant. But if the Government ratified DEA's use of illegal behavior while Fulcher was a CI in contravention of its own rules and representations to Fulcher there is no reason to believe they must have stopped this course of dealings after Fulcher lost his official status. For instance, the Court found after the first trial that:
on previous occasions Michael, trying to reduce his prison time, had investigated illegal activities without obtaining permission from government agents. Although sometimes placing Michael in danger, Lincoln testified that in some instances government agents did not tell Michael that they would not pursue his information because he had impermissibly placed himself in danger; rather, investigators often accepted the information obtained by Michael despite the threat of danger. Michael endangered himself, for instance, when preparing the tax fraud case for the IRS in 1993, and yet the Government relied on Michael's efforts anyway. Furthermore, Lincoln testified that no one ever told Michael he could be prosecuted for his actions in the IRS case, even though he had aided and abetted criminal activity while gathering the information.
Mem.Op. at 10 (emphasis added). See also Tr. Hearing at 12 (Fulcher possessed the typewriter on which the bogus returns had been typed, an act which could constitute *640 conspiracy or aiding and abetting tax fraud); 44-45 (Lincoln taught Fulcher how to develop a case, including the "paper trial;" when Fulcher approached Lincoln about the IRS cases in 1993, he had already established one, with documented evidence kept by his mother); and 58-59 (the investigation would have been authorized only after Fulcher turned his evidence). In his testimony concerning the IRS cases, Lincoln admitted all the (elements of a direct Government ratification of Fulcher's behavior, as well as tacit approval by law enforcement agents and the U.S. Attorney's office). The same can be made with regard to Mrs. Fulcher's loans of "flash money" to Michael. Tr. Hearing at 53. In such instances, she would have been at least guilty of conspiracy. Lincoln testified that he knew Michael generally used family members to help in most of his investigations. Tr. Hearing at 59. However, Rosanna and Ethel Fulcher were never required to sign a Statement of Understanding, and were never made CI's. The Fulchers have alleged that proof of similar ratifications exists with regard to the ATF weapons case, a high-profile drug prosecution in the Western District of Virginia,[10] and other cases. Thus, the fact that Michael Fulcher was no longer an official CI after 1990 appears not to be particularly significant.
"Lincoln admitted that, even when Michael previously investigated crimes without government approval, the information he gathered was still helpful. As Lincoln explained, `[the DEA doesn't] turn down information.'" Mem.Op. at 11 (citing Lincoln June 29, 1999 Test. at 25.) Although Lincoln's statement is not per se an admission of ratification, a logical inference can be made that if the DEA ever used, in prosecutions, information from unauthorized investigations that involved illegal acts by Michael, the U.S. Attorney's Office at some point would likely have known about Michael's unauthorized activity. Knowing acceptance of the benefit of this information would constitute ratification of the unauthorized investigation in question and help support the claim that this was a customary practice.
The Fulchers had been convicted for activities involving the sale of very small ("teaspoon-size") quantities of marijuana at BCC. Though federal law enforcement agents may not have statutory authority to let money or drugs "walk," they do have implied authority to overlook de minimus transactions. For instance, sometime during an ATF investigation, Fulcher procured for himself an unregistered gun with a silencer, of which the U.S. Attorney's Office knew. Tr. Hearing 80-81. Even if the U.S. Attorney's decision not to prosecute Fulcher over the gun was not by itself a ratification of his purchase, the incident still severely undercuts the Government's assertions that DEA agents would have a absolute duty to turn in Fulcher if they knew he sold even very small amounts of drugs or let very small amounts of money walk. Indeed, Special Agent Mendrala admitted on cross examination that he could conceive of instances involving $30 worth of drugs or advanced drug money which DEA would not have to report to the U.S. Attorney.
Q. [A]s a supervisor, you're not going to fire anybody because they [didn't] turn in mama's phone call about the dime bag?
A. Right.....
Tr. Hearing at 91.
Mendrala also admitted that the DEA manual allows insignificant (a gram of cocaine or less) amounts of drugs to walk *641 when given, for example, as samples. Tr. Hearing at 100-101. These examples undermine the Government's representation that DEA Agents can't permit or acquiesce in an informant's decision to engage in distribution or "laundering" in de minimus amounts.
In holding earlier that the Fulchers should have a new trial, I necessarily found that the Lincoln evidence was material to the Fulchers' public authority defense, and would probably result in acquittal at trial. Mem.Op. at 13 (citing Fed. R.Crim.P. 33); United States v. Rhynes, 196 F.3d 207, 218 (4th Cir.1999) (other citations omitted). I found this using a definition of the public authority defense which required DEA agents to have actual authority. The Fourth Circuit affirmed. 250 F.3d at 254-255. On this third review, I again find the Lincoln evidence, as well as evidence of the Fulchers' history of cooperation with law enforcement, to be relevant, material and favorable to the Fulchers' defense. Accordingly, I deny the Government's motion to exclude the evidence.
B. The Lincoln evidence is relevant, material, and favorable to the Fulchers on the defense of estoppel by entrapment.
Following receipt of the Lincoln letter, the Fulchers have also advanced "estoppel" or "entrapment by estoppel" as a separate defense. In Baptista-Rodriguez, the court defined the defense as follows:
[Another] possible defense in cases like the present one is "entrapment by estoppel." This defense applies when a government official tells a defendant that certain conduct is legal and the defendant commits what would otherwise be a crime in reasonable reliance on the official's representation. See United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir.1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir.1988) (applying defense to defendant who claimed government officials solicited, encouraged, and assisted his efforts to smuggle weapons to rebels in Afghanistan).
17 F.3d at 1368 n. 18, accord, Pitt, 193 F.3d at 758; Holmquist, 36 F.3d at 162 n. 10. In United States v. Smith, 940 F.2d 710, 714 (1st Cir.1991), the court distinguished this defense from mens rea defenses as follows:
Unlike [the "innocent intent" defense], entrapment by estoppel rests upon principles of fairness, not defendant's mental state. The defense may, therefore, be raised in cases like this in which the offense has no requirement of specific intent. See United States v. Hedges, 912 F.2d at 1405.... The defense of entrapment by estoppel is predicated upon fundamental notions of fairness embodied in the Fifth Amendment's due process clause. Whether the prosecution of a defendant violates his due process rights depends not solely upon whether he was incorrectly informed or misled by a government official, but upon the totality of the circumstances surrounding the prosecution.
The Third Circuit has explained that the defense "rests not on the defendant's state of mind, but on a due process theory that shifts the focus from the conduct of the defendant to the conduct of the government." Pitt, 193 F.3d at 759.
The Government did not argue against the applicability of this defense on appeal in Fulcher, and it was not discussed in my Memorandum Opinion. This may be due to the Government's position that entrapment by estoppel is identical to the public authority defense. See Government's Reply to Defendants' response to Government's Brief in Support of Motion to Reinstate Jury Verdict, 3 ("[t]he public authority defense is also known as `entrapment by estoppel.'"). As the decisions *642 cited above make clear, entrapment by estoppel is a separate defense. See also, Mark S. Cohen, "Proof of Defense of Entrapment by Estoppel." 53 Am.Jur. Proof of Facts 3d 249, § 20 (explaining that entrapment by estoppel, unlike the public authority defense, does not require the government to have actually asked the defendant to engage in the prohibited conduct).
The defense appears to be a fundamental fairness exception to the often harsh rule that ignorance of the law is no excuse. By shifting the focus of judicial inquiry from government actors' status to those actors' actions within the totality of circumstances, entrapment by estoppel does not require a threshold determination that the government actor was correct in making his representations. Indeed, Pitt, Holmquist, and Baptista-Rodriguez were all cited by the Fourth Circuit in Fulcher for the rule that reliance on "apparent" public authority was no defense. 250 F.3d at 254. Yet in each of these three cases, courts adjudicated the viability of an entrapment by estoppel defense separately from the viability of the public authority defense. See Pitt, 193 F.3d at 757-758 (rejecting an instruction on the public authority defense because there was no evidence of actual authority, but holding that an "entrapment by estoppel instruction was the proper instruction"); Holmquist, 36 F.3d at 162 (a defendant's mistaken belief that his acts were authorized might negate specific intent under an estoppel by entrapment theory) (citing U.S. v. Anderson, 872 F.2d 1508, 1517 (11th Cir.) (rejecting apparent public authority defense, but acknowledging that defendant's mistaken belief that his acts were in fact properly authorized might negate specific intent), cert. denied, 493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989)); see also Baptista-Rodriguez, 17 F.3d at 1368 n. 18 (explaining entrapment by estoppel as a defense distinct from the public authority defense).
The positions of the parties in Pitt were nearly identical to the present case. In Pitt, a drug defendant sought to use evidence of his reliance on U.S. Customs' agents implicit permission to make the alleged deal. Like the Government in this case, the prosecution in Pitt opposed the defense as a matter of law because only the Director of Customs, in conjunction with a sign-off from the U.S. Attorney, could sanction a foreign drug deal of the magnitude involved in that case. 193 F.3d at 757. Against this, the defendant proffered evidence of past contracts with Customs to work as a confidential informant, the fact that Customs agents were aware that Pitt would work on cases without a specific contract, and agents' knowledge of his plan. Id. Like Fulcher, Pitt argued that "it could be inferred that he was authorized to engage in preliminary transactions ... to gain the confidence of the Colombian cartel." Id. (emphasis added). The Third Circuit upheld the district court's refusal to instruct on a public authority defense. However, the circuit court, like the district court before it, held that Pitt's evidence justified the submission of the entrapment by estoppel defense. 193 F.3d at 758.
Indeed, entrapment by estoppel fits this case even better than it did the facts in Pitt. In Pitt, government agents denied all knowledge of the drug transaction. The jury in Pitt thus had to make what was essentially a credibility determination. Here, Lincoln has admitted knowledge of at least part of Fulcher's plan, and corroborated defendant's assertions that other DEA Task Force members knew of it too.[11] The Lincoln *643 evidence, all other evidence concerning government representations to the defendants, the government's past mode of operating with Fulcher, and "defendant's belief that the conduct would later be ratified or accepted by law enforcement officials," are all relevant and favorable to the Fulcher's defense of entrapment by estoppel, and will be admissible for that purpose as well.
C. The probative value of the Lincoln evidence is not substantially outweighed by risk of confusion of the issues.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues, or misleading the jury." Fed.R.Evid. 403. As I have explained above, the Lincoln evidence is relevant to the defenses of public authority and entrapment by estoppel, as well as other defense positions newly articulated by the Fulchers. Indeed, this evidence has already warranted a new trial and caused a substantive change in the defendants' strategy even as to actus reus elements of the crimes charged. Though testimony heard during the hearing of November 8, 2001 diminishes its weight as to the public authority defense, it is still the most probative evidence the defendants have with which to establish certain elements of their affirmative defenses, and its corroborative effect on all defenses is undeniable. Furthermore, I do not find the risk of confusion of issues substantially to outweigh the probative value of the evidence. Given the Fourth Circuit's clarification of the public authority defense in Fulcher, it is certainly possible to provide jury instructions and closing arguments which make clear to the jury what elements of that defense have to be established by the evidence. If the Fulchers ultimately fail to provide more than a scintilla of evidence for any element of their affirmative defenses, I will still have discretion to deny an instruction on one or both of these defenses and to give the appropriate limiting instruction.
D. Reinstatement of the guilty verdicts would be procedurally inappropriate.
The weight of the Government's evidence notwithstanding, I do not feel that exclusion of entire affirmative defenses is appropriate at this stage in the proceedings. Certainly, reinstatement of the guilty verdicts is not procedurally appropriate.
For one, the Government has provided me with no precedent in which a district court has reinstated guilty verdicts after granting a new trial, especially upon the basis of new, substantive evidence presented outside of the hearing of a jury and over the objections of the defendants. Unlike in normal hearings of motions in limine, in which threshold questions of relevance and foundation are determined, the Government essentially asks me here to pass summary judgment on an entire category of exculpatory defenses. Having found previously that at least some of the Lincoln evidence is favorable to the Fulchers, I do not see how I could grant the Government's motion now without inappropriately ruling on the weight of the evidence.
*644 Second, I am mindful that the Government's motion did not require the Fulchers themselves to come forth with all of their evidence-in-chief for their asserted affirmative defenses, and the Fulchers did not testify at the November 8, 2001 hearing. The Government presented its motion as one in which it sought to introduce evidence which it said would foreclose any public authority defense. To have required the Fulchers to put on their entire defense with a motion to reinstate guilty verdicts pending would have been equivalent to conducting a mini-trial outside of the hearing of the jury. Absent such a mini-trial, we do not yet know exactly what representations or admissions, if any, were made to the Fulchers concerning DEA and Justice Department procedure or what authorizing officials might have known or said about their plans. Jury trial is the appropriate vehicle for hearing this evidence.
Third, the Lincoln evidence is relevant to more than the public authority defense. As I previously held in the Memorandum Opinion, the Lincoln evidence both corroborates the Fulchers' position that Michael never actually sold any drugs at BCC, and makes relevant Michael and Ethel Fulcher's proffered testimony of past, pre-indictment cooperation with federal law enforcement authorities, testimony which I had previously barred from trial. Mem. Op. at 17-27. The Government did not challenge these holdings on appeal. They are now the law of the case. In addition, I held that new evidence putting prosecution witness Victoria Hairston's credibility in question, as well as lack of evidence for Michael's Continuing Criminal Enterprise (CCE) conviction, might themselves warrant a new trial. Mem.Op. at 28-30. The Lincoln evidence is also relevant to the entrapment by estoppel defense. Thus, even were I inclined to grant the Government's argument with regard to the public authority defense, reinstatement of the guilty verdicts is not warranted.
Fourth, there already exists a procedure by which I can bar the Fulcher's reliance defenses based upon the weight of the evidence. Fourth Circuit courts may also refuse to give jury instructions on a theory of defense when there is no more "than a mere scintilla" of evidence in support of it. United States v. Phan, 121 F.3d 149, 153 (4th Cir.1997); United States v. Singh, 54 F.3d 1182, 1189 (4th Cir.1995). This rule strikes a fair balance between letting a criminal defendant defend himself at trial and keeping the jury's deliberation free of frivolous affirmative defenses or confusing evidence. If the Fulchers fail at trial to present more than a mere scintilla of evidence concerning actual authority, I am free to grant an appropriate motion to strike the whole defense.
Finally, I note that the Government argued on appeal that the Lincoln evidence was cumulative "because the defendants could have testified regarding their own intent and, in particular, Michael could have testified about his conversations with Parker or Lincoln." 250 F.3d at 250. Having taken the position that the Fulchers could have testified on these matters at the first trial, the Government is not free now to argue that they cannot.
IV CONCLUSION
For the foregoing reasons, the Government's Motion to Reinstate the Verdict is DENIED and its Motion in Limine OVERRULED. The Lincoln evidence will be admissible for the defendants' public authority defense, and other defense uses previously recognized by this Court.
An appropriate order shall issue.
*645 ORDER
Before me is the United States' (hereafter, the "Government's") Motion to Reinstate Jury Verdict and Motion in Limine on Remand from the Fourth Circuit Court of Appeals filed June 13, 2001 [Document No. 546], as well as Defendant Michael Fulcher's Motion to Adopt Co-Defendants' Response to Government's Brief and Motion to Reinstate filed December 11, 2001 [Document No. 566], and Rosanna Fulcher's motion to adopt and have the benefit of Ethyl and Michael Fulcher's responses to the Government's brief and Motion to Reinstate, stated in her Defendant's Response to the Government's Brief in Support of Motion to Reinstate [Document No. 567] (collectively, "Fulchers' Motions to Adopt").
The parties were heard in oral argument before the Court on August 31, 2001 and November 8, 2001. For reasons set forth in the Court's Memorandum Opinion, filed contemporaneously herewith, the Government's Motion to Reinstate Jury Verdict is DENIED and its Motion in Limine OVERRULED. It appearing that there has been no objection to the Fulchers' Motions to Adopt, those Motions are GRANTED.
The Clerk is directed to send a certified copy of this Order to all counsel of record.
NOTES
[1] At trial, the Fulchers sought to introduce evidence of Michael's past work as an informant, Ethel's assistance in such matters, and Ethel's and Rosanna's knowledge of this work to support their public authority.
[2] Because I had already held that the Lincoln evidence warranted a new trial, I dismissed the Fulchers' arguments concerning Hairston and the CCE evidence as moot. Mem.Op. at 30-31.
[3] Michael Fulcher, a former CI for DEA, had been terminated as of March 14, 1990 for leaking details of an ongoing investigation, and never reinstated. Tr.Hearing, Ex. 2 (approved Form DEA 6).
[4] The relevance of this evidence is discussed in Sec. III of this Opinion.
[5] For numerous other instances of principal acquiescence and its consequences, see Court Citations, Restatement of the Law (Second) Agency, § 43 ("Acquiescence by Principal in Agent's Conduct") (ALI 1984, cum. supp. 2001).
[6] The C.J.S. suggests that a ratification of even one "dealing" may, in the right circumstances, also create implied authority going forward. Id. (citing, among others, R.V. Smith Supply Co. v. Stephens, 169 Okla. 555, 37 P.2d 926, 929 (1934) (authority may be implied from single act; question concerning whether salesman had implied authority to make contracts permitting return of goods may go to jury where there was only one return credit memorandum in evidence)).
[7] For purposes of applying agency principles, I consider the "principal" in this case to be any relevant entity who had statutory authority to approve the Fulchers' activities in particular, DEA Headquarters, or the U.S. Attorney's Office, as counsel for the United States. "Agents" would appear to be any government agents who reported to the U.S. Attorney in these kinds of matters, i.e., DEA Agents, but also members of the DEA Task Force during the events in question, as well the IRS and ATF in some past cases. For purposes of the public authority defense, the Fulchers were "third parties."
[8] The C.J.S. points out that the third-party's perception and reliance is, of course, relevant to a claim of estoppel. The C.J.S. also notes that the same facts often establish both apparent authority and actual authority. See, e.g., Esso Intern., 443 F.2d at 1148 n. 2.
[9] Since the focus of an implied authority determination is on course of dealings between the agent and his principal, evidence of implied authority in this case is not limited to federal agents' dealings with the Fulchers. Evidence of instances in which the Government allowed the agents involved in this case to permit or "look the other way" with regard to similar illegal acts by other informants would strengthen the case that these agents had implied authority to do the same with regard to the Fulchers.
[10] U.S. v. Robert Keith Needy, Crim. No. 7:99CR00742 (W.D.Va.1993) and several related prosecutions.
[11] The Lincoln evidence corroborates Michael Fulcher's claim that Boutetourt County Sheriff Reed Kelley and Deputy Sheriff Kenny Parker also believed Fulcher's proposed sting operation had been approved by the Government, and discussed details of a possible operation outside of the Bland prison with him.
|
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RANDY G. NAUGLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D17-2744, 4D17-2745, 4D17-3032 and 4D17-3303
[May 30, 2018]
Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Dennis D. Bailey, Judge; L.T. Case Nos.
16013481 CF10A, 16013022 CF10A, 17001296 CF10A and 16010029
CF10A.
Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant
Public Defender, West Palm Beach, for appellant.
No appearance required for appellee.
GERBER, C.J.
We affirm the defendant’s convictions and sentences following a plea.
However, we remand for the circuit court to correct a scoresheet error.
As pointed out in the defendant’s amended motion to correct sentencing
error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), two
misdemeanor charges were erroneously scored as additional offenses
instead of as prior offenses on the defendant’s scoresheet. The circuit
court denied the defendant’s motion, adopting the state’s reasoning that
any error was harmless because the total points would not change as the
result of any correction. We agree that the error was harmless because
the sentence would have been the same. See Brooks v. State, 969 So. 2d
238, 241 (Fla. 2007) (when scoresheet errors are presented via (1) direct
appeal, (2) Florida Rule of Criminal Procedure 3.800(b), or (3) Florida Rule
of Criminal Procedure 3.850, then “any error is harmless if the record
conclusively shows that the trial court would have imposed the same
sentence using a corrected scoresheet”).
However, the proper action should have been to grant the defendant’s
motion for the sole purpose of correcting the scoresheet. See Henion v.
State, ___ So. 3d ___ (Fla. 4th DCA May 16, 2018) (affirming the defendant’s
sentence, but remanding for entry of a properly calculated scoresheet,
even though the sentence would have been the same); but see McCool v.
State, 211 So. 3d 304, 305 (Fla. 1st DCA 2017) (where the defendant’s
scoresheet erroneously included a sixth “prior record” misdemeanor,
sentence was reversed and remanded for resentencing based upon a
correctly calculated scoresheet; rejecting the state’s argument that the
error was harmless because the points assessed for the sixth misdemeanor
offense were the same as those that should have been assessed for
misdemeanor battery as an “additional offense” on the scoresheet).
Based on the foregoing, we affirm the defendant’s convictions and
sentences, but remand for the circuit court to correct the scoresheet error.
The defendant need not be present for the ministerial act of correcting the
scoresheet on remand. Henion, ___ So. 3d at ____.
Affirmed; remanded for correction of scoresheet only.
WARNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2
|
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 11, 2007
No. 07-10182 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00134-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC LAVON SALTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(September 11, 2007)
Before BLACK, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Eric Lavon Salter appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). For the reasons that follow, we
affirm.
I. BACKGROUND
In June 2006, Salter was indicted for one count of possession of a firearm by
a convicted felon. Salter filed a motion to suppress the firearm and dismiss the
indictment on the grounds that the firearm was seized during an unlawful detention
and search. Testimony at the suppression hearing adduced the following:
On April 8, 2006, between 4:00 and 5:00 AM, Sergeant James Wright of the
Evergreen, Alabama Police Department was patroling the Crestview Subdivision,
which consists of several duplex apartment buildings. Sergeant Wright was
familiar with the area because, over the previous twelve years, he had made
numerous arrests for drug- and alcohol-related offenses. He had also been
involved in various homicide, rape, and burglary investigations at the complex. On
the morning in question, Wright observed three people standing partially in the
shadows at the back corner of one of the buildings, near a wooded area. Sergeant
Wright also noticed what appeared to be open containers of alcohol on the ground
in front of the individuals.
After making these observations, Wright drove around the block to the
office area of the apartment complex and called for backup. When Evergreen
2
Police Department Officer Brandon Lisabelle and Conecuh County Sheriff’s
Deputy Stephen Ferguson arrived, all three officers walked to the scene and` found
three persons—one unidentified male and two persons who were later identified as
Salter and his sister, Sharnita Northern—standing together talking. As Sergeant
Wright approached the subjects, he detected the odor of alcohol, but could not
determine the source. Both Wright and Lisabell observed that there were open
containers of alcohol on the ground and that Salter and his sister had open
containers in their hands. The officers shined a light on the three individuals and
told them, “Don’t move.” Wright, who knew many people in the neighborhood
but did not recognize any of the subjects, stated, “I don’t know you and you don’t
know me.” Wright also observed that the subjects appeared nervous, especially the
unidentified male who acted “very suspicious.” Wright then asked the trio for their
names, dates of birth, and social security numbers, and he radioed the information
to the police dispatcher to determine whether any of the subjects had outstanding
warrants.
Wright then asked the trio to face the wall so that he could perform a
weapons pat-down, as he believed that there was a possible threat to the officers’
safety. All three subjects complied with Sergeant Wright’s request, but before the
pat-down began, Salter fled. Wright and Ferguson gave chase and ordered Salter
3
to stop. Salter continued to run and reached toward his pocket. At this point,
Deputy Ferguson deployed his Taser and Salter fell to the ground. Sergeant
Wright handcuffed and searched Salter, finding a .22 caliber handgun and
ammunition in his pants pockets. Afer subduing Salter, Wright returned to his
patrol car where he learned that Salter had two outstanding felony warrants.
According to Northern, she had been residing with her grandmother at one
of the apartments in the complex and was outside with Salter sharing a beer when
the police approached them. They had been outside drinking beer for twenty
minutes when the police arrived, and neither she nor Salter was intoxicated.
The district court denied Salter’s motion to suppress and dismiss. Although
the court found that Salter’s conduct did not violate Alabama’s prohibition on open
containers of alcohol (because that law applied to open containers inside of
vehicles), the court nonetheless concluded that the circumstances gave rise to a
reasonable suspicion that Salter and his companions may have been violating
Alabama’s public intoxication statute. Thus, according to the court, the detention
was lawful pursuant to Terry.1
The court also concluded that the pat-down was supported by reasonable
suspicion, because Sergeant Wright reasonably believed that the trio posed a risk to
1
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
4
the officers’ safety “given the hour (early in the morning), the location (arguably a
high crime area), and the nervousness of one of the suspects.” Finally, the court
determined that even if the initial stop was improper, the seized firearm was
admissible due to intervening circumstances and the doctrine of inevitable
discovery, because the officers discovered that Salter had two outstanding felony
warrants, which would have provided an independent basis for Salter’s arrest and
the discovery of the firearm during a search incident to the arrest.
Salter subsequently pleaded guilty pursuant to a written plea agreement,
wherein he reserved his right to appeal the district court’s denial of his motion to
suppress and dismiss. The court sentenced Salter to 29 months’ imprisonment and
three years of supervised release. Salter now appeals.
II. STANDARDS OF REVIEW
“We review a district court’s denial of a motion to suppress evidence as a
mixed question of law and fact, with rulings of law reviewed de novo and findings
of fact reviewed for clear error, in the light most favorable to the prevailing party
in district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).
III. DISCUSSION
A. The Initial Encounter
The Fourth Amendment guarantees “[t]he right of the people to be secure in
5
their persons . . . against unreasonable searches and seizures.” U.S. Const. amend.
IV. “A seizure under the Fourth Amendment occurs when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a
citizen.” United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003)
(quotation marks omitted). But “not every encounter between a police officer and
a citizen” constitutes a seizure under the Fourth Amendment, as “[t]here is nothing
in the Constitution which prevents a policeman from addressing questions to
anyone on the streets.” Id. (citation omitted). To determine whether a person has
been seized under the Fourth Amendment, “[t]he proper inquiry is whether a
reasonable person would feel free to decline the officers’ requests or otherwise
terminate the encounter.” United States v. Drayton, 536 U.S. 194, 202, 122 S.Ct.
2105, 2111, 153 L.Ed.2d 242 (2002) (quotation marks omitted). Facts relevant to
this determination include whether the officers made any intimidating movements,
displayed an overwhelming show of force, brandished weapons, made any threats,
made any commands, or blocked the individual’s path of exit. Id. at 204, 122 S.Ct.
at 2112.
When a reasonable person would not feel free to terminate the encounter, he
has been “seized,” and the Fourth Amendment is implicated. Franklin, 323 F.3d at
1301. Under Terry, however, law enforcement officers may, consistent with the
6
Fourth Amendment, “stop and briefly detain a person to investigate a reasonable
suspicion that he is involved in criminal activity.” United States v. Williams, 876
F.2d 1521, 1523 (11th Cir. 1989). To constitute a valid Terry stop, the officers
conducting the stop must “have a reasonable, articulable suspicion based on
objective facts that the person has engaged in, or is about to engage in, criminal
activity.” United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000). Although
reasonable suspicion “requires a showing considerably less than preponderance of
the evidence, the Fourth Amendment requires at least a minimal level of objective
justification for making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120
S.Ct. 673, 675-76, 145 L.Ed.2d 570 (2000). It “must be more than ‘an inchoate
and unparticularized suspicion or hunch.’” Powell, 222 F.3d at 917 (quoting Terry
v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)).
“A reasonable suspicion of criminal activity may be formed by observing
exclusively legal activity,” United States v. Gordon, 231 F.3d 750, 754 (11th Cir.
2000), even if the activity is “seemingly innocuous to the ordinary citizen.” United
States v. Smith, 201 F.3d 1317, 1323 (11th Cir. 2000). And although a person’s
“presence in an area of expected criminal activity, standing alone, is not enough to
support a reasonable, particularized suspicion that the person is committing a
crime[,]” the police “are not required to ignore the relevant characteristics of a
7
location in determining whether the circumstances are sufficiently suspicious to
warrant further investigation.” Wardlow, 528 U.S. at 124, 120 S.Ct. at 676. Thus,
an area’s reputation for criminal activity is a factor that may be considered when
determining whether reasonable suspicion exists. Gordon, 231 F.3d at 755-56.
“[T]he police may draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them
that might well elude an untrained person.” Lindsey, 482 F.3d at 1290-91
(quotation marks omitted). As such, “[r]easonable suspicion is determined from
the totality of circumstances and collective knowledge of the officers.” United
States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006).
The Government argues that no seizure occurred when the officers initially
confronted Salter and his companions and asked them for their identification. To
that end, the Government asserts that the seizure did not begin until Sergeant
Wright asked Salter and the others to submit to a pat-down. Salter counters that
the initial encounter was a non-consensual seizure at the outset, as “it was clear”
that neither he nor his companions were free to leave. We need not decide this
question, however, because, as discussed below, even if the seizure began when
Sergeant Wright confronted the trio and told them not to move, there was an
objectively reasonable suspicion that criminal activity was afoot, thereby justifying
8
a brief investigatory detention pursuant to Terry.
Before the officers approached Salter and his two companions, Sergeant
Wright had observed (1) three individuals congregating at the back corner of an
apartment building near the woods, (2) in the early morning hours (between 4:00
and 5:00 AM), (3) with what appeared to be open containers of alcohol, (4) in an
area where numerous drug- and alcohol-related arrests had been made. And upon
approaching the trio, there was a detectible odor of alcohol. At this point, viewing
the facts in the light most favorable to the Government, objectively reasonable
suspicion existed that Salter and the others were engaged in “criminal activity,”
including possibly violating the public intoxication statute.2 As such, the officers
were justified in detaining the trio to determine whether they were inebriated to the
point of being a danger to themselves or others in violation of the statute. Thus,
2
Alabama’s Public Intoxication Act provides that:
A person commits the crime of public intoxication if he appears in a public place
under the influence of alcohol, narcotics or other drug to the degree that he
endangers himself or another person or property, or by boisterous and offensive
conduct annoys another person in his vicinity.
Ala. Code § 13A-11-10(a). Although Sergeant Wright may have been mistaken as to whether
the mere presence of the open containers of alcohol, in and of itself, constituted a violation of the
public intoxication statute, given the totality of the circumstances, the officers had an objectively
reasonable suspicion that Salter and his companions were in violation of the public intoxication
statute. See United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003) (“[A] mistake
of law cannot provide reasonable suspicion . . . to justify a traffic stop” pursuant to Terry.
(emphasis added)); but see United States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006) (“[T]he
question . . . is not whether a specific arresting officer . . . actually and subjectively had the
pertinent reasonable suspicion, but whether, given the circumstances, reasonable suspicion
objectively existed . . . .” (emphasis added)).
9
the district court did not err in holding that the detention was lawful.
B. The Pat-down
In general, unless there is consent, police officers must obtain a warrant
supported by probable cause to justify a search under the Fourth Amendment.
United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). A warrantless
search of a person is therefore presumptively unreasonable. United States v.
Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983). But under Terry, an officer may
frisk or pat-down an individual in order to conduct a limited search for weapons
where the officer has reason to believe that the individual is armed and dangerous.
Terry, 392 U.S. at 27, 88 S.Ct. at 1883. “Once an officer has legitimately stopped
an individual, the officer can frisk the individual so long as ‘a reasonably prudent
man in the circumstances would be warranted in the belief that his safety or that of
others was in danger.’” United States v. Hunter, 291 F.3d 1302, 1307 (11th Cir.
2002) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883).
Salter argues that the pat-down of his person was unlawful because the
officers had no reason to believe that their safety or the safety of others was in
danger. We disagree.
As discussed above, upon approaching Salter and his companions, the
officers had an objectively reasonable suspicion that the trio was engaged in
10
criminal activity, justifying their detention. Moreover, after the officers asked for
the trio’s names and social security numbers, Sergeant Wright noticed that all three
individuals acted nervous and that the unidentified member of the trio acted “very
suspicious.” In addition, given that (1) the trio had gathered in the early morning
hours, (2) in a high-crime area where Sergeant Wright had been involved in
numerous investigations, including homicide investigations, over the previous
twelve years, (3) there was a perceptible odor of alcohol, (4) a six-pack container
of alcohol lay on the ground next to the trio, and (5) Salter and Northern held open
beer bottles in their hands, “‘a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger,’” Hunter,
291 F.3d at 1307 (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883), thereby
justifying a Terry pat-down for weapons. And even if the totality of the
circumstances did not warrant a belief that the trio posed a danger when Sergeant
Wright initially asked them to submit to a pat-down, by the time the officers
actually performed the pat-down, Salter’s flight, in tandem with the
aforementioned circumstances, provided sufficient reason to believe that Salter
posed a danger to others. Accordingly, the district court did not err in holding that
the weapons pat-down was lawful.
11
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
12
|
671 F.2d 237
109 L.R.R.M. (BNA) 3234, 93 Lab.Cas. P 13,257
CAPITOL-HUSTING COMPANY, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 81-1116.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 27, 1981.Decided Feb. 16, 1982.
Donald F. Peters, Jr., Law Office of Sidney R. Korshak, Chicago, Ill., for petitioner.
James D. Donathen, N.L.R.B., Washington, D. C., for respondent.
1
Before CUMMINGS, Chief Circuit Judge, SPRECHER, Circuit Judge, and GRANT, Senior District Judge.*
2
GRANT, Senior District Judge.
3
This case comes before this court upon the petition of Capitol-Husting Company, Inc. (hereinafter "Capitol"), to review and set aside an order of the National Labor Relations Board (hereinafter "the Board") issued on September 9, 1980 (252 N.L.R.B. No. 9), and upon the cross-application of the Board for enforcement of that order. The Board found Capitol in violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (hereinafter "Act"), 29 U.S.C. § 158(a)(1) and (5),1 by reneging on an agreement to match the provisions of a contract the Union had reached with another company and by unilaterally changing the health insurance and pension plans for employees who had initially joined a strike but later returned to work.
Background
4
Capitol is a Wisconsin corporation engaged in the wholesale of liquor and other related products. It employs approximately 14 employees. The Union, Teamsters, Local 344, Sales and Service Industry affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is the recognized bargaining representative of Capitol's employees.
5
Prior to 1974, Capitol had negotiated with the Union as a member of a multi-employer association. Two members of this association, Metropolitan Liquor Company and Edison Liquor Company, were competitors of Capitol. The association disbanded in 1974 and since that time, the Union has bargained and negotiated contracts with the former members on an individual basis. Capitol signed its initial contract with the Union in 1974 for a three-year term and in 1977 negotiated a second contract with the Union which extended the previous contract for one year. This second contract expired on August 1, 1978.
6
In a letter dated June 20, 1978, the Union requested that Capitol commence bargaining for a new contract. Included with the letter was the Union's initial set of bargaining demands. Similar bargaining requests were made of Metropolitan and Edison. The first meeting between Capitol and the Union took place on July 17, 1978. Representing the Union were Carl H. Maahs, the Union's Business Representative, Robert H. Biel, the Union Steward, and Philip Schwab, a member of the bargaining committee. Representing Capitol were James Alevizos, President, and Gregory Alevizos, Vice-President. During the course of this meeting, James Alevizos expressed a reluctancy to be the first among Metropolitan, Edison and Capitol to agree on a new contract. Alevizos felt the delicate competitive balance which existed between Capitol and the other two companies might be threatened should Capitol be the first to reach an agreement and later discover that Metropolitan or Edison negotiated more advantageous agreements. In light of this concern, he responded to the Union's demands by offering to extend the existing contract for an additional year. Maahs and Biel testified that after further discussion, Alevizos stated that if "Metropolitan or Edison give anything, (Capitol) will give the same." Although the Union did not express any formal acceptance to this offer, it did firmly rely upon it by ending the meeting and directing all of its efforts exclusively toward reaching an agreement with Metropolitan or Edison.
7
Not achieving any success in its negotiations with Metropolitan or Edison, the Union met briefly with Capitol on September 6, 1978. At this meeting, Maahs expressed a willingness to make some movement if Capitol would do the same. James Ballsieper, Capitol's Comptroller and principal spokesman at this meeting, merely offered to extend the existing contract for another year. There was no discussion or even mention of Capitol's July 17 offer to match.
8
A third meeting took place on November 2, 1978, at the behest of a federal mediator. Metropolitan and Edison were in attendance in addition to Capitol and the Union. The purpose of this meeting was to break the stalemate which existed in all of the separate negotiations. No progress was made. As of September 6, there was no discussion or mention of Capitol's July 17 offer to match.
9
Shortly after the November 2 meeting, the Union struck Metropolitan. This action resulted in productive negotiations between those two parties which culminated in an agreement being reached on November 8, 1978. The two-year contract provided for a 70 cent an hour retroactive wage increase, a wage "reopener" at the end of the first year and a $4 per week additional contribution by Metropolitan to the pension fund in the second year. The contract was ratified by Metropolitan employees on November 8.2
10
On November 9, 1978, the Union met with and informed Capitol of the Metropolitan agreement. Maahs called upon President Alevizos to honor his July 17 agreement to match. Alevizos refused and offered only to extend the existing contract for an additional year. Never expressly denying that he had agreed to match, he claimed that adopting the Metropolitan contract would be "economic suicide." The meeting concluded with this dispute. Subsequent telephone conversations between the Union and Capitol failed to resolve the conflict.
11
On approximately November 14, 1978, the Union struck Capitol in support of its bargaining demand that Capitol fulfill its agreement to match the Metropolitan contract. Capitol responded by hiring eleven permanent replacements. Additionally, three strikers returned to work. On or about the date the strike commenced, Capitol unilaterally changed the employees' health insurance and pension plans and replaced them with plans of approximately equivalent value. Further attempts to resolve the labor dispute proved fruitless.
NLRB Proceedings
12
On December 7, 1978, the Union filed an unfair labor practice charge alleging that Capitol violated §§ 8(a)(1) and (5) by failing to enter into an agreement which included the provisions of the Metropolitan-Union contract and by unilaterally changing the health insurance and pension plans for the replacements and returning strikers. A complaint was issued on March 16, 1979, with a hearing being held on July 9, 1979.
13
In a decision issued January 28, 1980, Administrative Law Judge Karl Buschmann found that: (1) by agreeing on July 17, 1978, to match any proposal which the Union could obtain from Metropolitan Liquor Company or another liquor company and, when confronted by the Union with such a proposal on November 9, 1978, by reneging on its agreement, Capitol refused to bargain in good faith, in violation of §§ 8(a)(5) and (1) of the Act, and (2) by unilaterally changing the health insurance plans and pension plans for its employees at the commencement of their strike, Capitol violated §§ 8(a)(5) and (1) of the Act. Having found these violations, the ALJ recommended the following remedies:
14
Realizing that Respondent's pledge to the Union to match the offer of Metropolitan or Edison Liquor was generally limited to the economic portion of the contract, and having found that this amounted to "seventy cent an hour increase across the board the first year of the contract, a wage reopener on the second year of the contract and four dollars additional on the pension the second year of the contract," I recommend that Capitol-Husting be ordered to furnish the Union with a complete draft contract containing the above stated wage proposal and Respondent's proposal on all other unresolved items.
15
Having further found that Respondent violated Section 8(a)(5) and (1) by its unilateral change in health insurance and pension plans, I recommend that Respondent be ordered to bargain collectively and in good faith with the Union concerning these items for all its unit employees, as defined in the expired 1977-1978 contract.
16
On September 9, 1980, a three-member panel of the NLRB affirmed the findings, conclusions and recommended remedies of the ALJ with only minor modification.3
Refusal to Adopt the Metropolitan Contract
17
The opinion of the ALJ does not make entirely clear whether the basis of his decision was that an agreement to match was reached on July 17, or whether only an offer to match was made but which was not validly withdrawn before formal acceptance by the Union on November 9, 1978. ALJ Buschmann appears to have reached his decision based upon alternative holdings. For this reason, we shall examine each separately.
18
The principal dispute throughout the proceedings before the Board as well as this court concerns the correct characterization of the negotiations conducted between Capitol and the Union on July 17, 1978. The ALJ concluded that an agreement to match was reached.
19
Considering the negotiations in their entirety and the record testimony, I find that an effective agreement resulted which Respondent repudiated. Maahs' testimony, albeit vague in part, was unequivocal that Alevizos had made a pledge to match any offer of its two competitors. It is also clear that the Union firmly relied upon this commitment by Respondent. Maahs' testimony was fully substantiated by Biel who had been employed by Respondent for many years but who was working elsewhere at the time of the trial in this matter. Further corroboration of the July 17 agreement is found in the minutes which had been taken by Maahs on the same day. Respondent's witnesses, James and Greg Alevizos, denied that they had expressed a promise to match what either Metropolitan or Edison would give, but they did admit to a meeting on that day which dealt with various proposals and their concern about being the first to enter into an agreement. James Alevizos also admitted that Maahs expected them at the November 9th meeting to match Metropolitan's agreement. Further, unrefuted on the record is Maahs' testimony that the success of reaching an agreement with Metropolitan was primarily based upon his representation that Capitol-Husting would match that agreement. I therefore credit Maahs' testimony in this regard and I am convinced that James Alevizos expressed to the Union his commitment to match the financial package which Metropolitan or Edison would agree to.4
20
Capitol challenges this finding and contends that the meeting produced only an offer to match with no expression of acceptance by the Union. It argues that the only manifestation of acceptance by the Union was on November 9, 1978, by express assent. Prior to that time, however, the offer to match had been validly withdrawn. Without an acceptance, either express or implied, there was simply no agreement reached on July 17, 1978, and, without an outstanding offer, there was nothing the Union could accept on November 9, 1978. Therefore, the initial issue before this court becomes whether the finding that an agreement to match was reached on July 17 is adequately supported by the administrative record.
21
Reasoned flexibility in the application of contract law to the field of labor relations is necessary to fully effectuate the policies underlying federal labor law. See N.L.R.B. v. Electra-Food Machinery, Inc., 621 F.2d 956, 958 (9th Cir. 1980); Lozano Enterprises v. N.L.R.B., 327 F.2d 814, 818-19 (9th Cir. 1964). The Supreme Court has recognized that "a collective bargaining agreement is not an ordinary contract." John Wiley & Sons v. Livingston, 376 U.S. 543, 550, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964). See also Lodge 1327, Int. Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Fraser & Johnston Company, 454 F.2d 88, 92 (9th Cir. 1971). In Pepsi-Cola Bottling Co. v. N.L.R.B., 659 F.2d 87, 89 (8th Cir. 1981), the court discussed why common law contract rules do not exclusively govern the collective bargaining setting.
22
In a private commercial setting, the parties voluntarily contract with each other. Traditional contract law therefore provides that an offer terminates if rejected by the offeree, thus allowing the offering party free to strike a bargain elsewhere, with no danger of being bound to more than one contract. In contrast, the National Labor Relations Act compels the employer and the duly certified union to deal with each other and to bargain in good faith. Upon rejection of an offer, the offeror may not seek another contracting party. As explained by the Supreme Court, "The choice is generally not between entering or refusing to enter into a relationship, for that in all probability preexists the negotiations." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1959).
23
In F. W. Means & Co. v. N.L.R.B., 377 F.2d 683 (7th Cir. 1967), this court held that although the technical rules comprising contract law do not necessarily control all decisions in labor-management cases, the normal rules of offer and acceptance are generally determinative of the existence of a collective bargaining agreement. Accord, Lozano Enterprises, 327 F.2d at 819. We also find helpful to our reviewing task the analysis provided by the Court of Appeals for the Ninth Circuit in N.L.R.B. v. Donkin's Inn, Inc., 532 F.2d 138, 141 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 257, 50 L.Ed.2d 179 (1976):
24
In the context of labor disputes, and particularly section 8(a)(5) violations, however, the technical question of whether a contract was accepted in the traditional sense is perhaps less vital than it otherwise would be. Rather, a more crucial inquiry is whether the two sides have reached an "agreement," even though that "agreement" might fall short of the technical requirements of an accepted contract.
25
It is very clear from the record that at the July 17 meeting Capitol did make an unconditional offer to match and the Union failed to expressly accept this offer. The Union's failure, however, even under basic contract law, does not preclude the finding of an acceptance. There is substantial evidence to support a finding that the Union's acceptance can be inferred from its conduct following the making of the offer. This includes the relatively abrupt termination of negotiations and the failure to discuss dates for future meetings and proposed agendas. Under the circumstances surrounding the July 17 negotiations, especially the grave concern President Alevizos expressed about being the first in the industry to enter into an agreement, a reasonable person in the position of Alevizos would have understood that the Union had expressed its assent to Capitol's offer to match. Although we admit that this is a close factual question, we cannot declare the Board's finding of an agreement erroneous under our substantial evidence standard of review.
26
In addition, there is substantial evidence to support a finding that the Union acted reasonably in relying on that offer by postponing further negotiations with Capitol and directing all of its negotiating efforts towards Metropolitan and Edison. The Union was led to believe that a separate contract with Capitol at that time was impossible based upon Alevizos' competitive balance representations. Capitol should have been fully aware of the impact its offer to match might have on its negotiations with the Union. Indeed, approximately fifty days elapsed from the date of the offer to match until the next meeting between Capitol and the Union. During that period, the existing contract expired. Absent the offer to match and the Union's justified understanding of its existence, it is quite probable that further negotiations between Capitol and the Union would have been scheduled sometime during the fifty day period. The Union did detrimentally rely upon Capitol's offer to match and Capitol benefited as the existing contract remained in effect. At the very least, bad faith would be a fair characterization of Capitol's conduct in permitting the Union to leave the meeting with the understanding that there was an agreement to match if there was none.
27
Whether or not an agreement has been reached between two parties is a question of fact for the Board to determine. N.L.R.B. v. Truck Drivers, Etc., Union No. 100, 532 F.2d 569, 571 (6th Cir.), cert. denied, 429 U.S. 859, 97 S.Ct. 160, 50 L.Ed.2d 137 (1976). Moreover, it is well established that a collective bargaining agreement is not dependent on the reduction to writing of the parties' intention to be bound. N.L.R.B. v. Haberman Construction Co., 641 F.2d 351, 355-56 (5th Cir. 1981) (en banc). All that is required is conduct manifesting an intention to abide and be bound by the terms of an agreement. Id. at 356. And an order of the Board will be enforced by this court if there is substantial evidence on the record as a whole supporting it. Atlas Metal Parts Co., Inc., 660 F.2d 304, 307 (7th Cir. 1981); N.L.R.B. v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir. 1981); N.L.R.B. v. Truck Drivers, Oil Drivers, Etc., 630 F.2d 505, 507 (7th Cir. 1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 225 (1981). Based on all of the evidence discussed earlier, we conclude that the finding of an agreement on July 17 is well supported by substantial evidence in the record.
28
Capitol also argues that regardless of whether the July 17 negotiations are characterized as an offer to match or an agreement to match, events subsequent to that date revoked or rescinded whatever obligations may have arisen that day. This argument has no merit to the finding of the agreement to match in this case which we have just concluded is sufficiently supported by the record. The mere fact that the Union met with Capitol subsequent to the July 17 agreement did not alter the contractual obligation of either party. The content of those meetings also lends little support to a claim that the July 17 contract was rescinded.
29
Even assuming as correct Capitol's position that nothing more than an offer to match evolved out of the July 17 meeting, we continue to find no merit in Capitol's position that its offer was effectively withdrawn. Capitol points to four unrefuted facts in the record in support of its argument. First, the Union participated in two negotiating sessions subsequent to the July 17 meeting. Second, in at least one of those sessions the Union expressed a willingness to compromise in order to achieve an agreement. Third, Capitol's only offer at these sessions was to extend the existing contract for an additional year. Fourth, no mention was made at any of the sessions of the offer to match. Capitol contends that all of these circumstances represent an inconsistency in the Union's argument that an outstanding offer to match remained viable and subject to acceptance as late as November 9, 1978.
30
With respect to this withdrawal argument, we find instructive the decision in Pepsi-Cola Bottling Co. v. N.L.R.B., 659 F.2d 87 (8th Cir. 1981). The court there held that an offer, once made, remains on the bargaining table unless explicitly withdrawn by the offeror or unless circumstances arise which would lead the parties to reasonably believe that the offer had been withdrawn.5 In this case, Capitol never explicitly withdrew its offer to match. Its position under the Pepsi-Cola standard is that based on the four unrefuted facts above, the Union should have reasonably believed that the offer to match had been withdrawn. We disagree.
31
This argument was considered and rejected by the ALJ.
32
The fact that subsequent meetings were held during which Respondent merely agreed to extend their contract for 1 year did not revoke or interfere with this understanding, considering the realities of the bargaining process. The Union simply attempted to obtain a contract from any of the three companies, and since it had been unsuccessful for a period of time with Metropolitan or Edison, it continued its efforts with Respondent in an attempt to break the deadlock.... Accordingly, the Union was justified in relying upon Respondent's offer. And, when on November 8th, it had obtained and ratified a contract with Metropolitan and so informed Respondent on November 9th, a binding obligation arose requiring Respondent to execute or finalize the same agreement with the Union. Respondent's refusal to do so amounted to a failure to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. The Walls and Ceiling Contractors Ass'n, 233 NLRB 954 (1977) (enf'd 619 F.2d 585 (6th Cir. 1980) ). Any different conclusion would not only be unfair to the Union and the employees, but also to Metropolitan which had relied upon Respondent's expressed commitment to the Union negotiator.
33
By continuing to seek an agreement through direct negotiations with Capitol, and by expressing a willingness to compromise, the Union was not acting inconsistently with the outstanding offer to match. The Union was in the bargaining position of having two routes to reach an agreement with Capitol. First, by reaching an agreement with Metropolitan or Edison and then accepting the offer to match. Second, by reaching a separate agreement with Capitol and bypassing the offer to match. Reliance on one route did not preclude the Union from concurrently pursuing the other. Its willingness to reinstitute direct negotiations with Capitol and the content of those negotiations were not in anyway inconsistent with the outstanding offer to match, especially in view of the stalemates which existed in the other negotiations. The Union simply took full advantage of the excellent bargaining position it possessed.
34
Nor does Capitol's one year extension offer at the meetings subsequent to July 17 support its position that the Union should have reasonably understood that its earlier offer to match had been withdrawn. The underlying argument is that the offer to extend was inconsistent with the offer to match, thereby impliedly withdrawing the latter. That simply is not true. Just as the Union had two routes to reach an agreement, so too did Capitol. It had the right to pursue either or both routes in an attempt to achieve a collective bargaining agreement. The two routes were not mutually exclusive and by making the offer to match, Capitol was not precluded from negotiating separately with the Union. Capitol was perfectly justified in seeking its own agreement with the Union and not be bound by the provisions of the Metropolitan contract. Negotiating separately with the Union did not extinguish Capitol's offer to match and the Union reasonably understood that. Although it is true that the Union failed to mention the offer to match at any post-July 17 negotiating session, it is also true that Capitol failed to make any mention of its believed withdrawal. Its attempt to rely on an implied withdrawal is ineffective under these circumstances and the inherent nature of collective bargaining. Once an offer is formally placed on the table, reliance on an implied withdrawal poses real danger. It is also interesting to note that when, on November 9, 1978, the Union met with Capitol to inform it of the Metropolitan contract, President Alevizos did not reply by denying the existence of the offer but rather expressed strong dissatisfaction with the terms of that contract. This is not the reaction one would expect from Alevizos had he believed his offer had in fact been withdrawn.
35
For all of these reasons, we conclude that there was nothing to lead the Union to reasonably believe that the offer to match had been withdrawn. There is substantial evidence to support the finding that the July 17 offer to match remained viable at the time of the November 9 acceptance. Thus, we affirm the Board's finding that Capitol violated §§ 8(a)(1) and (5) of the Act by failing to execute an agreement incorporating the provisions of the Metropolitan contract. We, therefore, enforce the Board's order and remedies set forth therein.
36
There are two additional points that require comment. The first is a general claim by Capitol that it is being forced to adopt contractual terms that it never agreed to. We dismiss this argument for the simple reason that we have found that Capitol did in fact agree to match the economic provisions of the Metropolitan contract. Any dissatisfaction with those provisions was an inherent risk assumed by Capitol in its offer and then agreement to match. This court is keenly concerned with not unduly intruding upon the collective bargaining process and the right of parties to make their own agreements. Enforcing the Board's order under these circumstances protects, rather than interferes with, the sanctity and integrity of the bargaining process and in fact effectuates the federal policy of maintaining and promoting "industrial peace." See Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967). There may be no greater danger to stabile and productive union-management relations than reneging on a contract. For this reason, enforcement of the Board's order here is of the utmost importance. The second point is Capitol's claim that even assuming there was in fact an agreement to match, that agreement was limited to one year and the second year provisions of the Metropolitan contract need not therefore be matched. There is nothing in the record to indicate that during the July 17 negotiations, any type of contract duration condition was attached to Capitol's offer. The evidence credited by the ALJ shows that President Alevizos promised that "if Metropolitan or Edison give anything, (Capitol) will give the same." No mention was made at that or any other time that the match was to extend to only one year. Capitol's dissatisfaction with the length of the Metropolitan contract was a risk it assumed when making the offer. It cannot now be heard to claim implied conditions were attached to the offer when the plain language indicates otherwise.
37
Unilateral Change in Health Insurance and Pension Plans
38
The ALJ concluded that Capitol committed no violations when it hired eleven replacement employees and offered them health insurance and pension plans different from those provided for in the expired contract. He did conclude, without explanation, that Capitol violated §§ 8(a)(1) and (5) by changing those benefits for the three returning strikers.6 The issue presented to this court is whether, in the absence of an impasse in negotiations, an employer may unilaterally change health and pension benefits for returning unfair labor practice strikers as it may for replacement employees.
39
In the absence of a true impasse in negotiations, an employer may not unilaterally change the terms and conditions of employment without first granting its employees' exclusive bargaining representative the opportunity to bargain about "mandatory" subjects. N.L.R.B. v. Katz, 369 U.S. 736, 747-48, 82 S.Ct. 1107, 1113-14, 8 L.Ed.2d 230 (1962); Atlas Metal Parts Co., Inc. v. N.L.R.B., 660 F.2d 304, 309 (7th Cir. 1981). Changes in health benefit programs and pension fund contributions constitute mandatory subjects of collective bargaining. See Keystone Steel & Wire, etc. v. N.L.R.B., 606 F.2d 171, 178-79 (7th Cir. 1979) ("Keystone I"); N.L.R.B. v. Haberman Construction Co., 641 F.2d at 357. It is settled that this duty does not extend to the terms and conditions of employment for replacements of striking employees. Leveld Wholesale, Inc., 218 N.L.R.B. 1344 (1975); Imperial Outdoor Advertising, 192 N.L.R.B. 1248 (1971), enf'd, 470 F.2d 484 (8th Cir. 1972). The reason for this principle is that the interests of strike replacements are different from those of strikers and the Union cannot be expected to effectively represent these conflicting interests. This reasoning was affirmed by the Board without comment in Leveld Wholesale, Inc., 218 N.L.R.B. 1344, 1350 (1975):
40
Even after termination of a contract a union represents all the employees in the bargaining unit. That includes both strikers and strike replacements. However, the interests of the two groups are not the same. Strike replacements can reasonably foresee that, if the union is successful, the strikers will return to work and the strike replacements will be out of a job. It is understandable that unions do not look with favor on persons who cross their picket lines and perform the work of strikers.
41
The relationship between returning strikers and strikers was not addressed by the Board in Leveld. It did not need to reach that issue inasmuch as an impasse had been reached in negotiations at the time the strikers returned and the change in benefits had previously been offered at the bargaining table. Nevertheless, the Board did suggest that the interests of returning strikers are more closely aligned to those of the strike replacements than to those of the strikers.
42
Three of the strikers returned to work on or about November 1. With regard to fringe benefit plans, they were treated the same as the strike replacements (i.e., their fringe benefits were changed, id., at 1351). As is set forth above, there is a vast distinction between the interests of a striker and a strike replacement. To a large extent, the striker who crosses the Union's picket line and returns to work adopts the interests of the strike replacement. However, that issue need not be reached, because at the time the three strikers returned to work on or about November 1, an impasse had already been reached. The Company had offered to cover employees under its own fringe benefit plans and the Union had not accepted that offer.
43
218 N.L.R.B. at 1350-51 (emphasis added). Other than this dictum from Leveld, neither the Board nor any federal court of appeal has apparently addressed the issue left unresolved in Leveld. In view of the absence of any impasse in negotiations in this case, we now address it.
44
Section 2(3) of the Act (29 U.S.C. § 152(3)) includes in the definition of employee "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment ...." A striking employee, even if replaced, retains employee status and is entitled to all benefits and protections provided under the Act, including normally the right to reinstatement on application at the termination of the strike. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345, 58 S.Ct. 904, 910, 82 L.Ed. 1381 (1938); N.L.R.B. v. Knuth Brothers, Inc., 584 F.2d 813, 816 (7th Cir. 1978).
45
In this case, it was Capitol's unfair labor practice as found earlier which was a significant factor in the strike by its 14 employees. Employees who engage in work stoppages in protest against such conduct by their employer are said to be unfair labor practice strikers. N.L.R.B. v. Lyon & Ryan Ford, 647 F.2d at 754. The significance in the distinction between unfair labor practice strikers and what are referred to as economic strikers lies primarily in reinstatement rights. Only recently has this court had the occasion to once again set forth this important principle. See Atlas Metal Parts Co., Inc. v. N.L.R.B., supra; N.L.R.B. v. Lyon & Ryan Ford, Inc., supra. In Atlas Metal, 660 F.2d at 310, the court explained:
46
The right to reinstatement of economic strikers differs from that of unfair labor practice strikers. An employer's responsibility to reinstate economic strikers is limited to the employer's legitimate staffing requirements. Chauffeurs, Teamsters & Helpers "General" Local No. 200, AFL v. N.L.R.B., 233 F.2d 233, 238 (7th Cir. 1956). Upon an unconditional offer to return to work, unfair labor practice strikers are entitled to immediate reinstatement to their former jobs or, if those no longer exist, to substantially equivalent positions. N.L.R.B. v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 754 (7th Cir. 1981).
47
In distinguishing the interest of strike replacements and strikers in Leveld, the Board emphasized the fragile job security possessed by the strike replacements. They knew that at the conclusion of the strike there was a strong likelihood that their employment would be discontinued and the strikers would return to their old positions. In an unfair labor practice setting, the fear of displacement is increased for a replacement. This lack of security places replacements in a position quite opposite to those of the strikers. Returning strikers, however, do not share the same concern regarding retention of employment. They have no fear of being displaced at the conclusion of the strike as may the replacements. Thus, the significant distinction considered by the Board in Leveld is not present. We believe that in this case the interests of the three returning strikers are more closely aligned to those of the strikers. Returning strikers are and remain members of the bargaining unit even though they find themselves on the opposite side of the picket line from the strikers. Their interests of course differ to some degree by this fact alone, but the difference is not sufficient to permit unilateral action by the employer. We are not prepared to assume as Capitol would have us do that the reason for returning to work was because of a conflict with the interests of the strikers. Capitol had a duty to bargain with the Union before changing any of the benefits being received by the three returning strikers. By failing to do so, Capitol bypassed the still legitimate and exclusive bargaining agent of the three employees. To permit such conduct would result in a serious undermining of the Union's authority and leave the impression with all employees that the Union is powerless. See Carpenter Sprinkler Corp. v. N.L.R.B., 605 F.2d 60, 64-5 (2d Cir. 1979). This result was clearly expressed by this court in N.L.R.B. v. Keystone Steel & Wire, Etc., 653 F.2d 304, 307 (7th Cir. 1981) ("Keystone II") (footnotes omitted):
48
Where, as here, the employees' expectation for "no change without consent" is defeated by the unilateral action of the employer, the stability of the bargaining relationship is impaired. The likely effect of such instability is to create perceptions of unfairness and of union weakness; the reaction to these perceptions may be increased militancy and labor unrest. Thus, we conclude that the Board's remedy here, correcting a unilateral change in a term or condition of employment, is consistent with an important policy behind the Act.
49
For all these reasons, we hold that an employer may not unilaterally change the terms and conditions of employment for an employee who returns to work after being on strike in protest against an employer's unfair labor practice.7 We, therefore, order enforcement of the Board's decision and remedy.
*
Honorable Robert A. Grant, Senior District Judge of the United States District Court for the Northern District of Indiana, sitting by designation
1
Section 8 of the National Labor Relations Act provides in pertinent part:
(a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7;
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).
2
Notice of ratification was apparently not given to Metropolitan until November 27, 1978. The actual signing of the agreement did not take place until June, 1979
3
That modification of the ALJ's decision entered by the Board concerned testimony by Maahs describing the discussions between himself and Robert Martin during the Union's negotiations with Metropolitan. The Board found it unnecessary to rely on this testimony in affirming the ALJ's decision. We too find it unnecessary and do not reach Capitol's hearsay arguments on this point
4
The ALJ also concluded that Capitol's offer to extend the existing contract an additional year was, in the absence of a lawful impasse or other unusual circumstances, no offer at all since it was already prescribed from making any unilateral changes in the existing relationship. At oral argument and in its brief, Capitol contends this conclusion is erroneous. For purposes of this appeal, this court need not address this question
5
In Pepsi-Cola, the court concluded that an unconditional offer remains open to acceptance even after the other party has rejected the offer or submitted a counterproposal. Although we view with favor the standard employed by the Eighth Circuit for determining whether an offer has been effectively withdrawn in the collective bargaining setting, we intimate no opinion concerning that court's application of the standard where an offer has been rejected. We do not address that question inasmuch as the Union here never rejected Capitol's offer to match. There is also no indication from the record whether the Union submitted any counterproposals subsequent to the July 17 meeting
6
The plans were changed from Union sponsored funds to privately administered funds of an equivalent level. Capitol does not argue that this change did not have a material or significant effect or impact upon a term or condition of employment as was argued by the employer in Keystone Steel & Wire, etc. v. N.L.R.B., 606 F.2d 171, 178-79 (7th Cir. 1979), which involved a unilateral change by the employer of the administrator of a health benefit program. For this reason, we shall restrict our analysis to the only argument raised by Capitol which concerns the status of returning strikers
7
As reinstatement rights differ between unfair labor practice and economic strikers, we limit our holding to the former and leave for another case the issue whether the interests of returning economic strikers are more closely aligned with those of the replacements than with those of the strikers
|
747 F.2d 893
21 ERC 1925, 40 Fed.R.Serv.2d 402
UGI CORPORATION, Ken Pollock, Inc., and Heavy Media, Inc., Appellantsv.CLARK, William P., Secretary, U.S. Department of theInterior, Reed, J. Lisle, Director, Office ofSurface Mining.
No. 84-5466.
United States Court of Appeals,Third Circuit.
Argued Sept. 10, 1984.Decided Nov. 9, 1984.
E. Barclay Cale, Jr., Frank M. Thomas, Jr. (argued), Morgan, Lewis & Bockius, Philadelphia, Pa., for appellants.
David Dart Queen, U.S. Atty., James G. Sheehan (argued), James J. West (argued), Asst. U.S. Attys., Harrisburg, Pa., Stuart A. Sanderson, Dept. of Interior, Washington, D.C., Harrisburg, Pa., for appellees.
Before GIBBONS, HUNTER and GARTH, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
1
UGI Corporation and others appeal from a June 29, 1984 order of the United States District Court for the Middle District of Pennsylvania. The appellees, William P. Clark, Secretary of the Interior, and J. Lisle Reed, Acting Director, Office of Surface Mining move to dismiss the appeal as interlocutory.
2
The case commenced with the filing by UGI of a complaint in the Middle District of Pennsylvania seeking a declaratory judgment that it did not owe reclamation fees under section 402 of the Surface Mining Act. Pub.L. No. 95-87, Title IV Sec. 402, 91 Stat. 457, codified at 30 U.S.C. Sec. 1232(e). One month later the United States filed a suit in the Eastern District of Pennsylvania pursuant to section 402(e) to collect delinquent reclamation fees. Thereafter the Eastern District transferred the suit for collection of unpaid fees to the Middle District, where it was consolidated with UGI's declaratory judgment action. On June 29, 1984 the Middle District entered an order in the declaratory judgment action granting summary judgment in favor of the defendants. That order determined that UGI was liable for reclamation fees under section 402.
3
So far as the record discloses, the reclamation fees still have not been paid, however, and the consolidated collection case has not been disposed of. Section 402(e) provides that "[a]ny portion of the reclamation fee not properly or promptly paid pursuant to this section shall be recoverable, with statutory interest, from coal mine operators, in any court of competent jurisdiction in any action at law to compel payment of debts." The United States is entitled to pursue that claim to a money judgment, and if successful, to take steps to satisfy that judgment.
4
Fed.R.Civ.P. 54(b) provides that "[w]hen more than one claim for relief is presented in an action ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." No such express determination has been made in this instance.1 The rule provides, further, that in the absence of such a determination "any order or other form of decision, however designated, which adjudicates fewer than all the claims ... shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims ...." UGI contends, nevertheless, that the June 29, 1984 order should be considered a final judgment not subject to revision because the court did all it was empowered to do. Plainly, however, that is not so. The United States is entitled to pursue its section 402(e) claim to a money judgment. See United States v. Devil's Hole, Inc., 747 F.2d 895 (3d Cir.1984), filed simultaneously herewith.
5
Since the order appealed from is by virtue of Rule 54(b) still subject to revision, it is not a final judgment within the meaning of 28 U.S.C. Sec. 1291. No other basis for appellate jurisdiction appears in the record. The appeal will, therefore, be dismissed.
1
The order appealed from provides that "[t]he Clerk of the Court is directed to close this case." This direction appears to refer only to the declaratory judgment action, and as to it is not such an express determination as Rule 54(b) requires
|
405 F.Supp. 292 (1975)
Shirley A. HANSHAW, and Judith Bisno, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
DELAWARE TECHNICAL & COMMUNITY COLLEGE et al., Defendants.
Civ. A. No. 74-196.
United States District Court, D. Delaware.
November 7, 1975.
*293 Sheldon N. Sandler and Thomas Stephen Neuberger of Bader, Dorsey & Kreshtool, Wilmington, Del., for plaintiffs.
Barry W. Meekins, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendant Del. Technical & Community College and individual defendants in their official capacities.
Steven J. Rothschild of Prickett, Ward, Burt & Sanders, Wilmington, Del., for the individual defendants in their individual capacities.
*294 OPINION
SCHWARTZ, District Judge.
This civil rights action[1] was brought pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended [all hereinafter by section number only]. The plaintiffs seek both damages (including back pay) and injunctive relief. Certain of the defendants have moved to dismiss the action as to themselves for failure by the plaintiffs to comply with certain requirements of Title VII; failure to state claims against the defendants as individuals; and on grounds of various types of immunity allegedly enjoyed by the defendants, including the Eleventh Amendment and official immunity. For reasons stated hereinafter, the Court denies all motions, except as to the Title VII claim against defendant Benjamin Whaley.
An understanding of the array of motions brought before the Court requires that the facts of this case be described in detail. The individual plaintiffs are academic employees[2] at certain of the campuses of the institutional defendant. The defendants include the Delaware Technical and Community College ("Del Tech"); its Board of Trustees; the membership of the Board of Trustees in their individual and official capacities; the President of Del Tech and two "campus directors"[3] in their respective individual and official capacities.
Plaintiff Hanshaw, a black female, who was a signator to a previous charge of discrimination against Del Tech by a different employee,[4] makes allegations that she was paid a lower salary than that paid to those not members of the purported class; that she was refused a promotion to chair a department; that these actions were based on her race, sex, and her signing of the prior charge; and that such treatment is typical of the treatment of blacks, women and those who signed the previous charge.
Plaintiff Bisno, a white female, alleges she was paid a lower salary than those similarly qualified. Further, she urges she was hired in a capacity created to allow a lower salary to be paid her than paid to non-members of the purported class, who did the same or similar work. She alleges that the discrimination was because of her sex, and because of her signing the previous charge against Del Tech; and that such treatment was typical of the defendants' treatment of women and signers of the charge.[5]
The defendants have brought various motions to dismiss. The individual defendants, in their non-official capacities, brought a motion to dismiss the counts under Title VII on the grounds that they are not proper parties; that they were not named in the charge filed before *295 the EEOC; that there has been a failure by the plaintiffs to allege compliance with the provisions of section 2000e-5(c); and that punitive and compensatory damages are not allowed under Title VII. The same defendants have moved to dismiss the counts brought under sections 1981, 1983 and 1985 on the grounds that an adequate remedy exists under Title VII; that plaintiffs allege no acts by these defendants as individuals; and that they have immunity as government officials. All of the defendants, including the individual defendants in their official capacities, moved to dismiss the counts on certain other grounds: As to the entire complaint, the defendants claim the suit is barred by the Eleventh Amendment. As to the claims brought pursuant to sections 1983 and 1985, the defendants claimed that the State, as the purported real party defendant, is not a "person" within those statutes. And, as to the claimed jurisdiction under 28 U.S.C. § 1343(3), the defendants contend such jurisdiction does not extend to money damages. The same defendants claim, as to the actions brought pursuant to Title VII, that as officials they are not proper parties under section 2000e-5 and that there has been no allegation of compliance with the requirements of section 2000e-5(c). As to the action under sections 1981-85, they contend that the remedy under Title VII is adequate. Finally, the official defendants argue that the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq., does not confer jurisdiction.
The issues were extensively briefed by the parties and oral argument on the matter was heard following consolidation of the motions. Since the motions and other papers filed herein were accompanied by affidavits, the motions have been treated as motions for summary judgments. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Scott v. University of Delaware, 385 F.Supp. 937, 940 (D.Del.1974). For convenience, the motions are treated in the order in which they were submitted to the Court.
I. MOTIONS OF THE INDIVIDUAL DEFENDANTS IN THEIR NON-OFFICIAL CAPACITIES
A. Title VII
1. That Defendants Are Not Proper Parties
The individual defendants contend they are not within the definition of "employer" as stated in 42 U.S.C. § 2000e (b),[6] and therefore are not proper parties under section 2000e-5. This contention, if true, would result in a lack of jurisdiction over the defendants under Title VII. Defendants base their contention on the determination in Gordenstein v. University of Delaware, 381 F.Supp. 718 (D.Del.1974), that the University was the "master" in the employment situation, not the members of the Board of Trustees, and that, therefore, members of the Board were not liable under respondeat superior in an action brought pursuant to 42 U.S.C. § 1983.
The defendants' contention, however, fails to take into account the definition provided for employer under section 2000e(b). Since subsection (a) of section 2000e specifically includes descriptions of several types of entities as "persons",[7] it is not necessary for the members of the Board to be a "person having fifteen or more employees," if the Board members can be considered agents of an institution which is such a person.
*296 It is clear under the definition provided in subsection (a) of section 2000e that Del Tech is a "person" and is, therefore, an employer under subsection (b).[8] The Court need not conclude here that Del Tech is a State agency, but cf., 14 Del.Code § 9102, since if it is not, it is an "unincorporated association" or a "trust" also specifically within the definition.[9]
The Court does not here decide that the individual defendants are agents of the institution. The burden of proving facts to support grant of a summary judgment motion is on the movant. At this juncture the defendants have failed to establish they are not agents. See 6 Moore's Federal Practice ¶ 56.13[3]. As a matter of law, the Board members may be inferred to be agents. By Delaware law, they are given specific powers and duties, to be carried out in the name of and on behalf of Del Tech. See 14 Del.Code § 9105. Since the Board may act only through its members, there is a substantial possibility not negated by the present record, that Board actions accorded with the wishes of the individuals. Indeed, the members' affidavits show that each member of the Board acted as an individual in considering issues before it.[10] Without a stronger showing, the officers cannot divorce themselves from this implied agency. The decisions in Gordenstein, supra, and Carey v. White, 375 F.Supp. 1327, 1329 (D.Del.1974), aside from not being Title VII claims, do not bar this result, since they left open the question of whether persons in the position of superiors of the plaintiff, such as members of a board, might be agents of the organization, deciding only that the organization was itself the employer. This conclusion is especially strong as it applies to the defendants Weatherly, Whaley and Faucett, who are officers of the institution.
2. The Defendants Were Not Named In The Complaint Filed Before the EEOC
The defendants contend plaintiffs have failed to comply with the requirements of section 2000e-5(f)(1), which allows for the filing of a civil complaint only against those who are "respondents" to the charge filed before the EEOC. Scott v. University of Delaware, supra at 940-43, has made clear that the function of the section 2000e-5(f)(1) notice requirement is to allow for voluntary compliance wherever possible. Id. at 941. Further, it is now settled that the Title VII notice requirement will be interpreted in such a way that it is satisfied if the person sought to be included as a defendant knew or should have known that his conduct might be the subject of the inquiry at issue. Scott v. University of Delaware, supra; Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973).
In the instant case, the documents filed before the EEOC and the *297 Delaware Department of Labor (Exhibits A, B and C), while naming Del Tech as the "employer," list as "others who have discriminated against you," the "Board of Trustees"; "Paul Weatherly, President"; and "William Faucett, Executive Director" (Exhibit B only). The plaintiffs urge on that basis that all the defendants except defendant Whaley should have known that they were the subject of a charge of discrimination. Each defendant has by affidavit stated that he or she was not notified by the EEOC; defendants also urge that from a mere reading of the documents they should not have known that they were being charged as individuals, i. e., non-officials. As to defendants Weatherly and Faucett, the second ground is somewhat weaker, since they were clearly named separately as alleged violators. Nonetheless, as to all the defendants, except defendant Whaley, it is concluded that the present record does not negate the possibility that the defendants "should have known" that their conduct was being questioned. Plaintiffs will, therefore, be entitled to prove that the members of the Board of Trustees and the officers named in the various charges filed with the State and the EEOC received sufficient notice that they were potential defendants in a Title VII action.
The claims of "capacity" raised by defendants have no relevancy here. If they knew or should have known that their actions were allegedly discriminatory, then notice to the defendants was to them as individuals and any corrective action would have to be taken by them individually. Defendants' motion on this ground is therefore denied, except as to defendant Whaley, as to whom this action insofar as it relates to Title VII will be dismissed.
3. Failure To Comply With Section 2000e-5(c)
Defendants contend plaintiffs' complaint did not set forth allegations that the plaintiffs had complied with the requirement of section 2000e-5(c), that if there are state processes available to remedy the discrimination charged, that such processes be exhausted first, at least to the extent of filing with the State agency and allowing sixty days for action to be taken. This contention is without merit. The complaint contains an allegation that "all timeliness requirements" have been met; although such an allegation is not specific, plaintiffs introduced by affidavits a copy of the charge filed before the Delaware Department of Labor and it is clear from the document that the requisite period has run. Defendants' motion on the asserted timeliness ground is therefore denied.
4. Compensatory And Punitive Damages
Defendants contend that plaintiffs' request for certain damages should be dismissed, urging that punitive and compensatory damages are beyond the relief provided under section 2000e-5(g) which allows for the order of the Court upon a determination of violation to include back pay. The remedy requested is specifically not limited to back pay, however, but rather is to include such "other equitable relief as the court deems appropriate." Id. Under appropriate circumstances, where the injuries accruing to the plaintiff by reason of the discriminatory activities include more than back pay, or where the activities of the employer were such as to give rise to punitive liability, such damages might be available under statutes other than Title VII. See generally Loo v. Gerarge, 374 F.Supp. 1338 (D.Haw. 1974); Howard v. Lockheed-Georgia Co., 372 F.Supp. 854 (N.D.Ga.1974); Van Hoomissen v. Xerox Corp., supra; Gerstle v. Continental Airlines, Inc., 358 F.Supp. 545 (D.Colo.1973); Spurlock v. United Airlines, Inc., 330 F.Supp. 228 (D.Colo. 1971), aff'd, 475 F.2d 216 (10th Cir. 1972). This Court need not now decide that issue since the limits imposed by the equitable nature of the relief granted under section 2000e-5(g) do not apply to the causes of action under sections 1981, 1983 and 1985. For reasons discussed infra, those causes of action will *298 remain to be litigated against the defendants. A determination of damage claims must therefore await a full hearing. Defendants' motion is denied.
B. As to Section 1981, 1983 and 1985
1. Adequate Remedy Under Title VII
The defendants contend an adequate remedy for all of plaintiffs' causes of action is provided by Title VII, and that therefore an action may not be maintained under the 1870 and 1871 civil rights statutes. There is no need to prolong this opinion by extensive analysis of differences between the two actions. This Court is satisfied that actions under section 2000e are entirely separate from those under section 1981 et seq., cf., Macklin v. Spector Freight Systems, 156 U.S.App.D.C. 69, 478 F.2d 979, 993-94 (1973). The plaintiffs are entitled to pursue their rights under both sets of statutes. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 and n. 7, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). There will be time enough to sort out the damages claimed and to prevent any double recoveries upon the completion of this action. Defendant's motion is denied.
2. Individual Acts
Defendants move to dismiss the action on the grounds that the complaint contains no allegations of activities by them as individuals, i. e., non-officials, and that, therefore, no cause of action against them as individuals is stated under sections 1981 et seq. See, Pelisek v. Trevor State Graded School District, 371 F.Supp. 1064 (E.D.Wis.1974); Lessard v. Van Dale, 318 F.Supp. 74 (E.D. Wis.1970); Abel v. Gousha, 313 F.Supp. 1030 (E.D.Wis.1970). See also, Carey v. White, 375 F.Supp. 1327 (D.Del.1974).
The underlying contention of the defendants that their actions as individuals are separate from their actions as officials is unacceptable.[11] The actions taken by the defendants as members of the Board were taken as individuals who hold particular offices and have particular authority or responsibility. Where individuals act "within the sphere of official responsibility," they may be held liable for action taken unreasonably or with malicious intent. See, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).
Any other result would be unsupportable in principle or by application of common sense. Defendants would have the Court assume that their official actions and their individual actions are a dichotomy; that no knowledge of one exists as the individual functions in the other mode. The more natural understanding that one is responsible for his actions, whether taken for personal gain, or for some other reason is far preferable. The Court is satisfied that the complaint alleges discriminatory activities by the members of the Board of Trustees and the individual officers. That these actions were taken while they were acting in a capacity for the benefit of another (Del Tech) in no way lessens their responsibility during that time to conform their conduct to the requirements of law. In those claims arising under sections 1981, 1983 and 1985, there is no need for the discriminatory activities to be related to employment. While the defendants must be proven to have been acting under color of state law as to section 1983, the deprivation of plaintiffs' rights may be for purely personal motives of defendants and still be actionable. Defendants' motion is denied.
3. Immunity as Officers
The defendants contend their acts and decisions are discretionary in nature, rather than merely ministerial, and are clothed with an immunity protecting *299 them from liability for damages. See, Fidtler v. Rundle, 497 F.2d 794 (3d Cir. 1974); Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (3d Cir. 1974), vacated, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975). Defendants contend that the recent decision of the Supreme Court in Wood v. Strickland, supra, did not disturb official immunity as it applied to discretionary actions.[12]
The decision in Wood has effectively destroyed the previous dichotomy between discretionary and ministerial acts, and has replaced it with a standard of "good faith" as to all actions.[13]See, Chaudoin v. Atkinson, 406 F.Supp. 32 (D.Del.1975).[14]
Defendants, recognizing that Wood may have created a "good faith" rule, urged at oral argument that the affidavits submitted by them, not contravened by affidavits from the plaintiffs, establish the necessary good faith; see Fed.Rules of Civ.Proc., Rule 56(e).
The language of the affidavits,[15] perhaps sufficient under the earlier decisions of Fidtler and Skehan, is not sufficient to require a finding under Wood. The Wood test is both objective and subjective: liability may be found if the offender "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [academic employee] affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the [academic employee]." Cf. Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1001.
Assuming arguendo the affidavits to be true, they do no more than tend to establish that the defendants did not act with malicious intention. The issues of malicious intention to deprive plaintiffs of constitutional rights and whether the defendants knew or should have known that their actions were violative of plaintiffs' civil rights must await determination of a fuller record than is present here.[16] The issues are, therefore, preserved for trial; the motion of the defendants predicated upon official immunity is denied.
II. MOTIONS BY THE INSTITUTIONAL DEFENDANT AND THE INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITY
A. The State As Party
The defendants claim that although the State of Delaware is not a named *300 party, the State is the real party in interest, and the entire action must be dismissed under the Eleventh Amendment. The defendants further argue that as to the cause of action arising under sections 1983 and 1985, the State is not a `"person" within the meaning of those statutes. Whether the party in interest is the State and therefore not a person within the meaning of sections 1983 and 1985[17] is determined by reference to the same factors relevant to the issue of whether the Eleventh Amendment is a bar to suit.[18] They are treated together here.[19]
The issue in each instance is to be determined by analyzing the relationship between the purported State agency and the State, to determine whether there is such an identity of interest between the two that the suit against the agency is in fact one against the State.[20] State law defining the relationship between the agency and the State must be considered with other factors which include whether, if the plaintiff prevails, the judgment must inevitably be paid from the state treasury;[21] whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; whether it has autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the State has immunized itself from responsibility for the agency's operations.[22]
In weighing these factors, this Court has been somewhat hampered by the incomplete record presented to it. It is apparent from Delaware State law that the state denominates Del Tech as a State agency. 14 Del.Code § 9102. On the other hand, the Board of Trustees is given explicit power to make contracts; to sue and be sued; to receive gifts and grants from any source; to condemn property; and apparently has sole control over the operation of the institution in accordance with State law. 14 Del.Code § 9105.
The defendants urge that under Urbano and Edelman, the important question is whether a judgment must be satisfied from the State treasury. The Supreme Court in Edelman treated the issue as one relating to the inevitability of payments from the State treasury to cover the accrued liability. 415 U.S. at 664-65, 94 S.Ct. 1347. Defendants' counsel, in a brief and therefore not in the record before the Court, informed the Court that despite the power of the Board of Trustees to accept gifts, that no such gifts had been forthcoming, and that the funds of Del Tech were those of the State.[23]
An analysis of the statutory powers of the defendant indicates that there is, at the least, a substantial problem *301 as to whether Del Tech is a State agency independent of the State for Eleventh Amendment purposes and a "person" under sections 1983 and 1985. On the other hand, the majority of the factors to be weighed indicate that Del Tech is not an alter ego of the State, and, ultimate payment from the State treasury, a factor which defendants depend upon most heavily, is one as to which defendant, Del Tech, has the burden of proof, and which it has not carried to the degree required for summary judgment.[24] Further, it is less than clear that a judgment must inevitably come from the State treasury. There are individual defendants present in this case, and any judgment rendered by this Court could include prospective relief only as to Del Tech and monetary damages as to the individuals. Thonen v. Jenkins, 517 F.2d 3, 6 (4th Cir. 1975). Moreover, by the time this case comes to final decision, a better record could be developed as to insurance coverage, if any, and whether Del Tech in fact, has assets exclusive of State funds. A judgment rendered at that time could include the proviso that execution could not be had against State funds. The institutional defendant must remain in the case subject to potential prospective relief, and with various options available to the Court to insure that any accrued monetary damages need not be taken from the State treasury. It is held on the present record that Del Tech has not successfully invoked the Eleventh Amendment as a bar to the monetary damage relief requested by plaintiffs. See Edelman v. Jordan, supra, 415 U.S. at 677, 94 S.Ct. 1347; Thonen v. Jenkins, supra at 6.
A weighing of the above factors demonstrate that assessment of damages, if any, under sections 1983 and 1985 could, if necessary, be rendered only against the individual defendants. Accordingly, it is not determined at this time whether Del Tech is a "person" within the meaning of sections 1983 and 1985.[25]Cf., Kelly v. West Baton Rouge Parish School Board, 517 F.2d 194, 196 (5th Cir. 1975).
Since this case must go forward, there will be additional opportunities for the litigants to supplement the presently inadequate factual record so as to provide a basis for an informed resolution of unanswered questions.
B. Jurisdictional Requirements
1. Section 1343(3)
Defendants claim that jurisdiction is lacking under 28 U.S.C. § 1343(3) for claims relating to monetary damages. Defendants' contention need not be answered. Since jurisdiction as to damages is also claimed by plaintiffs under section 1343(4), which specifically provides for suits to recover damages for civil rights violations and under section 1331 as a federal question, there are sufficient jurisdictional allegations contained in the complaint for the suit to go forward.
*302 2. Declaratory Judgment
Plaintiffs have requested a declaratory judgment to the effect that the actions of the defendants are in violation of Title VII. Defendants have urged that the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., does not provide additional jurisdiction. Again, as noted above, there are sufficient jurisdictional allegations in the complaint for this Court to take jurisdiction of the cause, and to render appropriate relief.
3. Other
Defendants, as officials, raise several of the same motions they raised as individuals: that they are not proper parties under section 2000e-5; that there were no allegations of compliance with the provisions of section 2000e-5(c) (3); and that an adequate remedy exists under Title VII, and that therefore the sections 1981 et seq. causes should be dismissed. These contentions were determined adversely to the defendants, supra, and the reasoning there is applicable here. Defendants' motions are denied.
Defendants' motions to dismiss treated as motions for summary judgment will be denied, except insofar as defendant Benjamin Whaley's motion to dismiss the claims against him arising under 42 U.S.C. § 2000e et seq. will be granted.
NOTES
[1] The complaint makes allegations to support a claim for class action relief. No request for certification of the class has yet been made, however, and the Court here makes no such determination.
[2] Since certain of the claims made by the plaintiffs relate to allegedly discriminatory patterns of job titling and salary, use of job titles with reference to specific positions is avoided. There is no evidence in the record as to what, if any, different responsibilities there are among, e. g., "educational technicians," "provisional instructors," and "instructors." For convenience, the plaintiffs are referred to as "academic employees."
[3] Del Tech and the offices of its associated official defendants were created pursuant to authority granted by 14 Del.Code § 9103 et seq., and actions taken thereunder.
[4] This charge was the subject of a prior suit in this District, Schell v. Board of Trustees of Delaware Technical and Community College, C.A. No. 4673 (D.Del. July 31, 1973).
[5] The Third Circuit requires specificity of detail in complaints alleging civil rights violations. Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967); and see, Carr v. Sharp, 454 F.2d 271 (3d Cir. 1971); Marcedes v. Barrett, 453 F.2d 391 (3d Cir. 1971); Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970).
Without expanding this opinion unnecessarily, it is sufficient to say that the defendants have not contended that the complaint does not meet these requirements; and the Court is satisfied after its own examination that the complaint alleges in sufficient detail and specificity a civil rights violation.
[6] "The term `employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . ." [Emphasis added.] 42 U.S.C. § 2000e(b).
[7] Amended by PL 92-261, 86 Stat. 103, § 2(1). For an explanation of the purpose of the amendments, see House Report No. 92-238, and the Conference Report on HR 1746, reprinted in 1972 U.S.Code Cong. and Admin. News, Vol. 2 at p. 2137.
[8] "The term `person' includes . . . governments, government agencies, . . . associations, corporations, . . . trusts, unincorporated organizations, trustees . .."
[9] There is apparently no dispute that Del Tech has more than fifteen employees, and is otherwise within Title VII, if it does not enjoy Eleventh Amendment immunity. See, infra, part II.
[10] Whether such consideration took place as a private person or as an officer is of no import here. Title VII actions do not contain the "under color of state law" problems associated with section 1983 actions. If the person against whom the complaint is filed is within the definition of "employer," his "capacity" during the alleged discriminatory events is irrelevant, so long as the alleged discrimination relates to employment. Nor is this Court impressed with the defendants' "official""individual" dichotomy. Persons acting as officials are liable for their tortious actions as individuals; their official capacity relates only to potential immunity for certain kinds of discretionary decisions for which they might otherwise be liable. For that reason, this Court speaks of the matters as "official" and "non-official" not as individual and non-individual. There are, of course, situations where actions are taken only by whole bodies, which some individual members oppose. That situation is not present in the record of this case.
[11] On the present record, it does not appear that individuals are sought to be held liable for action taken by a corporate body of which they are a member and which they as an individual member opposed. See n. 10, supra.
[12] In Wood, the Supreme Court held that school officials hold an immunity for actions taken in the suspension of two students, but limited that immunity to one based on objective and subjective good faith.
In light of the Supreme Court's vacation of Skehan, supra, on the basis of Wood, and of statements in Wood, 420 U.S. at 315 n. 7, 95 S.Ct. 992, defendants' contentions are not strong. The point is not clearly defeated, however, since the vacation of a judgment is of little precendential value.
[13] "We think there must be a degree of immunity if the work of the schools is to go forward; and, however worded, the immunity must be such that public school officials understand that action taken in good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and they need not exercise their discretion with undue timidity." 420 U.S. at 321, 95 S.Ct. at 1000.
[14] "[T]here can be no immunity, even where the official has acted without intending to deprive the plaintiff of his constitutional rights, if a reasonable man in the defendant's position would have realized that his action would have that effect." Chaudoin at 35.
[15] E. g., "4. All action taken by me in my official capacity while on the Board of Trustees respecting hiring, firing, recruitment, promotion, supervision, wages, terms, conditions and privileges of employment were taken with an honesty of intention and in good faith and upon the reasonable belief that such actions are proper and permissible . . . ."
[16] Since these motions are treated as for summary judgment, the burden of establishing the facts necessary to constitute the defense rests on the movant. There being no evidence in the record on the issue of knowledge, the motion can be denied on that basis alone. See Carey v. White, 375 F.Supp. at 1329.
[17] United States ex rel. Gittlemacker v. Philadelphia, 413 F.2d 84 (3d Cir. 1969); See, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Boyce v. Alexis I. duPont School District, 341 F.Supp. 672 (D. Del.1972); Conway v. Alfred I. duPont School District, 333 F.Supp. 1217 (D.Del. 1971).
[18] See, Gordenstein v. University of Delaware, 381 F.Supp. at 725.
[19] It is apparent that insofar as prospective injunctive relief is sought, the suit is not within the Eleventh Amendment as to the individual defendants. The allegations are those of unconstitutional and illegal action, and therefore within the rule of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) and Edelman v. Jordan, 415 U.S. 651 at 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Eleventh Amendment bar would appear here to cover only the damage claims against the institutional defendant. Potential liability of individual defendants under Title VII and the Civil Rights Acts, should discriminatory activity be proven, has been previously discussed, supra pps. 297-298.
[20] King v. Ceasar Rodney School District, 396 F.Supp. 423, at 425 (D.Del.1975) and cases cited therein.
[21] See, Edelman v. Jordan, supra.
[22] See, Morris v. Board of Education of Laurel School District, 401 F.Supp. 188 (D.Del. 1975); King, supra, 396 F.Supp. at 425-426; and see, Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-251 (3d Cir. 1969).
[23] Cf. Hutchison v. Lake Oswege School Dist. No. 7, 519 F.2d 961, 966-67 (9th Cir. 1975).
[24] Delaware State Courts have held that an authority to enter into contracts is a pro tanto waiver of State sovereign immunity. George & Lynch, Inc. v. Delaware, 197 A.2d 734 (Del.Supr.1964). State court decisions, although relevant, are not determinative of the federal question, however. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Daye v. Pennsylvania, 483 F.2d 294, 298 (3d Cir. 1973). Similarly, plaintiffs claimed that the power to sue and be sued granted to the Board of Trustees by 14 Del.Code § 9105(d)(4) constitutes a waiver. The Court refuses to rule upon that question on the present record, particularly since constructive waiver of constitutional protection under the Eleventh Amendment is not favored. Edelman, supra, 415 U.S. at 673, 94 S.Ct. 1347, Daye, supra at 298.
[25] See notes 17 and 18 supra. Since section 1985 is part of the same act as section 1983, Act of April 20, 1871, c. 22, 17 Stat. 13, the definition of "person" is treated by this Court as being the same. See also, Scott v. University of Delaware, 385 F.Supp. at 944, n. 5.
|
466 F.Supp. 917 (1979)
UNITED STATES of America
v.
Gregory J. DePALMA, Eliot H. Weisman, Richard Fusco, a/k/a "Nerves", Murad Nersesian, a/k/a "Mike Fusco" and "Mickey Coco", Leonard Horwitz, a/k/a "The Fox", Laurence I. Goodman, Salvatore J. Cannatella, Louis Pacella, a/k/a "Louie Dome", and Thomas Marson, Defendants.
No. 78 CR 401.
United States District Court, S. D. New York.
March 13, 1979.
*918 Robert B. Fiske, Jr., U.S. Atty., S.D.N.Y., New York City by Nathaniel H. Akerman, Scott G. Campbell, Asst. U.S. Attys., New York City, for plaintiff.
Litman, Friedman, Kaufman & Asche, New York City, for defendant Goodman by Richard Asche, New York City, of counsel.
Robert L. Ellis, New York City, for defendant DePalma.
Norman Ostrow, New York City, for defendant Weisman.
Martin B. Adelman, New York City, for defendant Fusco.
Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, for defendant Horwitz by Jonathan W. Lubell, Mary K. O'Melveny, New York City, of counsel.
Segal & Hundley, New York City, for defendant Cannatella by Marvin B. Segal, New York City, of counsel.
Barry I. Slotnick, New York City, for defendant Pacella.
OPINION
SWEET, District Judge.
The defendants here were charged in an Indictment, now consisting of 22 counts, with having committed racketeering, securities and bankruptcy fraud and obstruction of justice. Not all defendants were named in all counts. In the closing days of the initial twelve week trial, the defendants moved for a mistrial, alleging prosecutorial misconduct which resulted in the publication of a photograph on pages 94-95 of the January issue of Life, a national magazine. The photograph, depicting certain of the defendants, one Frank Sinatra, and other individuals, is allegedly an unredacted version of Government Exhibit 18-I, and its release by the prosecutor to the press would constitute a violation of Rule 8 of the Rules of the Southern District of New York.
Upon voir dire examination of the jury by the court it was established that, in accordance with the court's consistent indeed, almost daily directions, no juror saw the unredacted photograph. Thus, even if the publication of the photograph was found to have resulted from a violation of Rule 8, it has been established that the trial was unaffected. The first trial has since ended in a mistrial, thereby mooting defendants' mistrial motion. Defendants now argue that a dismissal of the underlying Indictment is in order. Though the defendants have a right to a trial free from prosecutorial misconduct, U. S. v. Jacobs, 547 F.2d 772 (2d Cir. 1976), the interests of justice require that the defendants' motion be denied, even assuming, arguendo, that their allegations of misconduct were true.
As published in Life, the unredacted photograph contained three additional people described in the accompanying caption as Joe Gambino, Salvatore Spatola, and Paul Castellano, the brother-in-law and cousin of Carlo Gambino. The latter Gambino is present in both the redacted and unredacted versions, and is described in the Life caption as "the famed Mafia boss of bosses."
This court, faced initially with a request for sequestration by the Government, chose instead to rely upon Rule 8 in an effort to prevent unauthorized publicity. Press coverage of the trial was at times extensive, but the jurors responded in the negative to the court's repeated examinations on this subject. Obviously, in any trial, scrupulous adherence to Rule 8 is required. This is *919 particularly true in the instant case, in which charges of racketeering, securities fraud, bankruptcy fraud, and obstruction of justice are put forth, and where theatrical personalities, both professional and otherwise, are involved.
Initially the defendants demonstrated to the court's satisfaction that they had met their prima facie burden to justify a hearing on the issue. An examination of Government Exhibit 18-I and the Life picture indicated that they were the same, both as to people, positioning and appearance; moreover, both bore an unexplained, unique distortion on the sides of the photograph. The defendants jointly adopted the subpoenas issued by the defendant Gregory DePalma ("DePalma") seeking the testimony of certain agents of the Federal Bureau of Investigation ("FBI") and of employees of Time-Life having knowledge of the facts. Agents Fisk and Walker testified. Time-Life moved to quash the subpoena. The motion is granted.
Assistant United States Attorney Nathaniel Akerman ("AUSA Akerman") testified that he received Government Exhibit 18-I from the Los Angeles office of the FBI on the eve of trial, that it was kept in a safe in a room near his office, that the key to the safe was kept in his desk, that his office was customarily locked in his absence, that only Assistant United States Attorney Scott Campbell ("AUSA Campbell") had access to the safe, and that he had not released Exhibit 18-I to Time-Life, that he had no knowledge of the identity of the person who had provided the photograph, and that he had requested the FBI to conduct an investigation on the subject. AUSA Akerman also testified that upon learning on December 26, 1978 of the Life publication of the photograph, he consulted his superiors and representatives of the media, particularly the Daily News, the only metropolitan newspaper that would publish prior to the time that the matter could be brought to the court's attention. AUSA Akerman released Government Exhibit 18-I to the metropolitan press mid-afternoon on December 26.
Agent Walker testified that Government Exhibit 18-I was received in the Los Angeles office of the FBI early in 1977, that it was sent to the Washington laboratory of the FBI for reproduction, that additional photographs of a very similar nature were received, that copies of both photogaphs were distributed to various offices of the FBI, that an agent of the FBI of the squad with appropriate jurisdiction had access to the files where the photograph was maintained. Agent Fisk testified that a copy of the photograph had been received in the New Rochelle office of the FBI.
Time-Life submitted affidavits in support of its motion to quash, stating that the photograph published in the January issue of Life had been obtained by Sandy Smith, currently a senior correspondent for Time magazine, from a source who had supplied the photograph on the understanding that the identity of the informant would be maintained in confidence. Time-Life states that no officer or employee other than Smith had knowledge concerning the source of the photograph. These facts are set forth because of the potential constitutional confrontation thus presented.
Time-Life sought to quash the subpoena on the ground that Smith was not properly before this court. Defendants maintain that Time-Life is required to produce its employee with knowledge of the facts. To quash the subpoena on the ground of failure to serve Smith would have resulted in an unwarranted procedural delay.
The balance here tips differently than it did in Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975). See, for a related matter, 409 U.S. 1243, 93 S.Ct. 593, 34 L.Ed.2d 655 (1973) (Opinion in Chambers; Douglas, J.). This court upon reviewing the testimony as set forth above has concluded that the Government has directly rebutted the defendants' claim of prosecutorial misconduct, and that insufficient evidence has been presented to conclude that a further inquiry is warranted. While there has been some indication that Smith might testify as to whether or not he received the photograph from the United States Attorney's office, *920 defense counsel have indicated that such testimony would not rebut a chain of responsibility which ultimately might be linked to AUSA Akerman. A full scale confrontation with Time-Life's First Amendment rights would thus be unavoidable. The temptation to plunge into this intricate and difficult question of conflicting constitutional freedoms is almost, but not quite, irresistable. It will be postponed to a later day when the issues are closer to those presented in Farr v. Pitchess, Id.
Crediting AUSA Akerman's testimony, unshaken under cross-examination, this court concludes that defendants have failed to establish a compelling reason to challenge Time-Life's asserted constitutional rights. Were this testimony to be sought in an investigation of a possible obstruction of justice, a very real possibility if not probability under these circumstances, the result might be quite different.
Defendants' motion for mistrial, or alternatively, for dismissal of the Indictment, is denied. Motion of Time-Life to quash the subpoena is granted. Submit Order.
IT IS SO ORDERED.
|
111 F.3d 897
U.S.v.Williams*
NO. 96-6543
United States Court of Appeals,Eleventh Circuit.
Mar 26, 1997
Appeal From: M.D.Ala. ,No.9500234crs
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
|
70 So.3d 809 (2011)
Jerry Wayne BENOIT
v.
TURNER INDUSTRIES GROUP, LLC.
No. 2011-C-1130.
Supreme Court of Louisiana.
September 23, 2011.
*810 In re Turner Industries Group, LLC; Defendant; Applying For Writ of Certiorari and/or Review Office of Workers' Compensation District 03, No. 06-06963; to the Court of Appeal, Third Circuit, No. 10-1460.
Granted.
|
476 So.2d 87 (1985)
PENINSULAR LIFE INSURANCE COMPANY
v.
Charlie A. BLACKMON.
83-1414.
Supreme Court of Alabama.
September 4, 1985.
Rehearing Denied November 8, 1985.
*88 James T. Upchurch III of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Robert M. Alton, Jr., Montgomery, for appellee.
BEATTY, Justice.
This is an appeal of a judgment based on a jury verdict finding breach of an insurance contract and bad faith failure to pay a claim. We affirm in part, reverse in part, and remand with directions.
Charlie A. Blackmon was employed as a debit agent with Peninsular Life Insurance Company (Peninsular). His job consisted of selling insurance policies and collecting premiums, primarily door to door. As a fringe benefit of his employment, Blackmon had disability coverage supplied by Connecticut General Life Insurance Company (Connecticut General). Because this policy did not pay benefits until an employee was totally disabled for six months, Peninsular maintained a supplemental disability plan whereby an employee could receive temporary disability coverage during the six-month waiting period. Peninsular paid the amount of this temporary disability out of its general operating revenues, without withholding any premiums from its employees. The supplemental plan was an oral agreement; there was no written policy, no formal mechanism for evaluating claims, and no definitions for determining if an employee was totally disabled, and the plan was not regulated by the state insurance department. The amount and duration of the coverage that an employee could receive depended on his length of service with Peninsular. In Blackmon's case, he was entitled to $2,086.19 during a maximum of 13 weeks' disability.
Blackmon suffered from several health problems, including diabetes mellitus, glaucoma, hypertension, chronic obstructive lung disease, bilateral clubbed feet, degenerative arthritis, and a right inguinal hernia. In March 1982, he underwent surgery to repair the hernia and, as a result, missed 10 weeks of work. He filed for disability under the supplemental plan and received compensation.
Early in May 1982, Blackmon was told that if he did not return to work by May 17, 1982, he would be fired. He returned to work on that day, but still continued to suffer from various medical problems.
During the next eight months, Blackmon did not miss a day of work, but his production, apparently measured largely by the premiums collected, steadily declined. On January 24, 1983, he was notified that because of his declining production he was being discharged effective January 28, 1983. On January 26, 1983, Blackmon visited his doctor and received a note stating that his medical condition was preventing *89 him from working "at his usual pace" and that he needed "more time" to recuperate. Blackmon presented this note to his supervisor and requested to be placed on disability status. Nevertheless, Blackmon was discharged on January 28.
Thereafter, Blackmon's doctor sent a letter to Peninsular stating that his medical problems were responsible for his declining production and asking that he not be terminated. Blackmon later received a doctor's statement indicating that he had been totally disabled since June 1982. Blackmon filed a claim with Peninsular under the supplemental plan; his claim was denied.
Blackmon brought suit against Peninsular and Connecticut General, alleging breach of contract and bad faith failure to pay. Connecticut General was dismissed from the suit by way of summary judgment. Peninsular also moved for summary judgment, but its motion was denied, as were its later motions for directed verdict, J.N.O.V., and new trial. The jury returned a verdict for Blackmon of $2,086.19 on the breach of contract count and $175,000 on the bad faith count.
Peninsular appeals here, raising the following issues: (1) Whether a contract of insurance existed between Peninsular and Blackmon, and (2) whether the trial court erred by denying Peninsular's motion for directed verdict on the bad faith claim.
As this Court has previously stated, although every contract implies an obligation of good faith and fair dealings, the only breach of contract which gives rise to a tort cause of action for "bad faith" is breach of a contract of insurance. Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76 (Ala.1983).
Peninsular does not dispute the jury's finding that a contract existed between it and Blackmon and that the contract was breached. Peninsular, however, argues that the contract was not one of insurance, giving rise to a bad faith claim, and, therefore, that the trial court erred in not granting its motion for a directed verdict. We agree.
The tort of bad faith refusal to pay a claim has heretofore been applied only in those situations where a typical insurer/insured relationship existed; that is, where the insured or his employer entered into a written contract of insurance with an insurer and premiums were paid into a central fund out of which claims were to be paid. We are very hesitant to expand the tort beyond these narrow circumstances.
Under the facts of this case, the relationship between Peninsular and Blackmon certainly was not typical of that which exists between an insurer and its insured. Instead, it is much more akin to that existing between an employer and his employee. Consequently, while the jury was correct in holding that a contract existed obligating Peninsular to pay Blackmon the disability compensation he seeks, and while that contract may bear some resemblance to a contract of insurance, it is not an insurance contract within the meaning of our cases defining the tort of bad faith. Therefore, the trial court erred in not granting Peninsular's motion for directed verdict on the bad faith claim, and the judgment based on the jury's verdict granting $175,000 in damages based upon that claim must be reversed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.
All the Justices concur, except MADDOX, J., who recuses himself.
|
Case: 17-60771 Document: 00514780309 Page: 1 Date Filed: 01/03/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60771
FILED
January 3, 2019
Summary Calendar
Lyle W. Cayce
Clerk
Consolidated with 18-60073
DRAGOMIR TASKOV,
Petitioner
v.
MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A072 509 789
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Dragomir Taskov petitions for review of the decision of the Board of
Immigration Appeals (BIA) that affirmed the decision of the Immigration
Judge (IJ) ordering Taskov’s removal and denying his application under 8
U.S.C. § 1229b(a) for cancellation of removal. The BIA applied a modified
categorical approach in determining that Taskov’s 2012 conviction of receipt of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-60771 Document: 00514780309 Page: 2 Date Filed: 01/03/2019
No. 17-60771
c/w No. 18-60073
stolen property, in violation of 18 U.S.C. § 2315, is an aggravated felony under
8 U.S.C. § 1101(a)(43)(G). Taskov has presented no argument with respect to
that determination. He has therefore waived the central issue whether the
BIA erred in dismissing his appeal on that basis. See Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003). Accordingly, the petition for review is denied in
part.
The notice to appear was refiled improperly, Taskov asserts, and the
original charge of overstaying his visa was invalid. Because the aggravated
felony conviction independently establishes Taskov’s removability and because
the BIA never addressed the overstay charge, this issue is not properly before
this court. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976); Iruegas-Valdez v.
Yates, 846 F.3d 806, 811 (5th Cir. 2017).
According to Taskov, he was not properly notified of the agency’s motion
for a change of venue; the order granting the agency’s motion was not based on
“good cause”; the IJ erred in denying his motion for a change of venue; and the
BIA arbitrarily denied his interlocutory appeal from that order. Except insofar
as they raise questions of law and constitutional claims, this court lacks
jurisdiction to consider these questions. See Ogunfuye v. Holder, 610 F.3d 303,
307 (5th Cir. 2010). Taskov has not shown that his right to due process was
violated because service of process was made on his counsel of record. The
contention that counsel was not authorized to represent Taskov is not
supported by the record, and Taskov has not shown that he was prejudiced in
any way by a lack of notice. See Ogunfuye, 310 F.3d at 306-07. In a related
contention, Taskov asserts in conclusory fashion that the agency violated his
rights of access to the immigration court and to self-representation and that
the immigration court refused to file or rule on his pro se motions. These
contentions are refuted by the record.
2
Case: 17-60771 Document: 00514780309 Page: 3 Date Filed: 01/03/2019
No. 17-60771
c/w No. 18-60073
Finally, Taskov complains that he was detained in violation of his rights
under the Fourth Amendment because he was taken into custody before he
was released from confinement for his criminal convictions and was detained
without bond and because the immigration court unreasonably delayed his
removal proceedings. These contentions are not related to the removal order
and are moot because Taskov has been removed to Canada. See Dormeus v.
Keisler, 252 F. App’x 611, 612 (5th Cir. 2007). Accordingly, the petition for
review is dismissed in part.
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
3
|
19 F.3d 41
39 Cont.Cas.Fed. (CCH) P 76,712
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.John H. DALTON, Secretary of the Navy, Appellant,v.MURDOCK MACHINE AND ENGINEERING COMPANY OF UTAH, Appellee.
No. 93-1440.
United States Court of Appeals, Federal Circuit.
Feb. 22, 1994.
Before NEWMAN, PLAGER, and CLEVENGER, Circuit Judges.
PLAGER, Circuit Judge.
1
The Navy appeals an Armed Services Board of Contracting Appeals (ASBCA) opinion1 that quantifies the damages caused by the termination for convenience by the Department of the Navy (the Navy) of its contract with Murdock Machine and Engineering Company of Utah (Murdock). We affirm the judgment of the ASBCA in all respects except one.2
BACKGROUND
2
Murdock was a military contractor. In 1971, Murdock contracted with the Navy to deliver, in return for $10,659,612.00, 28 Anti-Submarine Rocket (ASROC) launchers for deployment on destroyers. Murdock soon had difficulties that hindered its performance of the ASROC contract. In order to overcome these problems, in 1973 Murdock requested and received the Navy's guarantee on 90% of a commercial loan for 2.5 million dollars (the V loan3). Nonetheless, Murdock continued to experience difficulties, and the Navy did not receive its ASROC launchers.
3
From the fall of 1974 to the spring of 1975, Murdock negotiated with the Navy Contract Adjustment Board (NCAB) to reform the contract for the launchers, converting it from a fixed-price contract to a cost-reimbursement contract under the authority of Public Law 85-804, 50 U.S.C. Secs. 1431-35, which provides extraordinary support to contractors producing material deemed essential to the national defense. When a new source of rocket launchers became available in April of 1975, the Navy sent Murdock a 10 day cure notice. When no cure was forthcoming, the Navy terminated Murdock's right to proceed for failure to perform. In May 1975, Murdock declared bankruptcy.
4
Murdock challenged the termination of the ASROC contract before the ASBCA, alleging that the Navy had reformed the ASROC contract under PL 85-804, and that the Navy's breach of the reformulated contract both excused Murdock's failure to perform and harmed Murdock. The ASBCA denied Murdock's claim, ruling that the Navy's termination had been no breach because Murdock had defaulted on the contract. Appeal of Murdock Mach. & Eng'g Co. of Utah, 88-1 BCA p 20,354 (1987). Murdock appealed to the Circuit Court of Appeals for the Federal Circuit. Murdock Mach. & Eng'g Co. of Utah v. United States, 873 F.2d 1410 (Fed.Cir.1989). This court set aside the ASBCA default determination, holding that the contract had been reformed under PL 85-804, and that this new contract had been terminated for the convenience of the Navy. This court remanded the case to a contracting officer for determination of the damages suffered by Murdock as a result of the Navy's termination.
5
The contracting officer found that the Navy owed Murdock nothing. Instead, Murdock owed the Navy $3,129,258.34. Murdock appealed to the ASBCA, which set aside the decision of the contracting officer and sustained Murdock's appeal in the approximate amount of $4,000,000.00. The ASBCA remanded the case to the contracting officer with instructions for the final computation of the settlement amount. The Navy appeals the ASBCA decision to this court.
DISCUSSION
6
After extensive evidentiary hearings, the ASBCA calculated the damage caused Murdock by the Navy's termination for convenience in accordance with the principles appropriate to cost-reimbursement contracts. We find a single error in the ASBCA determination, but otherwise, we affirm. In its opinion, the ASBCA noted that the proceeds from a V loan were used by Murdock to finance several defense contracts other than the ASROC contract. The ASBCA therefore held that Navy was entitled to "deduct only a pro rata share of the unpaid principle and interest, based on the launcher contract's share of the total value of the defense contracts financed by" the V loan. Appeal of Murdock Mach. & Eng. Co. of Utah, ASBCA No. 42,891, 93-1 BCA p 25,329 Sec. IV B (1992).
7
On the record, it is beyond question that the Navy's purpose in making the V loan available to Murdock was to give Murdock the capital necessary to perform the ASROC contract. The fact that some of the money from the V loan may have been used in a way that allowed Murdock to perform other defense contracts does not affect the issue. The Navy's entire financial exposure through its guarantee of the V loan was attributable to the ASROC contract, and should be considered an offset to the damages caused by the Navy's termination of that contract. The ASBCA should have offset the damages caused to Murdock by the Navy's termination of the ASROC contract with the total amount of financial support received by Murdock through the Navy's guarantee of the V loan. The decision of the ASBCA is therefore affirmed in part and reversed in part. This case is remanded with instructions to reform its determination accordingly. Each party shall bear its own costs.
1
Appeal of Murdock Mach. & Eng'g Co. of Utah, ASBCA No. 42,891, 93-1 BCA p 25,329 (1992) recon. denied 93-2 BCA p 25,887 (1993)
2
We have considered the Navy's several other arguments alleging error and find no merit in any of them
3
A V loan is a loan governed by the provisions of Regulation V of the Federal Reserve Board, 12 C.F.R. Sec. 245 (1992), and the contract financing section of Federal Acquisition Regulation. 48 C.F.R. Sec. 32.000 et seq. (1992), in particular 48 C.F.R. subpart 32.3, Loan Guarantees for Defense Production. V loan is there defined as "a loan, revolving credit fund, or other financial arrangement made pursuant to Regulation V of the Federal Reserve Board, under which the guaranteeing agency is obligated, on demand of the lender, to purchase a stated percentage of the loan and to share any losses in the amount of the guaranteed percentage." 48 C.F.R. Sec. 32.301 (1992)
|
108 N.H. 264 (1967)
BARBARA A. CALLAGHAN
v.
JOSEPH CALLAGHAN.
No. 5635.
Supreme Court of New Hampshire.
Argued September 7, 1967.
Decided October 6, 1967.
Calderwood, Silverman & Ouellette and David S. Sands (Mr. Sands orally), for the libelant.
Burns, Bryant, Hinchey & Nadeau and Paul R. Cox (Mr. Cox orally), for the libelee.
GRIFFITH, J.
The libelant urges that the denial of the divorce was contrary to the weight of the evidence and should be set aside. The Trial Court found that the libelee did not treat the libelant as seriously to injure her health or endanger her reason. The findings of the Trial Court are binding where there is evidence to support them. Ballou v. Ballou, 95 N. H. 105; Cote v. Cote, 94 N. H. 372, 373; Johnson v. Johnson, 80 N. H. 15. "The Trial Judge could disbelieve the libelant's testimony, believe the libelee's, and enter the decree which he did." Ballou v. Ballou, supra; Franklyn v. Franklyn, 93 N. H. 90. The record supports the Trial Court's denial of the divorce.
Exceptions overruled.
All concurred.
|
Opinion filed May 10, 2007
Opinion filed May 10, 2007
In The
Eleventh Court of Appeals
____________
No. 11-05-00384-CR
__________
JOSEPH MICHAEL GOMEZ, Appellant
V.
STATE
OF TEXAS,
Appellee
On
Appeal from the 29th District Court
Palo Pinto County, Texas
Trial
Court Cause No. 12,177
O
P I N I O N
The jury convicted Joseph Michael Gomez of
aggravated sexual assault of a child.
The jury found the enhancement paragraph to be true and assessed
appellant=s punishment
at fifty years confinement. We affirm.
In his sole point of error, appellant argues that
the trial court denied his right of confrontation pursuant to the Sixth
Amendment of the United States Constitution.
Appellant=s
complaint concerns the accommodations the trial court made during the testimony
of the victim, who was eight years old at the time of trial.
The State called the victim as a witness; and she
testified generally about her age, school, and
family. The victim stated that
she was in court because of appellant and identified appellant. The victim testified that she told her
grandmother about Abad
things@ that
appellant had done to her. The victim
stated that she could not remember what she told her grandmother. When questioned by the State, the victim
repeatedly said she could not remember the Abad
things@ that she
told her grandmother. The victim said
she was Anervous@ to talk about what happened. The victim further testified that she was
afraid to tell the jury what happened to her.
The State asked the victim if appellant did
something that she did not want him to do, and the victim responded, AYes.@ The victim then again stated that she told
her mother and grandmother what appellant had done but that she could not
remember. The victim testified that she
did not have any clothes on when appellant did these things to her. The victim further testified that appellant
did not have clothes on and that she saw appellant=s
private part. When asked if appellant
did something to her private parts, the victim responded, AYes.@ The victim then testified that she was too
embarrassed to tell the jury what appellant did to her private parts and that
she would not tell the jury what appellant had done to her. She refused to tell the jury what appellant
had done to her. The trial court then
granted the State=s request
for a recess.
After the recess, the trial court made Asome accommodations to the comfort of
[the victim] in providing the balance of her testimony and the
cross-examination.@ The trial court allowed the victim to sit in
her mother=s lap and
instructed her mother not to speak to, gesture, or nudge the victim. The trial court required everyone to leave
the courtroom but the victim, her mother, the jury, attorneys for the State,
appellant, appellant=s
attorney, the court reporter, and the bailiff.
The trial court then stated its plan to Are-situate
the placing of [appellant]@
to the right of the bench. The trial
court then stated:
The
record will reflect that the witness chair is immediately to the left of the
bench.
The chair which has been placed immediately to the
right of the bench is within -- I=ll
say it=s three
or four feet of the chair occupied by [appellant=s]
attorney.
At any time during the direct testimony or the
cross-examination of [the victim], if the [appellant=s]
attorney needs to confer with his client and the some three to four feet that
they are separated by presents a problem, [appellant=s
attorney] will be allowed to have any amount of recesses and time-outs, if you
will, as may be necessary in his opinion to confer with his client.
Appellant=s
attorney objected arguing that the
accommodations violated the Confrontation Clause. The Confrontation Clause of the Sixth
Amendment to the United States Constitution provides in part that, A[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.@ See also Delaware v. Fensterer,
474 U.S.
15, 22 (1985); Hightower v. State, 822 S.W.2d 48, 50 (Tex. Crim. App.
1991). The Confrontation Clause is
primarily concerned with ensuring Athe
reliability of the evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding before the trier of
fact.@ Maryland
v. Craig, 497 U.S.
836, 845 (1990). A number of factors are important in
accomplishing this purpose including:
(1) a personal examination of the witness in the presence of the
accused; (2) the witness testifying under oath; (3) the witness being subject
to cross‑examination; and (4) the jury observing the demeanor of the
witness. Id. at 845‑46.
The victim testified under oath and was subject to
cross-examination. The jury was able to
observe the victim as she testified.
After the trial court made the accommodations, appellant could not see
the victim, although he was present in the courtroom. A defendant=s
right to confront accusatory witnesses may be satisfied absent a Aphysical, face-to-face confrontation@ when denial of confrontation is
necessary to further an important public policy. Id at 850. In order to allow a modification of the face‑to‑face element of the
confrontation right, we must determine (1) whether an important state interest
exists and (2) whether the procedural modification used in the trial was
necessary to further that interest. Id. at 855.
A State=s
interest in protecting child abuse witnesses from the trauma of testifying in a
child abuse case is sufficiently important to justify use of a special
procedure that permits a child to testify at trial in the absence of
face-to-face confrontation with the defendant.
Hightower v. State, 822 S.W.2d at 51. We must now determine whether the trial court=s procedural modification was necessary
to further the interest of protecting the child victim of sexual abuse from the
trauma of testifying.
In order to find that the modification procedure
is necessary, the trial court must determine that the child would be
traumatized by the presence of the defendant and that the emotional distress
suffered by the child witness in the presence of the defendant is Amore than de minimis.@
Id. The record shows that the victim was afraid
to testify about the offense while appellant was visible to her in the
courtroom. While appellant was in her
sight, the victim continued to state that she was Aembarrassed@ to testify and that she could not
remember what appellant had done to her.
The trial court found that the modifications were necessary to
accommodate the victim. The trial court
did not err in allowing the victim to testify without having appellant visible
to her during her testimony.
Moreover, Virginia Elaine Caldwell, a sexual
assault nurse examiner at Cook Children=s
Medical Center, examined the victim. Caldwell
testified that the victim stated appellant touched the victim=s Aprivates@ and her Abottom@ with appellant=s
hand and his Aprivate.@
Caldwell
further testified that, based upon her examination of the victim, she
determined that the victim suffered a blunt-force penetrating trauma consistent
with the Apenetration
of the vagina by a male sexual organ or a finger.@ Any error in allowing the victim to testify
without face-to-face confrontation with appellant did not contribute to the
conviction or punishment of appellant. Tex. R. App. P. 44.2(a). Appellant=s
sole issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
May 10, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel
consists of: Wright, C.J.,
McCall,
J., and Strange, J.
|
22 Mass. App. Ct. 689 (1986)
497 N.E.2d 26
PAUL HARRY KALTSAS, JR.
vs.
LEFCOTHEA KALTSAS, individually and as administratrix, & others.[1]
Appeals Court of Massachusetts, Worcester.
January 17, 1985.
September 5, 1986.
Present: ARMSTRONG, BROWN, & PERRETTA, JJ.
Constance Coulopoulos for the plaintiff.
Robert M. Bonin for Lefcothea Kaltsas.
ARMSTRONG, J.
Paul Harry Kaltsas died in November, 1980, a domiciliary of Greece. His will provided that all his property, real and personal, was to pass "in usufruct" to his wife, the defendant Kaltsas, for her life, and the "naked ownership" was to pass in equal shares to his children, one of whom is the plaintiff. The terms usufruct and naked ownership seem to be analogous (on what the record discloses of Greek law) to life interest and remainder, respectively. See New England Trust Co. v. Wood, 326 Mass. 239, 244 (1950). The defendant Kaltsas, who lives in Athens, is acting as executrix of the will *690 in Greece and also secured appointment as administratrix with the will annexed in Worcester County, where the testator owned real property. The plaintiff brought this action, equitable in nature, to enjoin the defendant from transferring or disposing of moneys in certain brokerage and bank acounts which are alleged to be the proceeds of estate assets unlawfully converted by her. The plaintiff appeals from a judgment dismissing the action "for lack of jurisdiction with prejudice."
The dispute concerns stocks and bonds of certain American corporations not organized under the laws of Massachusetts.[2] These were found by the defendant Kaltsas in Greece and, to avoid Greek taxes, were brought to Massachusetts, where they were sold by a broker. The proceeds, which exceeded $500,000, were put in an account with the defendant Shearson American Express, Inc., or in bank accounts, standing, in at least some instances, in the name of the defendant as an individual. A probate judge granted a temporary restraining order, enjoining disbursement of these funds. After hearing and findings, he ordered the defendant Kaltsas to post a surety bond in the ancillary administration in the amount of $500,000, and ordered her to account in ancillary administration not only for the assets admitted to be subject to administration here under G.L.c. 199, § 1 (see note 2, supra), but also for the proceeds of the non-Massachusetts stocks and bonds. She was also directed *691 by temporary orders to return those proceeds to accounts standing in the name of the estate.
After further hearing, the judge ruled that the court lacked subject matter jurisdiction over the proceeds of the non-Massachusetts corporation stocks and bonds, although the proceeds were held in accounts in Massachusetts. He vacated his previous orders concerning those proceeds, except insofar as they required the $500,000 bond to be filed in the ancillary administration action. That bond, he observed, was in an amount more than sufficient to protect the interests of all the "naked owners" in the assets subject to administration in Massachusetts. He ordered dismissal of the equitable action on the jurisdictional ground.
That ruling was erroneous. Where independent grounds exist for the exercise of equity jurisdiction, the fact that a fiduciary will be made to account for his administration in a court of probate jurisdiction does not deprive an equity court of jurisdiction. Sargent v. Wood, 196 Mass. 1, 4-5 (1907). Locke v. Old Colony Trust Co., 289 Mass. 245, 253 (1935). Under the judge's findings concerning Greek law, which are not contested in this appeal, the defendant Kaltsas acted unlawfully in selling the stocks and bonds of the non-Massachusetts corporations and placing the proceeds of the sales in her individual accounts. Similarly, under Massachusetts Law, such an act by an executor or other fiduciary amounts to a conversion, Holland v. Ball, 193 Mass. 80, 83 (1906), and a breach of fiduciary duty towards those beneficially interested in the estate. O'Brien v. Dwight, 363 Mass. 256, 283-284 (1973). A faithless executor becomes a constructive trustee of such assets, holding them in his own name for the benefit of the estate, as does a third person holding traceable assets with notice of the facts. Tingley v. North Middlesex Sav. Bank, 226 Mass. 337, 339-340 (1929). Locke v. Old Colony Trust Co., 289 Mass. at 252-253. See Shaw v. Spencer, 100 Mass. 382, 393 (1868).
Historically courts of equity have exercised jurisdiction to reach converted assets of an estate and to compel restoration. 1 Newhall, Settlement of Estates § 21, at 68-69 (4th ed. 1958). Mitchell v. Weaver, 242 Mass. 331, 337 (1922). Buzzell v. *692 Schulz, 273 Mass. 372, 374-375 (1930). The suit was traditionally prosecuted by an administrator de bonis non, appointed to represent the estate in place of the faithless executor. See, e.g., Tingley v. North Middlesex Sav. Bank, supra; Foster v. Bailey, 157 Mass. 160 (1892); Locke v. Old Colony Trust Co., supra. With respect to trusts, the practice was otherwise: any cestui que trust could bring the suit in his own name to compel restoration of traceable assets to the trust. Jones v. Jones, 297 Mass. 198, 204 (1937). Feeney v. Feeney, 335 Mass. 534, 537 (1957). Restatement (Second) of Trusts § 294 (1959). Compare Lowe v. Jones, 192 Mass. 94, 101 (1906). See also Simmons v. Barns, 263 Mass. 472, 475 (1928).
By statute, the practice with respect to estates has been analogized and made to conform to trust practice. General Laws c. 230, § 5, as appearing in St. 1973, c. 1114, § 145, provides that, where the executor cannot be expected to bring an action for return of assets to the estate "by reason of his interest or otherwise," such an action may be brought by "an heir, legatee or creditor having an interest in ... such claim ... in like manner as a person beneficially interested in a trust fund may bring an action to enforce a claim in favor of such fund...." Walsh v. Mullen, 314 Mass. 241, 244-245 (1943). See 1 Newhall, supra, § 105, at 318-319. That statute is not by its terms limited to Massachusetts estates. There is no reason why its policy should not apply to foreign estates, assets of which have been converted and are located in Massachusetts. The exercise of such equitable jurisdiction here does not derogate from the authority of the domiciliary court ultimately to adjudicate rights in estate property subject to domiciliary administration. Rather, it acts in aid of that authority by securing and preserving estate property in order that the judgment of the domiciliary court may be given effect when rendered.
After the argument of this case the parties furnished us on two occasions with decisions of Greek courts relative to the estate of Paul Harry Kaltsas. The first decision appears to have had the effect of requiring the defendant to post a substantial bond (secured by a letter of credit) relative to the domiciliary *693 administration. The second denied a motion by the plaintiff to have the defendant removed as domiciliary executrix. The precise effect of these decisions, as translated, is not wholly clear, and further evidence may be necessary to permit an accurate assessment of the plaintiff's need for further protection in respect to the proceeds of the stocks and bonds in question. All that we decide here is that a Massachusetts court of equity jurisdiction is empowered to enter orders to protect the beneficial owners of bank and brokerage accounts held in Massachusetts, despite the fact that property rights therein must ultimately be adjudicated by a foreign court.[3]
The judgment is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
NOTES
[1] Peter Leasca, Shearson American Express. Inc., and People's Bank of Worcester.
[2] It is agreed that the Massachusetts real estate and stocks of certain private corporations organized in Massachusetts have a situs here and are subject to ancillary administration under G.L.c. 199, § 1. By agreement of all beneficiaries these stocks were sold, and the proceeds, $250,000, are now held in an account standing in the name of the defendant as ancillary administratrix. The stocks and bonds described in the text do not have a situs here. Callahan v. Woodbridge, 171 Mass. 595, 597-598 (1898). Kennedy v. Hodges, 215 Mass. 112, 114-116 (1913). Brooks v. Titusville Trust Co., 328 Mass. 472, 473-474 (1952). The defendant is not accountable here, as ancillary administratrix, for property received by her as domiciliary executrix. Feeney v. Feeney, 335 Mass. 534, 537 (1957). This appears to be true even though such property or its proceeds are subsequently brought into Massachusetts. Martin v. Gage, 147 Mass. 204, 205-206 (1888). The defendant's bond as ancillary administratrix probably does not offer protection against conversion of the securities (or proceeds thereof) not subject to administration in Massachusetts. See Lawton v. National Sur. Co., 248 Mass. 440, 445-446 (1924); Feeney v. Feeney, supra. But see Koutoudakis v. Great American Indem. Co., 285 Mass. 466, 468-470 (1934).
[3] The award to the defendant of costs, which are in this case substantial, should be reconsidered by the probate judge in light of the holding here that the court does have jurisdiction over the claim. As further evidence must be received in any event, reconsideration should also be given to the order denying the plaintiff's belated motion to amend the complaint to allege the conversion of assets other than the stocks and bonds considered in this opinion. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 289 (1977).
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2368
JAMES A. JONES, JR.,
Plaintiff - Appellant,
versus
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING
COMMISSION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-04-1818-8)
Submitted: June 14, 2006 Decided: August 17, 2006
Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James A. Jones, Jr., Appellant Pro Se. William Charles Dickerson,
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James A. Jones, Jr., appeals the district court’s order
dismissing his claims under the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 (2000), Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2000), and the
Age Discrimination in Employment Act, 29 U.S.C. §§ 621 to 634
(2000). We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. See Jones v. Maryland-Nat’l Capital Park & Planning Comm’n,
No. CA-04-1818-8 (D. Md. Oct. 31, 2005). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
- 2 -
|
47 F.3d 1161
Shuglie (Francis J.)v.McGregor (Hon. James R.)
NO. 94-3486
United States Court of Appeals,Third Circuit.
Jan 06, 1995
Appeal From: W.D.Pa., No. 94-CV-01255,
Lancaster, J.
1
AFFIRMED.
|
FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 27, 2020
In the Court of Appeals of Georgia
A19A1844. DAVIS v. THE STATE.
COOMER, Judge.
Antonio Demarcus Davis appeals the trial court’s denial of his extraordinary
motion for new trial on the grounds that he did not knowingly and intelligently waive
his right to counsel both for his trial and his appeal. Davis contends that because the
trial court failed to warn him of the dangers and disadvantages of proceeding both to
trial and on appeal without counsel, he has demonstrated “good reason” as to why his
motion for new trial was not filed within the 30-day period following judgment.
Davis also argues that a new trial is necessary because his right to confront the
witnesses against him was violated when the trial court allowed expert testimony by
Skype without first making a finding that face-to-face confrontation was unnecessary
and by allowing the expert to testify regarding DNA evidence despite not signing the
testimonial certificate or performing the DNA test. Because Davis’ claims alleged
different instances in which his constitutional rights were violated, and because
habeas corpus provides an adequate remedy for addressing Davis’ constitutional
claims, an extraordinary motion for new trial is not the proper vehicle through which
Davis could pursue his claims. Nonetheless, because the trial court denied the motion
instead of dismissing it, we vacate the trial court’s order and remand the case to the
trial court for the purpose of entering a dismissal of Davis’ extraordinary motion for
new trial. OCGA § 5-5-41 (a) provides that “[w]hen a motion for a new trial is made
after the expiration of a 30-day period from the entry of judgment, some good reason
must be shown why the motion was not made during such period, which reason shall
be judged by the court.”
Any party making an extraordinary motion for new trial must meet two
fundamental requirements. First, regardless of the basis for an
extraordinary motion for new trial, OCGA § 5-5-41 (a) requires the
moving party to show a “good reason” why the motion was not filed
during the 30-day period after the entry of judgment. Good reason exists
only where the moving party exercised due diligence but, due to
circumstances beyond its control, was unable previously to discover the
basis for the claim it now asserts. . . . Second, before any motion for new
trial — timely or untimely — may be granted, the moving party must
2
show that the error alleged as the basis for the motion was materially
harmful.
Ford Motor Co. v. Conley, 294 Ga. 530, 540-541 (2) (757 SE2d 20) (2014). “Because
they are an extraordinary remedy, extraordinary motions for new trial are not favored
in either civil or criminal cases. Mitchum v. State, 306 Ga. 878, 880 (1) (a) (834 SE2d
65) (2019) (citation and punctuation omitted). “And, except for the requirement in
OCGA § 5-5-41 (a) that the moving party show a ‘good reason’ for not seeking a new
trial within 30 days of the judgment, the requirements for extraordinary motions for
new trial are not specified by statute but instead are the product of case law that draws
on the statutory requirements for ordinary motions for new trial.” Id. (citation and
punctuation omitted). This Court will not reverse a trial court’s ruling on an
extraordinary motion for new trial “unless it affirmatively appears that the trial court
abused its discretion.” Bharadia v. State, 326 Ga. App. 827, 829 (755 SE2d 273)
(2014) (citation and punctuation omitted).
In an October 2019 opinion, our Supreme Court addressed the question of
whether a post-appeal challenge to a criminal conviction based on the alleged
deprivation of a defendant’s constitutional rights could be properly pursued through
an extraordinary motion for new trial, or whether such a challenge must be pursued
3
exclusively through a petition for a writ of habeas corpus. Mitchum, 306 Ga. at 878.
In that case, the defendant was convicted of felony murder in 1999, and 15 years later
filed a pro se extraordinary motion for new trial based upon alleged improper
communications with the jury. Mitchum, 306 Ga. at 879. The Georgia Supreme Court
held that following the enactment of the Habeas Corpus Act of 1967, “if a prisoner
convicted in a Georgia court seeks, post-appeal, to assert the denial of a constitutional
right through an extraordinary motion for new trial rather than a petition for a writ of
habeas corpus, such claim is not properly raised.” Mitchum, 306 Ga. at 885 (1) (1).
Just as in Mitchum, in the present case, Davis alleges a deprivation of his
constitutional rights required the trial court to grant his extraordinary motion for a
new trial pursuant to OCGA § 5-5-41 (a). However, as our Supreme Court found,
“constitutional matters that are exclusively governed by the adequate remedy of
habeas corpus cannot be pursued through [an extraordinary motion for new trial].”
Mitchum, 306 Ga. at 885 (1) (c). Because habeas corpus provides Davis with an
adequate remedy to pursue his constitutional claims, and an extraordinary motion for
new trial was not an adequate vehicle to pursue said claims, the trial court should
have dismissed the motion. Accordingly, we vacate the trial court’s denial of Davis’
4
extraordinary motion for a new trial and remand this case with direction that the
extraordinary motion for new trial be dismissed.
Judgment vacated and remanded with direction. Doyle, P. J., and Markle, J.,
concur.
5
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-15018
Plaintiff-Appellee, D.C. Nos. 3:17-cv-03796-WHA
3:14-cr-00306-WHA-1
v.
LUKE D. BRUGNARA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Federal prisoner Luke D. Brugnara appeals pro se from the district court’s
order denying his 28 U.S.C. § 2255 motion and 28 U.S.C. § 2241 habeas petition.
By our order of June 27, 2019, this appeal is limited to the narrow issue of “the
district court’s denial of the claims challenging actions of the Bureau of Prisons in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
connection with disciplinary proceedings and calculation of good time credit”
under section 2241. We have jurisdiction under 28 U.S.C. § 1291, and we may
affirm on any basis supported by the record. See Bonin v. Calderon, 59 F.3d 815,
823 (9th Cir. 1995). Reviewing de novo, see Lane v. Swain, 910 F.3d 1293, 1295
(9th Cir. 2018), cert. denied, 140 S. Ct. 60 (2019), we affirm.
The record reflects that Brugnara was not housed in the Northern District of
California when he filed his petition. Because petitions brought under section
2241 must be heard in the defendant’s custodial court, the district court lacked
jurisdiction to consider Brugnara’s claims arising under § 2241. See Hernandez v.
Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). We, therefore, affirm the denial
of relief.
Brugnara also contends on appeal that the Bureau of Prisons has violated the
First Step Act in a number of respects in relation to his sentence. These claims are
not properly before this court because Brugnara failed to raise them in the district
court until after issuance of the only order on appeal here. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999).
All pending motions are denied.
AFFIRMED.
2 19-15018
|
993 F.2d 1533
U.S.v.Huang
NOS. 92-1625, 92-1674
United States Court of Appeals,Second Circuit.
Apr 27, 1993
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
|
544 U.S. 917
BERWICKv.UNITED STATES.
No. 04-8529.
Supreme Court of United States.
March 21, 2005.
1
C. A. 2d Cir. Reported below: 107 Fed. Appx. 253. Motions of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of United States v. Booker, 543 U. S. 220 (2005).
|
Case: 11-40291 Document: 00511724845 Page: 1 Date Filed: 01/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 13, 2012
No. 11-40291 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANTONIO BERRY, also known as Tony Berry,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:92-CR-93-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Antonio Berry, federal prisoner # 03256-043, appeals the district court’s
order of March 2, 2011, which struck his pro se pleading requesting a sentencing
reduction pursuant to Amendment 505 to the Sentencing Guidelines and denied
on the merits Berry’s motion for a reduction in his sentence based on
Amendment 706. Berry filed a motion to proceed in forma pauperis (“IFP”) on
appeal. Berry also filed a motion for judicial notice, which we construe as a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40291 Document: 00511724845 Page: 2 Date Filed: 01/13/2012
No. 11-40291
supplemental brief, stating that he only intended to appeal the district court’s
denial of his request for a sentencing reduction pursuant to Amendment 505.
As we conclude that Berry has waived the only issue raised in his notice of
appeal by failing to brief it, we DISMISS his appeal.
Although pro se briefs are afforded liberal construction, Estelle v. Gamble,
429 U.S. 97, 106 (1976), Berry’s notice of appeal specifically designates the
district court’s decision to strike his pro se pleading as the order from which he
appeals. The district court’s order did not address Berry’s Amendment 505 claim
on the merits. However, Berry’s appellate brief is devoted entirely to the
purported merits of that claim, as well as to an argument that his sentence
violates the Ex Post Facto Clause of the Constitution. His brief is devoid of any
argument that the district court’s decision to strike his pro se pleading was
improper. Berry has thus waived the only issue he raised in his notice of appeal
by failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
(“‘Although we liberally construe the briefs of pro se appellants, we also require
that arguments must be briefed to be preserved.’” (quoting Price v. Digital
Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988))).
Berry has filed repeated frivolous sentencing challenges and appeals
thereof. This appeal is frivolous as he fails to brief the only point he appealed.
He has previously been warned to cease frivolous filings, see United States v.
Berry, 51 F. App’x 483 (5th Cir. 2002) (per curiam) (unpublished), and he was
previously sanctioned, see United States v. Berry, 262 F. App’x 614 (5th Cir.
2008) (per curiam) (unpublished), but the warning and sanction have apparently
fallen on deaf ears. Accordingly, Berry shall pay a monetary SANCTION to the
clerk of this court in the amount of $200. The clerk of this court and the clerks
of all federal district courts within this circuit are directed to refuse to file any
pro se pleading from Berry challenging this conviction or sentence unless Berry
submits proof of satisfaction of this sanction. If Berry attempts to file in this or
2
Case: 11-40291 Document: 00511724845 Page: 3 Date Filed: 01/13/2012
No. 11-40291
any federal district court any such pleadings, the clerk will docket them for
administrative purposes only. Any submissions which do not show proof that
the sanction has been paid will be dismissed.
Berry’s appeal is DISMISSED, his motion to proceed IFP is DISMISSED
as moot, and a SANCTION is issued.
3
|
51 Cal.App.4th 495 (1996)
THE PEOPLE, Plaintiff and Respondent,
v.
FREDERICK JOHN APPEL, Defendant and Appellant.
Docket No. B097113.
Court of Appeals of California, Second District, Division Six.
November 7, 1996.
*499 COUNSEL
Kate M. Neiswender for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka and Ann Rushton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GILBERT, J.
Frederick John Appel was charged with knowingly discharging pollutants into the waters of the United States between May 10, 1992, and December 23, 1994. (Wat. Code, § 13387, subd. (a)(4).) A jury found him guilty.
On appeal he contends that his conviction was unconstitutional to the extent that it relied on acts occurring prior to an April of 1994 jurisdictional *500 determination; that federal law provides for no criminal penalties and preempts California law; that he was denied due process because he had no prior opportunity to challenge the jurisdictional determination; that the trial court erred in refusing to allow him to apply the "converted cropland" exception as a defense; and that he was denied due process by the prosecution's failure to bring the charge until after floods washed away evidence. We affirm.
FACTS
Appel owns a parcel of property of approximately 30 acres. The Ventura River runs through the center of the property and also at its western boundary. San Antonio Creek comes through a corner of the property and empties into the Ventura River. The Ventura River is typical of Southern California rivers. It has a "braided" system of channels within a broad floodplain.
Appel purchased the parcel in 1989 for $25,000. The price was low because it had a limited potential for use. When Appel acquired the property it was overgrown with vegetation. Appel owned a tree trimming and bush removal service. He had some heavy equipment, including a 55,000-pound track loader designed to clear brush, logs and debris.
On December 31, 1993, some neighbors of Appel contacted State Fish and Game Warden Jorge Gross about Appel's activities in the Ventura River. Gross went to the site and saw a levee being constructed on a low-flow channel of the river. He noticed that the levee was being built in the river bottom. Gross described the location of the levee as "pretty much in the middle of the river."
Gross followed the sound of heavy equipment being operated, and found Appel on a bulldozer. Appel was knocking down some riparian vegetation and leveling out the area. At the time Appel was working on a neighboring parcel known as the Drapeau property.
Gross asked Appel if he had a stream bed alteration agreement. Appel said he did not need one. Appel mentioned he was doing similar work on his property. When Gross told Appel he was going to look at his property, Appel told Gross he needed a warrant. Gross did not believe he needed a warrant, but he did not enter Appel's property.
Looking from the Drapeau property, however, Gross could see "quite a bit of alteration of the river bottom" on Appel's property. There were places *501 where fill material had been brought in which raised the elevation of the river bottom, making a platform above the regular contours of the river. The fill included nonnative rock and vegetation such as palm trees. There were flat areas devoid of vegetation where it had been obviously knocked down.
Gross said he did not need to determine the extent of the high water mark to know Appel was working in the bed of the Ventura River because it was obvious. Gross told Appel that he was working in the riverbed and that he needed a stream bed alteration agreement. Appel said he was not subject to the laws of California. Gross told Appel what he was doing was illegal and if Appel had any doubt, the best way to resolve it was to apply for an agreement. Appel said if Gross did not cite him he was going to continue. Gross left the property without citing him.
Gross returned on January 14, 1994, entering both the Drapeau and Appel parcels. The amount of work had doubled since the last time he was there. New soil had been placed on the levee, and rocks and other material had been removed even from the low flow channel to help make the levee. Near a logjam Gross found a western pond turtle that had been sliced in half lying in a bulldozer track. Appel told Gross that he built the levee on the Drapeau parcel to divert water from his parcel.
Karen Grigsby, a former neighbor of Appel, testified that her first visit to the property was shortly after Appel purchased it. She said she saw only one dead tree on that first visit. After the purchase, Appel dumped tree trimming material on the land.
On December 24, 1993, Grigsby saw Appel using a bulldozer to construct the levee on the Drapeau's upstream property. Whole trees were being used to construct the levee. After Appel built the dam she never observed any water in the river channel.
Another neighbor, Paul Wegner, testified Appel dumped tree trimmings including a large number of cut palm trees on the property. This began as soon as Appel acquired the property. There were piles of cut palm trees all over the property. Wegner saw palm trees deposited along the eastern bank of the western channel of the river. In November of 1994 Wegner saw eucalyptus trees deposited "right on the edge of the river."
During a flood in 1995, Wegner saw "palm trees popping up off [Appel's] property and floating down [the river]." After the flood Wegner saw hundreds of cut palm and eucalyptus trees along the river downstream from Appel's property. He saw none north of the property. At the beach he saw *502 cut palm and eucalyptus trees. He also saw a great many cut palm trees in the ocean, "floating all over and definitely nailing the pier."
Wegner moved to his property in 1989. When he was new to the area he had conversations with Appel concerning the need for preparedness and caution about floods. Appel explained how powerful the river was and what it could do and showed Wegner pictures of previous floods.
In a conversation with Wegner, Appel explained his philosophy for dealing with government. Appel told Wegner, "[N]ever respond to any government agencies, state, local, basically anybody with authority ... and never respond, never return phone calls ... never fill out forms ... just completely do not cooperate." Wegner said Appel thought he was a fool for obtaining a business license.
Kenneth Wilson, an environmental specialist for the Department of Fish and Game, visited the property in January and February of 1993. Wilson saw piles of debris along the edge of the slope of the low flow channel, disturbed areas where bulldozers had been working in the river bed and graded roads. Wilson returned with Gross to the area on January 14, 1995. He saw evidence of fill in the riverbed. Some of the low flow or secondary or tertiary braids of the river were filled. The fill was from a source other than the riverbed.
On January 4, 1993, Michael Jewell of the Army Corps of Engineers received an anonymous telephone call reporting grading and filling in a portion of the Ventura River. After a site visit the district engineer issued a cease-and-desist order. Appel replied that the corps had no jurisdiction. The corps wrote to Appel telling him that it could come out to his property to do a jurisdictional determination. A number of telephone conversations between Jewell and Appel failed to resolve the matter. Appel said he would get back to Jewell, but never did. Jewell tried to contact Appel several times without success. Finally Jewell turned the matter over the Environmental Protection Agency (EPA). Jewell continued to visit the site monthly and saw evidence of continuing work.
Arron Setran, an environmental scientist with the EPA, called Appel's residence in November of 1993. He identified himself and his agency and asked if Appel would call back. Receiving no response he called a second time. Still receiving no response he wrote asking Appel's cooperation in investigating the activities on his parcel. Appel responded that the federal government had no jurisdiction. The EPA obtained a warrant on February 1, 1994.
*503 Setran entered the property pursuant to the warrant. He described the property as looking "like somebody took a bulldozer and just went on a joyride." He saw that someone had shredded tree or bush material and laid it down three or four feet thick "in a swath as far as you can see for a couple a hundred yards, probably." He said the material encroached on the waters of the United States. He saw vegetative material encroaching into a "live stream." He also saw a road built across a live stream in the middle of the parcel.
A jurisdictional survey of the property to determine the boundaries of the waters of the United States, that is, the ordinary high water mark, was completed by the EPA in April of 1994. Because the property had been so substantially altered, the EPA had to use aerial photographs to determine where the river channels had been. A second cease-and-desist order was issued after the survey was completed.
Even after the survey was completed further inspection showed that additional work had been done. Setran saw a vegetative mound about the size of the courtroom and eight to ten feet high on the bank of the river. He saw eucalyptus trees placed on an artificial bank in the waters of the United States.
Floods in January of 1995 washed away much of the fill material and vegetation that had been dumped on the property. The floods revealed a dark band of fill material that had been placed "on the normal elevation of the stream bed."
DISCUSSION
I
(1a), (2a) Appel contends his conviction was unconstitutional to the extent it relied on acts performed prior to the EPA's jurisdictional determination in April of 1994. He claims that until that time even the EPA could not say with certainty which areas of his property were waters of the United States.
(2b) Appel bases his claim of unconstitutionality on the ex post facto clauses of the United States and California Constitutions. (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 9.) But an ex post facto law is a retrospective statute. (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 419, p. 601.) Here the statute under which Appel was prosecuted was enacted prior to the acts with which he was charged. Thus there is no ex post facto violation.
*504 (3) Appel emphasizes his claim that the statute is vague. A statute violates the due process clause if it is so indefinite that it does not give fair warning of the conduct that gives rise to criminal penalties. (See 7 Witkin, Summary of Cal. Law, supra, Constitutional Law, § 104, p. 157.)
Water Code section 13387, subdivision (a)(4) makes it a crime to violate any requirement of section 301 of the Federal Water Pollution Control Act (FWPCA), as amended. Section 301 prohibits the discharge of any pollutant into the waters of the United States. (33 U.S.C. §§ 1311, 1362(7) & (12).) A pollutant includes dredged soil, solid waste, rock and sand. (33 U.S.C. § 1362(6).) The waters of the United States include rivers and streams that are tributaries of tidal waters. (33 C.F.R. § 328.3(a)(1), (3) and (5) (1996).) The jurisdictional limit of such waters of the United States is the "ordinary high water mark." (33 C.F.R. § 328.3(e) (1996).)
The term "waters of the United States" has been held not to be unconstitutionally vague. (See United States v. Phelps Dodge Corporation (D.Ariz. 1975) 391 F. Supp. 1181, 1184-1187 [term not vague as applied to normally dry arroyo]; see also Avoyelles Sportmen's League, Inc. v. Marsh (5th Cir.1983) 715 F.2d 897, 917 [term "wetlands" not so vague as to deprive landowners of notice they may be subject to criminal liability].)
(1b) Appel relies on the testimony of Michael Jewell of the Army Corps of Engineers. Jewell conceded that prior to the jurisdictional determination in April of 1994, he could not have told Appel what the limits of the government's jurisdiction were. But the record is replete with many attempts by governmental agencies to obtain Appel's cooperation in making a jurisdictional determination. Appel's response was true to his philosophy for dealing with government: "just completely do not cooperate."
It was only by virtue of a warrant that the EPA was able to make its jurisdictional determination. Appel cannot refuse to allow a jurisdictional determination to be made and then complain he did not know the limits of the government's jurisdiction. (See United States v. Byrd (7th Cir.1970) 609 F.2d 1204, 1209 [defendant who refused to permit his land to be surveyed could not complain of the absence of a legal description of wetlands]; see also Avoyelles Sportmen's League, Inc. v. Marsh, supra, 715 F.2d at p. 917 [if landowners had wished to protect themselves from liability they could have applied for a permit].)
In any event, this is not a case that turns on the precise location of the ordinary high water mark. The evidence presented at trial, including the exhibits, shows that no reasonable person could have failed to notice that the *505 construction of the levee, much of the grade and fill work and some dumping of debris were being done inside a riverbed. Moreover, Appel discussed with his neighbor, Wegner, the propensity of the river to flood and the power of the floodwaters. Appel must have known that dumping debris near the river channels made it not only foreseeable but inevitable that the debris would end up in the river. Certainly the neighbors who reported Appel to the authorities had no difficulty in determining his activities were illegal.
II
(4) Appel next contends that the State of California is precluded from prosecuting him because federal law provides for no criminal penalties and preempts California law.
Appel is wrong that federal law does not provide for criminal penalties. The FWPCA provides in part that anyone who knowingly violates 33 United States Code section 1319(c)(2) "shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than 6 years, or by both."
Appel is also wrong about federal preemption. Title 33 United States Code section 1251(b), which is part of the FWPCA, provides in part: "It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources...."
Thus Congress expressly recognized that control of water pollution is primarily the responsibility of the states.
III
(5) Appel claims his right to due process was violated because he had no opportunity to challenge the EPA's jurisdictional determination prior to it being used against him.
Appel had the opportunity to challenge the jurisdictional determination at trial. He took advantage of the opportunity. He called a civil engineer to *506 testify and challenged the jurisdictional determination in his own testimony. Due process was satisfied. There is no due process right to a pretrial challenge.
Appel points to 33 United States Code section 1319(g). That subdivision concerns administrative penalties in the form of civil fines. It allows for notice and a public hearing. But there is no requirement that an administrative or other civil action be pursued prior to bringing a criminal action. (See United States v. Frezzo Bros. Inc. (3d Cir.1979) 602 F.2d 1123, 1126.)
Had Appel wished a public hearing to challenge the jurisdictional determination prior to criminal charges being brought he could have applied for a dredge and fill permit. (33 U.S.C. § 1344.) By applying for the permit he could have had a public hearing at which all substantial issues would be determined. (33 C.F.R. § 327.4(b) (1996).) Instead, Appel steadfastly refused to cooperate.
IV
(6) Appel contends the trial court erred in refusing to allow him to apply the "converted cropland" exemption as a defense. The trial court determined that the exemption did not apply as a matter of law.
Title 33 United States Code section 1344(f)(1)(A) provides in part that, subject to paragraph (2), the discharge of dredged or fill material "from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices ... [¶] ... is not prohibited or otherwise subject to regulation...."
Paragraph (2) of the subsection is known as the "Recapture" provision. It provides, "Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section."
To fall under the converted cropland exemption the activities "must be part of an established (i.e., on-going) farming, silviculture, or ranching operation.... An operation ceases to be established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume *507 operations." (33 C.F.R. § 323.4(a)(1)(ii) (1996).) The defendant has the burden of showing both that his activities fall within the exemption of paragraph (1) and avoid the recapture provisions of paragraph (2). (United States v. Brace (3d Cir.1994) 41 F.3d 117, 124.) Here, it is uncontested that Appel's parcel had not been used for agricultural purposes at least since 1969 until Appel purchased the property in 1989. Appel's farming activities consisted of grazing from seven to fifty-two sheep and an attempt to establish a pumpkin patch.
Because the land had not been used for farming for at least 20 years, Appel's activities cannot as a matter of law qualify as part of an ongoing farming operation. Even if Appel's activities were conducted in an effort to resume farming operations, they definitely involved modifications to the hydrological regime. As a matter of law Appel was not entitled to the converted cropland exemption.
V
(7) Appel contends he was denied due process when evidence of his alleged fill activities was completely destroyed by the January 1995 floods. He argues the prosecution had the opportunity to bring the charges earlier, but failed to do so. He claims he was deprived of the opportunity of showing that what the prosecution alleged was fill was actually natural river deposits.
A claim that preindictment delay constitutes a denial of due process is judged by "balancing of the prejudicial effect of the delay and the justification therefor." (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504 [149 Cal. Rptr. 597, 585 P.2d 219].) The burden is on the defendant to establish prejudice. (People v. Archerd (1970) 3 Cal.3d 615, 640 [91 Cal. Rptr. 397, 477 P.2d 421].)
Here Appel was charged with ongoing illegal conduct stretching from May 10, 1992, through December 23, 1994. Appel cites no case for the proposition that there is any delay in bringing charges where the crime with which the defendant is charged involves ongoing illegal conduct.
Even if there were such a delay Appel has failed to show prejudice. Appel knew long prior to the January 1995 floods that he was under investigation for illegal activities occurring on his land. If he failed to know precisely what activities the authorities considered illegal, it was only because he refused to listen. If he was concerned about preserving evidence of his innocence, he had the opportunity to do so in the same manner the prosecution preserved evidence of his guilt: through photographs and reliable witnesses. Appel certainly had at least as much knowledge as the prosecution of *508 the ability of the river to wash away the evidence. Moreover, it was the prosecution's burden to show that the material washed away in the flood was fill and not natural deposits. It is difficult to see how the destruction of the prosecution's evidence could be prejudicial to the defendant.
The judgment granting probation is affirmed. The stay on jail time previously ordered by trial court is vacated.
Stone (S.J.), P.J., and Yegan, J., concurred.
Appellant's petition for review by the Supreme Court was denied February 19, 1997.
|
253 F.3d 19 (D.C. Cir. 2001)
Adtranz ABB Daimler-Benz Transportation, N.A., Inc., Petitionerv.National Labor Relations Board, Respondent
Machinists Automotive Trades District Lodge No. 190 of Northern California, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor
No. 00-1282
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2001Decided June 26, 2001
[Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Mark S. Ross argued the cause for petitioner. With him on the briefs was Christopher J. Pirrone.
Jeffrey L. Horowitz, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Leonard R. Page, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick C. Havard, Supervisory Attorney.
David A. Rosenfeld argued the cause for intervenor. With him on the brief was Eric Borgerson.
Before: Sentelle and Henderson, Circuit Judges, and Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Sentelle.
Separate Concurring Opinion filed by Senior Circuit Judge Silberman.
Sentelle, Circuit Judge:
1
Adtranz ABB Daimler-Benz Transportation N.A., Inc. ("Adtranz") petitions for review of a National Labor Relations Board ("NLRB") order calling for a new representation election. Specifically, Adtranz challenges the NLRB's conclusion that its policies barring abusive and threatening language and limiting solicitation in the workplace constitute unfair labor practices. We vacate the NLRB's unfair labor practice determinations as they are utterly without merit. We do not address the Board's order of a new election, however, as it is not a reviewable final order.
I. Background
A. Relevant Facts
2
Petitioner Adtranz refurbishes rail cars for the Bay Area Rapid Transit system in Pittsburg, California. In December 1997, Adtranz distributed a new employee handbook containing "Rules of Conduct" with which employees were expected to comply. Under these rules, "[u]sing abusive or threatening language to anyone on Company premises" is defined as "serious misconduct," punishable with suspension for a first offense and possible termination for a second offense. Adtranz Employee Handbook at 11. "Soliciting or distributing without authorization" is defined as "extremely serious misconduct" and can result in "immediate termination of employment." Id. at 10. Under a separate section entitled "Solicitation and/or Distribution" the handbook provided that:
3
The unauthorized sale of tickets, solicitation of contributions, or distribution of handbills can disrupt work. Therefore, such activities are not permitted on Company premises during working time except for specific Company-sponsored solicitations or distributions.
4
Unauthorized activities include, but are not limited to, distribution of any literature or any material in work areas and solicitation in either work or non-work areas where either the employee soliciting or the employee being solicited is scheduled to be working.
5
All solicitation requests must be approved in advance by Human Resources. Id. at 15. The solicitation and distribution rule makes no explicit mention of union activity. A prior version of the employee handbook, however, explicitly covered "efforts on behalf of a labor union."
6
Beginning in September 1998, Machinists Automotive Trade District Lodge No. 190 of Northern California ("Union") began efforts to unionize the employees at Adtranz's Pittsburg facility. Pursuant to election petitions filed by both Adtranz and the Union, the NLRB conducted a representation election on December 9, 1998. Seventy-nine employees voted in favor of unionization, 135 employees voted against. A non-outcome determinative number of ballots were challenged. Under Section 102.69(a) of the NLRB's rules, the Union had seven days from the tallying of ballots to file objections to the election, and an additional seven days from that filing to furnish evidence in support of the objections.
7
The Union filed two "Objections to Conduct of Election" on December 16, alleging that Adtranz "interfered with the election by threatening employees with loss of benefits and wages and offering increased benefits or wages to employees" and "provided increase [sic] benefits and wages to employees." The objections made no mention of the handbook provisions at issue in this case. One week later, on December 23, the Union filed an unfair labor practice charge against Adtranz, alleging that various provisions of the employee handbook were overly broad which "interfered with, restrained, and coerced employees in the exercise of the rights guaranteed" by the National Labor Relations Act ("NLRA").
B. Proceedings Below
8
In response to the Union's unfair labor practice filing, on March 18, 1999, the NLRB Regional Director issued a complaint alleging, among other things, that the company's handbook policies were overly broad in violation of Section 8(a)(1) of the NLRA. 29 U.S.C. 158(a)(1). That same week the Regional Director consolidated the unfair labor practice complaint with one of the Union's election complaints. The other election complaint was dismissed for lack of evidence.
9
On May 21, 1999, Adtranz filed a motion in limine seeking to bar consideration of the handbook provisions in evaluating the Union's unfair election complaint. Adtranz claimed that consideration of the handbook in relation to the election was procedurally barred under Burns Int'l Security Servs., 256 NLRB 959 (1981), in that the Union did not identify the handbook as a basis for challenging the election within seven days of the election. On June 23, 1999, Associate Chief Administrative Law Judge ("ACALJ") Schmidt issued an order in which he found the handbook provisions to be "wholly unrelated to the conduct alleged in the Union's remaining election objection." The ACALJ nonetheless denied Adtranz's motion to exclude the handbook finding that, under NLRB precedent, the ALJ who would try the case had sufficient discretion to consider the handbook in his proceeding.
10
On January 2000, an Administrative Law Judge ("ALJ") found that the abusive language and solicitation/distribution provisions of Adtranz's employee handbook constituted unfair labor practices under Section 8(a)(1) of the NLRA and constituted a sufficient basis to overturn the December 1998 election. The ALJ rejected the Union's remaining complaints, including Adtranz's rule limiting employee use of e-mail and the Union's allegation that Adtranz manipulated employee benefits to discourage unionization. Adtranz ABB DaimlerBenz Transp. N.A., Inc., 331 NLRB No. 40, slip op. at 4 (May 31, 2000). The ALJ nonetheless called for a new election and ordered Adtranz to cease and desist from its unfair labor practices and post an appropriate notice at its Pittsburg facility.
11
On May 31, 2000, the NLRB summarily affirmed the ALJ's conclusions and call for a new election, and issued a revised order. Specifically, the NLRB ordered Adtranz to revise its employee handbook to rescind the "overly broad rules regarding solicitation, distribution, and abusive language" and required that Adtranz post appropriate notice at all Adtranz facilities nationwide. Id. at 1. One member of the Board dissented in part on the grounds that Adtranz's rule against abusive language did not constitute an unfair labor practice. Id. at 1 n.3.
II. Merits
12
Adtranz petitions for review of the NLRB's order, challenging both of the NLRB's unfair labor practice determinations and ordered remedies. The NLRB cross-petitions for enforcement of the order. The Union intervenes in support of the NLRB arguing, inter alia, that the use of abusive language, vulgar expletives, and racial epithets "is part and parcel of the vigorous exchange that often accompanies labor relations." Brief of Intervenor at 2.
A. Jurisdiction
13
As an initial matter, we must address our jurisdiction, or lack thereof, over petitioner Adtranz's claims. This Court has jurisdiction to review a "final order" of the NLRB pursuant to Sections 10(e) and (f) of the NLRA. 29 U.S.C. 160(e) and (f). An NLRB decision affirming an ALJ's findings of unfair labor practices by an employer is such an order. However, "the Board's direction of a new election is not a final order reviewable under either section 10(e) or section 10(f) of the NLRA." Gold Coast Restaurant v. NLRB, 995 F.2d 257, 267 (D.C. Cir. 1993) (citing American
14
Fed'n of Labor v. NLRB, 308 U.S. 401, 409 (1940)). Should an employer seek "to challenge the new election, it can precipitate an unfair labor practice charge by refusing to recognize the union representation that could result from the election." Id. In the case at hand, this Court has no jurisdiction to consider petitioner's challenge to the NLRB's order of a new election or petitioner's claim that the NLRB improperly considered the employee manuals in its consideration of the Union's election objections. However, we have jurisdiction over petitioner's remaining claims against the Board, and the resolution of these claims will no doubt impact future proceedings concerning the election.
B. Standard of Review
15
Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise" of their rights to unionize and engage in related labor activities. 29 U.S.C. 158(a)(1). The NLRA delegates to the Board "the work of applying the Act's general prohibitory language in the light of the infinite combination of events which might be charged as violative of its terms." Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945). NLRB determinations as to what sort of employer conduct unlawfully restrains or interferes with protected labor activity are entitled to considerable deference so long as they are "reasonably defensible." Ford Motor Co. v. NLRB, 441 U.S. 488, 497 (1979).
16
In evaluating workplace rules promulgated by employers, the NLRB traditionally considers "whether the rules would reasonably tend to chill employees in the exercise" of their statutory rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Where the NLRB faithfully applies this standard, and adequately explains the basis for its conclusion, we will enforce its rulings. On the other hand, where the NLRB adopts an unreasonable or otherwise indefensible interpretation of Section 8(a)(1)'s prohibition, we will deny enforcement and vacate the Board's order. This case fits comfortably into the latter category.
C. Abusive and Threatening Language
17
Adtranz seeks to maintain a decorous and peaceful workplace. As documented in the employee manual at issue in this case, the company's "shared values" which it deems fundamental to its "continuous pursuit for success" include "[t]rust and respect for self and others," "[t]eamwork and cooperation," and "[e]ffective communication." Adtranz Employee Handbook at 3. In accordance with these values, Adtranz prohibits the use of "abusive or threatening language to anyone on company premises." Id. at 11. Adtranz also prohibits harassment and other conduct that could conflict with its values.
18
To the NLRB and Union Intervenor, Adtranz's effort to maintain a civil and decent workplace is an unfair labor practice that threatens the statutory rights of Adtranz's employees under the NLRA. Prohibiting the use of abusive or threatening language, the Board maintains, has the unrealized potential to chill the exercise of protected activity, as the rule "could reasonably be interpreted as barring lawful union organizing propaganda." Adtranz ABB, 331 NLRB No. 40, slip op. at 4. The NLRB does not argue that such "chilling" necessarily has occurred at Adtranz's Pittsburg facility, nor does it maintain that Adtranz either adopted or applied the policy in order to frustrate or discourage union activity. Rather, the NLRB asserts that the rule against the use of abusive and threatening language in the workplace on its face constitutes an unfair labor practice.
19
Under the Board's reasoning, every employer in the United States that has a rule or handbook barring abusive and threatening language from one employee to another is now in violation of the NLRA, irrespective of whether there has ever been any union organizing activity at the company. This position is not "reasonably defensible." It is not even close. In the simplest terms, it is preposterous that employees are incapable of organizing a union or exercising their other statutory rights under the NLRA without resort to abusive or threatening language.
20
The NLRB notes that union campaigns are heated affairs, often spawning intemperate language. According to the NLRB, the abusive or hostile nature of such outbursts does not strip such language of its protected status, and therefore it is unlawful for a company to threaten punishment for the use of such language. According to the Board and the Union Intervenor, it is perfectly acceptable to use the most offensive and derogatory racial or sexual epithets, so long as those using such language are engaged in union organizing or efforts to vindicate protected labor activity. Expecting decorous behavior from employees is apparently asking too much. Indeed, Union Intervenor suggests that it is unfair to expect union members to comport themselves with general notions of civility and decorum when discussing union matters or exercising other statutory rights. We do not share the Union's low opinion of the working people it purports to represent. America's working men and women are as capable of discussing labor matters in intelligent and generally acceptable language as those lawyers and government employees who now condescend to them.
21
The NLRB claims that "it is well settled that an employer violates Section 8(a)(1) ... by maintaining a rule that seeks to broadly prohibit employee speech beyond deliberate or malicious false statements." Brief for the NLRB at 9. This is a stunning misreading of the applicable precedent, including the Board's own prior rulings. Indeed, the NLRB has long held the opposite, noting that "an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act." Atlantic Steel Co., 245 NLRB 814, 816 (1979). Under Atlantic Steel, if an employee is sanctioned for the use of obscenity or abusive language, the Board may not ignore the nature of the language used. Rather the NLRB is required to consider "the nature of the employee's outburst," among other factors, in determining whether the employee's activity remains protected. Id. See also Felix Indus. v. NLRB, 2001 WL 640638 (D.C. Cir. June 12, 2001).
22
The NLRB is correct that some of its prior precedent could be read to support the proposition it advances here. This proves nothing. Where, as here, the NLRB adopts an unreasonable position, it can find no solace in the fact that it made the same mistake in prior cases. As we have observed in other contexts, "merely applying an unreasonable statutory interpretation for several years [cannot] transform it into a reasonable interpretation." F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C. Cir. 1996). The NLRB may be bound by its erroneous precedents. We are not. That said, the Board's ruling here is substantially broader than the cases on which it attempts to rely. For instance, the rules at issue in Lafayette Park Hotel, 326 NLRB No. 824 (1998), and Flamingo Hilton-Laughlin, 330 NLRB No. 34 (1999), barred false, vicious, profane or malicious statements about the employer. As such, these rules discouraged speech that is arguably related to protected activities, in a way that "abusive or threatening language" more generally is not. An employer's effort to squelch criticism from employees, and threatening to punish "false" statements without evidence of malicious intent, is quite different from demanding employees comply with generally accepted notions of civility. The former may well constitute an unfair labor practice in the proper context. The latter, in and of itself, does not. This distinction is fully consistent with Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53 (1966), which held that libel actions under state law are only preempted by the NLRA to the extent that such actions do not require knowledge of the statement's falsity or a reckless disregard for the truth.
23
The other cases relied upon by the NLRB are no more helpful. In Great Lakes Steel, the company's unfair labor practice was a rule prohibiting the possession or distribution of literature--whether or not during working hours--that was "libelous, defamatory, scurrilous, abusive or insulting" or "which would tend to disrupt order, discipline or production within the plants." 236 NLRB 1033, 1033 (1978). This rule did far more than impose a standard of civility on workplace behavior. Thus, the Sixth Circuit Court of Appeals found that the rule "taken as a whole" was "too broad," in no small part because it could prohibit solicitation "during nonworking hours." Great Lakes Steel v. NLRB, 625 F.2d 131, 132 (6th Cir. 1980).
24
We cannot help but note that the NLRB is remarkably indifferent to the concerns and sensitivity which prompt many employers to adopt the sort of rule at issue here. Under both federal and state law, employers are subject to civil liability should they fail to maintain a workplace free of racial, sexual, and other harassment. Abusive language can constitute verbal harassment triggering liability under state or federal law. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Given this legal environment, any reasonably cautious employer would consider adopting the sort of prophylactic measure contained in the Adtranz employee handbook. While a single, isolated remark will rarely be sufficient to trigger employer liability, see Clark County School Dist. v. Breeden, 121 S. Ct. 1508 (2001), failure to maintain a workplace free of such language can place an employer at significant financial risk nonetheless. See generally Eugene Volokh, What Speech Does 'Hostile Work Environment' Harassment Law Restrict? 85 Geo. L.J., 627 (1997). Under current law, the "only reliable protection is a zero-tolerance policy, one which prohibits any statement that, when aggregated with other statements, may lead to a hostile environment." Id. at 638-39. Indeed, such rules are commonplace. See, e.g., id. at 639 n.35 and citations therein. To bar, or severely limit, an employer's ability to insulate itself from such liability is to place it in a "catch 22."
25
That the threat of legal liability justifies limitations on threatening language due to the potential for workplace discord or violent confrontations is a principle the NLRB has itself acknowledged. In Southwestern Bell Tel. Co., the NLRB upheld an employer's ban on employees' wearing offensive shirts making derogatory reference to the employer during contract negotiations as a "reasonable precaution against discord and bitterness between employees and management, as well as to assure decorum and discipline in the plant." 200 NLRB 667, 670 (1972).
26
We understand that labor negotiations produce occasional intemperate outbursts and, in a specific context, such language may be protected. We also recognize that the uneven or partial application of a rule against abusive and threatening language could constitute an unfair labor practice if directed against employees seeking to exercise their statutory rights. Yet the Board's position that the imposition of a broad prophylactic rule against abusive and threatening language is unlawful on its face is simply preposterous. It defies explanation that a law enacted to facilitate collective bargaining and protect employees' right to organize prohibits employers from seeking to maintain civility in the workplace.
D. Solicitation
27
The second claim raised by petitioner presents a closer issue, but only slightly. The Adtranz employee handbook contains a rule against "soliciting and distribution without authorization." Adtranz maintains that this rule when read in context, does not discourage or chill protected activity. Instead, petitioner claims, the rules are clearly focused upon preventing work disruptions and curbing potential distractions. As above, the NLRB cites no evidence, let alone substantial evidence, to the contrary. Instead, the NLRB argues that the policy is unlawful on its face because it will "chill" protected labor activity. This, too, is not a "reasonably defensible" position.
28
Our decision in Aroostook County Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996), is instructive. In Aroostook, this Court reversed the NLRB's finding that a policy barring medical office employees from discussing grievances within earshot of patients constituted an unfair labor practice. We held that the NLRB could not declare such a policy to be facially unlawful based upon "fanciful" speculation, but rather had to consider the context in which the rule was applied and its actual impact on employees. As we explained:
29
In the absence of any evidence that [the employer] is imposing an unreasonably broad interpretation of the rule upon employees, the Board's determination to the contrary is unjustified. If an occasion arises where [the employer] is attempting to use the rule as the basis for imposing questionable restrictions upon employees' communications, the employees may seek review of the Company's actions at that time. However, the rule on its face is not unlawful.
30
81 F.3d at 213.
31
This legal standard should come as no surprise to the NLRB. Indeed, the NLRB has itself cautioned against parsing workplace rules too closely in a search for ambiguity that could limit protected activity. Rather, the Board should consider "the realities of the workplace" and the actual context in which rules are imposed. See Lafayette Park Hotel, 326 NLRB 824 (1998). In the Board's decision before us, however, there is no consideration of the context of Adtranz's rule, or its impact on employees. Indeed, the ALJ's decision adopted by the Board considered nothing more than the General Counsel's claim that "the rule could reasonably interpreted as barring lawful union organizing propaganda or rhetoric." Adtranz ABB, 331 NLRB No. 40, slip op. at 3.
32
Unlike the cases relied upon by the ALJ for his decision, Our Way Inc., 268 NLRB 394 (1983); Laidlaw Transit Inc., 315 NLRB 79 (1994); Opryland Hotel, 323 NLRB 723 (1997); and Baldor Electric Co., 245 NLRB 614 (1979), the rule in question only applies to conduct during working time and in the work place. In these other cases the invalidated rules prohibited or restricted solicitation, handbilling and the like during breaks and meals-times when an employer could not usually claim to have a significant interest in preventing workplace "distractions." " 'Working time is for work' is a long-accepted maxim of labor relations." Our Way, 268 NLRB at 395 (quoting Peyton Packing Co., 49 NLRB 828, 843 (1943)). Therefore, "rules prohibiting solicitation during working time are presumptively lawful because such rules imply that solicitation is permitted during nonworking time, a term that refers to the employees' own time." Id. at 394. Similarly, "an employer's prohibition against employee distribution in work areas at all times is presumptively valid." Beverly Enterprises-Hawaii, Inc., 326 NLRB 335, 335 (1998).
33
The NLRB's decisions embody a "long-held standard that rules banning solicitation during working time state with sufficient clarity that employees may solicit on their own time." Our Way, Inc., 268 NLRB at 395. But they also support the principle that the NLRB may not cavalierly declare policies to be facially invalid without any supporting evidence, particularly where, as here, there are legitimate business purposes for the rule in question and there is no suggestion that anti-union animus motivated the policy.
34
As with the rule against abusive language, Adtranz's rule applies across the board, so it cannot be said to discriminate against unionization efforts or other protected activity. Adtranz also proffered undisputed evidence to the ALJ demonstrating that there was widespread employee solicitation and distribution during non-worktime and that the company encouraged such activities. Not only did the NLRB fail to consider any of petitioner's evidence, it cites no evidence to support its concerns about "chilling" protected activity. Indeed, there is no evidence in the record--let alone "substantial evidence"--to suggest that any employees believed that the solicitation and distribution rule prohibited union activities, while some employees claimed the opposite. Thus, we find no basis for the NLRB's holding.
III. Conclusion
35
For the reasons set forth above, we vacate the NLRB's order insofar as it found that Adtranz's employee policies constituted unfair labor practices under the NLRA.
36
Silberman, Senior Circuit Judge, concurring:
37
I concur in the majority's opinion with respect to "abusive and threatening language" because I agree that it is absurd for the Board to hold that an employer who bans that sort of language-even though the ban has never been implemented in an antiunion fashion nor in a manner that could be thought to interfere with organizational efforts--per se violates 8(a)(1). This charge was an obvious gimmick (fashioned well after the election contest period ended) designed to overturn the election.
|
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, Appellee,
v.
HENRY JOSEPH PASKINS, Appellant.
No. 1 CA-CR 14-0790
FILED 3-1-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-448616-001
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Christopher DeRose
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
STATE v. PASKINS
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Henry Paskins was convicted on multiple counts but appeals
only his conviction and sentence for one count of child abuse of his seven-
year-old daughter, asserting the trial court committed prejudicial error by
admitting irrelevant evidence and allowing improper argument from the
State. For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In October 2013, Scottsdale police officers were dispatched to
a church after receiving reports that individuals were trespassing on the
property. The first officer to arrive observed four individuals, later
identified as Paskins, his mother, his wife, and his daughter, S.P.,
(collectively, the family) sitting on a grassy area of the church property. The
officer approached the family and asked them to leave. The family refused.
¶3 Another officer arrived and issued a trespass warning to the
family. The family again refused to leave, with Paskins announcing “it
would be war” if the officers tried to make them leave. More officers
arrived, and church officials advised the family they did not have
permission to be on the property and asked them to leave. The family again
refused to leave.
¶4 The officers asked the family to leave one final time and
warned that if they did not do so they would be arrested. The family still
refused, and when two officers approached Paskins to arrest him, Paskins
threw his arms back and knocked the officers into the side of the church
building. During the ensuing scuffle, S.P., at her parents’ specific
command, began hitting one of the officers.
1 We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v. Harm,
236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).
2
STATE v. PASKINS
Decision of the Court
¶5 Paskins continued to resist and officers eventually tased him.
The tasing did not completely stop Paskins’ struggle, but officers ultimately
brought him under control and arrested him. Even after he was subdued,
Paskins continued yelling at S.P. to fight the officers. A recording of the
event captured Paskins shouting, “fight now, [S.P.] fight . . . hit him now,”
“fight . . . in the name of Jehovah,” “punch him in the huevos,” and “hit him
now.”
¶6 Paskins was indicted for child abuse, a class four felony, in
violation of Arizona Revised Statutes (A.R.S.) section 13-3623(B)(1).2
Consistent with the statute, the indictment alleged Paskins, “under
circumstances other than those likely to produce death or serious physical
injury intentionally or knowingly caused or permitted [S.P.’s] person or
health to be injured or to be placed in a situation where her health was
endangered.” Paskins was tried jointly with his wife and mother.
¶7 At trial, the State argued Paskins placed S.P. in danger by
commanding her to engage in an altercation with police officers. The State’s
evidence included testimony from one of the officers S.P. attacked that,
when in uniform, he carries pepper spray, a taser, and a firearm with a
safety on the trigger, which is disengaged simply by pulling the trigger.
When the prosecutor inquired as to what would have happened if S.P. had
grabbed the officer’s gun, counsel for Paskins objected on relevance
grounds. The objection was sustained. When the officer was later asked
what he would do if anyone, a child or adult, grabbed one of his weapons,
the officer answered, “my number one priority is to not let them be armed
with my weapon.”
¶8 On redirect, the prosecutor again asked the officer what
would happen if S.P. was told “to grab onto an officer and somehow she
grabbed onto an officer’s gun,” and if that would create “a very dangerous
situation.” Counsel for Paskins’ wife objected on speculation and relevance
grounds, and the trial court again sustained the objection. The prosecutor
rephrased the question, asking generally, “if a child grabs your gun or an
officer’s gun or anything on them, can that be a very dangerous situation?”
Again, counsel for Paskins’ wife objected on relevance grounds but was
overruled, and the officer answered, “yes.”
¶9 A second officer who was also attacked by S.P. also testified.
When questioned by the prosecutor what would happen if S.P. grabbed his
2 Absent material changes from the relevant date, we cite a statute’s
current version.
3
STATE v. PASKINS
Decision of the Court
gun, the trial court again sustained Paskins’ counsel’s relevance objection.
The State rephrased the question asking what the officer would do,
generally, if someone grabbed his weapon. Counsel for Paskins and his
mother both objected again, but the court overruled the objections, and the
officer testified he “would not let that happen.”
¶10 During the State’s closing argument, the prosecutor stated:
And if you start trying to move your arms around, you start
trying to prevent that by using any type of force, the situation
gets very dangerous very quickly. Why? Because these
officers are carrying a loaded gun on the side of their hip.
That gun comes out. A finger touches those triggers — a lot
of them don’t have [a] safety. That gun goes off. Bad things
can happen.
Defense counsel did not object to this portion of the prosecutor’s argument.
Later in his argument, the prosecutor added:
These officers had no intent to hurt [S.P.]. But that’s not what
we’re here for. We’re here for what the danger could have
been. What this situation could have resulted in and how
dangerous it was. These officers are carrying loaded
weapons.
Counsel for Paskins objected to the argument, but the trial court overruled
the objection.
¶11 The jury found Paskins guilty of child abuse, as well as three
counts of aggravated assault and one count of resisting arrest. He was
sentenced to three years’ probation on each count with all sentences to run
concurrently. Paskins timely appealed, and we have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Officer Testimony
¶12 Paskins first argues the trial court erred in admitting the
officers’ testimony recounted above. Absent an abuse of discretion, we will
not disturb the court’s decision to admit evidence. State v. Stotts, 144 Ariz.
72, 82 (1985) (citing State v. Robles, 135 Ariz. 92, 94 (1983)).
4
STATE v. PASKINS
Decision of the Court
¶13 Under Arizona Rule of Evidence 401, relevant evidence is any
evidence that “has any tendency to make a fact more or less probable than
it would be without the evidence; and . . . the fact is of consequence in
determining the action.” In other words, “evidence is relevant if it ‘relates
to a consequential fact’ that is placed in issue by ‘the pleadings and the
substantive law’ and if it ‘alters the probability, not proves or disproves the
existence, of a consequential fact.’” Yauch v. S. Pac. Transp. Co., 198 Ariz.
394, 401-02, ¶ 19 (App. 2000) (quoting Hawkins v. Allstate Ins., 152 Ariz. 490,
496 (1987)).
¶14 The indictment charged Paskins with intentional or knowing
child abuse in violation of A.R.S. § 13-3623(B)(1), which states in relevant
part:
Under circumstances other than those likely to produce death
or serious physical injury to a child[,] . . . any person who
causes a child . . . to suffer physical injury or abuse or, having
the care or custody of a child . . . who causes or permits the
person or health of the child . . . to be injured or who causes
or permits a child . . . to be placed in a situation where the
person or health of the child . . . is endangered is guilty of an
offense . . . [i]f done intentionally or knowingly.
Paskins argues testimony about the “theoretical possibilities from a gun
discharge that was never even threatened” was admitted erroneously
because the State “rendered risks of death or serious physical injury
irrelevant” by charging Paskins with child abuse “under circumstances
other than those likely to produce death or serious physical injury.” See
A.R.S. § 13-3623(B). We disagree.
¶15 Under Rule 401, any evidence that tends to make it more
probable that Paskins placed S.P. in a situation where her person or health
was endangered would be relevant. Because “endangered” is not defined
by the statute, we must construe it in accordance with its plain and ordinary
meaning. See State v. Mahaney, 193 Ariz. 566, 568, ¶ 12 (App. 1999) (noting
we refer to a widely used and established dictionary to determine a term’s
plain and ordinary meaning) (citing State v. Korzep, 165 Ariz. 490, 493 (1990),
and State v. Wise, 137 Ariz. 468, 470 n.3 (1983)). Endangerment is defined as
“[t]he act or an instance of putting someone or something in danger;
exposure to peril or harm.” Black’s Law Dictionary (10th ed. 2014). Thus,
any evidence showing Paskins placed S.P. in a situation exposing her to
danger, peril, or harm is relevant.
5
STATE v. PASKINS
Decision of the Court
¶16 Paskins asserts the testimony at issue was about “loaded guns
and the possibility they could be discharged” and cause loss of life. But,
this mischaracterizes the evidence. The officers’ testimony was about the
general dangers associated with fighting an officer and the potential for
escalation given the officers’ need to protect themselves and prevent their
attackers from arming themselves with the officers’ weapons. See supra
¶¶ 7-9. The officers’ testimony was therefore relevant because it made it
more probable that Paskins placed S.P. in a situation where she was
endangered — a consequential fact — when he ordered her to attack the
officers. Therefore, we conclude the court did not abuse its discretion in
admitting the objected-to testimony.
¶17 Furthermore, the officers’ testimony did not address the
possibility that S.P. specifically could or would have been shot or otherwise
injured by a weapon. Although such testimony may have been too
speculative to assist the jury, and therefore inadmissible, see State v. Cruz,
218 Ariz. 149, 160, ¶ 45 (2008), defense counsels’ objections to questions
calling for such speculation were sustained. See supra ¶¶ 7-9. The jury was
instructed to disregard questions to which objections were sustained, and
we presume it did so. See State v. Lynch, 238 Ariz. 84, 93, ¶ 12 (2015) (citing
State v. Manuel, 229 Ariz. 1, 6, ¶ 25 (2011)).
II. Closing Argument
¶18 Paskins next argues the trial court erred in allowing the
portions of the prosecutor’s closing argument noted above. See supra ¶ 10.
Because Paskins did not object to the first portion of the prosecutor’s
argument at trial, we review only for fundamental error. See State v. Comer,
165 Ariz. 413, 426 (1990) (“[F]ailure to object to a comment in closing
argument constitutes waiver of the right to review unless the comment
amounts to fundamental error.”) (citing State v. Thomas, 130 Ariz. 432, 435
(1981)). We find none.
¶19 As to the objected-to portion of the prosecutor’s closing
argument, we conduct harmless error review. See State v. Dann, 220 Ariz.
351, 373, ¶ 125 (2009) (noting alleged acts of prosecutorial misconduct are
reviewed for harmless error) (citing State v. Velazquez, 216 Ariz. 300, 311, ¶
47 (2007)). Attorneys are given wide latitude during closing argument and
may comment on the evidence as well as argue all reasonable inferences
therefrom. See State v. Zaragoza, 135 Ariz. 63, 68 (1983) (citing State v.
Mincey, 130 Ariz. 389, 409-10 (1981), and State v. Blazak, 114 Ariz. 199, 204
(1977)). Here, the prosecutor’s mention that the police officers were
carrying loaded weapons merely reiterates the testimony and draws the
6
STATE v. PASKINS
Decision of the Court
reasonable inference that Paskins placed S.P. in danger by commanding her
to fight the officers.
¶20 The trial court did not abuse its discretion in allowing the
State’s argument, and we need not consider Paskins’ argument that he was
prejudiced. See State v. King, 158 Ariz. 419, 424 (1988) (holding that after
determining that error occurred, a court must evaluate the prejudicial
nature of the error) (citation omitted).
CONCLUSION
¶21 Paskins convictions and sentences are affirmed.
:ama
7
|
60 N.W.2d 894 (1953)
In re PIERCE'S ESTATE.
No. 48326.
Supreme Court of Iowa.
November 17, 1953.
*896 Hamilton & Cahill, and Edward L. O'Connor, Iowa City, for objectors-appellants.
R. A. Rockhill, Marshalltown, for executor-appellee.
GARFIELD, Justice.
Frank G. Pierce, a resident of Marshalltown, Marshall county, died January 23, 1947, leaving a spouse and collateral heirs. His will bequeathed a life estate in all his property to his wife and subject thereto created a trust therein to assist boys and girls in Marshalltown to secure an education. The bank which was nominated executor in the will petitioned the district court for probate.
As authorized by section 633.20, Code, 1950, I.C.A. (all Code references herein are to that Code), the clerk of the district court prescribed notice of the time fixed for probate of the will by one publication in the Times-Republican, a daily newspaper printed in Marshalltown, and posting in three public places in Marshall county. Such notices were given. The will was admitted to probate and the bank named in the will was appointed executor February 8, 1947. Notice of appointment of executor was duly published in the Marshalltown Times-Republican.
The clerk's right to prescribe notice of probate is recognized in In re Will of McKinstry, 204 Iowa 487, 215 N.W. 497; In re Price's Estate, 230 Iowa 1228, 1235, 300 N.W. 542, 545; Hoover v. Hoover, 238 Iowa 88, 92, 26 N.W.2d 98, 100.
May 19, 1951, the executor filed its final report to which nine heirs (nephews, nieces, grandnephews and a grandniece) filed objections and "petition for relief" which assert the order admitting the will to probate and the entire probate of the estate are void because it is said the published and posted notices of probate were insufficient *897 to confer jurisdiction on the court and for other reasons. Following a hearing in August, 1952, the district court overruled the objections, denied the petition for relief and approved the final report. From this order objectors have appealed.
I. Objectors assign error in the trial court's holding the clerk's order for notice of probate did not violate due process of law because objectors' names and addresses were known or could easily have been discovered and they were entitled to better notice than one by publication and posting.
Objectors strongly rely upon Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, where a New York statute providing for notice by publication to beneficiaries of a common trust fund of a trust company's petition for settlement of its accounts is held to violate due process as to beneficiaries whose whereabouts are known. For discussion of the Mullane decision see Van Gundy v. Van Gundy, 244 Iowa ___, 56 N.W.2d 43, 45; Note by Marvin C. Hayward, 36 Iowa Law Review 47; Note 37 Id. 74.
We think the Mullane decision does not require a holding that the order for notice and likewise Code section 633.20 which authorizes such a notice, as well as the admission of the will to probate, were void for lack of due process. We perceive a vital distinction in effect between the decree rendered on published notice in the Mullane case and the order admitting this will to probate.
"The effect of this (Mullane) decree, as held below, is to settle `all questions respecting the management of the common fund.' We understand that every right which beneficiaries would otherwise have against the trust company * * * for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree." At page 311 of 339 U.S., at page 655 of 70 S.Ct., at pages 871, 872 of 94 L.Ed.
The order admitting the Pierce will to probate has less far-reaching effect. Kelly v. Kelly, 158 Iowa 56, 59, 138 N.W. 851, 852, quotes this with approval from Lorieux v. Keller, 5 Iowa 196, 201, 68 Am. Dec. 696, 699: "Rights of a party claiming a distributive share in his ancestor's estate are not concluded by the order of the court admitting the will to probate. Such party may still, by proper proceedings, have the question, of his right to a portion of his ancestor's estate, determined. The admission of the will decides no question but its due execution and publication."
To the same effect see In re Will of Tinsley, 187 Iowa 23, 27, 174 N.W. 4, 11 A.L.R. 826, and citations; Maloney v. Rose, 224 Iowa 1071, 1075, 277 N.W. 572.
Kelly v. Kelly, supra, also states at page 61 of 158 Iowa, at page 853 of 138 N.W.: "In short, the accepted doctrine in jurisdictions having statutes similar to our own appears to be that admission of a will to probate originally without contest is a preliminary order or judgment which effects a prima facie establishment of the instrument, and gives the court and executor authority to proceed with the administration and settlement of the estate, but does not operate to cut off the right of contest in an original action within the statutory period of limitation. This court is, as we have already seen, committed to that construction of the statute, * * *."
The language just quoted is also found in In re Price's Estate, supra, 230 Iowa 1228, 1233, 1234, 300 N.W. 542, 545. It is also repeated in In re Estate of Huston, 238 Iowa 297, 303, 27 N.W.2d 26, 30, which holds an order of probate constitutes an adjudication the instrument is the will of decedent "until set aside by an original or appellate proceeding" as contemplated by Code section 633.38. Kelly v. Kelly, supra, expressly overrules Gregg v. Myatt, 78 Iowa 703, 42 N.W. 461, 43 N.W. 760, which objectors cite several times. See also In re Price's Estate, supra, and Edwards v. Smith, 238 Iowa 1080, 1084, 29 N.W.2d 404, 406, 175 A.L.R. 1318, 1322.
*898 The property right of which objectors say they were deprived without due process by the order of probate on published and posted notice is the right to contest the will. It is clear objectors were not deprived of such right by the order of probatethey could institute original proceedings to set aside the order at any time within two years from the time the will was filed for probate and notice therefor given. Code sections 633.38, 614.1, 614.3; In re Estate of Huston, supra, 238 Iowa 297, 299, 27 N.W.2d 26, 28; Blakely v. Cabelka, 207 Iowa 959, 966, 221 N.W. 451; Kelly v. Kelly, supra, 158 Iowa 56, 59, 138 N.W. 851. Such original proceedings are frequently resorted to by heirs dissatisfied with terms of a will.
We also see a clear distinction between the interests of the beneficiaries in the Mullane case and the interests of these objectors in the Pierce estate. The former were the equitable owners of the trust property. These objectors acquired no interest under the will. Their only interest in the estate was contingent upon successful contest of the will or at least the invalidation of the charitable trust in the remainder. The Mullane case says, "Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future * * *." At page 317 of 339 U.S., at page 659 of 70 S.Ct., at page 875 of 94 L.Ed.
Up to now we have upheld orders of probate upon published notice pursuant to our statute. Farrell v. Leighton, 49 Iowa 174: In re Will of Middleton, 72 Iowa 424, 34 N.W. 193. See also Blakely v. Cabelka, supra, 207 Iowa 959, 966, 221 N.W. 451; Edwards v. Smith, supra, 238 Iowa 1080, 1084, 1085, 29 N.W.2d 404, 406, 175 A.L.R. 1318, 1322. These decisions accord with many in other jurisdictions. 57 Am.Jur., wills, § 837, says, "* * * personal service of process upon all parties interested is not essential to jurisdiction. Effective notice may be given by publication." To the same effect is 68 C.J., Wills, §713; 2 Page on Wills, Lifetime Ed., § 597, page 126; In re Sieker's Estate, 89 Neb. 216, 131 N.W. 204, 35 L.R.A.,N.S., 1058, and Notes 1058-1060; Matter of Horton's Will, 217 N.Y. 363, 111 N.E. 1066, Ann.Cas.1918A, 611.
To set aside as void the admission of this will to probate on the ground that published and posted notice, as authorized by Code section 633.20, violated due process would put in jeopardy countless similar orders and real estate titles. Obviously we should not reach a decision with such far-reaching implications unless objectors' right thereto is clear. See In re Price's Estate, supra, 230 Iowa 1228, 1235, 1236, 300 N.W. 542, 546.
We hold admission of a will to probate on published notice pursuant to Code section 633.20 is not a violation of due process.
II. It is contended the order for notice of probate is void because it is said not to have been entered on the records of the court and rule 227, Rules of Civil Procedure, 58 I.C.A., requires such entry. It is sufficient answer to this contention that it does not appear the order was not so entered. See in connection with this claimed error Hoover v. Hoover, supra, 238 Iowa 88, 91, 26 N.W.2d 98, 100.
III. Objectors' errors 2, 3, and 4 attack as void for various reasons a probate order made in August, 1947, authorizing the executor to bring suit for declaratory judgment construing the will and the decree therein (July, 1948) upholding the validity of the charitable trust. We consider the principal contentions urged in somewhat different order than that followed in the arguments.
The executor was apparently in doubt as to the validity of the charitable trust in the remainder of the estate and deemed it necessary to seek a declaratory judgment respecting it. The probate court authorized such an action and the executor brought it in equity. In late January and early February, 1948, eight of the nine objectors were personally served in this state with original notice of the action. Several objectors then consulted Mr. Tye, an experienced Marshalltown attorney *899 whose firm appeared for six of the objectors in the construction action and made defense thereto.
Objectors contend the original notice in the will construction suit was insufficient to confer jurisdiction on the court because it recites "no personal judgment is asked against any defendant." It is argued the construction action was in personam, not in rem, and the recital was therefore deceptive. We deem it unnecessary to consider whether the action was in personam or in rem but are content to hold this recital in the notice did not deprive the court of jurisdiction nor render the will construction suit fraudulent, as objectors assert.
No other criticism is made of the contents of the notice. It contains a full statement of the cause of action and the relief demanded and otherwise complies with rule 50, Rules of Civil Procedure, 58 I.C.A. There is no indication any objector was deceived by the recital complained of. We are not prepared to say it was improper. In any event it was not fatal to the court's jurisdiction.
Of course the six objectors who appeared in the construction suit thereby submitted to the court's jurisdiction even if no notice had been served upon them. We do not overlook testimony of some of the objectors designed to show Mr. Tye was not authorized to appear for them. However, the trial court found against this contention. Since the action is in probate and the finding is supported by substantial evidence it is conclusive upon us. This matter is not reviewable de novo here but only upon the errors assigned. Rule 334, Rules of Civil Procedure, 58 I.C.A.; In re Lorenz' Estate, 244 Iowa 338, 56 N.W.2d 884, 886, and citations.
IV. Error is asserted in the trial court's holding that the probate court properly authorized the executor to bring the will construction suit in equity and that bringing the suit in equity, not in probate, was a mere matter of procedure which did not affect the court's jurisdiction. We find no error here.
Objectors were all parties to the construction suit and made no motion to transfer it to probate. It is of course unnecessary to decide whether such a motion, if made, should have been sustained. We may observe, however, "Even those courts which take the position that equity will not entertain jurisdiction of a suit brought solely to obtain construction of a will recognize an exception to this principle where the will involves a trust, * * *." 57 Am. Jur., Wills, § 1025.
To the same effect is 69 C.J., Wills, § 1969; 4 Page on Wills, Lifetime Ed., § 1602. See also Borchard, Declaratory Judgments, Second Ed., page 144. We have held a suit in equity for construction of a will involving a trust is proper. Roberts v. Roberts, 231 Iowa 394, 400, 1 N.W.2d 269, 272; Wintermute v. Heinly, 81 Iowa 169, 47 N.W. 66. See too In re Estate of McAllister, 191 Iowa 906, 911, 183 N.W. 596. And Wright v. Copeland, 241 Iowa 447, 450, 41 N.W.2d 102, 104, holds it was error to dismiss an action in equity for construction of a will where no trust was involved.
In any event, bringing the construction suit in equity, not in probate, was a mere matter of procedure which did not affect the court's jurisdiction. The only remedy for improperly bringing an action in equity, rather than in probate, is a motion to transfer to the proper docket. Since no such motion was made in the construction suit, objectors cannot now complain that the suit was brought in the wrong forum, if it were so brought.
Time and again we have pointed out there is but one court of general jurisdiction in Iowathe district court. Before it all proceedings come, whether law, equity or probate. The remedy to which a litigant is entitled may be awarded in utter disregard of its place on the calendar unless objection thereto is raised by motion to transfer to the proper docket. *900 If no such motion is made any error in the kind of proceedings adopted is waived. Code sections 611.7, 611.8, 611.9 and 611.12.
Some of the many decisions which support the views just expressed are Williams v. Morrison, 242 Iowa 1054, 1062, 1063, 48 N.W.2d 666, 670; In re Estate of Wissink, 242 Iowa 441, 445, 46 N.W.2d 717, 720; Wright v. Copeland, supra, 241 Iowa 447, 450, 451, 41 N.W.2d 102, 104 (a suit in equity for construction of a will); In re Guardianship of Damon, 238 Iowa 570, 573, 28 N.W.2d 48, 50; Jennings v. Schmitz, 237 Iowa 580, 585, 20 N.W.2d 897, 900, 901, and citations.
V. Objectors urge several other grounds in support of their claim the decree construing the will is void. It is said no actual justiciable controversy that would justify the action was alleged or shown; the court was without power to give legal advice on moot questions raised by the executor in the construction suit; the executor had no such interest in the estate as would entitle him to maintain the action; since the life tenant (widow) was still alive the action was prematurely brought; the attorney general should have been made a party because the validity of an alleged charitable trust was involved.
It is a practical impossibility to mention all the contentions advanced under the 54 brief points in support of objectors' second assigned error but the above seem to be the principal matters urged. We hold the decree construing the will is not void upon any of these grounds urged by objectors.
It is true declaratory relief will not ordinarily be granted where there is no actual or justiciable controversy between the parties and a mere advisory opinion is sought. Likewise courts frequently decline to pass upon remote, future or contingent rights which may never arise, at least where there is no present need for determination or, because of absence of parties or otherwise, the determination may not be final. Katz Investment Co. v. Lynch, 242 Iowa 640, 647, 47 N.W.2d 800, 805, and citations; 37 Iowa Law Review 119; Borchard, Declaratory Judgments, Second Ed., page 410.
Rules 261-269, Rules of Civil Procedure, 58 I.C.A., authorize actions for declaratory judgments. Rule 262 provides in part, "Any person interested in a * * * will * * * may have determined any question of the construction or validity thereof or arising thereunder, and obtain a declaration of rights * * * thereunder." Rule 264 states, so far as here pertinent, "Any person interested as * * * executor * * * in the administration of a trust or the estate of a decedent * * * may have a declaration of rights or legal relations in respect thereto: * * * (c) To determine any question arising in the administration of the estate, * * * including questions of construction of wills * * *."
The above rules are remedial and should be given a reasonably liberal construction. State v. Central States Electric Co., 238 Iowa 801, 819, 28 N.W.2d 457, 466; Katz Investment Co. v. Lynch, supra, 242 Iowa 640, 647, 47 N.W.2d 800, 804, 805, and citations; Melsha v. Tribune Publishing Co., 243 Iowa 350, 352, 51 N.W.2d 425, 427. Rules 262 and 264, especially 264, plainly authorize such an action as the probate court directed the executor to bring.
It was important to the executor and the objectors to have determined the validity of the trust in the remainder of the estate. If it was valid the executor's duty was to conserve the property and turn it over to the trustees upon termination of the life estate. If it was invalid the property descended as intestate property to testator's heirs subject only to the life estate. Objectors were made parties to the suit and several of them litigated the validity of the trust. The district court felt it was proper to entertain the equity suit.
The decree construing the will would not be void merely because the action was prematurely brought, if such were the fact. However the executor was not compelled to wait until the life tenant died *901 to seek declaratory relief. (The widow died December 2, 1950.) It had a tangible present interest in having the validity of the trust determined and a useful purpose was served by such determination. Katz Investment Co. v. Lynch, supra, 242 Iowa 640, 646-649, 47 N.W.2d 800, 804-806, and citations, amply support the conclusions just stated. See too 57 Am.Jur., Wills, § 1032: "* * * executors * * * are generally regarded as entitled to bring an equitable action for instructions, in which a construction of the will in question may be obtained, at least with respect to wills involving trusts." To like effect is 69 C. J., Wills, § 1995.
Perhaps it would have been proper, as the executor concedes, to have made the attorney general a party to the will construction suit since the validity of a charitable trust of a public character was the primary question involved. In re Owens' Estate, 244 Iowa ___, 57 N.W.2d 193, 195, and citations. However, it is clear that failure to make him a party was not prejudicial to objectors or the public nor did it render the decree void.
If the attorney general had been a party it would have been his duty to try to uphold the charitable trust for the public good. The objectors were and are interested in defeating the trust. Thus failure to make the attorney general a party left objectors with one less adversary. Since the decree upholds the trust, the public interest did not suffer from failure to make the attorney general a party.
VI. The trial court did not err in holding there was no actual or constructive, extrinsic fraud or breach of fiduciary relationship on the part of the executor in procuring the decree construing the will. We have already said the construction suit was not rendered fraudulent by the recital in the original notice "no personal judgment is asked against any defendant." It is also argued the executor "controlled both sides of this artificial contest," Mr. Tye put forth only a token contest as attorney for the objecting heirs and it was the executor's duty to represent the heirs as well as the alleged beneficiaries of the trust.
The trial court's finding there was no actual or constructive fraud in connection with the construction suit is fully justified by the evidence and is conclusive upon us. (See Division III hereof.) To warrant setting aside a decree because of extrinsic fraud the claimed fraud must be clearly shown. In re DePenning's Estate, 244 Iowa ___, 58 N.W.2d 9, 14, and citation; Reimers v. McElree, 238 Iowa 791, 797, 28 N.W.2d 569, 572. See also Shaw v. Addison, 236 Iowa 720, 732, 18 N.W.2d 796, 802; 49 C.J.S., Judgments, § 393c (2). There is no such showing here.
The executor was not guilty of any breach of duty toward objectors in bringing the equity suit. As previously explained, objectors were not beneficiaries under the will. The executor made them parties to the construction suit, at least the eight objectors who were personally served with notice had full opportunity to litigate the validity of the trust in that suit and six of them did so.
Reimers v. McElree, supra, 238 Iowa 791, 28 N.W.2d 569, and citations, fully support our holding in this division.
VII. We have said eight of the nine objectors were personally served in this state with original notice of the suit for construction of the will. The remaining objector, Daniel Pierce, was a resident of California whose address was known to the executor. Daniel was served only by publication as authorized by rule 60(e), Rules of Civil Procedure, 58 I.C.A., prior to the adoption in 1951 of rule 60.1. It is claimed the decree construing the will is void as to Daniel because published notice of the suit did not satisfy the requirements of due process. Reliance at this point is upon Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, discussed in Division I hereof.
*902 We find it unnecessary to determine this claim. If it be conceded, without so holding, Daniel may relitigate, as he is attempting to do in the present action, the validity of the charitable trust created by the Pierce will, he is entitled to no relief.
As previously stated, the will bequeaths a life estate in all testator's property to his wife. Upon her death the remainder of the estate is bequeathed in trust to five trustees living in Marshalltown. The will then goes on to provide: "I will that the income from the trust shall be used for purposes of education of boys and girls, who have lived in Marshalltown, at least, the ten last preceding years, and shall be used to assist such children through the high school or the junior college in Marshalltown, or to secure a business course in the public schools of Marshalltown or for securing a regular college course, including professional courses, in some university or college in Iowa, but shall not be used for any post graduate work.
"I will that the money shall not be given to anyone, but that the money shall be loaned to persons desiring an education, with the agreement that such loans shall be repaid within ten years from date of the loan, together with interest, at not less than two per cent less than the rate at which commercial loans are made by the local banks. In case help is extended to minors, the parents of such minors, as well as the minors, shall sign any note or other obligation to secure any loan.
"I will, that all other things being about equal, that children of widows, and women who work regularly to support or help support their own children, be given aid first, then any deaf minors be given assistance in securing such an education as will make them self-supporting, and the remaining income, if any, be used to help others."
It is said the will violates the rule against perpetuities and Code section 558.68 which provides: "Every disposition of property is void which suspends the absolute power of controlling the same, for a longer period than during the lives of persons then in being, and twenty-one years thereafter." If the bequest of the remainder of the estate is for a charitable purpose, and we hold it is, the rule against perpetuities and Code section 558.68 do not apply. In re Small's Estate, 244 Iowa ___, 58 N.W.2d 477, 484, 485, and citations.
It is contended the trust is void because it is said the equitable title to the remainder is not given to anyone and the will provides merely for a commercial loan enterprise. Much emphasis is placed upon the language "I will that the money shall not be given to anyone, * * *."
The will establishes a fund the income from which is to be loaned to boys and girls in Marshalltown for purposes of their education. The promotion of education is of course a charitable purpose. In re Will of Hagan, 234 Iowa 1001, 1007, 14 N.W.2d 638, 641, 152 A.L.R. 1296, 1301, and citations.
Charitable gifts are strongly favored by courts and will be upheld wherever possible. In re Small's Estate, supra, 244 Iowa ___, 58 N.W.2d 477, 485-487, and citations.
The provision that loans be made to students and interest paid thereon does not destroy the charitable character of the bequest. The trustees are empowered to make student loans to run as long as ten years at not less than two per cent less interest than local banks receive on commercial loans. Such terms are advantageous to the borrower. The interest collected by the trustees goes to increase the fund to be loaned so more students may benefit from it. This trust was evidently not established to loan money for private gain or advantage. Testator clearly intended to dispose of his entire estate without leaving any part of it to descend as intestate property.
Restatement Trusts, § 370, Comment d, states: "A trust to establish a fund to lend money to students to assist them in acquiring an education is charitable, although *903 the borrowers are required to pay interest on such loans, provided that the interest so paid is to be used for the same purpose or for other charitable purposes."
To the same effect are 3 Scott on Trusts, § 370.5; 2 Bogert, Trusts and Trustees, § 374.
Morgan v. National Trust Bank of Charleston, 331 Ill. 182, 162 N.E. 888, 891, holds a valid charitable trust was created by a bequest of funds to be loaned to indigent students "at a reasonable rate of interest". The will was attacked on much the same grounds as objectors urge here. The court says, at page 891 of 162 N.E.: "The interest charged was a mere incident of the trust and was not for profit or for the benefit of the estate or the trustee. The interest, as well as the principal, was to be used for the purpose of aiding indigent students, and such was the intention of the testator. The interest may not have been for the benefit of the indigent student who paid it, but it went to the enlargement and benefit of the student fund and was for the benefit of indigent students who might want to borrow from the fund in the future. By charging interest the fund was increased and preserved so that more students could receive the benefit thereof."
Summers v. Chicago Title & Trust Co., 335 Ill. 564, 167 N.E. 777, is a like decision upholding a bequest to Northwestern University of a fund the income from which should be used for making loans to run for four years at four per cent interest to worthy students in law and medicine about to enter the senior year.
In re Yule's Estate, 57 Cal.App.2d 652, 135 P.2d 386, upholds a bequest in trust to the University of Washington the income from which was to be used in aiding women students who are partially or wholly self-supporting. The aid might be in the form of a gift or a loan as officers of the university deemed wisest. The opinion states at pages 388, 389 of 135 P. 2d: "Appellants contend that the provision in the will which gives the officers of the University of Washington authority to make loans as well as gifts to students makes the bequest invalid because, it is argued, the making of a loan `could not be said to be charitable in character.' We see no merit in this contention. The provision * * * unquestionably promotes the purposes of the testatrix to make the bequest as helpful as possible to the students. The provision * * * naturally permits a larger number to be aided by the bounty of the testatrix and at the same time encourages the formation of proper habits on the part of the recipients. It cannot in any sense be considered as authorizing a commercial undertaking."
Other decisions which uphold bequests to establish student loan funds include Pattillo v. Glenn, 150 Fla. 73, 7 So.2d 328; Holsey v. Atlantic National Bank, 115 Fla. 604, 155 So. 821; Owens v. Owens' Executor, 236 Ky. 118, 32 S.W.2d 731; In re Morgan's Will, 200 Misc. 645, 107 N.Y.S. 2d 180, 181, ("Nor does the fact that the persons receiving the benefits must repay the same with interest affect the validity of the trust."); In re Wright's Estate, 284 Pa. 334, 131 A. 188; Champlin v. Powers, R.I., 90 A.2d 787; Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273, 280. See also as having some bearing Iowa Federation of Women's Clubs v. Dilley, 234 Iowa 417, 419, 12 N.W.2d 815, 816.
VIII. Clearly the eight objectors who were personally served in this state with original notice of the will construction suit were not entitled to relitigate by objections to the executor's final report or "Petition for Relief" the validity of the charitable trust which was adjudicated in the equity decree. As objectors concede in reply argument, if the court had jurisdiction of them and of the subject matter, the equity decree is res judicata of all issues there raised or that could and should have been raised.
That the objectors who were personally served with notice in the construction suit were not entitled to relitigate in this manner the validity of the charitable trust see
*904 In re DePenning's Estate, supra, 244 Iowa ___, 58 N.W.2d 9, 14, 15; In re Estate of Ramsay, 240 Iowa 50, 35 N.W.2d 651; Reimers v. McElree, supra, 238 Iowa 791, 28 N.W.2d 569; In re Estate of Huston, supra, 238 Iowa 297, 27 N.W.2d 26; Anderson v. Conklin, 229 Iowa 232, 238, 294 N. W. 339; Smith v. Russell, 223 Iowa 123, 272 N.W. 121; In re Greeneway's Estate, 236 Wis. 503, 295 N.W. 761, 136 A.L.R. 1174, and Annotation 1180 on "Rule of res judicata as applied to judicial construction of will."
IX. The trial court held objectors's "Petition for Relief" which repeated their objections to the executor's final report was in the nature of an action to set aside the will that was barred by Code section 614.1, paragraph 3, because not brought within two years from the time the will was filed for probate and notice thereof given. It is unnecessary to determine the propriety of this holding. Objectors have not shown themselves entitled to relief regardless of whether their petition is so barred.
Other contentions have been considered and found not to entitle objectors to relief.
Affirmed.
All Justices concur.
|
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 4, 2014
STATE OF TENNESSEE v. ALBERT JACKSON
Appeal from the Criminal Court for Shelby County
No. 12-05328 W. Mark Ward, Judge
No. W2014-00050-CCA-R3-CD - Filed December 30, 2014
The defendant, Albert Jackson, was convicted by a Shelby County Criminal Court jury of
attempted voluntary manslaughter, a Class D felony; aggravated assault, a Class C felony;
employing a firearm during the commission of a felony, a Class C felony; reckless
endangerment with a deadly weapon, a Class E felony; and felon in possession of a handgun,
a Class E felony. He was sentenced to an effective term of twenty-four years in the
Tennessee Department of Correction. On appeal, he challenges the sufficiency of the
convicting evidence. After review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, P.J.,
and R OBERT L. H OLLOWAY, J R., J., joined.
Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal), Amy G. Mayne and
Jane Sturdivant Tillman (at trial), Assistant Public Defenders, for the appellant, Albert
Jackson.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Joshua Corman and Meghan
Fowler, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
The defendant was indicted for attempted second degree murder, aggravated assault,
employing a firearm during the commission of a felony, reckless endangerment with a deadly
weapon, and felon in possession of a handgun, as a result of his pulling a gun on the driver
and front seat passenger of a car in which he was riding.
State’s Proof
Marquita Lee testified that, on April 7, 2012, she was at her house with her friends,
“Red” and “Amber,” as well as her two-year-old son, Marjavius. Red had asked Lashun
Peete to drive the women to the nail salon, and Peete arrived to pick them up. When Peete
arrived, Keunshay Cooper was with him. Lee had known Peete for approximately ten years
and was familiar with Cooper through Peete. Lee, her friends, and son got into the car with
Peete and Cooper, and Peete drove Red and Amber to the nail salon. Lee asked Peete to
drive her to a bail bondsman because she needed to deposit money for her sister’s bond.
Lee testified that Cooper became angry at Peete because he gave Red $20 to get her
nails done, and she hit Peete on the back of the head. Peete and Cooper continued to argue,
and Cooper told Peete to drop her off somewhere. Cooper texted with someone who was
supposed to meet her at University Cabana, but Peete wanted to meet at a gas station instead.
They stopped at a gas station convenience store, but whoever was picking up Cooper did not
show up so Peete drove her to the Tillman Cove Apartments.
Lee testified that, when they pulled into the Tillman Cove Apartments, the defendant
exited a small black car, and Cooper, who exited Peete’s vehicle, hugged and kissed the
defendant. The defendant then got into the backseat of Peete’s vehicle and spoke with Peete,
while another man, who was with the defendant, asked for a ride to go pick up his child. Lee
became suspicious of the other man’s need for a ride considering he just got out of a car.
However, Cooper told Peete that the man was “okay,” and Peete agreed to give him a ride.
At that point, the defendant said that he was not going to join them, but the other man
instructed him to come. The defendant and the other man were in the backseat with Lee’s
son, and Lee was in the front passenger seat.
Lee testified that, as they pulled away, she noticed one of the men in the backseat
motion “come on” to a burgundy Dodge Charger partially painted with primer that was
parked across the street. In order to avoid detection, Lee texted Peete that they were being
followed by the Charger. The defendant’s companion gave directions to Peete, and Peete
asked the men if they knew they were being followed. The men denied that they were being
followed, and Peete pretended to call his cousin who lived in the area. Peete pulled up to a
house and acted like he knew the people who lived there, although he did not. He got out of
the car and, again, pretended to call his cousin.
Lee testified that the defendant and the other man also got out of the car when Peete
exited the vehicle. The defendant asked Peete why they had stopped and said, “I don’t want
-2-
to be in no shoot-out.” Lee said that Peete did not have a gun, and she had not seen the
defendant or the other man with a gun at that point in time. All three men got back into the
car, and Lee brought her son into the front seat with her because she felt uneasy about what
was going on. The defendant’s companion instructed Peete to turn right, but Peete said that
he would not turn right because it was a dead-end. Peete turned left instead, and the
defendant said, “fuck this shit” and pulled out a gun. As the defendant tried to insert the clip
into the gun, he and Peete started “tussling over the gun” and Peete eventually “pull[ed] the
clip out.” During the ordeal, the car was still moving at a “normal speed,” and the gun was
pointed at Lee and her son. Lee, who was nervous and scared, tried to open the car door to
jump out, but it was locked. The men were still struggling over the gun when Lee heard two
clicking sounds, but the gun was jammed. Lee then jumped from the moving car with her
son in her arms, just as the car hit a pole and the door swung back and hit her son on the
head.
Lee testified that, after she jumped from the car, she looked back and saw the
defendant holding the gun and walking to the red Charger that had been following them. She
also saw Peete fighting with the other man. Lee said that she sustained abrasions all over her
leg and hurt her back jumping from the car. Her son sustained a gash to his forehead from
the door hitting him, as well as a big knot on the back of his head. After she was transported
to the hospital, Lee spoke with Sergeant Perry and provided a written statement. She
identified the defendant from a photographic array as the man who held the gun.
On cross-examination, Lee recalled that the defendant’s gun did not have a clip in it
when he pulled it but that he tried to put it in the gun. She also recalled that it was the
defendant’s companion who motioned to the Charger and not the defendant.
Lashun Peete testified that he previously dated Keunshay Cooper and that, at the time
of the crimes, they had been broken up for approximately one month. On April 7, 2012, he
picked up Lee and two of her friends to take them to a nail salon, when Cooper called asking
him for a ride. Because he was nearby, he agreed to pick her up as well. He dropped off
Lee’s two friends at the nail salon, and one of them asked for money to get her nails done.
Peete gave her $15, which angered Cooper and she pushed him in the back of his head. They
proceeded to argue, and Peete told her that he was going to take her back to where he had
picked her up.
Peete testified that he proceeded to drive back to where he had picked up Cooper, but
no one was home. Cooper called and texted someone, but no one arrived. Peete told Cooper
that he would take her close to her house, but he would not take her all the way there. En
route, they stopped at a gas station where they waited for someone to meet Cooper, but no
one arrived. Cooper calmed down, and Peete agreed to take her to the Tillman Cove
-3-
Apartments. When he pulled up to the curb at the apartment complex, the defendant and
another man approached the car while Cooper held the door to the car open as though she
was stalling for time. The defendant asked for a ride, claiming that it was an emergency
because he needed to pick up his baby. Peete had met the defendant on one prior occasion
about a month before when Peete showed up at Cooper’s house late at night and the
defendant opened the door and told him that she was not at home. Peete also knew the
defendant’s brothers.
Peete testified that he agreed to give the defendant a ride, although he thought it was
going to be the defendant and Cooper, not the defendant and the other man. Peete told the
men that he was familiar with the area and asked where they needed to go, but they refused
to tell him and instead gave him step-by-step directions. As they were driving, Peete
received a text message from Lee telling him that a red car was following them, which he
also noticed. He described the vehicle as a red Charger with black paint as though it had
been wrecked. Peete made a left turn and pulled over to see what the red car would do, and
it pulled over approximately four car lengths behind him.
Peete testified that the defendant and his companion “start[ed] acting real paranoid
[and] hostile,” so he pretended to know the person who lived in the house where he had
stopped. He thought that they would not do anything to him if they believed people were
around. He got out of the car and pretended to talk on the phone to whoever lived in the
house, and he heard the defendant and his companion say they did not want to be in a
“shootout.” Peete did not have a gun. When he asked the men if they knew who was
following them, they acted “real paranoid” and told him to get back into the car.
Peete testified that he got back into the car, and the defendant told him to make a right
turn. Instead, Peete turned left because there was a dead-end to the right. The defendant “got
real mad and said, ‘fuck this.’” Peete saw the defendant pull “a big automatic weapon with
a long extended clip” out of his pants, which he put to the back of Peete’s head and told him
to “‘drive straight, don’t turn til I say turn.’” Peete went to pull on his seatbelt and, as he did
so, reached around and grabbed the defendant’s gun. Peete and the defendant began to
“tussle,” and Peete let go of the steering wheel. As he and the defendant struggled over the
gun, Peete heard the gun click two or three times without firing. The defendant pointed the
gun at Lee and her son, and the defendant, his companion, and Peete all struggled over the
weapon. Peete recalled that the defendant said, “I’m going to shoot, I’m going to shoot”
during the struggle. Peete “snatched the clip out” of the gun and, at virtually the same time,
Lee and her son jumped out of the car, and the car hit a curb and ran into a pole. The
defendant hit Peete two or three times on the head, then ran to the red Charger. The
defendant’s companion fought briefly with Peete, looked for something in Peete’s car, and
then also ran to the red Charger.
-4-
Peete testified that he later gave a statement to the police and identified the defendant
out of a photographic array. Peete said that he suffered injuries to his neck, back, and hand
as a result of the incident. He identified the extended clip with extra bullets that he took out
of the defendant’s gun. He reiterated that, during his and the defendant’s struggle over the
gun, he “heard it click . . . a couple of times like he tried to shoot,” and the defendant was
saying, “I’m going to shoot” as they were fighting over the gun.
Scott Sturgeon was visiting his girlfriend on April 7, 2012. He was mowing the lawn
when he heard a big crash, so he left the mower running and went to look around the corner
to see what had happened. Upon seeing that a car had struck a telephone pole, he ran back
to his lawnmower to shut it off and then returned to the crashed vehicle. Back at the crash
site, Sturgeon saw “a guy on top of another guy hitting him on the top of the head.” He also
saw a woman walking away from the car with a baby. He ran inside to get a piece of paper
in order to take down the license plate number and, when he returned, he saw a burgundy
Dodge Charger with primer on the fender speeding away. He wrote down the license plate
number of the Charger and provided it to the police.
Alan Rogers testified that he was driving on April 7, 2012, when he saw “a small car
that’s crashed into a telephone pole, and at the back of that car there’s a guy getting his head
slammed on the trunk.” He also saw a red Dodge Charger with the hood and front quarter
panels “blacked out.” Rogers blew his car horn and started to exit his vehicle, when two men
standing near the Charger gestured like they had a gun. The man who was slamming the
other man’s head on the trunk walked to the Charger, all three men got into the car, and they
sped away. Rogers called 911 and followed the Charger. The car eventually stopped in front
of a house, the men raised the hood of the vehicle to examine something, and then got into
a different vehicle and drove away.
Sergeant Ron Perry with the Memphis Police Department testified concerning his
investigation of the case. Gail Rankins, the keeper of records with the Shelby County
Criminal Court Clerk’s Office, testified concerning the defendant’s history of convictions.
Defendant’s Proof
The defendant testified that he previously dated Keunshay Cooper and spoke to her
on the day of the incident around 11:00 a.m. and noon. He claimed that he called her to see
if she knew where he could buy some high-grade marijuana, and she told him that Peete had
some. The defendant elaborated that the marijuana was for an acquaintance, “Pooh,” who
was in the car with him at the time, and that he told Pooh a higher price than that requested
by Peete in order to make a profit from the transaction. They agreed to meet at the Tillman
-5-
Cove Apartments.
The defendant testified that they met as planned, and Pooh got into the car with Peete.
Pooh told the defendant to get into the car as well because Peete did not want to conduct the
transaction in front of the cameras at the apartments. The defendant got into the car, and they
drove away. The defendant recalled that Pooh tried to pay Peete with counterfeit money and
the men began to argue. During the fight that ensued, Peete let go of the steering wheel and
the car jumped the curb. The defendant claimed that he told Lee to grab the steering wheel
but she, instead, grabbed her son and jumped out of the car. The car hit a pole, but Pooh and
Peete continued to fight. The defendant grabbed the marijuana and ran to a red car that had
been following them, driven by Pooh’s girlfriend. Pooh stopped fighting with Peete and ran
to the red car as well, and they left quickly. The defendant denied that he or Pooh had a gun.
He said that the marijuana he stole weighed about a pound and was worth $4,800.
The defendant claimed that his mother told him that the police were looking for him,
and he went to the police station voluntarily. He admitted that he lied to Sergeant Perry
about his involvement in the incident because of his parole status. However, he said that had
he known Peete “was going to concoct such a preposterous story,” he would have been
truthful with the police despite the risk of a parole violation.
Following the conclusion of the proof, the jury convicted the defendant of attempted
voluntary manslaughter, aggravated assault, employing a firearm during the commission of
a felony, reckless endangerment with a deadly weapon, and felon in possession of a handgun.
The trial court merged the aggravated assault conviction into the attempted voluntary
manslaughter conviction for purposes of sentencing, and sentenced the defendant to an
effective term of twenty-four years.
ANALYSIS
The defendant challenges the sufficiency of the convicting evidence. He specifically
argues that: the evidence is insufficient to establish the element of adequate provocation for
the offense of attempted voluntary manslaughter, the proofs fails to establish the existence
of a predicate offense for the offense of employing a firearm during the commission of a
dangerous felony, and the evidence fails to establish that the victims were placed in imminent
danger of death or serious bodily injury pertinent to the offense of reckless endangerment.
In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
-6-
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
The defendant first argues that the evidence is insufficient to establish the element of
adequate provocation for the attempted voluntary manslaughter of Lashun Peete. Voluntary
manslaughter is “the intentional or knowing killing of another in a state of passion produced
by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”
Tenn. Code Ann. § 39-13-211(a). “A person commits criminal attempt who, acting with the
kind of culpability otherwise required for the offense”:
(1) Intentionally engages in action or causes a result that would
constitute an offense, if the circumstances surrounding the conduct were as the
person believes them to be;
(2) Acts with intent to cause a result that is an element of the offense,
and believes the conduct will cause the result without further conduct on the
person’s part; or
-7-
(3) Acts with intent to complete a course of action or cause a result that
would constitute the offense, under the circumstances surrounding the conduct
as the person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.
Id. § 39-12-101(a). The jury is responsible for reviewing the evidence to determine whether
it supports a finding of adequate provocation. State v. Williams, 38 S.W.3d 532, 539 (Tenn.
2001).
In the light most favorable to the State, the proof at trial showed that Peete agreed to
give the defendant and his companion a ride, during which he noticed they were being
followed by a red Dodge Charger. When Peete questioned the defendant and his companion
about their being followed, the men “start[ed] acting real paranoid [and] hostile.” Peete
pulled over at a house, pretending to know the person who lived there, in an attempt to
discourage the men from attacking him. While he was out of the car, Peete heard the
defendant and his companion say that they did not want to be in a “shootout,” although Peete
did not have a gun. Peete asked the men if they knew who was following them, and they
acted “real paranoid” and told him to get back into the car. Once Peete was back in the car,
the defendant became angry and frustrated when Peete refused to follow an order to drive
down a dead-end street and instead turned the opposite direction. The defendant pulled out
a gun to force Peete to comply and, when Peete fought with the defendant and struggled for
control over the gun, the defendant attempted to shoot Peete. From the proof, a rational trier
of fact could have found that Peete’s refusal to obey the defendant and the struggle that
ensued between the defendant and Peete over control of the defendant’s gun adequately
provoked the defendant to try to kill Peete.
The defendant next argues that the proofs fails to establish the existence of a predicate
offense for the offense of employing a firearm during the commission of a dangerous felony.
In Tennessee, it is a crime to employ a firearm during the commission of or attempt to
commit a dangerous felony. Tenn. Code Ann. § 39-17-1324(b)(1), (2). Attempted voluntary
manslaughter is defined as a dangerous felony. Id. § 39-17-1324(i)(1)(C), (M). The
defendant asserts that because, as he argues above, there is insufficient proof of the element
of adequate provocation for the predicate offense of attempted voluntary manslaughter, his
conviction for employing a firearm during the commission of a dangerous felony must be
dismissed. In light of our determination that the evidence is sufficient to support the
defendant’s conviction for attempted voluntary manslaughter, this issue is without merit.
The defendant lastly argues that the evidence fails to establish that the victims,
Marquita and Marjavius Lee, were placed in imminent danger of death or serious bodily
-8-
injury pertinent to the offense of reckless endangerment. A person commits the offense of
reckless endangerment “who recklessly engages in conduct that places or may place another
person in imminent danger of death or serious bodily injury.” Id. § 39-13-103(a). Reckless
endangerment committed with a deadly weapon is a Class E felony. Id. § 39-13-103(b). To
demonstrate an imminent danger of death or serious bodily injury, the State must show that
a person or class of persons was “placed in a reasonable probability of danger as opposed to
a mere possibility of danger.” State v. Payne, 7 S.W.3d 25, 28 (Tenn. 1999).
The defendant asserts that, because the gun was unloaded, the victims were not placed
“in a reasonable probability of the imminent danger of death or serious bodily injury by use
of a deadly weapon.” However, Peete’s testimony indicates that he heard the defendant’s
gun click two or three times and saw the defendant point the gun at Lee and her son before
Peete “snatched the clip out” of the gun. In addition, the defendant’s brandishing of a gun
and attempts to shoot it caused Lee to jump out of a moving car with her small child, causing
injuries to both herself and her child. Moreover, a rational trier of fact could reasonably
conclude that the mere act of brandishing a weapon on the driver of a moving vehicle put the
passengers inside the vehicle in a reasonable probability of imminent danger of death or
serious bodily injury.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.
_________________________________
ALAN E. GLENN, JUDGE
-9-
|
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3913
___________
DIEGO RODRIGUEZ,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-14-cv-01149)
District Judge: Honorable Malachy E. Mannion
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 25, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: June 6, 2017)
___________
OPINION *
___________
PER CURIAM
Diego Rodriguez appeals from the District Court’s entry of summary judgment
against him. We will affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I.
Rodriguez is a federal prisoner who was incarcerated at USP-Lewisburg at all
relevant times. He filed suit against the United States under the Federal Tort Claims Act
(“FTCA”) alleging that negligence in the diagnosis and treatment of a kidney stone
caused the failure and removal of his kidney. In particular, Rodriguez alleged that prison
personnel should have diagnosed him with a kidney stone sooner and then delayed
sending him to an outside physician for surgery for another six months. According to his
complaint, Rodriguez ultimately was operated on by Dr. Anuj Chopra at Sunbury
Hospital. Dr. Chopra removed Rodriguez’s kidney after determining that it was damaged
beyond repair. Dr. Chopra also left a sponge in Rodriguez’s body during the surgery,
which required an additional surgery and resulted in an infection that left Rodriguez in
the intensive care unit for several days.
On the basis of these allegations, Rodriguez asserted two claims of negligence
against the United States. First, he claimed that prison personnel were negligent in
failing to diagnose and arrange for treatment of his kidney stone sooner and that timely
treatment would have saved his kidney. He also claimed in that regard that Bureau of
Prisons’ (“BOP”) policies did not ensure adequate training or supervision of medical
personnel. Second, Rodriguez claimed that the BOP’s policies on outsourcing medical
care are inadequate because they do not provide for the training, monitoring or
supervision of outside medical staff (such as Dr. Chopra).
2
The Government filed a motion to dismiss Rodriguez’s first claim because he did
not file a certificate of merit (“COM”) as required by Pennsylvania law. 1 The
Government also moved to dismiss Rodriguez’s first claim to the extent that it might be
based on the conduct of Dr. Chopra and Sunbury Hospital because, it argued, they are
independent contractors whose conduct does not subject to the United States to liability.
In response, Rodriguez filed a motion for an extension of time to file a COM, and
he attached two COMs. Both stated, pursuant to Pa. R. Civ. P. 1042.3(a)(3), that “expert
testimony of an appropriate licensed professional is unnecessary for the prosecution of
the claim.” A plaintiff who proceeds on such a COM is barred from later presenting
expert testimony in the absence of “exceptional circumstances.” Liggon-Redding, 659
F.3d at 265 (quoting Pa. R. Civ. P. 1042.3(a)(3), Note). The District Court later granted
Rodriguez’s motion and deemed his COMs filed. Rodriguez also filed a response to the
Government’s motion to dismiss in which he relied on those COMs and disclaimed any
intent to pursue claims based on the conduct of Dr. Chopra and Sunbury Hospital.
After Rodriguez filed his COMs, the Government moved for summary judgment
on both of his claims. As to Rodriguez’s first claim alleging medical negligence, the
Government argued that expert testimony was necessary to support the claim and that
Rodriguez’s COMs precluded him from presenting any. As to Rodriguez’s second claim
regarding the BOP’s outsourcing policies, the Government argued that it was barred by
1
FTCA claims generally are governed by the law of the state in which they arose, see
Lomando v. United States, 667 F.3d 363, 372-73 (3d Cir. 2011); 28 U.S.C. § 1346(b)(1),
and Pennsylvania’s COM requirement is a substantive rule that applies in federal court,
see Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011).
3
the FTCA’s discretionary function exception to its waiver of sovereign immunity. See 28
U.S.C. § 2680(a). In response, Rodriguez filed several motions of his own, including a
motion for appointment of counsel and an expert and a motion for an extension of time to
file a different COM.
The District Court addressed the parties’ motions in a series of decisions on March
28, 2016. As relevant here, the District Court denied Rodriguez’s motions for counsel
and an extension to file a different COM. In doing so, the District Court relied on
Rodriguez’s COMs already of record which, as noted above, barred him from offering
expert testimony absent exceptional circumstances. The District Court reasoned that, in
the absence of such circumstances (which it did not find), Rodriguez was bound by his
COMs and that his inability to present expert testimony weighed against appointing
counsel. The District Court did, however, grant Rodriguez an extension of time to
respond to the Government’s motion for summary judgment.
Rodriguez later filed his response, and the District Court ultimately granted the
Government’s motion and entered summary judgment in its favor for the reasons
summarized above. In doing so, the District Court determined that Rodriguez had
admitted the allegations contained the Government’s statement of material fact by failing
to properly respond to it. The District Court did not grant summary judgment on that
basis, however, and instead conducted its own review of the record where relevant to its
rulings. Rodriguez appeals. 2
2
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s entry of summary judgment. See Parkell v. Danberg, 833 F.3d 313, 323
4
II.
A. Appointment of Counsel and Related Issues
Rodriguez’s primary challenge on appeal is to the District Court’s denial of his
motion for counsel. Rodriguez does not directly challenge the District Court’s related
denial of leave to file a different COM, but he appears to argue that counsel would have
had a better chance to locate an expert and then could have provided a COM permitting
the introduction of expert testimony. The problem with this argument is that Rodriguez,
before moving for counsel, already had filed COMs stating that no expert was necessary.
Those COMs precluded him from presenting expert testimony in the absence of
exceptional circumstances, which the District Court did not find.
Rodriguez does not directly take issue with that ruling. He refers to the difficulty
that pro se prisoners face in presenting medical malpractice claims, but that circumstance
does not exempt him from the rules that apply to other litigants. See Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013); Hoover v. Davila, 862 A.2d 591, 594-96
(Pa. Super. Ct. 2004). Nor does it constitute an exceptional circumstance warranting
relief from an already filed COM. See McCool v. Dep’t of Corr., 984 A.2d 565, 571 &
n.9 (Pa. Commw. Ct. 2009). Rodriguez also provides no reason, exceptional or
otherwise, for not moving for counsel early in the litigation as pro se prisoners often do.
See, e.g., Montgomery v. Pinchak, 294 F.3d 492, 495-96 (3d Cir. 2002) (noting that pro
(3d Cir. 2016). We review the District Court’s denial of a motion for counsel for abuse
of discretion. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).
5
se prisoner moved for counsel in order to present expert testimony the month after filing
his amended complaint).
Rodriguez argues that the District Court otherwise abused its discretion in denying
counsel because the District Court did not address the relevant factors. The District
Court, however, expressly identified and balanced the relevant factors under Tabron. It is
true, as Rodriguez argues, that the District Court did not specifically address his
“education, literacy, prior work experience, and prior litigation experience.” Tabron, 6
F.3d at 156. But those issues fall under the general rubric of the plaintiff’s ability to
present his or her case, see id., and the District Court concluded that Rodriguez had
shown such an ability.
Rodriguez challenges that conclusion. He notes that he proved unable to properly
contest the Government’s statement of material facts, but the District Court did not rely
on that failure in granting summary judgment. He also argues that he chose the “wrong”
COM. But Rodriguez did so before moving for counsel and, as explained above, he has
not shown the exceptional circumstances necessary to relive him of its consequences.
Finally, Rodriguez relies on decisions holding that district courts abused their
discretion by (1) denying counsel on the grounds that expert testimony would not be
necessary, but then (2) later entering summary judgment for lack of that very expert
testimony. See Montgomery, 294 F.3d at 504-05; Parham v. Johnson, 126 F.3d 454, 460
(3d Cir. 1997). This case is far different. In this case, the District Court concluded that
Rodriguez’s COMs precluded him from offering expert testimony and that the fact that
expert testimony would not be presented. The District Court later relied on the lack of
6
expert testimony in entering summary judgment on Rodriguez’s first claim. There is no
inconsistency in that approach, and we cannot otherwise say that the District Court
abused its discretion.
B. Summary Judgment on the Merits
Rodriguez’s arguments concerning counsel aside, he does not directly take issue
with the District Court’s entry of summary judgment on his first claim of medical
negligence. The District Court concluded that expert testimony was necessary to support
that claim because the issues of duty, breach, and causation (i.e., whether the alleged
delay in treating Rodriguez’s kidney stone resulted in the failure of his kidney six months
later) were not so self-evident as to be obvious to a layperson. See Hightower-Warren v.
Silk, 698 A.2d 52, 54 & n.1 (Pa. 1997). Rodriguez does not challenge that ruling and we
agree with it substantially for the reasons that the District Court explained. 3
Rodriguez does raise one argument regarding the entry of summary judgment on
his second claim. In that claim, Rodriguez challenged the adequacy of the BOP’s
policies regarding the outsourcing of medical treatment. The District Court concluded
that this claim is barred by the FTCA’s discretionary function exception. That exception
3
Rodriguez argues that he chose the “wrong” COM because he thought that Dr. Gupta’s
leaving of a sponge in his body during surgery was so obviously negligent that the point
did not require expert testimony. Assuming the truth of Rodriguez’s factual assertions,
that may well be the case. See Ayers v. Parry, 192 F.2d 181, 184 & n.1 (3d Cir. 1951).
As noted above, however, Rodriguez disclaimed any intent to assert any claim based on
the conduct of Dr. Gupta, and he continues to disclaim any such intent on appeal.
Rodriguez also does not rely on any non-expert extrinsic evidence that might be
sufficient to create a triable issue on his first claim. Cf. Pearson v. Prison Health Serv.,
850 F.3d 526, 536 (3d Cir. 2017).
7
does not apply when, inter alia, “a federal statute, regulation, or policy specifically
prescribes a course of action” and the action thus is not discretionary. Mitchell v. United
States, 225 F.3d 361, 363 (3d Cir. 2000) (quotation marks omitted). Rodriguez argues
that the BOP’s outsourcing policies are not discretionary because they are in violation of
its duties under 18 U.S.C. § 4042(a)(2) and (3).
The Government’s sole response is that Rodriguez waived this argument by failing
to raise it below. That position is puzzling because Rodriguez expressly raised this
argument in his brief in opposition to summary judgment (ECF No. 37 at 8), and the
District Court expressly addressed it in its opinion (ECF No. 42 at 26). In any event,
Rodriguez’s cursory argument lacks merit.
Section 4042(a) establishes a general duty of care requiring the BOP to, among
other things, provide for the general “safekeeping,” “care” and “protection” of prisoners.
United States v. Muniz, 374 U.S. 150, 164-65 & n.26 (1963) (quoting 18 U.S.C. §
4042(a)(2) & (3)). The District Court relied on some of our non-precedential opinions in
concluding that § 4042(a) leaves the performance of those general duties to the discretion
of the BOP and thus does not defeat application of the discretionary function exception.
We generally do not rely on our own non-precedential opinion, but it appears that every
Court of Appeals to have addressed the issue precedentially has reached the same
conclusion. 4 Rodriguez’s cursory invocation of § 4042(a) raises nothing suggesting that
4
See Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015); Spotts v. United States,
613 F.3d 559, 568, 572 (5th Cir. 2010); Montez v. United States, 359 F.3d 392, 395-96
(6th Cir. 2004); Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir. 2003); Cohen v.
United States, 151 F.3d 1338, 1342-43 (11th Cir. 1998); Calderon v. United States, 123
8
a different result might be warranted in this case. Rodriguez also raises no other
challenge to the District Court’s application of the discretionary function exception. 5
III.
For these reasons, we will affirm the judgment of the District Court.
F.3d 947, 950 (7th Cir. 1997); cf. Muniz, 374 U.S. at 163-64 (not deciding whether the
discretionary function exception applies to alleged breaches of the § 4042 duty of care);
Jones v. United States, 91 F.3d 623, 624-25 (3d Cir. 1996) (not addressing that issue).
5
Rodriguez argued below that BOP Program Statement 6010.04 governs the BOP’s
medical outsourcing decisions. The District Court wrote that it was unable to review the
Program Statement because Rodriguez did not attach it to any of his filings. Program
Statement 6010.04 was promulgated after the events in question, has since been
superseded, and does not appear to be available on the BOP’s website. Rodriguez does
not mention the Program Statement on appeal. Nevertheless, we have reviewed his
arguments on this point below, and he did not provide any reason to believe that this
Program Statement or any other constrained the BOP’s exercise of discretion.
9
|
983 A.2d 431 (2009)
411 Md. 355
SCHLOSSER
v.
UNINSURED EMPLOYERS' FUND.
Pet. Docket No. 287.
Court of Appeals of Maryland.
Granted November 12, 2009.
Petition for writ of certiorari granted.
|
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 722 MAL 2019
:
Respondent :
: Petition for Allowance of Appeal
: from the Order of the Superior Court
v. :
:
:
CHRISTINE NAZARIO, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 7th day of April, 2020, the Petition for Allowance of Appeal is
DENIED.
|
819 F.2d 1136
Wellsv.Rockefeller
86-3394
United States Court of Appeals,Third Circuit.
5/19/87
D.V.I.,
O'Brien, J.
AFFIRMED
|
228 B.R. 724 (1998)
In re CAPITOL METALS CO., INC., Debtor.
Official Committee of Unsecured Creditors, Appellant,
v.
ABC Capital Markets Group and Capitol Metals Co., Inc., Appellees.
BAP No. CC-98-1266-MeKB, Bankruptcy No. LA 97-48259KM.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted September 23, 1998.
Decided December 16, 1998.
*725 Marc J. Winthrop, Winthrop Couchot Professional Corp., Newport Beach, CA, for Official Committee of Unsecured Creditors.
Andrew A. Goodman, Greenberg & Bass, Encino, CA, for ABC Capitol Markets Group.
Before: MEYERS, KLEIN and BRANDT, Bankruptcy Judges.
OPINION
MEYERS, Bankruptcy Judge.
I
The bankruptcy court authorized Capitol Metals Co. ("Capitol" or "Debtor") to employ ABC Capital Markets Group ("ABC") as its exclusive financial advisor and investment banker. The Official Unsecured Creditors Committee ("Appellant") appealed the order on the grounds that ABC is not disinterested. We agree and REVERSE.
II
FACTS
In November 1995, the Debtor, ABC and L.E. Pete Peterson, ("Peterson") entered an agreement entitled Memorandum of Understanding ("Memorandum"). The Memorandum stated that Capitol retained Peterson as its Chief Financial Officer ("CFO") for which he would be paid $2,000 per week. The Memorandum also stated that Capitol retained ABC to act on its behalf to effectuate a sale of Capitol, which would result in compensation based on the net amount of the sale. On December 23, 1996, Capitol and ABC signed a "Consulting Agreement" through which Capitol hired ABC as a consultant to function as Capitol's CFO at the rate of $2,000 per week. Peterson and his wife are the only two principals of ABC, and Peterson is the only person at ABC who worked on transactions with Capitol.
Peterson solicited 56 potential buyers for Capitol and assisted it in obtaining a new line of credit. One of the interested purchasers was Consolidated Capital of North America ("CCNA"). CCNA entered a prepetition letter of intent to purchase Capitol, but withdrew the offer on September 12, 1997. At that point, CCNA informed Capitol and Peterson that it was not interested in pursuing negotiations. Capitol then filed a Chapter 11 petition on October 7, 1997.
At the Debtor's request, Peterson began contacting the potential buyers again. CCNA made a new, lower offer to purchase the company. On October 27, 1997, the Debtor sought approval of the terms of the transaction with CCNA by filing a motion which described Peterson's efforts to find a buyer for the company ("Overbid Motion"). After a hearing on the proposed sale in December 1997, the sale to CCNA was eventually consummated in January 1998.
On December 12, 1997, the Debtor filed an application to employ ABC as its exclusive financial advisor and investment banker ("Application"). The Application had been delayed while the Debtor and ABC negotiated, drafted and signed the postpetition engagement agreement. The court denied the Debtor's request for an expedited hearing on *726 the Application and a further delay occurred when the Debtor's attorney failed to send a notice of the hearing in a timely manner.
The Application and accompanying declaration of Peterson disclosed that the Debtor had hired ABC as a financial consultant in late 1995 to help the Debtor sell the business and raise additional capital, and that ABC was paid $2,000 per week for its services. The United States Trustee and the Appellant both objected to the appointment. At the conclusion of the first hearing, the court continued the matter and requested additional briefing and evidence from the parties. At a final hearing on March 17, 1998, the United States Trustee withdrew its objections and the court considered Appellant's arguments.
The Appellant contended that ABC was not disinterested due to the prepetition employment of Peterson as the Debtor's CFO. The Appellant argued that the unambiguous language of the Memorandum proved that Peterson was the Debtor's CFO within the three years before the petition was filed and therefore was excluded from being hired.
In response, ABC supplied evidence that neither Peterson nor ABC was actually hired as the Debtor's CFO; they just provided financial services in the capacity of consultants and performed the functions of a CFO.
The bankruptcy court stated it did not think the evidence showed that Peterson was the CFO and even if he was, ABC was the applicant, not Peterson. The court approved the employment with three conditions: (1) ABC had to waive any prepetition claim on the record, (2) the provision that the Debtor would indemnify ABC was not approved, and (3) ABC would be compensated on a quantum meruit basis rather than the requested flat fee of $250,000.
III
STANDARD OF REVIEW
The bankruptcy court's findings of fact may be reversed only if they are clearly erroneous. In re Chabot, 992 F.2d 891, 893 (9th Cir.1993).
The decision by a bankruptcy court to approve an employment application is generally reviewed for abuse of discretion. In re CIC Investment Corp., 175 B.R. 52, 53 (9th Cir. BAP 1994). However, to the extent the interpretation of the Bankruptcy Code is involved, it is a legal issue reviewed de novo. Id.
IV
DISCUSSION
The employment of professionals is governed by 11 U.S.C. § 327, which states:
(a) Except as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title.
(b) If the trustee is authorized to operate the business of the debtor under section 721, 1202, or 1108 of this title, and if the debtor has regularly employed attorneys, accountants, or other professional persons on salary, the trustee may retain or replace such professional person if necessary in the operation of such business.
According to Section 1107(a), the Chapter 11 debtor in possession has the same ability as a trustee to hire professionals. That section further provides:
(b) Notwithstanding section 327(a) of this title, a person is not disqualified for employment under section 327 of this title by a debtor in possession solely because of such person's employment by or representation of the debtor before the commencement of the case.
Among the requirements for employment is that the professional is a "disinterested person". A person is not disinterested if that person was a director, officer or employee of the debtor within two years of the date of filing the bankruptcy petition. 11 U.S.C. § 101(14)(D). A person who is not disinterested as that term is defined in § 101(14) is disqualified from acting as a *727 professional for the estate. In re Weibel, 176 B.R. 209, 212 (9th Cir. BAP 1994).
The Bankruptcy Code does not define the term "officer." In re S.S. Retail Stores Corp., 211 B.R. 699, 701 (9th Cir. BAP 1997). Under California law:
(a) A corporation shall have a chairman of the board or a president or both, a secretary, a chief financial officer and such other officers with such titles and duties as shall be stated in the bylaws or determined by the board. . . . Any number of offices may be held by the same person unless the articles or bylaws provide otherwise.
(b) Except as otherwise provided by the articles or bylaws, officers shall be chosen by the board and serve at the pleasure of the board, subject to the rights, if any, of an officer under any contract of employment.
Cal.Corp.Code § 312 (emphasis added).
Peterson and the Debtor acknowledged that Peterson functioned as the Debtor's CFO. They argue that he was not really an officer, however, because the Board never took formal action in that regard. This argument must fail. A corporation is required to have a CFO by Cal.Corp.Code § 312(a). There is no evidence that the Debtor had any CFO other than Peterson or ABC, who admittedly functioned as such at the request of Capitol's CEO. Without such evidence, the Panel considers the person who functioned as the CFO to be the CFO, even without a corporate resolution to that effect.
The applicant bears the burden of proving that the standards for appointment have been met. In re Crook, 79 B.R. 475, 478 (9th Cir. BAP 1987). ABC failed to prove that it was disinterested, given the employment of Peterson and ABC as the Debtor's CFO during 1996 and 1997.
The bankruptcy court distinguished between ABC and Peterson in appointing ABC. There is authority for the proposition that a firm is not per se disqualified from representing a Debtor solely because a partner in the firm was an officer. S.S. Retail Stores, Corp., supra, 211 B.R. at 704. The firm involved in S.S. Retail was the large law firm of Gibson, Dunn & Crutcher. While a firm may not be per se disqualified under the circumstances of S.S. Retail, when the only person working with the Debtor is the person who is not disinterested, the disinterestedness standard would be eradicated by corporate form over substance. In this case, Peterson and ABC were each named as the person who would function as the Debtor's CFO within the three years before the bankruptcy petition was filed. It is the combination of a prepetition officer of the Debtor being hired as a financial advisor and investment banker that runs afoul of the disinterest requirements.
V
CONCLUSION
Peterson and ABC functioned as the Debtor's CFO during the three years before the Debtor filed its Chapter 11 petition. They are not disinterested as that term is defined by the Bankruptcy Code, and therefore are disqualified from being appointed as a professional in this case.
The bankruptcy court erred in authorizing the Debtor to employ ABC as its financial advisor and investment banker. Accordingly, we REVERSE.
|
483 F.2d 663
UNITED STATES of America, Plaintiff-Appellee,v.Charles Stephen SAWYER, Defendant-Appellant.
No. 73-1209 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Aug. 30, 1973.Rehearing Denied Oct. 1, 1973.
Paul R. Lawrence, Houston, Tex. (Court Appointed), for defendant-appellant.
Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
PER CURIAM:
1
On September 25, 1972, appellant Charles Sawyer, pleaded guilty to a charge of unlawfully importing heroin in violation of 21 U.S.C. Sec. 952(a) (1970).1 Pursuant to the sentencing procedures set forth in the Narcotics Addict Rehabilitation Act (NARA), 18 U.S.C. Sec. 4252 (1970),2 he was committed to an institution in Milan, Michigan for observation in order to ascertain first, whether he was an addict and second, if so, whether he was likely to be rehabilitated through treatment.3 C. J. Hughes, warden of the Milan Institution, subsequently reported to the trial judge that although Sawyer was an addict, it was unlikely that he would be rehabilitated by the NARA drug abuse program and that his presence might be detrimental to others in the program.
2
After receiving the Warden's letter, the trial judge ordered Sawyer to appear in court on January 15, 1973 and advised him that resentencing was set for January 17, 1973. On this latter date, Sawyer was resentenced to five years imprisonment with a special parole term of three years following the imprisonment pursuant to 21 U.S.C. Sec. 960 (1970).4 On appeal, Sawyer raises three contentions, each of which we deem to be without merit.
3
Sawyer's first contention is that 21 U.S.C. Sec. 960 (1970), which provides for a 15 year maximum sentence, is arbitrarily and unreasonably discriminatory against him and others similarly situated. Premising his argument on the characterization of his importation as merely incidental to possession, he claims that discrimination inheres in the fact that addicts residing close to the border are more likely to be involved in importation for personal use and hence subject to stiffer penalties under 21 U. S.C. Sec. 960 (1970) than addicts residing in the interior of the United States whose unlawful possession brings merely a one year sentence.5 While his factual observation may be irrefutable, his legal conclusion is not, and hence we reject it.
4
Sawyer's second and equally unavailing contention is that the imposition of a sanction against him for importation violates the prohibition against cruel and unusual punishment in that it punishes him for a status, that of being a narcotics addict. A similar argument was offered and rejected in United States v. Drotar, 416 F.2d 914, 916-917 (5th Cir. 1969). We find no compelling reason to repudiate that conclusion in the instant case.
5
Sawyer's final contention is that he was denied due process at the sentencing phase of the trial. The thrust of this argument is that because the factual determination of guilt required to be made under 21 U.S.C. Sec. 952(a) (1970) and the attendant sentencing under 21 U.S.C. Sec. 960 (1970) presented issues distinct from those arising under 18 U.S.C. Sec. 4252 (1970), he should have been accorded a full panoply of due process rights at the resentencing hearing, including confrontation of witnesses, reasonable notice and compulsory process under the Supreme Court's ruling in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).
6
Admittedly, the factual determination required to be made under the former statutes-whether the accused unlawfully imported heroin-does not coincide with the determinations required to be made under the latter statute-whether the accused is an addict, amenable to rehabilitation under NARA programs. Whether this difference alone renders Specht v. Patterson, supra, dispositive of Sawyer's due process contention need not, however, be decided, in this case, for here, Sawyer consistently maintained that he was not an addict and hence not eligible for the NARA treatment program in the first instance. Moreover, since the record is devoid of any evidence to suggest that Sawyer sought and was denied access to the warden's report at the resentencing hearing, we need not entertain this contention on appeal. Cf. United States v. Hord, 459 F.2d 1003, 1004 (9th Cir. 1972); United States v. Carroll, 141 U.S.App.D.C. 178, 436 F.2d 272, 274 (1970).
7
The reasons set forth above, we affirm the judgment of the district court.
8
Affirmed.
*
Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I
1
21 U.S.C. Sec. 952(a) (1970):
(a) It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule III, IV, or V of subchapter I of this chapter. . . .
2
18 U.S.C. Sec. 4252 (1970):
If the court believes that an eligible offender is an addict, it may place him in the custody of the Attorney General for an examination to determine whether he is an addict and is likely to be rehabilitated through treatment. The Attorney General shall report to the court within thirty days; or any additional period granted by the court, the results of such examination and make any recommendations he deems desirable. An offender shall receive full credit toward the service of his sentence for any time spent in custody for an examination.
3
18 U.S.C. Sec. 4253(b) (1970):
If, following the examination provided for in section 4252, the court determines that an eligible offender is not an addict, or is an addict not likely to be rehabilitated through treatment, it shall impose such other sentence as may be authorized or required by law.
4
21 U.S.C. Sec. 960 (1970):
(a) Any person who-
(1) contrary to section 952, 953, or 957 of this title, knowingly . . .
shall be punished as provided in subsection (b) of this section.
Penalties.
(b)(1) In the case of a violation under subsection (a) of this section with respect to a narcotic drug in schedule I or II, the person committing such violation shall be imprisoned not more than fifteen years, or fined not more than $25,000 or both. If a sentence under this paragraph provides for imprisonment, the sentence shall include a special parole term of not less than three years in addition to such term of imprisonment.
5
21 U.S.C. Sec. 844(a) (1970) provides for a year imprisonment term for simple possession of a controlled substance
|
19 So.3d 266 (2007)
SHEILA RENA DORTCH
v.
STATE.
No. CR-06-1868.
Court of Criminal Appeals of Alabama.
October 30, 2007.
Decision of the alabama court of criminal appeal without published opinion. Dismissed.
|
241 F.3d 1279 (10th Cir. 2001)
GREGORY DALE ENGLISH, Petitioner-Appellant,v.R. MICHAEL CODY, Respondent-Appellee.
No. 00-5115
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
March 06, 2001
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 95-CV-753-B)[Copyrighted Material Omitted]
Submitted on the briefs: Gregory Dale English, Pro se.
Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
1
Petitioner-appellant Gregory Dale English appeals from the district court's order denying his petition for a writ of habeas corpus. This matter comes before us on English's request for a certificate of appealability (COA).1
2
This case was filed in district court prior to the AEDPA amendments to 28 U.S.C. 2254. For this reason, we apply the pre-AEDPA version of that statute to English's claims. See Lindh v. Murphy, 521 U.S. 320 (1997). English's appeal, however, was filed in this court after the effective date of the AEDPA amendments. Therefore, AEDPA's COA requirement applies to this appeal. See Slack v. McDaniel, 529 U.S. 473, 482 (2000).
3
In order to receive a COA, English must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). A petitioner meets this standard if he shows that his issues "are debatable among jurists, or that a court could resolve the issues differently, or that the questions deserve further proceedings." United States v. Sistrunk, 111 F.3d 91, 91 (10th Cir. 1997).
4
In our previous decision in this case, we vacated the district court's interlocutory decision refusing to apply a procedural bar to English's claims of ineffective assistance of counsel. English v. Cody, 146 F.3d 1257, 1265 (10th Cir. 1998). We remanded to the district court for a determination of whether English's ineffective assistance of counsel claims embraced matters in the trial record, or whether they required enlargement of the record. Id. at 1264. If the district court concluded that English's ineffective assistance claims concerned matters entirely manifest within the record of his state court appeal, these claims would be procedurally barred. Id. If, on the other hand, English's claims required further supplementation of the record on appeal or additional fact-finding, the district court was to consider whether Oklahoma's remand procedure was adequate for that purpose. Id. at 1264-65. If the remand procedure was inadequate, we instructed the district court to refuse to apply a procedural bar and to address English's ineffective assistance claims on the merits. Id. at 1265.
On remand, the district court found that:
5
(1) English's underlying Confrontation Clause claim had been fairly presented to the Oklahoma Court of Criminal Appeals on direct appeal and was not procedurally barred. It found that a Confrontation Clause violation had occurred, but that the violation was harmless because there was adequate evidence of English's guilt; (2) English's underlying claim concerning impermissibly suggestive photo identification procedures was procedurally barred;
6
(3) English's claims of ineffective assistance of trial counsel were procedurally barred. It found that English had separate counsel at trial and on appeal, and that his ineffective assistance of trial counsel claims embraced matters within the trial record. In light of this finding, the district court found it unnecessary to decide whether Oklahoma's remand procedure was adequate to provide further factual development;
7
(4) English's claims of ineffective assistance of appellate counsel pertaining to counsel's failure to raise his ineffective assistance of trial counsel claims were meritless. Since these claims failed on their merits, English could not satisfy the standard for an ineffective assistance of appellate counsel claim.
8
In this appeal, English argues the following: (1) the record was insufficient to determine his ineffective assistance of counsel claims; (2) the district court should have held an evidentiary hearing on his claims; (3) all of the evidence presented to the jury was tainted; and (4) he is actually innocent. To the extent that English's issues involve attacks on the district court's procedural rulings, to receive a COA, English must show both "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. In assessing his claims, "[w]e review the district court's legal conclusions de novo and its factual findings under the clearly erroneous standard." Ross v. Ward, 165 F.3d 793, 798 (10th Cir. 1999).
9
1. Application of procedural bar to suggestive photo identification claims
10
English claims that eyewitnesses Kerry Wilburn and Paul Rusher were shown unnecessarily suggestive pre-trial photographic lineups. Before they were shown the lineups, he argues, each witness failed to identify English as the man who committed the robberies. Afterwards, however, they were persuaded by the lineups to change their minds and to implicate English. He argues that his counsel was ineffective in failing to challenge the photo lineups.
11
The district court concluded that this ineffective assistance claim was procedurally barred because English failed to raise it on direct appeal in state court and the claim concerned matters entirely manifest within the state court record. English argues that the district court should not have applied procedural bar because the record is insufficient to determine his claim. Alternatively, he argues that he was entitled to an evidentiary hearing on this claim to further develop the record.
12
English identifies four items that he believes are missing from the record and required for resolution of this claim: (1) evidence that Wilburn and Rusher initially misidentified him; (2) evidence concerning the unnecessarily suggestive photo identification procedures; (3) evidence concerning trial counsel's knowledge of the identification procedures; and (4) evidence concerning his attorney's efforts put forth in developing the identification procedures issue. Appellant's Opening Br. at 16B. Even assuming that the record is incomplete and procedural bar inappropriate, we cannot grant English a COA because he has failed to make a debatable showing that his suggestive identification claim, or any of his claims, for that matter, states "a valid claim of the denial of a constitutional right." Slack, 529 U.S. at 484.
13
In order to prevail on a claim of an unduly suggestive photographic lineup, a defendant has the initial burden of proving that the identification procedure was impermissibly suggestive. See United States v. Wade, 388 U.S. 218, 240 n.31 (1967). It is only after the defendant meets this burden that the burden shifts to the government to prove that the identification was reliable independent of the suggestive procedure. Id. It is only necessary to reach the second element of the inquiry if the court first determines that the array was impermissibly suggestive. See United States v. Sanchez, 24 F.3d 1259, 1261-62 (10th Cir. 1994).
14
Although he argues about the reliability of the eyewitnesses' testimony, English has never advanced any facts that show the identification procedures used in his case were impermissibly suggestive. English complains about the use of a second lineup containing his picture, after a witness chose the wrong picture from the first lineup, but he fails to show that this is itself impermissibly suggestive.
15
Moreover, there was abundant evidence that the lineups were not suggestive. Before any evidence was presented to the jury, witness Kerry Wilburn took the stand in response to counsel's motion to suppress identification. With regard to the lineup, he testified that the officers did nothing to suggest which of the men in the photos was in custody, or which he should identify. Trial Tr. at 128-29. The trial court viewed the photographs from the lineup and stated that they "appear to be an excellent lineup. I don't see any problems or any discrepancies that would focus in on any one individual." Id. at 129. The state court's factual findings as to this issue are binding on this court.2
16
English does not identify anything suggestive about the photographs or suggest anything that his attorney might have presented that would have met his evidentiary burden of showing they were suggestive. Thus, even if there is a controversy about the district court's determination that this issue was procedurally barred, English fails to meet his burden of showing that jurists of reason could find that the underlying issue states a valid claim of a denial of a constitutional right. For this reason, he is not entitled to a COA as to this issue.
17
It follows that English's ineffective assistance of appellate counsel claim based on the photographic lineup also fails to earn him a COA. If the underlying issue was not valid, his counsel was not ineffective for failing to raise it on direct appeal. Nor is English entitled to an evidentiary hearing, since he has identified no dispute about whether the photographic lineup was suggestive which would require further factual development of the record. See Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (stating, in pre-AEDPA case, that evidentiary hearing is not required where there is no factual dispute). Finally, as will be seen, English's claim of actual innocence is unsupported by the record and also fails to support his application for a COA.
18
2. Application of harmless error to Confrontation Clause claim
19
Confrontation Clause violations . . . are constitutional trial errors subject to harmless error analysis. A federal court reviewing a state court determination in a habeas proceeding should not grant relief unless the court finds the trial error had substantial and injurious effect or influence in determining the jury's verdict. To obtain relief for the error, the habeas petitioner must establish that it resulted in actual prejudice. Where a court is in grave doubt as to the harmlessness of the error . . . the habeas petitioner must win. We examine [the challenged] statement in light of the entire record to determine the error's possible effect on the jury.
20
Crespin v. New Mexico, 144 F.3d 641, 649 (10th Cir. 1998) (citations and quotations omitted).
21
English contends that the district court improperly relied on a harmless error analysis in deciding his Confrontation Clause claim against him, because all of the evidence against him is tainted. He reasons that all the eyewitness identification is tainted because it was developed through a suggestive lineup. He further argues that the transcript of his alleged accomplice's plea hearing cannot be used against him, because of the Confrontation Clause problem. Once these items of evidence have been excluded, English contends there is no remaining evidence that can form the basis of a finding of harmless error.
22
As we have just discussed, English's claim of a suggestive lineup is unsupported and cannot be used to exclude the eyewitness evidence from consideration. Construing English's pro se brief broadly, however, we perceive another facet to his claim. English appears to be arguing that because of problems with the photographic lineup, the eyewitness testimony was not sufficiently reliable to support the harmless error determination. To address this argument, and to evaluate the district court's determination of harmless error, we summarize the evidence presented at trial.
A. Wilburn testimony
23
Kerry Wilburn testified that on August 2, 1985, at approximately 11:00 p.m., he was working at the Safeway store at 61st and Lewis in Tulsa. James Longley, a fellow employee, unlocked the front door. As Wilburn was walking out, English came up to Wilburn and told him to get back into the store and to lie down in front of the booth. English had a gun at his side.
24
At the time English approached him, Wilburn was approximately five feet away from English. Wilburn was looking at English's face and what he had in his hand. Although the only available light came from inside the store through the glass doors, Wilburn stated he could "see pretty good" and was "pretty much" able to see English's face clearly. Trial Tr. at 135. Wilburn specifically remembered that English was wearing sunglasses, a bandana around his head, a sweatshirt cut off around mid-bicep, blue pants with a red stripe going around the side, white tennis shoes, and a baseball cap. None of these items of clothing was visible in the picture of English Wilburn subsequently viewed in the photographic lineup. Wilburn testified that he was "100 percent sure" that the robber was English. Id. at 143.
25
English told Longley to go into the booth, to open the safe, and to get nothing but big bills. He told Wilburn to be calm, to be cool, not to be a hero and to stop looking at him. Wilburn saw English grab the bag with money in it from Longley. In all, Wilburn estimated that he had three or four minutes to look at English.
26
Wilburn also testified to the events of the second robbery, on November 30, 1987. On that day, he was working at Safeway at around 10:50 p.m. when he heard someone talking. He saw English squatted down saying "'Hurry up. Nothing but big bills'" and "'Don't try to be a hero.'" Id. at 141. English told him to be cool and just stand there. Wilburn recognized English's voice from the earlier robbery.
27
At the time of the November robbery, English was wearing much the same attire as during the previous robbery: a bandana, sunglasses, a baseball cap, a blue jean jacket or some other kind of jacket, pants, tennis shoes, but no sweatshirt. Wilburn was able to look at him for approximately two minutes. He stated he was certain that English was the man who robbed the Safeway store on November 30, 1987.
28
Wilburn testified that English displayed particular quirks during the August and November robberies. During the August robbery, English twitched his eyes when Wilburn looked at him. During the November robbery, English seemed jumpy, like he "wasn't all there." Wilburn noticed the same mannerisms when he later saw English after his arrest.
29
Wilburn was cross-examined concerning the photographic lineups. He stated that he was first presented with a lineup of five pictures at his home. English's picture was not in this lineup. None of the pictures looked familiar, although he did select one that he thought had the same kind of body structure as the robber. He did not initial this picture; the police thanked him, and left. Sometime later, an officer presented him at work with a second photo lineup containing different photos, including a photograph of English. Wilburn picked out English's picture from this lineup and initialed it on the back at the officer's request.
30
On redirect, Wilburn clarified that he had not actually selected anyone from the first lineup as the robber. English complains that this testimony is inconsistent with Wilburn's previous testimony at the preliminary hearing. At the preliminary hearing, Wilburn stated flatly that after viewing the first lineup "I picked out a guy and they said that wasn't him." Preliminary Hearing Tr. at 15.
31
English submits that the inconsistency in Wilburn's testimony concerning the photographic lineup makes him inherently unreliable as a witness. We disagree. Although Wilburn gave a more nuanced version of his prior mis-identification at trial, stating that he had only identified someone with "the [same] kind of body structure" as the robber, Trial Tr. at 163, there is no doubt that he picked out English right away when presented with his picture in the second lineup. Moreover, Wilburn was unequivocal in identifying English as the robber at trial. He provided an extremely detailed description of the clothing English was wearing at the time of each robbery, bolstering the credibility of his observations. Any alleged inconsistency does not undermine his testimony taken as a whole.
B. Rusher testimony
32
Paul Rusher testified that on the evening of November 30, 1987, at about 10:50, he was pulling the extra checks and cash out of the tills. As he was walking back to the manager's booth, a man told him he wanted all his money and the big bills. The man told him to hurry and not to be a hero. Rusher was looking straight at the man from about ten feet away; the lighting was "pretty good." Id. at 172. Rusher identified English as the robber.
33
Rusher saw that English appeared to be wearing a gun on his belt. He described English's clothing using a description similar to the description Wilburn gave. Rusher gave English the money he requested, about $1200. He later picked English's photo out of a lineup. He testified that he was "100 percent certain" that English was the robber. Id. at 175.
34
This eyewitness testimony, coupled with the testimony of officers who prepared and presented the lineups and testimony about the likelihood that the two robberies were committed by the same person, overwhelmingly implicated English in the robberies. English presented two witnesses in his defense in an attempt to provide an alibi on his behalf. These witnesses, however, were equivocal as to the date and time they claimed to have seen English. In rebuttal, the state presented the testimony of an employee of the court clerk's office. She testified that when she told English that he had warrants outstanding for robberies of Safeway stores, he replied "'Oh, yeah, I remember doing those.'" Id. at 255. In light of the overwhelming evidence properly presented to the jury, we are confident that the constitutional error did not have a substantial and injurious effect in determining the jury's verdict.
35
Since the error was harmless, English fails to show that his trial attorney was ineffective in failing to raise the Confrontation Clause issue. Furthermore, his appellate attorney was not ineffective in failing to raise the issue of trial counsel's ineffectiveness, because the error was harmless. We conclude that English has not shown entitlement to a COA with regard to his Confrontation Clause issues.
36
English's request for a COA is DENIED and we DISMISS this appeal.
NOTES:
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
2
The pre-AEDPA version of 2254(d) requires us to presume the correctness of state court findings of fact unless the appellant has made a showing that those findings fell within one of the eight enumerated categories of unreliability. See 28 U.S.C. 2254(d) (1994); see Brecheen v. Reynolds, 41 F.3d 1343, 1348 n.1 (10th Cir. 1994). English has not made such a showing.
|
961 F.2d 963
295 U.S.App.D.C. 209
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.Rebecca L. BOEDKER, Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 91-1277.
United States Court of Appeals, District of Columbia Circuit.
April 24, 1992.Rehearing and Rehearing En BancDenied June 29, 1992.
Before RUTH BADER GINSBURG, STEPHEN F. WILLIAMS and RANDOLPH, Circuit Judges.
JUDGMENT
PER CURIAM.
1
This appeal was considered on the record from the Federal Communications Commission and on the briefs and oral arguments of counsel. The court is satisfied, after full review of the matter, that appropriate disposition of the issues presented does not require an opinion. See D.C.Cir.Rule 14(c).
2
Calling this "a close case," the Commission stressed that rival applicant Zurick's "record of civic activities is manifestly more extensive than that of Boedker." We have no warrant, on the record before us, to reject that assessment. Appellant's argument that the Commission improperly failed to award her an enhancement for her longer residence within the principal community of license, as against Zurick's longer residence in the service area, citing Renee Marie Kramer, 5 FCC Rcd. 5749 (1990), affirmed sub nom. Joyner Communications Ltd. Partnership v. FCC, 946 F.2d 1565 (D.C.Cir.1991) (table), compels no contrary result. As counsel for the Commission pointed out at oral argument, the Kramer case was not relied on during the proceedings below. The "service area" applicant in Kramer lived 40 miles away, in a large city, while the principal community of license was a small, rural town. The total service area at issue here is only 17 miles square, and from all that appears in the record is quite homogeneous. The path the Commission implicitly followed in recognizing the distinctions between the two situations is of adequate clarity. Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974). It is therefore
3
ORDERED and ADJUDGED that the Commission's order granting Zurick's application and denying Boedker's competing application be affirmed.
4
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15(b)(2).
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED
NOV 1 8 2010
Clerk, U.S. Dist'rlct & Bankruptcy
EDMQN GASAWAY, ) Courts for the D\strlct of Columbia
)
Plaintiff, )
) _ t
v_ ) Civil Action No. 9
)
PRESIDENT BARACK OBAMA, et al., )
)
Defendants. )
MEMORANDUM OPINION
This matter is before the Court upon consideration of plaintiff s application to proceed in
forma pauperis and his pro se complaint. The application will be granted, and the complaint will
be dismissed.
Plaintiff, a federal prisoner, alleges that defendants have deprived him of his human rights
in violation of 18 U.S.C. §§ 241 and 242. He demands an award of $20 million as compensation
for his unlawful conviction, sentence and incarceration, and the mental and physical hardship,
loss of wages, and severed family ties resulting from these events.
The Court dismisses the complaint under 28 U.S.C. l915A(b)( l) because it fails to state
a claim upon which relief can be granted. There is no private right of action under these criminal
statutes. See Keyter v. Bush, No. 04-5324, 2005 WL 375623, at *1 (D.C. Cir. Feb l6, 2005) (per
curiam) (affinning dismissal of claims "pursuant to 18 U.S.C. §§ 4, 241, and 242, because, as
criminal statutes, these statutes do not convey a private right of action"), cert. denied, 546 U.S.
875 (2005);1€0ckefeller v. U.S. Court of Appeals Ojj?ce for Tenth Circuit Judges, 248 F. Supp.
2d 17, 23 (D.D.C. 2003) (dismissing claims brought pursuant to 18 U.S.C. §§ 242, 371 "because,
as criminal statutes, they do not convey a private right of action"); see also Hunter v. District of
Columbia, 384 F. Supp. 2d 257, 260 n.l (D.D.C. 2005) (rejecting pro se plaintiff' s assertion that
subject matter jurisdiction exists pursuant to criminal statutes). Moreover, plaintiff may be
awarded damages in this civil rights action arising from his criminal conviction and resulting
confinement only if he first establishes that his confinement has been invalidated by "revers[al]
on direct appeal, expunge[ment] by executive order, declar[ation of invalidity] by a state tribunal
authorized to make such deterrnination, or . . . a federal court’s issuance of a writ of habeas
corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); accord White v. B0wie, 194 F.3d 175
(D.C. Cir. 1999) (table). Plaintiff has not satisfied the prerequisite and therefore fails to state a
claim.
An Order consistent with this Memorandum Opinion is issued separately.
I/Jlnited Stat¢(s District Judg'e
DATE:/Z Z/MM% 313/0
|
855 F.2d 1573
HOPLAND BAND OF POMO INDIANS, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee.
Appeal No. 88-1085.
United States Court of Appeals,Federal Circuit.
Aug. 30, 1988.
David J. Rapport, California Indian Legal Services, Ukiah, Cal., argued for plaintiff-appellant.
M. Alice Thurston, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With her on the brief were Roger J. Marzulla, Acting Asst. Atty. Gen., Martin W. Matzen and Glen R. Goodsell.
Before MARKEY, Chief Judge, RICH and MICHEL, Circuit Judges.
MICHEL, Circuit Judge.
1
The Hopland Band of Pomo Indians (Band) appeals the judgment of the United States Claims Court in Hopland Band of Pomo Indians v. United States, 13 Cl.Ct. 276 (1987), dismissing all of the counts of the Band's complaint as being either barred by res judicata, claims upon which the Band did not have standing to sue, or claims upon which relief could not be granted. The Claims Court also held that the complaint was not brought within the applicable statute of limitations, 28 U.S.C. Sec. 2501 (1982). We conclude that each of the three counts of the Band's complaint is barred by section 2501. Since compliance with section 2501 is a prerequisite to the Claims Court's jurisdiction, we vacate the decision of the Claims Court addressing the merits and remand with instructions to dismiss the Band's complaint for lack of jurisdiction.
BACKGROUND
2
The Hopland Rancheria, located in Mendocino County, California, was one of a number of small Indian communities (rancherias) in California, the land of which was held in trust by the United States for the resident Indians. However, in accordance with procedures set forth by Congress in the California Rancheria Act, Pub.L. No. 85-671, 72 Stat. 619 (1958) (as amended by Pub.L. No. 88-419, 78 Stat. 390 (1964)) (the Act), the trust relationship between the government and the resident Indians on various rancherias, including the Hopland Rancheria, was to be terminated and the trust property or proceeds from the sale of such property distributed to eligible individualIndians. See generally Duncan v. United States, 667 F.2d 36, 38-40, 229 Ct.Cl. 120 (1981), cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983); Smith v. United States, 515 F.Supp. 56, 57-58 (N.D.Cal.1978). Under sections 1 and 2 of the Act, termination of an individual rancheria and distribution of its assets were to be carried out in accordance with a termination plan prepared by the Secretary of the Interior (Secretary) and approved by a majority of the adult Indians affected by the plan.
3
The Secretary approved a termination plan for the Hopland Rancheria on May 22, 1961, and a majority of the voting Indians of the Hopland Rancheria approved the plan on June 18, 1961. In accordance with section 10(b) of the Act, when the distribution of the rancheria's assets was completed, the Band's formal status as a Tribe was to be terminated, thereby ending the eligibility of its members for services and benefits provided by the government to such persons because of their status as Indians. However, in accordance with section 3 of the Act, no actual distribution of assets or proceeds to the individual distributees was to take place until the government reached agreement with the Indians of the Band on improvements to the water supply, sanitation, and irrigation facilities of the rancheria. While no agreement regarding such improvements was reached, the actual distribution of deeds to the assigned rancheria properties and of proceeds from the sale of other rancheria assets1 nevertheless occurred and was completed by July 1967. At that time, the Band's status as a Tribe was formally terminated by the United States. Furthermore, following termination of the trust relationship, the distributed land became subject to state and federal laws and taxes.
4
In May 1974, Ellerick Smith, an individual distributee of the Hopland Rancheria, brought suit against the United States for injunctive and declaratory relief, alleging, inter alia, that the rancheria had been unlawfully terminated. Shortly thereafter, the government apparently realized that the termination of the Hopland Rancheria violated the Act due to the government's failure to reach any agreements regarding the necessary water and sanitation improvements prior to the distribution of the trust properties. In September 1974, the government acknowledged the continuing existence of its trust relationship with the Hopland Band in letters to each member of the Band.
5
Subsequently, in March 1978, on the basis of representations by the government to the district court in the suit brought by Mr. Smith, the court concluded that the purported termination of the Hopland Rancheria was unlawful, that the rancheria had not been terminated, and that the trust relationship of the United States toward the Indian people of the rancheria remained in existence. Smith, 515 F.Supp. at 59-60. The court further concluded that the Indian distributees of Hopland Rancheria lands were to be allowed to reconvey their land to the United States, provided that such land had not been conveyed to good-faith, non-Indian purchasers, and that any land reconveyed would be exempt from state and local taxation until the rancheria was legally terminated.2 Id. at 61. Following that initial determination, the district court allowed a class representing Indian distributees and their heirs to intervene in the action on August 13, 1979. After a series of proceedings before a magistrate, the parties to that action stipulated a final judgment which was ordered entered by the district court on March 18, 1986.
6
During the course of the Smith litigation, in April 1980, the Bureau of Indian Affairs published a notice in the Federal Register which acknowledged its formal government-to-government relationship with the Band. 45 Fed.Reg. 27,820 (1980). According to the Band's complaint here, however, it was not until August 20, 1981, that the Indians of the Hopland Rancheria voted to adopt a constitution, which was necessary to create a governing body and authorize tribal officials to act on behalf of the Band. The Band itself was not a member of the certified class in the Smith case, although the Band did make a belated attempt to intervene, filing a notice of motion to intervene on April 7, 1986, which was denied.
7
The Band filed the present 3-count complaint in its own behalf in the Claims Court on September 3, 1986, seeking damages against the government for the premature and unlawful conveyance of the rancheria property held in trust for the Band by the government and for the denial of statutory benefits on the basis of the unlawful termination of the Band's tribal status. Specifically, Count I sought damages for breach of trust sufficient to allow replacement of Parcel 1 at current market prices. Count II sought the same damages on a different theory, alleging that by selling Parcel 1, a community asset, and dividing the proceeds only among the distributees, the government breached its duty to manage the trust for the benefit of all the trust beneficiaries, which included persons not classified as distributees. Count III alleged that the United States failed to provide benefits and services available to federally recognized Indian Tribes because of the government's unlawful termination of the rancheria and the Band's federal status. According to the complaint, since the Band retained its eligibility for such benefits and services until a lawful termination of the Hopland Rancheria could be accomplished, Count III sought damages to compensate for the full value of the lost benefits and services.
8
The Claims Court dismissed the Band's complaint, 13 Cl.Ct. 276, and this appeal followed.
OPINION
I.
9
As an initial matter, we observe that "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975) (citation omitted). Therefore, in proper circumstances, Indian tribes can be viewed as specific governmental and legal entities distinct from their members. See, e.g., Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 468 n. 7, 96 S.Ct. 1634, 1639 n. 7, 48 L.Ed.2d 96 (1976). Thus, we assume for the purposes of this appeal that the Band, as a separate entity apart from its individual members, can pursue on its own behalf certain legal actions distinct and separate from similar or related claims of its members. Cf. Fields v. United States, 423 F.2d 380, 383, 191 Ct.Cl. 191 (1970) (distinguishing between claims brought by a tribe, band, or group of Indians and claims brought by individual Indians); Table Bluff Band of Indians v. Andrus, 532 F.Supp. 255, 260 n. 10 (N.D.Cal.1981). Nevertheless, statutes of limitations are to be applied against the claims of Indian tribes in the same manner as against any other litigant seeking legal redress or relief from the government. See United States v. Mottaz, 476 U.S. 834, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986); Capoeman v. United States, 440 F.2d 1002, 1007-08, 194 Ct.Cl. 664 (1971).
10
The parties here agree that the present action is governed by the statute of limitations set forth in 28 U.S.C. Sec. 2501 (1982), which provides that "[e]very claim of which the United States Claims Court has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." The 6-year statute of limitations on actions against the United States is a jurisdictional requirement attached by Congress as a condition of the government's waiver of sovereign immunity and, as such, must be strictly construed. See Spannaus v. Department of Justice, 824 F.2d 52, 55 (D.C.Cir.1987) (discussing 28 U.S.C. Sec. 2401(a)); Jones v. United States, 801 F.2d 1334, 1335 (Fed.Cir.1986) (the statute of limitations set forth in section 2501 is jurisdictional), cert. denied, --- U.S. ----, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987).3 Exceptions to the limitations and conditions upon which the government consents to be sued are not to be implied. Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). Furthermore, since the 6-year limitations period of section 2501 serves as a jurisdictional limitation rather than simply as an affirmative defense, such statutes of limitations have been held as "not capable of waiver or subject to an estoppel," whether pled or not. See Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972) (construing 28 U.S.C. Sec. 2401(b)); Mentis v. United States Postal Service, 547 F.Supp. 164, 166 (W.D.N.Y.1982) (statutes of limitations fixed by Congress cannot be waived by the acts of government agents).
11
It is generally stated that a claim "first accrues" when all the events have occurred which fix the alleged liability of the defendant and entitle the plaintiff to institute an action. See, e.g., Japanese War Notes Claimants Association of the Philippines, Inc. v. United States, 373 F.2d 356, 358, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). However, despite the apparent unavailability of waiver or estoppel, the statute of limitations can be tolled in proper circumstances, even in suits against the government. See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946) (equitable tolling due to defendant's fraudulent concealment "is read into every federal statute of limitation"); Welcker v. United States, 752 F.2d 1577, 1580 (Fed.Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 83, 88 L.Ed.2d 68 (1985); Barrett v. United States, 689 F.2d 324, 329-30 (2d Cir.1982), cert. denied, Cattell v. Barrett, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983). Thus, the statute of limitations can be tolled where the government fraudulently or deliberately conceals material facts relevant to a plaintiff's claim so that the plaintiff was unaware of their existence and could not have discovered the basis of his claim. Welcker, 752 F.2d at 1580 ("the statute of limitations is tolled only so long as the plaintiff is unaware of the wrong committed"); see Urie v. Thompson, 337 U.S. 163, 169-70, 69 S.Ct. 1018, 1024-25, 93 L.Ed. 1282 (1949) (statute tolled if injury was "inherently unknowable"); Holmberg, 327 U.S. at 397, 66 S.Ct. at 585 (the statute does not begin to run until the defendant's fraud is discovered). However, it is not necessary that the plaintiff obtain a complete understanding of all the facts before the tolling ceases and the statute begins to run. Japanese War Claimants, 373 F.2d at 359 (also noting that the claims need not be substantiated by discovery of evidence before the statute can begin to run).
12
Thus, for the purposes of section 2501, it would appear more accurate to state that a cause of action against the government has "first accrued" only when all the events which fix the government's alleged liability have occurred and the plaintiff was or should have been aware of their existence. See Kinsey v. United States, 852 F.2d 556, 557 n. * (Fed.Cir.1988) ("a claim does not accrue unless the claimant knew or should have known that the claim existed"). On the other hand, once the cause of action accrues and the statutory period starts running, Congress has explicitly provided a plaintiff 6 years in which to file his action and no more. Since the 6-year period is also an express condition of the government's consent to be sued, courts are without jurisdiction to expand that period explicitly provided by Congress, at least on the equitable grounds of waiver or estoppel. See, e.g., Henry Products Co. v. United States, 180 Ct.Cl. 928, 930 (1967) (settlement discussions do not toll the statute once cause of action has accrued); see also Mentis, 547 F.Supp. at 166 (statutes of limitations fixed by Congress cannot be lengthened by estoppel). Although not always clearly stated or recognized in the "tolling" case law, the distinction that must be drawn is that between tolling the commencement of the running of the statute (a tolling of the accrual) and tolling the running of the statute once commenced (a tolling of the statute). In suits against the government brought under section 2501, the distinction can be critical because the former routinely is allowed while the latter rarely is.
II.
13
While there is no dispute that the present complaint was governed by a 6-year statute of limitations period as set forth in section 2501, there is no shortage of disputes over when the Band's causes of action accrued and whether the statute of limitations should be tolled in light of the practical and organizational difficulties suffered by the Band as a result of the government's activities causing the unlawful termination of the Band's status as a federally recognized Indian tribe. Accordingly, the key issue becomes determining when the appellant's causes of action did actually accrue for the purposes of section 2501. Although the first two counts of the Band's complaint are styled as distinct allegations for breach of trust, both counts arise out of the same event, the allegedly improper conveyance of Parcel 1 by the government. For the purposes of determining when a cause of action arising from that alleged breach accrued, the analysis is the same. Therefore, we address the accrual of the first two counts together and address the accrual of the third count separately.
14
With respect to the accrual date of the Band's first two claims, the government argues alternatively that the Band's causes of action first accrued: in 1961, when the distribution plan became final; in 1964, when the sale of Parcel 1 was completed; in 1967, when the last deed to the rancheria land was distributed and the rancheria terminated; in 1974, when the government notified the members of the Band that the termination had been unlawful; in 1978, when the district court in Smith held that the termination had been unlawful; or in April 1980, when the government published its formal notice in the Federal Register of its resumed relationship with the Band. The government further argues that there is no legal basis upon which "to toll" the statute because the practical difficulties in bringing suit suffered by the Band are, as the Claims Court observed, "simply not cognizable as a legal disability." 13 Cl.Ct. at 282. Under the government's view, since the Band's complaint was not filed until September 3, 1986, which is beyond the 6-year period provided by 28 U.S.C. Sec. 2501, the complaint is therefore barred regardless of which date above is determined to start the running of the statutory period.
15
The general rule is that the statute of limitations "does not run against a beneficiary in favor of a trustee until the trust is repudiated and the fiduciary relationship is terminated." See Manchester Band of Pomo Indians, Inc. v. United States, 363 F.Supp. 1238, 1249 (N.D.Cal.1973) (citing United States v. Taylor, 104 U.S. 216, 26 L.Ed. 721 (1881)). The rule would appear to be applicable in this case, even if subject to the qualification noted in Jones v. United States, 9 Cl.Ct. 292, 295 (1985) (rule not applicable to claims for misfeasance or nonfeasance as opposed to claims for recovery of the trust corpus), aff'd on other grounds, 801 F.2d 1334 (Fed.Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987), because Parcel 1, prior to its sale, was held in trust for the Band by the United States and therefore was part of the trust corpus. Here, we do not need to decide whether the sale of the parcel in 1964 was sufficient to constitute a repudiation of the trust by the trustee inconsistent with its obligations under the trust, see Jones, 801 F.2d at 1336, since at least by 1967, all the events which would fix the alleged liability of the government had taken place when the trust was expressly terminated under the Act. Thus, regardless of whether all the events fixing liability occurred in 1964 or 1967, in the absence of tolling, the statutory period on the Band's claims would have run at least no later than 1973, well before its complaint was filed in 1986.
16
In support of its arguments for tolling, the Band protests the apparent unfairness of allowing the government to rely on the statute of limitations when the Band's practical difficulties in organizing and bringing suit allegedly stemmed from government actions. However, it is established that the government cannot be estopped from asserting the jurisdiction bar of section 2501 nor can the running of the statute on a claim against the government which has already accrued be suspended or extended. We therefore view the Band's arguments as directed toward tolling the initial accrual of its cause of action with respect to Parcel 1 rather than only to a suspension of the running of the statute once commenced. Thus, the determinative issue becomes whether the Band as an entity could be considered to be unaware of those events so as to toll the commencement of the running of the statute until less than 6 years prior to the filing of its complaint.
17
Under the Band's theory of the case in support of tolling, the revocation of the Band's constitution and corporate charter occurred in 1961 upon the approval of the distribution plan by a majority of the adult Indians, as provided in section 11 of the Act. The revocation had the effect of dissolving the tribal government, prior to the sale of Parcel 1 in 1964 and the termination of the rancheria in 1967, the acts giving rise to the causes of action of the present complaint. The Band alleges that knowledge of these acts by the Band could only have occurred after the Band's government was formally reorganized since the Band, as an entity, could not be aware of anything until its governing body actually was back in existence. In the Band's view, the causes of action stemming from the sale and unlawful termination cannot be deemed to have accrued until the Band itself was able to know of its injury and act to protect its interests.
18
In other words, it is the Band's position that by revoking its constitution and charter in 1961, the government effectively concealed from the Band the subsequent acts which resulted in injury to the Band, thereby preventing their discovery until the Band was able to reorganize. The Band argues that the earliest date on which such reorganization could be deemed to have occurred was when the Band adopted an interim constitution on August 20, 1981, a date within 6 years of the filing of its complaint. Thus, the key issue reduces to whether the commencement of the statutory period can be tolled for the entire period between 1961 and 1981 on the ground that the disablement of the Band's governing body upon revocation of the constitution and charter prevented the Band's knowledge of the events of 1964 and 1967 which gave rise to their specific claims.
III.
19
We conclude that a tolling of the commencement of the statute of limitations on the Band's claims relating to Parcel 1 for the entire period from 1961 to 1981 is unwarranted. Acceptance of the Band's theory would require us to conclude that if the United States government had not voluntarily acknowledged that the termination of the Hopland Rancheria was improper, the Band was powerless to bring suit to prove a wrongful termination under the Act. Cf. Menominee Tribe of Indians v. United States, 607 F.2d 1335, 1345 & n. 22, 221 Ct.Cl. 506 (1979) (Court of Claims has jurisdiction to hear cases alleging violation of termination statutes), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980). But it makes little sense to conclude that the Band could only bring an action for wrongful termination once the government acknowledged the wrongful termination because, at that point, the Band would no longer need to sue to prove that. In fact, if the Band's theory were adopted, once the termination of the trust and the Band's tribal status under the Act had actually occurred, the termination with respect to the Band would have become unreviewable and any resulting damage or loss would have become unrecoverable since the Band would not have been able to sue the United States government because the termination ended the Band's government as well. That simply cannot be the rule.
20
The Band's theory of its own disablement through revocation of its charter ignores the reality that it is through the knowledge of individual persons that comprise legal entities such as corporations or tribes that such entities gain the actual knowledge of the events which give rise to their potential causes of action. The termination of the Band's charter or the withdrawal of federal recognition did not affect the ability of the individual members to obtain knowledge and those individual members knew or should have known at least by 1967 all the facts which indicated that the sale of Parcel 1 was improper under the Act. Suits challenging the validity of tribal terminations have previously been filed on behalf of allegedly improperly terminated tribes. See, e.g., Menominee Tribe of Indians v. United States, 388 F.2d 998, 1000-01, 179 Ct.Cl. 496 (1967), aff'd, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Affiliated Ute Citizens v. United States, 199 Ct.Cl. 1004, 1004-05 (1972); Table Bluff Band, 532 F.Supp. at 260-61. We have been shown no valid reason why a similar suit on behalf of the Hopland Band of Pomo Indians could not have been brought to challenge the legality of its termination immediately following the improper termination occurring in this case.
21
The Band attempts to distinguish the above cases as situations where the government provided for or recognized a group or association of the terminated tribe to be the representative body of the tribe after the termination. However, the practical difficulties in organizing to bring suit, regardless of any increased difficulty resulting from a lack of federal impetus or assistance, are indeed "not cognizable as a legal disability" which would prevent the statute of limitations from running on a claim against the government over the sale of tribal assets following the unlawful termination of the trust. See 13 Cl.Ct. at 282. In fact, the prescribed 6-year period of section 2501 is the length of time which Congress has deemed as the reasonable time in which to overcome such difficulties and present one's claim and the period after which jurisdiction to hear the accrued claim is lost. See United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979) (and cases cited).
22
Furthermore, the Band's own litigation experiences further undermine the Band's theory as to why suit could not have been brought sooner. The Band argues that the statute should be tolled until August 20, 1981, when it adopted an interim constitution providing membership criteria and elected a tribal council with delegated authority to act for the membership. Yet the government apparently considered the interim constitution insufficient to enable the tribal council to act on behalf of the Band. Nevertheless, the government's nonrecognition of the council did not prevent the present litigation or the Band's suit in which the Band and two other tribes obtained declaratory relief to compel the Secretary of the Interior to call for elections to ratify a formal constitution under the Indian Reorganization Act. See Coyote Valley Band of Pomo Indians v. United States, 639 F.Supp. 165 (E.D.Cal.1986). If such suits could be brought on behalf of the Band without formal government recognition or authorization of the tribal council, the present suit could have and should have been brought before 1973.
23
Thus, while formal recognition by the United States government may have been a prerequisite for the tribe to bring suit as a sovereign against third parties, it was not a prerequisite for bringing suit against the government over the withdrawal of that federal recognition. In other words, whatever infirmities the Band may have been under as a result of the revocation of its constitution and charter should not have prevented the bringing of an action on behalf of the Band against the government as the entity allegedly responsible for creating those infirmities. We therefore conclude that the Band's claims arising out of the sale of Parcel 1 are time-barred under section 2501.
IV.
24
While the wrong common to all of the Band's claims in this case was the unlawful termination of the Band's federal status, it would appear incorrect to conclude that all claims resulting from the termination of the Band as a tribe, including the termination itself, would be unreviewable unless challenged within 6 years of the termination date.4 Although we concluded in the preceding discussion that the Band's claims with respect to Parcel 1 were barred by operation of the jurisdictional limitation set forth in section 2501, for present purposes, we assume that the unlawful termination of the Band's status could result in certain injuries which fall within the "continuing claim" doctrine, sufficient to remove claims for the resulting damages occurring within 6 years of the complaint from the bar of section 2501. See, e.g., Burich v. United States, 366 F.2d 984, 986-87, 177 Ct.Cl. 139 (1966) (discussing the doctrine as employed in pay cases), cert. denied, 389 U.S. 885, 88 S.Ct. 152, 19 L.Ed.2d 182 (1967); Friedman v. United States, 310 F.2d 381, 384-85, 159 Ct.Cl. 1 (1962) (where payments are to be made periodically, each successive failure to pay gives rise to a new cause of action, even where the grounds or basis for the refusal to pay took place or were enacted more than 6 years prior to the action), cert. denied, Lipp v. United States, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963).
25
The rationale underlying the "continuing claim" doctrine, as its application was outlined in Burich and Friedman, is that it prevents the defendant from escaping all liability for its wrong and thus "acquiring a right" to continue its wrongdoing, while retaining intact the 6-year statute of limitations set forth by Congress in section 2501. See Mitchell v. United States, 10 Cl.Ct. 787, 788 (1986), modifying, 10 Cl.Ct. 63 (1986). In Duncan v. United States, 667 F.2d 36, 48, 229 Ct.Cl. 120 (1981), cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983), one of our predecessor courts ruled that the wrongful termination of an Indian tribe's federal tribal status could give rise to a monetary claim for lost benefits against the government if, apart from the illegal termination, the tribe could sue for an arbitrary or unlawful denial of such benefits. Assuming, without so deciding, that the statutory source of benefits identified by the Band, the Indian Self-Determination and Education Assistance Act, Secs. 102-104, 25 U.S.C. Secs. 450f, 450g, 450h (1982), would mandate the payment of money to eligible Indian Tribes if arbitrarily denied,5 the denial of benefits to the Band resulting from the improper termination of the Band's federal status as eligible Indians could result in damages which would periodically accrue for as long as the tribe's status remained unlawfully terminated. Thus, unlike the breach of trust associated with the sale of Parcel 1, the third count of the Band's complaint could be construed as presenting a damage claim where the doctrine could be applicable.
26
Thus, if the "continuing claim" doctrine were deemed applicable to the present facts, the Band's suit could be maintained as to those denied statutory benefits which the Band could have applied for within 6 years of the filing of its complaint of September 1986. However, the "continuing claim" doctrine could only have had possible application as long as the underlying wrong remained uncorrected. Here, the underlying wrong, the unlawful termination of the Band's tribal status, was corrected when the United States government resumed recognition of a government-to-government relationship with the Hopland Band in April 1980. At that time, the Band regained its eligibility for federal programs administered by the Bureau of Indian Affairs such as the Indian Self-Determination and Education Assistance Act. Therefore, April 1986 was necessarily the latest that a claim seeking recovery for any of the benefits that were wrongfully withheld by the government on the basis of the unlawful termination which ended in April 1980 could have been filed without being foreclosed by section 2501. Since the present complaint was filed on September 3, 1986, it was untimely.
27
Thus, although the analysis is somewhat different from that for the first two counts of the Band's complaint, we nevertheless must still reach the same conclusion with respect to the third count of the Band's complaint: the recovery of damages for statutory benefits wrongfully denied as a result of the wrongful termination of the Hopland Rancheria is time-barred under section 2501. Moreover, any statutory benefits which were not received by the Band in the period since April 1980 either were never applied for or were denied by the Secretary for reasons unrelated to the unlawful termination of the Band's eligibility; however, this court cannot reach such issues since the Band's complaint contained no allegations of an unlawful or arbitrary denial of statutory benefits for reasons unrelated to the unlawful termination of its federal status.
CONCLUSION
28
As all three counts of the Band's complaint are time-barred under 28 U.S.C. Sec. 2501, the Claims Court was correct in dismissing the Band's complaint. However, since compliance with section 2501 is necessary in order for the Claims Court to have jurisdiction of the complaint, we vacate the Claims Court decision and remand with instructions to dismiss for lack of jurisdiction under section 2501.
COSTS
29
Costs on appeal are assessed against the appellant, Hopland Band of Pomo Indians.
30
VACATED AND REMANDED WITH INSTRUCTIONS TO DISMISS FOR LACK OF JURISDICTION.
1
Included among the Hopland Rancheria properties was an unassigned or community-held parcel, referred to by the parties as Parcel 1, which contained approximately 1,440 acres of mountainous land. Parcel 1 was eventually sold to a hunting club for approximately $40,000 and the proceeds from the sale were equally divided among the eligible distributees, resulting in a payment of approximately $800 each
2
In a related case decided on the same record and reported at the same time, Daniels v. Andrus, the district court required the United States to conduct a referendum election to allow the resident Indians of the rancheria to decide whether the tribal water system should be returned to the United States as trustee, or retained by the Association which received title to the water system lands following the attempted termination of the rancheria. Id. at 61 & nn. 12-13
3
Section 2401(a) parallels the provisions of section 2501, and provides, in pertinent part, that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." In a setting similar to the present case, it has been observed that "there is certainly no distinction between the companion statutes of limitations found at section 2401(a) and section 2501." Walters v. Secretary of Defense, 725 F.2d 107, 114 (D.C.Cir.1983), reh'g denied, 737 F.2d 1038 (1984). Aware of no reason to disagree with that observation for the purposes of this case, we rely in the following discussion on cases construing both sections without further differentiation
4
We need not squarely address that issue because the government has conceded that the termination of the Hopland Rancheria was unlawful, and in fact did so more than 6 years after the termination occurred
5
See United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983) ("the claimant must demonstrate that the source of substantive law he relies upon ' "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." ' " (citations omitted))
|
295 B.R. 353 (2003)
In re Kari Ann PECK, Debtor.
Adrian Maaskant, Appellant,
v.
Kari Ann Peck, Appellee.
BAP No. EC-02-1600-RyBJ, Bankruptcy No. 01-11815-B-7, Adversary No. 01-01125-D.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted March 20, 2003.
Memorandum Filed May 6, 2003.
Opinion Filed July 10, 2003.
*354 *355 *356 Adrian Maaskant, Tehachapi, CA, Pro se Appellant.
Frank P. Samples, Bakersfield, CA, for Kari Ann Peck.
Before: RYAN, BRANDT and JURY,[1] Bankruptcy Judges.
*357 OPINION
RYAN, Bankruptcy Judge.
After Kari Ann Peck ("Debtor") filed a chapter 7[2] petition, Adrian Maaskant filed a complaint (the "Complaint") to declare a certain debt Debtor owed to him nondischargeable pursuant to § 523(a)(6).
After a trial, the bankruptcy court entered an order (the "Order") in favor of Debtor on the § 523(a)(6) claim. Maaskant then timely appealed.
We REVERSE and REMAND.
I. FACTS
From 1995 to 1999, Debtor rented property (the "Property") from Maaskant in Kern County, California, where she lived with her five children. On several occasions, Maaskant reduced or forgave portions of the rent when Debtor had financial difficulties.
Maaskant is a teacher in the Kern High School District. His wife, Ria Maaskant, is the principal of Monroe High School in the Tehachapi Unified School District. Because of his role as a teacher, Maaskant enjoys working with children. Occasionally, Maaskant took some of Debtor's children for ice cream and sailing trips to a local lake. During one summer prior to 1999, Maaskant took Kamira and Briona, Debtor's daughters, and Shayna Miller, the daughters' friend, to a local lake on a sailing trip.
In August 1999, Maaskant requested Debtor to leave the Property after she failed to pay rent for several months. Shortly prior to Debtor's eviction, she approached June Palmer, her neighbor, and asked Palmer's granddaughter to accuse Maaskant of child molestation. Debtor also told Palmer that she planned to have her children accuse Maaskant of molestation so that he would not remove her from the Property. Palmer's granddaughter refused to lie for Debtor. Subsequently, in December 1999, Debtor vacated the Property.
About two weeks after Debtor left the Property, she told Stephanie M. Corey, her former neighbor, that Maaskant molested Kamira during a sailing trip.[3] According to Mrs. Corey, Debtor indicated that "[Kamira] was up with her privates in [Maaskant's] face." Tr. of Proceedings (Oct. 17, 2002), at 45. After hearing about the molestation, Mrs. Corey mentioned it to William J. Corey, her husband.[4]
On the next day, Debtor returned to the Coreys' residence and told Mr. Corey about the alleged molestation. Further, Debtor told Mr. Corey that she would "get [Maaskant] back one way or another" for evicting her from the Property. Tr. of Proceedings (Oct. 17, 2002), at 59. Although Mr. Corey indicated that he did not believe Debtor's statement, he called Maaskant on the same day and told him about the molestation accusation. Mr. Corey did not disclose the accusation to anyone other than Maaskant.
Immediately, Maaskant and his wife went to the local sheriff's station to assert their innocence.[5] This apparently triggered *358 an investigation by the sheriff, who approached Debtor and asked her about the alleged child molestation. In response, Debtor filed a crime report with the Kern County Sheriff's Department, charging Maaskant for his lewd and lascivious acts. After the sheriff's investigation, no charges were brought against Maaskant.
Both Maaskant and his wife informed their employers of the molestation accusation. According to Maaskant, he wanted his colleagues at the Kern High School district office to know about the accusation before it became public. Likewise, Ria wanted to prepare her employer for the possible rumors that would reach the school district office.[6] Further, she felt a need to contradict the accusation because "it hits at the core of who [they] are as human being[s]." Tr. of Proceedings (Oct. 17, 2002), at 73.
In November 2000, Maaskant filed a state court complaint (the "State Action") against Debtor[7] for: (1) malicious prosecution of the molestation action; (2) slander regarding Maaskant's molestation of Kamira; (3) intentional infliction of emotional distress; and (4) breach of the rental agreement.[8] According to Maaskant, Debtor initiated the molestation action to retaliate after he removed Debtor from the Property.
In response, in March 2001, Debtor filed a chapter 7 petition. Maaskant was listed as one of two creditors in Debtor's schedules with an "unliquidated" and "disputed" claim of $130,000.[9]
Maaskant then filed the Complaint, alleging that Debtor made a false report to the sheriff that he had molested her daughter. Further, Maaskant claimed that Debtor slandered him by telling others in the neighborhood of the alleged molestation. As a result, Maaskant argued that his reputation was damaged, and he suffered emotional distress. Because Debtor caused a "willful and malicious injury" to Maaskant, he sought to declare a debt (the "Debt") that the court "may deem just and proper" nondischargeable pursuant to § 523(a)(6).
Debtor answered the Complaint by denying all accusations. According to Debtor, after Kamira told her about the molestation, she "reported to the Kern County Sheriff as required by law." Answer of Defendant (Jul. 16, 2001), at 1. Debtor claimed that she did not knowingly make a false report, nor did she intend to damage Maaskant's reputation or cause him emotional distress.
At trial, Debtor did not appear. Maaskant testified that he never touched Kamira sexually. After working in the school for thirty years, Maaskant indicated that he has never been accused of any improper sexual conduct with his students.
Maaskant also testified that he obtained Debtor's permission before taking Kamira on the sailing trip at issue. Further, after the alleged molestation occurred, Maaskant took Kamira on another sailing trip. *359 At no time prior to Debtor's eviction did she tell Maaskant to stop spending time with her children.
Although the bankruptcy court acknowledged that Maaskant's concerns were genuine, it did not find the accusation to be damaging because it "[did not] know why people would believe these things [the accusations]." Tr. of Proceedings (Oct. 18, 2002), at 80. In any event, the court indicated that it was simply "human nature in terms of willingness to gossip and willingness to think the worst of people without any credible support for it." Id. at 81.
The court also questioned the appropriateness of Maaskant's conduct:
Maybe it was inappropriate for a school teacher to be taking three young girls out unchaperoned on a boat. I don't know. That's something that's a matter of community observation and community consideration.
Id. at 81.
The court did not determine whether the molestation statement was false. Nonetheless, it found for Debtor on the § 523(a)(6) claim because it held that Debtor did not injure Maaskant:
The only direct testimony as to allegations is that [Debtor] made statements to Mrs. Corey and to Mr. Corey. There's no evidence that she made statements of specific conduct regarding [Maaskant] to anyone else, and [Debtor] didn't say what she observed, [Debtor] said what she was told. And unfortunately, we don't know if what she was told was the truth, if she was honestly told that. There has certainly been a suggestion that [Debtor] made it up. But I'm not able to find on the facts here that that [sic], in fact, is what happened.
I don't know what [Debtor's] purpose would have been in telling the neighbors next door. She apparently did make the statements to [the Coreys] . . . But that's the only evidence that there is against [Debtor] here, that she told two people.
. . . .
So what we have, essentially, is someone saying what someone told them, and then other people spreading that message.
Mr. Maaskant has said if he hadn't contacted the sheriff, it's possible they would not have known about it. . . .
. . . .
The main damage here both Mr. and Mrs. Corey, at least Mr. Corey, said they didn't believe at all what she said. They were concerned about the fact that she had said it to them. They didn't testify that she told them she was going to tell a lot of other people.
. . . .
Unfortunately, to the extent that this has affected Mr. Maaskant's reputation, it seems that the broadcast of this information really comes from Mr. Maaskant reporting it.
Again, I certainly understand the reaction of Mr. and Mrs. Maaskant, but I can't really make a finding, based on the evidence, that all of this was the work of [Debtor]. . . .
Tr. of Proceedings (Oct. 17, 2002), at 76-79.
After the court entered the Order, Maaskant timely appealed.[10]
*360 II. ISSUE
Whether the bankruptcy court erred in finding for Debtor on the § 523(a)(6) claim.
III. STANDARD OF REVIEW
"[W]e review de novo whether a particular type of debt is nondischargeable as a willful and malicious injury under § 523(a)(6)." Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa), 258 B.R. 192, 195 (9th Cir. BAP 2001).
We review the bankruptcy court's determinations of fact for clear error. See Graves v. Myrvang (In re Myrvang), 232 F.3d 1116, 1120 (9th Cir.2000).
IV. DISCUSSION
The Bankruptcy Court Erred in Finding For Debtor on the 523(a)(6) Claim.
The court found for Debtor on the issue of nondischargeability.[11] On appeal, Maaskant contends that the court erred because he was slandered by Debtor. Further, Maaskant claims that the court erred because it should have entered a "default judgment" against Debtor because she did not appear at trial.[12]
1. Default Judgment
Rule 7055 makes Federal Rule Civil Procedure ("FRCP") 55 applicable in bankruptcy cases. FRCP 55(b) provides for a default judgment:
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor. . . . If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. . . .
Fed. R. Civ. Proc. 55(b)(2).
Here, Maaskant did not apply for a default judgment before the bankruptcy court. Therefore, he is not entitled to one. See Fed. R. Civ. Proc. 55(b)(2). Further, this argument is waived because Maaskant did not raise the default issue before the court. See Holder v. Holder, 305 F.3d 854, 867 (9th Cir.2002) ("Arguments not asserted in the trial court are waived and will not be considered for the first time on appeal.").
2. Slander
An action for slander is to protect the personal reputation of the injured party. *361 See Polygram Records, Inc. v. Superior Court, 170 Cal.App.3d 543, 549, 216 Cal.Rptr. 252 (Cal.Ct.App.1985). California Civil Code ("CCC") § 46 defines slander as "a false and unprivileged publication, orally uttered . . . which: (1)[c]harges any person with crime, or with having been indicted, convicted, or punished for crime. . . ." Cal. Civ. Code § 46(1).[13]
"Words which fall within the purview of Civil Code section 46 are deemed to constitute slander per se," Albertini v. Schaefer, 97 Cal.App.3d 822, 829, 159 Cal.Rptr. 98 (Cal.Ct.App.1979), and "a cause of action for actual or compensatory damages is conclusively established." Clark v. McClurg, 215 Cal. 279, 284, 9 P.2d 505 (1932). Damage to one's reputation is also presumed from a false charge of a crime. See Allard v. Church of Scientology of California, 58 Cal.App.3d 439, 450, 129 Cal.Rptr. 797 (Cal.Ct.App.1976).
For purpose of the law of slander, "publication" does not require dissemination to a substantial number of individuals. Rather, it is sufficient that the slander "is communicated to a single individual other than the one defamed." Lundquist v. Reusser, 7 Cal.4th 1193, 1203, 31 Cal.Rptr.2d 776, 875 P.2d 1279 (1994) (citation omitted). Further, "[i]t is not necessary that anyone believe [the defamatory statement] to be true, since the fact that such words are in circulation at all concerning the plaintiff must be to some extent injurious to his reputation." Arno v. Stewart, 245 Cal.App.2d 955, 963, 54 Cal.Rptr. 392 (Cal.Ct.App.1966). Finally, "[w]hen one person repeats another's defamatory statement, he may be held liable for republishing the same . . . slander." Frommoethelydo v. Fire Ins. Exch., 42 Cal.3d 208, 217, 228 Cal.Rptr. 160, 721 P.2d 41 (1986); see also Khawar v. Globe Int'l, Inc., 19 Cal.4th 254, 268, 79 Cal.Rptr.2d 178, 965 P.2d 696 (1998).
Here, the court suggested that Debtor did not slander Maaskant because she disclosed the molestation statement only to the Coreys and that she merely repeated what Kamira told her. In addition, the court held that the "main damage" to Maaskant's case was the fact that the Coreys did not believe Debtor's statement.
As stated above, the molestation statement was slander if it was: (1) orally uttered; (2) unprivileged; (3) false; and (4) charged Maaskant with a crime. See Cal. Civ. Code § 46(1).
a. Oral Utterance
Clearly, Debtor orally uttered the molestation statement. Prior to her eviction, Debtor told Palmer of her intention to accuse Maaskant of child molestation. Then, after she was removed from the Property, Debtor told the Coreys that Maaksant molested Kamira. Finally, after the local sheriff approached Debtor, she charged Maaskant with child molestation.
b. Privileged Publication
CCC § 47 provides for a list of privileged publication:
A privileged publication . . . is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding; (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law. . . .
. . . .
*362 (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. . . .
(d)(1) By a fair and true report . . . of (A) a judicial, (B)legislative, or (C) or other public official proceeding. . . .
. . . .
(e) By a fair and true report of (1) the proceedings of a public meeting . . . or (2) the publication of the matter complained of was for the public benefit.
Cal. Civ. Code § 47(a)-(e).
"[C]ommunications designed to prompt a criminal prosecution directed to an official governmental agency empowered to commence criminal prosecutions are absolutely privileged as publications made in an official proceeding" under CCC § 47(b). Passman v. Torkan, 34 Cal.App.4th 607, 619, 40 Cal.Rptr.2d 291 (Cal.Ct.App.1995) (holding that the defendant's defamatory statements about the plaintiff to the district attorney's office was absolutely privileged); see also Hunsucker v. Sunnyvale Hilton Inn, 23 Cal.App.4th 1498, 1504, 28 Cal.Rptr.2d 722 (Cal.Ct.App.1994) (holding that the defendant's communication to the police was absolutely privileged). "The malice or malevolent purpose of the defamer is of no consequence if the [communication] is absolutely privileged." Lundquist, 7 Cal.4th at 1206 n. 12, 31 Cal.Rptr.2d 776, 875 P.2d 1279. (citation omitted).
Here, Debtor's report to the local sheriff about Maaskant's molestation was absolutely privileged under CCC § 47(b). See Hunsucker, 23 Cal.App.4th at 1504, 28 Cal.Rptr.2d 722. Debtor is immune even if she intentionally filed a false report with the sheriff. See Lundquist, 7 Cal.4th at 1206 n. 12, 31 Cal.Rptr.2d 776, 875 P.2d 1279.
However, Debtor's communications to the Coreys and Palmer were not privileged because they did not fit within a category under CCC § 47. See Cal. Civ. Code § 47(a)-(e). Debtor did not appear at trial, nor did she argue on appeal that her statement was privileged. Therefore, the issue is waived. See Brooks v. City of San Mateo, 229 F.3d 917, 922 n. 1 (9th Cir.2000) ("On appeal, arguments not raised by a party in its opening brief are deemed waived") (citation omitted).
c. Crime
California Penal Code § 288 provides that any lewd or lascivious acts involving children are criminal acts:
(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six or eight years.
Cal. Pen. Code § 288(a)
Therefore, child molestation is a crime in California. See Cal. Pen. Code § 288. Undisputedly, Kamira was under fourteen years old at the time of the alleged molestation.
As such, Debtor "charged Maaskant with a crime" when she told the Coreys about the alleged molestation. See Cal. Pen. Code § 288(a).
*363 d. Falsity of Debtor's Statement
Here, the court did not determine that the molestation statement was false. However, our review of the Record clearly indicates that the statement was false.
Initially, we note that Maaskant is prominent in his community. Maaskant is the president of a local political group called the "Concerned Citizens of Golden Hills." He is also a teacher who spends his career working with children. After thirty years of working in the school, he has never been accused of sexual molestation. Further, Maaskant has no criminal record.
Consistent with his role as a teacher, Maaskant enjoys working with children. According to him, he developed a positive friendship with Debtor's children. Debtor is a single mom living with five children. As a result, Maaskant found himself as a "father figure" to Debtor's children. Tr. of Proceedings (Oct. 17, 2002), at 35. Maaskant took the children for ice cream and let them play. He also helped Kamira develop an interest in reading by taking her to a bookstore and buying her a book. From time to time, he took Debtor's children for sailing trips.
Over the period of these outings, Debtor has never asked Maaskant to stop spending time with her children prior to her eviction in December 1999. Further, prior to December 1999, Debtor never even suggested that Maaskant's conduct was improper. In fact, Debtor permitted the sailing trip at issue.
Maaskant himself testified that he did not molest Kamira. According to Maaskant, Kamira never cried during their trips or asked to be taken back to Debtor. Rather, she "really enjoyed it thoroughly . . . [and] always wanted to extend the trip rather than shorten it." Tr. of Proceedings (Oct. 17, 2002), at 10.
The Record is also clear that when Debtor was requested to leave the Property in August 1999, she went to Palmer to have Palmer's granddaughter provide a false verification that molestation had occurred. Debtor also indicated that she planned to have her children accuse Maaskant of molestation so she could remain on the Property. It was only after Palmer's granddaughter refused to lie that Debtor told the Coreys about the molestation.
After learning about the accusation, Maaskant immediately reported to the local sheriff's station to assert his innocence. In light of the seriousness of the accusation, it was reasonable for Maaskant to contact the sheriff. In fact, the court found that Maaskant acted reasonably:
I can appreciate that, given the seriousness of this kind of a charge and the impact it can have on someone's career that works with children, that it may have been appropriate for [Maaskant] to [contact the sheriff].
Tr. of Proceedings (Oct. 17, 2002), at 77.
Viewing all the evidence before us, we can only conclude that the molestation statement was false.[14] Debtor did not appear *364 at trial to rebut Maaskant's denials of the veracity of the molestation statement. Therefore, there is no evidence in the Record to show that the molestation statement is true.
Accordingly, because all the elements of CCC § 46 are satisfied, Debtor slandered Maaskant when she told the Coreys about the molestation.
The fact that the statement was communicated only to the Coreys does not change the outcome. See Lundquist, 7 Cal.4th at 1203, 31 Cal.Rptr.2d 776, 875 P.2d 1279. Even assuming that Kamira made the false accusation to Debtor, the republishing of the false accusation by Debtor is enough to constitute slander. See Khawar, 19 Cal.4th at 268, 79 Cal.Rptr.2d 178, 965 P.2d 696. Finally, the court erred because it was not necessary for the Coreys to believe Debtor's statement for there to be slander. This is because "the fact that such words are in circulation at all concerning [Maaskant] must be to some extent injurious to his reputation." Arno, 245 Cal.App.2d at 963, 54 Cal.Rptr. 392.
As discussed above, Debtor slandered Maaskant when she told the Coreys about the molestation. Therefore, the court erred in not finding the molestation statement slanderous.
3. 11 U.S.C. § 523(a)(6)
Section 523(a)(6) excepts from discharge a debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6).
A willful injury under § 523(a)(6) requires a "deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). "[T]he (a)(6) formulation triggers in the lawyer's mind the category `intentional torts,' as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend `the consequences of an act,' not simply `the act itself.'" Id. at 61-62, 118 S.Ct. 974 (emphasis and citation omitted).
In Petralia v. Jercich (In re Jercich), 238 F.3d 1202 (9th Cir.2001), the plaintiff was employed by a real estate company owned by the debtor. The plaintiff was not promptly paid his salary or commissions. He then sued the debtor in state court and obtained a judgment. After the debtor filed a chapter 7 petition, the plaintiff brought a dischargeability action under § 523(a)(6). The bankruptcy court held that the debt was dischargeable because there had been no finding by the state court that the debtor acted with a specific intent to injure the plaintiff. On appeal, we affirmed on other grounds. Id. at 1204.
On further appeal, the Ninth Circuit reversed, holding the debt nondischargeable. Id. at 1209. In so doing, the Jercich court held that "the willful injury requirement of § 523(a)(6) is met when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct." Id. at 1208.
In Carrillo v. Su (In re Su), 290 F.3d 1140 (9th Cir.2002), the Ninth Circuit reaffirmed Jercich and held that the willful injury requirement under § 523(a)(6) is met "only when the debtor has a subjective motive to inflict injury or when the debtor believes that injury is substantially certain to result from his own conduct." Id. at 1142. "The subjective standard correctly focuses on the debtor's state of mind and precludes application of § 523(a)(6)'s nondischargeability provision short of the debtor's actual knowledge that harm to the *365 creditor was substantially certain." Id. at 1146.
The Ninth Circuit also held that the malicious prong was separate and distinct from the willful prong of § 523(a)(6). "A malicious injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." Jercich, 238 F.3d at 1209 (citations and internal quotation marks omitted).
Here, the court found for Debtor on the § 523(a)(6) claim because it held that Debtor did not injure Maaskant. To the contrary, the court found that Maaskant caused his own injury: "to the extent that [the molestation accusation] has affected Mr. Maaskant's reputation, it seems that the broadcast of this information really comes from Mr. Maaskant reporting it." Tr. of Proceedings (Oct. 18, 2002), at 78. We disagree.
As discussed above, Debtor slandered Maaskant through her molestation accusation. Because Debtor falsely charged Maaskant with a crime of child molestation, the statement is slander per se. See Albertini, 97 Cal.App.3d at 829, 159 Cal.Rptr. 98. Therefore, injury to Maaskant's reputation is presumed. See Allard, 58 Cal.App.3d at 450, 129 Cal.Rptr. 797. Accordingly, the court clearly erred in finding that Debtor did not injure Maaskant.
The remaining issue is whether Debtor "willfully and maliciously" injured Maaskant within the meaning of § 523(a)(6). See Su, 290 F.3d at 1142.
a. Willful Injury
During trial, Mrs. Corey testified that Debtor told her about the molestation after Debtor heard it from Kamira. This factor, if true, would support a lack of subjective intent on Debtor's part to injure Maaskant because she was merely repeating what she was told. However, according to Palmer, Debtor wanted her granddaughter and Debtor's children to accuse Maaskant of molestation so that she could remain in the Property. This would indicate that Debtor knew of the falsity of the molestation accusation. In addition, Mr. Corey testified that Debtor said that "she'll get [Maaskant] back one way or another" for evicting her from the Property. Tr. of Proceedings (Oct. 18, 2002), at 59. This testimony supports a finding that Debtor subjectively intended to injure Maaskant in order to "get back" at him for removing her from the Property.
Debtor did not appear at trial to rebut this evidence. Therefore, there is no evidence in the Record to offset Debtor's intention to harm Maaskant.
Further, the court found the witnesses' testimony to be credible.[15] As a result, based on the evidence before us, the court erred in not finding that Debtor intentionally slandered Maaskant. Accordingly, Debtor willfully injured Maaskant within the meaning of § 523(a)(6). See Su, 290 F.3d at 1143.
b. Malicious Injury
Similarly, the Record reveals that Debtor acted maliciously within the meaning of § 523(a)(6). As stated above, Debtor subjectively intended to slander Maaskant with the molestation accusation. Because of the seriousness of the crime, the accusation would "necessarily cause[ ] injury" to Debtor. See Jercich, 238 F.3d at 1209. This is especially true because Maaskant is a teacher whose career is working with children. In fact, we presume that Maaskant suffered damage to *366 his reputation. See Allard, 58 Cal.App.3d at 450, 129 Cal.Rptr. 797. On appeal, Debtor did not provide any legitimate reason for slandering Maaskant. Therefore, Debtor acted maliciously within the meaning of § 523(a)(6). See Jercich, 238 F.3d at 1209.
Because Debtor acted both willfully and maliciously, the court erred in finding for Debtor on the § 523(a)(6) claim.
4. Damages
Maaskant requested in the Complaint for "all relief the Court deem [sic] just and proper." Complaint to Determine Dischargeability of Debt (May 24, 2002), at 3. To the extent Maaskant based his § 523(a)(6) claim on a slander action, we will liberally construe the Complaint to provide Maaskant with all damages that flow from it.
As discussed above, actual or compensatory damages are presumed in matters of slander per se. See Clark, 215 Cal. at 284, 9 P.2d 505. Actual damages are "compensatory damages [that] include nonquantifiable general damages for emotional distress and pecuniarily measurable special damages for out-of-pocket losses." Konig v. Fair Employment and Housing Comm'n, 28 Cal.4th 743, 748, 123 Cal.Rptr.2d 1, 50 P.3d 718 (2002) (citation omitted).
a. Out-of-Pocket Losses
During trial, Maaskant indicated that after he learned about the molestation accusation, he hired an attorney and a private investigator to investigate the slander action. As a result, Maaskant incurred attorney's fees.
b. Emotional Distress Damages
Once slander per se is established, a plaintiff is entitled to "damages for injury to his feelings, including mental worry, distress, grief, and mortification." Douglas v. Janis, 43 Cal.App.3d 931, 940, 118 Cal.Rptr. 280 (Cal.Ct.App.1974) (citation omitted). However, while emotional distress should be taken into account in determining damages in a slander cause of action, "it does not give rise to an independent cause of action on the theory of a separate tort." Grimes v. Carter, 241 Cal.App.2d 694, 702, 50 Cal.Rptr. 808 (Cal.Ct.App.1966).
Under California law, the elements of the tort of intentional infliction of emotional distress are:
(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.
Christensen v. Superior Court, 54 Cal.3d 868, 903, 2 Cal.Rptr.2d 79, 820 P.2d 181 (1991) (citation omitted). Conduct is deemed to be outrageous if it is "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id. (citation omitted).
Here, Debtor willfully and maliciously intended to slander Maaskant with a charge of child molestation. This is outrageous conduct because Debtor completely disregarded the fact that it would be extremely devastating to charge someone like Maaskant for child molestation when he spends his entire career working with children. As such, the conduct is "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id. Because of the seriousness of the crime, Debtor acted with reckless disregard of the probability of causing emotional *367 distress to Maaskant when she falsely charged Maaskant with child molestation.
The Record is also clear that Debtor's conduct caused Maaskant significant distress. For example, Maaskant testified that, as a result of the accusation, he became "very uncomfortable with having individual students in [his] classroom." Tr. of Proceedings (Oct. 17, 2002), at 24. Maaskant also indicated that he "shed many tears" and that the experience was "painful." Id. at 26. Further, Maaskant testified that he was afraid that "[the] accusation could affect [his] license to carry on [his] profession." Id. at 25.
Maaskant also testified that he "made it a point to become far less public" because he "felt that the embarrassment and shame and humiliation of [the] accusation would travel around [the community]." Tr. of Proceedings (Oct. 18, 2002), at 23; see also Tr. of Proceedings (May 23, 2002), at 8. In fact, Maaskant felt that he lost standing with some members in his local community after the accusation had spread.[16] Nonetheless, the court did not make a finding on the severity or extremity of Maaskant's distress.
V. CONCLUSION
The bankruptcy court erred in finding for Debtor on the § 523(a)(6) claim. The Debt is nondischargeable, and we remand to the court and leave to its discretion whether to hear evidence on damages or relegate the parties to the State Action for that determination.
REVERSED and REMANDED.
NOTES
[1] Hon. Meredith A. Jury, Bankruptcy Judge for the Central District of California, sitting by designation.
[2] Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330 and to the Federal Rules of Bankruptcy Procedure, Rules XXXX-XXXX.
[3] Debtor told Mrs. Corey that she did not witness the molestation herself. Rather, Kamira "had finally come out and told her." Tr. of Proceedings (Oct. 17, 2002), at 48.
[4] Unless otherwise indicated, Stephanie and William Corey will be collectively referred to as the "Coreys."
[5] According to Maaskant, he went to the sheriff's station because he thought that Debtor had already filed molestation charges against him. However, no report had been filed against Maaskant at that time.
[6] In fact, Ria indicated that Briona was a student at her school, and Briona had spread the accusation to at least one truant officer of the school.
[7] Maaskant also filed the state complaint against Kamira and Jerry Baird, Debtor's former husband, who was present at the time Debtor told Mrs. Corey about the alleged molestation.
[8] It is unclear from the appellate record ("Record") whether Debtor filed an answer to the state complaint.
[9] It is unclear from the Record how Debtor determined the $130,000 amount.
[10] Maaskant did not proceed in the State Action against Debtor after she filed the chapter 7 petition. As a result, Debtor requested that Maaskant dismiss the State Action or otherwise she would file a § 524 action against him. Thereafter, in February 2003, Maaskant filed a second emergency motion for a stay pending appeal, which we granted.
[11] In the Order, the court did not explicitly hold that the Debt was dischargeable. Rather, it stated that it "render[ed] judgment in favor of [Debtor]" in the Complaint to determine dischargeability of debt. Civil Minute Order (Oct. 18, 2002), at 1. Because dischargeability of the Debt was the only issue in the Complaint, the court must necessarily have concluded that the Debt was dischargeable.
[12] On appeal, Maaskant further argues that Judge Dorian "formed his ruling before the trial took place. . . ." Appellant's Opening Brief (Jan. 22, 2003), at 38. We reject this argument because there is nothing in the Record to support Maaskant's contention. Further, Maaskant has not provided us with any basis for his argument.
In addition, Maaskant contends that the court "criticiz[ed] [him] for not presenting as evidence the Deposition of [Debtor]." Id. at 41. We also reject Maaskant's contention because the Record is clear that the court did not criticize Maaskant for his failure to provide Debtor's deposition. It merely stated:
I don't know if you made some reference to a deposition of [Debtor] and none of that was used here. I don't know if that was a deposition in this case or in some other matter.
Tr. of Proceedings (Oct. 17, 2002), at 76.
[13] We discuss California law because the alleged slander occurred in California. See Del Bino v. Bailey (In re Bailey), 197 F.3d 997, 1000 (9th Cir.1999).
[14] On appeal, Maaskant attached to his reply brief a deposition of Richard C. Wood, who is the deputy sheriff of Kern County. According to Wood, Kamira eventually admitted that Maaskant did not molest her. Kamira also admitted that she fabricated the accusation herself because "she believed it would help her family [from being evicted] at that time." Deposition of Richard C. Wood (Dec. 18, 2001), at 7-8.
However, because this was not presented at trial, we cannot consider this evidence. See Harkins Amusement Enters. Inc. v. General Cinema Corp., 850 F.2d 477, 482 (9th Cir.1988) (stating that an appellate court is limited to the record presented before a trial court).
[15] On appeal, Debtor did not object to the witnesses' credibility. Therefore, the issue is waived. See Brooks, 229 F.3d at 922 n. 1 (9th Cir.2000).
[16] According to Maaskant, he went to lunch with a colleague, and a man in the restaurant stared at Maaskant and "look[ed] like he [was] angry with [him]." Tr. of Proceedings (Oct. 17, 2002), at 27. It turned out that the man was the vice principal of another local high school in Maaskant's neighborhood. Maaskant felt that the man looked at him angrily because of the molestation rumors.
|
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-2534 & 19-3269
DENEAN ADAMS,
Plaintiff-Appellee, Cross-Appellant,
v.
BOARD OF EDUCATION OF HARVEY SCHOOL DISTRICT 152, et al.,
Defendants-Appellants, Cross-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CV 8144 — Sharon Johnson Coleman, Judge.
____________________
ARGUED JUNE 4, 2020 — DECIDED AUGUST 3, 2020
____________________
Before SYKES, Chief Judge, and EASTERBROOK and BARRETT,
Circuit Judges.
EASTERBROOK, Circuit Judge. Denean Adams was superin-
tendent of the Harvey, Illinois, public schools from July 2013
through June 2016. Her tenure ended unhappily: in July 2015
the Board of Education revoked an offer to extend her three-
year contract; later that educational year it blocked her email
account and tried to pretend that she did not exist. Indeed,
the Board told state education officials in spring 2016 that
2 Nos. 19-2534 & 19-3269
she was no longer superintendent. These and related events
put her under a lot of stress. She took medical leave in
March 2016 and never returned to work. But she did file this
suit under 42 U.S.C. §1983. A jury awarded $400,000 in dam-
ages after concluding that the Board and its members had
violated the First Amendment (applied to the states through
the Fourteenth). The district court declined to set aside that
award, see 2019 U.S. Dist. LEXIS 117428 (N.D. Ill. July 15,
2019), and added about $190,000 in aiorneys’ fees. 2019 U.S.
Dist. LEXIS 122282 (N.D. Ill. July 23, 2019). Both sides have
appealed.
Adams’s problems began in spring 2015, when she asked
the Board to approve a forensic audit of the District’s ex-
penditures. The Board allowed Adams to ask auditing firms
to propose the scope and cost of work (this is called a “re-
quest for proposals” in government procurement). But the
afternoon of July 9, after Adams submiied the paperwork to
the Board, member Tyrone Rogers called her on her District-
issued cell phone and said that she was “itching for an ass-
kicking”. (So Adams testified, and given the jury’s verdict
we must accept her account.) Someone called the police, and
a detective met with Adams in her office on July 10 to dis-
cuss the report. Adams discussed the subject with the
Board’s president and later filed a formal complaint with the
police. (The parties disagree about how the subject initially
came to the aiention of the police.) Janet Rogers, another
member of the Board (and Tyrone’s wife), also came to Ad-
ams’s office on July 10 and stated that she had some con-
cerns about Adams’s performance as superintendent. By the
Board’s July 22 meeting relations between Adams and the
Board had soured and a contract extension was off the table.
In December 2015 Adams suspended the District’s business
Nos. 19-2534 & 19-3269 3
manager for financial irregularities. That was apparently the
last straw. Later that month the Board served Adams with a
notice that her contract would not be renewed and, though it
did not fire her, began to bypass her whenever possible.
Adams asks us to dismiss the Board’s appeal for lack of
jurisdiction. The judgment was entered on November 6,
2018, and on December 4 the Board filed a motion seeking
relief under Fed. R. Civ. P. 50 and 59. (The Board filed two
documents, one captioned with each rule, but this was effec-
tively one motion relying on two rules, and the district court
so treated it.) The district court denied the motion on July 15,
2019, and the Board appealed on August 8. No problem so
far. But Adams contends that the December 4 motion re-
hashed arguments that the Board had made, and the district
judge had rejected, earlier. That makes it equivalent to a se-
quential post-judgment motion, according to Adams—and
because only one post-judgment motion extends the time for
appeal under Fed. R. App. P. 4(a)(4)(A), see Charles v. Daley,
799 F.2d 343 (7th Cir. 1986), Adams contends that the appeal
of August 8 is late and must be dismissed.
This argument misunderstands the point of decisions
such as Charles, which dealt with successive post-judgment
motions. The Board is not seeking multiple delays of the
time to appeal. That another Rule 50 motion had been filed
and denied before the entry of final judgment does not affect
the calculation of time under Rule 4(a)(4), which deals with
post-judgment motions. A motion to reconsider under Rule
59 is—well, there’s no beier name than a motion to reconsid-
er. A litigant is entitled to ask a court to change decisions
that influenced the judgment. It is new arguments that get a
litigant into trouble, for those have been waived or forfeited;
4 Nos. 19-2534 & 19-3269
repeating old arguments is a standard practice, part of what
the Supreme Court recently called a unitary process to pro-
duce one complete and correct adjudication. Banister v. Da-
vis, 140 S. Ct. 1698 (2020). That a given district judge tele-
graphed a disposition to deny such a post-judgment motion
does not affect appellate jurisdiction; litigants are entitled to
ask judges to change their minds.
The Board’s principal argument on the merits is that a
report to the police is a personal grievance, not a maier of
public concern, and therefore falls outside the scope of the
First Amendment. That personal grievances are the subject
of state law (torts and contracts) rather than the First
Amendment is well established. See, e.g., Connick v. Myers,
461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S.
563 (1968). Yet the district court did not rule otherwise.
Suppose we look at the police report in isolation. This
was not a straightforward report of crime—for example, no-
tice of a burglary or robbery. It was a report by the superin-
tendent of a school district that she had been threatened
with violence by a member of the school board. The mem-
bers are elected officials, whose constituents could be influ-
enced by news that one of their representatives proposed to
substitute violence for the normal process of voting. And a
potential for physical altercations between public officials
(the superintendent and an elected member) implies that an
important public institution was not working properly. This
is a legitimate subject of public concern. Cf. Chrzanowski v.
Bianchi, 725 F.3d 734 (7th Cir. 2013) (testimony in a civil or
criminal case, or grand jury investigation, is protected
speech).
Nos. 19-2534 & 19-3269 5
More: it would be a mistake to look at the police report in
isolation. The problem began when Adams proposed a fo-
rensic audit, as Adams told the police. The very idea of such
an audit seems to have unseiled at least one member of the
Board, who wanted the audit’s proponent gone (or the pro-
posal withdrawn) before anyone could delve deeply into the
school district’s finances. This led to a dispute about the su-
perintendent’s tenure and to what a reasonable observer
could understand as the superintendent’s constructive dis-
charge before her contractual term ended. All of these are
subjects of public interest. When the superintendent sus-
pended the business manager, the gap between superinten-
dent and Board became unbridgeable. Parents and others
who vote for members of school boards need to know how
their institutions are working. The police report, and the
controversy within the Board more generally, readily could
have affected the outcome of elections as well as the daily
management of the school system.
The link between the potential audit and the threat was
reported to the police. If this means that Adams had a mixed
motive—personal in part and professional in part—that does
not render her speech unprotected. See, e.g., Kristofek v. Or-
land Hills, 712 F.3d 979, 984 (7th Cir. 2013). It is not enough
that the public have some interest—many a newspaper has
been sold by exposing private maiers to an inquisitive pub-
lic. Instead the question is whether the speech concerns pub-
lic affairs as Connick understands the public/private distinc-
tion. That the detective recalls the report differently from
Adams does not take it outside the scope of the First
Amendment. They agree that the report mentioned the audit
as well as the threat; that’s enough to put her speech on the
public-concern side of Connick’s line.
6 Nos. 19-2534 & 19-3269
The best contrary argument for the Board is not that the
public is unconcerned about such maiers, but that every-
thing (except the police report) concerned the litigants’ offi-
cial duties. GarceFi v. Ceballos, 547 U.S. 410 (2006), holds that
the First Amendment does not regulate how public employ-
ers manage their workforces, even when that management
involves telling others what to say or avoid saying. Words
said, or omiied, as part of official duties are the subject of
state rather than federal law under Ceballos. Almost every-
thing that happened in this dispute is on-the-job speech
within the scope of the superintendent’s and members’ du-
ties. But the Board did not press in the district court any ar-
gument under Ceballos, and its opening brief on appeal does
not even cite that decision. The Board’s reply brief does rely
on it, but that’s too late. Litigants must present their argu-
ments in their opening briefs, so that the other side can re-
ply. We put Ceballos to one side.
Our conclusion that Adams’s speech is within the scope
of the First Amendment means that the evidence presented a
jury question about whether her statements caused the end
of her employment. The record permiied a reasonable jury
to find that they did. Likewise a reasonable jury could con-
clude that an ordinary employee in Adams’s position would
be deterred from speaking by the prospect of losing her job.
The Board’s other arguments are feeble. It contends, for
example, that Adams lacks a good claim because the pro-
posal to extend her contract through June 2017 was properly
rescinded (or never properly made in the first place). But the
jury did not award damages under a contract theory, nor did
the district judge permit the jury to consider Adams’s con-
tention (under the Due Process Clause of the Fourteenth
Nos. 19-2534 & 19-3269 7
Amendment) that the Board should have offered a hearing
before rescinding the proposed contract extension. The jury
was permiied to consider the possibility that Adams would
have remained on the job longer had she kept silent, but that
concerns damages on her First Amendment theory. Damages
for a violation of the First Amendment are not limited by the
duration of contracts.
The Board also asserts that the award of $400,000 is ex-
cessive, but our standard of review is highly deferential to
the jury’s evaluation. The district judge explained why this
award is similar to those in other, comparable cases. No
more need be said.
This brings us to Adams’s cross-appeal, which concerns
the award of aiorneys’ fees under 42 U.S.C. §1988. The dis-
trict court determined the number of hours that counsel
properly devoted to the claims on which Adams prevailed
(she lost on several claims against all defendants and lost
outright against some defendants) and multiplied this by the
hourly rate for the services of Jerome M. Davis, who repre-
sented her. Davis told the judge that he has charged some
paying clients as much as $265 per hour, but he asked for
what he called an “enhancement” to $550 to reflect the risk
of loss. Multiplying $550 by the number of hours Davis said
he devoted to the case produced roughly $550,000. The
judge awarded some $190,000, derived from multiplying
$265 per hour by a smaller base of compensable hours. Ad-
ams contends in the cross-appeal that Davis should have re-
ceived credit for more hours and a rate of at least $385 per
hour, plus a 25% bonus, for a total of roughly $485,000.
Only a few words are necessary to dispose of this out-
landish request—outlandish because the request for two en-
8 Nos. 19-2534 & 19-3269
hancements (a higher hourly rate and a bonus) contradicts
the Supreme Court’s ruling that enhancements are not per-
miied under fee-shifting statutes. See Burlington v. Dague,
505 U.S. 557 (1992). They may be appropriate in common-
fund cases, in which the fee comes out of the prevailing
side’s winnings, but are forbidden when the defendant pays.
The district court thought it a stretch to award even $265 per
hour, given the weakness of the evidence supporting that
rate for Davis’s time; the judge did not abuse her discretion
or commit a legal error in declining to award more. Nor did
the judge abuse her discretion or make a clearly erroneous
finding in counting the number of hours reasonably devoted
to pursuing the claims on which Adams prevailed.
AFFIRMED
|
United States Court of Appeals
For the First Circuit
No. 15-1520
JOHN FANNING,
Petitioner,
v.
FEDERAL TRADE COMMISSION,
Respondent.
ERRATA SHEET
The opinion of this Court issued on May 9, 2016, is amended
as follows:
On page 3, line 17, "profiles" is replaced with "profile"
On page 5, line 12, "inference" is replaced with "inferences"
On page 9, line 13, "profiles" is replaced with "profile"
|
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 286 WAL 2018
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
KEITH WRIGHT, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 5th day of December, 2018, the Petition for Allowance of Appeal
is DENIED.
Justice Wecht did not participate in the consideration or decision of this matter.
|
544 U.S. 1002
ELLISv.EMERY, TRUSTEE, ET AL.
No. 04-8778.
Supreme Court of United States.
April 25, 2005.
1
C. A. 9th Cir. Certiorari denied. Reported below: 109 Fed. Appx. 153.
|
982 F.2d 530
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Franklin D. THOMAS, Plaintiff-Appellant,v.Shirley TURNER, Supervisor; Leon Moore, Coordinator,Defendants-Appellees.
No. 92-7046.
United States Court of Appeals, Tenth Circuit.
Dec. 10, 1992.
Before SEYMOUR, STEPHEN H. ANDERSON and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT*
SEYMOUR, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
2
Franklin D. Thomas, a pro se prisoner, brought this action under 42 U.S.C. § 1983 (1988) against Shirley Turner. Turner, an employee of the Oklahoma Department of Corrections, supervised the prison box factory at which Thomas was employed. Thomas alleged that Turner and her supervisor, Leon Moore, fired Thomas from his job as lead man in the box factory in retaliation for a grievance against Turner that Thomas had filed eight days earlier with prison administrators. The district court dismissed the case as frivolous under 28 U.S.C. § 1915(d) (1988). Thomas appeals and we reverse.
3
A pro se prisoner's complaint may be dismissed as patently frivolous or malicious under section 1915(d) if it is based on an indisputably meritless legal theory or on clearly baseless factual contentions. See Northington v. Jackson, No. 92-1068, 1992 WL 194965, at * 1 (10th Cir. Aug. 17, 1992). Factual allegations are clearly baseless if they are "fantastic" or "delusional" when weighed most favorably to the plaintiff. Id. The district court's dismissal here under section 1915(d) was based on the court's conclusion that the complaint lacked an arguable basis either in law or fact. See rec., doc. 14, at 2. We must disagree.
4
The complaint and record, read most favorably to Thomas, allege that he filed an administrative grievance against Turner asserting that she had made untrue statements to other inmates about Thomas that placed him in fear of harm from those inmates. Thomas further alleged that shortly after he filed the grievance and because of it, Turner fired Thomas from his job as lead man at the prison box factory Turner supervised. Although Thomas alleged he was reinstated after five months, he allegedly was not given back his position as lead man nor did he receive back pay. These allegations, taken as true, create the inference of a constitutional deprivation remediable under section 1983. In Williams v. Meese, 926 F.2d 994 (10th Cir.1991), this court reversed the Rule 12(b)(6) dismissal of a pro se prisoner's claim "that he was denied particular job assignments or was transferred from one job to another in retaliation for filing administrative grievances." Id. at 998. We pointed out that "although plaintiff has no right to a job or to any particular assignment, prison officials cannot punish plaintiff for exercising his first amendment rights by denying him certain job assignments or transferring him from one job to another." Id; see also Wright v. Newsome, 795 F.2d 964, 968 (11th Cir.1986) (action taken in retaliation for inmate's filing of administrative grievance violates inmate's first amendment rights); cf. Smith v. Maschner, 899 F.2d 940, 947-48 (10th Cir.1990) (prison officials may not retaliate against inmate for exercising right of access to the courts). Thomas's legal theory is thus not indisputably meritless.
5
Moreover, the factual allegations upon which the claim is grounded are neither fantastic nor delusional. In rejecting the allegations as conclusory, the district court erred by using the standards applicable to a Rule 12(b)(6) motion to evaluate the propriety of dismissal under section 1915(d). See Neitzke v. Williams, 490 U.S. 319 (1989); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). "A plausible factual allegation, even if it lacks evidentiary support, is not 'frivolous' as contemplated by § 1915(d)...." Hall, 935 F.2d at 1109 (emphasis added).
6
Accordingly, we grant Thomas leave to proceed informa pauperis. We reverse the dismissal under section 1915(d) and remand for further proceedings.
*
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
|
295 S.E.2d 375 (1982)
STATE of North Carolina
v.
Henry WEAVER.
No. 24A81.
Supreme Court of North Carolina.
October 5, 1982.
*376 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Nonnie F. Midgette, Raleigh, for the State.
Appellate Defender Adam Stein and Ann Petersen, Raleigh, admitted pro hac vice, for defendant-appellant.
CARLTON, Justice.
The primary question on this appeal is whether the offenses of taking indecent liberties with a child under the age of sixteen, G.S. 14-202.1 (1981); assaulting a child under the age of twelve, G.S. 14-33(b)(3) (1981); and assault on a female by a male over the age of eighteen, G.S. 14-33(b)(2) (1981), are lesser included offenses of first-degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1) (1981).
I.
Evidence for the State tended to show that Cassandra Westbrook was eleven years old on 16 April 1980. Defendant, about 48 years of age, was the father of Cassandra's half-brother. On 16 April 1980, defendant, Cassandra's aunt Martha Brown, Cassandra and two other children went downtown to look for an inner tube for a bicycle tire. Cassandra gave the following testimony at trial. Defendant led Cassandra through town to the end of a dead-end street, telling her he knew a place where they could get a tire. He led her through a wooded area to a creek. There defendant choked her, threatened her with a knife, and struck her in the face. He told her to take down her pants; she complied. Cassandra also testified that defendant then "put his privates against mine. When I say privates I mean his penis." Cassandra then pulled up her pants and the two prepared to leave. Defendant pulled her pants down again and repeated the act described above. Cassandra testified, "He put his private parts inside me halfway." He also "put his mouth to my private parts." Defendant then made her put her mouth to his penis and told her to open her shirt. When she did not do so he ripped her shirt and brassiere. He put his mouth on her breast. He then wiped Cassandra with a white, brown and orange rag he had brought along. He told Cassandra that if she told her mother about the incident, he would kill her and her mother.
Defendant and Cassandra then returned to town where defendant bought Cassandra new clothes. She changed into the new clothes in the rest room of the Krispy Kreme shop where defendant worked. Defendant made three phone calls, one of which was to Cassandra's aunt, Martha Brown, who came to the doughnut shop to pick up Cassandra.
*377 Cassandra's mother, Peggy Westbrook, testified that when she questioned Cassandra upon her arrival home, Cassandra denied that anything was wrong. Later, according to Ms. Westbrook, Cassandra began to have nightmares and do poorly in school. Cassandra's teacher called from school to say that Cassandra's grades were dropping. At the end of May 1980, Cassandra told her mother "a little bit about what happened." Ms. Westbrook testified, "She said he put his mouth on her, made her put her mouth on him and he put it in." Ms. Westbrook called the police.
The investigating officer, Sylvia Williamson, testified that Cassandra showed her the place where the alleged assaults occurred. They found the towel which Cassandra identified in court as similar to the one defendant used on the occasion in question. Ms. Williamson said Cassandra told her that defendant put his penis in her private area and "stroked." He also made her perform oral sex on him.
At the close of the State's evidence, the State and defendant stipulated that a crime laboratory examination of the towel failed to reveal the presence of hair or sperm.
A specialist in obstetrics and gynecology testified for defendant that he examined Cassandra some six weeks after the incident. He found no evidence of trauma to her genitals. He also testified that Cassandra told him defendant's penis had not been inserted into her vagina, mouth or rectum. On cross-examination Cassandra testified she had told the doctor this because she was embarrassed.
On Friday, the day scheduled for final arguments, defendant's lead counsel was not present in court because he had a family medical emergency. The trial court denied defendant's motion to continue the case until the following Monday. The court did recess until 2 p. m. in order to give defendant's assisting counsel, Ms. Isabell Day, time to prepare her closing argument. Although Ms. Day had been present throughout the trial, she told the court, "I have never had a jury trial before. This is my first time in front of the jury, my first examination of a witness in front of a jury, and I have never argued to a jury before." Ms. Day made the closing argument.
Defendant requested the court to instruct the jury on the offenses of assault on a female, assault on a child under twelve years of age, and taking indecent liberties with a child. The court instructed only on first-degree rape and attempted first-degree rape.
The jury convicted defendant of first-degree rape and he was sentenced to life imprisonment. He appeals the life sentence to this Court as a matter of right.
II.
Before this Court, defendant contends that the trial court erred in failing to instruct the jury on the offenses of taking indecent liberties with a child under the age of sixteen, G.S. 14-202.1 (1981); assaulting a child under the age of twelve, G.S. 14-33(b)(3) (1981); and assault on a female by a male over the age of eighteen, G.S. 14-33(b)(2) (1981)offenses defendant argues are lesser included offenses of first-degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1) (1981). We hold that these offenses are not, as a matter of law, lesser included offenses of first-degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1) (1981).
The well-established rule in this jurisdiction is:
When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding a defendant guilty of a higher degree of the same crime.
*378 State v. Banks, 295 N.C. 399, 415-16, 245 S.E.2d 743, 754 (1978) (quoting State v. Bell, 284 N.C. 416, 419, 200 S.E.2d 601, 603 (1973)).
A.
Defendant was indicted and tried for the first-degree rape of a child "of the age of 12 years or less," G.S. 14-27.2(a)(1) (1981). That statute provides: "(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse: (1) With a victim who is a child of the age of 12 years or less and the defendant is of the age of 12 years or more and is four or more years older than the victim."
The "taking indecent liberties" statute in force at the time defendant was indicted defined that crime as follows:[1]
(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
(b) Taking indecent liberties with children is a felony punishable by a fine, imprisonment for not more than 10 years or both.
G.S. 14-202.1 (Cum.Supp.1979), amended by G.S. 14-202.1 (1981).
It is clear from the statutory definition of these two crimes that the offense of taking indecent liberties with a child under G.S. 14-202.1 has essential elements which are not also essential elements of first-degree rape under G.S. 14-27.2(a)(1). The age requirements under the indecent liberties statute are not the same as those for first-degree rape. Under the indecent liberties statute the defendant must be "16 years of age or more" and "at least five years older" than the victim; the victim must be "under the age of 16 years." Under the first-degree rape statute the defendant must be "12 years or more" and "four or more years older than the victim;" the victim must be "12 years or less." (Emphases added.) Although both crimes have age requirements, those requirements are not the same. The offense of taking indecent liberties with a child, G.S. 14-202.1, contains different age requirements, or different essential elements, from the first-degree rape statute, G.S. 14-27.2(a)(1), and thus is not a lesser included offense of first-degree rape.
It might be argued that under certain factual circumstances taking indecent liberties with a child is a lesser included offense of first-degree rape. For example, in all cases in which the defendant is over seventeen and the victim is under twelve, as here, all the age elements of both statutes are met. However, if the defendant is less than seventeen years old it is possible that he will be four but not five years older than his victim; the age differential element of the rape statute would be met but not the age differential element of the indecent liberties statute. In that case, satisfying the age requirements of the statutory rape law does not automatically satisfy the age requirements of the indecent liberties statute. The age differential element of the "lesser" crime of taking indecent liberties is not completely included in the "greater" crime, the rape offense.
We do not agree with the proposition that the facts of a particular case should determine whether one crime is a lesser included offense of another. Rather, the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. State v. Banks, 295 N.C. 399, 415-16, 245 S.E.2d 743, *379 754 (1978). In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense. The determination is made on a definitional, not a factual basis.
There is another essential element of the crime of taking indecent liberties with a child under G.S. 14-202.1 that is not an essential element of first-degree rape under G.S. 14-27.2(a)(1): the element of sexual purpose under G.S. 14-202.1(a)(1) or, in the alternative, the element of a "lewd or lascivious act" under G.S. 14-202.1(a)(2). The statute defining first-degree rape does not require a sexual purpose or a "lewd or lascivious act." We note that sexual purpose may be inherent in an act of rape.[2] However, a sexual purpose or a "lewd or lascivious act" is not an element of proof under the first-degree rape statute, G.S. 14-27.2(a)(1) (1981).
We hold, therefore, that the offense of taking indecent liberties with a child under G.S. 14-202.1 is not a lesser included offense of statutory rape under G.S. 14-27.2(a)(1) because the age elements are different and, while sexual purpose may be inherent in an act of forcible vaginal intercourse, it is not required to be proved in order to convict a defendant of rape.
We realize that our holding here is in apparent conflict with State v. Shaw, 293 N.C. 616, 239 S.E.2d 439 (1977). There, in a different context, it was said that the offense of taking indecent liberties with a child was a "lesser offense ... necessarily included in the offense of rape." Id. at 632, 239 S.E.2d at 449. We also note our recent holdings in State v. Ludlum, 303 N.C. 666, 281 S.E.2d 159 (1981) and State v. Williams, 303 N.C. 507, 279 S.E.2d 592 (1981). In Williams, Chief Justice Branch wrote:
The offense of taking indecent liberties with children requires proof that the crime be willful and that it be for the "purpose of arousing or gratifying sexual desire." Thus, the offense of taking indecent liberties with children requires proof of essential elements not contained in the offense proscribed by G.S. 14-27.4(a) [first-degree sexual offense] and is therefore not a lesser-included offense of the latter first-degree sexual offense. We therefore hold that the trial court did not err in failing to instruct on G.S. 14-202.1.
303 N.C. at 514, 279 S.E.2d at 596. (Emphasis added.)
We reached the very same result in Ludlum in an opinion by Justice Exum, 303 N.C. at 674, 281 S.E.2d at 164.
Our holdings in Williams, Ludlum and the case at bar are clearly consistent with the long-standing rule in this jurisdiction that a lesser included offense is one in which the greater offense contains all of the essential elements of the lesser offense. Our holding in Shaw is in conflict with that rule. Therefore, to the extent that it holds that the offense of taking indecent liberties with a child is a lesser included offense of statutory rape, Shaw is hereby expressly overruled.
B.
We also reject defendant's contention that assaulting a child under the age of twelve, G.S. 14-33(b)(3), is a lesser included offense of first-degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1).
*380 One is guilty of a misdemeanor assault under G.S. 14-33(b)(3) if he "[a]ssaults a child under the age of 12 years." It is readily apparent that this crime has an essential element which is not also an essential element of the crime of first-degree rape of a child of the age of twelve years or less: an assault. G.S. 14-27.2(a)(1) provides that a person is guilty of first-degree rape only if he "engages in vaginal intercourse" with the young victim; no concomitant assault is required.
This lack of an assault requirement under the statutory rape law, G.S. 14-27.2(a)(1), is understandable given the purpose of the statute. Unlike the provision of the first-degree rape statute that applies if the victim is an adult, G.S. 14-27.2(a)(2), the forbidden conduct under the statutory rape provision, G.S. 14-27.2(a)(1), is the act of intercourse itself; any force used in the act, any injury inflicted in the course of the act, or the apparent lack of consent of the child are not essential elements. This is so because the statutory rape law, G.S. 14-27.2(a)(1), was designed to protect children under twelve from sexual acts.
It may be argued that vaginal intercourse with a child under twelve is itself an assault. This is not the case because the crime of assault has essential elements which are not also essential elements of statutory rape. For example, assault generally requires proof of state of mind of either the defendant or the victimthe defendant's intent to do immediate bodily harm or the victim's reasonable apprehension of such harm. The statutory rape law, G.S. 14-27.2(a)(1), does not contain a state of mind element, however. Assault on a child under twelve, G.S. 14-33(b)(3), is not, therefore, a lesser included offense of first-degree rape of a child under twelve, G.S. 14-27.2(a)(1).
C.
In addition, we reject defendant's contention that assault on a female by a male over eighteen, G.S. 14-33(b)(2), is a lesser included offense of first-degree rape of a child under twelve, G.S. 14-27.2(a)(1).[3] The offense of assault on a female has essential elements that are not also essential elements of the crime of first-degree rape of a child of the age of twelve years or less. First, G.S. 14-33(b)(2) contains an assault requirement which, as explained above in section B, is not an essential element of statutory rape, G.S. 14-27.2(a)(1). Second, the two requirements under G.S. 14-33(b)(2) that the defendant be a "male person" and "over the age of 18 years" are not essential elements included in the statutory rape law, G.S. 14-27.2(a)(1). Therefore, assault on a female by a male over eighteen is not a lesser included offense of first-degree rape of a child of the age of twelve or less because all of the elements of the assault offense are not included in the rape offense.
D.
In summary, the trial court correctly refused to charge on the requested "lesser" offenses and properly charged on an attempt to commit the crime charged. G.S. 15-170 (1978), enacted in this state almost a century ago, provides that a defendant may be convicted on an indictment of (1) the crime charged therein, or (2) a less degree of the crime charged, or (3) an attempt to commit the crime charged, or (4) an attempt to commit a less degree of the crime charged. The offenses requested for submission by the defendant here fit none of the enumerated categories. The trial court properly instructed the jury with respect to categories one and three.
III.
Defendant next contends that he was denied effective assistance of counsel and continued representation of counsel of his choice when the trial court denied his motion *381 for continuance. Defendant relies on the proposition that although a motion for a continuance generally is addressed to the sound discretion of the trial judge, and review is limited to a showing of an abuse of that discretion, when the question presented is based on a constitutional right, it is reviewable as a question of law. State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977). He contends that the trial court erred not only as a matter of law but under a traditional abuse of discretion standard as well.
A.
We first summarily reject defendant's contention that the trial court abused its discretion in failing to allow the motion for continuance. In Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976), this Court stated, "before ruling on a motion to continue the judge should hear the evidence pro and con, consider it judicially and then rule with a view to promoting substantial justice." Id. at 483, 223 S.E.2d at 386. Here, the trial court listened to Ms. Day, a member of the public defender's office, request a continuance until the following Monday so that Mr. Chapman, the lead counsel for the public defender's office, could make the closing argument to the jury. Ms. Day advised the court that her duties in the case were primarily the cross-examination of the prosecuting witness and the presentation of an introductory statement to the jury in the closing argument. She also told the court that Mr. Chapman planned to make the primary closing argument and that this was her first jury trial. Ms. Day had participated in the entire trial. The trial court found that Ms. Day was a "fully capable attorney to present final arguments to the jury" and gave her until 2 p. m. that day to prepare her argument. We note no argument by defendant that Ms. Day did not present an adequate argument to the jury. Clearly, on the record before us, we are unable to find that the trial court abused its discretion in denying the continuance motion.
B.
Defendant also contends that he was denied his state and federal constitutional right to effective assistance of counsel as a matter of law. He urges that we make clear the standard to be used in determining what constitutes ineffective assistance of counsel. With our adoption today of the McMann test, we hope this uncertainty is dispelled.
In State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979), this Court noted the standard the United States Supreme Court used in evaluating the advice counsel gave the defendant in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). We interpreted McMann as holding that the gauge of effective assistance of counsel is whether counsel's performance was "within the range of competence demanded of attorneys in criminal cases." State v. Milano, 297 N.C. at 494, 256 S.E.2d 159 (quoting McMann v. Richardson, 397 U.S. at 770-71, 90 S.Ct. at 1448-49, 25 L.Ed.2d at 773). We also noted that, "[t]he courts ... have consistently required a stringent standard of proof on the question of whether an accused has been denied Constitutionally effective representation.... To impose a less stringent rule would be to encourage convicted defendants to assert frivolous claims which could result in unwarranted trial of their counsels." State v. Milano, 297 N.C. at 494, 256 S.E.2d at 159 (quoting State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871-72 (1974)).
In State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981), this Court applied both the McMann test and the ABA Standards Relating to the Defense Function, without adopting either standard. Id. at 120-21, 282 S.E.2d at 799-800. In State v. Maher, 305 N.C. 544, 290 S.E.2d 694 (1982), we observed in a footnote that this Court had not yet decided which standard is to be used. Id. at 549 n.1, 290 S.E.2d at 697 n.1. It was assumed in State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982), that the McMann test had been adopted by this Court. Id. at ___, 291 S.E.2d at 602-603.
*382 To resolve any confusion which understandably might now exist, we expressly adopt today the McMann standard. In applying the test to the case at bar we must decide whether counsel's performance was "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed.2d at 773.
Defendant concedes he is unable to demonstrate the level of Ms. Day's competence because her closing argument was not recorded. However, he argues that Ms. Day's failure to request that her closing argument be recorded is proof of her incompetence. Alternatively, defendant contends that a "lawyer just out of law school with no experience in trying cases, is incompetent as a matter of law to give the ... closing arguments" in a trial of this nature.
We reject defendant's first assertion summarily. Defendant cites no authority for the proposition that an attorney's failure to request the recording of a closing argument demonstrates, as a matter of law, that counsel is incompetent. This failure to provide authority for such an assertion is probably due to the fact that there is none. Many, if not most times, closing arguments are not recorded. We note that only rarely do records in criminal cases that reach this Court contain them. The trial court, having watched Ms. Day participate in the entire trial, found her fully capable of presenting the closing argument. We cannot imagine that counsel's failure to have her closing argument recorded violates the McMann standard, or any other standard of competence.
Moreover, mere inexperience of counsel, without more, does not constitute ineffective assistance of counsel. State v. Poole, 305 N.C. 308, 312-13, 289 S.E.2d 335, 338-39 (1982); e.g., United States ex rel. Williams v. Twomey, 510 F.2d 634, 638-39 (7th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975). The trial court had sufficient evidence of Ms. Day's ability to adequately present defendant's closing argument. As we said in Poole, "[t]he trial court was in a position far superior to ours to observe [counsel's] abilities and we are not prone to find an abuse of the trial court's discretion when nothing more than the defendant's naked assertion that his trial counsel was inexperienced is placed before us." Id. at 313, 289 S.E.2d at 339.
C.
Finally, defendant contends that his constitutional rights were violated because he was deprived of the lawyer of his choice. This argument is patently without merit. Ms. Day was one of two lawyers the State provided to assist the defendant in presenting his case. The trial court's findings indicate that Ms. Day participated throughout the trial. It was planned that she would present part of the closing argument. Defendant has no legal basis for his complaint that his constitutional rights were violated because only one of the two lawyers assisting in his defense could participate in this brief portion of the trial. An indigent defendant does not have the right to a lawyer of his choice. State v. Sweezy, 291 N.C. 366, 371, 230 S.E.2d 524, 528 (1976); State v. Robinson, 290 N.C. 56, 65, 224 S.E.2d 174, 179 (1976); e.g., United States v. Hampton, 457 F.2d 299, 301 (7th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972). It follows, therefore, that an indigent defendant represented by two lawyers does not have the right to require that the lawyer of his choice deliver the closing argument at his trial.
Defendant had a fair trial, free from prejudicial error.
NO ERROR.
MITCHELL and MARTIN, JJ., did not participate in the consideration or decision of this case.
NOTES
[1] The substantive portions of this statute remain as they were enacted in 1975 with only the punishment provision amended to provide that the crime is "punishable as a Class H felony."
[2] We also note, however, that recent scientific literature suggests that most rapists do not act "for the purpose of arousing or gratifying sexual desire," (as the indecent liberties statute requires) but to satisfy a powerful aggressive need. Nat'l Inst. of Law Enforcement and Criminal Justice, Law Enforcement Assistance Admin., U.S. Dept. of Justice, Forcible Rape: Final Project Report, at 14 (1978) (written by Battelle Memorial Institute Law and Justice Study Center) (quoting Bromberg and Coyle, Rape: A Compulsion to Destroy, 22 Medical Insight 21-25 (1974)). See also Cohen, Garofalo, Boucher and Seghorn, The Psychology of Rapists, 3 Seminars in Psychiatry 307-27 (1971). Indeed, rape is often characterized today not as a "lewd or lascivious act," but as an "act of violence," Mitra, "... For She Has no Right or Power to Refuse Her Consent," 1979 Crim.L.Rev. 558 (1979).
[3] We note that although defendant stated this contention in his brief, "no reason or argument is stated or authority cited" in support of this contention, Rule 28(b)(5), N.C.Rules App.Proc., 303 N.C. 713, 715 (1981) (amending by renumbering Rule 28(b)(3), N.C.Rules App.Proc., 287 N.C. 669, 742 (1975)). We will, however, address this issue rather than deem it abandoned.
|
T.C. Memo. 1998-99
UNITED STATES TAX COURT
ESTATE OF JAMES T. CALLAWAY, DECEASED, ELIZABETH N.
CALLAWAY, EXECUTRIX, and ELIZABETH N. CALLAWAY, Petitioners
v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20048-96. Filed March 10, 1998.
Frank Agostino, for petitioners.
Susan G. Lewis and Guy A. Bracuti, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This case is before
the Court on petitioners' Motion for Summary Judgment. In
addition, the Court, sua sponte, raised certain jurisdictional
issues concerning the validity of the notices of deficiency at
issue.1
1
Section references are to the Internal Revenue Code, as
(continued...)
- 2 -
The primary issue for consideration is whether the affected
items notices of deficiency are valid. In this connection, we
must consider whether the partnership items of each petitioner
converted to nonpartnership items. If the partnership items of
either petitioner remain as partnership items, we must further
decide whether the period of limitations has expired for issuance
of that affected items notice of deficiency.
Background
Petitioners are the estate of James T. Callaway and
Elizabeth N. Callaway (Mrs. Callaway), James T. Callaway's
surviving spouse. James T. Callaway (decedent) died on December
8, 1990. Mrs. Callaway is the duly appointed executrix of
decedent's estate.
During the taxable years 1986, 1987, and 1988, decedent was
a limited partner in a partnership known as Mountain View Mall
Associates (Mountain View or the partnership). Decedent and Mrs.
Callaway filed joint Federal income tax returns reporting
decedent's distributive share of losses reported on Mountain
View's partnership returns for the taxable years 1986, 1987, and
1988.
On February 5, 1991, respondent mailed to decedent a notice
of the beginning of an administrative proceeding (NBAP)
1
(...continued)
amended. Rule references are to the Tax Court Rules of Practice
and Procedure.
- 3 -
respecting the partnership's 1988 taxable year. Respondent has
been unable to provide the Court with copies of the NBAP's
purportedly mailed to decedent on the same date with respect to
the partnership's 1986 and 1987 taxable years.
On December 23, 1991, Mrs. Callaway forwarded several
letters to respondent, including a request for prompt assessment
of income tax submitted on behalf of decedent's estate for the
taxable years 1983 through 1990. See sec. 6501(d). In addition,
Mrs. Callaway remitted three checks to respondent in the amounts
of $90,635, $48,846, and $8,439 designated as deposits in the
nature of a cash bond respecting petitioners' tax liabilities for
1986, 1987, and 1988, respectively. At the same time, Mrs.
Callaway filed a Form 872-T with respondent, covering the taxable
years 1983 through 1990, along with a letter dated December 23,
1991, stating:
please accept this form as a statement disclaiming and
denying the Tax Matters Partners' settlement authority,
a statement denying the Tax Matters Partner's authority
to extend any statutes of limitation, and an election
to have any items which would be classified as
partnership items classified as non-partnership items
subject to the deficiency procedures of Internal
Revenue Code section 6213. * * *
There is no indication that respondent replied to Mrs. Callaway's
letters. However, the record indicates that respondent initially
concluded that Mrs. Callaway's request for prompt assessment of
income tax filed on behalf of decedent's estate was invalid.
- 4 -
On October 5, 1992, respondent issued notices of final
partnership administrative adjustment (FPAA) to the tax matters
partner (TMP) for Mountain View determining adjustments to the
partnership's tax returns for 1986, 1987, and 1988. On the same
date, respondent mailed to petitioners copies of the above-
described FPAA's.
On or about March 17, 1993, a Mountain View partner, other
than the TMP, filed a petition for readjustment with the U.S.
Court of Federal Claims contesting the FPAA's described above.
In August and September 1993, respondent entered what
respondent terms "precautionary" assessments against petitioners
for additional taxes in the amounts of $77,384, $41,981, and
$6,541 for 1986, 1987, and 1988, respectively, reflecting the
disallowance of decedent's distributive share of Mountain View's
partnership items for those years. At the same time, respondent
posted to petitioners' accounts the amounts that Mrs. Callaway
remitted to respondent on December 23, 1991.2
On July 6, 1995, the U.S. Court of Federal Claims dismissed
the partnership level action pursuant to section 6226(h) based
upon a stipulation for dismissal in which the partnership
conceded the adjustments set forth in the FPAA's.
2
Respondent entered these assessments in an effort to
protect against the expiration of the period of limitations in
the event that Mrs. Callaway's request for prompt assessment
filed on behalf of the decedent's estate was deemed valid.
- 5 -
On July 16, 1996 (presumably after abating the above-
described assessments entered in August and September 1993),
respondent entered identical assessments against petitioners
reflecting computational adjustments to account for the
disallowance of decedent's distributive share of Mountain View's
partnership items for the taxable years 1986, 1987, and 1988.
On August 5, 1996, respondent issued notices of deficiency
to petitioners determining various additions to tax, including
delinquent filing of returns, negligence, and valuation
overstatements for the taxable years 1986, 1987, and 1988. The
additions to tax are based upon adjustments to petitioners' tax
liability arising from the disallowance of decedent's
distributive share of Mountain View partnership items.
Petitioners invoked the Court's jurisdiction by filing a timely
petition for redetermination.
After filing their petition, petitioners filed a motion to
restrain collection asserting that respondent had failed to
timely assess and was improperly attempting to collect the
underlying tax deficiencies attributable to the disallowance of
decedent's distributive share of Mountain View's partnership
items. Respondent filed an objection to petitioners' motion to
restrain collection asserting that the Court lacks jurisdiction
to restrain respondent's collection efforts under the
circumstances presented. In further response, however,
- 6 -
respondent conceded that all assessments entered against
decedent's estate were improper on the ground that Mrs.
Callaway's request for prompt assessment filed on behalf of
decedent's estate on December 23, 1991, was valid, thereby
resulting in the immediate conversion of decedent's Mountain View
partnership items to nonpartnership items under section
6231(c)(2) and section 301.6231(c)-8T, Temporary Proced. & Admin.
Regs., 52 Fed. Reg. 6794 (Mar. 5, 1987).3 In contrast,
respondent maintained that the July 1996 assessments entered
against Mrs. Callaway were proper on the ground that,
notwithstanding the conversion of decedent's partnership items to
nonpartnership items, Mrs. Callaway continued to be treated as a
Mountain View partner pursuant to section 301.6231(a)(2)-1T(a),
Temporary Proced. & Admin. Regs., 52 Fed. Reg. 6790 (Mar. 5,
1987).
Following a hearing on the matter, we denied petitioners'
motion to restrain collection on the ground that the Court's
jurisdiction in this case is limited to a redetermination of the
additions to tax determined in the notices of deficiency for
affected items at issue, and, therefore, the Court lacks the
3
As a result of respondent's concession respecting the
validity of the request for prompt assessment filed on behalf of
decedent's estate, respondent further concedes that respondent
was obliged to issue a notice of deficiency to decedent's estate
for (or assess) any deficiencies attributable to decedent's
distributive share of Mountain View's partnership items for 1986,
1987, and 1988 by June 23, 1992. See secs. 6501(d), 6229(f).
- 7 -
authority under section 6213(a) to restrain the assessment or
collection of the underlying deficiencies. See Powell v.
Commissioner, 96 T.C. 707 (1991).
Petitioners subsequently filed a motion for summary judgment
asserting that the notices of deficiency for affected items were
issued beyond the period of limitations. Specifically, relying
on respondent's concession that decedent's partnership items
converted to nonpartnership items on December 23, 1991,
petitioners maintain that Mrs. Callaway's partnership items
likewise converted to nonpartnership items at the same time on
the ground that she is treated as a Mountain View partner only
due to her election to file joint returns with decedent for the
years in issue.
Following a preliminary review of petitioners' motion, and
considering respondent's concessions, the Court issued an order
in which the Court sua sponte raised issues respecting the
validity of the notices of deficiency for affected items and the
Court's jurisdiction in this case. As directed by the Court, the
parties subsequently filed status reports, and respondent filed a
response in opposition to petitioners' motion.
Discussion
The notices of deficiency at issue in this case, so-called
affected items notices of deficiency, were issued to petitioners
pursuant to the unified audit and litigation procedures set forth
- 8 -
in sections 6221 through 6233. Tax Equity & Fiscal
Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, sec. 402(a),
96 Stat. 648. Pursuant to the TEFRA provisions, which apply with
respect to all taxable years of a partnership beginning after
September 3, 1982, the tax treatment of any partnership item
generally is determined in a single proceeding at the partnership
level. Sparks v. Commissioner, 87 T.C. 1279, 1284 (1986);
Maxwell v. Commissioner, 87 T.C. 783, 789 (1986).
Partnership items include each partner's proportionate share
of the partnership's aggregate items of income, gain, loss,
deduction, or credit. Sec. 6231(a)(3); sec. 301.6231(a)(3)-
1(a)(1)(i), Proced. & Admin. Regs.
Partnership items are distinguished from affected items
which are defined in section 6231(a)(5) as any item to the extent
such item is affected by a partnership item. White v.
Commissioner, 95 T.C. 209, 211 (1990). The first type of
affected item is a computational adjustment made to record the
change in a partner's tax liability resulting from the proper
treatment of partnership items. Sec. 6231(a)(6); White v.
Commissioner, supra. Once partnership level proceedings are
completed, the Commissioner is permitted to assess a
computational adjustment against a partner without issuing a
deficiency notice. Sec. 6230(a)(1); N.C.F. Energy Partners v.
- 9 -
Commissioner, 89 T.C. 741, 744 (1987); Maxwell v. Commissioner,
supra at 792 n.9.
The second type of affected item is one that is dependent
upon factual determinations to be made at the individual partner
level. N.C.F. Energy Partners v. Commissioner, supra at 744.
Section 6230(a)(2)(A)(i) provides that the normal deficiency
procedures apply to those affected items that require partner
level determinations. For instance, additions to tax for
negligence are affected items requiring factual determinations at
the individual partner level. N.C.F. Energy Partners v.
Commissioner, supra at 745.
Congress has vested the Secretary with the authority to
prescribe exceptions to the unified partnership audit and
litigation procedures. In particular, section 6231(c)(2)
provides that, where the treatment of partnership items will
interfere with the effective and efficient enforcement of the
TEFRA provisions, the Secretary may promulgate regulations
whereby such partnership items will be treated as nonpartnership
items.4 One such special enforcement area is described in
section 301.6231(c)-8T, Temporary Proced. & Admin. Regs., 52 Fed.
Reg. 6794 (Mar. 5, 1987), which provides:
4
In those instances where partnership items are treated as
nonpartnership items, adjustments to the partner's tax liability
generally are determined at the individual partner level through
the normal deficiency procedures. Sec. 6230(a)(2)(A)(ii).
- 10 -
Prompt assessment (Temporary).--The treatment of
items as partnership items with respect to a partner on
whose behalf a request for a prompt assessment of tax
under section 6501(d) is filed will interfere with the
effective and efficient enforcement of the internal
revenue laws. Accordingly, partnership items of such a
partner arising in any partnership taxable year ending
with or within any taxable year of the partner with
respect to which a request for a prompt assessment of
tax is filed shall be treated as nonpartnership items
as of the date that the request is filed.
In sum, the partnership items of a partner on whose behalf a
request for prompt assessment of income tax is filed under
section 6501(d) shall be treated as nonpartnership items as of
the date that the request for prompt assessment is filed.5
Petitioners contend that they are entitled to summary
judgment that the notices of deficiency for affected items were
issued beyond the period of limitations on the ground that both
decedent's and Mrs. Callaway's partnership items converted to
nonpartnership items upon the filing of a request for prompt
assessment on decedent's behalf on December 23, 1991. Although
5
The filing of a request for prompt assessment on behalf
of a deceased partner presents special enforcement problems with
respect to TEFRA partnership proceedings due to the abbreviated
period of limitations associated with such a request. In
particular, sec. 6501(d) establishes an exception to sec. 6501(a)
which sets forth the general rule that the amount of any income
tax shall be assessed within 3 years after a tax return is filed.
Sec. 6501(d) provides that a request for prompt assessment may be
filed with respect to any tax (except estate tax) for which a
return is required by a decedent, or by his estate during the
period of administration, or by a corporation, and that such tax
generally shall be assessed within 18 months after filing of such
request but not later than 3 years after the return was filed.
- 11 -
petitioners' "conversion" theory and period of limitations
arguments seem logical at first glance, closer scrutiny reveals
that, if petitioners' conversion theory is correct with respect
to both decedent and Mrs. Callaway, it follows that the Court
lacks jurisdiction on the ground that the notices of deficiency
for affected items are invalid.
It is well settled that allegations concerning the period of
limitations constitute an affirmative defense, not a plea to the
jurisdiction of this Court. Saso v. Commissioner, 93 T.C. 730,
734-735 (1989); see Columbia Bldg., Ltd. v. Commissioner, 98 T.C.
607, 611-612 (1992). Further, the Court has long held that,
where the Court's jurisdiction and the period of limitations are
both disputed issues in a case, we are obliged to resolve first
whether the Court has jurisdiction. King v. Commissioner, 88
T.C. 1042, 1050 (1987), affd. on other grounds 857 F.2d 676 (9th
Cir. 1988). A jurisdictional issue can be raised by either party
or the Court sua sponte at any stage of the proceedings. Smith
v. Commissioner, 96 T.C. 10, 13-14 (1991).
As explained in greater detail below, if we agree with
petitioners' conversion theory, the notices of deficiency for
affected items are invalid thereby rendering petitioners' period
of limitations argument moot. On the other hand, if we reject
petitioners' conversion theory, the notices of deficiency for
affected items are valid, and petitioners' period of limitations
- 12 -
argument fails. For clarity, we shall analyze the validity of
the notices of deficiency separately with respect to decedent and
Mrs. Callaway.
Jurisdiction: Estate of James T. Callaway
The Court's jurisdiction is dependent upon a valid notice of
deficiency and timely filed petition for redetermination. Rule
13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac,
Inc. & Normac Intl. v. Commissioner, 90 T.C. 142, 147 (1988). In
Crowell v. Commissioner, 102 T.C. 683, 691-692 (1994), the Court
held that a taxpayer may contest the validity of a notice of
deficiency for affected items on the ground that the taxpayer's
partnership items converted to nonpartnership items by virtue of
the Commissioner's alleged failure to notify properly the
taxpayer of partnership level proceedings.
Consistent with Crowell, and considering respondent's
concession that Mrs. Callaway filed a valid request for prompt
assessment on behalf of decedent's estate, the Court sua sponte
raised the issue of the validity of the notices of deficiency for
affected items insofar as the notices were issued to decedent's
estate. In particular, because decedent's Mountain View
partnership items converted to nonpartnership items for the years
at issue in this case pursuant to section 301.6231(c)-8T,
Temporary Proced. & Admin. Regs., 52 Fed. Reg. 6794 (Mar. 5,
1987), it follows that the question of decedent's tax liability
- 13 -
for such items was excepted from the unified partnership audit
and litigation procedures. See sec. 6230(a)(2)(A)(ii) (normal
deficiency procedures apply where partnership items converted to
nonpartnership items under secs. 6231(e)(1)(B)(i) and
6231(c)(2)). Under the circumstances, we hold that the notices
of deficiency for affected items are invalid insofar as they were
issued to decedent's estate. Consequently, we shall dismiss this
case for lack of jurisdiction with respect to decedent's estate
and deny petitioners' motion for summary judgment as moot insofar
as it pertains to decedent's estate.
Jurisdiction: Elizabeth N. Callaway
Petitioners maintain that, because Mrs. Callaway is treated
as a Mountain View partner solely by virtue of having filed a
joint return with decedent for the years in issue, her
partnership items converted to nonpartnership items at the same
time that decedent's partnership items were so converted. We
disagree.6
The controversy surrounding Mrs. Callaway's status as a
Mountain View partner involves the effect of section
301.6231(a)(2)-1T(a)(1), Temporary Proced. & Admin. Regs., 52
Fed. Reg. 6790 (Mar. 5, 1987), which provides in pertinent part:
Persons whose tax liability is determined
indirectly by partnership items (Temporary).--(a)
6
Again, petitioners' conversion theory raises the question
of the validity of the notices of deficiency.
- 14 -
Spouse filing joint return with individual holding
separate interest--(1) In general. [With exceptions
not applicable here] * * *, a spouse who files a joint
return with an individual holding a separate interest
in the partnership shall be treated as a partner for
purposes of subchapter C of chapter 63 of the Code.
Thus, the spouse who files a joint return with a
partner will be permitted to participate in
administrative and judicial proceedings.
Respondent contends that, notwithstanding the conversion of
decedent's partnership items to nonpartnership items pursuant to
section 301.6231(c)-8T, Temporary Proced. & Admin. Regs., 52 Fed.
Reg. 6794 (Mar. 5, 1987), Mrs. Callaway was at all times treated
as a Mountain View partner who was fully entitled to participate
in partnership level proceedings pursuant to section
301.6231(a)(2)-1T, Temporary Proced. & Admin. Regs., 52 Fed. Reg.
6790 (Mar. 5, 1987). In this regard, respondent asserts that the
notices of deficiency for affected items are valid as to Mrs.
Callaway and that such notices were timely issued following the
conclusion of the partnership level proceeding in the U.S. Court
of Federal Claims.
Based upon the plain language of the provisions in question,
we agree with respondent that Mrs. Callaway's partnership items
did not convert to nonpartnership items pursuant to section
301.6231(c)-8T, Temporary Proced. & Admin. Regs., 52 Fed. Reg.
6794 (Mar. 5, 1987). We begin with section 301.6231(a)(2)-1T(a),
Temporary Proced. & Admin. Regs., 52 Fed. Reg. 6790 (Mar. 5,
1987), which plainly states that a spouse who files a joint
- 15 -
return with an individual holding a separate interest in a
partnership shall be treated as a partner for purposes of
subchapter C of chapter 63 of the Code and will be permitted to
participate in administrative and judicial proceedings. In
practical effect, section 301.6231(a)(2)-1T(a), Temporary Proced.
& Admin. Regs., 52 Fed. Reg. 6790 (Mar. 5, 1987), ensures that a
spouse, who may be jointly and severally liable under section
6013(d)(3) for any deficiency in tax arising with respect to a
joint return, will be permitted to protect his or her interests
by fully participating in any unified partnership level
administrative or judicial proceeding.7 By virtue of having
filed joint returns with decedent during the years in issue, Mrs.
Callaway clearly qualifies for treatment as a partner under this
temporary regulation.
In contrast, we find no support for petitioners' position
that Mrs. Callaway's partnership items converted to
nonpartnership items as a consequence of the request for prompt
assessment filed on decedent's behalf. Section 6501(d)
establishes a limited exception to the normal 3-year period of
7
Sec. 6013(d)(3) provides: "if a joint return is made,
the tax shall be computed on the aggregate income and the
liability with respect to the tax shall be joint and several."
One of the fundamental characteristics of joint and several
liability is that the obligee (respondent) may proceed against
the obligors (joint taxpayers) separately and may obtain a
separate judgment against each. Dolan v. Commissioner, 44 T.C.
420, 427 (1965).
- 16 -
limitations set forth in section 6501(a) by providing that the
assessment procedure may be expedited where a request for prompt
assessment is filed on behalf of a decedent, the decedent's
estate, or a corporation. Section 6501(d) does not provide
prompt assessment relief to a surviving spouse. See Garfinkel v.
Commissioner, 67 T.C. 1028, 1032-1033 (1977); Estate of Severt v.
Commissioner, T.C. Memo. 1998-34. Similarly, we conclude that
section 301.6231(c)-8T, Temporary Proced. & Admin. Regs., 52 Fed.
Reg. 6794 (Mar. 5, 1987), which provides that partnership items
will be treated as nonpartnership items "with respect to a
partner on whose behalf a request for a prompt assessment of tax
under section 6501(d) is filed", does not apply to the surviving
spouse of a deceased partner.
We note that in Dubin v. Commissioner, 99 T.C. 325, 334
(1992), we rejected a similar argument under analogous
circumstances. In Dubin v. Commissioner, supra, the taxpayer and
her husband held a joint interest in a partnership. Because the
taxpayer's husband was named as a debtor in a bankruptcy
proceeding, his partnership items converted to nonpartnership
items pursuant to section 301.6231(c)-7T(a), Temporary Proced. &
Admin. Regs., 52 Fed. Reg. 6793 (Mar. 5, 1987). However, in a
reversal of the positions of the parties in the instant case, the
Commissioner argued in Dubin that the partnership items of the
taxpayer (wife) had converted to nonpartnership items at the time
- 17 -
that her husband filed for bankruptcy.8 Specifically, the
Commissioner argued that the taxpayer's partnership items
converted to nonpartnership items by virtue of section
6231(a)(12), which provides that a husband and wife who have a
joint interest in a partnership generally shall be treated as one
person (or partner).
In rejecting the Commissioner's position, we noted that
section 301.6231(a)(12)-1T(a), Temporary Proced. & Admin. Regs.,
52 Fed. Reg. 6793 (Mar. 5, 1987), establishes an exception to the
general rule stated in section 6231(a)(12) by providing that
spouses holding a joint interest in a partnership are treated as
separate partners. Further, focusing on the bankruptcy rule set
forth in section 301.6231(c)-7T(a), Temporary Proced. & Admin.
Regs., 52 Fed. Reg. 6793 (Mar. 5, 1987), we concluded that the
temporary regulation "concerns itself with the treatment of items
as partnership items with respect to a partner named as a debtor
in a bankruptcy proceeding; partnership items of such a partner
are treated as nonpartnership items." Dubin v. Commissioner,
supra at 334. We concluded our analysis as follows:
8
The Commissioner's position was born of the fact that the
Commissioner had not notified the taxpayer of the partnership
level proceedings but rather issued the taxpayer a notice of
deficiency. The case was before the Court on the parties' cross-
motions to dismiss for lack of jurisdiction. The Commissioner
argued that the case should be dismissed on the ground that the
petition was not timely filed, and the taxpayer moved to dismiss
on the ground that the notice of deficiency was invalid.
- 18 -
Because the focus in the bankruptcy rule is limited to
the partner's status as a debtor in bankruptcy, we are
compelled here to look only to petitioner's status,
since she is the only partner before us, and, although
she is a partner, she is not in bankruptcy.
Accordingly, we find the bankruptcy rule to be
inapplicable.
Id. Consistent with our finding that the taxpayer's partnership
items had not converted to nonpartnership items in Dubin, we held
the notice of deficiency issued to the taxpayer to be invalid.
Although the Dubin case involved the status of a taxpayer
holding a joint partnership interest with her husband, whereas
the instant case concerns the status of a taxpayer who filed a
joint return with her husband, who held a separate partnership
interest, we see no meaningful distinction between the
controlling statutory and regulatory provisions. In short, just
as the bankruptcy provision at issue in Dubin was found to extend
only to the partner/spouse in bankruptcy, the prompt assessment
provision at issue in the instant case only extends to the
deceased partner on whose behalf the request for prompt
assessment is filed.
Based upon the preceding discussion, we hold that Mrs.
Callaway's Mountain View partnership items did not convert to
nonpartnership items at the time that decedent's partnership
items converted to nonpartnership items pursuant to section
301.6231(c)-8T, Temporary Proced. & Admin. Regs., 52 Fed. Reg.
6794 (Mar. 5, 1987).
- 19 -
Petitioners further contend that Mrs. Callaway's partnership
items converted to nonpartnership items as a consequence of
respondent's failure to notify properly petitioners of the
beginning of the Mountain View administrative proceedings.
Again, we find that the controlling statutory provisions do not
provide any support for petitioners' position.
Section 6223(a) provides in pertinent part that the
Commissioner shall notify the partners of a TEFRA partnership of
(1) the beginning of an administrative proceeding at the
partnership level and (2) the final administrative adjustment
arising from such proceeding.9 Section 6223(e) provides various
remedies where the Commissioner fails to provide timely notice
under section 6223(a). Section 6223(e) provides in pertinent
part:
(e) Effect of Secretary's Failure To Provide Notice.--
(1) Application of subsection.--
(A) In general.--This subsection applies
where the Secretary has failed to mail any
notice specified in subsection (a) to a
partner entitled to such notice within the
period specified in subsection (d).
* * * * * * *
(2) Proceedings finished.--In any case to which
this subsection applies, if at the time the Secretary
mails the partner notice of the proceeding--
9
Respondent concedes that decedent is a Mountain View
"notice partner" within the meaning of secs. 6223(a) and
6231(a)(8).
- 20 -
(A) the period within which a petition
for review of a final partnership
administrative adjustment under section 6226
may be filed has expired and no such petition
has been filed, or
(B) the decision of a court in an action
begun by such a petition has become final,
the partner may elect to have such adjustment, such
decision, or a settlement agreement described in
paragraph (2) of section 6224(c) with respect to the
partnership taxable year to which the adjustment
relates apply to such partner. If the partner
does not make an election under the preceding
sentence, the partnership items of the partner for the
partnership taxable year to which the proceeding
relates shall be treated as nonpartnership items.
(3) Proceedings still going on.--In any case to
which this subsection applies, if paragraph (2) does
not apply, the partner shall be a party to the
proceeding unless such partner elects--
(A) to have a settlement agreement
described in paragraph (2) of section 6224(c)
with respect to the partnership taxable year
to which the proceeding relates apply to the
partner, or
(B) to have the partnership items of the
partner for the partnership taxable year to
which the proceeding relates treated as
nonpartnership items.
As previously mentioned, respondent was unable to provide
the Court with copies of the NBAP's purportedly issued to
petitioners respecting Mountain View's 1986 and 1987 taxable
years. However, respondent did mail to decedent on February 5,
1991, a NBAP respecting Mountain View's 1988 taxable year.
Further, on October 5, 1992, respondent mailed to petitioners
- 21 -
copies of the FPAA's respecting Mountain View's taxable years
1986, 1987, and 1988.
Relying on Mrs. Callaway's December 23, 1991, letter and
respondent's failure to prove that NBAP's were mailed to
petitioners with respect to Mountain View's 1986 and 1987 taxable
years, petitioners contend that their partnership items converted
to nonpartnership items either at the time that respondent should
have mailed the NBAP's to petitioners or upon delivery of Mrs.
Callaway's December 23, 1991, letter requesting that her
partnership items be treated as nonpartnership items.
Even assuming that respondent failed to mail the NBAP's, the
record is clear that respondent mailed FPAA's to petitioners
respecting Mountain View's 1986, 1987, and 1988 taxable years on
October 5, 1992--prior to the date that a partner other than the
TMP filed a petition for readjustment of Mountain View
partnership items with the U.S. Court of Federal Claims. Under
the circumstances, Mrs. Callaway's remedy, upon receipt of the
FPAA's, was to make an election under section 6223(e)(3)(B) to
have her Mountain View partnership items treated as
nonpartnership items. Cf. Wind Energy Associates III v.
Commissioner, 94 T.C. 787, 791-792 (1990). In this regard,
section 301.6223(e)-2T(c)(2), Temporary Proced. & Admin. Regs.,
52 Fed. Reg. 6785 (Mar. 5, 1987), provides:
The election shall be made by filing a statement with
the Internal Revenue Service office mailing the notice
- 22 -
regarding the proceeding within 45 days after the date
on which that notice was mailed.
Under the circumstances, we are not persuaded that Mrs.
Callaway's earlier letter to respondent dated December 23, 1991,
wherein Mrs. Callaway requested that her partnership items be
treated as nonpartnership items, constitutes a qualifying
election within the meaning of section 6223(e)(3)(B).
Finally, we are satisfied that Mrs. Callaway's letter dated
December 23, 1991, in which Mrs. Callaway unilaterally attempted
to terminate any extension of the period of limitations
concerning the partnership for the years in issue, was
ineffective to overcome the TMP's broad grant of authority under
section 6229(b)(1)(B) to execute agreements to extend the period
of limitations. Because Mrs. Callaway does not assert that the
notices of deficiency for affected items were issued beyond 1
year from the date that the U.S. Court of Federal Claims'
decision in the partnership level proceedings became final, see
sec. 6229(d), we deem the point conceded.
In sum, we conclude that Mrs. Callaway's partnership items
did not convert to nonpartnership items, and the notices of
deficiency for affected items are valid insofar as they were
issued to Mrs. Callaway. Petitioners have failed to prove that
the period of limitations expired prior to the issuance of the
notices of deficiency for affected items to Mrs. Callaway.
- 23 -
Consequently, we shall deny petitioners' motion for summary
judgment insofar as the motion pertains to Mrs. Callaway.
To reflect the foregoing,
An order will be issued
dismissing this case for lack
of jurisdiction as to the estate
of James T. Callaway, amending
the caption of the case as
appropriate, and denying
petitioners' motion for summary
judgment as moot insofar as the
motion pertains to decedent's
estate and denying petitioner's
motion for summary judgment
insofar as the motion pertains to
Mrs. Callaway.
|
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
29-JUN-2018
07:41 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
DAVID PREBLE,
Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAIʻI,
Respondent/Respondent–Appellee.
_______________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; S.P.P. NO. 11-1-0054; CR NO. 99-2362)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.,)
Petitioner David Preble (Preble) was convicted of
several counts each of first-degree sexual assault and third-
degree sexual assault in 2001 and sentenced to extended terms of
imprisonment. On direct appeal, the ICA affirmed his
convictions in 2004, and this court denied his application for
writ of certiorari on January 13, 2005. Preble filed a petition
pursuant to Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40 in
2011. The circuit court denied his petition without a hearing
on January 30, 2014. Preble appealed the circuit court’s denial
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
to the Intermediate Court of Appeals (ICA), which affirmed the
circuit court in a summary disposition order filed March 17,
2017. Subsequently, in his amended Rule 40 petition Preble
argued his extended term sentences were “illegal sentences”
under Apprendi v. New Jersey, 530 U.S. 446 (2000). We accepted
his application for writ of certiorari on July 5, 2017. We hold
that under our recent decision in Flubacher, Preble is entitled
to relief under HRPP Rule 40. Flubacher v. State, 142 Hawaiʻi
109, 414 P.3d 161 (2018); HRPP Rule 40(a).
I. Background
Preble was indicted on multiple charges of sexual
assault in the first degree and sexual assault in the third
degree on December 2, 1999. His first two trials on the charges
resulted in mistrials. In the third trial, which concluded June
7, 2001, a jury found Preble guilty of three counts of first-
degree sexual assault and eight counts of third-degree sexual
assault in violation of Hawaiʻi Revised Statutes (HRS) § 707-
730(1)(b)(1993) (a class A felony) and HRS § 707-732(1)(b)(1993)
(a class C felony). On July 26, 2001, the state filed a motion
for extended terms of imprisonment. On October 16, 2001, the
circuit court heard argument on the state’s motion for extended
terms of imprisonment and sentencing of repeat offender and
granted the motion.
2
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The court sentenced Preble to extended terms of
imprisonment under HRS § 706-662(4)(a) (Supp. 1999), the
multiple offender statute. The extended terms comprised (1) ten
years on each third-degree sexual assault count (extended from
five years), with mandatory minimum terms of three years and
four months, and (2) life with the possibility of parole on each
first-degree sexual assault count (extended from twenty years),
with mandatory minimum terms of six years and eight months. HRS
§ 706-662(4)(a) required the sentencing court to find that the
“defendant is a multiple offender whose criminal actions were so
extensive that a sentence of imprisonment for an extended term
is necessary for protection of the public.” Id. Among the
findings of fact the court made in support of imposing extended
terms on Preble were that “Defendant is unable to abide by rules
and instructions and has been terminated from drug programs” and
“Defendant has been provided with opportunities for
rehabilitation including the Victory Ohana program. Defendant
was unable to benefit and follow the rules of such programs.”
II. Discussion
Under our recent decision in Flubacher, Preble is
entitled to relief under Rule 40. Flubacher, 142 Hawaiʻi 109,
414 P.3d 161. In Flubacher, we recognized the applicability of
the United States Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000) to Hawaii’s system of extended term
3
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
sentencing. Apprendi held that, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Id. at 490. The
Supreme Court held, as well, that “it is unconstitutional for a
legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal
defendant is exposed.” Id. at 490.
Applying these rules to the facts in Flubacher, we
noted that “a judge, not a jury, made the required finding that
Flubacher’s extended term sentence was necessary to the public.”
142 Hawaiʻi at 118, 414 P.3d at 170. As we concluded, “That
‘required finding expose[d] the defendant to a greater
punishment than that authorized by the jury’s guilty verdict.’
Therefore, Flubacher’s extended term sentences were imposed in
an illegal manner because they violate Apprendi.” Id. at 118-
19, 414 P.3d at 170-71 (quoting Apprendi, 530 U.S. at 494). The
same is true of the judge-made findings supporting Preble’s
extended sentences. For that reason, we conclude that Preble’s
extended term sentences were imposed in an illegal manner.
III. Conclusion
Because we conclude Preble’s extended term sentences
were imposed in an illegal manner, we vacate section D of the
ICA’s summary disposition order, the portion of the ICA’s March
4
*** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
31, 2017 Judgment on Appeal solely relating to extended
sentences, the circuit court’s January 30, 2014 “Order Denying
Post-Conviction Relief Without a Hearing” denying Preble’s HRPP
Rule 40 petition, the portions of the circuit court’s “Amended
Judgment Guilty Conviction and Sentence” filed on November 19,
2001, solely relating to extended sentences, and the portions of
the “Findings of Fact, Conclusions of Law and Order Granting
State’s Motion for Extended Term of Imprisonment” filed December
6, 2001, solely relating to extended sentences. We affirm the
ICA’s summary disposition order, and the ICA’s March 31, 2017
Judgment on Appeal, as to all other matters. We remand this
case to the circuit court for further proceedings consistent
with this summary disposition order.
DATED: Honolulu, Hawaiʻi, June 29, 2018.
David Preble /s/ Mark E. Recktenwald
Petitioner-Appellant,
pro se /s/ Paula A. Nakayama
Brian R. Vincent /s/ Sabrina S. McKenna
Deputy Prosecuting Attorney
City and County of Honolulu /s/ Richard W. Pollack
for Respondent-Appellee
/s/ Michael D. Wilson
5
|
902 F.2d 1032
Peter Olusanya OLUYEMI, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 89-2057.
United States Court of Appeals,First Circuit.
Heard April 6, 1990.Decided May 11, 1990.
James M. Langan, Jr., Boston, Mass., with whom Langan, Dempsey & Brodigan, was on brief, for petitioner.
Ellen Sue Shapiro, Boston, Mass., with whom Stuart M. Gerson, Asst. Atty. Gen., Civ. Div., Washington, D.C., Robert Kendall, Jr., Asst. Director, and Karen L. Fletcher, Attorney, Office of Immigration Litigation, Civ. Div. Dept. of Justice, were on brief, for respondent.
Before BREYER, Chief Judge, TORRUELLA and CYR, Circuit Judges.
BREYER, Chief Judge.
1
The petitioner, Peter Olusanya Oluyemi, a citizen of Nigeria, entered the United States on July 18, 1987, as a "visitor for pleasure." His visa expired on October 12, 1987. He remained in the country. The Immigration and Naturalization Service has ordered him deported. See 8 U.S.C. Sec. 1251(a)(2) (requiring deportation of any "alien" who "is in the United States in violation of ... any ... law"). He pointed out to the immigration judge, however, that his American wife had asked the INS to reclassify him as an "immediate relative" and to grant him a visa that would allow him to "adjust" his "status" to that of a permanent resident. See 8 U.S.C. Secs. 1154(a)(1), 1255(a). He asked for permission to stay here pending the outcome of that petition, or, at the least, for permission to depart from the country voluntarily, instead of being "deported." See 8 U.S.C. Sec. 1254(e). The immigration judge denied both these requests; the Board of Immigration Appeals found the judge's decision proper; and petitioner now argues to us that the Board's and the immigration judge's decisions were not lawful.
2
We can find nothing unlawful about the immigration judge's decision not to permit the petitioner to stay in this country pending the outcome of his wife's visa request. That is because the likelihood that the INS will grant that request is very small. The statute says that the Attorney General "may ..., in his discretion " adjust the status of an alien to one of "permanent residence" if, among other things, the alien is "admissible" for permanent residence, and "an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. Sec. 1255(a) (emphasis added). Not only is there no "immigrant visa ... immediately available" to the petitioner, but there is also little reason to think that such a visa will ever become available. The petitioner was ordered deported in 1986; he returned in 1987, with a counterfeit passport issued in a different one of his several names, and without the necessary governmental permission, and was excluded and deported; and he returned yet another time (again without permission), using a passport issued in yet another of his names. See 8 U.S.C. Sec. 1182(a) (categories of aliens ineligible for visas include those who have used fraud to enter the United States and those who have previously been excluded or deported and returned without obtaining the Attorney General's permission to do so). Even were petitioner to overcome these statutory obstacles, given the history that the record reveals, a history that includes these efforts to return using different names, and which also includes evidence of three marriages, one of which was bigamous and (in the view of the INS) possibly entered into in order to obtain the right to stay in this country, there is no reason to think the Attorney General would exercise his "discretion " to permit petitioner to stay.
3
Petitioner argues that the immigration judge, nonetheless, should have postponed the deportation proceedings against him until the district director decided whether to grant his wife's visa petition. The Board of Immigration Appeals has held that, while "an alien does not have an absolute right" to such an adjournment, an immigration judge should grant a continuance of a deportation hearing when an alien has submitted "a prima facie approvable visa petition." Matter of Garcia, 16 I & N Dec. 653, 656 (BIA 1978). However, Garcia did not establish "an inflexible rule" requiring immigration judges to grant continuances in all cases in which an alien is the beneficiary of a pending visa petition.
4
It clearly would not be an abuse of discretion for the immigration judge to summarily deny a request for a continuance ... upon his determination that the visa petition is frivolous or that the adjustment application would be denied on statutory grounds or in the exercise of discretion notwithstanding the approval of the petition.
5
Id. at 657. In light of the circumstances of this case, we cannot say that the immigration judge abused the broad discretion that Garcia confers upon him in refusing to delay the hearing because he believed that the adjustment petition eventually would be denied.
6
Petitioner also argues that, instead of deporting him, the immigration judge should himself have decided whether or not to adjust his status; that is to say, petitioner believes the immigration judge should have adjudicated his wife's visa petition then and there. The problem with this argument is that the decision about whether or not to grant a visa, under the relevant statutes and regulations, belongs to the district director, not to the immigration judge. See 8 U.S.C. Sec. 1154(b) (authorizing Attorney General to approve petitions to classify aliens as immediate relatives); 8 C.F.R. Sec. 204 (outlining procedure for consideration of such petitions by district directors). In any event, we can find no law or regulation that would require an immigration judge to decide whether or not to grant an adjustment of status under the circumstances present here.
7
Petitioner claims, alternatively, that the immigration judge should have permitted him to depart voluntarily. The statute, however, says that the Attorney General "may, in his discretion," permit an alien to depart voluntarily if "he is, and has been, a person of good moral character for at least five years." 8 U.S.C. Sec. 1254(e) (emphasis added). Given the petitioner's past history of immigration law abuse (even if we leave to the side his possibly bigamous marriage), we can find no abuse of discretion in the immigration judge's denial. See Williams v. INS, 773 F.2d 8, 9 (1st Cir.1985) (denial of discretionary relief will be upheld unless "arbitrary, capricious or an abuse of discretion").
The petition is
8
Denied.
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.